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Draft Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007

The Committee consisted of the following Members:

Chairman: Dr. William McCrea
Bottomley, Peter (Worthing, West) (Con)
Brake, Tom (Carshalton and Wallington) (LD)
Burrowes, Mr. David (Enfield, Southgate) (Con)
Cohen, Harry (Leyton and Wanstead) (Lab)
Crausby, Mr. David (Bolton, North-East) (Lab)
Fabricant, Michael (Lichfield) (Con)
Follett, Barbara (Stevenage) (Lab)
George, Mr. Bruce (Walsall, South) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
Munn, Meg (Parliamentary Under-Secretary of State for Communities and Local Government)
Murphy, Mr. Denis (Wansbeck) (Lab)
Robinson, Mr. Geoffrey (Coventry, North-West) (Lab)
Shaw, Jonathan (Chatham and Aylesford) (Lab)
Syms, Mr. Robert (Poole) (Con)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Keith Neary, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Brown, Lyn (West Ham) (Lab)

Second Delegated Legislation Committee

Wednesday 7 February 2007

[Dr. William McCrea in the Chair]

Draft Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007

2.30 pm
The Parliamentary Under-Secretary of State for Communities and Local Government (Meg Munn): I beg to move,
That the Committee has considered the draft Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007.
The order was laid before the House on9 January 2007. In summary, they enable local authorities, when they so wish, to enter into arrangements with organisations that manage their housing stock so that those organisations may exercise some or all of the local authorities’ functions for seeking antisocial behaviour orders.
The Serious Organised Crime and Police Act 2005 gives the Secretary of State the power to make an order specifying a body or type of body to which local authorities may contract out all or part of their antisocial behaviour order functions. The Act amended section 1 of the Crime and Disorder Act 1998 by inserting new section 1F. Section 1 gives powers to a relevant authority to apply for an antisocial behaviour order in respect of any person aged over 10.
Contracting out, which is often referred to as “delegation”, means that all the local authority’s decisions relating to the discharge of a function are put into the hands of another person who then becomes the authorised decision maker responsible for the discharge of that function on behalf of the local authority. We issued a consultation paper entitled “Enabling local authorities to contract their Anti-social Behaviour Order functions to organisations managing their housing stock” in November 2005, which forms the basis of the statutory instrument that we are discussing today. There are areas where we have advanced policy in the light of constructive comments from stakeholders, but overall the consultation provides a clear mandate for pursuing our proposal as put forward in that consultation.
Agencies provided with the power to seek antisocial behaviour orders through the courts are restricted to those listed as “relevant authorities” under the 1998 Act, including the police, local authorities, registered social landlords, transport police and county councils. At present, local authorities may not contract out their power to apply for an antisocial behaviour order to other bodies. We believe that enabling them to do so in the context of social housing will provide a number of advantages when the local authority has delegated the delivery of front-line services to other bodies.
Many local authorities in England have delegated operational functions to other organisations that manage some or all of the housing stock on their behalf, notably arm’s length management organisations and tenant management organisations. At the moment, each time an organisation, such as an arm’s length management organisation, wishes to seek an antisocial behaviour order to protect the community, it must approach its parent local authority, which can lead to delays and unnecessary red tape. A rapid response is often critical in building and maintaining public confidence in agencies’ ability and readiness to act to stop antisocial behaviour. It is critical that residents have faith in those who manage their housing and are reassured that they are suitably equipped to do the job.
Officers working for an arm’s length management organisation or tenant management organisation will, more often than not, be leading on handling complaints and pursuing cases. They will be responsible for gathering evidence and making decisions on how best to act. We therefore see no reason why they should not be empowered, when the local authority sees fit, to carry that process through to resolution by pursuing antisocial behaviour order applications through the courts. It is important to note that many housing management organisations already pursue applications for other forms of action through the courts to tackle antisocial behaviour, including possession cases and injunctions. That demands much the same level of judgment, capacity and expertise as antisocial behaviour organisation applications—that should be antisocial behaviour order applications.
Michael Fabricant (Lichfield) (Con): We did know. We had noted.
