What powers do the Downing Street police actually have?

The law behind the “Plebgate” row.

Everyone has the common law right to use the public highway. 

According to the law books, there is a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass the public highway without any let and hindrance.

And even now Downing Street remains part of the public highway. In principle, anyone – even the Conservative Chief Whip – has the legal right to pass up and down, and enter and exit, Downing Street without any obstruction or interrogation.  Indeed, to obstruct the public highway is an offence under section 137 of the Highways Act 1980.  And an attempt to physically stop a pedestrian without good reason would also be a trespass to that person, for which he or she can sue.

But in practice, of course, no person can freely use Downing Street.   Iron gates have been in place since 1989 (and barriers were in place before then) and police officers are always at hand with firearms. 

How is this legally possible?  And what legal power, if any, was relied upon by the police officer in refusing to open the iron gates for Andrew Mitchell on his bicycle so that he could exit Downing Street?

 

The legal position is complicated. 

First of all, Downing Street itself is not a designated area for the purposes of anti-terrorist legislation (and you see the relevant plan which shows that neither the public highway nor the gates themselves are designated for the purpose).  So there must be some other legal basis for permitting what would otherwise be an obstruction to the public highway.

Before 2005, the police at the gates of Downing Street appeared to have relied entirely on common law powers in respect of potential breaches of the peace to stop people exercising their right to enter Downing Street.  Indeed in 1990, a minister said:

Access to Downing street is controlled under police common law powers which allow them to take reasonable steps to preserve the peace and prevent threats to it.

This flimsy position (which was undoubtedly legally misconceived and unsustainable as a blanket position) was then formalised in 2008.  According to attachments to this obscure web page of Westminster City Council, an Order was made to:

(a)          prohibit vehicles and pedestrians from entering or proceeding in Downing Street at all times, except those authorised by the police;

(b)          prohibit pedestrians from entering or proceeding in that area of the footway forming the boundary between Downing Street and Whitehall, except those authorised by the police; and

 (c)           allow the police, at their discretion, to prohibit pedestrians from entering or proceeding in certain parts of Whitehall adjacent to the  Cabinet Office, the boundary with Downing Street and the Foreign & Commonwealth Office.

(You will notice that these powers refer to stopping people “entering or proceeding” on Downing Street, not exiting it as the hapless MP for Sutton Coldfield was then seeking to do, though this may be a moot point.)

This grandly titled WCC Traffic Management Order number 128 of 2008 in turn purports to rely on a range of statutory provisions in shutting the public out of Downing Street.  It is instructive to trace what these enabling provisions are, as it tells us something about how anti-terrorist law works in practice.

First, the Order cites a general power under section 6 and Schedule 9 of the Road Traffic Regulation Act 1984.  However, neither of these general provisions actually appear to give the Council quite the power to make an order as drastic as the one made.

The Order then refers to section 22C of the same Act (introduced in 2005), and this makes all the difference.  This provides:

(1) An order may be made under section 1(1)(a) for the purpose of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism (for which purpose the reference to persons or other traffic using the road shall be treated as including a reference to persons or property on or near the road).

(2) An order may be made under section 1(1)(b) for the purpose of preventing or reducing damage connected with terrorism.

(3) An order under section 6 made for a purpose mentioned in section 1(1)(a) or (b) may be made for that purpose as qualified by subsection (1) or (2) above.

 

So the public highway can be restricted by an order under the Road Traffic Regulation Act 1984.  In view of the 1991 terrorist attack on Downing Street, most people would agree that an interference with the universal right to travel up and down Downing Street is proportionate and justified.

But what actually was the legal power of the officer in refusing to allow Andrew Mitchell to exit Downing Street through the iron gates on his bicycle?  Every exercise of police power, of course, must have a legal basis.  Police do not actually have a general power to do as they will.  Would the police cite the 2008 Order or some common law power?  For, as the refusal has now led to a significant political crisis, it would be handy to know what the legal position had been.

So I asked the Metropolitan Police to tell me the actual legal basis of their officer's actions.  Their press office said they would not comment on security issues.  I pointed out that the applicable law would already be in the public domain, and that presumably there was a legal basis for their officer's refusal; but their response was the same - it was a security matter.  The impression which the refusal gave to me was that the Metropolitan Police press office either did not know or did not care what legal powers were used in a now controversial situation.

