“Contested heritage” and listing statues: new proposals from MHCLG

On Sunday, in a press release entitled New legal protection for England’s heritage, Communities Secretary Robert Jenrick announced what he described as “new laws to protect England’s cultural and historic heritage”. His bullet-point proposals are these:

  • New legal safeguards introduced for historic monuments at risk of removal.
  • All historic statues, plaques and other monuments will now require full planning permission to remove, ensuring due process and local consultation in every case.
  • The law will make clear that historic monuments should be retained and explained.

The press release quotes him as follows:

“For hundreds of years, public statues and monuments have been erected across the country to celebrate individuals and great moments in British history. They reflected the people’s preferences at the time, not a single, official narrative or doctrine. They are hugely varied, some loved, some reviled, but all part of the weft and weave of our uniquely rich history and built environment.

We cannot – and should not – now try to edit or censor our past. That’s why I am changing the law to protect historic monuments and ensure we don’t repeat the errors of previous generations, losing our inheritance of the past without proper care. What has stood for generations should be considered thoughtfully, not removed on a whim, any removal should require planning permission and local people should have the chance to be properly consulted. Our policy in law will be clear, that we believe in explaining and retaining heritage, not tearing it down.”

All this, presumably, is a Government response to the unceremonious dumping of the statue of Edward Colston into Bristol harbour.

David Allen Green’s immediate riposte was, Suppose the government wanted a culture war and nobody came? The law and policy of “protecting” statues and other monuments, pointing out that “Statues are already protected by law”, that “Nothing in the announced proposals goes any further than the direct protections afforded by the criminal law”, and that the people who toppled the statue of Colston were prosecuted. All of which leads us to wonder, in the absence of further and better particulars, exactly what it is that the Government is proposing and to what class of statues its proposals will apply.

So far as the Church of England is concerned, for example, the installation or removal of “statues, plaques and other monuments” – like almost everything else inside a church, whether listed or not – is subject to the faculty jurisdiction and, if in a churchyard, to the churchyard regulations of the diocese in question. (Cathedrals, it should be remembered, are subject to a different system of regulation.) The toppling of the Colston statue prompted subsequent action in Bristol and elsewhere, including a review of the “Colston windows” in Bristol Cathedral and the removal of some stained-glass elements from the north transept window which identify it as the memorial window of Edward Colston, and a consideration of the “deeply offensive” inscriptions on two headstones at St Margaret’s Church, Rottingdean.

But the C of E – together with the other denominations listed in The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010 – is exempted from secular listed building controls, not from planning law; so if statues, specifically, are to become the subject of planning controls, that change will supersede the faculty jurisdiction. Further, many churches are crammed full of “statues, plaques and other monuments” – many of little or no artistic merit.

The C of E is currently looking hard at its own policies. In a statement in June 2020. its Director of Church Buildings and Cathedrals, Becky Clark, was quoted as saying:

“Action is being taken by parishes and cathedrals across England to consider monuments which have links to slave trading or the exploitation of people. Some churches have previously acknowledged and exposed this legacy, but many are just beginning this work in response to the spotlight shone on these questions by the Black Lives Matter movement.

While it is not possible to provide a single answer which could apply to all circumstances and which would satisfy all legitimate viewpoints, we must be as one in acknowledging the real and justified anger of those who believe monuments in churches and elsewhere must be reviewed.

“Key to determining what should be done in each context is the creation of a dialogue within communities. This must be open and honest, and acknowledge that there are monuments in our churches and cathedrals to individuals and events whose destructive impact is still being felt by people living in the UK today.”

And, one might ask, what is a “public statue” anyway? A statue in the open air, obviously: but would MHCLG extend the term to include a statue in a building open to the public?

And is it proposed to revisit, by statute, the judgment of the Supreme Court in Dill v Secretary of State for Housing, Communities and Local Government & Anor [2020] UKSC 20? (The case was about the listing of a pair of early 18th-century lead urns on limestone pedestals: we noted it here.) In the sole judgment, Lord Carnwath declared that

“A listed building means ‘a building which is … included in [the] list …’. Thus there are two essential elements: it must be both a ‘building’ and it must be ‘included in [the] list …’. If it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so” [24].

He also noted “a disturbing lack of clarity” about the way in which planning authorities determined whether or not free-standing items attracted listed building controls [28].

In short, watch this space. More generally on the subject of public statues, in June 2020 Professor Antonia Layard posted Edward Colston: Listing Controversy on the University of Bristol Law School blog. She recently described it on Twitter as “a bit niche”, but it’s well worth a read – and maybe not so niche after all.

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Cite this article as: Frank Cranmer & David Pocklington, ” ‘Contested heritage’ and listing statues: new proposals from MHCLG” in Law & Religion UK, 19 January 2021, https://lawandreligionuk.com/2021/01/19/contested-heritage-and-listing-statues-new-proposals-from-mhclg/.

2 thoughts on ““Contested heritage” and listing statues: new proposals from MHCLG

  1. A couple of minor comments:

    Prescient and prophetic though Becky Clark may be, I think the date of her statement should read June 2020, not June 2000.

    Also, the word “supersede” (“if statues, specifically, are to become the subject of planning controls, that change will supersede the faculty jurisdiction.”) is misleading. Unless the detailed proposals from MHCLG were to include (unprecedented) curtailment of the faculty jurisdiction through legislation, both a faculty and planning permission would have to have been granted in order to allow the removal of a statue or monument to go ahead. If either a faculty or planning permission were refused, the status quo would continue (i.e. a statue/monument would remain).

    • I’ve corrected the typo: damn.

      Fair point about ‘supersede’: obviously, a faculty would still be required. The meaning that we intended (and clearly failed) to convey was that the issue of a faculty does not also confer planning permission – that’s entirely a matter for the planning authority.

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