APPENDIX 1: CRIMINAL JUSTICE AND IMMIGRATION
BILL
Memorandum by the Ministry of Justice
Introduction
1. This Memorandum describes the purpose and
content of the Criminal Justice and Immigration Bill; identifies
the provisions of the Bill which confer powers to make delegated
legislation; and explains in each case why the power has been
taken and the nature of, and reason for, the procedure selected.
2. The Bill is in 14 Parts:
- Part 1 makes provision for youth
rehabilitation orders, a new generic community sentence for children
and young people.
- Part 2 makes changes to the sentencing framework
for both adult and young offenders, including restrictions on
the on the use of suspended sentences for summary only offences
and providing for non-dangerous offenders who breach the terms
of their licence to be recalled to prison for a fixed 28 day period.
- Part 3 deals with criminal appeals, including
by amending the test for quashing convictions applied by the Court
of Appeal.
- Part 4 establishes the office of Her Majesty's
Commissioner for Offender Management and Prisons which will take
on the functions of the Prison and Probation Ombudsman.
- Part 5 establishes the office of the Northern
Ireland Commissioner for Prison Complaints which will take over
the functions of the Prisoner Ombudsman for Northern Ireland.
- Part 6 includes other criminal justice provisions;
amongst other things, it makes provision for youth conditional
cautions, introduces a presumption in favour of trials proceeding
in the absence of the accused and amends the compensation scheme
for miscarriages of justice to achieve a better balance between
the compensation paid to those wrongly convicted and that paid
to victims of crime.
- Part 7 makes changes to the criminal law, including
by introducing a new offence of possession of extreme pornographic
material.
- Part 8 is concerned with international co-operation
in relation to criminal justice matters; in particular, it includes
measures providing for the mutual recognition of financial penalties
within the European Union.
- Part 9 makes provision for Violent Offender Orders,
a new civil order to manage dangerous violent offenders beyond
the period of their sentence.
- Part 10 relates to anti-social behaviour; in
particular, it confers powers on the police and local authorities
to seek a closure order against premises where significant and
persistent disorder has occurred and creates a new offence of
causing nuisance or disturbance on hospital premises.
- Part 11 relates to policing and includes a revised
framework for taking disciplinary proceedings in respect of police
misconduct and unsatisfactory performance; this part also extends
the remit of Her Majesty's Inspectorate of Constabulary in relation
to the inspection of police authorities.
- Part 12 introduces a new special immigration
status for foreign nationals involved in terrorism or other serious
crimes whose removal is currently prevented by the UK's international
obligations.
- Part 13 contains miscellaneous provisions, including
placing a duty on MAPPA (multi-agency public protection arrangements)
authorities to consider disclosure of information about child
sex offenders.
- Part 14 sets out supplementary provisions about
orders and regulations, commencement, extent, repeals and so forth.
3. Clause 196 sets out the level of parliamentary
scrutiny in respect of the order and regulation-making powers
created by the Bill.
Part 1: Youth Rehabilitation Orders
Schedule 1, paragraph 26(5): Power to specify
the description of a person responsible for monitoring an electronic
monitoring requirement.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: None
4. Paragraph 26 of Schedule 1 provides that the
court can order the electronic monitoring of the compliance of
an offender with any of the other requirements set out in a relevant
order. Subparagraph (5) requires the Secretary of State to specify
by order those persons who may be responsible for such monitoring.
This is best left to delegated legislation as amendments to the
specification of the description of electronic monitoring providers
will be required from time to time and the level of detail would
make it inappropriate for primary legislation. This provision
mirrors similar provisions in section 215(3) of the Criminal Justice
Act 2003 (see Criminal Justice (Sentencing) (Programme and Electronic
Monitoring Requirements) Order 2005 (SI 2005/963) for current
order). It is not anticipated that the contents of any order made
under this clause would be significantly different, save for possible
changes in electronic monitoring providers.
