Eighth Report
Instruments Reported
The Committee has considered the following instruments
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. Draft Local Authorities (Contracting Out
of Anti-social Behaviour Order Functions) (England) Order 2007
Summary: This Order enables local authorities
to delegate some or all of their ASBO-making powers to bodies
to which they have already contracted out housing management functions.
Significant reservations about the proposals have been voiced
by respondents concerned with legal policy and citizens' rights.
We remain to be persuaded that the Government have fully considered
the practical implications of the Order.
This instrument is drawn to the special attention
of the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
1. The Department for Communities and Local Government
(DCLG) have laid this Order under subsections (1), (2), (10) and
(11) of section 1F of the Crime and Disorder Act 1998. An Explanatory
Memorandum (EM) has been provided.
2. The draft Order provides that a local authority
which has already contracted out housing management functions
to another body, such as an arm's-length management organisation
("ALMO"),[1]
should be able to make arrangements with that body which permit
it to exercise some or all of the local authority's Anti-Social
Behaviour Order ("ASBO") functions.
3. On 9 January, DCLG issued a press release
which stated that the Order "will for the first time give
Tenant Management Organisations (TMOs) powers to apply for Anti-Social
Behaviour Orders. Powers of this kind are at the heart of the
Government's Respect programme which is about giving people power
and a real sense of ownership over their services and public spaces."[2]
4. The EM explains that the Government published
a consultation paper in November 2005, seeking views on the proposals:
66 responses were received, from local authorities, ALMOs, national
trade bodies and other interested stakeholders. The EM states
that 80% of responses were in support of the proposal to enable
local authorities to delegate some or all of their ASBO-making
powers.
5. DCLG have published a summary of the consultation
responses.[3] This confirms
the information given in the EM. It breaks the total of 66 responses
into four categories: 29 from local authorities (82% of which
supported the main proposal); 14 from ALMOs (100% supported the
main proposal): 8 from key housing stakeholders (100% supported
the main proposal); and 15 from other respondents (46% supported
the main proposal).
6. We were not surprised that those respondents
directly involved in housing management were supportive of the
proposals. However, we were struck by the strength of concern
expressed by several of the other respondents, i.e. from organisations
concerned with legal policy and citizens' rights. They included:
- the Housing Law Practitioners Association, who
"view[ed] with concern the continued development in the use
of ASBOs as a solution to the problem of antisocial behaviour,
particularly in housing";
- the Law Society, who said that the proposal to
allow local authorities to delegate their ASBO functions to housing
management organisations represented "a fundamental shift
in the use of housing management organisations from managing housing
stock to neighbourhood management";
- Liberty, who reiterated their view that "this
broad discretion should not have been given to local authorities
and the police", and said that their "concerns about
this wide discretion being used inappropriately would be magnified
if housing management organisations were also able to apply for
ASBOs without local authority involvement"; and
- the Children's Society, who "express[ed]
significant caution about the proposal. The Secretary of State
should detail a set of minimum national requirements to ensure
child protection and welfare legislation is fully adhered to by
all providers."
7. We were also concerned to establish that the
Department had given adequate thought to the practical implications
of the proposed delegation of functions. In order to secure proper
identification of those responsible for certain forms of anti-social
behaviour (e.g., damage to blocks of flats), there will on occasions
be a need for covert surveillance using CCTV cameras to film the
individuals concerned. Such covert surveillance is governed by
the Regulation of Investigatory Powers Act 2000 ("RIPA").
We put questions to the Department about how they envisaged the
relationship would work between a local authority and the body
to which ASBO functions had been contracted out, in the context
of the provisions of RIPA. DCLG's responses are reproduced at
Appendix 1.
8. We recognise the desirability of acting effectively
against anti-social behaviour, not least in the field of housing
management. However, we note that significant reservations about
the proposals have been voiced by respondents concerned with legal
policy and citizens' rights, and we remain to be persuaded that
the Government have fully considered the practical implications
of these proposals.
B. Draft School Admissions Code
Summary: The Code, which is intended to come into
force in February 2007 for admissions from the 2008 school year,
imposes mandatory requirements, including the prohibition of unfair
over-subscription criteria, and provides clear guidelines for
setting school admission arrangements. The consultation process
attracted a high number of responses. The Code's provisions on
the sibling criterion, on prohibiting the "first preference
first" criterion, and on prohibiting taking account of children's
past behaviour, will meet with a mixed reception among consultation
respondents. It is important that, in promoting fairness in school
admissions, the Government should not lose sight of other family-related
policies.
