Private property & the right to protest: restoring the quasi-public trust in the 21st century

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This research scrutinizes the role of English land law and human rights law in restricting the right to protest on 'privately owned public spaces'. The right to protest is fundamental in any democratic, accountable and inclusive society. But many important protests have been restricted in the United Kingdom in recent years, such as the demonstration at Paternoster Square by the Occupy London movement or the 2019 environmental protests at Heathrow Airport by Extinction Rebellion. The private ownership structures of these public spaces have facilitated this, as English land law confers upon private landowners a relatively unqualified right to arbitrarily exclude members of the public at their own discretion. After all, in the famous words of Lord Camden CJ, "our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave" (Entick v Carrington (1765) 95 ER 807). In English law, the right to protest on public land is protected in a limited but proportional way by the European Convention on Human Rights and the Human Rights Act 1998, but the law has struggled to apply this right to private land. This is true of increasingly important privately owned public spaces in the contemporary land-economy, such as shopping centres, airports and university campuses. Instead, these privately owned public spaces are conceived by the law as ordinary examples of fully-private land, even when their functions and characteristics remain overwhelmingly public. Therefore, a modification of the doctrines of trespass and arbitrary exclusion is required so that the law may acknowledge the public interest in privately owned public spaces and thus guarantee the right to protest on these instances of private land. This thesis seeks to achieve this by restoring the legal conceptual framework of the 'quasi-public trust doctrine', a 19th century common law doctrine which acknowledged and upheld a public right of access to private corporate monopolies. Contextualising this to the modern day, English lawyers can pursue amendments to the law so as to protect the fundamental right to protest and guarantee a doctrine of reasonable access to privately owned public spaces.