Meg Munn: Antisocial behaviour orders are powerful measures, and our primary concern is to ensure that they are used appropriately and only when they provide the best solution to protect the community from antisocial behaviour. We recognise that local flexibility must be coupled with proper accountability. We are conscious of the critical importance of making sure that those entrusted with the powers should be capable of exercising them responsibly, which is why we have made the explicit link with section 27 of the Housing Act 1985, which provides the statutory process for delegating housing management functions. The effect of section 27 is to regulate the process whereby the local authority appoints another housing body to manage council homes. That process is designed primarily to protect tenants’ interests, and it ensures that housing management responsibilities may be delegated only to those with appropriate skills and resources.
We believe that the requirement under section 27 to have in place a robust management agreement between the local authority and housing management organisation will ensure robust governance and accountability, and provides a framework for ongoing performance management. It is important to make it clear that local authorities will remain fully accountable for the way in which those contracted-out responsibilities are exercised. We will issue statutory guidance on the contracting out of antisocial behaviour order functions to which local authorities and any organisations to which they contract out must have regard. In preparing that guidance, we will take full account of issues raised in the consultation and, of course, points that are raised in the debate.
The regulations will, for the first time, give tenant management organisations the power to apply for antisocial behaviour orders where appropriate in the local context. The Prime Minister and the Secretary of State for Communities and Local Government focused on that matter in their announcements on 9 January. I am pleased to say that, thus far, the response has been positive. Some concerns have been raised as to whether, by providing antisocial behaviour order powers, we would provoke unchecked vigilante action in which neighbours pursue vendettas against one another through antisocial behaviour order applications. I am pleased to say that those concerns are unfounded and betray a lack of awareness about the way in which tenant management organisations are establishedand how they operate. Many tenant management organisations already have responsibility for the day-to-day running of the homes in their area and deliver excellent services. They may only take on these responsibilities after a rigorous process of training and accreditation and must secure the community’s support for taking on management functions. Many employ dedicated staff and manage large estates.
We are not talking about giving powers to residents associations that have informal constitutions; weare giving them to highly professional organisationswith established track records, subject to robust accreditation and ongoing monitoring. In addition, the courts will be the final arbitrators. They will only grant an antisocial behaviour order when a case is held to be valid on its individual merits. Naturally, it may not be appropriate to contract out antisocial behaviour order functions to smaller tenant management organisations, if, for example, there is a need to protect tenant managers from reprisals. We fully acknowledge that issue, as do local authorities and the tenant management organisation sector. Providing additional powers to tenant management organisations, where appropriate, will give local residents a greater say in the way in which their estates are run, and it will support them in ensuring that disruptive, antisocial behaviour is dealt with swiftly and effectively.
The regulations give local authorities the flexibility to make local decisions about the way in which antisocial behaviour is tackled, enabling them to respond to changes in the way in which their communities are served. They will assist in delivering more effective and efficient working practices, and will further equip those on the front line so that they are better able to tackle antisocial behaviour. The regulation themselves are relatively simple, and have been drafted to provide the local authority with the maximum flexibility to ensure that any arrangements they may wish to enter into are tailored to fit the local context. The local authority retains full discretion as to whether or not it wishes to make use of these provisions. It may enter into contracting-out arrangements with one or more housing management organisations with which it holds management agreements. An authority will retain the power to discharge its antisocial behaviour order functions in its own right, regardless of whether or not it has also entered into a contracting-out arrangement.
The order allows authorities full flexibility to restrict the circumstances in which the specified organisations can discharge the contracted-out functions if they so wish. It allows a local authority to attach other conditions if it considers it appropriate to do so. The regulations include a duty on the part of the organisation to which the local authority contracts out, to consult with the parent local authority. A number of responses to the consultation urged us to make that explicit in the interests of supporting multi-agency working and the exchange of pertinent information. The regulations expressly confirm that, through the contracting power, housing management bodies, to which antisocial behaviour order functions are contracted out, are provided with full rights of audience to take cases through the magistrates court. That is essential to enable them to lead on applications from the outset to conclusion. The majority of antisocial behaviour order applications are made in magistrates courts, although they are dealt with in the civil system, too, alongside other applications.
