House of Lords - Explanatory Note
Criminal Justice And Court Services Bill - continued          House of Lords

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Clause 8: Support Services - Powers to contract out

55. This clause gives the Home Secretary the power to make an order to contract out work undertaken by a local board. This power may be exercised in relation to one or more parts of a board's responsibilities. In contrast to the contracting out power in clause 5, this clause is designed to enable the contracting out of support services which are common to all boards such as the provision of information technology and the administration of the payroll.

56. This power would be available for use where greater efficiency or better value for money could be achieved; for instance if a particular activity could be managed more cost effectively by organising it on a national or regional basis. Arrangements for contracting out all the functions of a board are dealt with under clause 10.

Clause 9: Approved hostels

57. This clause gives the Secretary of State the power to approve the suitability and building of hostels and other premises for the accommodation of the groups of people described in clause 5(3), to make regulations for the management and inspection of those premises, and to make payments for the maintenance or improvement of such premises.

Clause 10: Default powers

58. Clause 10 gives the Secretary of State the power to make a management order which can modify the composition of a local board by?

  • removing any or all of the chair, the chief officer and other board members;

  • replacing them in accordance with an alternative arrangement, i.e. a contract made with a private, voluntary or public sector organisation.

59. Although the composition of the board would change in such circumstances, the board as a legal entity would remain the same with all its duties and responsibilities under the Bill.

60. It is intended that this power would only be used as a last resort where the Secretary of State concluded that a board is failing to perform its functions to a satisfactory standard, or where the board had made arrangements which did not offer good value for money, and the normal processes of performance management had been unable to achieve the required improvement.

Chapter II : Children and Family Court Advisory and Support Service (CAFCASS)

Clause 11: Establishment of CAFCASS

61. Clause 11 makes a general provision for the creation of the new Children and Family Court Advisory and Support Service (CAFCASS), as a body corporate.

Clause 12: The principal functions of CAFCASS

62. Clause 12 sets out the functions of CAFCASS, which are described in paragraph 25 of these notes. Subsection (3) provides for regulations for grants to be paid for the furthering of the performance of any functions of CAFCASS.

Clause 13: Other powers of CAFCASS

63. Clause 13 sets out the other powers that CAFCASS may use to perform its functions, such as to commission or assist the conduct of research. Subsection (1) will allow CAFCASS to enter into arrangements with voluntary and other organisations to contract out some of its work, provided that it is satisfied that the work will be done efficiently, to the required standard and cost-effectively. Subsection (4) also provides that CAFCASS may enter into arrangements with individuals including self-employed people.

Clause 14: Provision of staff or services to other organisations

64. Clause 14 gives CAFCASS the power to provide services to other organisations.

Clause 15: Right to conduct litigation and right of audience

65. Clause 15 changes the position on litigation and cross-examination. It grants CAFCASS officers power to conduct litigation on the part of the child. It also grants officers, authorised by the service, rights of audience in the Magistrates' courts and county courts. However it does not mean that CAFCASS will litigate all cases. This clause aims to ensure that CAFCASS will have the same powers as the Official Solicitor currently has with regard to litigation and rights of audience.

Clause 16: Cross-examination of officers of the Service

66. Clause 16 sets out that all CAFCASS officers may be subject to cross-examination, except when exercising the rights given in clause 15.

Clause 17: Inspection

67. Clause 17 amends section 62 of the Justices of the Peace Act 1997 by inserting a new section 3A in order to extend the remit of the Magistrates' Court Inspectorate to include inspecting of CAFCASS to monitor and report on its activities. A new subsection (2A) of section 63 of the 1997 Act sets out a general right of inspection. It consists of a right of entry to any premises occupied by the Service and also a right to inspect and take copies of any records kept by the Service relating to the performance of its function.

Chapter III : General

Clause 19: Property Transfers

68. This clause provides the power for either the Secretary of State or the Lord Chancellor to set up a scheme to transfer to the Crown property and liabilities from probation committees, the Receiver for the Metropolitan Police District (who owns property on behalf of the Inner London Probation Service), local authorities and the Official Solicitor. The property may then be transferred from the Crown to a new organisation. This provision will make possible the central ownership and management, by the Secretary of State, of the current probation service estate which amounts to approximately 1,100 buildings. It will also allow the transfer of elements of the estate related to Family Court Welfare Officers to CAFCASS. It will also enable the transfer to CAFCASS of property currently owned by local authorities, probation committees and the Official Solicitor. Subsections (2) and (3) provide that property transferring to CAFCASS will be exempted from Stamp Duty.

