Joint Committee On Human Rights Thirteenth Report

2. Letter and memorandum from Rt Hon David Blunkett MP, Home Secretary, to the Chairman

Thank you for your letter of 23 May regarding the Anti-social behaviour Bill.

I believe that where the Convention rights are engaged the proposals in the Bill are a balanced and proportionate response to a pressing social need. All of the powers in the Bill are capable of being exercised in a way that is compatible with human rights in a broad sense and the balance struck between competing rights and responsibilities can be objectively justified.

I am attaching at annex A detailed responses to your questions. Also at annex B we have noted the representations we have received in connection to this Bill in relation to human rights, and provided a Government response to the issues raised.

2 June 2003



This memorandum is submitted by the Home Office in response to the request for comments on the Anti-social Behaviour Bill in a letter from the Chair to the Joint Committee on Human Rights to the Home Secretary of 23 May 2003.

The Home Secretary has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that in his view, the provisions of the Bill are compatible with the Convention rights. He believes that, where the Convention rights are engaged, the proposals are a balanced and proportionate response to a pressing social need and that the judgements he has made about the balance to be struck between competing rights and responsibilities can be objectively justified.

Many of the provisions in the Bill confer discretionary powers on public authorities. In the Government's view, all these powers are capable of being exercised in a way which is compatible with the Convention. Those on whom the powers are conferred will be obliged in accordance with section 6 of the Human Rights act to exercise them in a way that is compatible with the Convention rights.

This memorandum is in response to the specific questions on the Bill raised by the Committee.


1.  What protection would be available for the rights, under ICESCR Article 11, of innocent parties, including children, who are excluded from their homes as a result of other people's misconduct?

Residents in premises which are the subject of a closure notice are entitled to remain there until a closure order is made by the court. The court may only make an order where it is satisfied that the premises have been used for unlawful drug use associated with disorder or serious nuisance to members of the public and that an order is necessary to prevent future disorder or nuisance. Residents will be served with notice of the hearing and will be entitled to put their case to the court. In shared accommodation, the order can relate to part only of the premises. The court can also order access to any parts of the premises.

The details of persons and organisations that can provide housing and legal advice will be contained in the closure notice. The notice will where possible be served on residents in person. Copies will also be fixed in prominent places on the premises and in entrances to and exits from the building.

The homelessness legislation (Part 7 of the Housing Act 1996 as amended by the Homelessness Act 2002) places a general duty on housing authorities to ensure that advice and information about homelessness, and preventing homelessness, is available to everyone in their district free of charge. This would include people made homeless as a result of a closure order. The legislation also requires authorities to assist individuals and families who are homeless and apply for help. However, the duty owed to individual applicants will depend on their circumstances.

In practice, this means that housing authorities must ensure that suitable accommodation is available for people who they are satisfied meet all of the following criteria:

—  eligible for assistance (certain persons from abroad are ineligible for any assistance except general advice);

—  unintentionally homeless (where the applicant has not brought homelessness on him/her self through their own actions); and

—  have a priority need for accommodation.

The priority need groups are set out in the legislation. Broadly speaking they include households with children or a pregnant woman; people who are vulnerable in some way (eg. due to old age, a disability or mental health problems); homeless 16 and 17 year olds; care leavers aged 18-20; people vulnerable because of time spent in care, armed forces or custody, and people vulnerable as a result of fleeing their home because of violence.

If people are homeless but do not have priority need or if they have brought homelessness on themselves, the housing authority must ensure they get advice and assistance to help them find accommodation for themselves—but they do not have to ensure that accommodation becomes available for them. Therefore, not all people made homeless as a result of closure of a crack house will necessarily be provided with alternative accommodation by the local housing authority although, as a minimum, they will all be entitled to housing advice—whether they are an innocent party or not.

Where a housing authority are dealing with a family with a child under 18 who they think may be ineligible for assistance or may be found to be homeless intentionally, they must make Social services aware of the case. If social services decide that the child's needs would best be met by helping the family to obtain accommodation, they can ask the housing authority for reasonable assistance in this, and the housing authority must respond.

