Agenda and minutes

To receive any apologies for absence from Councillors.

Apologies were received by Cllr O Walters and Cllr F Rice who joined virtually.

To receive information on any changes in the membership of the Committee.

Note – When a member of a Committee is unable to attend a meeting of a Committee or Sub-Committee, the relevant Political Group Leader (or their nominated representative) may, by notice to the Monitoring Officer (or their nominated representative) prior to the meeting, appoint a substitute member from within the same Political Group. The contact details on the front of this agenda should be used for notifications.

Cllr M Andrews attended as a substitute for Cllr O Walters

Councillors are requested to declare any interests on items included in this agenda. Please refer to the workflow on the preceding page for guidance.

Declarations received will be reported at the meeting.

There were no declarations of interest made on this occasion.

To receive any public questions, statements or petitions submitted in accordance with the Constitution. Further information on the requirements for submitting these is available to view at the following link:-

https://democracy.bcpcouncil.gov.uk/ieListMeetings.aspx?CommitteeID=151&Info=1&bcr=1

The deadline for the submission of public questions is 3 clear working days before the meeting.

The deadline for the submission of a statement is midday the working day before the meeting.

The deadline for the submission of a petition is 10 working days before the meeting.

There were three public statements received from Mr McKinstry which were read out in his absence by the Democratic Services Officer as follows:

1.       The statement in Paragraph 8 of today's report, that all twelve Conservative councillors have sought this call-in (but no member of any other group, nor any unaligned member), suggests this is a political exercise. And this is supported, too, by the fact that the Conservatives were planning their own PSPO before the elections, and that their own clauses, which would have criminalised sleeping in vans or overnight camping, have now been removed. It seems reasonable to assume that the group is now trying to get its own back, possibly to woo the hotelier vote. Procedure Rules 4C 14.2 and 14.7.2 of the Constitution state that call-in should only be used exceptionally, and not for purposes that are "vexatious ... or improper". I trust, therefore, that statutory officers are watching for any sign of scrutiny being manipulated for political grandstanding, or political vengeance.

2.       Regarding the call-in claims: contrary to what is alleged, Cllr Wilson cited two lines of possible legal challenge at July's Cabinet, the first being that a PSPO banning sleeping in vans is challengeable under "negative equality impacts". Such grounds were indeed cited by Sarah Ward when she sued this Council over an earlier PSPO, penalising homelessness, in 2019. Secondly, Cllr Wilson described how behaviour needs to be "detrimental" - not merely "inconveniencing" - to justify criminalisation. With open fires and excretion already targeted under a separate order, what remains is the potential criminalisation of sleeping in a tent or van. The idea that these activities could wreak "a detrimental effect on the quality of life ... in the locality", as required under Section 59(2) of the Anti-Social Behaviour, Crime and Policing Act 2014, is laughable. Cabinet acted wisely therefore in rejecting these disproportionate proposals.

3.       Finally I want to address the claim, again in Paragraph 8, that "exactly the same PSPOs have been implemented by other councils without legal challenge." This remark is disingenuous, as Section 66(7) of the Anti-Social Behaviour, Crime and Policing Act severely limits the way in which "interested persons", such as residents or visitors to an area, can challenge PSPOs once implemented. Such applications can only be made under Section 66(2) of the said Act, a procedure which is little-known, time-limited (to six weeks), and subject to legal aid only in very narrow circumstances (following the decision in R (Liberty) v Director of Legal Aid Casework, 2019). It may be this, rather than mass concurrence, that explains the paucity of legal challenge which the Conservative group is so swift to cite.

The Board is asked to review and scrutinise the decision of the Cabinet taken on 26 July 2023 in relation to the item of business relating to ‘Protecting our Coastal and Open Spaces’, following the receipt of a valid call-in request from the pre-requisite number of councillors.

In accordance with the Constitution, the Board must determine whether or not to offer any advice in relation to the decision. If advice is offered, Cabinet will be required to reconsider the decision in light of the advice but is not obliged to follow it.

The Board was asked to review and scrutinise the decision of the Cabinet taken on 26 July 2023 in relation to the ‘Protecting our Coastal and Open Spaces’ item, following the receipt of a valid call-in request from the pre-requisite number of councillors.

The Interim Monitoring officer presented a report, a copy of which had been circulated to each Member and a copy of which appears as Appendix 'A’ to these Minutes in the Minute Book. In accordance with the Constitution, the Board had to determine whether or not to offer any advice in relation to the decision

The Interim Monitoring Officer explained the grounds that were required for the call in to be accepted by the monitoring officer as valid. The officer cited the three principles within Article 12 of the Council’s constitution that were referenced as the grounds for the call-in to be considered by the Board, namely:

(b) ensure that the decision and the decision-making process are lawful;

(e) have due regard to appropriate national, strategic, local policy and

guidance;

(h) explain what options were considered and give the reasons for the decision;

The lead call-in member explained the reasons for the call in as outlined in the report. Another party to the call-in also addressed the Board. The Portfolio Holder for Housing and Regulation then responded to the call-in.

The Portfolio Holder advised that they had been actively working with officers and partners to determine the most appropriate options for Protecting our Coastal and Open Spaces and outlined the process that was followed in reaching the decision and the response to the call-in reasons as follows:

1. The requirements to implement a PSPO were set out in Sections 2-4 in the report. Section 4 of the report showed the legal requirement for behaviour to have a ‘detrimental effect on the area’ in order for a PSPO to be sought. Behaviours that were considered inconvenient from a legal perspective were very different from detrimental. Council and external legal advice was sought throughout the PSPO process, and that advice was followed throughout the decision-making to ensure the Council did not act unlawfully.
2. All the relevant policies and guidance were considered with particular attention to the government's updated guidance from June 2022. The guidance highlighted that PSPOs should not be used to target individuals purely because they were homeless or rough sleeping.
3. Section 19 of the report presented an options appraisal that outlined the available decisions and their justifications for Cabinet to consider.
4. An equality impact assessment was carried out that considered The Public Sector Equality Duty and its obligation under the Human Rights Act. The assessment showed that carrying out some of the PSPOs could infringe on the rights of some of the most vulnerable within society.
5. A potential legal challenge around whether the Council would have been in violation of Section 6 of The Human Rights Act 1998 had been raised.

The Chair then invited the Overview and Scrutiny Board to discuss the items that were raised and  ...  view the full minutes text for item 5.