Public Spaces Protection Orders (PSPOs) are unprecedently open-ended powers, which allow a single council official to ban activities in public spaces. For an official to make a PSPO, he or she need only believe that a certain activity has a ‘detrimental effect on the quality of life of those in the locality’. The phrase ‘detrimental effect on the quality of life’ is a broad and vague definition, which has no legal precedent. There is no requirement for the official to consult the public, or to have the order reviewed by democratically elected councillors.
The powers were introduced in the Anti-Social Behaviour, Crime and Policing Act 2014, and went live in October 2014. In February 2016, we published an account of the use of these powers in the first 16 months. This report covers a second 16-month period, and shows that the use of these powers has increased still further.
We called PSPOs a ‘busybodies’ charter’ because these powers allow councils to ban an activity simply on the basis that they, or someone else, does not like that activity. PSPOs are being used to ban a broad range of activities including: rough sleeping, lying down, swearing, shouting, loitering, charity collecting, standing in groups, or playing music in non-designated spots. In the past 16 months, Liverpool City Council banned face coverings; Burnley Borough Council banned under-16s from going out after 11pm. Anybody violating these orders is committing a criminal offence and could be fined £100 or prosecuted.
These powers take the criminal law into the domain of taste or annoyance, rather than significant public nuisance or harm. PSPOs also allow councils to create absurdly catch-all crimes, such as the crime of standing in a group, which means that council officials and police officers have the power to fine or disperse pretty much anyone they want to. These orders undermine cornerstone legal principles as well as everyday freedoms in public spaces.
PSPOs are also being used to extend the power of council officials, in some cases giving council officers the power to ban people from a particular area. This means that a council community safety warden or technical officer has the power to break up a group and order them to not return for 48 hours: if a person refuses, they are committing a criminal offence. This use of dispersal powers takes council officers firmly into the domain of policing.
How many PSPOs?
We found that in the 16-month period between March 2016 and June 2017, 189 new orders were issued in 107 councils.
|No. of PSPOs
|No. of Local Authorities
|November 2014 – February 2016
|March 2016 – June 2017
This is an increase on the 130 PSPOs issued in 79 authorities in the first 16-month period. Our research shows that councils are using the PSPO power at an increasing rate, and covering a wider range of activity. Overall, 152 local authorities in England and Wales now have a PSPO in place, out of the 348 to whom this power is available. This means 44% of local authorities have used the power since October 2014.
What has been banned in the past 16 months?
10 councils have passed new orders banning swearing. In these councils, you could be fined £100 for using foul language, or prosecuted if you fail to pay the fine. This prohibition on swearing criminalises something that may be rude (although in some cases it is commonplace), but is hardly warranting of criminal sanction. Since foul or abusive language is not defined, this could mean people being slapped with fines for mild curses that would be shocking to no-one. It represents a severe infringement on free speech, and puts the council in the position of posing as language police. The councils that have introduced swearing bans in the past 16 months (with PSPOs banning ‘swearing’ or ‘foul, abusive or obscene language’) are: Lancaster City Council, Tower Hamlets, Ashford, Bassetlaw, Teignbridge, High Peak Borough Council, Salford, Stoke-on-Trent, Wandsworth, and Staffordshire Moorlands.
This means that in total there have been 19 swearing bans, in 16 different local authorities. The councils that banned swearing in the first 16-month period were: Kettering and Wirral councils banned foul or abusive language; Hillingdon banned being verbally abusive; Salford banned foul language; Guildford Council ordered that no person may swear at another person; Lancaster banned swearing; Bassetlaw banned shouting and swearing; Kensington and Chelsea banned abusive language; and Birmingham banned verbal abuse.
19 councils have banned or restricted begging, meaning that homeless people can be fined for the mere act of appealing to the public for charity. Many of these PSPOs include bans on implicit or non-verbal requests for money, such as putting out a hat or even just sitting in a public place (Southampton banned ‘loitering for the purposes of begging’). Some councils have banned ‘aggressive begging’, but this is often not defined – or if defined, includes broad examples such as begging near a cash machine. Councils that have recently banned begging include Coventry, Corby, Southampton and Wigan. One council, Sunderland, has banned ‘bin-raking’, meaning that a homeless person could be fined for taking items out of bins. This amounts to a policy of fining people because they have no money – an absurd, counter-productive and heartless measure.
