Select Committee on Delegated Powers and Deregulation Twenty-Eighth Report



Supplementary Memorandum by the Home Office

1. This Memorandum identifies the new provisions which confer powers to make delegated legislation which the Government is seeking to introduce during the Committee stage in the House of Lords to the Criminal Justice and Court Services Bill. It explains in each case the purpose of the power, the reason why it is to be left to delegated legislation, and the nature and justification for any parliamentary procedures which apply.

2. We apologise for the fact that it has not yet been possible to table the amendments. Nor is it possible to provide a final draft of as yet. Amendments will be tabled as soon as practically possible. In the meantime, a working draft of the proposed new Schedule 4A is attached to this memorandum. This contains the proposed new delegated powers, marked in the text for ease of reference. While the draft is yet to be perfected, we hope that the substance of our intention is reasonably clear.

3. We apologise once more for the necessarily rushed drafting of this Memorandum. We will of course provide any specific clarification on request.

Outline and scope of the new provisions

4. The new provisions seek to tighten existing protections and create new protections against sexual and violent offenders. Parts of the Bill, in particular the child protection scheme which forms Part II of the Bill and the proposed extension of electronic monitoring in Part III Chapter I of the Bill, already contain measures which seek to increase such protections. But this is an area where there is scope for further work.

5. The Government has looked at this carefully over the summer, in particular following the tragic death of Sarah Payne and growing public concern on the need for more information on offenders who may pose a risk and greater protections against them. As a result, it is bringing forward a group of measures at this late stage in the Bill because this provides the opportunity to introduce such additional protections as soon as possible.

6. The proposed measures fall into three main categories.

  • The Government has accelerated some measures which were already under consideration. These are in particular some proposed changes to Part I of the Sex Offenders Act 1997 ("the 1997 Act") to tighten up its provisions. These are important safeguards which can be dealt with in advance of the major review of the Act announced earlier this year and now underway. These provisions apply to England, Wales and N.Ireland.
  • It has decided it would be appropriate to give statutory authority to some areas of risk management by the police and probation services and to provide a framework for guidance on the dissemination of information on arrangements for managing risk and other matters by these bodies to the public. It has also decided it would be appropriate to put the framework for victim consultation and notification in respect of the most serious sexual and violent offenders on a statutory basis. These provisions apply to England and Wales.
  • Finally it is introducing new proposals by way of amendment to Part I of the 1997 Act for a new sex offender restraining order to be available to senior courts in certain circumstances. These provisions apply to England and Wales with a power to extend them to N.Ireland.

The proposed new Delegated Powers in the Bill

7. There are 4 areas in the new provisions where delegated legislative powers are proposed. All concern proposed amendments to Part I of the 1997 Act and are to be found in the proposed new schedule 4A.

8. The proposed new delegated powers are all subject to paragraph 11(2)(8) of the new schedule which would allow each power to be exercised so as to make different provision for different purposes.

9. The first two proposed new delegated powers are in respect of the provisions to tighten up the registration requirements of the 1997 Act.

New Schedule 4A paragraph 4 (new subsection (6B))





10. Paragraph 3 (1) provides that any person making his initial notification of his address must do this in person at a police station in his local police area. This is provided by inserting a new subsection (5A) into section 2 of the 1997Act.

11. The proposed delegated power (inserted into section 2 of the 1997 Act) would allow the Secretary of State to provide for the particular police station or stations at which the registration must be made in any local police area. This is to allow the registration system to be tightened up if, in practice, this proves necessary.

12. The reason for dealing with this by delegated powers is twofold. First, stipulating the identity of a particular police station or stations is a matter of detail, not appropriate for primary legislation.

13. Second, until the new provisions are implemented it is not possible to forecast which, if any, areas will need such tighter regulation. The new provisions also allow for fingerprinting and photographing of offenders and the best arrangements for this may vary by area. In each case the administrative convenience and best practice for the police will need to be considered against the requirement on offenders of possibly a longer distance to travel if only a small number, or even a single, police station is designated in a local area for registration.

14. We believe this is an appropriate matter for delegated legislation. Since what is at issue is the detailed working out, if necessary, of a matter which Parliament will have approved in principle, we believe the negative resolution procedure is appropriate.

