Understanding the Evidence
Last year we wrote to Ken Skates AM, Deputy Minister for Culture, Sport and Tourism in the Welsh Assembly Government.
We presented the
evidence for common law public rights
that have existed since ancient times to navigate rivers.
The reply reveals the Welsh Governments understanding, and its failure to understand some of the key issues.
(from Catrin Dellar, Senior Access and Outdoor Recreation Officer on behalf of Ken Skates) says the following.
We do not dispute that there has been ancient statute covering navigation issues dating back to the Magna Carta or even earlier.
No surprise here!; the evidence comes from Royal Charters, Commissions and Acts of Parliament and is both widespread and totally authoritative..
The question is whether these are still relevant …
It’s a fair question but the answer is completely clear. The Environment Agency v Josie Rowlands established that a public right of navigation can only be amended or extinguished by Parliament (or the Welsh Assembly in Wales), either through a specific Act or through the exercise of powers delegated by Parliament for the purpose. Neither the Welsh Government (nor anyone else) can point to any such Act or exercise of delegated powers and therefore the ancient rights of navigation must still exist.
… and whether they prove beyond doubt …
Proof beyond any reasonable doubt is the standard of proof applicable to criminal law but the existence of a Public Right of Navigation does not involve the criminal law. The standard of proof required to establish facts under the civil law is “on the balance of available evidence”.
… that navigation rights exist on all rivers...
Roman law (See
The Institutes of Justinian
page 19, 1-4) recognised navigation rights on all flowing water. Magna Carta confirmed it’s provisions to protect PRN applied “throughout the Realm” and
the 1472 Act for Wears and Fishgarthes
added the clarification
"Whereas, by the laudable Statute of Magna Carta, among other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the straitness [obstruction] of all Rivers, so that Ships and Boats might have in them their large and free Passage...."
In the absence of any evidence to the contrary this conclusively indicates that the ancient public right of navigation existed (and therefore exists) on all rivers capable of navigation.
The evidence you provide in your document seems to indicate that navigation has historically been determined on a case by case (river by river) basis.
The evidence referred to dealt with obstructions to navigation on a river by river basis. It did not consider whether a public right to navigate existed – it demonstrated that it did! No court has ever found against the existence of the ancient common law right of navigation on any river.
It is not for the Welsh Ministers or their officials to provide legal advice to the public on this or any other matter. It would be for the courts to decide the merits of any claim in relation to recreational navigation rights on Welsh rivers.”
A clear and unambiguous ruling on the existence of public rights of navigation IS the province of the courts rather than Welsh Government. But the rights to invoke the courts in making such a determination in Wales is reserved exclusively to the Counsel General for Wales who is appointed by the Crown and sits within the Welsh Government. The Counsel General may bring, defend or appear in legal proceedings, in the name of the Counsel General, if he considers it appropriate to do so to promote or protect the public interest. br>
So whilst the letter is correct that Ministers cannot provide legal advice to the public they can initiate a chain of action that can obtain a clear judicial ruling concerning the existence of common law navigation rights by seeking the advice of the Counsel General who can obtain a determination from the courts.
Welsh Government is currently considering the need for new legislation covering access to Welsh rivers for public recreation. Do they really intend to do so without a clear appreciation of the current law?