Heritage laws and institutions in the UK

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by Nandini Chatterjee

Law plays a crucial role in channelling and controlling public memory. Our focus in this website is on statues of real or imaginary humans, associated with the historic empires of Britain and France. For further details on the scope of the project, sources of our data and criteria of selection, see Data sources, methods and editorial decisions.

Statues commemorating individuals and events associated with the British and French empires are managed by a hierarchy of institutions and are protected by a range of legal provisions. On the other hand, those who remember the past differently, do not approve of one or more of the statues and would wish to take action are also protected by certain legal provisions. This short essay offers a beginner’s guide through those overlapping and sometimes conflicting legal provisions, and describes the different kinds of legal materials that are presented on this website. The current essay focuses purely on the UK context. Nothing in this essay constitutes legal guidance.

History of listing

British laws surrounding heritage, the institutions managing it and, in fact, the concept of heritage itself has been evolving since the nineteenth century. The earliest campaigns in the UK were to define certain large and old built structures as national monuments to both restrict and widen access to them. By the 1840s, through the efforts of antiquarians and writers, physical and legal fences were erected to prevent people from damaging such structures. Designated national monuments such as Hampton Court, Tower of London and the British Museum were opened to the members of the public for their entertainment and education; ticketing could both help and hinder that process. These national monuments were managed by the Office of Works, which originated as a medieval department for managing the king’s castles and parks, and was under the control of the Treasury from 1815. Not all institutions were in agreement with the policy of widening public access; in 1841, the Parliamentary Select Committee on National Monuments and Works of Art [link behind paywall] discussed the need for greater attention being paid to the preservation of churches such as St. Paul’s Cathedral and Westminster Abbey, and for convincing the cathedral authorities to allow greater access to members of the public.

The first comprehensive legislation for heritage management in the UK was the Ancient Monument Protection Act, 1882. This law allowed owners of ancient monuments to vest management of these monuments with the Office of Works without relinquishing their ownership, but with restrictions on their and other people’s use of the monuments. Damage to the monuments under the Office of Works was designated a crime, with penalties attached.

The Appendix to the legislation included a list of forts, castles, stone circles, mounds, towers and such other built, outdoor structures in England, Scotland, Wales and Ireland which came under the scope of the law and hence the supervision of the Office of Works. General Pitts-Rivers, military officer, archaeologist, ethnographer and member of the Society of Antiquaries, associated with the Pitts-Rivers Museum, Oxford, was the first Inspector of Ancient Monuments. Much of his work consisted of surveying the national landscape, identifying monuments worth designating and convincing their owners to accept the authority of the Office of Works.

In fact, the Office of Works was devastated by lack of funds and apathy. Scotland led in the systematic survey of monuments. Formed due to pressure from Scottish scholars, the Royal Commision on the Ancient and Historical Monuments of Scotland was tasked with creating an inventory; this led to the appointment of a corresponding Royal Commission for England. These two commissions produced long lists – the English one with 3,554 monuments – but these were not all given protection by the Office of Works.

Meanwhile, the National Trust, which was formed as a not-for-profit association in 1894, was incorporated by the National Trust Act of 1907. This gave it the right to hold property inalienably; this means that once the National Trust declared something inalienable, it could not be sold, mortgaged or transferred to anyone else without an Act of Parliament. The National Trust could now purchase historic buildings and hold them securely in order to protect them, supplementing the meagre resources of the Office of Works. The law expanded the concept of heritage from built structures to lands and natural elements and added ‘beauty’ as a criterion for selection to historicity.

In 1913, the Royal Commission on the Historical Monuments of England admitted that its listing was far from complete.

After WWII, the relations between the Office (now Ministry) of Works, National Trust and local authorities were further coordinated. The Historic Buildings and Monuments Act of 1953 created three Historic Building Councils - for England, Scotland and Wales - all under the authority of the Ministry of Works. The law also allowed the Ministry to allocate funds to the local authorities and to the National Trust for the upkeep of designated monuments, buildings and spaces. From our research into individual statues, such as that of Robert Clive in Shrewsbury, we assume that statues of individuals entered the heritage list around this time.

From what we can tell, the first statute to use the word ‘heritage’ in its title was the National Heritage Act of 1980.

The Historic Buildings Council of England was abolished by the National Heritage Act 1983, and replaced by the Historic Buildings and Monuments Commission for England. This body came to be commonly known as English Heritage. The Historic Building Councils of Scotland and Wales were abolished in 2002 and 2003, and replaced with advisory councils.

In 1990, the Planning (Listed Buildings and Conservations Areas) Act made Historic Buildings and Monuments Commission for England responsible for creating and publishing the exhaustive and up-to-date list of 'buildings of architectural or historical interest' and provided for direct oversight in some matters by the Secretary of State (Minister). By this time, the meaning of 'ancient monument' had been expanded to mean: 'any structure, work, site, (including any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other movable structure or part thereof) garden or area which in the Commission’s opinion is of historic, architectural, traditional, artistic or archaeological interest.'

Thus, after nearly one-and-a half-centuries of effort dedicated to the comprehensive listing of heritage buildings and monuments, the ‘master list’ for England was created. To our knowledge, there never has been much explicit discussion as to the categorisation of statues – they have landed up in the category of listed ‘buildings’ almost by accident.

