legislative definitions on what is and isn’t a public space have returned

Adam Wagner does his brilliant work again summarising the new covid emergency regulations on where masks have to be worn.

The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021, passed 29 November 2021

It’s like deja vu again, but about masks rather than simply opening. The spatial ordering of the legislation yet again is fascinating. What is or is not a public space.


reflections on public space under lockdown

stone in Kennington Park

It’s now been 6 months since my last day commuting from work, and nearly 6 months since the start of a lockdown of some form or another in England.

Here are some brief reflections on what lockdown has highlighted about public space.

Table of Contents

    Parks and open spaces

    The first few weeks of lockdown were characterised by confusion – how does the virus spread? does it stay on surfaces and for how long? Is being outdoors more dangerous than indoors?

    In those early weeks the focus was on spread through touching surfaces. So we saw odd scenes like every potential spot that could be construed as a seat being taped off. These images of the stones in Kennington Park, which I know well, taken by Will Jennings, are perhaps the most representative of this sense of panic of the unknown:


    At the same time, government guidance delineated what activities were and were not permitted in public parks and other open spaces. So while exercise, including yoga, was allowed, sitting and sunbathing was not. So we had the unnerving sight in some areas of police patrolling through parks and telling sunbathers off. However seemingly random previous parks’ byelaws had been in the Victorian era (everyone seems to cite the ‘no beating carpets and rugs’ byelaw), this rule really felt like an inversion of all normal order, a world-turned-upside down.

    Several well known parks in heavily populated areas, notably Brockwell Park in south London, closed in the first week of April, as temperatures rose unseasonably. The Easter and May bank holidays similarly caused problems.


    bbc article of sunbathers
    glasgow sunbathers

    Driving to outdoor spaces was also initially prohibited by government guidance, the ban not lifted until mid May. The National Trust closed its carparks and properties to prevent people accessing its outdoor spaces. Another of the now notorious images of the early lockdown period were of Derbyshire police using drones to spot people who had ignored the guidance to go walking out in the countryside.


    The other notorious image, which has quickly become a twitter meme, is this one of a police megaphone shouting at a woman walking:

    By June, the impact of devolution began to surface, with each devolved government setting its own parameters for restrictions and quarantines, which is still creating inconsistencies and public confusion currently (September).

    Throughout this period, the issue of public rights of way and access to the countryside have been heightened, not least by informal and unofficial closures of ROW and signs made by farmers and landowners wishing to protect their livestock and workers.

    This produced a whole genre of covid signs, such as this one spotted by Dr Claire Hickman:

    peak district sign

    The Viral Archive on Twitter has been collecting similar signs and writing/markings on urban open spaces:

    See also Miles King and Guy Shrubsole’s highlighting of illegal ROW closures:


    See Miles’s blog posts at the time about ‘performing lockdown’ in open spaces:

    Once lockdown eased, it also became evident that people were using public open spaces in different ways. Or at least because people were ‘staycationing’ instead of going abroad, they were using their local parks and beauty spots at different times than usual and thus noticing alternative uses by people they would not normally come into contact with:

    burgess park sex acts

    Raves returned to the countryside as young people felt frustrated not to be able to socialise in clubs:

    raves June 2020

    social and economic inequalities

    It very soon became evident that lockdown restrictions highlighted and indeed exacerbated the spatial inequalities of race and class in Britain. Lack of access to private gardens and to public parks was most acute in the most deprived urban areas. The debates over whether public parks should be closed hinged on the issue of how gentrification of parts of London meant that working people, especially of colour, were predominantly those suffering lack of access to open space. And with links being quickly made between pollution and covid deaths, most severely affecting deprived areas, this connection was underlined even further.


    urban spaces

    As lockdown lifted, and the government encouraged us to ‘eat out to help out’, the urban street space changed rapidly and pretty dramatically. Local councils enabled temporary pedestrianisation and street licences allowing cafes and restaurants to have outdoor seating on previously busy roads. In the continued hot summer, there was a brief vision of the ‘continental cafe culture’ that has always been an aim of successive regeneration schemes but never achieved on this scale in practice.

    But it came with problems, with concerns about the West End of London being so packed that social distancing was impossible on ‘Super Saturday’ in early July after the pubs reopened:

    super saturday soho

    The implementation of social distancing measures also saw the morphology of streets change in densely populated areas, most physically with the replacing of car lanes with pedestrian routes and cycle paths on some large roads.

    tfl borough high street

    Low Traffic Neighbourhoods, a key demand of the ‘living streets’ movement were also temporarily trialled in some London boroughs.

    low traffic neighbourhoods


    The Open Spaces Society provide a useful summary of the various changes made to both legislation and government guidance related to use of open spaces:

    OSS guidance

    The right of public assembly

    Legal scholars have pointed out the barrage of emergency legislation that has been passed without full parliamentary scrutiny over lockdown, and that much involves restrictions on public gatherings. The increasing vagaries and contradictions inherent involve, as much legislation about gatherings has historically, a series of numbers – 1 household, 1 ‘bubble’, 30 people, now the ‘rule of 6’.

    See the multiple and very informative posts of Adam Wagner @AdamWagner1 :


    As Black Lives Matter and later X-tinction Rebellion protests tried to navigate the restrictions and assert their right to protest, and more illegally as large groups held raves in the countryside, inevitable parallels were made with the passing of the Public Order Acts in 1986 and 1994:

    rave legislation

    Wagner also points out the ambiguities inherent in the legislation’s use of the word ‘mingling’, the first occurrence of such a term in English & Welsh legislation:

    Some legal scholars argue that the government’s ambiguity between regulations, legislation and guidance has exacerbated the situation. See for example Tom Hickman’s paper, ‘The Use and Misuse of Guidance during the UK’s Coronavirus Lockdown’: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3686857

    [to finish]

    revisions to the emergency powers act on public gatherings

    coronavirus regs

    Feed by the human rights barrister Adam Wagner :

    Link to the legislation changes here: http://www.legislation.gov.uk/uksi/2020/684/pdfs/uksi_20200684_en.pdf

    coronavirus regs


    monbiot article

    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
    (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.

    two great blog posts on public space and the lockdown

    Antonia Layard on parks:

    Antonia Layard

    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:


    who has the right to use public space? (1/n)

    brockwell park

    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.

    Brixton Buzz

    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

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    LCC map of parks 1924
    London County Council map of parks and recreation grounds, 1924

    Survey of London history: https://www.ucl.ac.uk/bartlett/architecture/sites/bartlett/files/49.5._parks_and_open_spaces_chapter.pdf

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    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:

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    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.

    musical world 1870 Sunday League on music in parks
    Musical World, 23 April 1870, https://books.google.co.uk/books?id=VJMPAAAAYAAJ&dq=public%20park%20prohibit%20%20Sundays%20music&pg=PA287#v=onepage&q&f=false
    LCC pamphlet 1924
    LCC pamphlet, 1924, Lambeth Archives
    council restrictions on games 1922
    LCC guide to public parks, 1924

    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.

    Further reading:

    Hazel Conway, People’s Parks: The Design and Development of Victorian Parks in Britain (Cambridge University Press, 1991)

    public health and public space

    corona virus regulations

    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.


    derby peak district news


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

    tweet by @ianphilips2454

    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.