Lords Sitting of 11 September 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Peterborough.

Anti-social Behaviour Bill
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Closure notice]:
Lord Dixon-Smithmoved Amendment No. 1:
Page 1, line 5, leave out "superintendent" and insert "inspector"
The noble Lord said: The amendment deals with simple questions of organisation and man management in the police service. Most, if not all, police forces operate with core services, particularly in crime investigation and so on, run from police headquarters. Below that they have divisions, the number of divisions depending on the area and size of the force. Below the divisions, they run on community policing teams largely based on the towns—in some counties it will be the main towns—and so on. The question is about the appropriate level at which a decision to start on a closure notice procedure should be taken.
Divisions have superintendents as their head, and community policing teams have inspectors as their head. Of course it is difficult to make a clear distinction between one level and the next because the whole operation, if working effectively, works as a team. However, the essential local knowledge and requirements for opening procedures for a closure notice will be at the local level. The issue then is whether the provision is at the appropriate level to authorise the action.
I have a preference, from what I have learned through life in the management of men, for giving as much responsibility as possible to the lowest possible level. I inquired what my police service felt about the issue, and I do not know whether I reassure the Minister when I say that it agreed with the Bill, although it accepted my point. However, the description that I received from my police service was that the superintendent level was appropriate, because he would exercise an audit to make sure that the procedures were or had been properly carried out. It acknowledged that the initiative would almost always come at inspector level.
432
If inspectors have the initiative and all that the superintendent does is offer an audit facility to make sure that the procedures have been correctly carried out—if the inspector is any good and worth his office, he will have it correct—I do not see why the responsibility should not lie there. If that happens and if anything goes wrong, the superintendent is in a position to deal with it. As the Bill proposes, if the matter has to go to the superintendent in the first instance, if anything goes wrong it has to go back to headquarters.
All that shifts the responsibility up the machine, and I do not like that; I prefer it lower down. I like to believe that officers at the level of inspector are responsible and capable of taking appropriate decisions vis-à-vis the community in which they work. They in any event will have the local knowledge on which the whole procedure is based, so that is where the responsibility should lie. The amendment chimes with what I feel about man management, so I thought the case certainly worth arguing before the Committee. I beg to move.
Lord Bassam of Brighton: It is one of those perennial debates to ask where responsibility should ultimately rest, on what the noble Lord would probably acknowledge was a strategic decision in terms of police operations. Many debates in this House have focused on the appropriate levels to take such decisions. On this matter, there is room for a quite understandable debate. I start from the same point as him: I, too, believe that responsibility should be forced down to the lowest possible level and closest to where events really happen in our communities. Therefore, I have great sympathy with him on that point.
However, we need to think about the effectiveness of the work of the superintendent. From our point of view in government, having taken very careful account of the police service's own views—I was very interested in the noble Lord's point about that—we think it necessary that the officer who authorises the use of powers should be of a sufficiently high rank to have the necessary overview of all law enforcement action conducted in the area. This was discussed at considerable length in another place, where the case for authorisation at inspector level was argued as well.
The Government have taken a careful look at the points that were made in that debate. Operational matters are always of great interest to us, and we want to make sure that we get matters right. Having listened carefully to what the police themselves have said on this matter—they must have had internal debates on it—we are still very much of the opinion that any change to the level of authorisation could in the end prevent the appropriate use of power as part of a range of measures to control drug supply and the serious nuisance that we all acknowledge it brings with it.
We acknowledge that inspectors take many operational decisions. But it is still necessary to ensure that the use of a power as strong as that proposed is appropriately authorised. We also believe that a

433
superintendent will be best placed to take a view on other relevant operations and to consult with the other agencies. That is an important issue.
It is certainly my experience as a local politician—perhaps the noble Lord, Lord Dixon-Smith, will have a similar view—that we, within the leadership team of the local authority, with the chief executive, used to meet on a regular basis to review policing within our borough. Those discussions always took place at a strategic level with the superintendent—who had the overview of that police division. It seemed to us that important decisions such as this are rightly located at that level. The superintendent has command of the whole of a division and understands and is constantly advised about what goes on within it.
I believe that it will be possible—and the police service obviously agrees with us—that the superintendent will be able to turn round decisions quickly and effectively. I cannot see that there will be an over-bureaucratisation at the level at which the decision is being demanded.
There are good precedents for this, in terms of the level of oversight. I cite in aid of our position the powers in Section 42 of the Police and Criminal Evidence Act 1984, which deal with the continued detention of suspects beyond the usual 24-hour limit and up to a maximum of 36 hours without the authorisation of a court, and Sections 56 and 58, regarding the suspect's access to legal advice and the right to have someone informed if the arrest is delayed. In those instances superintendent is the appropriate level. We believe that that is the appropriate level of seriousness in those instances, and that it accords with the case here.
I understand the point that is being argued. However, on careful reflection, and having consulted with members of the police service at some length on this matter and having listened to their views, we believe that we have got the provision right. It is for that reason that we resist the amendment. I hope that the noble Lord is convinced by that argument and will feel happy and confident in withdrawing it.
11.15 a.m.
Lord Dixon-Smith: I am grateful to the noble Lord for his response—and unsurprised. As I indicated, it chimes in with the feelings of the police service in my area, whose members I consulted on the issue. That said, I am bound to say that I do not agree—but that is because I happen to believe in a slightly different style, and so on. I do not think that the point is worth pursuing hard. I shall study with care what has been said in case it raises any further issues. But for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smithmoved Amendment No. 2:
Page 1, line 9, leave out "and" and insert "or"
The noble Lord said: I was moved to table this amendment because I found, on reading Clause 1, that I became slightly confused as to whether we were trying to deal with anti-social behaviour in the Bill—
434
which is what the Bill is all about—or whether in fact we were trying to control drugs. If we are trying to do that, the wording of the clause seems slightly odd.
Under the Bill as drafted, a premises may be closed if the relevant officer,
"has reasonable grounds for believing…that at any time during the relevant period the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug, and"—
these are the key words—
"that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public".
If you have some quiet, discreet agents who behave themselves, apparently that is okay, and you could not take closure action against them. I am quite sure that that is not what the Government intend.
It is perfectly clear that there are plenty of other laws that can be used against drug dealing and so forth; but you would not be able to close a premises down under this clause—which I had always assumed was an additional power to enable people to close crack houses. I still think that, because of what I believe to be slightly mistaken wording, it would be better to remove the word "and" and insert "or", so that if a premises is used in connection with drugs it can be closed down; or, if it is a base for anti-social behaviour of a serious form it can be closed down. But to require them both to be a prerequisite seems to me to leave a certain amount of confusion, particularly on the drugs front. I beg to move.
Baroness Walmsley: I oppose the amendment. The Government have plenty of tools to deal with the quiet, discreet drug dealer. But where there is a closure notice—which could have a very serious effect on innocent people living in those premises—the threshold needs to be higher than it would be if we had either the provision in paragraph (a) "or" that in paragraph (b). From these Benches, we believe that both are needed.
Lord Bassam of Brighton: In starting, I ought to remind the Committee why we are introducing the new powers to tackle the problems with properties where the use or supply of class A drugs occurs and to tackle the consequent serious nuisance and distress caused to neighbours and to the wider community. Those are the reasons behind them. We want to give the police a power that is quick and easy to use, but, to pick up the point made by the noble Baroness, Lady Walmsley, we must ensure that the power does not have unwanted—unwarranted, perhaps—or even undesirable consequences.
The amendment would remove the requirement for there to be both supply, production or use of class A drugs and serious nuisance. The matter was debated at some length in another place. One of the principle concerns—I understand it—was that the existence of "serious nuisance" would be difficult to prove, especially when it was considered that witnesses might be intimidated. We have already taken into account the fact that that can be an issue. I draw the noble Lord's attention to the need, referred to throughout

435
Part 1, for consultation with local authorities. Local authorities, after all, will be able to provide valuable information and background on anti-social behaviour at a property and provide professional witnesses to testify as to the serious nuisance arising from it.
I say that in the knowledge that many noble Lords live not too far from the House and that the difficulties with crack houses, in particular, in some of the inner London boroughs such as Kensington and Chelsea have been brought to our attention on many occasions. The view is shared throughout the Committee that it is important that local authorities and the police work closely together. That is our policy intent. We have been impressed by the work done by the Royal Borough of Kensington and Chelsea in close co-operation with the Metropolitan Police to tackle issues such as the use of crack in that area.
It would not be desirable to allow closure simply on the basis of the use of class A drugs, rather than on the basis of such use and serious nuisance. Some drug users do not pose any great danger to the community and are working gradually to overcome their problems of addiction, with the help of drug agencies. By removing the requirement to prove serious nuisance associated with drug use, we would create the risk that individuals who posed no immediate problem and should rightly be considered to be vulnerable or in treatment could be evicted or denied housing by landlords fearful of the possible consequences. That would make those individuals even more vulnerable and, perhaps, even cause greater harm in the immediate community. It could also create problems for voluntary sector organisations that work with such vulnerable people.
Finally, it is important to point out that the amendment would also create a power to close premises that caused serious nuisance alone. There are other ways of dealing with nuisance—another important point brought out in the debate—not least through many of the other tools included in the Bill. Issuing a closure notice to tackle such problems could, in some circumstances, be disproportionate. We want to use the power proportionately.
I hope that the noble Lord will not press the amendment, because of the unintended consequences or fall-out.
Lord Elton: The Minister said that there were other means of dealing with premises on which serious nuisance occurs. That focuses our attention on paragraph (a) of subsection (1). I share my noble friend's concerns about the matter. Can the Minister tell us, for instance, what powers of closure exist for premises on which class A drugs are produced, without the causing of any other nuisance, or on which they are supplied, without any other nuisance? If there is none, paragraph (b) weakens the weapon that the Minister wishes to put into the hands of the police.
Lord Dixon-Smith: I want to probe the Minister a little further before he responds. He has not sufficiently answered the question about people who use, supply or even manufacture drugs but do not
436
cause social nuisance. If we confine ourselves to the question of the use of drugs, I acknowledge that, as the Minister said, some people may be trying to get away from the drug habit. I agree that that would be an instance in which one would want to tread cautiously. However, as my noble friend Lord Elton said, paragraph (a) talks about the production and supply of class A drugs. I accept that there are things that can be done under the drug laws, but a person who is trying to withdraw from the drug habit is not likely to be in the business of production and supply. The question requires a little more critical examination.
The noble Baroness, Lady Walmsley, was concerned about the undesirable consequences for others if one did not link paragraphs (a) and (b). However, as one sees elsewhere in the Bill, they can be dealt with in other ways. We need not concern ourselves about that at this stage.
The Minister should expand on what he said. There is a weakness in what I would call the psychology of the Bill at this point. The wording is perfectly clear, and I have no doubt that those who must administer it will do so well and faithfully. However, whether it will necessarily work in the way in which the Government intend, because of the way in which it is worded, is another matter.
Lord Bassam of Brighton: I understand where noble Lords are coming from on the matter. I made the point that there were other ways of dealing with the problem, the most important being the fact that the police can tackle suppliers. Under the Misuse of Drugs Act 1971, offences can be brought to court without the premises necessarily being closed. The housing authority or social housing agency may want to evict tenants who breach their tenancy agreement by letting their premises be used for drug dealing. There are several ways in which the issues can be tackled.
We want to get the power right and use it proportionately. There are several other means of tackling the problem. I hope that that answers the point raised by the noble Lord, Lord Elton.
Lord Elton: I do not think that it does. I asked what powers there were to close premises if they were used for the production or supply—particularly the production—of class A drugs and no other nuisance was committed.
Lord Bassam of Brighton:Short of closures, there are evictions under housing legislation, ASBOs and ABCs. There are restrictions on tenancy rights such as short-hold tenancies. There is also the possible Use of Section 222 of the Local Government Act 1972 and the forfeiture of property. There are other means by which some of the problems can be tackled.
I understand the concerns, but it is important that we ensure that action short of closure can be taken and that other ways of affecting the use of a property or premises can be used. I have outlined some of those points in my responses.
11.30 a.m.
Lord Elton: I am sorry to be tedious on the matter, but we are getting closer to the answer with a steady drift of notes. The Minister said that there was a power of forfeiture of property, but he did not say under which Act. I am not so much bothered about that because he can tell me later which Act, but I want to know whether the property includes premises. The clause appears to be aimed at putting particular premises out of action. Is that because they are noisy or because they are used for drugs? The Minister's first supplementary answer has drawn us to the conclusion that it is because they are used for drugs.
We are now trying to distinguish how this power differs from others and whether it supplies something that is presently lacking. What appears to be lacking is the power to close the premises because they are being used for the production or supply of class A drugs and for no other reason. Does that power exist elsewhere?
Lord Bassam of Brighton: I have tried to establish the fact that there are other means. I take the point that the noble Lord is making. A range of measures are in place and it might be useful if I clarify them in correspondence so that I can describe how we see them working. We can then share the knowledge across the House.
We believe that we have struck the right balance. While I accept that some of the issues will not entirely satisfy Members opposite, that fact is most important. We do not want unintended consequences to flow from the way in which the power of closure can be used.
Lord Dixon-Smith: I am not totally convinced by what the Minister has said. If other powers exist and if they could all be used, we would not be introducing this one unless there had been a failure or breakdown in their use. We have not had a sufficient explanation.
However, on this occasion, I shall be kind to the Government and study carefully what the Minister has said. More importantly, I shall look forward to what he is to communicate to us. That may put our minds at rest and, if it does, we may be able to leave the subject. On the basis of what I have heard, I am tempted to take the view of the Committee, but for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Walmsleymoved Amendment No. 2A:
Page 2, line 2, after second "the" insert "landlord or the freehold"
The noble Baroness said: I rise to move Amendment No. 2A standing in the name of my noble friend Lord Phillips of Sudbury, who has been unavoidably detained. This is a probing amendment relating to closure notices. Clause 1(4) provides details of what is contained in such a notice, on whom it must be served and its effect. The amendment seeks to clarify who can go into a property after a closure notice has been served in respect of it.
438
Often, especially in cities, three people are interested in a house or flat: first, the person who habitually lives in it; secondly, the freehold owner; and, thirdly, an intermediate landlord, often with a long lease of 99 years. It is not clear from the clause as drafted whether the real landlord, the person with whom the tenant has a tenancy agreement and day-to-day dealings, will have the right of access to the premises when a closure notice is served. Surely, he or she ought to have that right.
My noble friend Lord Phillips and I are interested in what the Minister has to say. Is he able to clarify the matter? I beg to move.
Baroness O'Cathain: For clarification, will the provision also encompass the agent of the landlord? The noble Baroness has given a list of people who have the right to enter a property, but she has omitted the agent of the landlord.
Baroness Walmsley: We would like clarification on all those who have a financial interest in the property.
Lord Hylton: I support the general thrust of the amendment but from a housing management point of view. We all know that from time to time, or possibly regularly, some flats are used as crack houses or for distributing illegal drugs. It is most desirable that that use should be brought to an end, but one does not want the flat to be unusable for a long period. I hope that the Government have considered that and have in mind ways and means by which residential flats can be returned to that use with the minimum possible delay after the drugs, drug pushers and distributors have been removed.
Lord Bassam of Brighton: I have a charmingly brief note on this amendment and I hope it satisfies the noble Baroness. It states simply that the amendment is unnecessary as the owner is defined for the purposes of Part 1 in Clause 11. My reading of Clause 11 suggests that subsection (10) defines the owner of premises. I hope that that answers the point.
Baroness Walmsley: I thank the Minister for his reply. I am sure that my noble friend Lord Phillips will study Clause 11(10) with great interest and return to the matter if he is not satisfied. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Closure order]:
Lord Dixon-Smithmoved Amendment No. 3:
Page 3, line 3, at end insert "or"
The noble Lord said: The purposes of the amendments in this group are similar to those we discussed at the beginning of our proceedings. A magistrates' court may make a closure order only if three conditions are satisfied. This series of amendments is designed to probe whether that is appropriate and whether all three factors are essential. Amendments Nos. 3 and 4 take away the need for all

439
three conditions to be satisfied. That will streamline proceedings and allow action to be taken more easily in a situation which is fraught with difficulty. Unacceptable behaviour in public is a subjective issue and it is a problem. We therefore thought it would be useful if the Government were to explain why they believe all three conditions must be satisfied. If the Minister will answer that question, it may be that I shall be satisfied. I beg to move.
Lord Elton: We discussed this issue in the first group of amendments and I support this amendment for the same reason.
The Earl of Listowel: Will the Minister write to me when he writes to noble Lords who have previously spoken? Having listened to the debate, I am concerned about young people who are used to run drugs—13 and 14 year-olds who can make a lot of money that way—and the protections which exist to prevent that.
Lord Bassam of Brighton: This is a probing amendment, but it would undermine the test the court must use to issue a closing order. There are three tests, as the noble Lord said: first, the use, the production and the supply of class A drugs; secondly, the occurrence of disorder and serious nuisance; and, thirdly, the fact that the order is necessary to prevent further disorder. Amendments Nos. 3 and 5 would mean that the order could be issued if any one of those tests were passed. Amendments Nos. 4 and 6 would remove all but the drug-related tests.
We believe that these amendments would remove all the checks and balances created in the power to prevent a repeat of the problem with the extension of Section 8 of the Misuse of Drugs Act. We are most focused on that concern. The potential effect could be that a person using Class A drugs could end up being made homeless which would be a far greater penalty than the approach undertaken through the Misuse of Drugs Act, which seeks to impose fines alone for simple possession and to encourage such persons into treatment. Homelessness for possession would cause them harm and cause, as I argued earlier, greater harm within the community. Those are the reasons why we feel that we need to resist the amendment. It is important that those tests are in place and that they are given careful consideration.
Lord Dixon-Smith: We are back in the business of levels of satisfaction or dissatisfaction. I hear what the Minister has said; one might easily express a different view and both opinions would be valid. For now I shall accept the opinion of the Government and study it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 to 6 not moved.]
Lord Dixon-Smithmoved Amendment No. 7:
Page 3, line 7, at end insert—
"( ) The making of the order will not seriously diminish the quality of life of any resident of the premises who the court is satisfied was not involved with the unlawful use, production or supply of a Class A controlled drug."
440
The noble Lord said: We now come to a matter on which it may appear that I am switching to the other side of the fence. The great thing about working in Committee is, among other things, being able to test the intellectual integrity and strength of the Government's proposals.
The possible difficulty in closing premises relates to the definition of premises. If a house has multiple occupation, with people occupying individual rooms, and one occupier operates his room as a crack house, are the premises the room, the floor of the building, or the total building? We need to know the answer to that question. If "premises" means the individual's room and that is closed, that would be fine. No innocent third party would be involved and we could he clear that the closure is appropriate. If the floor of the building were to be closed, there might be half a dozen or 10 innocent parties who would be affected by the closure and if the building were closed the effect could be far worse.
There is a more delicate situation than that. What would happen if a person, a member of a family. operates one room of a house as a crack house and is so dominant over the members of the family that they can do nothing about it? The family could be living in a detached house. As the provision is worded it would be appropriate to close the house. One would then have a homeless family whose position would he seriously damaged. There are serious questions about whether, in that kind of circumstance, the closure would be appropriate.
We were moved to table this amendment to try to tease out the answers to those kinds of dilemmas. It is a serious issue because one has to be very sure when dealing with all these cases that one does not fortuitously and by accident seriously upset the lives of totally innocent parties who might otherwise be affected. I hope that the Minister will he able to make the position clearer so that we can be satisfied on that. I beg to move.
11.45 a.m.
Baroness Walmsley: I support the amendment, which stands in the name of the noble Lord, Lord Dixon-Smith, and myself. I shall return to some of the issues that he raised under some later amendments standing in my name. My main concern under this amendment is children or elderly relatives or even spouses who may be quite innocent and ignorant of what has been going on and probably quite powerless to do anything about it. Clause 1(4)(b) allows access, but it is difficult to see how someone could remain in a property that is under a closure order. An elderly person, who is reliant upon care services, would be deprived of them because those not living in the premises are banned from entering. How could such people manage?
Naturally, those who commit these offences should be dealt with, but if the elderly person is caused to become homeless or to lose essential services, another way should be found to deal with the matter. So far I am not

441
convinced that the Government have addressed how such innocent people should be dealt with. Perhaps the Minister can explain.
Lord Avebury: As I understand it, crack dealers often take over the houses of vulnerable people. An elderly person may, for example, live in a flat and be intimidated, threatened and otherwise coerced into allowing the premises to be used for the sale and use of class A drugs. So that elderly person is an involuntary participant in the drugs operation, but the courts may make a closure order against the premises. I see nothing in the Bill that obliges a local authority in a case of that kind to make provision for the rehousing of the elderly person concerned.
There is a gap in the Bill or perhaps there is a provision elsewhere that would require the court to make inquiries into the circumstances of such an elderly person and to make arrangements in advance of the police implementing a closure order so that the person is not thrown out onto the streets. I hope that the Minister can give us some reassurance on that point before we leave this clause.
Lord Elton: The amendment is a kind of monitoring process on Clause 1(2)(a), is it not? I imagine a way round this real difficulty is proper consultation with the local authority. I wondered whether that provision should be made slightly more specific, for the reassurance of the Committee, so that the kind of ills that have been described by my noble friends and others do not occur. Social services must establish who are the potential casualties, must they not, and how such casualties can be avoided?
Lord Bassam of Brighton: This is an interesting debate. In a sense, it is an expansion of the debate we had earlier—it is that debate but the other way around. I understand where the noble Lord, Lord Dixon-Smith, is coming from. I believe that the noble Lord, Lord Avebury, is right to express concern because we want to get the matter right.
The legislation itself addresses the issue. Taking up the point raised by the noble Lord, Lord Elton, in regard to Clause 1(2)(a), it is there made plain,
"that the local authority for the area in which the premises are situated has been consulted".
So there will be a process of consultation. That is why the closure notice must contain information on sources of housing and legal advice so that the local authority is fully informed and involved in the decision to seek closure. Earlier I made the point that it is important that local authorities and the police work closely together to deal with exactly such a problem. It is not unknown for dealers to install young children in premises to act as a cover and to make the authorities think twice about taking action. Yes, they are right to make the local authorities think twice about taking action, but in the end action will have to be taken. However, it is important that the welfare of vulnerable members of a household is carefully taken into consideration and arrangements made to provide
442
support and facilities for them, although it is highly desirable to take out of circulation the person causing a nuisance by running a crack house.
One must balance the effects of a closure notice on any resident who is not involved in the use, production or supply of class A drugs, with all the knock-on effects on local residents by allowing the premises to remain open. The power, as drafted, particularly with the important consultation requirement, strikes a sensible balance. Going back to an earlier point, because decisions will be made at senior level after a great deal of discussion between the relevant authorities—in this case the police and. primarily, the local authority or the registered social landlord—the power strikes that balance.
The amendment is defective in that it would place an additional, and probably unwelcome and unnecessary, burden on the police and prevent in most circumstances the effective use of the power. I think the noble Lord will accept that point because it is very hard to make a judgment about quality of life as the amendment is drafted.
So, I understand the spirit and thinking, which have been made plain during the short debate, behind the amendment. However, the balance is about right. The important point of consultation, and the fact that adequate advice and support must be given to the members of a household who are not necessarily involved in the production and supply of class A drugs, will enable the clause to work effectively.
Lord Elton: I remember a not famous but very striking occasion when a certain Secretary of State was addressed by an infuriated leader of local authorities. He pointed out that the Secretary of State had the duty to consult. He asked when he was going to consult. The Secretary of State banged the table and said: "I am consulting now. I am telling you what I am going to do". This is an example of the weakness of this kind of language in legislation.
I do not know about my noble friend, but I should he much happier for the local authority to have a duty on the face of the Bill regarding these proceedings and not merely a right to be consulted. That would be a more secure protection of the vulnerable people concerned. The issue obviously needs much more thought than it can be given now. I hope my noble friend and the noble Baroness will leave an opportunity for that thought to be thought.
Lord Avebury: I wondered whether the noble Lord in his reply was going to say something about the Homelessness Act. Local authorities have only just been required to submit strategies to the ODPM. The closing date was 30th July. Now they are being faced with an additional cause of homelessness that would not have been taken into account in formulating the strategies. As the noble Lord, Lord Elton. has pointed out, although local authorities have to be consulted in advance of a closure notice, they do not have to do anything about it. So, we expect local authorities to read this clause and to go back to the draftsman of the homelessness strategy and say, "We need to have a

443
quick amendment of our strategy because this matter obviously cannot await the five-year period during which local authorities are allowed to continue with the strategies submitted on July 30th".
Therefore, there is a lacuna here, as the noble Lord, Lord Elton, points out. We have not completed the circle. We have said that the local authorities must be told that a closure notice is contemplated and that they have a duty under the Homelessness Act to make sure that someone who is involuntarily dragged into the class A drug operation on the premises is not rendered homeless as a result of non-action by him or herself. We do not close the loop by then placing a duty on local authorities under the Homelessness Act to make sure that this additional potential cause of homelessness has been incorporated into their strategies.
Baroness Walmsley: I very much agree with the noble Lord, Lord Elton, and my noble friend Lord Avebury. The wording of Clause 1(2)(a) is far too weak and we need provision on the face of the Bill to ensure that the interests of vulnerable people are taken care of.
My noble friend Lord Avebury makes a very good point: we do not want someone being made homeless by this closure notice and then being told that they have made themselves deliberately homeless by the involvement of someone in the household with crack. That would be outrageous. So I encourage the noble Lord, Lord Dixon-Smith—and perhaps we can negotiate about this—to table a different amendment on Report which the Government might be a little more willing to consider.
Lord Hylton: Everything that has been said from both Opposition Benches on these recent amendments reinforces the earlier point that I sought to make about the housing management aspect of this matter. Obviously, drugs, drug dealers and distributors must be dealt with. They must be dealt with quickly and the residential area must be brought back into its proper use as rapidly as possible.
Lord Bassam of Brighton: We have many debates in this Chamber in which we reflect long and hard on the precision of wording. While listening to noble Lords' comments, I have been reading through the relevant paragraphs in the Bill. The noble Lord, Lord Avebury, used the word "told". He said that the local authority had been "told" that a closure notice was going to be made. The provision is not about telling; it is about informing and consulting. The drafting is precise on that point. Clause 1(2)(a) states that,
"the local authority for the area in which the premises are situation has been consulted".
I do not view that as telling but as an active process with partners working together to ensure that there is an understanding of why it is desirable to close those premises and that an order should be sought. Subsection (b) continues that,
"reasonable steps have been taken to establish the identify of any person who lives on the premises or who has control of or responsibility for an interest in the premises".
444
I believe that that clause gets the tone right.
I also draw the Committee's attention to Clause 2(3) dealing with closure orders. That makes plain that, in the application considered by the magistrates' court, the magistrate must be satisfied that,
"the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order",
and that,
"the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public"
There are tests that satisfaction must be expressed to meet and match those tests. If the magistrates—
Baroness Walmsley: With respect to the Minister, we are not arguing that a closure order may not he necessary but for appropriate and adequate provision for vulnerable people who might be adversely affected by it.
Lord Bassam of Brighton: I fully understand that point. The point I was trying to develop was that in seeking the closure order the officer will understand exactly what the court must look at and will be very mindful of the need to be precise and why that course of action is being taken. I understand the concern for vulnerable people—for people becoming homeless as an unintended consequence. I reflected that concern earlier. With the obligation to consult and the need to ensure that people living in the property are well advised and informed of other means of support, I think that there will be adequate protection against that happening.
If the matter comes before the court the magistrate may take the view that it is not necessary to close the premises but that action should simply be taken against the dealers, so the other people living in those premises can remain. With the detailed work and preparation that will go into these cases before the matter gets to that point, the likelihood of someone being made homeless as a consequence of this approach is extremely unlikely.
I should like to think that most local authorities and social landlords would react and perform in a highly responsible way because they are obliged to do so. Of course I am, as ever, inclined to listen to what is said in the Chamber and if we think there is more precision required in the wording, we shall give the issue further thought. But, as it is, the provision should work well with the commitment to consultation and the other protections.
Noon
Lord Elton: When the Minister gives the matter that further thought, will he try to discard the optimism with which he is reading the Bill and consider the position of an old biddy living in a house, two-thirds of which have been taken over as a crack house, who must discover that she has the right to lodge an appeal or must seek information about what she should do next? The initiative that will have precipitated that situation will be taken by the state in the form of the