My Department, the Home Office and the Department for Constitutional Affairs are working together on new proposals to provide housing officers in both arm’s length management and tenant management organisations with rights of audience in the civil court. If introduced, that proposal will, in due course, allow those officers to pursue antisocial behaviour order applications in the civil courts. At the moment, that is subject to judicial discretion. In many situations, the officers in arm’s length management and tenant management organisations are well practised in taking cases to court. Nevertheless, we will make it clear in guidance that local authorities need to work closely with housing management bodies to ensure that those responsible for taking cases to court are fully equipped to do so. In more complex cases, it is likely that housing management organisations will continue to work closely with the local authority legal team or will commission specialist legal support.
Given the prominence of antisocial behaviour orders, I am sure that Members are broadly familiar with their purpose and operation. In a nutshell, antisocial behaviour orders are civil orders that can be made against anyone aged 10 or above. They aim to protect the community from further abuse by the perpetrators of antisocial behaviour, and they remain popular with practitioners and the public as part of the broader range of measures that are available for solving community safety problems. I commend the order to the Committee.
2.41 pm
Mr. Robert Syms (Poole) (Con): It is a pleasure to serve on a Committee that you chair, Dr. McCrea.
I thank the Minister for her explanation of the regulations, as she answered nearly every question that I wished to ask. The official Opposition support the measures, as there has been a big change in housing over the past few years, particularly given the growthof ALMOs. The order therefore makes sense: those organisations deal with tenants and collect information, so they have the first-hand knowledge that will enable them to use the powers. The same applies to responsible tenant management organisations. I am glad, too, that further consultations are under way as to whether such organisations should be represented in the courts, as that is very sensible indeed. As Members of Parliament, we know the misery that antisocial behaviour causes to some of our constituents. Anything that makes the remedy more efficient is to be welcomed, and I fully support what the Minister said.
2.42 pm
Tom Brake (Carshalton and Wallington) (LD): It is a pleasure to see you in the Chair today, Dr. McCrea.
I thank the Minister for her explanation. The draft statutory instrument is not controversial, and I am happy to put on record once again the fact that Liberal Democrats do not have an issue with ASBOs. Despite the Prime Minister’s repeated attempts to portray my party as anti-ASBO, we think that the proposals are very sensible.
Local authorities have expressed concern that they should still be engaged in the process, and do not think that ALMOs should be allowed to pursue matters without a link to them, so the fact that that link is in place is important. Will the Minister to confirm that the requirement for
“the housing manager to consult the local authority”
before exercising any delegated functions applies on each and every occasion, and that it is not the case that, following, an initial consultation, there is no such requirement thereafter. The Minister helpfully outlined the role of the civil courts, but the right of audience is not addressed by the draft statutory instrument. When does she expect that matter to be resolved, and inwhich Bill does she expect any amendment to the arrangements to appear? In the interim, it is my understanding that one cannot initiate an ASBO in a civil court alone and that the criminal court must be involved. Does that mean that in practice, all ASBOs that go through both criminal and civil courts will not be able to make any progress until the issue of rights of audience in civil courts is resolved by a Bill that will, as I understand it, be introduced in the House soon?
2.44 pm
Peter Bottomley (Worthing, West) (Con): I thank the Minister for her introduction. I welcome the order.
I have one question about article 3(2)(b) on page 2. The Minister explained about the consultation of the local authority, but article 3(2)(b) states:
“Arrangements made by the local authority with the housing manager—
(b) may include such other conditions as the local authority considers appropriate.
I am not a lawyer or a parliamentary draftsman, so does that mean that a local authority can say that it wants a condition attached and an ALMO can say, “Thanks for telling us your view, but I am not going to do it”, or is it a requirement? It may be possible either today or tomorrow to explain what those words precisely mean. It would be nice to know whetherthe measure is designed to give an arm’s length management organisation discretion as to whether to accept the condition. It would be useful if the Minister could spell out whether article 3(2)(b) means that if an ALMO does not have the discretion, the local authority condition must be applied.
