Since the 1835 Highways Act and the implementation of the 19th century police, police have sought to control or disperse protest by classifying stationary groups of people as obstructing the right of free passage along the highway.
In reaction to the Insulate Britain tactic of obstruction, the government has in October 2021 taken out a High Court injunction against the protestors, though it is specific to particular motorways and A-roads:
Verges are important as they are technically classed as part of the highway, and therefore councils and police have historically tried to protect right of free passage along them as well, classing any encampments on verges or roundabouts as obstruction.
Further reading on ‘obstruction’ and ‘nuisance’ in 19th century policing:
David Churchill, Crime Control and Everyday Life in the Victorian City: the Police and the Public (Oxford, 2017);
Christopher Hamlin, ‘Nuisances and Community in Mid Victorian England: the Attractions of Inspection’. Social History, 38: 3 (2013), 346-79.
On 5 February 2021, I was honoured to give a lecture to the Royal Historical Society, on the history of the right of public meeting. It has been recorded and will be posted on their website soon. https://royalhistsoc.org/events/
Ironically the lecture came the day after a video of Handforth Parish Council went viral on Twitter and other social media. My choice of Isaac Cruikshank’s 1828 cartoon of a select vestry meeting being interrupted seemed especially relevant:
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
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.
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
Kinder Scout is a short-hand for a particular view of what common land is and represents: that common land is open to all the people for the benefit of the people, and in effect should therefore be ‘owned’ by the people. And ‘the people’ means the whole nation, rather than just the immediate residents living in and around a particular piece of common land.
The mass trespass of 1932 was the largest collective action inspired by that view of common land as public space. The idea however had been developing only since the mid 19th century, but was crystallised by the event and has continued to mean that ever since.
This is the ‘universal’ or ‘timeless’ myth
The idea that common land is commonly owned by the people, and can be used by all people is still pervasive. It gives the impression that common land has always been common, timeless and universal.
There is already a paradox or contradiction inherent in the myth:
on the one hand, the local common is for local people to graze animals, gather fuel, and other use-rights;
on the other hand, commons are ‘public’ and therefore for everyone to use for recreation.
Rights of way and public access run through these perceptions of who owns the land and who has the right to use it.
But common land was always owned by someone (usually the lord of the manor) in England and Wales
C. P. Rodgers, E. A. Staughton, A. J. L. Winchester and M. Pieraccini ‘s introduction to their excellent book Contested Common Land: Environmental Governance Past and Present (Routledge, Abingdon, 2011), p. 4, define it as:
privately owned land over which others possess use rights, giving them legally recognised access to particular resources.
The ownership of common land or ‘waste’ was usually vested in the lord of the manor, while the local community could have use rights. This general state of affairs existed from about the 13th century until the 1965 Commons Registration Act.
The picture portrayed in the Guardian article above, of a sudden out-turning of a landless peasantry between 1750 and 1850, is over-simplistic and does not appreciate the extent of commercialisation of rights – including by commoners themselves – by this period.
What are common rights?
Most rights were ‘appurtenant’, attached to a landholding as a subsidiary right. Common rights ‘in gross’, were rights independent of holding land.
Common law recognised 6 categories of common right, which were not exclusive:
common of pasture
common of turbury – right to take peat or turf for fuel
common of estovers – right to take wood or other vegetation
right of pannage – right to grove pigs in woodland
right of piscary – right to take fish
profits a prendre – rights to take minerals or soil
ferae naturae – right to take animals.
(Rodgers et al, p. 5).
Yet even these rights of use were complicated by shifting uses, customary law and customary uses, and commercialisation. Common land seemed to be a symbol of shared resources, but in fact legally was a complex patchwork of ownership and rights, often jealously guarded. Customary law mediated between the two perceptions: common usage, and exclusive ownership.
The privatisation and commercialisation of common rights had been occuring since at least the 17th century. And the important impact of this process was to remove the connection between local resident and common. Again, this is another myth-buster: common land and its uses did not always ‘belong’ to the local residents who lived near it. You could hold common rights to a piece of land other than where you lived.
So stints or rights of pasture could be sold separately from the land to which they were attached. Rights to urban commons, moreover, were often leased, shared or sub-let, ‘further distancing the user from the legal commoner’ (Rodgers et al, p. 23).
This presents a parallel and alternative picture to the deeply local story outlined by Keith Snell in his richly evocative book, Parish and Belonging, in which he described how attachment to place is shaped legally by the settlement regulations of the poor laws, and a long-standing ‘local xenophobia’ engendered by the primacy of the parish boundary in legal and administrative impacts on everyday life.
