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The noble Baroness said: My Lords, I rise to move Amendment No. 6 and speak to Amendments Nos. 7 to 11, which are grouped with it. These amendments were tabled on Report, but were not moved. The amendments would retain the proposal that a local authority should be able to enter into parenting contracts or to apply for parenting orders. It would, however, remove the proposal to give these powers to registered social landlords. As we said in Committee, the latter suggestion was opposed in the strongest terms by all agencies working with children and families as it was perceived as being a highly inappropriate role for the RSLs to play—and we agree with them.
Families who are really struggling to manage or control their children—something many of us here may have experienced from time to time—need highly skilled, sensitive and professional help, particularly when a parenting contract is being considered and even more so when a parenting order may be
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However, as I mentioned in Committee, there is a lot to be said for RSLs having a working partnership with local authorities, and housing officers could appropriately be involved in an application for an order when this is done with other agencies who would be the professionals able to work directly with families and an order. This kind of inter-agency working is the right model to be developing, using different knowledge and expertise to solve problems which are invariably extremely complex and difficult to manage. The National Housing Federation recognises that it would not be appropriate for it to become the responsible officer to give effect to a parenting order. We wholeheartedly agree with this view and hope that the Government will too. I beg to move.
Baroness Scotland of Asthal: My Lords, first, as I have said on a number of occasions, I understand the noble Baroness’s passion about keeping children safe and making sure that families have the best possible support to help them to change poor behaviour. I think she will accept that she and I have no disagreement on any of those issues. It is a consummation devoutly to be wished and one on which we all work. The amendments would drive a significant hole through our policy of allowing more agencies to enter into parenting contracts and apply for parenting orders, as set out in the respect action plan. I know that in one sense that is precisely what the noble Baroness would like.
Clauses 23 and 24 enable not only a local authority but a registered social landlord to enter into a parenting contract or seek a parenting order in respect of a parent of a child or young person if they have reason to believe that the child or young person has engaged or, in the case of contracts, is likely to engage in anti-social behaviour. The noble Baroness will know that on a number of occasions social landlords are prevailed on by neighbours and others to remove families because of the disturbance and chagrin that they cause to their neighbours. Such evictions can lead to desperate consequences for the children housed in such homes, such as movement from school, disjunction of family relationships and instability. We know that frequent changes of home, when done erratically, can materially undermine the well-being and health of the child, so to minimise such changes is crucial.
Currently, 52 per cent of social housing is owned by registered social landlords, and they therefore play an important and growing role in managing housing and wider neighbourhoods, including tackling anti-social behaviour. I am sure the noble Baroness would
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I remind the House that parenting contracts and parenting orders are early interventions, which are supposed to nip problems in the bud. I respectfully suggest to the noble Baroness that preventing registered social landlords entering into parenting contracts or seeking parenting orders, as these amendments would do, makes no sense when they already have much more coercive powers at their disposal.
Registered social landlords can seek the eviction of a family without any further ado if they are satisfied about the anti-social behaviour and they can already enter into an acceptable behaviour contract with a family. They can also seek anti-social behaviour orders and injunctions against their tenants and others in the community. It is surely illogical to prevent them entering into arrangements that may help to remove the need for stronger sanctions against these families.
If action is not taken, there is a significant risk of families losing their homes or being taken to court. We want to remove one level of intervention and help social landlords think more creatively about other solutions that may be available to them before they reach for eviction or for more coercive sanctions. That would be a better way of protecting children than proceeding more quickly to eviction, if there is a sensible, viable and workable alternative.
We have made it clear that registered social landlords must be able to work in partnership with specialist agencies. These clauses allow for an official of a registered social landlord to be eligible to undertake the role of responsible officer. But the registered social landlord may well want to nominate another person from a specialist agency who is better placed and has the requisite specialist skills in areas of parenting support, and the Bill will enable the registered social landlord to do that.
It is important to be clear that parenting contracts and orders are not designed to criminalise parents but are instead concerned with providing support to parents to enable them to guide and protect their children more effectively. It is crucial to stress that, in addition to any constraints imposed by the guidance, parenting contracts must be agreed by the parents and parenting orders are subject to approval by the courts. These are vital safeguards in preventing an overbearing approach.
I know that the noble Baroness agrees with me in commending the good practice that is starting to take place in CDRP areas of multi-agency working, shared good practice and appropriate specialist support. We would expect that in many areas there
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I understand the noble Baroness’s anxiety, but I do not believe that she would rather wish a child to be evicted with the family than provide an opportunity to explore a more creative resolution to what to others may seem an intractable and unpleasant situation. Given that reassurance, I hope that the noble Baroness will withdraw the amendment, so that we can do some joint good work.
Baroness Linklater of Butterstone: My Lords, I thank the noble Baroness for her thoughtful reply. I agree that we are as one on the importance of sustaining and maintaining families together at home. It is a matter of how you achieve that objective and from where the emphasis comes. I endorse the principle of inter-agency working and the more that we can do that, the better.