Under the Children Act 1989 ("the Children Act"), social service authorities have a duty to safeguard and promote the welfare of children within their area who are in need. This could include the children of persons who are ineligible for assistance under the homelessness legislation or who are found to have made themselves intentionally homeless. It is for the local authority to assess the needs of the children and they have the power to provide accommodation and other appropriate support for the children and their families where they consider this is in the child's best interests. This support can in exceptional circumstances include money to provide essential items of food, clothing and furniture.


2.  Has the Government considered conferring power on the local authority or some other body to take action, similar to that envisaged under Part 2 of the Bill, against troublesome private-sector tenants whose behaviour is affecting residents' rights to private and family life and the home?

The powers in Part 2 of the Anti-social Behaviour Bill are intended to amend existing legislation dealing with social housing. The powers have been drafted to allow local authority landlords, Housing Action Trusts and registered social landlords the same powers as far as it is possible. However not all the powers under Part 2 are limited to taking action against tenants.

For example clause 13 introduces new provisions in relation to injunctions. As long as there is a link to the housing management function of the social landlord an injunction may be granted against anyone to protect the following groups of people against anti-social behaviour, regardless of the perpetrator's tenure:

1.  a person residing in housing accommodation owned or managed by the relevant landlord

2.  a person visiting the housing accommodation or otherwise engaged in lawful activity in or in the locality of the housing accommodation

3.  a person employed by the relevant landlord wholly or partly in connection with his housing management functions.

Therefore the committee's concerns are in part met through the existing provision.

However, the provisions do not allow social landlords to take action where there is no link at all to their housing management functions; it would not be reasonable for social landlords (in their landlord capacity) to seek to control behaviour in these circumstances.

There are no current plans to extend these social housing related powers to other bodies. However, a range of other tenure-neutral tools, for example, anti-social behaviour orders under Section 1 of the Crime and Disorder Act 1998 or injunctions under Section 222 of the Local Government Act 1972, exist to deal with anti-social behaviour where there is no link to social housing. Provisions on the selective licensing of private landlords, which appear in the draft Housing Bill, will also help to address anti-social behaviour in the private rented sector.

The Draft Housing Bill contains measures to allow local authorities, with the approval of the Secretary of State, to designate areas for the selective licensing of private sector landlords. The measures are aimed at improving management standards in the private sector, including a requirement that those engaged in the management of properties should be fit and proper. These measures, while not targeted at antisocial behaviour alone will allow a local authority to license landlords in low demand areas. In addition, there will be proposals in the Housing Bill for the Secretary of State to designate the extension of these powers by regulation to enable local authorities in other areas with specific problems to apply to license private sector landlords within a specific locality.


3.  Parenting contracts

The Government does not accept that parenting contracts constitute an interference with ECHR Article 8.1 rights. There is no compulsion to enter into such a contract and there are no direct penalties for breach. Failure to sign a parenting contract, or breach of the same, will not necessarily lead to an application for a parenting order. Furthermore, a local education authority or youth offending team can apply for a parenting order regardless of whether they have previously engaged or attempted to engage the parent in a parenting contract. Applications for parenting orders will be heard by the Magistrates Court with a right of appeal to the Crown Court.

If the provisions are within the ambit of Article 8, the Government considers that any interference is justifiable within the meaning of Article 8.2 Answers to the Committee's specific questions on this area are set out below.

(a)  which legitimate aim or aims under Article 8.2 is or are thought to be advanced by the provisions of Part 3 of the Bill;

Parenting contracts and orders will advance the prevention of disorder and crime, and the protection of rights and freedoms of others. Depending on the circumstances, they may also advance the protection of the health or morals of the children concerned. The essence of the measures is to help parents so that they can assume, or improve the extent to which they have assumed, the responsibilities expected of them as parents. Evidence shows that parents have a significant role to play in helping their children move away from crime and anti-social behaviour.

The Youth Justice Board (2002) has found that those who truant or are excluded from school are twice as likely to offend as those who regularly attend. Furthermore, truancy, exclusion & bad behaviour impinge on the ability of teachers to teach and other pupils to learn. By reducing the level of offending, and improving behaviour and attendance at school the rights and freedoms of others are protected.

