Select Committee on Delegated Powers and Regulatory Reform Twenty-Third Report


ANNEX 1

ANTI-SOCIAL BEHAVIOUR BILL

Memorandum by the Home Office

INTRODUCTION

This memorandum sets out the delegated powers conferred by the Anti-social Behaviour Bill. It explains in each case the purpose of the power; the reason why it is to be left to delegated legislation; and the nature and justification for the parliamentary procedures that apply.

The Anti-social Behaviour Bill is in 9 parts and has been drawn up by four Government Departments. Part 1 tackles the nuisance of premises used for the supply, production and use of class A drugs. Part 2 gives social landlords a range of powers to deal with anti-social behaviour affecting social housing. Part 3 reinforces parental responsibility for the anti-social behaviour of their children, including truancy. Part 4 gives the police power to disperse groups of people within designated areas with high levels of anti-social behaviour. Part 5 reinforces existing and provides new sanctions for dealing with anti-social behaviour. Part 6 tackles the misuse of airguns and imitation weapons. Part 7 provides additional powers to tackle environmental nuisance. Part 8 enhances powers for the police to deal with public order and trespass. Part 9 contains general provisions.

PART 1: PREMISES WHERE DRUGS USED UNLAWFULLY

Clause 1, subsection 9: Power to permit the Secretary of State to exempt certain types of properties or specific properties from coverage by the clause

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

The powers contained in Clause 1 allow for properties where there is proven nuisance arising from the sale, use, production of Class A drugs to be the subject of a closure notice issued by the police. The matter is then referred to a court for consideration of a closure order under section 2. Clause 1, sub-section 9 allows the Secretary of State to exempt certain classes of property or specific properties from its scope.

The power is regarded as necessary to ensure that certain types of properties, in some circumstances, where such nuisance could potentially arise, are exempt from potential closure that would fundamentally affect their ability to provide services for the public good. In these circumstances the public interest would be best served by allowing these premises to be exempt from closure.

The Government also wishes to ensure that any such exemptions are not exploited by unscrupulous persons claiming to provide services of this type, or individuals working within such agencies who choose to act outside of the law. The power to make exemptions is seen as a reserve power that will only be used if it becomes necessary in the light of experience. It is for this reason that this matter has been left to subordinate legislation.

The order making power is subject to the negative resolution procedure. In the Department's view this is the appropriate level of parliamentary scrutiny for a power of this nature

PART 2: HOUSING

Schedule 1, 143F subsection 3 introduced by clause 14 in Part 2 : Power to make regulations for the procedure to be followed when reviewing the decision to seek possession of a demoted tenancy.

Power conferred on:    Secretary of State and the National Assembly for Wales

Power exercisable by:    Statutory Instrument

Parliamentary Procedure:  Negative resolution

Part 2 of the Anti-Social Behaviour Bill gives social landlords new and more effective tools to deal with anti-social behaviour and a new duty to publish policies and procedures on anti-social behaviour. These measures were subject to public consultation between 2 April and 12 July 2002.

Clause 14 introduces demoted tenancies. Many landlords have found introductory tenancies (introduced in the Housing Act 1996) a very effective way of controlling anti-social behaviour in new tenants. The new demoted tenancy scheme will allow landlords to deal with existing secure or assured tenants in a similar way.

Eviction of a secure or assured tenant can be a long process, although new court rules introduced in October 2002 have made it faster. The new provision will mean that tenants who act anti-socially can be demoted from a secure or assured tenancy by the court to a less secure form of tenancy. If the tenant continues to misbehave following demotion it will be quicker and easier to end the demoted tenancy. The period of demotion will normally be for 12 months but can be extended if a notice of proceedings for possession is issued. During this time they will not have the right to buy or some other enhanced tenancy rights

The scheme acts to punish anti-social tenants (through the loss of security, right to buy etc) and warn them (since if they continue to misbehave swift action can be taken to end their tenancy). But it also acts as a positive incentive to change their behaviour: if they stop causing problems, they can regain a higher level of tenure security and rights.