Clauses 20 and 21: Transfer of staff and effect of transfer

69. Clauses 20 and 21 allow the Secretary of State and the Lord Chancellor to make schemes for transferring staff into the new Services. These schemes would cover the transfer of staff from a probation committee to a local board or to CAFCASS, and the transfer of relevant local authority staff and staff of the official solicitor's office to CAFCASS. The clauses contain provisions which give staff the right to maintain their terms and conditions of service when they transfer to their new employers. Clause 20(2) provides for chief probation officers currently employed by probation committees to be appointed as chief officers of local boards.

Clause 22: Effect of transfer of chief probation officers

70. Clause 22 makes provision for the effect of the transfer of people currently employed as chief probation officers into post-holders appointed as chief officers in area boards. It gives those who are appointed the right to include their previous service as a chief probation officer as a period of continuous employment and to transfer their terms and conditions of employment, so far as they are appropriate to the new post. Paragraph 3(5) of Schedule 1 gives the chief officer the same employment rights as he would have under the Employment Rights Act 1996 as if he were in Crown Employment, for instance rights against unfair dismissal. Under clause 22(7), chief probation officers who are not appointed as chief officers are deemed to have been dismissed.

Clause 23: Transfer of staff in consequence of arrangements under Part I

71. Clause 23 allows the 'appropriate Minister', i.e. the Secretary of State in the case of the probation service or the Lord Chancellor in relation to CAFCASS, to set up a scheme for the transfer of staff who, at a future date, move from employment by a local probation board or CAFCASS to a new employer because the work they do has been contracted out under the provisions in clauses 5, 8 or 13 of the Bill. It gives staff the right to maintain their terms and conditions of service when they transfer to the new employer.

Part II: Protection of Children

Clauses 25 and 26: Meaning of "offence against a child"

72. Clause 25 establishes the circumstances under which an individual will be deemed to have committed an offence against a child. Subsection (1) sets out those circumstances, according to the list of offences and circumstances in Schedule 4. Subsection (2) allows the Secretary of State to alter Schedule 4, subject to the agreement of Parliament by affirmative resolution order. The Secretary of State can thereby ensure that the legislation remains comprehensive in scope, covering all (and potentially new) circumstances in which an individual commits a serious offence against a child.

73. Clause 26 ensures that an individual charged with or convicted of an armed forces offence equivalent to an offence against a child is treated as an individual under clause 25, and that members of the armed forces serving overseas are also caught by the legislation.

Clauses 27, 28 and 29: Disqualification from working with children

74. Clause 27 sets out the conditions under which a court is required to make an order disqualifying an adult from working with children. Subsections (5) and (6) state the circumstances when a court might not make such an order, and require a record of the reasons why no such order was made. Such disqualification orders are not available in a Magistrates' Court.

75. Clause 28 makes similar provisions to those in clause 27, but for juveniles (those aged under 18 at the time when they commit the offence). However, subsection (5) of clause 27 allows the court not to make an order for an adult only when it is satisfied that further offences against children are unlikely. In contrast, in the case of a juvenile - subsection (4) of clause 28 - the court may make an order only if they deem it likely that the juvenile will re-offend against children. An adult must therefore be disqualified unless the court is satisfied that he is unlikely to re-offend, whereas a court must assume that a juvenile will not re-offend, unless they are satisfied that there is sufficient evidence to the contrary, in which case it is required to disqualify the juvenile.

76. Clause 29 establishes the meaning of a 'qualifying sentence', a 'relevant order', and other key phrases used in clauses 27 and 28. Subsection (4) also clarifies the issue of the determination of an offender's age.

Clause 30: Appeals

77. Clause 30 provides for appeal against the disqualification order.

Clause 31: Review of disqualification

78. Clause 31 entitles an individual to a review of the disqualification order by a Tribunal set up under section 9 of, and the Schedule to, the Protection of Children Act 1999, as set out in Schedule 6. The provisions will also apply to those banned by the Secretary of State.

Clause 32: Conditions for application for review

79. Clause 32 sets out the circumstances and conditions under which a disqualified individual might apply to the Tribunal to have the disqualification lifted. Subsections (3), (4) and (6) set out how long either an adult or a juvenile who is disqualified must wait (ten and five years respectively) before he can apply to the Tribunal for the disqualification to be lifted. Subsections (3)(b) and (4)(b) require that the same period must pass after an unsuccessful application for review, before a further application can be made.

