Is it only legal to swim in 3% of rivers in England?

Nick Hayes’ Book of Trespass and the Right to Roam campaign are brilliant contributions to campaigning for access to rivers for swimmers and paddlers. However I think that there is a flaw in this campaign. I think that giving the impression that it is illegal to swim in 97% of rivers in England could have negative consequences, with a chilling effect. In fact, though 3% of the length of rivers have uncontested rights to access, there are strong arguments that there are more rights than that. The issue is complex, and I’ve only touched on it here, with links for further reading (including the book).

What is being said?

The Right to Roam campaign, and publicity for that and Nick Hayes’s book, Trespass, say variously that it is only legal to swim in 3% of rivers in England, that it is illegal to swim in 97%, that 97% is off limits or it is not allowed or that people would be trespassing if they swam there.

(Campaign, https://www.righttoroam.org.uk/; Nick Hayes, The Book of Trespass: Crossing the Lines that Divide Us, 2020,  https://www.bloomsbury.com/uk/the-book-of-trespass-9781526604699/)

For example, in this interview, Nick Hayes says, “In England the public has access rights to only three per cent of rivers in England. If you’re paddling, swimming, or toe-dipping in an English river, there a 97 per cent chance you’re breaking the law.https://www.johnmuirtrust.org/latest/news/2017-interview-nick-hayes-on-the-book-of-trespass

Where does this come from? And what are the rights on accessing rivers (in England)?

Public Right of Navigation

This percentage comes from the fact that out of 42,700 miles of rivers in England, there are only uncontested rights of access to 1400 miles.

These stretches are made up of the tidal reaches of rivers, rivers managed currently for (motor) boats for navigation, and rivers where there is a clear legal right or agreement. The 3% applies to the uncontested parts of rivers.

There is disagreement about whether the Public Right of Navigation applies to non-tidal stretches of rivers, and whether riparian rights mean that there is no right of navigation.

The campaign, River Access for All, details historical evidence going back hundreds of years to show a common-law right, which they assert takes precedence over the more recent riparian rights, concluding, “Since the general public right of navigation has never been removed by statute or exercise of statutory powers, it must still exist today.http://www.riveraccessforall.co.uk/what_is_the_evidence.php#Evi

And “British Canoeing believes, based on a wealth of historical evidence, that there is, at common law, a public right of navigation on all rivers which are physically capable of navigation.https://www.britishcanoeing.org.uk/go-canoeing/access-and-environment/access-to-water

Also explained in clear detail in this interview with BC’s Ben Seal, on ‎The Outdoors Station: No 536 – Clear Access Clear Waters, video https://youtu.be/zLlcXHHBIR8, or podcast.

Riparian Rights

Landowners have riparian rights, which mean that they own the banks and half of the river bed.

There is nothing to say that they own the water, and the view of the Outdoor Swimming Society is that they do not (and neither do angling clubs or interests who own the fishing rights also own the water or the banks).

In Trespass, Nick Hayes says “To kayak or swim along a stretch of river, you must have permission from each and every one of the property owners on the banks.” (p307)

Does this follow, if the land owners do not own the water, only the riverbed?

Additional rights to access water

As Nick Hayes says in Trespass, “the law states that wherever a Right of Way meets the watercourse it continues to be a Right of Way” (p314). This includes roads, fords, ferries (or sites of ferries), footpaths and bridleways.

There are also places where historic rights that have been established to access the water.

The number of places with a clear right to access rivers is very far from adequate for the growing number of people who would like to swim or paddle. For most swimmers (at least recreational or casual swimmers), access to the water is a bigger issue than whether you can swim along it . Focusing only on the number of miles of river that can be accessed doesn’t help with this important issue. The book and campaign tackle issues of access to land as well as to water, and if this was resolved then the problem of accessing rivers would be solved.

Internalising the idea that we have no right to be there – the impact

In the book, Nick Hayes says when describing how some fishermen “In the absence of any clarity…, reasonably enough, assumed that, like the lion’s share of rivers in the country, I have no right to be there.” (p313)

To me this stands out oddly, because the book explains in detail how most people are marginalised and squeezed into a tiny proportion of the countryside by the massive strength of landowning and shooting and fishing rights. Nick Hayes explains very clearly this how we have normalised this and accepted it widely as the way things are.

I don’t think we should normalise, perpetuate, and support a strongly contested point of view about our rights to swim in rivers – the view held by unwelcoming landowners and angling interests.

