PSPOS — Blank-Cheque Powers
Public Spaces Protection Orders (PSPOs) are unprecedently ‘blank cheque’ powers, which allow a single council official to ban activities in public spaces within a matter of days, after a brief consultation with the police.
These measures have been presented as a decentralisation of power to local communities, but in reality central government has given certain council officers the powers to create new criminal laws, with minimal checks and balances and a very low burden of proof.
Our FOI requests have found that since the enacting of PSPOs as part of the Anti-Social Behaviour, Crime and Policing Act on 20 October 2014, 130 PSPOs have been passed in 79 local authorities in England and Wales. Some of these PSPOs have been popular with certain sections of the public; one or two have been the result of local campaigns. But many have passed silently without public notice, and several dozen have been staunchly opposed by local and national campaigns, sometimes passing anyway.
The year-and-four-months since these orders were introduced has been a year of law making as it has never before occured in this country. Before the powers came in, the Manifesto Club warned in a report that the powers would be used to target groups such as buskers and the homeless. At the time, the Home Office told us that they didn’t think this would happen. Yet now there are six councils restricting begging, three councils banning sleeping in public, and five councils restricting music or street art.
The Home Office does not collect data on PSPOs, so this FOI survey is the first indication of how powers have been used. The results confirm our concern that these orders would be used to target groups who were seen as ‘messy’ in public spaces, such as the homeless, young people or buskers. But we have been surprised by some of the bizarre offences that have been drawn up: the offence of carrying a golf bag in North East Derbyshire, of using noisy remote controlled vehicles in Hillingdon; the crimes of covering the face in Sefton, Halton and Birmingham, engaging in pavement art in Swindon, or being in a camping vehicle in areas of Luton or Wolverhampton. We did not expect that so many councils would criminalise shouting or swearing in a public place, or create new crimes of congregating in groups or loitering (defined by Blackpool Council as ‘standing or waiting around without apparent purpose’).
In some cases these orders have been brought through in areas where there are genuine problems with criminality or public order. In other cases, they have been brought through in largely trouble-free areas, and the law is merely criminalising an anodyne, even positive, part of life in public spaces, such as a busker playing a tune or an elderly person feeding the pigeons.
The PSPO does not solve the problems it seeks to address. PSPOs are no replacement either for the proper enforcement of the criminal law, or for positive measures improving life in run-down neighbourhoods. New offences that criminalise young people merely for congregating in a group neither improves their politeness nor does it increase their respect for the criminal law and authority figures. Banning street drinkers from town centres merely pushes them away to another part of town or a neighbouring town.
This report is a document of a very strange year in law making, and a call for proper limits to be placed in the Statutory Guidance accompanying these powers.
What are PSPOs?
PSPOs replace three previously existing orders issued by local authorities: gating orders, which allowed for the closure of alleys or other routes; Designated Public Place Orders (DPPOs), which allowed for the confiscation of alcohol; and Dog Control Orders, which could prohibit dogs from areas or require that dogs be on leads.
PSPOs cover a much wider area than these previous orders, which were themselves already problematic and open to abuse. PSPOs can be used to ban or regulate any activity in public spaces which the local authority believes to have a ‘detrimental effect on the quality of life of those in the locality’. A single order covering a particular public space, such as a park, can regulate any number of different activities. The violation of a PSPO is a criminal offence.
Furthermore, the PSPO allows for the regulation of potential activities and potential effects: the council can restrict activities which have not yet taken place, which it judges ‘are likely to have…a detrimental effect on the quality of life of those in the locality’.
The test included in the Statutory Guidance is that the activity ‘Is, or is likely to be, persistent or continuing in nature’ and ‘Is, or is likely to be unreasonable’. These are not, however, very significant limitations. (Another section of the guidance gives the example of somebody playing music and refusing to stop as evidence of persistent or continuing activity.)
PSPOs are also distinct from previous alcohol and dog orders in that: they can impose positive as well as negative conditions; they can limit activities at certain times of day or week; and they can be targeted at particular groups or individuals, or exempt particular groups or individuals.
In scope, PSPOs treat a range of activities similar to that covered by local byelaws, made under the Local Government Act 1972. However, whereas byelaws must go through democratic procedures, and be sanctioned by the secretary of state, PSPOs are made in a summary manner by certain local authority officers. Whereas byelaws would be enforced through Magistrates’ Courts, with due legal process and rights to a defence, PSPOs can be punished through on-the-spot fines of up to £100 issued by police officers and authorised local authority officers.
The hurdle of proving ‘detrimental effect on the quality of life’ is much lower than that previously used to justify restrictive measures in byelaws, which required some significant public harm or public nuisance. A Home Office Circular from 1996 stated that if a council wanted to introduce a new byelaw it must show that the ‘nuisance’ was sufficiently serious to ‘merit criminal sanctions’. It was also required that byelaws were ‘not partial or unequal in…application’, and that they did not ‘[interfere] with the rights of those whom they affect’. These important principles of local law-making have been lost with these new powers.
How Have Powers Been Used?
SUMMARY: In total, there have been 130 PSPOs issued by 79 local authorities, out of the 346 authorities with the power to enact PSPOs. Each order includes up to 10 different restrictions or bans. Some of these PSPOs impose controls that could have been imposed under previously existing alcohol, gating orders and dog control orders, but many have moved into an entirely different terrain. There have been 12 bans on loitering or congregating in groups, 10 on shouting or making excessive noise, and 9 on swearing. 3 councils have banned rough sleeping, 3 have prohibited the covering of the face, 5 have banned music or street art and 2 have banned assertive or aggressive charity collection.
