Canterbury's dog mess debacle: the crime of 'not carrying two bags'

Earlier this month, Canterbury City Council announced new measures in their attempt to kerb the problem of dog fouling. The introduction of a district-wide Public Space Protection Order (PSPO), coming into effect from early October, not only promises £80 fixed penalty notices for dog walkers who fail to pick up after their dog, but also for owners who fail to “demonstrate they have the appropriate means to clean up.” The definition of ‘appropriate means’ turns out to be remarkably specific:

“As a rule of thumb, our enforcement officers would expect responsible dog owners to carry at least two bags that can be used to dispose of dog excrement.” (Leo Whitlock, Canterbury City Council spokesperson)

It was this surprising new requirement that led to the PSPO being reported widely in the national news, sparking debate across media platforms on how effective the regulations would be.

Canterbury City Council aren’t the first council to make dog owners liable to fines for not having the means to clean up their dog’s mess. Since the introduction of the Anti-social Behaviour, Crime and Policing Act 2014, under which PSPOs have replaced the previous system of Dog Control Orders, several councils including Daventry, Boston, Knowsley, and Rhondda Cynon Taf have introduced PSPOs with the same obligation to carry bags for dog waste.

However, Canterbury appears to be the first council to make carrying two bags the common standard upon which the ‘means to clean up’ is based. It’s a bizarre situation that reveals something more significant about the powers of the state to intervene in our everyday lives.           

 

What do dog owners think?

As those most familiar with their dogs’ toilet habits, dog owners were particularly well-placed to point out the absurdities of the new rules. Living in Canterbury myself, I approached them in person and online to hear their thoughts.

Their most common concern was being approached by an officer at the end of a walk, when they may have fewer than two bags left. How would officers know that a dog walker had originally carried more, if some of the bags had already been used and thrown away? There were similar worries from those who use different methods of cleaning up after their pet, such as scooping the mess into a single black bin liner, which do not adhere to the ‘two bags’ rule.

“What happens if you've used up all your bags clearing up after your dog and everyone else's dogs, will you get a fine then as well? How can you prove that you had more than 2 bags? You can't as you've just used them all up and you're on your way home!” (Dog owner)

Other owners believe that the regulations could actually worsen problems with dog fouling. It’s been suggested that setting such a precise number of bags to carry might encourage dog walkers to leave poo on paths if they’re running out of bags, for fear of being caught out later by officers. Furthermore, ensuring that bags are carried by dog owners won’t do anything to stop the well-reported problem of people dropping poo bags as litter, rather than using bins.

It’s easy to see how the arbitrary requirement to carry two bags could make criminals out of those who had no intention of leaving their dog’s mess, while serial offenders go unpunished.             

In response to these issues, some dog owners have pointed towards practical, proven methods of tackling the issue instead of costly enforcement practices, suggesting that the Council itself could be more proactive in ensuring the appropriate facilities are available for dog walkers. On social media, many highlighted the lack of bins for disposing of dog waste in popular recreation areas, arguing that more should be available. It was also pointed out that other councils and voluntary organisations in the UK provide bag dispensers on common walking routes. This tactic reminds owners of their obligations and encourages them to fulfil them, while also providing the means to do so for those who have may have run out of bags, or simply forgotten to pack any.

Instead of taking positive steps to solve the problem, Canterbury City Council (CCC) have opted for an approach to dog fouling that risks not only being ineffective, but also criminalising dog owners who have done nothing wrong.

 

How have the council responded?

Due to the volume of reaction to the news in mainstream and social media, the council felt the need to make an ‘Important Information’ post on their Facebook page.

The council were especially keen to emphasise that they will be taking a ‘common sense’ approach to enforcement – another way of saying that your chances of getting a fixed penalty notice are at the discretion of the individual officer(s) involved. They confirmed that enforcement officers are not legally entitled to stop and search to confirm people’s claims that they are carrying poo bags, and wouldn’t want to do so. Nevertheless, it is an offence to not produce bags when asked, even if it turns out that you do have enough in your possession.

Despite the PSPO being operative over the whole Canterbury district, the Council wrote that their officers will “largely be using the powers for targeted operations on specific problem areas or offenders”. As there are already three Dog Control Orders in place from the time before the 2014 Act came into force, the introduction of the PSPO would suggest that CCC is primarily looking for more flexibility, allowing them to enforce these rules anywhere within the district. Though this comes even as the Council stated that dog fouling is “no more of a problem in Canterbury district than it is anywhere else”.

