a historiography episode of my podcast, this time about recent and older writing about the Victorian city, policing and ‘nuisances’
George Monbiot has written about the lockdown and the longer history of controls over public spaces in The Guardian, with a quote from me.
I was grateful to have a long conversation with him, much of which just couldn’t be fitted into his short piece. We discussed in particular the long history of private streets, particularly those developed in the mid Victorian period by speculators and investors, with lodges and gatehouses to keep people out. There is a brief article on this topic by Sarah Blandy, ‘Gated communities in England: historical perspectives and current developments’, GeoJournal, Vol. 66, No. 1/2, Gated Communities: An Emerging Global Urban
Landscape (2006), pp. 15-26.
We also discussed the debates over public meeting places on street corners (Monbiot briefly mentions the Salvation Army in this respect – although it was more the case that the ‘Skeleton Army’ of publicans instigated the violence against them rather than the other way around), including the Socialist Democratic Federation’s battles over Dod Street Corner in Limehouse, East End of London, in the 1880s. See also Constance Bantman, ‘Anarchists, authorities and the battle for public space, 1880-1914’, in Sarah Pickard, ed., Anti-Social Behaviour in Britain: Victorian and Contemporary Perspectives (Palgrave, 2016) for similar issues regarding the anarchists.
We also discussed more recent and contemporary lockdowns on public space, notably the Cutteslowe Walls and other divisions between council and private housing, and playgrounds in new developments that children in social housing were prohibited from using.
I’m experimenting with podcasting my developing ideas for the book. Here’s episode 3: legislation, which covers a parliamentary debate in 1872, and the legal concept of jus spatiandi.
episode 1 on the concept of property and the law:
episode 1b on who are the public in public space?
episode 2 on the coming of war and its potential impact on access to public space:
episode 4 on ‘air and exercise’ definitions in the legislation:
Antonia Layard on parks:
David Mead on the implications of the emergency legislation for public protest:
Also a useful legal exegesis thread of the latest updated guidance on going for a walk:
Various police tweets that seem more Scarfolk than Scarfolk ever did:
Yet again, research and writing for a chapter in my book that originally was historical and as I thought, non-controversial, has now become urgently relevant in the wake of the current crisis.
I’ve written (not finished!) a chapter on Victorian public parks, and contests over their use, particularly by political groups for meetings. I’ve got a hard drive full of photos of council parks committee minutes from various boroughs in England across the late 19th century and early 20th century.
At the time of researching, so far so historical. The relevant research was being done by Dan Hancox on the commercialisation of parks and their temporary closing off for big concerts and other ticketed events, where councils make a little money to the expense of local residents not able to enter their parks for a few weekends a year. Enclosure by privatisation is easy to recognise. (https://www.theguardian.com/cities/2019/jul/05/revealed-how-london-parks-are-partly-privatised-festivals-wireless-finsbury-park)
But now we have the threat that all public open spaces will be closed, just as the weather warms up, with the lock-down. Morally it’s a trickier issue. Of course, this may be the measure we need to prevent the spread of the virus and to enforce social distancing. Stay at home if you have a garden folks. But it has raised huge debate about the lack of access to public space among urban residents living in small flats with (as is increasingly common) not even a Juliet balcony to get any fresh air at all. The balancing of public health between preventing the spread and maintaining people’s physical and mental health by allowing them to exercise outside is very difficult to work out.
The issue has centred around Lambeth Council’s decision to close Brockwell Park.
It often seems to be the south London parks and Lambeth council that are the lightning conductors for these issues. Perhaps because of the highly urbanised nature of south London, and its gentrification southwards.
Will Jennings and others on Twitter raise the issue of what is a park and what is a common in these areas:
The south London commons are in somewhat an unusual position in that they are technically still urban commons, but because their ownership and management passed to the Metropolitan Board of Works in the later 19th Century (and then subsequently to the LCC and then to their respective borough councils), they are regulated more as public parks.
