Response of Community Law Partnership to the Birmingham City Centre PSPO Consultation 2019

Introduction

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 rough sleeping and/or begging do not amount to ASB in themselves. Sufficient methods already exist to deal with ASB such as the Vagrancy Act 1824, the Highways Act 1980 and the Public Order Act 1986. 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, 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 flawed and thus challengeable. The consultation appears on the Council’s Be Heard website. It commenced on the 22nd March and is due to close on 2nd May – a period of only 6 weeks.

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 or, as here, is required by statute, 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 [2014] 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.

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 the 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.

BIRMINGHAM CITY CENTRE PSPO CONSULTATION

1. 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 as set out above.

Adequate time must be given for consideration and response

2. It is apparent the duration of 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

3. In this regard the consultation proposal is wholly inadequate. Despite the Council saying it is considering applying for a PSPO, little or no information is given about the basis on which this decision has been taken. The overview statement says that “the order has been put into place due to overwhelming reports made to the Police and the Council from residents, businesses and professionals who live work and travel into Birmingham” but the nature and extent of this evidence is not disclosed.

4. The key issue in the adoption of a PSPO is that of proportionality: the nature of an Order is that it imposes restrictions on the use of public space which apply to everyone. Accordingly, a balance must be struck between individual freedoms and the need to curb anti-social behaviour. This key theme is reflected in the guidance issued by the Government in Anti-Social Behaviour Powers – Statutory Guidance for Frontline Professionals updated December 2017 (“the Guidance”). At page 51 the Guidance states:

“As with all the anti-social behaviour powers, 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”

5. Similarly, at page 49, in a highlighted paragraph, the Government advises:

“In deciding to place restrictions on a particular space, Councils should consider the knock- on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area”.

6. Yet further, in the section of the Guidance which deals with consultation (page 49) it is stated:

7. In the present proposal the absence of information about the scale and nature of the problem, the predicted effectiveness of the proposal, the evaluation of alternatives and the respective costs, means that it is impossible for consultees to comment on proportionality. This is not an abstract point because, as the Council states in its Overview, it has gathered evidence about these matters.

8. 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.” [Paragraph 39] The present consultation simply provides none of the information necessary to make it effective. A list of the information which we consider necessary is set out at the end of this submission.

9. 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, 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.

10. The need to “target” groups of consultees is set out in the Government’s Consultation Principles 2018 as set out above. These require proposers to consider “how to tailor consultation to the needs and preferences of particular groups.” In the PSPO Guidance 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” [Page 49]

11. 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.

12. The issue of accessibility in consultation exercises is one which was addressed by the Government in its 2008 Code of Practice and remains relevant:

“Careful consideration should be given to hide or alert potential consultees to the consultation exercise on how to get views from relevant sectors of the community and the economy. While many interested parties can usually be contacted directly there will often be other interested parties not known to the Government who can only be reached through intermediary bodies. Working with appropriate trade, community or third sector organisations can help the Government to hear from those who would otherwise go unheard. Using specialist media or events can also help promote consultation exercises among interested groups”. [Paragraph 4.3]

13. In the present consultation it would seem that:

• the principal consultation documents are only accessible online and possibly (although it is not clear) on social media;
• these documents are only available in English;
• the main way in which consultation responses are to be made is in written form by typing into a computer or mobile device.

14. Although, since the previous (now withdrawn) consultation, it is proposed that members of the public can attend street stalls it is not accepted that this will be a successful means of reaching street homeless people and other relevant groups.

15. Accordingly, and having regard to the nature of the potential range of consultees it is relevant that there would appear to be:
• inadequate provision for those without access to the internet or, alternatively, social media;
• inadequate provision for those who do not speak English;
• inadequate provision for those who are illiterate;
• inadequate endeavour to address the needs of those with mental health difficulties;
• inadequate recognition of the need to seek the views of those who are resistant to engaging with authority. As to this it is not clear how the Council has attempted to seek the views of people who may be homeless and forced into rough sleeping.

THE CONSULTATION PROPOSAL

16. In addition to the above procedural submissions we are also of the view that the content of this consultation is flawed. The following comments deal with the proposal themselves.

