Listing Controversy II: Statues, Contested Heritage and the Policy of ‘Retain and Explain’

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

“Edward Colston by John Cassidy, 1895” by mira66 is licensed under CC BY-NC-SA 2.0

[This article is a follow-up to an earlier one by the same author]

Seven months after the removal of Bristol’s statue of Edward Colston in June 2020, the Secretary of State for the Ministry of Housing, Communities and Local Government is concerned. Writing in the Sunday Telegraph on January 18th, Robert Jenrick argued that “We will save Britain’s statues from the woke militants who want to censor our past”, claiming that “Latterly there has been an attempt to impose a single, often negative narrative which not so much recalls our national story, as seeks to erase part of it. This has been done at the hand of the flash mob, or by the decree of a ‘cultural committee’ of town hall militants and woke worthies”.

The Secretary of State does not mention Bristol in the piece, though in his statement to Parliament the next day he remarked that “the removal of a statue in Bristol was an act of criminal damage”. It has certainly been treated as such. So far, six people have accepted a caution while four more are being prosecuted for criminal damage.  Another man (from outside Bristol) was sentenced for sending abusive messages about the removal of the statue to Marvin Rees, the Mayor of Bristol.

Rather than acknowledging these prosecutions, however, Robert Jenrick’s statement makes it clear that he would be in favour of keeping statues of ‘those who built their wealth’ on the ‘transatlantic slave trade’:

‘Some of the individuals we have esteemed in statuary, such as Colston or Rhodes, are figures who have said or done things that we may find deeply offensive and would not defend today. Although we may now disagree with those figures, they play an important role in teaching us about our past with all its faults. We are all products of our times, and our attitudes, beliefs and values often reflect the age in which we live. Some of the values of earlier centuries look bizarre through the lens of 2020, but that brings us to the current debate about whether we should be removing statues of—usually—men who were esteemed and well regarded in the past, but who by today’s standards and values built their wealth and fame on things we now find morally repugnant, such as the transatlantic slave trade.’

This is now the Government’s position, coming during a third lockdown when almost all are confined to their homes. The statement provides a strong commitment to a small number of statues designed to honour men, including Robert Milligan and Sir Robert Geffrye, who, like Colston, were widely acknowledged to have made money from the trade in human beings before being later honoured to reflect their philanthropic donations.

Local v central decision-making

The Secretary of State’s Parliamentary statement informs us that new legislation and Directions (still to be published) will come into effect in the Spring. The statement contains a curious tension between local and central decision-making. On the one hand, Jenrick says that decisions to remove heritage assets owned by a local authority, ‘should be taken in accordance with its constitution, following consultation with the local community and interested parties, and the rationale for a decision to remove should be transparent’. This appears to mean, the decision to apply for permission to remove the heritage assets, as local authorities cannot unilaterally decide to de-list a statue even if they wanted to, if either English Heritage or one of the ‘National Amenity Societies’ object, then the application requires the Secretary of State’s consent. ­­The system of listed building, planning, conservation and scheduled monument decision-making (the system is extraordinarily complex) already has a strong thread of centralism, created both by the legal framework as well as policy interventions including the National Planning Policy Framework (NPPF) and planning practice guidance, both of which are ‘material considerations’ in planning decision-making.

Despite this nod to localism in his Parliamentary statement, then, elsewhere the statement tends towards still greater centralisation. From now onwards, said Jenrick, the rules for notification requirements for Grade 1 and Grade 2 listings are to be joined up. Changes to Grade II listed statutes (such as Colston) are to be classed as demolitions not just alterations. If states are unlisted, they are to be covered by the planning regime with similar notification requirements, subject to a ‘call in’ by the Secretary of State where he thinks this is ‘necessary to reflect the Government’s planning policies’ notably, the new policy of ‘retain and explain’. Jenrick is emphatic that local decision-making will be limited if statues are listed: ‘Historic statues, plaques, memorials and monuments should not be removed before a decision on the application is made’.