Indeed, throughout their public posts, CCC have maintained that dog fouling is only a problem among a small percentage of dog walkers, and ‘responsible’ owners have nothing to fear from the PSPO. Yet with these new powers, CCC have changed the definition of ‘responsible’. Responsible no longer means simply clearing up after your dog. It means ‘carrying two bags’.                

 

State power over everyday life

Let’s be clear – nobody likes dog poo. Even those who are uncaring enough to never clean up their dog’s mess recognise that it is unpleasant and unhygienic.

But this policy doesn’t address the wrongful act of not cleaning up after your dog. Rather, it creates the arbitrary offence of not carrying two bags while walking a dog. It creates the legal category of a ‘responsible owner’ as someone who always carries at least two bags with them when in an outdoor public space with their pet, while those who fail to do this at any moment – even if they always pick up their dog’s mess – are legally ‘irresponsible’.

It is precisely the more bizarre cases such as this one which hint at the more sinister reality of state power since the introduction of the Anti-social Behaviour, Crime and Policing Act 2014. This legislation has given local authorities the power to use PSPOs to regulate any behaviour that could be deemed to have a ‘detrimental effect on the quality of life of those in the locality’, as judged by the individual officer(s) and/or councillor(s) who propose the order. Notably, as there is no legal obligation for councils to consult with the public before implementing a PSPO, the view of a single or small number of unelected officials can be all that is needed to take away the freedom to perform an activity in public. As such, nearly any activity, no matter how mundane, could become an offence ‘by proxy’.

This troubling consequence of the legislation is illustrated quite clearly by this interaction between Canterbury City Council and a member of the public on Facebook:

[NAME REMOVED]: Is this actually legal? Can they issue a fixed penalty notice for not carrying enough poo bags?

Canterbury City Council: Hi [NAME REMOVED]. It's not an offence to go out without dog poo bags. But it is an offence to breach a measure contained in a Public Space Protection Order. And because the dog poo bag rule is in our PSPO, that's how it can be enforced through a fixed penalty notice. I hope this explains it. 

With such interfering regulations being increasingly approved across the country – with less democratic oversight – more and more groups and individuals within our society are recognising the risks that PSPOs pose to our everyday freedoms. A recent Change.org petition demands that councils stop using PSPOs to target dog owners, and that the guidelines for using such regulations in the future be tightened. The petition calls for councils to provide verifiable evidence for any claims they make against dog owners, and that all proposed regulations are subject to a full public consultation process. After only a few days, the petition had already garnered over 7,000 signatures.

This petition adds to the extensive list of campaigns against PSPO proposals in recent years, which have challenged attempts by councils to micromanage activities from the commonplace, such as rough sleeping, begging, busking, and even swearing; to the seemingly ridiculous and situational, such as chalk drawing, carrying a golf bag, or selling lucky charms.

For those who may be wondering what real impact these apparently petty regulations will have, it’s true that Canterbury’s new dog fouling measures are going to be inconsequential in the lives of most people in the district. It’s true that, particularly at a time when council resources are tight, your chances of encountering an enforcement officer when walking your dog, let alone receiving a fixed penalty notice, are minimal. But it’s the ability of councils to micromanage acts so banal and seemingly harmless – freedoms that we take for granted – that signals why everybody should be concerned about the powers contained within PSPOs. We should all be questioning the limits of state power when an act as immaterial as ‘not carrying two bags’ can be deemed an offence.

Busking and Public Space in the Busybody State

Earlier this month, Havering Council announced their proposals for a Public Space Protection Order (PSPO) in Romford town centre. If their plans go ahead, busking with an amplifier, or anywhere apart from locations designated by the council, would be a criminal offence punishable by a £100 Fixed Penalty Notice or a fine of up to £1000 if taken to court.

What might seem like an exceptionally draconian response to performing in public space is an increasingly familiar story in towns and cities across the UK. Not only has busking been regularly included in plans for PSPOs, but two London councils – Camden and Hillingdon – have opted to regulate the activity using licensing. The former, often considered the beating heart of London’s diverse arts scene, requires buskers to pay a non-refundable fee of £19 (acoustic) or £47 (amplified). If approved, a performer can only busk at the times and locations printed on their licence.

Busking has been a feature of our public spaces for centuries, from the minstrels and troubadours of medieval times to today’s digitally-minded contingent. It has seen the birth of countless careers in music and performing arts, providing a consistent yet constantly evolving creative atmosphere in our high streets. With such an established place in our culture and everyday lives, the current clamping down on busking demands the question: what does this trend mean for our public spaces, and for the craft of busking itself?

 

Public space in the busybody state

As we go about answering this question, it is important to remember that public space has never been ‘free’. There is a tendency in contemporary discussions of the subject to imagine a time in the past when people could do anything they wanted in public space.

