Amendments Nos. 1 and 4 are related so they may be discussed together by agreement. Is that agreed? Agreed.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), lines 12 to 26, to delete the definition of "anti-social behaviour" and substitute the following:
"‘anti-social behaviour' means a course of conduct in an estate which causes or contributes to—
(a) nuisance and/or,
(b) disorder and/or,
(c) misuse of drugs (within the meaning of the Misuse of Drugs Acts, 1977 and 1984),
to the serious detriment of the safety or welfare of persons residing in that estate;
‘estate' means an estate of houses and its immediate environs, being an estate where a substantial number of housing authority tenants, tenant purchasers or licencees reside;".
Section 1 deals with the definitions of anti-social behaviour. Many speakers stated on Second Stage that the definition needed to be reconsidered or tightened up. The basic purpose of the amendment is to discard much of what is contained in section 1(1)(b), that is, "any significant or persistent danger, injury, damage, loss", etc., as it seems a little complicated and unwieldy. The core point is that the simple word "nuisance" would substitute for much of that.
It has been said that if a neighbour takes a civil action against another on a private estate, the word to which the law refers is "nuisance". Why not use the same phraseology which would be used in civil law and gear the definition around the word "nuisance" rather than this complicated definition?
Amendment No. 4 forms part of this suggestion. I suggest this definition is tidier and people feel it is simpler.
I am not in a position to accept the amendments. While I appreciate the general approach which Deputy Ahern has taken to the Bill, these amendments would open further rather than tightening up the definition. The term "nuisance" is a handy catch-all phrase, but I understand it could be used widely to include noise or even children crying.
The purpose of this Bill is worth restating: it is to target drug dealing where local authority estates are affected by this very serious problem and related anti-social behaviour. The committee has just received submissions from various organisations which are concerned about the impact of such a Bill. This Bill is part of an overall approach and it should not be seen in isolation. If we opened up the definition of anti-social behaviour in the way suggested by Deputy Ahern and local authorities took it literally, we could end up with many people out of home and that is not what Deputy Ahern or I want. It is not the simplest definition but it is as simple as we could make it while targeting clearly the problem which the Bill addresses.
With regard to amendment No. 4, where the Deputy wishes to remove the reference of "estate management", the Bill proposes a positive requirement on local authorities to secure and promote the interests of their tenants. As I previously indicated, the term estate management is already recognised in landlord and tenant law and by the courts so that a local authority may seek repossession on grounds of good estate management and could continue to do so even if Deputy Ahern's proposed amendment was accepted.
I would not wish to replace the carefully drafted definition of anti-social behaviour in the Bill with one which introduces vague concepts of nuisance and disorder. Furthermore, under Deputy Ahern's amendment, mere possession of drugs would be included in the definition of anti-social behaviour, something which I have consciously left out of the Bill because I appreciate the difference between people using drugs and those who are selling them. They may be the same person, but the promotion and selling of drugs is of most concern. The problem is extensive in some areas. Possession of drugs should not be included in the definition of anti-social behaviour.
The Bill is not concerned with people who play loud music or children who cry at night. Such actions can be regarded as a nuisance to persons trying to sleep but it is not reasonable to suggest that persons engaged in such activities should be excluded from local authority housing.
Everybody agrees with the Minister's sentiments on drug dealing. However, we have received representations on other issues. Section 1(1) (a) concerns drug dealing but does section 1(1) (b)? People are concerned about estate management and the definition of anti-social behaviour. "Nuisance" has an established meaning and would clarify section 1.
I wish to keep separate the definitions of nuisance and anti-social behaviour. The type of anti-social behaviour referred to in this Bill is that which generally occurs where there is a serious drugs problem. Apart from the problem of dealing in drugs the definition may include intimidation of neighbours to ensure drug dealing is not reported. I have met delegations of women who will not talk to the Garda. They welcome the presence of gardaí in their estates but they do not have the courage to give the gardaí the information they need because of intimidation. In the past, people asked to give evidence in court were violently attacked and intimidated. It is part and parcel of the problem we are trying to tackle. The definitions in section 1 are as clear as possible in the context of focusing on the serious problems of drug dealing.
This legislation does not interfere with the normal powers of local authorities regarding tenancies. It focuses on a very serious phenomenon which has been allowed get out of control. There are no-go areas and dealing with this problem requires a targeted approach. The general terms of "nuisance" or "disorder" do not describe the problem. The Bill must take account of the intimidation and violence attached to the problem of drug dealing.
Amendment, by leave, withdrawn.
Amendments Nos. 2, 3 and 8 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 3, subsection (1), line 22, after "1996" to insert "or a tenant purchase house still being paid for or under effective control".
This amendment is to ensure that the legislation applies to new houses in private estates purchased by local authorities. As it stands the Bill could imply that such houses are excluded. Are these houses included under any other provision?
