Select Committee on Delegated Powers and Regulatory Reform Eleventh Report

Annex 2


Memorandum by the Home Office


This memorandum sets out the delegated powers conferred by the Sexual Offences 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 the parliamentary procedures that apply.

The Sexual Offences Bill is in three parts. Part 1 is a comprehensive reform of the law on sexual offences. Part 2 consolidates and strengthens provisions for protecting the public from sex offending. Part 3 contains general provisions.


Clause 23: Power to add to relationships covered by the abuse of a position of trust offence

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Affirmative Resolution

Clauses 18 to 22 create a number of offences covering the situation where a person (A) aged 18 or over involves a child under 18 in sexual activity where A is in a 'position of trust' with that child.

Clause 23 defines 'position of trust' and sets out seven conditions in which a person aged 18 or over is said to be in a position of trust in relation to a person under 18. The positions of trust are limited to those where the child is particularly vulnerable to exploitation and/or where the relationship of trust is particularly strong. This includes where A looks after persons under 18 in residential settings (hospitals, care homes, schools etc.) and B is cared for at that institution, and where A is appointed by the State to look after B on an individual basis in the community (for example personal advisers appointed under the Children Act 1989).

Clause 23(1)(b) provides that the Secretary of State may by order specify any further condition which, if met, will constitute a position of trust.

The above clauses re-enact with amendments the current provisions relating to the abuse of position of trust offence (sections 3 and 4 of the Sexual Offences (Amendment) Act 2000). The power in clause 23(1)(b) re-enacts a similar power in the current provisions. The power is needed because it may be necessary to add to the specified categories of positions of trust in the future. For example, the Department had decided that those who act as Connexions Personal Advisers (a position created after the 2000 Act received Royal Assent) should be brought within the scope of the abuse of position of trust offence. This would have been achieved by means of the order making power, were it not for the fact that this Bill has provided an alternative legislative opportunity. (Connexions Personal Advisers are covered by clause 23(6)). Similarly, at a later date it may become clear that there are particular concerns about sexual activity between children under 18 and another category of adults that is not already covered in the Bill. A power to make subordinate legislation will enable the definition of a position of trust to be extended to cover such a category.

Clause 123(2) makes the order making power subject to the affirmative resolution procedure. It is considered that a high level of parliamentary scrutiny is appropriate, since any change would enlarge the scope of the offence.


Clause 88: Power to make foreign travel regulations

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Affirmative Resolution

Clauses 82 to 95 make provision for notification requirements which apply in relation to certain offenders (commonly known as the sex offenders' register). Clause 88(1) confers a power on the Secretary of State to make regulations concerning notification requirements which apply to such offenders who leave the United Kingdom. The regulations, if made, will cover information to be provided before the offender leaves the UK and on his return.

The purpose of foreign notification requirements is to assist the police to remain aware of the whereabouts of offenders. The police can also pass on the information notified to the relevant authorities in any destination country if they believe there is a risk that the offender will offend whilst overseas.

The Department considers that the precise requirements relating to foreign travel notification are more appropriately dealt with in regulations rather than on the face of the Bill because of the level of detail involved. The requirements may include, for example, a list of additional information to be disclosed when the offender has particular knowledge about his travel plans at least 48 hours prior to his intended departure, and details of the forms of notice the offender must give both in advance of travel and on his return.

A further reason the Department considers it preferable for these requirements to be prescribed by regulations is that the details to be notified and arrangements for doing so may need to be changed in the future. For example, a common regime for information sharing between EU countries on the movement of sex offenders might be developed at some point in the future. If this happens, the regulations could be amended to oblige offenders to furnish the precise details required by the information sharing arrangement. Experience of how the foreign notification scheme operates in practice may also over time suggest that the various time limits or details of travel arrangements should be amended so that offenders' whereabouts can be monitored more effectively.

Subsection (4) of clause 88 provides that the regulations may make different provision for different categories of person. This is so that, for example, the regulations may provide that where offenders have advance knowledge of various details of their travel plans, they must notify additional information, or that different categories of offenders must notify of intended travel abroad for different minimum periods.

Clause 123(2) makes the power subject to the affirmative resolution procedure. The Department considers that because the regulations will place an additional requirement on offenders and because a failure to comply with the notification requirements is a criminal offence, full parliamentary scrutiny is appropriate.

Clause 89: Power to designate police stations where notifications must take place

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative Resolution

Clauses 85(1), 86(1) and 87(1) require a relevant offender to notify certain information to the police. Clause 89(1) provides a power for the Secretary of State to make regulations prescribing the police station(s) within each local police area at which the offender may make such notification. A limit on the number of police stations within an area that may be used is necessary because for administrative reasons, not all police stations are suitable for accepting notification. For example the police station may lack trained staff or the necessary equipment to carry out fingerprinting and photographing of the offender.

Clause 89(6) allows for the regulations to make different provision for different categories of person. The Department considers this flexibility is required so that, for example, different provision could be made in respect of offenders categorised according to risk. The regulations could provide for example that low-risk offenders could notify at any police station in their local area, but high-risk offenders must go to one of the designated police stations.