Table 1. Activity Targeted By PSPOs
|Activity||No. of councils||Examples|
|Drinking alcohol||34||North East Derbyshire and Wolverhampton councils prohibited carrying an open container of alcohol. Some councils – including Wychavon, Boston and Conwy – have brought through complete alcohol bans, which runs directly counter to the Statutory Guidance which states that alcohol cannot be banned outright (‘it is not an offence to drink alcohol in a controlled drinking zone’).|
|Legal highs/ intoxicating substances||12||Lincoln Council was the first council to bring through an order banning intoxicating substances (defined as substances with the capacity to stimulate or depress the central nervous system). The order exempts foodstuffs and medicines. Several councils have enacted an identical text, although some (eg Wrexham) don’t include exemptions, which means that coffee and cough medicine would be prohibited under the order.|
|No-dog zones, dogs on leads||13||Dover Council banned dogs from some beaches. Broxtowe introduced dog-bans and dogs-on-leads areas in a park.|
|‘Means to pick up’ dog mess||2||Ashfield and Daventry require dog owners to produce when requested a receptacle for picking up dog mess.|
|Gating orders/ road closures||14||3 councils closed public highways to vehicles; 11 councils closed alleyways to pedestrians through the use of gates. Burnley Council alone introduced 14 separate gating orders, Cardiff introduced 6.|
|Loitering/ congregating in groups||12||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.|
|Shouting/ making noise||10||Kensington and Chelsea banned the revving of engines and the sounding of horns. Wolverhampton, Christchurch and Doncaster councils banned excessive noise. Kettering banned running car engines in such a manner that the noise causes a nuisance. North Kesteven District Council banned speech giving rise to reasonable annoyance or disturbance. Guildford Council banned shouting.|
|Swearing||9||Kettering and Wirral councils banned foul or abusive language. Hillingdon banned being verbally abusive. Lancaster banned swearing. Salford banned foul language. Guildford Council ordered that no person may swear at another person.|
|Disorderly behaviour||4||St Albans banned behaving in a disorderly manner. Nottingham City Council banned disorderly behaviour. Caerphilly Council banned behaving in an indecent manner.|
|Begging or aggressive begging||6||Banned by Corby, Stockport, Shepway, Poole, Oxford and Swindon councils. Stockport additionally banned sitting within 5m of a shop or ATM machine.|
|Assertive or aggressive charity collection||2||Banned in Kettering and Swindon.|
|Anti-social driving/ parking||6||Sefton and Christchurch Councils banned anti-social driving. Havering Council banned parents from parking outside primary schools. Birmingham City Council banned anti-social minimoto use. Colchester Council banned motorists from entering a retail park after 6pm unless using the facilities.|
|Face coverings||3||The wearing of face coverings was prohibited by Birmingham City Council, Sefton and Halton councils (Sefton also banned head coverings).|
|Music/ street art||5||West Oxfordshire Council banned the playing of music in recreation grounds between dawn and dusk. Oxford City Council banned street entertainment that causes a nuisance. Tamworth Council banned the playing of music between 8pm and 6am in one area. Swindon Council banned chalk pavement art.|
|Ball games/ skateboarding/ swimming||8||North East Derbyshire Council prohibited playing golf or possessing golf equipment in one recreation area. Conwy and Wirral councils banned swimming or entering a lake. Kettering Council banned skateboarding and Swindon Council banned skateboarding which causes annoyance. Hillingdon Council banned using remote controlled vehicles to cause a nuisance. Wolverhampton banned playing any ball games in the street.|
|Street trading||4||Blackpool City Council banned the sale of lucky charms and unauthorised publications, and engaging in card tricks. Brent Council prohibited offering casual work or running casual work minibuses stopping in the area. Oxford banned street traders from remaining for more than 10 minutes in a single location.|
|Caravans/ camper vans||2||Luton and Wolverhampton Councils banned camping vehicles and caravans from certain areas.|
|Rough sleeping||3||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).|
Banning the Annoying – A Busybodies’ Charter
These new powers take the criminal law into unprecedented areas. The notion that something should be restricted because it has a ‘detrimental effect’ on the ‘quality of life’ is an extremely low bar, which means that things can be banned simply because they are disliked by certain individuals or a group of people. It may be that some people think that rough sleepers have a ‘detrimental effect’ on their neighbourhood. But his would not meet the standards necessary for a criminal law restricting rough sleeping, which would require significant public harm or public nuisance, and also a due respect for the rights of the individuals who would be affected by the order.
In many of these PSPOs, the activity being banned is not, in itself, harmful. They target activities that can be unpleasant, or that some people find annoying or intimidating. But this is a subjective question: one person’s favourite busker could be another person’s awful racket. It does not meet the objective threshold of public harm justifying an intervention of the criminal law, with the associated threats of fines and criminal records.
Indeed, in some cases the targeted activity is in itself entirely anodyne. The 12 councils who banned loitering or congregating in groups have prohibited the most basic thing that someone could do in a public space: it becomes an offence just stand there. Now it may be that some of these individuals hanging out in groups may commit criminal acts. But the PSPO did not target the criminal acts, it criminalised standing or waiting around without apparent purpose.
More than this, some of the banned activities represented the more interesting uses of a public space. The skateboarders banned from the centre of Kettering pointed out that skateboarding is an entirely legitimate activity, an Olympic sport in fact. Swindon’s ban on pavement art targeted the town’s pavement poet, one of the features of its public life who is a popular local figure. Meanwhile Jonny Walker, busker and director of the Keep Streets Live Campaign, has opposed busking PSPOs and argues that in fact street music brings public spaces to life:
Busking creates a sense of urban community and can help break down barriers between strangers adding a unique sense of place to our towns and cities. It fosters opportunities for serendipitous encounters and can make alienating environments more welcoming and safer as buskers add an extra pair of eyes and ears to the streets. Buskers create everyday interventions in the lives of our urban centres that have the capacity to significantly impact the wellbeing of those who encounter them.
There has been a relatively conscious attempt on the part of councils to move into the terrain of regulating questions of subjective likes and dislikes. The Oxford councillor who led the attempt to ban rough sleeping, pigeon feeding and non-compliant busking, said that her council wanted to ban anything that made people feel ‘uncomfortable’. Feeling uncomfortable – or feeling annoyed, or intimidated – are not terms ordinarily used in the context of the criminal law, yet they are found throughout documents justifying the implementation of PSPOs. Barnsley Council said that it would introduce a PSPO if it thought that the impact would be ‘broadly positive’ for local people and service users. This sum of subjective likes and dislikes is devoid of any of legal principles such as individual rights or significant public harm.
