House of Lords - Explanatory Note
      
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Session 2002 - 03
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Anti-Social Behaviour Bill


 

These notes refer to the Anti-Social Behaviour Bill
as brought from the House of Commons on 24th June 2003 [HL Bill 84]

ANTI-SOCIAL BEHAVIOUR BILL

     


     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Anti-social Behaviour Bill as brought from the House of Commons on 24th June 2003. They have been prepared by the Home Office, the Office of the Deputy Prime Minister, the Department for Education and Skills and the Department for Environment, Food and Rural Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

     2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND SUMMARY

3.     In March 2003 the Government published a white paper outlining its proposals for tackling anti-social behaviour. Respect and Responsibility - taking a stand against anti-social behaviour focussed on providing local authorities and the police with a wider, more flexible range of powers to meet their existing responsibilities and respond to the needs of their local communities.

4.     The Bill is designed to ensure that the police have the appropriate powers to deal with serious anti-social behaviour. It introduces new powers for tackling the problem of premises used for drug dealing and for dispersing intimidating groups. It enables the police to tackle the nuisance that can be caused by young people with air weapons, and supports action against gun crime by banning the possession of imitation guns and air guns in public without good reason. It also tackles the danger of air weapons that can be easily converted to be used with conventional ammunition.

     5.     The Bill also provides powers for local authorities and those working with them to tackle anti-social behaviour in local communities. It extends landlords' powers to deal with anti-social behaviour in social housing, including developing the use of injunctions and demoted tenancies. It also includes provisions aimed at dealing with noise nuisance. It develops the sanctions that are available for use against those who engage in anti-social behaviour and extends the range of agencies that can use them. It provides a means for schools, local authorities and youth offending teams to work with the parents of children who are behaving anti-socially and creates the mechanisms for enforcing this work. The Bill extends local authorities' powers in      relation to cleaning land. It extends the measures that can be taken to remove graffiti, and restricts the sale of aerosol paint to children. It also amends existing police powers to place conditions on public assemblies and to deal with unauthorised encampments.

6.     The Bill is in nine Parts. Part 1 creates new powers to close premises that are being used for drug dealing or use. Part 2 extends powers for tackling anti-social behaviour in social housing. Part 3 develops mechanisms for enforcing parental responsibility for children who behave in an anti-social way in school or in the community. Part 4 creates a new power for the police to designate areas where they can disperse groups causing intimidation. Part 5 develops the existing sanctions of anti-social behaviour orders, fixed penalty notices and supervision orders. Part 6 deals with the misuse of air weapons. Part 7 extends powers for local authorities to clean the environment. Part 8 amends police powers for dealing with public assemblies and trespassers. Part 9 contains general provisions.

         TERRITORIAL EXTENT

     7.     Parts 6 and 9 of the Bill extend to England and Wales, and Scotland. The rest of the Bill extends to England and Wales only.

TERRITORIAL APPLICATION: WALES

     8. The following measures will be commenced separately by the National Assembly for Wales:

  • Housing (Clauses 12 to 17)

  • Parenting contracts and orders related to truancy and exclusion from school (Clauses 19 to 22 and clause 24 (1))

  • Closure of Noisy Premises (Clauses 46 and 47)

  • Night noise (Clause 48)

  • Graffiti and fly-posting (Clauses 49 to 51 and 53)

  • Waste and litter (Clauses 57 and 58)

Clauses 23 (penalty notices for parents in cases of truancy) does not apply to Wales unless the National Assembly for Wales makes an order under this clause.

        COMMENTARY ON CLAUSES

     PART 1: PREMISES WHERE DRUGS USED UNLAWFULLY

9.     This part grants the police the power to close down premises being used for the supply, use or production of Class A drugs where there is associated nuisance or disorder. Service of a notice will close the premises to the public until a magistrates court decides whether to make a closure order. The court must consider the notice within 48 hours. If it is satisfied the relevant conditions are met, the court can make a closure order which closes the premises altogether for a period of up to 3 months, with possible extension to a maximum of 6 months.

Clause 1: Closure Notice

10.     Subsection (1) sets out the test which must be met before a police superintendent (or officer of higher rank) can authorise the issue of a closure notice. Subsection (2) requires that the superintendent must be satisfied that the local authority has been consulted and that reasonable steps have been taken to identify those living on the property or with an interest in it before the authority for the issue of the notice is given.

11.     Subsection (4) sets out the contents of the closure notice. These must include details of the time and place of the court hearing in relation to a closure order and a statement that access to the property during the period of the notice is prohibited to anyone other than someone who is usually resident in or the owner of the premises. It must also contain information about local sources of housing and legal advice.

