It has become increasingly common to hear and read statements that swimmers only have a ‘legal right’ to swim in 3% of the rivers of England and Wales. Misunderstandings have a way of becoming considered fact when repeated often enough. While we and others work towards clear rights to access water to swim or paddle, we believe there are much broader rights to swim in England and Wales – and encourage you to use them.
The OSS inland access team has spent much time researching to put together information on access and legal rights, and outlined the position as we understand it. The law is complicated and open to interpretation, which is why we and many groups are campaigning for a clear Right to Roam. “This complexity explains why people like to just say things like ‘3%’, though the reality is more complicated and can be harder to get across. But there can be implications when they do that,” says OSS Inland Access Officer Imogen Radford.
“Swimmers have rights to swim in rivers and should feel able to assert those rights. We are seeing a large increase in the number of people who want to swim in rivers – for fun, to get close to nature, for health, adventure, for whatever reason – and it’s important that misinformation doesn’t become another barrier to entry.”
OSS Legal Advisor Nathan Willmott explains: “In broad terms, if a waterway is deep, wide and calm enough for a water vessel (e.g. small unpowered boats) to pass safely, it is argued by many that there is a ‘public right of navigation’, and that this in turn confers a right to swim. This public right to swim in navigable waters has not been tested in court, but plenty of individuals rely on it as a basis for lawful swimming in rivers in England and Wales.” (There is another category of rivers – tidal rivers and those navigable by powered boats – where the law is much clearer, and and the non-tidal of these stretches of water appear to be where the 3% figure came from.)
But what about all the places boats can’t go – but swimmers do? River pools where villages have always swum, bridges people jump off, weirs communities regularly swim near? What about miles and miles of highland streams and all the smaller lowland rivers – can we swim in those?
“A right to swim can also be created as a result of long-term undisputed usage of a river,” says Willmott. “In many places this right has been asserted, and swimming accepted, tolerated or welcomed for generations.” This includes places like popular village swimming spots. “It is not true that nearly all rivers are out of bounds,” says Radford. “If we don’t swim we can lose those rights we have; so if you have a nearby swim spot, keep using it. Access campaigning experience shows that if we do swim we are more likely to win acceptance.”
“It is not true that nearly all rivers are out of bounds. If we don’t swim we can lose those rights we have; so if you have a nearby swim spot, keep using it. Access campaigning experience shows that if we do swim we are more likely to win acceptance.”
“Then there are all the stretches of water which you can enter from a footpath or other right of way, but which some assert are not covered by either navigable status or historic use,” adds Willmott. “It may not be expressly stated that there is a right to swim in the river, or the banks of the river may have signs trying to prevent individuals from swimming. ‘Trespassers will be prosecuted’ and ‘No Swimming! £1000 fine!’ signs are designed to discourage swimmers, but are often meaningless from a legal perspective.
“Even where there is no legal right to swim in a river, simply going swimming in a river where the bank and bed is owned by someone else will not amount to a criminal offence. Unless there is a specific statute or bylaw governing the area, or if you are accessing the river to cause damage or a nuisance or to actively disrupt someone else’s use of the river, then committing a ‘trespass’ will not amount to a breach of any criminal law. Rather, you would be committing a tort or ‘civil wrong’. This means that the owner of the river could ask you to leave (and give you an opportunity to do so, and then, if you refuse, could use reasonable force to remove you from the property) or could bring a legal claim against you for monetary losses that the owner has suffered as a result of your trespass – which would be a pointless exercise. The reality is that a swimmer faces little legal risk from taking a dip in a river.”
“Right to Roam are pushing for clear cut, uncontested rights in order to end a situation where ambiguity is exploited to exclude people – or at least intimidate them,” says OSS founder Kate Rew. “But as a swimming community we should assert the right to swim until proven otherwise (and even then!).”
Amy-Jane Beer from Right to Roam, who are planning more Wet Trespasses in 2023, adds: “It’s the contestability that’s the crux, because anywhere there’s not an explicit right to swim or paddle you might encounter a challenge and that’s enough to ruin your day and be a deterrent. We totally agree about empowering swimmers to swim… or in Right to Roam speak to ‘unsee the fence’.”
Groups working on access include The OSS Inland Access Group, Right to Roam, Clear Access Clear Waters (led by British Canoeing), Bluespace, Waters of Wales, and Caroline Lucas MP who has drawn up a private members bill to extend the right to roam. The Shadow Secretary of State for the Environment Jim McMahon announced on 27 January 2023 that in government the Labour Party would introduce a right to roam that extends to swimming in lakes and rivers.
‘Trespassers will be prosecuted’ and ‘No Swimming! £1000 fine!’ signs are designed to discourage swimmers, but are often meaningless from a legal perspective.
“There are so many more reasonable and responsible examples of how the public could access nature, from Norway to Scotland to Estonia, that benefit not just public mental and physical health, but that are demonstrably proven to benefit nature as well,” says Nick Hayes, author of the Book of Trespass.
In Scotland The Land Reform (Scotland) Act, 2003 gives a general right of recreational access to rivers (and land) in Scotland, as long as this right is exercised responsibly by following the Scottish Outdoor Access Code. Across Europe and other parts of the world rights of access to and along rivers are better than in England and Wales.
The Rivers Access for All campaign gives the following examples: