Select Committee on Delegated Powers and Deregulation Twenty-Second Report


28 June 2000

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.




1. The bill transfers the Probation Service into the National Probation Service (NPS) for England and Wales and creates the Children and Family Court Advisory and Support Service (CAFCASS) to look after the interests of children in family court proceedings. The bill also introduces new powers to test suspects for drugs; extends electronic monitoring; establishes a scheme for identifying and banning unsuitable people from working with children; provides for DVLA driver records to be copied to the Police National Computer; enables courts to set tariffs in cases of detention during Her Majesty's pleasure; and makes a number of other changes to the criminal justice system.

2. The Home Office has supplied a Memorandum which it helpfully clarified in a supplementary memorandum and oral evidence to the Committee. All the oral and written evidence is printed in the Annex to this report. The powers in the bill are as follows: clauses 1(3), 4(6), 5(5) and (6), 8(1), 9(2), 10(2), 12(3), 19(1), 20(1) and (4), 23(2) and (4), 24 (definitions of "prescribed" and "regulations"), 25(2), 34(13), 35(1), 41 (in new sections 40A(6) and 40C(1) and (2)), 42 (in new sections 58A(4) and (8) and 58B(4)), 44(1) (in new subsection (2E) of section 42), 45 (in new paragraph 7(4), (8) and (9)), 46 (in new paragraph 8(4), (7) and (8)), 47 (in new section 36B(5) and (6)), 48(2), 50, 52(2) (in new section 63B(6)) and (5), 57(4), 58(2) (new subsection (5D)), 59(4), 61(1) (definition of "specified") and (2), 62(2), 68 and 71(1) (commencement) and Schedules 1 (the power to make regulations under paragraphs 2(4) and (5), 3(4), 4, 6, 7 and 10), 2 (the power to make regulations under paragraphs 2(1), 4, 5(2) and 15) and 6 (paragraph 81 - the extension of an existing power to make regulations). The Committee has confined its comments to discussing those powers which are not subject to Parliamentary control and those which raise points for the House to consider.


3. Clauses 18 to 23 are concerned with the transfer of property and staff to the two new services from existing authorities. Clause 19(1) provides that the appropriate Minister (the Home Secretary for the NPS for England and Wales and the Lord Chancellor for CAFCASS - clause 24) "may by order make a scheme" for the transfer of assets and liabilities. The bill does not provide that the order is to be a statutory instrument or provide for Parliamentary control. Clauses 20(1) and 23(2) make similar provision for a scheme to transfer staff but a staff transfer order may not be made without the consultation required by clause 20(4) and the regulations to be made under it (which are subject to negative procedure) or by clause 23(4) and the regulations under it (also subject to negative procedure). The Committee accept that it is appropriate that there should be no Parliamentary control over orders transferring staff and property from one public authority to another.

4. Clause 41, by inserting new sections in the Powers of Criminal Courts (Sentencing) Act 2000 (a consolidation), creates a new form of sentence, an "exclusion order" prohibiting the offender from entering a place specified in the order for a specified period not exceeding a year. Subsection (6) of new section 40A provides for an order to make a person responsible for monitoring the offender's whereabouts and also provides that that person "shall be of a description specified in an order made by the Secretary of State". Schedule 6 includes many amendments to the 2000 Act and paragraph 175 amends the section which contains supplementary provisions about orders and rules. Since section 40A(6) is not added to the lists of powers subject to negative or affirmative control, an order under it would be a statutory instrument but not subject to Parliamentary control. The Committee noted that the bill treats other similar powers differently and we discuss these next.

5. Clause 42 creates "drug abstinence orders" and new section 58A(4) provides for supervision by a person of a description specified in an order made by the Secretary of State. An amendment made by paragraph 175 of Schedule 6 applies affirmative procedure.

6. Clause 45 allows the imposition of "curfew requirements" and monitoring is covered in new paragraph 7(4) added to Schedule 2 to the 2000 Act. Paragraph 175 does not apply Parliamentary control.

7. Clause 47, by inserting section 36B in the 2000 Act, provides for the electronic monitoring of requirements in community orders. Subsection (5) provides for an order to specify descriptions of persons who may do the monitoring. As with clauses 41 and 45, there is no provision for Parliamentary control.

8. There are thus four powers in the bill which are concerned with specifying the persons who may monitor or supervise the performance of a sentence imposed by a court. Three of these powers are not subject to Parliamentary control while the fourth is subject to affirmative procedure. The supplementary memorandum provided by the Home Office argued that the supervision of drug abstinence orders might require exceptional qualities, and that this justified the use of the affirmative procedure for the power in section 58A(4) while the other powers were much closer to administrative orders. The Committee is satisfied that the correct level of parliamentary control is provided in each instance.


9. There are affirmative powers in clauses 10(2), 25(2), 34(2), 42 (new section 58A(4) and new section 58B(4)), 48(2), 52(2) (new section 63B(6)), 52(5), 61(2), and 68(2). Except for clauses 10(2), 48(2) and 52(2) and the new section 58A(4) discussed earlier, these are all Henry VIII powers.[1] With the exception of section 58B(4) which we discuss below, the Committee sees these Henry VIII powers as appropriately delegated and subject to appropriate Parliamentary control.

10. Clause 10(2) is a "default power" enabling different arrangements for the provision of probation services to be made if a local board fails in its duties. The Committee sees affirmative procedure as appropriate because Parliament will wish to debate alleged failures of the local board.

11. Schedule 3 to the 2000 Act deals with the breach, revocation and amendment of various orders which a court may impose when sentencing an offender. These are listed in paragraph 1(1) which at present lists:-

    (a) a curfew order

    (b) a probation order

    (c) a community service order

    (d) a combination order

    (e) a drug treatment and testing order.

Schedule 6 to the bill adds "(aa) an exclusion order" and "(f) a drug abstinence order" (see paragraph 178(2)). Clause 48 (2) selects for special enforcement procedures all but "(e) a drug treatment and testing order" and provides that an order may apply the special procedure to "any other order mentioned in" paragraph 1(1). An order is subject to affirmative procedure. All that an order under this power can do is to apply the special enforcement procedures to drug treatment and testing orders. If Parliament accepts the case for conferring this power, it will necessarily accept that it can be appropriate for those procedures to apply to drug treatment and testing orders. This suggests that negative procedure would be appropriate.

12. Clause 52 is about the testing for drugs of persons in police detention. Subsection (6) of the new section 63B provides that a sample may be taken only by "a person prescribed by regulations" subject to affirmative procedure. The Committee sees the considerations applying to powers given for the regulation of the police as different from those which apply to a power to regulate the enforcement of court orders and sees no reason to question the choice of affirmative procedure here when it has suggested that negative procedure should apply to the powers discussed in paragraphs 4-8 above.


13. The remaining powers are subject to negative procedure. The Committee wishes to draw the attention of the House to the important powers in clauses 41, 42, 45 and 46.

14. We have mentioned earlier the new power to make exclusion orders created by clause 41. That clause inserts three sections in the 2000 Act and the last of these creates two new powers. New section 40C(1) provides for rules for regulating the monitoring of the whereabouts of persons subject to exclusion orders and the Committee sees no need to comment on that.

15. Section 40C(2) raises different issues for it is a Henry VIII provision which confers power by order to direct that section 40A(1) "shall have effect with the substitution, for the period there specified of such period as may be specified in the order" or "that subsection (5) ... shall have effect with such additional restrictions as may be so specified". These restrictions are restrictions on the discretion of the court when sentencing an offender and the addition of a restriction cannot prejudice an offender. However, substituting a different period could allow exclusion orders to remain in force for more than the year provided in the bill as it stands. The Committee sees no difficulty with the power to add restrictions but considers that it is inappropriate for Parliament to delegate the power to increase the severity of a sentencing power.

16. We discussed our concerns in oral evidence with the Home Office. In doing so we bore in mind the following points. In the bill itself Parliament is being asked to consider the maximum length of sentence, and it is right and proper for Parliament to consider such sentencing issues. We asked if there were a precedent for a power to increase the length of a sentence by secondary legislation. The Home Office identified two precedents (sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000)[2] but they readily admitted that these were not an exact parallel (Q 9). In so far as precedents do exist they date from before the establishment of this Committee, and so this issue has not come before us before.[3] The Home Office emphasised that the sentence under consideration was a significant one: "an exclusion order is capable of having a majorly intrusive effect on an offender's life" (Q 19). Moreover, the sentence was not only novel - "a brand new community order" (Q 18) - but in the nature of an experiment, which might take at least two years to evaluate (QQ 29-30).

17. Having listened carefully to the Home Office, we consider that, in principle, the length of a sentence should not be extended by secondary legislation, and that this order-making power should be deleted from the bill. If, contrary to our view, the House thinks otherwise, then clearly the power should be made subject to affirmative procedure as are sections 45 and 50 of the Act of 2000 to which we have referred.

18. Similar considerations apply to section 58B(4) inserted in the 2000 Act by clause 42. That power is made subject to affirmative procedure by paragraph 175(c) of Schedule 6 but unfortunately by a mistake it is also made subject to negative procedure by paragraph 175(b). Section 58B(4) allows the amendment of the maximum and minimum periods specified in section 58A for the length of a drug abstinence order. Again the Committee question whether it is appropriate to delegate a power to increase the severity of a sentencing power. The Home Office's Supplementary Memorandum explained that the affirmative procedure was considered necessary because "drug testing is very intrusive and places offenders at the discretion of an officer for large periods of time. We consider it is important that Parliament has the opportunity to debate the necessity for changes to the maximum or minimum periods of the order."[4] In oral evidence the Home Office also referred to the fact that the power raised questions in relation to Article 8 of the European Convention on Human Rights: "it is incredibly important that any order of this kind, which subjects a person to a liability to be tested, essentially at the discretion of the responsible officer - that is a crucial difference with, for example, curfew and exclusion orders - is an intrusion into a person's private life. It is very important that the intrusion be a necessary and proportionate measure in relation to dealing with crime" (Q 11). The Committee considers that this area of sentencing policy is so sensitive, and so experimental, that the order-making power should be deleted from the bill. If, contrary to our recommendation, the power is to remain, the bill should be amended to make it clear that only affirmative procedure applies.

19. Clause 45 allows the addition of curfew requirements to community sentences. Paragraph 7(2) inserted in Schedule 2 to the 2000 Act places two limits on this power - the curfew requirement cannot last longer than six months and cannot impose a curfew of less than two hours or more than 12 hours in any day. Paragraph 7(9)(a) allows different periods to be substituted by order in paragraph 7(2). As this could extend the length of the order or the daily curfew, it allows an increase in the severity of the sentence and the Committee again question whether this is an appropriate delegation. As with sections 40C(2) and 54B(4), the Committee suggests that if the power is to remain in the bill, affirmative procedure should apply.

20. Clause 46 allows exclusion requirements to be added to community rehabilitation orders. Paragraph 8(1), added by the clause to Schedule 2 to the 2000 Act limits the life of an exclusion requirement to one year. Paragraph 8(8)(a) allows this period to be altered. The Committee question whether it is appropriate to delegate a power which could increase the severity of a sentencing power. If the House disagrees with this recommendation, and the power is to remain in the bill, then the affirmative procedure is clearly necessary.


21. The Committee has drawn attention to the powers in clauses 41, 42, 45 and 46, each of which allows for the amendment of the bill to increase the severity of a sentencing power. The Committee recommends that these powers should be omitted. If those powers are to remain, which would be contrary to our recommendation, the Committee suggests that they should be subject to affirmative procedure.

22. The Committee considers that no other amendment is necessary either to the delegated powers in the bill or to the parliamentary control provided for these powers.[5]

1   The Henry VIII powers which the Committee comments on in this report are negative except for 58A(4). Back

2   There is a third in section 50. Back

3   The Powers of Criminal Courts (Sentencing) Act 2000, to which the Home Office officials referred in their oral evidence (QQ 4, 13-15, 24, 31) is a Consolidation Act, and therefore the Committee did not consider it during its parliamentary passage. Back

4   Paragraph 29 of the Supplementary Memorandum. Back

5   This report is also published on the Internet at the House of Lords Select Committee Home Page (, where further information about the work of the Committee is also available. Back

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