II. ‘The right to roam’

A Home Office official found it hard to see what the repeated, yet abortive, promotion of Access to Mountains bills had been intended to achieve over the previous fifty years.Footnote ⁷ There had remained a surprising lack of parliamentary interest, particularly given how, by the 1930s, there were estimated to be over half a million ramblers, with some ten thousand on the moors of the Peak District any weekend. But, as Cyril Joad himself recognised, those same burgeoning numbers had also caused landowners to be much stricter in enforcing their proprietary rights.Footnote ⁸

The rambling clubs of cities and districts had formed themselves, fitfully and hesitantly, into federations. The National Council of Ramblers’ Federations was founded in September 1931, which became the Ramblers’ Association in 1935. The ramblers were no unified force. The larger rambler federations disassociated themselves from the most publicised ‘mass trespass’, when a communist British Workers’ Sports Federation instigated a trespass by some four hundred ramblers across the moorland of Kinder Scout, the highest part of the Peak District, on Sunday 26^th April 1932. Politically, the most influential body was the Commons, Open Spaces and Footpaths Preservation Society, which had long despaired of the confiscatory stance taken by the Access to Mountains Bills. Its secretary, Sir Lawrence Chubb, pressed the need for ‘a more equitable and amicable solution’, which acknowledged, for example, the high commercial value of sporting rights.Footnote ⁹

The government provided nothing like the state direction most evident perhaps in the ‘Strength through Joy’ movement in Germany.Footnote ¹⁰ As Arthur Creech Jones wrote, in The Times of 7^th April 1938, ‘the country did not want the paternalism applied to workers abroad’. It was ‘far too disciplined and not sufficiently individualistic’. But whatever the advantages of such personal freedom, ramblers were, from a government perspective, merely another lobby group that must achieve consensus with other relevant interest groups, particularly the landed bodies, before pressing for the enactment of desired policies. Within government, questions of public access fell to the Home Department, although officials argued privately that either the Ministry of Agriculture, as successor to the Enclosure Commissioners, or the Ministry of Health, with its concern for physical fitness and outdoor recreation, was the more appropriate department. The truth was that, as the official historian of access to the countryside, Gordon Cherry, writes, no department wanted to handle an issue upon which the prospect of accommodating the respective lobbyists was so bleak.Footnote ¹¹

The only hope for a legislative initiative was a Private Member's Bill. Geoffrey Mander, an Opposition Liberal, moved the sixth interwar Access to Mountains Bill in September 1937. Lieutenant Colonel G. Acland-Troyte, the President of the Central Landowners’ Association, followed the familiar course of giving notice of his intention to oppose the bill on the grounds of its failure to specify the areas of land involved, protect fishing rights, or to provide for closed seasons and the byelaws required for regulating public behaviour.Footnote ¹² As Mander himself recalled later, his bill ‘really had no chance of passing’. Its demise, however, encouraged discussion at the annual general meeting of the Commons, Open Spaces and Footpaths Preservation Society, in October 1937. Chubb pointed to what he saw as the inherent flaws in the bill. He urged the Society to invite the cooperation of landowner bodies in devising an alternative bill, whereby access could be extended to ‘certain types of land where and when well-behaved members of the community could not conceivably cause any harm’. This proposal instigated a meeting with the Council for the Preservation of Rural England on 22^nd October, at which a joint committee was formed to consider how Mander's Bill could be ‘amended without sacrifice of essentials, so as to stand reasonable chance of becoming law’.Footnote ¹³

Chubb thereupon wrote to the various landed bodies, suggesting a joint conference to formulate an agreed bill. This was an assignment for which he was eminently suited. Closely involved in almost every amenity and outdoor-recreational body, Chubb's legal knowledge and unfailing tact made him an invaluable member of committees and deputations. He was knighted for services to the English countryside in 1930. Such eminence caused suspicion of his motives amongst what his biographer described as ‘a radical section among the rambling clubs’. As Edwin Royce wrote in the Ramblers’ Federation Handbook for 1938, ‘compromise is a hateful thing to many of us, and to some will smack of treachery’.Footnote ¹⁴ The Central Landowners’ Association Executive Committee, for its part, contacted ten of its most relevant branches, of which four responded positively, and one opposed participation. The Association's Council approved taking part both in the proposed conference, and in a preparatory meeting convened by the Land Union.Footnote ¹⁵

