by Mike Parker
To see how far, and how fast, things then changed, it’s instructive to take a closer look at two pieces of legislation enacted just a decade apart: the Access to Mountains Act of 1939 and the National Parks and Access to the Countryside Act of 1949. The 1939 Act was brought in as a bill the previous year by the Labour MP for Shipley, Arthur Creech-Jones. All through the 1930s, the public mood for greater access had been building up steam, galvanised by the Kinder protest of 1932 and its controversial aftermath. The idea of a first national long-distance path, the Pennine Way, had been floated by Tom Stephenson in a 1935 Daily Herald article, entitled ‘Wanted – A Long Green Trail’; support for the idea was instantaneous and massive. The annual Winnats Pass access demonstrations grew every year. Rambling groups had mushroomed everywhere, and were confident that their time had finally come.
On the morning of 2 December 1938, Creech-Jones rose in the Commons to launch his bill, substantially the same measure that had been rejected or filibustered out well over a dozen times throughout the previous half century. He outlined the well-worn grievances, particularly in the north, and left it to the bill’s seconder, Nuneaton Labour MP Reginald Fletcher, to expound more philosophically, and humorously, upon the principles at stake. Fletcher talked of his own lifetime’s love of walking: ‘I myself in the Lake District have watched trousers giving way to knickerbockers, knickerbockers giving way to shorts, and shorts in their turn giving way to shorter shorts. Looking at some of those shorter shorts, I have smiled to remember that my father walked and scrambled over every fell in the Lakes wearing a bowler hat and clasping an umbrella as firmly as any British Prime Minister being taken for a walk up the Berchtesgaden path.’
The last reference is a reminder that this debate was taking place only two months after Neville Chamberlain had returned from Munich waving his little piece of paper and declaring that he had secured ‘peace for our time’. Fletcher’s dig was very well aimed, for it was rapidly becoming evident that Hitler’s assurances counted for nothing; the country was in a highly restive mood and could see a war fast approaching. To that end, supporters of the bill made much of the need to ensure that the nation’s youth were as fit as possible, and in what better way could that be achieved than by granting them access to the hills, mountains and moors of upland Britain? There were explicit appeals too about helping to foster a new sense of patriotism in the land by giving people the chance to experience its finest bits for themselves. ‘How can you expect some people to feel patriotic about the rookeries in which they have to live?’ demanded Fletcher.
The patriotic case was expounded with most passion by Fred Marshall, Labour MP for Sheffield Brightside and a longstanding supporter of ramblers. ‘Beautiful and lovely scenery has not only an aesthetic value,’ he insisted. ‘It has a definite spiritual and moral value. One who is in the habit of contemplating England’s natural beauty is a better man and citizen for doing it.’ Drawing in the spectre of rearmament for war, he brilliantly conjured up the image of his Sheffield constituents: ‘men who stand and toil before the vast furnaces in blinding heat, smelt and pour the steel, fashion, hammer, and roll it into all kinds of useful articles, from the tiny razor blades to the great blocks of armour which line the sides of the great Leviathans of war, are absolutely precious to this country. The service they have given to it is incalculable. These men stand behind this Bill. They are the men who will carry on that wonderful craftsmanship and they are not content to spend their week-ends in places where they can see nothing but the belching smoke of factory chimneys. They ask for the national right to see the lovely spots of our land.’
‘What has this House said to them?’ Marshall continued, on something of a rhetorical roll. ‘With incredible ingratitude this House has said, “No, you will disturb the grouse.” The House has mumbled something about private property and the damage they will do to the gritstone rocks. And the owners have said “No”. They have said, in effect, “We are having a few gentlemen from London for a shooting party for a day or two for the glorious twelfth, and therefore we must close the moors for twelve months, and anyone found on them will be summoned for trespassing.” They have put up their miserable little boards “Trespassers will be prosecuted” which really deface the eternal hills, and are at once an insult and a challenge to the youth of these great industrial centres.’
