APPENDIX 1: EXPLANATORY INFORMATION
Draft Local Authorities (Contracting Out of Anti-social
Behaviour Order Functions) (England) Order 2007 - Additional Information
from the Department for Communities and Local Government
Q: What is the current relationship between local
authorities and housing management organisations (HMOs) in the
use of covert surveillance? Is it DCLG's view that the application
of this Order will not affect that relationship?
A: The powers under sections 1 to 1E(c) of the Crime
and Disorder Act 1998 ("the 1998 Act") that can be delegated
under the Order are powers to apply for the various orders (in
this case ASBOs) referred to in those provisions. The Order does
not allow the delegation of any other powers, such as those related
to the use of surveillance cameras.
Covert surveillance evidence will not always be needed
to be able to make an ASBO application. However, in situations
where this type of intelligence gathering is required there are
two options available for taking this forward:
1) Under section 115 of the 1998 Act a power is conferred
on any person who would not otherwise have that power to disclose
information to a relevant authority (which includes a local authority)
or a person acting on behalf of a relevant authority where the
disclosure is necessary or expedient for the purposes of the 1998
Act. Therefore the HMO could revert back to its "parent"
local authority, who has the right under the Regulation of Investigatory
Powers Act 2000 ("RIPA") to use covert surveillance.
The "parent" local authority would then gather the said
evidence on behalf of the HMO and then pass the evidence on to
the HMO in line with the provision of s115 of the 1998 Act, which
authorises the sharing of such information for ASBO application
purposes.
2) Alternatively Section 28 of RIPA would allow a
local authority as a relevant authority designated in Schedule
1 of RIPA to authorise directed surveillance. We believe this
would allow the local authority to grant an authorisation to the
HMO to carry out surveillance on a case by case basis. However,
this power would exist in the absence of a delegation under the
Order.
Q: Do DCLG envisage that, under the proposed Order,
agency arrangements will be made between a local authority (LA)
and the body to which these functions will be contracted-out (e.g.,
the HMO), so that the LA uses the HMO as its agent to deal with
anti-social behaviour?
A: When an authority delegates its housing management
functions, it may also make sense to delegate responsibility for
taking action to tackle anti-social behaviour as part of the management
function. The extent to which the HMO takes on these responsibilities
is a matter for local discretion.
Our regulations will not in themselves dictate or
heavily influence the degree to which a local authority decides
to devolve its wider anti-social behaviour functions to the HMO.
ASBO powers are only one part of the anti-social behaviour "toolkit"
and policies and procedures for tackling anti-social behaviour
involve a wide range of activity involving prevention, support
and enforcement activity. Any decision to contract the LA's anti-social
behaviour functions in their entirety across a particular locality
or authority-wide would be taken following a full evaluation of
these broader roles and functions.
If a decision is made to contract anti-social behaviour
functions in part or in their entirety, the local authority will
retain a considerable degree of control over the activities of
the HMO under the management agreement. In addition any agreement
for the delegation of anti-social behaviour functions will allow
the local authority to regulate the use of these functions, including
of course ASBO powers.
| 
