I am giving a public lecture at Humboldt University, Berlin, on Monday 1 July.
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
‘contested public space and protest in urban Britain from the 18th century to today’
A couple of weeks ago, news of private developers netting hedges and trees to prevent migratory birds nesting in them started to raise objections on social media.
More recently, local people near the affected areas have taken action such as setting up a petition, and in some places taken more direct action by pulling down the nets.
This act of protest resistance recalls types of actions undertaken in 18th and 19th century rural Britain (often but not always) within the context of disputes over enclosure of common rights and land.
The historiography of enclosure has a long pedigree, but more recent work in cultural geography has rethought the nature and types of protest, moving away from the major and well known riots that pulled up fences and hedges, and more towards acts of rural resistance undertaken over longer time scales and within more micro-contexts of tense community relations. These include Timothy Shakesheff’s work on rural tactics in Herefordshire, to Carl Griffin’s voluminous work on tree-maiming, Briony McDonagh’s uncovering of cases of ploughing, and most recently Leon Baker’s survey of commoners using animal trespass as a form of resistance to enclosures.
Much of this work was originally inspired by anthropologist J. C. Scott’s concepts of ‘weapons of the weak’ but the main influence now is Karl Jacoby, and his model of ‘moral ecology’. Drawing directly on E. P. Thompson’s ‘moral economy’ model, which explained how food rioters enacted particular customary rituals as forms of community justice to reassert a ‘fair price’ determined by the community, Jacoby’s ‘moral ecology’ suggested that communities enacted environmental resistance as forms of community justice against large landowners threatening their livelihoods. In other words, just as a local community defended their ‘fair price’ for food against outsiders attempting to hoard it and make a profit from artificial price hikes (the ‘moral economy’), local communities could also defend their environment against outsiders attempting to impose a different form of landscape upon it (the ‘moral ecology’). This idea of inhabitants being closely attuned to the economy and ecology of their environment also links closely to Tim Ingold’s interpretation of the landscape as a ‘taskscape’ for its residents, a land to be worked and subsisted in rather than to be viewed from a distance or reshaped wholesale by external powers.
Iain Robertson’s study of Highland crofters’ forms of action and interaction with their environment after the Clearances, and with Carl Griffin and Roy Jones, have applied Jacoby’s model to British examples. Local rural residents were acutely aware of the environment, and in farming and subsistence on it, sought to defend their landscapes against any outsider influences which might change the ecology, and therefore erode their livelihoods. There were glimpses of an early environmentalism within these actions, much earlier than the more generally recognised mass recognition of the importance of ecology from the 1970s onwards.
The current protests against bird netting, and the direct action against them, recall such earlier forms of resistance and ideas about nature and the environment. It is significant that much of the netting has been placed there by private developers building new housing next to, or on, agricultural land. I suppose the major difference is that the people taking off the nets do not directly rely on the surrounding fields for their domestic economies, but nevertheless it indicates a continuity with earlier centuries of rural resistance.
- Karl Jacoby, Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation (2001)
- Carl Griffin and Iain Robertson, ‘Moral Ecologies: Conservation in Conflict in Rural England’, History Workshop Journal, 82: 1 (2016), 24-49
- Carl Griffin, Roy Jones and Iain Robertson, Moral Ecologies: Histories of Conservation, Dispossession and Resistance (Palgrave, 2019)
- Carl Griffin, ‘‘Cut down by some cowardly miscreants’: Plant Maiming, or the Malicious Cutting of Flora, as an Act of Protest in Eighteenth- and Nineteenth-Century Rural England’, Rural History, 19: 1 (2008)
- Carl Griffin, ‘Protest practice and (tree) cultures of conflict: understanding the spaces of ‘tree maiming’ in eighteenth‐ and early nineteenth‐century England’, Transactions of the Institute of British Geographers, 33: 1 (2008)
- Leonard Baker, ‘Human and Animal Trespass as Protest: Space and Continuity in Rural Somerset and Dorset’, History Workshop Journal, ? (2019)
- Timothy Shakesheff, Rural conflict, crime and protest: Herefordshire, 1800-1860 (2003)
- Briony McDonagh, ‘Subverting the ground: private property and public protest in the sixteenth-century Yorkshire Wolds’, Agricultural History Review, 57: 2 (2009), 191-206
- Nicholas Blomley, ‘Making Private Property: Enclosure, Common Right and the Work of Hedges’, Rural History, 18: 1 (2007), 1-21
- James Winter, Secure from Rash Assault: Sustaining the Victorian Environment (University of California Press, Berkeley, 1999)
I’ve been reading some legal scholarship on the registration of commons and village greens. One of the main themes throughout is the continued difficulties faced in compiling any truly accurate register, given the complex ways in which land has been held and conflicting registrations and non-registrations of common land.