The important part of my argument is in relation to where the authority comes from, and professionally qualified people should take on that role, using the work of the housing officers and so on. I shall watch with keen interest how this issue develops over the next few months, because I am yet to be convinced that there is not something a bit wrong with the current situation. Time will tell. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Parenting orders: local authorities and registered social landlords]:
[Amendments Nos. 7 to 13 not moved.]
Clause 25 [Contracting out of local authority functions with regard to parenting contracts and parenting orders]:
5 pm
Viscount Bridgeman moved Amendment No. 14:
“28B TREATMENT OF ORGANISATIONS PERFORMING PARENTING CONTRACT AND PARENTING ORDER FUNCTIONS AS PUBLIC AUTHORITIES
(1) Any person with whom arrangements are made under or by virtue of section 28A for the performance of the functions under section 25A or 26A shall, in the discharge of those functions, be treated as a public authority for the purposes of the Human Rights Act 1998.
(2) For the avoidance of doubt it is hereby declared that nothing in this section affects the meaning of “public authority” in section 6 of the Human Rights Act 1998 or the determination of whether functions, other than those referred to in subsection (1) above, are functions of a public nature for the purposes of section 6.””
The noble Viscount said: My Lords, in moving Amendment No. 14, I shall speak also to Amendment No. 63. We did not move these amendments on Report, as our intention was to return to them at this stage of the Bill. They affect the relationship between the application of human rights considerations and parenting contracts.
The first amendment would ensure that bodies entering into parenting contracts and applying for
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These amendments build on old Amendments Nos. 137A and 137B debated during the third day of Committee. In both cases, we have added a new subsection (2). Perhaps I may recall the position. The Human Rights Act 1998 requires public authorities to act in a way that is compatible with the human rights that the Act protects. When local authorities exercise their powers with respect to parenting contracts and orders, they are required to comply with these basic human rights standards, as they are clearly “public authorities” for the purposes of the Human Rights Act. Liberty, among others, believes that if other bodies are to be given these powers, they, too, should be required to comply with the human rights of those affected by parenting contracts and orders.
However, your Lordships will be aware that the courts' interpretation of Section 6 of the 1998 Act has made it unclear whether private bodies will indeed be covered—thus the need for these amendments to the Bill to spell out that any body exercising the powers in Clause 24 should be treated as a public authority for human rights purposes.
The Joint Committee on Human Rights set out the case well, and I hope that your Lordships will bear with me if I quote its comments. In paragraph 1.29 on page 13 of its report, it states:
“The provision in the Bill for contracting out local authority functions of entering into parenting contracts and applying for parenting orders, however, does give some cause for concern on human rights grounds”.
“The continuing uncertainty about the meaning of ‘public authority’ in s. 6(3)(b) of the Human Rights Act 1998, caused by the Leonard Cheshire decision, means that it cannot be predicted whether the person(s) specified by the Secretary of State as a person to whom the local authority’s functions can be contracted out will be treated by the courts as a public authority for the purposes of the HRA”.
“Although the court which must decide whether to make a parenting order must itself act compatibly with Article 8 when deciding whether or not to make the order, it is an additional safeguard for Article 8 rights that the body entitled to apply for such an order is itself a public authority with an obligation to act compatibly with Convention rights when deciding whether or not to apply for such an order”.
It finishes conclusively by saying:
“In our view it would be desirable if the Bill were to provide explicitly that the person to whom the functions are contracted out is to be treated as a public authority for the purposes of the HRA 1998 in the discharge of those functions”.
In Committee, the noble Lord, Lord Bassam, did not disagree with the principle underlying these amendments; he only expressed reservations about whether inclusion of the proposed clause in the Bill was the most appropriate means of clarifying this position. He referred to the Johnson v Havering case and a possible change in interpretation by the courts.
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Liberty, in my view convincingly, questions whether the possibility of a future change in the approach by the judiciary should prevent Parliament from clarifying its intention in the mean time. There is no constitutional reason why Parliament should not clarify the law on a case-by-case basis, pending a judicial decision. Indeed, while it is hoped that the court may change its interpretation, there is no guarantee of that, and our inaction on this issue could lead to a failure to provide protection for the human rights of people affected by the actions of private bodies to which public functions are contracted out.
In response to the secondary concern raised by the noble Lord, Lord Bassam, that these provisions may cast doubt on previous legislation in which the position is intended to be the same but has not been explicitly stated, we have added the new subsection (2) in each of the two amendments to clarify that that is not the effect. I hope that that will enable clarification of the position in this legislation, while avoiding wider, undesired consequences.
I hope that, with these drafting improvements, the Minister will seriously consider these amendments, especially as he does not disagree in principle. I beg to move.