Clause 14(4) introduces Schedule 1 that amends the Housing Act 1996 and sets out the legal position regarding demoted tenancies where the landlord is a local authority or a housing action trust.

Such a demoted tenancy can be ended by a similar procedure to that applying to introductory tenancies under the Housing Act 1996. Section 143F of Schedule 1 stipulates that if a landlord serves notice of its intention to take proceedings to end the tenancy, the tenants have the right to request a review of the landlord's decision. If no review is requested within 14 days of the service of the notice, or the decision to evict is confirmed on review, then the court is bound to make a possession order in the landlord's favour. The landlord's decision must comply with usual administrative law principles and may be challenged by way of judicial review.

Subsection 143F (3) provides that the Secretary of State, or in Wales the National Assembly for Wales, may make regulations as to the procedure to be followed by a landlord when conducting the internal review under this section.

The purpose of the power is to allow the flexibility of delegated legislation to specify the detail of the appropriate procedure to be followed at review in the light of experience.

The regulations may include provisions such as the level of seniority of the person carrying out the review, that they should not have been involved in the original decision. They may also include provisions on the circumstances under which a tenant is entitled to an oral hearing and whether and by whom they may be represented by at the hearing.

A similar power is conferred on the Secretary of State in relation to issuing regulations in connection with Introductory Tenancies. (Housing Act 1996 Clause 129 (3)). The Introductory Tenants Review Regulations (SI1997/72) were introduced in 1987.

The first regulations issued under new section 143F of the Housing Act 1996 are likely to be very similar to the Introductory Tenancy Review Regulations but may be amended subsequently in the light of experience.

The order making power is subject to the negative resolution procedure. In the Office of the Deputy Prime Minister's view this is the appropriate level of parliamentary scrutiny for a power of this nature.

PART 3: PARENTAL RESPONSIBILITIES

Clause 20, subsection 1: Power to make regulations relating to parenting orders in cases of exclusion from school.

Power conferred on:    Secretary of State and the National Assembly for Wales

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 20 enables LEAs to apply to magistrates' courts for parenting orders for parents of children who have been excluded from school.

Subclause 20(1)(b) gives the Secretary of State for England and the National Assembly for Wales the power to make regulations which specify the precise conditions which local education authorities must satisfy in order to apply for a parenting order in cases of exclusion from school. It is envisaged that these regulations will specify that LEAs should only be able to apply for parenting orders after 2 fixed period exclusions occurring within 12 months of each other or one permanent exclusion. Draft regulations are attached for information.

The concept of what are or are not considered to be appropriate conditions may change over time. This might be in the light of experience, consultation or as a result of an overall change to the Government's policy on exclusions. It is important to have the flexibility of regulations to respond to any such changes.

The regulation making power is subject to the negative resolution procedure. This follows precedents for parliamentary scrutiny adopted in analogous education legislation and is considered appropriate for matters of procedural detail.

Clause 21, subsection 4: Power to make regulations which define how the costs associated with the requirements of a parenting order.

Power conferred on:    Secretary of State and the National Assembly for Wales

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 20 relates to the process of making a parenting order under clause 19 of the Bill.

Subclause 21(4) allows the Secretary of State for England or the National Assembly for Wales to make regulations which define how the costs associated with the requirements of a parenting order - for example the provision of counselling or guidance sessions - should be met. It is envisaged that in most cases this cost will be covered by the local education authority. However, in some cases it will be more appropriate for schools to meet the costs. The regulations will set out how this should be agreed between the LEA and the school. Draft regulations are attached for information.

Matters of administrative detail such as this are best left to regulations as this allows flexibility to adjust in the future to any alteration in circumstances; for example, any future changes to the legal and financial relationship between school and LEA.

The regulation making power is subject to the negative resolution procedure. This follows precedents for parliamentary scrutiny adopted in analogous education legislation and is considered appropriate for matters of administrative detail.