Several councils have introduced PSPOs to restrict activities that did not meet the threshold of statutory nuisance (required for a noise abatement notice) or a criminal offence. This was the case with the Colchester Council order banning people from driving into a retail park after 6pm unless using the facilities, or remaining in the carpark more than 20 minutes after leaving a retail outlet. This order was targeted at car enthusiast meet-ups organised by groups such as the East Essex Cruisers. When the police visited one of these meet-ups they said that they couldn’t intervene because ‘we are not finding them doing anything much‘: the motorists were looking at each other’s cars, some revving their engines or playing music on the car radio. The only offence was the sale of burgers from vans without a licence. The officer complained that ‘Those people are not going there to use the businesses, they are going there to socialise’. The activity did not meet the threshold of criminal harm or statutory public nuisance, so the council lowered the bar to criminalise people going to a carpark to socialise.
The PSPO power, therefore, is a Busybodies’ Charter: it allows council authorities to interfere in the activities or non-activities of groups in public spaces, on no basis other than they are not to someone else’s taste.
Blurring Crime and Non-Crime
These new powers are leading to a blurring of criminal and non-criminal behaviour, which are increasingly lumped together into the amorphous and vague category of ‘anti-social behaviour’. When councils and police talk about anti-social behaviour they could mean acts that meet the threshold of criminal harm, such as assault, theft or criminal damage. Or they could just mean someone busking in a non-designated spot or a homeless person sitting on a bench. The innocent activity is criminalised, and the criminal is downgraded into the subjective category of ‘anti-social’, which could just mean something that annoys someone.
Some of the council reports justifying the introduction of a PSPO include statistics from the police regarding the number of assaults or acts of criminal damage in the area. But then the PSPO will criminalise actions such as ‘loitering’ or ‘congregating in a group’, which in themselves bear no relation to a criminal act. Rather that enforce the criminal law they are creating a second, broader, pseudo-crime, which essentially allows the police to move anyone out of the area on the suspicion that they might do something wrong later on.
There were some PSPOs which included activities which are already crimes, such as assault, criminal damage or causing harassment, alarm or distress (which is an offence under the 1986 Public Order Act). Some of these examples are below.
|Birmingham City Council||Using or threatening to use violence against any person. Riding mini-motos in manner deemed by an authorised person to be anti-social.|
|Guildford Council||Unlawful possession of controlled drugs.|
|Halton Council||Any activity which may cause damage, defacement or harm.|
|Dudley Council (draft)||Damaging the fabric of the building including lighting fires within the building.|
It appears that the aim is to allow criminal offences to be punished with fines or moving someone on, rather than prosecution. It also allows these offences to be punished by council officers as well as police officers. This is a significant shift. A council employee such as a neighbourhood warden or environmental officer, or indeed council contractors from private security companies, would in these areas have the power to fine someone for something that is a genuine criminal act. This creates a doubling of the law, whereby there are two levels of the same offence. This reduces the consistency with which offences are treated and takes a new range of officers into the realm of enforcing the law.
For example, the 1986 Public Order Act offence of ‘harassment, alarm or distress’ is a vague offence of dubious legitimacy. However, when it comes before the courts then there is at least an interrogation of whether the alleged behaviour reached a sufficiently high bar to merit criminal sanction. For example, courts have found in favour of defendants prosecuted for swearing at the police, judging that this was the language of the age and not actually distressing for officers. But once this public order offence becomes a PSPO offence, it is removed from legal procedure and an established body of case law and punished on the say-so of a police or council officer.
The two PSPOs prohibiting anti-social driving double up the existing offence of dangerous driving, a very serious offence that could be applied to anybody racing dangerously in parks. Yet instead of enforcing this long-standing offence, the PSPO creates another vague and meaningless offence, of anti-social driving or anti-social minimoto use. Thurrock Council has created an offence of congregating to take part in or to spectate a car cruising event, which would criminalise people irrespective of whether they had done anything wrong.
The ban on intoxicating substances is also an extremely vague prohibition, defined as substances with the capacity to stimulate or depress the central nervous system. Most councils exempt certain products, such as food stuffs (which would include coffee or energy drinks) or pharmaceutical products (such as drowsy cough medicines). Some councils do not include this exemption, which would criminalise somebody having a cup of coffee or tea. Halton Council banned being under the influence of any substance, which means it would be an offence to enter this area after having had a glass of wine.
We can see this blurring of criminal and non-criminal behaviour in some of the reports of PSPO enforcement. West Oxfordshire Council prohibited behaviour deemed to be anti-social in one area (along with banning barbecues, the playing of music and the consumption of alcohol except at council events). The council had issued two fines for violation of the order, and reported that the situation was as follows:
two persons were checked by police after they were seen by PCSOs with white powder on their face and to discard what appeared to be a wrap. They admitted to the officer that they were using what they believed to be cocaine. Neither seemed concerned that they were in a play area for children and the wrap that they discarded could cause harm to a child. The officer believed the use of drugs was purely recreational and because where they were in a public park the behaviour of the two individuals was anti-social thereby breaching the PSPO.
Here, somebody discarding a cocaine wrap in a children’s playground was merely deemed to be behaving anti-socially, a category that councils might equally apply to somebody shouting or laughing too loudly or playing the guitar.
Pushing Problems Away – From Public Service to Pest Control
In some cases PSPOs are brought in in areas where there are genuine problems, say of street alcoholism or very badly behaved young people, but in every case they do nothing to deal with the problem. In fact, the main aim of PSPOs targeted at these groups is simply to clear them out of the area, which pushes them to more out-of-the way places where there are fewer public influences over their actions.
Bans on young people’s activities in public spaces cannot but be counter-productive. For example, the town square is actually an excellent space for skateboarding, and skateboarding is actually an excellent hobby for teenagers, requiring discipline, practice and fitness. Youth activities in public spaces are not only enlivening for that public space, they also (as outlined by the US urbanist Jane Jacobs) have an important civilising influence, meaning that young people learn how to conduct themselves independently around adults in public. Kettering Council’s skateboarding ban – along with other councils’ bans on ball games, swimming or remote controlled vehicles – could leave teenagers with nothing to do or push them to less public areas. It is notable that some of the PSPOs are targeted at carparks: as skateboarders are pushed out of the town square they start to skateboard in places such as carparks, which then require subsequent PSPOs.
Similarly, some councils seem to be aiming simply to clear homeless people or street drinkers out of town. After Shepway banned sleeping in public, the groups of homeless people simply disappeared overnight, apparently to neighbouring towns. Hull Council reported that the initial PSPO had cleared street drinkers out of the city centre, but they had simply moved to adjoining neighbourhoods, so the council proposed extending the PSPO to this area. In Poole the order banning begging and street drinking was brought through to target a small group of people, some of whom lived locally some of whom were homeless. After the order was introduced this group moved away to other towns or to drink at home, which the council judged to be a success.
Young and homeless people are seen, not as individuals to be respected, helped or even disciplined, but as a pest population to be exiled from public spaces and in some cases out of town. The real relations between homeless people and their resident cities is more varied, sympathetic and respectful. In Cambridge, for example, the council’s consultation for a PSPO banning alcohol targeted at street drinkers discovered a range of views, with many members of the neighbourhood saying that the street drinkers were no trouble or that they needed help rather than criminalisation. In Oxford, where the council sought to ban rough sleeping, student organisations such as On Your Doorstep strongly opposed the measures.
Meanwhile, Brent Council’s PSPO prohibiting the offering of casual work is short-sighted as a social policy. Here was a system whereby the otherwise unemployed could pick up casual work, bringing together free hands and jobs that need doing in the area. The minibuses picking up casual workers may have created traffic jams from time to time, but if there were real issues the council could have allocated a place for the minibuses to stop. Yet instead it merely pushed people out of public spaces. Now other London councils are seeking to follow suit.
There is a similar issue with Havering Council’s ban on parents parking outside schools. No doubt the surge of the school run can create problems, but there can be other solutions – broadened stopping areas, for example, or more school buses. One way or another parents have to get their children to school. Yet the public authority, with supposedly public service interests at heart, instead creates a crime of parking outside a primary school. This treatment of parents dropping their kids off as pests to be pushed away shows an attitude quite at odds with the traditional public service ethos. It also, as one teacher said on BBC Radio Wales, creates a conflict between parents and teachers (the teachers were to be given the job of handing out fines) which is highly antithetical to the effective running of a school and the education of children.
In some cases, the mistargeted PSPO can actually encourage the behaviour it is seeking to solve. This is the case with the measures requiring dog owners to always have a means to pick up dog mess. Rather than target the problematic act of dog fouling – which is already an offence – some councils instead create a new offence of not possessing a dog bag. Dog organisations have pointed out that this would create an incentive not to pick up if you had only one bag left, even if you were near home and you knew that this would be the only bag you would need. Indeed you could comply with the order by never picking up dog mess and simply keeping a plastic bag tied to the dog lead.
Similarly, some of the more heavy-handed measures targeted at young people are likely to increase their disrespect for adult authority. Bassetlaw Council brought through a ban on shouting, swearing, and under-16s gathering in groups of three or more. Six months later, the council and police report that these ridiculous prohibitions have not created model respectful youths: instead, the young people continue to intimidate and swear at shoppers and passersby. The council suggests extending the PSPO area, but the truth is that this neighbourhood’s problems are not a matter for the criminal law – there is no suggestion of actual criminal acts – but of the ordinary community socialisation of young people, which was clearly failing in this case.
In a similar vein, Croydon Council had planned a PSPO banning rowdy and/or inconsiderate behaviour. Politeness is very important but it cannot be enforced by a PSPO. Once civility becomes the subject of an order it becomes an formal, coerced demand, rather than the consequence of one’s relations to others in a community. Therefore, PSPOs enforcing politeness misplace the problem: it can only deepen the estrangement of youth when they are faced with nonsense criminal law which seems hostile to their very presence.
These problems with PSPOs are even more in evidence if we examine draft PSPOs currently under discussion. The rate of passing PSPOs was slow at first, but has accelerated over the past few months, and so the orders due to come in over the next year will outstrip what has been passed so far.
Table 2. Draft PSPOs
SUMMARY: 113 councils have proposed draft PSPOs or are planning to introduce a PSPO in the near future. These include: 8 bans on begging, 6 bans on rough sleeping or unauthorised bedding; 5 on non-compliant busking; 3 bans on charity collections; 3 bans on swearing/making excessive noise; 3 on loitering; 2 on feeding birds.
See full dataset containing all draft PSPOs.
|Council||Details of banned activities|
|Maidstone||PSPO 1. Town centre ban on: alcohol, legal highs, unauthorised collection of money, sleeping in public places. PSPO 2. Ban on amplified music along river 11pm-8am.|
|Stevenage||Begging (including sitting on ground in public place or sitting near cash machine) and loitering or sitting within 10 metres of pay machine.|
|Croydon||Joining or remaining in groups likely to cause harrassment, alarm or distress to others.|
|Newcastle||Assertive or aggressive charity or commercial collection; busking after 8pm; begging.|
|Waveney||Ban on dogs on Southwold beach all year round.|
|East Cambridgeshire||Loitering on footpath, and using foul or abusive language so as to cause a nuisance.|
|St Albans||Sleeping in public places; swearing, shouting or acting in a threatening manner.|
|Wigan||Aggressive begging or begging outside shops; congregations of youths whose behaviour intimidates; rowdy behaviour associated with alcohol|
|Cambridge||Banning punt and walking tour touts from public places in the city centre|
|Southampton||Begging; loitering with the intention of begging; loitering for purpose of consuming alcohol|
|Northampton||Begging; busking non-compliant with busking protocol; parked up ‘cars for sale’|
|Cheshire West and Chester||City centre bans on: feeding birds, lying down or sleeping in public place, bedding materials, begging, unauthorised busking, alcohol, intoxicating substances.|
|Newport||Alcohol, begging, dogs off leads, fly posting, A-boards and unauthorised charity canvassing.|
|Exeter||Bans on: begging, unauthorised bedding, intoxicating substances, behaviour causing harrassment, alarm or distress. The order gives officers powers to seize and destroy the bedding of rough sleepers.|
|Blackpool||Parks – restrictions on commercial fitness groups, remote controlled vehicles, substance mis-use, behaviour causing harassment|
|Harrow||Picking up casual workers in defined area|
|Doncaster||Town centre – ban on begging, rough sleeping, groups of 5 or more causing harassment, excessive noise, games that cause nuisance and annoyance, open containers of alcohol, intoxicating substances|
|Gravesham||Bans on: feeding pigeons, inconsiderate busking, lying or sleeping in public places, alcohol confiscation, legal highs, unauthorised collection of money|
How Have PSPOs Been Passed?
