Public Order acts and public space

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.

Further reading:

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,
1996

Nicholas R Fyfe, ‘ Law and order policy and the spaces of citizenship in contemporary Britain’, Political Geography, vol. 14, No. 2, (1995), 77-189




environmental protest and county identity

I’m interested in the overtly ‘county’ identity displayed by the anti-fracking campaigns.

Lancashire has been at the forefront, and the campaign there uses the ceremonial county flag (i.e pre-1974) of a red rose on a yellow background. The photos in this recent Guardian article also show the Yorkshire campaign using the old flag of white rose on blue background too: https://www.theguardian.com/environment/2019/may/08/we-are-hammering-the-last-nail-in-the-coffin-of-the-fracking-industry

Usually site-specific protests retain a distinctly local identity, a defence of local communities, though often with connections to a wider (sometimes) global campaign. In this case, although the fracking sites are in places that could be defended at a local level, the county is the dominant identity. I also recall the ‘save the forest’ campaign in 2010-11 against the government’s plan to sell off publicly-owned forests, notably the protests at Grizedale in the Lake District. Then I don’t think the county served that unifying identity, but I would need to look more into this.

I’m sure cultural geographers of resistance have already studied the campaign and its tactics, and the Guardian claims that the protests are starting to make a real impact on the progress of the industry. What I’ve witnessed is how the anti-fracking campaign has already been integrated firmly in the canon of people’s protest in Lancashire – I’ve not made it to the annual Blackstone Edge Chartist gathering this last couple of years, but in 2017, anti-fracking lyrics were put to traditional protest song tunes, alongside songs celebrating the NHS, and the older song book of labour, socialist and Chartist songs.

The late Alun Howkins always lauded the working-class tradition of environmental protest, including in a survey article in History Workshop Journal, ‘From Diggas to Dongas’, and Briony McDonagh and Carl Griffin’s revisiting of that tradition in their work on a neo-Diggers community similarly show how direct action goes alongside other tactics in a long and perhaps under-appreciated thread of plebeian environmentalism.

orange peel

I’m currently working on the history of litter, litter bins, and anti-litter campaigns. Orange peel comes up a lot in the 19th and early 20th centuries. Council bye laws often had specific clauses against the dropping of orange peel in particular, with heavy fines against what was classed as a ‘dangerous substance’. And today I ended up in a rabbit hole of newspaper articles warning about the dangers of orange peel on pavements.

As with other items, it is evident that the rising concern about orange peel relates to the increasing availability and therefore affordability of oranges as a foodstuff, together with the realisation of urban residents about the materiality (hardness, slippiness) of pavements. Before the mid 19th century, only the main streets would have been paved under Improvement Acts, whereas later on, the city streets all became ‘hard’ and slippy rather than just muddy.

death from orange peel
Epworth Messenger, 5 January 1878
Wiltshire Times, 24 March 1945

in Henry Mayhew’s London Labour and the labouring Poor, litter or ‘refuse’ is specifically identified as orange peel dropped at marketplaces, for which there was a secondary trade by the Irish ‘refuse’ sellers.

mayhew, london labour and labouring poor
Mayhew, London Labour and the Labouring Poor, vol 1, p. 117

see Bob Nicholson’s thread about orange peel in Victorian humour:

moral ecologies of resistance

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.

Samantha Fisher article bbc news
netting trees
https://www.bbc.co.uk/news/uk-england-47627749
BBC news 'where is it happening'

https://www.bbc.co.uk/news/uk-england-47627749

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.

anti bird netting in Ludlow story BBC news
https://www.bbc.co.uk/news/uk-england-shropshire-47886345

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.

further reading:

  • 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)

commons (2)

1871 os map epsom

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.

Key legislation:

1965 Commons Registration Act

2006 Commons Registration Act

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).

Further reading:

  • 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…

a revival of interest in land reform

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:

book covers of Tichelar, Christophers and Shrubsole

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).

Further reading:

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)

definitions of public space

parliament and embankment

I’m starting to compile as many definitions of public space as I can from here.

2011

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.

appendix 1 definition of public space 'all spaces including streets, squares and parks that everyone can use and access in principle, regardless of who owns or manages the space'

‘all spaces including streets, squares and parks that everyone can use and access in principle, regardless of who owns or manages the space’.

2004

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’.

1990

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.

2014

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

open space definition 2014
green space definition 2014
green space definition 2014