Implicit in Jenrick’s writings, particularly in the Sunday Telegraph piece, is that removing statues is an unpopular move within local communities. Yet the only item of evidence to support the suggestion that ‘cultural committees’ or ‘woke worthies’ are going against local wishes, is a single graphic, illustrating that 65% of respondents voted in favour of a motion to keep the statue of Winston Churchill in Trafalgar Square (albeit without context for the poll or information about its sampling method, timing or location – students please take note of these methodological flaws).

What happens, then, if a local authority applies to de-list or remove a statue, with community consent? One of the abiding mysteries in Bristol is why the Council never applied to de-list or remove the monument before 2020, a move that would – it would seem, though now we will never know – have gained widespread public support. Yet suppose a council did consult on removing a statue in the requisite way, perhaps proposing placing the removed statue in a museum with a full explanation (as will happen to Colston). Were central government or English Heritage to disagree, the statue would have to be kept in place. Would such a decision be plausible? Legal remedies would certainly be limited. A local authority could appeal a refusal to de-list or a refusal of planning permission to remove, with the determination made by a planning inspector in the normal way, yet with ‘retain and explain’ now part of planning policy it would be hard for the local authority to succeed at law. Politically, however, such a going against local opinion to insist on retaining the statue in situ even explaining the context would be a bold (even courageous?) centralising move.

‘Retain and Explain’

Introduced by way of a statement in Parliament in September 2020, the Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport, Matt Warman, set out what has become the official justification of the ‘retain and explain’ policy. As he said:

‘we believe that our history shapes us and that we are poorer if we seek to deny that history. We believe that the right approach to statues, however contentious, is to retain and explain their presence.

… Being commemorated in a public space, often funded by public consultation, is a positive way to acknowledge the contributions individuals have made to their communities and to the nation, and, as we look on those statues, we learn important things about the society that put them up.

… the back story of some of those individuals and their place in history is ridden with moral complexity. Statues and other historical objects were created or obtained by generations with different perspectives and different understandings of right and wrong.

… As a confident and progressive country, we should face that difficult fact squarely. We should not wipe them from the history books. Historic England, the Government’s adviser on the historic environment, agrees, arguing that if we remove difficult and contentious parts of our heritage, we risk harming our own understanding of our collective past. Rather than erasing these objects, we should seek to contextualise or reinterpret them in a way that enables the public to learn about them in their entirety, however challenging that may be. The aim should be to use them to educate people about all aspects of Britain’s complex past, for better or worse. Put simply, th­e Government want organisations to retain and explain, not remove, our heritage.’

In December 2020, Historic England updated its own advice, now including ‘retain and explain’:

“Our stance on historic statues and sites which have become contested is to retain and explain them; to provide thoughtful, long lasting and powerful reinterpretation that responds to their contested history and tells the full story. New responses can involve re-interpretation, added layers and installations, new artworks, displays and counter-memorials, as well as intangible interventions, such as education programmes. However, the decision-making body in this situation is usually the local planning authority, so this advice is designed to help those authorities to make a balanced decision. Proposals may of course also involve change such as the addition or replacement of an interpretative plaque on a statue. All such decisions need clear justification.”

Again, in English Heritage’s words, we can see the tension between local and central decision-making. Writing to Arm’s Length Bodies in September 2020, however, Oliver Dowden, Secretary of State for Culture, Media and Sport was emphatic: ‘the Government does not support the removal of statues or other similar objects’ (his underlining). The next section could not have been any clearer:

‘As set out in your Management Agreements, I would expect Arm’s Length Bodies’ approach to issues of contested heritage to be consistent with the Government’s position.  Further, as publicly funded bodies, you should not be taking actions motivated by activism or politics.  The significant support that you receive from the taxpayer is an acknowledgement of the important cultural role you play for the entire country.  It is imperative that you continue to act impartially, in line with your publicly funded status, and not in a way that brings this into question. This is especially important as we enter a challenging Comprehensive Spending Review, in which all government spending will rightly be scrutinised.’


Timing is Everything?