SUMMARY: There are no statutory requirements for public consultations, or for PSPOs to be passed through elected council representatives. Councils must consult the police, and then any members of the public or other groups as they think appropriate. Councils draw up their own arrangements for the enactment of PSPOs, which can be carried out by a named officer or committee, or full council. Out of the 56 councils who have passed a PSPO and provided the data, half (28 councils) have done so through a single council officer. 17 councils (30 percent) passed the order through a committee, but only 9 councils (16 percent) passed the PSPO through full council. Five councils have enacted a PSPO without carrying out an open public consultation. Of those that consulted, some have received fewer than 10 responses and there have been cases of councillors and police officers responding to their own consultation. Some councils have enacted a PSPO even though the measure was opposed by a majority in their public consultation.
Table 3. Authority Passing PSPOs
|Authority passing PSPO||Nos. of councils||Examples|
|Single council officer||28||St Albans’ ban on acting in a disorderly manner was authorised by the chief executive. Shepway’s community safety manager authorised a ban on begging and sleeping in public. Sefton’s ban on face coverings was authorised by the chief executive. Brent Council’s chief operating officer enacted a ban on offering casual work. Wirral Council’s head of legal and member services authorised a ban on swearing and going in the lake. Conwy Council’s ban on swimming was authorised by a designated council officer. Halton Council’s strategic director, communities, authorised a ban on covering the face and being under the influence of any substance. Doncaster’s ban on excessive noise and games that cause a nuisance was enacted by the assistant director, communities.|
|Two officers shared authority||2||Bolton and Oldham Councils’ gating orders were passed in collaboration between two council officers.|
|Committee (not cabinet)||4||Christ Church Council’s ban on excessive noise and anti-social driving was enacted by the Community Services Committee.|
|Cabinet/Executive Committee||13||West Oxfordshire’s ban on music between dawn and dusk on recreation grounds was authorised by Cabinet. Oxford City Council’s Executive Committee enacted a ban on nuisance busking, aggressive begging and dogs in covered spaces.|
|Full council||9||The following councils enacted PSPOs through full council: Taunton Deane, Lincoln, Daventry, Lambeth, Newham, North Kesteven, Boston, Windsor and Maidenhead, Blackpool.|
Arbitrary Power For Council Officials
There were one or two councils where PSPO measures were the result of a public campaign. The notable case was York, where local residents held demonstrations calling for an alcohol ban to ‘get the anti-social drunks off our streets’. Here there seemed to be a clear clash between street drinkers and some of the residents, and the residents made the demand for the order. This PSPO was the exception, however; the vast majority of orders were initiated relatively independently by certain council and police officers.
PSPOs take local authorities into unprecedented terrain, as law-making and policing authorities. Certain council officials now have the powers to write laws, creating new crimes, which are then policed by their own officers such as neighbourhood wardens, environmental or community safety wardens, and largely punished through on-the-spot fines without passing through a court of law.
Never has the creation of crimes been attended to with so few procedural requirements; a PSPO can be written by a single council officer and passed in a few days. It is also very unusual for the writing of laws to be in the hands of appointed officers, as opposed to elected representatives. Only 16 percent of councils passed a PSPO through the assembled body of elected councillors (and it is not clear how many of these allowed time for a proper open debate on the subject). Half of councils passed a PSPO through a single council officer, while 30 percent of councils passed a PSPO through a committee. In these terms, PSPOs do not represent a new era of local democracy but rather a new era of arbitrary power for certain appointed officers.
Indeed, it is notable that many of the most problematic PSPOs were passed by a single council officer. Where the PSPO had to go through full council, it was often qualified or even rejected. For example, Carmarthenshire’s full council threw out a plan to greatly extend no-dog zones and dogs-on-leads areas, which it judged to be unreasonable. The new scaled back plans have now gone out for consultation.
PSPOs also mean a further extension of local authorities’ policing role. The council officers authorised to police the PSPO will include: delegated housing officers, delegated licensing enforcement officers, planning enforcement officers and delegated environmental services officers, community protection officers, community safety officers, environmental health officers, nuisance officers, park rangers, street scene supervisors, and enforcement officers. In theory, any council employee could be authorised and so gain policing powers such as powers to disperse groups from an area, to confiscate items and to issue fines for these new criminal offences. This also includes councils’ private contractors which issue fines on a commission basis. Conwy Council said that in the future its private contractors (currently Kingdom Security) would enforce a PSPO banning swimming and jumping into a pool.
This means that the same council department that wrote the PSPO could then be responsible for policing it. In these terms, laws can be written in a pragmatic manner, to provide an arrangement that suits those who will be policing public spaces and streets. This explains many of the PSPO texts: they appear to have been written by policing authorities in order to make their lives easier. If you asked police officers to write laws, they would come up with this sort of thing: no being anti-social, no being in groups, no alcohol. It is easier to clear groups from an area in a pre-emptive manner than it is to respond to and prosecute particular offences.
PSPOs therefore have a double-edged relationship with the police. On the one hand, these new measures create a series of bogus crimes – such as busking in non-designated spots or carrying an unopened can of alcohol – which could drag police officers into enforcing petty issues. But on the other hand, many PSPOs have been drawn up in close collaboration with the police, even at police instigation (such as the draft Cheshire West and Chester Council PSPO proposed in a report by a police chief inspector), and have the quality of ‘police state’ law. That is, this is the law that is ideal from a policing perspective, a law that in effect allows officers to do whatever they want to do. If they find it expedient to move a group on they can do it; if they want to get the street drinkers out of town they can do it. If they think someone might cause trouble they can slap them with a fine or threat of fine for swearing, without having to wait around to see if they do actually cause trouble.
In societies where the police fuses with political authority then laws will tend to criminalise everyone and allow police bodies to take the action they see fit. The PSPO is clearly very different to totalitarian law, but it shares the feature of the writing of law according to the priorities and expediency of policing authorities.
The lack of checks upon introducing PSPOs also means that these measures can reflect the private interests of particular lobbies. In some cases – such has Croydon – a PSPO tackling rowdy behaviour and street drinking coincided with a new shopping centre or major redevelopment programme. That is, the council coordinated with the company involved in the redevelopment programme about these measures designed to ‘clean up’ the town centre. In other councils (such as Liverpool and Chester) the PSPO proposition appears to have been generated or supported by the BID; in Barnsley the proposal came from the Stronger Safer Healthier business unit.