 

Thirteen years ago - eight years after the IRA's mortar attack - the police on the gates of Downing Street would happily let any member of the public on to Downing Street who presented no obvious danger and explicitly asked to do so.  I know this, as I did it myself: a friend and I went to look at the Downing Street Christmas Tree in 1999.

However, since 1999 (and especially since around 2005), both statutes and police powers have bitten away at the general and peaceful rights of people to do as they wish.  Perhaps there was a good reason to refuse the Tory chief whip his preferred form of exiting Downing Street that day in September 2012.  Perhaps opening the gates for him would have created some frightful security risk.  And there is no doubt that Mitchell's response to the refusal could have been far more graceful, whatever that response actually was.

It was only a trifle, after all, and he could have just nodded along as we all now are supposed to do; but annoyance at the unthinking use of police and security powers was surely a better reaction than merely nodding along.

Armed police at Downing Street - but are the gates obstructing the highway? Photograph: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty Images
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There are risks as well as opportunities ahead for George Osborne

The Chancellor is in a tight spot, but expect his political wiles to be on full display, says Spencer Thompson.

The most significant fiscal event of this parliament will take place in late November, when the Chancellor presents the spending review setting out his plans for funding government departments over the next four years. This week, across Whitehall and up and down the country, ministers, lobbyists, advocacy groups and town halls are busily finalising their pitches ahead of Friday’s deadline for submissions to the review

It is difficult to overstate the challenge faced by the Chancellor. Under his current spending forecast and planned protections for the NHS, schools, defence and international aid spending, other areas of government will need to be cut by 16.4 per cent in real terms between 2015/16 and 2019/20. Focusing on services spending outside of protected areas, the cumulative cut will reach 26.5 per cent. Despite this, the Chancellor nonetheless has significant room for manoeuvre.

Firstly, under plans unveiled at the budget, the government intends to expand capital investment significantly in both 2018-19 and 2019-20. Over the last parliament capital spending was cut by around a quarter, but between now and 2019-20 it will grow by almost 20 per cent. How this growth in spending should be distributed across departments and between investment projects should be at the heart of the spending review.

In a paper published on Monday, we highlighted three urgent priorities for any additional capital spending: re-balancing transport investment away from London and the greater South East towards the North of England, a £2bn per year boost in public spending on housebuilding, and £1bn of extra investment per year in energy efficiency improvements for fuel-poor households.

Secondly, despite the tough fiscal environment, the Chancellor has the scope to fund a range of areas of policy in dire need of extra resources. These include social care, where rising costs at a time of falling resources are set to generate a severe funding squeeze for local government, 16-19 education, where many 6th-form and FE colleges are at risk of great financial difficulty, and funding a guaranteed paid job for young people in long-term unemployment. Our paper suggests a range of options for how to put these and other areas of policy on a sustainable funding footing.

There is a political angle to this as well. The Conservatives are keen to be seen as a party representing all working people, as shown by the "blue-collar Conservatism" agenda. In addition, the spending review offers the Conservative party the opportunity to return to ‘Compassionate Conservatism’ as a going concern.  If they are truly serious about being seen in this light, this should be reflected in a social investment agenda pursued through the spending review that promotes employment and secures a future for public services outside the NHS and schools.

This will come at a cost, however. In our paper, we show how the Chancellor could fund our package of proposed policies without increasing the pain on other areas of government, while remaining consistent with the government’s fiscal rules that require him to reach a surplus on overall government borrowing by 2019-20. We do not agree that the Government needs to reach a surplus in that year. But given this target wont be scrapped ahead of the spending review, we suggest that he should target a slightly lower surplus in 2019/20 of £7bn, with the deficit the year before being £2bn higher. In addition, we propose several revenue-raising measures in line with recent government tax policy that together would unlock an additional £5bn of resource for government departments.

Make no mistake, this will be a tough settlement for government departments and for public services. But the Chancellor does have a range of options open as he plans the upcoming spending review. Expect his reputation as a highly political Chancellor to be on full display.

Spencer Thompson is economic analyst at IPPR