Groups

17. At paragraph 3 of the overview statement it is said that the order is being proposed in response to “groups and gangs displaying harassing and intimidating behaviours”.
18. With respect to the appropriateness of PSPO’s for addressing ‘groups hanging around/standing in groups’, the Guidance states as follows:

“It is important that Councils do not inadvertently restrict every day 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” [Page 53, emphasis added]

19. With respect to those living in temporary accommodation, which will include the homeless and those forced into rough sleeping, the Guidance continues:

“People living in temporary accommodation may not be able to stay in their accommodation during the day and so may find themselves spending extended times in public spaces or seeking shelter in bad weather. It is important that public spaces are available for the use and enjoyment of a broad spectrum of the public, and that people of all ages are free to gather, talk and play games” [Page 53]

20. The Council’s draft Order deals with groups at paragraph 1. As to this the Order states at paragraph 1:

“a) A person is prohibited from remaining (either individually or in a group of three or more people) within the Restricted Area after an Authorised Person has requested that the group disperse.

b) This prohibition does not restrict an individual’s right to freedom of association and speech.

c) An Authorised Person may request that an individual, or a group, within the restricted area disperse, where they reasonably suspect any person in that group is causing, or is likely to cause nuisance, alarm, harassment or distress to any other group or person.” [Emphasis added]

21. Accordingly, there are the following problems with the order as it relates to groups:

• the justification for the order is in fact anti-social behaviour by individuals (for which adequate alternative sanctions exist);
• the measure in the draft order is a form of group punishment or sanction for the behaviour of individuals;
• having regard to the Guidance, individual anti-social behaviour is not sufficient justification for prohibiting groups from hanging around or people standing in groups;
• the use of a PSPO in this way disproportionately affects individuals who are homeless and/or have to resort to rough sleeping and is, in itself, contrary to the Guidance;
• in so far as the problem is anti-social behaviour by groups, no evidence is provided about this which could enable a consultee to take a view about whether a PSPO is a proportionate means of response.

22. Further, although paragraph 1(b) is welcome reassurance that the draft order does not aim to restrict rights to freedom of speech and association, it is not clear how this aim would be practically reflected in circumstances where a group is dispersed and individuals from that group are required to leave the Restricted Area.

No explicit consideration is made of the circumstance where a group inadvertently causes nuisance, alarm, harassment or distress whilst its members are explicitly attempting to exercise their rights to freedom of speech and association – for example, in the context of a protest or demonstration.

23. In addition the Guidance at page 49 provides that:

“In deciding to place restrictions on a particular public space, councils should consider the knock on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area. Introducing a blanket ban on a particular activity may simply displace the behaviour and create victims elsewhere.”

24. The consultation proposal has not given any or any adequate consideration or had any or any adequate regard to the effect that the draft order would have in simply displacing the behaviour sought to be addressed elsewhere.

25. There is also a concern that enforcement activity in one area simply displaces street activity to another geographical area, and can sometimes lead to the displacement of activity (e.g. from begging into acquisitive crime). Moreover, it does not address the underlying causes of rough sleeping.

Rough sleepers/homeless people

26. The consultation does not address the impact of a PSPO on rough sleepers. Rough sleeping is not mentioned in the list of anti-social behaviour which the consultation proposal lists, nor are the homeless mentioned in the draft Order. On the face of it this is consistent with the statutory guidance which states, in a highlighted paragraph:

“Homeless people and rough sleepers – 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. These Orders should be used only to address any specific behaviour that is causing a detrimental effect on the community’s quality of life which is within the control of the person concerned” [Page 51].

27. Nevertheless, it is apparent that the draft Order is targeted (whether directly or indirectly) at rough sleepers. This is apparent through the provision concerning the obstruction of footpaths and highways. Although the Council states that it is principally concerned with street drinking, begging and anti-social group behaviour it is difficult to see how these behaviours are addressed by provisions which concern the blocking of the footpath and entrances to buildings and the interruption of street cleaning. In contrast, all of these elements are unfortunate, but necessary consequences of rough sleeping.

28. That this is the proper interpretation of paragraph 2 of the draft Order is in our submission made apparent by the use of the words “or their personal effects” in paragraphs 2(a), (b) and (c).