database of commons (2015): https://data.gov.uk/dataset/05c61ecc-efa9-4b7f-8fe6-9911afb44e1a/database-of-registered-common-land-in-england
- Christopher P. Rodgers, Eleanor A. Straughton, Angus J. L. Winchester and Margherita Pieraccini, Contested Common Land: Environmental Governance Past and Present (Routledge, Abingdon, 2011) is the most recent major overview of common land and the impact of enclosure.
- Barbara Bogusz, ‘Regulating public/private interests in town and village greens’, International Journal of Law in the Built Environment, 5: 1 (2013), 21-39 – is a fascinating argument about the problems raised in recent years about communities registering village greens to save them from development for housing. Often environmental concerns are posited as a major reason as well as use of the green spaces for leisure. It also raises the question of ‘proximity’ of the ‘neighbourhood’ from which users of the village green come. As transport enables people to travel to green spaces much further away from their residences than was usual in the 19th century, the old assumptions that local people use their local commons is weakened. This process thereby braodened the idea of the right of use and access.
- John Aitchison, ‘The town and village greens of England and Wales’, Landscape Research, 21: 1 (1996) – on the inaccuracies of the first registration of village greens by the 1955 Royal Commission on Common Land, and charting the different geographical concentrations of village greens in England in the 1990s. The largest number they charted were in Cumbria (191) and Hertfordshire (116).
- Donald McGillivray and Jane Holder, ‘Locality, environment and law: the case of town and village greens’, International Journal of Law in Context, 3: 1 (2007), 1-17.
- J. W. Aitchison, ‘The Commons and Wastes of England and Wales, 1958-1989’, Area (1990)
I’ve also been looking through old civil court cases around commons registration using the Westlaw UK database. More on my findings about common rights and access using these to follow…
I’m curious as to why there has been an upsurge in academic and trade books on the issue of land reform. Of course, Anna Minton was part of pushing the issue of the privatisation of public land back onto the agenda a few years ago, and I’m also including the work of Stuart Hodkinson theorising the ‘new urban enclosures’. There have recently been a glut of new provocative books. These include the following:
Brett Christophers, The New Enclosure: the appropriation of public land in neoliberal Britain (Verso, 2018) – I might do a quick review in another blog post: basically, his general argument is good, though I’m less keen on his writing style and his generalisations about the history of feudalism and enclosure, for which he mainly draws on Polanyi, and on the 1870s register of land owners, for which he draws mainly on Cahill.
Michael Tichelar, The Failure of Land Reform in Twentieth Century England: the triumph of private property (Routledge, 2018) – bringing together a life time’s work on the topic, though mainly focused on the role of the Labour Party in pushing for various land reform policies regarding the ‘unearned increment’ in land acquisition policies.
Guy Shrubsole, Who Owns England? (out in May) which I’m looking forward to: a summary no doubt of the excellent research being done for his project and blog of the same name.
Of course these studies have been years in the making, and reflected perhaps the debates around Publicly-Owned Private spaces that Minton drew attention to.
But it’s interesting that they’re being published at a time when there seems to be much publicity around councils now re-investing in buying land and real estate, using new loans, such as for shopping centres and hotels (Croydon – https://insidecroydon.com/2018/11/01/council-pays-53m-to-buy-unloved-colonnades-centre/) (Rochdale – https://www.manchestereveningnews.co.uk/business/business-news/rochdale-council-buys-retail-park-15565577)
These acquisitions seem to be reversing the process identified by Christophers and Hodkinson of ‘new urban enclosures’, whereby land previously owned by public bodies such as councils has been sold off for redevelopment at a rapid rate. Yet these are not ‘unenclosing’ these spaces; the councils’ investments perhaps are just another part of the longer process of ‘financial landownership’ that Doreen Massey and A. Catalano, and David Harvey identified has been occurring since at least the 1970s, whereby companies invest in the value of land as a capital asset (Christophers, p. 112).
