Clause 16: Parenting contracts: local authorities and registered social landlords

180.     Subsection (1) of this clause inserts two new sections (25A and 25B) in Part 3 of the Anti-social Behaviour Act 2003 so as to enable a local authority or a registered social landlord to enter into a parenting contract with a parent in respect of anti-social behaviour by his or her offspring.

New section 25A: Parenting contracts in respect of anti-social behaviour: local authorites

181.     Subsection (1) of the new section 25A sets out the circumstances in which a local authority can enter into a parenting contract with a parent of a child or young person. These are where it has reason to believe that the child or the young person has engaged, or is likely to engage, in anti-social behaviour and where the child or the young person resides, or appears to reside, in the authority's area.

182.     Subsection (2) indicates that a parenting contract is a document containing a statement by the parent that he or she agrees to comply with any requirements specified in the contract, for any period so specified, and a statement by the local authority that it agrees to provide support to the parent to help him or her comply with the requirements of the contract. Subsection (3) states that the contract may, in particular, include a requirement for the parent to attend a counselling or guidance programme.

183.     Subsection (4) states that the purpose of any requirement in a parenting contract is to prevent the child or young person from engaging in anti-social behaviour, or further such behaviour. Subsection (5) specifies that the contract must be signed by the parent and on behalf of the authority.

184.     Subsection (6) makes clear that no obligations in contract or tort are to arise from any breach of the contract.

185.     Subsection (7) requires local authorities in England, when carrying out their functions in relation to such contracts, to have regard to any guidance issued by the Secretary of State. It also requires local authorities in Wales, when carrying out their functions in relation to such contracts, to have regard to any guidance issued by the National Assembly for Wales.

New section 25B: Parenting contracts in respect of anti-social behaviour: registered social landlords

186.     Subsection (1) of the new section 25B sets out the circumstances in which a registered social landlord (an "RSL") can enter into a parenting contract with the parent of a child or a young person. These are where the RSL has reason to believe that the child or young person has engaged in anti-social behaviour, or it is likely to engage in such behaviour, and that the behaviour directly or indirectly relates to, or affects, the RSL's housing management functions or, in the case of likely behaviour, would do so.

187.     Subsection (2) indicates that a parenting contract is a document containing a statement by the parent that he or she agrees to comply with any requirements specified in the contract for any period so specified, and a statement by the RSL that it agrees to make arrangements for the provision of support to the parent to help him or her to comply with those requirements. Subsection (3) states that the contract may, in particular, include a requirement for the parent to attend a counselling or guidance programme.

188.     Subsection (4) states that the purpose of any requirement in the contract is to prevent the child or young person from engaging in anti-social behaviour, or further such behaviour. Subsection (5) specifies that the contract must be signed by the parent and on behalf of the RSL.

189.     Subsection (6) makes clear that no obligations in contract or tort are to arise from any breach of the contract.

190.     Subsection (7) requires RSLs in England, when carrying out their functions in relation to such contracts, to have regard to any guidance issued by the Secretary of State. It also requires RSLs in Wales, when carrying out their functions in relation to such contracts, to have regard to any guidance issued by the National Assembly for Wales.

191.     Subsection (2) of the clause inserts in section 29(1) of the Anti-social Behaviour Act 2003 various definitions relating to the new sections 25A and 25B, namely, the definitions of "housing accommodation", "housing management functions", "local authority", and "registered social landlord".

Clause 17: Parenting orders: local authorities and registered social landlords

192.     This clause inserts in Part 3 of the Anti-social Behaviour Act 2003 two new sections (26A and 26B), so as to enable a local authority or a registered social landlord to apply to a magistrates court for a parenting order against a parent in respect of anti-social behaviour by his or her offspring, and a new section (26C) so as to enable a local authority and a RSL to apply for such an order as an adjunct to certain proceedings in the county court.

New section 26A: Parenting orders in respect of anti-social behaviour: Local authorities

193.     Subsection (1) of the new section 26A sets out the circumstances in which a local authority can apply to a magistrates' court (or in certain circumstances a county court) for a parenting order in respect of a parent of a child or young person. These are where the authority has reason to believe that the child or young person has engaged in anti-social behaviour and where the child or young person resides, or appears to reside, in the authority's area.