445
police; the state in the form of local authorities should surely have a duty to intervene on her behalf, rather than waiting to be sought out by her.
I know that I am putting the case in rather extreme terms—I can see that from the Minister's face—but he has put his case in extreme terms. I hope that between now and Report we shall find some median way.
Baroness Maddock: The Minister has not replied to the valid point made by my noble friend Lord Avebury about the Homelessness Act 2002 and how the work of local authorities under the Act will tie up with the Bill, given that they should already have their strategies in place. The Minister will know that one of my concerns for local authorities is the very different strategies that they are being asked to return. Indeed, I raised that issue when we were discussing the Local Government Act 2000.
Lord Dixon-Smith: We have had a useful discussion around the amendment. The Minister has made a good attempt—as does the Bill—to deal with the issue, but I am not sure that he has satisfied us all. There is consultation and consultation; and there is action and there is action. The real question, which has not been clearly answered, is whether, if the local authority said, "In our judgment, closure would be so damaging that it should not take place", the police would have to accede to that response to consultation, shall we say, if it is not guidance. There is potential for a hiatus.
I am grateful to all those who have taken part in this discussion; they illustrated better than I could the dilemma that everyone faces. I should correct one thing that the Minister said. He said that the amendment would place an extra burden on the police. In fact, it would be the magistrates who must make the judgment, because the Bill deals with orders before the court. So it would be the magistrates' problem and that, among other things, is what magistrates are for—to make such judgments. We are dealing with a judgment between the criminal problem of drugs, drug abuse and crack houses and the social consequences of dealing with it. Even more than for the local authority, that is a judgment that forms a proper part of the magistrates' function.
As I said, this has been a useful debate. I am sure that we will all study with care what has been said. We will need to consider the matter to decide whether we cannot produce something that is an improvement on both the Bill and the amendment.
Lord Avebury: Before the noble Lord withdraws his amendment, when it comes to redrafting it, will he consider giving magistrates the power to make an order requiring the local authority to rehouse specific persons who are resident in the premises? Then, if a vulnerable old or mentally disabled person is living in the house, the matter will not just be left to the consultation prior to the making of the order; what
446
happens in the court will determine the local authority's responsibility to look after the interests of that person.
Lord Dixon-Smith: I am grateful to the noble Lord, Lord Avebury, but it would be inappropriate to try to negotiate a new amendment on the Floor of the House. I am bound to say in response to him that for some people, the physical act of forced removal from one property to another is in itself a deep problem. As anyone who has had to deal with the closure of old people's homes will know, that can be immensely stressful.
So there are many issues that we must consider. As I said, I am grateful to all those who have taken part in the debate. I think we shall have some fairly heavy discussions, but, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smithmoved Amendment No. 8:
Page 3, line 9, leave out "three" and insert "six"
The noble Lord said: The amendment deals with a simple little matter: for how long closure orders should last and for how long they may be allowed to continue if an extension is granted. There are two ways of looking at that. We had to do something to try to tease out from the Government why they settled on the particular period in the Bill. I have a feeling that a longer period than is suggested in the Bill may well be appropriate.
Curiously enough, properties develop a reputation. Closure must be for long enough for the reputation to be lost. Three months with a three-month extension would not necessarily achieve that. Although it may seem harsh, especially in the light of our preceding debates, if we are to opt for closure, the period should be of greater duration than the Bill provides. My cock-shy is as good as anyone else's. I beg to move.
Baroness Walmsley: I fear that we cannot support the amendment. It strikes me that there is a certain inconsistency between the noble Lord's amendments this morning. A couple of minutes ago he was talking about caveats against closure and now he wants places to be closed for twice as long. We do not want an urban desert in which properties are closed and boarded up. That attracts vandalism not just to that property but to others around. I should have thought that three months was quite enough time for the authorities to deal with the matter. In fact, that limit would put pressure on them to do so.
Lord Bassam of Brighton: The noble Baroness, Lady Walmsley, has hit the nail on the head: it is inconsistent. I made a note about properties and reputations. Frankly, if we are obliging the local authority to keep properties empty for longer, the area is sure to gain a reputation. Inevitably, tinned-up properties, as they are often known, look ugly and distasteful and become objects for vandalism. The important thing is to ensure that the problem is dealt

447
with, that the closure order is effective, that the property is brought back into use as soon as possible and that some aura of normality is returned to the area.
The noble Lord said that his add-ons were a cock-shy, as it were. We think that we have the balance about right. It is important that properties are made good use of. It does nothing for the locality to keep them empty longer than necessary, but we recognise the importance of taking action and of that action being visible. I hope that the noble Lord will feel able to withdraw his amendment. It would not do many of our neighbourhoods much good if local authorities were obliged to keep premises empty for as long as the amendment provides. That would not help; in fact, in some circumstances it could make the situation worse.
Lord Dixon-Smith: I am unsurprised by the reaction of the noble Baroness, Lady Walmsley, but the position is not really that inconsistent. If we are genuinely arguing that the procedure must be carefully undertaken arid closures made only in appropriate circumstances when they are absolutely necessary, a longer period of closure may not be inappropriate.
I hear what the Minister says. This is another of those areas where it is simply a question of opinion. I should he the first to acknowledge that the Government's opinion is at least as good as mine, although I should not say that it is superior. We are all entitled to our opinion; that is one of the great things that our debates are about. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith movedAmendment No. 9:
Page 3, line 25, leave out subsection (9).
The noble Lord said: The amendment is necessary because the subsection that it would remove is an oddity. Subsection (9) states:
"it is immaterial whether any person has been convicted of an offence relating to the use, production or supply of a controlled drug".
Do we normally include immaterial things in the Bill? I find that strange. If it is immaterial, we do not need the phrase. This is one of several points in the Bill where wording is unnecessary or tautologous. The words themselves suggest that they should not be there. I beg to move.
Lord Bassam of Brighton: From the Government's perspective, the amendment reduces the clarity of the clause as drafted. The use of the power to close premises should not depend on criminal proceedings, which may or may not be pursued separately.
The inclusion of subsection (9) in Clause 2 seeks to ensure that no delays are caused in court by any confusion on the issue. The power is, after all, about providing relief to the community suffering nuisance and disorder. It would be undesirable in the extreme for a case to be held up pending the conclusion of
448
separate criminal proceedings. By providing what we see as clarity in the Bill, we simply seek to ensure the effective use of the power.
Lord Avebury: I agree with the noble Lord. Lord Dixon-Smith. Without the subsection, if someone sought to argue in court that the closure notice ought not to be agreed to because nobody in the premises had been convicted of a drug offence, the court would say that the legislation did not require it to take cognisance of whether someone in the premises had such a conviction. The court would go ahead and make the closure notice on the basis of what is left in the clause. The Minister is wrong and should at least agree to reconsider the matter before Report, with the benefit of advice from the lawyers, and perhaps in discussion with Members of the Opposition party.
Lord Dixon-Smith: I could not help thinking that some of the Minister's remarks meant that such a conviction was material. The three words at the beginning of the subsection, "It is immaterial", cause the problem. Will the Minister agree to look at that wording? There could be a more appropriate way to express the sentiments and to make the matter clearer. It is not the sort of wording that we should include in the Bill.
Lord Bassam of Brighton: I think it is immaterial. Obviously, at all times we listen to what Members of the Committee say. We will seek another view on the matter. I am satisfied that it is immaterial. It is important that we have that clarity in the Bill to ensure that the power can be used effectively. In the end, we may simply disagree on the point.
Lord Wedderburn of Charlton: Before my noble friend sits down, this is a very difficult matter. Do the Government take the view that subsection (9) is necessary so that the person making an argument under subsection (6) can be told that he cannot raise the point?
Lord Bassam of Brighton: It is probably the case that having subsection (9) means that arguments that might otherwise occur do not happen. It obviates the need to get round that. That is why it is immaterial.
Lord Wedderburn of Charlton: That is nonsense, is it not?
Lord Bassam of Brighton: I simply disagree with the noble Lord on the point.
Lord Dixon-Smith: I am grateful for that final intervention. It makes the point that the wording should be looked at. I beg leave to withdraw the amendment, but we will probably have to take another cock-shy at it, at the very least, at a later stage.
Amendment, by leave, withdrawn.
12.15 p.m.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Avebury: Perhaps I may make a small point about the use of the word "but" in subsection (5). Is it the practice now to begin sentences with prepositions? I have noticed that it has crept into a number of Bills. Is there a style tsar in the office of the parliamentary draftsmen who has now dictated that the ordinary rules of grammar in that respect should be ignored? If we had the answer we could cease talking about the word "but" appearing at the beginning of clauses. Otherwise, I would like some justification for departing from those normal rules of grammar.
Lord Elton: Does the Minister agree that legislation, like speeches, should consist only of the minimum necessary number of words to make the point?
Lord Bassam of Brighton: I am inclined to agree. On the use of the word "but" in subsection (5), I am afraid that I am not a particularly good grammarian. My education does not extend that far. There is probably a style guru for drafting legislation. If there is, we have not met, but I may ask the question.
Clause 2 agreed to.
Clause 3 [Closure order: enforcement]:
Baroness Walmsleymoved Amendment No. 10:
Page 3, line 33, at end insert "except in relation to a child under 16 years of age"
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 11 and 12. This group of amendments deals with our obligation under the UN Convention on the Rights of the Child for young people to be treated differently from adults by the criminal justice system—if they must get involved with it at all.
Amendment No. 10 refers to Clause 3(3), which allows reasonable force to be used. I tabled this probing amendment to ask the Government to clarify the situation about force if a child should be in the premises, or even if a child should resist forcible entry. It does not seem right that any force should be used against a child, although I understand that the clause refers to the enforcement of a closure order on a building, not a person. However, people get involved in these things.
Amendments Nos. 11 and 12 refer to Clause 4, where the offences and penalties for contravention of a closure order are detailed. Here I do not believe that either a custodial sentence or a fine is appropriate for someone under 18 for such an offence. We are not talking about offences of actually dealing with crack cocaine, but about remaining in or entering premises under a closure order—something much less serious.
Young people do not respond well to custodial sentences. If we really want to turn round their lives and prevent them reoffending, sending them to gaol for six months for such an act is not a positive way to deal with it, and neither is a fine. If it is appropriate to
450
the income of a young person, as it should he, it will be very small and therefore ineffective as a deterrent. Under-18s have low incomes or none and are not eligible for benefits. Perhaps the parents would pay the fine to get the child off the hook and the child would get away scot-free and learn no lesson at all. However, a useful community sentence where they make a contribution to society could have a salutary effect on their understanding of what they have done and keep them out of prison or young offenders' institutions, which I believe is always desirable. I beg to move.
Lord Elton: I am glad that the first of the three amendments, at least, is only a probing one, bearing in mind the number of six-feet-plus 16 year-olds I have met, some of whom have been violent. I cannot see how those duties could be conducted without the use of suitable restraining force on such people, particularly when excited by drugs.
Baroness Scotland of Asthal: I understand the sentiments of both the noble Lord, Lord Elton, and the noble Baroness, Lady Walmsley, because they are both talking about a proportionate response. I, like the noble Lord, know a particular 13 year-old who is six feet one inch tall and whose father is six feet eight inches tall, so perhaps that is not unusual.
There will be a need to behave proportionately. That is why "reasonable force" is included in the Bill. Of course, the amount of force that would be reasonable to use in relation to a small child of tender years with very little strength and a great big hulking teenager bordering on 16, who may be obstreperous and difficult, would be very different. The noble Baroness will know that if one simply lifts a child in one's arms, that could be construed as using force to remove the child from the position.
The clause is drafted to ensure that constables exercising this power will do so reasonably and proportionately in relation to the circumstances that prevail at the time, which will vary, as noble Lords will know. I hope that that will reassure the noble Baroness.
On the second point in relation to community service, the noble Baroness is quite right: a community service order may often be appropriate. However, that may not always be the case, bearing in mind the activity participated in by the child. It may well be right that a small fine represents the extent of the culpability that prevailed on that occasion. The noble Baroness will also know that we are trying to give the sentencer a broader range of tools to use in an appropriate way in each individual case. When the Bill mentions six months' imprisonment, that is the maximum that may be imposed by the court. It is not a suggested mandatory sentence. I would be very surprised indeed if the maximum sentence were used often, if ever, but it is a parameter beyond which a sentencer cannot go.
We believe that it would be quite improper to tie the hands of the sentencer, who may wish to put together any combination of tools to meet the particular child's needs. It may be that the child would benefit from

451
some sort of counselling or that a therapy order would be appropriate. Therefore, although I understand why the noble Baroness alights upon community service as an appropriate way of dealing with many of these cases, it will not be the only way. I hope that she will agree, therefore, that it would be quite wrong to tie the hands of the sentencer in such a way.
Lord Elton: I am sure that I must be being stupid or that I have missed a bit of the Bill, but there appear to be only two alternative sentences available, and community service is not one of them.
Lord Wedderburn of Charlton: I am puzzled by my noble friend the Minister's response to this extraordinarily reasonable amendment. To put it generally, we have had the same sort of response from the Government on other Bills week after week. They say, "We must have this power or sentence in the Bill. Of course, we hope it will not be used; we hope something else will happen". If the Government believe that we should presume under-16s will not be sent to prison, why not put that in the Bill? After all, there must be more intelligent ways of dealing with them, however tall they are—I had not realised that height was a factor in sentencing policy to the extent thought by some noble Lords. Why not include in the Bill a presumption or statement that, in cases involving merely attending on the premises, we would not expect a custodial sentence?
We are constantly having debates on Bills when Ministers say, "It is not our intention that this should happen". I am sure that my noble friend will be aware of a very important decision in your Lordships' Appellate Committee on 10th July—Wilson v the Secretary of State for the DTI—in which the noble and learned Law Lords unanimously, one after another, restated that the intentions of Ministers are not law and are not to he taken into account in interpretation. What the Act says is what the courts will look at. I have summarised the judgment, but I am perfectly ready to cite the passages because I have them upstairs, although I am sure that my noble friend will be aware of that constitutionally important judgment.
One begins to worry about the attitude of our policy-makers to teenagers. We are going to lock them up for heavy petting and, although we hope we do not have to, if necessary, we will also lock them up for being on premises. I do not think that that is a very intelligent penal policy. My noble friend the Minister has made a much better case than her predecessors for what I call the "must have it but we don't intend to use it" policy. I appreciate that one will have to read the detail, but will she agree to look at the matter again?
Baroness Thornton: I humbly suggest to my noble friend Lord Wedderburn of Charlton that he read the Second Reading debate on this Bill. Many of the issues that he has expressed concern about were fully explored by noble Lords and the Front Bench. I am sure that many of his concerns and worries would be allayed if he took the time to read that debate carefully.
Lord Wedderburn of Charlton: I am most grateful to my noble friend Lady Thornton. I have read the
452
debate. I was not present because I was under voluntary detention in a medical institution. I appreciate her point, which I greatly value, but I still maintain the points that I put to my noble friend the Minister.
Baroness Scotland of Asthal: First, it is not necessary to include community sentences in the Bill because they are generally available. If the noble Lord, Lord Wedderburn of Charlton, would be kind enough to look at the scale of fines, he would see that it varies. The importance of checking those scales is to make it clear to sentencers that there is a maximum fine above which they cannot go. That is why there is a maximum length of imprisonment and fine. Those are the two areas that will determine how the courts deal with sentences. The other means of disposal will indeed be available.
Lord Elton: I think that the Minister said that community service would be available under other provisions. However, we are dealing with a case brought under this Act—as it will be—are we not? If the case is brought under this part of the Bill to the court, as I read it, the court has only two alternatives other than discharge—imprisonment or a fine.
Baroness Scotland of Asthal: That is not how we understand the Bill, although I will certainly look at this point again. I understand that the reason the maximum is expressed in this way is, as I have just indicated, to set the limits in relation to fines and imprisonment. Noble Lords will know that in relation to those matters there can be a very wide spectrum, so it is absolutely necessary to make it clear to sentencers that six months' imprisonment or the maximum fine is there.
Noble Lords will also know that the Criminal Justice Bill deals with criminal offences up to a maximum of six months or otherwise. It also deals with the alternatives to prison or fines available to the courts when they are dealing with types of offence that fall within that bracket. Those powers of disposal will be imported by the sentencers' ability to deal with an alternative to six months' imprisonment.
Baroness Sharp of Guildford: Given the wording of the Bill, will the court be given any discretion in these cases? The wording implies that on summary conviction there shall be either:
"imprisonment for a period not exceeding six months, or … a fine not exceeding level 5 … or … both".
It does not imply that there is any discretion in the hands of the court.
12.30 p.m.
Baroness Scotland of Asthal: If the noble Baroness will be kind enough to compare the way in which sentences are generally expressed—this comes back to the way in which draftsmen draft maximum sentences—she will see that this complies with the common practice. So if the position were as she has outlined, it would mean that the maximum sentence would have to be imposed in every case where a maximum sentence of 30 years or 25 years had been

453
provided. We know that that is not how it works. The provision merely sets the outer limit of what the court can do on a given occasion. Obviously I understand the noble Baroness's anxiety, but I think that I can reassure her. I have a feeling that the noble Lord, Lord Phillips, who sits behind her, is anxious similarly to reassure her that my comments are sound.
Lord Phillips of Sudbury: How right the noble Baroness is—but she would not expect me to say just that. We live in terror of and amazement at the parliamentary draftsmen. However, surely our job is to make the legislation as comprehensible as possible to the general public and not merely clear to the experts in legal drafting. The Minister will want to consider one point. One could very simply say, "without prejudice to other sentences", or—to put it more clearly—"the maximum that shall be available with regard to a sentence of imprisonment", or "the maximum with regard to a fine shall be". As it stands, unless one were learned in the subject, one would think that that is what the law is providing and nothing else.
Baroness Scotland of Asthal: The difficulty is that, as virtually every piece of legislation currently adopted or adopted for a considerable time shows, that is the drafting style. It provides for,
"a period not exceeding six months".
That obviously encompasses the thought and the reality that one could impose a sentence of less than six months. It is simply the way in which it is phrased.
Lord Phillips of Sudbury: The noble Baroness is a hold and legal Minister. I am simply saying that although this is absolutely correctly the tradition, it is a tradition that could well be changed for the benefit of the public.
Lord Wedderburn of Charlton: Before my noble friend responds, I think that she has now done damage to the massive forensic skill which, as usual, she exhibited in reducing the differences between all of us to a very small canvas. Now she throws in the whole tradition and style of the draftsmen. With the greatest respect to parliamentary draftsmen—which indeed I have—the parliamentary draftsman does not control Bills. Parliamentary draftsmen are there to give us the way in which to enact legislation. If he can do so only by reference, as my noble friend said in her last answer, I suggest that he should be asked to look at it again. If we mean maxima, why not say so? If we mean a presumption that these sentences will not apply, why do we say that someone staying on premises is liable to imprisonment or a fine at the levels, as my noble friend rightly said, or both? It is not just a question of style; it is a question of putting one's intentions into the law.
Lord Elton: To return to my point, I am not concerned with maxima; all that seems to me to read perfectly clearly. What I am concerned with is that I would expect there to be a paragraph (c) which states, "or sentenced to community service". The noble
454
Baroness said that that is not necessary because courts, as I now understand, have unlimited powers when dealing with certain sorts of offence which are generally described and not particularly listed of' applying all these recourses, unless they are limited in the statute under which the matter is brought to the court. That is certainly something that I was not aware of before. It is quite good to have people who are not lawyers discussing the law, because it is mostly people who are not lawyers who are affected by the law. I would strongly suggest that a paragraph (c) should be inserted for that purpose. I hope that, at Report stage, we shall convince the Government that it should be so.
Baroness Walmsley: I thank the noble Baroness for her attempts to set our minds at rest. I am afraid that she has not succeeded. I also thank other noble Lords who supported my case, in particular the noble Lord, Lord Wedderburn.
On Amendment No. 10. I thank the noble Baroness for her reassurances about what reasonable force means in relation to children. I wonder if she can tell us whether there will be guidance about that for the officers in question. On Amendments Nos. 11 and 12, the Minister says that this is just a range of sentences. My concern is that if we give sentencers a range of sentences, eventually they will use it. A six-month custodial sentence for a young person committing the crime of simply being somewhere is disproportionate. The law should impose penalties which are proportionate to the crime; but this does not.
As for the argument about whether this is the whole range of sentences available or whether we can have community sentences, what we are concerned about is that the Bill says, "either (a) or (b)". It does not say that it is the maximum or the only set of responses. We must not be slaves to the parliamentary draftsmen. We are supposed to be law makers in this place, and it is their job to enable us to put into the penal code what it is that Parliament decides to do. As we develop other types of sentence such as restorative justice, community sentences and who knows what in future, how many hundred years will it take parliamentary draftsmen to catch up in terms of wording legislation?
I suspect that the reason why the Government want to have this sort of provision in the Bill is that it sounds like being tough on crime. That is a very easy way of not dealing with the problem. We need to be effective on crime. Banging up a young person for six months for being in some premises is not an effective way of dealing with crime. Although I am sure that we will come back to it, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Closure of premises: offences]:
[Amendments Nos. 11 and 12 not moved.]
Clause 4 agreed to.
Clause 5 [Extension and discharge of closure order]:
[Amendments Nos. 13 to 15 not moved.]
Lord Dixon-Smithmoved Amendment No. 16:
Page 5, line 25, at end insert—
"but failure to effect service shall not invalidate the proceedings and shall not prevent a hearing taking place"
The noble Lord said: Clause 5 deals with both extension and discharge of a closure order. I must admit that the clause itself causes me a bit of confusion, but perhaps I should deal with my Amendment No. 16 before I come to my complaint about the clause. Both of these actions can take place if, under subsection (9),
"a summons is issued in accordance with subsection (3) or (7)"—
one for extension and the other for extinguishment—
"a notice stating the date, time and place at which the complaint will be heard must he served on—

(a) the persons to whom the summons is directed …

(b) the persons mentioned in subsection (6)(c) and (d)…

(c) such constable as the justice thinks appropriate (unless he is the complainant);

(d) the local authority (unless they are the complainant)".

The question is whether the proceedings would he valid if any of those people did not actually receive the summons. There may be occasions when the proceedings should go ahead as a matter of urgency, particularly in an instance of an application for extension. It would be in the interests of someone who might be summonsed to be, shall we say, obscurely hidden away somewhere so that the summons could not arise so that the hearing could not take place. We tabled the amendment, which I believe is reasonable, in order to explore that little issue. Obviously, every effort should be made to ensure that everyone affected should receive a summons and know what is taking place. I am not sure that it should necessarily invalidate the proceedings if they have not been so served with the summons, particularly if they might be suspected of deliberately avoiding receiving it.
I find the clause rather difficult. A person who wishes to extend a closure order must complain to the court. That is fair enough. I understand that complaint in this instance must be a legal term. It becomes more odd if a person wishes to apply to have an order extinguished—complaint still has to be made to the court. The same terminology is used. In complaining to the court, one is, in effect, complaining about the complainant—that is why I am complaining about the whole lot.
This is merely a drafting peccadillo. In one sense, I can understand why the two processes are in the same clause. But, for the sake of clarity, it would have been preferable for the Bill to be drafted so that one clause dealt with extension of a closure order and a second clause dealt with discharge of a closure order. Then I should have nothing about which to complain. The amendment has a serious point, as does my complaint about the clause. I beg to move.
Lord Phillips of Sudbury: As one who, in his early life, had to serve lots of summonses on lots of people, I perhaps got a fellow feeling for at least part of the sentiment underlying the amendment. In passing this legislation, we do not want to lumber the police and
456
courts generally with a set of formal requirements that are formidably impractical on occasion. Although I do not sign up wholly to the wording of Amendment No. 16, there are issues to be considered. The amendment would add a provision to Clause 5(9), which lists those who must be served with a summons deriving from the clause. Included are persons mentioned in subsection (6)(d). Subsection (6) states:
"Any of the following persons may make a complaint to an appropriate justice of the peace",
including, in subsection (6)(d),
"a person who has an interest in the closed premises".
That phrase,
"an interest in the … premises",
crops up in several places; namely, Clause 1(2)(b) and Clause 2(6)(c). The Ministers' officials have helped me inform the House that there is no definition of the phrase,
"has an interest in the closed premises".
Reasonably, they say that that gives flexibility so that, according to particular circumstances, one will not get trapped by a tight definition.
On the other hand, as regards the practical issue of who is to be served, one's mind must be made up as to who are persons who may "have an interest in the premises", especially where the provisions state that those would be persons interested who were not served originally. That is a formidable impediment to the practical application of this subsection. There may be an explanation that I have not foreseen. If there k not, I commend to the Minister that we review that. The last thing that we want is to legislate a set of so-called protections for the public that are unworkable.
Lord Elton: Perhaps I may raise a point which perhaps I ought to have asked as regards Clause I, but it is relevant here. There is a similarly formidable list of places where notices of intention have to be affixed and served in Clause 1. I wonder whether a failure to meet any of those five requirements would render further proceedings invalid.
12.45 p.m.
Lord Avebury: Could the Minister tell us whether a person who was formerly a lodger in a premises would be taken to have had an interest in the premises? Obviously he does not have a pecuniary interest, but he was living there. He has an interest—in the ordinary English use of the word—because, presumably, he was forced to look for somewhere else to live at the time when the closure notice was made. He might wish to return. Is he one of the recipients on whom the notice has to be served? Will that not create rather a lot of difficulties?
Baroness Scotland of Asthal: I believe that I shall be able to explain how we think this will work to the satisfaction of all Members of the Committee. Turning to the noble Lord, Lord Dixon-Smith, first, I understand that he has an anxiety about whether these cases would be defeated for non-service. The noble Lord will know that, in the ordinary way, service of summonses will

457
usually be effected by post. Personal service of the summons is not required. If the parties then choose not to attend any hearing, that will not prevent or invalidate the proceedings. However, I thank the noble Lord for raising the point because I know that it is one that might have caused others some difficulty. From what the noble Lord says, I know that he accepts it is right and proper that any person who may have a proper interest should be notified about it.
The noble Lord, Lord Phillips of Sudbury is right to say that we have left the phrase "interest in" in order to have a certain amount of flexibility. The noble Lord will know that there are various different forms of tenure; namely, local authority, owner occupier, registered social landlord, and so forth. Therefore, it would be wrong simply to list all those just in case one, by some misadventure, missed off someone who had a proper interest.
We hope to confirm the range of those who should be included in appropriate guidance. The only reason for not defining it in the Bill is to give the greatest breadth. Noble Lords will know, having gone with me through the Commonhold and Leasehold Reform Bill, that there is to be a new tenure introduced of commonhold tenancies. If we were to make the list now they may or may not be included, and there may be further changes. This is a way of appropriately dealing with that.
We touched on this earlier. I should like to remind your Lordships that before a closure order is made pursuant to Clause 1(2)(b),
"reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for or an interest in the premises".
That is when the original order is made. Therefore, in relation to each premises, before the original order is made there should be clarity as to who has, or had, interest in the property.
I turn now to the point raised by the noble Lord, Lord Elton. The aim of Clause 1(6) is to ensure that those resident in a property arc aware of the action being taken against the property. That is not unreasonable and it is perfectly proper.
Lord Elton: I am grateful for that. My concern about this clause, which I believe is analogous to the concern of the noble Lord, Lord Phillips, is whether failure in one of the five requirements would invalidate proceedings at the stage which we are now discussing. Would it be valid grounds for objection? In other words, a notice had not been fixed to the coal-house door, as it were.
Baroness Scotland of Asthal: My Lords, it would not invalidate the proceedings in relation to those who were not so affected, but obviously if action is to be taken against a party with an interest, appropriate notice should have been served on them. It will be incumbent on those serving the notice to ascertain all persons with a proper interest. In relation to those so served, the proceedings would be affected, although it would not invalidate the whole procedure. Obviously
458
if someone claims that they had an interest which was not properly taken into account, then perhaps there would be an argument that the notice was not valid because their interest was not properly considered. However, I shall clarify the specific position and write to the noble Lord.
As regards the position of a lodger. the noble Lord, Lord Avebury, will know that lodgers are in a slightly more insecure position because they have no security of tenure.
Perhaps I may return to our original debate. I do so because much concern was expressed about who has a proper interest and what the court should do. Not only is it incumbent on those seeking a closure order to ascertain whether such an order is the most appropriate action to take in the circumstances to cure the ill we are discussing, they must also make it absolutely clear who has an interest in the property.
My noble friend Lord Bassam referred noble Lords to Clause 2 dealing with the position of the courts because the court must decide whether the making of an order is reasonable. I shall take the example cited by the noble Lord, Lord Elton, of the little old lady being terrorised by a thug who has taken over the property. It would be perfectly possible for the court to say that under the particular circumstances there should not be a closure order. Those circumstances are that the police have arrested the said thug for the misuse and supply of illicit drugs pursuant to the Misuse of Drugs Act 1971 and are minded to oppose bail; the magistrate would also be minded to agree to oppose bail. So out goes the nasty thug and in remains the little old lady, warm and cosy in her flat, now relieved of the burden of the property being run as a crack house. All parties are now happy.
It is not that such orders must be made, but the court will have the opportunity to decide whether it is reasonable to do so. That is why my noble friend Lord Bassam invited noble Lords to look at what is provided in Clause 2(3). The court has to be satisfied that,

"(a) the premises in respect of which the closure notice was issued have been used in connection with the unlawful use, production or supply of a Class A controlled drug;

(b) the use of the premises is associated with the occurrence of disorder …

(c) the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified".