The other amendments concern tenant purchased houses. On Second Stage the Minister said this area was covered under section 13. However, in estates where most houses have been bought by the occupiers or are in the process of being bought out, will these controls and exclusion orders apply only to the remaining tenant houses? Can the legislation be extended to tenant purchased houses? If not, the legislation may not be effective because a troublemaker could claim to be living in a tenant purchased house. A tenant purchased house should not be looked upon as a safe house. A tenant purchaser needs the permission of the local authority to sell the house for up to 20 years after purchase. In this context, could we control who lives in the house by providing for exclusion orders? Some offenders are brazen and feel they are untouchable because they live in their parents' house.
The Bill applies equally to a local authority tenant in a private estate.
Where is provision made for that?
The Bill concerns houses provided by the local authority.
Yes, a house provided in an estate.
The phrase used would cover a house bought by a local authority in a private estate. The definition in section 3(2) covers a local authority house whether built or acquired.
The position of a tenant purchaser is different. They own their house and on the advice of the Attorney General the measures in the Bill cannot be extended to owner-occupiers other than to the extent allowed under sections 13 and 15. I did not intend to mislead Members about that. That is what we can do on the advice of the Attorney General and no more than that. Under section 13, local authorities will be empowered to refuse applicants for tenant purchases and, in certain circumstances, applications to resell a tenant purchase house in cases of anti-social behaviour.
It is difficult to argue with the Attorney General but if a local authority can refuse permission to a tenant purchaser to sell a house that means tenant purchases are not totally free agents. There have been cases where local authorities refused permission for the sale of houses because tenants proposed to sell them to single people. The local authority would say houses should be sold to families. If we can stop people, 15 years on, from selling their houses to whoever they wish, I find it difficult to understand why we cannot control them from day one. If we cannot do that at the moment, could we introduce some kind of sale schemes including a clause with regard to the future sale of houses that would give us permission to issue excluding orders subject to the usual conditions.
I do not wish to maintain that I can overrule the Attorney General's view of constitutional matters. This obviously relates to private property rights. A tenant purchaser is not the same as a local authority tenant. A local authority tenant does not own the property whereas the tenant purchaser does. The arrangement made when the tenant purchaser commenced the tenant purchase is one I cannot ignore or change retrospectively.
That is what we are doing when a tenant purchaser sells the house. I cannot see the difference.
We are only providing for that for the future. The provision is being incorporated in relation to tenant purchases that come up at the moment.
Up to now, local authorities could refuse people permission to sell their houses. I know of one person, the owner of a local authority house who did not know it was a local authority house as it had changed ownership several times. The local authority refused him permission to sell when he did not propose to sell to a family. It gave in eventually. The local authority had interfered with the owner's property rights by telling him to whom he could or could not sell the house, in spite of the fact that 15 years had passed since the local authority had owned the house. I cannot understand how we can impose control when a house is being sold and yet cannot exert control from the point of view of issuing an excluding order on a house. Could we insert some kind of control in future sales schemes which would give us that kind of authority?
I am anxious to make progress. Will the Minister comment?
The Deputy must accept there is a difference between the lease arrangement a local authority has when a tenant purchase goes through — under which there are certain limitations — and new leases. With regard to resale of houses, we will ensure that we cover what is in the Bill. That is different to saying the local authority can evict somebody who owns his own home in the same manner as they can a tenant. There are two totally different requirements there and the Attorney General is treating them differently. He has no problems with the arrangements in the Bill. I am not in a position to go down the road the Deputy proposes.
I want the Bill to be effective. I am thinking of one estate where a tenant purchase house is posing a major problem. Can we not do anything for that estate? People come and go from this house and nobody really knows who lives there. I suspect that if we spoke to some of the owner's friends — who may also be his tenants — they would tell us they are residing at the house and we would not be able to touch them.
They are either tenants or they are not. If they are tenants, it is quite clear they cannot say they are not.
I am talking about the 18 or 20 year old sons of tenants. This tenant purchase house has become a den for local youths who all claim they are living in this house.
The Bill is not a panacea for every problem which arises in local authority housing. It deals with a very serious problem which local authorities are attempting to manage. The Garda also have a role to play. With regard to the situation referred to by the Deputy in a particular local authority house, it is not possible to deal with that problem through the confines of this Bill. We cannot change lease arrangements under tenant purchase schemes retrospectively. The problem to which the Deputy refers is a serious one but it cannot be addressed by this Bill.
Could we legally provide for this in future sales schemes or is this something we will never be able to deal with?
We have gone as far as we can in that the leases from now on will have this requirement in relation to applications for resale or applications for tenant purchase. Because the Deputy raised this matter on a previous occasion, we considered it very carefully and tried to respond to the points made. However, this is as far as we can go with it.
Will the Minister be able to issue an excluding order against a tenant purchaser?
No, it is not possible to do that.
Is the amendment being withdrawn?
I feel strongly about this amendment, I am not withdrawing it.
It can be entered again on Report Stage.
Amendment put and declared lost.
Amendment No. 3 has already been discussed with amendment No. 2.
Amendments Nos. 3 and 4 not moved.
Section 1 agreed to.
NEW SECTIONS.
