Official Report 224KB pdf
Antisocial Behaviour etc (Scotland) Bill: <br />as amended at Stage 2
I welcome colleagues to the 20th meeting in 2004 of the Subordinate Legislation Committee. We have apologies from Alasdair Morgan and Mike Pringle.
Obviously we thought carefully about whether there should be a negative or affirmative resolution procedure in this part of the bill. Given the nature of the power that we would take and the purposes for which we thought we would use that power, we thought that the negative resolution procedure was appropriate.
Yes.
I do not think that our policy has changed. We said that we expected that the directions would be localised in nature and that we would use the power to involve RSLs in the preparation of the strategy. Because of the varied nature of RSLs, we said that use of the power would depend on our thinking that it was appropriate to involve the RSLs at a local level. We said:
I apologise, because I did not follow that. Can we go back to what are the key points for me? If this part of the bill is to work, it will require co-operation, so the drafting has to ensure that such co-operation can be achieved at all stages. That was the point that was made in the paragraph that you read from the Communities Committee report.
I could come back on those points, but perhaps David Doris wants to respond.
From the Executive's point of view, the emphasis is on ensuring that there is a flexible approach to suit local circumstances and on the fact that the main partners will always be the police and the local authority. Depending on an area's circumstances, it might well be appropriate to include certain RSLs. As Gillian Russell said, through dialogue with RSLs and other partners in the area, the Executive would make a case-by-case assessment of whether it was appropriate for an RSL to be required to participate. However, in view of the local element and the fact that consultation will be on-going, we believe that a flexible approach without affirmative resolution is most appropriate.
Just to be clear, we are not talking about the involvement of RSLs in the consultation process, because that is guaranteed by the bill.
Could you possibly show us where that is guaranteed?
Section 1(6) places the local authority under a duty
I am still not happy, and having heard Mr Doris's explanation, I am even more worried.
Will you explain why you are still worried now that section 1(6) has been explained? It seems to get over the issues to a certain extent.
Section 1(6) begins:
It might be what was said about flexibility, which conjured up in my mind the idea that decisions about which RSLs would be involved could be subjective—that was the word that Christine May used. The word that Mr Doris means to use is "appropriate", because of the varied nature of RSLs, but the language that he used might have been confusing.
Because of the varied nature of RSLs, the intention is to be flexible in a way that is appropriate rather than arbitrary. The likelihood is that RSLs that have been involved in a stock transfer would require to be involved in the preparation of a strategy. There is more of a debate to be had about whether it would be appropriate for smaller RSLs to be involved. That debate is best had with the local partners, and that is the approach that we have taken.
I would be a bit wary if you were saying that the size of the RSLs is a determining factor.
Is it really the size of the RSL that is being used as the criterion? I did not take that from what Mr Doris said. It is clear that when there has been a large-scale stock transfer, the local authority stock has become the RSL and so it must be involved. Beyond that, there will be a range of other operators in each local authority area, some of whom might be significant to the development of the strategy and some of whom will not be. Some of them will have a substantial policy-generating capacity and a capability for strategic thought, and some will be operating 20 houses from an office in another local authority area. There has to be a degree of flexibility before saying that every RSL is either in or out.
As I understand the situation, the alternative view is that the range of structures that might come into play in different local authorities with the transfer of housing stock is by no means worked out yet. Smaller housing associations might co-operate with a main housing association that is taking charge of housing stock, and there could be some concern about that. If Mr Doris did not mean size, he should please say so and give us some reassurance about that.
Size is one factor, but it is not the only factor. The question is more about who would be expected to take a strategic role in the preparation of the strategies. All RSLs will be involved, at least at the level of consultation. The distinction is drawn around those RSLs that should be involved in the preparation and review of the strategies. Size is not the only factor in that. Some RSLs operate across different local authorities, and that needs to be taken into account, too.
You are saying that some RSLs might not be involved in the consultation—in preparing, reviewing and revising the strategy.
No—that is not the case. All RSLs will be involved in the consultation on the strategy. There is a requirement for them to be consulted when the strategy is reviewed, and they would all be consulted on the preparation of the strategies. It is more a question of whether or not RSLs are required to participate in actually preparing the strategies. Any additional consultation would depend on whether the Executive is required to consult RSLs formally about whether they should be required to participate in the strategies, rather than just be consulted on them. In our view, that is more a matter for local dialogue between the agencies concerned and the Executive, and for negative resolution.