Lambeth Council byelaws: https://www.lambeth.gov.uk/sites/default/files/lsp-parks-open-spaces-byelaws.pdf
Survey of London history: https://www.ucl.ac.uk/bartlett/architecture/sites/bartlett/files/49.5._parks_and_open_spaces_chapter.pdf
Parks, recreation grounds and other council-controlled public spaces have always been heavily regulated with regulations and bye-laws. That was part of the point of parks – they were former commons and open spaces that have been enclosed and regulated both legally by regulations and physically by railings and gates that are usually closed at night, and by park wardens monitoring public behaviour. Urban commons (which differ from rural commons) were often the product of the commons preservation societies’ campaigns from the 1860s onwards. Many were regulated by as many byelaws as parks. Access to open space in urban areas in the late 19th century was always about social control, of improving the morals and ‘civilising’ the behaviour of the population, particularly the working classes and poor who lived in overcrowded urban streets who needed the ‘lungs’ of the park as a respite from their polluted working lives.
update from a discussion on Twitter on whether London councils have the right to close commons:
Jonathan Healey jokingly raised the issue of restrictions on behaviour in public spaces made by clergy and local authorities in the early modern period:
This moral regulation continued well up to the 20th century. With the new public parks in the later 19th century, Sabbatarians and other religious were keen to prevent the population using them on Sundays, when they should be in church. Organised games (football, cricket) and music (e.g. brass bands on the bandstand) were banned in many public parks until well into the first decades of the 20th century. Debates raged in council parks committees and in the local newspapers about whether leisure activities should be allowed on Sundays, and only gradually were concessions made, for example allowing band concerts after 2pm, but then only playing classical music with no dance tunes allowed.
field and court games should be allowed on Sundays from 1pm in winter and 2pm in summer at such parks and open spaces as might be prescribed.LCC guide to public parks, 1924
There were no restrictions on access to public parks during the cholera pandemics, not least because it was still believed that disease spread in the air, so access to fresh air was seen as essential. The Boards of Health were more concerned with patrolling and inspecting other sites where particularly the poor and vagrants congregated or were confined – they set up inspections of lodging houses and backstreet pubs for example.
The restriction on use of public parks and commons for political meetings is another story I’ve related elsewhere and which will be the main focus of my chapter on ‘Railings’, and its most obvious expression was during the Hyde Park riots of 1866 when the crowd tore up the railings in protest at their exclusion.
A later debate about access to parks and commons was during both world wars. Some (though not as many as perceived) of the Victorian railings had been removed for the metal salvage effort during WWII, and much debate in the council parks’ committee minutes concerned whether there should be extra wardens employed to police the parks now that access was easier. Even for parks that retained their railings, some had to be left open at night because air raid shelters were constructed within them. This led to a large rise in juvenile delinquency and petty vandalism to for example the toilets or cricket pavilions recorded by the parks committees, and there was pressure on them to restrict or police them using the air raid wardens to prevent further criminal damage.
The town planning schemes and idealistic or indeed simply pragmatic reconstruction plans after both wars sought to maximise access to open green space for all residents (see my previous blog), although in already congested urban centres this was often done aiming at an average acreage per 1000 population rather than trying to make sure every residence was within easy reach of an open space. The space syntax of this accessibility is something I need to do more research on. With the selling off of playing fields, the renewed densification of urban centres as family houses have been split up into several flats, with front gardens turned into driveways and back gardens also sold off or only accessible to the ground floor flat, and especially with all the office block conversions allowed by the easing of planning regulations for permitted use, and new build flats only having those useless julienne balconies, the main issue debated today is that yet again, many people, including young professionals as well as people in lower income bands, have no access to any open space apart from their local parks.
Hazel Conway, People’s Parks: The Design and Development of Victorian Parks in Britain (Cambridge University Press, 1991)
I went on my government mandated local exercise once a day to my local open space, which is some council owned playing fields. The ubiquity of this sort of open space – slightly scrubby grass fields, no fences or barriers apart from a raised mound around the perimeter to stop vehicles, no planting apart from a line of trees along the edge of the path.
