|Criminal Justice And Immigration Bill - continued||House of Commons|
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653. This clause extends Her Majesty's Inspectorate of Constabulary's (HMIC's) powers of inspection in police authorities. It provides for HMIC to carry out general inspections of the performance of all the functions of police authorities, rather than limit these powers to the inspection of a police authority's compliance with best value in Part 1 of the Local Government Act 1999.
654. The intention is that this clause mirrors the provision made by section 152 of the Local Government and Public Involvement in Health Act 2007. That section broadens the Audit Commission's powers to enable the general inspection of the performance of best value authorities rather than again limit their powers to compliance with best value. With both organisations having powers of inspection in police authorities that are on an equal footing, the intention is to develop a joint police authority inspection programme combining the expertise and resources of the Audit Commission and HMIC.
Clause 115: Designation
655. This clause allows the Secretary of State to designate a "foreign criminal" who is liable to deportation but who cannot be removed from the United Kingdom because of section 6 of the Human Rights Act 1998 and a family member of such a person (subsections (1) to (3)). Under subsections (4) and (5) a person who has a right of abode in the United Kingdom may not be designated and the Secretary of State may not designate a person where the effect of designation would breach the United Kingdom's obligations under the Refugee Convention, or the person's rights under Community treaties.
656. This clause defines the term "foreign criminal" as it is used in clause 115.
657. Subsection (1) provides that a "foreign criminal" is a person who is not a British citizen, and who satisfies one or more of the conditions set out in subsections (2) to (4).
658. The condition in subsection (2) (Condition 1) is that section 72(2)(a) and (b) or (3)(a) to (c) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) applies to the person. This applies where a person has been convicted of an offence, either in the United Kingdom or abroad, and has been sentenced to a period of imprisonment of at least two years. If the conviction was outside the United Kingdom, there is a further requirement that the person could have been sentenced to a period of imprisonment of at least two years had his conviction been in the United Kingdom for a similar offence.
659. The condition in subsection (3) (Condition 2) is satisfied where section 72(4)(a) or (b) of the 2002 Act applies to a person and the person has been sentenced to a term of imprisonment of any length. Section 72(4)(a) applies where a person is convicted of an offence specified by order of the Secretary of State, and section 72(4)(b) where a person is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under section 72(4)(a).
660. Subsection (4) specifies that Condition 3 applies where Article 1F of the Refugee Convention applies to a person. Where Article 1F applies, the person concerned cannot be a refugee.
661. Subsections (5) and (6) make clear that provision for the rebuttal and non-application of the presumption that a person constitutes a danger to the community is irrelevant to the question of whether a person is a foreign criminal.
662. Clause 117 sets out the effect of designation.
663. Subsection (1) specifies that a designated person does not have leave to enter or remain in the United Kingdom.
664. Subsection (2) ensures that, for the purposes of a provision of the Immigration Acts and any other enactment concerning or referring to immigration or nationality, a designated person is a person subject to immigration control, is not to be treated as an asylum-seeker or former asylum-seeker regardless of his status, and is not in the United Kingdom in breach of the immigration laws. Subsection (3) provides that time spent as a designated person may not be relied on by a person for the purpose of an enactment about nationality.
665. Subsection (4) specifies that a designated person shall not be deemed to have been given leave in accordance with paragraph 6 of Schedule 2 to the Immigration Act 1971 and may not be granted temporary admission to the United Kingdom under paragraph 21 of that Schedule. A person is deemed to have leave under paragraph 6 in certain circumstances which include, for example, where notice giving or refusing leave is not given before the end of twenty four hours after the examination of the person by an immigration officer under paragraph 2 of Schedule 2 to the Act. This provision has been disapplied as a designated person does not have leave to enter or remain in the United Kingdom (subsection (1)).
666. Subsection (5) notes that clauses 119 and 120 make provision about support for designated persons and their dependants.
667. This clause allows the Secretary of State or an immigration officer to impose conditions on a designated person, it specifies the nature of the conditions, and makes failure to comply with a condition an offence.
668. Subsection (1) allows the Secretary of State or an immigration officer to impose conditions on a designated person. These may relate to residence, employment or occupation, or reporting to the police, the Secretary of State or an immigration officer, as set out in subsection (2).