I am still concerned about this. I am struggling to understand the distinction that has been drawn. If an RSL is involved in the consultation process that prepares and reviews the strategy, then it has a right to be involved. I am thinking about some small RSLs that deal with particularly difficult client groups. By their very nature, they are small in each local authority area, but their client groups are frequently the subject of antisocial behaviour issues. It is essential that those RSLs have the right to be involved, because of the nature of their client groups. If you can assure me that nothing will exclude the likes of those RSLs, not just from being consulted but from being involved in drawing up, reviewing, monitoring and participating in the strategies, and if you can reassure me that the wording of section 1(6) says that—which is not what you seem to have said in your explanation—I will be content; otherwise, I will not be content.
There is a distinction between authorities that become involved in the preparation of a strategy in a formal sense, on whom a requirement to be involved has been placed, and smaller local authorities. We would encourage smaller local authorities that wish to be involved to get involved. If there were a need to make regulations to state categorically that such authorities are to be involved in preparing strategies, that would be done. The intention is to be flexible. Where there is a need to require involvement, it will be required, but participation and preparation can happen without regulations anyway.
The
I think that I am now fairly clear about what is happening. However, for clarity, will everybody, in effect, be consulted?
Yes.
But only some RSLs, whether because of their size, their relevance or something else, will be involved in the actual preparation of the strategies.
Yes.
So that is the difference. For the reasons that you have given, which concern organisations' relevance and resources, it is the Executive's view that, if everybody was, in effect, forced to be involved in the preparation of the strategies, the preparation would be so unwieldy as to be almost unworkable.
Exactly.
In that case, could we say that all the organisations concerned have the right to be involved? They might not wish to be involved, they might not feel it to be relevant for them and they might not have the resources, but I do not like the distinction, which means that, although everybody will be consulted, some parties might be excluded from preparing the strategies, either arbitrarily or for reasons of flexibility. That still worries me.
There will be no exclusion of anybody from the process, but there will be main players, who will be responsible for preparing the strategies. It would not be appropriate to place such a duty on everybody, because not all RSLs would be able to carry out the preparation of strategies, and the process would be made completely unwieldy. That does not mean that the smaller RSLs will be overlooked in the process at all. What we are saying is that only certain big, key players in an area will be given the responsibility of preparing, reviewing or revising the strategy. Those key players will be responsible for ensuring that everybody else gets together and works together to produce the strategy for the area concerned.
I can assure members that, if a particular RSL wanted to ensure that the requirement to prepare a strategy was placed on them, and if there was agreement among the RSL, the police, the local authority and the Executive, there is no reason at all for excluding an RSL that wanted to engage as a strategic partner in the preparation of the local antisocial behaviour strategy. Although that is not in the bill, there is no reason why ministers would want to stop RSLs that wanted that requirement placed on them having it placed on them.
Equally, there is nothing in the bill that says that ministers could not do that if they so chose. We have got to give a guarantee one way or the other; otherwise, I think that the provisions are technically flawed.
Surely, if all RSLs were allowed to take up and took up that right, the system could not operate. I understand why they should all be consulted and I understand why the Executive is saying that there is a practical implication for the preparation of the documents. However, it would be strange and slightly concerning if many or all of the organisations in an area took up that right. It seems to me that the process would grind to a halt.
Yes.
Nevertheless, it seems to me that the bill is denying those whom I would wish to have the right explicitly—
It is not denying them—
Implicitly—I beg your pardon. What I suggest is possible unless the right is guaranteed.
You have made the distinction between consultation and participation. Section 3A(1) states:
The point that you make about the distinction between participation and consultation might be slightly confused. In section 3A, we are talking about participation
I am clear about that.
It is not a question of participation instead of consultation. The provision is an enabling power that will allow ministers to make regulations to involve RSLs. We cannot say any more on why we think that it is appropriate for ministers to be able to consider each individual area, take soundings and take a view on whether, in addition to the local authority and the police in a particular area, a particular RSL should be given a strategic role by taking on the fairly onerous duties of preparing a strategy and following all the consequent procedure that will then have to be followed. I do not think that there is much that we can add to what we have said already.