This Code is drawn to the special attention of
the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
9. The Department for Education and Skills (DfES)
have laid this draft Code under section 85(3) of the School Standards
and Framework Act 1998. An Explanatory Memorandum (EM) has also
been provided.
10. The EM states that the Code replaces the
existing School Admissions Code of Practice and will first affect
the admission arrangements for all maintained primary and secondary
schools and Academies in 2008. It will have a stronger status,
since relevant bodies will be required to act in accordance with
it when discharging their functions (the former Code required
all parties to "have regard to its guidance"). The Code
imposes mandatory requirements, including the prohibition of unfair
over-subscription criteria, and provides clear guidelines for
admission authorities in setting their school admission arrangements,
to ensure that a child from a particular social or racial group,
or a child with a disability or special educational needs is not
disadvantaged compared to another.
11. The Secretary of State for Education and
Skills has commented that:
"The Code creates a system where all children,
regardless of their background, have a fair opportunity of gaining
a place at the school they want to attend. Most schools have fair
admission arrangements. The new School Admission Code puts mandatory
measures in place to ensure that this is the case at all schools,
including the few schools that persist in using unfair or unnecessarily
complex arrangements that can disadvantage some families and reduce
the life chances of thousands of children."[4]
12. The new Code prohibits a number of over-subscription
criteria, including:
- giving priority to children based solely on whether
their parents have made a particular school their first preference,
a practice called "first preference first";
- stipulating conditions that affect the priority
given to an application, such as taking account of other schools
parents have applied for;
- giving priority to children based on their particular
interests, specialist knowledge or hobbies;
- giving priority to children whose parents are
more willing or able to support the school financially.
13. The EM states that DfES carried out consultation
on the draft Code between September and December 2006; and that
3,682 responses were received. "The majority … represented
a campaign by parents and schools opposing proposed guidelines
dealing with the use of the sibling over-subscription criterion
at partially selective schools … The proposals in the draft
Code received support from a majority of those who responded with
the only exceptions being the proposed guidelines on giving priority
to siblings at partially selective schools, the proposed prohibition
of the sibling criterion at grammar schools, the proposed prohibition
of the 'first preference first' criterion and finally the proposal
to prohibit taking account of reports from primary or nursery
schools about past behaviour, attitude or achievement."
14. The Committee is concerned that the EM leaves
the impression that the Department may give less weight to objections
if they are seen to represent a campaign. It may well be that
many of the campaigners in question were individual parents, and
it cannot be right that their views are less well regarded because
they are motivated to act together.
15. The EM sets out DfES' response to respondents'
concerns:
- in the case of the sibling criterion, the EM
states that the Government have responded to concerns raised,
and revised the guidelines. The Code now strongly supports use
of this criterion at all primary schools and secondary schools
with no more than 10% selection by ability or aptitude. In the
case of partially selective schools that select more than 10%
of the intake by ability or aptitude, and of designated grammar
schools, the Code contains provisions which mean that the use
of this criterion may be restricted or prohibited in certain circumstances;
- the Code will prohibit use of the "first
preference first" criterion, even though 51% of the 771 responses
on this issue opposed the prohibition. The EM justifies this decision
on the ground that "the Government considers that this criterion
makes the admission process unnecessarily complicated for parents";
- the Code will not allow admission to be refused
on the basis of past behaviour, attitude or achievement, even
though 50% of respondents opposed this proposal. The EM states
that schools that are under-subscribed are currently required
to take all children who apply regardless of past behaviour, etc.;
and that, since over-subscribed schools would have the opportunity
to refuse admission of the more challenging children, under-subscribed
schools would end with a disproportionate number of such children
in their schools.
16. We recognise that the objective underlying
these changes is to provide a fair opportunity to all children
of gaining a place at the school which they want to attend. We
would comment only that it is important that, in serving this
objective, the Government should not lose sight of other family-related
policies, including the needs of working parents. If the provisions
of the Code mean that, even in a limited number of cases, siblings
cannot attend the same school, or greater distances between home
and school are tolerated, admissions decisions could well cause
practical difficulties to such parents.
1 ALMOs are organisations set up by local authorities
to manage and improve all or part of their housing stock. Back
2
See: http://www.communities.gov.uk/index.asp?id=1002882&PressNoticeID=2330
Back
3
See: http://www.communities.gov.uk/pub/167/SummaryofresponsestotheConsultationPaperEnablinglocalauthoritiestocontracttheirk_id1500167.pdf
Back
4
See DfES press release of 9 January 2007, at:
http://www.dfes.gov.uk/pns/DisplayPN.cgi?pn_id=2007_0004
Back
| 