I understand that putting across a clear and starkly unfair position is powerful. I don’t see that making clear that it is contested would weaken that position.

There could be serious negative impacts from categorically stating that it would be illegal or it would be trespassing to enter 97% of rivers in England.

If swimmers and paddlers believe that it is illegal to enter the water without a clear right or agreement (or that they would need to ask permission first) then they will be scared to do so, perhaps unnecessarily in many cases. If people stopped doing this because of those fears, then access could be affected. When people assert a right or assert a disputed right, that helps to bolster that right.

Those landowners and angling interests who want to deny access to swimmers and paddlers – often where their right to do so is contested or unclear – will be bolstered in their actions by making an unqualified and clear-cut statement that the swimmers/paddlers have no right to be there.

Can we empower access

Another more positive way of putting this might be to consider how we can empower people to assume they can access the water to swim. This could be

  • where they definitely have rights (eg tidal rivers, navigations, where there is a right of way to the water)
  • where there is a strong argument that they do (public right of navigation anywhere that can be navigated, common law)
  • where people have asserted those rights for generations (eg traditional and popular swim spots)
  • where landowners and others have tolerated or welcomed swimmers and others
  • where there is public access for recreation around the reservoir or lake or along the river and no good reason why not such as genuine safety concerns

Can we arm people with strong arguments to back their right to do so, and educate them to do so safely and responsibly?

By swimming regularly and responsibly people could build up a presence and normalise swimming in the eyes of others and themselves. This has happened in some places, as described for one group, towards the bottom of this page, https://www.imogensriverswims.co.uk/blog/issues/sixteen-reasons-why-we-need-swimming-access-reservoirs/

Rights are contested, not non-existent

The book Trespass outlines the alternative views on rights of access to the water, and the detailed research that has been done (pages 311-313). However the headline figures that accessing 97% of rivers is illegal could be taken as a clear black-and-white picture, and that is how it is being widely repeated.

Couldn’t campaigning could be done effectively while making it clear that only 3% have a clear and undisputed right of public access, and that assertions that the swimmers and paddlers have no right to be there are contested?

What other campaigners say

Other campaigns have navigated this complex area differently.

The Outdoor Swimming Society says:

“The land owners either side of the river officially own half the riverbed. They do not own the water. Angling clubs who own the fishing rights to a stretch of water own the fishing rights only. They do not own the water. It can therefore be assumed that you have access to the water as a swimmer provided you haven’t trespassed to get there.” https://www.outdoorswimmingsociety.com/is-it-legal/

British Canoeing also emphasises its belief that there is a public right of navigation (therefore the right to paddle or swim) “on all rivers which are physically capable of navigation“, and uses “uncontested” when referring to the 3% figure. https://www.britishcanoeing.org.uk/go-canoeing/access-and-environment/access-to-water

The campaign, River Access for All, takes a similar line, and refers to a “clear and undisputed right of public access” to 3%.
http://www.riveraccessforall.co.uk/what_is_the_issue.php

The  River and Lake Swimming Association, though it outlines the various views on this, seems unfortunately to back the restrictive view (and also is a bit out of date on landowner liability), http://riverandlakeswimming.org.uk/information/legal/.

Key links

Campaign, https://www.righttoroam.org.uk/

Nick Hayes, The Book of Trespass: Crossing the Lines that Divide Us, 2020, https://www.bloomsbury.com/uk/the-book-of-trespass-9781526604699/

An interview with Nick Hayes, https://www.johnmuirtrust.org/latest/news/2017-interview-nick-hayes-on-the-book-of-trespass

Interview/ discussion Owen Hayman and Nick Hayes 18 Jan 2021, https://www.eventbrite.co.uk/e/shaff-online-nick-hayes-author-of-the-book-of-trespass-tickets-133221716741?keep_tld=1

Sheffield Adventure Film Festival have uploaded the talk to their Youtube channel. It is available here: https://youtu.be/Wub4s3mpk-A

British Canoeing has useful points about access (for paddling, but applies to swimming, too), shared use and trespass (two downloads), https://www.britishcanoeing.org.uk/go-canoeing/access-and-environment/access-to-water, and has an important campaign on this which the Outdoor Swimming Society and others support, Clear Access Clear Waters.

More links on Access and Legality on this page on this website, https://www.imogensriverswims.co.uk/blog/issues/access-guide/