As I have said, it would be perfectly possible for the court to decide that the circumstances of paragraphs (a) and (b) are proven, but in the particular circumstances of the little old lady, it is not necessary to make a closure order to prevent the occurrence of such disorder because it is possible simply to arrest the thug and relieve the little old lady of the imposition that has been put upon her.
Lord Elton: I thank the noble Baroness for trying to allay the earlier concerns expressed by myself and other noble Lords about the little old lady and the social services, but what she is saying is that, in fact, very often—or at least on some occasions—the court may suggest to the police a different course of action from that

459
of closure, but the Bill has to provide for those cases when the court agrees that closure is necessary and, regrettably, the little old lady is involved. Our concern was for that circumstance.
Baroness Scotland of Asthal: I see the point, but this anti-social behaviour order is being crafted so as almost to oblige the various services to work in partnership and in concert with each other. Such issues will have to be addressed before the court would be minded to make an order.
I shall conclude by dealing with the example of the lodger. Of course I shall reflect on the points made by the noble Lord, Lord Avebury, and, if necessary, write further to him. The lodger does not have security of tenure. At the point at which the first closure order is made, the lodger may or may not be a person with an interest, but it is likely that once the closure order had been made and the property closed, the lodger would no longer be in residence and thus would no longer have a right to be there. It may be that therefore the lodger would no longer be a person with an interest.
Lord Avebury: Would the noble Baroness be kind enough to broaden her response to my question to include licensees in general? There may be others on the premises who are not parties to tenancy agreements, leasehold or freehold, or to the new forms of tenure she mentioned earlier. Such people may simply have been allowed by the freeholder to reside in the premises perhaps for an extended period even though they may well have no tenancy rights at all. Nevertheless, the particular premises would have been their home.
Lord Phillips of Sudbury: I am grateful for the response from the noble Baroness and I hesitate to raise points of detail. However, this is the only chance we have to do so, although there will be an opportunity for reflection. In her response the noble Baroness said that, in order to serve a closure notice, it will be necessary to establish who has an interest in the premises. That is quite right, but the language of Clause I merely refers to the authorising officer being satisfied that "reasonable steps" had been taken to find out who has an interest in the premises. That offers a certain latitude.
I do not think that a similar latitude has been imported into Clause 5. Subsection (9), which would be amended by Amendment No. 16, is set out in categorical terms. It states that a summons must be served on a person who has "an interest" in the closed premises, and goes on to specify that it should also be served on someone on whom the closure notice was not served. The noble Baroness will see my point: you give your best shot at finding out who has an interest in the property and serve on them, but the subsection states that even if those best endeavours have not found all those with an interest, those people who have not been discovered are still entitled to be served.
As an old-established practising hack solicitor, I see here the makings of a lawyers' field day. The Government should reflect on whether, despite the
460
danger of exhaustive definition—I take the point made by the noble Baroness—it might make sense in this case to consider the severe practicalities and perhaps seek to define what is meant by "having an interest" in this clause.
Lord Wedderburn of Charlton: I wonder whether it is convenient for me to add a question set out in two parts which is relevant to those remarks. Surely nothing set out in Clauses 1 or 2 would limit the operation of Clause 5(9), especially as regards its interplay with subsection (6). I appreciate the points made by my noble friend, but surely the fact that a notice must be served is still valid and needs to be looked at. I say that because, as usual, the range of actors in the drama, as it were, does not exhaust the possibilities.
Little old ladies and lodgers are two cases, but what about deserted wives? Modern jurisprudence gives them types of interest. Are they to be included on the list? Must inquiries be made into the family and connubial history of all those who have resided or currently reside in the premises?
Perhaps this is not relevant to the amendment, but since we are discussing the Bill in Committee, I refer to the point that surely in more general terms something should be set out about what is meant by an "interest" here, otherwise one will be inviting litigation.
1 p.m.
Baroness Scotland of Asthal: I can reassure my noble friend by referring to what I said earlier about the guidance to be issued in relation to this matter.
I take up the point made by the noble Lord, Lord Phillips of Sudbury, in particular in regard to those of us who have had the joy of practising in these areas. The noble Lord will know that you may take reasonable care to gather-in everyone who has an interest when you take your first step but, once you have made an order closing a property, anyone who has an interest whom you have somehow failed to discover will usually turn up fairly quickly thereafter to let you know all about it. It is therefore perfectly fair and reasonable that the question of extension is put more in a mandatory term for those who have an interest because, by the end of the three-month period, anyone who has an active interest in the property is likely to have appeared, and they must be first.
I hope that the noble Lord is satisfied with that explanation. I should say that what was noted in my speaking notes to be a short, brisk issue has taken 23 minutes to dispose of.
Lord Dixon-Smith: We are not quite finished yet, I am afraid. The noble Baroness has not dealt with my secondary complaint that the Bill deals, in similar terminology, with both extension and discharge in one clause. I inquired whether the Government might consider it better, for the sake of clarity, to separate the two issues. In general, I am not in favour of adding words to a Bill. However, as the Bill is presently worded, it needs reading with considerable care

461
otherwise you will end up in a state of confusion. I certainly did on the first two or three occasions on which I read it and I felt moved to complain about it.
Baroness Scotland of Asthal: I empathise with the noble Lord but I did not share that disability. But then, as the noble Lord, Lord Phillips of Sudbury, would say, we lawyers are extremely peculiar.
Lord Dixon-Smith: I am tongue-tied at such a confession. However, returning to the substance of the amendment, I, too, am somewhat surprised that it should have provoked such an intense debate. It has been helpful. I shall certainly not attempt to sum up the debate. I am grateful to all noble Lords who have taken part. We shall need to think with some care about the wording of the clause at later stages of the Bill. Trying to do so in Committee is not a useful way of spending time and, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Hylton: Subsection (10) appears to be a statement of the blindingly obvious. Perhaps the noble Baroness will care to reflect on whether it is really necessary.
Baroness Scotland of Asthal: I am certainly happy to reflect. Whether my reflections will result in any change, I cannot promise the noble Lord.
Clause 5 agreed to.
Clauses 6 and 7 agreed to.
Clause 8 [Reimbursement of costs]:
Baroness Walmsleymoved Amendment No. 17:
Page 6, line 31, leave out subsection (4).
The noble Baroness said: In moving Amendment No. 17, I shall speak also to Amendments Nos. 18 to 21, which are grouped with it.
Amendment No. 17 has been tabled in order to tease out what Clause 8(4) really means. It looks to me like a whole lot of buck passing. If the police authority wants an order it must serve it on the local authority, and if the local authority wants an order it must serve it on the police authority, and, in any case, it must be served on the owner of the premises. What happens if the owner is in Australia and knows nothing about what is going on?
The point is relevant also to Amendment No. 19, which relates to Clause 10. This clause allows an owner to claim compensation for loss. But he has to satisfy a number of requirements, one of which is that he took reasonable steps to prevent use. This presumes that the owner was aware of the use. It is perfectly possible that the owner had no idea of the use to which the premises were being put, especially if he lives overseas. It would be much fairer if the requirement to take reasonable
462
steps was coupled with knowledge of the use being made of the property. That is what Amendment No. 19 seeks to do.
Amendment No. 18, which is tabled in the names of the noble Lord, Lord Dixon-Smith, and myself, seeks to insert the word "negligent" into Clause 9 so as to avoid exempting police officers for liability for damage caused through negligence. Naturally there is likely to be damage done when entering property and it is right that individual officers are exempt from damages when acting in accordance with their duty and their orders. However, where there is negligence while performing a public duty is another matter. I am sure that the noble Lord, Lord Dixon-Smith, will have more to say about the amendment.
Amendments Nos. 20 and 21 are probing amendments to give the Government the opportunity to clarify for the Committee what happens to the common areas in a property in multiple occupancy. It is also not clear how subsection (10) would apply to a property of a local authority, such as a leisure centre or a youth club. Can the Minister clarify this? I beg to move.
Lord Dixon-Smith: My name is attached to Amendment No. 18. I hope that the noble Baroness will not be disappointed if I do not add very much to what she said. The question of negligence should be included at this point. I am all for giving immunity to people acting in the line of duty when occasionally things go wrong, but the community, through those who give the orders, has some responsibility in certain circumstances. That is the reason for the amendment.
Baroness Scotland of Asthal: I hope that I shall be able to assist in this matter. As to Amendment No. 17, the whole point of the clause being so phrased is to ensure that there is not a multiplicity of claims in relation to costs and that each of the parties who may have an interest know what the others are doing.
Amendment No. 17 would have the effect that the police, the local authority and the owners of premises would receive no notice of, or information about, applications for the recovery of costs. If a claim for costs is made, for example, by the police, it is only right that the local authority and the owner should be informed so that they can make appropriate representations to the court and would avoid the possibility of multiple applications for costs being made. So everyone will know what is going to happen.
Amendment No. 18, to which the noble Lord, Lord Dixon-Smith, has also attached his name, concerns the exemption of the police from claims for damages arising from the pursuit of their duty. We have put into the Bill provisions similar to those in the Criminal Justice and Police Act 2001. The terms of the clause mirror those that apply to the closure of licensed premises in the Criminal Justice and Police Act 2001. That Act appears to have worked well. It appears to strike the right balance and we see no need to depart from it. It is a well understood, well appreciated principle. The police appear to have acted with perfect propriety in the discharge of their duties and the courts

463
have been able to deal with the circumstances where that has not been the case. I hope that the noble Baroness and the noble Lord will be reassured by the fact that we are not doing anything new.
The effect of Amendment No. 19 would be to include a requirement that the owner of the premises must have had knowledge of the use of the premises before being eligible for compensation. We have considered the matter carefully and we do not believe that this would be desirable. The clause as drafted already provides that compensation will be available in appropriate cases.
The noble Baroness is aware that one of the difficulties that we have concerns owners of properties who have abandoned them and do not take any interest in them at all. It would be unfortunate if owners who fell within that category and had been quite neglectful could subsequently say they should be compensated. The provision is carefully drafted; we think that the appropriate cases could be compensated as the Bill stands.
We have considered Amendment No. 20 and believe it to be unnecessary. We have attempted to ensure, within the power, that where there is a need for access to a public space or, indeed, another premises, that will not be affected by the closure order. It has been left at the discretion of the courts to order access. In Clause 2(8) and Clause 7 there is scope to exclude common areas from the scope of the notice where, for example, access is required. A blanket exemption from such spaces is, however, undesirable, as in some cases, in order to provide the necessary relief for the community, communal areas will need to be closed. That is the balance we have tried to strike.
As the noble Baroness indicated, Amendment No. 21 would remove the definition of an owner of premises from this part of the Bill. The definition is essential to the proper operation of Part 1 as it defines who is liable for damages, compensation, to access the premises and has the ability to appeal to the courts. The definition here includes the landlord where there is a lease of over three years and the freeholder in all other cases. I hope that with those explanations, noble Lords would feel content, and that the noble Baroness and the noble Lord, Lord Dixon-Smith, would not seek to press their amendments beyond today.
Baroness Walmsley: I thank the Minister for her answer. On Amendment No. 18, is she saying that where there has been negligence in the performance of a police officer's duty, the courts have already found that they have sufficient powers to deal with it? That is what I assume she meant and that therefore the word "negligent" is unnecessary.
Baroness Scotland of Asthal: Negligence is not currently included in the way in which the courts have addressed this. They have accepted that where an officer behaves with propriety, those acts should not be capable of damages or complaint. The more restrictive framework that we have here has seemed to suffice. The noble Baroness is right that public
464
authority and public servants should make every effort to behave with propriety and do as little damage as they can.
Negligence is a very wide concept. It would be very difficult in relation to these matters because we would not want unnecessary complaints being made by people who say, "This was not a necessary damage; you could have done it another way, and because of this you have been negligent". In addition, we do not want the police to be so anxious about the improper use of the broad issue of what is reasonable and what is negligent that they do not use this power for fear of claims being made against them.
The current rules appear to constrain behaviour so that propriety is adopted but do not allow those who wish to take adventitious advantage improperly of an opportunity to say that the police had been negligent to do so. We think that these provisions suffice to do the sort of things I am sure the noble Baroness would wish to be done, but it does not fall within the negligence issue.
1.15 p.m.
Baroness Walmsley: I thank the Minister for her reply. I am very sympathetic to the practical application of what she has said about police officers in the operation of their duty. However, I am still not clear about something, and perhaps she could write to me to save time. What would happen if there was clear negligence? She does not appear to have answered that question.
On Amendment No. 19 and the issue of the absent landlord, I have some sympathy with what the Minister said. However, this is meant to be a piece of legislation that lays down under what circumstances people can claim compensation; it is not meant to be a judgment on how good a landlord somebody is We all have an abhorrence of what negligent landlords do but that is not what the Bill is intended to address. Therefore, I still think it is a little unreasonable. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 8 shall stand part of the Bill?
Lord Avebury: In Clause 8, as in Clauses 2 and 5, we find a sentence beginning with the preposition "but". I know I have already raised this, and the noble Lord, Lord Bassam, replied that he was not aware of any rule of grammar which prescribes that one should not begin a sentence with a preposition. The noble Baroness, having left school far more recently than her noble friend, may be able to remind us that such a rule exists. If I am correct in this, I think Parliament is setting a very bad example to our young people in the use of the English language when we contradict what they are told by their teachers.
I hope the noble Baroness will treat this with slightly less jocularity than her noble friend did and provide an explanation of why the style tsars or gurus in the

465
parliamentary draftsman's office have introduced this pernicious practice and whether it can be made to cease. In all three instances, if the word "but" was left out from the beginning of the paragraph, I am sure it would not alter the meaning.
Baroness Scotland of Asthal: I confess that I, too, have a difficulty in relation to the grammatical correctness of some of the provisions. I cannot say that my voice will have any influence, but I can certainly make the inquiry the noble Lord seeks. Whether the answer we receive will satisfy him I cannot say.
Lord Bridges: Perhaps I may offer a possible explanation to the noble Baroness. It seems to me that the use of conjunctions, as in this case, derives mainly from those who were subjected to tuition in classical languages. We were taught at school that there had to be a conjunction to relate one sentence to another. The Latin word most commonly used was tamen. But I agree with those who criticise this; if one eliminates all conjunctions from a piece of prose, it is generally improved. It was my practice, as an employee of the government, to do that.
Baroness Walmsley: Perhaps I may suggest the establishment of a new all-party group for the correct use of the preposition.
Clause 8 agreed to.
Clause 9 [Exemption from liability for certain damages]:
[Amendment No. 18 not moved.]
Clause 9 agreed to.
Clause 10 [Compensation]:
[Amendment No. 19 not moved.]
On Question, Whether Clause 10 shall stand part of the Bill?
Lord Dixon-Smith: I was minded to object to this clause on compensation because I was not completely clear as to who is entitled to compensation or in what circumstances. The clause states:
"This section applies to any person who incurs financial loss in consequence of—
"(a) the issue of a closure notice".
The issue of a closure notice, apart from the fact that it is an executive action on the part of the police and the authorities, does not actually do anything. There is no action, so I do not see how somebody who receives a closure notice might be entitled to compensation. That is my first worry.
Subsection (3) states:
"An application under this section must not be entertained unless it is made not later than the end of the period of three months starting with whichever is the later of—
"(a) the day the court decides not to make a closure order".
If a court decides not to make a closure order, I do not see how anyone can be entitled to compensation, because nothing will happen. We are suffering from a little bit of lax drafting; the matter has not been sufficiently thought through.
466
We have dealt with the issue of negligence already, but we should be concerned that we do not appear to hold out the possibility that compensation might be available in circumstances in which, as far as I can see, there is no reason for compensation to be available. I do not have too much difficulty with someone who might be affected once a closure order is made and property has been closed up. It is conceivable that an innocent landlord—he would have had to be unaware that the offence was being committed—who is dependent on his rent income to live on, might be entitled to compensation. That is reasonable. However, I do not see how anyone can be entitled to compensation before a court actually makes an order and something is done. I believe that we should explore what the clause means.
Lord Hylton: The noble Lord, Lord Dixon-Smith, has raised a point about any person incurring financial loss as a result of a closure notice. It occurs to me that issuing a notice might affect a shop or other commercial activity immediately adjoining, or on the other side of an alleyway, or something of that kind. That might explain part of the clause.
Baroness Scotland of Asthal: I am happy to make this part of the Bill clearer.
The clause relates to compensation claims of those who claim financial loss—a direct loss of income—in consequence of a closure notice or order. That matter would have to be proved on an evidential basis. In some cases, an owner may have taken all possible steps to control the behaviour of those on or in the premises, but have been entirely unsuccessful. For these cases, we have given the court the discretion to award compensation for loss of rental income or damage caused during the closure period.
I should like to make it clear that compensation is restricted to financial loss—the direct loss of income—to those innocent of all involvement, and does not allow for any other types of compensation. That certainly does not mean that compensation will be available where landlords have failed to take responsibility for their property. We are clear that owners should do absolutely everything possible to ensure that their property does not become a source of nuisance or disorder through the production, use or supply of drugs. We have framed the ability of owners to gain compensation with that in mind.
There will be no benefit to those who turn a blind eye to dealing, or profit from it. That should be a clear message. The clause ensures that that should not happen, and we want to be certain that it is not open to misuse. I understand the point made by the noble Lord, Lord Dixon-Smith. It would appear very unjust, especially to those in the community who have been subjected to what sometimes feels like mayhem, that owners who have done nothing to control it but have simply taken the money—sometimes considerable sums of money for the use of the properties—should have that ability.

467
In reference to the point made by the noble Lord, Lord Hylton, shops might suffer loss as a result of the service of notice through damage to, or disruption of, trade. As the noble Lord said, if that were to happen it would be right that they should be able to claim that the disruption had occurred and that they wished to be compensated. Of course, that would be down to evidence of financial loss, not loss of dealings. Shops would have to show clear evidence of that.
I hope that that explains the matter properly. There is a balance. On the one hand, there is the view taken by the noble Baroness, Lady Walmsley, that we should be much more willing to compensate. On the other hand, there is the view taken by others that we should not pay a penny. We have tried to steer the middle course and to say that in appropriate cases there should be compensation. However, it is a narrow gateway and will be used only for those who have behaved properly, are innocent of any blame and have taken every step that they can to ensure that the activity does not take place. I hope that explanation satisfies noble Lords.
Lord Dixon-Smith: I hope that the Minister will forgive me. Although I understand completely what she says, she has not dealt with the narrow issue of compensation being available from the issue of the closure notice. rather than from when the closure has effect. I am bearing in mind that the case has to be heard by magistrates within 48 hours. I assume that if magistrates were to issue such an order, the police would act pretty quickly. I cannot believe that the case would have been brought if there was not a considerable degree of urgency on behalf of the whole neighbouring community.
I am asking about that little oddity—that compensation is apparently available from the issue of the notice when, as far as I can see, apart from the fact that a piece of paper is flying around and people are informed that the process is going on, no other action has been taken. Any loss of income would actually occur from the date when the closure is effected. The same applies to my remarks on subsection (3).
Baroness Scotland of Asthal: The noble Lord's remarks are right in relation to the property itself. However, to use a previous analogy, a shop next door may be adversely affected by the service of the notice—people may not want to come to it, or something like that. It would be difficult to prove, but if shopkeepers had a valid case and could put the evidence that since the notice was served all their custom had dried up and they had made no sales, we should at least give the court an opportunity to listen to them. They may have something valid to say and they may be innocent victims of what went on next door to them. Compensation from the perpetrator might not go amiss, if we got our hands on any ill-gotten gains.
Lord Dixon-Smith: I hear what the Minister says, and I have some sympathy with it, but the other interpretation might be that shopkeepers were enjoying the benefits of additional trade through the
468
illicit activity that was going on next door. We could argue that backwards and forwards, but I shall study the Government's reply.
Clause 10 agreed to.
Lord Bassam of Brighton: I think that this might be a convenient moment for the Committee to adjourn until after Starred Questions. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure until 3 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 1.30 p.m. to 3 p.m.]

Electricity Supplies
3 p.m.
Lord Ezra: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as chairman of Micropower.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to safeguard the security and reliability of electricity supplies.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, maintaining the reliability of energy supplies is fundamental to our energy policy. Following recent events in London and Birmingham, we have called for urgent reports. The report on London is available in the Libraries of both Houses. Yesterday, the Minister for Energy announced that the DTI would launch an investigation into the power cuts.
In addition, with Ofgem, we are following up the recent major power cuts in the USA and Canada and will study what lessons, if any, can be learnt from the incident for the UK.
Lord Ezra: My Lords, I thank the noble Lord for that Answer. I have two questions to put to him. First, will he make it clear to the House who is ultimately responsible for ensuring that the lights stay on? Is it the Government? Is it the regulator? Is it the operator of the grid? Is it the generating companies? Is it the distribution companies? Is it all of them, in varying degrees?
Secondly, does he agree that there is a major anomaly in the way in which electricity is produced and distributed in this country? The bulk of production is in the North and the—growing—bulk of consumption in the South. Do the Government have

469
in mind any plan to encourage more generation near the points of consumption in future, so as thereby to increase efficiency and reliability?
Lord Sainsbury of Turville: My Lords, different parts of the system have different responsibilities for the transmission. National Grid Transco has one set of responsibilities, which is to operate the grid; the various suppliers have their responsibilities; and Ofgem and the DTI share responsibility for maintaining the framework and, therefore, ultimately for the security of supplies.
There are, as far as I know, no plans to change the balance between North and South. If there are, I shall write to the noble Lord.
Lord Jenkin of Roding: My Lords, have the Government taken on board the serious warnings in the State of the Nation report by the Institution of Civil Engineers, published a few weeks ago, of what it describes as the "possibly cataclysmic effects" of becoming reliant on unsecured imported gas from unstable countries? When will the Government—now, happily, a Meacher-free zone—recognise that building new nuclear power stations to replace those that are being closed down is the only way in which we are going to make sure that we keep the lights on and that we meet our Kyoto targets?
Lord Sainsbury of Turville: My Lords, we have looked at the report by the Institution of Civil Engineers. We talked to the institution about the report, and, as far as I can make out, there is no additional research to form the basis of that view. It is simply an accumulation of other views. There is no new research in that report, and, therefore, it does not change in any way the views that we set forth in the White Paper.
I do not agree with the noble Lord about nuclear power: it is not the only way. There are other ways, even though there are people who hold the view that one should keep nuclear power as an option and, perhaps, return to the building of further nuclear power stations. There are no facts that suggest that it is the only way, even though one might want to keep it as an option.
Lord Marsh: My Lords, on that basis, I wonder whether the noble Lord can give us some indication of what he thinks is the way. It is not a new problem: it was forecast for some years before the Government came into office. It has built up over a long time. The energy White Paper worked on the assumption that the problem could probably be solved by market liberalisation and international agreements. There is no evidence that that is working, and nuclear power is one of the areas in which one can see the possibility of doing something about it.
Lord Sainsbury of Turville: My Lords, clear projections of what could be done were set out in the White Paper. There may be differing views as to whether, for example, it is possible to get 10 per cent
470
renewables, but there is no doubt that it is a possibility, and we think we should pursue that first. There is no question that it can be done.
That is a separate issue from the amount of spare capacity that we should have in the system. We had 28 per cent before NETA came in. Everyone will agree that that is substantially more than what is required. What is required is probably spare capacity of between 15 and 20 per cent. It is interesting that prices for 2004—forward prices—have gone up substantially. Peak prices are up 40 per cent, and the baseline is up by 25 per cent. That is having exactly the impact on the market that one would expect. We are not now seeing closures; on the contrary, we are seeing capacity come back into the system. That is encouraging.
Lord Strabolgi: My Lords, I declare an interest, as my wife and I were two among the 100,000 held up by the blackout on 28th August. We saw something of the terrible plight of people trying to get home from their work.
Are the Government aware that it now appears that the blackout was the result of the installation of a wrong fuse-box and that National Grid Transco has said that no one is likely to take responsibility and has made the further surprising statement that it was not the result of negligence? What are the Government doing to encourage a more serious attitude among the powers-that-be?
Lord Sainsbury of Turville: My Lords, I agree with my noble friend that the degree of disruption that was caused was considerable. It is intolerable to have such disruption to surface rail. Underground, street lighting and traffic systems. That is why we immediately called for reports.
The reports suggest that the problems were not to do with investment levels but with operator failure in the two situations. We think that, because of the seriousness of the situation, things should not be left at that, which is why my colleague, Stephen Timms, has set in motion two further pieces of work. Ofgem and DTI will jointly commission consultants to do some initial fact-finding. Those findings will be made public. Secondly, the DTI engineering inspectorate will conduct a full, independent investigation to establish whether the companies involved in the interruptions complied with the relevant technical requirements.
Baroness Miller of Hendon: My Lords, considering the fact that the recent White Paper maintains that the second goal is to ensure the reliability of the energy supply, what do Her Majesty's Government believe to be the effect of the so-called windfall tax, which plundered the utilities, on the resources left to maintain and improve the energy supply infrastructure?
Lord Sainsbury of Turville: My Lords, nothing in the reports that we have had so far suggests that it is an issue of investment. On the contrary, in both cases—London and Birmingham—the situation arose in connection with the installation of new equipment. There is no question—at this stage, at least—that it is

471
an investment issue. Given the seriousness of the situation and the seriousness with which we regard it, we think that there should be further investigations to see whether there is any question of investment having been too low.

Potentially Hazardous Near Earth Objects
3.9 p.m.
Lord Tanlaw: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as the founder chairman of the Astronomy and Space Environment Group.
The Question was as follows:
To ask Her Majesty's Government whether asteroid 2003/QQ47 will pose a threat to United Kingdom citizens on 21st March 2014 and why a potentially hazardous near Earth object of this size had not been identified sooner.
Lord Sainsbury of Turville: My Lords, calculations have shown that there will be no threat to United Kingdom citizens from asteroid 2003/QQ47 in 2014. The next potential impact of this asteroid will be in 2058 with a currently estimated threat of one—
Noble Lords: Hear, hear!
Lord Sainsbury of Turville: My Lords, I have not given noble Lords the statistics yet. The next potential impact of this asteroid will he in 2058 with a currently estimated threat of one in 8,333,000. The reason a potentially hazardous near Earth object of that size was not identified sooner is that there is an enormous amount of space to look at.
Noble Lords: Oh!
Lord Sainsbury of Turville: My Lords, that is why the international space community is focusing on ways to improve detection.
Lord Tanlaw: My Lords, I thank the Minister for Science for his reply. I note that the "giggle" factor as regards this subject is still alive and well. Could this category of near Earth object be described as one of nature's missiles of mass destruction which could pose a far greater threat to British citizens than any material discovered under the sands of Iraq? Therefore, could not the funds presently allocated to the search for Saddam's elusive weapons of mass destruction be more gainfully employed by implementing the 14 recommendations listed in the task force report on potentially hazardous near Earth objects dated September 2000? Does the Minister agree that such a policy could reduce the number of false alarms, increase the lead time for national mitigation procedures to be established and allow an effective global asteroid deflection programme to be put in place? Will he say—
Noble Lords: Oh!
Lord Tanlaw: My Lords, noble Lords have had their fun laughing at this Question. What would be the minimum time required to launch a proven asteroid deflection programme? Could it be in place before 21st March 2014, supposing the threat of impact from asteroid 2003/QQ47 became a reality?
Lord Sainsbury of Turville: My Lords, this is a more interesting subject than occasionally is thought. There is clearly a risk. That is why I set up the task force in January 2000 to look at the whole issue. We are pursuing a policy of trying to get the matter on to the international agenda because it is clearly an international issue. Nevertheless, one must keep the issue in proportion. So far as we can make out there has never been anyone killed as yet by an asteroid. Dinosaurs may have been but not people. There has yet to be such an incident. The chances of that happening are still extremely remote—one in 800 million. That is a very small probability. The only probability that comes anywhere near that that I can find is one in 1.5 million, which is the risk of dying in one's bath. So these are very remote possibilities. We should not spend too much time worrying about them.
Lord Astor of Hever: My Lords, with regard to the Minister's first response, what is being done to predict more accurately the risks posed by long period comets where advanced warning may be as short as one year?
Lord Sainsbury of Turville: My Lords, the only way in which the matter can be dealt with is by an international effort. As I say, the UK has taken a lead both in the OECD workshop and in the United Nations Action Team. We hope that we shall be able to get the matter on to the agenda of the United Nations Committee on Peaceful Uses of Outer Space and in that way have a system which will give us the earliest possible warning.
Lord Razzall: My Lords, while I recognise that this topic inevitably has an air of science fiction tinged with the humour so beloved of your Lordships, will the Minister please recognise that his task force to which he referred indicated in its last report that the risk of a near Earth object hitting the Earth was certain? Will the Minister please explain when the 14 recommendations of that task force will be implemented, and, if they have not been implemented, why not?
Lord Sainsbury of Turville: My Lords, as I said, there is a risk. It is a very small risk but nevertheless it is a very serious one because if such an incident happened, the implications would be very great. So far as I know, all the recommendations have been implemented although there is a question in some cases of finding the funds for the use of the particular telescopes which have been allocated. I shall meet with the task force in October to review the position and to consider the progress made.