I move amendment No. 5:
In page 4, before section 2, to insert the following new section:
"2. (1) Notwithstanding anything contained in any enactment or the District Court Rules—
(a) summons in connection with proceedings under section 62 of the Housing Act, 1966, or this Act may be served by ordinary prepaid post or in any one of the other ways referred to in section 3(1) of the Housing Act, 1966;
(b) a summons in connection with proceedings in the District Court under section 62 of the Housing Act, 1966, or this Act may, in lieu of being signed and issued by a judge of the District Court, be signed and issued under the general superintendence of an appropriate District Court clerk as a matter of administrative procedure.
(2) In this section 'appropriate District Court clerk', in relation to a summons, means a District Court clerk assigned to any District Court area in the District Court district in which a justice of the District Court has jurisdiction in relation to the proceedings to which the summons relates.".
The purpose of this amendment is to bring the provisions of section 2 into line with the procedure for the serving of summonses which, under revised District Court Rules issued recently, now apply in relation to proceedings under the Domestic Violence Act, 1996. In these cases summonses are served by ordinary post without having first to attempt serving by registered post or any other method. The revised section also provides that the power in paragraph (b) for District Court clerks to sign and issue summonses will apply in proceedings under this Act as well as repossession proceedings under the Housing Act, 1966. The opportunity has also been taken to define "appropriate District Court clerk" in slightly different terms from section 1 of the Courts (No. 3) Act, 1986 by replacing the word "offences" in that definition with the word "proceedings".
This is a sensible amendment and I support it. As the Minister rightly says it brings the Bill into line with the recent Domestic Violence Act. Service by registered post often creates a plethora of problems — a summons may be returned or marked "not known at this address" if no one is there to accept it. There are many ways of avoiding proceedings. Under this new provision the proceedings are deemed to have been served once notice is sent by ordinary prepaid post. The Minister was right to bring this amendment forward.
Amendment agreed to.
Acceptance of this amendment involves the deletion of section 2 of the Bill as originally drafted.
Section 2 deleted.
I move amendment No. 6:
In page 4, before section 3, to insert the following new section:
"3.—(1) A housing authority may apply to the District Court for an excluding order against a respondent who the authority believe to be engaging in anti-social behaviour on an estate.
(2) Where the Court, on application to it, is of the opinion that there are reasonable grounds for believing that the respondent is or has been engaged in anti-social behaviour it may make an excluding order
(a) prohibiting the respondent from entering or being in or upon the estate,
(b) prohibiting the respondent from entering or being upon the estate except at such times or for such purposes as the Court may prescribe,
(c) adjourn the hearing on foot of the respondents undertaking as to good behaviour in such terms as the Court any direct.
(3) The Court in cases where it believes that the behaviour complained of may be attributable to the respondents addiction or medical or mental condition may direct that a medical or social report be obtained for the guidance of the Court.
(4) The Court may determine the boundaries of an estate for the purposes of this Act.
(5) An excluding order under subsection (2) shall remain in force for a period of one year or such shorter period as the Court may provide.
(6) A housing authority or a respondent may apply to have an excluding order varied and the Court on hearing such application shall make such order as it considers appropriate in the circumstances.".
This is related to the amendment on section 1. The groups we met earlier accepted the need for excluding orders for drug dealing but were concerned that it is too wide. The fear is related not so much to the concept of an excluding order but to the grounds on which it can be given. There is no point going over the same arguments again.
I am not sure that I view the submissions made by the various organisations in the same way as the Deputy but I am not in a position to accept this amendment. It proposes to give the power of initiating requests for an excluding order to the housing authority in the first instance. In the Bill it is the tenant who in the first instance may seek an excluding order and the housing authority may only take this course of action where the tenant is being intimidated or is too fearful to seek the order. This emphasises the wholly exceptional circumstances in which an excluding order procedure may be used by the housing authority. It should not, be a first response or something which a housing authority will lightly undertake. For this reason I also provided for prior consultation by the housing authority with both the tenant and the local health board, something which is missing from the proposed amendment.
Is the Minister saying the Bill provides that a tenant should, in the first instance, start the application for an excluding order and only if the tenant refuses should the local authority do so?
In the first instance, it is the tenant who may seek an excluding order. If the local authority believes the tenant is intimidated or too fearful to take those proceedings, the housing authority can take them.
In those circumstances only?
Yes. If tenants understand that the housing authority is dealing with a problem of drug dealing or related anti-social behaviour and are clearly aware that the choice is between an excluding order to deal with a problem and an entire family being evicted, in those circumstances they must decide where they stand. It is important that a housing authority does not take undue powers unto itself — there is a similar provision in the Domestic Violence Act, where authorities have certain powers. In this instance the tenant can initiate the proceedings but the housing authority can do so if it feels the tenant is unable because of fear or intimidation.
What evidence would be needed for that?
The authority would have to be satisfied it could argue the point in court. These problems exist and local authorities are increasingly aware of the difficulties experienced by tenants. As we develop better estate management I hope the relationship between local authorities and their tenants will be on a better footing. They both have an understanding and greater knowledge of good estate management. A local authority would have to have grounds for going to court but it has the power to do so under this Bill.
I withdraw the amendment but I may return to it on Report Stage.
Amendment, by leave, withdrawn.