My Lords, the amendment deals with a difference of opinion between the Government and myself over the best wording of the Bill. At present, the Bill states that, in relation to anti-social behaviour:
"The landlord must . . . prepare a summary of its . . . policy and procedures . . . to any person who requests it".
That is not sufficiently specific.
It is clear to me that every tenant should have that document and the landlord should be required to provide it, although, if the policies and procedures in relation to anti-social behaviour are included in the tenancy agreement, I readily concede that the tenants will have it. Whether those policies would be spelled out in full in a document that relates specifically to the right to occupy a property is another matter, although I do not doubt that they would be referred to.
More importantly, where the Bill says,
"to any person who requests it", social landlords, or any landlord who has a policy towards anti-social behaviour, ought to be required automatically to provide it to people seeking to become tenants. It is to correct that difference of opinion, or to advance my opinion as being superior to that of the Government's—although I would not claim such arrogance in the matter—that Amendment No. 9 is before us.
I do not intend to debate the matter for a long time. We debated it in Committee and had a useful discussion but not, quite frankly, a satisfactory one. We need to be precise in such matters, and there are other areas of the Bill, to which we shall come later, which could be improved.
Amendment No. 17 has been tabled because of a complete failure on my part. I do not like putting matters that are "immaterial" in the Bill but, in trying to make those matters material, I failed. However, it would still be better not to have immaterial matters in the Bill, and that is why Amendment No. 17 has been tabled. I beg to move.
My Lords, there continues to be something of a disagreement here, and I intend to explain why that is the case.
Amendment No. 9 would require social landlords to provide copies of summaries of their policies and procedures on anti-social behaviour to existing tenants, and to anyone who is seeking to become their tenant only. However, the amendment would remove the requirement to provide free copies to anyone, other than tenants or prospective tenants, who asked for one. Under existing provisions, the summary will be available to anyone at all with an interest in it. While we agree with the noble Lord that the information should be available to tenants and prospective tenants, we would not want to restrict access to the information in any way, and certainly not in the way that the noble Lord suggests. So we are dealing there with an unintended consequence of the noble Lord's amendment.
The effect of Amendment No. 17 would be that social landlords could use the housing injunctions introduced by Clause 13 to prohibit only the anti-social behaviour that occurred in the housing accommodation or its locality. That would have highly undesirable consequences. The wording is not immaterial to the legislation; it refers to where the anti-social behaviour takes place, so it is material.
It is not our intention that social landlords should police the activities of perpetrators of anti-social behaviour wherever they are, regardless of the circumstances. Where such behaviour happens outside the neighbourhood, there must be some link to the housing management function. However, there are numerous incidents where such a link is easy to establish and where it is perfectly reasonable for a landlord to seek to protect the victim wherever the behaviour has occurred.
If the noble Lord thinks back, he will remember that I gave some examples in Committee. For example, our intention is that a housing officer who refused a tenant a transfer could be protected if the aggrieved tenant later saw him in a supermarket some miles away from his place of work and attacked him. A dispute outside a school could also be covered, where it had started as a neighbour dispute on the landlord's estate. The amendment would remove that important protection.
Powers under Clause 13 are intended to allow social landlords to deal with real problems affecting the lives of real people. Anti-social behaviour is not neat and tidy, as I am sure the noble Lord understands, and victims cannot always escape it by stepping away from the neighbourhood. We will have failed victims if we allow housing-related anti-social behaviour to follow them away from their home or their work, but do not allow protection to follow them as well. Wherever it is reasonable for social landlords to seek to protect people, we must allow them the flexibility to do so.
I hope, having heard that and having reflected on the importance of the wording, the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful to the noble Lord for his explanation. As regards Amendment No. 9, I admit that it might be disadvantageous if social landlords, or, indeed other landlords in this field, were not required to provide their policies to anyone. To that extent I am prepared to accept that my amendment could be improved. I may well take it away to see whether I can improve it.
As regards Amendment No. 17, the Minister said that this matter, which is described in the Bill as "immaterial", is material. He made it clear that it was material. In the circumstances, therefore, will he take the measure away and consider whether he can do something with the wording so that the Bill does not state, "It is immaterial where"? It seems to me that that is a problem. With that, I beg leave to withdraw the amendment.
My Lords, Amendment No. 10 is the first amendment in a very large group which I expect we shall spend some time on, all of which arise because there is considerable unease over the definition of "anti-social behaviour". As the Bill states, the definition applies to conduct,
"(a) which is capable of causing nuisance or annoyance to any person, and
(b) which directly or indirectly relates to or affects the housing management functions of a relevant landlord".
I accept the second part of the definition which provides a qualification. But conduct,
"which is capable of causing nuisance or annoyance to any person", is an extremely wide definition from any perspective. In Committee we tried to tighten up the measure. My "runner" at that time was "persistent and unreasonable behaviour". The use of the word "persistent" drew the fire of the noble Baroness, Lady Dean of Thornton-le-Fylde, who rightly said that occasionally anti-social behaviour could be so bad that simply one instance of it was beyond all reasonable behaviour. I have removed the word "persistent" and refer simply to "unreasonable behaviour". Some of the other definitions which we shall hear about in a moment may be more favourably considered. However, what we are relying on here are the courts. I have immense faith in the courts; they will have to decide these matters if push comes to shove. I do not doubt that they will decide the matter sensibly. We are fortunate that we live in a sensible, law-abiding country and we have a very good system of magistrates' courts where decisions and justice are sensibly administered.
However, I still think that legislation should say what it means to say rather than say something and rely on the good sense of a third party to administer it appropriately. My Amendment No. 10 seeks to insert the word "unreasonable" so that the Bill would read:
"This section applies to unreasonable conduct—
"(a) which is capable of causing nuisance or annoyance to any person".
I beg to move.
My Lords, I wish to speak to Amendments Nos. 13, 11 and 47. In Committee we had a short debate on similar amendments to Amendments Nos. 11 and 13. An amendment similar to Amendment No. 47 was tabled but not spoken to.
I believe that it is common ground across the House that a person with an autistic spectrum disorder can sometimes display challenging as well as obsessive and ritualistic behaviours. That may include stereotyped movements, poor awareness of personal space, repetition of strange sounds and words, lack of flexibility of thought or becoming very upset or angry because of changes in routine. These behaviours could be interpreted as being anti-social. In Committee we on these Benches expressed concern that the provisions in this Bill could lead to people with autism being wrongly stigmatised or, indeed, criminalised. That applies both to anti-social behaviour injunctions under Part 2 and to parenting orders under Part 4.
If the Bill is passed in its current form, we are extremely concerned that there could be more examples of parents who have a child with an autistic spectrum disorder receiving an anti-social behaviour order. In Committee I referred to parents who received an anti-social behaviour order because their son had trampolined in his own garden and made what were termed "strange noises" which caused distress to neighbours. Under the wording of new Section 153A to the Housing Act 1996, which refers to conduct,
"which is capable of causing nuisance or annoyance", that kind of behaviour is almost bound to fit into that definition.
When pressed in Committee after a fairly tense debate, the noble Lord, Lord Bassam of Brighton, said:
"We understand the sensitivity required when dealing with people who suffer from particular syndromes, which contribute to their appearing in court, to be dealt with in the way in which this legislation will deal with them. I do not want the noble Lord to leave thinking that I am patronising, a bad cop or unsympathetic—I am not usually. I understand the points entirely".—[Official Report, 11/9/03; col. 499.]
I think no worse of the noble Lord for reading his ministerial brief and then going off piste and drawing on his personal experience from his time as a councillor. I appreciated that as, after all, it is experience on the ground which is so important in this respect. I appreciated the fact that he addressed the point. However, the noble Lord needs to go further and really address the point in the Bill.
In a letter to the National Autistic Society the Government have stated that the courts,
"will consider everything relevant to the case, including reasons for the behaviour".
However, an innocent person with autism should not be subjected to legal proceedings in the first place. I do not believe that it is the Government's intention to criminalise people with autism, but without appropriate training and the right definition in the Bill, police and other front-line professionals will not be able appropriately to manage a situation involving an individual with autism.
In Committee a number of noble Lords made the helpful suggestion that rather than go all the way in terms of mens rea towards insisting that there should be intention—I understood the points that were made in that respect—the concept of recklessness, which is in a sense halfway between negligence and intention, might be usefully inserted into the definition to differentiate between those whose behaviour is knowingly anti-social and those whose behaviour is directly related to their disability.
I know that draftsmen and lawyers, being one myself, much appreciate precedent in this respect. The use of the word "reckless" in legislation is legion. I have a whole series of definitions such as the Criminal Damage Act 197l; Nuclear Material (Offences) Act 1983; Sexual Offences Act 1956; Terrorism Act 2000; Theft Act 1978; Vehicles (Crime) Act 2001; Bankruptcy (Scotland) Act 1985; the very recent Communications Act 2003; Anti-terrorism Crime and Security Act 2001; Ancient Monuments and Archaeological Areas Act 1979 and Protection of Badgers Act 1992. There are quite a few precedents here. Without bludgeoning the Minister into submission, I hope that I have made the point that the concept of recklessness is extremely common. It is the kind of precision tool that is required in these circumstances. I very much hope that the Minister and his colleagues will be considerably more sympathetic to these two sets of amendments than they were in Committee.
Perhaps I may put a thought in the Minister's mind. Far be it from me to try to judge between the desirability of my noble friend's amendment and those of the noble Lord, Lord Clement-Jones. But both attach the requirement of reasonableness to the behaviour. I have met people whose mission in life is to be annoyed and upset. In fact, it is addressing only one half of the problem. At Third Reading there should be some requirement for reasonableness in the person who is to be annoyed. When I was a child everybody who was annoyed with me was unreasonably annoyed. But now I regret that as an adult and as a man of more mature judgment, I still find some people's annoyance with me to be unreasonable and that should be somewhere in the Bill.
Perhaps that will be the Mildrew amendment. I speak to the amendments which are in my name. I notice that the noble and learned Lord, Lord Brightman, is longing to intervene. It may be more helpful to the Committee if he is able to bring his expertise to all the amendments rather than to just the ones which have been spoken to so far.
I speak to Amendments Nos. 12, 14, 19, 27, 28, 29, 30, 32, 33 and 34. The general point is the same. Amendment No. 12 is to apply to the new Section 153A conduct which is capable of causing nuisance or serious or repeated annoyance. The words "serious or repeated" are the subject of the amendment. Following the entirely correct point made by my noble friend Lord Phillips of Sudbury, who made this proposal originally, we have not sought to qualify the term "nuisance". I will come to that in a moment.
Amendment No. 14 would narrow the condition required to be fulfilled to conduct fitting the description which I have just given. Amendment No. 19 is to apply the same description to conduct which entitles a landlord to apply for an injunction. Amendment No. 27 is similarly to define or limit behaviour which is the subject of the 1985 and 1988 Housing Acts, which deal with possession proceedings. Amendments Nos. 28, 29 and 30 similarly are concerned with the annoyance which the court must take into account when it is considering the effect of a proposed possession order under the 1985 Act. Amendments Nos. 32, 33 and 34 are similar amendments regarding the 1988 Act. I was not quick enough to spot that, for consistency, I should have tabled the same amendment to the Minister's Amendment No. 69.
At the previous stage of the Bill we were challenged by the Minister, as my noble friend Lord Clement-Jones, has said. He felt we were being rather soft. We were aiming to get the legislation to express accurately what the Government mean.
I do not regard it as an adequate response to a problem which my senior partner would have called sloppy drafting. We were told that "nuisance" and "annoyance" were adequate—a reliance on the judiciary. To say that it is sloppy drafting is not intended as a criticism of the Parliamentary counsel who dealt with it. I believe that it is slightly sloppy thinking because counsel will have reflected the Government's instructions.
The Minister told us to take a reality check. We have done so and we still find the Bill wanting in that regard. As my noble friend Lord Phillips of Sudbury said, "nuisance" is a term which is well-known in law and in its application by the courts. It does not need qualifying and should not be so. But "annoyance" is a term not known to common law in the same way. It is unsupported to any great extent by case law. It is not defined or described by the Bill. It is all very well to say that the courts will not grant an injunction or make a possession order if the behaviour in question is merely irritating. But I do not believe that we should be promoting legislation which allows for a disproportionate response and which relies on the courts to apply the reasonableness which the Government should apply in the first instance.
"Annoyance" is different from "nuisance", which is self-evident, otherwise it would not be necessary to use the two terms. It is evident to me that it is something less than "nuisance". The noble Baroness, Lady Scotland, referred to it in a letter, for which I thank her. She wrote,
"Although 'annoyance' is perhaps something less than 'nuisance' the difference is slight".
She provided details of some cases which have considered the term "annoyance", but I believe only three referred to it rather than "nuisance". That is not very many considering our judicial history. The most relevant concerns the case of Tod-Heatly v Benham 1988. Lord Justice Bowen stated,
"the expression 'annoyance' is wider than 'nuisance', and a thing that reasonably troubles the mind and pleasure—not of a fanciful person or of a skilled person who knows the truth"— so perhaps not Victor Mildrew—
"but of the ordinary sensible inhabitant of a house, seems to me to be an annoyance, although it may not appear to amount to a physical detriment to comfort".
That is a pretty low test to pass and too low for the legislation we are considering. I thank the Minister for the letter, but it passes the buck to the judiciary in an inappropriate way. It is not necessary because we have found ways of dealing with the term which strikes the right balance on the face of the Bill.
Finally, in her letter the noble Baroness, Lady Scotland, said,
"It would not be in the landlord's interest to proceed with cases based on trivial complaints".
That is quite right. She went on to say,
"Local authority landlords could lay themselves open to judicial review if they misused their powers in this way".
That is heading into a porridge of confusion which we can avoid. I hope that the Minister will take the suggestions which are being offered.
My Lords, I must confess that I am a little confused by the proposed amendment. As the subsection stands, it reads:
"This section applies to conduct—
(a) which is capable of causing nuisance or annoyance to any person".
The amendment would read:
"This section applies to unreasonable conduct—
(a) which is capable of causing nuisance or annoyance to any person".
Like the late Mr Fowler, I am not enamoured of adjectives unless they are essential, but I wonder whether the noble Lord, Lord Dixon-Smith, could help by giving an example of reasonable conduct which is capable of causing nuisance or annoyance and unreasonable conduct which is capable of causing nuisance or annoyance. I could then see whether I feel that the adjective would satisfy the standards of Mr Fowler.
My Lords, I thought that my noble friend Lady Hamwee put the case extremely well and there is little more that needs saying. The difference between being irritated and annoyed is no difference at all. The noble Baroness, Lady Scotland, wrote after the previous debate when I moved the amendment. It is fair to say that the judgment of landlords is not always perfect. It is by no means impossible that if the test remains simply that of annoyance, there could be a feud between tenants leading to sustained pressure on the social landlord to bring action against one or more tenants on the grounds of, "I and my family are being annoyed".
