Sometimes the shorter articles provoke the most interesting of thoughts for this project. I’m increasingly finding really rich material in legal scholarship.
Gavin Parker’s article, ‘Rights, the Environment and Part V of the Criminal Justice and Public Order Act 1994’, Area, 31: 1 (1999), is not only a succinct examination into the trespass clauses of the 1994 legislation, but also posits much broader legal geography frameworks for understanding public space. As he outlines (p. 75), ‘regulation and classification of space is arguably one of the central roles of the modern state’.
Part V of the act, was subtitled ‘public order: collective trespass or nuisance on land’. Its redefinition of trespass spatially and in relation to particular groups of people aroused the most popular opposition and resistance. Thinly disguised, it was an attempt to deal with various groups that the state regarded as deviant or dangerous at the time, notably new age travellers, the outdoor rave movement, and environmental and animal rights protesters.
Yet the bill was also challenged in the courts by other groups – notably The Ramblers Association – who feared the definition of ‘aggravated trespass’ could be applied in a hostile environment to their actions, for example defending rights of way against being stopped up by a landowner (LMA, 4287/02, 03).
Section V outlined a new definition of ‘aggravated trespass’ under section 68 of the Act. Section 61 increased police powers to remove trespassers on land, replacing previous powers in the 1986 Public Order Act. Sections 63 and 65 applied specifically to raves, codifying directions to leave land. Section 69 provided the police with the power to stop people whom they suspected were on their way to trespass. Section 77 empowered local authorities to remove unauthorised campers from land.
The history of public order acts is something I’ll be working on more, but in short, they emerged as a new legislative tool in the 20th century after previous legislation against ‘seditious meetings’ and political meetings in public spaces was found difficult to prosecute.
The Public Order Act was passed in 1936 in response to the problems of policing fascist rallies in East End London, notably Cable Street.
The passage of the Race Relations Act 1965 led to debate in the Home Office about how it would be enacted in relation to the 1936 Public Order Act.
In 1966-7, police chief constables corresponded with the Home Office about wishing to widen definition of ‘public place’ in the Public Order Act to include indoor venues such as restaurants and in particular football grounds – in response to football hooliganism as well as race riots and the renewed growth of fascist organisations ( TNA, HO 325/1). In London, the Home Office was in particular concerned about fascist groups’ requests to use Trafalgar Square for protests. They were aware of the potential for violence and racial aggravation, renewing debates that had occurred over the use of the square at the time of the riots of 1888.
But there was also a consciousness about the defence of free speech – how extreme did organisations have to be before they could be prohibited, and whether they could they apply the same ban to groups on the other side of the political divide such as communists, while still maintaining a right to freedom of speech. The Troubles in Northern Ireland and the activities of various Irish sectarian groups in Britain further heightened debate about the uses of the public order acts against demonstrations.
The Public Order Act 1986 was enacted in response to protesters at Stonehenge and to strengthen policing following the Miners’ Strike of 1984-5.
The law is never neutral or objective. Antonia Layard and Nicholas Blomley and other legal scholars have underlined the difference between the letter of the law and its enactment. As with space, it is relative and performative. Parker notes (p. 77) of the 1994 Act, ‘Section 69 and 65 powers do not always lead to arrest or conviction; the police instead act under the provisions at their own discretion, and such usage is not recorded unless an arrest is actually made’.
As with the Seditious Libel and Seditious Meetings acts in the 1790s and 1810s, it was the intermittent threat of prosecution and the informal and performative threat of its use by authorities on the ground that makes the legislation repressive and exclusionary against a particular group in a particular space, rather than the number of successful arrests and prosecutions.
One could apply a Gramscian hegemony framework in the relative nature of rights. Parker (p. 77), ‘rights and responsibilities become instruments which are manipulated in different ways in relation to their cultural and temporal setting and the context of the dispositions of power, with the result that rights can effectively be subverted by the exercise of cultural or symbolic power’. Boundaries and exclusion are inherent in the debates and contest over who was the public in public space. Often one claim of right excludes another.
Gavin Parker, ‘Rights, the Environment and Part V of the Criminal Justice and Public Order Act 1994’, Area, 31: 1 (1999)
Richard Card and Richard Ward , ‘Access to the countryside – the impact of the Criminal Justice and Public Order Act 1994’, Journal of Planning & Environment Law,
Nicholas R Fyfe, ‘ Law and order policy and the spaces of citizenship in contemporary Britain’, Political Geography, vol. 14, No. 2, (1995), 77-189