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.)

David Young
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The Tories are the zombie party: with an ageing, falling membership, still they stagger on to victory

One Labour MP in Brighton spotted a baby in a red Babygro and said to me: “There’s our next [Labour] prime minister.”

All football clubs have “ultras” – and, increasingly, political parties do, too: although, in the case of political parties, their loudest and angriest supporters are mostly found on the internet. The SNP got there first: in the early days of email, journalists at the Scotsman used to receive bilious missives complaining about its coverage – or, on occasion, lack of coverage – of what the Scottish National Party was up to. The rest soon followed, with Ukip, the Labour Party and even the crushed Liberal Democrats now boasting a furious electronic horde.

The exception is the Conservative Party. Britain’s table-topping team might have its first majority in 18 years and is widely expected in Westminster to remain in power for another decade. But it doesn’t have any fans. The party’s conference in Manchester, like Labour’s in Brighton, will be full to bursting. But where the Labour shindig is chock-full of members, trade unionists and hangers-on from the charitable sector, the Conservative gathering is a more corporate affair: at the fringes I attended last year, lobbyists outnumbered members by four to one. At one, the journalist Peter Oborne demanded to know how many people in the room were party members. It was standing room only – but just four people put their hands up.

During Grant Shapps’s stint at Conservative headquarters, serious attempts were made to revive membership. Shapps, a figure who is underrated because of his online blunders, and his co-chair Andrew Feldman were able to reverse some of the decline, but they were running just to stand still. Some of the biggest increases in membership came in urban centres where the Tories are not in contention to win a seat.

All this made the 2015 election win the triumph of a husk. A party with a membership in long-term and perhaps irreversible decline, which in many seats had no activists at all, delivered crushing defeats to its opponents across England and Wales.

Like José Mourinho’s sides, which, he once boasted, won “without the ball”, the Conservatives won without members. In Cumbria the party had no ground campaign and two paper candidates. But letters written by the Defence Secretary, Michael Fallon, were posted to every household where someone was employed making Trident submarines, warning that their jobs would be under threat under a Labour government. This helped the Tories come close to taking out both Labour MPs, John Woodcock in Barrow and Furness and Jamie Reed in Copeland. It was no small feat: Labour has held Barrow since 1992 and has won Copeland at every election it has fought.

The Tories have become the zombies of British politics: still moving though dead from the neck down. And not only moving, but thriving. One Labour MP in Brighton spotted a baby in a red Babygro and said to me: “There’s our next [Labour] prime minister.” His Conservative counterparts also believe that their rivals are out of power for at least a decade.

Yet there are more threats to the zombie Tories than commonly believed. The European referendum will cause endless trouble for their whips over the coming years. And for all there’s a spring in the Conservative step at the moment, the party has a majority of only 12 in the Commons. Parliamentary defeats could easily become commonplace. But now that Labour has elected Jeremy Corbyn – either a more consensual or a more chaotic leader than his predecessors, depending on your perspective – division within parties will become a feature, rather than a quirk, at Westminster. There will be “splits” aplenty on both sides of the House.

The bigger threat to Tory hegemony is the spending cuts to come, and the still vulnerable state of the British economy. In the last parliament, George Osborne’s cuts fell predominantly on the poorest and those working in the public sector. They were accompanied by an extravagant outlay to affluent retirees. As my colleague Helen Lewis wrote last week, over the next five years, cuts will fall on the sharp-elbowed middle classes, not just the vulnerable. Reductions in tax credits, so popular among voters in the abstract, may prove just as toxic as the poll tax and the abolition of the 10p bottom income-tax rate – both of which were popular until they were actually implemented.

Added to that, the British economy has what the economist Stephen King calls “the Titanic problem”: a surplus of icebergs, a deficit of lifeboats. Many of the levers used by Gordon Brown and Mervyn King in the last recession are not available to David Cameron and the chief of the Bank of England, Mark Carney: debt-funded fiscal stimulus is off the table because the public finances are already in the red. Interest rates are already at rock bottom.

Yet against that grim backdrop, the Conservatives retain the two trump cards that allowed them to win in May: questions about Labour’s economic competence, and the personal allure of David Cameron. The public is still convinced that the cuts are the result of “the mess” left by Labour, however unfair that charge may be. If a second crisis strikes, it could still be the Tories who feel the benefit, if they can convince voters that the poor state of the finances is still the result of New Labour excess rather than Cameroon failure.

As for Cameron, in 2015 it was his lead over Ed Miliband as Britons’ preferred prime minister that helped the Conservatives over the line. This time, it is his withdrawal from politics which could hand the Tories a victory even if the economy tanks or cuts become widely unpopular. He could absorb the hatred for the failures and the U-turns, and then hand over to a fresher face. Nicky Morgan or a Sajid Javid, say, could yet repeat John Major’s trick in 1992, breathing life into a seemingly doomed Conservative project. For Labour, the Tory zombie remains frustratingly lively. 

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

This article first appeared in the 01 October 2015 issue of the New Statesman, The Tory tide