To most of their Conservative opponents, these arguments were nigh-on irrelevant, for they detected something far worse lurking within them. ‘The Bill really aims at the nationalisation of property,’ boomed Captain Frank Heilgers, the MP for Bury St Edmunds and the government’s chief spokesman in the debate. ‘There is more behind it than one imagines,’ he continued in the tones of a gumshoe sleuth, ‘because I notice that the names of three Front Bench Members of the Socialist party are on this Private Members Bill.’ Oh, well spotted, sir. Other Tory Knights of the Shires smelled the same rat. Brigadier General Douglas Clifton Brown (Hexham) ‘began to feel that the principles underlying the Bill were to down private property and to nationalise the land’. Robin Turton (Thirsk & Malton) thought that if the bill was successful ‘we shall be going very far towards Marxian Socialism.’
Sir Patrick Donner (Basingstoke) apocalyptically warned that ‘unless the Bill receives the drastic amendment which, in my opinion, it will require, it will have unjust and lamentable results. I do not want to base my objections on any ludicrous argument,’ he stated, before going on to do just that: ‘it might be said that, while Scott, the explorer, crowned the South Pole with the Union Jack, we may witness every mountain top in the United Kingdom crowned with a bin placed there under the auspices of the anti-litter league.’ He also demanded financial compensation for landowners, should the bill become law.
Not all of the Tories were quite so lacking in any appreciation of the way the world was changing. Within the party, there was – the likes of Clifton-Brown and Turton excepted – a pretty stark north–south split, as there was in practically every interest group concerned with the bill, the ramblers’ movement included. The Conservative MP for Leeds West, Vyvyan Adams, stated firmly ‘that the broad principle of the Bill is incontestable’, before going on to slyly chide his colleague Captain Heilgers for the ‘extraordinary intellectual agility’ he had displayed in the debate. ‘He made a speech,’ Adams continued, ‘which, with great respect, I would say would have been substantially out of date when this question was last discussed in the year of our Lord 1908 [it had in fact been discussed since]. He said, for example, that there is no public demand for the principle of this Bill. There may not be any public demand from Bury St Edmunds, that hive of industry. My honourable and gallant Friend represents a part of East Anglia in which, incidentally, I was born; but let him go north and then he may be able more accurately to assess the need for fresh air in those densely populated areas . . . My honourable and gallant Friend sets up the shooting interests against the need of millions of industrial workers to escape from drabness, monotony and gloom and to realise the natural treasures of our country. Never have I heard such an audacious, or witnessed so unblushing, an opposition of sectional interest to the general good.’
With only 154 MPs in the parliamentary Labour party, the bill’s sponsors knew that they would have to rely on Liberal and Conservative votes to get the legislation enacted. For all the harrumphing, most Tories seemed to realise that some change was inevitable, and best therefore to manage it as smoothly as possible – and by smoothly, I mean most in their own interest. The bill passed its second reading and was sent off to committee, where it was torn apart by the Conservatives, and reassembled in a way that bore practically no resemblance to the original. Limited access would be granted, but only after a tortuous, and potentially expensive, process of permission was applied for. The most controversial addition, however, was to make trespass a criminal offence for the first time in British history, with a fixed fine attached to it of anything up to £2.
‘Trespassers Will Be Prosecuted’ is a phrase embedd
ed in our national DNA, for it is a perfectly British blend of archaic pomposity and empty threat. Like most people, I grew up all too aware of the menacing signs that frowned across gateways and fences, and could recite the words long before understanding what they actually meant. After all, the only other time I ever heard the word ‘trespass’ was when mumbling the Lord’s Prayer in church or school assembly – ‘forgive us our trespasses, as we forgive those who trespass against us.’ Even that changed when they brought in the trendy new Lord’s Prayer in the 1970s, the one that made older relatives tut with bewildered disapproval. In that, ‘trespasses’ became ‘sins’, and we knew all too well what those were. Stealing, lying, swearing, eating too many sweets, cheeking your parents, hitting your sister, rummaging around in your classmates’ pants – they were all sins, and so, apparently, was going into a forbidden field or wood. Everything that was fun seemed to be a trespass.