There are many statues where we could, and should, have important and useful discussions. But do we really want to be a country that continues to keep statues in place honouring men who benefitted from the slave trade? How does this sit with Great Britain’s (contested) narrative that it worked to end the slave trade after 1807? Colston was, Madge Dresser explains, ‘a divisive figure in his own day, as he imposed his autocratic Tory and High Church views on all those who hoped to benefit from his charitable bequests’. His statue could not even raise funds at the time it was proposed 170 years after his death, it is supposed that the proposer, publisher J.W. Arrowsmith, contributed the missing funds himself. Should such statues stay in pride of place forever (even with an explanation)?

Lawyers Hodge, Jones & Allen wondered aloud last Summer whether Colston’s statute itself might be illegal. Their suggestion rests on a claim that the statute breached Section 5(1)(b) of the Public Order Act 1986 so that the statue itself is a visible representation likely to cause members of the black community alarm or distress. Alternatively, the solicitors continue, might the statue now amount to a breach of the peace, likely to provoke a reaction, cause a disturbance and so amount to a breach of the peace (citing R v Howell [1982] QB 416)?

Whether or not a statue as a breach of the peace or public order is legally plausible, this line of thinking prompts an alternative approach. If the casting of Colston cannot itself cause a breach of the peace, would the situation be any different if the statute came alive? Could a walking, talking Colston be prosecuted for their actions in 2021?

Hold on, say critics, we must remember context. Yet there is no limitation period for crimes, the six-month restriction applies only to summary offences (triable in the magistrates’ court), which must be brought within 6 months. While freedom of speech would cover many complaints made of other statues today, statues of those involved in slavery, would be more vulnerable on such a prima facie test. The Government’s document on Transparency in Supply Chains etc. A practical guide tells us very clearly that: ‘banks or financial institutions may be involved in facilitating financing from or supporting cases of modern slavery and bonded labour in operations or supply chains or through money laundering.’

If – just as a thought experiment – a statue that came to life could be prosecuted of a modern criminal offence, do we really want to justify keeping a representation honouring the person in this way? Just because someone has been crafted into marble, stone or bronze, do we want to keep honouring them in situ if their actions would almost certainly constitute a crime? As Lord Browne remarked when the issue was debated in the House of Lords: ‘The erection of a statue is not an objective act, but a subjective judgment of an individual’s historical contribution.’ Statues are not neutral.

Such a commitment to keep statues to men who profited from trade in human beings is a very odd claim to maintain, as well as a particularly strange political hill to die on. Perhaps it focused group well. Criminality seems a practical litmus test to divest ourselves of the most contentious statues in our cities. Moving such statues to museums, stripping them of their often prime position, would seem far more appropriate than a universal policy of ‘retain and explain’.

Statues in Place

The argument that statues should stay in place, contextualised where they have stood, misses a key aspect: location. In her research, Caroline Criado-Perez found only 25 statues of around 12,000 statues and monuments represent a mortal, non-royal woman (we have Queen Victoria to thank for a better ratio if royal women are included). Meanwhile, there are 498 statues of non-royal historical men, including, she notes, 43 of men called John (more than those 25, even with the number slowly creeping up). It was this broader argument about representation which seemed to derail Baroness Barran when putting the Government’s ‘retain and explain’ policy to the House of Lords in October last year, agreeing with Lady Blackwood’s suggestion that statues celebrating the achievements of Dorothy Hodgkin, Ada Lovelace and Jocelyn Bell Burnell would all be welcome.

Yet this broad consensus that we need more statues often stumbles on the problem that many of the best locations are already taken, with male statues dominating public spaces. The Mayor of London’s new Commission for Diversity in the Public Realm, aims to develop a ‘pan-London approach to the visual public realm or to who is portrayed within it’. It was prompted in part by Criado-Perez’s successful campaign to have a statue of Millicent Fawcett, leader of the National Union of Women’s Suffrage Societies, the non-militant and largest suffrage group in Britain, installed outside Parliament. If we are siting new statues, including of women, should we ‘retain and explain’ statues of men who profited from the slave trade when looking for locations? Surely, these few sites at least could be given over to others we now wish to honour.