Clause 23, new section 444: Penalty Notices for parents in cases of truancy

Power conferred on:    Secretary of State

Power exercisable by:    Statutory instrument

Parliamentary procedure:  Negative resolution

Section 444 of the Education Act 1996 provides that a parent commits an offence if his or her compulsory school age child who is a registered pupil fails to attend school regularly. Subsection (1) of clause 23 adds two new sections (444A and 444B) after section 444.

This clause enables authorised local education authority and school staff and the police to issue penalty notices where they have reason to believe an offence has been committed under section 444(1) of the Act.

The power to make regulations is given at subsections (3) and (6) of the new s.444A, and at subsections (1) and (2) of the new s.444B. Regulations are needed to specify:

  • the form and content of penalty notices; the monetary value of penalties (including different penalty levels for different circumstances and payment periods); how the local authority to which a penalty is payable will be decided; methods by which penalties may be paid; records to be kept; and, the purposes for which LEAs can use revenue from the penalty notices scheme.

  • the circumstances in which penalty notices may be issued; the types of staff whom local education authorities or head teachers may authorise to issue notices; the withdrawal of penalty notices in prescribed circumstances and preventing or stopping prosecution for the particular offence for which the notice was issued, the issuing of certificates confirming payment of the penalty, the action to be taken if a penalty is not paid and codes of conduct relating to penalty notices.

Draft regulations are attached for information.

The matters set out in the regulations deal with technical and administrative arrangements which are too detailed to be set out in primary legislation. Furthermore, the flexibility inherent in the regulatory approach would allow further review and fine tuning of the arrangements whether as a result of feedback on administrative processes or in the light of changing circumstances. For example, we expect that the appropriate amount of penalty to be paid under the scheme will have to be reviewed in due course.

The regulation making power is subject to the negative resolution procedure. This follows precedents for parliamentary scrutiny adopted in analogous education legislation and is considered an appropriate level of parliamentary scrutiny for a power of this nature dealing with procedural and administrative matters.

PART 4: DISPERSAL OF GROUPS ETC

Clause 34, subsection 1: Power to issue Code of Practice in relation to officers' functions under Part 4

Power conferred on:    Secretary of State

Power exercisable by:    Code of practice

Parliamentary procedure:  Laid before parliament after being made

Clause 34 imposes a duty on the Secretary of State to issue a code of practice about the exercise of officers' functions under Part 4. Officers will be under a duty to have regard to the code.

The purpose of the code is primarily to provide guidance as to the exercise of officers' powers to give or withdraw an authorisation under section 29 and the exercise of the power to disperse and to take unaccompanied children home under section 29. It is likely to cover issues such as evidence required before an authorisation can be given and before the power to disperse is exercised.

It is also likely to provide advice to police on notifying parents when they take unaccompanied children under 16 home. It is also likely to cover the recording of directions given by police officers.

No parliamentary procedure is regarded by the Department as necessary for Codes of Practice for this purpose. It follows the precedent of Codes of Practice issued to the police under sections 39A of the Police Act 1996 and sections 45 and 51 of the Police Reform Act 2002.

PART 5: SANCTIONS

Clause 37, subsections 8 to 10: Power relating to the commencement of the powers contained in clause 37

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  None

Under the Police Reform Act 2002, orders can be issued in the County Court where there are related proceedings, for example in eviction cases. However, they can only be issued to the individuals who are subject to those proceedings i.e. the tenant themselves.

Clause 37, subsections 5 and 6 enable the County Court to make Anti-Social Behaviour Orders against any other person, including juveniles, whose behaviour is a factor in the proceedings. The child, partner or friends of a tenant could be joined to eviction proceedings, for example, where their behaviour is a factor in that eviction. Much of the same evidence will be used to prove both applications, meaning minimum disruption to the court process, and a single hearing avoids the need for a separate hearing in the magistrates' court.