Anti-terrorist Exercise at Bank Station
3.15 p.m.
Lord Berkeleyasked Her Majesty's Government:
What assessment they have made of the recent anti-terrorist exercise at Bank station.
Lord Davies of Oldham: My Lords, our early view is that the elements we planned to test in the exercise worked well. There will, of course, be lessons to learn for all those involved.
Lord Berkeley: My Lords, I am grateful to my noble friend for that illuminating reply. Is he aware of comments in The Times, and many other newspapers, on Monday that fire-fighters at Bank station,
"had to haul 13-stone dummies to the surface because the Health and Safety Executive would not allow them to carry people"?
Does that mean that if a fire-fighter finds someone in the Tube who is seriously injured and cannot walk, he will say, "Sorry, Gov, I can't help you unless you can get yourself to the surface"? That is not the way firefighters are supposed to work. It reminds me of the occasion when a Metropolitan Police commissioner was charged with allowing a policeman to chase a burglar across an unsafe roof. Is it not about time the Health and Safety Executive was brought under control?
Lord Davies of Oldham: My Lords, I am sorry to destroy the main proposition of my noble friend's question but the matter was not decided by the Health and Safety Executive and nor had it anything to do with it. Police cadets who took part in the exercise above and below ground were able to walk away from the supposed accident. Non-ambulant people with simulated serious injuries did not take part in the exercise simply because that could have endangered their health. People may be harmed by being carried to the surface in such circumstances. We had to ensure that the exercise was as realistic as possible but we did not intend to risk the health of volunteers. For that reason mannequins were used with the body weight of a person who might be involved in such an incident. In that way we ensured that no one was injured in the simulated exercise.
Baroness Trumpington: My Lords, is the Minister saying that one can carry anyone of any weight? Is a police cadet meant to carry me out of a place of danger? Surely the whole exercise was so artificial that it will not carry any weight in the long run.
Lord Davies of Oldham: My Lords, I took the trouble to ascertain whether appropriate simulation had been carried out. I assure noble Lords that the
474
mannequins used weighed 13 stone. Some people may weigh more than that but 13 stone is rather heavy compared with the average weight of British people.
Lord Quirk: My Lords—
Lord Bradshaw: My Lords—
The Lord President of the Council (Lord Williams of Mostyn): My Lords, the noble Lord, Lord Quirk, was up first.
Lord Quirk: My Lords, is it not the case that if last Sunday's event had been for real with a crowded station and crowded trains, the grave deficiencies in our public address system would have been laid bare with possibly disastrous consequences? Will the Government ensure that first-rate training is at last given to all those involved in providing oral information in public transport so that it is maximally intelligible and prompt?
Lord Davies of Oldham: My Lords, the noble Lord draws attention to an important point. There is no doubt at all that in circumstances of grave emergency, such as that simulated on Sunday, accurate information to anyone who might be affected would greatly aid rescue as it would calm and reassure those who were not at the absolute point of risk. That is an important point.
Lord Bradshaw: My Lords—
Lord Swinfen: My Lords—
Lord Williams of Mostyn: My Lords, it is the turn of the Liberal Democrats, who have not had a question yet.
Lord Bradshaw: My Lords, in planning for emergencies, particularly the sort of problem that the civil contingencies Bill will address, will the Government consider including the voluntary sector as an important contributor to dealing with national emergencies?
Lord Davies of Oldham: My Lords, that is a most valuable and important suggestion. It will also be recognised that the particular circumstance simulated on Sunday was a chemical attack on the Underground. As the House will readily recognise, the first requirement is to have the highest level of professionalism in the initial response. The noble Lord is quite right that volunteer organisations can play a significant part in support.
Lord Swinfen: My Lords, would it not be more realistic to carry out such exercises during the working week, when the streets are full of traffic and people?
Lord Davies of Oldham: Indeed it would, my Lords. All that we would need to do to carry out that exercise in an Underground station is stop the whole of the London Tube for the period for which it went on, which would be several hours. That is not a ready proposition to put before people, even in these dire

475
days when we all need to be on our guard. The practitioners need practice at the techniques that they need to employ. A Sunday was chosen on a line detached from the rest of the Tube system—the Waterloo and City line—to minimise the impact on the wider public while getting as close as we could to real circumstances of disaster on the Tube.

Children at Risk
3.21 p.m.
Baroness Massey of Darwenasked Her Majesty's Government:
How they will monitor the impact of the Green Paper Children at Risk.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Green Paper sets out five goals on which the Government are focused: being healthy, staying safe, enjoying and achieving, making a positive contribution, and economic well-being. These goals were developed through consultation with children and young people, and will form the basis of how the impact of reforms will be monitored.
Baroness Massey of Darwen: My Lords, I thank the Minister for that reply, and in doing so must declare an interest as the co-chair of the All-Party Children Group. Does she agree that the paper represents a unique opportunity to improve the lives of children and young people, and as such should be given substantial debate in both Chambers? I am somewhat confused about the map at the local level of the organisations. What is the connecting chain of assessment between the organisations, and what is their relationship at both national and local level?
Baroness Ashton of Upholland: My Lords, I agree that this is a unique opportunity, and I look forward to substantial debates in this House. We are setting out clear expectations of the standards that we require from each agency in relation to children, providing an integrated framework for children's services to ensure that they are judged on how well they work with and for children—I said in my Statement the other day that that would be led by Ofsted—and an improvement and intervention function to ensure that we are able to and do intervene where services are failing. All that will be monitored through the comprehensive performance assessment, in a direct line to the Minister for Children and her board.
Baroness Walmsley: My Lords, I remind the House of my interest as an ambassador for the NSPCC. Does the Minister agree that the impact of the Green Paper will to a great extent be affected by the ability of Ofsted to deliver high-quality and meaningful inspection services? Will she tell us how the Government plan to
476
ensure that Ofsted has the appropriate skills and experience to move into the area of social services? Up to now, it has focused only on education.
Baroness Ashton of Upholland: My Lords, the Green Paper is very clear that the framework is meant to be led by Ofsted. One would not expect that Ofsted would carry out all inspections. The issue at hand is to ensure not only that individual services are inspected in terms of their professional ability, but that someone is responsible for ensuring that they are inspected in terms of how well they work together. It is the working together on which Ofsted will take the lead, as I am sure that it is quite capable of doing.
Lord Elton: My Lords, following the death of Maria Caldwell—I think that it was more than 20 years ago—registers of children at risk of non-accidental injury were established for the first time by each local authority. As a result of a series of other events those were eventually made common not to the United Kingdom, but to England, Wales, Scotland and Northern Ireland. In the wake of this publication, can we hope to have a common register, thus eliminating the danger of children at risk being carried from a district where there is one register into another where they are not registered?
Baroness Ashton of Upholland: My Lords, we are consulting on a range of issues about the precise details that the noble Lord raised. As he will know, we are setting up safeguarding children boards and ensuring a statutory responsibility on all those involved with children to be mindful of their welfare. That is an important step.
The noble Lord raises an important issue, which is that children move. Families at risk often move more frequently than other families. One of the key aspects of the matter is what we call the IRT system—information, retrieval and transfer—which enables us,by working with our partners in local government and across services, to consider ways in which we can ensure that information is transferred with those families, and that whichever agencies they come into contact with can access appropriate information, obviously within the context of a confidential relationship.
Baroness Masham of Ilton: My Lords, will the Minister give an assurance that monitoring will happen at ground level? Would it not be a good idea for social and health workers who go into violent and difficult families to have a bouncer-type bodyguard to help them? If that had been the case, perhaps Victoria Climbié would be alive today.
Baroness Ashton of Upholland: My Lords, the noble Baroness raises an important issue. We can all recite instances where children have not received the protection that they might have done because of fear from social services about going into the family. We have to ensure that no one is unable to carry out their duty towards children because they fear violence from

477
adults. If anything, that points to a multi-agency response, particularly involving our police forces, which can support people going in. No child should be left in a household where adults fear to tread.
Baroness Thornton: My Lords, will my noble friend assure the House that the consultation process about to begin on the Green Paper will take account of the role and potential of the voluntary sector in the delivery of services for children and in the protection regime that should be applicable to children? I remind the House of my close association with NCH, the children's charity.
Baroness Ashton of Upholland: My Lords, the consultation should and must do so if we are to ensure real protection for children. My right honourable friend Mrs Hodge will have a board of stakeholders that will include the voluntary sector. Within our framework for children's trusts and centres for younger children, we require that the voluntary sector is consulted and involved appropriately. In the Green Paper, we refer to HomeStart and our desire to see that aspect of the voluntary sector rolled out nationally.
Baroness Thomas of Walliswood: My Lords, in her Statement the other day, the noble Baroness mentioned joint training of staff from different disciplines. Can she tell us a little more about that? I hope she will agree that teachers, for example, need to be able to recognise the signs of disturbance. They also might need to be able to institute the first interviews with the child, which could tell how serious a matter might be.
Baroness Ashton of Upholland: My Lords, without focusing specifically on teachers, we recognise that there are common requirements for any professional coming into contact with children. The issue at which we are looking is whether we can find those core competencies and ensure that all professionals have them. When it comes to teachers and other professionals not directly involved in child protection issues it is absolutely critical, as the noble Baroness said, to recognise those features and to know what to do having recognised them. Again, an inter-agency approach should enable us to support children more effectively.
Baroness Howarth of Breckland: My Lords, bearing in mind the present shortages, I want to ask how the Government intend to ensure that there are enough skilled and trained workers, especially social workers, to meet the aspirations of the Green Paper.
Baroness Ashton of Upholland: My Lords, the noble Baroness raises an important point. The Green Paper has a strong focus on the development of the workforce. Within the children and families directorate, we intend to have a workforce unit specifically dedicated to ensuring that we have the professional skills available. We want to ensure that we raise the profile and professionalism of
478
and celebrate all the people who work very successfully with our children on a day-to-day basis, making sure that those involved in, for example, social work, have proper career paths and the opportunities to move into management, to move sideways into other careers and so on, so that we create a children's profession in that sense.
Baroness Billingham: My Lords, I congratulate the Minister on the breadth of the Green Paper. What special measures will be taken for children with disability who, by definition, may be those most at risk and who need the greatest care?
Baroness Ashton of Upholland: My Lords, I am grateful for my noble friend's congratulations. There are a number of particular aspects within the Green Paper. My noble friend will know that early identification, intervention and support for families is a critical part of what is needed for children with disabilities. We have many pilots running at present which, for example, give checklists to families of what they have a right to expect from services and enable closer working with them. Of the 35 children's trusts that are now being piloted, seven are focused specifically on children with disabilities. We intend to learn as we go the lessons from them, in order to ensure that we have that expertise. But children with disabilities are, as my noble friend has said, a critical part of ensuring that we support families.

Anti-social Behaviour Bill
3.30 p.m.
House again in Committee.
Clause 11 [Interpretation]:
[Amendments Nos. 20 and 21 not moved.]
Clause 11 agreed to.
Clause 12 [Anti-social behaviour: landlords' policies and procedures]:
Lord Dixon-Smithmoved Amendment No. 22:
Page 9, line 6, at end insert—
"(1A) Each local housing authority must, not later than three months after the commencement of section 12 of the Anti-social Behaviour Act 2003, publish guidance concerning anti-social behaviour."
The noble Lord said: Clause 12 deals with landlords' policies and procedures in relation to anti-social behaviour. It is vitally important that every agency involved knows exactly what is happening, and that the people affected by these policies know exactly what the position is.
This group of amendments is directed at ensuring that the circulation of information goes rather wider than is specified on the face of the Bill. We seek to involve the local authority, which ought to have thought about the issue of anti-social behaviour in a wider sense than purely in its capacity as a housing authority. At the other end of the scale, under the Bill as drafted there is no obligation to provide tenants with a copy of the policies of their landlords so that

479
they know exactly what their obligations are. This group of amendments is therefore aimed at improving the Bill in terms of those deficiencies.
Amendments Nos. 22 and 26 ensure that each local housing authority addresses the new anti-social behaviour legislation and that it publishes guidance for its current and its prospective tenants. The Bill states that,
"The landlord must … prepare a summary of its current policy and procedures … [and] … provide … a copy of the summary to any person who requests it".
That is not sufficient. The information needs to be better distributed than that, and it needs to be better than "a summary".
Amendment No. 28 seeks to insert a new subsection into Clause 12. We believe that there is an omission in the current drafting; namely, there is no provision for keeping a record of complaints and of the action taken in the face of anti-social behaviour on the part of a tenant. It seems to us that if there is anti-social behaviour, and if the system is to finish up in court, proper records of all the steps taken in an attempt to control and diminish the anti-social behaviour before arriving at the court proceedings are essential.
These amendments would considerably strengthen the Bill. They would make any court proceedings that did arise more secure. But, more importantly, if accepted, they would make it more likely that fewer people would be guilty of anti-social behaviour. The pressure would be greater on people not to—I do not like to use the word "conform" because it could be misinterpreted—behave irresponsibly. Therefore, fewer cases would come to court. There may be an irreducible minimum in the number of cases coming to court; but that is what we want to see in court, and nothing else. This is an important group of amendments in one way, although in another sense they are trivial—but small actions often have big effects. I beg to move.
Baroness Hamwee: There is little in the Bill that is trivial.
I want to speak to Amendments Nos. 23 to 25 in this group. Amendment No. 23 adds to the items that the landlord must prepare:
"procedures for preventing occurrences of anti-social behaviour [and]…procedures for providing [appropriate] support and rehabilitation services to those who have engaged in anti-social behaviour".
I tabled the amendment in order to raise the need for the response to anti-social behaviour to be broader than just enforcement. I am sure that the Minister will agree with that, but she may say that the matter can be dealt with off the face of the Bill, in guidance. I am anticipating her response, but I would not agree.
The amendment is deliberately not overly prescriptive and simply requires social landlords to place as much emphasis on prevention, support and rehabilitation as they are being asked under the legislation to place on enforcement.
480
This is not a new way of approaching this issue in legislation. The Homelessness Act 2002 required local authorities to produce policies relating to prevention and support in their homelessness strategy. The amendment is intended to balance the increased enforcement powers that are proposed with a clear commitment in this area.
I am not saying anything original in making this general point. The Social Exclusion Unit—I should have been shocked had it not taken this view—acknowledges that eviction can simply move a problem—in saying that, I am characterising people as a problem and I do not want to do that—of anti-social behaviour in moving the people exhibiting the behaviour elsewhere. That has the effect of destabilising other communities, or at the very least transferring the effects on neighbours by moving them to the next estate or a few streets away. I am sure that many noble Lords have had to deal with particular examples. In the amendment I seek to knit all the strands together.
Amendment No. 24 refers to crime and disorder partnerships under the Crime and Disorder Act 1998. It is intended to raise two points. First, local authorities should not have to reinvent the wheel by preparing an anti-social behaviour strategy separate from their other strategies and work. I suggested that procedures under this section may duplicate that other strategy. Secondly, there is a need to be compatible.
Amendment No. 25 proposes that the publication by the landlord of a statement of policies arid procedures is required within 12 rather than six months after the commencement of the section. That will enable me to understand when it is expected that the section will be brought into effect. We may well be talking about a period longer than six months from now or from the enactment of the whole statute, but six months is on the short side. I am sure that authorities will want to get on with the job but I am also aware of the consultation that ought to take place. It is not simply a question of sitting in a dark room with hot towels on one's head, thinking about it and then writing that down. It is a much bigger exercise.
Lord Corbett of Castle Vale: I have sympathy with what the noble Baroness, Lady Hamwee, says about the importance of looking at the proposals not only from the punitive aspect but from the preventive and encouraging aspect. However, I wish that my noble friends on the Front Bench would consider bringing forward a social behaviour Bill to deal with the positive aspects. I wish they would consider what assistance local government and the agencies involved can provide starting at primary school level to give the subject proper status in the curriculum. They should provide proper teaching back-up to help to encourage young people to behave in a sensible and community-minded way.
Secondly, it has been my experience over 20 years or more that every single tenant, whether of a local council, a housing association or a private landlord. signs a tenancy agreement. While the language of that may not be precisely what we are discussing in the Anti-social Behaviour Bill, it lays down, often in stern

481
terms, the way in which tenants are expected to behave; for instance, "Excessive noise will not be made after eight o'clock at night", and so forth.
There is a weakness which I must point out to my own party and to local councils. There has been a reluctance to use the powers in the individual tenancy agreements to bring tenants up short and say, "You signed an undertaking when you took this tenancy to behave in this way. You are not doing it. Unless you stop this behaviour, which is causing unpleasantness and grief to everyone around you, we will take proceedings for breach of those tenancy agreements".
I suspect that that will deal with the point that noble Lords have been arguing. However, I understand that although tenants have such an agreement and sign it as a condition of getting the tenancy, it is one of those documents which goes behind the clock and is not often looked at.
3.45 p.m.
Lord Avebury: I support my noble friend in her Amendment No. 23, which deals with prevention. My noble friend Lady Sharp and I visited the London borough of Camden a couple of weeks ago to look at the work it is doing in implementing social behaviour orders and, much more importantly, in preventing a necessity for such orders. They have had some degree of success with that. We were invited to look at two particular projects. The first was the Sidmouth Mews Kids Club in King's Cross, which has been up and running for about 18 months. The second was the Families in Focus project, which is based on three estates in the Euston/King's Cross area—Ampthill Square, Leviter House and Mayford—with the aim of assisting local communities to revive and raise their aspirations by building on community strengths and fully engaging the children, young people and families in community life.
I want to draw the Committee's attention to the fact that these projects continue to operate largely on the ability and enthusiasm of volunteers. They work on a shoestring but the money they receive from public funds is intermittent and uncertain. If we are to have a proper prevention strategy, we need to back local authorities and landlords who are implementing such measures. Both schemes report that the search for funding is a continual struggle. They receive small amounts of money from SR B grants, from the lottery, from local trusts and from the local authority, but the impact of uncertain funding in the short term is a risk of losing good workers who build up relationships of trust with the children, young people and their families. It also creates much anxiety for the local community and risks losing the goodwill and support which they have built up with the hard work they have already done. The people who run the projects are constantly being asked, "How long have we got this project for, what are we going to do and where are we going to go when we have run out of money?".
482
If the Government are serious about doing something concrete about anti-social behaviour, they need to build into the Bill the kind of amendment which my noble friend has suggested.
Lord Hylton: I want to reinforce what the noble Lord, Lord Avebury, said. The schemes will he made much more effective if they can be assured of three-year funding rather than have annual funding which is liable to be cut off.
Lord Bassam of Brighton: In listening to contributions from around the House, I have a peculiar sense of déjá vu on this. It takes me back many years to when I was chair of our local housing committee. All the issues relating to anti-social behaviour were alive in the late 1980s, but we did not have the means with which we could adequately deal with them. We did, however, alight on the idea of beefing up tenancy agreements so that they dealt with problems which we now bring within the ambit of more generalised anti-social behaviour.
At that time—and it was controversial in Brighton—we had difficulty in persuading people that it was important to make strong statements of policy about people's behaviour, their conduct and the conduct of their children in the communities on our housing estates. But we have moved on some long way from there and I pay tribute in particular to the housing authorities for the valuable work they did in the early years when such issues assumed a great importance. In many ways, they laid the ground for the important measures we are seeking to introduce and reinforce in this legislation.
Before turning to the detail of the amendments, I want to comment on the points raised by the noble Lord, Lord Avebury. He is right: it is important that we have a focus on tackling these matters through a positive agenda. Many projects up and down the country attempt to do that in different ways. It may be football in the community, after-school clubs or youth projects—they address many of these issues in a positive framework. They are linked and those links are made by local authorities, housing associations and through the voluntary sector. Obviously, I would say this, but what has pleased me over the past half dozen years or so is the fact that much more funding has been available for those kinds of projects, some of which have been set up as part of a conscious programme linked into diversion strategies. There has also been the detailed work carried out in the community by community-minded police officers.
I turn to the details of the amendments. In general terms, the spirit behind them is one with which we are in accord. It is a matter of how one addresses the particular issues. I do not agree with the noble Lord, Lord Dixon-Smith; I do not believe that the amendments are trivial. They are extremely important because they address important issues which have to be widely understood if this legislation is to have the impact that most Members of the Committee would desire.

483
Amendments Nos. 22 and 26 would require local authorities to publish guidance on anti-social behaviour and would require social landlords to follow that guidance in producing policies and procedures to meet their requirements under this clause. There is an irony in that because it could result in local authorities issuing guidance to themselves, which seems to us to be over bureaucratic. Furthermore, local authorities are already required to produce strategies under Section 6 of the Crime and Disorder Act. It appears to us that such a provision would replicate something that is already in place and it would oblige local authorities to issue guidance to themselves.
This clause is designed to get social landlords to produce policies and procedures on how to respond to anti-social behaviour that takes place in their stock and it will need to address the particular issues that landlords and their tenants face. It should not be forgotten that the issue goes wider than that. Registered social landlords working in more that one local authority area would need to produce a policy and a procedure for each area that they work in. Because of the way in which housing associations and housing trusts work, that seems to us to be a rather impractical way of dealing with the matter. They would have to fragment the way in which they put together their policy and procedure. As I said earlier, it concerns more than just enforcement.
Amendment No. 23, standing in the name of the noble Baroness, Lady Hamwee, specifies that prevention and rehabilitation should be included in policies and procedures. I agree that prevention and rehabilitation are crucial in providing a long-term sustainable solution to anti-social behaviour, and we would expect landlords to consider them when drawing up their policies.
The noble Baroness anticipated that, but we would expect such issues to be addressed in detail in statutory guidance. The Government believe that that is a far better way of dealing with the matter than putting something on the face of the Bill. I am sure that the noble Baroness would say in response that we need a clue within the legislation. That is our expectation. We shall put in place statutory guidance which will have that effect. It is an important issue and it will need to be spelt out at large rather than in short terms.
On Amendment No. 24, I believe that there is agreement that it has to be good practice for local authorities to ensure that their policies and procedures are compatible with each other. Again, there is no need to have that on the face of the Bill. It would be much better for that to be included in guidance. The noble Baroness made the point that anti-social behaviour policies and procedures should not be seen as a separate strategy. We absolutely agree with that. There has to be an integrated approach and there has to be "joined-up-ness" within the local authority in the way in which it considers its housing policies and its antisocial behaviour schemes.
484
Amendment No. 25 seeks to give social landlords 12 months to prepare their policies and procedures after commencement, rather than six months. On time-tabling, our anticipation is that the clause will not be commenced until statutory guidance has been issued and six months from that date. We believe that that will provide adequate time for the production of policies and procedures. The aim of Clause 12 is for social landlords to set out to their tenants how they will respond to anti-social behaviour in the housing context. If they already have policies and procedures that meet the requirements in legislation, they will not need to produce further policies and procedures. There is no point in layering one on the other. No doubt they may wish to clean them up and think them afresh but we want them to ensure that they work within the direction that they are aiming for generally and most housing authorities have that good practice in place.
Amendment No. 27 requires copies of policies and procedures to be provided to every tenant and additionally to everyone who is a prospective tenant. The clause already provides that they should be made available to "any person". It seems to me that "everyone who may become a tenant"—I think that term is used in the amendment—could include a very large number of people and one could see that as being impractical. We prefer our wording; it is our expectation that prospective tenants would be covered by that and most sensible housing authorities and most sensible housing providers in the social housing field publish and produce those kinds of materials for prospective tenants, people on the waiting list, people seeking a transfer and those in similar situations.
I believe that the noble Lord, Lord Dixon-Smith, suggested that Amendment No. 28 dealt with an omission. The amendment seeks to require social landlords to record complaints about anti-social behaviour, and to monitor the action taken to resolve the complaints. Again this is not something that is best dealt with on the face of the Bill; we believe that it should be dealt with in guidance. We agree with, the noble Lord that such matters are important and integral to the effective working and monitoring of the scheme.
I do not believe that there is a great deal between us. The way in which we intend to develop the policy in implementation is important. In the main we believe that most of these issues can be dealt with effectively in statutory guidance and there will be much consultation on that to ensure that we get it right. We shall work very much with best practice. We entirely agree with the points made about a more positive approach on these matters.
Finally, I shall pick up one point raised by the noble Lord, Lord Corbett, about fostering and encouraging good behaviour through school programmes. Again, we are already there. This year the DIES has expanded its behaviour improvement programme to include a further 26 local authority areas, building on progress made this year in the original 34 pilot areas. That programme is delivered through Excellence in Cities.

485
The total investment in BIPs from their beginning to the end of the spending review period in March 2006 will be some £342.2 million. I am told that some 90 secondary schools and 400 key primary schools will receive money this year and in subsequent years to put in place innovative and effective measures to improve behaviour and attendance.
Baroness Hamwee: I am grateful to the Minister for that response. I am sure he will understand that the flavour of new Section 218A is enforcement because towards the end it refers to new Sections 153A and 153B, which concern enforcement.
It sounded to me as though the Minister was saying that the Government were close to accepting—if not wholly accepting—that the policies and procedures under subsection (2) should, if they are to be good, extend to prevention, support and rehabilitation, about which I spoke. I do not know whether I am pushing that too far, but I am working towards an amendment for the next stage, which states that there will not be separate policies and procedures but that they will include aspects of them. With the way in which the Minister has described the Government's approach, they will need to be holistic—if I can use a jargon word.
Lord Bassam of Brighton: It would be wrong of me to go so far as to say that there will be a specific requirement. I was hoping that I had created the impression that we want to foster and to encourage more positive and proactive work because we see that as being a very important part, as the noble Baroness said, of a holistic strategy.
4 p.m.
Lord Dixon-Smith: Perhaps I may give the Minister another shot on the question of the distribution of information. I accept that if a local authority produces a policy vis-á-vis anti-social behaviour it is in a sense guiding itself if it then gives it to its housing department. Of course it is useful background for any social landlord within its area. That is a good thing. I return to the question of the distribution of information. New Section 218A(5) states:
"A copy of a statement published …"—
which is really what the policy will become—
"must he available for inspection at all reasonable hours at the landlord's principal office; must be provided on payment of a reasonable fee to any person who requests it. The landlord must also … prepare a summary of its current policy and procedures",
and,
"provide [that] without charge to any person who requests it".
Tenants, in particular, should have the words in full and prospective tenants should be aware of their obligations before they become tenants.
The noble Lord, Lord Bassam, mentioned what can be put in a tenancy agreement. He went on to say that there had unfortunately been a certain amount of reluctance—on too many occasions perhaps—to enforce terms of tenancy agreements. We should make
486
sure that these policies are fully and clearly understood by all involved; not on payment of a fee by tenants or people looking to become tenants, but as of right. It is essential information for them to have in order to know their proper obligations.
We are all searching for an appropriate form of words. I agree with the noble Baroness, Lady Hamwee. We need to think carefully about the provision, which I do not think is adequate. We shall have to think quite hard about the issue before we come to the next stage of the Bill.
Lord Bassam of Brighton: I want to correct an impression given by the noble Lord, Lord Dixon-Smith. In his response he said that a copy of the statement published under subsection (3) or (4) must be available at all reasonable hours and on payment of a reasonable fee. He should have gone on to the following subsection, which states:
"The landlord must also prepare a summary of … current policy and procedures; [and] provide without charge a copy of the summary".
My guess is that the "without charge summary" will probably provide the accessible information and details for which most of us are searching.
Good landlords in the social sector—I include my former authority—provide their tenants with a good-quality folder with much information. In it tenants will be advised of their responsibilities. Prospective tenants will also, I am sure, receive similar information on making an application. I reinforce that by making the point, which I think I made earlier, that where the legislation refers to "any person", it will definitely cover prospective tenants. We see it, as does the social housing sector, as being critically important that all those who have or are likely to have a tenancy fully understand the obligations that such a tenancy carries.
Tenancies carry very important obligations. I spoke earlier of the difficulties I had in the eighties in trying to put issues relating to premises being used for drug abuse and so on into tenancy agreements. There was resistance because people did not feel that that was appropriate. I did feel it was appropriate because I believed it to be a very important issue for tenants. Tenants were seeking relief from those who abused public housing stock and premises in the ways we have discussed today.
This is the intent of our policy. This is exactly where we are going. We want people positively to understand these things and to understand their responsibilities.
Lord Dixon-Smith: If I was being mischievous—perish the thought—I would suggest that what is happening is that a great deal of time is being spent producing unintelligible statements of policy, which then need further documents, information and pamphlets to explain them to the people who actually have to understand the original documents.
There is complete agreement in principle about what we want to achieve on this issue. The differences between the Minister, the noble Baroness, Lady Hamwee, and I

487
are questions of degree and interpretation. We need to think about this matter again. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 to 28 not moved.]
Lord Clement-Jonesmoved Amendment No. 29:
Page 9, line 34, at end insert—
"(10) The policy and procedures shall be in accordance with the duties on the landlord under Part 3 of the Disability Discrimination Act 1995 (c. 50) and shall take into account the need for reasonable adjustments for a disabled person under that Act."
The noble Lord said: In moving Amendment No. 29, I should like to speak also to Amendments Nos. 47, 51 and 59. As the Minister will remember, I raised the issue of discrimination at Second Reading very much in response to representations made by mental health organisations such as MIND and organisations representing those with autism and the parents of those with autism, such as the National Autistic Society (NAS). They were concerned about the operation of the Bill in total, but particularly about housing and antisocial behaviour orders. They were concerned about the context in which those with autism, those with mental health conditions and, indeed, other conditions such as Tourette's Syndrome, operate within society and the level of understanding that people do or do not have about them and the way that that behaviour is expressed. For example, a person with autistic spectrum disorder (ASD) can sometimes display challenging as well as obsessive and ritualistic behaviour. There is no doubt about that. Quite often that kind of behaviour can be interpreted as being anti-social.
NAS and others are concerned that the provisions in the Bill could lead to people with autism being wrongly treated. It is too much to say "actually criminalised", but certainly wrongly treated in those circumstances. That could equally apply to those with schizophrenia, other mental health conditions and other challenging conditions.
The noble Baroness—I am grateful to her for her courtesy—wrote me a full letter on a number of aspects that I raised at Second Reading. She also dealt with the issue of the Disability Discrimination Act, which these amendments are designed to introduce explicitly into this part of the Bill.
I suspect that I am really after assurance from the Minister rather than actual amendments. I am sure she is correct that, if one correctly interprets the Disability Discrimination Act, housing issues, services provided and so on are provided for and therefore this aspect falls within the ambit of that Act. However, at the end of the day, it is a matter of judgment for the judge as to the evidence he takes and the interpretation that he puts upon it. I very much hope that we can read into the debates of the Chamber at least some guidance about how the Disability Discrimination Act will operate in these circumstances.
The landlord has duties under Part 3 of the Disability Discrimination Act not to discriminate against tenants and to make reasonable adjustments in managing the property.
488
The aim of the amendments is to ensure that any challenging behaviour, or behaviour that is perceived as challenging, that arises from a disability is treated with care and that all alternatives are tried before a person is demoted. It cannot be in the public interest nor in the interest of the demoted tenant with mental health problems for him to be made homeless by the Bill. All reasonable avenues of support need to be explored before such a step is taken. The prevalence of discrimination against disabled people. including those with autism, mental illness and other conditions, makes the reverse all too likely. I beg to move.
Lord Addington: I shall briefly support my noble friend. He is talking about groups with hidden disabilities. The argument on disability has moved on slightly because we have got over the idea that the wheelchair symbolises everything. I could mention dozens of groups—for instance, people with learning disabilities—who might be regarded as being threatening to, shall we say, the uninformed—the bigoted, if we are to show them in their true colours. Anything that we do not understand or do not want to understand can be perceived as being frightening.
We have discussed that in relation to every single piece of human rights legislation. The fact that we need to address it in law means that people are not prepared to address it in their own spare time; it is much easier simply to say, "Go away". Unless we have a provision that specifically says, "You must not do this; you cannot do this", people will try to misuse the law. Unless we have some way to say specifically, "This is not able", the provision will be abused.
I know that the noble Baroness received a copy of the letter that my noble friend cited. We are trying to ensure that we can refer to something that says. "This is not the type of group to which we are referring". Let us take the example of someone with learning disabilities who smiles too much and says hello to everyone in the street. When the level of ignorance which we discovered when the child abuse stories were going round, which meant that paediatricians had their houses burnt down, is prevalent, such people are in danger of being persecuted. Can the noble Baroness assure us that something, somewhere will ensure that the Bill cannot be used for such vexatious attacks?
Baroness Scotland of Asthal: I am more than happy to give the noble Lords, Lord Addington and Lord Clement-Jones, the assurance that they seek. I absolutely understand the anxiety that they expressed on behalf of those who suffer from disability and are often subject to disgraceful prejudice. I can certainly assure the noble Lord, Lord Addington, that the example t hat he gives of a child who smiles too much or waves at everyone is certainly not the sort of behaviour that we wish to capture. I am also happy to place in the Library a copy of a letter that I wrote to both noble Lords, which states clearly—I am happy to reiterate this from the Dispatch Box—that the Disability Discrimination Act 1995 applies in full in relation to such individuals.

