Birmingham City Council are consulting over introducing a Public Spaces Protection Order (PSPO) covering the City Centre. CLP are very interested in hearing from anybody who may be adversely affected by this proposed PSPO. Here is the submission of CLP to that consultation.
RESPONSE OF COMMUNITY LAW PARTNERSHIP TO THE BIRMINGHAM CITY CENTRE PSPO CONSULTATION 2018
The Community Law Partnership (CLP) is an award winning, progressive firm of solicitors specialising in the law relating to Housing and Public Law. Amongst other things, we provide advice and assistance to homeless people in Birmingham who may include rough sleepers. Some of our clients may have to resort to begging due to being impoverished.
Obviously, nobody condones anti-social behaviour (ASB) but it is not the case that rough sleeping and/or begging amount to ASB in themselves. Additionally there are sufficient methods already of enforcing against ASB. There is a grave danger that any blanket order will catch innocent people who are not guilty of any ASB.
The Law relating to Public Spaces Protection Orders (PSPOs)
It may be useful to look at the details of the law here since the Council’s consultation paper makes no attempt to do so. A PSPO is an order issued by a local authority which is designed to tackle activities carried on in a public place which have a detrimental effect on the quality of life of those in its locality and which prohibits specified things being done in a restricted area or requires specified things to be done by persons carrying on specified activities in that area, or does both of those things.
The power to make PSPOs is contained within the Anti-Social Behaviour, Crime and Policing Act (ASBCPA) 2014. Section 59 states:
Power to make Orders
(1) A local authority may make a Public Spaces Protection Order if satisfied on reasonable grounds that two conditions are met.
(2) The first condition is that:
a) Activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or It is likely that activities will be carried on in a public place within that area and that they will have such an effect.
(3) The second condition is that the effect, or likely effect, of the activities –
a) Is, or is likely to be, of a persistent or continuing nature
b) Is, or is likely to be, such as to make the activities unreasonable, and,
c) Justifies the restrictions imposed by the Notice.
(4) A Public Spaces Protection Order is an Order that identifies the public place referred to in sub-section (2) (“the restricted area”) and
a) Prohibits specified things being done in the restricted area
b) Requires specified things to be done by persons carrying on specified activities in that area, or
c) Does both of those things.
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order –
a) To prevent the detrimental effect referred to in sub-section (2) from continuing, occurring or recurring, or
b) To reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.
(6) A Prohibition or requirement may be framed –
a) So as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;
b) So as to apply at all times, or only at specified times, or at all times except those specified;
c) So as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.
A PSPO can last for up to 3 years, can be extended under certain circumstances and its term can be extended more than once (ASBCPA 2014 Section 60).
These are, therefore, very draconian powers and it is essential that the conditions contained in this section are satisfied and that evidence is put forward to justify any PSPO.
A flawed consultation
It is suggested that this consultation itself is seriously flawed and thus challengeable. The consultation appears on the Council’s Be Heard website. It commenced on the 15th October and is due to close on 11th November – a period of only 4 weeks. The consultation itself appears to consist of only three elements:
(i) An Overview Statement (“the Overview”) written by Emma Postin, Anti-Social Behaviour Partnership Manager, Community Safety Partnership;
(ii) A draft Public Spaces Protection Order and plan;
(iii) A consultation questionnaire. This asks a total of eleven questions. The first seven of these seek information about the profile of the respondent, the next three ask respondents in different ways whether they support PSPOs/this PSPO (two of these are yes/no questions and the other offers four options for the respondent’s degree of support) and the remaining question provides free text box for respondents to state how they think the draft order could be improved.
It would appear that the Consultation is not supported by any other material and can only be accessed online or possibly through social media (this is not entirely apparent on the face of the online consultation). Further, it would appear that all consultation materials are only available in English.
Having regard to the background, it is our view that the consultation is wholly inadequate and could not support a lawful decision making procedure. Therefore, in so far as the Council decided to adopt a PSPO for Birmingham City Centre based on this consultation, we believe such a decision would be susceptible to challenge by way of judicial review.