(b)  why is there a pressing social need to take the legislative steps proposed; and

Juvenile crime and anti-social behaviour represent pressing social needs involving harm to victims, communities and young people themselves. Truancy and exclusion from school cause significant difficulty for the pupil in question—at a time where nearly half of all children are achieving five or more good GCSE's, only 8% of persistent truants achieve this standard and around a third achieve no passes at all. Disruptive behaviour and unauthorised absence can have a detrimental impact on other pupils and teachers.

Studies show that early intervention, particularly family based interventions, are more effective at preventing offending. The recent Policy Research Bureau evaluation of the Youth Justice Board parenting programmes (September 2002) has recommended that these be made available at an earlier stage. The introduction of parenting programmes under parenting contracts will give scope for parenting support to be used as part of an early intervention mechanism, allowing interventions to be made before the child's behaviour becomes entrenched. Parenting support has been shown to benefit both the child and the parent.

(c)  why would the provisions be proportionate to the need that has been identified?

Parenting contracts are voluntarily entered into and, like parenting orders, are preventative, designed to help parents improve their effectiveness in parenting their children, move children away from crime and anti-social behaviour and to focus on what needs to be done to improve their child's attendance or behaviour at school. If the parent refuses this support or fails to keep their side of the contract then this is relevant evidence for the court to hear in considering whether to make a parenting order.

Any interference in family life is very limited when balanced against the important objectives of preventing youth crime, truancy and misbehaviour at school. There is compelling evidence that parenting orders achieve results. The Policy Research Bureau evaluation found that 9 out of 10 parents would recommend the support to a friend, and parenting orders contributed to a 50% reduction in reconviction rates of the children of parents on a parenting order. Applying voluntary intervention at an earlier stage in the child's offending career by means of parenting contracts should support further reduction in re-offending.


4.  In the view of the Government

(a)  what do the proposed measures add to existing powers?

The Government believes that the proposed measures add to existing powers by giving the police powers to disperse groups of people who, by their behaviour or presence, may cause intimidation, harassment, alarm or distress to others. They are not dependent on the commission of criminal offences by any of the individuals on the group or the apprehension of an imminent breach of the peace. They will enable potentially threatening situations in public places to be defused.

(b)  what evidence there is for the proposition that there is a pressing social need to provide for such additional powers, and to provide for them to be exercisable by community support officers as well as by constables?

There is evidence that communities around the country are concerned about groups congregating and causing intimidation, harassment, alarm or distress to others. For example, in 2000, 32% of respondents to the British Crime survey cited teenagers hanging around in the street as a very or fairly big problem in their area. The powers will only be available within designated areas where anti-social behaviour is a significant and persistent problem and where there is a history of members of the public being intimidated, harassed, alarmed or distressed by groups of people.

The Government believes that it is important that Community Support Officers (CSOs) have the same powers as their police officer colleagues to disperse groups and to take home children under 16.

One of the main roles of CSOs is to provide visible community patrols. They will often be the first to the scene of anti-social behaviour. We have already given CSOs several powers to deal with anti-social behaviour, and given their role in our communities, we believe they should also potentially have these powers. CSOs are police employees under the direction and control of chief officers.

5.  What use has been made of the power under the Crime and Disorder Act 1998 as amended by the 2001 Act?

There have no applications for local child curfew schemes under the Crime and Disorder Act 1998 as amended by the 2001 Act.

6.  What pressing social need is thought to be served by the extensions provided for in Part 4 of the Bill?

Certain locations in some of our communities have become well-known "trouble spots." This may be because children and young people congregate there to indulge in drug-taking or alcohol consumption. It may be because they have become prime sites for fighting or for prostitution. These places present dangers for children.

7.  How will the new powers provide worthwhile additional ways of addressing the pressing social need?

The Government believes that a the use of these powers to take children home in areas where anti-social behaviour is a persistent and significant problem is a proportionate and flexible tool which the police, in consultation with the local authority, may use where necessary to tackle such trouble spots. It will protect children and young people from the risks of being out late at night, including becoming involved in anti-social or criminal behaviour and the risk of being drawn into criminal activities.

