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.)

Getty
Show Hide image

Banishing safe seats, and other proposals to bridge the democratic divide

How to improve key areas of democracy.

Labour’s election train is finally pulling into the station, with its new leader announced in just over a fortnight. However, a summer absorbed in the party’s internal democracy has obscured a deeper truth confronting the country: the general election confirmed that unequal political participation rates in the UK – by age, class, ethnicity and region– have become increasingly hardwired into how our democracy operates.

IPPR’s new report underscores the scale of the democratic divide.  For example, less than half of 18-24 year olds voted, compared to nearly four-fifths of the over-65s, while three-quarters of "AB" individuals cast a ballot, against just over half of "DE" registered voters. Critically, this marks a sharp rise in turnout inequality over time. In 1987, for example, turnout rates by class were almost identical but have steadily diverged since.

Similarly, age-based differences have got significantly worse over time. In 1964 turnout for 18-24 year olds was 76.4 per cent, almost matching the 76.7 per cent turnout rate of those aged 65 or over. By 2005 only 38.2 per cent of 18-24 year olds voted against 74.3 per cent of 65+ year olds, with only a very slight improvement this year.

Underlying growing disparities of electoral voice are striking divergences in perceptions of the fairness and effectiveness of our democracy. For example, IPPR/YouGov polling suggests a striking 63 per cent of "DE" individuals think that our democratic system serves their interests badly, while "AB" voters are evenly split.

Given these signs of democratic distress, there remains a strong case for establishing a wide-ranging constitutional convention to reset how our democracy operates. Yet Westminster shows no appetite for such constitutional reformation, and there would only be so much a civil society-led convention could achieve in terms of practical change.

In our report we therefore propose a series of achievable reforms that could update the civic, institutional and technological architecture of our democracy in the here and now, with the explicit goal of ensuring that all voices are better heard in the political process.

On electoral reform, while we reiterate our support for proportional representation for national elections, we know this simply isn’t going to happen this Parliament. We had a referendum on change in 2011 and it was heavily lost. The energies of electoral reformers should therefore focus on extending PR in local government, where it is more obviously in the self-interest of the major parties, as a means of extending their geographical reach.

In addition, the reduction in the number of MPs provides an opportunity to chip away at the number of safe seats. More than half of seats are "safe", a number that has grown over time, even allowing for the electoral earthquake in Scotland. Safe seats typically have lower levels of participation, lower turnout rates, and less electorally powerful voters. While safe seats will always be with us in a first-past-the-post system, too many can be damaging to democracy.

Given this, we have recommended that the various Boundary Commissions of the UK be given a new duty to consider the electoral competitiveness of seats – ie. to tilt against the creation of safe seats – when boundaries are redrawn. The priority would be to meet their current duties of ensuring the geographic coherence of a seat and roughly equal electorates.

However, where these duties can be met we suggest that the Commissions should consider revising boundaries to reduce the number of safe seats, as a step to increasing participation and the voting power of the average elector. Of course, this will clearly not "abolish" all safe seats – nor should it  but it could help re-empower millions of voters currently with little meaningful say over the outcome of elections and force political parties to up their game in safe seats.

At the same time, the transition to the individual electoral registration process risks excluding millions from the franchise, people who are disproportionately younger, poorer or from an ethnic minority. For example, there are clear inequalities by age and ethnicity in terms of who is registered to vote: in the 2010 general election, for which figures are most accurate, 90 per cent of people aged 55-64 were registered, compared to 55 per cent of those aged 18-24, while nearly 20 per cent of BME individuals were not registered to vote, compared to only 7 per cent of the "white British" population.

There are simple steps the government could take to ensure all who are eligible are able to vote: extending the registration deadline to December 2016, and making support available to local authorities to assist registration efforts, weighted towards authorities with higher levels of under-registration, could help reduce inequalities.  In the longer term, electoral registration officers should be given new duties, and the Electoral Commission more powers, to drive up registration rates, with a particular focus on presently under-registered demographics. 

Finally, we recommend introducing a Democracy Commission. At present, the Electoral Commission effectively regulates elections and party funding. Democracy, however, is far richer and broader than electoral processes. It is about formal representation, but also about participation and deliberation, in what Marc Stears has called "everyday democracy".

A statutorily independent Democracy Commission could give institutional ballast to the latter and help reinvigorate democratic life by providing research, resources and capacity-building to facilitate local, civil society-led initiatives that aim to increase broad-based levels of powerful democratic participation or deliberation in collective decision-making processes.

For example, a Democracy Commission could work with the GLA to introduce participatory budgeting in London, assist the Greater Manchester Combined Authority in instituting a public deliberative body with real teeth over how to integrate health and social care in the area, help the Scottish government conduct citizens’ juries on the future constitutional shape of the country, or support civil-society experiments to bring people closer to collective political decision-making processes in their locality.

We are living in a paradoxical political era, where growing political inequality is accompanied by ongoing social and technological change that has the capacity to collapse unnecessary political and economic hierarchies and build a more inclusive, participatory and responsive democracy. However, there is no guarantee that the age of the network will necessarily lead to democratic revival. The institutions and technologies of our political system, products of the 19th century, are struggling in the fluidity and fracture of the 21st century, inhibiting democratic renewal.

With our economy post-industrial, our ways of communicating increasingly digital and more networked, our identities and relationships ever more variegated and complex, it is therefore critical public policy seeks to update the democratic infrastructure of the UK, and, in so doing, help reverse entrenched political inequality.

Such an agenda is vital. If we simply accept the current institutional arrangements of our political system as the limits of our ambition, we must also content ourselves to live in a divided – and therefore inherently partial – democracy. Yet our democracy is not immutable but malleable, and capable of being reformed for the better; reform today can make democratic life more equal. After all, the story of British democracy’s evolution is one of yesterday’s impossible becoming today’s ordinary.

Mathew Lawrence is a research fellow at IPPR and the co-author of "The Democracy Commission: Reforming democracy to combat political inequality". He tweets at @dantonshead.