29. In our submission the fundamental inappropriateness of this provision is that it penalises activity which is intrinsic to the forced existence of a group of individuals and is not a matter of individual choice. In this sense it is not properly characterised as “behaviour” (whether anti-social or not). The importance of this is that unlike those others whom the Council seeks to target, rough sleepers are not in a position to modify their behaviour. This makes the particular provisions in the draft Order insofar as they relate to rough sleepers, oppressive and disproportionate.

30. While paragraph 2 is the most oppressive provision in this respect other paragraphs within the Order also require to be reconsidered on the basis that they appear to focus principally on rough sleepers:

• Possession of alcohol and/or intoxicating substances – It is probable that a significant proportion of rough sleepers will have drug and alcohol dependency without this necessarily having an overt anti-social manifestation.
• Begging – Rough sleepers are more likely to have little or no income and thus to be dependent on charity and personal donations. Requests for money are not necessarily anti-social. (It is not understood what the phrase “unauthorised requests for money” in paragraph 7(a) means.)
• General anti-social acts such as urination and defecation – these are unfortunate but inevitable aspects of rough sleeping. The Government guidance states:

“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 the community. Councils should also consider measures that tackle the root causes of the behaviour, such as the provision of public toilets”. [Page 51]

• Groups –The Guidance (quoted above) makes clear people living in temporary accommodation may have more cause to gather in groups in public spaces. This is likely to apply to greater extent with those who are street homeless. As we submit above, insofar as the Council seeks to target groups without more, such a provision is disproportionate.

31. In addition the Guidance at page 49 provides that:

32. The consultation proposal has not given any or any adequate consideration or had any or any adequate regard to the effect that the draft order would have in simply displacing the behaviour sought to be addressed elsewhere.

33. There is also a concern that enforcement activity in one area simply displaces street activity to another geographical area, and can sometimes lead to the displacement of activity (e.g. from begging into acquisitive crime). Moreover, it does not address the underlying causes of rough sleeping.

Overall proportionality

34. The proposal does not consider any nuanced approach to the issues raised. There is no discussion of alternative options for the duration of the Order, nor whether the Order could be targeted to specific areas of the City Centre or should be limited to specific times. No alternative approaches are discussed or considered.

CONCLUSION

35. In summary we make the following submissions:

1. This consultation is procedurally flawed in that:

(a) it fails to provide adequate or sufficient information to enable consultees to make an intelligent response;
(b) it fails to engage properly or at all with a significant cohort of those who are likely to be most affected by the Order.

2. In respect of the content, the proposals:

(a) are insufficiently justified and, consequently, disproportionate;
(b) unreasonably and unfairly interfere with the rights of individuals (whether rough sleepers or not) to gather in groups in breach of Government guidance;
(c) unreasonably target the homeless and rough sleepers in breach of Government guidance.

36. In our submission based on this consultation it would not be possible for the Council to make a lawful decision to adopt a PSPO. Accordingly, we ask that the consultation be withdrawn and re-formulated. In order for consultees to respond properly we submit that the Council must as a minimum provide the following information.

1. What is the nature of the problem that the PSPO is designed to address?
2. What is the extent of the problem?
3. What impact does the alleged anti-social behaviour have on the various constituencies who will be affected by the making of an Order?
4. What are the predicted impacts of the Order including equalities impact, human rights impact and impact on rough sleepers?
5. How is the Order to be applied?
6. How effective is it anticipated to be?
7. Who would be responsible for enforcing the Order?
8. What would the cost of implementation be?
9. Out of which budget would this money come?
10. What savings would have to be made as a result?
11. What services, if any, would consequently have to be cut?
12. What alternatives have been considered and why have they been disregarded?
13. What would the costs of these alternatives be by comparison with a PSPO?
14. Why a PSPO was considered preferable to the alternatives?
15. What information has been gathered in support of the proposal?
16. Who has contributed to the formulation of the proposal?
17. What work has been carried out by the Council’s partners, what evidence has been gathered from residents, businesses and professionals and what does it reveal?

Community Law Partnership
01 May 2019