The government’s new Anti-Social Behaviour Action Plan represents a significant increase in police and local authority powers to direct individual behaviour, ban public activities, and issue on-the-spot penalties.
However, the plan also contains some good news of potential increases in scrutiny, as well as the prohibition of ‘fining for profit’.
First, the problems with the measures are as follows:
Extension of dispersal power
The power to bar people from a public place has become the policing tool of choice for many police and local authorities. Police authorities use dispersal powers widely, and some local authorities have already given themselves dispersal powers through Public Spaces Protection Orders (PSPOs).
When dispersal powers were introduced in 2003, a person could be barred from a public space for 24 hours; in 2014 this was increased to 48 hours, which is also the time limit mentioned in most dispersal PSPOs. Now the ASB Action Plan is proposing increasing this time limit to 72 hours, and extending the dispersal power to all local authorities.
Dispersal orders come with few restrictions on their use, and are commonly used pre-emptively against anyone who an official suspects may later cause anti-social behaviour, as well as against the homeless, political protesters, or those authorities consider to be ‘disreputable’. (See the Manifesto Club briefing on dispersal powers).
It is a criminal offence to return to an area after having been dispersed, and thousands of people receive on-the-spot fines or convictions for this offence each year. Extending dispersal powers will increase the potential for abuse of this already very problematic power.
Extending PSPOs to the police
Currently, Public Spaces Protection Orders can only be issued by local authorities; these can ban activities the authority considers to have a ‘detrimental impact’ on the ‘quality of life’. The ASB Action Plan proposes extending the power to issue PSPOs to police authorities.
There are no statutory requirements for councils to consult on PSPOs, and some local authorities have brought them through rapidly, on the decision of a single officer. However, most local authorities feel a moral obligation to hold some form of public consultation, on the basis that local authorities are public representative bodies.
Giving the power to issue PSPOs to the police would mean that the police have the power to write laws as well as to enforce them. This is not normal practice in democracies with the separation of powers.
If police had the power to create PSPOs, it is likely that they would create new offences that would make it easier for them to police an area. It is already the case that the police have asked local authorities to issue PSPOs including dispersal powers; such ‘pre-emptive’ powers mean that they can disperse people without justification or restriction, on the suspicion that these people may later cause trouble or commit crime.
Public life should not be organised around the convenience of the police; giving them what are in effect bylaw powers would be a dangerous and ill-advised step.
New powers over homeless people
Police and local councils will have greater powers to move homeless people on and subject them to legal restrictions. The ASB Action Plan is somewhat vague as to what these powers will be. The publicity around the plan said there would be new powers to move on ‘nuisance beggars’; the plan itself says that there will be ‘new tools to direct individuals to engage with positive pathways’, suggesting that these could be legal orders requiring a person to go to a hostel, or to undergo mental health or drug treatment.
Another measure will ‘prohibit begging where it is causing a public nuisance’, such as by a cashpoint or in a shop doorway. This could mean even more powers to move on, or powers to issue fines or prosecute for the new offence of ‘nuisance begging’. The plan also mentions ‘powers…to address rough sleeping’, as well as ‘to clear the debris, tents and paraphernalia that can blight an area’ (which presumably means powers to confiscate homeless people’s belongings).
Homeless people are already subject to a swathe of controlling powers, including many local authorities banning begging and rough sleeping under PSPOs, police authorities dispersing rough sleepers, and councils and police banning them from areas using dispersal powers or Community Protection Notices.
Such coercive powers criminalise poverty and make the lives of the homeless more difficult, while increasing their distrust of authorities and official interventions.
Increase in fixed penalties
The ASB Plan proposes very large increases in the maximum amount for fixed penalty notices. Fixed-penalty fine levels normally increase by 25% or 30%, or at most 50%. The ASB plan proposes up to 400% increases, which in many cases would be out of all proportion with the offence.
Litter fines will increase from £150 to £500, as will penalties for graffiti, violation of a PSPO, and violation of a Community Protection Notice. Given that the vast majority of litter fines are for cigarette butts, and people receive PSPO FPNs for offences such as ‘loitering’, begging and busking without a licence, a £500 penalty is disproportionate to the offence. The increase in penalties appears to be a form of ‘message sending’, rather than a proportionate penalty.