Finally, in one case a PSPO appears to be being used by one side in a local trade war, in defence of business interests directly linked to the council. Cambridge City Council is seeking to ban independent punt operators and walking tours from touting in the city centre. These independent companies – who have been trading for years as perfectly legitimate businesses, since a council licence is not obligatory – would have to shut down if the PSPO is passed. Tom Arnold, director of the independent company Traditional Cambridge Tours Ltd says that:
The PSPO is related to the council’s new not-for-profit Destination Management Organisation (DMO) which seeks to be self funding in three years time. It will do this by making money from commission via punting sales to one major operator and its own walking tours. This PSPO will mean that the 6% of the punts currently held by independents will be out of business. No rival tours will be permitted to compete with the council’s own by touting or advertising their services in the city centre. 65% of river frontage is already leased at below market rental by the council to one dominant company. This company owns 60% of the punts on the river. Both the council via its DMO and this company stand to reap several hundred thousand pounds per annum from this order being passed. This financial benefit has been completely omitted from the consultation. 100 young people stand to lose their jobs from this order and four independent companies stand to go out of business.
Since the council can define ‘anti-social’ or ‘detrimental’ behaviour almost without limit, this creates an obvious danger that these powers will be used by certain sectional interests against others, and even to defend the economic interest of council-linked companies against that of independent operators.
However, it is important to recognise that the lack of procedural requirements also makes it possible for PSPO plans to come from a variety of different bodies and indeed to surprise those in charge of the council. Liverpool City Council scrapped plans for a PSPO banning begging and temporary structures in public spaces; the plans had gone out for public consultation without the mayor or cabinet hearing anything about them. A cabinet member described the proposals as ‘a bit daft’ and said that the mayor was also firmly against them. Because of the lack of established procedures, therefore, there is also a potential for PSPOs to be proposed in a disorganised manner against the wishes of elected council leaders.
Certainly, there are many councillors who oppose the unreasonable use of these orders and have sought to oppose them within council bodies, but they are hampered by systems of executive authorisation. The Cambridge Liberal Democrat councillor Tim Bick attempted to have his council’s PSPO discussed in full council, in order that he could challenge it in open debate, but this request was rejected. Green councillors staunchly opposed the Oxford city centre PSPO for many months, but again they did not have a chance to argue the matter in full council and have the decision stand on a vote of all councillors.
Finally, we should also emphasise that the abuse of these powers is not inevitable and that many councils are choosing not to use these new powers. 161 councils told us that they had neither brought through a PSPO and nor were they planning to. That is, at present, a large portion of councils are avoiding the use of these powers and seeking alternative solutions to problems they face. Fareham Council told us: ‘We do have the power to enact these orders however have taken a preventative early intervention approach. Enforcement is always this authority’s last resort.’ This approach is to be commended. Not only is this respectful of public liberties, it also allows local authorities to seek public service solutions to community disputes or complaints, rather than leaping to criminalisation.
Five councils, including Hackney and Allerdale, have passed PSPOs without holding a public consultation. The Hackney PSPO – which banned seven activities including rough sleeping, begging and loitering – appeared overnight to the surprise of everyone. The local paper had heard nothing about it. The law was not even available on the council website; it could only be found towards the back of a council magazine. The council said that it had consulted with local residents, but this may have meant that their officers spoke to some local businesses or a few members of the public. There was no open debate or call for submissions in advance.
Most councils have carried out a consultation, albeit with varying degrees of publicity and response. Ashfield’s consultation on its dog and alcohol restrictions received only nine responses: two from councillors, two from the police, one from the Kennel Club opposing sections of the order; and four responses from members of the public, two were neutral, one was for the order, and one against (these consultation responses were obtained by an FOI request by the Kennel Club). Hardly an overwhelming mandate in support, yet the report to the council summarised these results as follows: ‘The Council has undertaken full consultation with organisations and groups associated with dogs and dog walking as well as the general Public… There has been minimal opposition to the order (only 2 people formally objected), with the majority of the comments received, including from the Police and Crime Commissioner, and Nottinghamshire Police fully endorsing all aspects of the Order.’
In some cases, then, consultation means primarily consultation within the council, police and their partners. Police officers were actively promoting the Cheshire West and Chester Council consultation during the consultation stage, while Croydon Council sent its consultation to the Westfield and Hammerson property developers and asked them to ‘cascade this to all your networks’.
Councils are free to frame the consultation questions as they see fit, which means that the structure often appears designed to get the desired affirmation of the order. Some consultations left nowhere for you to disagree with the measures as a whole. Carmarthenshire’s consultation asked which areas should be included in the no-dog area – parks, picnic areas, beaches, etc – but there was nowhere to say that you didn’t think any of these areas should be included. Gravesham Council’s consultation for a busking PSPO asks you whether ‘buskers providing musical entertainment’ was a ‘big problem’ or ‘not a problem': there is nowhere to say that you positively liked busking in the town. The consultation then asked ‘Which of these options do you support to deter inconsiderate busking in public spaces?’, and gave the choices of a code of conduct or the additional use of a PSPO. There was no option of saying that you did not support either of these options.
Consultations including Oxford and Maidstone used very subjective language in the questions, asking people if they have been ‘affected’ by begging or busking. The term ‘affected’ is imprecise, and does not specify how you have been affected (one could be affected by homeless people in feeling sympathy or concern, for example, or you could be affected by busking in a positive manner). Consultations also often asked people: ‘How safe do you feel in this area in the day/at night?’, a general inquiry into their feelings of security which is then used to justify specific restrictions. Other consultations asked whether people whether they thought activities were a ‘problem’, which is similarly vague (many things are problems without it making sense for them to be criminalised).
Croydon Council’s consultation asked: ‘To what extent do you agree or disagree that each of these behaviours has affected your enjoyment or use of the town centre?’ This framing is a long way even from the already low bar of proving a detrimental effect on the quality of life. Many behaviours could affect your enjoyment of the town centre, from noisy phone conversations to people jumping the queue in fast-food restaurants. By creating such a subjective frame the council sets up a consultation that affirms its specific propositions.
Council reports proposing PSPOs often included vague statements or complaints from individuals in support of the case that a particular activity was having a detrimental effect on the area. Blackpool Council’s consultation report quoted statements from the public such as ‘I am fed up of beggars on the streets around the town centre and also the drunks in the shelter next to the north pier’ or ‘I find some of the drinkers/beggars quite intimidating at times, their appearance can be off putting when in the street’. Cambridge Council’s document of the 33 complaints it had received about punt touts included many simple observances that a group of touts had been observed in this or that street, and only one or two involved actually threatening or problematic behaviour.