Perhaps I have got it wrong, but I understand that RSLs may have a considerable role to play in housing stock in the future, yet you seem to be saying that they might not have a strategic role in the preparation of antisocial behaviour strategies.
We are saying that RSLs will have that strategic role if, in a certain local authority area, it is felt that, in addition to the local authority and the police, they should be given it. I do not think that there is any doubt that ministers will consider each local authority area and reach a view on whether there are RSLs in the area that need to be given that role.
You will agree that we are dependent on the reassurances that you are giving, and that a different Scottish Executive might have a completely different interpretation.
I accept the fact that the power to make regulations is not a power that ministers have to exercise. However, ministers have said that they will consider, on a case-by-case basis, whether there are RSLs in any local authority area that merit inclusion in the process. If they are satisfied that there are, regulations will be produced that the Parliament can consider in due course.
We are going round in circles. I seek some clarification, given the convener's concern over the use of the word "may". I understand where she is coming from.
But this is about preparing the strategy. As I have said, such a duty will be fairly onerous for the people who have to carry it out. For example, they will have to take responsibility in their area for assessing the extent of antisocial behaviour, specifying the range and availability of services and co-ordinating their functions for exchanging information. It might well be that, in a particular area, an RSL would not be in a position to take on such a role.
It is also important to point out that this matter was widely consulted on when the bill was being prepared. Our flexible approach ensures that, where appropriate, RSLs can become fully involved in a strategic role, but avoids placing a blanket duty on them to carry out such an onerous responsibility. The Scottish Federation of Housing Associations and other partners have welcomed the balance that we have struck.
This discussion illustrates why we have primary and secondary legislation. It would be impossible to specify such matters satisfactorily. After all, RSLs can vary from Glasgow Housing Association, which is preponderantly the supplier of social housing in that city, to a body such as Bield Housing Association, which in any local authority area might have one house containing eight elderly ladies who would not remotely come under the bill's provisions. Members might know of some elderly ladies who might be considered to be relevant in that respect, but by and large I do not think that that segment of the market is characterised by antisocial behaviour. Indeed, I imagine that such housing associations would find being involved in the procedure burdensome and irrelevant to their mainstream activities.
If there are no further points, we can probably end the discussion here and continue it later.
I will approach the matter from the legal perspective; David Doris will want to comment generally on the Executive's approach to guidance.
Before he does so, I point out that we are most concerned about the dispersal of groups. I ask him to home in on that as an example.
The main point about the dispersal of groups is that, as Gillian Russell said, under the bill the guidance will be laid before the Parliament. The Communities Committee raised the issue in its meeting of 26 May and ministers have agreed to write to that committee to set out the proposed timetable for the publication of guidance on each part of the bill. We will do that in the next few days, which will allow the Communities Committee to timetable its scrutiny of the guidance. We will consult on the guidance, but a statutory requirement to consult is not considered necessary; the issue is one of good practice.
To clarify, you are saying that the Communities Committee will examine the guidance, particularly the guidance on the power to disperse groups, and that changes will be made before the final stage of the bill.
The Communities Committee wanted early sight of parts of the guidance that we have begun to draft, in order to inform its consideration of stage 3 amendments. During stage 2, the minister said that various amendments were not necessary because the matters would be covered in guidance. We intend to give the Communities Committee sight of the guidance as soon as possible. More generally, the Communities Committee will timetable scrutiny of the guidance in the lead up to implementation of the legislation.
When the guidance is ready and comes to Parliament, what will be the process by which MSPs interrogate it?
I do not know what procedure draft guidance falls under, but it will be sent to the most relevant committee, which will consider it as it sees fit.
That last answer was quite revealing, because although the committee might have the opportunity to consider the draft guidance—I am not sure about procedures in respect of guidance and committees—the Parliament will not, and it will not have the opportunity to amend the draft guidance. Given that we are discussing some of the most contentious parts of the bill, it is important that the technicalities and parliamentary procedures are correct.
I was referring in particular to our discussions with the Communities Committee because it is the lead committee on the Antisocial Behaviour etc (Scotland) Bill and it takes the biggest interest in the bill as a result. That said, there is nothing to prevent any other member from having sight of the draft guidance. We could consider how that could best be done—whether by ensuring that copies of the draft guidance go to the Scottish Parliament information centre or by another mechanism. We have treated the guidance as all other types of guidance from the Executive tend to be dealt with, in that it is not subject to parliamentary procedure. In many respects, the planned level of engagement has been much higher than for most other Executive guidance.
