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Session 2002 - 03|
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Arrangement of Clauses (Contents)
|Anti-Social Behaviour Bill|
THESE NOTES REFER TO THE ANTI-SOCIAL BEHAVIOUR BILL AS INTRODUCED IN THE HOUSE OF COMMONS ON 27TH MARCH [BILL 83]
ANTI-SOCIAL BEHAVIOUR BILL
1. These explanatory notes relate to the Anti-social Behaviour Bill as introduced in the House of Commons on 27 March 2003. They have been prepared by the Home Office, the Office of the Deputy Prime Minister, the Department for Education and Skills and the Department for Environment, Food and Rural Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. In March 2003 the Government published a white paper outlining its proposals for tackling anti-social behaviour. Respect and Responsibility - taking a stand against anti-social behaviour focussed on providing local authorities and the police with a wider, more flexible range of powers to meet their existing responsibilities and respond to the needs of their local communities.
4. The Bill is designed to ensure that the police have the appropriate powers to deal with serious anti-social behaviour. It introduces new powers for tackling the problem of premises used for drug dealing and for dispersing intimidating groups. It enables the police to tackle the nuisance that can be caused by young people with air weapons, and supports action against gun crime by banning the possession of imitation guns and air guns in public without good reason. It also tackles the danger of air weapons that can be easily converted to be used with conventional ammunition.
5. The Bill also provides powers for local authorities and those working with them to tackle anti-social behaviour in local communities. It extends landlords' powers to deal with anti-social behaviour in social housing, including developing the use of injunctions and probationary tenancies. It also includes provisions aimed at dealing with noise nuisance by tenants. It develops the sanctions that are available for
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those who engage in anti-social behaviour and extends the range of agencies that can use them. It provides the means for schools, local authorities and youth offending teams to work with the parents of children who are behaving anti-socially and creates the mechanisms for enforcing this work. The Bill extends local authorities' powers in relation to cleaning land. It also extends the measures that can be taken to prevent graffiti.
6. The Bill is in eight Parts. Part 1 creates new powers to close premises that are being used for drug dealing or use. Part 2 extends powers for tackling anti-social behaviour in housing. Part 3 develops mechanisms for enforcing parental responsibility for children who behave in an anti-social way in school or in the community. Part 4 creates a new power for the police to designate areas where they can disperse groups causing intimidation. Part 5 develops the existing sanctions of anti-social behaviour orders, fixed penalty notices and supervision orders. Part 6 deals with the misuse of air weapons. Part 7 extends powers for local authorities to clean the environment. Part 8 contains general provisions.
TERRITORIAL APPLICATION: WALES
7. The Bill applies to England and Wales. The following measures will be commenced separately by the National Assembly for Wales:
Clauses 22 and 23 (penalty notices for parents in cases of truancy) do not apply to Wales unless the National Assembly for Wales makes an order amending the Education Act 1996 (as amended by this clause).
COMMENTARY ON CLAUSES
PART 1: PREMISES WHERE DRUGS USED UNLAWFULLY
8. This part grants the police the power to close down premises being used for the supply or use of Class A drugs where there is associated nuisance or disorder. Service of a notice will close the premises to the public until a magistrates court decides whether to make a closure order. The court must consider the notice within 48 hours. If it is satisfied the relevant conditions are met, the court can make a closure order which closes the premises altogether for a period of up to 3 months, with possible extension to a maximum of 6 months.
Clause 1: Closure Notice
9. Subsection (1) sets out the test which must be met before a police superintendent (or officer of higher rank) can authorise the issue of a closure notice. Subsection (2) requires that the superintendent must be satisfied that the local authority has been consulted and that reasonable steps have been taken to identify those living on the property or with an interest in it before the authority for the issue of the notice is given.
10. Subsection (4) sets out the contents of the closure notice. These must include details of the time and place of the court hearing in relation to a closure order and a statement that access to the property during the period of the notice is prohibited to anyone other than someone who is usually resident in or the owner of the premises. It must also contain information about local sources of housing and legal advice.
11. Subsections (6) and (7) set out requirements in relation to service of the notice, which must be attached to the building and given to people identified as living in or having an interest in the property or whose access to other premises may be adversely affected by a closure order. Subsection (9) enables the Secretary of State by regulations to exempt premises or descriptions of premises from the application of this clause.
Clause 2: Closure Order
12. Once a closure notice has been issued, the police must apply to the magistrates' court for the making of a closure order.