However, juveniles are not routinely dealt with in the County Court at present. Consequently, through subsections 8 to 10, the Government is seeking flexibility to phase commencement to allow for procedures, training and good practice to be developed. The experience gained in the first phase areas will be spread across the country to ensure that practitioners, courts and all those involved will be able to use the power effectively when they get it. Providing for a specified time period for the initial commencement will facilitate the administrative/legislative process for rolling out the provision to the rest of England and Wales.

The Government does not intend to delay or phase commencement of the power to join adults to proceedings in the County Court.

As is normal for commencement powers, no parliamentary procedure is specified.

Clause 39, subsection 3: Powers to alter the age range for the issue of penalty notices for disorder down to 10, to inform the parent or guardian in the case of under-16s that their child has received a penalty notice, and for the parent or guardian to be liable to pay the penalty

Powers conferred on:    Secretary of State

Powers exercisable by:    Statutory Instrument

Parliamentary procedure:  Affirmative resolution

Clause 39 extends the power to issue penalty notices for disorderly behaviour to 16 and 17 year olds. Clause 39 (3) provides powers to alter the age range for penalty notices to an age not lower than 10; to inform the parent or guardian of a young person aged under-16 that their child has been issued with a penalty notice ; and for that parent or guardian to be liable for payment of the penalty.

These powers are regarded as necessary by the Department to allow the penalty notice for disorder scheme to be extended to under-16s. The pilots of the adult scheme have shown that most of the disorder offences are alcohol related. These low level anti-social offences are also strongly associated with juveniles. The extension of the scheme will provide the police with a useful measure to tackle this kind of offending behaviour.

By extending the measure to under-16s, there is a need to provide a power to ensure that parents and guardians are informed that their child has received a penalty notice for disorder. They have a right to know what behaviour their child has been involved in and to allow them the opportunity to take action to prevent a further repetition of the behaviour without further recourse to the youth justice system. The introduction of penalty notices for under-16s also means that a power is necessary to allow parents or guardians to be liable for the payment of the penalty. Those aged under-16 will only have limited money available to pay a penalty notice and as their parents have a responsibility to take proper care and control of them it is therefore appropriate for parents to assume responsibility for the payment of the notice. Section 137 of the Powers of Criminal Courts (Sentencing) Act 2000 already provides for a parent or guardian to be ordered to pay fines imposed on young persons.

The order making power is subject to the affirmative resolution procedure. In the Department's view this is the appropriate level of parliamentary scrutiny for a power of this nature.

Clause 39, subsection 4: Power to specify different amounts for different ages for penalty notices for disorderly behaviour.

Powers conferred on:    Secretary of State

Powers exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 39 extends penalty notices for disorderly behaviour to 16 and 17 year olds and provides a power for their extension to under-16s. Clause 39 (4) amends section 3 (1) of the Criminal Justice and Police Act 2001 to provide the power to specify different amounts for different ages by order.

This power is regarded as necessary by the Department to ensure that any penalty imposed on a young person under 16 is proportionate and also takes into account the fact that they only have a limited amount of money available to them. The Secretary of State under section 3 (1) of the Criminal Justice and Police Act 2001 can already specify the amount payable for a penalty offence by order. For the adult scheme the penalty for upper offences, such as section 5 public order offences is £80 and £40 for the lower tier ones, such as drunk and disorderly. The power would allow different amounts to be specified for the younger age groups similar to the way in which there is a limit for juveniles on the maximum amount payable for fines.

The order making power is subject to the negative resolution procedure. In the Department's view this is the appropriate level of parliamentary scrutiny for a power of this nature.

Clause 41: Powers to exclude penalty offences from the available offences for which accredited persons or community support officers may issue penalty notices.