I do not suggest that the information is being kept from individual MSPs; I am much more concerned that the mechanisms by which the guidance is consulted on, developed and then subjected to parliamentary scrutiny, are technically correct and appropriate for such legislation. I accept that we are entitled to ask for information at all stages.
Where there is a formal consultation and guidance is issued—and that might not always be appropriate—the intention is that such information would be issued within the three-month consultation period as standard.
We move on to a quick question about part 5, which deals with noise nuisance. Section 46 concerns fixed-penalty notices. As the proposed power is a wide one, what is your justification for the stance that you have taken?
The committee raised the same points in relation to sections 49 and 50, so it might be easier to deal with them together.
The only point that I did not understand was that you said twice that the power was to be used to reflect changes in the value of money. The fixed-penalty system does that automatically. A fixed penalty can be set permanently at level 3, but the values of the fixed-penalty scales change from time to time under subordinate legislation. The Executive does not need to move a penalty from level 2 to level 3 because the value of money has changed, since the amount at which level 3 is set changes from time to time. I did not understand the point about reflecting the value of money, because that is dealt with under subordinate legislation to change fixed-penalty rates from year to year.
That is true. I just focused on a potential reason for exercising the power. Section 50 of the bill, which was amended at stage 2, will amend section 88 of the Environmental Protection Act 1990, which concerns fixed penalties for a littering offence. The 1990 act already contained a power to increase the fixed penalty, which has been exercised twice in the past 10 years. That happened most recently last summer. The fixed penalty was originally £50 and it has now been increased to £100. Such provisions are not unusual.
I am not sure whether I agree. The general practice in fixing a statutory fine is to specify its level, rather than to give the Executive the power to fix the level as it goes along. Whether the subject is road traffic or whatever, an offence normally attracts a fine at a summary level, which reflects the value of money, because it changes from time to time.
The basic concern of the committee at stage 1 was that the power should not be open ended and that there should be an upper limit on it. At stage 2 we strove to produce that upper limit. We intended to be consistent with what is already in section 97(2), in part 11 on fixed penalties. Even if we had not done what we have done, the basic point is that there is still a littering offence that has a fixed penalty, to which the provision should apply.
If I am honest, it is not the greatest deal in the world, because the penalties do not bear much resemblance to what the courts fix as fines. We constantly see people who, on a statutory offence, could be fined £1,000 but they are fined 3/9. The bottom line is that the court fixes the penalty at what it considers to be appropriate, so maximums almost do not exist in practice. It is an interesting way of doing it. I suspect that the sheriff fixes the fine as he thinks appropriate. If you gave him a limit of £3 million he still would not make the fine above 3/9 if he did not think that it was appropriate. It does not matter all that much.
Section 46B, on the meaning of "relevant place" and "relevant property", seems to have fairly wide implications. Could you talk us through it?
It would probably be easier if I referred to what the Deputy Minister for Communities said to the Communities Committee at stage 2:
Can you name somewhere that would not be covered by the definitions? Am I right in suggesting that, in effect, everywhere would be covered by them?
If we take "relevant property", the focus—the strand that is mentioned in section 46B(1)(a)—is accommodation, but there are other things that are not accommodation specific. It is clear that the present definition of accommodation is focused on permanent buildings and other such structures. I mentioned the specific example of caravans. I accept that, if a caravan were situated on land that people had in common as a private garden and noise was being made outwith the caravan, the likelihood is that any such noise that was made in the vicinity of the caravan could be caught. However, there would be an issue about whether noise that was emitted from a caravan—which is not accommodation; it is just a type of vehicle—would be covered. The difficulty would be that, if noise was being emitted from a caravan and there was not another building in proximity to that caravan, it would be very difficult to find a relevant place from which to measure the noise, given the present constraints.
In relation to "relevant place", section 46B(1)(b) says:
They could do. The main issue is the ability of the current technology to measure noise.
You would agree that, in effect, ministers are being given the power to measure noise anywhere they please.
I have a bias—I would give ministers all the power that they want. I am up for anything that cuts down noise pollution. This is the one occasion on which I do not mind how much power they have.