80. Subsection (5) of clause 32 requires that the individual first prove to the Tribunal that his circumstances have changed sufficiently to warrant a review of the disqualification order. Thus someone who has successfully reared his own children, or once committed an act of violence towards a child when an alcoholic but can now demonstrate he is free of this addiction, might be entitled to a review. The individual must then demonstrate to the Tribunal that this change of circumstances is such that he is no longer a risk to children, and therefore need no longer be subject to disqualification from working with children, before the Tribunal can lift the disqualification.

Clauses 33 and 34: Work in regulated positions

81. Clause 33 provides for the offence of seeking, offering, accepting, or continuing to, work with children while under a disqualification order. An individual commits an offence if he knowingly seeks etc. to work with children in a regulated position while disqualified:

  • by inclusion (other than provisionally) on the list held by the Department of Health, of those considered unsuitable to work with children, under the Protection of Children Act 1999;

  • by inclusion on 'List 99', on the grounds of not being a fit person to be employed as a teacher or in certain other areas of education under the Education Reform Act 1988, as amended by the Protection of Children Act 1999;

  • by inclusion on any list kept by the Secretary of State or National Assembly of Wales of persons disqualified under section 470 or 471 of the Education Act 1996 (as being amended by the Care Standards Bill presently before Parliament) on grounds that they are unsuitable to work with children;

  • by a disqualification order made under this part.

82. An individual also commits an offence if he knowingly offers work in a regulated position to a disqualified person. This is intended to cover the individual who knows someone is disqualified, but nevertheless offers him work in a regulated position.

83. Subsection (3) provides the defence for an individual who seeks to work with children that he neither knew, nor could be reasonably expected to know, that he was himself disqualified from such work. The provision 'be reasonably expected to know' is intended to ensure that an individual cannot escape liability by, for example, moving house to prevent the notification of a disqualification by the Secretary of State being served on him.

84. Subsection (6) sets out the penalty that will follow if an individual is convicted of either offence.

85. Clause 34 provides a definition of 'working with children' that encompasses all the positions and roles from which those subject to disqualification will be excluded. The definition is deliberately wide-ranging, in order to provide protection for children across as broad an area as possible. However it seeks to ensure that casual contact with children which does not form part of the normal duties of the position or where there is no element of care involved (for example, the supermarket assistant) is excluded, except in some particular areas identified in the Bill. Under clause 37 a child is defined as a person under 18. The only exception to this is in subsection (1)(e) of clause 34 in relation to children in work where the age limit is under 16. This is intended to ensure that those who, for example, supervise children who have left school and are in regular work, are not covered by the definition. Subsection (1) of clause 34 identifies the eight main areas of 'regulated positions' to be covered by the disqualification. Subsections (2) to (12) of clause 34 go on to clarify some of these areas:

  • subsection (2) clarifies subsection (1)(a) by defining the nature of the establishment in which the regulated position is held; these are the areas of work in which it is considered right that all members of staff, whether carers or ancillary staff, should be included;

  • subsection (3) clarifies subsection (1)(b) by ensuring that it does not apply to any parts of the premises where children are not looked after, or at time when children are not present. This prevents, for example, the need to check workers in another part of a building in which a holiday crSche is held, or the cleaners who clean the premises when the children are not present;

  • subsections (4) and (5) clarify subsections (1)(c) and (1)(d) by ensuring that they do not apply where the contact is made in the course of a child's employment;

  • subsection (6) defines subsection (1)(g), listing positions or roles not otherwise caught by the definition, such as members of a school's governing body and charitable trustees; these positions are ones which may provide privileged access to children and imply that the individual concerned is a person who can be properly trusted with children, and are therefore included even if contact with children is not a regular part of the position. Subsection (7) further qualifies subsection (6) for the purposes of applying these measures to Northern Ireland;

  • subsection (8) clarifies subsection (1)(h) by explaining what is meant by the supervision or management of an individual; and

  • subsections (9) to (12) provide further definition and clarification where necessary.

86. Subsection (13) gives the Secretary of State power to amend the definition of a 'regulated position' by affirmative resolution order, should it become apparent that - perhaps because new positions are created or developed - there are positions or roles not covered by this legislation that should be caught.