A simple issue of good parliamentary draftsmanship is involved, while accepting that the issue derives from the instructions given by government. It is not good parliamentary draftsmanship to harness together nuisance on one hand and annoyance on the other. That is so largely for the reasons explained by my noble friend Lady Hamwee; that nuisance is a well-defined term. Moreover, the nuisance test at common law is strict. One cannot waltz into court and claim nuisance on the kind of grounds that will be available if, as an alternative, you can plead on grounds of annoyance. That is my main complaint. Left on its own, annoyance could encourage thoroughly ill-considered, ill-advised and sometimes pressured court action on behalf of people who are grinding an axe.
Then one must consider what would be the position of the judge if he or she had to apply Section 153A without the amendments now being argued for. There is a limited discretion on the part of the judge if annoyance, plain and simple, is proven. I believe that we have a duty to try to make life as easy and practical as possible for the judiciary. That effect would be achieved by inserting "serious or repeated". That formula is common in employment contracts and is used to overcome precisely the problems we are contending with here. Dismissal is frequently expressed in contracts of employment as being possible where there is a serious or repeated breach of the terms of the contract. One realises that many terms of a contract, if breached on their own, should not be such as to entitle a severe remedy.
We are dealing here with severe remedies. We are dealing with injunctions and, in subsection (6), the fact that once the injunction has been granted the person against whom it has been granted shall not,
"engage in conduct to which the section applies".
I suggest that not only must judges construe what "annoyance" means in this context, but so will members of the public. I believe that they do understand "serious or repeated" annoyance. If no qualification is made in the manner suggested, someone against whom there is an injunction is left in a wholly unsatisfactory position.
Finally, I agree with the noble and learned Lord, Lord Brightman, in the challenge he posed to the noble Lord, Lord Dixon-Smith. It was a nifty challenge because my good friend Lord Dixon-Smith will have some problem in answering it effectively. Furthermore—dare I say it?—considering the other amendment tabled by my noble friend Lord Clement-Jones, inserting the words,
"reckless as to whether it causes", annoyance, I am not sure that it is an easily applied test. The test of recklessness might be a little too high in relation to what I understand the legislation is directed at. "Reckless" is a very high test.
We on these Benches do not want to frustrate or impede the underlying intent of the clause, with which we wholly agree. I am not in business to shoot down amendments from our own side. However, I merely put in the mind of the House and the Minister that if he had to choose between the three amendments tabled, this might be the more practical and concrete.
My Lords, it seems to me that the distinction between "nuisance" and "annoyance" is absolutely clear. "Nuisance" has ever been one of the old forms of action in tort: "annoyance" has not been. We are here dealing with a statute. If you are using "nuisance" you do not need to qualify it. But of course, as the noble Lord said, you do not just walk into court and obtain an injunction saying that something is a nuisance. It must be a substantial nuisance; a reasonable complaint.
"Annoyance" is different. It must be qualified as being reasonable. If you do not, you are placing too high a burden and it would be impossible to administer fairly. That is only my opinion.
My Lords, this has been a wide-ranging discussion about definitional issues and I understand why that might be the case. Colleagues on the Liberal Democrat Benches were irritated—perhaps slightly wound up—by some of the responses given during the Committee stage. They are perhaps annoyed, finding it a nuisance, worried about it being trivial and certainly they do not want to be reckless today.
I can well understand the noble and learned Lord, Lord Brightman, being confused. Having listened to responses from the Liberal Democrat Benches, I am slightly confused as to where they are coming from and not altogether certain whether they are playing on the same football field. I was not entirely convinced—ultimately, not convinced at all—by their range of arguments, interesting though they were.
I thought that the noble Baroness, Lady Hamwee, began to put her finger on the issue. Initially, she appeared to be concerned about sloppy draftsmen. She then let the parliamentary draftsmen off the hook by saying that it was sloppy thinking. Presumably, she believes that it is sloppy policy thinking. I disagree with that. This is not sloppy policy thinking—we know exactly why we are here and what we are trying to achieve.
I can see that the Liberal Democrats in particular have a difficulty with this whole approach and strategy and with the Government's drive against anti-social behaviour. What they are trying to do—and I can understand why they are doing it—is to pick away at the policy. That is what they do not like—they do not like the thinking behind what is here.
My Lords, perhaps the noble Lord will let me finish the point. I shall deal in turn with his comments, and I remind him that we are on Report. I understand some of the amendments in terms of their desire for perfection and for getting things absolutely right. I certainly understand why the noble Lord, Lord Clement-Jones, made his observations. He rightly said that I was sympathetic to the points that he made. It is simply that, ultimately, I disagree with the means that he chooses to achieve a desirable understanding of people who have a condition such as autism or Asperger's syndrome, and so on. I well understand that and the practical difficulties that it can create for the courts.
I want to go through very carefully—
My Lords, I am reluctant to give way. This is a long group of amendments containing many different points, and I want to give them time and pay due respect to them. I am not sure that I can do so if I am constantly interrupted by the noble Lord. I shall give way this once.
My Lords, I am most grateful. The noble Lord will not be constantly interrupted so long as he does not make misleading remarks, such as he has just done. There has been no suggestion at all from this side that we are in disagreement with the policy objective. In fact, I believe that everyone has gone out of their way—during this and the previous stage of the Bill—to say that we agree with the policy objective. Therefore, I hope that the Minister will not base his argument on a misrepresentation of where we stand.
My Lords, I am grateful to the noble Lord. Am I now receiving fulsome support for our anti-social behaviour strategy? If I am, then that rather differs from the impression that I had previously. However, perhaps I may make progress.
I believe that Amendments Nos. 10, 11, 12, 13, 14 and 19 are all in the name of the noble Lord, Lord Dixon-Smith. Essentially, they seek to make it harder for social landlords to obtain injunctions forbidding anti-social behaviour. New Section 153A deliberately widens the definition of "anti-social conduct" to include behaviour that is "capable" of causing nuisance and annoyance. That will enable social landlords to be more proactive in their management of anti-social behaviour and, in our view, will avoid legal arguments about the exact severity or likelihood of anti-social behaviour causing nuisance and annoyance.
Amendment No. 10 introduces a new criterion which must be proved in court: that the behaviour complained of is unreasonable. We do not consider that amendment to be necessary. When an application for an injunction comes before the court, the judge considers whether it is reasonable, given all the circumstances, to grant that injunction. That will include a consideration of whether the behaviour was reasonable.
There is no objective test of what is "reasonable behaviour" in all circumstances. As another noble Lord stated, something may be reasonable in a house but not in a flat. It may be reasonable at 6.30 p.m. but unreasonable at 10.30 p.m., 11.30 p.m. or midnight. It always depends on context, and that is what judges will have to consider.
The amendment would also affect the court's power to grant a demotion order and force it to consider "reasonableness" twice—first, in relation to the conduct alone and then in relation to the order as a whole, as required by new Section 82A(4) of the Housing Act 1985 and new Section 6A(4) of the Housing Act 1988.
We believe that the concept of reasonableness in respect of both injunctions and demotion orders applies in relation to whether it is reasonable to grant the order in all the circumstances of the case. That is already reflected in the level of discretion given to the courts by the provisions introduced by Clauses 13 and 14 of the Bill.
Amendments Nos. 11 and 13 narrow the circumstances so that the perpetrator of anti-social behaviour needs to be actively reckless rather than simply acting in a way capable of causing nuisance or annoyance. The word "reckless" implies some sort of test as to the defendant's state of mind, as appears in criminal cases. We believe that inquiring into the state of mind of the perpetrator is particularly unhelpful. If someone plays music until 4 a.m. and disturbs his neighbour, then the neighbour does not care whether the perpetrator has thought about whether he might be causing nuisance or annoyance to those around him, or even that he might have thought about it but chose to ignore the possibility. He simply wants the music to stop.
These amendments suggest that landlords should be required to provide evidence akin to that required to establish recklessness in criminal proceedings in order to obtain a civil injunction. We do not believe that that is right. In fact, in a sense, I agree with the point made by the noble Lord, Lord Phillips of Sudbury. We do not consider that higher test to be the right one in those circumstances.
An injunction is simply an order of the court asking someone to stop doing something. It is not a punishment in itself, although I believe that it has been misinterpreted by some as being that and, accordingly, it does not need to be restricted in the way that it can be necessary to restrict criminal sanctions. Mixing up civil and criminal concepts in the way that the amendment would—and it has been suggested that it might—has the potential to make the application of anti-social injunctions far too restrictive and would lead civil courts into highly complex inquiries as to the state of mind of the perpetrator. I do not consider that to be helpful.
I want to make one or two other comments, in particular with regard to the observations made by the noble Lord, Lord Clement-Jones, whose contribution I greatly respect. I can well appreciate the difficult circumstances that might arise from these processes being put in place when someone who suffers from a form of autism or Asperger's syndrome, or one such behavioural syndrome, is introduced into the court scenario.
I believe that the noble Lord was alluding to the fact that much of the work and preparation in bringing forward these orders must be undertaken. During that process, the authorities involved—whether they be the police, the housing authority or the local authority—will want to give very careful thought to the appropriateness of going along this route. I believe that is where the important work will be done. Because of that, matters such as guidance, the way in which the guidance is phrased and the way in which we, as government, consult on the quality of that guidance will make a profound difference.
I do not believe that chiselling away to put perfect words on the face of the Bill is necessarily the right way to approach the problem. However, I understand the points that the noble Lord made. We certainly understood them when he made them at an earlier stage in the Bill, and those considerations will have to be carefully thought through. Therefore, it is not that there is a lack of interest or a lack of seriousness in relation to this matter; I simply do not believe that this is the appropriate way to deal with it. However, I can see the temptation to do so and I applaud the noble Lord's efforts to bring forward that argument into this debate because clearly it is an important consideration.
Perhaps I may go into more detail and turn to Amendments Nos. 12, 14 and 19. Again, these amendments narrow the circumstances in which an anti-social behaviour injunction can be ordered. They require the conduct to be a nuisance or, if it is an annoyance, to be serious or repeated.
Amendments Nos. 27, 28, 29, 30, 32, 33 and 34 place the same additional consideration upon the judges in deciding a possession case. The judge will be required to consider separately whether the conduct comes within the meaning of nuisance or annoyance and, if it is an annoyance, whether it is serious or repeated. The effect of these amendments would be to split up a phrase which already has legal meaning. "Nuisance or annoyance" is a well-established legal test which the courts are perfectly comfortable to use. We do not believe that it is necessary to re-write it. The amendments distinguish between nuisance and annoyance in an artificial and unhelpful way. When the courts consider nuisance and annoyance, they automatically take into account whether the conduct has been serious and on how many occasions it has occurred. I argue that the proposed amendments introduce extraneous new tests which, in reality, would achieve little.
Amendment No. 47 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Linklater, would change the definition of "anti-social behaviour" for the clauses relating to parenting orders and contracts. That would make parenting orders under the Bill inconsistent with those under the Crime and Disorder Act. The amendment could also hamper agencies seeking to improve people's daily lives and the communities in which they live.
I also suggest to your Lordships that this change is not applicable or necessary in the case of parenting orders or contracts because the child or young person is not on trial. Indeed, these free-standing parenting orders are intended as an early form of intervention to help to change behaviour so that children do not end up in court.
The Bill allows parenting orders and contracts to be used to tackle misconduct by children below the age of criminal responsibility who are deemed not to have the moral and intellectual maturity to understand the consequences of their actions. The amendment, by requiring recklessness to be proved, could prevent parents of under 10 year-olds, as well as parents of older children, from receiving from youth offending teams the early intervention support that they need before behaviour becomes entrenched and leads on to more serious problems. That amendment could have a very unfortunate consequence.
I detected head-shaking and nodding on the use of the term "nuisance and annoyance", so perhaps I should explain the situation more fully. We consider the use of the term "nuisance and annoyance" to have a useful history. It is used in existing injunctions and it is worth reminding the House that those injunctions exist under Sections 152 and 153 of the Housing Act 1996. I believe I made that point in Grand Committee so there is an understanding there. Of course, the term is also used in possession proceedings under the Housing Act 1985 and more recently under the Housing Act 1988.
I do not accept that the term is not understood by the courts; they understand it. Placing the words together makes it clear to the courts that the word "nuisance" is being used in a usual everyday sense, not as a legal, technical form of jargon. The courts do not usually consider words in isolation from one another. It is clear from the cases that the "nuisance or annoyance" must be such as to annoy an ordinary, reasonable person, not one who is unusually sensitive. I believe that the terminology is well understood by the courts and it is for that reason that we want to insist on it in this legislation.
The noble Lord, Lord Hylton, in his short observation, tried to suggest that we are talking about behaviour that is used to restrain. That is right. I believe that he was trying to suggest to us that we should reflect on that and ensure that we are not excessive in what we are trying to achieve here. We have thought very carefully about the powers that we wish to take in this legislation. We believe that we are on the side of the public. This is not a populist gesture on our part. Our proposals are a response to a very real and perceived set and range of problems. We have tried to hone the legislation and its wording so that they are perfected and match particular circumstances. That is why we have adopted this approach. In bringing forward this legislation we have listened carefully and we have consulted widely and extensively on the way in which it will work and we believe that we have support for this general approach.
If during the course of our exchanges on this part of the Bill we have, at times, irritated some Members of your Lordships' House, it is because we believe that we have the matter about right. We want to ensure that we can get the Bill through so that people are provided in their homes and in their communities with the right level of protection from what most in your Lordships' House would accept is unreasonable and anti-social behaviour. If we have better law that can be used flexibly, it can be used for the benefit of the public. Having heard those points I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, before the noble Lord sits down, can he say why the Bill at line 18 on page 10 reads,
"is capable of causing nuisance"?
Would it not be better to say, "conduct is causing nuisance"? Would that not make the text more precise? This point was raised at a previous stage. If the noble Lord has difficulty with the point, perhaps he will write to me.
My Lords, before the noble Lord sits down—his calf muscles must be getting a little tired—will he confirm that although in the major part of his remarks he has referred to "nuisance and annoyance", the terminology on the face of the Bill is "nuisance or annoyance"? Does he wish to deal with "nuisance and annoyance" or "nuisance or annoyance"? Perhaps he will tell the House whether guidance on the application of these sections of the Bill will tell landlords how the term "nuisance and/or annoyance" has been applied by the courts in the past. The Government appear to be relying heavily on the experience of how courts have applied the term.
My Lords, first, I should remind the House that this is not the way to proceed on Report. The point raised by the noble Baroness will have to be carefully detailed in guidance. I have no doubt that that will be the case and that there will be important consultations on that. There will be a degree of interpretation. I do not believe that it is right for me to say more than that.
My Lords, I am extremely grateful to the Minister for that reply. He has my sympathy because he thinks—as he is obliged to sitting where he sits—that the Government's intentions are perfect and that the Bill is as near ideal as the Government can make it; therefore, who are we to criticise it? However, our problem is that we all know a camel when we see one, but I doubt whether we would all recognise the verbal description that each of us might give to a camel. So we have a little difficulty.
The noble and learned Lord, Lord Brightman, asked for an example of reasonable behaviour that might cause annoyance—I think I have it the right way round. I would give him an example that I would not expect him to have come across in his experience because I believe that he has not been as active in the political arena as many noble Lords in the House.