Geoffrey Mander's Private Member's Bill was blocked at the instigation of the government whips, essentially for its failure to take cognisance of all the relevant interest groups. Any inevitably inconclusive debate would be a waste of parliamentary time. An assistant secretary in the Home Office, L. N. Blake Odgers, wrote that the principle was ‘one to which most people would subscribe, but the extent of application is obscure and the provisions for preventing abuse of public access were obviously inadequate’. The Cabinet intended that a further Access to Mountains Bill, a year later, should also be blocked. But its promoter, Arthur Creech Jones, had not only met the obvious objection by having preparatory discussions with the respective lobbyists but, by his tact, persuasiveness, and what his biographer describes as a ‘meticulous attention to detail’, he succeeded where others had failed.Footnote ¹⁶ As Mander remarked at the time, Creech Jones had, in obtaining an unopposed Second Reading, achieved through Chubb's machinations the ‘remarkable result’ of a sufficiently negotiated agreement with the landowner bodies for the government to pledge its ‘good offices’ in expediting the bill through parliament.Footnote ¹⁷

III. National fitness

Perhaps the most glaring omission in the various critiques made of the bill has been the failure to appreciate the implications of it being a Private Member's Bill, as opposed to a government measure. The government had neither the initiative nor responsibility. Private Members Bills arise almost invariably from the success of individual members in having their names among the first six drawn from the sessional House of Commons’ ballot held for this purpose. The successful members frequently adopt bills suggested by outside bodies. Arthur Creech Jones, the promoter of the seventh inter-war Access to Mountains bill, had been the organising secretary of the Workers’ Travel Association since 1929, and Labour member for Shipley in Yorkshire since 1935. He was an executive member of the Ramblers’ Association.

Private Members’ Bills are allocated so little Parliamentary time, that success in the ballot is no guarantee of their completing the five stages required of every bill in both Houses. There is neither the support of party whips, nor indeed direct control of the bill in the House of Lords. To stand any chance of enactment, the bill has to be short and uncontroversial.Footnote ¹⁸ Creech Jones’ bill comprised only five clauses, in its endeavour ‘to secure to the public the right of access’ to all uncultivated mountain, heath, moor and downland, subject to ‘proper provision for preventing any abuse of such right’. It proscribed entry for pursuit of game or other wild birds, removal of any plant or shrub, or other form of malicious act, and such activity as might disturb livestock, cause fire, or deposit litter. Whilst Chubb deplored further introduction of ‘the old Access to Mountains Bill’, at what remained so premature a stage in his discussions with landowner-bodies, Creech Jones signified his readiness to capitalise upon those negotiations by including in his bill provision for an actual fine of forty shillings, where such prescribed prohibitions were ignored.

The respective roles were played out. Creech Jones moved the Second Reading on 2^nd December 1938. A meeting of the parliamentary spokesmen of the various landed bodies had agreed, the previous day, that Captain Frank Heilgers (President of the Gamekeepers’ Society) should move ‘a reasoned amendment’ for the bill's rejection. He did so, despite assurances given him that same night that all reasonable objections would be met, and ‘any blemishes or defects removed’.Footnote ¹⁹ Heilgers saw the bill as an ‘attack on the whole principle of owning land’. It sought to remove, without scope for compensation, ‘any safeguards for the owner, for the shooting industry, and for the countryside’. Such charges of confiscation emphasised an inherent limitation of all Private Members’ Bills, namely that they could not, as a main object, impose any charge upon the national Exchequer.Footnote ²⁰

Both Creech Jones, and the Labour member seconding his motion, highlighted the bill's timeliness in securing ‘a healthy and intelligent people to serve the nation in war and peace’. The announcement the previous day of a national register of men and women of eligible age for military and war related service emphasised their right, particularly in the industrial North, to ‘the healthy and harmless enjoyment of the country they are asked to serve’. How could people feel patriotic who were confined to ‘the rookeries in which they have to live’? The principle of paid holidays had been extended by the Holidays with Pay Act of 1938, and an investment of two million pounds of public money made in a Keep Fit Campaign. But how could the aspiration for a healthy population be realised when those in ‘smoky Sheffield and Manchester’ were ‘denied access to their native space’?Footnote ²¹

The bill's sponsors emphasised the incremental, as opposed to the radical, nature of the bill, insisting that its purpose was simply to extend the access which was already afforded by ‘great landowners and public benefactors’ to such parts as the Lake District, Snowdonia, and the northern Pennines, and by such bodies as the National Trust and Forestry Commission. The bill was particularly focused on the Peak District, where there were only twelve paths of more than two miles in length, in a region of 215 square miles. Some thirty-two moors had no public access. To those fearful of the loss of sporting-value, Creech Jones pointed to Ilkley Moor in Yorkshire, where there was complete ‘freedom to roam’ and the game bags remained as full as ever. There was unrestricted access to ‘the most majestic mountains’ in Austria, France and Switzerland, without defilement of their ‘great reserves and hunting areas’.Footnote ²²