Clause 35: Disqualification in Scotland or Northern Ireland

87. Clause 35 provides a power for the Secretary of State to ensure that individuals who, under the law of Scotland or Northern Ireland are subject to a prohibition or disqualification which corresponds to the means of disqualification provided for by clause 33, are subject to this Part i.e. disqualified from working with children in England and Wales. Statutory provisions are not yet in place in Scotland or Northern Ireland. This clause is intended to allow the protections provided by the integrated system to be available on a UK basis in due course.

Clause 36: Rehabilitation of offenders

88. Clause 36 is designed to ensure that an offender disqualified from working with children under this part is not unfairly disadvantaged in other spheres of work. This clause provides that a disqualification order is not considered a sentence for the purposes of the Rehabilitation of Offenders Act 1974. It will prevent the existence of the disqualification order stopping the normal rehabilitation period for the sentence it accompanies applying. However, information on such convictions and the disqualification order will be available to those able to ask exempted questions under Exceptions Orders made under the Rehabilitation of Offenders Act 1974.

Part III: Dealing with Offenders

Chapter I: Renaming certain community orders, new community orders, breach of community order, miscellaneous Clauses 38, 39 and 40: Renaming certain community orders

89. Clauses 38, 39 and 40 rename probation orders, community service orders and combination orders as community rehabilitation orders, community punishment orders and community punishment and rehabilitation orders respectively.

Clause 41: Exclusion orders

90. Clause 41 amends the Powers of Criminal Courts (Sentencing) Act 2000 to make provision for 'exclusion orders'. An exclusion order is similar in many respects to a 'curfew order'. However, whereas a curfew order requires an offender to remain at a specified place, an exclusion order prohibits an offender from entering a specified place or area for a specified period of not more than a year (three months for a juvenile). Different areas or places can be specified for different periods. An exclusion order must take account of the offender's religious beliefs, times of employment or education, and of any other community orders to which the offender is subject.

91. When making the exclusion order, the effect and possible consequences of the order, together with the court's power to review the order, must be explained to the offender in ordinary language.

92. Breach, revocation, and amendment of the exclusion order is provided for in the same way as for curfew orders (see also Schedule 6 below). The Secretary of State is empowered to make rules for the regulation of the monitoring regime of offenders subject to exclusion orders, and of the functions of the persons responsible for monitoring them. The Secretary of State may also make an order directing that the period of exclusion orders be changed, or may add to the list of activities with which the requirements of an order must not conflict.

Clause 42: Drug Abstinence Orders

93. Clause 42 defines a Drug Abstinence Order as requiring the offender to abstain from misusing specified Class A drugs and to undertake a drug test on instruction.

94. It gives the power to the courts to make a drug abstinence order where the offender is convicted of a trigger offence (see note on Schedule 5), or the court feels that Class A drug misuse caused or contributed to the offence. The offender must be aged 18 years and over and be dependent on, or have a propensity to misuse, specified Class A drugs.

95. The clause allows for the court to decide the length of the order, between a minimum of 6 months and a maximum of three years.

96. In addition to setting out the provisions as to the supervision of orders, the clause also sets out provisions for dealing with failures to comply with the requirements of such orders, under Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000.

97. The clause also provides the Secretary of State with an order making power to amend the minimum and maximum period of the drug abstinence order.

Clause 43: Pre-sentence drug testing

98. When the court is considering passing a community sentence, clause 43 provides powers to require a convicted offender, aged 18 and over, to undertake a drug test for specified Class A drugs.

Clause 44: Community Sentences: drug abstinence requirements

99. Clause 44 sets out drug abstinence requirements of community sentences. It amends section 42 of the Powers of Criminal Courts (Sentencing) Act 2000 in order to require the courts to include a drugs abstinence requirement where the offender:

  • is aged 18 or over;

  • is dependent on, or has a propensity to misuse specified Class A drugs; and

  • has committed a trigger offence (see note on Schedule 5).

100. If the offender has been charged with a non-trigger offence, the courts may include an abstinence requirement if the offender?

  • is aged 18 or over;

  • is dependent on, or has a propensity to misuse specified Class A drugs; and

  • the misuse by the offender of any specified class A drug caused or contributed to the offence.

101. Drug abstinence requirements may not be included where a community sentence already includes an abstinence requirement, or where a community order includes a Drug Treatment and Testing Order (DTTO) or a Drug Abstinence Order (DAO).

