HL Deb 11 September 2003 vol 652 cc478-542

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-Smith

moved 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 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.

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 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?".

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.

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.

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. 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 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 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-Jones

moved 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.

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.

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-Smith

moved 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 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.

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.

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 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 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 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.

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 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 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-Smith

moved 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.

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—

  1. (a) a person residing in housing accommodation owned or managed by the relevant landlord;
  2. (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.

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 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 Brighton

moved 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 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 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 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 Brighton

moved 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 Brighton

moved 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-Smith

moved 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.

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 moved

Amendment 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.

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 Hamwee

moved 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 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.

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-Smith

moved 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 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, 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-Smith

moved 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 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 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 Hamwee

moved 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, 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 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-Smith

moved Amendment No. 64: Page 54, line 39, leave out from "possession" to end of line 40 and insert "if it is satisfied—

  1. (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
  2. (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.

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 Asthal

moved 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 Asthal

moved 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 Guildford

moved 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".

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.

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.

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—

  1. (a) accommodation is provided for children and their parents;
  2. (b) the parents' capacity to respond to the children's needs and to safeguard their welfare is monitored or assessed; and
  3. 524
  4. (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.

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 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.

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 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.

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 Addington

moved 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.

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 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


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 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 Knayth

moved 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 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 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.

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 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 Guildford

moved Amendment No. 83: Page 17, line 35, leave out "or the governing body of a relevant school 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 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.

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 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 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 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.

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