Yet this perspective ignores a past in which public space has been the setting for a wide range of social exclusions, alongside more formal regulatory measures based in law and authority. For example, public spaces have consistently been less accessible (let alone usable) for women, ethnic minorities, the young, LGBT people, and other marginalised groups throughout the ages. The ancient Greek agora – often upheld as an icon of free political debate and social mixing – was a space largely out of bounds for slaves, women and travellers. Time and again, freedoms for one group in public space have meant restrictions for another.

Even formal busking regulations have a surprisingly long history. In the Middle Ages, Guilds of Minstrels were established to both protect and regulate their members. In Canterbury, it was ordained in 1526 that all minstrels be part of the city guild, whose rules restricted the playing of instruments on Sundays during mass or evensong, in taverns/inns unless hired, or in houses unless the instrument was being tuned. Later, in the Victorian period, the Metropolitan Police Act of 1839 prohibited the use of ‘noisy’ instruments within the Metropolitan Police District ‘for the purpose of calling persons together, or of announcing any show or entertainment, or for the purpose of hawking, selling, distributing, or collecting any article whatsoever, or of obtaining money or alms.’

So it is important not to be overly pessimistic about the supposed decline or ‘end’ of public space, because public space has never attained the standards of ‘freedom’ that are often associated with it.

What is different today, however, is the style of regulation. There is now a whole network of officious mechanisms and actors that define the boundaries of acceptable conduct in public space, including forms, licences, codes of conduct, environmental health officers, private security guards, public liability insurance, health and safety guidelines, and more. Though each serves a slightly different purpose, they are mutually reinforcing. The terms of licences for public activities may be based on the latest health and safety guidance. Forms must be filled in to ensure compliance with codes of conduct, and the possession of public liability insurance. Together, these devices provide a ‘toolkit’ authorities can draw from to micromanage even the most mundane public activities.                                                      

The issue with this new form of officious regulation is that it tends to categorise which behaviours are acceptable or unacceptable in public space according to very arbitrary distinctions, which are then enshrined in law and policy to become the official standards. Licences and PSPOs dictate the exact times, locations, and even which types of instruments or performances are suitable in public spaces. Context becomes irrelevant, as the appropriateness of activities is specified by a series of absolutes. Busking with an amplifier becomes unacceptable by definition, regardless of how quiet the instrument is, or how loud the ambient noise in an area. Rules are enforced by officers and security guards because they are rules, not because they make sense in a given situation. Indeed, it becomes harder to justify your activity when you are arguing against a written statute rather than a person’s judgement.

The result is that you can no longer assume that what you’re doing is allowed until you’re told otherwise. Rather, it is a person’s responsibility to ensure that they fulfil the official requirements for their activity beforehand for it to be deemed acceptable.

So although public space is not necessarily less ‘public’ today, it is evident that our relationship with it is, in many places, becoming more formalised and less open to spontaneity.

Which, as we’ll see, may not be the kind of public space that we want.

 

Busking culture

If regulations are leaving less and less room for the spontaneous and unpredictable, it is perhaps unsurprising that busking is now a common target of officialdom. Busking is now so synonymous with non-conformity that the verb ‘to busk’ has taken on the alternative meaning ‘to improvise’. In their comprehensive history of street entertainment, Cohen and Greenwood explain that “the essence of street music is not in its technical perfection or tonal quality, so much as its spontaneity and freedom”.

“The busker is important, not merely because he brings us music on our way to work, but also because he represents the unpredictability and freedom that have been lost in most people’s regimented lives. The footloose musician has always been around and his different perspective on life can give a fresh point of view to that coming from masses of people all trained to think the same way.” Cohen and Greenwood, The Buskers: A History of Street Entertainment

In the world of local government bureaucracy and law enforcement, though, it’s often hard to convince those responsible for maintaining safe and functional public spaces that spontaneous art has any inherent value. Any use of public space that is not for the purpose of unobstructed movement, particularly between commercial properties, is seen as disorderly or even threatening. In fact, the Metropolitan Police have made the claim multiple times – without evidence – that busking encourages crimes such as pickpocketing. Following Wilson and Kelling’s influential ‘broken windows’ thesis, this judgement probably reflects the perception that signs of disorder in a neighbourhood can create the conditions for crime and other social problems.

