Select Committee on Delegated Powers and Deregulation Twenty-Fifth Report



1. This response to the 22nd Report of the Select Committee on Delegated Powers and Deregulation has been prepared by the Home Office. It supplements the Department's Memorandum of 14th June 2000, the Supplementary Memorandum of 27th June 2000 and the evidence given on 28th June 2000.

2. The Committee makes two recommendations for consideration by the House. The first is that the order-making power in Clause 48(2) (to apply the special enforcement procedures to drug treatment and testing orders) should be subject to the negative rather than the affirmative procedure.

3. The Department has given the Committee's recommendation careful consideration. Although it is true that Parliament's acceptance of the power implies an acceptance that it can be appropriate for the special enforcement procedures to apply to the drug treatment and testing order, the Department continues to believe that the draft affirmative procedure is appropriate. That is because of the extent of the new powers conferred by clause 48 of the Bill and the controversy that this clause has generated at Second reading in the Lords. In addition, there might be an issue about when it should be applied to the drug treatment and testing order and a debate in both Houses would give Parliament the opportunity to consider that aspect. For these reasons, the Department considers that the draft affirmative procedure remains the appropriate procedure.

4. The second and main recommendation of the Committee concerns the power to make changes to the periods of exclusion orders, drug abstinence orders and exclusion and curfew requirements of community orders (Clauses 41, 42, 45 and 46). The Committee recommends deleting these powers from the Bill, or, if the House accepts the need for the powers, making the procedure draft affirmative.

5. The Department believes that these powers should be delegated for two main reasons: the need for flexibility and the existence of precedents. We will deal with each of these in turn.

6. Because these orders are experimental in nature and are due to be piloted before implementation, the Department cannot be absolutely sure about the most effective period at the time of legislating. The proposed periods are based on the best available evidence to date. If the pilots, commencing next year, give an early indication that different periods would be more effective, it would be preferable to test those periods as well before national roll-out.

7. The maximum length of the exclusion order has been set at a year, partly on the basis that exclusion is less intrusive than the curfew order (the maximum period of which has been set at six months), but it may for example be too short to act as an effective deterrent to a stalker or a domestic violence perpetrator.

8. If there is no delegated power to amend the periods then the full potential of these orders and requirements may not be tested. A suitable vehicle for primary legislation simply may not be available at the time.

9. There are of course precedents for increasing the maximum period of a community order by secondary legislation and these precedents have been identified in the oral evidence given to the Committee. In addition, the Department notes that the minimum and maximum periods for drug treatment and testing orders can be changed by secondary legislation (section 58 of the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA"). So what the Department is proposing is not unprecedented and this seems to the Department a relevant consideration in the decision to use secondary legislation.

10. For this reason, the Department is minded to retain the powers.

11. It is however accepted that all the relevant order making powers should be subject to the affirmative resolution procedure and we would propose amendments to that effect to the House at Committee stage.

12. In addition, we propose, for consistency's sake, to amend the PCCA so that changes to the period of the curfew order are made subject to the affirmative resolution procedure, rather than the negative procedure as at present. We would propose this amendment at Committee stage.

13. We hope that this response indicates the serious consideration we have given and appropriate action taken on the important issues raised by the Report of the Committee.

6 July 2000

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