My Lords, forgive me for interrupting. I wanted an example of reasonable conduct causing a nuisance or annoyance and an example of unreasonable conduct causing a nuisance or annoyance. According to the Marshalled List, the adjective "unreasonable" appears before the word "conduct" and not before the words "nuisance or annoyance". Perhaps I may have an example of each. I am sure it could be done very simply.
My Lords, as I said, I would not expect the noble and learned Lord to have such experience in his locker. I am grateful to my noble friend Lord Elton for this illustration. An example of what I would regard as reasonable behaviour that can cause extreme annoyance—which is why in the past some of us may have done it—would be putting up a Conservative poster at election time in a known Labour garden. I guess that most of us would have done that in our youth. An example of unreasonable behaviour, which of course probably causes equal annoyance, is fly-posting the whole place with election posters. There is a clear distinction between the two.
We have a problem here. I am not sure whether the Minister has completely resolved the issue. We need to exclude from what I would call "the general debate", the specific points introduced by the noble Lord, Lord Clement-Jones, in relation to people with autistic and possibly other mental health problems, or, indeed, people with any health problem. We should exclude them from the argument, although as the Bill is drafted they are relevant to it. That is the problem that we face.
Our difficulty is the camel syndrome. I accept that the Government's intentions are entirely honourable and straightforward, and that they are trying their very best to produce a provision that will work. I accept that nuisance and annoyance in various forms is already in existing law and that the courts are now used to dealing with the problem. We are talking, however, about anti-social behaviour. That is what we are trying to define.
Noble Lords will have to think carefully about what the Minister has said because I am not sure that he has satisfied us. Equally, as our existing forms of words are not acceptable to the Government, I am not sure whether we can devise others that will be. They must be satisfactory not just to us but also outside this House and in courts of law. We need to consider everything in that context. We still have a little problem. The Minister has done his best to allay it, but I am not sure that he will have satisfied us. We shall study very carefully what he has said. Meanwhile, I beg leave to withdraw the amendment.
My Lords, I feel that this group of amendments will take a little less time than the previous one, but they require careful explanation. Amendments Nos. 15 and 16 have two effects: they replace the word "locality" with the word "neighbourhood"; and they change the words "the housing accommodation" to "housing accommodation".
Landlords have a responsibility for the protection of the communities who live in and around their housing stock. As I argued earlier, that responsibility does not stop at a particular distance from a particular unit of housing. Nor is the responsibility to non-residents in the area limited to protecting certain people carrying out certain activities in relation to individual premises. Landlords have a wider responsibility to the community and the neighbourhood.
Amendments Nos. 15 and 16 emphasise that and make clear that it is the landlord's stock as a whole that is relevant, not just individual premises. Amendment No. 21 makes clear that "housing accommodation" does not refer to single premises. Rather, it refers to the whole of the landlord's stock in a particular neighbourhood and encompasses, for example, the common parts of an estate.
I turn to Amendments Nos. 69 and 140. Other parts of the Bill provide strong powers for social landlords to seek anti-social behaviour injunctions. However, there are times when anti-social behaviour will not fall within the responsibility of social landlords. In those cases, we want to ensure that local authorities have sufficient powers to tackle anti-social behaviour more generally within their area.
Where anti-social behaviour injunctions are not available, the local authority can use other powers, including applying for an injunction under Section 222 of the Local Government Act 1972. Local authorities already use Section 222 to deal with anti-social behaviour, including to prohibit the activities of drug dealers or to obtain injunctions to prohibit assault or trespass to protect their staff. However, practitioners have expressed concern that such injunctions cannot be strongly enforced as easily as can housing injunctions. We share the desire to see that as wide a range of people as possible may be properly protected, and have listened to their concerns.
The purpose of the amendments is to ensure that injunctions that prohibit anti-social behaviour obtained by local authorities in any proceedings can be properly enforced. Where the conduct prohibited includes violence, threatened violence or a risk of significant harm, we want to give the courts the right to attach a power of arrest to the injunction.
The changes that the amendments make is modest, but the practical effect may be significant. Amendment No. 140 provides that the provision will be commenced in England by the Secretary of State, and in Wales by the National Assembly for Wales. That is ample explanation. I beg to move.
moved Amendment No. 16:
Page 10, line 26, leave out "locality of the" and insert "neighbourhood of"
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
I shall speak also to Amendment No. 20. In the long group led by Amendment No. 10, I wondered whether the Minister's notes for Report were headed not only, "Resist", but "Take a swat at the Liberal Democrats and suggest that they do not like the policy", when all that we are trying to do is to improve the Bill; we do not oppose the policy.
Having got that off my chest, I turn to the amendments, which were tabled to ask the Minister to explain what is achieved by excluding someone from his home when what is sought to be remedied may be dealt with by remedies elsewhere. I immediately thought of the example of domestic violence, where one might indeed suggest that the perpetrator of violence should be excluded from his—it is normally his—home; but that does not seem to be what the Bill is aimed to achieve.
There are other sanctions than those provided by the Bill against the perpetrators of anti-social behaviour. As I said, I do not follow what is intended to be achieved by excluding an individual from his home by means of injunction. If necessary, that can be achieved by possession proceedings.
We are all of course aware—although we do not mention it on every group of amendments—that the consequence of such injunctions or possession proceedings may well be homelessness. Creating homelessness cannot have any of the benefits intended by the Bill. I do not need to describe the consequences: the social exclusion of individuals and the real problems that may contribute to a fast, vicious downward spiral.
The legislation affects those living in social housing. It emphasises large differences between those in social housing and owner-occupiers. I am sure that, as a group or class, owner-occupiers are not immune to conducting themselves in an anti-social manner. If the intention is to prevent anti-social behaviour by making anti-social behaviour injunctions an alternative to possession proceedings, does not that power defeat the legislation?
I hope that the Minister will assist the House with an explanation of what the provisions I am probing with my amendments are aiming at. I beg to move.
My Lords, the noble Baroness explained the impact of her amendment expertly as always. Its effect would be to remove the ability to exclude a person from their home as part of a Clause 13 injunction. I appreciate that the noble Baroness may feel that excluding someone from his or her home is a very strong power. She is right. It is a very strong power. However, it is a crucial part of the overall protection offered by the injunctions. In the most serious cases, where people within a neighbourhood require immediate protection from violent or threatening behaviour, or forms of harm such as racial or sexual harassment, it is an appropriate remedy.
Having said that, of course there will be safeguards against the misuse of the power. It will be available only where there has been violence; a threat of violence; or there is a significant risk of harm to a person mentioned in new Section 153A(4). Judges will grant an injunction excluding a person from their own home only where they consider it necessary and proportionate, given all the facts of the case. There will be no change to long established tests that courts apply when granting injunctions. A power of exclusion will not be used lightly by the judiciary and it is certainly not the case that in every instance of violence, the threat of violence, or a significant risk of harm, an excluding injunction will be granted. The clause is clear that a power is being given to the courts, not an obligation imposed on them, which is an important point to bear in mind.
The amendment would have an unintended consequence. Those living in the next street to an anti-social tenant could, where the court was satisfied that there had been a threatened use of violence against or that there was a real risk of harm to residents of that street, be protected from contact with a violent or abusive person by way of an antisocial behaviour injunction. Those living in immediate proximity to that anti-social tenant could not be protected by way of injunction. I suggest that direct neighbours need this protection just as much as those living marginally further away. I am sure that the noble Baroness did not intend such an anomaly to arise as a result of her amendment. Allowing the amendment to pass would mean that those often in most immediate need—those living in the closest proximity to an anti-social tenant—could not be adequately or properly protected.
I do not need to remind the House that social landlords face a huge problem in their attempts to deal with anti-social behaviour: the reluctance of victims and witnesses to come forward and give evidence in court, which makes their job even more difficult. Even if there is no explicit intimidation, the possibility of having to confront that person as one comes and goes from one's home can be hugely stressful. I am sure we have all experienced such cases. Under the clause as it stands, the perpetrator can be immediately excluded from the place where they have been causing problems. Victims and witnesses who live in close proximity to the perpetrator will be protected from such intimidation and given immediate relief in the run-up to a court case. That should, in turn, increase attendance at court by victims and witnesses and result in more successful outcomes.
As we now seem to agree that the legislation is worthy of support, I hope we will agree that that is an aim worth pursuing. The noble Baroness asked whether the injunction would exclude only the perpetrator. Eviction would affect the whole household. I hope that explanation clarifies the matter.
My Lords, the Minister elegantly did it again. We have not challenged this part of the Bill and this policy at this stage or any other. In his rationale for the provisions he relied on the need to protect victims of anti-social behaviour who live closest to the perpetrator. I am not sure whether that includes those who live in the same premises as the perpetrator. He gave the example of close neighbours. Where he confused me is that it is still open to the courts to make an injunction against behaviour without making an injunction against someone living in a particular residence. I am trying to find a way by which I can understand and justify what he is saying. It may be easier to enforce an injunction excluding someone from premises than to enforce an injunction against a series of acts of behaviour. I make the point because the Minister might want to say that is part of the Government's thinking, but he is not rising to do so.
I will read in Hansard what he said. I cannot say that I am wholly persuaded, but I thank him for his answer and I beg leave to withdraw the amendment.
moved Amendment No. 21:
Page 12, line 14, at end insert—
"(c) in relation to a neighbourhood, the whole of the housing accommodation owned or managed by a relevant landlord in the neighbourhood and any common areas used in connection with the accommodation."
On Question, amendment agreed to.
Clause 14 [Security of tenure: anti-social behaviour]:
My Lords, in moving the amendment I shall speak also to Amendment No. 24. The amendment takes us to the issue of demoted tenancies in Clause 14. As drafted, the court can make a demotion order in respect of a tenant whether or not an injunction has been made against the tenant, although the injunction cannot be made in the absence of the conduct at which it is aimed.
If an anti-social behaviour injunction is made, the person against whom it is made should have the chance to comply with it before any further sanction is applied. If the perpetrator—I do not know whether injunctee is the correct term—adheres to the terms of the injunction, why is it necessary to impose a further penalty by way of demotion of the tenancy? If there is an injunction there is already a sanction in any event against the breach of the injunction because the person in question would be in contempt of court.
There is also a sanction regarding the status of the tenancy, as the court has in any event the power to make a suspended possession order based on a complaint of anti-social behaviour in a claim for possession based on one of the existing grounds for possession. The amendments seek to give the tenant a last chance. A number of noble Lords spoke at the previous stage of the Bill about the importance of prevention and of persuading tenants who behave badly to improve their behaviour. This is part of that.
At the last stage, the Government also clarified the position with regard to right-to-buy and confirmed that a demotion would take the tenant back to square one. That had been puzzling me and I was glad to hear the Government's explanation. I considered the point and, after consultation with others, took the view that, if the objective was to prevent anti-social behaviour, the loss of right-to-buy was a logical sanction. That decision was influenced by my agreeing with comments from the Government Front Bench about prevention and changing attitudes and behaviour. The amendments would apply that approach one stage further. I beg to move.
My Lords, I am grateful to the noble Baroness for moving the amendment in that way and giving us an explanation of the thinking behind it. I am also grateful to her for putting on record her reflections on the effect of the demotion orders on right-to-buy. It is refreshing to know from where colleagues are coming on that issue.
The amendments would prevent the court granting a demotion order unless an anti-social behaviour injunction is already in force against the tenant. They would encourage the use of injunctions over the use of demotions. Demotion and injunctions are intended to be free-standing options which the social landlord would be able to use separately or in combination depending on what was most appropriate in the circumstances. I think that the noble Baroness understands that we are trying to use powers that fit the purpose and match how the problem is perceived by the victims. It may often be a good idea for landlords to seek injunctions before taking other action.
In cases of low-level, persistent anti-social behaviour, however, a demotion order may be more appropriate than an injunction—the loss of the right to buy may mean more to some anti-social tenants than the imposition on them of an anti-social behaviour injunction, especially if they were about to send in their right-to-buy application form. It would not be helpful for landlords or those suffering from anti-social behaviour if the power to obtain demotions were restricted in the way suggested in the amendment.
Demoted tenancies are a new measure that act as a punishment but are also used—as the noble Baroness said—as a last chance. We know that tenants hold their security dear. They have argued ferociously for it in the past and rightly obtained it, but sometimes only the threat of the loss of that security can make them alter their behaviour. The amendments make achieving demotion a two-step process, which is in no one's best interests. It could lengthen the amount of time a community has to suffer from a particularly unpleasant form of anti-social behaviour and would waste landlords' and the courts' time and resources. That is not a sensible approach when it is already possible for a landlord to seek both remedies when it is appropriate to do so.
Finally, it would make demotion orders harder to obtain than possession orders. In those circumstances most landlords will choose to ignore demotion orders and apply for possession orders which would lead to more evictions and could increase levels of homelessness. I do not think that the noble Baroness intends that, but that could fulfil the unintended law of consequences. Having heard that explanation, I hope that the noble Baroness will reconsider her amendment and feel happy to withdraw it.
My Lords, before the Minister sits down—I thought that he was looking a bit pained, but I genuinely want information on this point—is there anything in the Bill that requires the local authority or social landlord to serve notice on the tenant that they intend to issue a demotion order, so that the deterrent effect of the order might be felt by the tenant without having to serve it?
My Lords, I am not sure whether that is specified in the Bill, but it may be set down in rules of procedure. If the noble Lord will bear with us, we will take that point away and make sure that he is furnished with a more precise answer.
My Lords, I have a feeling that, if I talk for a moment, we may have the answer—perhaps not.
The Minister said, and I hope that I wrote this down correctly, that with low-level anti-social behaviour, demotion may be the more appropriate response. I am puzzled by that. In an earlier debate, he talked about the distinction between an injunction and a possession order. He said that an injunction is not a sanction in the same way—it is not a penalty. I am not sure that what he has said on this occasion is entirely consistent. However, my noble friend raised an interesting point about how the procedures flow. We will wait for the response and examine the whole package. I beg leave to withdraw the amendment.
moved Amendment No. 23:
Page 13, line 41, at end insert—
"(4A) A demotion order may contain conditions for the landlord to provide or secure the provision of support and rehabilitation services as appropriate to the tenant or a person residing in or visiting the dwelling-house who has engaged or has threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for immoral or unlawful purposes) applies."
My Lords, in moving Amendment No. 23, I shall also speak to Amendment No. 25. The first applies to a secure tenancy and the second to an assured tenancy. The purpose of both is to give the courts discretion to include the provision of support and rehabilitation as part of the conditions of a demotion order.
In Committee in the Commons, the Minister explained—they were his words before they were mine—that the policy intentions behind demoted tenancies were to give the tenant a last chance to change behaviour. I had absorbed that without realising and it is only now when I look at my notes that I see where that phrase comes from. At the last stage in this House, the noble Lord, Lord Bassam, said that the proposed amendments linked too closely the provision of support with the demotion order. He said that they were linked, "too closely for us". He was worried that the court would refuse a demotion order if the landlord did not have a support package in place.