Fly tipping fixed penalties will increase from £400 to £1000. This would be reasonable for someone caught dumping black bags in the countryside, but current ‘fly tipping’ fixed penalties cover a much wider variety of actions. For example, there is a constant series of cases of people receiving ‘fly tipping’ fines for well meaning mistakes, such as putting items in the wrong bin, or using the wrong bin bag. Notably, one of these cases involved a woman clearing up litter in a council carpark; she was issued a ‘fly tipping’ fine for putting the rubbish in the car-park bins.
Fixed penalty notices are issued on the basis of the decision of an official: they do not involve the production of evidence in court, and so there is always a danger that they will be abused.
Local authorities retain the money from fixed penalties and so have a financial incentive to issue as many fines as possible. This problem – and potential for corruption – is increased when local authorities employ a private company on commission, and the company is paid per fine. (See our recent report The Corruption of Punishment).
Other increases in powers
In addition, there are also plans to reduce the age at which Community Protection Notices can be issued, which means that children as young as 10 could be issued with these on-the-spot legal orders that have minimal oversight and controls. There are also plans to extend Closure Orders (powers to close premises) to housing providers, meaning that people’s homes can be ‘closed’ up without going through the council or police (these closure powers would also be extended from 48 to 72 hours). Civil injunctions would come with a new power of arrest, and drug testing would be allowed in public spaces (rather than only in custody as at present). These all represent significant increases in unchecked police and council powers, which will increase the likelihood of injustice and inappropriate use.
There is, however, also some good news contained in the ASB plan:
New guidance on ‘proportionate litter fining powers’
One welcome element in the plan is the government’s commitment to legislate to prevent ‘fining for profit’. This has been a long-standing Manifesto Club campaign. The ASB Plan states that:
We remain clear that the use of on-the-spot fine powers (called Fixed Penalty Notices or FPNs) should never be used to target accidental littering, or to punish those who are trying to do the right thing when education would be the better approach…To equip them with everything they need and strengthen their arm, we will change laws and provide statutory guidance on the proportionate use of litter fining powers.
This suggests that Defra will be moving ahead with plans to put its very sensible Litter enforcement code of practice on a statutory basis. (This code of practice prohibits the issuing of penalties in order to make money). This is very good news, and will do something to counter the risk of abuse.
However, it must be ensured that this guidance has teeth and actually puts a stop to the practice of payment per fine and the use of targets for issuing fines. The boost in the market value of fines will create a massive financial incentive for companies to find a way around the regulation and to continue current practices by the back door.
We should also note that the Home Office has so far declined to consider guidance against fining for profit, which means that PSPOs and CPNs could become the most attractive areas for the private enforcement market. It is essential that the Home Office brings through similar guidance to Defra – and that both can be enforced to ensure that they actually affect practice on the ground. It is also important for councils and police to issue warnings before PSPO enforcement, to avoid the current problem of people receiving penalties for PSPOs they were not aware of.
Increase in government scrutiny of ASB powers
The Action Plan also includes some welcome plans to increase reporting and scrutiny of the use of ASB powers. The plan states that the Office for Local Government will now collect data on the use of ASB powers, for the purposes of ‘increasing transparency, fostering accountability, and helping drive the improvement of local government performance’.
The Manifesto Club has long called for central government data collection on the use of ASB powers. Since 2015, we have carried out regular FOIs into the number of CPNs, PSPOs, and FPNs issued by local authorities; our reports provide the only national data source. This should not be the case. We have always argued that there should be central government scrutiny of the ways in which powers are used, as well as accountability for the misuse of powers. For example, the Home Office has produced decent statutory guidance on Community Protection Notices, which includes many important checks to ensure proportionate use, yet this guidance is almost entirely ignored without consequence.
It appears that Police and Crime Commissioners, and a new Anti-Social Behaviour Taskforce, will also play a greater role in scrutiny of the use of powers, including considering whether the powers are actually helping to resolve a dispute.
We will respond to the Home Office consultation on the Action Plan, to attempt to limit the more regressive measures, and to support those that could increase scrutiny and accountability.