Public Order law and space

A quick summary here of the development of public order law in relation to space and protest and the freedom of assembly.

Legislation:

Highway Act 1835, s72 – used to regulate public processions

Metropolitan Police Act 1839 s52 and s54

Town Police Clauses Act 1847 s21 – ‘the commissioners may from time to time make orders … for preventing obstruction of the streets within the limits of the special act in all times of public processions, rejoicings or illuminations, and in any case when the streets are thronged or liable to be obstructed’.

Trafalgar Square (Regulation of Meetings) Bill 1888 – though omitted in the royal speech 1889, response to the 1887 riots

Public Meetings in Open Spaces bill July 1888 – clause 1 stated that where the public had used any open space for public meetings for the last 20 years, they could be deemed to ‘have acquired an absolute and inalieable right’ to it

Public Meeting Act 1908 – in response to the suffragettes

Processions (Regulations) Bill 1932 – in response to the NUWM’s national hunger marches, especially the 4th march in October 1932

Public Order Act 1936 – police could prohibit processions in advance, proscribed the wearing of political uniforms, revised and nationalised existing local provisions relating to threatening and abusive behaviour (Channing, The Police, p. 16). passed after Cable Street and the BUF marches.

Public Order Act 1986 – common law offences of riot, rout, unlawful assembly and affray were abolished under s9 and replaced with statutory offences of riot, violent disorder and affray (Channing, The Police, p. 17). Passed in response to the industrial unrest of 1984-5

Criminal Justice and Public Order Act 1994 – increased police powers of stop and search. part V introduced the new definition of aggravated trespass. Passed in response to new age travellers, anti-roads protesters and also increased restrictions on gypsies and travellers.

key cases:

Beatty v Gillbanks (1881-2) LR 9 QBD 308 – considering the purpose and conduct of the assembly in judging whether it should be considered unlawful. Involved the Salvation Army vs the ‘Skeleton armies’ opposition to their processions.

Duncan v Jones (1936) 1 KB 218 – Lord Hewitt CJ: ‘English Law does not recognise any special right of public meeting for political or other purposes’. Stamp LJ: ‘liberty to speak, the liberty to assemble, which is more consistent with the notion of residual freedom than expressly defined and legally protected rights’.

Hubbard v Pitt (1976) QB 142 – Lord Denning cited Barnard v Perryman, ‘as long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic’.

Rural and urban spaces

The legal scholarship on the 1986 and 1994 Criminal Justice and Public Order acts has a strong focus on the rural, reflecting on the freedom of movement and assembly of one section of society that the legislation targeted, namely new age travellers gathering at Stonehenge and at raves in the countryside.

Iain Channing’s book, The Police and the Expansion of Public Order Law in Britain, seeks to cover all the legislation relating to public order and its policing. It examines for example the 1936 legislation passed against political processions in the wake of Cable Street. But the book is a little patchy and jumps around a lot, so the analysis is somewhat difficult to follow.

Suggested reading:

Nicholas Fyfe, ‘Law and order policy and the spaces of citizenship in contemporary Britain’, Political Geography, 14: 2 (1995), 177-89

Gina Clayton, ‘Reclaiming public ground: the right to peaceful assembly’, Modern Law Review, 63: 2 (2000), 252-8

Iain Channing, The Police and the Expansion of Public Order Law in Britain, 1829-2014 (Routledge, 2015)

Jon Lawrence, ‘Fascist violence and the politics of public order in inter-war Britain: the Olympia debate revisited ‘, Historical Research, 76: 192 (2003)

David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart Publishing, Oxford, 2010)

Richard Card and Richard War, ‘Access to the countryside: the impact of the Criminal Justice and Public Order Act’, Journal of Planning and Environmental Law (1996)

Penny English, ‘Disputing Stonehenge: law and access to a national symbol’, Entertainment Law, 1: 2 (2002), 1-22

David Sibley, ‘Endangering the Sacred: nomads, youth cultures and the English countryside’, in Paul Cloke and Jo Little, eds, Contested Countryside Cultures: Rurality and Socio-Cultural Marginalisation (Routledge, 1997)

P. A. J. Waddington, Liberty and Order: public order policing in a capital city (UCL Press, 1994)

Archives:

TNA, HO 144/18294, ‘Police: powers and duties of the police at meetings, processions and demonstrations’ 1932?

TNA, HO 144/20159, ‘Disturbances: Public Order Bill 1936’

TNA, HO 342/369, review of Public Order Act 1936, ‘right to demonstrate’, 1980-1

TNA, HO 325/305, Public order acts, from 1978-9

TNA, MEPO 3/2940, fascist disorder at public meetings, 1934-8

Parliamentary debates:

HC Deb 21 Sept 1886 vol 309 c1103

continuities of ‘social crime’ protest about land use

James Greenhalgh’s book, Reconstructing Modernity: space, power and governance in mid-twentieth century British cities (Manchester UP, 2017) is a thought-provoking account of the development of postwar planning, especially in Manchester and Hull.

His main point concerns the continuities between planning in the 20s/30s and the postwar periods.

Negative No: 1968-0867 - Negatives Book Entry: 18-04-1968_Estates_Wythenshawe-Airport Etc_Various Sites
Manchester Archives Plus, Negative No: 1968-0867 – Negatives Book Entry: 18-04-1968_Estates_Wythenshawe-Airport Etc_Various Sites, Town Hall Photographer’s Collection – GB127.M850

Yet what struck me the most from his research – and which I need to do more of in this project – is his focus on everyday spaces.