The reason for dealing with this by secondary legislation is twofold. First, stipulating the identity and address of a particular police station or particular police stations within each police area is a matter of detail, not appropriate for primary legislation. Second, the best arrangements for these notification arrangements might vary from area to area and change over time. New police stations may be opened where notification can be accommodated for example, or facilities enabling notification to take place at existing stations may be taken away.

The power only allows the Secretary of State to prescribe police stations within each local police area. It does not allow him to prescribe that the offender must notify by attending at a station outside his local area. Therefore an offender will always be allowed to notify at a station within a given geographical area and will not, by secondary legislation, be required to travel outside that area to notify.

Since what is at issue is the detailed working out of which police stations are suitable for accommodating notification, and this is an administrative matter rather than a matter of principle, the Department considers the negative resolution procedure is appropriate. This is provided for at clause 123(3).

Clause 94: power to make certificate

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative Resolution

Clause 94(4) provides that where someone is cautioned for an offence that triggers the notification requirements, and the constable informs the person of this and certifies it, the certificate will be evidence of the relevant facts. Subsection (4)(b) provides that for these purposes the constable must certify those facts in such form as may be prescribed by order by the Secretary of State.

The exact way in which the facts should be certified in such circumstances is a matter of detail, and is best dealt with by secondary legislation subject to the negative procedure. This is provided for by clause 123(3).

Clause 95: Information about release or transfer

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative Resolution

Clause 95 provides that the Secretary of State may by regulations require the person who is responsible for a detained offender to give notice of any occasion when the offender is released or a different person becomes responsible for him. The regulations may also make provision for determining who is to be treated as responsible for the offender. Such a person could be, for example, the governor of a prison or the Chief Executive of a hospital.

It is the offender's own responsibility to comply with the notification requirements and regulations under this clause would not alter that responsibility. However such regulations would provide a strong additional safeguard towards protecting the public, by requiring persons responsible for a relevant offender to notify other authorities of that offender's movements. For example it is clearly important for the police and probation services to know when and where a relevant offender is released into the community. It is also important that when a new person becomes responsible for an offender (for example where an offender is transferred from a prison to a hospital) that new person is notified of the fact that the person is a relevant offender.

However while the principle behind the policy is simple, the detail is complex. The identity of exactly who within the prison service and hospitals has responsibility for an offender and should make the notification to the police and probation services needs to be set out. Details of the responsible person are likely to change over time. And arrangements need to be set out for how the notification should be made. The level of detail involved is appropriate for regulations.

Because the regulations made under this power will place no additional burden on the offenders themselves, we believe that the negative resolution procedure would be appropriate. This is provided for by 123(3).

Clause 117: Power to amend Schedules 2 and 3

Power conferred on:Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Affirmative Resolution

Schedule 2 sets out the offences, conviction for which will automatically trigger the notification requirements. These are all sexual offences. A conviction for a Schedule 2 offence also gives the court a discretion to make a sexual offences prevention order. Such an order may also be made in respect of a conviction for an offence listed in Schedule 3. The offences in Schedule 3 are violent offences and various offences under the Bill relating to trafficking and prostitution.

Clause 117(1) provides for a power to amend by secondary legislation these schedules of offences. This power is needed to ensure that the schedules continue to reflect the primary purpose of the notification requirements and sexual offences prevention orders, namely the protection of the public. With time, it may become apparent that certain offences that are not currently on the schedules should be included.

A number of age and sentence thresholds have been applied against some of the offences included in the schedules. This is to ensure that only the more serious behaviour constituting those offences and offences against children and vulnerable adults are included in the schedules. These thresholds may need to be modified in light of experience. For example, the offence of trespass with intent to commit a sexual offence will only trigger registration if the intended victim of the sexual offence was under 18 or the offender is sentenced to a term of imprisonment, detained in hospital or made the subject of a community sentence of at least 12 months. Experience may show that the thresholds are too high or low for the purposes of public protection. Where this is the case, the threshold could then be altered by regulations.

Since the implications of being made subject to the notification requirements or a sexual offences prevention order are serious for the offender, the Department considers that any changes to the schedules should be carried out using the affirmative procedure. This is provided for under clause 123(2).


Clause 126: Power relating to commencement

Power conferred on:    Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  None

This is a standard commencement power. It includes power to make transitional provision. This is needed, in particular, because the transitional arrangements in relation to the notification requirements (which were formerly in Part 1 of the Sex Offenders Act 1997) are complex. They are set out at clause 83, but it is anticipated that additional transitional provision will be needed. For example, transitional arrangements may be needed to cover offenders who are subject to prohibitions under a sex offender order.

As is normal for commencement powers, and as reflected in clause 123(3), no parliamentary procedure is specified.


The powers in clauses 88, 89, 94, 95, 117 and 126 will be exercisable by Scottish Ministers so far as they relate to matters within devolved competence and the instruments will need to be laid before the Scottish Parliament as appropriate. Clause 127(5) provides that for the purposes of the Scotland Act 1998, the Bill is to be taken as a pre-commencement enactment. This means that all functions within devolved competence will be exercised by Scottish Ministers.

January 2003

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