The principles of lawful consultation
The principles of lawful consultation in respect of public law decision making have been established in case law over many years. The starting point is whether a duty of consultation arises. In the present matter the power to make a PSPO is given by the Anti-Social Behaviour Crime and Policing Act (ASBCPA) 2014 s59 (see above). Section 72 deals with ‘Convention rights, consultation, publicity and notification’. This provides as follows:
(3) A local authority must carry out the necessary consultation and the necessary publicity, and the necessary notification (if any), before –
(a) making a public spaces protection order,
(4) In subsection (3) –
“the necessary consultation” means consulting with –
(a) The chief of Police, and a local policing body, for the police area that includes the restricted area;
(b) Whatever community representatives the local authority thinks it
appropriate to consult;
(c) The owner or occupier of the land within the restricted area;
“the necessary publicity” means –
(a) In the case of a proposed order or variation, publishing the text of it.
It is an established principle of public law that, in circumstances where consultation is deemed to be appropriate by a decision maker, such consultation must be carried out lawfully and in accordance with established public law principles. In short, if consultation is to be done it must be done properly.
The principles of lawful consultation have been restated many times by the courts (see, for example, the Supreme Court case of R(Moseley) –v- London Borough of Haringey  UKSC 56) These are:
1. that consultation must be done at a time when proposals are still at a formative stage;
2. that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
3. that adequate time must be given for consideration and response;
4. that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.
These principles have been explained in many different forms of guidance and in the case of Best Value Local Authorities (of which Birmingham is one) are given statutory force. The Local Government and Public Involvement in Health Act 2007 s138 inserts a new section (Section 3A) into the Local Government Act 1999. This states, materially:
3A Involvement of Local Representatives
(1) Where a best value authority considers it appropriate for representatives of local persons (or of local persons of a particular description) to be involved in the exercise of any of its functions by being –
(a) Provided with information about the exercise of the function,
(b) Consulted about the exercise of the function, or
(c) Involved in another way,
It must take such steps as it considers appropriate to secure that such representatives are involved in the exercise of the function in that way. …
(5) In deciding how to fulfil its duties under subsection (1), an authority must have regard to any guidance issued by the Secretary of State.
As to the guidance issued by the Secretary of State this was originally contained in the 2008 Code of Practice on Consultation (“the Code”) which was subsequently replaced by a set of consultation principles issued by the Cabinet Office. The most recent of these are the Consultation Principles 2018 (“the Consultation Principles”). These state, among other things:
C. Consultations should be informative
Give enough information to ensure that those consulted understand the issues and can give informed responses. Include validated impact assessments of the costs and benefits of the options being considered where possible; this might be required where proposals have an impact on the business or the voluntary sector.
E. Consultations should last for a proportionate amount of time
Judge the length of the consultation on the basis of legal advice and taking into account the nature and impact of the proposal. Consulting for too long will unnecessarily delay policy development. Consulting too quickly will not give enough time for consideration and will reduce the quality of responses.
F. Consultations should be targeted
Consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate. Ensure that they are aware of the consultation and can access it. Consider how to tailor consultation to the needs and preferences of particular groups, such as older people, younger people or people with disabilities that may not respond to traditional consultation methods.
G. Consultations should take account of the groups being consulted
Consult stakeholders in a way that suits them. Charities may need more time to respond than businesses, for example. When the consultation spans all or part of a holiday period, consider how this may affect consultation and take appropriate mitigating action, such as prior discussion with key interested parties or extension of the consultation deadline beyond the holiday period.
While the Consultation Principles replace the Code, the latter is nevertheless helpful in establishing good practice. The Code identifies seven consultation criteria. For the purposes of these submissions we refer to Criteria 2 & 4. Criterion 2 concerns the duration of consultation exercises and provides that “Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.” Criterion 4 deals with the accessibility of consultation exercises. It provides that “consultation exercises should be designed to be accessible to, and clearly targeted at, those people where exercise is intended to reach”.
The above principles have been adopted by Birmingham City Council. For example in the Birmingham Compact, the Council has adopted a Code of Practice in relation to consultation which advises statutory decision makers to ensure that they “follow local and national guidance when carrying out consultations” (page 11). The Compact includes the following elements:
• Carry out at least 12 weeks of formal written consultations, with an explanation given if the consultation is less than 12 weeks.