5. Electronic monitoring has been available since
1999 (e.g. as part of Home Detention Curfew, curfew orders etc.)
following a series of pilot projects which operated in selected
areas during the previous ten years. As the description of providers
of this service is unlikely to be of public interest no further
parliamentary scrutiny is considered to be necessary.
Schedule 1, paragraph 27(1) and (2): Power to
amend certain limits of specified requirements.
Power conferred on: The Secretary of
State
Power exercisable by: Order made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
6. Paragraph 27 of Schedule 1 gives the Secretary
of State power to amend the maximum number of hours which may
be imposed under the unpaid work or curfew requirement, and to
alter certain time limits (minimum and maximum durations) attached
to specified requirements (namely, the curfew, exclusion, local
authority residence and fostering requirements).
7. This is best left to delegated legislation
as amendments may be required from time to time in the light of
experience, and developments in technology. The Secretary of State
currently has this power in respect of adult community orders
(see section 223 of the Criminal Justice Act 2003).
8. Given the likely public interest, and the
fact that any order would amend primary legislation, the affirmative
resolution procedure is considered to be the appropriate level
of parliamentary scrutiny.
Schedule 1, paragraph 35(1): Power to allow or
require a court to review the progress of an offender under a
youth rehabilitation order, to attach or remove a review provision,
and regulate the timings and content of reviews.
Power conferred on: The Secretary of
State
Power exercisable by: Order made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
9. Paragraph 35 of Schedule 1 enables the Secretary
of State to make an order allowing or requiring a court to review
the progress of an offender under a youth rehabilitation order.
The Secretary of State can also allow a court to attach or remove
a review provision from a youth rehabilitation order, and regulate
the timing and content of reviews. Such an order may in particular
contain provisions similar to those (contained in sections 191
and 192 of the Criminal Justice Act 2003) applying to reviews
of suspended sentence orders.
10. Subparagraph (3) allows the Secretary of
State to make consequential amendments to, or repeals of, any
provision in Part 1 of the Bill or in Chapter 1 of Part 12 of
the Criminal Justice Act 2003 (General Provisions about Sentencing).
11. The content of any such order would be based
on consultation with the courts. The affirmative resolution procedure
is considered appropriate given the power to alter primary legislation;
moreover, it is recognised that a change to court powers of this
type should be debated in both Houses. Section 178 of the Criminal
Justice Act 2003 contains a similar power in relation to adult
community orders.
Schedule 2, paragraph 10(1): Power to amend the
amount of fines that may be imposed for breach of a youth rehabilitation
order.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
12. Paragraph 10 of Schedule 2 gives the Secretary
of State power to amend the maximum fines that may be imposed
by a magistrates' or Crown court on an offender for breach of
a youth rehabilitation order. Under paragraphs 6(2)(a) and 8(2)(a)
the current maxima are £250 in the case of an offender under
14, and £1,000 in any other case. By virtue of paragraph
10(2) the power may only be exercised to the extent it is necessary
to up rate the maxima in line with inflation. Given this significant
limitation, it is considered that the negative resolution procedure
is appropriate.
Schedule 2, paragraph 25: Power to amend maximum
period of fostering requirement.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
13. Paragraph 25 of Schedule 2 gives the Secretary
of State power to amend the maximum period of a fostering requirement
attached to a youth rehabilitation order. Such an order may substitute
the 18 month period specified in the Bill or any other period
specified under a previous order made under this paragraph.
14. This is best left to delegated legislation
as amendments may be required from time to time in the light of
experience.
15. Given the likely public interest, and the
fact that any order would amend primary legislation, the affirmative
resolution procedure is considered to be the appropriate level
of parliamentary scrutiny.
Schedule 3, paragraphs 1(4) and 2(4): Power to
designate body other than Probation Board for Northern Ireland
responsible for making suitable arrangements for an offender's
supervision.