Power conferred on:    Secretary of State

Power exercisable by:    Order made by statutory instrument

Parliamentary procedure:  Affirmative resolution

Clause 41 provides for additional powers to be granted to community support officers (CSOs) and accredited persons. Both CSOs and accredited persons are given powers to stop cycles (clauses 40(3) and 40(6)) in order to issue fixed penalty notices by amendments to Schedules 4 and 5 of the Police Reform Act 2002.

Clause 41(5) inserts a new paragraph 1(2)(aa) in Schedule 5 of the Police Reform Act. This gives accredited persons powers to issue fixed penalty notices in respect of the offences in the list set out in s1(1) of the Criminal Justice and Police Act 2001, as amended by order under s1(2) of that Act, but excluding offences under section 12 of the Licensing Act 1872 or section 91 of the Criminal Justice Act 1967.

Clause 41(7) of the Bill inserts paragraph 15A in schedule 5 to give the Secretary of State a power, by order, to provide that paragraph 1(2)(aa) of this schedule (penalty notice powers for accredited persons) shall have effect as if certain powers mentioned in the order are excluded from the list of offences in s1(1) of the 2001 Act as it stands at the time the order is made.

Paragraph 1(2)(a) of Schedule 4 to the Police Reform Act already gives CSOs powers to issue fixed penalty notices in respect of all the offences set out in s1(1) of the 2001 Act.

Clause 41(4) of the Bill inserts paragraph 15A in schedule 4 to the Police Reform Act to give the Secretary of State a power, by order, to provide that paragraph 1(2)(a) of this schedule (penalty notice powers for CSOs) shall have effect as if certain powers mentioned in the order were excluded from the list of offences in s1(1) of the 2001 Act as it stands at that time that the order is made.

Both clause 41(4) and clause 41(7) are therefore powers for the Secretary of State to limit, in relation to accredited persons and CSOs, the penalty notice powers available to them in comparison to the full range of penalty notice powers available to police officers.

This is considered to be sensible given the different nature, training, skills, deployment and powers of police officers, CSOs and accredited persons. The power will enable a more considered and discriminating grant of fixed penalty notice powers to CSOs and accredited persons which are appropriate to each of their roles. Without this power, any additions to the list of penalty offences would automatically apply to all three categories of persons.

The order making powers in clauses 41(4) and 41(7) are subject to the affirmative resolution procedure. This would enable consideration by Parliament in the same instrument, at the same time, of additions to the list in s1(1) of the 2001 Act under s1(2) of that Act as well as exclusions from applicability to CSOs and accredited persons made under clauses 41(4) and 41(7).

Clause 42, subsection 6: Power to extend court ordered local authority reports to 12-16 year olds.

Powers conferred on:    Secretary of State

Powers exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 42 introduces court ordered local authority reports for 10 and 11 year olds. Court ordered secure remands are not available for this age group and the court can only bail the child or remand them to local authority accommodation. If remanded to local authority accommodation then the local authority would decide where the child would be placed. The measure will allow a criminal court to require a local authority to report back within 7 days on how it would undertake it's responsibilities if the court decided to remand the child to local authority accommodation. The report would allow the court to make a decision on whether to bail or remand with the full knowledge of where the child will be placed on remand. At the moment they have to make that decision without knowing where the child will be placed. Clause 42 (6) provides the power to allow the measure to be extended to 12-16 year olds.

The power is regarded as necessary by the Department as we want to learn from the operational experience of implementation for 10 and 11 year olds before rolling out the measure for 12-16 year old persistent offenders. It could provide the courts with an alternative option to secure remands in cases where the home environment is influencing the offending behaviour and where they nonetheless could be safely managed in an appropriate non-secure but structured and stable environment. For example, where the local authority reported back that they had suitably trained foster parents available.

The order making power is subject to the negative resolution procedure. In the Department's view this is the appropriate level of parliamentary scrutiny for a power of this nature.

PART 6: FIREARMS

Clause 45, subsection 6: Power to prohibit certain air weapons

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Affirmative resolution

Part 6 of the Bill introduces a number of changes to the Firearms Acts with a view to tacking the misuse of air weapons and imitation firearms, and to introducing stricter controls over specially dangerous air weapons.