Confusingly, in 2015, English Heritage was split into a charity, also confusingly called English Heritage, and a governmental agency called Historic England. English Heritage is reponsible for the actual management of the national collection of monuments and buildings; Historic England maintains the list, develops policy and distributes grant funding.

There are statues in our database which are not on this 'master list' maintained by Historic England. While they were within the scope of this project, they have not, thus far, gained official protected heritage status.

Legislation / Statutes

These are laws made by the UK Parliament. When a law is being discussed, it is called a Bill; when it is voted on and passes into law, it becomes an Act. All UK Acts are available through the legislation.gov.uk website. When a law has been repealed, it is no longer applicable, for example the Government of India Act, 1935, it is available to download as a PDF.

Legislation also refers to a statute, which is not to be confused with a statue! A legislation or statute has a short title and a longer version of the title which explains its purposes a bit more clearly. It also has a year and a number.

With statues, the most important legislation, which applies to all listed statues, is the Planning (Listed Buildings and Conservation Areas) Act 1990. There are other laws for protecting what is legally approved heritage, and users of the website will see these laws linked to the pages dedicated to each statue. Statues are also protected against unauthorised alterations or damage by criminal laws, such as the Police, Crime, Sentencing and Courts Act, 2022.

On the other hand, people are protected against state authorities for their actions on the basis of a number of laws and legal defences, such as the Human Rights Act, 1998. A statute (legislation) may apply to many different matters, not just statues. The Human Rights Act is a great example of this.

Institutions

As discussed above, the oldest government department involved in the management of heritage was the Office of Works, whose jurisdiction increased and decreased over time, corresponding to changes in its name. After its final incarnation as Ministry of Public Buildings and Works (1962-70), the work of the department was parcelled out among several ministries.

Currently, in 2024, the management of heritage lies with the Secretary of State (minister) for Culture, Media and Sport. This minister oversees Historic England. The equivalent agencies in the other three UK countries are: Historic Environment Scotland, CADW and Northern Ireland Environment Agency, each with its own governing board and placed under specific ministries in each of these nations.

The work of Historic England continues to be supplemented by English Heritage and by the non-governmental but statutory body, the National Trust.

At the local level, most heritage is managed by the local authorities – the district and city councils – especially through their planning and culture departments. Where a statue is listed, i.e. accorded heritage status through the Historic England’s list, the local authority often has responsibility for its management and the ability to spend funds on its upkeep. In instances where a statue may become the occasion for public dispute, however, several entities are likely to get involved in the process of resolution: the local authority but also any private owners (of the land or the statue), Historic England (or its equivalents) and in high profile cases, the Ministry for Culture, Media and Sport. In case of churches, the relevant church hierarchy would be involved.

Groups

There are groups, as in associations of individuals, of various degrees of formality concerned with the management of statues as public heritage. At the most formal end are incorporated charities such as the National Trust and English Heritage. At the other end of the spectrum, there are citizens’ organisations, that aim to explore the meaning and value of heritage for their communities and to influence public policy. In our website, we have attempted to collect information about such smaller organisations, such as Countering Colston and Shropshire Ethnic Minority Alliance, that have played important roles in shaping the histories public statues in different parts of the country.

Case law or Legal judgements

Legislation is only the tip of the iceberg as far as UK law is concerned. Most law is actually made in the courtrooms when lawyers argue what a law really means for specific situations, and judges make their decisions. These decisions or judgements from legal cases form what is called case law. These judgements are available on judiciary.uk/judgments and also other non-governmental websites, such as bailii.org. On this website, we try to list and link to all judgements in cases related to colonial statues, where we come across them.

Policy documents

Other than the UK Parliament and the courts, there are a number of other institutions that are legally empowered to make rules about how statues in the public domain are managed. One of these is Historic England, which is given its powers by the Planning (Listed Buildings and Conservation Areas) Act 1990 to maintain the official list of buildings (including statues) considered as valuable heritage. Historic England also offers guidance to local authorities on what is to be considered 'contested heritage' and prescribes ways of dealing with such heritage. In 2023, the Government of UK established a Heritage Advisory Board, which has produced a document of Guidance for custodians on how to deal with commemorative heritage assets that have become contested. All such guidance evolves over time. On this website, we shall present such guidance in relation to statues that are, or have been contested.

Deliberations and reports

On an everyday basis, listed building (including statues) are managed by the local authority. These are city and county councils, borough councils in London, and English Heritage (for 47 statues in London). Occasionally, these authorities discuss and debate how a statue is to be dealt with – where minutes are available in the public domain, this website offers links to them in relation to the specific statues.

Testimonies

There is a vast amount of material that is produced when these laws and policies are applied to specific statues at particular moments. For example, when a community group makes an application to Historic England proposing that a statue or a site be listed, it has to produce a dossier arguing for the artistic or community value of that statue or site. At other times, a local authority may conduct a survey of local opinion about a specific statue. Such files and surveys offer a detailed view of how ordinary people try to negotiate the law of heritage. We have attempted to collect these, and present them in relation to specific statues.

Cast in Stone

Statues and memories of empire in post-imperial France and Britain