Power conferred on: The Secretary of
State
Power exercisable by: Order made
by Statutory Instrument
Parliamentary Procedure: Negative
16. Paragraph 1 of Schedule 3 makes provision
for the making of a youth rehabilitation order where the offender
is to reside in Northern Ireland. Paragraph 2 makes provision
for the amendment of a youth rehabilitation order where the offender
is residing or proposing to reside in Northern Ireland. A court
may only make or amend a youth rehabilitation order in such circumstances
where they are satisfied that, amongst other things, that suitable
arrangements can be made for the offender's supervision by the
Probation Board for Northern Ireland. Subparagraph (4) of paragraphs
1 and 2 enables the Secretary of State to designate by order a
body other than the Probation Board for Northern Ireland to undertake
the supervision of offenders subject to a youth rehabilitation
order in Northern Ireland.
17. The need for an order could, for example,
arise as a result of greater involvement by the voluntary sector
in delivery of probation services in Northern Ireland. Any changes
would be subject to consultation with practitioners. The Government
considers that the negative resolution procedure would provide
an appropriate level of parliamentary scrutiny.
Schedule 3, paragraph 17(2): Power to amend provisions
of Schedule 3 in consequence of changes to the law in Northern
Ireland.
Power conferred on: The Secretary of
State
Power exercisable by: Order made
by Statutory Instrument
Parliamentary Procedure: Negative
18. Schedule 3 provided for the transfer of youth
rehabilitation orders to Northern Ireland. The provisions are
based on the requirements that may be attached to such an order
by a court in England and Wales. In the event that new requirements
are introduced in Northern Ireland it should be open to a court
in England and Wales to impose any such requirements on an offender
who is to reside in Northern Ireland. Paragraph 17(2) enables
the Secretary of State, by order, to make amendments to Schedule
3 that are consequential upon changes to the law in Northern Ireland
introducing further descriptions of community orders that may
be imposed on an offender under 18.
19. Although this is a power to amend primary
legislation, it is considered that the negative resolution procedure
is appropriate in this case as the power to amend Schedule 3 is
restricted to making amendments consequential upon amendments
made elsewhere to the law in Northern Ireland.
Clause 4(3): Power to amend meaning of "the
responsible officer" or a 'qualifying officer' in relation
to an offender subject to a youth rehabilitation order.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
20. Clause 4 defines who the responsible officer
is in relation to an offender to whom a youth rehabilitation order
relates. Under subsection (1)(a), if a youth rehabilitation order
imposes a curfew requirement or exclusion requirement but no other
requirement, and if that curfew or exclusion order is electronically
monitored, the responsible officer is the person responsible for
the electronic monitoring. Under subsection (1)(b), if a youth
rehabilitation order imposes only an attendance centre requirement,
the responsible officer is the officer in charge of the attendance
centre. In all other cases, the responsible officer is the qualifying
officer, who is either a member of a youth offending team or an
officer of the local probation board.
21. Subsection (3) allows the Secretary of State
to amend by order the definition of a responsible officer and
qualifying officer, and to amend any other provisions in Part
1 of the Bill or in Chapter 1 of Part 12 of the Criminal Justice
Act 2003 (General Provisions about Sentencing) which would need
amending due to a change in the definition of the responsible
officer or qualifying officer. The need for an order could, for
example, arise as a result of greater involvement by the voluntary
sector in delivery of services as a result of the provisions of
the Offender Management Bill.
22. Any changes would be subject to consultation
with practitioners. The affirmative resolution procedure is appropriate
because an order under this clause would amend primary legislation.
Section 197(3) of the Criminal Justice Act 2003 contains a similar
power in relation to adult community orders.
Clause 5(4) and paragraph 29(4) of Schedule 1:
Power to further restrict responsible officers in giving instructions
to an offender pursuant to a youth rehabilitation order and the
courts in imposing requirements on an offender to be made subject
to such an order.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
23. Clause 5(3) requires a responsible officer,
when giving instructions to an offender pursuant to a youth rehabilitation
order to ensure, as far as is practicable, that any such instruction
does not conflict with the offender's religious beliefs or any
other youth rehabilitation order which the offender is subject
to, or interfere with the offender's education or employment.
