Same problem, different approaches

The problem of antisocial behaviour has become a prominent part of UK life. The political will to deal with it has led to specific legislation on both sides of the border.

The Antisocial Behaviour Act 2003 is already on the statute books for England and Wales, although it is only now being phased in. Scotland is slightly behind – the Antisocial Behaviour (Scotland) Bill was introduced into the Scottish parliament in October 2003 and is not yet law.

Both pieces of legislation build in part on the Crime and Disorder Act 1998, which introduced across the UK the concept of the antisocial behaviour order initially for local authorities and, later, for registered social landlords.

The number of similarities between the English act and the Scottish bill are striking – both require the preparation of antisocial behaviour policies, both permit the closure of premises, both tackle the problem of noise nuisance and both give police the power to disperse groups of people.

Equally, there are some interesting distinctions and changes of emphasis between the two – at times the Scottish bill goes considerably further in its impact on the rights of third parties.

The definitions of "antisocial behaviour" used in the act and the bill are almost identical. In England, it is classed as behaviour by a person that causes or is likely to cause harassment, alarm or distress to one or more other persons outside of the same household. In Scotland, it is where a person acts in a manner that causes or is likely to cause damage or distress to at least one person outside of the same household, or pursues a course of conduct to that effect.

In Scotland, it will be the responsibility of each council, in conjunction with the local police, to prepare an antisocial behaviour strategy. Local RSLs are to be consulted in the preparation of the strategy and the Scottish ministers can compel an RSL to "collaborate" with the local authority in preparing the strategy. In contrast, in England every local housing authority and RSL must have an antisocial behaviour policy and procedures in place.

On both sides of the border, police are being given new powers to disperse groups of people. In Scotland, if the police have reasonable grounds for believing that members of the public have been alarmed or distressed by a group of people in a public place and that antisocial behaviour is a "significant and persistent problem" in the area, they may designate specific areas for up to three months or on certain days or at certain times, during which they will be entitled to disperse groups. Similar powers have been granted in England, but with a six-month limit.

Electronic tagging
Also in England, the police will be permitted to return to their homes anyone under 16 found in the area between 9pm and 6am.

Scotland’s antisocial behaviour bill goes considerably further in its impact on the rights of third parties

This power is not available in Scotland although, as a separate measure, the new bill opens up the possibility of under-16s being subject to a curfew through electronic tagging.

In the Scottish bill, there is a recognition that antisocial behaviour is not solely the problem of those in social housing. Councils will have the power to serve antisocial behaviour notices on private landlords if a tenant or occupier is engaging in antisocial behaviour at the house.

If the landlord fails to address the problem, the sheriff may order that no further rent should be paid to the landlord by the tenants specified in the order. Alternatively, he may grant a management control order, which transfers management of the property to the local authority for up to 12 months.

There is no equivalent to these provisions in the English act.

If a Scottish council considers that people in an area are persistently engaging in antisocial behaviour, it may designate the area as one where private landlords must register with the council and comply with set conditions to manage antisocial behaviour. Failure to do so can again lead to the sheriff ordering that no rent be paid to the landlord.

Statement of intent
The English act makes provision for those tenants guilty of antisocial behaviour to have their security of tenure weakened by using demoted tenancies, in terms of which recovery of possession by the landlord is earlier. A demoted tenant also has no right to buy. Similar arrangements have existed in Scotland since the Housing (Scotland) Act 2001 introduced the concept of Scottish short secure tenancies for antisocial tenants.

It is too early to say how effective both pieces of legislation will be in tackling antisocial behaviour. Critics of the Scottish bill say it is no more than window dressing and that existing laws already give adequate powers to tackle the problem.

However, the new legislation can be seen as a clear statement of political will and intent, to make available to enforcement authorities a full suite of powers and tools.