489
As the Committee will know, the Disability Discrimination Act 1995 renders unlawful discrimination against persons who have a disability in the fields of employment, in the provision of goods, facilities, services and premises, and in the provision of public transport. The DDA was introduced to ensure that disabled people are treated fairly in respect of the services they receive, and housing rights are included within that. The Government are keen to ensure that the correct balance is maintained between ensuring that effective remedies against anti-social behaviour are available to protect all members of the community and that people with disabilities are not unfairly discriminated against.
Landlords, including social landlords, are already within the scope of the DDA. The protection offered to disabled people by the DDA will remain in place. The Bill makes no amendment whatever to the DDA or any other discrimination legislation. Therefore, as the noble Lord kindly implied, his probing amendments are unnecessary.
In order to ensure that social landlords are aware of their responsibilities in relation to the DDA, the Government intend to address those issues in guidance on policies and procedures issued under new Section 218A of the Housing Act 1996 introduced by Clause 12. I hope that that will make it crystal clear to social landlords that the provisions of Section 22—in particular, of Section 22(3)(c), which, as the noble Lord will know, expressly relates to evicting the disabled person or subjecting him to any other detriment—of the DDA 1995, which makes it unlawful for them to discriminate against a disabled person, will apply.
With those assurances, I hope that both noble Lords will feel a little easier because we are at one as to the need to protect those who suffer disability to ensure that they are not adversely or prejudicially treated by this or any other piece of legislation.
4.15 p.m.
Lord Elton: Perhaps I may ask a simple question for guidance. The noble Baroness made a convincing argument for the existing protection as regards proposed new subsection (1)(c), which concerns registered social landlords, but does that extend also to new subsections (1)(a) and (b)? Will the advice be similarly circulated?
Baroness Scotland of Asthal: We can certainly ensure that it is. I t should really apply to all landlords. When the matter comes before the court, the noble Lord will know that the court is obliged to take into consideration all aspects of law that relate to the application made. If the matter of disability is raised by the person against whom such an order is sought, the court will be obliged to look to see whether the provisions of the DDA 1995 apply. It will then have to balance the two and make a proportionate, non-discriminatory decision.
Lord Clement-Jones: I thank the Minister for that helpful and authoritative assurance, which will go a long way to reassure those who have concerns. It will be useful to have that on the record if courts are in any doubt about how they need to maintain that balance—which is, after all, the essence of the Bill and of the concerns that underlie it. I beg leave to withdraw Amendment No. 29 and shall not press the others.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 [Injunctions against anti-social behaviour on application of certain social landlords]:
Lord Dixon-Smithmoved Amendment No. 30:
Page 10, line 7, after "to" insert "persistent and unreasonable"
The noble Lord said: The amendment attempts to deal with a problem that I have with the definition of anti-social behaviour under the Bill as drafted. We all know what is anti-social behaviour in the housing context, which is really what we are discussing. That involves someone who is a persistent nuisance and intrusive over a long period. The Bill states:
"This section applies to conduct…which is capable of causing nuisance or annoyance to any person"—
and then it relates that to the housing function. But it is not going too far to say that, every now and again, we are all guilty of behaviour that is capable of causing nuisance and annoyance to any person. It is therefore insufficient for the purposes of the Bill to say that that is anti-social behaviour that could lead to the demotion of a tenancy and, ultimately, if it were repeated too often, to the loss of tenancy.
Amendment No. 30 would therefore introduce the words "persistent and unreasonable" to the behaviour or conduct. That is the intention of the Bill. I hope that the Government will not find it unreasonable to accept those two words.
Amendments Nos. 31 and 34 would reintroduce the definition or description of anti-social behaviour that exists in current legislation. "Capable of causing" is considerably wider than "causes or is likely to cause". As I understand it, the inclusion of "causes or is likely to cause" in current legislation has not proved any impediment to housing authorities when applying for anti-social behaviour orders. Birmingham has a particularly successful record and, as a result, has done much good for its communities.
These are important amendments—they are all important, so I stand corrected for what I said recently. The addition of three words to a Bill with so many words is very small and, in that sense, trivial. The amendment is necessary for the improvement of the intentions and purposes of the Bill.
We are not talking about spasmodic conduct. I have grandsons who are anti-social on a monotonously regular basis, but they would not be the cause of the abrogation of a tenancy. We need to improve the definition, and my amendment attempts to do so. I am

491
prepared to accept that there could be a better improvement, if someone wishes to suggest one. I beg to move.
Baroness Hamwee: My noble friends and I have presented an à la carte menu of choice to the Minister. We would probably be happy if any one amendment were chosen. We do not seriously expect all three to he accepted. Our point is the same.
I still remember with extreme embarrassment and shame an occasion when I lived in a block of flats and a neighbour knocked on my door to say that the record I had probably been playing over and over again, while sitting in a warm bath, could be heard elsewhere in the block. It was in the days of vinyl, so I was very young and not quite as aware of how that might affect neighbours as I would be now.
That conduct would probably fall within the Bill as drafted. But I did not do it again, so I was not persistent and, although the activity was probably unreasonable, it did not continue to be so. I do not think that the conduct was significant, and it certainly was not intended to cause a problem.
Amendment No. 33A is not on my Marshalled List so I am not sure what my noble friend Lord Phillips proposes. The same point is being made, and I hope that the Minister can respond. I am being a little flippant but it is a serious point.
Lord Clement-Jones: I shall speak to Amendments Nos. 33 and 35. The common ground between us all is that the language,
"capable of causing nuisance or annoyance"
must he tightened up. The noble Lord, Lord Dixon-Smith, and my noble friend Lady Hamwee have it right. The provision is too subjective. The definition of anti-social behaviour seems to be left to each landlord's interpretation. Who will define the conduct capable of causing nuisance in the circumstances?
My concerns are specific and apply to the conditions that I mentioned in the previous group of amendments—children with autistic spectrum disorder, mental illness and so on. Children with autistic spectrum disorder can often be misinterpreted as naughty because of instances of challenging behaviour. It follows that adults with ASD can also display challenging behaviour that might be deemed odd or as conduct capable of causing nuisance.
It would be preferable to require a degree of intention behind the behaviour so that it is deliberate. At the moment, the definition could include behaviour that is not deliberate but simply the result of a medical condition, ASD or another condition.
Lord Elton: Does the noble Lord think that the conduct of the noble Baroness, Lady Hamwee, in her warm bath would be caught by his provision as deliberate?
Lord Clement-Jones: I do not think that we should dwell on my noble friend in her warm bath during this debate. No doubt she can discuss that further.
492
The matter needs to be taken seriously. This is a broad definition that causes considerable concern. Whether taking the view that the issue is persistent behaviour or intentional behaviour, the wording certainly needs tightening up. In Committee, a thousand flowers and suggestions bloom, but I hope that the Minister will take away a number of them and consider them carefully.
Lord Phillips of Sudbury: I shall speak in the same vein. I am not aware of any legislation in the land that gives such remedies for causing mere annoyance. If the Minister can point us to any other legislation. that makes mere annoyance a sufficient ground for granting an injunction, I would not be persuaded, but I would be less harsh in my sense that the drafting is seriously inadequate.
The word "nuisance" is fine because it is defined in law—an endless amount of case law says what it is. You do not need to talk about "significant nuisance", as it must be significant in order to be nuisance. However, according to the dictionary, "to annoy" merely means to anger. In the course of a year, my children would fall foul of that provision 365 times four. Annoyance is hopelessly undefined in the Bill and in common law. There is no case law to sustain it, and it must not stand.
The preconditions of a closure order in Clause 2 are comparable—both are hugely serious consequences; one is an injunction and the other a closure. Clause 2(3)(b) talks not just about nuisance, a concept defined by law, but about "serious nuisance". If the argument against adding the word "serious" before "annoyance" is that it is too vague, I lob it back to the Minister that it is a word used in juxtaposition with "nuisance" earlier in the same Bill.
We are all singing broadly the same tune. However, I commend to the Committee the approach in Amendment No. 33A.
Lord Hylton: I welcome warmly the injunction that it will be possible to obtain under Clause 13. The noble Lord, Lord Phillips of Sudbury, probably makes a good point about annoyance, but my reason for welcoming the clause is that it seems to provide a way of nipping in the bud anti-social behaviour that causes nuisance. That is why I am not too happy about Amendments Nos. 30 and 33A, which contain the words "persistent" or "repeated". I want nuisances stopped at a very early stage in the process. We all know of tenants and others who have got away with murder, sometimes over years. That is what we want to prevent.
4.30 p.m.
Lord Phillips of Sudbury: Perhaps I may just clarify that my amendment does not condition "nuisance" at all. I only wish to condition "annoyance" by talking about "serious or repeated". I accept that nuisance of itself may be a sufficient ground.
Lord Hylton: I accept the noble Lord's point.

493
I wanted to go on to say, following the point made earlier by the noble Lord, Lord Corbett of Castle Vale, that failure to observe the terms of tenancy agreements in so far as they concern nuisance and closely related matters should lead, after one or two warnings at the most, to applications for injunctions. I hope that that will he effective and provide a real remedy.
Baroness Dean of Thornton-le-Fylde: If the Minister is going to consider these amendments, I would like to add my thoughts. I was very pleased to hear the way in which they were introduced, because I do not think that they answer the point. I should declare an interest as chairman of the Housing Corporation. In the lead up to this Bill I have been deliberately meeting many tenants and residents in very many parts of the country where anti-social behaviour is a serious problem. I would be amazed if the noble Lords who have spoken about their own children would come anywhere near this Bill. This Bill is about dealing with the serious problems within some of our communities.
The Bill is also, however, about prevention, and this part of the Bill is an important part of that. Many of the tenants and residents that I have met would not identify with the comments that the noble Lord. Lord Dixon-Smith, genuinely made about anti-social behaviour being persistent over a long period of time. If we allow that to be the definition for the workings of the Bill, it will not deal with anti-social behaviour. Considering the trouble that the landlord has to go to and the resources involved to actually apply for an injunction, most if not all of them would try to deal with problems before they reached that point. Bad behaviour is not annoyance—we have all caused annoyance from time to time. We are talking about behaviour which, even on one occasion, can cause fear to people, especially old people, in some of these communities.
Lord Phillips of Sudbury: I am most grateful to the noble Baroness, Lady Dean of Thornton-Le-Fylde, for giving way and I am sorry to interject again, but she says that the problem is not one about annoyance. However, the objection that many of us have is exactly about "annoyance" because annoyance of its own—not serious annoyance—is sufficient to grant an injunction under the Bill. That is the objection.
Baroness Dean of Thornton-le-Fylde: That may be the noble Lord's interpretation, but looking at these amendments, we see words such as "persistent", "unreasonable" and, in Amendment No. 33, "deliberately intended". I have actually been in situations where some of these issues have been dealt with and there is, of course, complete denial. The people involved say that they never deliberately intended to cause fear or worry.
The words in these amendments do not help. The Bill as it stands could, and would, work. A landlord has to apply for an injunction, and at that point the
494
interpretation could be applied to the situation. I hope that, when the Minister replies, he will take those thoughts into account.
Lord Elton: The difficulties described by the noble Baroness, Lady Dean of Thorton-le-Fylde, would be removed if the word "annoyance" was removed. The qualifying phrases are designed to raise the threshold for the experience described as annoyance in the Bill. After all, the word is not defined and is very much open to a wide range of interpretations.
On my noble friend's Amendment No. 30, I share the view of the noble Baroness, Lady Dean, that "persistent" is something that should not be added. In fact, a very serious nuisance can be caused on a single occasion. A group of young rowdies having a rave-up in the central courtyard of a block of flats at night is not persistent behaviour, but would be horrific for the people living around that courtyard. I would not want an injunction to be ruled out in that case.
I differ from the noble Lord, Lord Clement-Jones, in his wish to have some measure of intent inserted into the nuisance clause. As his noble friend on the Front Bench has already demonstrated in the gentlest way, it is possible to cause a nuisance unintentionally. One can do so by driving a stolen motor car round and round a block of flats with a punctured exhaust pipe. That is not done to annoy the neighbours but to get a buzz when the cops turn up with their sirens blazing. The qualifying phrases do not work. If "annoyance" must be left in, I believe that the late entry by the noble Lord, Lord Phillips of Sudbury, is the best in the field.
Baroness Hamwee: I commented to my noble friend that the amendments from these Benches happen to come from three solicitors. He said that the only thing that was unusual about that was that it was not three barristers. We all recognise the point made by the noble Baroness about the seriousness of the decision to seek an injunction. None of us would expect an injunction to be sought for a trivial reason or in trivial circumstances.
However, we feel that the Bill should express the level of the annoyance—the seriousness and significance. I take my noble friend's point that no adjective should be applied to nuisance because it is a term that is understood. The Bill should recognise that there is a threshold. It is not only a matter of a landlord deciding that the behaviour is not serious enough or perhaps even getting to the point of the court saying that an injunction would be an inappropriate remedy. That would begin to interfere with the way in which the Bill proposes to deal with the situation.
As to the point made by my noble friend Lord Clement-Jones about deliberate intention, we are talking about people being deliberate or reckless as to the consequences of their actions. I do not think that any of us is trying to draft on the spot, but we are all looking to the Minister for acknowledgement. We all accept that, in the context described by the noble Baroness—and I agree with the

495
point about persistence—the statute must be properly balanced with proceedings that a landlord might be able take.
Lord Avebury: Perhaps I may suggest two models for the Minister to consider if he is seriously thinking about amending the clause in the light of all the criticism that has been made. The first is in Section 4 of the Criminal Justice and Public Order Act 1994, which allows prosecutions to he made after a single serious event occurs that is the result of threatening, abusive or insulting behaviour. I realise that that is a level above what we are discussing here, but it is important that Section 4(A) allows that to happen.
The other provision that I wish to draw to the Minister's attention is the Protection Against Harassment Act 1997, in which the conduct needs to be repetitive. I accept that those pieces of legislation deal with conduct that is a great deal more serious than that which would attract injunctions under these provisions. but they are nevertheless useful as a model of the wording and for considering whether or not the conduct dealt with by these provisions that attracts injunctions should be of a one-off nature or required to be repetitive. I only suggest that the language in the Acts which I quoted might he a useful guide in how to revise this particular provision.
Lord Bassam of Brighton: I think that I had better start by being polite before I get into being less polite. I understand and appreciate why noble Lords, particularly on the Liberal Democrat Benches, are very keen to ensure that no one who should not be is caught up in these definitions because of the language used. I entirely understand that. However, I really do think that noble Lords need to take something of a reality check on this. The noble Baroness, Lady Dean, put her finger on it. What we are looking at in trying to deal with this form of anti-social behaviour is a range of nuisances and annoyances which, singly or collectively, make people's lives unbearable.
I know that noble Lords, particularly those on the Liberal Democrat Benches, have a lot of local government experience. I do not know whether their experience is at all similar to mine—I represented and worked in a very busy city environment. In the nearly 20 years in which I was involved as a councillor, what I always found most shocking was what one neighbour or group of human beings was prepared to do to another, in many different manifestations, such as loud and persistent music during the night, the use of car repair equipment on front lawns, the outrage of a rave adjacent to housing or people banging on walls either persistently or occasionally, becoming persistent over time. I had to deal with many such unpleasant incidents. What we found most difficult was finding the means, and then willing the means, to deal with such behaviour. Such people can make other people's lives absolute hell and misery.
That is why our approach to dealing with anti-social behaviour has had the enthusiastic support of tenants and, in particular, tenants who have been affected by such behaviour. Let there be no doubt that there is real
496
resonance for these measures, particularly on housing estates. Anyone who has had any experience in local government knows that to be a fact. Indeed, when consultation was undertaken on these issues, about 70 per cent of those consulted favoured widening the measures.
All the amendments, in one form or another, seek to narrow the measure, but that is not acceptable. I think that we have this right so far as the public are concerned. It is not about pandering to populism but about striking the right balance and, yes, dealing with the difficulties of language. The noble Baroness, Lady Hamwee, with her seductive image of the warm bath and music, actually betrayed her own position in a sense. She talked about a menu, but that menu itself contains inconsistencies, as she was gracious enough to acknowledge.
I should like to go through the various amendments and pick up the points in them.
Baroness Hamwee: I am sorry to interrupt the flow of the Minister's reply. However, I think that it is important that we acknowledge—if we have not already done so; I think we have—that we are entirely at one with him in much of what he says. Where we are not at one with him—I shall go straight to the impolite bit—is that legislation ought to say what the Government mean and what he has just very clearly spelt out. No Member of the Committee wants to see legislation brought into disrepute or to provide what is not meant or more than is meant. So we are with him in his comments, but not with him in the written words he is advocating.
4.45 p.m.
Lord Dixon-Smith: Before the noble Lord winds up, and bearing in mind that I have the privilege of the last word in this debate—which is unusual, when my wife is around at any rate—I should like to make just one point now. In his description, the noble Lord himself used the word "offence" and also the words "over time". So the difference between us is one of margin.
Lord Bassam of Brighton: We shall see. I intend to go through the detail of the amendments. I think it only fair to deal with them in turn.
Amendments Nos. 30 to 36 seek to add to the criteria which behaviour must meet before that behaviour can be prohibited by means of an anti-social behaviour injunction and would make it harder to obtain injunctions and—this is important; it is the challenge I issue to noble Lords opposing the Government's approach here—reduce the protection available to those suffering anti-social behaviour.
Amendment No. 30, in particular, requires conduct to be both persistent and unreasonable before an injunction can be granted. A requirement that behaviour be persistent would rule out the use of injunctions where a single serious incident had occurred. It would be quite wrong to tell victims of such incidents that they could be given no protection until the behaviour became persistent.

497
Amendments Nos. 31 and 34 revert back to the wording in the 1996 Act requiring the behaviour founding the injunction to have already caused nuisance or annoyance or be likely to do so. Amendments Nos. 32, 36 and 46 go further and require the conduct to be likely to cause significant nuisance and annoyance. Amendment No. 33A requires conduct to be a nuisance or a serious or repeated annoyance.
Amendments Nos. 33 and 35 narrow the circumstances in which a social landlord can obtain an injunction to occasions where the behaviour is deliberately intended to cause nuisance or annoyance. Inquiring into the "state of mind" or motive of the perpetrator is particularly unhelpful. For example, if someone is playing music until 4 a.m. and disturbing his neighbour, the neighbour does not care why he is doing so—the neighbour just wants him to stop. These amendments suggest that landlords should be required to provide evidence akin to that required to establish intent in criminal proceedings when seeking to obtain a civil injunction. I cannot believe that noble Lords want to create such a requirement.
New Section 153A deliberately widens the definition of anti-social conduct to include behaviour which is "capable" of causing nuisance and annoyance. That will enable social landlords to be more proactive in their management of anti-social behaviour and will avoid legal arguments about the exact severity or likelihood of anti-social behaviour causing nuisance and annoyance.
If a landlord presents evidence of anti-social behaviour to the court, it is for the court to determine whether the behaviour could cause nuisance or annoyance to a reasonable—not necessarily an ultra-sensitive—person and whether an injunction is both proportionate and necessary. An injunction is simply an order of the court asking someone to stop doing something. It is not a punishment in itself. The court simply needs to determine that the injunction is both necessary and proportionate.
Landlords should act promptly to stop anti-social behaviour escalating. An early application for an injunction—I think that this takes up the point made by the noble Lord, Lord Hylton—is essential and should nip such behaviour in the bud. An injunction will prohibit low-level anti-social behaviour that could lead to more serious problems later. Judicial discretion is the ultimate safeguard against the inappropriate use of injunctions. That is an important point and I am sure that noble Lords will wish to reflect on it.
I understand the concerns highlighted by Amendment No. 33A—that "annoyance" is too low a level of anti-social behaviour. In practice, however, injunctions have often been granted on the basis of an annoyance.
Lord Elton: The noble Lord has said that, in practice, annoyance has been caused and injunctions have been granted. If the power already exists, why do we have to put it in the Bill now?
Lord Bassam of Brighton: I shall come to that point. The noble Lord, Lord Phillips, challenged me on that issue. I intend to deal with it. Courts have held that in this context "nuisance" or "annoyance" should be interpreted widely. The behaviour must be such as to annoy an ordinary person, who, as I said, is not necessarily an ultra-sensitive one. Case law suggests that it can be difficult to distinguish between the words, but if both are used, annoyance is assumed to mean something less than nuisance and to have a wider meaning than nuisance. Annoyance has been described as something that reasonably troubles the mind and pleasure, not of a fanciful person, but of the ordinary, sensible person, although it may not appear to amount to a physical detriment to comfort. That is a very important point.
The noble Lord, Lord Phillips, in particular, asked for examples of annoyance in legislation. Perhaps I may refer the noble Lord to existing injunctions issued under the Housing Act 1996. Annoyance is used in terms of grounds for possession for secure and assured tenancies. It is quoted in Schedule 2 to the Housing Act 1985 (Ground 2) and it is also part of the Housing Act 1988 (Ground 14). The courts are familiar with it and it has been subject to interpretation. We believe it to be an appropriate way of dealing with this problem.
The noble Lord, Lord Avebury, made a helpful suggestion. He always tries to be of assistance in these matters. Before Members of the Committee get fixated on dissecting the language used, which I think will prove to be popular, they need to think about the inconsistencies of language in their amendments and to reflect on the nuisance and annoyance with which we are trying to deal in this legislation. I think that the balance is right. I hope that noble Lords will withdraw their amendments.
Baroness Hamwee: Before the noble Lord, Lord Dixon-Smith, responds, I hope that I have assured the Minister and Members of the Committee that there is no need to encourage us to reflect on the seriousness of what we are dealing with. We understand that.
As I understand it, he bases much of his argument on the interpretation of annoyance, which the courts have previously applied under other legislation. Could he write to us giving the detail? All three of us have a technical and political interest in understanding that. We are open to persuasion. If what we are seeking is already the case—because of the way in which the courts have applied the term and that it would be read over without a problem—we are dealing with something rather different. I am afraid that because we are all technicians we need to see the detail.
Lord Bassam of Brighton: I am happy to confirm that I shall write further on the matter.
Lord Clement-Jones: I thought that at points the Minister's reply verged not only on the patronising, but also on the unsympathetic. "Verging" is perhaps even too mild a word. As regards the unsympathetic, it seemed to be the good cop and bad cop routine. In the previous set of amendments, the noble Baroness

499
understood the issue about the balance to be maintained. I do not think that the Minister has taken that on board. He asked a number of Members of the Committee to reflect; I think that he might reflect on how the wording could be improved in the light of that. My noble friend Lady Hamwee suggested that the use of the word "recklessness"—a kind of mens rea in its own way, which is a term recognised in criminal law, not going as far as intent—might be a way forward. I found the Minister's response to the types of issues that I raised, which received a sympathetic response in the previous set of amendments, completely unsympathetic and unattractive to many members of the organisations concerned.
Lord Bassam of Brighton: I apologise to the noble Lord. Goodness, far be it from me to be a bad cop and patronising. I live with a solicitor so I have to be very careful when I do that in the company of lawyers, and particularly solicitors. I apologise if I gave offence. It was not my intention. Nor was it my intention to give offence to the groups on whose behalf the noble Lord, Lord Clement-Jones, was speaking. We recognise that there are real difficulties for people who have Asperger's syndrome or learning difficulties or who are affected in the way that he described earlier, and the way in which they might come under this legislation. Of course, we are sympathetic to that.
Ironically, our local courts in Brighton dealt with a case concerning precisely those aspects of an antisocial behaviour order only last week. I am well aware of those issues. We understand the sensitivity required when dealing with people who suffer from particular syndromes, which contribute to their appearing in court, to be dealt with in the way in which this legislation will deal with them. I do not want the noble Lord to leave thinking that I am patronising, a bad cop or unsympathetic—I am not usually. I understand the points entirely.
Lord Clement-Jones: That was a much more sympathetic intervention.
Lord Dixon-Smith: I am most pleased that I tabled my original amendment and that it has led to a thoroughly useful discussion. We should clear up one misapprehension. The noble Lord, Lord Bassam, responded in tones which led me to suppose he thought that the Bill was perfect and that the rest of us were trying to ruin it. That was not the intention. The intention was to make the Bill better in its purpose and in the way it works for ordinary people. The Bill was welcomed at Second Reading. That welcome is no less in Committee because we have tabled amendments which try to alter specific meanings. Therefore, I think that the noble Lord, Lord Bassam, did not do himself a service.
We must look at the realities of injunctions against anti-social behaviour. I accept entirely that a person who plays music loudly in a flat until 4 a.m. is likely to raise everyone's temper beyond boiling point. If he or she does that once, should we really go to court to obtain an injunction to prevent a repetition? I agree
500
that if it were repeated, there might be some point in going to court to obtain an injunction. In dealing; with the case of a rave in a courtyard of a block of flats by a group of youths, that is unlikely to be easily planned so that one can go to court to obtain an injunction to prevent it. By the time it is over, it is too late. The youths are unlikely to do it again.
What are we talking about? We are not talking about occasional annoyance. We are talking about persistent annoyance. The Minister used the words "persistent" and "over time". I agree that every now and again some individual is quite likely to do something which will cause immense irritation to his neighbours. We are all capable of doing that. The question is whether that is a sufficient offence to take before the courts to obtain an injunction to prevent it happening again. Bear in mind that this is a precursor, ultimately, to the possibility of losing tenancy. A one-off incident will not result in an injunction—in my view of the courts. As I said at Second Reading, thank heavens for the courts, which will have to make sense of what is not a well-worded part of the Bill.
Criticism has come from all round the Committee. There is no argument or quarrel over the intention lying behind the Bill. We all accept the need for something to be done when a real problem arises., but the real problem is not a one-off event. In the light of this debate I ask the Minister to think carefully, as he has invited us to think carefully, about the wording in this part of the Bill.
I am quite prepared to admit that my use of the words "persistent" and "unreasonable" has been an extremely useful cock-shy, set up to provoke a good and interesting debate which has helped to highlight some of the problems. The Minister should not try to insist that there are no problems because it is clear from the debate that the opinion of the Committee is such that, if it came to a vote, he would probably he left the loser. But of course that is not our intention at this point.
I am grateful to all noble Lords who have contributed to this useful discussion. Our purpose is to try to improve the Bill. I finish by saying that we all need to think about the wording here. At the moment I do not think that it is satisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
[Amendments Nos. 31 to 36 not moved.]
Lord Dixon-Smithmoved Amendment No. 37:
Page 10, line 19, leave out "or" and insert "and"
The noble Lord said: The Minister may have a wry chuckle at this point because earlier in the proceedings I tabled an amendment that sought to leave out "and" and insert "or", while here I seek to leave out "or" and insert "and". I suppose that I may he open to the charge of inconsistency.