Lobbyists played their part. The Labour member for Sheffield Brighouse, Fred Marshall, spoke for the Ramblers’ Association in condemning the scandal whereby landowners ‘locked, bolted and barred’ public access out of preference for grouse or, rather, ‘a few gentlemen from London for a shooting party for a day or two’. Brigadier-General Clifton Brown (a Central Landowners’ Association Executive member) spoke for the landowner bodies, pointing to how owners and occupiers obtained four or five times the income from grouse shooters, however brief their presence, than from hikers and their hostels.Footnote ²³

The government, however aloof from sectarian conflict, could not be indifferent. Not only did the Commons expect an opinion on the bill, but administratively the government of the day is invariably blamed where any badly drafted Act creates difficulty in the courts. By House custom, a junior minister spoke toward the end of the debate. The Under-Secretary of State in the Home Office, Geoffrey Lloyd, expressed sympathy for a bill. He was himself a hiker, but he condemned the bill itself as ‘a bad bill’ in its drafting, particularly for its failure to provide any enforceable definition of access land, or proper redress for landowners from abuses arising from public access. These were however the very questions being discussed on the one side by the Land Union (joined by Central Landowners’ Association the previous week), and, on the other, by the Commons, Open Spaces and Footpaths Preservation Society, who, as Lloyd expressed it, ‘have been in touch with the ramblers’ associations’. The negotiations had shown ‘considerable chances of success’. A Second Reading would permit, if practicable, ‘such agreement to be incorporated in the Committee stage’.Footnote ²⁴

The names of two senior figures of the Labour party, Hugh Dalton and James Chuter Ede, appeared as sponsors on the back of the bill. They argued that an unopposed Second Reading of the bill would so encourage outside discussions toward ‘an agreed and reasonable settlement’ that, at the very least, there would be greater chance of an agreed bill being brought forward at the next parliamentary opportunity. With the assurance of ‘almost unlimited modification’, the hostile motion was withdrawn and the bill approved without division.Footnote ²⁵

IV. ‘Regulated enjoyment’

Whereas the original bill had been a declaration of public rights with provision against a few abuses, Creech Jones emphasised to the Commons’ Standing Committee, in March 1939, how ‘some definite machinery’ had been added, so as to make public access ‘a regulated enjoyment’. The bill's whole structure now rested upon meeting the previous main objections of a lack of definition and safeguard.Footnote ²⁶ The release of the relevant government documentation has revealed how far departmental officials and the landowner bodies determined the eventual bill's content, and caused such sharp reaction from ramblers.Footnote ²⁷

The Home Office official, Blake Odgers, recommended that the government whips allowed a free vote on the Commons’ Second Reading. Chubb had assured him that ‘the main source of discontent’ were the hikers of the Peak District, who resented all constraint and had little regard for other viewpoints. Creech Jones’ agreement to ‘a fresh bill’ based largely upon agreement with the landowners’ bodies, enabled the junior minister and the Chief Whip to delay the Committee Stage, thereby affording the maximum time for negotiations, in which Clifton Brown and Lord Radnor played a principal part.Footnote ²⁸ As Chubb informed an interdepartmental meeting of officials, convened by Blake Odgers on 30^th January 1939, the landowner bodies wanted drastic changes. The original bill had conceded too much to the public.

Chubb had always emphasised the relevance of Section 193 of the Law of Property Act of 1925, whereby public access for air and exercise was granted to metropolitan, municipal and urban district commons and, where so desired by the owner of the soil, to rural commons, subject to such limitations and conditions as the Minister of Agriculture might impose to prevent injurious effect. Owners saw such advantage in the greater regulation of public access that ninety-nine orders had been made by deposit of the necessary deed with the Minister, covering an aggregate of 111,955 acres of rural common.Footnote ²⁹ Chubb's belief that the Access to Mountains bill should adopt such precedent went far in resolving the government's overriding concern, namely that of minimising its administrative burden. It enabled the Legal Adviser and Solicitor to the Ministry of Agriculture, A.D. Stocks, to argue, at the interdepartmental meeting, that Creech Jones’ bill took ‘the wrong angle of approach’. As drafted, the bill would convey a right of access to all uncultivated land from its operative date of 1^st January 1940. Landowners would therefore expect the minister to have decided what limitations and restrictions should be imposed upon each piece of uncultivated land before that date. Stocks claimed it would be far simpler to adopt the precedent of Section 193, whereby no right of access would apply until the minister had approved an order for particular lands, which embodied such restrictions as the minister believed reasonable. The interdepartmental meeting recognised how such procedure would both reduce the administrative burden and overcome the otherwise insuperable difficulty of defining the land to which the bill applied. Applications could be handled according to their urgency. The representative of the National Fitness Council (present at the meeting) pledged assistance in identifying priority areas.