In debate about the current imposition of restrictions on parks and city commons – here I’m thinking of the hundreds of flat-dwelling residents no longer able to descend on Victoria Park in Hackney or another city park – the focus has been on definable green spaces that can be closed off, notably parks with railings. But for many of the population, their nearest open green space is not a landscaped park or a National Park, but a playing field or a recreation ground – less definable, less manicured, less uniform, and more open.
As we know, the Victorians became obsessed with public parks as a form of improvement and to some extent social control as well as preservation of open space against intense urban density. Railings is a major theme of my new book’s chapters covering this period, symbolised by the crowd pulling up the railings of Hyde Park during the popular agitation of the 2nd Reform Bill in 1866.
In the early 20th century, by contrast, the main theme is of open space without railings. Though the parks movement was still lobbying councils for more formal parks, new types of recreation spaces developed. We see a shift from the Victorian railed park with gates closed at night, to open playing fields and recreation grounds, to inner city children’s playgrounds. Once large estate building and slum clearance went underway, there was a proliferation of even less defined open grassy spaces such as the small areas in between tower blocks and houses.
The push for more open space in the driven first by pressure and lobbying by the National Playing Fields Association, founded 1925, who became a powerful body in influencing planning decisions.
The move to ‘un-urbanising’ inner cities was further enabled by bombed out sites providing more opportunity (though inner city blitzed areas more often rebuilt upon or converted to car parks, outdoor and multi-storey) and by the optimism and vision of postwar reconstruction plans.
The NPFA proposed standard of 6 acres per 1000 people became a mantra and main target for councils developing town and city plans, and postwar reconstruction. It was technocratic as well as about caring about access to open space.
In some areas and among some associations and planners, the open space standard became a matter of civic pride to increase the proportion of acres per population.
New towns such as Stevenage could boast of planning for well over the acreage standard. Inner cities and industrial boroughs had more trouble, and had to either patch together small spaces which were never enough or extend commons on their outskirts. It would be useful to do a space syntax analysis of the inequalities of access to open space in and between inner cities, suburbia, London vs other cities, rural villages surrounded by privately owned land e.g farms and forest.
The selling off of playing fields from the 1980s onwards, coupled with the decline of large company’s social facilities for their workers which often included playing fields, and further urbanisation and suburbanisation, meant a decline in the ideal of the space standard.
Mike Huggins and Jack Williams, Sport and the English, 1918-1939: Between the Wars (Routledge 2006)
John Allan Patmore , Land and Leisure in England & Wales (Farleigh Dickinson University Press, 1970)
The closing down of public space means something completely different now that we are in the middle of a global pandemic. Little did I anticipate even 6 weeks ago, never mind when I started the research and writing of this project on the history of public space, that I would experience the strictest restrictions on access to public space in my lifetime, and indeed in the lifetimes of most people since the end of the war.
These analyses by legal scholars Raphael Hogarth and Julian Norman of the quickly pushed through legislation illustrate a major theme of the history of public space and the law: the ambiguity inherent in defining public space. They also point to the further ambiguity of who forms the public in public space (and private space vice-versa), and subsequently the variegated application of the regulations on the ground by the police, who exercise discretion and interpretation. As Iain Channing’s work on the Public Order acts against gatherings and trespass has shown, usually it is police powers of discretion that shape how the legislation is enacted and experienced by those it affects.
The question of ‘reasonableness’ in how the public health regulations are implemented also raises the ‘Wednesbury reasonableness’ principle in law and how it is applied by public bodies using discretion:
The restrictions on freedom of movement for the sake of public health are of course entirely necessary, but the unprecedented severity highlights the complacency we have perhaps shared over the last few decades over how we assume what is public space, and our rights of access. The confusion raised by the pre-lockdown encouragement to go to National Trust sites and other open landscapes, only to be clamped down on when this did not prevent social distancing and large gatherings, with a rush to enjoy the spring weather in anticipation of the lockdown, is also something I’d like to explore more in retrospect.