Paragraph 29(3) of Schedule 1 similarly places an obligation on
the courts, when imposing a youth rehabilitation order, to avoid
imposing any requirements which would give rise to such conflicts
or interference. Clause 5(4) and paragraph 29(4) of Schedule 1
gives the Secretary of State an order-making power to add further
restrictions upon responsible officers and the courts respectively
beyond the avoidance of conflict with the offender's religious
beliefs, education or employment and interference with the requirements
of other youth rehabilitation orders.
24. In the light of the experience of operating
the new sentencing framework a need for further provisions may
become desirable. For example, it may become necessary to introduce
additional restrictions on the making of orders for offenders
with particular domestic responsibilities should it become clear
that the way in which courts were using the new sentences was
interfering unreasonably with the offenders' lives.
25. As the powers would always be exercised in
favour of the offender and would be based on consultation with
practitioners the negative resolution procedure would provide
an appropriate level of parliamentary scrutiny. Section 217(3)
of the Criminal Justice Act 2003 contains a similar power in relation
to adult community orders.
Clause 8: Power to modify or adapt provisions
in Part 1 in its application to the Isles of Scilly
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
26. Clause 8 gives the Secretary of State the
power to specify how Part 1 of the Bill should apply to the Isles
of Scilly subject to any specified exceptions, adaptations and
modifications. This power is needed because the Council of the
Isles of Scilly is neither a county council nor a district council,
so it is necessary to allow the provisions on youth rehabilitation
orders that relate to county councils or district councils to
be applied to the Council of the Isles of Scilly, with or without
modifications.
27. The Government considers that given the technical
nature of the exceptions, adaptations and modifications the negative
resolution procedure provides the appropriate level of scrutiny.
Part 2: Sentencing
Clause 15(6) - new section 227(6) of the Criminal
Justice Act 2003: Power to modify the period specified in section
227(2B)
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
Clause 16(6) - new section 228(7) of the Criminal
Justice Act 2003: Power to modify the period specified in section
228(2A)
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
28. New section 227(2B) of the Criminal Justice
Act 2003 makes it a condition of imposing an extended sentence
of imprisonment for public protection that the sentencing court
considers that the appropriate custodial term would be at least
4 years.
29. New section 227(6) will enable the Secretary
of State to amend the period specified in section 227(2B) by order.
The 4 year period is designed to result in a 2 year tariff after
release provisions are applied. If the release provisions in Chapter
6 of Part 12 of the Criminal Justice Act 2003 were to be changed,
for example to amend the requisite custodial period in section
244(3)(a) of that Act, using the delegated power in section 267
of the 2003 Act, the 4 years would need to be changed accordingly.
30. The affirmative resolution procedure is appropriate
as any amendment to the period of 4 years referred to in section
227(2B) would alter the sentencing powers of courts to impose
an extended sentence for public protection on an adult offender.
In effect, it would alter the lower threshold at which a court
can impose a sentence for public protection on an adult offender.
31. Clause 16 makes a parallel change to section
228 of the Criminal Justice Act 2003 which makes similar provision
in respect of offenders under 18.
Clause 21(4) - new section 240A(4) of the Criminal
Justice Act 2003: Power to allow a court not to give a credit
for periods of remand on bail in certain cases
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
Schedule 7, paragraph 2(4): Power to allow a court
not to give a credit for periods of remand on bail in certain
cases
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
32. New section 240A(2) of the Criminal Justice
Act 2003, inserted by clause 21, provides for time spent on bail
subject to a qualifying curfew condition and an electronic monitoring
condition to be credited against a subsequent custodial sentence.
New section 240A(4) and (6) enables the court to disregard the
provisions within new section 240A where the Secretary of State
has made rules excepting cases where the offender is sentenced
to serve consecutive terms of imprisonment, to terms which are
wholly or partly concurrent or in relation to periods during which
the person is also subject to electronic monitoring required by
an order by made a court or the Secretary of State.