8.  Why does the Government consider that such additional powers would be proportionate to the aim pursued?

These new powers will only be available where an authorisation has been made by an officer of at least the rank of superintendent regarding a designated area. Before giving an authorisation, the officer must be satisfied that serious and persistent antisocial behaviour has occurred in the locality and that intimidation, harassment, alarm or distress has been caused to members of the public by the presence or behaviour of groups in that locality. The senior officer must also consult the local authority. The authorisation lasts for a specific period which may not exceed 6 months.

Part 4 provides the constable or CSO with a power (not a duty) to take the child home. It is for the police officer or CSO on the ground to decide whether to use the power in relation to any individual child or young person at the time. The use of the power does not lead to any sanctions (criminal or otherwise) against the child.

Further, the power to return home may only apply to unaccompanied minors. Thus the rights of parents and families to be with their children in public (at any time of day or night) are completely preserved.


9.  Why does the Government think that the new arrangements would be proportionate to a pressing social need so as to be necessary in a democratic society for the purpose of Article 8.2, bearing in mind the range of other methods of dealing with these problems already available to the courts?

Curfew orders with electronic monitoring or "tagging" have proved very successful since their introduction nationally for 10-15 year olds on 1 February 2001. More than 3,600 orders have been made. The pilots of curfew orders for 10-15 year olds between March 1998 and February 2000 demonstrated that they worked well for juveniles. The reaction of the offenders and their families was generally positive with the acknowledgement that in many cases it may have kept the young offender out of custody.

Curfew orders take into account health, safety and welfare issues. Before making a curfew order on an offender under 16, under the Powers of Criminal Courts (Sentencing) Act 2000, the court must obtain and consider information about his family circumstances and the likely effect of such an order on those circumstances. The court must also consider, under the attitude of persons likely to be affected by the enforced presence there of the offender. In the case of persons under 16 this would normally be the family.

The orders help to keep young offenders at home, off the streets, and away from places at times where they may be more likely to re-offend. They are often used as a last resort before custody, and thus help to keep the family together. The Government's view is that they are an appropriate and proportionate response to offending by young people.

We are simply increasing the maximum period for a curfew order for 10-15 year olds to up to 6 months and increasing the intensive phase of the supervision order to up to 180 days. Courts will retain discretion over the appropriate sentence length which must be proportionate to the offence or offences.

The main reason for these changes is to strengthen the Youth Justice Board's administrative Intensive Supervision and Surveillance Programme (ISSP). ISSP is targeting serious and persistent young offenders who would otherwise receive a custodial sentence. The programme makes use of existing curfew and supervision order legislation to provide a well structured and supervised community alternative to custody. ISSP uses the curfew order to closely monitor the offender's behaviour in the community whilst the supervision order allows the young offender to be placed on a programme designed to reduce the risk of further offending.

The Government wants to make ISSP even more credible to the courts in order to divert away from custody those serious and persistent offenders who could be safely managed and rehabilitated in the community under close supervision. The changes in this Bill will allow ISSP to be available for a total maximum of 12 months (6 months intensive, 6 months less intensive). Through the use of such intervention we will help prevent further offending by the young offender and ensure that custody is used only as a last resort. It will also help to keep families together.

Guidance will be issued to the courts which will ask them to consider the use of these extended curfew orders and intensive supervision orders only for those on ISSP, or for the most persistent and serious offenders who would otherwise have received a custodial sentence.

10.  How does the Government expect the responsible authority to perform its functions under proposed new paragraph 5A of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000?

The young person subject to a fostering requirement will be a "looked after" child for the purposes of the Children Act 1989. The local authority has a duty under the 1989 Act to promote contact between a "looked after" child and the natural family. It is likely that the level of contact will be far higher than if the young person had gone into custody. It is also possible that as preparations are made to return the young person home, they will be able to spend longer periods with the family, possibly including whole weekends. Furthermore, the requirement gives the local authority and Youth Offending Team the flexibility to be able to determine the level of contact between the young person and their family.