Loitering/standing in groups
18 councils have prohibited loitering or standing in groups. In some cases, the PSPO condition is qualified as ‘loitering causing nuisance or annoyance’, but in many cases it is loitering or standing in a group per se that is prohibited. This criminalises the mere act of standing in a public place. It also criminalises everyday sociability, since people can be criminalised simply for standing with others and talking to them. The activity being targeted here is not by any means ‘detrimental’: in fact, it is a beneficial and positive aspect of public spaces. One of the essential features of a nice public space is that it is somewhere people want to hang out and chat. No doubt there are problems with anti-social behaviour in these locations targeted by PSPOs, but the PSPO order is framed so broadly as to target, not anti-social behaviour, but sociality itself.
The councils that have banned loitering in the past 16 months include: Birmingham, South Derbyshire, Tower Hamlets, and Rushmoor. Other orders specifically target young people: Blaby District Council banned 10-17 year olds from standing in groups of four or more, while Bassetlaw Council banned under-16s from gathering in groups of three or more in Worksop and Retford town centres. Southampton banned loitering for purposes of drinking or begging, while Staffordshire Moorlands banned congregating or loitering in a group of five or more unless waiting for a bus. The other local authorities that have banned either congregating in groups or loitering are: Bolsover, Wakefield, Coventry, Ealing, Haringey, High Peak, Lambeth, Lancaster, Newcastle-Under-Lyme and Nottingham.
This means that in total there have been 30 bans on loitering or congregating in groups, in 28 different local authorities. The councils that banned loitering in the first 16-month period were: Caerphilly Council banned loitering at bus stations and bus stops; Kettering banned loitering and being in a group of more than 4 people in the vicinity of a motor vehicle (it also introduced a curfew for under-18s, who are banned from going out alone between 11pm and 6am); Bolsover Council banned congregating in groups in alleyways off the marketplace; Guildford Council banned loitering and gathering in groups of two or more persons in one area; Oxford Council banned remaining in a public toilet without reasonable excuse; Blackpool Council banned loitering around cash machines; Hillingdon Council banned gathering in groups of two or more unless waiting for a bus; Bassetlaw banned under-16s gathering in groups of 3 or more; Christchurch banned groups in the carpark; Doncaster banned congregating in groups likely to cause harassment; Halton banned congregating likely to cause harassment; and Tamworth banned congregating or loitering in groups in or around vehicles.
Four councils have criminalised non-compliant or ‘anti-social’ busking, such as busking in a non-designated spot, or busking in violation of the council’s busking code. In these areas, buskers would be fined if they played anywhere outside the small number of officially designated spots. Some PSPOs (such as Hammersmith and Fulham) ban amplification, meaning that quieter instruments such as the acoustic guitar, flute or violin would be unable to make themselves heard over background noise and traffic. These regulations restrict artistic expressions in public spaces and infringe everyday busking, which is overall a great benefit to public spaces. The councils restricting busking are Redbridge, Peterborough, Hammersmith and Fulham, and Coventry.
11 councils have restricted cycling or skateboarding in public spaces or streets. Restrictions on cycling or skateboarding are sometimes in a small area, such as a particular square in Coventry, but in other cases they include large parts of the town centre (Mansfield council banned cycling in the whole of the town centre). These restrictions are so broad that they could not possibly be seen as targeting anti-social activity, and are instead targeting an everyday form of transport. The restriction on skateboarding targets one of the ways in which young people develop their skills and display these in public, which both adds to the urban environment and requires an interaction with and respect for other users of public space. When skateboarding is banned in town squares it tends to be forced into out-of-the-way places, such as carparks, which are more dangerous and genuinely problematic.
30 councils have restricted dog walking in the past 16 months, either with bans on walking dogs in certain areas or requirements that dogs remain on leads. In addition, five councils have a requirement for dog owners to have a ‘means to pick up’ dog mess, which means that it is a crime for a dog walker to be found in a public space without a poo bag. Both of these measures tend towards the criminalisation of law-abiding dog owners, rather than targeting the actual nuisance behaviour. Dog walkers have been banned from areas that they have been walking their dogs for decades, in many cases without obvious problem or reason for the new restriction. The Kennel Club has sought to limit the most drastic PSPOs, but even so recently introduced measures have significantly worsened conditions for dog owners across the country. The requirement to have a ‘means to pick up’ creates a perverse incentive for dog owners to avoid picking up, for example if they are down to their last bag and near home: indeed, the measure could be complied with by never picking up dog mess and merely carrying a plastic bag tied to the lead.
Sleeping in public
Four councils have banned people from sleeping in public places. This means that a homeless person could be fined merely for the fact of being homeless. It also means that any member of the public could potentially be fined should they fall asleep on a bench or lie down in a park. These PSPOs represent a significant incursion upon the rights of homeless people in public spaces, and turn social destitution into a sort of criminality. The policy of fining someone who has no home and no money is not only absurd and ineffective, but also lacking in ordinary human compassion. Councils introducing PSPOs banning sleeping include: Rushcliffe Council banned sleeping in the open air, a vehicle, or a caravan; Wrexham banned sleeping in the bus station; Gravesham banned lying down in a public place; and Teignbridge banned sleeping in one area after the hours of darkness.
This means that in total there have been seven bans on rough sleeping, in six different local authorities. The councils that banned rough sleeping in the first 16-month period were: Wrexham banned sleeping after the hours of darkness in one area; Shepway banned sleeping in public places; Hackney banned rough sleeping (the order was later withdrawn after public protests).
Handing out leaflets
Three councils have banned people from handing out leaflets. The regulation of leafleting is a growing trend, as we have highlighted in our campaign against leafleting bans. Bans on leafleting mean that someone could be fined or prosecuted for handing our leaflets about their art exhibition or music night. Such PSPOs limit freedom of expression and people’s rights to communicate with other members of the public. PSPO restrictions on leafleting go further than existing licensing schemes (under the Clean Neighbourhoods and Environment Act 2005), since leafleting licences cannot restrict political, religious or charitable literature. PSPO leafleting bans restrict an activity that could have a positively beneficial effect on public spaces, since it is through leafleting that local events and causes can win an audience, increasing the dynamism of the locality and enabling people to meet and collaborate with one another. The councils with PSPOs restricting or banning leafleting are Chelmsford, Coventry, and Gateshead.
Six councils have passed PSPOs restricting charity collection in public spaces. This means that it becomes a crime for a member of the public to ask for a donation from another member of the public. In reality, all nuisance behaviour from charity collectors would already be criminalised under existing laws, such as obstructing the highway or causing harrassment. Such behaviour, however, is in a tiny minority, since charity collectors wish to appeal to the public rather than cause a nuisance (annoying people would not help donations). The restriction on charity collection in public places means that this long-standing use of public space is viewed as nothing more than ‘anti-social behaviour’. Councils regulating charity collections include Coventry, Wigan, Gateshead, and Newport.
14 councils have used PSPOs to extend the power of council officials, giving council officers the power to bar people from a particular area. This means that a community safety warden or technical officer has the power to break up a group and order them to not return to a designated area for 48 hours. If a person returns, they are committing a criminal offence and can be fined. This use of PSPOs is highly questionable and probably illegal: these orders not ban any particular activity (as a PSPO allows), but rather create a general power for officials. The use of PSPOs to create dispersal zones encroaches on the existing dispersal power, which is another power contained in the Anti-Social Behaviour, Crime and Policing Act. The dispersal power includes specific restrictions over activation and enforcement, and is also limited to police officers. The use of the PSPO power to create de facto dispersal zones is a way of side-stepping these restrictions. It means that a police power can be assumed by council officers, or any others whom the council may designate. Councils that have used PSPOs to create dispersal areas include: Mansfield, Barnsley, Wigan, Birmingham, South Derbyshire, and Liverpool. Barnsley council has issued 222 notices banning people from the area for 48 hours.
The greatest number of new PSPOs concerned a restriction on alcohol, with 44 councils introducing a restriction on public drinking. In some cases these are complete alcohol bans, meaning that it is a crime to drink a bottle of wine in a park (or anywhere in public outside of licensed premises). In other cases, the PSPO does not ban alcohol but endows council officers with powers to confiscate alcohol when they think suitable. Many areas had alcohol confiscation powers under previous Designated Public Place Orders (DPPOs), but these were restricted to police officers and were supposed to be related to a risk of public disorder. PSPO alcohol bans are much broader. Alcohol confiscation measures tend to be particularly targeted at homeless people – a group that is obliged to drink in public places, since they cannot drink in a pub or at home. Alcohol bans blur the distinction between sociable and anti-social behaviour, particularly for those whom council officials and police officers consider ‘messy’.
|No. of councils introducing PSPO
|Loitering/congregating in groups
|Dispersal powers for council officers
|Gating orders – closure of road
|Shouting/making excessive noise
|Requirement to have ‘means to pick up’ dog mess
|Sleeping in a public place
|Feeding the birds
|Swimming (in lake/river)
|Covering the face
|Parking outside a school
|Young people out after 11pm
How are PSPOs passed?
One of our primary concerns about PSPOs is the anti-democratic manner in which they are passed. Since law makes no requirements for councils to go through democratic or scrutiny procedures, many councils have perfectly legally given the power of signing off a PSPO to a single unelected officer. This means that these new powers are not at all an expression of local democracy or localism: instead, they mean arbitrary manner for unelected officials.
Our FOI requests show that, of the 80 councils that provided the information, the largest number (38) passed a PSPO by either a single council officer or a pair of officers. In many cases these were unelected officers rather than elected councillors. Another 32 councils passed the PSPO in a committee, meaning at least a minimum of collective scrutiny and some democratic accountability to elected councillors. But only 10 out of 80 (12.5%) passed the order through full council, which in reality is the only manner in which a PSPO can be fully scrutinised and subject to collective decision-making by elected representatives.
It is astonishing that a power that allows the creation of new criminal laws can be invoked in such a cursory manner, with so little attention to either formal procedure or to democracy.
|Authority passing PSPO
|No. of councils
|Officer/pair of officers
How are PSPOs enforced?
It appears that the primary use of PSPOs is to move people on from public spaces, or to stop them from doing what they are doing. That is, PSPOs seem to be largely used for behaviour control rather than fines or prosecution. However, an increasing number of fines are being issued. Our FOI requests show that in the period between October 2015 and October 2016, there were 1282 fines issued for the violation of a PSPO. The highest level of fines was 514 in Hillingdon, while Camden issued 100 fines for public urination, Wolverhampton fined people for parking a caravan, Wrexham fined people for loitering whilst drunk, Barnsley fined 24 people for failing to comply with a 48-hr banning order, Bedford and Gravesham fined people for cycling, and Cambridge fined 17 people for punt touting.
There are further concerns about PSPOs being enforced by private companies, some of which are issuing fines on a commission basis. The largest number of fines issued (in Hillingdon) is in an area where PSPOs are being enforced by a private company. Other councils where private companies are enforcing PSPOs include Conwy, Denbighshire, Gravesham, and Barnsley (see our report, The Corruption of Punishment).
Here, the combination of vague PSPO powers, along with an explicit or implicit financial incentive to issue fines, creates a noxious cocktail with severe implications for public liberties.
What can be done?
Orders restricting people’s actions in public should focus tightly and specifically on harmful behaviour. However, the vast majority of existing PSPOs focus on behaviours that are not in themselves harmful.
Both councils and police are seeking broad, catch-all laws that can be used in the broadest range of situations. They are therefore not seeking to define genuinely criminal activity, but instead to create a ‘blank cheque’ to enable them to respond to a wide variety of situations. This not only violates the fundamental principles of our legal system, it is also counterproductive, since it blurs the distinction between criminal activity and ordinary sociability.
Sometimes the problem prompting a PSPO is that of an existing criminal offence, or else an activity that can be precisely defined in terms of its harmful effects. For example, one Coventry PSPO was introduced in a park where there was a problem with drug taking and with grooming young people for sex. These are both criminal offences. Yet instead of the police enforcing these criminal offences, the council introduced a broad PSPO that banned standing in groups if the behaviour of any of the group was ‘likely to have a detrimental effect on the quality of life’.
The blurring of the distinction between crime and social life cannot but impinge upon the targeting of police resources and the enforcement of the criminal law. It is also our view that restrictions on ordinary sociability or activities – for example, people chatting with their friends, buskers, or dog walkers – leave public spaces less occupied and potentially more likely to fall prey to criminal activities or genuinely harmful conduct.
Even though current PSPOs are highly draconian, however, it is our view that the majority of these PSPOs are legal and do not violate the specifications of the Anti-Social Behaviour, Crime and Policing Act. Therefore, the problem with PSPOs is not with the behaviour of some councils, but with the legal power itself. The ultimate responsibility for these busybody laws lies with government, which created this broad and unchecked power.
At base, there are two essential problems with the PSPO power:
- The term ‘detrimental effect on the quality of life’ is a benchmark that is far too vague, subjective, and open to abuse. Rather than targeting nuisance or harmful behaviour, it target activities on the grounds of taste or opinion. We suggest that restrictive powers should instead focus on ‘behaviour that causes public nuisance or harm’. It is possible that a qualification could be introduced into the Statutory Guidance for PSPOs, but it is more likely that it would require a review and change of the law.
- PSPOs are undemocratic because they can enacted by single council officers, without democratic debate or scrutiny. It is our view that all significant PSPOs should only go through full council.
We therefore call on members of the public to work with us in challenging PSPOs in local areas, and in calling for a change to the law as a whole, to remove this dangerous, blank-cheque power from British legal statute.
Josie Appleton is director of the Manifesto Club, and author of Officious – Rise of the Busybody State