|
Lords Amendments 169 and 287 to 295
61. These amendments relate to the provisions of the Bill concerning disciplinary proceedings and appeals in respect of the conduct of police officers, civilians employed by the police and Ministry of Defence police personnel. The detailed provisions regarding rights to legal representation and appeals would appear in secondary legislation. Amendments 287 to 290 are designed to ensure that the first exercise of these powers would attract the affirmative procedure (as recommended by the Delegated Powers and Regulatory Reform Committee in their 4th report of session 2007/2008). However, as more than one set of regulations may be made using these powers when the new disciplinary procedures are first brought into force, it would not be possible simply to refer to the "first" exercise of the powers. Instead, the amendments would have the effect that, where more than one set of regulations is made at the same time using the power under section 84 of the Police Act 1996 (or section 4 of the Ministry of Defence Police Act 1987) to make provision about a person's entitlement to representation at disciplinary proceedings and no regulations exercising this power have been made previously following the commencement of this Act, all the sets of regulations must be made using the affirmative resolution procedure. Thereafter, the negative resolution procedure would apply.
62. Amendments 291 and 292 would allow the Secretary of State to specify in regulations who, apart from a person's legal representative, may make representations to the Independent Police Complaints Commission on behalf of a person under investigation.
63. Amendment 293 would provide that new paragraphs 19A to D, to be inserted into Schedule 3 to the Police Reform Act 2002 by paragraph 3 of Schedule 33 to the Bill, only apply to investigations involving police officers and special constables, and not to police staff.
64. Amendment 294 and 295 would insert into the Police Reform Act 2002 definitions of 'gross misconduct' and 'misconduct', which are terms used in the new police disciplinary arrangements, and would allow for the 'Standards of Professional Behaviour' expected of police officers to be prescribed by the Secretary of State in regulations. These amendments respond to a recommendation by the Delegated Powers and Regulatory Reform Committee.
Lords Amendment 170
65. This amendment would narrow the prohibition on the inducement of industrial action by prison officers by changing the definition of industrial action. The new wording would explicitly link the restriction on industrial action short of withdrawal of services to safety concerns. This amendment follows a recommendation from the Joint Committee on Human Rights and improves the wording of a previous amendment tabled at Lords report stage.
Lords Amendments 171 and 195
66. These amendments would extend the operation of the statutory restrictions on industrial action by prison officers to public sector prisons in Scotland. Previously these provisions covered public sector prisons in England, Wales and Northern Ireland and private sector prisons across the UK (including Scotland). The prohibition would come into force on Royal Assent except for public sector prison officers in Scotland, where it would come into force by commencement order.
Lords Amendment 172
67. Clause 190 gives power to the Secretary of State to suspend or later revive the operation of section 127 of the Criminal Justice and Public Order Act 1994 (inducements to prison officers to withhold services or breach discipline) by order. This amendment would provide that the order is subject to the affirmative procedure.
*Lords Amendment 173
68. This amendment would make further provision for parliamentary scrutiny of police and prison service pay. Under the new clause, regulations made under section 62 of the Police Act 1996 which do not follow the recommendations of the Police Negotiating Board and under sections 128 of the Criminal Justice and Public Order Act which do not follow the recommendations of the Prison Service Pay Review Board would be subject to the affirmative resolution procedure. However, any such regulations would only be subject to approval by the House of Commons.
Lords Amendments 174 to 176 and 296
69. These amendments are intended to clarify the effect of clause 191 (Disclosure of information about convictions etc of child sex offenders to members of the public). Amendments 174 and 175 would remove the phrase "children generally" in new section 327A of the Criminal Justice Act 2003 and replace it with wording intended to make clear that the MAPPA authorities must identify a risk to a particular child or children or a particular group of children, such as those who frequent a particular playground, even if the children forming part of that group are not all individually identifiable.
70. Amendment 176 would remove new section 327A(4)(b) which provides that the presumption to disclose to a member of the public can arise whether or not the MAPPA responsible authority has reasonable cause to believe that the risk is posed to a member of the recipient's family. The MAPPA responsible authorities already disclose to those who are not related to the child at risk, such as headteachers, landlords and leisure centre managers and it is intended that the presumption to disclose should apply to any member of the public where disclosure to them is necessary to protect the child, whatever their connection to the child. However, as the paragraph was only intended to clarify the position rather than encourage the authorities to introduce significantly more widespread disclosure than currently occurs, this paragraph would be removed from the Bill to put the matter beyond doubt.
71. Amendment 296 would make a technical amendment to Schedule 34, which inserts a new Schedule 34A into the Criminal Justice Act 2003. It would ensure that a service conviction for an attempted (or other secondary or inchoate) child sexual
offence is relevant for the purposes of defining a child sex offender, and determining what convictions should be disclosed under the presumption.