Clause 45: Community sentences: curfew requirements

102. Sub-paragraph (1) (of the new paragraph 7) makes provision for community rehabilitation orders to include a curfew requirement. Sub-paragraph (2) provides for a requirement that the offender remain at a particular place for between two and twelve hours a day, for a maximum period of six months. The order may specify different curfew addresses or different periods of curfew on different days.

103. Sub-paragraph (3) provides that, as with the curfew order, account must be taken of the offender's religious beliefs, times of employment or education and of any other community orders to which the offender is subject.

104. Sub-paragraph (4) states that a community rehabilitation order that includes a curfew requirement must include provision for a responsible officer who will monitor whether or not the offender complies with the curfew requirements. The responsible officer must be a person as described in an order made by the Secretary of State.

105. Sub-paragraph (5) prevents a court from imposing a curfew requirement to a community rehabilitation order or a community punishment and rehabilitation order, unless the Secretary of State has notified the court that the arrangements necessary for monitoring the offender's whereabouts are currently available in the area where the curfew address is situated. This will enable these provisions to be piloted.

106. Sub-paragraph (7) requires courts to obtain and consider information about the curfew address - which must include information about the attitude of other people likely to be affected by the offender's enforced presence there - before they impose a curfew requirement.

107. Sub-paragraphs (8) and (9) permit the Secretary of State to make rules/orders regulating the functions of the responsible officer, and to add to the list of restrictions that must - so far as is practicable - apply to a curfew requirement (such as not conflicting with the offender's working hours).

Clause 46: Community sentences: exclusion requirements

108. Clause 46 is similar to clause 45, except that it allows a court to include an exclusion requirement in a community rehabilitation order or a community punishment and rehabilitation order. It differs from clause 45 in that:

  • under sub-paragraphs (1) and (2), an exclusion requirement may last for no more than one year and may operate continuously, or for periods specified in the order, and may specify different places from which the offender is to be excluded for different periods;

  • there is no requirement for the court to obtain and consider information about the place proposed to be specified in the requirement, as the offender's presence will not be enforced in any place in a way that might affect other persons; and,

  • it is made clear that offenders may be excluded from an area as well as a particular place.

Clause 47: Community sentences: electronic monitoring of requirements

109. Clause 47 makes provision for a requirement for the electronic monitoring of any other requirement of a community order. This provision might be used to require an offender to register his attendance at a particular place, for example. Once again, these powers will not be available to a court until the Secretary of State has notified it of the availability of the powers

110. Subsections (3) and (4) make clear that, where the co-operation of a person other than the offender is required for electronic monitoring to take place, the requirement for electronic monitoring cannot be imposed without that person's consent.

111. Provision is made for making a person responsible for the monitoring, with a power for the Secretary of State to make rules for regulating both the electronic monitoring and the function of responsible persons.

112. Subsections (7) to (10) make clear the definition of the 'relevant area' in the various instances in which a community sentence might be electronically monitored.

Clause 48: Breach of community orders: warning and punishment

113. Subsection (2) specifies the community orders to which the warning scheme will apply, namely, curfew orders, exclusion orders, community rehabilitation orders, community punishment orders, community punishment and rehabilitation orders, and drug abstinence orders.

114. Subsection (3) places a duty on staff employed by local boards to issue a warning to an offender who has unacceptably failed to comply with the requirements of his order if the offender has not already been referred back to court for the failure. Where there is a second unacceptable failure to comply within 12 months, or six months in the case of a curfew order, the offender must be referred back to court for breach proceedings. The warning must be recorded. If two or more orders were imposed for the same offence, they will be considered as one order to which the warning scheme applies, i.e. that only one warning in total will be given in any 12 month period.

115. Subsection (4) requires a magistrates' court, unless there are exceptional circumstances, to impose a custodial sentence on an offender aged 18 or above if he is found to be in breach of a specified order. The maximum sentence will be three months unless the court takes the view that were it re-sentencing for the original offence it would impose a longer period of imprisonment. If so, the longer period will apply. Where the court finds the circumstances of the case to be exceptional, or where the breach involves an offender under the age of eighteen, then the existing discretionary sanctions available to the court will apply without the new presumption of imprisonment.

116. Subsection (5) places the same duty on the Crown Court.

117. Subsection (6) disapplies the warning and punishment measures to any failure to abstain from misusing specified Class A drugs.

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Prepared: 15 June 2000