33. This is best left to delegated legislation
to ensure consistency with other provisions of the Criminal Justice
Act 2003 and to allow the Secretary of State flexibility in prescribing
particular circumstances in which the credit provisions of section
240A may be misapplied. New section 240A(6)(a) and (b) mirror
the rule-making powers in section 240(4)(a), which contains very
similar provisions in relation to crediting periods of remand
in custody. New section 240A(6)(c) allows the Secretary of State
to makes rules to disapply the credit provisions in section 240A
in circumstances where the defendant is also subject to electronic
monitoring requirements other than those imposed as a condition
of his bail, for example as part of a non-custodial sentence.
The level of detail likely to be required and the need, in light
of any changes in sentencing policy, to amend the list of circumstances
in which the credit provisions in section 240A are disapplied,
makes this an appropriate subject for delegated legislation.
34. Any rules that were made under this section
would be based on consultation with practitioners as it is likely
to be of public interest. The affirmative resolution procedure
is regarded as an appropriate level of parliamentary scrutiny;
this is in line with the similar rule making power in section
240(4)(a) of the Criminal Justice Act 2003.
35. Schedule 7 provides for transitional provisions
in relation to certain repealed provisions which continue to have
effect in certain circumstances. Paragraph 2(4) of that Schedule
contains an identical rule making power to that in new section
240A.
Clause 29 - new sections 255A(9) and 255C(7) of
the Criminal Justice Act 2003: Power to vary 28 day fixed term
recall period
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
36. Clause 29 amends the Criminal Justice Act
2003 by introducing new recall and post-recall procedures relating
to different categories of offender. The relevant amendments to
the 2003 Act insert new sections 255A to 255D.
37. Broadly speaking, new section 255A provides
that an offender who is recalled to prison from supervision on
licence in the community will automatically be released at the
expiry of a period of 28 days following return to prison. Before
that period expires the offender may be released by the Secretary
of State or may have the issue of recall and re-release considered
by the Parole Board if he makes representations against recall.
By contrast, section 255C provides that a recalled offender should
have his case referred automatically to the Parole Board by the
Secretary of State after the expiry of a similar 28 day period.
Once again, he may be released before that time by the Secretary
of State or by making an early application for the case to be
reviewed by the Parole Board. The question as to which procedure
applies in any given case is answered by reference to the criteria
set out in the new sections themselves.
38. The power in new sections 255A and 255C enable
the Secretary of State to substitute by order a reference to another
period of time in pace of the current reference to 28 days. The
affirmative resolution procedure (which applies by virtue of the
amendment made to section 330 of the Criminal Justice Act 2003
by clause 29(4)) offers the appropriate level of scrutiny for
the exercise of such a power in light of the fact that such an
exercise would lead to an amendment of primary legislation.
Schedule 5, paragraph 6: Power to alter maximum
duration of an unpaid work requirement, attendance centre requirement
or curfew requirement that may be imposed on youth fine defaulters.
Power conferred on: The Secretary of
State
Power exercisable by: Order made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
39. A 'youth default order' enables an unpaid
work, attendance centre or curfew requirement to be imposed upon
a youth fine defaulter, in lieu of taking action against the parents.
Paragraphs 2, 3 and 4 of Schedule 5 set out the number of hours
of work, attendance at an attendance centre or curfew that correspond
to the level of the fine respectively. Paragraph 6 provides the
Secretary of State with an order making power to amend the number
of hours or days of unpaid work, attendance at an attendance centre
or curfew in paragraphs 2, 3 and 4 or the amount of money default
of which attracts the penalty.
40. This power is necessary given the need to
respond quickly and flexibly, and the level of detail likely to
be required. For example in time with inflation the number of
hours and days equating to a particular fine amount may need to
be revised downwards, and equally the levels of fine referred
to may become outdated.