New Schedule 4A paragraph 5 (new subsection (6C))




15. This paragraph provides for any class of sex offenders subject to notification to notify the police before travel of their intention to travel if so required by regulations made by the Secretary of State.

16. This is an important new safeguard. It is needed both to help the police to enforce the 1997Act domestically by closing the loophole that they can legitimately 'disappear' when abroad. It is also needed to help prevent some sex offenders from travelling to commit further offences abroad with no means to keep track of them. We believe therefore that early action is needed to deal with these difficulties and that the present Bill provides a suitable opportunity for Parliament to take a clear view on it.

17. However this is a complex area. Sex offenders are not a homogenous group. They present different degrees and types of risk, and some, in particular juveniles, may require different or less stringent safeguards for public protection. In addition, foreign travel may differ in nature (holiday, business etc), duration and in the country of destination. For some classes of the most serious sex offenders, even a day trip abroad might need to require notification. For others, a longer period might be appropriate. Detailed discussions are needed with the police and others on the need for and practicalities of notification for different groups of sex offenders. Such detail needs to be worked out carefully and be subject to periodic variation.

18. Although Parliament will have approved the principle of such notification of foreign travel, we believe the detail is a matter on which it should be invited to take a definite view. This is because the actual working out of the requirement may affect different groups of sex offenders differently and place an additional burden on some of them. It is for this reason that we propose affirmative resolution procedure.

New Schedule 4(A) paragraph 9 (new subsection (5B))




19. The third proposed delegated power relates to a further tightening of the 1997 Act. This relates to the notification between authorities of the registration requirement of a sex offender leaving their charge.

20. Under section 2 of the 1997 Act, the onus is on the individual sex offender to meet the registration requirements. There is no intention to change this clear responsibility. However as a matter of good administration and as a strong additional safeguard, it is clearly important for the police to know when a sex offender subject to the requirement is released, on a temporary or permanent basis, into the community.

21. Such notification to the police by the relevant authorities at present almost invariably takes place. However given the importance attached to this, we consider the position would be strengthened by being put on a clear statutory basis. This should also help to clarify the propriety of the authorities passing on such information. This is an issue of good governance and proper law enforcement, ensuring that offenders with a statutory requirement to register cannot slip through the net and avoid detection.

22. In order to provide an effective chain of information, it is important that any authority which is responsible for a person's detention and release itself knows of his requirement to register. This means the requirement must not merely be to pass the information to the police on release. It needs also to cover the notification between authorities of such information if the sex offender moves from one institution to another.

23. The principle of such a requirement is clear. However it is important as a matter of good administration to ensure proper arrangements are in place before implementation. This will require consultation with authorities as to where the responsibility should lie, how the requirement can best be delivered within existing procedures and any new procedures necessary.

24. Because regulations made under this power will place no additional requirements upon individual subjects (instead regulating the practice of public authorities who are responsible for the detention of sex offenders), we believe that the negative resolution procedure would be appropriate.

New Schedule 4A Paragraph 11 (2)(new subsections(6)and(7)).





25. Finally, there is provision for delegated legislation to extend the new sex offender restraining order to N.Ireland.

26. The 1997 Act covers the UK as a whole. Since devolution, any changes which affect Scotland will be for the Scottish Parliament to consider. We are in close touch with Scottish Executive officials. Our aim is to keep the legislation in step as far as possible.

27. The amendments to the registration provisions and the notification by authorities to the police flow directly out of the existing provisions of the Act. They will therefore apply to Northern Ireland from the start.

28. In contrast, the proposed sex offender restraining order represents a new development within the 1997 Act. It reflects provisions in other legislation, in particular section 5 of the Protection from Harassment Act 1997 which allows courts to make restraining orders at point of sentence or when dealing with an offender in any other way. It also reflects the provisions for sex offender orders in sections 2 and 3 of the Crime and Disorder Act 1998. Both of these measures were extended to N.Ireland by order.

29. It has been agreed with the Northern Ireland Office that the extension of the new restraining order to Northern Ireland should be provided by way of an order-making power rather than directly on the face of the Bill. This will allow Northern Ireland policy makers to consider when and how such restraining should be available, taking into account the particular circumstances of that jurisdiction.

30. As the general nature of the new court power will have been debated during the passage of the Bill, negative resolution procedure would seem appropriate.

26 September 2000

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