A blank cheque to police public space

The civil servant on the phone with me last autumn sounded excited. ‘Normally, we ask what a law allows local authorities to do. With this one, we are asking local authorities, “Have we drafted anything here that stops you doing something?”’ The cause of his excitement was the proposed new law he was in charge of, the Anti-Social Behaviour, Crime and Policing Bill, which had its report stage in the House of Lords yesterday.

And indeed: what doesn’t it allow authorities to do?

The bill includes Injunctions to Prevent Nuisance and Annoyance (IPNAs), which can be issued against anybody whose conduct – or threatened conduct – is capable – on the balance of probabilities – of causing nuisance or annoyance to any person.

Few things in the public space are incapable of at least annoying someone. Some people can be annoyed by busking, ball games, skateboarding, street preaching, protests, and all the rest of it. As the former director of public prosecutions Lord Macdonald QC judged: ‘It is difficult to imagine a broader concept than causing “nuisance” or “annoyance”. The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law.’

The Manifesto Club is part of the Reform Clause 1 coalition, led by the Christian Institute, which is calling for final-hour amendments to tighten up this coach-and-horses clause. Last night, Lord Dear, the former chief constable of West Midlands Police, proposed an amendment to replace ‘nuisance’ and ‘annoyance’ with the higher legal threshold of causing ‘harassment, alarm and distress’. The amendment passed with an overwhelming majority.

However, the problems don’t stop with clause 1. Other clauses in the bill include Public Space Protection Orders (clause 55), which allow local authorities to ban any activity which has a ‘negative effect on the quality of life’ of the area. This ban can be applied to particular groups or individuals, and can also impose conditions with which such groups must comply. This is drafted so broadly it could target anything from sleeping rough, collecting for charity, public drinking, begging, feeding pigeons, or smoking in parks. Indeed, the lead civil servant agrees that the law could be used against groups ‘if there is a localised issue’, such as a ‘group of Goths’ or ‘twentysomethings listening to music in a park’.

At base, this bill represents a revolution in law-making, creating an unprecedented form of blank-cheque state power. The aim is explicit: rather than create specific powers, it seeks to remove limitations to local authorities’ actions. The civil servant says: ‘We don’t want to put too many constraints in the legislation.’ Well, there is no danger of that.

The bill completes the transformation of the role of the British local authority, from a limited body concerned with public provision to a summary law-maker and public-order power.

Out go bylaws, under which a local authority couldn’t even ban dogs from a public paddling-pool without the authorisation of the secretary of state, and in come open-ended powers to ‘order’ individuals or groups to stop doing something, or to do something, because it is annoying or has a negative effect on the quality of life of their community.

The government argues that local authorities will only use these powers in reasonable ways. That is simply not true: open-ended power tends to be used in open-ended ways. For instance, powers that are supposed to be used against terrorists or football hooligans are inevitably used against protesters or photographers. The existing Anti-Social Behaviour Orders (ASBOs) have already been used to prohibit people from crossing a road, having noisy sex, street preaching, or wearing a cap. So it is difficult to see how these much broader injunctions would be used in a more restrained manner.

The government also claims that any unreasonable use of powers can be appealed in the courts. But legal reviews are likely to be costly, time-consuming, and beyond the reach of the ‘annoying’ people targeted.

The bill is in its final stages, so do add your support to the Reform Clause 1 Campaign. This bill is capable of causing a serious nuisance to public liberties in Britain.

Josie Appleton is director of the Manifesto Club, which campaigns against the hyperregulation of everyday life. She is also the author of a briefing document on the new anti-social behaviour powers.