There is nothing in the amendments to prevent the court from granting a demotion order without support if the court feels that that is the right thing to do. However, if it thinks that support or rehabilitation is appropriate, a mechanism should be in place to ensure that it is provided. My noble friend Lord Clement-Jones referred to people whose behaviour is the outcome of bad health or other problems. This amendment would give people who are the subject of his remarks a fair chance to alter their conduct with the support that would be needed in that situation. The approach is in line with what I understand to be the Government's aims. As we know and as Shelter has powerfully illustrated, there are some social landlords who do not exempt vulnerable tenants from possession action.
Reference was made this afternoon to the guidance that the Government will issue. Will the Minister, if he is not minded to accept the amendments or something like them, assure the House that the range of intervention work and the circumstances in which a landlord should work with a demoted household or individual tenant will be dealt with in the statutory guidance?
I must also ask a question that properly reflects the concern of the Local Government Association, whose briefing for today I have read. I received the briefing only today, so I have not had an opportunity to check with the association. It is concerned that tenancy conditions applying to the original secure tenancy—for instance, clauses on acceptable behaviour—will be applied to a demoted tenancy. Will there be a read-across of such tenancy conditions? Can the Minister confirm that? If he cannot do so today, I ask him to write to me about it. We must find a way of ensuring that those who need to know do know. I beg to move.
My Lords, the amendments would allow a court to include provisions in a demotion order requiring a landlord to provide support and rehabilitation services to the tenants.
I think that I made it plain earlier that we saw support and preventive work as crucial in tackling the causes of anti-social behaviour. The noble Baroness has acknowledged that. Good practice in such circumstances is to work with the tenant or other members of the household or extended household to help them amend their behaviour. That is what we are trying to effect. In many cases, that will remove the need for legal proceedings. That is an important objective. However, making the consideration of a support package a statutory requirement before a demotion can be used will act as a disincentive for social landlords and others and encourage them to go straight for a possession order.
Before going to court, landlords would need to establish, in every case, whether the tenant would be willing to engage in support, whether the support is readily available and whether the funds required are available. All of that could delay proceedings and leave the victims of the anti-social behaviour angry and distressed. They will not understand why there is what they will regard as a delay. They could understandably and, perhaps, rightly feel that the law put more emphasis on ensuring that the perpetrator of anti-social behaviour is looked after than on their need to live free from its adverse and unpleasant effects, which, as the noble Baroness will recognise, have an impact on their daily life.
We must understand that, as well as being a "punishment", the demoted tenancy is intended to be a preventive homelessness tool. It is intended, as we are agreed, to give the tenant a last chance. If an outright possession order is seen to be easier to obtain than a demotion order, that is what landlords will use, leaving more people homeless.
I shall make the point again because it is important: the amendments could lead to unnecessary legal challenges. I am sure that the noble Baroness will appreciate that, being a lawyer. For example, if the landlord failed to have a complete support package in place at the time of seeking an order, the courts could refuse the order. There would be further delay, more obfuscation and more confusion for those affected by appalling behaviour. Similarly, landlords need the flexibility to change the type of support offered during a demoted tenancy, if the tenant is not responding well. I am sure that that point is well understood. If things are not going according to plan, one needs to adjust one's strategy and make sure that one is doing things that are more appropriate and effective. Ultimately, we are trying to achieve a change in behaviour. We must ensure that we do the things that will make that change take place.
The noble Baroness asked specifically about guidance. She knows that we will not give ground on the amendment. Our intention is that there will be guidance on policy and procedures. Best practice will be flagged up. As I said, we expect that best practice will be adopted. I hope that that helps the noble Baroness to accept our arguments and that she will withdraw her amendment.
My Lords, I will withdraw the amendment, but, before I do, I observe that we seek to avoid a situation in which the problem is shifted, rather than solved. I am sure that the noble Lord will agree. We are talking about demoted tenancies, under which the tenant would stay on the same premises but on different terms, but the point applies generally.
I am indebted to my noble friend Lord Avebury. While we deal with the detailed terminology, he is sitting a couple of rows back thinking about real life and how the system will apply. He did not put it to me this way, but we cannot expect those whose behaviour is the subject of the Bill necessarily to be converted on the road not to Damascus but to Acacia Avenue or a flat in High Point. That will simply transfer the problem to their new neighbours.
The noble Lord said that the amendments would open the way to legal challenge. He said something similar last time. The provisions are intended to be discretionary. If the noble Lord thinks that we have a point, I am not too proud to welcome help with the drafting of the amendments. For the moment, I beg leave to withdraw the amendment.
moved Amendment No. 26:
Page 16, line 4, at end insert—
"( ) In the Housing Act 1988 (c. 50) after section 21 there is inserted the following subsection—
"(8) No order for possession under subsection (1) or (4) may be made in relation to a dwelling-house let on a tenancy to which section 20B above applies unless the court is satisfied that the tenant or a person residing in or visiting the dwelling house has engaged or threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for immoral or unlawful purposes) applies.""
My Lords, Amendment No. 26 is grouped with Amendments Nos. 147, 148 and 149. The amendments would ensure that the fast-track eviction proceedings available for demoted tenancies cannot be used for any reason other than further anti-social behaviour. The amendments would align the situation for all social housing tenants. The first relates to registered social landlord tenants who have previously had a short tenancy, and the others relate to local authority tenants who had a secure tenancy.
We have a concern that tenants who have addressed their anti-social behaviour since being put on a demoted tenancy, in which case the Government have achieved their objectives, could still be made homeless as a result of a breach of the more stringent tenancy conditions that would then apply, in particular those relating to rent arrears. That is what happens to many tenants who are placed on introductory or starter tenancies, so the amendments would ensure that eviction from a demoted tenancy can be carried out only for further incidents of anti-social behaviour.
In the Commons, the Minister argued that the amendments watered down the notion of demoted tenancies as a sanction. However, at this stage, as on previous occasions, the noble Lord, Lord Bassam, was more positive about encouraging landlords to use demotion where they feel they can work with a tenant to change the behaviour and therefore sustain the tenancy rather than end it.
I question the use of guidance. If the Minister is not persuaded, assurances that the statutory guidance will make it clear that final possession of a demoted tenancy should be on the basis that I have outlined would be helpful. I should be grateful if he could comment on that. I beg to move.
My Lords, Amendment No. 26 provides that the court should not make a possession order to end a demoted assured shorthold tenancy unless there has been anti-social behaviour, either by the tenant or by someone else living with or visiting the tenant, and not for any other reason. In effect, that would mean that a landlord would have to return to court to prove that there had been further anti-social behaviour.
Amendments Nos. 148 and 149 would also require landlords to return to court to prove that there have been further acts of anti-social behaviour in order to end a demoted tenancy. I understand that the noble Baroness wants to ensure that tenants are not evicted from their homes without good reason, but these amendments would make the whole principle of demoting tenancies worthless.
Demoted tenancies have been designed to be both a warning and a last chance. We want to encourage landlords to use them instead of seeking suspended or outright possession orders. Demotion is not a soft option. As well as being a warning and an incentive to behave, it is a real sanction. The tenant, through his or her actions, has lost security; we want him to understand that this may have serious consequences. Tenants need to understand that when they are considering how to conduct themselves in the first instance.
Where a landlord has put his energy into seeking a demoted tenancy instead of a possession order, it will be because it is seen as a real chance to work with the tenant to improve behaviour. That kind of landlord would not subsequently seek to end the demoted tenancy on a whim. It is important, however, that if the tenant fails his or her last chance, the landlord is not expected to make a further trip to the courts. Possession proceedings are time consuming and can be very costly. Many witnesses and victims may be reluctant to attend court for a second time. Such action will have the effect of discouraging the use of demoted tenancies and, ultimately, could lead to more evictions.
A tenant would have been demoted in the first place only if the landlord was able to provide sufficient evidence to a court to obtain a demotion order. If the tenant's behaviour fails to improve, it seems unfair to expect the landlord to gather evidence to convince the court for a second time. The tenant would have already received the last-chance warning.
The procedure for ending a public sector demoted tenancy is based on the procedure for ending an introductory tenancy. It is a decision taken by the landlord, following a statutory process, followed by a possession order granted by the court. The tenant has the right to an internal review of the landlord's decision. That procedure has been approved by the courts.
Registered social landlord demoted tenants are assured shorthold tenants and their landlords can obtain a possession order by giving two months' notice. They do not have to give any reason. That is in line with the way that the registered social landlord starter tenancy scheme operates. There are checks on the appropriate use of starter tenancies. Housing Corporation guidance sets out that RSLs should follow a similar process to that for local authorities when taking possession action against starter tenancies. Housing Corporation regulations, in conjunction with Audit Commission inspection, help to ensure that RSLs act appropriately. That protection will be extended to demoted RSL tenancies.
Amendment No. 147 seeks to clarify that a notice of proceedings for possession against a demoted secure tenancy must be served under Section 143E of the Housing Act 1996; that is, a notice of proceedings for possession. The amendment is not necessary; the clause already has the effect that the amendment seeks to achieve.
The noble Baroness asked a question about the contents of guidance. I have made it clear that there is already guidance for RSLs. No doubt, this will be one of those issues on which we will promote best practice. The points raised in this short debate will be reflected on when providing guidance towards best practice.
My Lords, before the noble Lord sits down, could not the guidance provide that during the internal review which the noble Lord says would be conducted before a possession order is sought specific consideration is given as to whether the tenant's behaviour has improved?
My Lords, it may be that that is included in best practice. The behaviour of the tenant is very much germane to the whole way in which demotion proceedings will work out. I am sure that that is a point we can take away and think about. I am most grateful to the noble Lord for making that point.
moved Amendment No. 31:
Page 16, line 25, at end insert—
"(d) whether the tenant or a member of the tenant's household suffers from an illness or disability which might diminish his personal responsibility for the nuisance or annoyance;
(e) whether the tenant or a member of the tenant's household is vulnerable as a result of childhood, old age, mental illness, disability or other special reason;
(f) whether the tenant or a member of the tenant's household is willing to give an undertaking to the court in respect of his future conduct; and
(g) whether other means of dispute resolution are available to deal with the allegations of nuisance or annoyance."
My Lords, Amendments Nos. 31 and 35 broaden the scope of the court's discretion when dealing with possession cases based on nuisance or annoyance. The amendments propose that the court's attention should be drawn to factors which may mitigate the personal responsibility of the perpetrator or relate to the hardship which will be suffered by other members of the household if a possession order is made—we referred to the first of those points earlier today. The court's attention should also be drawn to the willingness of the perpetrator to give an undertaking to the court and to other means of dispute resolution that may be available.
As the clause stands, the matters which the court must consider are those that relate exclusively to the effect on other people which the behaviour is having and will continue to have. Effectively, the clause gives rise to a presumption that a possession order will inevitably follow if the behaviour has had an adverse effect on other people, which may be the case where the behaviour is violent or persistent.
However, the Bill is directing the court in one direction only; that is, towards eviction. To that extent, I might suggest that it is interfering with the ambit of the court's discretion to an unjustified degree. I beg to move.
My Lords, these amendments seek to require the court to consider certain issues before granting a possession order, including any issues relating to disability or vulnerability of the tenant or their household members, and the availability of other remedies such as alternative dispute resolution or an undertaking by the tenant.
The amendments focus on the needs of the perpetrators of anti-social behaviour. None of these matters is irrelevant and will already form part of the court's consideration of whether a possession order is justified. However, Clause 16 seeks to ensure that, in considering the needs of the perpetrators of anti-social behaviour, the courts do not concentrate so closely on the circumstances of the perpetrator that they do not pay sufficient attention to the impact of anti-social behaviour on its victims. That is, after all, the objective of this legislation. The clause aims to redress that balance, not to discriminate against persons with disabilities.
In Committee, the noble Lord, Lord Clement-Jones, withdrew his proposed amendments on disability, having been assured by my noble friend Lady Scotland that the protection offered to disabled people by the Disability Discrimination Act 1995 would remain in place. I refer the noble Baroness to Hansard of 11th September at cols. 489 to 490. The Government stand by that position.
We are keen to ensure that disabled people are not unfairly discriminated against. The Disability Discrimination Act was introduced to ensure that disabled peopled are treated fairly as regards the services they receive and housing rights are included within that. Landlords, including social landlords, are already within the scope of the DDA and the provisions of that Act, along with all other discrimination legislation, will be read into this Bill.
The correct balance must be maintained between ensuring that effective remedies against anti-social behaviour are available to protect all members of the community and that people with disabilities are not unfairly discriminated against. I refer the noble Baroness in particular to Section 22 of the Disability Discrimination Act which makes it unlawful for a person managing any premises to discriminate against a disabled person occupying those premises. In relation to eviction, such a person would discriminate if, for a reason which relates to the disabled person's disability, they treat that person less favourably than they would treat others to whom that reason does not or would not apply, and they cannot show that the treatment in question is justified in accordance with Section 24 of the 1995 Act.
When reaching their decision as to whether a possession order is justified, judges are required to take into account all the relevant legislation. Where there is a question of disability, this will include the 1995 Act, thus ensuring that such people are not unfairly treated. Judges already consider what other action landlords have tried before reaching a decision on possession hearings and whether or not undertakings relating to behaviour are appropriate.
Perhaps I may reiterate that I understand that the noble Baroness is concerned that some people may lose their homes as a result of behaviour which may appear to be anti-social, but which derives from a disability. I should like to reassure her that the protections offered to the disabled tenant by the 1995 Act are not affected in any way by this provision. Clause 16 is about ensuring that the impact of anti-social behaviour on victims is considered by the court. It is not in any way intended to encourage discrimination against disabled tenants.
I hope that, with those reassurances and with our continued commitment to finding other means prior to using these more severe penalties, such as dispute resolution and mediation, the noble Baroness will feel able to withdraw her amendment.
My Lords, the Minister's response is helpful and I shall consider further the relationship between the DDA and the provisions set out here. The prompt for the amendments was that, under what is set out in this Bill, the court has to consider "in particular"—those are the words used—the three matters to which I referred earlier, all of which concern the effect on other people. I am concerned about the relationship between the two pieces of legislation.
I am sure that what the noble Lord has just said was worded very carefully, so I shall do justice to those words by reading them with care. I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 36, I shall speak also to Amendments Nos. 39 and 46. The amendments relate to the issue of residential care, which we discussed at some length in Committee. The Minister's response to the probing amendments tabled at that stage, along with the draft guidance which has now been published by the Home Office and the DfES, do not provide a sufficient explanation of how residential parenting orders will work in practice, and how they will comply with the Children Act 1989 and the United Nations Convention on the Rights of the Child, ensuring that all decisions are taken in the best interests of the child.
Because we have reached a different stage of the Bill, I shall repeat the list of organisations which I believe has come to be known as the "Sharp list": Barnardo's, the Children's Rights Alliance for England, the Children's Society, family service units, NACRO, the National Association for Youth Justice, the National Children's Bureau, the NCH, the NCVCCO, the NSPCC, the National Youth Agency and YMCA England all continue to have very serious concerns about the compliance of these clauses with the principle of the best interests of the child set out in the Children Act 1989 and Articles 3 and 9 of the UNCRC.
I am aware that the Minister has addressed this matter in a letter sent to the noble Earl, Lord Listowel, which he has shown to me. However, it would be helpful if she could put on the record her reasons for being confident that there is no breach either of the Act or of the articles.