12.     Subsections (6) and (7) set out requirements in relation to service of the notice, which must be attached to the building and given to people identified as living in or having an interest in the property or whose access to other premises may be adversely affected by a closure order. Subsection (9) enables the Secretary of State by regulations to exempt premises or descriptions of premises from the application of this clause.

Clause 2: Closure Order

13.     Once a closure notice has been issued, the police must apply to the magistrates' court for the making of a closure order.

14.     Subsection (2) provides that the court must hear the application within 48 hours. The 48 hours runs from posting of the notice on the property. Subsection (3) sets out the test of which the court must be satisfied before making a closure order. As well as being satisfied that the premises have been used for the unlawful supply, use or production of Class A drugs, and that the use of the premises is associated with nuisance or disorder, the court must be satisfied that the making of the order is necessary to prevent future disorder or nuisance. An order may be made in relation to part only of the property affected by the notice (subsection (8)).

15.     Subsection (4) sets out that the effect of the closure order is to close the premises altogether, including to owners and residents, for up to 3 months. Subsection (5) provides that the order may make special provision for access to any part of the building in which the premises are included (for example, stairways or shared parts). Subsection (6) allows the court to adjourn the hearing for up to 14 days to allow the occupier or someone else with an interest in the property to show why an order should not be made, for example because the problems have ceased or the occupiers have been evicted. The court can order that the closure notice continues to have effect during this period.

Clause 3: Closure order: enforcement

16.     When a closure order is made a constable or any other person authorised by the chief officer of police may enter the property and secure it against entry by any other person, using reasonable force if necessary. He may also enter the premises at any time to carry out essential maintenance or repairs.

Clause 4: Closure of premises: offences

17.     This clause creates offences of remaining in or entering property subject to a closure notice or order without reasonable excuse or of obstructing a constable or authorised person carrying out certain functions under these provisions. The maximum penalty is a fine of £5000, imprisonment for 6 months or both. There is a power of arrest for a constable in uniform in relation to these offences.

Clause 5: Extension and discharge of closure order

18.     This clause allows the police to apply for an extension of the period for which the order has effect up to a maximum period of 6 months (including the period for which the original order had effect). Such an application must be authorised by a superintendent (or police officer of higher rank), who must:

  • have reasonable grounds for believing that the extension of the order is necessary for the purpose of preventing the occurrence of disorder or nuisance to the public; and

  • be satisfied that the local authority has been consulted about the intention to make the application.

19.     Subsection (6) allows a constable, the local authority, persons on whom the closure notice was served under clause 1 and any other person with an interest in the closed premises to apply for the order to be discharged at any time. Subsection (9) sets out requirements relating to the service of notice on persons summoned to appear before the court under this clause.

     Clause 6: Appeals

20.     This clause allows for appeals to the Crown Court against closure orders and against a refusal to make one by all interested parties.

Clause 7: Access to other premises

21.     This clause ensures that a court may make an order concerning access to any part of a building or structure in which closed premises are situated, where the part itself is not affected by a closure order. Thus, a person who occupies or owns such a part of a building or structure may apply to the court for an order enabling him to retain the access to that part that he had before the closure order took effect (particularly if the closure order had rendered access to his part of the building or structure more difficult or impossible). The court may exercise its discretion by way of variation of the original order.

Clause 8: Reimbursement of costs

22.     This clause allows the court to make an order that the owner of the premises must reimburse any costs incurred by the police or local authority in clearing, securing or maintaining the premises.

Clause 9: Exemption from liability for certain damages

23.     This clause creates a partial exemption from liability in damages for the police in carrying out their functions under this Part. It does not extend to any acts in bad faith or acts which are in breach of the police's duty as a public authority to exercise their functions compatibly with the European Convention on Human Rights.

Clause 10: Compensation

24.     This clause allows for compensation payments to be made by the court out of central funds where it is satisfied that:

  • a person has suffered financial loss as a result of a closure notice being issued or a closure order having effect;

  • the person had no connection with the use of the premises subject to the notice or order for the supply or use of Class A drugs (such use having been associated with the occurrence of disorder or nuisance to the public);

  • if he is the owner or occupier, that he took reasonable steps to prevent that use; and

  • it is appropriate in all the circumstances to compensate the person for that loss.

Subsection (3) deals with the time within which an application for compensation must be made.

        PART 2: HOUSING

25.     This part gives local authorities, housing action trusts and social landlords registered with the Housing Corporation new and tougher tools to deal with anti-social behaviour. The Bill also introduces a new duty on social landlords to publish their anti-social behaviour policies so that tenants and members of the public are informed about the measures that social landlords will use to address anti-social behaviour in their stock. In addition to the White Paper 'Respect and Responsibility' these measures were the subject of public consultation from 2nd April until 12th July 2002.

