Edward Colston: Listing Controversy

By Prof Antonia Layard, Professor of Law (University of Bristol Law School)

The toppling of the statue of Edward Colston has made the front pages of newspapers all over the world. “Hooray!” read an email from an Australian friend the next morning, “I’ve just been enjoying reading and viewing the pushing of that vanity statue of a slave trader into Bristol waters and thought of you and my brief stay in Bristol. What a great moment in the history of your city. Took far too long but at last the day arrived”.

As many more now know, Edward Colston (1636-1721) was the son of a prosperous Bristol merchant who after an apprenticeship with the London Mercers’ Company in 1654, established a successful business in London, trading with Spain, Portugal, Italy, and Africa. In 1680 he became a shareholder in the Royal African Company, which had a monopoly on trade with Africa until 1688, after which it received fees from English traders. Colston took a leading role in the Company, serving on several committees, becoming deputy governor in 1689. The RAC is estimated to have transported around 84,000 African men, women and children, who had been traded as slaves in West Africa, to the Caribbean and the rest of the Americas, of whom 19,000 died on their journey. Thousands who arrived had the initials “RAC” branded on their chests. In 1863, Colston was both elected a free burgess of the city and became a member of the Society of Merchant Venturers, enabling him to trade out of Bristol before towards the end of his life becoming an MP for Bristol (1710-14), despite living in Mortlake in Surrey.

Having carefully researched the remaining sources, historians have concluded that, however cautious our wording, “the truth is”, Madge Dresser explains, “that Edward Colston was directly involved in the slave trade. He was an official in the Royal African Company, the company which until 1698 possessed the British monopoly on the slave trade. This fact was established by H. J. Wilkins, a Bristol vicar who wrote a well-documented study in the 1920s”. Even the Society of Merchant Venturers note that: “there is no doubt that Edward Colston profited, directly or indirectly, from the slave trading conducted by the Royal African Company”.

This week’s removal of Colston’s statue has provoked both local approval and condemnation. For thousands of Bristolians the intervention reflected a sense of exhaustion with official processes, particularly since the failed attempts to get a second plaque describing Colston’s acts in even mild prose. National commentators have been equally sympathetic. Robert Shrimsely writing in the Financial Times observed that, “Colston’s survival until now validates the arguments made by BLM protesters. He should have been an easy call … Why would any city want to honour slavery?” Of course, not all agree. Richard Eddy, a local Conservative councillor and frequent critic, hails Colston as a “hero”, reporting that he and his constituents are “outraged” by Sunday’s removal.

The Statue

Commissioned by a committee organised by Bristol printer and publisher J. W. Arrowsmith, the bronze statue was sculpted by John Cassidy of Manchester on a pedestal of Portland stone. Even then, this Victorian commemoration was not all that successful. Historians tell us that financial contributions were so unforthcoming that an anonymous benefactor (probably Arrowsmith himself) had to pay the final amount. Unveiled by the Lord Mayor of Bristol on 13 November 1895, the statue was erected 170 years after Colston’s death.

In 1977, the statue was listed as a grade II building (No. 1202137). This is the lowest category of listing, identifying it as a building “of special interest, justifying every effort to preserve them”. Historic England describe the inscriptions on the south face of the base – ‘Edward Colston / Born 1636 / Died 1721’ – noting that “To each corner of the pedestal, a bronze dolphin (dolphins feature on the Colston family crest), and on each face, a bronze plaque with Art Nouveau-style relief. On the south face, the words ‘Erected by / citizens of Bristol / as a memorial / of one of the most / virtuous and wise sons of / their city / AD 1895’ and ‘John Cassidy fecit’. On the west face, Colston dispenses charity to poor children; on the north he is shown at the harbour; on the east is a scene with marine horses, mermaids, and anchors.”

Historic England gives three reasons for Colston statue’s listing:

• A handsome statue, erected in the late C19 to commemorate a late C17 figure; the resulting contrast of styles is handled with confidence;
• The statue is of particular historical interest, the subject being Edward Colston, Bristol’s most famous philanthropist, now also noted for his involvement in the slave trade;
• Group value with other Bristol memorials: a statue of Edmund Burke, the Cenotaph, and a drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893.

