Do you remember the case of the woman who was arrested for standing silently praying in a street in Birmingham? She was standing near to a Clinic, the Robert Clinic and the Council had put in place a Public Space Protection Order - the Birmingham City Council (Station Road B30) Public Space Protection Order

Now I am not going to comment on the issue related to the purpose of the clinic - I have my own views which are private to me - but what I was interested to find out was - what legal powers of arrest did the police have and what do these Public Spaces Protection Orders (PSPO) actually do, how are they made, and who can enforce them?

So what was it that this particular PSPO forbade - and that allowed police to arrest someone for breaching the order?

Part of the order reads:
The Activities prohibited by the Order are:
i Protesting, namely engaging in any act of approval or disapproval or attempted act of approval or disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling,

And "prayer" is included as an example of an activity which is prohibited by the Order. But reading the Order in its entirety (which is what is required to interpret the Order) it seems clear that the "activity" that is prohibited is "protesting" and prayer in only prohibited if it is part of protesting.

So standing silently "praying" does not seem to me to meet that threshold. In any case, how is an external observer going to be able to determine whether or not someone is silently praying? How would you know, and more importantly, for the law - how would you prove to the relevant standard that someone is silently praying? If asked, the person would be well advised to answer "no comment", so as to not incriminate themselves.

Anyway, this story piqued my interest in PSPOs and I started some research in to them and started to gather examples of PSPOs from around the country.

I discovered that my local council, South Kesteven District Council (SKDC), had, like a lot of Councils put in place a number of PSPOs which ran from 2020 to 2023 - the maximum 3 years that a PSPO can be made to have effect. Before they expire a PSPO can be extended for up to a further maximum 3 years and can be extended multiple times.

But for a persistent matter the Local Government Association guidance on PSPOs suggest a bye-law might be a better choice of legislative tool to address the nuisance. Bye-laws do not need to be extended as they last for as long as the Council maintain the bye-law in force, ie they need to actively revoke a bye-law.

Anyway SKDC on 10 October 2023 brought a number of PSPOs to a meeting of the Cabinet of the Council who approved the extension, variation and the making of a new PSPO. The existing PSPOs were due to expire on 20 October 2023.

The way in which Cabinet decision making works in a Council is that the Cabinet make a decision; this is then reported to all of the Councillors who have 5 clear days after being notified of the cabinet decision to decide whether or not to "call-in" that decision. If it is called-in, then the full Council consider the decision and give guidance to the Cabinet and ask the Cabinet to reconsider their decision.

If the decision is not called-in and the notice period in the notice of call-in expires then the decision made by the Cabinet is "implemented".

What I discovered was that this procedure had been followed by SKDC and hence the "extension" orders had been made, dated and entered in the seal register of the Council on 26 October 2023. All well and good EXCEPT that this meant that there was a break between the date of expiry of the previous orders and the start date of the so-called "extension" orders. I argued that this meant that the Council had NOT extended the original orders before expiry as required in ss59 and 60 of Anti-social Behaviour, Crime and Policing Act 2014 and that the extension orders were not valid.

The upshot of this is that the Council has revoked the extension orders and are going back to the drawing (and consultation) board and looking again at their order making procedure and also looking more closely at the content of the orders to ensure that they are legally valid.