Clause 12: Anti-social behaviour: landlords' policies and procedures

26.     This clause introduces a new section 218A into the Housing Act 1996. This requires certain social landlords to prepare and publish policies and procedures on anti-social behaviour, and to make them available to the public.

27.     New section 218A(3) to (6) gives details relating to the times at which a statement of policies and procedures must be published and reviewed, and how the statement must be made available to the public. The duty comes into effect within 6 months of the date of commencement of this clause.

28.     New section 218A(7) requires social landlords to have regard to relevant guidance when preparing or reviewing their policies and procedures. Guidance may be issued to local housing authorities or housing action trusts in England by the Secretary of State or, in Wales by the National Assembly for Wales. Guidance to registered social landlords may be issued by the Housing Corporation in England or, in Wales, by the National Assembly for Wales.

Clause 13: Injunctions against anti-social behaviour on application of certain social landlords

29.     This clause repeals sections 152 and 153 of the Housing Act 1996 and introduces new provisions allowing certain social landlords to apply for injunctions to prohibit anti-social behaviour which relates to or affects their management of their housing stock. Subsection (3) introduces new sections 153A, 153B, 153C, 153D and 153E into the Housing Act 1996.

30.     New section 153A(1) provides that the conduct to which that provision applies is conduct which is capable of causing nuisance or annoyance (even if no complaint has been received) and which directly or indirectly relates to or affects the landlord's management of its housing stock.

31.     New section 153A(2) to (5) sets out the conditions that have to be met before an injunction against anti-social behaviour can be granted. An injunction may be granted against any person whose behaviour could cause nuisance or annoyance to:

  • residents of the landlord (this includes, for example, tenants, licensees and long leaseholders);

  • visitors or anyone else carrying out a lawful activity in, or in the locality of, the landlord's housing accommodation. This could include anyone visiting family or friends, using local facilities, or passing through, working in or residing in the locality(including residents of other landlords); or

  • staff employed in connection with the management of the landlord's stock.

32.     The conduct need not cause any such nuisance or annoyance to any specific individual. It is sufficient that it is capable of having that effect.

33.     New section 153A(5) provides that the anti-social behaviour need not occur in the vicinity of the landlord's housing accommodation. However the behaviour will still need to be related, at least indirectly, to the landlord's management of its accommodation. For example a landlord should be able to apply for an injunction to protect a tenant who has been regularly harassed by other residents of an estate even if the incident itself which gave rise to the injunction application happened elsewhere. The anti-social behaviour in this example is clearly connected to the tenant's occupation of a home owned or managed by the landlord.

34.     It is intended that the term 'housing management' should be interpreted broadly and could include activities such as regeneration, mediation, tenant training and participation, welfare rights advice to tenants and supported housing.

35.     New section 153B allows specified landlords to apply for injunctions where someone has used or threatened to use their housing for an illegal purpose. This could cover, for example, drug dealing or use of the premises as a brothel.

36.     New section 153C allows the court granting an injunction under new sections 153A or 153B to attach a power or arrest or to exclude a person from specified premises or a specified area where there is the use or threat of violence or a significant risk of harm to any person mentioned in new section 153A(4) (see above). Consequently a power of arrest will be available in cases where there is a significant risk of harm even if there has been no actual or threatened violence. Significant risk of harm is defined in new section 153E(12). It could include emotional or psychological harm. This could apply, for example, in cases of racial or sexual harassment. The existing provisions, which are being repealed, only allow a power of arrest when there is either violence or threatened violence together with a significant risk of harm.

37.     New section 153D applies in relation to injunctions sought by a local authority, a housing action trust, a registered social landlord or a charitable housing trust on the grounds of a breach or anticipated breach of a tenancy agreement by a tenant. If the behaviour is prohibited by the terms of the tenancy agreement and satisfies the criteria described in paragraphs (a) and (b) of new section 153D(1) (as outlined in the next paragraph), the court may exclude a person from specified premises or a specified area and attach a power of arrest to any provision of the injunction.

38.     The breach (or anticipated breach) of the tenancy agreement must relate to conduct by the tenant that amounts to (or is capable of amounting to) nuisance or annoyance to any person; or to behaviour by the tenant which amounts to the allowing or encouragement of such conduct by another person. In addition the conduct must include violence or the threat of violence or a significant risk of harm to any person.

