The difference between public and private law – on a beach near me
1 November 2013
More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.
For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.
How so?
Holkham beach is a lovely place to be, clothes on or clothes off, and lots of people use it – apparently as many as 500,000 every year. But not everyone behaves themselves. In particular, there have been reports over the years of people having sex in the dunes, and others being understandably offended by this. It is difficult to tell from published sources (e.g.here from the landowner, and here from British Naturism) whether these offenders were necessarily naturists. The beach is busy with those who ordinarily wear clothes as well as those who do not – and, I suppose, you can only definitely identify offenders as naturists when they have finished having sex and they don’t put their clothes on.
Anyway, leading that aside, pressure grew for Something to be Done, not least via a Facebook page “Close Holkham naturist Beach”. The upshot was that the local landowner, Holkham Estate, after discussions with British Naturism, and Natural England (the public naturalist body) , decided to ban naturists from the beach with effect from 1st July 2013.
Outcry ensued in naturist circles. Things were complicated, because whereas the Estate owns the dunes, the Crown owns the area between mean high water mark (where the high tide comes into) and mean low water mark (where the low tide goes out to). Holkham beach is very flat, and so this stretch of sand in between is quite considerable.
So British Naturism wrote to the Crown Estate, presumably complaining that it had not been properly consulted on this change – its letter was drafted by David Wolfe QC. a leading public law barrister. It threatened judicial review proceedings. The Crown Estate, like any public authority, owes duties in public law to consult those likely to be affected by its actions – the classic example of this being the hospital closure cases where those affected (whether patients or hospitals) are or should be properly consulted on proposals.
The Crown Estate must have thought there was something in the points being made, so on 25 September 2013, its response was to lift its ban – but only on its land.
But Holkham Estate maintained its ban, for its land. The Estate, like any private landowner, can set rules applicable to those who want to use its land. It can say, as it does – if you want to use our sand dunes, wear clothes. Just as British Naturism can say – if you want to come to our convention, don’t wear clothes. Neither Holkham nor BN owe public law duties, even if others may be affected by their actions. And neither can be made the subject of judicial review proceedings.
So the upshot at the moment is that naturists can use the beach for swimming or sitting on, but if they want to lie around in the rather warmer (and drier) dunes, they have to put their clothes on.
A perfect illustration of the different effects of public and private law.
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One could make the argument that the miscreants who caused this problem are not, by definition and custom, naturists in any way. We don’t engage in public sex, do not deliberately offend others, and respect the right of others to hold differing opinions, especially when using their property. Many nudist camps and resorts establish rules regarding the wearing or not wearing of clothing at certain times and places. In this instance, the owners of the estate choose to designate their land as NOT clothing optional. That they do so isn’t surprising; who WOULD want people behaving so despicably after being permitted to use that land? And who is doing that? Naked people.
The loss of beaches for nude use is endemic and widespread, especially in recent years. Sometimes it’s gay sexual activity, sometime hetero couples, but it doesn’t matter who it is. It’s inappropriate and outside the philosophy of social nudism worldwide and should be roundly condemned by all of us. It’s not naturists who are doing it; it is irresponsible parties who care not a whit what harm they are doing to millions of good, honest folks simply out to enjoy nature without the burden of clothing.
Compounding the damage is the tendency of the Press to refer to these lawbreakers as ‘nudists’ or ‘naturists’, thereby tarring us with the same brush. In the Public eye, we are one and the same. Hence, when someone like Gough takes a stroll sans-attire, the image of sexual deviants rises up and an overreaction inevitably occurs. The Public only knows what the media tells it, and the media consistently identifies any naked lawbreaker as a ‘nudist/naturist’.
There’s a lot more to social nudism than simply doing something naked, yet even many naturists confuse the issue. Not surprising since there is no legally and/or commonly accepted ‘definition’ of just exactly what the terms mean, though most of us pretty much agree on the basics. Nonetheless, disagreements exist and some ideas of what ‘naturism’ includes are very out of line with mainstream thinking. No wonder the Public doesn’t understand; we can’t even agree!
And so laws are passed based on the only obvious distinction between nudists/naturists and Textiles; we’re naked! ‘Arrest ’em all and let God sort ’em out’ is the resultant social and legal reaction, being so much easier than actually identifying the criminals and directing legal efforts towards them, not us.
I guess the long UK history of abusing its own laws is also to blame, with (most of) the citizens accepting these Medieval practices. Instead of clearly stating that the human body can not be illegal, offensive etc. and that no laws, public or private can dictate the kind of clothes people can or can not wear, the law is made artistically opaque.
What if someone decided to put into law that people with black skin are forbidden somewhere? Nowadays we all learned that this is called discrimination and it is bad and illegal.
What is the difference with the human skin? How can it be illegal by itself? That would mean that just every human being can be thrown in jail at any pretext, like in a worse dictatorship, simply because we all have skin. Regardless of our actions.
This is rdiculous. This is revolting. As citizen of the free world we should not accept our freedom and innocence to be taken away by some idiots who live in a world they created in their sick mind.
There are essentially two issues here. The first is one is prejudice towards nudity (and by default naturism) which permeates our society. If this were blacks, gays, Jews, golfers or dog-walkers that were going into the dunes and engaging in inappropriate behaviour it would be seen (and reported on) entirely differently. For some reason the Holkham Estate deems it acceptable to tarnish an entire social/cultural group (i.e. naturists) based on the actions of a minority of people who use the area for unacceptable behaviour.
The second issue is that of policing. The demarcation between the areas separated by Mean High Tide is vague and cannot be defined. Should any person wander onto the private land where the Holkham Estate ban is in place, the landowner would be powerless to do anything apart from asking the person to leave or conform to their house rules or their clothing policy. What has actually been happening over this summer is that the Norfolk Constabulary have been assisting the Holkham Estate to enforce what is in effect house rules on private land. So long as the Holkham Estate are formally adopting the services of the police to patrol their private land, (and paying for that service), I don’t see a problem, but if this is done as cosy arrangement between Holkham Estate and the police, it seems to me to be a misuse of policing services.
So who are the bad guys in all this? It is certainly not the people who go to the beach and swim and sunbath without clothes. As the other poster says, to blame naturism for unacceptable behaviour in the dunes is muddying the waters: it only helps if you oppose naturism. It’s no different for blaming blacks for a high crime level in inner-city areas. By doing so, only serves to support ongoing prejudice directed toward the minority group.
From a legal perspective it is irrelevant who owns the land in question: some things are crimes and some things aren’t.
This debate about whether people having sex in the dunes are also naturists is just muddying the waters, a blatant attempt to suggest that naturists are somehow associated with criminal activity. You need to clarify that bit before dealing with the rest of the situation.
It really is very easy to work out the distinction here: having sex in a public place is different to swimming, as any reasonable person would recognise. A naturist could mug someone at the back of the dunes, and then return to his or her towel and resume sunbathing without stopping to dress at any point.
Or if nudity seems to make things too emotive, suppose you go and play golf and then beat your opponent to death with a golf club because he is winning. It’s no defence to say that playing golf is a perfectly legal activity.
Muddying the waters between naturists sunbathing and doggers having sex in public is only helpful if you want to ban naturism. Yes of course a landowner can make up their own rules about what is and isn’t allowed on their land, but that is different to them being able to make up their own laws.