The discourse and legislation around anti-social behaviour has changed considerably since it was first introduced in 1997, but hasn’t gone away. Craig Johnstone looks back over two decades of legislation and asks what it has achieved.
For a decade after 1997 the concept of anti-social behaviour (ASB) – and how its impact on the communities where it was considered prevalent might best be reduced – was a staple of public and political discourse in the UK. The seriousness with which the New Labour government of the time viewed ASB was exemplified in its creation of new control measures, like the flagship Anti-social Behaviour Order or Asbo, which sought to deter participation in nuisance and incivil activity through the threat of tough criminal penalty. But the resignation as Prime Minister of Tony Blair, the most passionate advocate of disciplining the disorderly through enforcement action, marked a change of policy direction – or at least rhetoric. Indeed, anyone reading the Conservative, Labour and Liberal Democrat General Election manifestos in 2015 would have been hard pressed to find more than a passing reference to ASB. Yet the decline in ASB ‘talk’ has rather masked the reality. Extensive reform of ASB legislation in 2014, which is only now starting to take effect, has considerably enhanced the power of the state to take action against activities and behaviour considered to undermine quality of life. ASB may no longer enjoy its Blair-era public profile, but the desire to control it has never entirely faded.
New Labour invested considerable political capital in shaping the concept of ASB and waging a high profile campaign against its perpetrators. In contrast, the 2010-15 coalition government presented its intervention in this sphere as primarily an exercise in tidying up and fixing problems with existing legislation so as to make curbs on ASB more effective. It was even prepared to concede defeat on an attempt to alter the definition of ASB following its rejection in the Lords. Nonetheless, the Anti-Social Behaviour, Crime and Policing Act 2014 swept away key provisions created by the Blair administrations in 1998 and 2003 and replaced them with a new toolkit of considerably enhanced ASB control powers. Especially worthy of note is that the 2014 Act affords municipal authorities much greater discretion than before over the definition of behaviour that will not be tolerated in their jurisdictions. They can also penalise those who fail to abide by new local rules through fixed penalty notices (fines of up to £100).
Most original and 2014 vintage ASB control measures can be divided into two categories. Ordinances like the Asbo and its replacement, the Injunction, are designed to force those with a track record of ASB to desist. Such orders set out conditions governing future conduct, usually requiring cessation of specified behaviour. They may also proscribe association with named individuals or presence in particular locations. Evidence of breach triggers punishment, although the criminal penalties associated with the Asbo have not been continued in the Injunction, which is a wholly civil order. A similar function is served by the new Community Protection Notice (CPN) which imposes specified behavioural expectations on individuals whose conduct ‘is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality’. The CPN is unusual however because, unlike the court-ordered Asbo and Injunction, it is the police and local authorities that impose it.
Measures in the second category are precautionary, concerned with immediately reducing the potential for ASB in given locations. They do this by permitting the expulsion or exclusion from designated public spaces of those considered likely to engage in ASB. Failure to comply is an offence which may attract criminal penalty. This was previously embodied in the Dispersal Order, which empowered the police to direct anyone in a group of two or more people to leave a clearly publicised Dispersal Zone, demarcated by the police and local authority, if their behaviour or presence had resulted in or was likely to result in any member of the public being intimidated, harassed, alarmed or distressed. Since 2014 a more flexible dispersal power, freed from the very strict geographical constraints and group focus of the Order, can be used by the police to banish for 48 hours from temporarily-demarcated areas anyone whose presence may potentially contribute to ASB. Critics have argued that the enhancing of the dispersal power facilitates the criminalising of ‘being’ in public space.
Of the new ‘coercive preventive’ measures enshrined in the 2014 legislation, the one generating the most controversy and media interest is the Public Spaces Protection Order (PSPO). The PSPO is unusual in that it blends behaviour-specific and precautionary controls. It has been described as an ‘Asbo for public space’ since, like an Asbo, each Order proscribes specified behaviour. Failure to comply leads to a fixed penalty fine. The big difference is that a PSPO is not applied to a person but a geographic space, meaning everyone in that space is required to refrain from banned activities. It is local authorities which are empowered to impose these Orders on behaviour considered detrimental to quality of life and, to date, a number have used them to outlaw activities typically associated with the homeless – begging, street drinking, sitting on pavements, and rough camping. Some have revived the ban on groups previously central to the Dispersal Order but expressly applied it to teenagers. Civil liberties groups have criticised the considerable power the PSPO affords local government while media reports have drawn attention to the catch-all nature of some Orders.
It is only 18 months since some Anti Social Behaviour, Crime and Policing Act provisions were enacted, so a complete picture of how – and how widely – they are going to be used is still to emerge. What is apparent, however, is that in seeking to protect the quality of life of ‘legitimate’ users of public space, the right of the unwelcome to utilise and sometimes even be present in these spaces is being eroded. While there is clearly an argument that some behaviour, if unchallenged, excludes others, the likelihood that the blunt instruments of ever greater enforcement action and exclusion will achieve more than moving around and compounding troubling activity seems highly dubious.
Note: This blog is based on the author’s recent article in Critical Social Policy.
Craig Johnstone is Principal Lecturer in the School of Applied Science, University of Brighton.