A law to end decolonising debates?

Statue of General Sir Redvers Buller, Exeter, with a traffic cone placed on its head as part of traditional freshers’ week revelries. © Copyright Lewis Clarke 

Andrea Wallace, Nicola Thomas, Natalie Ohana, Freyja Cox Jensen, Nandini Chatterjee

On 8 June 2020, protestors in Bristol pulled down the statue of Edward Colston, slave-trader, dragged it through the streets, and threw it in the canal. While the protests in Bristol were largely peaceful, there were some conflicts in London and elsewhere, resulting in injuries to a small number of police personnel. In response, Home Secretary Priti Patel said that ‘tearing down of the statue was “utterly disgraceful”, adding that “it speaks to the acts of public disorder that have become a distraction from the cause people are protesting about”. Professor Ian Cook, Department of Geography, Exeter, captured the range of voices on the topic in his film Colston Falls. During these debates, members of the Decolonising Working Group in History, University of Exeter, pooled their knowledge to produce this collectively written essay on how statues of historical figures have been literally ‘de-platformed’ and the various physical and ethical solutions that have been found to deal with such toppled statues.

Last week, we were dismayed to find that the government of UK is proposing to close off the debate with a new law that will sharply raise the penalties for damaging memorials. We responded by submitting evidence to the Parliamentary Committee deliberating on the matter, working in collaboration with colleagues in Law and Geography. We are generally critical and wary of the ‘extremely wide ranging’ Police, Crime, Sentencing, and Courts Bill, which in our opinion, combines a raft of highly risky and unncessary provisions together with ones that are less controversial. There are other published criticisms of the Bill. Here, for purposes of this post, we are particularly concerned with the way one tiny section of the Bill, tucked into a mammoth text of more than 300 pages, proposes to close off debate on the place of public memorials in present-day Britain.

This is the section in question.

46 Criminal damage to memorials: mode of trial (1) In Schedule 2 to the Magistrates’ Courts Act 1980 (offences for which the value involved is relevant to the mode of trial), in paragraph 1 (offences under section 1 of the Criminal Damage Act 1971), in the first column, for the words from “any offence” to the end substitute “— (a) any offence committed by destroying or damaging property by fire, and (b) any offence committed by destroying or damaging a memorial (see section 22(11A) to (11D)).” (2) In section 22 of that Act, after subsection (11) insert— “(11A) In paragraph 1 of Schedule 2 “memorial” means— (a) a building or other structure, or any other thing, erected or installed on land (or in or on any building or other structure on land), or (b) a garden or any other thing planted or grown on land, which has a commemorative purpose.

(11B) For the purposes of that paragraph, any moveable thing (such as a bunch of flowers) which— (a) is left in, on or at a memorial within the meaning of subsection (11A), and (b) has (or can reasonably be assumed to have) a commemorative purpose, is also to be regarded as a memorial. (11C) For the purposes of subsections (11A) and (11B)— (a) references to a building or a structure include a reference to part of a building or part of a structure (as the case may be), and (b) something has a commemorative purpose if at least one of its purposes is to commemorate— (i) one or more individuals or animals (or a particular description of individuals or animals), or (ii) an event or a series of events (such as an armed conflict). (11D) It is immaterial for the purposes of subsection (11C)(b)(i) whether or not any individuals or animals concerned are or were (at any material time)— (a) living or deceased, or (b) capable of being identified.” (3) The amendments made by this section do not apply in relation to offences committed before it comes into force.

As the text of the proposed law says, this provision ‘strengthens the courts’ sentencing powers in relation to criminal damage to memorials’. It does so by amending the Magistrate’s Courts Act 1980 and the Criminal Damage Act 1971, increasing the maximum penalty from the existing 3 months’ imprisonment to 10 years, making it an offence more severe than most offences of sexual and physical violence. Women readers, please read that again. A statue of a dead slave trader is worth more than your bones.

There is some truly devious legal wizardry involved in achieving this. Since the statues or other commemorative objects may themselves be of little value (in many cases), the Bill creates new crimes out of minor property damage by endowing memorials with special value.  It is even possible to interpret the Bill as applying to all or any movable objects with a commemorative purpose (for example, a bunch of flowers) left in and around the memorial, which are also to be treated as the memorial for the purposes of the Bill. This is a very broad definition, raising the possibility of the abuse of discretion around how the definition may be interpreted, with very different outcomes. For example, if the statue of Edward Colston were still standing in Bristol, and the area around it were covered in signs with messages and flowers commemorating the lives of those enslaved, rather than the enslaver, the Bill may apply to the destruction and damaging of those movable objects. And if so, it assigns a disproportionate amount of discretionary power to the police and to magistrates to decide whether or not to enforce the law against those who damage, remove, or throw away those signs and flowers.  