There’s also an issue about whether the emergency legislation is also being stretched by landowners and farmers to block legitimate rights of way:
I’m not going to do more comparisons yet, as we’re still in the middle of an evolving situation, but needless to say the current lockdown is bringing into sharp relief the spaces we regard as public and the nature of public gatherings in everyday life as well as at festive occasions. It highlights the types of behaviour and practices we enact in them. It also vividly brings to bear and arguably exacerbates the deep class, gender and ethnic inequalities in access to both public and private space, and their policing, that will need further investigation.
Current government proposals to make trespass a criminal offence have been criticised by groups representing Gypsies & Travellers, and the Ramblers. Trespass has always been a civil offence, but the change to criminal office would increase police powers and potential sentences for those convicted. Guy Shrubsole, as always, is at the helm of bringing the issues to attention.
BBC news report, 21 February 2020
This is not the first time that the government have tried to do this, nor received criticism from both Gypsy/Traveller groups and the Ramblers’ Association.
Criminal Justice bill 1994 and ‘aggravated trespass’
The Criminal Justice and Public Order bill of 1994 raised huge opposition. The most famous resistance was by ravers and New Age Travellers against the clauses aimed at outdoor raves, restricting events playing ‘repetitive beats’.
But another major intervention was the clause that developed a new offence of ‘aggravated trespass’. Section 68 (1):
A person commits the offence of aggravated trespass if he trespasses on land in the open air, and in relatio to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect
a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
b) of obstructing that activity or
c) of disrupting that activity.Section 68 (1) Criminal Justice and Public Order Act 1994
The Ramblers’ Association challenged the clause. Their correspondence about the bill is now in London Metropolitan Archives.
The Ramblers did consider what the landowning associations thought would be the application of the Act, and were consoled by the fact that in the December 1994 issue of the Country Landowner Association magazine, their legal advisor warned that ‘it would be imprudent in the extreme for Members to misuse the provisions to cover ordinary forms of trespass … it should not be used to curtail peaceful forms of protest’. They noted the expense and publicity if such a case were prosecuted would be adverse, ‘and would give credence to the argument that the offence is a ruse to make trespass generally a criminal offence’. The warning against using the legislation against trespassers was supported by an agent for several Peak District landowners. (magazine, July 1995, in LMA, 4287/03/057, Ramblers’ Association file on the Criminal Justice Act 1995).
The first court case raised by the Act and the section on aggravated trespass was against Richard Lloyd and Margaret Jones, who took part in a peaceful protest on the road near Stonehenge to mark the 10th anniversary of the Battle of the Beanfield, which in itself was a landmark event in the history of protest about the freedom of public assembly. Penny English published an excellent analysis of the long-duree history of battles of access to Stonehenge from 1894 onwards, from which this summary is taken (English, 2002).
In 1985, the Free Festival that had taken place at Stonehenge for many years, was banned by English Heritage and the National Trust. People travelling to Stonehenge for the festival were arrested on charges of unlawful assembly, obstruction of the highway and obstruction of police. The incident and the New Age Travellers who were the targets, were a key target of the 1985 Public Order Act, together with gypsies and also striking miners.
Ten years later, in 1995, Salisbury district council prohibited the holding of trespassory assemblies within 4 miles of Stonehenge. Jones and Lloyd were convicted under section 14 of the 1986 Public Order Act, and although their appeal to the Crown Court was successful, the Divisional Court reinstated their convictions. The court held that ‘peaceful assembly does exceed the limits of the public’s right of access to the highway’. A further appeal to the House of Lords was successful. (English, 2002, 14).
The Ramblers’ papers on the 1995 Act contain a report of the case from one of the defendants’ character references. It concluded ‘three points of concern to ramblers that the prosecution made:
- that an assembly need not necessarily include twenty people
- that they do not have to have common purpose
- that the right of the public on a highway is limited to passing and repassing’.