Altering the designation at the time of the Bicentenary commemorations of the 1807 Abolition Act, a final, fourth, paragraph was added, acknowledging Colston’s involvement with the slave trade. The changes also added to the third justification for designation including the words now also noted for his involvement in the slave trade (though it is difficult to see how this is a justification for listing).

Listing, says the Department for Culture, Media and Sport, “is a celebration of special architectural and historic interest, and plays a vital part in safeguarding this legacy”, protecting “a diverse range of buildings and structures, from palaces to barns, tombstones to skate parks, sculpture to cinemas”. Once listed, s7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes restrictions on works, requiring authorisation to alter, extend or demolish the listed building if this would affect its character as a building of special architectural or historic interest. Alteration, extension or demolition (s8) can all happen with consent but there is no express provision (perhaps inevitably) for moving a sculpture. When deciding whether to grant consent for a change, the Secretary State (or planning inspectors acting on his behalf), the Secretary of State or anyone acting on his behalf must have special regard to the desirability of preserving listed buildings, their setting or any special architectural or historical features they possess before making a consent order (s26F P(LBCA)A 1990).

Listing controversy

There are a number of problems with the listing process here. One is that a statue is not a building, making the legislation an awkward fit. The practice of listing objects as buildings was recently reviewed in the Supreme Court in Dill v Secretary of State for Housing, Communities and Local Government & Anor [2020 UKSC 20], which considered the listing of a pair of early 18^th century lead urns resting on limestone pedestals. The urns’ owner had sold them, not realising that they were listed and failed to obtain retrospective listed building consent, thereby inadvertently opening himself up to criminal proceedings. While the Court of Appeal held that listing was conclusive: “being on the list is determinative of the status of the subject matter as a listed building” [2018] EWCA Civ 2619 at [33], the Supreme Court concluded that these are questions of fact to be considered by the Secretary of State or his representatives. Lord Carnwath, in one of his last cases sitting in the Supreme Court, delivered a unanimous judgment noting the lack of reliable guidance on this point. He held that:

“This case has revealed a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities, not only in this instance but more generally, in determining whether free-standing items such as these are regarded as qualifying for listing protection, whether as “curtilage structures”, or as separate “buildings” as in this case” [28].

After five years of dispute and litigation, all the Supreme Court could do for Mr. Dill was to ask the Secretary of State to reconsider the listing, which was always, the court confirmed, a question of fact, whilst also asking the local authority to give “serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further” [60].

By implication, if the Colston statue was not a building, should it have been listed at all? Many statues are protected in this way. English Heritage explain in their Commemorative Structures: Listing Selection Guide that: “Public statuary enjoyed a Golden Age during Victoria’s reign”, including the 1890s when the Colston statue was produced. While statues might be scheduled as monuments, this doesn’t allow any gradation (between Grades 1, 2 and 2*) and any change in the form of protection would require a substantial policy shift.

Another difficulty with listing statues is that listing is ostensibly in perpetuity, focusing on preservation (we have not followed ancient practices of melting down statues to reuse any valuable metals). It is possible to de-list buildings with the permission of the Secretary of State (and English Heritage) – it is not clear whether this Council ever attempted to do so. Yet such a move would have required the Council to show that there was “a lack of special historic interest”, illustrating “important aspects of the nation’s history and/or … closely substantiated historical associations with nationally important individuals, groups or events … [so that the statue] itself in its current form will afford a strong connection with the valued aspect of history”. This may well have been felt to be implausible – after all, there are many historical associations with the sculpture, just not ones we’d want to honour today.

Contested Heritage

This points to a third problem with the current listing process. Statues of named individuals aren’t necessarily notable for their architectural or historical interest. A statue is a representation of a person, designed to honour them. As Samantha Gould’s petition to take down Colston’s statue (which gathered thousands of signatures in support in the week before the protest) explained:

“Whilst history shouldn’t be forgotten, these people who benefited from the enslavement of individuals do not deserve the honour of a statue.

This should be reserved for those who bring about positive change and who fight for peace, equality and social unity.”