In addition, five other specific concerns have been raised by these organisations. The first is that, as it stands, the provision is unnecessary. Arrangements are already in place under the Children Act 1989 and the Care Standards Act 2000 for a family to be placed in a residential family centre where available and appropriate. The decision to require parents to undertake a residential assessment is usually taken as a part of care proceedings under the Children Act 1989 and only after a full assessment of the child's needs. The decision would be taken on the basis of an assessment of need made under Section 17 of that Act. This defines children "in need" as being those who are,
"unlikely to achieve or maintain . . . a reasonable standard of health or development . . . or whose health or development would be significantly impaired, without the provision for him of these services".
The second issue that these organisations are concerned about is that in order to require a parent to attend such a course an assessment needs to be undertaken by a local authority's social services department. Social services would normally require parents to engage in a residential assessment only if they had concerns about the safety and care of the child or children. Residential family centres are often used for very vulnerable families with young children to provide support and to identify work to be undertaken to help the family. The focus is on monitoring and an assessment of parental ability, and children attend these centres with their parents.
Neither the Home Office nor the DfES draft guidance refer to undertaking such an assessment of the child's needs as part of the youth offending or local education authority recommendation to the court. Both sets of guidance refer to the fact that counselling or guidance on problems may be provided by the LEA, by the youth offending team, by the local authority social services department or voluntary sector organisations. Social services departments will not provide services without having first undertaken an assessment of need.
The organisations concerned about these issues do not believe that it is appropriate for either the LEA or the youth offending team to undertake the kind of assessment required in order to assess parental capacity. At the very least, they argue, an assessment under Section 17 by social services departments should form part of any evidence before the court. Will the Minister give assurances that any guidance on parenting orders will include the requirement for youth offending teams and LEAs to make such referrals to social services departments prior to their application to the court?
Thirdly, it is unclear whether residential centres will be required to register with the National Care Standards Commission. These organisations are also concerned that there is no clear direction about making arrangements for the care of any dependent children. In Committee, the Minister stated that,
"the whole point of residential places is to target those issues that are of most concern to the families and the children involved. A weekend residential period may be appropriate in order not to disturb the ordinary day-to-day life of the family and it may be necessary to invite the parents to take the children with them. In other cases it may be more appropriate for the child not to be there for a short period to enable the parents to concentrate on other matters".—[Official Report, 11/9/03; col. 525.]
This view is reflected in the DfES guidance, where paragraph 184 states:
"In order for the court to decide whether any likely interference with family life is proportionate it will be necessary for LEAs to inform the court what the programme will be. A small number of residential weekends structured within a wider non-residential programme might be a suitable approach. Arrangements for the care of the child (and any siblings and dependants) will be a crucial consideration. It may be that the child and siblings attending voluntarily will be desirable as family work can be particularly effective".
It is unclear as to what arrangements will be put in place, either for children who attend with parents or for those who do not. Currently, the residential family centres are required to register with the National Care Standards Commission. They are defined as,
"any establishment which accommodates children with their own parents, and where the parents' capacity to respond to their children's needs and to safeguard their welfare is monitored and assessed, and the parents are given advice, guidance or counselling about parenting as necessary".
Can the Government confirm that any provider of the residential component of the parenting order will be required to register with the National Care Standards Commission? If children are not attending with their parents there is need to ensure that they are being appropriately cared for and that should be undertaken with the involvement of local social services departments to ensure that arrangements are suitable.
The fourth point that has been raised is that there is little evidence of research on the effectiveness of residential courses. Clauses 18, 20 and 26 state that the court must be satisfied that attendance at a residential course would be more effective than attendance at a non-residential course in preventing the behaviour for which the order was given, or in the case of parenting orders for exclusion from school, in improving behaviour.
The guidance states that the LEA or the youth offending team must provide evidence of how the residential requirement will be more effective. It is not clear how such an assessment will be made as to the effectiveness or not of this residential requirement. There is no detail as to the model of parenting programme that would be used in a residential setting. There are a range of such models currently used within residential settings, including therapeutic and behavioural. Can the Minister indicate what model of intervention is being used, what research backs this up and whether they have consulted those specialising in providing residential family support in making these proposals?
There is no indication as to how far there is capacity to meet these requirements or how costs will be met. The recently published Home Office action plan—Together: Tackling Anti-Social Behaviour—states that the residential parenting scheme will be piloted through the Youth Justice Board in partnership with the Juvenile Offenders Unit at the Home Office. Can the Minister tell us a little more about the proposed pilots and about the capacity and funding for parenting courses, in particular the residential component?
Finally, I shall say a word on costs. Paragraphs 162 to 165 of the department's guidance set out that the LEA will be responsible for covering the costs of the application for a parenting order and meet the costs of any counselling or guidance programme. However, in some circumstances, the governing body of a school will be expected to meet the costs of the counselling or guidance programmes. Will the Minister clarify who will be responsible for meeting costs in the case of residential courses? I beg to move.
My Lords, I share many of the reservations of the noble Baroness, Lady Sharp, but at the same time I recognise a serious weakness in our society, in the form of the children of parents who were themselves children when they became parents. Such parents have no inherited parenting skills at all, and go on to be parents themselves. There must be an intervention, which will have to be more radical than merely consultation and attendance at a centre from time to time. Therefore, it may be necessary for there to be a residential course. As that is the case, I recognise the caveats put into the Bill as to the circumstance under which it may be held.
Unlike the noble Baroness, I thought that the provisions for payment of the courses were set out in Clause 21(4), which states:
"The appropriate person may by regulations make provisions as to how the costs associated with the requirements of parenting orders under section 20 . . . are to be borne".
The Minister will no doubt put us right about that and tell us, I hope, whether that includes the consequential costs on the family concerned. If a mother and child are taken out of a family in which there is a single-parent child and three other children, costs will be entailed in the care of the other children. They may be taken into care by the local authority, although that would be the worst solution. They may be cared for by a carer who has to be paid for by the local authority, or there may be other arrangements. Costs will arise, in any case, and I trust that they are recognised.
I remind noble Lords that we are debating Clause 18 and parenting orders, which means that the attendance on the part of the people involved may not be voluntary. It is laid on them by the courts. The next clause relates to parenting contracts, with which there can be an element of voluntariness. By a side wind, will the Minister tell us whether any provision for costs will be made in those cases, where the outcomes are likely to be somewhat better because those attending the courses are doing so of their own free will, or at least under inducement rather than compulsion?
The answers to those two questions may make me less friendly to the amendment tabled by the noble Baroness, Lady Sharp; otherwise, I find it rather attractive.
My Lords, I thank the noble Baroness and the noble Lord for their comments. It is clear that the purpose of the amendments is to ensure that residential placements, if made, are made appropriately. Before going into the detail, I should say that the noble Lord is right in his reference to Clause 21(4). That provision is already made. However, I shall go back and deal with some of the earlier issues and come to that matter in its proper place.
The amendments tabled by the noble Baroness would remove the power of the courts to require a parent to attend a residential course as part of a parenting order. From what the noble Baroness said, I take it that she is not suggesting that this may not be an appropriate tool; she wants to know how it will work. I shall approach my response on that basis.
The clauses allow a residential course to be included only when a court is satisfied, on the balance of probability, that it is likely to be more effective than a non-residential course and that any interference with family life is proportionate. The usual rule about "he who usurps must prove" will apply, so an evidential burden will be placed on the authority that seeks a parenting order to satisfy the court of each and every one of those elements that I have mentioned. The residential approach would enable parents to be taken to a structured setting so that more sustained counselling and guidance work can be carried out. That will be appropriate for troubled families, for whom a non-residential approach will be insufficient.
The noble Baroness will know that many of the families who regrettably find themselves in this category are likely to have been on the cusp of being considered for local authority intervention. We have put together a structure including parenting contracts and multi-agency work. That work should have been undertaken before the parenting order stage is reached. The agencies should have a clear picture of the issues surrounding a child and his or her family regarding failure to meet educational or other milestones and/or appropriate school attendance. The noble Baroness will know that it does not inure to the advantage of a child not to attend school consistently. There may also be behavioural issues to be considered. If I may speak colloquially, we are talking about children and families at the sharp end of the spectrum—the children who are rightly the concern of the noble Baroness and the Sharp list.
The difficulty, of course, is in defining with precision the kind of course which will best suit the needs of each individual child. The noble Baroness was right to mention the difference in methodology adopted in some residential settings as opposed to others. The noble Baroness and the House will know that often that difference is dictated by the needs of the family and the child. Sometimes behavioural therapy is the better course; sometimes psychological and other therapy is the better course. Regrettably, one size does not fit all. For that reason we shall pilot the different forms of therapeutic intervention so that we can better assess the models which are most likely to be beneficial.
As I say, courses will be tailored to meet specific circumstances. Intensive residential work with families can be highly effective in tackling persistent unacceptable behaviour. As I have mentioned on other occasions, children could attend the residential course on a voluntary basis thus enabling work to take place involving the whole family. Where children do not attend, proper arrangements for their care will be absolutely crucial.
I agree with what the noble Lord, Lord Elton, said in relation to taking children into care even if temporarily. I respectfully agree with him that that is likely to be the least attractive model although I do not rule out the possibility of it happening in the odd case if all the parties deem it the most appropriate. The noble Lord will know that, in taking into account the proportionality of that step, the court would have to assess whether it was a reasonable step, whether there were other family members who could help and what other assistance was offered to the family. It is impossible to say with certainty what those steps would be in each individual case because, by the nature of the problems which many of these families face, it is unlikely that the identical situation would occur more than once; it just does not happen that way.
It is right therefore that programmes delivered as a result of parenting orders should have the flexibility to consist of or include residential work with parents where that would be both more effective and proportionate to any interference with family life.
We are consulting with providers of residential parenting. The funding provided by the anti-social behaviour action plan will be £1.5 million to bolster the parenting programmes this year. The youth offending teams have funding for parenting support and they will be tasked to find residential places. Local education authorities will be responsible for education related orders although a school will be able to pay if it requests a parenting order.
The noble Baroness raised the issue of the capacity to deliver. The capacity and quality will be promoted through various means. I have said already that residential courses will be piloted on a voluntary basis and the specification can be developed in that way. But the courses will be delivered by a range of providers subject to all relevant standards and statutory requirements. Youth offending teams and local education authorities will pay for attendance at residential courses. The provision of parenting programmes nationally was boosted by the announcement made by my right honourable friend the Chancellor of the Exchequer in July 2002 of a £25 million Parenting Fund which will provide a robust network of parenting support to be delivered by the voluntary sector.
Under the Children Act 1989, family centre attendance is required, not by statute but with the lever of care proceedings. It is not dissimilar. In the case that we are dealing with it is more about the behaviour of the child being seen as the trigger as opposed to the disintegration of the family itself. That is why the assessment is made by the youth offending team and not by the social services.
Draft guidance on the education parenting orders has now been issued. Page 24, paragraph 150, of the relevant document covers the assessment for education-related parenting orders. I invite the attention of noble Lords to that. I am confident that they will find it of use.
The noble Baroness asked about the issues arising out of Article 8 of the European Convention on Human Rights, and the right to respect for private and family life, and Articles 3 and 9 of the UN Convention on the Rights of the Child, as regards the child's best interest and separation from the parents as well as the test of the child's best interests under the Children Act. As the noble Baroness rightly said, I wrote to the noble Earl, Lord Listowel, on these matters and a copy of the letter has been placed in the Library. I would be happy to recite the body of what I said there.
Criminal and anti-social behaviour and poor attendance and behaviour at school can prevent children from realising their potential and lead to very adverse outcomes for them. A residential course within a parenting order would only be required in order to support parents so that they are better able to influence their child and prevent such behaviour. The residential requirement serves the main purpose of the parenting order itself, which is to prevent a repetition of the kind of behaviour which led to the making of the order.
There are two additional conditions in the Bill which also have to be met before a residential requirement is imposed. Given all these safeguards such a requirement will be compliant with the UN Convention on the Rights of the Child, the Children Act and the European Convention on Human Rights as enacted by the Human Rights Act.
Turning to Article 9 of the UN Convention on the Rights of a Child, a child cannot be separated from his or her parents against their will unless the separation is necessary for the best interests of that child. As I have already said, children may accompany their parents to a residential course voluntarily. We expect children in nearly all cases to be invited to attend.
The kind of circumstances where a child might not be invited to attend would be where the parents need respite to benefit from the course. In such a case appropriate childcare arrangements, as we discussed earlier in this debate, would be made. We hope that the course would help the parents by improving parenting skills and thus benefit all of their children. The short separation would be in the child's best interests and thus compatible with Article 9.
By making residential placement available to the court, if it deems it appropriate, we are seeking to give the court a full opportunity to intervene in a way that may make a material difference and advantage the child and the family so that there is an enhanced chance of the family staying together.
Noble Lords will know that research indicates that it is better for a child to remain within his natural family if he can safely so remain than to be removed and placed with a substitute family. If we get this right, we will give these children, who are so desperately in need of our care and attention, a better chance.
I invite the noble Baroness not to press the amendment. I have every confidence that she and a number of those who have expressed their concerns have the best interests of children at heart and that they would not like to see the court disabled from doing that which will be most advantageous to them.
My Lords, the Companion permits me a short, elucidatory question before she sits down and this is it. Is she aware that I share her view that the job is to sustain families particularly at the edge of economic extinction? My question about payment was not directed to who will pay the local authorities but to who will pay a father who has to give up his paid work for however long in order to look after the other three children when the mother has gone to the compulsory course.
My Lords, I understand the noble Lord's concern. I believe, as does the noble Lord, that the parenting role is for both parents. We would expect that, in considering whether such a move would inure to the children's advantage, there would be thought as to whether the parents should go together and whether the children should go with them. If it is not thought necessary for the mother to be with the father on the parenting course, we would expect there to be proper arrangements.
The kind of issues which the noble Lord properly raises are those which we would expect the court to make inquiry about and those who seek the orders to be able to satisfy. If the court is not so satisfied, it will be open to the justice exercising the discretion to say, "I am not satisfied that a residential setting in these circumstances is the preferred way", and to suggest another way. These are the precise practical issues which need to be addressed in order for the court to come to its determination.
My Lords, I am grateful to the Minister for giving so full a reply to all the queries that I raised. It is helpful to get the essence of the letter that she wrote to the noble Earl, Lord Listowel, on to the record. I thank her for repeating it and for the patience of your Lordships in listening to it.
We will study what the Minister has said and I beg leave to withdraw the amendment.
My Lords, Amendment No. 37 relates to the voluntary parenting contracts and goes back to the discussions that we had in Committee on the need for LEAs and governing bodies to work in conjunction with social service and health authorities—the multi-agency approach that we have talked about in terms of tackling family problems at the root.
In Committee, the Minister said:
"We of course want to encourage an approach to supporting parents that draws on input from the full range of relevant agencies . . . We will encourage local education authorities and schools, through guidance, to investigate whether other agencies are already working with the pupil and family and, if so, to work with other agencies to ensure that the terms of the parenting contract are complementary. That is also a key component of the Children at Risk Green Paper".—[Official Report, 11/9/03; col. 527.]