Nonetheless, buskers can point towards other benefits of their craft that demonstrate its wider social value. One particularly evocative term that has been used to describe buskers is ‘civic lighthouses’, encapsulating the idea that buskers provide safety and reassurance on our streets, as well as being cultural landmarks in themselves. Not only can buskers act as eyes on the street to deter or witness wrongdoing, but also friendly sources of local information and confidants for people in need. Due to their shared presence on streets, buskers tend to forge a close and mutually supportive relationship with homeless communities, for example.

Those with purely commercial interests also have plenty to thank buskers for. By creating a vibrant atmosphere in urban centres, buskers can encourage higher footfall from which local businesses can benefit. Stories abound of buskers being offered free food and drink, money, and gigs based on their performances by establishments such as restaurants and pubs – an indication of the value that these businesses attribute to buskers. Additionally, the money earnt by buskers will often be invested back into the local economy when it is spent.

Perhaps the most meaningful impact of busking, however, is how it cultivates awareness of the different kinds of people and lifestyles that exist in our communities. Through their performances, buskers bare part of their soul; sharing a piece of their identity for others to freely access. Different voices, different styles of music, different appearances, different acts. Many will be familiar with the cheerful sight of a child utterly transfixed by a street performance, as if they’re under some magical enchantment. Busking for many people is the closest they get to experiencing live music and spectacle, particularly from diverse genres.

It is precisely this interaction with difference – and the social, cultural, and economic benefits these relationships create – that risks being stifled through the officious regulation of busking and public space more broadly.

 

What kind of public space do we want?

Fortunately, there are numerous organisations committed to making the case against the hyper-regulation of busking and street culture. Among the most prominent is Keep Streets Live, led by professional busker Jonny Walker, who advocate for freedom of expression in public spaces by engaging with local authorities, creating petitions, responding to PSPO and licensing consultations, encouraging support for busking using social and traditional media, and organising protests where necessary. Larger organisations including The Musicians’ Union, Liberty, Equity and The Busking Project have all stood alongside Keep Streets Live in their various campaigns, while smaller groups such as Buskers Unregulated have used social media to encourage the recording and sharing of interactions between buskers and officials, providing legal advice to performers who need it.

And in many cases, it’s working. After a long campaign by Keep Streets Live in 2012, Liverpool City Council backed down over their proposals to introduce £20 permits and compulsory public liability insurance costing £100 for buskers in the city. Now, Liverpool is a model location for unregulated busking, having worked with Keep Streets Live, the Musicians’ Union and the local Business Improvement District (BID) to produce ‘A Guide to Busking in Liverpool’. Informative rather than authoritative, this guidance outlines a simple approach to managing any issues arising from busking, encouraging amicable conversation rather than regulation. It is only when buskers consistently refuse to engage with affected parties and fellow buskers that intervention will be considered as a last resort, using the existing Public Order Act 1986 and Environmental Protection Act 1990 legislation.

Apart from resolving issues, the guidance also offers useful advice for buskers on choosing where to perform, and how to be considerate in their performances. While for residents, businesses, and local authorities, the document explains clearly what busking is and why it is considered a valuable activity.

Recognising the positives of this approach, other councils have followed Liverpool’s lead. Now York, Chester, Birmingham and Canterbury have adopted the same guidance, all after having originally planned to introduce stringent regulations for buskers.

The lesson to take from these outcomes is that councils are often willing to see the values of busking that is not formally regulated, but to be successful it needs methods that attempt to bring together all stakeholders to discuss what we want from our public spaces.

Understandably, co-operation can be difficult for some buskers. Many will have painful experiences of authority figures such as council officers and PCSOs, and many more will simply want to get on with their art rather than attend meetings. Equally, residents and businesses may struggle to sympathise with buskers if they have suffered at the hands of an inconsiderate minority. But being antagonistic towards other stakeholders tells people that their point of view is not being respected, which will only make them more likely to resort to the impersonal system of legal and officious channels to make their voices heard – a system that inherently leaves little room for negotiation and compromise.

That’s why the issue of busking regulation is not just about the loss of vibrant street culture, or the supposed ‘end’ of public space, but about what kind of public space we want to have. Do we want public spaces where every single interaction must go through official channels to be deemed acceptable? Do we want public spaces where every conflict of interest is resolved by complaining to council officers or the police, or taking legal action? Or do we want public spaces that are open to difference and free communication; that welcome diverse and creative users because all stakeholders understand the positives that these activities can bring, rather than assuming they are inappropriate until informed otherwise?

It is here, in the decisions that determine the future of our public spaces, that we can all learn a little from the openness and conviviality of the busking art form.

 

Council Consultations and Public Space Protection Orders

People protesting Cheshire West and Chester Council's proposed Public Space Protection Order. Source: http://www.chesterchronicle.co.uk/news/chester-cheshire-news/chester-public-space-protection-order-10473411

It has become common practice within councils in the UK to undertake public ‘consultations’ before making decisions that will directly affect communities in the local area.