Lord Hylton: My Lords, I welcome these two amendments, particularly as they come from the Front Bench of the official Opposition. They give me an opportunity to ask whether acceptable behaviour contracts will, if possible, always be used before proceeding to antisocial behaviour orders. It is highly desirable that restorative justice principles should be used whenever possible. I suggest that that will have the effect of an aggrieved person ending up being satisfied; if there is no particular aggrieved person, the local community, whose peace and quiet enjoyment has been disrupted, will also receive some satisfaction.
Baroness Scotland of Asthal: My Lords, it is my turn to respond to the noble Viscount, Lord Bridgeman, on this matter. I know that my noble friend Lord Bassam took up this burden on the previous occasion, but now I have the pleasure.
Perhaps I can briefly state where we are. The noble Viscount will know that my right honourable friend the then Home Secretary wrote to the Joint Committee on Human Rights on 23 May, explaining that, in the Government’s view, such a person is a public authority for such purposes. I do not believe that that response was included in the Joint Committee’s 12th report, which was published on22 May, but we have always made it plain that that was our understanding. That was our understanding in relation to the previous legislation and all of us thought that it was plain. If one looks at the expression of intent by the Government, one sees that it is there in the debates. We know that a different view, which has to be considered, has been taken; it was considered in the Johnson v Havering case, and we have to await the outcome. The importance of waiting concerns clarity. If we were to have yet
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Clause 25 provides for the making of an order by the Secretary of State to enable local authorities to operate with flexibility in making local decisions to ensure that their functions are carried out as effectively as possible. The ability to contract out all or some of their parenting contract and order-seeking functions to other bodies may assist authorities in their management of strategic and operational functions. The new section is modelled closely on similar provisions in Section 1F of the Crime and Disorder Act 1998, which was inserted by the Serious Organised Crime and Police Act 2005, under which the Secretary of State may make an order that enables a local authority to contract out its functions of applying for anti-social behaviour orders and similar matters.
As noble Lords know, the Government are seeking to clarify the general meaning of “public authority”. I have made that plain, as did my noble friend Lord Bassam. A problem has arisen when care services are contracted out by a local authority, as a particularly narrow interpretation of the scope of the Act has been adopted by the courts. As the Joint Committee on Human Rights recommended in its 2004 report on the subject and as the Government agree—I say that a second time so that everyone knows that there is no dispute about where we are—a successful intervention presents the best possibility of our resolving this issue.
I expect that the functions to which this amendment relates are clearly,
under the Human Rights Act 1998. Therefore, the person to whom such functions have been delegated would be treated as a public authority for the purposes of the Act in discharging those functions. That is the Government’s clear intention. I say that just in case there is any future misunderstanding of how we intend it to be used. I absolutely understand why the noble Lord may consider that confirming that intention in the Bill would be wise. However, to do so could considerably confuse the legislative scheme, given the broad reach of the Human Rights Act, which does not list the functions to which it applies, specifying only that a public authority has,
That gives it the broadest possible reach.
The effect of the amendment would be to start a list, albeit not in the Act. That would create two problems. First, it would cast doubt over other functions for which legislation does not similarly provide that they are public functions. To try to insert such references retrospectively, as the noble Viscount’s other amendment would do for anti-social behaviour orders, is not the answer. I respectfully tell the noble Lord that there would simply be too many references.
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Secondly, for any future function created in legislation, such a reference would need to be included,
Thus we would create a distributed list, with all the attendant difficulties that lists in legislation create—not least that it would defeat the way in which the Human Rights Act has been drafted, to be of general application. If the meaning of “public authority” in Section 6 of the Human Rights Act ultimately needs legislative clarification—for instance, if the Government’s interventions in cases do not succeed—this must be done in a considered and co-ordinated manner. Therefore, although I understand the intention behind this amendment, I hope that I have made the Government’s interpretation very clear.
The noble Lord, Lord Hylton, has quite rightly jumped on the passing bus to make some good points. The ABCs—anti-social behaviour contracts—are a good tool. In accordance with good practice, many practitioners will seek to engage individuals in a contract before going to anti-social behaviour orders. The risk is in the nature of the anti-social behaviour when the matter first comes up. On many occasions, if the behaviour is serious, there may be a question of going to prosecution, which might lead to a conviction, or trying an anti-social behaviour order instead. It is difficult to be prescriptive and to say that this should happen in all cases. I certainly agree with the noble Lord, Lord Hylton, however, that ABCs are extremely valuable and have played a powerful role. They are often not spoken of, but they are effective.
I also agree with the noble Lord about the benefits that often accrue from restorative justice models, which are being used to some good effect. For instance, they are illustrative of the good work in the Community Justice Centre in Liverpool, which is adopting restorative measures on occasion. I agree with the noble Lord on all those points and I am glad that he has given me another opportunity to say how much there is in what he says.
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