501
We are still considering anti-social behaviour injunctions. New Section I 53A(4) states that:
"The second condition is that the conduct is capable of causing nuisance or annoyance to any of the following—

(a) a person residing in housing accommodation owned or managed by the relevant landlord;

(b) a person visiting the housing accommodation".

We have come back to the question of nuisance or annoyance argued by the noble Lord, Lord Phillips of Sudbury. Is this nuisance or annoyance or is it nuisance and annoyance? In this situation we felt that the word "and" was perhaps more appropriate.
Amendment No. 43 in this grouping adds a paragraph specifying that:
"'Nuisance and annoyance' includes conduct which intrudes unreasonably into the peaceful occupation of the properties".
Amendment No. 45 seeks to insert the word "any" into new Section 153A(6).
The amendments continue to mark the concerns expressed in our previous debate. While "nuisance" is clearly understood, in the Bill the concept has been widened with the word "annoyance", which is more difficult. Again, we think that the wording could and should be improved and believe that these amendments would help the Government rather than hinder them. I beg to move.
Lord Bassam of Brighton: We have had much of this debate on earlier amendments. I shall not go over the same ground, but I wish to make one or two observations on each of the amendments before I invite the noble Lord to withdraw them.
As the noble Lord has explained, Amendment No. 37 seeks to ensure that both "nuisance" and "annoyance" would have to be proved in order for the injunction to he granted, rather than it being on the ground of nuisance or annoyance. We have already debated the "and/or" question.
Amendment No. 43 seeks to define a nuisance and an annoyance. We see a danger in doing that because the amendment may focus too specifically on one particular group which is intended to be protected; namely, tenants and their visitors. That is not the only group the clause is intended to protect. For example, we also intend to protect staff and others engaged in lawful activity in the locality, perhaps providing services in one form or another.
I made this point in a previous amendment, but I shall make it again: the wording "nuisance or annoyance" has been readily understood by the courts in connection with the existing housing injunctions made under the Housing Act 1996, an Act with which the noble Lord is no doubt familiar. The legislation was put in place when his party was in office. It was convenient to use the terminology then and we find it useful for legislation that we are introducing now. Further, the nuisance grounds for possession applicable to secure and assured tenants relate to that legislation.
502
To change this wording would imply a change in the criteria under which an injunction can be sought and may make it harder to get an injunction. For example. defendants could argue that only nuisance or only annoyance had been caused and hence an injunction should not be granted. As I said earlier, the courts have held in this context that "nuisance or annoyance" should be interpreted widely. The behaviour must be such as to annoy an ordinary person, not necessarily one who is ultra-sensitive.
Again, I should remind noble Lords that case law suggests that it can be difficult to distinguish between the words, but if both are used, "annoyance" is assumed to mean something less than "nuisance" and to have a wider meaning. Further, "annoyance" has been described as a thing that reasonably troubles the mind and pleasure, although it may not appear to amount to a physical detriment to comfort. Taking noise nuisance, which may occur on only one occasion but which carries on for a long period of time. then that is a nuisance and something which someone may well wish to bring to a stop by using an injunction. So I think that the noble Lord will need to address that issue.
Amendment No. 45 changes the wording in new Section 153A(6) of the Housing Act 1996 from,
"prohibits the person … from engaging in conduct"
to read as,
"prohibits the person … from engaging in any conduct".
We would argue that the notion of "any conduct" is implied in the word "conduct".
Amendments Nos. 73, 74 and 74A would mean that a court hearing possession proceedings would be required only to consider the impact of nuisance or annoyance if that nuisance or annoyance was "deliberately intended". I dealt earlier with the issue so far as the victim is concerned, and I think that the same argument holds. The courts, when considering the actions of the perpetrator of anti-social behaviour, will be looking to see what is reasonable in all the circumstances of the case. They will consider the intention to cause nuisance or annoyance in order to justify a possession order. However, requiring landlords to prove someone's motives would make possession extremely difficult to obtain, akin to establishing intent in criminal proceedings.
I hope that the noble Lord will take on board those points. They have been made before but I think that they are worth repeating because, in our view, they go very much to the heart of the issue and need to be taken seriously. In that light, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Dixon-Smith: I am grateful to the Minister for that response, which I shall study with great care. The whole purpose of today's procedure—if it has one at all—is to tease out from the Government exactly what they mean and how they intend the Bill to work. This has been a useful follow-on discussion from the previous one. There is no point in pursuing the matter particularly hard. I shall study that explanation in the

503
light of my original amendments and what the Minister said in response. For now, I am content to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brightonmoved Amendment No. 38:
Page 10, line 20, leave out "residing in" and insert "with a right (of whatever description) to reside in or occupy"
The noble Lord said: This group of amendments contains both government and opposition amendments and I shall address them all in my comments.
The aim of Amendments Nos. 38, 39, 40 and 42 is to clarify who is eligible to be protected by injunctions under new Section 153A of the Housing Act 1996. We want to support landlords who wish to do more than manage or protect their own tenants and take action to tackle anti-social behaviour more generally in the neighbourhoods in which their properties are situated. We do not of course expect social landlords to carry out general policing of their areas. That is why we have said that there must be a link with their housing management function.
Our policy intention throughout has been that social landlords should be able to apply for injunctions to protect tenants, leaseholders and anyone else who occupies property owned or managed by a relevant landlord; to protect staff providing housing management and related services on behalf of the landlord; to protect visitors engaged in lawful activity in the locality, including operatives working there; and, finally, to protect other residents in the area, including owner-occupiers and tenants of other landlords.
However, concerns have been expressed that the wording originally used in the Bill was too similar to that in Section 152 of the Housing Act 1996 which, in some cases, has been given a narrower interpretation than our policy intention by the courts. These amendments clarify our intentions. They will ensure that where the courts judge it necessary, all the groups that I have mentioned can be protected by a new Section 153A injunction.
Amendments Nos. 38 and 39 also ensure that injunctions are available to protect residents in the area even if they are temporarily absent from their homes. So, for example, if someone has been forced out of their home by racial or sexual harassment, an injunction under new Section 153A should be available to protect them if they wish to return. It is for those reasons that I shall seek to move Amendments Nos. 38, 39, 40 and 42.
Amendment No. 41 seeks to provide absolute precision about the area within which injunctive protection can be given to visitors and others. At the moment, judicial discretion in each individual case determines "locality". That is as it should be. Replacing this with a fixed distance could have some strange and anomalous consequences. Perpetrators could wait for someone to step over an imaginary line in the pavement, knowing that the person's protection
504
ceased at that point. It would not be useful for legal argument to focus on whether the correct measurement as to where the behaviour took place was 100 or 101 metres away, nor should we seek to stifle judicial discretion to that extent. That would be adverse to what we are attempting to achieve.
The effect of Amendment No. 44 would be that protection could be given only where the anti-social behaviour happened in the housing accommodation or its locality. This would have a series of undesirable consequences.
It is not our intention that social landlords should police the activities of perpetrators of anti-social behaviour wherever they are, regardless of the circumstances. Where behaviour happens outside of the locality, there must be some link to the housing management function. However, there are numerous incidents where such a link is easy to establish and where it is perfectly reasonable for a landlord to seek to protect the victim.
For example, our intention is that a housing officer who has refused a tenant a transfer could be protected if the aggrieved tenant later sees him in a supermarket some miles away and attacks him. The effect of the amendment would be that such protection would not be available. Similarly, if, following a neighbour dispute, a tenant assaults another tenant outside her child's school, the victim should not be refused the protection of an injunction with a power of arrest simply because the violent conduct took place away from her home. The dispute clearly related to the landlord's housing management function.
Amendment No. 48 reflects concerns as to whether an injunction to exclude someone from his or her normal place of residence has to meet the criteria in new Section 153C(1)—that is, that the conduct involves violence, threatened violence or a risk of harm. I can assure the Committee that new Section 153E is supplementary to new Sections 153A to 153D. The power to exclude in new Section 153E(2) applies only if the criteria in new Section 153C(1) are met. I hope that the noble Lord is following this. The amendment is therefore unnecessary.
Amendment No. 49 has no practical effect. New Section 153D already provides that "tenancy agreement" includes any agreement for the occupation of residential accommodation. Accordingly, a licence to occupy is already covered and a further definition is unnecessary.
New Section 153E(10), to which Amendment N o. 50 refers, defines a landlord as the "owner" of a property if the landlord's original lease of the housing accommodation was for longer than three years. This definition is used because it mirrors the definition of "owner" used in various other statutory provisions, including Section 56 of the Housing Act 1985.
Clause 13 allows social landlords who own or manage properties the power to apply for the injunctions introduced by Clause 13 and so, even if a

505
social landlord is not classified as the owner of a particular property, he or she will still be the manager and hence able to use the powers under Clause 13. The amendment would therefore have no practical effect.
I know that the noble Lord has not yet spoken to his amendments but I hope that, when he comes to do so, he will not feel it necessary to press them. I thought I should cover his amendments when speaking to the government amendments, which are in the same territory. I beg to move.
5.15 p.m.
Lord Dixon-Smith: We always have procedural difficulties when opposition amendments are grouped with government amendments. The Minister is correct to attempt to cover all the points before we have an opportunity to say whatever it is we want to say.
I shall confine myself to saying that the purpose of Amendment No. 41 was to probe the Government and to tease out of them what is the intended meaning of the word "locality". I accept that if a feud between tenants extends out to the neighbouring supermarket, cinema or pub, which might be some distance away, there is a problem. It may well be that you will want to take out an injunction against both parties because, if you get to that situation, obviously anti-social behaviour has been going on for some time.
Amendment No. 44 follows on from a point that I raised earlier. We are here dealing with an "immaterial" issue. The Minister himself said that the provision did not matter. If it is immaterial and does not matter, what are we doing putting immaterial provisions that do not matter on the face of the Bill? I cannot claim to have won the previous argument but we need to consider the drafting of the legislation. This issue has been raised in other contexts and it seems that putting immaterial provisions into Bills is not the best use of everyone's time, including the draftsmen's time.
It is for those reasons that I have tabled the amendments. It has not been an entirely wasted effort. The Minister may wish to add a few words to what he has said, but I shall forgive him if he does not feel the need.
Baroness Hamwee: Amendments Nos. 48 and 49 in this group are in my name. Amendment No. 48 is a probing amendment and follows a point made in the Commons Standing Committee by my honourable friend Matthew Green. In moving a similar amendment, he was told by the Minister:
"The power to exclude someone from their own home … can be used only where there is the use or threat of violence or a significant risk of harm".—[Official Report, Commons Standing Committee G, 13/3/03; col. 232.]
That is not in the Bill at new Section 153E(2)(b), the provision in lines 33 and 34. The legislation specifically says that the provision applies for the purposes of new Sections 153A to D so that this power to exclude applies to all injunctions under Clause 13, including
506
those that might be considered relatively low-level, where more serious incidents using violence are involved. I hope that the Minister can clarify the matter.
With regard to Amendment No. 49, I declare an interest. I have been involved over a long period with the domestic violence charity Refuge, but I have not had the opportunity of discussing this with it. The amendment is drawn from my experience and may not be precisely right, but I would like to explore the point. It provides that for the purposes of new Section 153D a licensor of housing accommodation is also the relevant landlord and that the provisions of new Section 153D would apply to its licensees.
Refuge will not be the only organisation that licenses hostel accommodation but does not fall within the definition of "landlord". I have seen these licence agreements. Under the licence agreement it can deal with evicting a tenant who displays anti-social behaviour but may not be able to deal with the partner of a tenant who follows the woman—it is usually the male partner—and may threaten violence in the refuge. That is a problem for the individual woman. It is also very distressing to other women in the refuge and their children.
I have not had the opportunity to discuss this with Refuge, although I would like to. It will be one of many licensors of hostel accommodation. If we are addressing the use of this legislation to extend beyond tenants to those with whom they associate, I would like to use the opportunity to explore whether there is another little area of difficulty which ought to be addressed when we have the legislative opportunity. That is my reason for tabling the amendment.
I am not sure whether I have described the problem as adequately as I might have done. If a word outside the Chamber would assist, I would be happy to oblige.
Lord Bassam of Brighton: I do not think I have very much to add. I thought that in dealing with Amendment No. 49 I had made it plain that in using the term "tenancy agreement", we included any agreement for the occupation of residential accommodation. I rather hoped that that covered the noble Baroness's point. Perhaps she would like to reflect on that; she has said that she wants to think more about how that issue is covered in the legislation. I thought, too, that I had already covered the points she raised in my response to Amendment No. 48. I am not sure or confident that I can offer her any further elucidation.
I think I am right in saying that I am a victim of the way in which these amendments have been grouped, as I responded to one which was not in the group. My comments on Amendment No. 50, which stands on its own, were included in my commentary. I got rather carried away, I confess. If I do not say very much on the next amendment, noble Lords will appreciate why. This has been a useful debate in teasing out the various issues.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos. 39 and 40:
Page 10, line 21, at end insert—
"( ) a person with a right (of whatever description) to reside in or occupy other housing accommodation in the locality of the housing accommodation mentioned in paragraph (a);"
Page 10, line 22, leave out "visiting the housing accommodation or otherwise"
On Question, amendments agreed to.
[Amendment No. 41 not moved.]
Lord Bassam of Brightonmoved Amendment No. 42:
Page 10, line 24, at end insert "mentioned in paragraph (a)"
On Question, amendment agreed to.
[Amendments Nos. 43 to 49 not moved.]
Lord Dixon-Smithmoved Amendment No. 50:
Page 12, line 19, leave out "three years" and insert "one year"
The noble Lord said: I was slightly surprised to hear Amendment No. 50 tripping from the Minister's lips in the previous group. Perhaps he would give it a little more attention when he hears my reason for moving it.
One phenomenon, which is not unknown, is for property to be purchased for things such as highway improvements which then do not take place for some years. In that circumstance, they are in the possession and usually come within the responsibility of the local authority, sometimes as landlord, and it can be for a period of less than three years, perhaps for as little as one year. None the less, this provides a very useful housing facility for housing authorities in certain circumstances. Such properties can be used for particular tenants or as short-term student accommodation—there are a host of reasons.
That is what lies behind my suggestion that a period of one year was rather better than three. One gets these peculiar short-term occupations and ownership of property by local authorities that are less than the three-year term defined by the Bill. Such short-term use should not be excluded from the Bill, as it is at present by the restrictions it contains. If the Minister will simply confine himself to saying that he will look at that, I should be quite content. I beg to move.
5.30 p.m.
Lord Bassam of Brighton: I would be more than happy to do as the noble Lord suggests, if it were not for my punchline that the amendment is unnecessary. It is unnecessary because the definition that we use has been commonly used, particularly in Section 56 of the Housing Act 1985. In any event, Clause 13 allows social landlords who own or manage properties the power to apply for the injunctions introduced by virtue of that clause. Even if the social landlord is not classified as the owner of that particular property, he will still be the manager and therefore able to use the powers.
508
I understand the noble Lord's point. I can think of housing that may not have been subject to the three-year category for which it may be wished to use the powers. However, that eventuality is covered. The noble Lord is astute to make reference to property on highways land as often falling within those circumstances. That is quite right—I can think of several good examples within his own county of Essex.
Lord Dixon-Smith: I am grateful for that reassurance. I shall consider the matter again but I am quite happy now, in the circumstances, not to press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [Security of tenure: anti-social behaviour]
Lord Dixon-Smith movedAmendment No. 52:
Page 13, line 34, after "house" insert "at the invitation of the tenant"
The noble Lord said: The amendment is grouped with Amendment No. 57, which has the same point in mind.
The Bill refers to anti-social behaviour by visitors to the property. The problem is how to define a visitor. That is an important point because if tenants occupying a property invite someone in, they clearly have some responsibility for that person. I have no difficulty with that, which is why we have used the words,
"at the invitation of the tenant".
However, one may get unwanted visitors, such as salesmen. One might be visited by a jilted lover, who might simply want to raise Cain and cause trouble. One might be visited by a divorced spouse with the same ambition, particularly if he or she knows or thinks that it would be possible to get away with it. It is necessary to make a distinction between those who are invited and who are therefore clearly the responsibility of the tenant and those who are not invited and may be there with the deliberate intent of mischief-making. That is an important point that should be in the Bill for the protection of perfectly good and responsible tenants. I beg to move.
Lord Bassam of Brighton: The noble Lord touches on a slightly tricky issue—there is no question of that. Whether the amendment is the right way in which to deal with it, and whether it is something that could be dealt with by drafting, is an open question.
The aim of Amendments Nos. 52 and 57 is to prevent a demotion order being granted based on the actions of a visitor, except where the visitor comes to the dwelling house at the invitation of a tenant. That is the exeat that the noble Lord is trying to introduce. The amendment may have arisen from concerns that a tenant should not be held responsible for the actions of a person whom he has not invited to the property. However, the amendment is unnecessary, and I shall briefly explain why.

509
A demotion order cannot be granted unless the judge considers it reasonable to do so. Considerations of reasonableness will include looking at the relationship that the tenant has with the visitor and the reason for the visitor's presence in the property. It would not be right to grant an order if it was unreasonable for the tenant to have any responsibility for the actions of the visitor, whether that visitor is a salesman or saleswoman, a drug dealer or a party political canvasser—although I cannot imagine circumstances in which anyone would take fright at that. The judge will take account of reasonableness, and the order will not be granted if the judge feels that it would be unreasonable for the tenant to have responsibility for the actions of the visitor.
The amendment could have harmful effects, allowing tenants to escape demotion merely by offering the explanation that they had not, on that particular occasion, invited that particular visitor. Friends and family may not expect or require a specific invitation, but they are visitors none the less.
The noble Lord is properly motivated in introducing the amendment, but we do not believe that it is necessary. The amendment could have unfortunate and unintended consequences that would undermine the demotion order, which is extremely important to the whole construct of the anti-social behaviour legislation.
Lord Dixon-Smith: The Minister's arguments are seductive but, if my amendments are not accepted, another unfortunate consequence might result that would be the match of the one that he described. Some poor unfortunate may finish up in court before a judge, before the judge can make a judgment and reject the case. That is all very well, but for most ordinary people the thought of appearing before a judge is terrifying. We really do not want unnecessary cases to go before judges because someone has arrived at a house who is genuinely not a member of the household, may have raised trouble and may have done so persistently—despite the lack of need for that word.
I am not wholly convinced by the Minister. I accept that there is a possibility of difficulty arising but if we could have some discussion between now and a further stage of the Bill, we might be able to reach an accommodation. However, as I say, I am not wholly convinced that the Bill as it stands is satisfactory.
Lord Bassam of Brighton: There is a test of reasonableness in practice. It may help the noble Lord to consider how the provision works in the exercise of ground two possession proceedings under Schedule I to the Housing Act 1985. The noble Lord will be familiar with that legislation. In 18 years there have been few problems with regard to the way in which the test of reasonableness is exercised. The noble Lord has set me the challenge of continuing to think about the matter. We shall do so but it may help him to consider how the provision has operated with regard to ground two possession proceedings.
Lord Dixon-Smith: I am grateful for that suggestion. I shall consider that point but I seek to avoid unnecessary litigation altogether. That is the issue here. However, for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamweemoved Amendment No. 53:
Page 13, line 36, at end insert—
"( ) that where an injunction under section 153A or 153B has already been granted, its terms have been breached or, where no such injunction has been obtained, it was not an appropriate or available remedy to the landlord,"
The noble Baroness said: In moving Amendment No. 53, I wish to speak not only to Amendment No. 54, with which it is grouped, but also to Amendments Nos. 58 and 60, with which it is not grouped. I hope that I may speak to all four amendments. The Minister, the noble Lord, Lord Dixon-Smith, and I have exchanged notes on the matter. The amendments concern similar issues.
Amendments Nos. 53 and 58 seek to ensure that the powers in the Bill to demote tenancies are used only as a last resort. I understand that in some quarters it is thought that injunctions are difficult to obtain. That is not the case. I suggest in the amendment that a landlord should have good reasons for not using the injunction procedure in the initial stages of responding to anti-social behaviour. The amendments provide a staged approach so that, in line with what I understand to be the Government's policy intentions, demotion is used only in exceptional cases when other measures for addressing the behaviour have failed. The objective is to prevent unnecessary homelessness.
Amendments Nos. 54 and 60 are designed to give the court discretion to include the provision of support and rehabilitation as part of the conditions of a demotion order. The Government have said that the purpose of demoted tenancies is to give tenants a last chance to address and change their behaviour. The Committee has acknowledged that support, rehabilitation and prevention—which is not the issue here—are particularly important. The amendments are drafted to allow a court to require either the landlord himself to provide support or to secure it from another agency. Nothing in the amendment would prevent a court granting demotion without support where it considered that that would not be either necessary or appropriate. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Hamwee, for speaking to those separate groups of amendments following our exchange of notes. That helps the discussion on demotion orders. I shall deal with the relevant four amendments in turn.
Amendment No. 53 seeks to prevent the court granting a demotion order if an injunction is in place which has not been breached or if the landlord has failed to apply for an injunction in appropriate circumstances. This would limit the discretion of the

511
landlord to choose between two effective remedies for anti-social behaviour and would prevent the landlord from using a "mix and match" approach.
Demotion and injunctions are intended to be freestanding options which the social landlord would be able to use separately or in combination depending on what was most appropriate in the circumstances. It may often be a good idea for landlords to seek injunctions before taking other action. However, in cases of low level, persistent anti-social behaviour, a demotion order may be more appropriate than an injunction. I am sure that the noble Baroness accepts that. It would not be helpful if the power to obtain demotions were restricted in that way.
Amendment No. 54 links too closely for us the provision of support with the demotion order. As we discussed earlier, it is good practice that landlords should offer appropriate support to those affected by anti-social behaviour, as well as those who perpetrate it. As well as giving the tenant and landlord the opportunity for rehabilitation work, the demotion order is an attractive proposition to landlords in that it ensures swift action if behaviour is not addressed.
Tying any support to the order may lead to unforeseen complexities. For example, if the landlord did not have a complete support package in place at the time of seeking an order, would the courts refuse that order? That is quite a big question. If the landlord had not provided the support in the method stated in the demotion order, could that be a reason for the tenant to challenge any subsequent eviction action? I invite the noble Baroness to give some thought and consideration to those points.
Amendment No. 58 would prevent the court granting a demotion order if an injunction were in place which had not been breached or if the landlord had failed to apply for an injunction in the appropriate circumstances. As I have already made plain, that limits the discretion of the landlord to choose between two effective remedies for anti-social behaviour. So far as we are concerned, Amendment No. 60 again links too closely the provision of support with the demotion order and raises the problems to which I referred earlier.
I will not say that we see the beauty of the demotion order as being something that falls mid-way between injunction and eviction—two options available in the circumstances with which we are concerned. We see the demotion order offering a lot more. It is a more finely tuned and appropriate option for the landlord—one that we think will be found particularly attractive. It offers encouragement and some important loss of rights.
We understand the seriousness of that, but the demotion order provides the opportunity for the offender, to use that term, to think about his behaviour and modify it. It enables him to have a dialogue with management and, if appropriate, with the person suffering from the anti-social behaviour, to work out a solution and to regain and recover his rights over time. We understand that that is widely supported and popular, and we do not want to inhibit the use of demotion orders as the amendments could.
512
I realise that the issue is considered serious, not least by the noble Baroness. I am grateful to her for tabling the amendments as it has enabled us to explain some of our thinking behind the important improvements to the legislation.
5.45 p.m.
Baroness Hamwee: I thank the Minister for the response on Amendments Nos. 53 and 58, on which he said that the landlord's action could be limited. I shall look at their drafting again. On Amendments Nos. 54 and 60, one of his concerns was that a tenant might be able to challenge a demotion order if the landlord did not have a support package in place and did not fulfil those conditions. The amendments were not intended to be other than discretionary—they state that the order "may contain conditions"—so I had hoped that that outcome would have been avoided by the drafting. However, I will of course look at all he said. as well as at whether the words have the outcome that he suggests. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 54 not moved.]
Lord Dixon-Smithmoved Amendment No 55:
Page 13, line 46, at end insert—
"(e) any other express terms of the secure tenancy"
The noble Lord said: The amendment is grouped with Amendment No. 56. One introduces words to the Bill and the other deletes words from it, and I can see the Minister winding up his reply by saying that what I want to introduce merely states what is in the words that I seek to remove. That is not the case. The words that I seek to introduce to the Bill on the demoted tenancy agreement are,
"any other express terms of the secure tenancy".
In other words, apart from the fact that the tenancy is demoted, together with the period of the demotion and the rent and so forth, the former terms of the secured tenancy are transferred into the demoted tenancy.
That is not what is stated in lines 4 to 6 on page 14 of the Bill. The Bill states:
"If the landlord of the demoted tenancy serves on the tenant a statement of any other express terms of the secure tenancy which are to apply to the demoted tenancy such terms are also terms of the demoted tenancy".
That implies quite clearly that some of the terms of the protected tenancy might well be removed from the tenancy agreement of the demoted tenant. We do not think that that is reasonable. It seems to me that the demotion itself, the loss of security of tenure, should be sufficient punishment, without having the tenancy agreement fiddled with as to which clauses in the original agreement should remain in the demotion.
Unless the Minister can provide a solid justification as to why the landlord should be allowed to "wriggle" with the clauses of the secure tenancy on the arrival of demotion, my amendments should hold good. It was

513
concern about that specific issue that led me to table them. They are an important little matter in their way. I beg to move.
Lord Avebury: In replying, will the noble Lord say whether the terms of the secure tenancy which are transferred in accordance with the provisions in subsection (7) would have to be submitted to the county court? Has the landlord an absolute discretion to decide which terms of the secure tenancy he will reimpose? Or does that have to be approved by some other authority?
Lord Bassam of Brighton: The purpose of Amendments Nos. 55 and 56, as the noble Lord, Lord Dixon-Smith, explained, is to remove the procedure whereby a landlord may impose specified express terms of the tenancy preceding the demoted tenancy on a demoted tenant by service of a notice of terms and replace it with a system whereby all express terms of a secure tenancy are automatically carried over to a demoted tenancy. The amendment as drafted would apply only to secure tenancies, and it does not establish the equivalent changes to assured registered social landlord tenancies.
The amendment would cause considerable legal problems. Some secure tenancies have terms relating to security or associated rights, such as rights to additional compensation for repairs. We do not want these to be automatically reintroduced into a demoted tenancy. If demotion is to act as a sanction, landlords should be able to choose whether or not to give these additional rights to demoted tenants. The amendment potentially has the effect of impacting upon that important penalty.
It is not the case that if no notice of terms is served then the tenancy has no terms. Paragraphs (a) to (d) of Clause 14(5) set out the basic conditions under which the tenancy will operate. Landlords may then apply any other express terms of the original secure or assured tenancy that they consider to be right. I hope that that answers the noble Lord's point.
In response to the point raised by the noble Lord, Lord Avebury, no, the county court does not have to approve it; and, yes, the landlord does have discretion to choose which terms it seeks to put into a demoted tenancy. The noble Lord will probably not like those responses, but they answer the questions that he raised.
Lord Dixon-Smith: It is interesting. I thought I understood the purpose of a demoted tenancy to be reforming. The hope is that the demoted tenant will reform his ways and that after the lapse of the relevant period the tenancy will revert to a secure tenancy. If that is so, the Minister's example was a bad one. He mentioned specifically rights of repair. If the hope is that after two or three years the tenancy will revert to a secure tenancy, after the person has learnt his lesson,
514
and if as a consequence of the rights of repair being removed from the agreement the repairs are not done, the end result could be a worse situation—
Lord Bassam of Brighton: I need to correct a misimpression. It was not about rights to repairs, but rights to additional compensation for repairs. That is rather different.
Lord Dixon-Smith: That changes the situation and if I misunderstood it I apologise to the Minister. In any event, I shall study his reply with care and consider whether we need to return to this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 56 to 60 not moved.]
Clause 14 agreed to.
Schedule 1 [Demoted tenancies]:
Lord Dixon-Smithmoved Amendment No. 61:
Page 54, line 2, leave out "of the dwelling-house" and insert "under section 143E"
The noble Lord said: The amendments relate to demoted tenancies. The purpose is to ensure that the fast-track eviction proceedings available for demoted tenancies cannot be used for any reason other than for further anti-social behaviour. In other words, a tenant getting into difficulties over his rent would not necessarily be a reason for taking accelerated action on a demoted tenancy.
The whole purpose of these procedures is to deal with anti-social behaviour. There are other reasons why people get into trouble over their housing and can have difficulties with their landlords. We believe that these amendments would strengthen the Bill. They would ensure that the Bill's focus was to deal with antisocial behaviour and they would also ensure that landlords could not use other grounds for the cessation of a demoted tenancy. We believe that that would be a useful protection. I beg to move.
Baroness Hamwee: My name appears to all the amendments. As we are making good progress, I shall not say in different words what the noble Lord, Lord Dixon-Smith, has said. I support the amendments.
6 p.m.
Lord Bassam of Brighton: I am grateful to the noble Lord for moving these amendments. It provides us with an opportunity to give further thought to demoted tenancies and the implications of them. Amendments Nos. 61, 63, 68 and 72 require landlords to return to court and prove that there has been further anti-social behaviour in order to end a demoted tenancy.
I fully understand why noble Lords should want to ensure that tenants are not evicted from their homes without good reason. Over the years, quite rightly, there has been much legislation to ensure that that is

