51. Memorandum submitted by Mr Mazin
Zeki
THE BLURRING
OF CIVIL
AND CRIMINAL
Great concern must be expressed about the nature
of ASB legislation and the instant solutions it allegedly offers
to beleaguered communities.
The definitions are extremely subjective and
are a departure from the objective norms of law.
The distinction between civil and criminal in
terms of evidence required is a mattter of concern.
This is compounded by the admission of hearsay
evidence
While clearly there are very irritating and
unpleasant instances of anti-social behaviour the rhetoric of
zero tolerance may itself be trivialising the meaning of "anti-social".
This has often been followed by the publication
of very misleading statistics about a fall in reported crime.
The statements of the Social Landlords Anti-social
and Nuisance groups give rise to serious concerns.
There may have been overstated concerns and
claims of success of a fall in crimes which were not actually
categorised as crimes.
The practice of ASBOs are based on the assumed
lower social status of social tenants which is both denied and
proclaimed.
Tim Winter.
Bill Pitt overstated claims which are cause
for serious concern.
Needs based allocation policies are equally
to blame for compounding at least some of the ASB.
Human rights considerations.
The custom and practice dealing with anti-social
behaviour action is sometimes quite distinct from the legislation.
It is attempting an artifically created "custom
and practice" approach which is not necessarily based on
widespread acceptance nor of course only on legislation.
Parliament is unlikely to have intended that
the threat of ASBOs should be used to create social conformity
which is to be imposed on all tenants on the basis of their tenure.
This is quite unlike the social conformity which
is the intention of anti-smoking rules which affect all equally
regardless of status or job description.
THE SUBJECTIVE
DEFINITIONS
This "anti-social behaviour" now apparently
includes:
— an elderly pensioner who had too
many flowerpots;
Such minor offences (if that is the right term)
are bracketed with serious threatening behaviour which is or ought
to be criminal. Overcoming such fictional problems is then claimed
as a success in overcoming ASB.
A repetitive pattern of such very serious behaviour
would indeed make it criminal.
If so then it should be on the basis of the
objective definitions and criteria of criminal justice.
The problem of witness intimidation and jury
tampering is indeed serious. The way forward is to make these
the subject of far more serious penalties because they are by
definition criminal. Indeed they make it impossible for an impartial
CJS to function.????
The process of criminalisation of a broad range
of human behaviour is likely to bring the law into disrepute and
create justified revulsion at actual perceived legal injustice.
The imposition of such laws is also potentially
wholly disproportionate and militates against the bedrock principle
of proportionality which should govern administrative justice.
The subjective definition of such a broad range
of activity will make it more, not less likely that it will come
under successful challenge at a higher legal level in due course.
It raises Article 14 "other status"
(under the Human Rights Act 1998) issues which have been unwisely
ignored.
Action on the basis of mere accusations.
Opportunistic, often false accusations of "racism"
to deflect criticism of unacceptable behaviour, which essentially
reverses the burden of proof????
While ministers and housing professionals are
busily celebrating the success of ASB legislation and custom and
practice they are ignoring the long-term implications of such
putative "success".
UNEQUAL TENURE
Statistics
The creation of statistical targets which makes
little substantial difference.
ABCs are, or may be, disproportionate to the
relatively minor offences involved. And only directly enforceable
against social tenants. If serious offences are involved then
ABCs would be inappropriate or inadequate anyway.
The proposals for their routine use merely underlines
the lower social status of social tenants.
Social tenants are allegedly "more protected"
but also more vulnerable to malicious allegations and maladministration.
Routine data disclosure, which itself is a grey
area, therefore takes place on the basis of tenure not behaviour.
Social tenants as a result are treated as, or
presumed to be, treated as more likely of such behaviour.
This will discredit social housing, the choice
of last resort, and make it even more marginalised.
This is underlined by the objective fact that
most housing professionals do not live in social housing. And
as many articles in the housing press have made clear, none of
them would want to.
PROPERTY RIGHTS
VERSUS HUMAN
RIGHTS
However there are also implications for ongoing
legal theory.
Human rights have always been a challenge to
property rights however defined ASBOs and ASB legislation, together
with acceptable behaviour contracts (ABCs) reverse this substantially.
The application of such laws, though not always
wholly based on property rights, is substantially dictated by
the property relations between landlord and tenant. The proposals
to extend this application to the tenants of private landlords
will only entrench this inequality although it may create a false
"parity" between tenant of the private sector and tenants
of social housing.
It will demarcate more clearly the difference
between the legal status of tenants in general and owner occupiers.
Property rights are deemed in practice more
important than human rights.
This will create a more comformist but more
deeply divided society based on threatening sanctions against
people on the basis of tenure.