The representative of the Office of the Parliamentary Counsel warned the interdepartmental meeting of how, even if the Commons’ authorities agreed to such a radical amendment at the Committee stage, the bill was likely to be thrown out at the Report stage of the whole House. Blake Odgers thought the Second Reading had shown such strong support that it would take ‘a bold man’ to block further progress. The meeting accordingly invited Chubb to sound out Creech Jones and the landowner bodies as to the adoption of Stocks’ alternative approach. The relevant departments would meanwhile seek Cabinet direction as to whether the bill's administration could be undertaken at a time of such pressure of other, urgent work of national importance and, if so, by which department.

The government's somewhat unexpected support for the Second Reading, which the Central Landowners’ Association Executive Committee attributed to the National Fitness Campaign, made all the more significant the Association's presence at the meeting of landed bodies on 21^st December, and with ‘the ramblers associations, etc.’, as the Committee's minutes of 18^th January 1939 called them. As the minutes further reported, landowners’ representatives were ‘unanimous in not desiring to exclude the public from the mountains and moorlands, provided that adequate safeguards were obtained’. The main difficulty was the inability of a Private Members’ Bill to provide any compensation from public funds for damage to, or deterioration in the value of, property. There seemed no alternative but to exclude properties where claims might arise. Whilst firmly holding out for compensation, Lord Radnor (a Council member and chief spokesman for the landed bodies) spoke confidently of the ‘friendly nature’ of discussions.Footnote ³⁰

It required however a further three weeks following Chubb's attendance at the interdepartmental meeting before he could report that, after ‘very protracted and difficult negotiations’, the landowner bodies had agreed to the proposed revision. Creech Jones had obtained Lord Radnor's agreement, largely by further extending the precedent of Section 193. Not only might local authorities and ‘any recognized Footpath Preservation or Rambling Association’ apply for access orders, but the landowners themselves might apply for an access order by depositing a deed with the minister, thereby obtaining such regulation as the minister was prepared to admit to the body of the order. It was thought many landowners would want such access for the penalty provisions affixed to such entry, particularly as an order could be varied or rescinded in the light of experience.

There remained, however, the question of the choice of responsible minister. The Home Office continued to show ‘the most eager disposition to push this Bill onto some other department’. Whilst conceding that the Minister of Agriculture was responsible for Section 193 of the Law of Property Act, Ministry officials argued that its proposed extension to private land arose entirely from the importance of such uncultivated land to physical recreation, as opposed to agriculture. The permanent secretary, Sir Donald Fergusson, minuted that the Ministry must not become involved in questions of whether national fitness, and the provision of public amenities, should override the rights of private landowners. Blake Odgers appeared to agree that the Ministry of Health was more appropriate, not least in its possessing relevant administrative machinery in its appraisal of statutory town and country planning schemes. For their part, Ministry of Health officials claimed that the bill focused so largely upon ‘the general law of property’ that it must be a Home Office responsibility. The experience of its town planning division also pointed to the volume, complexity and cost of the detailed investigations required of the intended access orders. Local public inquiries would be needed. Since it would be unfair to impose upon landowners the cost of such things as advertisements and public enquiries, and the erection of signposts and warning notices, the Ministry of Agriculture insisted that these should fall on the local authorities, whose residents were most likely to benefit. Ministry of Health officials pointed to how the local authorities had shown no interest in the Bill.