So rather than outlining, as many planning historians do, the well-known architectural experiments of Modernism in planning and construction, he examines the ordinary indoor and outdoor spaces that shaped residents’ lives in estates like Wythenshawe or on the temporary prefab developments. He trawls through planning disputes and estate archives for local controversies over the uses of cleared bomb sites, grass verges and other ambiguous spaces (though he uses the term ‘liminal’ to describe these, which I will not).

Tactics

What further jumped out at me – and here’s the benefit of looking at this topic from a long-duree perspective – are the parallels with early modern/18th century types of protest or resistance by residents against the pre-planned uses ascribed to spaces by landowners, developers and the council.

In May 1943, a few residents of the Roundwood Estate in Northenden took the campaign for ‘dig for victory’ into their own hands by digging small plots in a piece of land that divided their gardens from an ajoining industrial area. This move was unsanctioned by the council, and indeed the city surveyor condemned their actions,

that it is most undesirable that any tenant of adjoining property should be permitted to establish would become a precedent, for other people could justly claim a like privilege. this would endanger the growth of the whole belt of trees and defeat the scheme of development of the Estate.

Greenhalgh points out how the council wished to preserve not only its legal position over the land but also its ordering vision of the space as a tree-lined boundary between industrial and garden. (p. 173)

In the cold winter of 1947 Manchester city surveyor reported several occasions whereby damage had been done to trees on the council estates. It is likely that, during the fuel shortages still in place after the war, residents were taking wood for fuel. Greenhalgh derives from the evidence of Wythenshawe estate committee that such incidents were common, and

‘whilst most of these incidents were recorded as vandalism, damage was also caused by residents viewing the trees as a resource’,

a view that over-rode attitudes of the greenery beautifying the estate. Interestingly, the Corporation reported that ‘constant patrols have been organised to cover all the development areas and spinneys’, to prevent further degradations. (p. 174).

There were further debates over trespass over private gardens, and the degradation of grass verges by local residents taking short cuts that turned into what we now call desire paths, thereby again subverting the ways in which the planners intended residents to walk through and around the estates.

Desire path (19811581366)
a desire path
Briony McDonagh amongst other early modern historians have underlined the significance of subaltern forms of resistance and protest against dominant landowners’ delineation and enclosure of land. These include:

  • mass ploughing of fields,
  • trespassing along short cuts or stopped-up paths,
  • releasing of animals for pasture.

Briony McDonagh, ‘Making and Breaking Property: Negotiating Enclosure and Common Rights in Sixteenth-Century England’, History Workshop Journal, Volume 76, Issue 1, October 2013, Pages 32–56.

The continuities of tactics in these very different circumstances and places is intriguing – the claiming or reclaiming of land through ritual and habitual forms of work and play: digging up soil for planting, overturning (or intriguingly in the postwar case, creating) fences and hedges, trespassing by using old paths or creating new ones.

The repeated use or ritualised actions, deliberate or not deliberate, echoes the emphasis in histories of early modern and 18th century on the role of ritualised bodily actions in community justice and protest, for example in the moral economy food riots and in enclosure riots. Hence the gathering of firewood from the trees by the Wythenshawe residents has echoes of gleaning and fuel gathering (albeit not customary reclaiming rights they had felt had been taken away).

The main difference perhaps is the type of property: in the mid-20th century, the residents are enacting these forms of small resistance against the purposes ascribed to these essentially new spaces, marked out as new estates by the Corporation. As council tenants for the most part, they also occupied a different status than the tenants of the lord of the manor.

OS_PLAN_1-1250_SJ7989NE_1959 - OS Plan 1:1250-Part of GB127.M850 Manchester Town Hall Photographer's Collection
Manchester Archives Plus, OS_PLAN_1-1250_SJ7989NE_1959 – OS Plan 1:1250-Part of GB127.M850 Manchester Town Hall Photographer’s Collection

Social crime or protest?

There is an old debate in the historiography about the extent these sorts of actions constituted ‘social crime’ or popular resistance, or vandalism or juvenile delinquency.  Greenhalgh stresses the role of young people in such actions, and the differing views of authority on whether or not their actions were legitimate, criminal or vandalism.

Some indicative reading:

  • Roger Wells, ‘Popular Protest and Social Crime: The Evidence of Criminal Gangs in Southern England, 1790—1860’, Southern History, 13 (1991)
  • John Rule and Roger Wells, Crime, Protest and Popular Politics in Southern England, 1740-1850 (Hambledon Press, 1997)
  • Bob Bushaway, ‘From Custom to Crime: Wood Gathering in Eighteenth and Early Nineteenth-century England’, in J. G. Rule, ed., Outside the Law: Studies in Crime and Order, 1650-1850 (Exeter, 1982)
  • Timothy Shakesheff, Rural Conflict, Crime, and Protest: Herefordshire, 1800 to 1860 (Boydell Press, 2003)

More recent work for example by Iain Robertson, drawing from Karl Jacoby, has described such actions as Highland crofters protecting land usages and Forest of Dean Free Miners asserting their customary rights as enacting a ‘moral ecology’.

The residents of Wythenshawe and other estates in the postwar era perhaps were not consciously or deliberately enacting a moral economy by any means: it was often, just taking a short cut or growing some veg on the side, but there is still a sense of resistance against the definitions of space and how they were planned to be used by the developers and Corporation.