Let me proceed to far less important matters. One is that I greatly welcome the use of plain language, and both the order and the arm’s length management organisation are good exponents of it. The explanatory notes are useful—there is no doubt about what they are saying and they are well expressed.
It is a matter for the pricing authority rather than the Minister, but I question why an order that is contained on one sheet of A3 is priced at £3. Is that market pricing that has been set to maximise revenue, or is it designed to cover costs? I am sure that the answer is probably that The Stationery Office determines it, based on general pricing principles. However, those who might wish to pass on my comments could say that I have mentioned the point in this Committee, and it would be useful if people could try to ensure that pricing is proportionate. I am aware that most people will obtain the order from a website for free, but one ought occasionally to question the philosophy behind pricing, and its practical impact.
Let me proceed to the most trivial matters. I donot think that proof-reading is the most important thing that should happen when an explanatory memorandum comes before the Committee. To show how trivial it is possible to be, however, there is a typo in paragraph 7.2 of the memorandum, where an extra full stop has appeared. I know that we have loosened up, but two infinitives have been split in the same paragraph—paragraph 7.3—which strikes me as unnecessary. I looked for the “nevertheless” that often seems to emerge from the civil service word factory, and could not find it, but I found an unnecessary “however” in paragraph 7.8. There is also a superfluous clichA(c) in paragraph 7.4—“to this end”. Having saidall that, I shall repeat the compliment that the memorandum is well written and clearly expressed. It is only on article 3(2)(b) that I have concerns about lack of clarity.
2.48 pm
Meg Munn: It is nice to be in such a good-humoured Committee. My private office can confirm to the hon. Member for Worthing, West that I, too, am a stickler for plain English. I regularly send back documents that are unclear, and I steered clear of acronyms in my speech, even though that meant some stumbling over words. I share the hon. Gentleman’s concerns and I am delighted that he has given such close attention to the drafting of the explanatory memorandum. I am sure that we shall try to put such errors right in future, although I probably do not quite share his aversion to split infinitives. My linguistics degree focused very much on the spoken word and on the way in which things are done in practice, rather than on strict rules.
I digress, but that has given my officials the time to pass the relevant notes to me. Let me return to the hon. Gentleman’s important points. Article 3(2)(b) concerns a management agreement that will specify the terms between the two parties. It is the local authority that has discretion to specify the conditions with which the arm’s length management organisation will be expected to comply. I hope that that clarifies the position.
On rights of audience, I would love to be able to oblige the hon. Gentleman and tell him the details, but I do not know when that matter will be resolved. However, I can assure him and other members of the Committee that we are working hard on it and will be looking for an opportunity to resolve it.
Michael Fabricant: What about pricing?
Meg Munn: I will come to that and we shall look to resolve it as soon as possible.
Tom Brake: Before the Minister moves on—this might be obvious—will she clarify whether similar sorts of issues regarding rights of audience will apply to registered social landlords and their problems in progressing ASBO-related matters?
Meg Munn: My understanding, if I remember from my briefing and from what I said earlier, is that they have rights of audience, so it will not be an issue for them. Audience in civil matters remains at the discretion of the judiciary. I am informed that in many situations, rights of audience have been given. However, there are concerns that that has not always been the case, which is why the Government wish to put the issue beyond doubt by clarifying it in forthcoming legislation. I think that I have answered the hon. Gentleman’s questions.
The final issue, on which the hon. Member for Lichfield pre-empted me, was the cost of the order. Despite my general attention to efficiency and ensuring that the Government are not profligate with their resources, I am afraid that I am unable to answer that at the moment. However, I am sure that the issue will be fed back, and perhaps on another occasion another Minister might be able to respond to the concerns of the hon. Member for Worthing, West. We produced a brief order, but as the hon. Gentleman may well know, being brief sometimes takes longer than writing at great length. Maybe the price reflects that cost, but I do not have that information to hand.
This is the first time that we have sought to use the order-making power in the Serious Organised Crime and Police Act 2005, and we believe that there is clear justification for using it now to ensure that we minimise operational constraints on tackling antisocial behaviour effectively. We intend to monitor the impact of contracting-out, including through continued work with stakeholders.
Question put and agreed to.
That the Committee has considered the draft Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) 2007.
Committee rose at seven minutes to Three o’clock.

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