The Prime Minister is reported as saying that it does not matter who owns the nation's woodlands. In doing so, however, he does acknowledge that included in those issues which are important in a sale of woodland is the question of access.

In his recent article in your paper Mark Harper MP assured us "that everything people value about the Forest of Dean is protected", including public rights of way.

In giving this assurance Mr Harper relies on the Minister's commitment that "full measures will remain in place to preserve the public benefits of woods and forests under any new ownership arrangements" and that "public rights of way will be unaffected ...".

What value can be attached to these "guarantees"?

Before answering the question one needs to identify what people value about the Forest, what Mr Harper says will be protected. We value the Forest's uniqueness and its ancient traditions, and the way in which we, the local community and visitors, may use and enjoy the Forest.

The late Lord Bledisloe QC described its uniqueness in the following way: "The Forest of Dean is wholly different. It is an historic Crown forest in which an entire community has developed, using and enjoying the land in many ways which are not protected by legal rights. It is also an area in which nowadays visitors come from all over the country, and indeed from elsewhere, to picnic, to camp, and to do other things which do not exist as legal rights." These "privileges", as Lord Bledisloe described them, include "rights" of access and the running of sheep within the Forest.

In 1981, during the passage through Parliament of the Forestry Act, members of all political persuasions in both Houses recognised the uniqueness of the Forest.

As Lord McNair observed: "...we believe that the Forest of Dean is a special case. We believe that the people who live in the Forest of Dean are uniquely disadvantaged and therefore uniquely endangered by the (Forestry) Bill as it stands, because for various historical reasons they have no legal rights of common or of access. Instead they have customary privileges, which are fully recognised by the Forestry Commission, and it is difficult to see how these de facto privileges could possibly be safeguarded if any part of the Forest of Dean were to pass into private hands."

So the question Mr Harper and the Prime Minister need to answer is how, on a sale of the Forest, may the unique character of the Forest be safeguarded? How may our privileges be protected? How will the public benefits be preserved? How may "public rights of way" (such as may exist) be unaffected?

It is not clear whether Mr Harper has legal advice to support his assertion that everything we value will be protected, whether he can explain how this is to be achieved. Has he, for example, sought advice on the contention of the late Lord Mansfield, a Conservative Minister and a barrister, that "there are some major legal difficulties" to subjecting any sale of Forestry land to a condition that existing public access and amenity provisions be maintained. [Hansard HL Deb 11 May 1981 vol 420]

As Lord Mansfield explained: "If the purchaser were required to maintain, for instance, access and amenity provisions, that would be a duty for the benefit of the public at large and not to any one person. That really does not fit into our conveyancing system in this country, (my emphasis) ... It would be difficult to define in detail these rights for the purposes of conveyancing. If they were not set down at very considerable length, there could be endless disputes as to what they meant and their precise extent.

"The next difficulty would be the enforcement of the covenant by the public. Any action to do so would have to be taken by the relevant Minister because he would be the vendor; but by then he would have relinquished his interest and, since he would not have suffered any damage, it is difficult to see what form of redress would be available against the purchaser. The next point is that covenants of this type cannot be framed to bind successors in title to the original purchaser. In other words, whatever one might wish to achieve so far as what I might call the first generation is concerned, it certainly would not bind successors in title.

"Apart from problems with the legal difficulties, I do not believe it is right to require someone to allow the public on to his land as a matter of legal right without any form of control; although as I have said, if there are rights of way then this legislation will make no difference to them. It would be an extremely odd and very difficult statutory requirement, for instance, to make a purchaser legally responsible for maintaining such facilities as picnic sites or way-marked trails. The Forestry Commission can, of course, vary its facilities and the way in which it makes them available according to its by-laws; that is very useful for the Forestry Commission, but those provisions would not be available to the purchaser. One control which is exercised by the Forestry Commission is that to prohibit the lighting of fires which, particularly in the case of young woodland, can be very dangerous indeed; no such control would be made available to the purchaser."

In making these points Lord Mansfield was reflecting Lord Bledisloe's comment that: "It is those privileges which can be wholly lost if this land is sold to private persons."

The onus is upon Mr Harper to explain precisely how the difficulties identified by Lords Mansfield, McNair and Bledisloe may be overcome and how everything we value about the Forest is to be protected. He offers a sale to local people as a remedy, a patently absurd suggestion (as demonstrated by the Baroness Royall in the November 26 edition of your paper).

One may legitimately ask also whether our MP has made any assessment of the practicalities and cost of such a purchase and the future administration of the Forest.

What consideration has he given to the likelihood that the resources of the local community will be far outstripped by those of, say, a pension fund or other corporate giant? Is there not a desire and an obligation on the part of the Government to obtain "best value" and therefore to effect a sale with as few encumbrances as possible, i.e. released from the customary privileges currently recognised by the Forestry Commission? Perhaps he will answer these questions on the floor of the House when he introduces this discredited Bill.

Meanwhile, are we to trust Mr Harper and his 'will-o'-the-wisp' proposal and withdraw our opposition to the Bill? I think not.

– Alan Robertson.