Lords Amendments 177 and 348
72. Amendment 177 would insert a new clause into the Bill to ensure that where a person has been identified as a victim of trafficking under the Council of Europe Convention Against Trafficking in Human Beings [CET 197], the Secretary of State is not obliged to make a deportation order under the automatic deportation provisions of the UK Borders Act 2007. This amendment is necessary to ensure the UK's compliance with the Council of Europe Convention on Action against Trafficking in Human Beings once it is ratified.
73. The amendment would not prevent a deportation order from being made against a recognised victim of trafficking who had committed a crime if the person's presence in the United Kingdom was deemed to be non-conducive to the public good. Such cases would continue to be dealt with on a case by case basis under the deportation provisions set out in the Immigration Act 1971. Amendment 348 amends the long title of the Bill.
Lords Amendments 178, 179 and 183
74. The Bill as it stands does not make provision for a single statutory instrument to be made combining provisions attracting the negative procedure and provisions attracting the affirmative procedure.
75. These amendments would make clear that such a statutory instrument covering multiple provisions requiring different procedures is permissible. However in these circumstances, the entire statutory instrument would require the affirmative procedure.
Lords Amendments 181, 132 and 332
76. These amendments would be minor consequential amendments relating to youth conditional cautions.
Lords Amendments 185 and 192
77. These technical amendments would ensure that any consequential amendments that need to be made to other enactments can be extended to the Isle of Man and British Overseas Territories in appropriate cases.
Lords Amendments 186 and 193
78. These amendments would clarify the position with regard to amendments to criminal legislation applied for the purposes of service law.
Lords Amendment 207
79. This amendment would ensure that the reference to a detention and training order in paragraph 30(2) of Schedule 1 would include the equivalent order under the
Armed Forces Act 2006 (where there is a power for service courts to make a detention and training order which essentially replicates the civilian equivalent).
Lords Amendments 208, 216, 217, 228, 337 and 338
80. Amendment 208 would provide that the minimum time limit for a youth rehabilitation order with intensive supervision and surveillance should be 6 months. This reflects current practice for the Intensive Supervision and Surveillance Programme which is a programme attached to a community sentence providing the most rigorous community penalty under which the young offender is subject to a curfew and electronic monitoring combined with supervision and interventions and lasts for 6 months. Amendments 216 and 217 would provide that a refusal of any treatment required by a youth rehabilitation order which imposes an intoxicating substance treatment requirement is not to be treated as a breach of the order. Amendment 228 would remove the lower age limit for pre sentence drug testing. Amendments 228, 337 and 338 would be consequential to these changes.
Lords Amendments 212 to 215
81. These amendments relate to the process for dealing with breaches of youth rehabilitation orders. Where there have been three breaches of a youth rehabilitation orders in a 12 month period, the Bill required the responsible officer to cause an information to be laid before a justice of the peace. Amendments 212 and 213 would allow for such breach proceedings to be stayed by the responsible officer in exceptional circumstances. This brings the breach process into line with the National Standards for Youth Justice Services (2004) relating to breaches of youth community orders. Amendments 214 and 215 would adjust the powers of the magistrates'courts and Crown Courts when dealing with a breach of youth rehabilitation orders. They would remove the court's duty to take specified action when dealing with the breach. This would give the court the power to take no formal action if it considered this appropriate.
Lords Amendments 229 and 230
82. These amendments would impose an additional requirement on the courts when passing a custodial sentence on an offender aged under 18. At present a court is required, when imposing a discretionary custodial sentence, to explain that in accordance with section 152(2) of the Criminal Justice Act 2003, it is of the opinion that the offence and one or more offences associated with it are so serious that neither a fine alone nor a community sentence can be justified for the offence. The court must also explain why it is of that opinion. The additional requirement imposed by these amendments would be that, when passing a discretionary custodial sentence on an offender under the age of 18, the court must also include a statement that it is of the opinion that the imposition of a youth rehabilitation order with intensive supervision and surveillance or fostering cannot be justified, and why it is of that opinion.
Lords Amendment 237
83. This Amendment would simply correct a numbering error in order to ensure that the Schedules to the Bill would appear in the correct order.
Lords Amendments 238 to 259 and 261 to 262
84. These amendments would amend Schedule 6 so as to add murder and certain inchoate offences and offences of aiding and abetting to the list in the new Schedule 15A to the Criminal Justice Act 2003.
85. The effect would be to give courts the discretion to impose a public protection sentence where the offender had a previous conviction for a grave inchoate offence (and the other conditions for the imposition of a public protection sentence are met).
Lords Amendment 260
86. This amendment would make a minor amendment to Schedule 5 to the Bill, which inserts the new Schedule 15A to the Criminal Justice Act 2003.
87. Paragraph 42 of the new Schedule 15A to the 2003 Act (inserted by Schedule 5 to the Bill) refers to the Firearms (Northern Ireland) Order 1981. The reference should be to the 2004 Order. This amendment would correct this minor drafting error.
Lords Amendment 279
88. This amendment would ensure that all young offenders under 17 would have an appropriate adult present when the explanation and warning regarding the legal effect of a youth conditional caution is given.