194.     Subsection (2) provides that the court may make such an order if it has reason to believe that the child or young person has engaged in anti-social behaviour and that it would be in the interests of preventing him or her from engaging in further such behaviour. Subsection (3) indicates that a parenting order is an order which requires the parent to comply, for not more than twelve months, with any requirements specified in the order and, subject to subsection (4), to attend, for no more than three months, an counselling or guidance programme specified in directions given by the responsible officer.

195.     Subsection (4) indicates that a parent is not necessarily to be required to attend a counselling or guidance programme when he or she has already been subject to a parenting order.

196.     Subsections (5), (6) and (7) provides that a counselling or guidance programme which a parent is required to attend by a parenting order may be residential, only if that is likely to be more effective than a non-residential course in preventing the child or young person from engaging in further anti-social behaviour, and if any interference with family life is likely to be proportionate.

New section 26B: Parenting orders in respect of anti-social behaviour: registered social landlords

197.     Subsection (1) of the new section 26B sets out the circumstances in which a registered social landlord ("RSL") can apply for a parenting order in respect of a parent of a child or young person. These are where the RSL has reason to believe that the child or the young person has engaged in anti-social behaviour and the behaviour directly or indirectly relates to or affects the RSL's housing management functions.

198.     Subsection (2) provides that the court may make a parenting order if it is satisfied that the child or the young person has engaged in anti-social behaviour and that it would be desirable in the interests of preventing the child or young person from engaging in such behaviour.

199.     Subsection (8) requires an RSL to consult with the local authority in whose area the child or young person resides before applying for a parenting order.

New section 26C: Applications under 26A and 26B in respect of court proceedings

200.     Subsection (1) provides that where a local authority or an RSL is a party to proceedings in the county court and it considers that another party is a person in relation to whom it could be reasonable to apply for a parenting order it may make such an application to the court.

201.     Subsection (2) provides that where a local authority or an RSL is not a party to proceedings but considers that a party is a person in relation to whom it would be reasonable to make an application, it may apply to be joined to the proceedings for that purpose.

202.     Subsection (3) provides that where a local authority or an RSL is a party to proceedings, and considers that a child or young person has engaged in anti-social behaviour which is material in relation to the proceedings, the local authority or the RSL may apply for a person who is the parent of the child or the young person to be joined to enable it to apply for a parenting order in respect of that person.

203.     Subsection (4) makes it clear that a person is not to be joined under subsection (3) unless the anti-social behaviour in question is material to the proceedings.

Clause 18: Contracting out of local authority functions with regard to parenting contracts and parenting orders

204.     This clause inserts a new section 28A in Part 3 of the Anti-social Behaviour Act 2003 so as to make it possible for the Secretary of State to make an order enabling a local authority to contract out to a person specified in the order the functions of entering into parenting contracts and applying for parenting orders.

205.     Subsection (1) confers on the Secretary of State the power to make an order providing for a local authority to make arrangements with a specified person, or a person of a specified description, for the exercise of any of its functions under the new sections 25A and 26A. The power is conferred on the National Assembly for Wales to make such an order in relation to Welsh local authorities.

206.     Subsections (2) indicates that such an order may provide, first that the local authority's power to contract out is subject to any conditions specified in the order, secondly that the contracting out arrangements must be subject to such conditions as are so specified and, thirdly, that the contracting out arrangements may be subject to any other conditions which the local authority considers appropriate.

207.     Subsection (3) indicates that the order may also provide that the contracting out arrangements can authorise the exercise of the function wholly or to such an extent as may be specified, and generally or in specified cases or areas.

208.     Subsection (4) indicates that the order may provide that the person to whom the contracting out arrangements are made is to be treated as a public body for the purposes of section 1 of the Local Authorities (Goods and Services) Act 1970.

