Local authoritarianism continues to spread, with a rash of local councils abusing their power to make Public Spaces Protection Orders (PSPOs) to crack down on speech they don’t like. Previously, the FSU has succeeded in persuading Redbridge and Cumberland councils to back down from making PSPOs which would have unlawfully restricted the speech rights of their residents.
Last week, Thanet District Council passed a PSPO of their own, and this is the worst one we have seen.
This order would apply to the entire built-up area around the Thanet coastline, and is a draconian measure, which would restrict the freedom of expression of 130,000 residents plus the roughly four million tourists who visit Thanet each year. People within the area covered can now be fined or even face a criminal conviction for “causing a disturbance to others” or being “pejorative” in public, among other things. It effectively imposes a strict liability speech offence, with none of the safeguards which Parliament and the courts have deemed necessary when restricting people’s fundamental rights and liberties.
The FSU believes that this PSPO is unlawful for a number of reasons: it is so irrational that no reasonable public authority could have arrived at the decision they did; it exceeds the powers granted to the council by Parliament; and it represents an impermissible interference with the right to freedom of speech under Article 10 of the European Convention on Human Rights.
Therefore, we have written to Thanet District Council with a letter before claim, a formal legal warning that unless it immediately takes steps to discharge the PSPO, we intend to commence judicial review proceedings, to seek an order declaring the PSPO unlawful and quashing their decision.
You can read the letter here.
PSPOs were first introduced into legislation via sections 59-75 of the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the Act’). The original aim of these wide-ranging and flexible powers was to help local councils manage issues such as prostitution, begging, loitering, or drinking alcohol in specific areas, with a PSPO identifying a “restricted area” and either prohibiting or requiring specific things to be done there. Where breaches of PSPOs are identified, officials are empowered to impose a fixed-penalty fine of up to £100, or a court may impose a fine of £1,000 upon conviction.
Section 72 of the Act in particular requires local authorities to have “particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11” of the European Convention on Human Rights. Of the PSPOs we have assessed so far, this appears more to be honoured in the breach. It seems that safety-minded officials tend to look with a jaundiced eye on any form of ‘free speech’ that may cause offence or ‘distress’
It’s important to emphasise at this juncture that our concern is not with the PSPO per se. We recognise that they are a useful tool in the local council armoury and if properly used can lead to desirable outcomes for the community.
Our concern is one of ‘mission creep’, with the range of problems to which local authorities regard PSPOs as the answer, expanding in recent years to incorporate various forms of offensive but lawful speech and expression.
We are also concerned that local authorities are using orders, which should be limited in purpose and geographical reach, as a form of legislation used to govern the conduct of residents generally.
One of the main problems is that many of these PSPOs are criminalising conduct which causes ‘alarm or distress’ with no safeguards for free speech.
Why is that a problem? Let’s say you want to protest on the streets and talk about someone dying and unbeknown to you this causes someone ‘distress’. Unfortunately, according to some PSPO wordings, you might be liable, even if you didn’t intend it to and couldn’t have foreseen the ‘distress’ I would cause.
In total, the FSU has analysed PSPOs that are either in place or proposed across 16 local councils and found multiple instances where the conditions specified in the Act do not appear to have been satisfactorily met.
There are, for instance, regular references to words and phrases such as ‘swearing’, ‘shouting’, ‘insulting’, ‘obscene’ and/or ‘offensive’, as well as ill-defined behaviour terms such as ‘annoyance’, ‘nuisance’, ‘alarm’ and/or ‘distress’.
Did the local councils in question have “particular regard” to the Articles 10 and 11 rights of borough residents while formulating these vague, ill-defined speech terms? That’s a question we’ll be putting to them in our next round of legal letters.
While we continue to write to these local authorities, we also want to hear from anyone who may be aware of PSPOs – again, either in place or proposed – that they believe could lead to the suppression of free expression, especially if you are located within or close to the relevant restricted area. You can contact the team on [email protected].