Whether people find moves to diversify the public realm exciting, sad or even boring (art by committee?) will to a large extend depend on attitudes to change. Many people are deeply attached to local and national statues, including the lions in Trafalgar Square, the dinosaurs in Crystal Palace or Eros in Shaftesbury Avenue. Elsewhere opinions are divided. While some praised the new representation of Mary Wollstonescraft in Newington Green, Susan Harrison’s interpretation of the writer seeing her statue for the first time captured the widespread consternation following the unveiling. Sometimes, of course, we do not want authenticity. The debate about replacing the Natural History Museum’s Dippy, a plastercast of a dinosaur beloved by generations of children, with an actual, painstakingly preserved skeleton of a blue whale, one of our Blue Planet’s greatest mammals, was a contentious one in many households (including mine) pitching nostalgia against science.

Local statues for local people

Knowing when to change a name or remove a statue is – I would suggest – a local decision where opinions, however robust, can be heard. These decisions should not be premised on a presumption in favour of preservation in situ, with or without an explanation. Robert Jenrick was quoted as displeased that a primary school had removed William Gladstone from its name, saying that the ‘name change is an attempt to distort history’. Yet this was following an unfavourable Ofsted report, often a prompt to change a school’s name to start afresh. The new name chosen was The King’s Church of England Primary Academy. When the students at Colston Girls’ School in Bristol voted to change their establishment’s name (with the support of their Merchant Venturer sponsors), they selected the sedate ‘Montpelier High School’ as best representing their school. Such modest changes are meaningful to those who work and learn at the schools. Even the example chosen by Robert Jenrick to illustrate his Sunday Telegraph article, ‘Humanity Close’ in Birmingham, does not seem particularly woke in these days of communities and streets pulling together by door-knocking and WhatsApp groups. Does central government or English Heritage really want oversight of, and the ability to prohibit, such localised alterations?

While many Bristol eyebrows were raised when artist Marc Quinn installed a new statue on the plinth overnight, one consistent response was: a London-based artist came to Bristol – home to imagination, open air spectacle and DIY originality – to put a statue on the plinth without consultation? The intervention demonstrated a remarkable lack of understanding of our often imperfect, and sometimes fractious, but undoubtedly creative city. Similarly, it is local authorities working alongside local historians who have a depth and reach of knowledge that cannot easily be replicated by centralised organisations (for Bristol experts see here, here and here). Historic England’s statement can be seen as more sensitive to the need for local decision-making than either of the interventions by the Secretaries or State.

To argue for ‘local’ statues need not mean parochial statues. Communities and local authorities are only too aware of geographical networks and connections, ‘the local’ draws on national, regional and global connections. This, precisely, was the objection to Colston. He may have donated much of his money to be spent philanthropically in Bristol for the benefit of those who subscribed to his values but, as even the final version of the corrective plaque acknowledged, ‘A significant proportion of Colston’s wealth came from investments in slave trading, sugar and other slave-produced goods’. The global and the local are woven together, so that, in Doreen Massey’s words, space forms ‘a simultaneity of storiessofar’. We should not fear local judgements on statuary, this is to underestimate both people and places. One particularly successful representation of local place is Cardiff’s ‘People like us’ at Mermaid Quay in Tiger Bay, a stunning statue, beautifully conceived. Contexts change, and statues can reflect those alterations sensitively and with imagination.

We now widely agree that neither heritage nor history are static. Yet space too is not fixed, a capacity we should recognise in both regulation and policy. When prime locations for statues are at a premium, we should not be afraid of circulating or removing embodied honorifics if local communities no longer desire them. After all, this was often the practice of the Ancient Greeks. We would not destroy statues or melt them down but perhaps display them, contextualised in a museum, or if they are simply dull, remove them to a store cupboard in case a future generation wishes to revive them. The alternative is to fix contentious decisions in perpetuity. If Hackney citizens wanted to remove the Mary Wollstonecraft statue at a later date, is it  now to stay in place forever, perhaps subject to ‘retain and explain’ that the design decision was made by a committee from an ultimately small pool consisting of only one male and one female artist? This seems a dogmatic starting point from which to make decisions. And in the case of statues honouring men who made philanthropic donations from the proceeds they received from the trafficking of human beings, it seems quite extraordinary that this is where in 21st Century Britain, we wish to make our mark.