Yet the signs are a nonsense; ‘wooden liars’ as they became widely known. Unless you have caused actual damage, you cannot be prosecuted for trespassing; it is a civil matter, not a criminal one. The Limitation Act of 1623 made this very clear: ‘if the defendant disclaims any title to the land and proves that the trespass was negligent or involuntary and that he has tendered sufficient amends before the action was brought, the plaintiff will be non-suited.’ This gave rise to the long-held belief that, if you were challenged by a farmer or landowner, you should offer a couple of pennies in recompense of any damage, declare that you make no claim upon the land and no trouble would ensue. It didn’t always work out quite that simply.
Even with no basis in law, ‘Trespassers Will Be Prosecuted’ signs usually achieved their aim simply by scaring people off. This was a point frequently pondered upon in the many access debates in Parliament. In 1908, the Edinburgh Liberal MP Arthur Dewar said that the phrase was a ‘terminological inexactitude if ever there was one’, but that ‘it was quite enough to frighten away perfectly innocent people, because they did not know the law.’ In the 1938 debate, Labour and Liberal MPs, and even the odd Tory, confessed that they had knowingly trespassed on their walks, and would happily do so again. The soggy legal position was perhaps best illustrated by James Chuter-Ede, the Labour MP for South Shields and future Home Secretary in the Attlee government. He described a personal experience: ‘I recall walking along a footpath and being stopped by a gamekeeper who asked me if I knew that I was on private land, and I said “Yes, what about it?” He said, “My only instructions are to ask you if you know that you are on private land.” I said, “Does it not occur to you that we should not call it a public footpath unless it was on private land?” and he replied, “I know nothing about that, Sir. My job is to ask the people who come here, do they know that they are on private land.” I said, “I suppose that every one of them has turned back,” and he replied, “Yes, every one except you, Sir.” That kind of spirit is not the way to secure good feeling between the general public and the landowner. It is an abuse of the ignorance of the person who is legitimately using the footpath, and I am quite sure it would not be defended in public by any landowner.’ Not defended perhaps, but extensively employed nonetheless.
For the well-to-do rambler, confident of his rights, the signs acted not as a deterrent, but as a magnet. Sir Leslie Stephen, Victorian writer and father of Virginia Woolf and Vanessa Bell, founded the supremely well-heeled, all-male Sunday Tramps walking club (every member in Who’s Who and, as Stephen himself put it, ‘precisely the kind of person who writes articles for newspapers’. So cocksure of their own importance were they that one of their number, novelist George Meredith, suggested that the conversations on their walks ‘would have made the presence of a shorthand-writer a benefaction for the country’. On their fortnightly tramps in the green lanes and byways of the Home Counties, the appearance of a ‘wooden liar’ would be the perfect spur for exploration: ‘they gave a strong presumption that the trespass must have some attraction,’ Stephen explained. ‘To me it was a reminder of the many delicious bits of walking which, even in the neighbourhood of London, await the man who has no superstitious reverence for legal rights.’ They even devised a chant about their legal rights that they would perform in unison should they be challenged for trespass, and after blasting it at the startled keeper or farmer, would force a shilling on to him. They might just as well have sung in close part harmony, ‘Look here, my man, don’t you know who we a-aaare?’
To those lower down the social pecking order – in other words, practically everyone else – the signs, and the gamekeepers, ghillies and guns that backed them up, worked very effectively indeed. But by the time of the 1938 debate, knowledge of the fundamental loopholes in the law of trespass was no longer confined to those in the upper echelons. The staggering upsurge in working-class walking organisations, together with the thirst for knowledge that accompanied it, meant that the implicit threat was no longer enough. Arthur Creech-Jones’s bill returned from committee to the Commons bearing almost no resemblance to its former self. The advantages it now contained were almost all for the landowner, and chief amongst these was the criminalising of trespass.