209.     Subsection (5) stipulates that the Secretary of State and the National Assembly for Wales must consult with such representatives of local government, and with such other persons, as he or it thinks appropriate.

210.     Subsection (6) provides that the contracting out arrangements under such an order are not to prevent the local authority from exercising the functions to which the arrangements relate.

211.     Subsections (7) and (8) provide that certain provisions of the Deregulation and Contracting Out Act 1994 are to apply for the purposes of arrangements made in the pursuance of an order under this clause as they apply for the purposes of an authorisation to exercise functions by virtue of the order under section 70(2) of that Act.

212.     Subsection (9) requires local authorities in England and any person to whom they contract out their functions to have regard to any guidance issued by the Secretary of State for the purposes of this clause.

213.     Subsection (10) requires local authorities in Wales and any person to whom they contract out their functions to have regard to any guidance issued by the National Assembly for Wales.

Schedule 13: Minor and consequential amendments to the Anti-social Behaviour Act 2003

214.     Paragraphs 38 and 41 of Schedule 13 make consequential amendments to the headings to existing sections of the 2003 Act so as to make it clear that those sections only deal with parenting contracts and orders entered into, and applied for, by the youth offending teams.

215.     Paragraph 40 amends section 27 of the 2003 Act, which deals with matters supplementary to the application for, and the granting of, parenting orders. Matters falling within section 27 are as follows:

• the court must consider any refusal to enter, or any failure to comply with, a parenting contract when considering making an order;

• when the child or young person is under 16 the court must, before making the order, consider the likely effect of an order on his family circumstances;

• the court is required to explain to the parent the effect of the order and the consequences of breaching it;

• as far as practical, the requirements in the order and directions given under it should not conflict with a parent's religious beliefs or interfere with a parent's work or education;

• the court may discharge or vary the order; and

• parents convicted of failing to comply with requirements in or directions given under an order are liable to a fine not exceeding level 3 on the standard scale.

216.     Sub-paragraph (5) of paragraph 40 inserts, after subsection (3) of section 27 of the 2003 Act, provisions for proceedings for breach of a parenting order (26A) to be brought by the local authority for the area where the child or young person resides or appears to reside or (if different) the area where the person alleged to be in breach resides or appears to reside.

217.     Sub-paragraph (6) adds local authorities and RSLs in England to the list of agencies that must have regard to any guidance issued by the Secretary of State from time to time for the purposes of carrying out their functions in relation to parenting orders. It also adds local authorities and RSLs in Wales to the list of agencies that must have regard to any guidance issued by the National Assembly for Wales from time to time for the purposes of carrying out their functions in relation to parenting orders.

218.     Paragraph 41 amends the appeal provisions in section 28 of the 2003 Act so that they apply for the purposes of appeals against parenting orders under new sections 26A and 26B and adds a right of appeal to the High Court against a parenting order made in the county court (26C).

219.     Paragraph 42 amends the definition of responsible officer in section 29(1) of the Anti-social Behaviour Act 2003 so that, in relation to a parenting order made under the new section 26A it means an officer or other representative of the local authority specified in the order, or in relation to an order under the new 26B it means an officer or other representative of a RSL specified in the order.

Clause 19: Anti-social behaviour injunctions

220.     Clause 19 replaces the existing section 153A of the Housing Act 1996, which extended the powers of certain social landlords to apply for injunctions to prohibit anti-social behaviour and allowed social landlords to obtain injunctions against a wide range of persons, not just residents, in order to protect other residents, visitors and their own staff. It also applied to situations where the conduct in question was capable of causing nuisance or annoyance (even if a complaint had not been received), but which directly or indirectly affected the landlord's management of its housing stock.

221.     The clause re-enacts section 153A of the Housing Act 1996 with modifications. In particular, subsection (4) of the new section makes it clear that the conduct prohibited by an anti-social behaviour injunction need not be described by reference to a particular named individual. The prohibited conduct may be described by reference to persons generally, to persons of a specified description or to specified persons. Or it might not be described by reference to persons at all. The new definition of anti-social conduct in subsection (1) also makes it clear that the conduct prohibited by an anti-social behaviour injunction need not be conduct that would cause, or be capable of causing, nuisance or annoyance to a particular identified person. Conduct may be prohibited by an anti-social behaviour injunction if it is capable of causing nuisance or annoyance to "some person".