I ask for further clarification of the definition of accommodation. In section 46B(2), you use the word "accommodation" within the definition of accommodation, which is perhaps less than helpful. The bill states that
It could. The example that was put to the Executive in the run-up to stage 2 was of a stag weekend at a chalet up in Aviemore. That would not be a domestic dwelling in the normal sense, but there might still be a noise nuisance caused to those who lived in the vicinity of such an establishment. A conscious decision was made that any type of accommodation, either temporary or permanent, could fall within the ambit of the bill's provisions.
Let us be clear about this. The definition covers temporary as well as permanent accommodation. Clubs and pubs are definitely included in the definition.
There will clearly be issues as far as clubs are concerned, because powers exist under licensing legislation that would be brought to bear on operators of clubs who were not appropriately managing antisocial behaviour on their premises. Nevertheless, it was still felt that there might be circumstances in which the bill's provisions might be brought to bear on smaller hostelries, bed and breakfasts and guest chalets—in Aviemore or elsewhere—if no other enforcement regime might more appropriately be brought to bear.
I appreciate that. What I am talking about is the clarity of the definition. When you talk about accommodation, do you mean where people are physically living?
I mean where they are living for a time.
You see what I mean: the definition of accommodation is not terribly clear because the word "accommodation" is used within it.
The definition tries to clarify what we mean by accommodation. The words in brackets at the end of that definition of accommodation are:
Okay. Stewart Maxwell mentioned section 46B(1)(e), which defines "relevant property" as being
It is clear to us that it is a significant power and that the end result—the use of the affirmative procedure—is entirely appropriate. However, in the run-up to producing an order for Parliament's consideration through the affirmative procedure, the Executive will consult in the normal way, especially for a change of that nature.
You would not expect that to happen, but you will accept that the bill does not state that there must be consultation.
I accept that, but I suspect that the matter at issue is not the only enabling power of that nature in the bill. I do not think that it is specified anywhere in the bill that there will be a requirement to consult. However, given the significance of the powers, it would be highly unlikely that there would not be any form of consultation before we got to the stage of laying an order before Parliament for consideration under the affirmative procedure.
That brings us to section 51B and the power to modify the meaning of "relevant surface". The affirmative procedure is proposed for that power. Could you talk us through this section as well, to justify that?
It might be helpful to start by explaining what "relevant surface" means for the purposes of this part of the bill. On 13 May, the Deputy Minister for Communities said to the Communities Committee that local authorities would be given
Just for my own purposes, I ask the witnesses to give me an idea of the sort of surface that is not relevant under the bill as drafted, but might become so.
I suppose that surfaces that are not relevant at the moment would include, for example, shop fronts. However, that is merely an example of something that we did not feel it to be appropriate for us to legislate on. We could possibly open the matter up for discussion in the future. At present, we are limited to surfaces in the public domain, such as telephone boxes and electricity substations.
Does the term "relevant surface" include trees? I assume that the "plant" that is mentioned in the first paragraph of the minister's response refers to industrial plant rather than to greenery.
You are just worried about all those trees in Fife that you carved "Christine Loves So-and-so" on in your teens.
I am thankful that all those trees are in Dublin.
The list in section 51A(3)(b)(ii) refers to
Good.
We move on to part 8 of the bill, which concerns registration areas for housing. I think we have already asked the question that has been raised in relation to section 64B, on application for registration. Does the provision make it possible for the local authority to decide that no fee would be payable on applying for registration?
Yes.
Similarly, does the provision in section 64F, which concerns the duty of a registered person to provide information to the local authority, make it possible that no fee would be payable?
Yes. However, I should point out that if regulations that provided for fees were introduced, fees would have to be paid. In the absence of any such regulations, a local authority would have the discretion to charge no fee.
Part 11 concerns fixed-penalty offences. Sections 95(2) and 95(3) refer to the table of offences that is set out in section 95(1). For example, section 95(2) states:
We could add to the offences in the table. However, they would then be in the table.
Let me just confer on that matter for a moment.
Could we hear the question then tell you whether we can deal with it? If we cannot answer now, we will respond this afternoon.
Excellent—I will go through our points.
We will take that away with us. That point is helpful and we thank the committee for it.
That is fine. We picked that up when we went through all our legal advice—I am sorry that you did not have notice of that point. I thank the witnesses for attending the meeting. We will consider your responses later and we will compile a report.
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