Oxford City Council topped its consultation questions with a blurb justifying the measure. For example, the question about whether the PSPO should criminalise violations of the busking code (which would mean fines for buskers playing for more than an hour at a time) was introduced in the following way:
Oxford City Council encourages safe busking and street entertainment in Oxford city centre. A voluntary code of practice has been developed over a number of years to support this aim for the benefit of the public and the entertainers. The code of practice covers noise levels, length of time in one place, authorised locations, size of pitch area and the authorised period of entertainment. The code of practice is available on the City Council’s website. However, some entertainers do not comply with the code resulting in unfair and sometimes unsafe practices.
Consultations do not present the PSPO as a form of new criminal law, but as an ‘option’ to ‘tackle’ problematic behaviours. We have not encountered a PSPO consultation which asked the one question that needs to be asked: ‘do you think that this activity should be criminalised?’
This may explain some strange discrepancies in consultation results. Blackpool’s consultation into banning card tricks, loitering and street drinking, found that between 16 and 34 percent of people thought that these different activities were ‘a very big problem’, yet between 52 and 62 percent agreed ‘very strongly’ that they should be banned. Why would they support banning something they didn’t think was a problem? Perhaps because the activity is made to sound disreputable and the PSPO is presented as a positive ‘proposal’. The council’s ban on sales of all unauthorised publications was described as an proposal for dealing with ‘rag mag’ sales ‘not for legitimate charities’. The ban on card tricks was described as a restriction on ‘card tricks and scams’.
However, to their credit, 11 councils scrapped or changed PSPOs after a negative response in a period of public consultation. Birmingham City Council dropped plans to ban microphones (which would have affected buskers and political protesters) after a largely negative consultation response. Bassetlaw decided not to bring through a dogs-on-leads order in all nature reserves. Norwich dropped plans to ban skateboarding, and Kettering scaled back the area in which skateboarding would be banned. Bath Council dropped plans to ban amplification in the vicinity of the Cathedral, which would have affected a popular busking area. Hackney scrapped a PSPO which had been passed, after 80,000 people signed a petition against it.
Oxford City Council, meanwhile, scaled back some of its PSPO – dropping plans for bans on rough sleeping and on pigeon feeding – but continued with measures that were unpopular and had been rejected by a significant majority in the consultation. Its report on the consultation privileges the consultation responses received before student groups became aware of the PSPO and began campaigning against it. The 200 or so early responses are therefore seen as the authentic public view, prioritised over subsequent responses, including the 900-strong petition from Oxford students and the 66,000 signatories of a public petition against the order.
This means that councils are pushing ahead with orders against the wishes of their own consultation. Only six percent of responses to the Oxford consultation said that they had been ‘affected’ by the issue of people sleeping in public toilets, hardly resounding evidence of this presenting a detrimental effect for their quality of life – yet the council continued with this measure regardless, criminalising the act of ‘remaining in public toilets without reasonable excuse’. Swindon Council pushed ahead with its plan to ban the pavement poet, even though 68 percent of the public opposed this measure in the consultation.
This shows that councils are relatively free to consult in the manner that suits them and make what they will of the results. The lack of procedural requirements, and the subjectivity of the ‘detrimental effect’ used to justify a PSPO, means that the evidence marshalled is of varying quality and objectivity. Some council officials will exercise restraint and take on board consultation responses, but others will not. The question is down not to established procedures but to the character of councillors and the political dynamics within particular councils.
A more independent form of public opinion has come about in several petitions against these orders, including in Hackney, Oxford, Chester and Birmingham. These petitions have provided an independent form of appeal and allowed the public to directly express their opposition to the order. There are also a growing number of national groups who have intervened in consultations and opposed specific orders, including Keep Streets Live, the Kennel Club, Liberty, the Standing Committee for Youth Justice, and individuals such as the performer/activist Mark Thomas and the academic Bradley Garrett.
PSPOs – A New Model of Law
PSPOs are laws but not as we know them. Councils are creating new criminal offences and new legislation, but they are doing this in an unprecedented manner.
The lack of procedural requirements means that some of the new PSPOs have the feeling of having been written on the back of an envelope. In a couple of PSPOs (Liverpool and Birmingham) there are spelling mistakes in the actual text. In one case there was a significant problem in the final text simply because a council officer forgot to delete one of the clauses, and so an area was declared a no-dog zone that should not have been (because it included a public right of way). Hillingdon Council neglected to add an exemption for assistance dogs on its orders banning dogs from children’s playgrounds, meaning that a child with a blind parent or a disabled child would be unable to enter the playground.
Similarly, some of the prohibitions on public urination – including Hackney and Ashfield – neglected to exempt toilets from the restriction, meaning that it is illegal to urinate as a whole (Ashfield states that ‘no person shall urinate or defecate in the Designated Area’). Legal highs bans in councils such as Wrexham have neglected to exempt food stuffs, which means that the ban on any stimulating or depressive substances would include coffee and tea. Bolsover Council’s ban on unopened cans of alcohol would mean that someone would be committing an offence as they came out of the supermarket.
Because PSPOs need not be restricted to harmful acts, their provisions can be so broad as to include almost every aspect of life. Two councils – Halton and Caerphilly – prohibited people from possessing any object that could cause damage or harm or any potentially dangerous item. Many items could cause damage or harm if, for example, you were to hit someone with it: hockey sticks, golf clubs, scissors, fountain pens. Salford’s ban on throwing any object at any person would prohibit playing catch. The loose nature of the primary legislation has given birth to loose law, mickey-mouse law, where it is not at all clear what activities are being referred to.
Several councils have introduced complete alcohol bans, which runs directly counter to the Statutory Guidance which states that alcohol cannot be banned outright. (Instead councils can make it an offence for someone to refuse to hand over alcohol if asked by an authorised officer). This restriction on not actually banning alcohol outright is one of the few limitations in the PSPO legislation; that it has been ignored suggests that some councils have paid little attention to the specifics of the powers when making these orders.
