Select Committee on Delegated Powers and Regulatory Reform Twenty-First Report



1.  This is a significant bill, in fourteen Parts and with 32 Schedules, which makes changes to the law in a number of areas, summarised at paragraph 9 of the Explanatory Notes published with the bill. In general, the bill extends only to England and Wales.


2.  There are many delegated powers, as is to be expected in a bill of this length. The powers are (except for that at Schedule 26, paragraph 20) identified in the memorandum to the Committee from the Home Office. The memorandum is printed at Annex 1 to this Report.

3.  Although in most instances we take the view that the delegations are appropriate and subject to an appropriate level of Parliamentary scrutiny, a number of delegated powers raise issues to which the Committee wishes to draw the attention of the House. We first set out the relevant Henry VIII powers and then consider other delegated powers.


4.  There are Henry VIII powers at clauses 12(3)(c), 148, 154(7), 171, 188(3), 214, 236(6), 252, 254(6), 266(2) and (3), 268(1), 275, 279(5), 295(7) and 302, and Schedule 25, paragraph 5, Schedule 26, paragraph 20 and Schedule 29, paragraph 9. With the exception of the powers conferred by Schedule 29, paragraph 9 (which are subject to negative procedure), the affirmative procedure applies in each case.

Clause 12(3)(c)

5.  Clause 12 (3)(c) enables the Secretary of State to alter the minimum age at which persons in police detention may be tested for class A drugs. (This age is lowered from 18 to 14 by clause 12(3)(a).) The purpose of the power is clear and its principle apparent from the bill. Although there is no maximum or (more importantly) minimum age specified, we note that there is a safeguard for under-17s at new subsection (5A) of section 63B of the Police and Criminal Evidence Act 1984 (see clause 12(3)(b)). We take the view that in this instance the delegation and the level of scrutiny are appropriate. Bearing in mind, however, that this provision could be extended to children below the age of 14, we suggest that the House may wish to invite the Government to provide an assurance that the purpose of the provision relates only to identifying those who may need treatment and has no effect on the age of criminal responsibility of children.

Clause 148

6.  Clause 148 enables the Secretary of State to raise from 12 to 18 months the new general limit on the term of imprisonment which a magistrates' court may impose. (This limit is itself raised from 6 to 12 months by clause 146(1).) There is a corresponding power in relation to maximum consecutive terms of imprisonment. According to the Home Office memorandum, a decision to use the power under clause 148 will be taken when it is demonstrated that "magistrates are making effective use of their new sentencing powers and are retaining more cases for trial".

7.  Although the power under clause 148 is subject to affirmative resolution, we considered whether a provision of such importance and general application should appropriately be left to delegated legislation at all. We have concluded that it should not. The Committee's attention was not drawn to any precedent for increasing the jurisdiction of the courts in this way. The Committee appreciates that the provision of affirmative procedure to trigger the amendments in clause 148 will guarantee that there is a debate at that time. But the Committee considers that the issue is of such importance that the level of Parliamentary scrutiny and control should be that which only a bill can provide, which will include the opportunity for amendments.

Clause 254(6)

8.  Section 254(5) requires the court, when considering the seriousness of an offence in relation to a mandatory life sentence, to have regard to principles listed in Schedule 17 to the bill. Clause 254(6) enables the Secretary of State to amend Schedule 17. This is an important list. In our view, however, both the delegation and the level of Parliamentary scrutiny (affirmative procedure) are appropriate.


Clause 9

9.  Clause 9 makes significant changes to the process of establishing and amending codes of practice under the Police and Criminal Evidence Act 1984. It is explained in full in the memorandum where it is stated that amendments are to be tabled about the level of Parliamentary scrutiny that will apply. We shall consider those amendments when they are available to the House. Meanwhile, we wish to endorse the principle (proposed in the memorandum) that new codes and significant amendments to existing codes (however that is to be defined) should be subject to affirmative procedure.

Schedule 29, paragraph 4

10.  Schedule 29 concerns amendments to the Police Act 1997 and disclosure of criminal and other records by the Criminal Records Bureau for employment vetting purposes. As explained in paragraph 639 of the Explanatory Notes, this provision (in particular, paragraph 4(3)) replaces material set out in the Police Act 1997 itself or in regulations (subject to affirmative procedure) under section 115(4)(a) of that Act, with a power to prescribe that material by regulations under that Act subject to negative procedure. Whilst we take the view that both the delegation and the level of Parliamentary scrutiny are appropriate, we draw to the attention of the House the reduced level of Parliamentary control and scrutiny under this provision.


11.   We draw to the attention of the House the recommendation in paragraph 7 and the points raised in paragraphs 9 and 10. There are no further matters in relation to the delegated powers in this bill on which we wish to report to the House at this stage. We anticipate however reporting again to the House when the amendments to the bill mentioned in paragraph 9 above are before the House for consideration.

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