River Kennet paddlers, 1643-2013.
1643 was not a good year for paddling on the River Kennet. Especially if you were an old lady living in Newbury with an 'unnatural' ability to control your 'planck' on the flow of the then uncanalised waterway.
In his Parliamentarian propaganda pamphlet of that year, "A Most Certain, Strange, and true Discovery of a Witch" (which is subtitled "being taken by some of the Parliament forces as she was standing on a small planck board and sayling on it over the river of Newbury: together with the strange and true manner of her death, with the propheticall words and speeches she used at the same time."), John Hammond 'described' how foraging soldiers of the Earl of Essex dealt with someone who reportedly (good blog post on the pamphlet here) demonstrated an affinity with her local natural waterway environment, had the temerity to disregard the self-serving prejudices of the age, and laughed at self-proclaimed authority. Having failed to overcome their ignorance, the soldiers adopted increasingly extreme responses, and eventually dispatched the woman by a bullet to the head, before justifying their actions with her posthumous vilification.
Leaping forward a mere 370 years to today, and it would appear that there are a small number of modern day 'Parliamentarians' and their camp followers for whom the act of canoeing and kayaking on the River Kennet is viewed as being as legitimate as witchcraft was in the 17th Century.
It's the "law of the land", the "law of the land", the "law of the land" I say... What do you mean by 'name the law'? It's the "law of the land!" Time for an "exemplary prosecution" methinks!
Former Reading West MP, Martin Salter, is now the Angling Trust's (AT) National Campaigns Co-ordinator, and the President of the Reading and District Angling Association. His long standing position of objecting to inland waterway navigation rights is well attested, and he continues to use the unqualified phrase "the law of the land" to justify his opinion that "The rights of navigation are clear in law". Whilst he has yet to answer the recent statement from the UK Government Department for Environment, Food and Rural Affairs (DEFRA) that "There is no clear case law on whether a 'common law right of navigation' exists on unregulated rivers. This is widely accepted to be an unclear and unresolved issue.", it is unlikely that such minor contradictions will impinge on his rhetoric.
In December 2012 Martin Salter wrote "I’m also sure we will be kept busy by the antics of the canoeists who will continue to flout the law until and unless we can secure a couple of exemplary prosecutions.". When questioned in detail about this he failed to respond to a simple question:
Mr Justice Lightman has ruled that the: "Public Right of Navigation [PRON] may only be extinguished by legislation or exercise of statutory powers or by destruction of the subject matter of PRN eg through silting up of the watercourse."
A little over a month later, a succinct challenge to the claim by the Angling Trust on their Facebook page that "we prosecute [...] those who illegally paddle through sensitive spawning sites" could only be met with a similarly hollow threat:
Excerpted from an Angling Trust Facebook post thread dated 27.01.13.
Leaving aside consideration that such immature responses are hardly those befitting a NGB that styles itself "The Voice of Angling", these continuing assertions of opinions being 'facts' contribute little to forwarding a clarification of the issues around navigation rights, and in failing to dispel ignorance they can easily lead to further hardening of prejudices.
Step forward Mark Lloyd, Chief Executive at the Angling Trust. This is the man who, despite ridicule of the AT's December 2012 assertion that "Organised trespasses are becoming all the more commonplace and are promoted through the 'independent' website 'Song of the Paddle' http://www.songofthepaddle.co.uk/ which promotes what they call 'open canoeing'.", repeated the phrase in demonstration of his complete ignorance of paddling two days later.
Does this help Mark?
In his response to George Monbiot's recent Guardian blog post referring to the River Kennet, Mark Lloyd once again repeated the standard AT line that "The law has been repeatedly confirmed by the courts and is absolutely clear: there is no universal right for people to canoe on non-tidal waters." whilst completely disregarding reminders of the clear statement to the contrary by DEFRA. This is somewhat unsurprising in that, despite an open invitation dating from early 2011, the AT has also failed to make any cogent rebuttal of the works of the Rev'd Dr. Douglas Caffyn in support of a Public Right of Navigation (PRON):
Mark Lloyd's feeble and insulting response to the works of Douglas Caffyn (not to mention the University of Kent, the University of Sussex, and just about every other research student) consisted of "Both the BCU and Monbiot are causing confusion among the paddling public by promoting the work of one MSc student who wrote a thesis along these lines some years ago. Like many student theses, it has no foundation in truth or reality."
When requested on the Guardian's online pages to simply identify the 'law' referred to, Mark Lloyd was unable to do so, despite supplying a number of largely irrelevant additional comments and citations of legal rulings which were comprehensively demolished. Ultimately he confirmed that he would "not be continuing this discussion", and by failing to either provide a substantive basis to his claims or move forward in a genuine effort to compromise, retreated to a position of continuing denial.
