During the first national lockdown, the UK found itself caught short. Financially, organizationally, but also quite literally — with pubs, restaurants, and public toilets shut nationwide, many people found themselves stuck in public places with nowhere to go to the toilet. We’ve all been there, and we all know the feeling.

One silver lining of this collective misfortune is that it brought public toilet provision back into the limelight. Doing so revealed an alarming situation. Over the last two decades, the number of public toilets in the UK has fallen 39%, while the population has increased by 8 million. These figures mask considerable variation by region: in North Ayrshire and Cornwall, for instance, the number of public toilets has fallen 80% and 94%, respectively.

Some implications of this have been well-documented. Public toilets are an important public health issue, given the sanitary implications of open urination and defecation. Insufficient public toilets also disproportionately impact those menstruating and those with chronic bowel problems, like the 300,000 Briton’s with Crohn’s disease or ulcerative colitis. These arguments are undoubtedly convincing, but ignore an even more fundamental issue. Public toilets are not ‘just’ a matter of public health or welfare; for homeless people, they are also a matter of freedom. In areas without public toilets, homeless people are literally unfree to urinate. This sounds sensationalist, but follows once we get a clearer understanding of basic property law.

In the UK, as in most countries, there are two types of places: private places, like homes and offices, and public places, like parks and pavements. Public places are owned collectively, whereas private places are owned by individuals or groups who can decide who is allowed to be there. Most of us have access to at least one private place. For instance, I am allowed in my home and office, as well as in shops, restaurants, and other people’s houses, provided I am invited in. However, homeless people do not enjoy the same kind of freedom. They do not own homes or offices; they generally lack friends with whom they can stay; and they are routinely kicked out of shops and restaurants. Since they are essentially not allowed in private places, any freedom they have consists solely in what they are allowed to do in public places.

This is unsettling enough, but becomes even more so when we consider the extent of public prohibitions. For instance, in the UK, there are laws prohibiting people from washing, having sex, and urinating in public. This might not seem like a big deal, but for the 280,000 homeless people in this country, these laws are disastrous. In places like Bolsover and Milton Keynes – which do not have a single public toilet – there is nowhere homeless people are legally allowed to urinate. From this, it follows that they are simply unfree to do so.

This might seem too quick. Homeless people must be free to urinate, it might be argued, since they are found doing so in parks and alleyways. However, this objection conflates the concepts of freedom and ability. Homeless people are clearly able to urinate, in the same way that I am able to commit crime. But neither of us are free to do so. The concept of freedom, properly understood, is inextricably bound with the concept of law.

This is more than just academic hand-wringing. Laws, after all, speak to the values we hold as a society, and the extent to which we are committed to them. Put simply, a liberal society that renders some people unfree to urinate is not very committed to the principle of liberty. More importantly, the distinction between freedom and ability clearly matters for homeless people. It matters for the homeless person arrested for urinating in public; it matters for those humiliatingly turned away from pubs and restaurants, whose facilities are reserved for paying customers only. For these people, their unfreedom to urinate is not just an academic quibble; it is an excruciating fact that they must confront every single day.

This situation can only be rectified by ensuring that everyone has access to a toilet, given there are good sanitary reasons to outlaw public urination and defecation. The simplest way to do this is to make sure everyone has access to houses or shelters – i.e. to make homelessness impossible. However, given the number of rough sleepers in England has risen over 250% since 2010, we seem depressingly far from this prospect. Until we decide that this is no longer tolerable, the very least we could do is build more public toilets. If not, our society stands guilty of an extraordinary degree of callousness towards the plight of homeless people, and a shameful degree of hypocrisy towards its commitment to basic principles of liberty.

This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.