A statue honours a particular individual in a way that a building (with rare exceptions, such as the Taj Mahal) does not. Protecting a person’s reputation in perpetuity is a bold step.

Historic England understand these debates well, encouraging “open debates” rather than to develop a policy for de-listing statues whose time has gone. They have prepared educational materials freely available online asking “Are we right to commemorate the life of a slave trader?” Writing under a picture of a monument to resistance fighter Edith Cavell, the organisation also asks Why do memorials matter?

“The urge to capture memory makes us human. To remember and understand our past, our loved ones, our ancestors, our collective experience, is what grounds us and gives us identity. For millennia, we have celebrated and mourned, marked and memorialised. Through stories and song, place and ritual, art and architecture, we have passed down what matters to us. It is our way of helping people and events live on in our memory. It is how we make them immortal.

When we memorialise an event in stone, carve names into marble, honour people in bricks and mortar, or shape bronze into human form, it is an act of public remembrance. England’s memorials and statues can tell us what mattered to people. From grand men who tower above us in our towns and cities, to humble war memorials in the smallest of villages that speak of a nation’s grief, to gold post boxes on suburban streets that surprise and delight.”

The question becomes “who decides who and how we remember?” as Historic England explain in the video for their 2018 exhibition Immortalised. Erecting a statue requires an element of choice. Not everyone can be honoured. Selections are inevitably influenced by the motives of the donors as well as by the attributes of the person being commemorated, particularly when the statue comes many years after the person’s death.

Local Context Matters

And here comes the fourth problem with listing. Listing and consent must take into account the immediate setting, as Lord Carnwath implicitly confirmed in Dill where the house where the urns were kept was itself listed:

“It is not enough that an object may be of special artistic or historic interest in itself; the special interest must be linked to its status as a building. That is implicit in the reference to “architectural” interest. But it is relevant in my view also to the concept of historic interest. The historic interest must be found not merely in the object as such, but in its “erection” in a particular place.”

In addition to setting, group value provides a justification for designation. In Colston’s case group value was accorded as it stood on (what has become) a reasonably-sized traffic island close to an unlisted drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893 and  the statue of Edmund Burke, an infrequent visitor yet MP for Bristol (1774-1780). Burke’s statue was erected nearly a hundred years after his death on behalf of Sir H J Wills (one of the two brothers who built the Wills Memorial Building to honour their father Henry Overton Wills) and does not mention group value with Colston.

So while group value, site and setting are clearly influential, there is nothing in the national listing process, in legislation or policy documents, that points to locality as a site of decision-making, acknowledging the spatial, social and political context in which a statue exists. Even the practice by some local planning authorities of drawing up local lists of valued buildings (including Bristol) has frustrated some planning experts, as such lists have no formal legal protection. As Martin Goodall writes: “The reason for my irritation is that we have a well-established statutory system in this country for the formal listing of buildings of architectural or historic interest on a national basis. These are buildings which are objectively assessed by English Heritage as being of architectural or historic interest and which are then included by the Department of Culture Media and Sport (DCMS) on the statutory list under the Planning (Listed Buildings and Conservation Areas) Act 1990”.

This legal focus on a single national set of criteria requires us to consider whether inclusion on the list can ever be justified by objective criteria. Listing routinely makes reference to the building or object’s site and setting and occasionally, in recent years, has taken into account a locality’s social, cultural or political setting. When English Heritage listed Kevin Atherton’s sculptures Platforms Piece on the platforms at Brixton Railway, the second justification for the designation is that: “Cultural importance: a celebration of the cultural identity of Brixton, home to a significant Afro-Caribbean community in post-war Britain, and commissioned following a period of unrest”. While planning lawyers are undoubtedly correct to say that the legal framing appears to indicate that there are objective criteria for listing (and, presumably, de-listing) in practice these are site-sensitive decisions, which increasingly draw not only the immediate environs of a statue or sculpture but the local society itself. In Bristol, this raises questions: Would a statue to Edward Colston be erected today? No. Would a statue of Edward Colston be listed today? Unlikely. So why should we carry on preserving a statue of Edward Colston today?