The draft guidance that has been issued, which seems only to refer to parenting contracts initiated by youth offending teams, does indeed refer to multi-agency working, but it is mainly about youth offending teams working in conjunction with other agencies. It puts the onus on the youth offending team to identify the other agencies working with the child. That can be found at paragraphs 2.20 and 2.21. It concludes with the rather weak sentence:
"Local protocols will need to be agreed about co-operating and supplying resources in such cases".
Paragraph 2.22 then states:
"Local co-ordination in the delivery of parenting programmes may also help target effort and resources where it can be most effective".
Indeed, but we return to the old conundrum: is it enough to set that out in guidance, particularly when the guidance is as generalised and as weak as this? Given the failures of joined-up working, exposed time and again in cases such as that of Victoria Climbie, is there not virtue in having that injunction on the face of the Bill?
Amendment No. 37 is framed in general terms to meet the criticism of our more specific amendments raised by the Minister in Committee. It does no more than provide a gentle prod in the direction in which guidance will take the authorities, but being on the face of the Bill makes it that much stronger.
Amendment No. 45, to which I wish to speak, relates to a different issue. It concerns the question which my noble friend Lady Walmsley raised in Committee in relation to Part 4 of the Bill—namely, the question of how far action should be taken when there is merely the view that a young person is likely to engage in criminal conduct or anti-social behaviour. Admittedly, here we are talking about parenting contracts and not the dispersal of groups. However, the same issue arises: whose judgment is it that such behaviour is likely to occur?
Given that the consequences for parents may be quite substantial, including enforced attendance at residential courses, which we have just discussed, can the Minister justify the presumption entailed? I beg to move.
My Lords, perhaps I should speak now to my amendment—Amendment No. 38—which is in this group. Incidentally, I wish to add warm support for Amendment No. 37. I shall try to be brief. I said that I would not try to de-couple the amendment and I have not done so. However, I am afraid that I shall have to spend a little time on it.
I shall not repeat the arguments that I made in Committee on 11th September at cols. 532 to 534. Then, I moved and spoke to similar amendments, which sought to give school governors and LEA officers a legal duty to pause for thought before issuing parenting contracts and orders to parents of children with special educational needs. The amendments sought to ask them to consider whether more appropriate action could be taken instead of imposing possibly irrelevant legal requirements on parents.
The Minister gave a full and most welcome reply at cols. 534 to 536, saying that the Government were absolutely committed to ensuring that the provision in Part 3 did not adversely affect children with SENs and that they would make that crystal clear in guidance. I withdrew gratefully and hoped that the guidance would be issued before Report. I am delighted that the draft guidance, which has already been mentioned, is already out for consultation.
I very much welcome the references to children with disabilities and special educational needs. The guidance goes a long way to meeting the concerns expressed by myself and other noble Lords—particularly the noble Lords, Lord Addington and Lord Elton. I am delighted to see that the noble Lord, Lord Elton, has stayed to debate the spin-off advantages available to other children in the class.
There is an excellent part on disability and special educational needs at the beginning of the draft guidance but no mention of them later. I feel very strongly that they need to be mentioned again under the section headed "Considerations to be taken into account before issuing contracts" and before issuing orders for their return.
The Special Educational Consortium fully supports that and is concerned about the checks on special educational needs and disability. I know that IPSEA, of which I should declare I am a patron, will respond to the consultation document in the hope of persuading the department to enlarge on the considerations that will be required before contracts are examined. It may wish to call for a review of the school's current arrangements in order to meet the child's special educational needs. It will wish to review whether the necessary arrangements are in place and whether they are adequate or need to be amended or reassessed before issuing a contract. I hope that the Minister will agree to that kind of detail being included in the final version of the guidance. Other organisations will respond individually and I know that the SEC will do so collectively.
That deals with parenting contracts. I now turn to parenting orders which are applied for by LEAs. They are issued by magistrates' courts with a penalty for parents who fail to fulfil the terms. I believe that IPSEA is right to say that we need a stronger measure than guidance; hence Amendment No. 38. The amendment would call for regulations to require a review of the current arrangements to meet the child's special educational needs before an application for an order to a magistrates' court is made. Consideration should be made of whether the provision in place should be amended and whether there should be fresh assessment of the child's needs. At present those with a disability or with SEN receive no mention in the regulations. That is a very important point. It is in line with the concerns of the SEC and has its support.
Are we asking for a sledgehammer—although quite a small sledgehammer—to crack a nut? I think not. I have two quick points in support of the amendment: I mentioned one in Committee and the other is new. First, a growing number of voluntary organisations active in this area have experience of children with special educational needs being excluded because the schools cannot meet their needs: IPSEA, the National Autistic Society, the Down's Syndrome Association, the British Dyslexia Association and the ADHD National Alliance in particular all report that. They are active, grass roots organisations.
My new point is that the latest statistics on exclusions from school issued earlier this month by the DfES specifies for the first time the number of children without statements as well as those with statements. The numbers are somewhat startling. The total number of children excluded from school remains the same. The figures used to be for children with statements and the rest of the children and now they are for children with special educational needs with or without statements. In 2000–01, 9,000 children were excluded—a figure that stays constant—and 808 children with statements were excluded. In 2001–02, there were still about 9,000 excluded children, but almost 6,000 children—instead of 808—had special educational needs, which means that 60 per cent of excluded children probably had a special educational need of some kind.
IPSEA says that we do not have the figures, but there is a good reason to suspect that a large proportion of the 6,000 will have been excluded because the schools were not meeting their needs. In such situations there is little point in pursuing parenting contracts or orders without first having ensured that the individual child's needs are being met.
I hope that the Minister will agree that the figures are serious. I hope that she will look kindly on the amendment. I repeat that I am grateful for the guidance as far as it goes, and I hope that the Government will take note of the comments. I also hope that serious consideration will be given to this amendment.
My Lords, I am tempted to my feet only by the appeal from the noble Baroness. I am unsure what she wanted to elicit from me, but I believe it was an endorsement of the fact that exclusion of a child from school is sometimes imperative for the benefit of the other children in the class. In such cases the needs of the excluded child have to be set against those of the children in the class. The noble Baroness spoke to this point in relation to Clause 19 about contracts. The contract is a parenting contract in cases of exclusion from school or truancy. I am a little pessimistic about this because presumably, if the school is a good one, there will already have been a home school contract for a difficult child which, of course, is unenforceable. In this clause, subsection (8) states:
"A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort".
In fact, unless the noble Baroness tells the House otherwise, it is almost unenforceable and the parent will recognise that from previous experience. I wish this well. I believe that what the noble Baroness on the Liberal Democrat Benches has asked for should automatically be forthcoming. If it can be put on the face of the Bill, so much the better.
My Lords, on Amendment No. 38, I, too, would feel slightly more comfortable if on the face of the Bill there was some recognition that specialist help, care and so on will be required for certain people with special educational needs. The correlation is proven between the people in the group and those who will be subject to the order. To have the provision on the face of the Bill would be better than having it in the regulations. The draft guidance, which I have read, mentions—as the noble Baroness said—disability and special educational needs. However, unless we can get the two tied in more closely, we will make a few more mistakes. It is to be hoped that we can better establish that issue after the guidance returns from consultation.
My Lords, I commend both noble Baronesses on speaking to their amendments with such elegance. In particular, I commend the amendment of the noble Baroness, Lady Darcy de Knayth. I believe that guidance is the most appropriate way forward. I thank the noble Baroness for her generous comments about the consultation document, which we have produced. I just emphasise that, as she has rightly said, this is a consultation document. We will anxiously sift through all the comments that we have received and will receive on the guidance. The noble Lord, Lord Addington, is correct to say that we should get this issue absolutely right. We will take all comments on board.
No one would dispute that there must be safeguards in place for children with special educational needs, but there are already safeguards in place. There is the Special Educational Needs Code of Practice, the Education Act 1996—which places schools and local education authorities under a duty to identify, assess and make suitable provision to meet a child's special educational needs—and the department's guidance on exclusions which emphasise the importance of addressing a child's special educational needs.
Perhaps I may say a few words on the issue. We have discovered that children who show evidence of special educational needs sometimes have those needs contributed to by the quality and nature of the care and parenting they receive. If one can help deal with the parenting, one often can help materially the way in which the child can take advantage of the opportunities available to it.
My Lords, before the noble Baroness sits down, will she make sure that a definition is made between those who have a special educational need resulting from a disability—either hidden or otherwise—and those who have a social problem? Confusing the two leads to a great deal of misdiagnosis and wasted time and money.
My Lords, I agree with the noble Lord that often there is confusion between those two. Children suffering most acutely from social needs can be misdiagnosed as having some other need. I understand that. That is why I very gently suggested that parenting can also have an influence on these issues.
I was very pleased to note the comments made by the noble Baroness about the guidance. On the position in the Bill, the draft guidance, which we have recently published—and to which the local education authority must have regard—makes clear the position of children with special educational needs. It fully restates the duties which schools and local education authorities are under, including their duties under the Disability Discrimination Act; and it requires schools and local education authorities to take into consideration any special educational needs and to satisfy themselves that they have done all that they can to meet them before applying any of the measures in the Bill.
The home/school agreements, referred to by the noble Lord, Lord Elton, apply to all children. It is the usual format: schools will have an arrangement about the behaviour which the parent and the child are expected to maintain while at that school. The contracts to which we refer are different, because they are specific, tailored contracts to deal with particular difficulties that may have been evidenced by the child having been in some way non-compliant—by either its behaviour or its non-attendance. It is those different, finely honed contracts that we think will be targeted to change behaviour. There are of course two sets of draft guidance: one on youth offending teams and one on education-related parenting measures. Copies of both are in the Library.
I turn to parenting contracts. The parenting contract is a two-sided agreement and it is clear that the local education authority or governing body's side of the contract is to provide support for the parents. In some cases, that may be something that the school can provide without external assistance; or it may require a multi-agency approach.
I therefore firmly support the noble Baroness, Lady Sharp, in her aim behind Amendment No. 37—namely, to encourage local education authorities and governing bodies to involve a range of relevant agencies to provide support to parents. The Government are committed to ensuring better and more effective working between different agencies and will be advancing that, following on from the recent publication of the Green Paper, Every Child Matters.
However, that aim requires a more flexible approach, which, I therefore submit, is better suited to guidance. We are currently consulting on draft guidance and the concern to ensure that a joined-up approach to support those parents is reflected—indeed, strongly propounded—throughout the document.
Thus, before the meeting between the education authority or governing body and the parents to draw up the contract, consideration must be given to whether other agencies should attend or suggest terms for the contract. Even before the decision is taken to enter into a parenting contract, the local education authority or governing body must consult with any other agency involved with the pupil or its family. Clause 25 allows youth offending teams to enter into parenting contracts with parents whose children are "likely to engage" in criminal conduct and/or anti-social behaviour, with the purpose of steering the child or young person away from such behaviour.
Amendment No. 45 would prevent youth offending teams from entering into parenting contracts at that crucial stage when the child or young person has perhaps not yet come formally to the attention of the police for anti-social behaviour. If an agency becomes concerned about a child or young person, it might refer him or her to a youth inclusion support panel, which will carry out an assessment. That assessment would consider the risk factors and protective factors. Where that indicates a high risk of offending, the youth inclusion support panel may ask the child and parents for consent to be referred to a youth offending team so that they can access appropriate support.
The youth offending team could then work with the child and, if appropriate, the parents, to steer the child or young person away from criminal conduct and anti-social behaviour. That could involve a parenting contract. That could provide invaluable help for families at an early stage, before a child or young person's misconduct becomes entrenched and leads to more serious problems.
Evidence suggests that intervention at that early stage can be especially effective. I stress that referral and intervention would be voluntary. The amendment would deprive families of the support that they want, need and deserve. I therefore ask the noble Baroness not to press it.
I speak briefly to government Amendment No. 48, which is grouped. It specifies that the term "guardian" in Clauses 25 and 29 has the same meaning as in Section 107 of the Children and Young Persons Act 1933. Parenting orders for criminal conduct or anti-social behaviour under the Crime and Disorder Act 1998 already use that meaning.
We always intended that that should apply to parenting contracts and the parenting orders, and that change is needed to make this clear. It allows youth offending teams to provide support in a wide variety of family circumstances—such as where the court regards step-parents as having the care of the child or young person. I know that that has been of concern to several noble Lords—in particular, to the noble Lords, Lord Hylton and Lord Northbourne. I hope that that will give them some pleasure and satisfaction.
I commend the government amendment and invite the noble Baroness not to press her amendments.
My Lords, I thank the noble Baroness. I thank also the noble Lord, Lord Addington, for his useful intervention about separating special educational needs from a genuine disability or whatever. I point out that all the provisions to which the noble Baroness referred are now in place. The organisations are saying that all these children are excluded now. I will think about regulations before the next stage if the noble Baroness is willing to talk in the interim. I think that the regulations do not mention SEN invisibility; it is mentioned only in the guidance. Will the Government undertake at least to have it mentioned in the regulations?
I thank the Minister for her detailed reply to the various amendments to which I spoke. I am sorry that she has not seen fit to take up my modest Amendment No. 37, because it makes a difference whether the provision is in the Bill or in regulations. It is good sometimes to prod the authorities and we are trying to give a modest little prod. The Minister talked about flexibility in the regulations. I can think of nothing more flexible than the amendment I tabled. I am sorry; I rather hoped it might find faith with the Minister.
I did not table Amendment No. 38 but I would like to make one comment. There is a worry that we have made a distinction between genuine needs and behavioural problems in special education needs. Problems such as dyslexia might be called middle-class diseases, because informed parents make a fuss and get things done, but sometimes that does not happen. The advantage of having a clause in the Bill such as that proposed by Amendment No. 38 is that it makes the authorities consider such matters when they do not have parents prodding them hard to do so.
I take the Minister's point about Amendment No. 45. I recognise that early intervention can be advantageous. There are sometimes difficulties. Your Lordships will recognise that we are unhappy about the presumption of guilt that to some extent applies on such occasions. However, I will not press the issue now. I beg leave to withdraw the amendment.
My Lords, in moving the amendment I shall speak also to Amendments Nos. 41, 42, 43 and 44. All the amendments relate to fixed penalty notices for truancy, but the group raises two separate issues. Amendments Nos. 40, 42 and 43 relate to whether head teachers or other members of staff at schools should be given powers to issue fixed penalty notices, or whether that responsibility should be left with the local education authority and/or the police force.
We argued the issue in Committee and the Minister's response was—as I suspect it shall be again today—that the power is entirely voluntary and that no head teacher is compelled to act as an agent for the authority in issuing fixed penalty notices. The Minister claimed that since schools had closest contact with such pupils, they were in a good position to know when a fixed penalty notice might be most appropriate and that these powers should be added to the toolkit of measures available to teachers at such times. She went further, adding that the measure had been welcomed by some head teachers.
I am not certain which head teachers the Minister spoke to. We are raising this issue again because of the unhappiness both of many of the bodies representing head teachers and teachers and also of the Local Government Association. I myself have spoken to the heads of the Secondary Heads Association and to the National Association of Head Teachers and I can find no support for the intrusion of these provisions in the Bill. Voluntary or no, they claim that if the provision is there, they may come under pressure to use it. There is very real disquiet at the effects that such use may have.