669. Subsection (3) provides that the powers for electronic monitoring shall apply in relation to the conditions imposed under subsection (1) in the same way as they do when someone is granted temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971. This means that where a residence restriction is imposed on an adult, or where a reporting restriction could be imposed, he may be required to cooperate with electronic monitoring.
670. Subsection (4) permits the Secretary of State to make payments to a person in respect of travelling expenses which the person has incurred or will incur in complying with a reporting condition.
671. Subsection (5) creates an offence of failing to comply with a condition under this clause without reasonable excuse. The maximum penalties for this offence are set out in Subsection (6). Further, under subsection (7) the ancillary provisions in the Immigration Act 1971 which apply in relation to an offence under any provision of section 24(1) (e.g. the power of arrest) will also apply in relation to an offence committed under subsection (5).
672. Subsection (8) specifies that the reference in subsection (6)(b) to 51 weeks, being the maximum period of imprisonment for an offence under subsection (5), shall be treated as a reference to six months in the application of the clause to Scotland and Northern Ireland.
673. This clause sets out provisions for the support of individuals designated under clause 115 and their dependants.
674. Subsections (1) and (2) specify that Part VI of the Immigration and Asylum Act 1999 (the 1999 Act), which makes provision for support for asylum-seekers, will apply - subject to certain modifications - to designated persons and their dependants as it applies to asylum-seekers and their dependants. This allows the Secretary of State to provide, or arrange the provision of, support for designated persons and their dependants who appear to be destitute (or to be likely to become destitute within a prescribed period).
675. Subsection (3) specifies the ways in which this support may be provided under section 95 of the 1999 Act. The Secretary of State may provide accommodation, essential living needs, and in other ways where necessary to reflect exceptional circumstances of a particular case.
676. Subsection (4) provides that, unless the Secretary of State thinks it appropriate because of exceptional circumstances, the support provided under section 95 of the 1999 Act must not be wholly or mainly in cash.
677. Subsection (5) provides that section 4 of the 1999 Act shall not apply to designated persons.
678. Subsection (6) disapplies certain alternative statutory provisions relating to the provision of assistance under the homelessness provisions which would otherwise apply to a person who has been designated.
679. This clause lays out supplementary provisions relating to the support that may be provided under clause 119, and it ensures the correct operation of Part VI of the 1999 Act in relation to designated persons.
680. Subsection (1) ensures that any references to Part VI of the 1999 Act or to a provision of that Part in other enactments includes a reference to that Part or provision as applied by clause 119. Section 96 of the 1999 Act lays out the ways in which support may be provided to asylum seekers, but clause 119(3) makes equivalent provision for designated persons. References to section 96 or a provision thereof will be treated as including a reference to clause 119(3) or the corresponding provision. All references to asylum seekers will be treated as including a reference to designated persons.
681. Subsection (2) provides that any provision of Part VI of the 1999 Act requiring or permitting the Secretary of State to have regard to the temporary nature of support for asylum-seekers shall require him instead to have regard to the nature and circumstances of support for designated persons.
682. Subsection (3) provides that the rules governing the procedure for bringing and hearing appeals made under section 104 of the 1999 Act apply.
683. Subsection (4) provides that any instrument made under Part VI of the 1999 Act may make provision in respect of that Part as it applies by virtue of clause 119, otherwise than by virtue of that section, or both, and may make different provision for that Part as it applies by virtue of clause 119 and otherwise than by virtue of clause 119.
684. Subsection (5) modifies the provisions which apply to the notice to be given to a designated person required to quit accommodation provided under Part VI of the 1999 Act.
685. Subsection (6) allows the Secretary of State, by order (subject to the affirmative resolution procedure), to repeal, modify or disapply (to any extent) the provision that support by virtue of clause 119(3) may not be provided wholly or mainly by way of cash unless the Secretary of State thinks it appropriate because of exceptional circumstances.
686. Subsection (7) provides that an order under section 10 of the Human Rights Act 1998 (by which a Minister of the Crown may by order make amendments to legislation which has been declared to be incompatible with a Convention right) which amends a provision mentioned in clause 119(6) may amend or repeal that subsection.
687. This clause explains when designation comes to an end and the impact this has on support.
688. Subsection (1) lists the events which cause designation to lapse. These include where a person: (a) is granted leave to enter or remain in the United Kingdom, (b) is notified by the Secretary of State or an immigration officer of a right of residence in the United Kingdom by virtue of the Community treaties, (c) leaves the United Kingdom or (d) is made the subject of a deportation order under section 5 of the Immigration Act 1971.
