Why Trespass Is a Radical Act

92% of land in England is off-limits to the general public. A new book explores what we are missing through a series of illegal trespasses that make the case for the right to roam.

If you had paid only scant attention, you might imagine that the story of land access rights in England is one of gradual improvement since the late-19th century. Landmarks would likely include Octavia Hill’s Commons Preservation Society founded in 1865, the 1932 Kinder Scout Mass Trespass, the creation of the National Parks in 1949, and the introduction in 2000 of the ‘right to roam’ on uncultivated land.

However, the rights gradually reacquired after the long era of enclosure of the English countryside are not only inadequate, they are also under threat. The 1994 Criminal Justice and Public Order Act invented the criminal offence of ‘aggravated trespass’ to describe many otherwise lawful ‘disruptive’ activities as crimes when they took place in the context of a trespass, previously only a civil offence.

In 2005 a new act made any trespass in itself a criminal offence when it occurred at certain sensitive locations. The last Conservative manifesto included a promise to criminalise all trespass. In this context Nick Hayes’ The Book of Trespass, for all that it takes the long view, is a timely contribution. 

Each chapter is named for an animal, connected to a political or historical theme that emerges through Hayes’ account of a trespass somewhere in England. In ‘Pheasant’ he stomps across Walshaw Moor in Calderdale (though the actual trespass in the chapter, it seems, takes place in Highclere in Hampshire), remarking that the right to roam on moorland did not return all rights lost when such land was enclosed. “When the fences went up… commoners lost not only their access [to land] but their rights to contribute to a collective decision on how it was used.”

The burning of peat on grouse moors to maximise bird numbers reduces the capacity of the land to retain water, at the cost of the residents in valley towns like Hebden Bridge, which has flooded several times in recent years. Hayes notes, rightly, that a Land Value Tax – first floated in the ‘People’s Budget’ of 1909 but killed by the House of Lords – would reflect the many ways in which landowners owe a debt to society, rather than the other way round. 

After a while you get used to Hayes’ patterns and rhythms, meandering in and out of the trespass story to historic legal cases, poachers, protests, raves and occasionally to Foucault or Lefebvre. The narrative is sometimes repetitive in that aristocracy and enclosure come up almost every time, but it’s easy to tolerate these thematic echoes when the writing is so good. 

Hayes is an alert, inquisitive observer of a landscape which is endlessly alive, but has fallen under the spell – a favourite word – of landowners’ claims about the natural order of things. Though his argument is ultimately a fiercely political one, as reviews elsewhere have highlighted, he works also in the tradition of nature writers like Robert Macfarlane. “Access to land is access to experience,” he writes, “and access to nature is access to our own wild, spiritual mind.”

This sensibility gives him a poetic sense of the different ways that we might use and share the land to the benefit of all. There are indeed boundaries in nature, he notes, but rivers, forests, mountain ranges or ravines are “in fact areas of transaction, semi-permeable membranes,” not “technologies of division” like the walls and fences which were erected in the foundational capitalist expropriations of common land, described in the early chapters of Capital.

The “lines that divide England” in the book’s subtitle are social, as well as physical: trespass is a window onto the ownership of the land, and hence to the whole English social order.

There is a risk that this sort of writing glories in a ‘merrie England’ myth that imagines that all English socialism requires is a return to some lost (pre-enclosure? pre-Norman?) past that neglects the ways that this past encoded in it hierarchies of gender or race. Hayes, however, writes sharply about the ways that colonial wealth left its marks in the English landscape, about the women of Greenham Common, and the relationship between patriarchy and property. 

He states that landlords’ enclosure and ‘improvement’ of land, and the discipline of its residents, was a starting gun for colonisation on other shores. Through a trespass on one of Paul Dacre’s estates, he writes about the borders which separate ‘native’ and ‘migrant.’ Though this visit sits less easily into the schema of the book as a whole, he chances upon the overgrown ruins of a cottage and remarks with delight, “I didn’t expect this estate to be so riddled with metaphors for paranoid nationalism: a crumbled old house, wrapped in barbed wire, an inhospitable jungle of thorns and spikes.”

It’s in the final chapter, ‘Stag,’ that Hayes is at his most direct in proposing alternatives to the status quo. The Scottish Land Reform Act of 2003, as well as introducing a ‘community right to buy’ land, put access on an entirely new footing by emphasising not exclusion from the land, but merely prohibition from activities that might damage it.

“In Scotland,” Hayes writes, remembering a night he was kept awake in his tent by nearby rutting stags, “this magic is my birthright. In England, it is a crime.” The Scottish example alerts us to the fact it does not have to be like this. According to Rebecca Solnit’s brilliant history of walking, Wanderlust, Kinder Scout was only enclosed in 1836, less than 100 years before the trespass.

The ‘stag’ of the final chapter refers also to the mythic horned figure of Herne the Hunter, who leads a ghostly mob of vagabonds and outcasts galloping through Windsor Forest – another trespass site – at times of crisis.

“Today,” Hayes writes, “Herne leads the immigrants, the Diaspora, the hippies, the fracking protestors, the small farmers who commit suicide at the rate of one a week, the ramblers, the entire rental market, the ravers, anyone in England who is ostracized by their lack of access to the value of the land.”

Beyond its demand for specific, concrete changes to the law on what land we may step onto and for what purposes, this  book is a call for a re-enchantment of the culture of nature that “jinxes the spell of an old, paternalistic order that tells us everything is just as it should be.”