On top of the legal definitions lay custom
Whatever was defined legally, customary uses and interpretations of the law of custom complicated matters even further. Practice was very different from theory. Whereas the law stated that common pasture rights applied to the whole common, in practice commoners subdivided the land by usage, in effect privatising sections with invisible boundaries. There was therefore ‘a strong sense of customary property rights operating below the level of the law’ (Rodgers et al, p. 24). These customary rights were no less real in practice to the users, even though they were not defined in law.
Where does the ‘common land’ misconception come from, and why is it misleading?
There were precedents in the Diggers of the 17th century, and later minority radical groups, particularly the Spenceans. But, as much as historians like to focus on such groups because of their radicalism, we should remember that they were in the minority. Most people in England & Wales did not believe in land redistribution. Even the Chartists’ big experiment of the Land Plan was still predicated on property ownership.
England and Wales’ whole political, representative and legal system was predicated on property, a conservatism with a small c that depended on the institution of property to define class and elites.
In effect, the popular idea that the commons belonged to all, meaning all people and not just local commoners, derived from the debates over enclosure in the 19th century.
The commons preservation movement was a 19th century phenomenon, but essentially started with the societies for the preservation of footpaths, which formed in Manchester and York in the 1820s after the massive wave of parliamentary enclosure during the Napoleonic Wars. I don’t have room to go into this here, but will do so in a future post. In the meantime you can read: Wendy Darby, Landscape and Identity: Geographies of Nation and Class in England (Bloomsbury, 2000).
There’s also a related myth, which swirls around the preservationist debate and rhetoric around National Parks and Areas of Outstanding National Beauty, eliding them with the idea of common land, access and use, in that common land is unspoiled, whereas in reality it was always about production and extraction of natural material resources.
new thoughts 11/2: The right to roam movement, with its longer precedents in campaigns against the stopping up of footpaths in the 1820s, had a much stronger sense of what public space is and defence of legally defined rights of way used by all people.
But the simplistic misconception about the enclosure acts ‘taking away common land’ from local people has, I argue, arisen from a conflation of the right to roam movement (i.e. footpaths) with the debates and resistance against parliamentary enclosure (i.e. common land).
This confusion has arisen, as I explain below, out of the legacy of the later 19th century preservation movement, who deliberately employed rhetoric of common land to defend the use of land for recreation and amenity, rather than for pasturage and other productive rights.
And this rhetoric about common land ignores, or is not aware of, the already long-established patterns of encroachment, privatisation and commercialisation of stinting and other customary rights, that led to the situation in some areas where the holders of such rights had bought or leased them, and were not necessarily local residents. I will find more evidence for these patterns of ownership of common rights from my case studies in due course.
The main shift was in the idea of commons as a place of agricultural production and resources, to one of recreation and open access.
From the 1860s onwards, legislation was often directed towards regulation in support of preservation and recreation rather than enclosure (Rodgers et al, p. 38).
General Inclosure Act of 1845, included provisions for enclosure commissioners to consider recreation grounds and allotments for the poor, though this was often not enacted in practice
1899 Commons Act – introduced mechanisms for district and parish councils to regulate and manage common land. c.200 commons involved
1925 Law of Property Act – gave public access to metropolitan commons and commons lying wholly or partly within urban district areas
In effect, the broader ideal of common land as ‘for the people’ has therefore only existed since the mid 19th century, with the rise of the preservation movement and broader municipal concerns about public health and access to open space as urbanisation and industrialisation reached their peak.
George Shaw Lefevre reinvigorated the myths in his account of the Victorian preservation movement in his English Commons and Forests: The Story of the Battle During the Last Thirty Years for Public Rights Over the Commons and Forests of England and Wales (1894):
The popular battles over access to common land and to the ‘right to roam’ were galvanised by the idea of common land as belonging to ‘the people’ as a whole, for recreation, rather than the common as a piece of land to which a particular set of local people had customary rights.
I’ll continue this theme by looking more into the myth of ‘land being taken away from the common people’ in a future post…
Wendy Darby, Landscape and Identity: Geographies of Nation and Class in England (Bloomsbury, 2000)
C. P. Rodgers, E. A. Staughton, A. J. L. Winchester and M. Pieraccini, Contested Common Land: Environmental Governance Past and Present (Routledge, Abingdon, 2011)
Peter Linebaugh, Stop, Thief! The Commons, Enclosures and Resistance (PM Press, 2014)
Nicola Whyte, Inhabiting the Landscape: Place, Custom and Memory, 1500-1800 (Windgather Press, 2009)
Ben Cowell, ‘The Commons Preservation Society and the Campaign for Berkhamsted Common, 1866–70’, Rural History, 13: 2 (2002)
Keith Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge, Cambridge University Press, 2006)