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The end of April 2018 was a big week for local government governance. In the same week that Ealing Council enacted a Public Spaces Protection Order (PSPO) to ban pro-life vigils from taking place outside a Marie Stopes clinic, the High Court handed down a landmark judgment dealing with PSPOs. The judgment is the first example of PSPOs being successfully challenged in the High Court.
PSPOs are one of the tools created by the Anti-Social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’), which came into force in October 2014, for councils to address anti-social behaviour in their local areas. The 2014 Act was designed to replace and streamline a number of previous measures, specifically The Criminal Justice and Police Act 2001, the Highways Act 1980 and the Clean Neighbourhoods and Environment Act 2005.
PSPOs allow Councils to prohibit specific activities or require certain things to be done by people engaged in particular activities within a defined public area. The legislation provides for restrictions to be placed on behaviour that apply to everyone in that locality. It is also the latest attempt by Parliament to expand Anti-social Behaviour Orders and the reaches of criminal law. A breach of a PSPO will be an offence carrying, on summary conviction in the magistrate’s court, a fine not exceeding level 3 (max £1000). Hence Ealing Council’s decision to use a PSPO to ban pro-life vigils as an ‘activity’, rather than simply seeking to ban individuals; it is much more effective.
The Judgment in Summers
Summers v London Borough of Richmond-upon-Thames  EWCA 782 (Admin) is the first judgment dealing with the validity of a local authority’s PSPO. Caroline Summers, a resident and dog owner living in the London Borough of Richmond (‘Richmond’) sought to challenge the validity of Richmond’s dog control PSPO. Specifically, she challenged parts of the PSPO relating to the maximum number of dogs permitted to be walked by one person and certain parts of the PSPO relating to dogs being kept under “proper control”, specifically that dogs should not “cause annoyance” or cause damage to “Council structure, tree plant turf or other Council property.” She argued that Richmond had not validly created the PSPO because Richmond had not properly identified the detrimental effect of walking more than 4 dogs nor of dogs being “annoying”. Further, Richmond had failed to identify that the detrimental effect of the activities it was seeking to restrict was of a persistent or continuing nature. She also brought a discrimination claim as to the exemptions relating to assistance dogs. Although not disabled nor using an assistance dog herself, she challenged the exemptions on the basis that the prescribed charities listed three charities that were out-of-date and thus incorrect and potentially discriminatory, and that the requirement that assistance dogs be identified at all times when out in public was discriminatory.
Ultimately, Ms Summers was successful in quashing parts of Richmond’s PSPO relating to dogs “causing annoyance” and causing damage to “Council structure, tree plant turf or other Council property”, whilst the Council’s decision to restrict the maximum number of dogs that can be walked to 4 dogs per person was upheld as reasonable.
Key points from the Judgment
The judgment is important because it is the first substantive judicial analysis in relation to this new statutory framework that has increasingly larger consequences on the general public.
First, Mrs Justice May DBE re-affirmed what the various guidance relating to PSPOs had also articulated: PSPOS are intended to target behaviours that are seriously anti-social, not ones that are simply annoying.
Second, the judgment emphasises that local government is given a wide discretion in determining whether and what controls on certain behaviours or activities may be necessary. This is inferred from the 2014 Act generally, and supported by the statute specifically in several ways. The 2014 Act has not defined key terms such as ‘activities’ or ‘detrimental effect’ and ‘those in the locality’. The statute had also emphasised locality by defining those who can bring a statutory challenge to a PSPO, via section 66 of the 2014 Act, as “those in the locality” as well as those “who regularly visit or work in the restricted area”.
Thirdly, the judgment clarifies who can bring a statutory challenge. Standing is not approached in the same way as it is in judicial review claims, in these challenges it is much wider: an interested person is someone who lives or regularly visits or works in the restricted area (see section 66 of the 2014 Act). The Court did not accept the submission that the applicant needed to have an interest in the remedy sought; being an interested party was enough to bring a statutory challenge.
Fourthly, continuing the theme of judicial review’s application to statutory reviews, the Court concluded that any statutory review under section 66 is supervisory only. The court was clear too that a statutory review is grounded in a judicial review test rather than a merits-based assessment, and that ordinary Wednesbury principles would apply. In this case, which dealt with dog control and seeks to impose some criminal sanction on behaviour, the standard level of scrutiny under the Wednesbury principles applies, namely “Could a decision maker acting reasonably have reached this decision” (from Lord Lowrie, at 765H in R v Home Secretary ex p. Brind  1 AC 696) and Lord Denning’s statement in Ashbridge Investments Ltd v. Minister of Housing and Local Government  1 WLR 1320, at 1326:
“…a court can interfere with the minister’s decision if he has acted on no evidence, or if he has come to a conclusion to which on the evidence he could not reasonably come, or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa, or has otherwise gone wrong in law.”
If a case comes before the Court that does deal with Convention rights, say for instance a freedom of assembly challenge is brought against Ealing Council’s decision to ban protestors outside the Marie Stopes clinic, then, following on from the logical conclusion of this Judgment, the High Court will need to be reviewing the PSPO at a higher level of scrutiny.
Finally, the question of whether a claimant could challenge a PSPO on the basis of the Equality Act still remains unclear. A literal reading of section 66 grounds of statutory application shuts out a challenge on the basis of the Equality Act. The High Court declined to state expressly that a PSPO that was discriminatory, or violated a provision of the Equality Act, must also be ultra vires.
What is clear from the judgment is that the High Court does not have jurisdiction to hear a discrimination claim brought against a local government that discriminates in the context of services and public functions (section 29 of the Equality Act 2010). By contrast, a claim for brought under section 149, the public sector equality duty, would have jurisdiction in the High Court. However, whether an equality act challenge would even get off the ground via section 66 is still unclear from this judgment. Mrs Justice May DBE suggested that “a final determination on this point will have to await another case where the point is more fully addressed” (para 88 of Judgment).
This is an important judgment in an area of law that will increasingly impact on the general public as local authorities come to grips with the full, expansive powers they have to address particular activities in public spaces. The judgment itself provides some guidance as to how Courts will scrutinise local government’s decisions, but it also leaves some legal questions unanswered.
Jessica van der Meer is a junior tenant at 2TG, active across the wide range of Chambers’ specialisations: professional negligence, commercial, international, public and sports law. She appeared as junior counsel to Martin Porter QC in Summers v London Borough of Richmond .
(Suggested citation: J. van der Meer, ‘Paws for Thought: The High Court tackles PSPOs in a Landmark Judgment’, U.K. Const. L. Blog (26th Apr. 2018) (available at https://ukconstitutionallaw.org/))