One such decision that councils have consulted on is the implementation of Public Space Protection Orders (PSPOs) in places around the UK. These new powers have been available for councils in the UK to use since the passing of the 2014 Anti-social Behaviour, Crime and Policing Act.

PSPOs are a particular geographically-defined form of antisocial behaviour order. Similar to ASBOs, but for places rather than people. Councils can consider using PSPOs if they are aware that certain activities in particular public spaces have, or are likely to have, negative effects on quality of life. When an order is put in place, anyone partaking in one of the predefined ‘anti-social’ activities in the area covered by the PSPO may face fines and/or prosecution.

While these new measures have drawn plenty of controversy by themselves (see campaigns by the Manifesto Club), the way that councils consult with communities before implementing the PSPOs has consequently also come under increasing scrutiny.

I came across consultation issues in my previous work on the regulation of busking in Camden. Here, Camden Council were getting the opinions of stakeholders on their proposal to license busking throughout Camden.

In this case, however, there was a feeling amongst many that the consultation was inadequate for a number of reasons:

 

- Buskers and activists felt that the voices of people who live outside Camden were largely ignored by the council, despite Camden being an area of wider significance nationally and internationally. 

- People from all groups were concerned that the questions used in the consultation were biased, in that they implied that the council’s proposals were going to go ahead (e.g. using phrases such as ‘do you agree that…’).

- Perhaps most importantly, some councillors suggested that many consultations are done simply as a means to an end – a tick-box exercise where being seen to be consulting was more important than the actual quality of engagement with people affected by the issue. The council could then justify whatever eventual decision by claiming that the consultation was thorough.

As real as these issues are, in this and other contexts, my decision to write a blog post about consultations was actually based on a success story.

Earlier this year, Cheshire West and Chester Council proposed to implement a PSPO in Chester’s city centre targeting busking, rough sleeping, begging, feeding pigeons, consuming alcohol/legal highs, and urinating/defecating. All of these activities would have been prohibited outright apart from busking, which would have required buskers to undertake a ‘quality assessment’ by the council, only play on council-designated pitches, and play at restricted noise levels. Anyone violating the order would face a maximum £100 fixed penalty notice, or a fine of up to £1,000 on conviction at court if they continued with the prohibited activities.

In keeping with the current trend in consulting, the council launched a consultation for these proposals on 23^rd July, running until 15^th October. I responded to the consultation, mainly as someone who has worked closely with Keep Streets Live in their campaign to encourage councils to adopt their Best Practice Guide for busking, rather than creating additional legal architecture to regulate it. But I am also concerned about the powers that the 2014 Act gives authorities generally, encouraging legal intervention for activities in public space that simply have the potential to cause someone a nuisance. In my response, I therefore argued why I felt that the PSPO should certainly not be adopted for busking, rough sleeping, and begging, while expressing my concern with the use of the 2014 Act in general.

Although I’ve become used to expecting the worst from council consultations, Chester’s councillors actually listened to respondents. When an overwhelming majority of respondents said that they did not support using a PSPO to regulate busking and rough sleeping, the council removed these measures from the proposals. And given that 77% of respondents supported using a Best Practice Guide for busking, they have decided to take steps to use this approach instead.

For the other activities – public urination/defecating, alcohol/legal high consumption, pigeon feeding, and begging – the consultation showed that responses were mixed, with slightly more in favour of PSPO restrictions than against. The council is therefore going to discuss these issues further before making a decision in early 2016.

What this all demonstrates is that, when done well, local authorities can use consultations to make informed decisions that reflect the views of stakeholders. On the basis of the consultation responses, you couldn’t argue that Cheshire West and Chester Council’s next steps have been unreasonable. Unfortunately this does not always happen in practice.

It seems that there are new councils each week that propose to use PSPOs to regulate activity in public space. Last week, both Exeter City Council and Kettering Borough Council launched their proposals to introduce the measures for activities as diverse as begging, skateboarding and swearing. In light of this trend, it is more important than ever that councils follow Chester’s lead and ensure that their consultations are fair, responsive, and listened to accordingly.

Further reading

See geographer Bradley Garrett's piece in The Guardian on PSPOs and public space:

http://www.theguardian.com/cities/2015/sep/08/pspos-new-control-orders-public-spaces-asbos-freedoms

See this page for all of the Chester Chronicle's stories on the proposed PSPO in Chester town centre:

http://www.chesterchronicle.co.uk/all-about/public-space-protection-order