First, those bodies are worried about the effect that the power to issue fixed penalty notices might have on the relationship between schools and parents. As has been stressed in relation to parenting contracts, the more relationships are voluntary and co-operative, the greater the ownership of the outcome and the more effective any counselling or classes are likely to be. Once the school breaks that co-operative, voluntary boundary, trust is broken and the same outcome cannot be guaranteed.
Secondly, where heads are specifically given responsibilities for policing truancy in this way, there is a real risk of putting themselves and other members of staff at risk of a violent response. I am not suggesting that it is more than the exceptional parent who may respond to a fixed penalty notice with violence but, sadly, the extent to which teachers have experienced rough and violent behaviour from parents, even after just criticism of a child's behaviour, has been on the increase. Both the Secondary Heads Association and the National Association of Head Teachers are very worried about the implications for their members of being given these powers and would much prefer them not to appear in the Bill. They also point out that their members are already overburdened with bureaucracy imposed by the Government and that this further responsibility is one that they can do without.
The Local Government Association has similar concerns. It remains unconvinced that fining parents is an appropriate or helpful response to the problems of truancy or bad behaviour. They point out that, given that when a parent is in breach of a parenting order or has failed to pay a fixed penalty they may be sent to prison, the measures may also lead to an increasing number of parents in the looked-after system, which I think all of us would agree is not a satisfactory outcome.
The LGA further argues that the Government are claiming that a framework for fixed penalty notices and for parenting orders can be developed by local education authorities and their schools forums. The LGA is concerned that that would not prevent an overuse of the new measures by some schools and therefore differential treatment of parents and children. The Government's arguments that fixed penalty notices are an alternative to prosecution equally fail to reassure that schools themselves should be involved in fining parents.
To sum up the arguments about head teachers, our case is that schools should not be put in a position of fining parents. It is ludicrous to suggest that head teachers, with all their other responsibilities, should be expected to police the truancy laws and impose fixed penalty fines on parents. The heads do not want the task. They have not got the time. It plays havoc with carefully nurtured home/school relations and it puts them and other members of staff at risk should any parent respond with violence. It is, indeed, one of the Government's barmier ideas.
I turn to Amendments Nos. 41 and 44. Amendment No. 41 is aimed to set out a proper limit in which the Secretary of State can exercise his discretion on the level of fine. The limit of any possible fine should be determined by legislation in line with provisions for penalty notices for criminal offences under the Criminal Justice and Police Act 2001. Fixed penalty notices are designed to deal with minor behaviour, and the stated penalty should reflect that. In contrast, the court fine level is based on the most serious behaviour that warrants prosecution, and the court, unlike the fixed penalty notice, is able to tailor the amount of the fine to the financial status of the individual.
We are concerned about the proposed two-tier level of finance announced in the House of Lords on 17th September. The presumption of innocence must be maintained and we do not consider it appropriate for financial inducements to be offered for admitting the offence. Allowing a 50 per cent reduction in the fine based on the admission of an offence is an unfair inducement, especially when the family are economically poor.
Amendment No. 44 would provide a minimum content for any fixed penalty notice and ensure that that content is specified in the Bill. There is no reason why the standard contents of a fixed penalty form cannot be stated in legislation rather than being laid out in regulations. Moving the offence from the formal criminal justice system into an administrative system should not deny the individual basic information and access to rights. The amendment is based on provisions already existing for fixed penalty notices for disorder offences under the Criminal Justice and Police Act 2001. An individual should be provided with basic information relating to the criminal offence that they are accused of. In addition, individuals should be provided with the basic practical information required to understand the notice and their right to challenge it. I beg to move.
My Lords, I rise to support the amendment in some amazement that it should be necessary. Anyone who has observed the development of relationships between a traffic warden and motorists who have overstayed their leave at a parking meter will know that the introduction of the power to fine immediately develops a considerable feeling of hostility to the person levelling it. The Minister is reported to have said that this is something that head teachers do not have to undertake, but as the noble Baroness, Lady Sharp of Guildford, has said, collecting fines and deciding who should have to pay them is an onerous and expensive business which any local authority in its right senses will wish to devolve to the head teachers. They have considerable power over head teachers, and that power will be exerted to pressurise them.
I notice that the noble Baroness sitting next to the Minister is shaking her head. No doubt she will relieve my anxiety, but at the moment I find it difficult to imagine what sort of head teacher under what sort of circumstances would voluntarily acquire this power.
One of the more difficult relationships for a head teacher or any other teacher is when the parent takes the side of the child against the school—when a child is in error in some way and is being disciplined and a parent comes in. I had a case when a parent came in with his coat off because he thought that his child had been wronged. He threatened to have a boxing match over the matter. If this is a cause in which the parents themselves are involved and the penalty will fall on them as a result of the conduct of the child, an alliance will be formed between the two and the teacher will lose the most valuable of all allies—the parents—in trying to change the behaviour of the child. This provision should not be in the Bill and it will be used inadvisedly if it remains there.
My Lords, I have a good deal of sympathy with what has been said by the noble Baroness, Lady Sharp, and the noble Lord, Lord Elton. However, I am slightly comforted by a letter that I received today from the noble Baroness, Lady Ashton of Upholland. It says that,
"consultation with the school will be a crucial part of the process".
The process in this case means the process before a fixed penalty is imposed.
My Lords, if we are going to have different actions in different schools, how will Ofsted measure whether a school is using all the powers available? How will we know from one school to another whether the powers have had any impact? We will have an uneven playing field.
My Lords, I listened with great care to everything that the noble Baroness said. It did not differ one jot from what we explored in Committee. All the powerful arguments that the noble Baroness made today she made on the previous occasion. She knows, therefore, all the arguments that I will employ to refute hers.
None of the arguments bears repetition because the noble Baroness has had the advantage of hearing them already. I should, I suppose, say succinctly that our point is that all of the powers will be exercised on a voluntary basis. It is not compulsory. Secondly, I refute the suggestion that head teachers will be forced to do it and that pressure will be put on them. "Pressure from whom?", I ask myself. Head teachers will be able to make decisions about whether the power has utility for them in the exercise of their duties to the parents and children whom they are entrusted to serve.
Paragraph 65 of the guidance says that LEAs must not seek to delegate responsibility to schools or police. Paragraph 68 makes it clear that the school governing body must agree, before the provisions apply. There is clarity about whether the school can or will have the opportunity to say "no", if it so wishes. The noble Baroness said that the provisions were barmy. That view is not shared by many of the head teachers to whom my noble friend Lady Ashton of Upholland has had the privilege to speak. Many of those head teachers would like the opportunity to make decisions for themselves.
Some head teachers are in the privileged position of having a student body and parents who will never give them cause to exercise the powers. Other head teachers are not in such a luxurious position. Local codes of conduct will reflect local circumstances, and schools can issue fixed penalty notices only within the parameters of the code. To deal with the noble Baroness's point, I must say that Ofsted will be aware of that when assessing a school's performance. The parameters are clear.
We have a choice. Do we think—as the Government think—that teachers can and should be entrusted with the ability, to be exercised if they choose, or do we think that they should not be so entrusted, perhaps because they do not have the ability or discretion to do so? We think that we can trust our teachers and that they will only exercise the power judiciously. It is right to allow them to do so.
I will not repeat everything that I said in Committee. I will take it as read into the record.
My Lords, I am sorry to make a habit of it, but the Companion permits a short elucidatory question. The Minister said that the guidance said that local authorities may not delegate the power to collect. In new Section 444B(1)(f), we read that the regulations may make provision as to,
"the persons who may be authorised by a local education authority to give penalty notices".
What is the difference?
My Lords, they cannot delegate their responsibilities as local education authorities to teachers, schools or police. The idea, as was said by the noble Lord, Lord Elton, was that somehow local authorities would simply foist their responsibility for discharging the duty onto others. What I was trying to make clear is that they cannot do so. The guidance makes it clear that they cannot do so. Unless and until the governing body of the school accepts, with the head teacher, and agrees that that should be done, it would be impossible for a local education authority to do so.
The important point is that if the school, the governing body and the local education authority agree that this is an appropriate thing to be entrusted to the school, they will do it. If they do not, they will not. There will be local education authorities, which, knowing their schools and knowing their head teachers, may prefer to keep the determining power to themselves, with the agreement of their schools and governing bodies.
However, there will be other local authorities where the schools, through the head teacher, the governing body and the LEA agree that this will inure to the advantage of their school and their children, and choose to invest that power in this way. These provisions would deny those schools that have a hunger for the opportunity to have this power available to them—only as a back-stop, only there in the background, only probably to be used in extremis. None the less, it would be a useful backstop. Many schools would wish to have that privilege. These amendments would deprive them of that opportunity. We do not think that that is right.
My Lords, I thank the Minister for her reply. I am sorry she felt that I put forward the same old arguments as I did on a previous occasion; I thought that I had made one or two new points for her. I raised them because there is real concern among teachers. It is not a matter of trust; it is not a matter of not being trusted. It is a matter of what are the appropriate responsibilities to put on head teachers on this occasion. Many head teachers do not think that this is an appropriate responsibility to be put on their shoulders. They do not want that responsibility.
I accept therefore that it will be a matter of whether there is agreement. As the Minister indicated, it will be an agreement between the schools, the governing body and the local education authority. Quite rightly, it will be a provision in the Bill that is honoured in the breach rather than being used. Extremely few head teachers will want to take up and use the responsibility. That may well be the case.
It is unfortunate. We have seen a similar situation in other legislation that has gone through, such as curfew orders and so forth, which have not been used widely. In terms of legislation, it clogs up the time of the House and it brings the law into disrepute if we pass laws that are honoured only in the breach. However, the Minister wants to see it on the face of the Bill, but I am not convinced by the arguments produced. I shall think about the matter further. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 41 to 44 not moved.]
Clause 25 [Parenting contracts in respect of criminal conduct and anti-social behaviour]:
[Amendment No. 45 not moved.]
Clause 26 [Parenting orders in respect of criminal conduct and anti-social behaviour]:
[Amendment No. 46 not moved.]
Clause 29 [Interpretation and consequential amendment]:
[Amendment No. 47 not moved.]
My Lords, in moving Amendment No. 49, I shall speak also to Amendments Nos. 51, 52 and 54. Amendments Nos. 49 and 51 are linked in that they both seek to remove from the Bill the liability to be dispersed for something other than actual bad behaviour; that is, simply being somewhere, in the case of Amendment No. 49, or someone thinking that a person might do something, in the case of Amendment No. 51.
The Minister has made it clear that the Bill does not apply just to young people. I accept that absolutely. However, young people think that it is aimed at them. Indeed, they fear that it does and they are very angry.
Last night I attended a lobby of young people in Portcullis House. Their main message was that young people are not all criminals and up to no good and they become angry when they appear to be so labelled. They are concerned that, simply because they have nowhere else to go and hang out with their friends, and nothing else constructive to do in many areas, it will be assumed that they are planning to misbehave when they gather together in public places. They understand, as one very impressive young woman called Lucy put it, that they are seen as an alien species by some of our generation. They would prefer to be understood, but they accept that often they are misunderstood.
They prefer the approach outlined by the Minister in Committee, where she described how the local authority in Harrow has handled this issue—by talking to young people and solving their problems. I could give the noble Baroness many other examples of how local authorities have dealt with this kind of problem, by getting to the root of it and finding solutions, but I shall not weary noble Lords, they will be pleased to hear, with such a litany. We have all come across examples of best practice in this area. If local authorities can find solutions without recourse to the draconian powers set out in this Bill, why do we need them?
Where there has been actual bad behaviour, I believe that the Government and the police have several remedies at their disposal; they just need to use them. It cannot be right to disperse people from an area where there has been anti-social behaviour even when there is no link between them and the problem behaviour itself. The nuisance may have been committed in the past by an entirely different group of people. Of course authorities need the power to deal with groups that terrorise neighbourhoods, but I believe that they already have such powers, and should use them. This Bill would allow the police to disperse groups of people from an area simply for being there, or if others think that they might cause a problem. That cannot be right in a free society.
I turn to the safety of young people. The House will be well aware that many young people are the victims of crime, albeit that some are the perpetrators. These law-abiding young people, some of whom spoke to me last night, are concerned that when they gather together in groups, where they feel comfortable and safe, they will be in danger of being labelled as troublemakers and be moved on. Not only does this make them feel angry and alienated, it undermines any confidence those young people might have that the justice system is also there to help and protect them, rather than simply to demonise them.
We must not criminalise the normal behaviour of young people. The dispersal power is a shallow and ineffective idea. It will simply move the problem somewhere else, without getting to the root of the cause of the gathering and finding a constructive solution. It is like giving an Aspirin to someone who complains of a headache rather than arranging a scan to find out whether they have a brain tumour, then operating to remove it. I expected better of this Government, who say that they are on the side of young people and respect their rights. I do not believe that these measures are consistent with the rights of young people under the UN Convention on the Rights of the Child, to which we are signatories, and they certainly do not meet the spirit of that convention.
I turn now to Amendments Nos. 52 and 54, which concern informing social services if a child is taken home by a police officer within the designated hours. The Green Paper, Every Child Matters, rightly talks about multi-agency working and common databases to assist in this type of work. Those who are concerned about children support absolutely that approach and have great hopes of the Government's consultation exercise on these matters. The Minister has said much recently about the benefits of multi-agency working during the course of this and other Bills.
While we are waiting for the measures which we hope will emerge from Every Child Matters, it would not be a bad thing, while we are passing this legislation, to insert into it an obligation for the police at least to inform the social services, not only if they have grounds for believing that the child is likely to suffer harm if removed to his or her home, which is what is sought by Amendment No. 54, but every time a child is taken home in the middle of the night, which is what is sought in Amendment No. 52. We must have joined-up action in these cases.
If any child below the age of 16 is roaming the streets unsupervised at two o'clock in the morning, he could be a child at risk. His or her education will suffer and there would have to be profound doubts about the level of control being exercised by the parents. Those parents may need some help and support in bringing up that child. We believe that social services are the most appropriate first port of call for that help and support. In such a case, it is hoped that social services professionals would inform the child's school. It would also be helpful for teachers to know why the child is falling asleep in the classroom the next morning.
I hope, therefore, that the Government will look kindly on these two amendments since they are clearly in line with the ethos set out in the Green Paper. I beg to move.
My Lords, I am concerned about some of the amendments in the grouping. There has been a change in society in that, certainly in the north of England, many young girls, particularly, are drinking a tremendous amount and roaming the streets. They must be at risk of being enticed into prostitution. Not long ago, Barnardo's produced a very good video of children who were in social care in Leeds but were working as prostitutes in Halifax and being kept in appalling conditions. There is a risk element and we need to consider carefully these amendments.
My Lords, I rise with some trepidation to speak on behalf of my noble friend Lord Lester of Herne Hill. He greatly regrets that he cannot be here to speak to Amendments Nos. 50 and 53, which are tabled in his name.
