public health and public space

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.

Where does it apply? England only, Reg 1(2).

Who is 'responsible' for a business? Owner, proprietor and manager – so if an owner tells a manager to keep a business open, the manager must say no as it's their responsibility too, Reg 1(3)(b). 2/24

— Julian Norman (@Julian_Norman1) March 27, 2020

https://threadreaderapp.com/thread/1243471335700992000.html

First, some police think that their job is to enforce the government's guidance, when in fact their job is to enforce the law.

*The law* is that you may not leave home without a reasonable excuse. The legislation gives non-exhaustive examples of such excuses. pic.twitter.com/fyPdpVV4pd

— Raphael Hogarth (@Raphael_Hogarth) March 30, 2020

https://threadreaderapp.com/thread/1244656601799237632.html

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:

https://www.jstor.org/stable/4506978?seq=1#metadata_info_tab_contents

https://en.wikipedia.org/wiki/Associated_Provincial_Picture_Houses_Ltd_v_Wednesbury_Corp

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.

https://www.bbc.co.uk/news/uk-england-derbyshire-52055201

https://www.grough.co.uk/magazine/2020/03/26/edale-rescuers-dismayed-at-number-travelling-to-area-to-walk-during-covid-19-outbreak

There’s also an issue about whether the emergency legislation is also being stretched by landowners and farmers to block legitimate rights of way:

Was literally going to start searching for the same thing! Here's thread I was sent starting with a pic: https://t.co/fgl5Efzn2k

— Guy Shrubsole (@guyshrubsole) March 31, 2020

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.