515
the case. But these amendments would make the whole principle of demoting tenancies, in our view, entirely worthless.
The idea behind demoted tenancies is to encourage landlords not to go straight to possession proceedings in all cases of anti-social behaviour. At the moment we have a situation in which they may seek an injunction. If a period of time passes and the injunction patently has not worked, they can go straight towards possession proceedings.
Here we offer another remedy that can be used separately or perhaps in combination. We want to encourage landlords to use demotion in situations where they feel that they can work with a tenant to change the tenant's behaviour—I believe that the noble Lord supports that principle—and therefore sustain the tenancy. That is what we want. No one wants to force people out willy-nilly, but if there is anti-social behaviour—something that has an adverse effect on neighbours or on other folk in the community—we want to set something in law that assists finding a resolution to that and changing the way in which people behave.
Possession proceedings are time-consuming and, as I am sure noble Lords will appreciate, can be very costly. Many witnesses and victims may be reluctant to attend court for a second time. That would mean that landlords would be much less likely to pursue that option and may move straight to eviction. A tenant would have been demoted in the first place only if the landlord were able to provide sufficient evidence to a court to obtain a demotion order. If the tenant's behaviour fails to improve it seems unfair to expect the landlord to gather the evidence and convince the court a second time. The tenant will already have received his or her last-chance warning. It is pretty clear at the outset of the proceedings exactly what the process leads to.
The procedure for ending a demoted tenancy is based on the procedure for ending an introductory tenancy. That is a decision taken by the landlord, following a statutory process, followed by a possession order granted by the court. The tenant has the right to an internal review of the landlord's decision. At the possession hearing, the court considers only whether the appropriate procedure was followed, and does not consider the facts on which the landlord's decision was based or, for that matter, the merits of the decision. That procedure has been approved by the Court of Appeal and by the House of Lords.
Registered social landlord demoted tenants are assured shorthold tenants and their landlords can obtain a possession order by giving two months' notice and they do not have to give any reason for that. That is in line with the way that the RSL starter tenancy scheme operates.
However, there are checks on the appropriate use of starter tenancies. The Housing Corporation guidance sets out that registered social landlords should follow a similar process to that for local authorities when taking possession action against starter tenancies. Housing Corporation regulations, along with Audit
516
Commission inspection, help to ensure that RSLs act in the right way. That protection will be extended to demoted registered social landlord tenancies.
That is how we see the situation working. We do not believe that these amendments, motivated by a desire to put in a degree of further protection, will do anything other than make the situation more complicated and add cost. We believe that there are the necessary checks and balances already in the procedures that we have set out. Of course, we understand the reason why noble Lords have sought to put in additional checks, but they are checks that we cannot support.
Lord Dixon-Smith: I am grateful to the Minister for his reply. I have to confess that I am not sufficiently expert to be able to interpret his intricacies without some advice. I shall be happy to take his reply away and—I hope he will forgive me—have it checked for the benefit of my own information rather than because I suspect that it is wrong. This has been a useful discussion. I am grateful to the noble Baroness, Lady Hamwee, for her support. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamweemoved Amendment No. 62:
Page 54, line 12, at end insert—
"(6) A demoted tenancy shall have the effect of suspending but not of terminating the tenant's right to buy the property pursuant to section 118 of the Housing Act 1985 (c. 68) (the right to buy) for the demotion period."
The noble Baroness said: I also have Amendment No. 61 in this group. Grouped with the amendment are Amendments Nos. 69 and 70, which are government amendments. I suppose I might say that my amendments have already had a result because they were designed, with a little difficulty, to flush out the effect that a demoted tenancy will have on the right to buy. The Government have now made explicit what was so disguised that I was not able to establish—either myself or, more importantly, through talking to those who might know—what the effect would be. They were sure that there would be one, but could not quite explain it. I see that in Amendment No. 69 the preserved right to buy goes. In other words, demotion means back to square one.
I am glad to have flushed that matter out. It is an issue that I—and, I daresay, others—will want to consider because it raises important issues both of principle, as to whether that is the effect of demotion, and also of practice, in terms of informing tenants of the risk and of effect. At this point, and seeing that people are gathering for the next part of the Bill, I shall leave my remarks on the issue at that point. I may want to return to it. Meanwhile, and in advance of the Minister moving his amendments, I thank the noble Lord for at least making clear what was unclear before. I beg to move.
Lord Bassam of Brighton: I rise to speak to Amendments No. 69 and 70 and to give further explanation. I am grateful to the noble Baroness,

517
Lady Hamwee, for her kind observations on our responding almost before she reached, as it were, an issue that concerned her. We are pleased to have been able to achieve that.
The aim of Amendment No. 69 is to ensure that tenants who have preserved right to buy lose it on demotion. That is plain. Preserved right to buy usually arises on stock transfer when secure local authority tenants with a right to buy become assured RSL tenants.
The existing clauses already ensure that when a local authority or housing action trust tenant is demoted from a secure tenancy, they will not have the right to buy for the period of the demotion. We intend to make amendments to the right to acquire through secondary legislation so that assured tenants of registered social landlords will not have the right to acquire during demotion. The amendment is designed to ensure consistency of approach.
The purpose of Amendment No. 70 is to ensure that time spent as a demoted assured short-hold tenant does not count towards the right to buy qualification or discount periods. The existing Anti-social Behaviour Bill provisions ensure that time spent as a local authority or housing action trust demoted tenant will not count towards the qualifying period for right to buy or the accrual of discount. The amendment ensures that the same rules will apply to time spent as a demoted assured short-hold tenant.
The right to buy is a very important, and now very valuable, right—as is the loss of the accrual rights to discount. We see it in those terms. We hope that taking that right away, even for a shortish period, will help focus the minds of those tenants who are making the lives of others hell or close to hell. We hope that it will help to focus their minds. We see it as an important part of the battery of measures set out in the Bill. As the noble Baroness said, it is absolutely proper that that is plain and clear in the Bill and that the impact of the loss of that right is well understood. We want it that way and consider that important. I commend the government amendments.
Baroness Hamwee: I am sure that many professionals will find that explanation helpful, as do I.
Lord Avebury: Before my noble friend withdraws the amendment, the Minister said that it is important that the provisions should be well understood. Of course I absolutely agree, because the effect of withdrawal of those rights might be that the tenant starts to behave himself. It is probably clear, but so as to get it on the record, what provision is there in the Bill or otherwise for the tenant to be told verbally that the effect of his continuance in the conduct that is causing the landlord to consider the measure will, among other things, be that he will lose the right to buy?
If it is physically explained to him, that may have a more salutary effect than if it is simply information contained in leaflets available to someone who goes to
518
ask for them from the local authority, as an entry on the local authority website, or in any other form of publication of which the tenant may be unaware. If it is explained verbally to him, that may be the most effective way to ensure that it has the impact for which the Minister hopes and which we all consider to be the objective of the clause.
Lord Bassam of Brighton: I am glad that the noble Lord, Lord Avebury, supports the intention behind the provision. We intend to ensure that the impact of demoted tenancies and of the loss of accrual of rights is well understood. We have had a long discussion about guidance and whether things should be stated in the Bill or made explicit in guidance. We certainly intend to spell out the policies and procedures in guidance, and clarifying and making crystal clear to tenants what a demoted tenancy implies in terms of rights and loss of rights will form part of that. So be pleased that we intend to make that explicit; that will help us and others affected by anti-social tenants to understand the impact and import of that change.
Baroness Hamwee: My noble friend stated much more clearly what I rather rushed over: the need for tenants to have an explanation of the effects. He was absolutely right to draw the Committee's attention to issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 63 not moved.]
Lord Dixon-Smithmoved Amendment No. 64:
Page 54, line 39, leave out from "possession" to end of line 40 and insert "if it is satisfied—

(a) that conduct under the inserted section 153A or 153B of the Housing Act 1996 has taken place since the making of the demotion order, and

(b) that the procedure under the inserted sections 143E and 143F has been followed"

The noble Lord said: This little group of amendments deals with proceedings for possession and, among other things, is intended to ensure that, under the Bill, at least, possession can be sought only for matters that relate to anti-social behaviour. Amendments Nos. 64 and 65 refer to new Section 143D to be inserted into the Housing Act 1996. Amendment No. 64 would specifically ensure that proceedings for possession were not commenced on a procedure-only basis, but that the court would have to have regard to the conduct of the tenant and would need to be satisfied that anti-social behaviour had occurred, rather than just ensuring that the procedure was correct. We are again dealing with the question of security. Amendment No. 65 would insert a test of reasonableness. Amendment No. 66 concerns new Section 143E, which deals with notice of proceedings for possession. It would ensure that, again, grounds for possession are related to anti-social behaviour and possession is not granted for rent arrears, and so on.
Amendment No. 67 is a good, common-sense amendment. It is hoped that it will dissuade landlords from using the legislation too freely, as it requires continued good behaviour.

519
I do not wish to give the impression that all landlords will abuse their position and try to get rid of tenants frivolously; the vast majority will not. When push becomes shove in this area, on occasion, you are dealing with human relationships, which are fallible on both sides—tenants and landlords. We tabled the amendments, not with the specific intention of protecting the tenant, but also to protect the landlords—in both cases, from themselves rather than from each other. I beg to move.
6.15 p.m.
Lord Bassam of Brighton: I am sorry to say that we have been over this territory when dealing with the amendments grouped with Amendment No. 61, so I have not much more to add. I do not want to get into the habit of useless repetition. The amendments would require all landlords to return to court to prove again that there has been further anti-social behaviour. Earlier, I ran through the reasons why I felt that that was unnecessary.
Noble Lords opposite, when considering the outcome of this Committee, might wish to think about these amendments. If we had to run with them, it would make possession proceedings extremely time-consuming and costly. Those are important considerations. I do not think that the local government sector would welcome additional costs being lumbered on it in this regard when trying to make good use of something on which it is very keen; namely, demoted tenancies.
Perhaps the noble Lord would reflect on that point before Report stage. On those terms, I hope that the noble Lord will feel able to withdraw his amendments.
Lord Dixon-Smith: I am grateful to the Minister for his response. I was aware that we had gone over the ground. Speaking simply as a farmer, this year the ground is particularly hard and requires a great deal of tilling. I hope that the Minister will forgive me if I let a little of that rub off on him. We will take care to study the Minister's reply. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 to 68 not moved.]
Baroness Scotland of Asthalmoved Amendment No. 69:
Page 60, line 28, at end insert—
"( ) In section 171B (extent of preserved right to buy) after subsection (1) there is inserted the following subsection—
"(1A) A person to whom this section applies ceases to have the preserved right to buy if the tenancy of a relevant dwelling-house becomes a demoted tenancy by virtue of a demotion order under section 6A of the Housing Act 1988.""
On Question, amendment agreed to.
Baroness Scotland of Asthalmoved Amendment No. 70:
Page 60, line 37, after first "of" insert "section 20B of the Housing Act 1988 or"
On Question, amendment agreed to.
[Amendment No. 71 not moved.]
Schedule 1 agreed to.
Clause 15 [Demoted assured shorthold tenancies]:
[Amendment No. 72 not moved.]
Clause 15 agreed to.
Clause 16 [Proceedings for possession: anti-social Behaviour]:
[Amendments Nos. 73 to 74A not moved.]
Clause 16 agreed to.
Clause 17 agreed to.
[Amendment No. 75 not moved.]
Clause 18 [Parenting orders under the 1998 Act]:
[Amendment No. 76 not moved.]
Baroness Sharp of Guildfordmoved Amendment No. 77:
Page 17, line 10, leave out "for a concurrent period exceeding three months" and insert "during that time"
The noble Baroness said: In moving Amendment No. 77 I shall speak also to Amendments Nos. 78, 81, 82, 88, 90 and 99, all of which relate to issues concerned with parenting, parenting orders, contracts and the counselling and advice services offered under such orders and contracts.
Amendment No. 77 is in fact a minor amendment, the main purpose of which is to question why it is laid down by statute that the counselling and guidance programme under the parenting order shall not exceed three months. On the face of it, one would have thought that a programme ought to go on longer. Many parents find it very helpful to have advice and help with parenting, and the longer it goes on, very often the more helpful they find it. In any case, subsection (4)(b) also provides that the programme shall be as specified by the responsible officer. My reaction would have been to expect it to last not less than three months. Why, therefore—perhaps the Minister can explain this to us—should the programme and advice not exceed three months?
Amendments Nos. 78 and 88 both seek to specify that the counselling and support offered to parents in these circumstances should be appropriate. Again, it is a minor amendment, but one that seeks to ensure that local authorities take this role seriously. We know from the experience to date that parenting classes have in fact proved a very useful and effective tool in helping to fight anti-social behaviour among young people. Some parents get intimidated even by their own children and either fail to control them at all or respond to violence with violence. Helping such parents learn how to manage their own children helps them and helps their children. However, it is important that thought is given as to what sort of help is appropriate. In effect, the amendments are saying, "Not just any old parenting classes that happen to be going on in the locality but the sort of advice and counselling that is geared to their needs and their families' needs".

521
Amendments Nos. 81 and 82 pick up the issue of family needs. Clause 19 relates to cases where a child has been excluded from school and is also a persistent truant. The aim is to use the parenting contract to try to turn the situation around. Here the aim is to ensure that before embarking on a parenting contract, the school and the LEA have investigated the case and made an attempt to get to the root of the problems. A parenting contract is not, for example, of much use if the fundamental issue underlying truancy is bullying at school. So, again, what this amendment is saying is, "Be careful". Parenting orders are not necessarily panaceas for all behavioural problems. Make sure that it is an appropriate one.
Amendment No. 90 is appropriate in a week in which we have had the Green Paper on children. It is asking for a recognition that parenting problems are part of a wider pattern of family breakdown that requires attention not just of schools but also of the social services and the housing and the health authorities. The issues are frequently complex and require the co-operation and working together of all these authorities. It is no good just relying on the LEA to institute parenting classes; it has to be a co-operative effort. So what I am hoping the Minister will acknowledge is the need for this co-operative effort, as indeed the Green Paper lays down; I also hope that he will recognise that it is sometimes useful to reinforce the message by writing it on to the face of the Bill.
Finally, Amendment No. 99 seeks to ensure that parents themselves are given some say and are provided with information about the range of counselling and advice services available in their area. Once again, it is a question of not just trying to fit square pegs into round holes—not to push them into any old parenting class—but to let them know the range of advice services available and let them choose or at least play some part in choosing what is appropriate to their needs.
It is the old principle of choice and ownership. If we expect people to give up their leisure time to attend and make use of classes and advice sessions voluntarily, it makes sense to give them a choice in the sort of sessions in which they participate. I beg to move.
Lord Dixon-Smith: I rise to speak to the three amendments in my name, Amendments Nos. 91, 105 and 116, that are grouped with this amendment.
Once again, I seek clarification from the Government as to the meaning of the Bill, and to put down words that might improve it. Amendment No. 91 gives a little more flexibility as to what might be put into a parenting order. We thought that that would be helpful.
Amendment No. 105 extends the period for which a parenting order might apply from 12 months to two years. That may seem quite difficult, but some parents have considerable problems. It is better to have the possibility of too long a maximum period that can be cut off than come to the end of a 12-month period and still have problem parents who have made relatively little progress.
522
Amendment No. 116 is a genuinely trivial amendment because it would leave out "must" and insert "shall". I am afraid that having been an anarchist for a long time in my life I do not like the word "must". However, if I am told that I should do something, I am much more likely to do it voluntarily. It is a case of compulsion versus people behaving reasonably.
The amendments are designed to help and to ensure a greater possibility of success for parenting orders, which we all want to succeed. The fact of the matter is, however, that a parenting order assumes that a parent can always ensure that a child attends school. That does not necessarily follow. There are some young children who will, as I do, reject the "must" and simply not go to school. The reason may be the very unfortunate one of bullying, but it may simply be a total unwillingness to go to school. Having grown up in an era when a lot of people I knew had to leave school at the age of 12, I can sometimes sympathise with that view. Some of those people were very successful. I beg to move.
The Earl of Listowel: I rise to speak to Amendment No. 80, which is in this group. Before doing so, I thank the Minister for the very helpful meeting that she kindly arranged for Peers prior to the Committee stage. I much appreciated the helpful replies that she and her colleagues gave to our questions.
Lord Hylton: I suggest to my noble friend that his amendments come in the next group and not in one beginning with Amendment No. 75.
6.30 p.m.
The Earl of Listowel: With respect to my noble friend, I believe that we have moved on to the group beginning with Amendment No. 77.
As I said at Second Reading, I welcome the thrust of the proposals. I am certainly no expert in this area. I have visited a parenting class; I have given awards at a parenting ceremony. The noble Baroness, Lady Sharp, eloquently put the virtues of parenting interventions. What struck me is the isolation that many parents experience, which parenting classes can often help to break.
I have received information from a number of children's organisations. Barnardo's, the Children's Rights Alliance for England, the Children's Society, the family services units, NACRO and several other charities which work in this area, have serious concerns about the compliance of these clauses with the principle of the best interests of the child under the Children Act 1989 and Article 3 of the United Nations Convention of the Child. They are also concerned about compliance with Article 9 of the UNCRC. Perhaps I may remind your Lordships that Article 9 provides that a child has the right to live with his or her parents unless it is deemed incompatible with his or her best interests. The child has the right to maintain contact with both parents if separated from one or both, except if it is contrary to the child's best interests.

523
There has been little discussion or information on these measures. Government amendments tabled on Report in the House of Commons provided for the residential requirement, but those amendments were not debated. Therefore, my amendments are probing and are intended to provide and seek further information.
The anti-social behaviour White Paper, Respect and Responsibility, stated:
"Where parental and parenting problems are having an impact on their child's development other options would be to work with the parents in residential settings such as residential family centres or building on innovative voluntary sector projects such as the Dundee Families Project run by NCH Action for Children. We hope that families who are at the stage where only drastic action will work will accept such support voluntarily. Where the family is in serious crisis and help is not accepted, children are very likely to be at risk".
The White Paper goes on to say that,
"positive work with families must always be allied to a clear understanding—by professional agencies and the perpetrators—that the protection of communities must come first…If the situation is putting the children or broader community at severe risk, the courts can remove the children from the home or move the whole family out of the neighbourhood. We will consider whether we need to take further powers to ensure parents comply, for example by extending a Parenting Order to include a residential requirement".
That is the context for this.
There are no details of residential parenting courses set out in the Bill or in the Explanatory Notes. It is unclear whether the residential component of up to three months is for the parent subject to the parenting order only, or for the whole family. In either case, appropriate arrangements for the care of the child must be made. In her letter, the noble Baroness made clear that ideally the whole family would be involved, but that there would be circumstances in which it may be just the parents.
One of the options suggested in the White Paper was the use of' residential family centres. Arrangements already exist under the Children Act 1989 and the Care Standards Act 2000 for a family to be placed in a residential family centre where available and appropriate as part of care proceedings in relation to the child. Residential family centres are often used for vulnerable families with young children to provide support and to identify work to be undertaken to help the family.
The primary reason for a family to be admitted to a residential family centre is concern that parents' or carers' capacity is, or may be, both insufficient to respond to their children's needs and insufficient to safeguard their children's welfare. Welfare is a primary consideration for admission to a centre. An establishment cannot be considered a residential family centre under the Care Standards Act 2000 if it provides only parenting support. Therefore, these may not be appropriate for the residential component of parenting orders. Residential family centres are defined under Section 4(2) of the Care Standards Act 2000 as,
"any establishment at which—

(a) accommodation is provided for children and their parents;

(b) the parents' capacity to respond to the children's needs and to safeguard their welfare is monitored or assessed; and

524

(c) the parents are given such advice, guidance or counselling as is considered necessary".

The NCH Dundee Families project, also mentioned in the White Paper, provides a good example of how anti-social behaviour can be reduced by giving vulnerable families the necessary support and advice they need. However, this project's primary focus is to tackle the underlying problems of nuisance behaviours and prevent evictions. This could provide a model for organisations providing the residential component of a parenting order, but capacity issues would need to be addressed.
I shall sum up the questions which it would be helpful if the Minister could answer. How will the Government ensure that the residential requirement of a parenting order fulfils the UK Government's obligations under the UNCRC, the Children Act 1989 and the Human Rights Act 1998? Can the Government provide an assurance that parents will be required to attend a residential programme only if it is in the best interests of any dependent children" Can the Government also confirm what will be the main purpose of the residential requirement? As I have said, the Minister has already responded to my final question in her letter.
A great deal of further information is needed in this area, given that these measures were introduced late in the progress of the Bill and that not much information was set out in the White Paper. I look forward to the Minister's response. Further, the question of capacity has to be addressed because it is no good giving pa rents these orders and then putting them through a second-rate residential course which does no one any good. Assurances on that front would be very welcome.
Baroness Sharp of Guildford: Members on these Benches would like to associate themselves with the amendment spoken to by the noble Earl, Lord Listowel. When the normal pattern of a family is disturbed by a residential course, it is extremely important that real thought is given to whether the benefits will exceed the costs. I endorse entirely the remarks made by the noble Earl.
Baroness Scotland of Asthal: I say straightaway that the sentiments expressed by the noble Baroness, the noble Earl, Lord Listowel, and by the noble Lord, Lord Dixon-Smith, are very much echoed by the Government. The thrust of the comments made by the noble Baroness follow closely those made by us.
Perhaps I may make one or two comments of a general nature before moving on to the specific applications. These measures are about supporting parents so that they can better support their children to take advantage of the educational opportunities that are available. Parenting orders and the assistance and support that go with them are very much supportive and enabling measures which it is hoped will improve the performance of parents in terms of their parenting, but for the precise purpose of benefiting children so that they can take advantage of their educational opportunities.

525
There is no doubt that improving parenting skills inures to the benefit of the child. We would expect local education authorities and schools to investigate the underlying causes of truancy before entering into parenting contracts, issuing penalty notices or taking any of the steps set out in the Bill. We seek to reflect those sentiments in the guidance that will be issued.
I shall touch on the point made by the noble Earl in relation to residential parenting services, echoed I believe by the noble Baroness, Lady Sharp. It is right to say that these parenting services will first be piloted on a voluntary basis so that we can learn the lessons of how to fashion them in the most appropriate way, thus ensuring that we can enhance their effectiveness. In that way good practice will become clearer in terms of how the programmes will be designed.
Turning to the point made by the noble Baroness about the three-month trial period, of course the whole point of the residential places is to target those issues that are of most concern to the families and the children involved. A weekend residential period may be appropriate in order not to disturb the ordinary day-to-day life of the family and it may be necessary to invite the parents to take the children with them. In other cases it may be more appropriate for the child not to be there for a short period to enable the parents to concentrate on other matters. I can reassure the Committee that the level of sensitivity necessary for the particular needs of a particular family will be very much borne in mind.
We believe that a three-month period is an adequate time for a parenting programme. It is important that there is a clear cut-off date. If after a programme under an order a parent requires additional support, we would prefer to see this delivered on a voluntary basis. As the noble Baroness, Lady Sharp, said, many parents have found these programmes very helpful indeed. More particularly, many parents who were resistant to a parenting order at its inception, after receiving the benefit of it, develop a hunger to continue with that work. If we have generated that level of commitment and enthusiasm after a three-month period, I am sure the noble Baroness would agree that it would be preferable to continue the work on a voluntary basis, if the parties agree, rather than retaining the element of compulsion. We believe that three months will be sufficient for us to taste whether or not the programme has succeeded.
The noble Baroness seeks to ensure with Amendment No. 78 that the counselling and guidance programme under a parenting order is appropriate. We absolutely agree with that sentiment. The Bill as currently structured enables that to happen.
Amendment No. 88 seeks to ensure that the local education authority or governing body provides appropriate support to parents as part of the parenting contract, and Amendment No. 99 places a duty on the LEAs and governing bodies to provide the parents with information about the range of advice and counselling services available. The Bill already states that the support provided must be for the purpose of
526
complying with the requirements specified in the contract. These words define what is appropriate for the contract and therefore the addition of the word "appropriate" is unnecessary and possibly confusing.
I share the noble Baroness's view that it is important that the parents have access to the kind of support that will best enable them to improve their child's behaviour or attendance. But the school or the local education authority must make a judgment about how best to support the parent after considering the particular circumstances of the case, rather than providing the parent with a range of pre-determined options. This will be subject to negotiation between the school or the LEA and the parent.
We will set out in guidance the kind of support that might be provided by a school or a local education authority through a parenting contract. The guidance will emphasise that schools and LEAs should think innovatively about what kind of support to offer.
Likewise, I can assure the Committee that a court can make a parenting order only if it is desirable in the interests of preventing a repetition of the kind of behaviour that led to a parenting order being considered. This will be the case only where the programme of counselling and guidance that the parent will attend is relevant and appropriate.
Let me turn now to the amendments tabled by the noble Earl, Lord Listowel—that is, Amendments Nos. 80, 106, 107, 135 and 136. These amendments require three new conditions to be met before a court can include a residential course in a parenting order. The first additional condition would require that the parents' attendance is in the best interests of the child, taking into account the likely effect on the child because of changes in his home circumstances. Inserting this condition we think would be unnecessary. The whole purpose of the parenting order will be to support the parent so that they are able to influence their child positively. To include a residential course, a court will need to consider that it is likely to be more effective. This will serve the child's interests. So if the court believes, in all the circumstances, that it would be more appropriate to fashion a programme in another way, it will not provide for a residential placement to be included.
The second condition that the amendments propose is that the appropriate arrangements have been made for the care and education of the child. We believe that this is covered by the second condition in the clauses as drafted—that the likely effect on family life is proportionate. This would include their care and education. In some cases, this will involve the children attending on a voluntary basis, and in other cases, alternative arrangements will be made for their care and, if appropriate, their education.
The third condition mentioned by the noble Earl suggests that the residential course is a measure of last resort. I fear this would not lend itself very readily to interpretation or placement in the Bill and might well cause confusion.

527
The conditions already ensure that parental orders will include a residential course only in exceptional circumstances and will be underpinned by guidance which will be issued for consultation shortly.
The aim of Amendments Nos. 81 and 82 is to ensure that the local education authorities and schools do not seek to enter into parenting contracts for truancy without assessing the causes of the child's truancy. I reassure the noble Baroness that we share that aim.
Parenting contracts are not to be seen as punitive sanctions but as one means of trying to secure improvements in attendance. It is also important to remember that they are voluntary. We see them as a way of enabling a school and a child's parents to work closely together in improving the child's attendance. I am sure that a number of noble Lords will know that many schools already enter into informal contracts with parents in relation to children whose behaviour has not been good in order to improve that.
Amendment No. 90 would ensure that the LEAs and governing bodies will be required to state that they will work together with local authorities and health services in providing the support to parents advocated under parenting contracts. We of course want to encourage an approach to supporting parents that draws on input from the full range of the relevant agencies. However, while in most cases joined-up working between different agencies will he necessary, this is by no means true of every case. Sometimes one authority will be necessary and others will not. It would be wrong to require a blanket approach by imposing this requirement by including it on the face of the Bill.
We will encourage local education authorities and schools, through guidance, to investigate whether other agencies are already working with the pupil and family and, if so, to work with those other agencies to ensure that the terms of the parenting contract are complementary. This is also a key consideration of the Children at Risk Green Paper which was published on Monday and which the noble Baroness, Lady Sharp, touched on in her remarks.
Amendment No. 91, in the name of the noble Lord, Lord Dixon-Smith, amends Clause 19(5) and is designed to provide that the parenting contract may include provisions for the parent's side which go beyond the requirement to attend counselling or guidance session. We say that this amendment is not necessary, as Clause 19(4)(a) already provides that the parenting contract is to contain a statement that the parent agrees to comply with requirements specified in the parenting contract.
Amendment. No. 105 is intended to double the maximum duration of a parenting order from 12 months to two years. Again, that is unnecessary. It is important that any intervention in response to poor behaviour is timely and efficient. The expectation must be that the parent can be supported to bring about an improvement in the child's behaviour in a timely manner. We would not want to indicate that the improvement in the child's behaviour to an acceptable level can be allowed to take as long as two years. Noble Lords will know that two
528
years is a considerable period of time in any child's life. That is not to say that support would not be available beyond a year; if the parent felt it necessary, further support could be assessed on a voluntary basis. If the local education authority felt that the order had not been successful within that timeframe, it would need to consider and draw on other interventions.
As for Amendment No. 116, I understand what the noble Lord, Lord Dixon-Smith, says about his preference for "shall" as opposed to "must". I would not have described him in the terms that he used to describe himself; he is in no way delinquent, certainly not in the way in which he usually disports himself. The import of "must" and "shall" are of course very similar.
The obligation in the clause is to "have regard" to the guidance, which means that the local education authority or governing body need not slavishly follow the guidance if it is inappropriate in individual cases. If there are good reasons to do so in an individual case, the local education authority can depart from the guidance. We say, "must have regard", whereas the noble Lord would say, "shall have regard". The use of "shall" does not add or take away from the existing imperative. Whichever word is used, the subject remains under the same duty to have regard to the guidance. On that basis, I know that the noble Lord prefers the one but, in terms of terminology, what is currently there will suffice.
Amendment No. 132 is necessary to reflect amendments made in another place to this part of the Bill. The intention is that, in any case where the parent has already been subject to a parenting order and has therefore attended a counselling or guidance programme, a subsequent order does not need to include a requirement to attend another programme. Clause 18(2) of the Bill now achieves the desired effect, which means that Clause 24(2) is not needed.
I hope that I have given a helpful exposition of the way in which the Government have put these matters in the Bill, because I know that noble Lords were, rightly, concerned about them. We share that concern, but we believe that they are adequately and appropriately expressed in the Bill.
Baroness Sharp of Guildford: I thank the Minister for her detailed reply and for giving us greater clarification of the Bill's intention. I feel a little bit as I felt this morning, when we had a lot of discussion on the question of consultation with local authorities. However, in some senses the honeyed tones in which the Minister has spoken give one the feeling that these things will all work out for the best. And yet we know from experience that that is not always so.
There are occasions when it is useful to have provisions in the Bill to reinforce sentiments. For example, it would be useful to have something in the Bill to remind local authorities that they should be working together, and that it should not be left to local education authorities alone. Ideally they will work together, but we know from experience—my goodness, the Victoria Climbié experience emphasises this—that, with all the best intentions, that does not always happen.

