Contested heritage: Controversy surrounding public monuments

Controversy over statues, such as that in Bristol of Edward Colston, who was involved in the Atlantic slave trade, is longstanding. The Black Lives Matter movement has brought new focus and attention to the idea of ‘contested heritage’. The public discourse about what to do with monuments to figures who profited from or defended the slave trade (and others) has included calls for them to be removed, but there is disagreement as to whether that is the right course of action.

The removal of statues and monuments may (depending on circumstances) require planning permission, listed building consent or a combination of both.

This briefing describes existing law and policy around the UK.

The Government’s position for England: Retain and explain

In a letter to national museums and galleries (and other bodies) in September 2020, the then Culture Secretary, Oliver Dowden, argued that some statues and historical objects “represent figures who have said or done things which we may find deeply offensive and would not defend today” but play an important role in teaching us about our past, including its faults, and so should not (in the Government’s view) be removed. Oliver Dowden quoted the view of the Government’s heritage adviser, Historic England, that “difficult and contentious” parts of the historic environment should not be “erased”.

Similarly, in response to a parliamentary question in November 2020, the Government argued that the integrity of the historic environment should be upheld and objects should not be “erased”.

Other views: Diversity in the public realm

The Government’s view is not universally shared.

The race equality think tank, the Runnymede Trust, has argued that “defending” contested monuments may make some people feel unwelcome in, and excluded from, public space. The Trust has also argued that protecting all statues as if they were listed buildings is inappropriate, as statues might become irrelevant to future generations and so not require preservation for perpetuity and could (unlike buildings facing demolition) be removed intact.

Discussing the toppling of the Colston statue in Bristol in June 2020, David Olusoga, professor of public history at the University of Manchester, argued that it was not the time to defend the indefensible and that things could “never go back to how they were”. Simukai Chigudu, associate professor of African politics at the University of Oxford, has argued that Cecil Rhodes’ statue at Oriel College there is “imbued with a noxious history” and belongs in a museum. Guardian columnist Gary Younge has argued that removing statues of “pillagers, plunderers, bigots and thieves” is a good thing and that all statues of people should be taken down.

Changes to planning and listing policy in England in 2021 April 2021: Demolition of unlisted monuments requires planning permission

Depending on the circumstances, alterations to historic (but not listed) buildings may require planning permission.

In a written ministerial statement on historic statues, plaques, memorials and monuments in January 2021, the then Housing Secretary, Robert Jenrick, said that he would make the removal of any historic unlisted statue, plaque, memorial or monument subject to planning permission.

Robert Jenrick said that he would not hesitate to use his powers to call in for his own determination planning applications and appeals involving historic statues, plaques, memorials or monuments, if he considered it necessary to reflect the Government’s planning policies.

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 came into force on 21 April 2021. It applies only in England.

The Order requires anyone removing certain statues, memorials or monuments to have planning permission. This is done by exempting these from the existing permitted development right for the demolition of buildings. The exemption applies to statues, memorials and monuments which have been in place for 10 years or more on the proposed date of demolition but there are five exceptions (including a listed building, those within a cemetery or consecrated land, or within museum or gallery grounds) for categories which are subject to other regulation, to protect museums and art galleries’ curatorial independence or to ensure everyday garden ornaments are outside the new rules.

April 2021: Notification requirement for listed buildings

Depending on the circumstances, alterations to listed buildings may require listed building consent, planning permission or both.

Listed building consent (if required) is decided by the local authority, but there is a right to appeal to the Secretary of State.

In the written ministerial statement on historic statues, plaques, memorials and monuments in January 2021, Robert Jenrick said that he intended to make the alteration of listed buildings subject to the same notification requirements that apply to their demolition.

For listed buildings, the Arrangements for Handling Heritage Applications – Notification to Historic England and National Amenity Societies and the Secretary of State (England) Direction 2021 (139KB, PDF), issued in April 2021, sets out the notification requirements.

July 2021: Revised National Planning Policy Framework

A revised National Planning Policy Framework (NPPF) was launched in July 2021. In its chapter on conserving and enhancing the historic environment, the NPPF describes heritage assets as “an irreplaceable resource [which] should be conserved in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations”. It leans towards retaining historic statues, plaques, memorials or monuments in situ and explaining their context, rather than removing them, but does not prohibit their removal.

In a written ministerial statement on 20 July 2021, Robert Jenrick said that one of the policy changes in the NPPF was an “emphasis of the importance of retaining and explaining the historic and social context of historic statues, plaques, memorials or monuments rather than removing them”.

Criminal damage: the Police, Crime, Sentencing and Courts Bill

The Government has also proposed taking steps beyond planning and listing measures, to preserve contested heritage.

For criminal damage offences, if the damage is valued at £5,000 or less, the case can currently only be tried in the magistrates’ court and is subject to a maximum sentence of three months’ imprisonment. The Police, Crime, Sentencing and Courts Bill would remove this monetary threshold for cases involving damage to memorials. This would increase the maximum available penalty for criminal damage to a memorial from three months to 10 years’ imprisonment, regardless of the financial value of the damage.

The Home Office argues that this will enable the courts to “deal more effectively” with damage to memorials and statues.

The Runnymede Trust, though, has said that criminal justice measures will become more punitive with the Bill’s provisions. The Trust has described the move towards harsher sentencing as “particularly worrying, given the lack of avenues available for contesting statues in public space”.