In some cases, the actual text of the PSPO is not taken very seriously at all. Indeed, in several dozen councils the PSPO text cannot be found on the council website. Instead, there is often a press release announcing new laws which will ‘crack down on completely unacceptable anti-social behaviour’, or some such. This includes a quote from a council officer saying that the law will send a message that anti-social behaviour will not be tolerated; a quote from a police officer about how the law provides a useful tool for officers and will help them deal with problems. But you cannot find out what the order says or what behaviour exactly is prohibited. This creates the situation where people can unwittingly commit an offence, since even if they know that a new crime has been created they do not know what it is.
Finally, several councils have drawn a distinction between the law and how it will be applied. For example, they create a PSPO banning rough sleeping which carries on-spot fines, but then say that this will not be used to criminalise the homeless or to fine them. Some councils who sought to ban rough sleeping in a PSPO (such as Hackney and Oxford) became quite exercised when members of the public said that they were criminalising rough sleeping. This, apparently, was ‘misinformed’. In fact, council officers explained, the council would instead be using the order to get homeless people to accept treatment or accept a hostel, or to bring them in front of a magistrate so they can be prescribed treatment. They wished to separate the text of the law from the way in which they envisaged using it.
Cambridge Council brought through an alcohol ban, but stated that this would only be enforced against those behaving anti-socially. Liberal Democrat councillors attempted to change the PSPO text such that the text would be in line with their stated intentions and target only those behaving anti-socially. However, council authorities refused: they wanted to have a text much broader than their stated intentions.
This means that the writing of law is not a question of precisely defined criminalised behaviours. Instead, it is a matter of creating a sufficiently broad definition of a crime such that it will allow police and officials to deal with situations as they see fit.
Laws For Behaviour Control
The statistics on the enforcement of PSPOs suggest that these powers are not being enforced like other criminal laws. The number of prosecutions and fines are lower than would be expected with the creation of several hundred new crimes. Instead, the preferred form of punishment appears to be confiscation – removing the prohibited item – or sending someone out of an area.
Table 4. Penalties For Violation of PSPOs
|Penalty for violation of PSPO||Number issued|
It appears, then, that the impact of PSPOs is only in part through formal sanctions such as prosecutions and fines, and more broadly as a means of behaviour control. The PSPO is used as a way of moving people on or forcing them to stop doing what they are doing. We have no way of knowing how many individuals have been prevented from carrying out an activity in public space – how many buskers were told to stop playing, or homeless people cleared from a town centre, or young people dispersed from an area.
Indeed, several councils have said that they do not want to use these powers to issue fines and penalties; instead, they want to use them to ‘change behaviour’. That is, the law is not a text that is meant to be enforced to the letter; it is a document that allows authorities to tell people how to conduct themselves in public spaces. The primary aim seems not to be to fine rough sleepers but to use the threat of fines in order to get them to do what the council or police wants them to do, whether that is go to the hostel, undergo treatment, or leave town. This is not any less objectionable, of course. The council and police in these terms are not enforcers of the law, but all-purpose behaviour police.
Finally, it must be said that this high level of confiscation represents a severe infringement upon personal freedoms, and this will worsen if some of the planned orders come through. Salford Council’s proposed PSPO, for example, will mean that ‘If requested by a Police Officer you must surrender any object that they believe may be used to commit anti-social behaviour’, an extremely broad condition which could lead to the confiscation of anything from pens to instruments to sports equipment. Exeter Council’s proposed order will allow officers to seize and destroy the bedding of rough sleepers.
Conclusion: What Can Be Done?
When we discussed PSPOs with the Home Office before the powers came in, civil servants suggested that any attempts by councils to ban activities such as rough sleeping would be ‘sorted out in the courts’. Yet the fact is that the means of appealing PSPOs are extremely limited, and beyond the means of large organisations let alone members of the public.
The means for legal challenge of a PSPO is through the High Court, where an action can cost tens of thousands of pounds. The case must be brought by an interested person, who is someone who lives in, regularly works in, or visits the restricted area. Their grounds of appeal are narrow: the plaintiff must show either that the council did not have the power to make the order, or that one of the requirements (for instance, consultation) had not been complied with. Given the broad nature of the powers, and the limited consultation requirements, this is a minimal grounds of appeal. Finally, the plaintiff must show that their interests were substantially prejudiced by the order.
The only way to solve the grave problems with these blank-cheque powers would be to revoke the Anti-Social Behaviour, Crime and Policing Act tout court. This, we must admit, is unlikely. In the absence of legislative change, major improvements could be made to the Statutory Guidance accompanying the use of these powers, which does very little to prevent undesirable uses.
For a change to the guidance to make a substantial difference, this should target the essential problem with current PSPOs: that they tackle behaviour that is not in itself causing of public nuisance or harm. Significant public nuisance or harm should be restored as the principle upon which restrictive orders can be introduced. The guidance should also include the qualifications that the PSPO should not interfere with the rights of those whom it affects, and should not be unequal or partial in application.
Secondly, guidance should require more thorough consultation and procedural requirements, which means that councils have to consult in an open and unbiased manner. The council should make it clear that they are creating a new crime and are seeking residents’ opinions on this, rather than they are enquiring into people’s feelings as they walk through the town centre or asking them if they are annoyed by this or that activity.
Thirdly, there should be restrictions on the authority capable of enacting PSPOs, which for significant orders should be full council. Orders should not be brought through on the authority of a single appointed officer.
At a broader level, we also need a cultural shift, within and without councils. As a society we are losing a distinction between a criminal activity and something that is merely disliked or annoying. Debating these PSPOs on local radio we frequently encounter the opinion that anything one disagrees with or dislikes should be banned and enforced through on-the-spot fines.
The Croydon Green councillor Peter Underwood opposed his council’s planned PSPO, and made the point that the separation between annoyance and crime is not only an important legal principle but is conducive to vibrant public spaces:
I know that my petty niggles and prejudices shouldn’t be turned into laws and I don’t want anyone else’s to be either. Public spaces are for the public to use and this means that you get to see and hear the general public in all their wonderful diversity. You may not like what everybody does but I would much rather have a colourful, vibrant, if occasionally irritating, Croydon than the uniform Stepford-wife world promised by the march of these PSPOs to regulate our daily lives.
If the PSPOs currently on the books are introduced, many town and city centres will indeed become Stepford-wife worlds. For now, the issue is still in the balance. It is worth fighting to avert this possible future.