13. Subsection (2) provides that the court must hear the application within 48 hours. The 48 hours runs from posting of the notice on the property. Subsection (3) sets out the test of which the court must be satisfied before making a closure order. As well as being satisfied that the premises have been used for the unlawful supply or use of Class A drugs, and that the use of the premises is associated with nuisance or disorder, the court must be satisfied that the making of the order is necessary to prevent future disorder or nuisance. An order may be made in relation to part only of the property affected by the notice (subsection (8)).
14. Subsection (4) sets out that the effect of the closure order is to close the premises altogether, including to owners and residents, for up to 3 months. Subsection (5) provides that the order may make special provision for access to any part of the building in which the premises are included (for example, stairways or shared parts). Subsection (6) allows the court to adjourn the hearing for up to 14 days to allow the occupier or someone else with an interest in the property to show why an order should not be made, for example because the problems have ceased or the occupiers have been evicted. The court can order that the closure notice continues to have effect during this period.
Clause 3: Closure order: enforcement
15. When a closure order is made, a constable or any other person authorised by the chief officer of police may enter the property and secure it against entry by any other person, using reasonable force if necessary. He may also enter the premises at any time to carry out essential maintenance or repairs.
Clause 4: Closure of premises: offences
16. This clause creates offences of remaining in or entering property subject to a closure notice or order without reasonable excuse or of obstructing a constable or authorised person carrying out certain functions under these provisions. The maximum penalty is a fine of £5000, imprisonment for 6 months or both. There is a power of arrest for a constable in uniform in relation to these offences.
Clause 5: Extension and discharge of closure order
17. This clause allows the police to apply for an extension of the period for which the order has effect up to a maximum period of 6 months (including the period for which the original order had effect). Such an application must be authorised by a superintendent (or police officer of higher rank), who must:
18. Subsection (6) allows a constable, the local authority, persons on whom the closure notice was served under clause 1 and any other person with an interest in the closed premises to apply for the order to be discharged at any time. Subsection (9) sets out requirements relating to the service of notice on persons summoned to appear before the court under this clause.
Clause 6: Appeals
19. This clause allows for appeals to the Crown Court against closure orders and against a refusal to make one by all interested parties.
Clause 7: Access to other premises
20. This clause ensures that a court may make an order concerning access to any part of a building or structure in which closed premises are situated, where the part itself is not affected by a closure order. Thus, a person who occupies or owns such a part of a building or structure may apply to the court for an order enabling him to retain the access to that part that he had before the closure order took effect (particularly if the closure order had rendered access to his part of the building or structure more difficult or impossible). The court may exercise its discretion by way of variation of the original order.
Clause 8: Reimbursement of costs
21. This clause allows the court to make an order that the owner of the premises must reimburse any costs incurred by the police or local authority in clearing, securing or maintaining the premises.
Clause 9: Exemption from liability for certain damages
22. This clause creates a partial exemption from liability in damages for the police in carrying out their functions under this Part. It does not extend to any acts in bad faith or acts which are in breach of the police's duty as a public authority to exercise their functions compatibly with the European Convention on Human Rights.
Clause 10: Compensation
23. This clause allows for compensation payments to be made by the court out of central funds where it is satisfied that:
Subsection (3) deals with the time within which an application for compensation must be made.
PART 2: HOUSING
24. This part gives local authorities, housing action trusts and social landlords registered with the Housing Corporation new and more effective tools to deal with anti-social behaviour. The Bill also introduces a new duty on social landlords to publish their anti-social behaviour policies so that tenants and members of the public are informed about the measures that social landlords will use to address anti-social behaviour in its stock. In addition to the White Paper 'Respect and Responsibility' these measures were the subject of public consultation from 2 April until 12 July 2002.
Clause 12: Anti-social behaviour: landlords' policies and procedures
25. This clause introduces a new section 218A into the Housing Act 1996. This requires certain social landlords to prepare and publish policies and procedures on anti-social behaviour, and to make them available to the public.
26. New section 218A(3) to (6) gives details relating to the times at which a statement of policies and procedures must be published and reviewed, and how the statement must be made available to the public. The duty comes into effect within 6 months of the date of commencement of this clause.
27. New section 218A(7) requires social landlords to have regard to relevant guidance when preparing or reviewing their policies and procedures. Guidance may be issued to local housing authorities or housing action trusts in England by the Secretary of State or, in Wales by the National Assembly for Wales. Guidance to registered social landlords may be issued by the Housing Corporation in England or, in Wales, by the National Assembly for Wales.