Ministerial responsibility was decided by the Central Landowners’ Association, which made its agreement to the revised bill conditional upon the Minister of Agriculture deciding the limitations and conditions of any access order. It rejected the Ministry of Health ‘at any price’. Fergusson suggested that his minister, Sir Reginald Dorman Smith, should inform the Cabinet of his reluctance ‘to take on additional and invidious responsibilities’ of that kind, but felt it would be unwise ‘to let slip the opportunity of agreement upon a very contentious problem which might be exceedingly embarrassing to the Government’. The Home Secretary and Minister signed the Cabinet Paper on 28^th February, reporting acceptance of the agreement ‘by a great majority of the English rambling Associations’, and of how this had been embodied in amendments ‘which will result in a very different and much longer Bill’.Footnote ³¹

The Cabinet's approval of 2^nd March 1939 enabled the government's representative on the Commons’ Standing Committee, Herwald Ramsbottom, to support Creech Jones’ successful application for an immediate fortnight's adjournment, so that Parliamentary Counsel could ensure that the bill was, by what he called ‘almost a miracle of agreement’, a ‘workable proposition’. Not only was ‘the law of property’ touched upon at many points, but there were ‘certain rather difficult questions of finance’. There must be no over-stepping of what a Private Member's Bill was permitted to enact. No one had been more solicitous of the amended bill than Clifton Brown. The amended bill had removed all pretence of a ‘right of access’. Landowners were safeguarded from damage or loss, without compensatory calls upon public money. As Lord Radnor explained to the Central Landowners’ Association Council members, public access would only be obtained by voluntary grant of the owner, or by order of the Minister, who was precluded from granting it unless satisfied that there would be ‘no material depreciation of the capital or rental value . . . or material loss or damage’.Footnote ³² The bill had become, by the Report stage and its immediate (and unopposed) Third Reading, essentially a cross party agreed bill. Clifton Brown claimed ‘a good deal of responsibility’ for its content; Philip Noel-Baker, a Labour member and another signatory of the original bill, believed that it would be welcomed, once better understood.Footnote ³³

It was in fact Lord Radnor, the principal negotiator for the Central Landowners’ Association, who moved the bill in the House of Lords on 9^th May 1939. It received ‘such a chorus of approval’ as to be given an unopposed Second Reading. Lord Harmsworth, Chairman of the Commons, Open Spaces and Footpaths Preservation Society, spoke in the debate of how the ardent spirits of the Peak District, and the North of England generally, had asked too much. They had shown ‘no consideration for the perfectly legitimate interests belonging to the land’. His Society had taken matters in hand. The bill was largely the outcome of conferences and discussions, held largely on its premises, with those most likely to be affected by its operation, namely the landed and sporting bodies. The Lord Chancellor, Lord Maugham, affirmed the bill was now ‘remarkably well drafted’, and hoped there would be little further amendment.Footnote ³⁴

The challenge for Lord Radnor, and indeed for the Parliamentary Secretary of the Ministry of Agriculture, Lord Feversham, was to show how the profoundly changed bill arose not from adroit manoeuvre on the part of the landed bodies, but rather from a recognition of the wholly different circumstances which those landed interests had to face, of which the government's physical fitness campaign was only part. As the Marquess of Crewe, President of the Commons, Open Spaces and Footpaths Preservation Society, expressed it, the earlier Access to Mountains bills had sought to enable alpine club climbers to climb wherever they pleased, and others to enter their local game preserves. Where once some half dozen wished to roam, now as many as three to four hundred wanted the same advantages, as a result of the great improvements in transport.Footnote ³⁵ Lord Addison, the Opposition spokesman, agreed. He recalled how the report of the interdepartmental National Park Committee, which he had chaired as Parliamentary Secretary of the Ministry of Agriculture during the Labour government of 1929 to 1931, had similarly sought the kind of ‘disciplined access’ to which ‘no sensible, right-minded person could object’. A principal witness to that earlier Committee, Lord Bledisloe, portrayed this new ‘Public Access to Private Land Bill’ as epoch making. As a large landowner, who had long wanted ‘very much more extensive rights on the part of health-seeking pedestrians’, Bledisloe found very heartening its clarification and regularising of the chaotic law of trespass.Footnote ³⁶

V. ‘The trespass law’

The ramblers’ federations complained of betrayal, but the question might equally be asked as to why they had allowed themselves to be so out-manoeuvred. They had relied completely upon Chubb and had never met the landowner bodies face to face. At a meeting of 10^th February, held at such short notice that some federations went unrepresented, they had conceded the revised bill with its ‘elaborate arrangement for obtaining limited access to specified areas’ by a small majority. Certainly there had been outrage when, at a previous meeting of 13^th January, Chubb had introduced what became known as ‘the trespass clause’. As Tom Stephenson later recalled, the ramblers’ representatives had shown their implacable opposition to any move which would make a breach of the common law of trespass into a criminal offence. Not only had Chubb withdrawn the clause but, as the leading rambler representative, G. H. B. Ward, recalled later, the ramblers’ representatives would have rejected the entire draft bill, had Chubb introduced anything of the kind at the second meeting.Footnote ³⁷