Colston in Bristol

There are then strong arguments that these should be local decisions, that de-listing should not depend on the agreement of the Secretary of State or his representatives. Erecting statues, and to a lesser extent the listing process, are acts of imagination – formulating the argument for why him, underpinning an imaginative geography of city itself as a place benefitting from Colston’s philanthropy with fine historic institutions – rather than understanding a city with so much work to do to come to terms with its past.

There was a time when the “cult of Colston”, as Reverend H J Wilkins called it in the 1920s, prevailed. There are still at least eight streets named after the trader (Colston Avenue (BS1), Colston Dale (BS16), Colston Parade (BS1), Colston Road (BS5), Colston Street (BS1), Colston Street (BS16) as well as Colston Hill (BS16) and Colston Yard (BS1). A high rise office building, the Colston Tower was completed and named in 1973, as well as two schools – Colston’s and Colston Girl’s School. Colston’s Almshouses are a grade 1 listed building founded by the trader in 1691, while Bristol Cathedral’s largest stained glass window commemorates him too. Days are given over for some to honour Colston, leading to an anomalous situation in 2017 when the Bristol Post reported that: “On the same day St Mary Redcliffe Church was illuminated to mark Anti-Slavery Day, they held a service commemorating slaver trader Edward Colston”. Children attending their school’s Charter Day service are given Colston buns (made of a yeast dough flavoured with dried fruit such as currants, candied peel, and sweet spices), while for many years the Thanksgiving Day apparently included a visit to ‘pay homage’ to Colston’s crypt in the former All Saints Church. There are even still rumours that Colston’s hair and fingernails are preserved at the Society of Merchant Venturers’ Merchant’s Hall.

Undoubtedly Marvin Rees is right to say that statues are only one part of a much larger problem with racial inequality within Bristol. Yet it is also evident that racism is built into the urban fabric of the city. Institutions and buildings are already reviewing their options looking at the possibilities of renaming. The streets should be next. Naming is a Council power (under the Town Improvement Clauses Act 1847 (Section 64 & 65) and the Public Health Act 1925 (Section 17, 18 & 19)). New names for streets should, the Council say, “be distinct and reflect the local history or geography of the site surroundings”, for new streets, they welcome “proposals to name streets after people connected with the locality”, though such proposals “will only be considered if the person to be commemorated is deceased.” This may limit opportunities to name Bristol streets after Paul Stephenson or other activists for race equality. It might also, however, unearth new names that most Bristolians have not yet heard of, people they would be proud to associate themselves with. (Opponents may like to know that under s18(4) of the Public Health Act 1825, “Any person aggrieved by the intended order of the local authority may, within twenty-one days after the posting of the notice, appeal to a petty sessional court” (today, the Magistrates). When a street-naming dispute came to court, in Basildon BC v James [2015] EWHC 3365 (Admin), however, Garnham J. held that “There can be no doubt that it is the council who makes the primary decision”). Street names – with their required signage – may feel like a minor step, yet they forge gridlines through the city, heightening narratives of daily life.

With quite some understatement, David Olusoga writes in the Guardian that: “The fact that a man who died 299 years ago is today on the front pages of most of Britain’s newspapers suggests that Bristol has not been brilliant at coming to terms with its history.” While this may have been news to readers outside the city, within Bristol the frustration with the statue was enormous. These are critical political questions. For as Olivette Otele asks: who should control the representation of local history? Writing of a 1999 exhibition at the Bristol Museum on Bristol and the Slave Trade, she notes that “representation of the past is often constructed on various layers of contested or shared meanings”, particularly in Bristol where we are attempting to “recognise a past that was indeed painful for a part of the minority community but that was a source of great wealth for the ‘Fathers of the City’”.