Clause 20 and Schedule 7: Injunctions in local authority proceedings: power to remand

222.     Under section 222 of the Local Government Act 1972, a local authority may in certain cases apply to the High Court or a county court for an injunction to stop anti-social behaviour.

223.     Section 91 of the Anti-social Behaviour Act 2003 provides that, where such an injunction is granted, the court may attach a power of arrest to the injunction in certain cases, namely where the conduct in question consists of or includes the use of violence, or there is a significant risk of harm. That means that a person who is suspected of breaching the conditions of an injunction can be arrested.

224.     However, that section makes no provision for what happens when a person is arrested. That means that a person arrested has to be released on bail pending a court hearing. That causes problems because the person who has been arrested or the victim(s) of the anti social behaviour may believe that the matter will not be taken seriously or dealt with swiftly. Giving the court the power to remand a person in custody provides a remedy where it is considered that there is likely to be a repeat of the breach of the injunction and indicates the seriousness with which such a breach is regarded.

225.     The clause 20 is designed to allow for the possibility that the person arrested should, if the court thinks fit, be remanded in custody pending trial.

226.     Clause 20 therefore replaces section 91 of the 2003 Act with new provision. The power to attach a power of arrest to the injunction remains as it was (subsections (2) and (3)). But the clause and Schedule 7 go on to make new provision about what happens thereafter. Section 91 is repealed (see the repeals Schedule).

227.     In essence, where a power of arrest is attached to an injunction, if the person against whom the injunction is taken out is suspected of breaching it, he may be arrested by a constable without warrant (subsection (4)). The constable must inform the local authority forthwith (subsection (5)).

228.     The person arrested must then be brought before the court within 24 hours (subsection (6)). If the court does not deal with him immediately, it must remand him either on bail, or in custody, in accordance with the remaining provisions of the section and the provisions of Schedule 7.

229.     Those provisions closely follow sections 155 and 156 of, and Schedule 15 to, the Housing Act 1996 (which deal with the arrest of a person suspected of breaching an injunction under section 153C or 153D of that Act). There are similar provisions in sections 47 and 48 of, and Schedule 5 to, the Family Law Reform Act 1996.

230.     On the whole the provisions speak for themselves. But it is worth noting (paragraph 4(1) of the Schedule) that a person may not be remanded in custody or on bail for a period of more than eight days at a time, except with the consent of all parties in a case where the person arrested is remanded on bail, or where the case is adjourned to allow for a medical examination.

231.     A person remanded in custody for a period not exceeding three days may be remanded to police custody (paragraph 4(2) of the Schedule).

Part 4: Her Majesty's Chief Inspector for Justice, Community Safety and Custody

Clause 21: Appointment of Chief Inspector

232.     This clause makes provision for the establishment of a Chief Inspector for Justice, Community Safety and Custody to be appointed by the Queen.

Clause 22: General duty of the Chief Inspector

233.     The purpose of this clause is to give effect to a switch in emphasis in the way in which inspection is currently operated. In contrast to inspection of a defined list of institutions the Chief Inspector will be under a duty to inspect the carrying out of certain broadly defined systems. That should ensure that in future the Chief Inspector is able to inspect across organisational boundaries; to conduct process-focused, as opposed to institution-focused, inspections where appropriate; and thus to achieve the aim of reporting on the functioning of the justice system as a whole.

234.     This clause sets out the general duty of the Chief Inspector to carry out inspections and report to the criminal justice ministers (the Secretary of State, the Lord Chancellor and the Attorney General) on the courts system and the criminal justice system in England and Wales and the immigration enforcement system in the UK as a whole.