There was accordingly fury at the inclusion of a ‘trespass clause’ among the amendments put down at the Commons’ Committee stage. Chubb's intention of subsequently discussing such a clause with the Ramblers’ Association had been lost when the Commons’ authorities rejected further postponement of the Committee Stage. Among the fines imposed for such acts as the lighting a fire, or dropping litter, the ramblers’ bodies discovered that a penalty had been introduced of forty shillings for simple entry onto land closed by a ministerial order, at times such as the lambing or nesting seasons. A letter signed by leading figures in the Ramblers’ Association pointed to how increasing numbers of the public frequently and knowingly trespassed, believing that any law debarring them from beautiful and uncultivated parts of their native land should be ignored. Yet far from recognising such public belief, the amended bill made such trespass a punishable offence, even where no damage occurred. Creech Jones secured compromise, whereby an offence was committed only when such trespass was proven to be intentional. It did nothing to mollify rambler opinion.

Fred Marshall moved amendments, at both the Commons’ Committee and Report stages, to remove ‘the trespass law’ altogether, emphasising that the Ramblers’ Association would ‘rather be without the Bill than have it’. A ‘magnificent opportunity’ to end what had often been a ‘bitter enmity’ would be sacrificed.Footnote ³⁸ Geoffrey Mander spoke of the revised bill as being ‘very nearly a new Enclosure Bill’. It gave gamekeepers, for example, the right to demand the names and addresses of those suspected of trespassing. But Clifton Brown asserted the impossibility of allowing indiscriminate trespass to continue. Osbert Peak (another Conservative) spoke of how it must be presumed that any ministerial order would have practical effect in the sense of being obeyed.Footnote ³⁹

Creech Jones both relayed and expressed considerable sympathy for the views of the ramblers’ federations, but emphasised his commitment to the ‘compromise agreement’, which had enabled the bill to progress. ‘The rambling fraternity’ had to follow the landowners who had made ‘very considerable concessions’. They had entrusted ‘their own rights over big areas of country to the Minister of Agriculture’ who, as Clifton Brown remarked on the Third Reading, might be a minister in a Socialist government.Footnote ⁴⁰ The extent of government support for the amended bill was signified by the Attorney General's intervention at the Report stage, pointing to how it simply followed the precedent of Section 193, whereby parliament had similarly replaced a previously ‘unsatisfactory state of affairs’. While only those living near a specified common had previously had right of access to the common land, the public was now being given full legal rights for the first time, but subject to an offence being committed where any limitation or condition was broken. Any penalty for simple trespass under the new Access to Mountains Bill would apply only to land to which the public would have legal right of entry for the first time, any restriction applying only when the minister found there to be a very special reason. As Philip Noel-Baker observed, such an undoubted incursion into the law of trespass was far from revolutionary, but was rather a ‘restrictive evil’ necessary for attaining the benefits otherwise accruing from the bill.Footnote ⁴¹ The intention of Marshall's amendment at the Committee Stage was lost by fourteen votes to seven, and at the Report Stage by eighty-six to seventy.

Marshall led a deputation of the Ramblers’ Association before the Lords’ Committee Stage, at which he suggested to Lord Feversham, with the prior approval of the Association's chairman, Alex McIntosh, that the bill might be given a trial without the penalty clause, or that the clause might be suspended for five years. Lord Radnor, who was also present, objected that ‘any material change now would upset the agreement obtained’. McIntosh wrote to Lord Feversham shortly afterwards, however, emphasising how he, and several leading members, believed very strongly that ‘a difference of first class importance’ would be made, by putting ‘ramblers on their honour for five years’, thereby enabling the Ramblers’ Association to work with the bill ‘in good spirit’. In what Gordon Cherry calls a ‘last ditch compromise’, Lord Feversham secured amendment, approved by Marshall, whereby the common law of trespass would continue to apply both at night (as had always been intended) and in the daytime, even where the land was closed by ministerial order. The minister would however have provision, upon application, to apply such sanction, where satisfied a revised order was required to prevent continuance of a contravention, or was otherwise needed in the public interest. Lord Addison welcomed, at the Lords’ Report stage, what he called ‘this ingenious compromise’.Footnote ⁴²