CITIZENSHIP
"Citizenship" is a word used incessantly
in this faux debate. It is often used at housing conferences and
other presentational events devoted to regeneration, cohesion
or safer communities. Once more it should be noted that the speakers
are invariably not living in social housing. Phrases such as "meeting
the needs of all our citizens" are constantly used. But citizenship
has an objective and abstract meaning.
The debate is fuelled by the rhetoric of "empowerment"
which is observed in the breach.
Citizenship means equality before the law. The
implementation of ASB law, together with associated practice,
no matter how "successful", will have the effect of
undermining citizenship because it will treat people differently
on the basis of tenure not behaviour.
This will result in a number of unintended consequences.
SOCIAL AND
COMMUNITY COHESION
Under the guise of creating a stronger sense
of community it may be undermining the determinants of such cohesion
which are informal social sanctions.
Although it might be viewed as stabilising communities
the legal basis of ASB legislation will in the long run encourage
increasing abandonment of social housing and emphasise it further
as the housing of last resort.
Social housing is facing other long-term pressures
which will lead to its accelerating decline and potential disappearance.
ASB legislation will merely accelerate this decline.
Thus it might have the effect of creating further
fragmentation in the housing market in future. In the short-term
it is likely to deepen spatial and social segregation in areas
already affected by it. Such segregation has been mentioned by
the various social cohesion reports although their proposals for
overcoming such segregation have been weak unrealistic and resigned.
This includes the Government response to the
ODPM select committee recommendations.
In combatting widespread social decay (for example
in areas of rapid decline) it will merely emphasise the inequality
of tenure. One community may have one tenure while an adjoining
community will be affected by the rules of another tenure. This
will make ASB more difficult to combat and the rules divisive
in practice.
On large estates where former tenants have exercised
the right-to-buy once more it will be more difficult to enforce
ASBOs against all equally.
A number of councils have claimed that their
ASB strategy is "tenure-neutral". An ASBO can be issued
against any named individual but in practice it is easier against
social tenants (or the homeless) for the following reasons:
— the evidence needed is much easier
to gather; much of it is already available;
— the information sharing protocols
exist under the Crime and Disorder Act; and
— the issuing body (actual or associated)
is, or has close links to the landlord.
Therefore the claim that the process is tenure-neutral
is purely theoretical.
It is also disturbing that RSLs for the moment
are not covered by human rights legislation as local housing authorities
are.
RSLs are or should be categorised as public
authorities for the following reasons:
— They take part in the information
sharing protocols of CDA.
— They are successors in title in large
scale transfers of property from local authorities (LSVT).
— They administer housing benefit and
the benefit verification framework.
— They take part in s 106 agreement
in return for nomination rights.
— They sometimes administer common
registers.
The objective criteria of criminal justice are
being rapidly eroded on the basis of totally subjective interpretations
by housing officers who have no legal background. And who may
not be properly accountable in the case of RSLs.
Social sanctions which are, or ought to be,
the bedrock of any society can never be restored on this basis.
Dangers of hearsay
The contempt with which housing professionals
(and some others) view their tenants can be gauged by the following.
Hardly any professional live or want to live
in social housing even if they would qualify.
There have been demands that the rules of Data
Protection Act should be suspended for RSL and housing providers
because they are too onerous.
At least one chief executive of an RSL has demanded
the powers to evict tenants on the spot without any process.
A previous chair of the social security committee
suggested that there should be a DNA database of all housing benefit
applicants.
PROPERTY RIGHT
OR HUMAN
RIGHTS?
Property rights are a feature of this legislation
because of the powers vested in owners of certain properties,
with the fiction that these powers are held on behalf of tenants.
Part of the package of punishment is the demotion
of tenancies. This can result in a permanent demotion of aspects
of tenancy.
The equivalent in the owner-occupied sector
would be the modification or demotion of title to property.
Enthusiasts for such legislation often quote
the support they have received from tenants.
Interestingly none of the practitioners seem
to live in social housing and this has been mentioned by many
observers.
Equal opportunity is the mantra and obsession
of anti-social behaviour gurus and housing professionals.
But it is fatally undermined by their view of
their tenants and the property relations which should govern their
status.
The issue will only be clarified when there
is a successful challenge against the discriminatory nature or
application of such laws.
There are cases which will take the long winded
route to Strasbourg but they may succeed leaving ASB laws in a
much weaker state.
But such cases may not be only on the basis
of ASB legislation but also consumer protection.
Many tenancy agreements may be creating unfair
terms of trade.
They merely underline the arbitrary powers of
unaccountable and self-serving social landlords.
ASB powers are too draconian and imprecise and
this makes a successful challenge more likely. Anti-social behaviour
is a problem but the laws are unlikely to be successful in the
long run.
The ASB legislation requires fundamental rethinking
and reform. Far from being enthusiastic for more ASBOs to be issued
there should be an independent inquiry with a representative membership
into their actual operation, and to the overstated claims made
on their behalf.
19 September 2004
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