Anna Minton, Ground Control: fear and happiness in the twenty-first century city (Penguin, 2009)
Stuart Hodkinson, ‘ The new urban enclosures’, City, 16: 5 (2012), pp. 500-518
David Harvey, The Limits to Capital (1982; rev. ed. Verso, 2007)
Doreen Massey and A. Catalano, Capital and Land: private ownership by capital in Great Britain (Edward Arnold, 1978)
Hannah Priest of North Manchester Radio interviewed me last week for her programme A Helping of History. Listen to hear about the radical history of Cropper/Osborne Street Collyhurst. Hear it now on Mixcloud:
I’m starting to compile as many definitions of public space as I can from here.
First, the definition from the London Assembly’s 2011’s report, ‘Public life in private hands Managing London’s public space’, which started to acknowledge the massive shift to privately-owned public spaces in the capital.
‘all spaces including streets, squares and parks that everyone can use and access in principle, regardless of who owns or manages the space’.
The 2011 report also quoted the 2004 government report, Living Places: Caring for Quality, https://www.futurecommunities.net/files/images/ving_Places_Caring_for_Quality_Report__ODPM_.pdf, which defines ‘public realm’ as
‘all those parts of the built environment where the public has free access. It encompasses: all streets, squares and other rights of way, whether predominantly in residential, commercial or community/civic uses; the open spaces and parks; and the ‘public/private’ spaces where public access is unrestricted (at least during daylight hours). It includes the interfaces with key internal and private spaces to which the public normally has free access’.
The 2011 report notes ‘this is different from the legal definition in the Town and Country Planning Act of 1990’ (https://www.legislation.gov.uk/ukpga/1990/8/section/336)
“open space” means any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground’
and the more traditional planning definition of Public Open Space.
It also notes the additional category of ‘public green space’, including urban parks and gardens, country parks and canal and riverbanks.
See also the 2014 government guidance about the definitions of Open Green Space in replation to planning and sport: https://www.gov.uk/guidance/open-space-sports-and-recreation-facilities-public-rights-of-way-and-local-green-space
Quick post –
As you may know, this project is very much inspired by the great project Who Owns England? led by Guy Shrubsole and a team of researchers, sending in FOI applications and scraping maps to campaign for more transparency in land registration.
The data lead Anna Powell-Smith has charted in their latest blog post study the amount of land is still unregistered in England – 15%. https://whoownsengland.org/2019/01/11/the-holes-in-the-map-englands-unregistered-land/
Twitter comments have noted how some of the 15% area is railway lines – Network Rail apparently haven’t registered their land, or land that has remained in the same hands and unmortgaged since 1990.
Remarkably, we don’t know who owns 15% of the country.
I think this should be better understood, so I’ve made the first ever map of unregistered land in England & Wales. Check out your area…https://t.co/jxrQGfz19g pic.twitter.com/6qhfV9MscG— Anna Powell-Smith (@darkgreener) January 11, 2019
I’m very much looking forward to Guy Shrubsole’s book, Who Owns England? out in the spring: https://www.harpercollins.co.uk/9780008321673/who-owns-england/
The Webb Estate near Purley, Surrey, is an odd place, a exclusive-feeling village of ‘desirable’ houses, but with indications of something else behind the gates.
The official website of the company that run the estate: http://www.webbestate.co.uk/history-1
Here are some pictures of a wander around I went on in July 2017:
The monument to French soldiers who fell during the Great War is bizarre to modern eyes because of its location, hidden away at the end of the long Promenade de Verdun. It almost feels as if it’s a family monument, and a visit there if you’re not a resident is slightly unnerving, as if you’re trespassing.
The useful local history sign erected by the village green explains the history of this garden village.