Clause 45 makes specific provision for prohibiting the sale, transfer, manufacture and import of air weapons which use the self contained gas cartridge system. This is achieved by adding these weapons to the list of prohibited firearms in section 5(1) of the Firearms Act 1968. Anybody already in possession of such an air weapon will be allowed to retain it upon obtaining a firearms certificate.

These air weapons are vulnerable to conversion in a number of ways so as to fire conventional ammunition and have been increasingly used in gun crime. The Forensic Science Service is aware of at least 80 serious offences involving these weapons in England and Wales since the beginning of 2001, covering murders, attempted murders and serious woundings.

Although a specific control has been included in relation to self-contained gas cartridge systems, it is important that any safeguards introduced now are proof against any new design which might come onto the market in future. Clause 45 therefore includes amendments to existing order - making powers which will enable the Secretary of State to make future provision in respect of any air weapons which appear to be specially dangerous.

As well as being able to respond in good time to any worrying new changes in design, it is also important to have a flexible power which can be used to tailor any solution to the problem identified. A power to add specially dangerous firearms to the list of prohibited weapons in section 1 of the 1968 Act already exists by virtue of section 1(4) of the Firearms (Amendment) Act 1988 but this does not apply to air weapons. Although an amendment could be sought to apply section 1(4) to air weapons as it does to other firearms, this would mean that only a blanket prohibition could be imposed when licensing might be more appropriate.

For these reasons, clause 45(6) amends section 1(4) of the 1988 (Amendment) Act in a way which gives maximum flexibility. It does so by adding a new section 1(4)(A). Thus, as well as a complete ban, it will also be possible to allow ownership only in some cases (eg existing owners) or make it conditional on obtaining a firearms certificate. If new weapons are prohibited, different exemptions may be required depending on their nature and particular legitimate uses (see for example the exemptions in sections 2 to 7 of the Firearms (Amendment) Act 1997).

The order making power is subject to the affirmative resolution procedure. This is considered to be the appropriate level of parliamentary scrutiny for a power of this nature and is in line with the existing power in section 1 of the Firearms (Amendment) Act 1988.

PART 7: THE ENVIRONMENT

Clause 57, subsection 4: Power to issue directions in relation to unlawfully deposited waste

Power conferred on:    Secretary of State and the National Assembly for Wales

Power exercisable by:    Statutory directions

Parliamentary procedure:  None

Clause 57 provides additional powers to control the unlawful deposit of waste ("fly tipping"). Paragraph (4) of the clause supplements section 59 of the Environmental Protection Act 1990 by introducing to that Act a new section 59(A) on directions and information in relation to exercise of powers under section 59. The new section 59(A)(1) will provide the Secretary of State for Environment, Food and Rural Affairs with the power to issue statutory directions setting out categories of waste to which a waste regulation authority the (Environment Agency) or a waste collection authority (local authorities) should give priority for the purposes of exercising its powers under section 59 of the 1990 Act.

At the moment, a voluntary agreement between the Environment Agency and the Local Government Association advises local authorities that they should deal with fly-tipping incidents involving non-hazardous waste and that the Environment Agency should deal with incidents involving hazardous waste and serious environmental crime. However, not all local authorities are following this agreement. This has led to a situation where there is confusion about who is responsible for dealing with fly-tipping. There is also inconsistency between local authority areas, with some taking a stricter stance than others so that fly-tipping is simply transferred to areas where the local authority is less strict. Consequently, the Environment Agency is not being allowed to focus its actions and resources where it could be most effective.

The Government is therefore requesting this power so that it can direct all local authorities to deal primarily with the fly-tipping of non-hazardous waste in their areas and the Environment Agency to deal primarily with hazardous waste and serious environmental crime. It is intended that the Secretary of State will issue these directions by way of a short, focused guidance note, after consultation with the Environment Agency, local authorities and other interested organisations. Local authorities will retain the flexibility to decide exactly what steps should be taken to deal with individual incidents and fly-tipping in their areas. Over time, any amendments will be made by re-issuing the guidance after appropriate consultations.