• Encourage responses from the voluntary and community sector organisations that are likely to have a view.
• Provide feedback to explain how organisations have influenced policy decisions. You should also provide feedback where you have not acted on an organisation’s views so you can show your judgement has been fair.
• Explain which matters are open to change as a result of the consultation and which are not.
Applying these principles to the present consultation it is apparent that they have not been met. We have set out our submissions in this regard by reference to the consultation principles (see above).
Consultation must take place when proposals are at a formative stage
Although it is apparent on the face of the consultation that no final decision has yet been made, it is not apparent that the decision is still at a formative stage. As to this we note that the Overview Statement in support of the proposal states:
As part of the partnership approach towards this problem, it has been decided to apply for a Public Space Protection Order (PSPO) for the City Centre (our emphasis).
Similarly, the Overview notes that:
This new Order provides the Police with additional powers across a defined geographical area to tackle a wide range of anti-social behaviours. In The City Centre, this is being introduced to address anti-social street drinking, groups gathering, begging and related ASB (our emphasis).
All of the above would appear to be evidence of pre-determination on the part of the decision maker, or to suggest, at the very least that the Council’s mind is made up. Principle 4 of the consultation principles set out above is the requirement to conscientiously take into account the product of the consultation before a decision is made. Such an obligation means that the matter is to be approached with an open mind. This necessitates more than simply reviewing consultation responses.
Having regard to this background and the content of the Overview, in order to ensure fairness it is our view that before proceeding further with its decision making it will be necessary for the Council to set out:
• what work has been carried out amongst partners (see paragraph 1 of the Overview);
• what is the product of this work and what conclusions were reached;
• what decisions have been taken and by whom. Please provide copies of any records of decision making.
• What if any commitments have been given by the Council to its partners or other stakeholders.
Adequate time must be given for consideration and response
It is apparent the duration this consultation is too short and is not in accordance with good practice, including that adopted by the Council. The consequence of an unreasonably short consultation period is that it disenfranchises those whose views ought to be taken into account. This is the case here and it is relevant to the comments we make below about the Council’s other failures in this regard
The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response
In this regard the consultation proposal is wholly inadequate. The consequence of the Council saying that “it has been decided” to apply for a PSPO or is that no information is given about the basis on which this decision has been taken (even if, which is not apparent, this is still a proposal). The overview statement says only that a PSPO “is being introduced” to address anti-social street drinking, groups gathering, begging and related ASB. However, no information whatsoever is given about these matters. It is said that “This Order has been informed by evidence from residents, businesses and professionals, which demonstrates the scale of the issue for the local community”, but again what this evidence is, is not disclosed. Without this evidence, consultees cannot properly address the proposals being made.
In Moseley, the Supreme Court held that:
Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme (Para 39).
The second aspect of the “sufficient reasons” limb of the consultation procedures is that it is not sufficient for the proposer to simply produce adequate information about its proposal (which has not been done here in any event), but such information must be made available to those affected. This is apparent as a matter of fairness but is also required because in any subsequent decision making it will be necessary for the decision maker to demonstrate that it has taken relevant considerations into account. The direct or indirect exclusion of the views of those affected will offend against this principle.
The need to “target” groups of consultees is set out in the Consultation Principles as set out above. These require proposers to consider “how to tailor consultation to the needs and preferences of particular groups.” In the specific guidance issued by the Government in respect of PSPOs it is stated:
It is strongly recommended that the Council engages in an open 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 local residents associations or regular users of a park or those involved in specific activities in the area, such as buskers and other street entertainers
It is self-evident, therefore, and of particular relevance given the need for proportionality, that those likely to be most affected adversely by the PSPO are consulted. As to this it is of particular concern that there has been no attempt by the Council to ascertain the views of the homeless or rough sleepers.