Clause 13: Injunctions against anti-social behaviour on application of certain social landlords
28. This clause repeals sections 152 and 153 of the Housing Act 1996 and introduces new provisions allowing certain social landlords to apply for injunctions to prohibit anti-social behaviour which affects their management of their housing stock. Subsection (3) introduces new sections 153A and 153B into the Housing Act 1996.
29. New section 153A(1) provides that the conduct to which that provision applies is conduct which is capable of causing nuisance or annoyance (even if no complaint has been received) and which affects directly or indirectly the landlord's management of its housing stock.
30. New section 153A(2) to (5) sets out the conditions which have to be met before an injunction against anti-social behaviour can be granted. An injunction may be granted against any person whose behaviour could cause nuisance or annoyance to:
The conduct need not have caused any such nuisance or annoyance to any specific individual. It is sufficient that it is capable of having that effect.
31. New section 153A(5) provides that the anti-social behaviour need not occur in the vicinity of the landlord's housing accommodation. However the behaviour will still need to be connected to the landlord's management of its accommodation. For example a landlord should be able to apply for an injunction to protect a tenant who has been regularly harassed by other residents of an estate even if the incident itself which gave rise to the injunction application happened elsewhere. The anti-social behaviour in this example is clearly connected to the tenant's occupation of a home owned or managed by the landlord.
32. New section 153B allows specified landlords to apply for injunctions where someone has used or threatened to use his housing for an immoral or illegal purpose. This could cover, for example, drug dealing or use of the premises as a brothel.
33. New section 153C allows the court to attach a power or arrest or to exclude a person from specified premises or a specified area where there is the use or threat of violence or a significant risk of harm to any person mentioned in new section 153A(4) (see above). Consequently a power of arrest will be available in cases where there is a significant risk of harm even if there has been no actual or threatened violence. Significant risk of harm is defined in new section 153D(10). It could include emotional or psychological harm. This could apply, for example, in cases of racial or sexual harassment. The existing provisions, which are being repealed, only allow a power of arrest when there is either violence or threatened violence together with a significant risk of harm.
34. New section 153D includes provisions supplementing both sections 153A and 153B, including provisions for the variation or discharge of an order. New section 153D(2)(b) confirms that an injunction may exclude someone from his own place of residence. New Subsection 153D(4) allows injunction orders under Sections 153A or 153B to be made without notice having been given to the respondent, although the respondent must subsequently be given the chance to make representations. New subsection 153D(8) provides that if the landlord is a charitable housing trust the behaviour must also constitute a breach of the respondent's tenancy agreement.
35. Subsections (4) to (7) make consequential amendments to housing legislation to give effect to the new provisions for injunctions under new sections 153A and 153B of the Housing Act 1996.
Clause 14 : Security of tenure: anti-social behaviour
36. This clause amends section 82 of the Housing Act 1985 to allow a secure tenancy to be brought to an end by a demotion order. Subsection (2) inserts new section 82A into the Housing Act 1985.
37. New section 82A of the1985 Act provides that a local authority, a housing action trust or a registered social landlord can apply for a demotion order. A demotion order will end the secure tenancy on a specified date. If the tenant remains in occupation, a new demoted tenancy will begin on the same date. The court may only make the order if the tenant, another resident of or visitor to the tenant's home has behaved in a way which is capable of causing nuisance or annoyance or if such a person has used the premises for illegal or immoral purposes. In addition the court must be satisfied that it is reasonable to make the order.
38. Any rent that the tenant owes to the landlord at the date of the demotion order will still be owed under the demoted tenancy. New section 82A(5) defines what is meant by a demoted tenancy by reference to new section 143A of the Housing Act 1996 and new section 20B of the Housing Act 1988.
39. Subsection (3) inserts a new section 6A into the Housing Act 1988, dealing with demotion of assured tenants of registered social landlords. A demotion order will end the assured tenancy on a specified date. If the tenant remains in occupation, a new demoted assured shorthold tenancy will begin on the same date. The court may only make the order if the tenant, another resident of or visitor to the tenant's home has behaved in a way which is capable of causing nuisance or annoyance or if such a person has used the premises for illegal or immoral purposes. In addition the court must be satisfied that it is reasonable to make the order.
