Trespass: Get Off My Land!

Denying the public’s birthright

In his book, The Book of Trespass, Illustrator, Author and Campaigner, Nick Hayes examines issues around land rights, the art of trespass and right to roam. Part history and part polemic, Hayes provides an account of how the rights of English people to connect and protect land have been removed by the encroachment of the private property principle and how that’s affected our idea of possession.

Hayes looks at how some big landowners have used vast sums of money, underwritten by the tax payer, to create both physical and symbolic structures that not only deny the public access to the countryside but help sow divisions between cultures and societies.

Fundamentally, the author sets out a case that there is a much deeper connection that we can have to the land that has got nothing to do with ownership but with belonging.

Hayes says that one of his main reasons for writing the book was to find out what the historical context and ethical justification was for the aristocracy to restrict our right of access to just eight percent of land and three percent of rivers.

Rent-seeking exploits

It is perhaps tempting to believe that the commandeering of land by the aristocracy began with their rent seeking endeavours in far flung places.

But, as Hayes points out, in truth, these rent-seeking colonial and imperialist principles were practiced on the English Commons 400 years before they were practiced on the East Indies or the West Indies.

Hayes documents how, through the adoption of principles used to exploit slave labour in West Africa, an ancestor of MP, Richard Drax, colonised half of South Dorset and enclosed increasing amounts of the land that the white working class of England relied upon for sustenance.

Hayes says that this historical context of dispossession reveals that the working class of England have a lot more in common with the recently arrived migrant diaspora than they do with people in positions of economic and political power.

The aristocracy and political and media establishment don’t want to acknowledge this nor the fact that the purpose of the metaphorical and physical walls they build is to keep the two groups apart.

A contemporary example of domestic dispossession and division relates to the threat by the establishment to introduce a Criminal Trespass Bill. If enacted, this bill could turn the most innocent country walker into a criminal.

The law of Tort regards trespass as an act of aggression against the landowner even though the real crime and harm of trespass is the wall that hems the public into a world preventing them from interrelating with nature.

The mask of legitimacy

At the age of ten, Hayes began traversing land ownership boundaries to draw pictures of various aspects of the countryside he was immersed in. Having been made to feel he had committed a moral crime as a result of this activity, Hayes eventually learned that his sense of dislocation embodied the distinction between law and natural law.

“The wall presents itself with this kind of mask of legitimacy. It has an authority to it”, says Hayes.

The author posits that the public have become inured to the idea of not having the right to connect with nature even though almost every human right is actually connected to our rights to land. Through incremental stages, the aristocracy and their lackeys have tried to convince us that our bond with nature does not exist.

Hayes’ says that gender, class and race have been manipulated by the owners of land to not only divide the working class, but also to limit the ability of communities to access spaces with which to express themselves.

Hayes cites the travelling community, kayakers and wild campers as examples of groups who are being arrested, jailed and fined as well as having their vehicles impounded simply for expressing themselves in nature.

Hayes says that over time an orthodoxy or consensus has built up in which there is a compulsion for the aristocracy to have complete dominion over areas of land. This is despite the fact that, philosophically, people can only be stewards of land and cannot own it.

The thalweg

Hayes makes the point that everything about land law, especially in relation to rivers, “is surreal and ridiculous.” Rivers often mark the border of an estate, but actually no one knows where in the river that territorial line, the thalweg, is placed. In the context of natural law, the thalweg thus presents a problem for a law predicated on definitive lines of demarcation such as walls and barriers.

“Law doesn’t call it a lie”, says Hayes, “but a legal fiction, essentially polyfilla in the cracks of the logic of law. They are actually there to allow the working of the law to the point where you have to ignore reality.”

Hayes continues:

“Trespass is a really good example of that. It’s not just defined as harm, it’s defined as harm to the owner of the land. So trespass falls under tort because the law needs to file it under something. It will create this legal fiction to pretend that humans are causing harm.”

The inequities described are ultimately the result of land monopoly and the privatisation of rents. American economist, Henry George, favoured liquidating land monopoly because he realised that the more you privatise rents, the greater the increase is in inequality.

Perhaps surprisingly, it was Winston Churchill who said:

“If we’re going to sort inequality and get rid of charity and welfare, we need to liquidate the mother of all monopolies, which is land monopoly.”

The problem though, according to Hayes, is that Churchill’s message “has been smothered and obfuscated by the elite few people in England that benefit in vastly disproportionate terms to us maintaining the status quo.”

Churchill’s political career was funded by these elites, and thus was aware of the systems internal contradictions. This led him to conclude with the caveat:

“But if you do try to liquidate land monopoly, it’s political suicide.”

Forward with the people

So given that solving the problem of land monopoly through parliamentary channels is therefore a seemingly incongruous position, the solution inevitably falls to the people.

However, Henry George as long ago as the late 19th century, was aware that poverty presents its own set of challenges:

“The problem with poverty”, wrote George in Progress and Poverty, “is it takes all your time.”

What George identified was that the act of protesting is the preserve and the privilege of the middle class. It’s a problem, for example, that the abstract nature of the Extinction Rebellion cause best exemplifies.

Nevertheless, Hayes says that this is a kind of challenge that can be overcome, arguing that radical solutions are needed to enable people to have access to what is their fundamental birthright.

The author proposes a three-pronged approach: Firstly, following the theory of Lawyers for Nature, he says that those who pollute our rivers should be sued as if they were poisoning a child.

Second, Hayes argues the case for the introduction of a Land Value Tax (LVT) so that land value can be captured as a precursor to its redistribution to local communities to enable the funding of vital public services.

Third, following Land In Our Names, Hayes proposes that community ownership and access to land for people and communities of colour in England be sought as reparations for the horror done to their ancestors.

In conclusion, Hayes encourages people to sign up and join Right to Roam at their website.

“Next year”, says Hayes, “is the 90th anniversary of the Kinder Trespass, the largest, most famous, trespass in English history. So it’s incumbent upon us at Right to Roam to encourage people to go out and turn each trespass into a direct action for wider change. That’s what 2022 is all about.”