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.