To go with a draft law more than 300 pages long, the Parliament provided the public with a guidance document almost 150 pages long. Disingenuously, those explanatory notes suggest that the need for adding such a provision arose as a result of the damage caused to war memorials. (It makes absolutely no mention of Colston’s statue.) Yet even war memorials are not of equal value to all citizens, and historical memories of armed conflicts, such as the two World Wars of the twentieth century, are very different. For example, while Winston Churchill may be a hero to some British citizens, to others, such as those of Bangladeshi or Indian heritage, his legacy is tainted by the memory of the famine that wiped out one-third of the population of undivided Bengal in 1943, a famine gravely exacerbated by the policies of the British colonial administration. Realities such as these extend to many groups and communities within the UK, including even the descendants of those (for example, combatants of colour in the World Wars) whose acts are memorialised by such statues and monuments.  The Bill therefore risks privileging the opinions of some citizens, while ignoring or potentially even criminalising those of others, especially those groups who have historically suffered injustice or discrimination.

What the notes do not mention is that the changes introduced would criminalise future direct actions analogous to that of citizens of Bristol who, after more than ten years of negotiations with the local council, physically removed the offensive statue of a slave trader from the city square. This was felt to be a necessary and much-delayed action, and was carried out non-violently with no conflict with the local police. The proposed legislation would make such activists liable to criminal action and summary judgement in Magistrates’ Courts, and would make it impossible for communities to make democratic decisions about their public spaces without the permission of the local council. This extends to new signs, plaques, or additions to a memorial, such as an explanatory notice highlighting the complexity or contested nature of the memorial’s history; any such addition without official authorisation could be criminalised as ‘damage’ or ‘destruction’.  The Note cites the ‘great public concern’ demonstrated when statues and memorials were damaged in 2020, without acknowledging the far greater public concern demonstrated in response to historical injustices such as slavery, and the ongoing discriminatory experiences that served as a catalyst for these events.  With this Bill, the government prioritises the protection and maintenance of inanimate objects commemorating the morally-debatable acts of historical individuals, over the lives and rights of the citizens whose lives they continue to affect.  This move is clearly intended to be punitive and deterrent, and is entirely opposed to the progressive values of citizenship and solidarity proposed by the global Black Lives Matter movement.

As historians, geographers and legal experts in cultural heritage and memory, this is our main objection: that the Bill aims to cement in law an ‘authorised heritage discourse’ which cements the existing status quo around the memorial landscape. Indeed, under the proposed provision, any argument about the heritage aspect of a memorial becomes irrelevant; the memorial is perceived merely as property, thus eliminating the possibility of a conversation about the nature or value of a memorial.  This exacerbates the current situation, where it is clear that different groups in society hold very different views about particular memorials; currently, there exists no legal proceeding by which people can dispute the existence or position of a memorial, or its value.

A memorial landscape sets in stone the stories that a generation or group of people want to narrate about past events. In deciding what histories from past events are commemorated, these memorials become ‘heritage’ for current and future generations, and acquire a powerful authority.  However, unlike the events of the past that have happened, history, and the heritage associated with it, is always open to interpretation, holding the potential for new understandings based on historical research and contemporary perspectives from communities affected by those past events. Those who hold power and privilege often find the existing authorised heritage comforting and supportive of their values, and wish to put in place ways to protect it.

This is precisely what the Bill proposes to do: to extend the hegemony of the powerful and privileged over public history.  Silencing the right to engage in a critical dialogue about the multiple meanings of the past in the society of today and of the future – dialogue that seeks to challenge or change the histories about the past that are memorialised in our everyday life – diminishes the civic engagement and life of our communities. Criminalising this engagement also ensures that those currently in positions of power and privilege maintain the ‘authorised heritage discourse’ which results in the alienation of those who recognise competing historical narratives, often from a marginal position.

We denounce this transparently political effort to mould and enforce historical memory through law, and recommend that this section be removed in its entirety.