“William Webb (1862-1930) a visionary local estate agent spent his lifetime developing his Garden Estate idea. he purchased land in 1888 and began to develop it in line with his own principles of housing development. The land was cleared of fences and fifty plots were laid out divided by privet hedges. When building began in 1898, houses were set on predefined plots separated by mature boundary hedges and established planting. Webb expressed these design principles in his book, Garden First in Land Development.
The Webb Estate covers about 260 acres and was designed with the character of country lanes and English garden villages. …”
“In 1903 a model village, Upper Woodcote Village was laid out in the south-western corner of the Webb Estate. The cottages surrounding the green were originally intended to be occupied by the men working on the Estate but proved too expensive and so were leased to private individuals.
…In 1921 William Webb transferred the land of the Green in perpetuity to Coulsdon and Purley Urban District Council. He stipulated that it was to be used as a Village Green or Rural park for the enjoyment of the inhabitants of Purley and neighbourhood and as a memorial to those that had falled in the Great War. Webb also arranged for the provision of the Cornish Granite War Memorial that stands outside the Lord Roberts.”
The Garden Village was such a pervasive idea in the first couple of decades of the 20th century. The history of Ebeneezer Howard and the garden cities has been well told, (see also this Historic England booklet (PDF)), but these types of smaller developments are different even though their creators were inspired by similar principles. Whereas Howard saw cities holistically, and sought to embed the garden principle in whole town design, to create “a new hope, a new life, a new civilisation”, this type of garden village ended up being more of idyllic residential escape from London life for the upper middle classes.
Webb noted in 1916:
A few City men live at the West End but by far the greater number seek to spend their leisure time and bring up their families at the nearest spot to their work where they can find a comparatively country home.
The emphasis of the settlement, as enforced in restrictive covenants mainly to do with keeping the gardens well kept and from new buildings being erected, made this estate exclusive. In Garden First in Land Development, Webb expressed his intention that:
the occupiers of houses (should) not only have the enjoyment of their own premises in desirable seclusion, but that, both from their own upper windows and when passing along the roads, it may appear as though they are one large garden of which their own holding is a part.
Whereas Howard’s garden cities were designed to be inclusive (and also self-sufficient for facilities and light industry), this was purely a private estate, with the large iron gates across the roads in and out (still there) to enforce that feeling of privacy and exclusiveness.
Webb lived at Upper Woodcote House, completed in 1903, and the whole estate was completed by 1925. He was renowned for his philanthropy, and also held the summer show of the local horticultural society in the grounds of the house.
Transcribing the 1911 census, I get a different feeling than when I transcribe the working-class districts that are my other locales. This was solidly stockbroker commuterville, pleasant escape from the commute to the City. Most of these large houses were occupied by one nuclear family – a head of household and his wife, mostly from London or another part of Surrey, either retired early and with no children, or in their 30s with small children. Most of the houses have servants – a housekeeper, cook, governness for the small children – who usually have migrated from other parts of the UK.
As a historian, I shouldn’t say this, but I feel it hard to find an immediate connection with the residents – do I care about Horace Whitaker, aged 32, ‘of private means’, living with his wife, three children and 2 servants, in ‘Waveney’ on Rose Walk? Or William Jones O’Hara, a 43-year old stockbroker born in Ontario, Canada, living with his wife, 2 children and 3 servants, in ‘Keewaydin’ [sp?] a few doors down? I must confess I’m more interested in the servants – was this their first employment? Did they miss home? Did they tease each other for having different regional accents and dialect? Did they ever meet the other servants in the other houses? One suspects not, as the estate is designed around privacy: the hedges and long boulevards create the desired privacy, but mean that it would be much harder, for the servants at least, to meet their neighbours unlike in the hustle and bustle of, say, a row of London townhouses.
I don’t know enough about domestic service in the early 20thC, but here are the first places to start:
The other aspect that I’m going to develop is trespass and vagrancy.
This newspaper article from 1939 about a man charged with trespass and vagrancy (and indeed the column adjoining about Caterham footpaths and parks) reflect much on the sense of privacy in these estates, and the suspicion of strangers and vagrants:
Upper Woodcote Village
Finally, the issue of village greens and private space divided by class is another line of enquiry. The workers’ houses that were too expensive for workers to live in are also a historical parallel for many issues today.
The Lord Roberts was a former temperance inn. Here is the 1911 census entry of its occupants: