Labour has introduced an amendment to the Police, Crime, Sentencing and Courts Bill, to allow ‘fast-track’ Public Spaces Protection Orders in the vicinity of schools and vaccination centres. The amendment passed in the Lords, and now stands a real chance of becoming law.
The amendment – introduced by Lord Coaker – would allow for activities or gatherings to be banned outside these institutions, requiring only consent from the school leadership (or health provider), the leader of the local authority, and a chief police officer.
The problems with this amendment are as follows:
1. Fast-track PSPOs are further removed from public representation and accountability.
PSPOs already suffer from a grave lack of public accountability. Manifesto Club research found that more than half of all orders were passed by a single council officer. Contrary to claims made by advocates of ‘fast-track’ PSPOs, there is at present no legal obligation for lengthy public consultations before bringing in PSPOs. The PSPO primary legislation defines the ‘necessary consultation’ as: consulting the police chief, the owner of the land, and ‘whatever community representatives the local authority thinks it appropriate to consult’.
However, at present, most councils feel a moral obligation to hold a public consultation and publicise the notice in advance, and this is recommended by LGA guidance. The process of public consultation – and internal scrutiny and debate of the proposed text within the local authority, and within any institutions that may be affected by it – is essential in order to ensure that the legal order is necessary and in the public interest. This is particularly the case, given that the test of a PSPO – an activity that has a ‘detrimental effect on the quality of life’ – is incredibly subjective, and could mean very different things to different people.
The main result of ‘fast-track’ PSPOs will be to undermine the moral obligation upon councils to consult, and encourage the summary use of powers, with consultation as an afterthought following the implementation of the order. The amendment will give clear backing to the heads of three institutions to create criminal offences without debate with the public or within their institutions.
The removal of consultation is not a route to efficient powers – as we saw when councils introduced low-traffic neighbourhoods without public consultation – but rather to chaotic and illegitimate laws that lack public support.
2. Fast-track PSPOs are vague or meaningless.
As Baroness Fox pointed out in her scrutiny of the amendment, the conditions for invoking a fast-track PSPO outside schools are incredibly vague.
The amendment will allow a ‘fast-track PSPO’ to be issued on the condition that:
activities carried on, or likely to be carried on, in the vicinity of the school have had, or are likely to have, a detrimental effect on the quality of life for pupils and staff.
This means that a PSPO could be created by the head of a school because of ‘activities’ that are ‘likely to be carried on’ and are ‘likely to have a detrimental effect on the quality of life’. It is hard to think of a vaguer or more meaningless condition.
In practice, this would mean giving headteachers the power to prohibit any activity outside their school, so long as they gain consent from the head of the council and the police. This could include banning parents gathering petition signatures, or just banning parents from gathering.
The proposer of the amendment, Lord Coaker, says that he does not believe that the leaders of schools, the police, and councils will ‘pick and choose protests’ because they are ‘upstanding public servants’. However, this is not how the law is supposed to work. We do not give open-ended powers to the police to arrest whomever they please, on the basis that they are ‘upstanding public servants’ and will use this power wisely. The point of the law – and the reason that it must be drafted precisely – is to specify the precise circumstances in which a particular power may be used, in order to ensure that it is used in the public interest.
The conditions for the issuing of a fast-track PSPO outside an NHS vaccination centre are tighter, requiring that:
activities have been carried on, or are likely to be carried on, in the vicinity of the venue with the intent of—(i) harassing or intimidating members of the public using the service, or staff or volunteers providing the service, or(ii) impeding members of the public from accessing the service, or staff or volunteers from providing the service.
Here, the conditions for installing a PSPO are more testing. Yet there is no requirement to provide evidence to prove that activities of this nature have occurred or will occur. An NHS official’s opinion that such activities ‘are likely to be carried on’ could be used to justify a much broader restriction under a PSPO, which can target not only intimidation but any activity judged to have a ‘detrimental effect on the quality of life’. This could mean, for example, prohibiting the expression of opinions on vaccination in the vicinity of a vaccination centre: people would henceforth be criminalised, not for harassment or intimidation, but for the mere expression of an opinion or showing of a placard.
3. Existing criminal law is sufficient to deal with significant infringements.
The amendment is justified in part in the light of recent cases of invasion of vaccination centres. Yet attacks on vaccination centres are already violations of many criminal laws, including theft, criminal damage, and trespass and public order offences. These are serious offences and should be prosecuted under the relevant law, for which the penalties are far more serious than any PSPO.
A fast-track PSPO could not and would not be used to prevent these incidents. These incidents were illegal invasions, and their perpetrators would pay no more attention to a PSPO than they did to existing laws on criminal damage. Rather, the role of fast-track PSPOs would be to create a new area of criminalisation, for example making it a crime to protest or express an opinion outside a vaccination centre.
Meanwhile, fast-track buffer zones around schools were justified by research claiming that 79% of schools have been targeted by anti-vaccination campaigners. Yet it is notable that this campaigning was mainly in the form of emails or the delivery of letters. In some cases it involved protests by parents outside the school, who were concerned that their children would be vaccinated without their consent.
Any incidents that involved the threatening of staff, or the forced entrance to school grounds, or physical attacks, are existing criminal offences that should be prosecuted by the police. The creation of a ‘buffer zone’ around a school will not affect these incidents, which are already criminal. Instead it will create a broader restriction, for example banning all protests or gatherings outside the school.
4. This amendment is geared towards the suppressing of debate.
The vaccination programme – as with any other aspect of policy – should be subject to open public debate. When calling for fast-track PSPOs around schools, Keir Starmer says that these are needed because
The uptake of vaccines among children is far too low and the Government’s rollout is painfully slow. Everything must be done to get those eligible jabbed as quickly as possible in this public health emergency.
Yet the question of vaccinating children is not without opposition or controversy. After all, the UK vaccination advisory body refused to recommend vaccinations for healthy 12-15 year olds on medical grounds, in spite of pressure from ministers. Chief medical officers overruled the advisory body to allow vaccination of this age group, on non-medical grounds. Ministers additionally established the principle that, in cases of disagreement, the child’s and not the parent’s wishes would prevail.
Therefore, the roll-out of the vaccination programme is one in which the political power of the state is implicated. When the state holds all the cards – the power to overrule committees, to issue directions to schools and health authorities – it is more vital than ever than people have avenues for protesting and contesting these decisions.
The attempt to establish political control over the expressing of opinions on vaccination could well have the opposite effect, and increase public distrust of this programme. Public legitimacy does not come by the way of ‘buffer zones’, and politicians and the heads of institutions must resist the temptation to retreat behind the walls of executive authority.