235.     Subsection (2) defines "the courts system" by reference to the business of the Crown, county and magistrates' courts and the services provided for those courts, so including courts that administer both civil and criminal justice. This replicates the remit of Her Majesty's Inspectorate of Courts Administration found in the Courts Act 2003. It does not include the High Court, the Court of Appeal or the judicial functions of the House of Lords. It includes an order making power to enable Ministers to add or remove a court from the definition of "the courts system".

236.     Subsection (3) provides that the "the criminal justice system" includes policing, the prevention of crime and disorder, criminal proceedings, the forfeiture of proceeds of crime, functions of the Director of Public Prosecutions, support for

victims and witnesses, and the treatment and management of persons charged with and convicted of offences.

237.     Subsection (4) defines "the immigration enforcement system" by reference to certain functions of immigration officers. These are coercive functions that might be considered similar to the functions of the police and so it is considered should be subject to inspection.

238.     Subsection (5) makes clear that subject to the specified provisions it is the Chief Inspector who is responsible for deciding the particular matters into which inspections are to be carried out. There is no obligation on him to conduct separate inspections of each institution involved in these three systems. Neither is he limited to inspecting each aspect of each system separately. Rather, he will be permitted to undertake cross-cutting or thematic inspections across institutional boundaries.

239.     Subsection (6)(a) limits inspection to public authorities and bodies carrying out functions on behalf of or by arrangement with a public authority.

240.     Subsection (6)(b) excludes inspection of persons making judicial decisions or exercising any judicial discretion, reflecting a current limitation on courts inspection. Such an exclusion currently applies to Her Majesty's Inspectorate of Courts Administration.

241.     Subsection (6)(c) provides that this clause does not give the Chief Inspector the power to do anything he is already required to do under any other legislation. For example, the Chief Inspector will continue Her Majesty's Inspector of Constabulary's role in inspecting the Serious Organised Crime Agency under the Serious Organised Crime and Police Act 2005. This subsection ensures that that type of inspection remains separate from inspection under this clause.

242.     Subsection (7) provides that the Chief Inspector shall not carry out inspections under this clause into matters that are already adequately inspected by any other person or body.

243.     Subsection (8) gives power to Ministers to specify by order functions, organisations, and matters that are not to be inspected by the Chief Inspector.

Clause 23: Duties of Chief Inspector with regard to prisons etc

244.     The general duty provided for in clause 22 reflects the change in emphasis from institutionally-focused to process-focused inspection. The general duty reflects the need to inspect and report on the functioning of the justice system as a whole, for example, how certain types of offenders are treated throughout the criminal justice system. Such a duty can be contrasted with a specific duty to inspect prisons and similar institutions and the treatment and conditions of those in custody. This requires

a more objective assessment of how prisoners are treated and what their conditions are like. The purpose of this clause is to recognise and make provision for this direct duty.

245.     Subsection (1) provides that the Chief Inspector has a duty to inspect and report to responsible ministers on prisons in England and Wales and that in particular he must report to responsible ministers on the treatment of prisoners and the conditions in prisons. This duty follows closely that in section 5A of the Prisons Act 1952 under which Her Majesty's Chief Inspector of Prisons currently inspects prisons.

246.     Subsection (2) provides that this duty shall also apply to young offender institutions in England and Wales, custody areas at Crown courts, county courts and magistrates' courts in England and Wales and custody areas at police stations. Subsection (3) provides that the duty also applies to prison escort arrangements, subsection (4) applies the duty to immigration removal centres and short-term holding facilities (whether in England and Wales or elsewhere in the United Kingdom) and subsection (5) applies the duty to immigration escort arrangements (whether carried out in England or Wales or elsewhere in the United Kingdom).

247.     Subsection (7) excludes from inspection under this clause the inspection of decisions taken by District Judges in prison disciplinary hearings. District judges deal with the more serious disciplinary hearings in prisons, with less serious matters being dealt with by prison governors.

248.     Subsection (8) enables ministers by order to add or take away a specified category of detention or institution from those that are required to be inspected under this clause, but subsection (9) makes clear that such an order may not be used to limit the inspection of prisons, young offender institutions or removal centres or to apply the clause to any place that it is within the competence of the Scottish Parliament to legislate for the inspection of.