After campaigning from the Manifesto Club and others, the Home Office has released new Statutory Guidance covering the use of anti-social behaviour powers, including Public Spaces Protection Orders (PSPOs) and Community Protection Notices (CPNs).
We still believe that these powers are inherently flawed and should be scrapped altogether. This Guidance is not perfect and could have gone further, but nonetheless it makes several important changes, and could significantly limit the abuse of these new powers.
Here are the significant new elements to the Statutory Guidance, below:
PUBLIC SPACES PROTECTION ORDERS GUIDANCE
1. The Guidance states that PSPOs should target the activity causing nuisance or harm.
The most problematic PSPOs have banned activities that in themselves cause no harm, such as standing in a group, lying down or sleeping in public, or wearing a head covering. At several points, the Guidance states that PSPOs should focus on the harmful act:
the council should give due regard to issues of proportionality: is the restriction proposed proportionate to the specific harm or nuisance that is being caused? Councils should ensure that the restrictions being introduced are reasonable and will prevent or reduce the detrimental effect continuing, occurring or recurring. In addition, councils should ensure that the Order is appropriately worded so that it targets the specific behaviour or activity that is causing nuisance or harm and thereby having a detrimental impact on others’ quality of life.
2. PSPOs should not target rough sleeping.
Homeless people have often been targeted by PSPOs, including bans on begging, sleeping in a public place, or bin raking. The Guidance warns against the targeting of homeless people, and particularly against generic bans on rough sleeping:
Public Spaces Protection Orders should not be used to target people based solely on the fact that someone is homeless or rough sleeping, as this in itself is unlikely to mean that such behaviour is having an unreasonably detrimental effect on the community’s quality of life which justifies the restrictions imposed. Councils may receive complaints about homeless people, but they should consider whether the use of a Public Spaces Protection Order is the appropriate response. Councils should therefore consider carefully the nature of any potential Public Spaces Protection Order that may impact on homeless people and rough sleepers. It is recommended that any Order defines precisely the specific activity or behaviour that is having the detrimental impact on the community. Councils should also consider measures that tackle the root causes of the behaviour, such as the provision of public toilets.
3. PSPOs should not restrict everyday use of public spaces.
There have been several cases of PSPOs banning everyday activities in public spaces, such as skateboarding in public squares, ball games, busking, or people standing in groups. The Statutory Guidance specifically warns against the targeting of everyday sociability:
It is important that councils do not inadvertently restrict everyday sociability in public spaces. The Public Spaces Protection Order should target specifically the problem behaviour that is having a detrimental effect on the community’s quality of life, rather than everyday sociability, such as standing in groups which is not in itself a problem behaviour. Where young people are concerned, councils should think carefully about restricting activities that they are most likely to engage in. Restrictions that are too broad or general in nature may force the young people into out-of-the-way spaces and put them at risk. In such circumstances, councils should consider whether there are alternative spaces that they can use.
4. Councils should carry out an open public consultation.
While most councils have engaged in a public consultation, consultations often have been framed so as to gain support for the proposed PSPO (for example, it is often quite difficult to express your opposition to the order). As well as requiring open and neutral public consultation, the Statutory Guidance also says that the council should consult relevant interest groups, such as buskers or young people who use a public space:
It is strongly recommended that the council engages in an open and public consultation to give the users of the public space the opportunity to comment on whether the proposed restriction or restrictions are appropriate, proportionate or needed at all. The council should also ensure that specific groups likely to have a particular interest are consulted, such as a local residents association, or regular users of a park or those involved in specific activities in the area, such as buskers and other street entertainers.
5. Councils are encouraged to pass PSPOs through elected councillors.
Currently, around half of PSPOs are passed by a single council officer or pair of officers, in many cases appointed officials. This means that PSPOs are subjected to very limited scrutiny and democratic accountability. The guidance recommends that councils pass PSPOs through full council or cabinet:
Given that the effect of Public Spaces Protection Orders is to restrict the behaviour of everybody using the public place, the close or direct involvement of elected members will help to ensure openness and accountability. This will be achieved, for example, where the decision is put to the Cabinet or full Council.
COMMUNITY PROTECTION NOTICES GUIDANCE
1. Councils are dissuaded from using CPNs against homeless people, or others who might be considered ‘vulnerable’.
Many homeless people have been issued with CPNs banning them from a particular part of town, or banning them from taking charitable donations. The Guidance calls for this to be limited:
Particular care should be taken to consider how use of the power might impact on more vulnerable members of society.
2. The behaviour targeted by a CPN should be something that causes nuisance or harm to others, rather than merely annoyance.
Many CPNs have targeted activities such as feeding the birds, failing to cut the grass, busking, or other activities that some other people find distasteful or annoying. The Guidance calls for the use of a higher standard of ‘nuisance or harm’, rather than mere annoyance, and for this to be based on significant evidence:
Agencies should have sufficient evidence to satisfy themselves that the behaviour in question is genuinely having a detrimental effect on others’ quality of life, in terms of the nuisance or harm that is being caused to others, rather than being a behaviour that others may just find annoying.