11.  Why does the Government think that removing a young child from his or her family for up to a year would be justifiable in terms of Article 8.2?

The Government's view is that the fostering requirement is a positive and childcentred response to serious and persistent young offenders and offers a constructive and less damaging alternative to custody. This intervention benefits the young person, the family and the wider community and is justifiable in accordance with Article 8.2 for the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedoms of others.

The fostering requirement as part of a supervision order is intended to be a child centred alternative to custody. It is available only in very tightly drawn circumstances, where a young person would otherwise have received a custodial sentence, and where their offending behaviour was due to a significant extent to the circumstances in which they were living. This could include poor parenting with insufficient supervision, a chaotic lifestyle and criminal or anti-social influences.

The fostering provision provides the young person with a caring stable home life with specially trained foster parents who receive back-up support. This will often be the fist time the young person has experienced a stable environment. An offender subject to the fostering requirement will undertake structured activities during the daytime, to tackle the causes of the offending behaviour. And work would be undertaken with the natural parents to improve the parenting skills to prepare for the young person's return home. The fostering requirement will only last as long as is necessary to reduce the risk of the young person re-offending. If good progress is made then an application can be made to the court to revoke the fostering requirement. When used with persistent offenders aged 10 or 11 this early intervention could address the child's offending and family problems, before the pattern of offending is so entrenched that they are highly likely to end up in custody.


12. What are the Government's reasons for concluding that clause 45, with its very limited safeguards, would be compatible with:

(a)  ECHR Article 6.1

This clause allows an environmental health officer to issue a closure notice in relation to licensed premises that are causing a public noise nuisance. The notice only has effect for a maximum of 24 hours and may be cancelled earlier if it is no longer necessary to prevent a public nuisance. It is a temporary measure and does not involve either the determination of civil rights or of a criminal charge. In the Government's view, Article 6 has no application to these circumstances. Notification is given to the licensing authority of the issue of a notice but any subsequent steps by the licensing authority will be subject to normal court procedures and article 6 safeguards.

(b)  ECHR P1/1

The police already have the power to close premises causing a public nuisance by noise. The Bill seeks to extend these powers to the agency that have most experience in dealing with noise nuisance. Environmental Health Officers are trained to assess the level of nuisance being caused and it is therefore only right that they should have the power to act in extreme circumstances.

In relation to Article I of Protocol 1, this power is a control of use rather than a deprivation of property rights. The temporary interference with the property rights of the licensee strikes a fair balance between the public interest in controlling noise nuisance and the protection of individual rights.



In your letter of 23 May you asked for details of representations received in relation to Human Rights. Listed below are the four issues that have been raised by one or more organisation. These relate to a general issue of definition, the production of policies by housing authorities, parenting contracts and the dispersal of groups. The Government response to each of the issues raised is also provided.


The All Party Parliamentary Group for Children (APPGC) and Association of Chief Police Officers have raised a general question about the definition of anti-social behaviour used in the Bill:

There is no common definition of Anti-social Behaviour in the Bill. Article 7 of ECHR stipulates that, if legislation is to lay down criminal sanctions, then definitions must be sufficiently clear so that people know precisely when they are committing an offence. Such decisions cannot be left to the individual discretion of police officers, nor can there be local variations of the law.

Government response

Not all parts of the Bill lay down criminal sanctions. Many of the sanctions within the Bill are civil, not criminal, and therefore are not covered by Article 7. However, every part of the Bill that uses the term 'anti-social behaviour' in reference to a sanction has a corresponding definition in legislation. These generally follow that set out in the Crime and Disorder Act Section 1(1)(a):

behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person

This definition applies to:

—  Part 3, Parental responsibility. Anti-social behaviour forms part of the criteria for entering into Parenting Contracts or application for Parenting Orders by Youth Offending Teams. The definition is contained in clause 28.

—  Part 4, Dispersal of groups—Persistent anti-social behaviour is used as a test related to the authorisation of an area for this power. An offence is only committed when an individual knowingly contravenes a direction from an authorised person. The Crime and Disorder Act definition was added to clause 35 through an amendment during Commons Committee stage.