There have been some long awaited changes, not least reflecting the views of the children at Colston-associated schools. A state primary changed its name to Cotham Garden Primary in 2018, and worked with arts and education organisation Journey to Justice to devise a second plaque for Colston’s statue as part of a Council-supported accompanying history programme. Colston Tower’s name is apparently under review as is the Colston Girls’ School (which declined a name change a few years ago). The Colston Hall, owned by Bristol City Council and managed by Bristol Music Trust, is due to change its name later this year (Bristol locals Massive Attack are only one local band who have always refused to play in the venue). Admittedly, once again, Councillor Richard Eddy  rejects these alterations, calling the re-naming of the concert venue a “disgraceful craven announcement … [which] represents nothing less than an abject betrayal of the history and people of Bristol”.

Whether or not we agree that the statue was taken down in the best manner, it is undeniable that frustration built over many, many years, both inside and outside the Council, not least over the interventions by the Society of Merchant Venturers. This is a Bristol problem, which should have been handed over to local decision-makers long ago – a delegation that listing law and practice does not permit. Banksy, who has long used location to give his murals meaning, painted The Mild Mild West in Stokes Croft, a piece much loved by locals. It depicts a fluffy teddy bear carrying a Molotov cocktail, approaching police carrying riot shields. As one interviewee reflecting on the mural explained to The Telegraph : “Maybe because it’s a kind of comment on an aspect of the Bristolian character – a laid-back cider-drinking hippy who can nevertheless be roused into action. Fluffy but defiant”. It is very rare for Bristolians to react but this may be one such form. True to form, Banksy has already responded on Instagram with a suggestion for how to commemorate the event, designing a new statue to incorporate both Colston and his removal. For those living in the city, however, it is unimaginable that the statue might return

We have yet to see whether prosecutions for criminal damage or public order offences may follow. It seems unlikely that there would be enforcement proceedings under the Listed Building legislation not least because the local authority would bring such action (under s38 P(LBCA) 1990) and while ownership of the statue itself is legally uncertain, the land on which the statue stood is owned by the Council itself. If criminal damage actions are brought, which still seems possible, then trial by indictment could be awkward if the jury were selected from Bristolian peers.

The day after the removal of the statue, English Heritage announced that they no longer wished to make decisions with regard to the statue, saying that:

“Edward Colston’s statue in Bristol has long been the focus of debate due to his involvement in the slave trade and we have been engaged in local conversations about how it could be re-interpreted to tell the full story. We recognise that the statue was a symbol of injustice and a source of great pain for many people.

Whilst we do not condone the unauthorised removal of a listed structure, we recognise and understand the emotion and the hurt that public historical commemoration can generate and we encourage Bristol City Council to engage in a city wide conversation about the future of the statue. We are here to offer guidance and support but believe the decision is best made at a local level – we do not believe it must be reinstated.”

This position should have been reached long, long ago. A listing process that equates a statue with a building, protecting it in perpetuity unless de-listed, does not accord with either the politics of representation or the qualities of a sculpture of a named person. A statue encapsulates the power dynamics of a particular moment in time but may – in a particular context – be long gone. One of the criteria in assessing whether an object might be a building is its weight. As pictures of Colston’s removals show, he was not particularly heavy and could be lifted. The legal weight of listing is more significant here – the weight it gives to the status quo, providing a defence for those who might not want to remove representations.

As legal geographers explain, context matters to legislative processes. Were a national Commission to be drawn up to debate which statues should stay and which could go, there is a possibility that local context would once again be overlooked. Statues are part of their environment, affecting the people who walk by them every day. It is certainly the case that some localities might choose to keep some statues others might want to reject and not all would agree, as the arguments raging over Winston Churchill, William Gladstone or Baden Powell’s statue all illustrate. While this is undoubtedly a rather niche point in the broader fight for racial equality, the law of listed buildings should be overhauled. Local context matters. Statues were never designed to be objective and their protection should not be either. We can no longer imagine – legally, if not in practice in the work of English Heritage and others – that listing or scheduling are objective, neutral practices based on clear architectural or historical criteria.

We all have work to do. The University of Bristol has acknowledged that 85% of the wealth used to found the institution depended on the labour of enslaved people. The university logo and crest include Colston’s dolphin as well as the Wills family’s sun. There are other names and visual representations that give great offence, not least Goldney Hall and the Wills building itself. As an educational institution committed to decolonising our own practices and the city, we must work collaboratively to move forward to decolonise the city and our institutions.