689. Subsection (2) makes clear that support may not be provided by virtue of clause 119 after designation lapses, subject to the exceptions set out in subsections (3) and (4). Subsection (3)(Exception 1) allows that if designation lapses under subsection (1)(a) or (b), support may be provided in respect of a period which begins when the designation lapses and ends on a date determined in accordance with an order of the Secretary of State (subject to the negative resolution procedure). Subsection (4) (Exception 2) specifies that if designation lapses under subsection (1)(d), support may be provided in respect of any period during which an appeal against the deportation order may be brought, any period during which an appeal against the deportation order is pending, and after an appeal ceases to be pending, such period as the Secretary of State may specify by order (subject to the negative resolution procedure).
690. This clause defines other terms as they are used in this Part of the Bill, in particular, "family" and "right of abode in the United Kingdom". It also provides that a reference in an enactment to the Immigration Acts includes a reference to clauses 115 to 121.
691. This clause makes provision in connection with the various powers under the Bill to make orders or regulations. The affirmative resolution procedure applies to instruments made under the powers listed in subsection (3). The effect of subsection (4) is that all other powers are subject to the negative resolution procedure, except for powers listed in that subsection (namely the powers to make commencement orders under clause 128, to make an order under paragraph 25(5) of Schedule 1 (power to specify the description of a person responsible for monitoring an electronic monitoring requirement attached to a YRO), and to make an Order in Council under paragraph 9 of Part 2 of Schedule 15 (power to extend certain provisions of the Customs and Excise Management Act 1979 to the Channel Islands, the Isle of Man or any British overseas territory)) where no parliamentary procedure applies. Subsection (2) provides that any power under the Bill to make orders or regulations includes a power to make provision generally or only for specified cases or circumstance and to make different provision for different cases, circumstances or areas. This subsection also enables orders and regulations to make incidental, supplemental, consequential, transitional, transitory or saving provisions.
692. This clause enables the Secretary of State by order to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of the Bill. It is a power to make consequential provisions for those purposes at any time, including amendments to primary and secondary legislation. The affirmative resolution procedure will apply to any order which amends or repeals primary legislation. The clause also introduces Schedules 21 (minor and consequential amendments) and 22 (transitory provisions).
693. Paragraph 1 amends section 81(3) of the Magistrates' Court Act 1980 to ensure that the court cannot impose a youth default order unless the court has inquired into the defaulter's means in his presence on at least one occasion since the conviction.
694. Paragraph 2(4) amends Schedule 31 to the 2003 Act, which operates in conjunction with section 300 of that Act, as amended by clause 24. Section 300, as amended, gives a court which has the power to commit an offender to prison for fine default the alternative of imposing a default order with an unpaid work requirement, a curfew requirement or an attendance centre requirement. Schedule 31 modifies the provisions governing the length of the unpaid work and curfew requirements of community orders set out in sections 199 and 204 of the 2003 Act, respectively. It sets out in tabular form the maximum periods of unpaid work or curfew which may be imposed corresponding to the amount of the sum in default.
695. Paragraph 2(4) amends Schedule 31 to make similar provision for default orders with attendance centre requirements. The attendance centre requirement of a community order is governed by section 214 of the 2003 Act. That provision is modified so that the minimum number of hours at an attendance centre to which an offender may be made subject under a default order remains at 12, but a table sets the maximum number of hours corresponding to the sum in default.
696. Paragraph 3 ensures that section 19XA(1) of the Wildlife and Countryside Act 1981 (constables' powers in connection with samples) correctly refers to constables' powers of entry in section 19 of that Act.
697. Paragraph 4 makes a consequential amendment to section 37B of PACE so that where a young offender aged 16 or 17 is referred by the police to a prosecutor for a decision on charging, the prosecutor may decide whether or not that person should be given a youth conditional caution.
698. Paragraph 5 corrects an amendment made in error to section 160(1) of the Criminal Justice Act 1988 by the Sexual Offences Act 2003.
699. Paragraph 6 makes a consequential amendment to the Protection of Children (Northern Ireland) Order 1978 to take account of the revised definition of a photograph in clause 69.
700. Paragraph 7(2) amends section 44 of the Criminal Justice Act 1991 to provide that the definition of "liable to removal from the United Kingdom" applies to extended sentence prisoners. This is required as a result of clause 19(6), which removes exclusions to the early removal scheme and which means that extended sentence prisoners may now be eligible for early removal under the scheme.