—  Part 5, Sanctions. The Bill contains amendments to the civil anti-social behaviour orders set out under the Crime and Disorder Act where the above definition applies.

Part 2 of the Bill (Housing) is concerned with civil remedies to prevent housing related anti-social behaviour. The focus here is not on imposing sanctions on the perpetrator but on protecting the victims.

The provisions in Part 2 relate 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.

The courts are given discretion to determine whether a particular remedy is required to prevent further nuisance or annoyance. The consequences may adversely affect the perpetrator, for example an injunction may exclude the perpetrator from his home, but the injunction is granted not to punish the perpetrator but to protect the victim of his conduct from further harm. Consequently in the Government's view Article 7 of the ECHR would not be engaged. The focus in Part 2 is on the effect which the behaviour could have on other people in the particular circumstances of the case. The Government feels that a tighter statutory definition in this context would not be useful.

Remaining parts of the Bill provide new sanctions for existing offences such as the unlawful use, production or supply of class A drugs, or those relating to graffiti and fly-posting described in clause 49. Part 6 (Firearms) provides for specific new criminal offences.

It is therefore clear in each individual case what type of behaviour is subject to the sanctions set out in the Bill.


The All Party Parliamentary Group for Children (APPGC) have raised a question in relation to provision in part 2 for all Local Authorities, Housing Action Trusts and Registered Social Landlord's to prepare a policy on ASB, and procedures for dealing with ASB:

There is no indication that tenants will have an input into the development of the ASB policy. Policies should be compliant with Article 8 of the HR Act.

Government response

Sections 105 of the 1985 Housing Act and section 137 of the Housing Act 1996 already require local authority landlords to consult with their tenants on matters of housing management. Anti-social behaviour in this context falls within housing management. The Housing Corporation and the National Assembly for Wales as regulators, also require registered social landlords to consult their tenants.

Our intention is that any guidance issued by the Secretary of State, the National Assembly for Wales or the Housing Corporation under new section 21 8A(7) of the Housing Act 1996 will also cover consultation matters. The issue of such guidance will also allow us to address issues in relation to Article 8 of the ECHR in more detail. However, we do not foresee any conflict between the publication of such policies and Article 8 compliance.


The All Party Parliamentary Group for Children (APPGC) and the National Children's Bureau have raised issues in relation to provisions in Part 3 that encourage the LEA or the governing body of a school to enter into a voluntary Parenting Contract when a child is truanting or has been excluded from school on disciplinary grounds:

The parent signs to make a commitment to changing a child's behaviour, yet the pupil, who is most directly affected by this provision, is not required to contribute to the drafting of the contract. This could be regarded as an intrusion into family life, overriding Article 8 of the HR Act.

Government response

As stated in Annex A we do not think that parenting contracts fall within the ambit of ECHR Article 8.1 because there is no compulsion to enter into such a contract and there are no direct penalties for breach. At the same time, we consider that the provisions can be justified under ECHR Article 8.2. Parenting contracts will advance the prevention of disorder and crime, and the protection of rights and freedoms of others and may also protect the health or morals of the child concerned. Any potential interference with family life would be proportionate when balanced against the important objectives of preventing truancy and misbehaviour at school. In law, the responsibility clearly falls on the parent to ensure that their child does not truant from school.


The All Party Parliamentary Group for Children (APPGC), National Children's Bureau have made representations related to Part 4:

The power to disperse a group of 2 or more young people is based on a subjective perception that they are behaving inappropriately, and contravenes their right to freedom of association (Article 11 of the HR Act).

Government response

It is for police officers on the ground to decide whether to exercise the power to disperse. They must reasonably believe that members of the public have been or are likely to be intimidated, harassed, alarmed or distressed before giving a direction. The good sense of police officers and the Code of Practice issued under this Part of the Bill will ensure that these powers are used appropriately. Section 6 of the Human Rights Act will oblige them to exercise the powers only in a way which is compatible with Convention rights.

The Government believes that the power to disperse groups can be exercised compatibly with Article 11 of the ECHR. Specific exemptions are made for lawful pickets and processions. The powers pursue the legitimate aims of public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others.

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