Both amendments seek to give effect to the recommendations of the Joint Committee on Human Rights by inserting important safeguards into the Bill. Clause 30 contains provisions for the dispersal of groups of two or more people where it is reasonably believed that anti-social behaviour is a significant and persistent problem, and that such groups have harassed, intimidated, alarmed or distressed members of the public in the locality. However, the Joint Committee on Human Rights expressed concern that it might be difficult to ensure that the powers under Clause 30 would be used only when they were proportionate to a pressing social need.
In order to address this concern and to provide a tighter test and an additional safeguard to the use of these powers, we propose that the provisions in the amendment should be inserted into the Bill. Under the amendment, in order to be able to give an authorisation which would allow for the exercise of the new powers under Clause 30(4), the relevant officer must have reasonable grounds for believing that such authorisation and exercise of powers is appropriate and necessary for the prevention of disorder or crime.
Amendment No. 53 relates to the removal of young people under 16 to their place of residence. We have some concerns about this power and my noble friend feels that it is very important that this provision should be clearly linked to Clause 30 and to Amendment No. 50. As the Joint Committee on Human Rights observed, the provision effectively turns the authorisation into an extension of child curfew schemes. It also expressed concerns that the measures are not a proportionate response to a pressing social need.
It is not completely clear from the face of the Bill that Clause 30(1) conditions need to be met before Clause 30(6) can be applied, hence the need for the link. This is unacceptable. In order to address the ambiguity and to provide an additional safeguard to the use of these new powers, the provision in the amendment should be inserted after Clause 30(6). This will ensure that all of the Clause 30(1) conditions, including the new condition proposed as Clause 30(1)(c), are met before the power to remove is triggered. I hope that I have made myself clear to the Minister.
My Lords, there can be some confusion between the need to remove young people from the streets when they are in danger or causing difficulties that might lead to an offence and young people who are simply congregating, when people fear that they might cause offence. To address the point that the noble Baroness, Lady Masham, was concerned about, young prostitutes and young women in difficulties certainly need help. If they are ordinary kids who are just grouping together on the streets, they need help, but not help as regards being dispersed.
I want to make a comment in support of Amendment No. 54. I am sure that the Minister will say that the amendment is unnecessary because the matter is covered in the Children and Young Persons Act 1989, with regard to the co-operation needed between police and social services. However, I support the amendment, because it would remind constables of their welfare responsibilities when operating under the provisions.
We know from what happened in the Climbie situation that the police forgot to take a holistic view because the person in front of them was a child. I have great respect for the police and have worked with them through the years, but it would help to have it in the Bill to remind them, through their training, that they have to intervene and work with social services if they find themselves in charge of a child who is on the street.
My Lords, I want to take the Minister back to the discussions that we had on the Licensing Bill, and the question of the large number of people who congregate outside premises where clubs are operating—young people between the ages of 16 and 30, whose ages are extremely difficult to determine. If a police officer faces a situation in which such a group of people is likely to intimidate—or is intimidating and harassing—members of the public, how does a police officer single out those who are of the age to which the clause applies?
My Lords, perhaps I should reiterate the basis on which the provisions will apply. As currently drafted, a senior officer may grant an authorisation in areas where people have been intimidated, harassed, alarmed or distressed, as a result of the presence or behaviour of groups and where anti-social behaviour is a significant and persistent problem. Those are the criteria set out, which need to be satisfied before the powers under this clause can operate.
Amendment No. 49 would remove the possibility of the police using powers based on the presence of groups causing intimidation, harassment, alarm or distress. The Government believe that it is not only the behaviour of groups that makes people feel threatened in their communities. The presence of the group, and the fear of what it might do, prevents people from using the open spaces and facilities within communities. The provisions are not limited to children. Groups can be dispersed, regardless of age. Only the curfew powers relate specifically to juveniles.
Amendment No. 50, in the name of the noble Lord, Lord Lester of Herne Hill, moved elegantly on his behalf by the noble Baroness, Lady Linklater, adds an additional condition,
"that it is appropriate and necessary for the prevention of disorder or crime".
We would say that the amendment is unnecessary. The condition adds nothing to the conditions already on the face of the Bill. Clause 30(1)(b) provides,
"that anti-social behaviour is a significant and persistent problem in the relevant locality".
That is the premise upon which the measure works and we believe that the position is thereby covered.
Amendment No. 51 would prevent the constable from using the power if he has reasonable grounds for believing that the presence or behaviour of groups will result in members of the public being intimidated, harassed, alarmed or distressed. It is essential that the constable or community support officer has powers to prevent members of the public being affected in this way and to prevent intimidation, harassment, alarm or distress occurring in the first place.
We say respectfully that Amendment No. 52 is also unnecessary as Clause 32(4) already has the effect that is proposed in the amendment. The social services department of the local authority will be notified if a constable or community support officer decides to exercise his powers under Clause 30(6) of the Bill. I believe that the noble Baroness will see that the power which she seeks is there already.
Amendment No. 54 is also unnecessary as under the general child protection provisions in the Children Act 1989 we would expect constables to alert local authority social services departments of any child they believe is at risk of significant harm. We shall certainly ensure—I hope that I reassure the noble Baroness, Lady Howarth—that this point is covered in the code of practice issued under Clause 34. I hope that gives the noble Baroness some comfort.
Amendment No. 53 in the name of the noble Lord, Lord Lester of Herne Hill, seeks to clarify that before a police officer or community support officer exercises his power to take a child home, the conditions required for an authorisation apply. Clause 30(2) ensures that the power to take a child home can be exercised only when an authorisation is in place. While I recognise the point that the noble Lord, through the noble Baroness, is making, I hope I can reassure him and her that the amendment is unnecessary. The noble Lord has a few concerns and may welcome a discussion on them. I should be very happy to have that discussion with the noble Lord. If, due to our somewhat tight timetable, I am not able to conduct that discussion myself, I am sure we can arrange for him to have a proper consultation with the relevant officials dealing with the matter. I hope that following my comments and the offer of a discussion, the noble Baroness will feel able to withdraw the amendment.
My Lords, I thank the Minister for her very clear reply. She considers the amendments unnecessary as their aims are covered in the Bill. My noble friend Lord Lester will read what has been said in Hansard. I speak for him but I am sure that he will welcome the noble Baroness's kind offer of a consultation.
My Lords, I thank the Minister for her reply and other Members of your Lordships' House for their support for these amendments. I believe the Minister suggested that Amendment No. 51 would remove all of subsection (3). However, it seeks to remove only the words,
"or is likely to result".
That does not affect the rest of that subsection at all. I shall study carefully the Minister's comments on Amendments Nos. 52 and 54 to see whether we consider that we need to return to the matter at the next stage of the Bill. However, in considering Amendment No. 49, whoever grants the order and whatever has taken place before, does not alter the fact that these measures criminalise people for something they have not done, for being somewhere or for being thought likely to do something. Despite all the authorisation in Clause 31 and all the other caveats in this part of the Bill, we believe that there is a fundamental principle here. Because of that I want to test the opinion of the House on the amendment.
moved Amendment No. 55:
Page 27, leave out line 22 and insert "An authorisation may not be given without the consent of the local authority or each"
My Lords, in Committee we listened carefully to the points made by the noble Baronesses, Lady Walmsley and Lady Linklater, about the importance of the work of local authorities in tackling anti-social behaviour in their areas, particularly through local crime and disorder reduction partnerships, which we have done a great deal to develop over the past five or six years.
Government Amendment No. 55 ensures that the agreement of the local authority is given before those powers can be used. We have responded to points raised in Committee on that issue. Local authorities and the police already work closely together in local crime and disorder reduction partnerships, implementing local strategies for dealing with anti-social behaviour. We expect agreement on authorising the powers to be an important part of that process.
I turn to Amendment No. 56, which is grouped with Amendment No. 55. In this, the noble Baroness, Lady Walmsley, seeks to ensure that the local community is consulted before an authorisation is granted. We agree that the local community should be included in tackling anti-social behaviour in its area. However, we would not want to extend the authorisation process, implicit in the amendment, by building in an obligation to consult the local community.
However, we shall ensure that the code of practice to be issued under Clause 34 of the Bill gives advice on consultation with the local community. Indeed, we would expect crime and disorder reduction partnerships, which include, as I have made plain before, the police, councils and other bodies, to engage with local communities to determine whether there are areas in their locality where the use of the powers would be beneficial.
We agree it is essential that local communities know that those powers are being used in their area. That is why Clause 31(3) ensures that publicity is given to an authorisation. We believe that that communication is extremely important. Therefore, I trust that the noble Baronesses will not feel obliged to press their amendment. I beg to move.
My Lords, I rise to speak to Amendment No. 56. The purpose of the amendment, as the Minister has just said, is to ensure that all members of the local community, including children, young people and their families, are involved in the decision to instigate the power to disperse groups in local areas.
We have been briefed on this issue by Barnardo's, the Children's Rights Alliance for England, the Children's Society, Family Service Units, NACRO, the National Association for Youth Justice, the National Children's Bureau, the NCH, the NCVCCO, the NSPCC, the National Youth Agency and YMCS England, to whom we are very grateful. All of those organisations are opposed to the introduction of these new powers because of the detrimental impact that they will have, particularly on young people and their communities. They and we on these Benches do not condone crime, nor do we underestimate the impact that seriously disruptive behaviour can have on people's lives. However, we believe that the proposals on dispersal will not be effective and will simply increase local tensions between those in positions of authority and young people and their families, without effectively tackling the root causes of anti-social behaviour.
The reputable organisations that I have just mentioned urge the Government to reconsider their proposals, and consult with all members of the community including children and young people about the most effective ways of reducing anti-social behaviour while offering the children and families concerned the help that they need. Given the far-reaching nature of these proposals and their impact on children and young people, we are particularly concerned that there is no requirement in the new powers to consult the local community. That is why we have tabled Amendment No. 56.
Young people themselves are also very concerned. A recent NOP poll found that of the 10 to 16 year-olds questioned, seven out of 10 agree that police should not be given powers to move them on if they have not done anything wrong; four out of five say that curfews are not fair because not all young people cause problems; three out of five believe curfews will stop them doing things they enjoy; four out of five say that police are very important in helping children lead safe and secure lives; and four out of five of those questioned say that children sometimes hang out on the streets because there is nowhere else for them to go.
In view of those strongly held views of young people, the absence of a requirement on the face of the Bill to consult with the community is a significant and alarming change to the current situation in respect of curfew schemes under the Crime and Disorder Act 1998. The Act sets out that an application to the Secretary of State for a local child curfew scheme must describe how the local authority proposes to consult the local community to be affected. That can be found in Section 14(1)(b).
One of the difficulties with the original proposals in Part 4 of this Bill is that they removed the partnership approach between the police and the local authority, which is such a key tenet of the Crime and Disorder Act 1998. We share the concerns of the Local Government Association and others about this and very much welcome the introduction of the Government's Amendment No. 55, which means that authorisation will be given only with the agreement of the local authority. That would facilitate consultation with the local community as set out in my Amendment No. 56.
So we either need this amendment so as to be explicit about that consultation or, at the very least, we seek the Minister's clear assurance that the code of practice will refer explicitly to the need to consult children and young people. That would be in accordance with the Children and Young People's Unit guidance, Learning to Listen. Without this amendment or the Minister's assurance about the guidance, the proposals in the Bill effectively remove power from the local community, a strange contradiction to the ethos of the White Paper statement that,
"to tackle anti-social behaviour we must ensure that the community sets clear standards of behaviour", and,
"Local people must be encouraged to win back their communities and encouraged by local and central Government to do so".
In Committee, the noble Lord, Lord Bassam, said:
"We agree that the local community should be involved in tackling anti-social behaviour . . . we would not necessarily want to extend the authorisation process by building in an obligation to consult the local community".—[Official Report, 17/9/03; col. 1002.]
He repeated that this evening. The Minister further stated that he felt that the best way to address this matter was through the code of practice as set out in Clause 34. It is our view that these powers are so far reaching and have raised so much concern about the need to ensure that the imposition of the powers is suitable for the particular area and community concerned, through consultation, that it is of critical importance that they should be reflected on the face of the legislation. I hope that the Minister will agree with that.
My Lords, when addressing the amendment tabled by the noble Baroness I thought I made it plain that we would seek, by virtue of Clause 34—the code of practice—to ensure that we have community consultation. I can give a commitment to consult all sections of the community; that will be in the code of practice; and, of course that will include young people. That makes a great deal of sense.
The Government have done a great deal through the crime reduction partnerships to ensure that there is careful consultation on the construction of crime and anti-social behaviour patterns of disorder. Because we view local authorities as very important partners, and because local authorities obviously have deep and intrusive roots into local communities, we see their role as being extraordinarily important.
It is perhaps worth reminding the noble Baroness, Lady Walmsley, that these powers are not just restricted to children. She seemed to think that they are aimed just at young people. That is not the case. I thought I had made that point clear at an earlier stage in the Bill. I think that there has been some misunderstanding—I am sure not deliberate—in some quarters about our intent regarding this legislation.
So, we have listened to the points made at an earlier stage in the Bill. We think that it is more important to put the provision into a code of practice. There will be extensive opportunities for consultation; and that consultation will extend to younger members of the community.
My Lords, before the Minister sits down, will he clarify that the consultation will take place prior to the authorisation being issued? Will the provision require notice to be given in the locality so that other users of the open space concerned will know what is being planned? I think, for example, of a small open space or a park used by members of the local community who may wish to know that this authorisation is contemplated. My own local park in Lambeth is used by a wide variety of people. An authorisation contemplated in respect of the whole park might have serious implications for other users and they would want to be consulted about it before the authorisation was issued.
My Lords, I would expect there to be consultation generally about the use of these powers. I think the words I used initially were that we would expect that the crime and disorder reduction partnerships, which as I explained include the police and councils, would engage with the local community to determine whether there are areas in their locality where the use of these powers would be beneficial. Of course there will be consultation in the local communities. There may not necessarily be specific consultation in advance of an authorisation being granted, but there will be extensive consultation about the way and the localities in which these authorisations will take place.
On the question of publicity, Clause 31(3) gives publicity to the authorisation, but after it is issued. I think that there is a benefit to there being extensive publicity. Clearly, it would depend on the strategy being adopted in the area about whether there may be some publicity prior to the event. Certainly, it is our hope that there will be extensive publicity given to the effect of the powers because we want people to understand the import of what is being done and we want communities to understand why these actions are being taken. We want to discourage the form of anti-social behaviour that these activities embody. Therefore, it makes perfect good sense to ensure that there is extensive publicity and that that extensive publicity relates to the behaviour we are trying to prevent.
Before the Minister sits down, perhaps I may briefly comment on his response on Amendment No. 56, which I shall not move. He was not in his place when I moved Amendment No. 49, but if he reads Hansard I hope that he will be reassured that there is no misunderstanding: I have accepted the many reassurances made by the noble Baroness, Lady Scotland, that the Bill does not just refer to young people.
However, we are reassured and thank the Minister for his explicit assurance that communities, including young people, will be consulted. We hope that that will be done in a timely way. We shall obviously carefully consider the details of the guidance when it is issued, but his reassurances from the Dispatch Box are welcome and I thank him for them.
My Lords, I beg to move that further consideration on Report be now adjourned.