701. Paragraph 7(3) amends section 46 of the Criminal Justice Act 1991 to provide that the definition of "liable to removal from the United Kingdom" applies to sections 46A, 46ZA and 46B, which set out the early removal scheme.
702. Paragraph 8 amends section 38 of the 1998 Act to extend the youth justice services provided by Youth Offending Teams to include the provision of assistance to relevant prosecutors for the purpose of determining whether a youth conditional caution should be given to an offender, and the supervision and rehabilitation of offenders who have been given a youth conditional caution.
703. Paragraph 9 amends section 19(4) of the Powers of Criminal Courts (Sentencing) Act 2000 to prevent a court making an order under section 1(2A) of the Street Offences Act 1959 (inserted by clause 72) alongside a referral order.
704. Paragraph 10 amends section 1 of the Criminal Justice and Court Services Act 2000 to remove the reference to authorised persons so that assistance can be given to prosecutors (as well as authorised persons) in determining whether youth conditional cautions should be given and which conditions to attach to youth conditional cautions.
705. Paragraph 11 repeals subsection (1)(c) of section 36 of the Police Reform Act 2002. This subsection allowed regulations to include inferences to be drawn from a failure to mention a fact when questioned or charged.
706. Paragraph 12 amends the definition of "cautioned" in section 133(1) of the Sexual Offences Act 2003 to remove reference to a caution having been given by a police officer. This will ensure that conditional cautions, which may be given by persons other than a police officer, are covered by the definition of cautions for the purposes of that Act.
707. Paragraphs 14 and 16 amend the 2003 Act to remove details about the payment of financial penalties as a result of a conditional caution from the Act. They will be included in the Code of Practice.
708. Paragraphs 15 amend the 2003 Act so that a relevant prosecutor may, with consent, add or omit a condition following breach of the original condition under the conditional cautions scheme.
709. Paragraph 18 ensures that where enforcement powers for wildlife inspectors contained in the Wildlife and Countryside Act 1981 are extended to other wildlife legislation, including penalties for offences in relation to those powers, the offences themselves are also extended.
710. Paragraph 19 corrects two minor errors in the Police and Justice Act 2006.
711. Paragraph 20 amends section 1 of the Offender Management Act 2007 to remove the reference to authorised persons so that assistance can be given to anyone able to issue a conditional caution and to assist them with which conditions to attach to conditional cautions.
712. This clause introduces Schedule 23 (repeals and revocations).
713. This clause authorises out of money provided by Parliament any expenditure incurred by a Minister of the Crown under the Bill. It also authorises any additional expenditure incurred under any other Acts, where that additional expenditure results from the Bill.
714. This clause sets out the extent of the provisions of the Bill. This is detailed in paragraphs 66 to 71 above.
715. This clause provides for commencement. The provisions mentioned in paragraph 717 and 718 below will come into force either on Royal Assent or 2 months after Royal Assent. The other provisions of the Bill are, with one exception, to be brought into force by means of orders made by the Secretary of State or the Lord Chancellor. The exception is clause 107 and Schedule 18 (nuisance or disturbance on HSS premises) which will be brought into force by order made by statutory rule by the Northern Ireland Department of Health, Social Services and Public Safety (subsection (4) read with clause 123(5)).
716. This clause sets out the short title of the Bill.
717. The following provisions of the Bill will come into force on Royal Assent:
718. The following provisions of the Bill will come into force two months after Royal Assent:
719. All other provisions will be brought into force by means of commencement orders.
720. The net effect of the Bill for the public sector (principally Her Majesty's Courts Service (HMCS), the Legal Services Commission (LSC), the National Offender Management Service (NOMS), the Crown Prosecution Service and police and local authorities) is estimated to be savings of some £14.5M/£15.5M/£15.4M in the financial years 2008-2009, 2009-2010 and 2010-2011 respectively. These figures are based on a number of assumptions about implementation which are subject to review.
721. In addition to the net savings identified above, the provisions in the Bill once fully implemented will result in a net reduction of up to 1383 in the requirement for prison places. The estimated impact on the prison population of individual provisions in the Bill is:
722. The main financial implications of the Bill for the public sector lie in the following areas.
|© Parliamentary copyright 2007||Prepared: 8 November 2007|