In the present consultation it would seem that:
• the consultation is only accessible online and possibly (although it is not clear) on social media;
• the proposal is only available in English;
Accordingly, and having regard to the nature of the potential range of consultees it is relevant that:
• there is no provision for those without access to the internet or, alternatively, social media;
• there is no attempt to gain the views of rough sleepers, beggars etc;
• there is no provision for those who do not speak English;
• there is no provision for those who are illiterate;
• there is no apparent endeavour to address the needs of those with mental health difficulties;
The ASBCP Act 2014 ASB Powers: Statutory Guidance for Frontline Professionals
• This is a useful reference point by which to gauge the proposed draft order.
• PSPOs are dealt with at pages 47 to 57.
• Protecting the vulnerable:
• Consideration should be given to how the use of this power might impact on the most vulnerable members of society.
• Consideration should also be given to any risks associated with displacement, including to where people may be dispersed to.
• There is no evidence that the Council have considered how the use of this power might impact on the most vulnerable members of society. It will criminalise them with the consequence of subjecting them to financial penalties that either they will not be able to afford to pay or that will subject them to serious financial hardship. There is no evidence that the Council have considered the issue of displacement at all.
• The terms are expected to be focused, proportionate and necessary.
• The legal tests focus on the impact that ASB is having on victims and communities. A PSPO can be made by the Council if they are satisfied on reasonable grounds that the activity or behaviour concerned, carried out, or likely to be carried out, in a public space:
• has had, or is likely to have, a detrimental effect on the quality of life of those in the locality;
• is, or is likely to be, persistent or continuing in nature;
• is, or is likely to be, unreasonable; and
• justifies the restrictions imposed.
• The Council must also consult whatever community representatives they think appropriate. 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. There is reference to the holding of public meetings as part of the consultation.
To use the terms contained in ASBCPA 2014 s59 it is not the case that ‘begging’ has a ‘detrimental effect’ or is ‘unreasonable’ and thus ‘justifies the restrictions’. It would appear that the criteria within the legislation are simply not met.
The draft order is very loosely drawn and, as we have already indicated, risks catching people who are not guilty of any ASB. For example, what is meant by ‘loitering and obstructing highways or footpaths’? Are two people having a chat on a footpath ‘loitering’? What is meant by causing ‘alarm’ or ‘distress’? You might be distressed by seeing rough sleepers because you think that the Council should be providing more hostel accommodation. ‘Street drinking’ may catch a couple of tourists sharing a can of beer on the grass around St Philip’s Cathedral. An ‘authorised person’ includes a ‘council officer’ – does that include all council officers or just specific council officers?
‘Street drinking’, ‘loitering and obstructing highways or footpaths’ and ‘begging’ are contained in the preamble to the order but not in the order itself thus creating uncertainty and inconsistency with regard to those who may be seeking to enforce the order and those who may potentially be subjected to the order.
With regard to paragraph 1 b, given the size of the ‘Restricted Area’ it is difficult to see how people could avoid remaining in the area for a period of time having been requested to disperse.
With regard to paragraph 2, this appears to be an oblique attempt to target rough sleepers without referring to rough sleepers. The Guidance makes it clear that rough sleeping per se should not be targeted.
With regard to paragraph 4a, it is not an offence to drink alcohol in a controlled drinking zone. However, it is an offence to fail to comply with a request to cease drinking or surrender alcohol in a controlled drinking zone. This is liable on summary conviction to a fine not exceeding level 2 on the standard scale. It is not clear that simply having in one’s possession open cans, bottles or other unsealed containers of alcohol could be a cause of ASB and satisfy the statutory criteria. If it is not an offence to drink alcohol why should it be an offence to provide for the opportunity to drink alcohol?
With regard to paragraph 7a, what is an unauthorised request? Who can authorise requests? The legal test is supposed to focus on the impact the ASB is having on victims and the local community. Can it be said that a polite request would have a detrimental effect on the quality of life of those in the locality?
With regard to the Requirements, a particular concern is exactly what the mechanism would be for a referral to Change, Grow Live and Aquarius. This will involve a process. Who will take responsibility for this? These organisations often have demands on their resources.
This consultation is fundamentally flawed. The Council need to put their own house in order first in terms of complying with the new provisions inserted into the Housing Act 1996 by the Homelessness Reduction Act. The consultation as it stands should be withdrawn.
Community Law Partnership
11th November 2018