The Weight of History

The most mystifying aspect of the Colston statue remains obscured. Why did it take so long? Specifically, why and how were the Merchant Venturers able to exert such influence over the wording of the corrective plaque drawn up by local school children working with a highly esteemed historian? There was some uncertainty about who owned the statue, though the land it stood on belongs to the Council. Perhaps this doubt provided a discursive space. Certainly, the Merchant Venturers Trust, large landowners and managers of the three institutions that bear Edward Colston’s name, are involved in city decision-making in ways that are difficult for non-members to understand. Today, even they agree that the Society should not have been so involved in the wording of the corrective plaque. Nevertheless, inside information on this is unlikely ever to be fully publicly available and the disagreements are deep. For now, the plinth stands empty, the Council preparing (slowly, carefully and consultatively) for what comes next.

To some extent, the Secretary of State’s 2021 proposals for a transparent, clear process for de-listing statues and removing them to other locations where appropriate, could improve the situation. Planning permission is generally required for new statues (granted for Virginia Woolf but much more contentions for Uri Geller’s proposed installation in Sonning) and it is logical that planning permission should be required for removals of unlisted statues as well even if, such an approach is, as Uri Geller complained, yet more ‘red tape’ for a Government supposedly against it (section 5 of the Public Statues (Metropolis) Act 1854, itself  designed by Victorian regulators ‘to stop the proliferation of statues in public places in London’ was repealed by the 2015 Deregulation Act). Yet anyone can apply for planning permission and if statues are unlisted, planning processes are easier to follow than decisions drawing on listed buildings law. A simple, transparent approach (if that is what the Directions supply) would meet the criticism that such ‘matters are handled in a legal and temperate fashion’ (though this critique itself ignores how long protestors and historians tried to address the Colston statue in precisely this way, through discussion and consultation, perhaps this was just not that well understood outside Bristol).

Even within the planning process, however, the unsuitable legal framework will remain. Listed building law concerns itself with preservation and conservation, with ‘alteration’ and ‘demolition’. The key questions for contested heritage, in contrast, involve ‘removal’, a quite distinctive concept. The legal arguments here are fantastically technical (Richard Harwood QC continues to explain them patiently and expertly on Twitter). While transparent, open consultations about statues would be useful, these decisions should focus on the nature of the statues themselves rather than be hide bound by legal technicalities or political ideologies in favour of ‘retain and explain’ for all statues, whether of prima facie criminals or not. Were an application to remove the Colston statute have been made after these new rules come into force, Bristol City Council would almost certainly have been required to ‘retain and explain’ Colston in continued pride of place, rather than remove to statute to a museum where the issues can be explored in far greater depth.

Statues can weigh cities down. Decisions about urban space made generations before, often with little local consensus, continue to pattern lives today. If the Government want to decree that statues of men who made money from the slave trade should stay in place, they certainly have the power so to do so. In Bristol, though, Colston will rest in a museum, fully contextualised. Reflecting on his departure, whilst still in the water, Vanessa Kissule, a former city poet and someone who captures Bristol so well, encapsulated how, for many, the weight had – at least partially, perhaps temporarily – lifted;

Kissule’s performance of ‘Hollow’ is best watched, yet as she says:

‘You came down easy in the end …

Colston I can’t get the sound of you from my head.

Countless times I passed that plinth.

Its heavy threat of metal and marble.

But as you landed a piece of you fell off, broke away, and inside, nothing but air.

This whole time, you were hollow.’



Postscript: @UniversityofBristol, Colston’s dolphin is still in our logo.

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