Must! Is ‘must’ a word to be addressed to princes? Little man, little man! Thy father, if he had been alive, durst not have used that word.
– Elizabeth I to Robert Cecil
SINCE the time when poor, browbeaten Robert Cecil tried to persuade Queen Elizabeth that she needed to rest, there have been great changes in the way we look at the relative power of rulers, the ruled and the rule of law.
Elizabeth was already hedged around by restrictions, custom and legalities which limited her powers as a matter of caution. But the time was near when the law showed itself as dominant even over those who believed that they ruled by divine right. The law rules – not kings, not princes, not even Old Etonians. The law is above them all.
Well, that’s the theory. In practice …
Law as it relates to rights of way is a complete dog’s breakfast. Let’s suppose that you were to be accused of something out of the blue and you have no recollection of the event.
The prosecution cannot simply claim that you are guilty without proving that you are: it must provide evidence. You do not have to prove that, for example, you were not at the scene of the offence, the accuser has to prove that you were.
However, in ROW law, the situation is reversed. I can claim a line on a map is a right of way and apply for it to be put on the definitive map. To oppose it, you have to prove that the claimed path was never a ROW.
Proving the negative is a notoriously difficult procedure. When a particularly persistent lover of footpaths found a line on an 18th century Enclosure Map with ‘footpath for Miss Folkes’ written next to it, he inevitably applied for it to be ‘restored with obstacles to free passage etc, removed’.
Unfortunately for us, the path ran about 2ft behind our cottage and was so hidden that it would have provided an open invitation to burglary or worse. We were not alone – four other neighbours were affected to a greater or lesser extent, so we banded together to prove the negative.
Barristers are expensive, those with specialist expertise doubly so (‘to reading email: £35 + VAT’). I saved a few bob by discovering for myself that the alleged footpath which the county council had drawn on the Definitive Map was illegally extended by a vital 20 yards: it did not actually connect with a road, and that had been the case since 1819.
So the county readvertised, total cost to taxpayers including original advert £30,000. Our refutation, orchestrated by our barrister, cost us £25,000 and was worth every penny. We won.
My research into footpath law, local history and the local Enclosure Act had become rather obsessive. I found, for example, that Miss Folkes was the great aunt (or aunt) of the senior member of the Enclosure Commission.
My best guess is that she wanted to preserve her ability to walk over the fields to visit the dowager duchess in Riddleworth Hall, and her nephew added the inscription to keep her quiet – it had no legal force.
Looking at applications further afield, I came upon one near Stansgate in Essex, a path along the shore. It had been opened and immediately closed, which looked promising; I’d take that as a victory.
But … the estate was owned by one Anthony Wedgwood Benn, pipe-smoking, tea-drinking man of the people, or at least all those people with an estate and influential friends.
The red mist descended. If it’s good enough for that hobby-politician then it was good enough for everyone else, and in particular for me. If the law said that a right of way could be extinguished so easily for him, then it should be just as easily extinguished for us oiks.
I was OK, we had won, but what about all the other little people threatened by this stupid law? Didn’t I owe them my hard-won expertise to defend their little homes?
My first instinct was to go for the Prime Minister, David Cameron. A few applications in his constituency and he’d sit up and take notice. However, that would worry the people I wanted to help, subject them to the stress that I’d been through. There must be a better way, I thought; then inspiration struck.
Which is why I applied to re-establish the ancient route of Watling Street where it runs along Tothill Street, through Westminster Abbey and through the Houses of Parliament, over the Thames and off to Shooters Hill, removing all obstacles to clear passage. It even goes straight through the Members’ Dining Room in the House of Commons. I rather liked that fact.
The City of London has never been enclosed, which means the rights of way that were there in Roman times are still valid. The impracticality of my application was no obstacle. The law pays no heed to practicality or common sense, nor does it care what is the elevation of the panjandrums inconvenienced.
I had applied for the ROW and it was now up to those opposing to prove that it had never existed. Proof, not waffle, not ‘it can’t have existed because the king would never have allowed it’, but real documentary proof which of course does not exist, not for the Palace of Westminster any more than the meanest workman’s cottage.
As a courtesy I sent a copy of my application to the Speakers of the Commons and the Lords (and to my great pleasure, because it involved Westminster Hall, to the Lord Great Chamberlain of England, Lord Cholmondeley), which resulted in a delightful correspondence with a civil servant in the Legal Advice Office.
I had quoted the usual mantra used in these cases, ‘once a ROW, always a ROW,’ and he pointed out this is not always true – ROWs can be suspended for fairs, to erect public conveniences and for street cafes.
He did not specify which he claimed for the House of Commons, but as they frequently micturate on the electorate, he might well have been justified in that claim. Westminster City Council didn’t bother with any of that legal nonsense. It just said no.
I was unsurprised, but not disappointed, because I had won: the Deregulation Bill 2015 contained clauses which changed the rules of evidence back to the more usual process – not a coincidence, I believe – and it was signed by Her Majesty that same year, becoming the Deregulation Act 2015. No longer would an arbitrary line on a map, a path discovered when a ditch was dug or a note in a vicar’s diary trigger an application. Or so I thought.
Before an Act becomes law, there is a final formality. On a dull day the Leader of the House stands up and intones: ‘Mr Speaker, I beg leave to commence the Blah Blah Act 20, mumble.’
The Speaker shuffles his notes, mumbles ‘… commence Blah … all in favour say “aye”… all against say “nay”. Carried – time for the pub’ and the Act becomes law. Five minutes. So why are sections of the Deregulation Act 2015 relating to rules of evidence still not commenced?
Years ago, I checked with the Secretary of State for Defra (Department for Environment, Food and Rural Affairs), who told me they were consulting with stakeholders – very long consultations. The Leader of the House doesn’t answer my questions.
So what’s going on? Here’s my guess. The big beasts at the top of the Civil Service didn’t like being forced to reform the law by someone who would normally have to shut up and take it when treated unjustly. Princes don’t like being reminded that they, too, are under the law.
However, what they have done by blocking this Act is leave the old law in place. I can still apply to reopen Roman roads through York, Westminster and Canterbury cathedrals, the neolithic trackway through Flag Fen near Peterborough, countless others, and those opposing will be forced to prove me wrong – good luck with that.
Most appeals against refusal are free. But in the City, the case goes to the magistrates’ court, where a pleb might find a hostile and costly reception. Someone with a knowledge of crowdfunding could have some fun applying a bit of pressure to these arrogant, unelected princes.
For example: Sir Michael Bloomberg’s Mithraic temple in the City is not in its original position. If I apply for the original roads to be reinstated, Sir Michael’s managers will have to prove that those roads did not exist and, since there’s archaeological proof that they did, they’ll have to concede.
It’s a big building to demolish, but the law is the law, even for princes. While it would be impolite to do so – Sir Michael is one of the world’s philanthropic good eggs – an application would be legal simply because of the arrogant refusal of the powers-that-be in Westminster to bow to the law.
But what then? Open the roads and close them immediately? In the current atmosphere of anger at the ‘one law for them, another for the little people’ it would be a courageous civil servant who proposed that. Better to accept the Deregulation Act and make such frivolous applications much less likely to succeed.
Magna Carta says: ‘No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgment of his peers and the law of the land. To no one will we sell, to no one will we deny or delay right or justice.’
Tell you what. Those arrogant princes should accept that sometimes even they have to learn the meaning of the word ‘must’. Perhaps Sir Michael might have a word with them.
Commence the Act.