Encroachment of public space in the UK: how does it restrict our right to protest?

Both the increase in privately owned public spaces (POPS) and new state regulations are limiting opportunities to exercise one of our basic rights: the right to protest.

Josie Appleton
6 December 2017
granary square_Bex Walton.jpg

Granary Square in King's Cross – one of London's POPS (privately owned public spaces). Image: Bex Walton/Flickr. Some rights reserved.

This article is part of Right to Protest, a partnership project with human rights organisations CELS and INCLO, with support from the ACLU, examining the power of protest and its fundamental role in democratic society

There has always been a battleground over the question of protests in public space. In the 19th century, there were a series of demonstrations in Hyde Park, which was the only space capable of holding mass rallies, but which was land privately held by the crown. In 1855, working men gathered to protest against the Sunday Trading bill that would close shops on Sundays: they mocked the wealthy floating by in their carriages and jossled and fought with police. In 1866, the Reform League called a rally in Hyde Park calling for the extension of suffrage: when the demonstrators found that the park had been closed against them, they tore off hundreds of yards of railings to enter the park. Eventually, the 1872 Parks Regulation Act granted the right to speak and meet freely in the park, within certain bounds. The right to protest in public space was not given, but won.

The conflict has generally been between elites wishing to restrict protest in public spaces, and the less well off seeking to extend it. The urban design of cities has often been informed by an attempt to restrict public protests. The boulevards of Paris, for example, were designed in part to provide easy access for troops, and to restrict the erection of barricades in backstreets. London’s Trafalgar Square has an absurd area taken up by two enormous fountains, which, along with Nelson’s Column, greatly reduces the surface area of the square, bisecting the available space into three different sections. This design – supervised by Robert Peel's Conservative administration – was not only for ornamentation, but also a deliberate attempt to make the square unusable for demonstrations ofsignificant size.

Therefore, historically, it is both the public state and private landholders that have sought to restrict protest in public spaces. This remains the case today.

Privately owned public spaces (POPS)

Over the past two decades, there has been a growth of privately owned public spaces, or POPS, a trend that has been highlighted by writers such as Anna Minton and the urban geographer Bradley Garrett. There areas now include many squares and shopping streets in British cities, and were often connected with redevelopment – such as Liverpool One, owned by the Duke of Westminster’s Grosvenor Group, which redeveloped 42 acres of land in Liverpool city centre. In London, these areas now include More London, the area around City Hall, and the recently developed Granary Square, north of King’s Cross.

Ultimately, it is the landowner who sets the terms for public use, which it can do as a matter of ‘policy’

These areas are all governed by private regulations (which are often kept secret) and are guarded by private security guards in florescent jackets, who stop not only demonstrations, but also ball games, skateboarding, homeless people and street drinkers. POPS are growing fast, in what Garrett calls ‘the largest sell-off of common space since the enclosures of the 17th and 18th century’, with London as the ‘epicentre of the firesale’. POPS look like any other public space, and are available for people to gather and use, but they exist outside the normal law of the land: people can use them but these are not their spaces. Ultimately, it is the landowner who sets the terms for public use, which it can do as a matter of ‘policy’, simply by issuing a statement or writing an internal document.

The growth in state regulation  

Yet at the same time as POPS, there has also been a massive growth in state regulation over publicly owned spaces in the UK. Indeed, in some cases the local authority has acted in a not dissimilar manner to a private landowner. When I investigated local councils’ restrictions on local people handing out leaflets, one council said that as the ‘freeholder’ of the space, it had decided to restrict leafleting as a matter of ‘policy’. Woking Council had a ‘Public Realm Usage Policy’, which orchestrated every possible use of public space, specifying exactly where activities such as leafleting and charity collection could be carried out, and how often and under what conditions. Members of the Palestinian Solidarity Campaign were prevented from handing out leaflets in Woking town centre: they were told that they must get approval from the council for their leaflets, and also to gain public liability insurance. Like More London, the council was merely establishing ‘policy’ for a public space, which it appeared to consider as its own.

Dispersal powers have been used against protesters to bar them from certain public spaces

The legal powers that allow the restriction of protest are now many and various. Councils have the power to limit leafleting under the Clean Neighbourhoods and Environment Act 2005: though political leafleting is supposed to be exempt, a number of protestors have been stopped from handing out leaflets under these powers. Dispersal powers have been used against protesters to bar them from certain public spaces. Merseyside Police using the powerson consecutive weekends in 2014, including against activists who were chatting and deciding which pub to go to for a drink. Police used dispersal powers to remove protesters against the redevelopment of a Southwark estate in 2015. Westminster Police dispersed street drinkers and rough sleepers from Trafalgar Square in the same year, along with activists who were preparing to hand out meals to the homeless.

Restrictions across the political spectrum

Protesters of all political camps are being targeted. Christian anti-abortion protesters in Ealing have been threatened with a Public Spaces Protection Order (PSPO), banning them from holding a vigil outside an abortion clinic. Some of these protesters appear to have been guilty of harassment and obstruction of women visiting the clinic, and they should legally be held to account for these offences. However, other protesters have just held a silent vigil on the grass opposite the clinic, offering women a leaflet that – as well as criticising abortion – offers help with accommodation and other financial support. They say they are particularly targeting women, such as illegal immigrants, who may only be having an abortion because they cannot afford to have a child. In any case, the concept of a ‘buffer zone’ on a public street is an extremely concerning development, which could in principle lead to similar zones around all kinds of public or private buildings. In a sense, a charity is asserting a private interest over a public space, seeking to dictate what may and may not occur in it, beyond the ordinary obedience to the laws of the land.

The pattern now is that of a general encroachment on public spaces by state and non-state bodies

So while POPS are important, they are only half the story. The pattern now is that of a general encroachment on public spaces by state and non-state bodies, with the restriction on the rights of protest or gathering of all political and ethical camps. We should stand firmly against these restrictions. While times have changed since the Hyde Park rallies, the principleat stake is the same as the one for which they broke the railings in 1866: that public spaces should be for free public use, including, or especially, for protest.

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