‘static/mobile’ or ‘sedentarist’ binary in law
In an advice sheet to members, the RA and British Mountaineering Council noted that under the new legislation in Scotland, ‘trespassing on a moor with the intention of disrupting (even peacefully) a legally organised shoot and other similar activities is now a criminal offence, punishable with a fine of up to £2500 or a 3 month prison sentence’.
Although they didn’t mention the legal precedent, this harks back to a law case from 1892 ( Harrison v Duke of Rutland,  1 Q.B. 142 (1892). A man was prosecuted for obstruction of the highway when he attempted to disrupt a grouse shoot on the moors outside Hathersage in the Peak District. The owner of the land and head of the grouse shoot, the Duke of Rutland, got his servants to restrain and hold down the man on the road. The man appealed for unlawful imprisonment, but his appeal was rejected because he was ‘admittedly on the highway, not for the purpose of using it as a highway but for the purpose of preventing the Duke and his friends from exercising their undoubted right of shooting [therefore] he was a trespasser on the road’. (Manchester Guardian, 5 December 1892; LMA, 4287/02/010, Harrison v Rutland, 1892; Sheffield Independent, 5 December 1892).
This was a significant judgement as free passage along a public highway is a common right, whether or not it goes across private land, but the case proved that people could only use the public highway for getting from A to B, and not for other purposes.
This is an example of what I am terming the ‘static/mobile’ binary, in which landowners and static uses of property have precedence over mobile or nomadic uses. As I’ve blogged before, I’m influenced by Antonia Layard’s model of the ‘trespass/licence binary’ in English law, that explains why anyone who doesn’t have licence to use a piece of land is automatically a trespasser. My ‘static/mobile’ binary framework also echoes Zoe James and Rebekah Southern’s idea of what they call a ‘sedentarist binary’ that discriminates against Travellers, Gypsies and Roma in legal and social policy, and is relevant for the current government’s proposals on trespass.
But the RA and BMC did conclude that, as long as climbers and hillwalkers behaved responsibly, they could not be liable to be prosecuted for aggravated trespass. There was clearly a class and ethnic consideration to the sorts of people who were more likely to have the legislation used against them.
Richard Card and Richard Ward’s study of the Act in the Journal of Planning and Environmental Law in 1996 argued that ‘ramblers who simply trespass, or the family who picnic beyond the confines of the footpath (and who thus become trespassers) do not intend to have any of the effects set out in section 68 (a, b and c above, about intimidating or obstructing the lawful activity on adjoining land) … irrespective of whether their conduct has such an effect or not.’ Nor does the section criminalise mass trespass, unless something is done in relation to any lawful activity, actual or imminent, on the land or adjoining land’. (Card and Ward, 1996, 6).
i.e. there has to be an intent of disruption or obstruction of landowners, deliberately, for it to be aggravated trespass.
I’m researching more on legislation and especially county council policy towards gypsies and travellers, and how it has changed over time. More anon.
- Richard Card & Richard Ward, ‘Access to the Countryside: the impact of the Criminal Justice and Public Order Act 1994’, Journal of Planning & Environmental Law (1996)
- Zoe James and Rebekah Southern, ‘Accommodating nomadism and mobility: Challenging the sedentarist binary approach to provision for Gypsies, Travellers and Roma’, International Journal of Sociology and Social Policy, Vol. 39 No. 3/4 (2019)
- Penny English, ‘Disputing Stonehenge: Law and Access to a National Symbol’, Entertainment Law, Vol.1, No.2 (Summer 2002), 1–22
- Gavin Parker and Neil Ravenscroft, ‘Land, Rights and the Gift: The Countryside and Rights of Way Act 2000 and the Negotiation of Citizenship’, Sociologia Ruralis, 41: 4 (2001)
A quick summary here of the development of public order law in relation to space and protest and the freedom of assembly.
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.
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.
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)
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
HC Deb 21 Sept 1886 vol 309 c1103