529
The Minister mentioned residential courses in relation to voluntary pilots. Yet the fact remains that the wording of the Bill does not make great reference to voluntary measures. Clause 18(2) states:
"A parenting order is an order which requires the parent…to attend…such counselling or guidance programme as may be specified".
I was delighted to hear the Minister's further explanation. I shall read the detail of what she said in relation to the amendments we are discussing. For the moment I shall withdraw the amendment but I may wish to return to certain issues on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 78 not moved.]
Lord Addingtonmoved Amendment No. 79:
Page 17, line 17, at end insert—
"(6) This section does not apply when local education authorities, schools and other governing bodies have failed to meet the provision in a child's education statement."
The noble Lord said: I beg to move Amendment No. 79 standing in the name of my noble friend Lord Clement-Jones, and speak to Amendments Nos. 101 and 119 with which it is grouped. The amendments address a matter which the Bill should address; namely, that of a child who refuses to attend a school which has failed to meet the provision in his or her education statement. Such education provision is mentioned in various Acts that we have passed in this House.
The amendments were inspired by the National Autistic Society. I refer to a situation where a school does not have a child's education statement. The statement is the rock solid guarantee that that child will receive the appropriate education. I should have thought that there was an argument for removing a child with certain learning or behavioural patterns from a school which cannot cope with him or her as inappropriate education provision may damage that child. That is the long and the short of the matter. The noble Baroness, Lady Darcy de Knayth, has tabled amendments which address a very similar area. I encourage her to join the discussion on my amendments if she wishes. I notice that her amendments adopt a slightly different approach.
If a child does not receive appropriate education or the support that he needs within the school, he may well be better off not attending that school as he will not learn anything. That concept probably contradicts much of the thrust of the Bill. However, such cases have arisen. I refer to the classic case of children with dyslexia being placed in classrooms where they receive totally inappropriate education. I speak from personal experience of that. Nowadays the problems of dyslexia are better understood and such a situation is far more unlikely to occur. Autistic children who are moved from special schools to mainstream schools may receive a better education if that process is handled properly. However, if it is handled badly, it will have disastrous results.
530
I need not give a list of examples but a child who is not given appropriate support within a school may be bullied and intimidated. He will react badly and disrupt the education of others. Those with hidden disabilities are particularly vulnerable in such a situation. I hope that the Minister will respond favourably to the amendment to ensure that a parent who removes their child from a hostile situation will not be in breach of the law. I beg to move.
Baroness Darcy de Knayth: I need no encouragement from the noble Lord, Lord Addington. I intended in any case warmly to support these amendments which he so graphically illustrated. In some ways they are better than the next group of amendments which stand in my name as they are much stronger. However, as the noble Lord pointed out, I stress that my amendments seek to achieve something slightly different and complement his amendments.
I hope in any case that the message will come across very clearly to the Government with this raft of amendments that, whatever faults or weaknesses our amendments may have—I am sure they are bound to find something—there is a clear need for the Government to bring forward an amendment to avoid totally inappropriate measures being applied to children with special educational needs as that may have severe consequences. However, I know that that is not their intention.
7 p.m.
Baroness Scotland of Asthal: I want to say how much welcome the comments made by both the noble Lord, Lord Addington, and the noble Baroness. They speak very forcefully of their consistent interest in those who have disability and so are more vulnerable. I hope that I shall be able to reassure both of them in relation to how the Bill is framed.
Together, Amendments Nos. 79, 101 and 119 seek to ensure that the parenting orders under the Crime and Disorder Act 1998, the provisions for parenting contracts for truancy and exclusions and the provision for penalty notices for parents of truants will not apply where a pupil has a statement of special educational needs and provision for that has not been made. I understand why the noble Lord makes the case so firmly. He raised the important issue on Second Reading, as did the noble Lord, Lord Clement-Jones. Both are anxious that we ensure that the provisions in Part 3 do not disproportionately affect that particular group.
We know that behaviour and attendance problems can often have some underlying cause or contributory factor, as the noble Lord and the noble Baroness have asserted. That may include special educational needs. We do not see Part 3 as a substitute for identifying and making appropriate provision for a child's special educational needs. In our view, the best way of addressing the concerns raised by the noble Lord and the noble Baroness is to make that crystal clear in the guidance that we hope to issue for consultation later this month. I assure Members of the Committee that those who participate in the debate will receive a copy of that consultation paper. We would hope that the

531
guidance would be in a proper form to be issued by spring next year, having properly taken into account everything that everyone has to say about it.
There would also be some practical difficulties with the implementation of such an amendment that focuses solely on children with statements. We know, for example, that there is variation in local practice in making provision for children with special educational needs. Two children could have broadly similar difficulties, but in one area they might have a statement and in another they might not. Yet the provision that they received would be appropriate in both cases. That could arise where in one area the local education authority has focused its policy on providing very high levels of support in all its schools, while the other issues a statement for the child with such difficulties, but both are receiving appropriate care.
I hope that that gives the noble Lord and the noble Baroness some assurance that the issues are being taken very seriously and that such needs will be taken into account. I hope that the noble Lord will feel able to withdraw his amendment, but I know that the noble Baroness will always support his point.
Lord Addington: That speech was delivered in, shall we say, very honeyed tones again. It was very well done, of course.
Baroness Scotland of Asthal: I wonder whether I should change my tone and my voice to make Members of the Committee happier.
Noble Lords: No!
Lord Addington: No, we are simply saying that the Minister does those tones very well.
The point behind focusing on the statement is that it is the backdrop, and we kept it in the most recent pieces of legislation. It is something to which parents can cling as a guarantee. In certain places it may not be needed quite so frequently but if there is a problem, one can turn to it. That is the reason for keeping the statement. I appreciate that that is what happens; it is certainly how I interpreted the keeping of the statement, and I think many of us felt the same way. But we need some very clear guidance so that appropriate educational provision can be made.
If the guidance covers the fact that the provision must be appropriate to the needs of a particular child, that is fine, if not mainstream. Will the guidance give that kind of guarantee? If not, there is a distinct problem. We could be encouraging through the legal process the sending of a child into an environment that could do the child and the rest of his or her classmates harm. So the guidance notes will be very important—as will clarity. It will be something of a challenge for the government machine to try to get this right.
The reason why I felt comfortable when I read the amendment was that I have always regarded the statement as the long-stop in this system. That was
532
why we believed in the previous piece of legislation dealing with special educational needs, which retained this provision and placed emphasis on it.
I hope that the Government will make sure that we know exactly what we are getting in terms of guidance, and that parents, and not just lawyers in the Department for Education and Skills, will understand it. If parents cannot, we shall need to address this matter again and again.
With those caveats, and applause for the Minister's performance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80 not moved.]
Clause 18 agreed to.
Clause 19 [Parenting contracts in cases of exclusion from school or truancy]:
[Amendments Nos. 81 and 82 not moved.]
Baroness Darcy de Knaythmoved 82A:
Page 17, line 35, at beginning insert "Subject to the conditions set out in section (Parenting orders and parenting contracts: special educational needs),"
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 101A and 11 6A. These are probing amendments—or rather, prodding as it were towards a positive outcome. I should like also to thank the Minister for making time to discuss the amendments in what was for her a scarily busy week. I am very grateful. My spirits rise at the mention of so much guidance.
Amendments Nos. 82A and 101A are paving amendments to Amendment No. 116A, whose aim is to give school governors and LEA officers a legal duty to pause for thought before issuing parenting contracts and orders to parents of children with special educational needs who have been excluded from school. That is specifically so that they can consider whether there are more appropriate actions that can be taken with regard to improving the provision for the child in school, rather than placing possibly irrelevant legal requirements on the parents.
Just as teachers have to make every effort to avoid excluding a child with special educational needs, and have first to check on his or her special educational provision, so this would provide a similar second safety net: before issuing a parenting contract or order, LEAs and governing bodies must consider whether everything possible is being done to meet the child's special educational needs.
I must stress that this requirement would not involve much work. If LEAs had already checked on that before excluding the child, the work would already have been done—it would require only another quick look. But if they did not previously check properly, they must do it now. In relation to the amendment in the name of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Linklater, so ably moved by the noble Lord, Lord Addington—I shall call it Lord Addington's amendment—that would help LEAs to judge whether there had been a material

533
failure to meet the provision set out in the child's statement, because they would have made the second check.
Under Amendment No. 116A, LEAs and governing bodies would also have to consider whether the provision specified in the statement was sufficient and appropriate.
There is much evidence from those working with children with special educational needs that exclusion results from insufficient or inappropriate provision. IPSEA, the Independent Panel on Special Educational Advice, of which I am a patron, receives around 3,000 new cases a year from parents of children with special educational needs. Approximately 20 per cent are in relation to children who have been excluded from school or are being threatened with exclusion at some point.
In IPSEA's experience, the most common cause of exclusion of children with special educational needs is that their needs are not being adequately met, either because of lack of support or because the wrong kind of support has been provided. Clearly, the priority in these cases is to discover what needs to be done to meet a child's needs so that the child can resume full-time education as quickly as possible.
At best, issuing parenting contracts or orders could be completely irrelevant as it is simply not possible for parents to control their children's behaviour from outside the school when the cause of the behaviour problem is that their special education is not being met inside the school.
At worst, issuing parenting contracts or orders in situations where a child's exclusion is a consequence of his SEN not being met risks precipitating a complete breakdown of trust between parents and school and parents and LEAs. And this just at the time when everyone should be working together to ensure that the child's needs are met in the future.
Incidentally, I do not speak without notes, like the noble Lord, Lord Addington. I wish that I could. I believe that the amendment will be supported by a wide range of organisations actively supporting children with special educational needs. Certainly the problem is widely recognised. I had intended briefly to quote from several letters which IPSEA received in June, but for the sake of speed I shall not. I say merely that it received letters from the British Dyslexia Association, Attention Deficit and Hyperactivity Disorder UK Alliance and the Downe's Syndrome Association were clear that a disproportionate number of their children were being excluded as a result of a failure to meet the provision.
I want to slot in, with the noble Lord, Lord Addington, a quote from the National Autistic Society, because it was scary. It stated:
"The NAS report on inclusion and autism, carried in 2000, found that children with autism and Asperger's syndrome are on average 20 times more likely to be excluded from school than their peers. One in five are excluded at least once, compared with the estimated 1.2 per cent of the total pupil population. The situation is worse still for more able children with autism. Twenty-nine per cent have been excluded from school at one time or another. It is
534
our experience that for the vast majority of children with autism, exclusion represents a failure on the part of their local education authority to identify and meet their special educational needs".
This amendment will not in any way prevent parenting contracts or orders being issued in appropriate circumstances, but it will. I hope, reduce the risk of them being issued in inappropriate circumstances, such as when an exclusion has happened because a child's SEN has not been met. In that circumstance, parenting contracts and orders are not only unfair to parents but would provide a barrier to providing a solution to the problem which gave rise to the exclusion in the first place—the child's needs not being met. This would be against the best interests of children, which I know is not the Government's purpose in bringing forward this legislation.
I hope that the Minister will respond positively to these amendments, or at least will agree to consider them and perhaps continue discussions outside the Chamber. I was cheered by her earlier mention of guidance. I beg to move.
Lord Addington: I congratulate the noble Baroness on wielding the stiletto as opposed to the club on this issue. If the amendment had been part of the Bill, it would have met all the points I made earlier. It would work well with guidance.
Lord Elton: I am sorry that I was absent earlier. I had other work to do. I support the amendment because it goes to the taproot of crime in this country in juvenile delinquency. The noble Baroness speaks of particular people with disabilities, but it applies also to people who do not have disabilities. They can be extremely clever but become frustrated by their academic failure because they have been failed by the school.
This is an accelerating spiral in bad behaviour in young people and it marks them for the rest of their lives. If therefore we can pass in the Bill any provision which will reduce the incidence of such failure for people with a disability, it makes things easier in schools for the rest of the children and the staff. I am speaking slowly so that I may be rejoined by the Minister in due course.
What you do for those with a disability benefits those without. Anyone who is frustrated in a class disrupts the class, which is bad for all the children. Therefore, I warmly support the amendment both for the sake of the disabled and for those who are not.
7.15 p.m.
Baroness Scotland of Asthal: The noble Lord, Lord Addington, has the club, the rapier comes from the noble Baroness, Lady Darcy de Knayth, and the steel from the noble Lord, Lord Elton. I come willingly; neither the club, the rapier nor the steel are necessary because I absolutely understand what noble Lords are saying. I know that the noble Lord, Lord Elton, was not present a short while ago, but I did everything that I could to reassure noble Lords that it is of real importance to the Government to get right the guidance in relation to children's needs.

535
We were slightly resistant to putting the special needs children specifically on the face of the Bill. The noble Lord, Lord Elton, is absolutely right that we care about all our children and their needs are disparate. Many of the children of whom the noble Lord, Lord Elton, speaks are those who suffer from emotional difficulties and, as a result, on occasions from behavioural difficulties. He rightly said that can lead to frustration at not having their needs met adequately or indeed at all by parents and others.
I hope that I can give even more comfort to the noble Baroness by saying, as I said to the noble Lord, Lord Elton—forgive my tones; they are mine own; they are the only thing I have to offer the Committee and they are genuinely meant—that we are absolutely committed to trying to ensure that the provisions in Part 3 do not disproportionately or adversely affect children with special educational needs or any other particular group. That is the whole purpose.
As I tried to say earlier, we know that behaviour and attendance problems can often have some underlying cause or contributory factor. The statutory framework for special educational needs gives schools and local education authorities specific duties to identify children with special educational needs, to assess those needs and to make appropriate provision for them. Schools and local education authorities take their duties very seriously indeed. Nothing in Part 3 dilutes or undercuts those duties.
We do not see the provision in Part 3 as a substitute for identifying and making appropriate provision for a child's special educational needs; rather we see the measures that we propose as supportive of those provisions. In effect, they would enable formal agreements to be entered into in which the school, parents and the local educational authority would work together to support improvements in a child's behaviour and attendance. They offer an additional means of resolving issues concerning behaviour and attendance and enabling children to make progress. I am sure that we all share that aim.
In our view the best way of addressing the concerns raised by the noble Baroness is to make them crystal clear in the guidance that we shall issue for consultation later this month. With great humility I say that the children of whom the noble Lord and noble Baroness and indeed the noble Lord, Lord Elton, speak are children who can present the greatest challenges for their parents who need the highest degree of parenting skills. Many of us who believe ourselves to be good parents would be extraordinarily challenged by dealing with such children and would need every bit of support and assistance that we could garner together to help us to improve our skills so that we could meet those challenges.
There is no aspersion cast on parents who cannot meet those needs without help. They need help and it is right and proper that we should try to find ways to make it available. If parents will not take that voluntarily, we need to see what else must be done. The guidance will make it clear that schools and local educational authorities must take into account all the pupil and family circumstances in each case in deciding
536
whether it is appropriate to pursue a parenting contract or order. If such action is pursued, it will include support for parents in helping to improve their child's behaviour or attendance at school.
Many parents—as we said earlier and with which the noble Baroness, Lady Sharp, was kind enough to agree—who start parenting classes with reluctance, end up going to them with a great deal of relief and joy because they actually get some help and support which is capable of making the difference. If parents cope better the children are, frankly, happier. That is what is wanted by noble Lords who have participated in this debate.
Baroness Darcy de Knayth: I thank noble Lords who have taken part in the debate. I thank the noble Lord, Lord Addington, for his unfailing support. I also thank the noble Lord, Lord Elton. It is very interesting to have the other perspective as well. I am glad that he feels that this kind of amendment would have the spin-off effect of helping the people that he was concerned about.
I very much thank the Minister for her reply. If we were playing stone, paper and scissors and it was club, rapier, steel and honey, none of them have any power against honey and we should be stuck.
The noble Baroness was very supportive of identifying and meeting special needs. She said that there would be additional support. At Second Reading she said that the guidance was in place and that there was also the Disability Discrimination Act. The noble Baroness, Lady Ashton, who is in her seat, will know very well that although the guidance was beefed up a little in 2003 in that the head teacher had to inform parents about the advice line, which the noble Baroness kindly put in place last year, the rest of the guidance has not really changed since 1999 in terms of making every effort not to exclude a child and to make sure that the special educational provision is in place. The examples that were given of continuing problems with children with special educational needs have arisen since the guidance was issued. It has been in place for five years now.
The Minister also mentioned the Disability Discrimination Act. That is welcome, but it is much better not to go down that road of confrontation if we can possibly avoid it. So I would welcome tremendously her making it crystal clear that there should be a great deal of support for the parents. I very much hope we shall be able to see that before the Bill has finished its passage.
This has been a very useful debate. Guidance is fine, but guidance changes, as we know. So it is very useful to have the noble Baroness's extremely clear statement in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Sharp of Guildfordmoved Amendment No. 83:
Page 17, line 35, leave out "or the governing body of a relevant school"

537
The noble Baroness said: In moving Amendment No. 83, I shall speak also to Amendments Nos. 86, 94, 95 and 97. The amendments propose that the words,
"or governing body",
be removed from all responsibilities relating to the issuing of parenting contracts. From these Benches, we are anxious that all parenting orders or parenting contracts should come, as at present, from the local education authority and via the education welfare officers of those authorities. In that sense, our amendments go in the opposite direction from Amendments Nos. 87 and 93 proposed by the noble Lord, Lord Dixon-Smith, which seek more involvement from schools and head teachers.
We do not deny or underrate the role of the school in such circumstances, but we are anxious to leave the relationship between the teachers, the head teacher, the governing board and the family concerned as voluntary and supportive rather than being seen as authoritarian in any respect.
We have talked about the impact of parenting orders. Experience with parenting orders and youth offending teams has shown how important is the voluntary relationship. I shall say more about that when we consider the issuing of fixed penalty notices. By putting governing bodies in the hot seat, which often effectively means putting the head teacher in the hot seat, as in such circumstances many governing bodies are actually acting on the advice of the teacher, we break down that voluntary relationship and risk losing the benefits that stem from it. We also risk bringing violence and vindictive behaviour from the family concerned, who may feel aggrieved and insulted by the parenting order, especially if it is given publicity within the school itself and the school community.
One issue that I should like the Minister to clarify is the relationship that the Government envisage between parenting orders—parenting contracts—and home-school contracts. It is now good practice for schools to have home-school contracts with parents. That applies to all parents. We are entirely behind that. They are clearly contracts between parents and the governing body and teachers of the school. We recognise that and consider them to be totally different and do not want them muddled up. For that reason, it is much better to leave it to the local education authority to take the stick—it should be seen to be the hard guy who imposes and requires parenting contracts—and leave it to the school to act as the soft guy with the soothing tone, urging the family to live with the contract and make as good a job of it as they can. I beg to move.
Lord Dixon-Smith: As the noble Baroness, Lady Sharp, said, I have tabled three amendments which are grouped but which fly in somewhat the opposite direction to hers. That is good and bad, but it is as well that we should discuss the options. We take the view that if parenting contracts are to work, they will do so above all else because the school is involved. Teachers will need to be involved and school resources will need to be
538
committed to a degree because I do not see where else the resources will come from. We therefore think that the head teacher should be committed and virtually in control, rather than the LEA. After all, it is the school that will have identified the problem; it is the school that will have had to deal with it before we reach this stage; and it is the school that will have to deal with it after the parenting order has ceased and become a matter of history. For those reasons, we have tabled Amendments Nos. 87 and 93.
I must say that I do not like the idea of placing yet another burden on already hard-pressed teaching staff in schools or on headmasters, who already have quite sufficient responsibilities with which to deal. But the idea that the LEA will establish an extra-curricular school for recalcitrant or incompetent parents is preposterous. It will not happen like that. We must ensure that schools are thoroughly involved, and that perforce means the involvement of the head teacher.
Amendment No. 98 reverts to a theme to which I have already spoken and which I shall not repeat, which is changing "must" to "shall". I do not intend to say any more on that; we had the debate once and there is no point having it again. I am sorry that I did not pick this up, but it would have been better if we had grouped all those amendments together so that I could have been clubbed over the head just once.
I am sorry that we take a different view from the noble Baroness, Lady Sharp, but we are addressing the same subject and have the same concern; it is just that our methods are different. I beg to move.
7.30 p.m.
Baroness Scotland of Asthal: The fact that we have amendments going in two opposite directions tends to make me believe that the Government have probably got it about right.
Amendments Nos. 83, 86, 95 and 97 collectively seek to remove the power for the governing body of a relevant school to enter into, or exercise any power in relation to, parenting contracts. It is very important not to conflate parenting contracts with parenting orders. On several occasions the noble Baroness spoke about parenting orders. But parenting contracts come before parenting orders and are entered into on a much more voluntary basis.
The noble Baroness, Lady Sharp, was therefore right to mention home-school contracts, which are entered into by schools, in accordance with best practice, with all parents. They set out the guidelines on how the school expects the parents to behave and the sorts of services that parents expect from the school.
I am sure that the noble Baroness will know that, in addition, it has become in accordance with good practice for many schools to have a procedure into which they engage when a child is causing, or suffering from, some form of difficulty, particularly where the child is disruptive. It has become increasingly common for the school to enter into an informal agreement with the parents as to how they should address those difficulties.

539
Parenting contracts are very much at the formalised end of such arrangements, where a child has got into difficulty, is playing truant or causing difficulty as a result of behaviour in the school, and the school seeks to engage with the parent to address those issues.
The noble Baroness will know that disruptive children quite often have two different types of parents: those who are greatly concerned about their child's misbehaviour and are extremely anxious to engage with the school in those remedial steps, and those who fail even to identify that it is an issue with which they will engage. With the former, it is always easier to enter into a more informal, sometimes slightly less structured, arrangement than with those who do not immediately see that there is an issue.
The amendments that the noble Baroness seeks to make would mean that parenting contracts would apply only in cases where the education authority had become involved in a case and thought it appropriate to enter into a contract with the parent—effectively limiting the use of parenting contracts to only the most severe case of poor behaviour or attendance.
Baroness Sharp of Guildford: As I understand it, Clause 19 applies where a pupil has been excluded on disciplinary grounds from the relevant school. Therefore, almost by definition, the local education authority is already involved in the disciplinary hearing.
Baroness Scotland of Asthal: It would be possible for the local education authority to become involved. However, the purpose of the contracts is to allow a school in that situation to enter into an appropriate contract on a voluntary basis with the parent to try to restore the relationship to enable the child to take up again the proper education opportunities.
The clause can also involve a child who has been excluded for a very short time, so it need not he a permanent exclusion. The noble Baroness will know that sometimes children are excluded for the afternoon, for the end of a week or a shorter period. They can he excluded as a result of very poor behaviour on one occasion; for example, they can be told on a Friday afternoon that they can come back on Monday.
There is a question mark as to whether it is appropriate at that point, when the child is excluded for a few hours, to have the parents come to the school and to try to discuss with them whether a parenting contract is the most appropriate approach.
The noble Baroness, Lady Sharp of Guildford, will know that there is a difference between that sort of short term, temporary exclusion and one that is expressed initially to be a permanent exclusion from the school for some very serious behaviour; quite often after several short-term exclusions.
Baroness Sharp of Guildford: Earlier on, the Minister made a distinction between those parents who were receptive, with whom voluntary contracts could very easily be concluded—we on these Benches see voluntary contracts as the right way forward—and
540
those parents who, she rightly pointed out, could not be persuaded of the voluntary way forward and who do not want to know about it all. For those parents, a more formal contract is the answer. The problem that we see is that sometimes those parents can he quite vindictive. The difficulty with the school being involved and, in a sense, enforcing the parenting contract, is that it could bring back on the school vindictive behaviour by those parents.
Therefore, separating things and making formal contracts between the local education authority and parents would be preferable in those circumstances.
Baroness Scotland of Asthal: I understand, but I must emphasise that parenting contracts are all voluntary. A parent cannot be compelled to enter into a parenting contract, and can refuse. When we come to amendments later on, your Lordships will see that, if a parent refuses to enter into a contract with the school, that can be taken into account when an application is made to the court for a parenting order. Some parents will enter into a parenting contract very willingly and will welcome it, but there are others who will have to be encouraged and will need a more formalised arrangement.
It will be explained to those parents that they must decide whether to engage in the contract on a voluntary basis. However, if there is no improvement in the child's behaviour and the way in which the problem progresses, the school and/or the local education authority may have to consider whether to apply for a parenting order.
At the moment, there is no medium term. With regard to the problem of truancy, the noble Baroness will know that, if a child does not go to school on a regular basis, the authority decides whether to take proceedings before a magistrates' court to bring about compliance. This policy gives the school a tool that it is not compelled to use. However, the school can use it, if it is deemed to be appropriate, with parents who will have been persuaded voluntarily to enter into a contract. Although I say "voluntarily", it is a bit like the army—one feels that one must volunteer before one is made to comply.
This will provide an opportunity for the school to engage with the parents in a constructive, formal way, explaining to them what the possible outcome will be. That must be the best way forward. We would like parenting contracts to be used to prevent a child's poor behaviour or attendance from becoming any worse. Sometimes, if we can get in early, just as behaviour is starting to go over the brink, we can nip it in the bud.
In many cases, the school has the most involvement with children with behavioural or attendance problems, and also with their parents. It therefore makes sense to allow schools to arrange contracts with parents if they think it might be helpful. If the teaching staff and the head teachers do not think that it is the most appropriate way forward, there is nothing in the Bill that would oblige them to do so. It merely gives them the ability to do so should they so wish and if they deem it the most

541
appropriate way forward. It should be helpful. Clause 19 gives the governing body of a school the power to enter into the parenting contracts.
Amendments Nos. 87 and 93, tabled by the noble Lord, Lord Dixon-Smith, seek to ensure that the head teacher should be involved in this process. We agree that head teachers who deal with parents, often on a daily basis, should be involved in negotiating and delivering a parenting contract. There is nothing in the Bill to prevent that happening.
Clause 19 refers to the governing body and not the head teacher because the party entering into the contract with the parent must meet the cost of providing any counselling or guidance programmes provided through parenting contracts and, under the School Standards and Framework Act 1998, the governing body and not the head teacher has control of the school budget. Therefore, the overall policy decision of whether the school will enter into parenting contracts must be taken by the governing body.
I should therefore like to reassure the noble Lord. Lord Dixon-Smith, that although head teachers are given no separate powers with respect to parenting contracts directly in the Bill, they will most certainly play a significant role in implementing the provision. It would also be likely that the governing body would delegate the day-to-day responsibility for negotiating, drawing up and signing the contract to the head teacher.
The issues regarding the role of different agencies in parenting contracts raised by these amendments will be covered in guidance. I therefore urge both the noble Baroness and the noble Lord not to press their amendments. In the amendments which follow we shall look at what happens when and if the parenting contract does not succeed and we then have to look at further issues in relation to parenting orders. However, that may now be for another day.
Lord Hylton: Will the noble Baroness consider that the guidance, when it is issued, should include a model form of parenting contract?
Baroness Scotland of Asthal: I shall certainly consider those matters. However, I say straightaway that the
542
guidance should be just that—guidance and not prescription. As the Committee will know, it is absolutely vital that the school, the parents and, if appropriate, the child should craft something that precisely meets the needs of that family. So although the guidance should properly set out the ambit of the sort of matters that they should consider, we are very reluctant to be prescriptive, as that may not fit the needs of the child and the family. One would not like it to be thought that one has failed unless one has conformed to the guidance. The point we are trying to push is that it must be child-focused and provide the sort of support and help that that family will need to move on. I hope that that answers the question. Certainly we will try to give as much help as we can in the guidance.
Lord Dixon-Smith: I thank the noble Baroness for her response and assure her that she has made it very easy for me to sit on my hands when the appropriate moment does arise, even if it does happen to be on a different day.
Baroness Sharp of Guildford: I thank the Minister for her very detailed and lengthy response to this group of amendments. I think that she has persuaded me that the school itself and the school governing body should be involved in these contracts. However, I should like to ponder the matter a bit further and we may return to it on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Grocott: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Gambling
A message was brought from the Commons that they have ordered the committee appointed by them to meet with the Lords committee on Tuesday 16th September at half-past nine o'clock, as proposed by this House.
House adjourned at sixteen minutes before eight o'clock.