40. Subsection (4) introduces Schedule 1 which amends the Housing Act 1996 and the Housing Act 1985 and sets out the legal position regarding demoted tenancies.
Clause 15: Demoted assured shorthold tenancies
41. This clause introduces a new section 20B into the Housing Act 1988 which sets out the legal basis for the form of demoted tenancy that can be used by registered social landlords. A demoted assured shorthold tenancy is an assured shorthold tenancy but there is provision for the demoted assured shorthold tenancy automatically to turn into an assured tenancy after one year unless the landlord has issued a notice of proceedings for possession during that year.
42. If the landlord gives notice of proceedings for possession then the tenancy will remain a demoted assured shorthold tenancy beyond the first year until the notice is withdrawn or six months have passed and no proceedings have been issued or, if proceedings have been issued, until they are determined in favour of the tenant.
Clause 16: Proceedings for possession: anti-social behaviour
43. This clause introduces new provisions relating to the court's exercise of discretion in possession proceedings. Subsection (1) introduces a new section 85A into the Housing Act 1985. Subsection (2) introduces new section 9A into the Housing Act 1988. The effect of these changes is that when a court is considering whether it is reasonable to grant a possession order against a secure or assured tenant under one of the nuisance grounds for possession, the court must give particular consideration to the actual or likely effect which the anti-social behaviour has had or could have on others.
Clause 17: Devolution: Wales
44. This clause ensures that all functions of the Secretary of State arising from the amendments to the Housing Acts mentioned are, so far as exercisable in relation to Wales, to be carried out by the National Assembly for Wales.
PART 3: PARENTAL RESPONSIBILITIES
Truancy and exclusion from school
Clause 18: Parenting contracts in cases of exclusion from school or truancy
45. This clause sets out provisions for schools and local authorities to enter into Parenting Contracts. Local education authorities (LEAs) and schools will not be required to use parenting contracts and parents will not be required to sign them. For parents, signing a contract will be voluntary.
46. Subsections (1) and (2) explain the circumstances in which a school-related parenting contract can be made. They are where a pupil has:
The precise circumstances in which parenting contracts may be used where a child has been excluded will be governed by regulations made under sub-section 1(b).
47. Subsection (3) enables local education authorities and schools to make such contracts with parents. Subsection (4) defines a parenting contract as a statement by the parent that he agrees to comply with the requirements laid down by the contract for the specified period. Subsection (5) provides for the requirements to include attending counselling or guidance sessions. Subsection (6) defines the purpose of the requirements as improving the pupil's behaviour and/or securing his regular attendance at school. Subsection (8) means that parenting contracts cannot result in certain types of legal action by either party - these are actions for breach of contract and for civil damages. Subsection (9) allows the Secretary of State for Education and Skills for England and the National Assembly for Wales to issue guidance to which local education authorities and school governing bodies would have to take into account in deciding when to issue parenting contracts and their content.
48. This clause complements clause 24, which enables Youth Offending Teams to arrange parenting contracts for parents of children who have engaged or are likely to engage in criminal conduct or anti-social behaviour.
Clause 19: Parenting orders in cases of exclusion from school
49. Existing legislation provides for parenting orders for parents convicted of school attendance offences. This clause complements that provision by enabling LEAs to apply to magistrates' courts for parenting orders for parents of children who have been excluded from school.
50. Subsection (1) defines the circumstances in which parenting orders in cases of exclusion from school may be made. These are where a pupil has been excluded from school for a fixed term or permanently and where conditions prescribed by regulations made the Secretary of State for Education and Skills for England or the National Assembly for Wales are met.
51. Subsection (2) and Subsection (3) enables local education authorities (LEAs) to apply for parenting orders in such circumstances and magistrates' courts to make them. Subsection (4) defines a parenting order as an order that requires the parent to comply with the requirements specified in the order for a period of up to one year, and with one exception, set out in subsection (5), attend counselling or guidance sessions specified by the LEA or school representative overseeing the order (the responsible officer) up to once a week for up to three months. Subsection (5) makes the requirement to attend counselling or guidance sessions an optional part of an order made for a parent who has already been subject to a parenting order.
52. An LEA may apply for a parenting order as a first response or it may make an application following a parent's refusal to sign or breach of a parenting contract. This clause complements clause 25, which enables Youth Offending Teams to apply for parenting orders for parents of children who have engaged or are likely to engage in criminal conduct.
|© Parliamentary copyright 2003||Prepared: 27 March 2003|