The outstanding question for landowners and occupiers, following the bill's Second Reading in the House of Lords, was their greater liability for personal injury and loss, given the increased number of people likely to enter such prescribed access lands. Lord Radnor failed in his endeavour, made at the behest of Acland-Troyte, the Central Landowners’ Association President, to have such liability waived altogether.Footnote ⁴³ The Lord Chancellor's suggestion prevailed, albeit following further reference to the parliamentary draftsman, namely that:

VI. Access to the countryside

The post-war Labour Government did not have the political need, and its Colonial Secretary, Arthur Creech Jones, did not have the opportunity, to defend his earlier Private Members’ Act. Rather, and to varying degrees of denigration, the Act ratcheted forward demands for further post-war incremental advance. Lord Radnor and Lord Addison had themselves wanted the eventual bill to be more ambitious. They had suggested an extension of the concept of the ministerial access order to all types of land, thus making the Bill a more general Rural Access Bill. Not only had the Commons’ authorities disallowed such expansion, but Lord Feversham had warned of the possibly ‘mortal’ risk of exciting opposition from fresh quarters.Footnote ⁴⁵ As it was, the enacted Bill incurred parliamentary misgivings from all quarters. Robert Turton (a Conservative) had objected to the way that the Bill would intrude upon the relationship between the owner and his land. Fred Marshall had protested at how the itemisation of ‘every conceivable offence’ had undermined any goodwill felt by ramblers. Geoffrey Mander had warned of how ‘nobody has got what he wants – certainly not the ramblers’ associations’. The inevitable resentment made it ‘extremely doubtful’ whether the Bill, borne of such obvious compromise, should be passed.Footnote ⁴⁶

The war impacted in two ways. Whilst the Bill received the Royal Assent in July 1939, the pessimism voiced by ramblers over the detail of its cumbersome procedures and indeterminate costs, which were published in May 1940, was never tested. It was effectively suspended for the duration of ‘the present emergency’.Footnote ⁴⁷ And yet the war, or rather the anticipation of post-war reconstruction, made the issues underpinning the Act ever more relevant. The Ministry of Agriculture appointed a corps of Rural Land Utilisation Officers under a chief adviser, the geographer, L. Dudley Stamp, in March 1942.Footnote ⁴⁸ It co-sponsored an expert study of rural utilisation under Lord Chief Justice Scott, which stressed the need for ‘a publicity campaign’ that would promote ‘mutual understanding and the better provision of access generally to the countryside’. Stamp, the Committee's vice-chairman, warned, following a tour of the Lake District and Pennines in September 1942, of the consequences of tens of thousands of visitors to the post-war countryside, where any use of the term ‘national park’ would simply be taken to imply a public right of access.Footnote ⁴⁹

Stamp had been accompanied on his tour by Basil Engholm (a principal in the Ministry), who cited such pressures as further reason why the Ministry should concern itself more generally with rural issues. By consciously developing ‘a community of interests between agriculture and amenity’, the Ministry could better ensure that ‘the activities of the urban use of the countryside did not interfere with efficient farming’. An assistant secretary, A. R. Manktelow, wrote, however, in the margin of Engholm's paper, that nothing must be done to deflect the Ministry from its central task. It was already overstretched in producing the food required to sustain the war. The Minister of Agriculture had already begun to develop ‘a firm and coherent policy community’, based upon a government desperate for security of food supplies and the respective landed interests determined to escape the market uncertainties of the inter-war years.Footnote ⁵⁰

The Ministry had neither the inclination nor resources to address the wider requirements of a rural, let alone urban, community.Footnote ⁵¹ Such responsibility passed to the novel and very junior Ministry of Town and Country Planning. Established in March 1943, the new Ministry was to secure ‘consistency and continuity in the framing and execution of a national policy with respect to the use and development of land throughout England and Wales’.Footnote ⁵² Not only was outdoor recreation one of the few land uses not claimed as the prerogative of another minister, but there were lobbyists anxious to exploit such post-war planning. Chubb had been chairman of a Conference on Nature Preservation in post war Britain in June 1941. The Commons, Open Spaces and Footpaths Preservation Society published a thirteen page memorandum on post war planning in September. The Ramblers Association soon followed with Proposed Post War Countryside and Town Planning. It was however a deputation in January 1942, led by the Standing Committee on National Parks (of the Councils for the Preservation of England and for Wales), which particularly attracted ministerial interest.Footnote ⁵³ This, and the Scott report, further established the position of John Dower, an architect, town planner and previously drafting secretary of the Standing Committee, as a research officer commissioned to investigate the whole question of national parks. His report was eventually approved by the Cabinet's Reconstruction Committee for publication in May 1945.Footnote ⁵⁴

