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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How can Britain become a nation of homeowners?

David Cameron must unlock the spirit of his postwar predecessors to get the housing market back on track. 

In the 1955 election, Anthony Eden described turning Britain into a “property-owning democracy” as his – and by extension, the Conservative Party’s – overarching mission.

60 years later, what’s changed? Then, as now, an Old Etonian sits in Downing Street. Then, as now, Labour are badly riven between left and right, with their last stay in government widely believed – by their activists at least – to have been a disappointment. Then as now, few commentators seriously believe the Tories will be out of power any time soon.

But as for a property-owning democracy? That’s going less well.

When Eden won in 1955, around a third of people owned their own homes. By the time the Conservative government gave way to Harold Wilson in 1964, 42 per cent of households were owner-occupiers.

That kicked off a long period – from the mid-50s right until the fall of the Berlin Wall – in which home ownership increased, before staying roughly flat at 70 per cent of the population from 1991 to 2001.

But over the course of the next decade, for the first time in over a hundred years, the proportion of owner-occupiers went to into reverse. Just 64 percent of households were owner-occupier in 2011. No-one seriously believes that number will have gone anywhere other than down by the time of the next census in 2021. Most troublingly, in London – which, for the most part, gives us a fairly accurate idea of what the demographics of Britain as a whole will be in 30 years’ time – more than half of households are now renters.

What’s gone wrong?

In short, property prices have shot out of reach of increasing numbers of people. The British housing market increasingly gets a failing grade at “Social Contract 101”: could someone, without a backstop of parental or family capital, entering the workforce today, working full-time, seriously hope to retire in 50 years in their own home with their mortgage paid off?

It’s useful to compare and contrast the policy levers of those two Old Etonians, Eden and Cameron. Cameron, so far, has favoured demand-side solutions: Help to Buy and the new Help to Buy ISA.

To take the second, newer of those two policy innovations first: the Help to Buy ISA. Does it work?

Well, if you are a pre-existing saver – you can’t use the Help to Buy ISA for another tax year. And you have to stop putting money into any existing ISAs. So anyone putting a little aside at the moment – not going to feel the benefit of a Help to Buy ISA.

And anyone solely reliant on a Help to Buy ISA – the most you can benefit from, if you are single, it is an extra three grand from the government. This is not going to shift any houses any time soon.

What it is is a bung for the only working-age demographic to have done well out of the Coalition: dual-earner couples with no children earning above average income.

What about Help to Buy itself? At the margins, Help to Buy is helping some people achieve completions – while driving up the big disincentive to home ownership in the shape of prices – and creating sub-prime style risks for the taxpayer in future.

Eden, in contrast, preferred supply-side policies: his government, like every peacetime government from Baldwin until Thatcher’s it was a housebuilding government.

Why are house prices so high? Because there aren’t enough of them. The sector is over-regulated, underprovided, there isn’t enough housing either for social lets or for buyers. And until today’s Conservatives rediscover the spirit of Eden, that is unlikely to change.

I was at a Conservative party fringe (I was on the far left, both in terms of seating and politics).This is what I said, minus the ums, the ahs, and the moment my screensaver kicked in.

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.