Clause 58, subsection 1: Power to exclude land from litter authority powers to take remedial action

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 58(1) amends s.92(10) of the Environmental Protection Act 1990, by substituting for it new s.92(10)-(12). Section 99(12) that contains a new order-making power for the Secretary of State.

In its current form, s.92(10) provides that s.99(9) does not apply to "relevant Crown land or relevant land of statutory undertakers". (Section 99(9) provides that further to its service of a litter abatement notice that has not been acted upon, a local authority may itself enter the land in respect of which the notice was served in order to clear litter or refuse, and recover from the person served with the notice its necessary costs of so doing.)

Clause 58(1), if enacted, will provide, by new s.99(10), that s.99(9) will not apply to any land to which (new) s.99(11) and (12) apply.

New s.99(11) applies to "any relevant Crown land which is occupied for naval, military or air force purposes.

New s.99(12) applies to "any relevant land of a statutory undertaker in relation to which the Secretary of State has specified, by order, that it is requisite or expedient that, in the national interest, [s.99(9)] above should not apply.

It is therefore being provided that an exemption currently enjoyed by all "relevant land of a statutory undertaker" from a litter authority's direct intervention power under a litter abatement notice shall no longer apply, except in those cases where the Secretary of State specifies in an order that such an exemption is requisite or expedient in the national interest.

It is not envisaged that extensive use will be made of this order-making power. The general purpose of clause 58 is to remove an exemption enjoyed by inter alia the relevant land of statutory undertakers, and to increase litter authorities' powers. However, on the assumption that in a limited number of cases such an exemption is justifiable, in the national interest, it is provided that it may be reimposed on a case-by-case basis. Such an Order might be made for example in respect of land where it is dangerous or otherwise undesirable that litter authority personnel should have access, e.g. at power stations, airports, etc.

The order making power is subject to the negative resolution procedure. In the Department for the Environment, Food and Rural Affairs' view this is the appropriate level of parliamentary scrutiny for a power of this nature.

PART 8: PUBLIC ORDER AND TRESPASS

Clause 61, subsection 5: Power by order to amend the definition of "relevant site manager"

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Clause 61, subsection 5 allows for the Secretary of State by order to amend the definition of "relevant site manager" in subsection (4) by adding a person or description of person.

The definition includes local authorities and registered social landlords. In order to cater for future developments in site management, the power may be needed. This will increase flexibility when ensuring there is adequate site provision within a local authority area, thus enabling the police to use section 62A powers of direction more effectively.

The order making power is subject to the negative resolution procedure. In the Department's view this is the appropriate level of parliamentary scrutiny for a power of this nature.

PART 9: GENERAL

Clause 67: Commencement

Power conferred on:    Secretary of State and the National Assembly for Wales

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  None

This is a standard commencement power.

All commencement powers will be exercised by the Secretary of State in relation to England and Wales with the exception of Part 2, and clauses 19 to 22, 24(1), 46 to 51, 53, and 57 and 58 which will be commenced for Wales by the National Assembly for Wales. The National Assembly for Wales may by order amend the sections inserted in to the Education Act 1996 by clause 22 to apply them to Wales. The Bill does not apply to Scotland with the exception of Part 6, which is a reserved matter and will be commenced by the Secretary of State.

As is normal for commencement powers, no parliamentary procedure is specified.

GUIDANCE

The Committee may also wish to note that the Bill contains a number of references to guidance to be issued by the Secretary of State. The Government intends to issue draft guidance notes on the powers contained in the Anti-social Behaviour Bill, as far as is practicable, during the course of Parliament's consideration of the Bill. Three outline examples from the Department for Education and Skills relating to clauses 18, 19 and 22 are attached for information.

June 2003


 
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