This is a place that certain vested interests are happy to occupy in the belief that the clock can be stopped and a status quo maintained. In response to the question "Will you rule out a statutory 'right to paddle' for canoeists?" Kennet riparian landowner Richard Benyon MP is reported to have said that "I want to be really clear about this. While we want more people to get out and enjoy activities in the countryside they must be complimentary [sic]. There are plenty of places to canoe where it is appropriate and others where it is not. There will be no change to our policy of supporting voluntary access agreements as the only way forward."
A reminder from 2007 when Richard Benyon was still keen to be seen to support his Newbury constituents' rights to use the Kennet Navigation. His canvassing presence at the Crafty Craft Race on the weekend before the 2010 general election might now be considered to have been somewhat hypocritical. On the 14 May 2010 Richard Benyon was appointed as Parliamentary Under Secretary of State at DEFRA with a portfolio that includes responsibility for inland waterways. On the 18 June 2010 he resigned as a Vice President of the Kennet & Avon Canal Trust. Whilst it might be said that this decision was taken to avoid a conflict of interest, his ministerial appointment has not stopped Richard Benyon and his family estate's continuing close association with the RDAA.
With regard to "voluntary access agreements" (VAAs), the concept of 'returning' to a system discredited by 50 years of failure holds little attraction to paddlers, and smacks of desperation on the part of land owners and fisheries who would still like to believe that "canoeing is only allowed with the permission of the people who hold property and fishing rights" (another Mark Lloyd comment from his Monbiot article response which completely fails to recognise that owning or purchasing fishing rights has absolutely no connection with inland navigation rights). Either a PRON exists, in which case VAAs have no relevance (or validity as a government policy) other than for the potential to provide access to waterways and not control navigation along them, or it doesn't, in which case you might have expected to have seen regular prosecutions of paddlers.
For those ordinary anglers who would prefer not to share our waterways, comments such as those quoted by Messrs Slater, Lloyd and Benyon above are often taken to be accurate reflections of the law, may lead to further ill-informed repetition of unsubstantiated views on the PRON in England and Wales, and can even appear to provide 'justification' of the 21st century equivalent of 'loading the lead shot' as a solution.
The RDAA website members forum provides a clear example of this. In June 2011 a thread was created where a member asked "Are canoes allowed on LB" ("LB" being the 'Lower Benyons', or the riverine loop of the Kennet at Sulhamstead).
The first respondent expressed a belief on the subject, but sought clarification from the Association's officers: "as far as i was aware the stretch at lower benyons in considered non-navigable so canoes and boats should not be on it. if someone who knows more on this can confirm if i'm right in that belief it would be appreciated"
The RDAA General Secretary replied with the statement "Difficult to stop it as I am not sure if that backwater is deemed non - navigable." However, the RDAA Fisheries Officer apparently believed differently, and stated "Lower Benyons from the weir downstream to where it rejoins the canalised section at Theale river is most defenatly [sic] NON-NAVIGABLE. That means no boats, dingies, rubber rings surf boards etc etc without the landowners permission." .
This in turn led to a further member's comment that this was "Excellent info to know!", and that canoeists on this stretch would have the "rule book" thrown at them (without actually having been provided with anything more than opinion, let alone the relevant clause in the 'rule book').
When the question "Whats the ruleing [sic] on Canoe`s on the river kennet ?" arose again in September 2011, the original poster from above by then felt confident enough in the received message from the RDAA to write "They are not allowed there but i don't know what anyone can actually do short of a 3 oz zip lead, trebles and 50lb whiplash braid, should give a good battle in the current though if you do get 1 on". The Fisheries Officer reinforced this opinion with the comment "Upper and Lower Benyons are private 'river' stretches", which in turn led to a member writing "Right then,Next time i`ll be taking my 30lb uptider stand up harness and my Conger Club. ".
Such threats have been disavowed by the RDAA Chairman, and appear to have now ceased, at least in the public space of the RDAA forum, but it is easy to see how misinformation and ignorance can beget more of the same.
The confusion of some RDAA members continued, and in July 2012 the question was once again asked in regard to paddling on the River Kennet: "it would be good to know rights of the situation regarding RDAA reaches of the Kennet and what to say when confronted with the situation." Despite his previous forthright statements, the RDAA Fisheries Officer now felt only able to write "We are currently looking into our legal possition [sic] on this and as such we will not make any comments on a open forum. We will however comment once our possition is clear."
With no answer from the RDAA having been publicly provided in the last 8 months, the position might now be considered best answered by referring to statute law (the real 'law of the land'); the 1715 Kennet Navigation Act states "It is also hereby further Enacted and declared by the Authority aforesaid that the said River Kennett is and forever hereafter shall be esteemed and taken to be Navigable".
If you don't fancy a trip down to the Public Records Office in Kew to see the original documents for yourself you might want to make do with the words of the Benyons' Estate Office as reported in the Monbiot article, where it says "Benyon leases his fishing on the Kennet to the Reading and District Angling Association (RDAA). Here, his office conceded, 'the entire stretch is fully navigable by water craft.' "
With this in mind, why not make an old lady proud, and spare her a thought as you enjoy your age old right to navigate the River Kennet.