39.     New section 153E includes provisions supplementing sections 153A to 153D, including provisions for the variation or discharge of an order. New subsection 153E(2)(b) confirms that an injunction under new section 153A, 153B or 153D may exclude someone from his own place of residence. New subsection 153E(4) allows an injunction under sections 153A, 153B or 153D to be made without notice having been given to the respondent, although the respondent must subsequently be given the chance to make representations. Subsections (4) to (7) of clause 13 make consequential amendments to housing legislation to give effect to the new provisions for injunctions under new sections 153A, 153B and 153D of the Housing Act 1996.

     Clause 14 : Security of tenure: anti-social behaviour

40.     Subsection (1) amends section 82 of the Housing Act 1985 to allow a secure tenancy to be brought to an end by a demotion order. Subsection (2) inserts new section 82A into the Housing Act 1985.

41.     New section 82A of the 1985 Act provides that a local authority, a housing action trust or a registered social landlord can apply for a demotion order. A demotion order will end the secure tenancy on a specified date. If the tenant remains in occupation, a new demoted tenancy will begin on the same date. The court may only make the order if the tenant, another resident of or visitor to the tenant's home has behaved in a way which is capable of causing nuisance or annoyance or if such a person has used the premises for illegal purposes. In addition the court must be satisfied that it is reasonable to make the order.

42.     New section 82A(8) defines what is meant by a demoted tenancy by reference to new section 143A of the Housing Act 1996 and new section 20B of the Housing Act 1988. Subsection (3)(c) and (d) of new section 82A(3)(c) and (d) confirms that any rent owed or overpaid on the tenant's rent account under the secure tenancy will be transferred across to the demoted tenancy. Subsection (5) of that section sets out certain basic terms of the demoted tenancy at the point at which it is created.

43.     Subsection (3) inserts new section 6A into the Housing Act 1988, dealing with the demotion of assured tenants of registered social landlords. A demotion order will end the assured tenancy on a specified date. If the tenant remains in occupation, a new demoted assured shorthold tenancy will begin on the same date. The court may only make the order if the tenant, another resident of or visitor to the tenant's home has behaved in a way which is capable of causing nuisance or annoyance or if such a person has used the premises for illegal purposes. In addition the court must be satisfied that it is reasonable to make the order.

44.     Subsection (3)(c) and (d) of new section 6A confirms that any rent owed or overpaid on the tenant's rent account under the secure tenancy will be transferred across to the new demoted tenancy. Subsection (5) of that section sets out certain basic terms of the demoted tenancy at the point at which it is created.

45.     Subsection (4) of clause 14 introduces Schedule 1, which amends the Housing Act 1996 and the Housing Act 1985 and sets out the legal position regarding demoted tenancies where the landlord is a local authority or a housing action trust.

Clause 15: Demoted assured shorthold tenancies

46.     This clause introduces new section 20B into the Housing Act 1988 which sets out the legal basis for the form of demoted tenancy that can be used by registered social landlords. A demoted assured shorthold tenancy is an assured shorthold tenancy during the demoted period but there is provision for the demoted assured shorthold tenancy automatically to turn into an assured tenancy after one year unless the landlord has issued a notice of proceedings for possession during that year.

47.     If a notice is issued the tenancy will remain a demoted assured shorthold tenancy beyond the first year until the notice is withdrawn or six months have passed and no proceedings have been issued; or, if proceedings have been issued, until they are determined in favour of the tenant.

48.     A demoted assured shorthold tenancy can be ended at any time during the demotion period. Unlike non-demoted assured shorthold tenancies a possession order granted on the basis that the landlord has given the required notice under section 21(4) of the Housing Act 1988 can take effect within the first six months of the tenancy.

Clause 16: Proceedings for possession: anti-social behaviour

49.     This clause introduces new provisions relating to the court's exercise of discretion in possession proceedings. Subsection (1) introduces a new section 85A into the Housing Act 1985. Subsection (2) introduces new section 9A into the Housing Act 1988. The effect of these changes is that when a court is considering whether it is reasonable to grant a possession order against a secure or assured tenant under one of the nuisance grounds for possession, the court must give particular consideration to the actual or likely effect which the anti-social behaviour has had or could have on others.

Clause 17: Devolution: Wales

50.     This clause ensures that all functions of the Secretary of State arising from the amendments to the Housing Acts mentioned are, so far as exercisable in relation to Wales, to be carried out by the National Assembly for Wales.

     PART 3: PARENTAL RESPONSIBILITIES

Clause 18: Parenting Orders under the 1998 Act

51.     This clause amends the existing power to make parenting orders contained in section 8 of the Crime and Disorder Act 1998 by removing the restriction that guidance and counselling sessions cannot be provided more than once in any week. The term "sessions" is replaced by the term "programme". The new section also inserts a new power to allow a programme to consist of or to include a residential course provided the court is satisfied that this is likely to be more effective than a non-residential course and that any interference with family life is proportionate.

 
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