Labour and Liberal MPs were horrified by the idea, and it is interesting to note how many impassioned contributions came from some of the most impressive of their number, the free-thinking men of cast-iron conviction whose reputations have only grown with time, rather than being utterly forgotten like so many colleagues, their own colourless yes-men and the baying public-school twits on the Tory benches alike. The Liberal MP for East Wolverhampton, enlightened industrialist Sir Geoffrey Mander, described it as ‘almost equivalent to a new Enclosure Act’. Joshua Ritson, a Durham miner turned Labour MP for the city, strode energetically up on to the moral high ground, saying: ‘I am anxious lest people whom I have known all my life should now be restricted and be fined for wandering about on the moor, and if that should happen, I say that it would be not only serious, but a very wicked thing.’
Philip Noel-Baker, the hugely impressive Labour MP for Derby, war hero, Olympic medallist, co-founder of both the League of Nations and the United Nations and winner of the 1959 Nobel Peace Prize (and who also found time to have a 20-year affair with Megan Lloyd George) stated that the bill was fatally poisoned, should be dropped and that he regarded ‘this incursion into the law of trespass as a restrictive evil’. Sidney Silverman, the pocket-sized Dennis Skinner of his day (he even sat in the same place in the chamber now occupied by the Beast of Bolsover), drew himself up to his full five feet nothing as he declared that criminalising ‘merely to be upon the land’ was ‘doing something so dangerous as to outweigh any of the other advantages that remain in the Bill’.
James Chuter-Ede put it into historical perspective with the observation that ‘by this so-called compromise, the landowning classes are getting with respect to their land a thing that the old landlords’ Parliaments would never have given them in the eighteenth century.’ He continued: ‘Surely so fundamental an alteration in the law of England as this ought not to be slipped in as a final Amendment into a Private Member’s Bill as a result of some compromise arrived at, not upstairs, but mainly between the various landowners’ associations and the Commons and Footpaths Preservation Society (CFPS). This is an Amendment which we ought not to pass.’ Here was a nod to the internecine battle that was also raging within the rambling movement at the time. It was widely held by many, particularly in the Ramblers’ Association, that the CFPS, as the main negotiating organisation with the government, had sold them all out with their acceptance of the reworked bill. The CFPS is now the Open Spaces Society, and there are many diehard ramblers who have still not forgiven them.
The amendment to nullify the trespass clause was narrowly defeated, and the Access to Mountains Act – the title was pretty much the only thing that had survived intact – became law on New Year’s Day 1940, by which time the country was at war and not much thinking about a Sunday stroll. Amongst those on the losing side were many who, five and a half years
later, would find themselves as Cabinet ministers following Labour’s post-war landslide election victory. They too would neither forgive, nor forget.
To my generation, it’s all too tempting to imagine that the country marched in solidarity into a bright new dawn with the 1945–51 Labour government. In truth, following Attlee’s thumping victory, public enthusiasm for their new masters ebbed away with alarming rapidity. Rations became ever tighter, the economy was in tatters and life failed to improve at all for the vast majority of people. Even landmark legislation such as the creation of the National Health Service and the nationalisation of the mines and the railways was beset with unforeseen difficulty. Britain was broke, knackered, cold, hungry and deeply gloomy (quite literally; power supplies were restricted and countless overseas visitors remarked on how ill-lit and smoggy were the streets of our major cities). The worst winter of the twentieth century crippled the country even further in early 1947, leading to death threats aimed at Mannie Shinwell, the Minister of Power. The Labour government was desperately in need of some feelgood headlines, and these they hoped to get from the National Parks and Access to the Countryside Bill, outlined in the King’s Speech of 26 October 1948. The thrust of it was to create 12 National Parks, an unspecified number of Areas of Natural Beauty (AONBs) and Britain’s first official Long Distance Paths (LDPs). It also aimed to tidy up the chaos around footpath law, by making every local authority draw up a definitive map of its rights of way network. Included within it too was the repeal of the much-hated 1939 Act.
The tone of the debate, starting on 31 March 1949, was a world away from that of a decade earlier. There was no doubting that real change was going to happen, and for a Commons more used to dealing with an apparently never-ending sequence of hardship and difficulty, much underscored by vicious class and political rivalry, the degree of consensus around the topic, and the feeling that it was good news all round, produced something of a carnival atmosphere in the chamber.