Dower's political achievement was to emphasise both the urgency and the attractiveness, for urban visitors and rural hosts alike, of meeting the recreational challenge. He stressed the scale and complexity of such provision in a lecture to the Royal Institute of British Architects in March 1943, upon the ‘Holiday Use of Countryside and Coastline’, and in a Council for the Preservation of Rural England lecture on ‘Planning and Recreational Facilities’ towards the end of the war. The prospective extension of ‘holidays-with-pay’ to all workers, reinforced by higher wages and war-savings, meant that there might be over twice the number of people with the funds, freedom and desire to spend a week or more annually away from home. The prolongation of war in the East, coupled with an early start to comprehensive planning, might help to avert ‘a radical breakdown’ in accommodating such demand. More positively, Dower wrote of how such recreational use of the countryside, ‘if generously encouraged and facilitated, and wisely controlled and directed’, could become one of the most ‘fruitful’ objectives of post war reconstruction. Such access and facilities must be secured without regimentation. Holidays were above all a time for moving about freely, whether as individuals or in voluntary groups.Footnote ⁵⁵

Dower wrote in successive drafts of his official report on national parks that their success would be adjudged by ample provision for rambling access. The means adopted by the national parks authority for the national parks would become a model for the countryside generally. The Access to Mountains Act, which had been ‘a grievous disappointment’ to the rambling movement, must be replaced. Its case by case procedure would require many years before any semblance of a general right to roam emerged. The obvious course was to revert to the original intention of conferring ‘a public right of access over all uncultivated land (suitably defined) by direct and immediate operative provision, subject to determination of any special limitations and excepted areas on a case-by-case basis’. As Dower conceded, in an address as the prospective President of the Ramblers’ Association in March 1946, there was no denying the considerable harm caused by ‘a few destructive hooligans, or quite a lot of careless and ignorant trippers’. The remedy must come through the sensitive, yet authoritative, management of a national parks authority and, more specifically, its educational programmes.

The Minister of Agriculture had joined the Chancellor of the Exchequer in blocking the immediate appointment of a national parks commission. The Cabinet's Reconstruction Committee had compromised, in May 1945, by authorising a preparatory National Parks Committee which, in March 1946, secured the approval of the Minister of Town and Country Planning, Lewis Silkin, to the appointment of a Special Committee on Footpaths and Access, which included Dower, who died in October 1947. Its report of September 1947 argued that it was both logical and administratively convenient to replace the Access to Mountains with a government measure, whereby the wilder countryside became part of the whole statutory planning structure. A duty should be placed upon local planning authorities to designate such access lands, in consultation with the Agricultural Land Utilisation Officers. Compensation might be claimed in cases where owners could show real losses over a period of at least five years.Footnote ⁵⁶

The determination of the Ministry of Agriculture to rid itself of the Access to Mountains Act, and thereby transfer all responsibility for access to the countryside to the new Ministry of Town and Country Planning, made it necessary to draft an Access to the Countryside Bill. A National Parks and Access to the Countryside Bill became politically inevitable, despite the doubts of government officials as to what it might further achieve. Whilst the Town and Country Planning Act of 1947 had considerably facilitated the transfer of such power to make access orders to the local planning authorities, the Agriculture Act of the same year had also affirmed the paramountcy of agricultural considerations. As Minister of Town and Country Planning, Lewis Silkin had necessarily to reject ‘the rather sweeping recommendations’ of the Special Committee on the automatic right of public access to open countryside. Hugh Dalton, now a government minister and leader of the ramblers in parliament, emphasised that access even to the Peak District ‘for the great mass of our people must be limited and checked’, where ‘it could be shown to impinge on food and timber production’.Footnote ⁵⁷

A commentary written some seventy years after the Access to Mountains Bill complained of political compromise. Landed or traditional rural interests were unlikely to be troubled.Footnote ⁵⁸ The fact that such criticism was directed at the Countryside and Rights of Way Act of 2000 suggests that the earlier Act was no aberration. The Access to Mountains Act proved, in incremental terms, a substantial achievement, in that it was a Private Member's Bill, with all its attendant constraints, which confronted the fundamental question of the private ownership of the countryside. As the Home Office official complained in 1938, far from being a straightforward matter, the balancing of the rights of public access and those of property owners was ‘one of the most difficult and keenly controversial problems that can arise’.Footnote ⁵⁹ Subsequent legislative essays have affirmed the pertinacity of this remark.Footnote ⁶⁰