Lords Amendments 280, 281 and 282
89. These amendments would ensure that when the first Code of Practice in respect of youth conditional cautions is presented to Parliament it must be by affirmative resolution. Any revision of the Code would be brought into force by negative resolution.
*Lords Amendment 285
90. Amendment 285 would provide for the avoidance of doubt that merely discussing or criticising sexual conduct or practices, or urging people to refrain from or modify such conduct or practices, is not enough by itself to constitute an offence under Part 3A of the Public Order Act 1986 of stirring up hatred on the grounds of sexual orientation.
Lords Amendment 286
91. This amendment to Schedule 30 would mean that practitioners considering applying for a premises closure order under Part 1A of the Anti-social Behaviour Act 2003 (cases where there has been persistent disorder or nuisance) were required to have regard to any statutory guidance issued by the Secretary of State.
Lords Amendments 299, 300, 302, 303, 307, 320 to 322, 324 to 326, 340 and 342
92. These remaining amendments would make equivalent provision to certain aspects of Parts 2 and 3 of the Bill in armed forces legislation.
93. Amendment 299 would make equivalent provision to those in Schedule 8 to the Bill on Criminal Appeals relating to powers of the court to substitute different sentences, interim hospital orders, evidence, appeals against procedural directions and detention of the accused pending appeal to the Supreme Court. Amendment 300 would make equivalent provision to provisions in clause 20 relating to consecutive terms of imprisonment.
94. Amendment 302 would make equivalent provision to provisions in clauses 13 to 18 of the Bill relating to Indeterminate Sentences for Public Protection and Extended Sentences for Public Protection. Amendment 303 would make equivalent provision to clause 11 and 12 restricting the use of community sentences and community orders. Amendment 307 would make equivalent provision to clause 38 relating to the penalty for breach of a community order.
95. Amendments 320, 321 and 322 would make minor amendments to the Sexual Offences Act 2003 by including reference to service custody. Amendment 340 would make repeals consequential on the new service law provisions replicating aspects of Part 2 of the Bill. Amendment 342 would make repeals consequential on the new service law provisions replicating aspects of Part 3 of the Bill.
Lords Amendments 310, 312 and 317
96. These amendments would make a number of minor and consequential amendments to existing legislation and to clauses contained in this Bill. They amend the position for prisoners repatriated to the United Kingdom under the Repatriation of Prisoners Act 1984 insofar as they are to be treated in the same way as domestic prisoners in terms of their release from custody and can therefore benefit from the new release, recall and re-release provisions contained in the Bill.
97. The amendments would also ensure that those prisoners who transfer from England and Wales to another UK jurisdiction on a restricted transfer under the provisions of the Crime (Sentences) Act 1997 would be subject to the new release and recall arrangements.
Lords Amendments 311 and 313 to 315
98. These amendments would be minor drafting amendments consequential on the provisions in clauses 143 to 146 relating to the repatriation of prisoners.
Lords Amendment 316
99. The purpose of this amendment is to ensure that on devolution of criminal justice functions in Northern Ireland superintendence of the work of the Serious Fraud Office in Northern Ireland is transferred from the new locally-appointed Attorney
General for Northern Ireland to the Westminster-based Advocate General for Northern Ireland.
100. The Justice (Northern Ireland) Act 2002, in preparation for the devolution of criminal justice matters in Northern Ireland, provided for the appointment of an Advocate General for Northern Ireland and the removal of the Attorney General's responsibilities for prosecutorial matters either by delegating them to the DPP for Northern Ireland or by transferring them to the Advocate General. The 2002 Act failed to make a consequential amendment to the provisions of the Criminal Justice Act 1987 in so far as they relate to the powers of the Attorney General in respect of the Serious Fraud Office.
Lords Amendments 325 and 326
101. These amendments would make consequential amendments to the Armed Forces Act 2006 as a result of amendments made by Part 1 of the Bill.
Lords Amendments 328 and 329
102. These amendments would ensure that repatriated prisoners who have committed violent or sexual offences will be treated in the same way under the new release and recall provisions as domestic prisoners who have committed violent or sexual offences.
FINANCIAL EFFECTS OF THE LORDS AMENDMENTS
103. Amendments 9, 301 and 327 would have the effect of cancelling out the expected saving of an estimated 400 prison places, which would result if clause 10 (abolition of the use of suspended sentence for summary offences) were part of the Bill.
104. When fully implemented the provision on compensation for miscarriages of justice, as amended in the House of Lords (amendments 92 to 95), would result in savings to the Ministry of Justice of about £1.75M each year. The original provisions in clause 111 were expected to result in savings of about £2.5 M each year. Similarly, the effect of these amendments would be to reduce the savings to the Ministry of Defence.
105. Amendment 173 in respect of police and prison service pay might have the effect of increasing public expenditure were the House of Commons not to approve a resolution of the type provided for in the amendment.
| 