41. Given that default orders may be likely to
be of public interest, and that the order would amend primary
legislation, the affirmative resolution procedure is considered
an appropriate level of parliamentary scrutiny. A similar delegated
power is contained in paragraph 5 of Schedule 31 to the Criminal
Justice Act 2003.
Clause 41(2) - new paragraph 9C(2) of Schedule
5 to the Courts Act 2003: Power to prescribe benefits from which
deductions may be made
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
42. Clause 41 inserts new paragraphs 9A, 9B and
9C into Part 3 of Schedule 5 to the Courts Act 2003.
43. Paragraph 9A empowers a designated officer
in a magistrates' court to ask for information about a person's
benefit status from the Secretary of State, in order to assist
a court in deciding whether to make an application for benefits
deductions.
44. Paragraph 9B places restrictions on what
can be done with the information, including an offence of using
or disclosing the information in an unauthorised manner or otherwise
than in accordance with the intended purposes.
45. Paragraph 9C contains a power to allow the
Lord Chancellor to prescribe in regulations which particular benefits
the court may ask for information about.
46. It is intended that the Lord Chancellor will
prescribe those social security benefits from which deductions
under section 24 of the Criminal Justice Act 1991 (fines recovery)
can be made. In addition, a court will be permitted access to
information about other types of benefit to assist the court in
making its decision whether to make an application for benefit
deductions under Part 3 of Schedule 5 to the Courts Act 2003.
47. The Bill provides that the Lord Chancellor's
regulation making power in new paragraph 9C is subject to the
negative resolution procedure. The Government considers this to
be the appropriate level of parliamentary scrutiny as the powers
are not controversial and so a high level of parliamentary scrutiny
is not considered to be necessary.
48. The fundamental power to ask for the offender's
benefit status is clearly established in the clause and as such
will be subject to scrutiny during the passage of the Bill. The
regulation-making powers simply specify which benefits will be
disclosed.
Part 3: Appeals
49. There are no delegated powers in Part 3.
Parts 4 and 5: Her Majesty's Commissioner for
Offender Management and Prisons and The Northern Ireland Commissioner
for Prison Complaints
50. The provisions in Part 4 of the Bill are
similar to the provisions contained in the Management of Offenders
and Sentencing Bill introduced in the House of Lords on 12 January
2005. That Bill fell when the 2005 general election was called.
The Delegated Powers and Regulatory Reform Committee reported
on the Bill in their 7th Report of Session 2004-05
(HL paper 39).
Clause 51(4): Exclusion of matters from the scope
of the Commissioner's complaint handling remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
Clause 75(4): Exclusion of matters from the scope
of the Northern Ireland Commissioner's complaint handling remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
51. Clause 51 and the related Schedule 10 make
provision for the handling of eligible complaints by the Commissioner.
Clause 51(4) provides the Secretary of State with an order making
power to specify matters which are excluded matters for the purposes
of the Commissioner's complaints remit. This is best left to delegated
legislation as such changes may be required from time to time.
For example, to avoid potential duplication of provision, it may
be necessary to prevent the Commissioner from dealing with a complaint
so far as it relates to certain matters falling within the jurisdiction
of another independent body. The flexibility of delegated legislation
is required to allow such exceptions to be made promptly where
required. Given the likely public interest in safeguarding the
complaints remit of the Commissioner against any unjustified narrowing
of the matters that the Commissioner is able to address as part
of that remit, the affirmative resolution procedure is provided
to ensure an appropriate level of Parliamentary scrutiny.
52. Clause 75(4) makes similar provision in respect
of the complaints remit of the Northern Ireland Commissioner for
Prison Complaints.
Clause 51(7): Description of matters which are
to be regarded as related to the provision of health care.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
53. Clause 51(3)(c) provides that matters related
to the provision of health care are excluded from the complaints
remit of the Commissioner. Clause 51(7) provides the Secretary
of State with an order making power to provide that matters of
a particular description are, or are not, to be regarded for the
purposes of clause 51(3)(c) as related to the provision of health
care.
54. Health care matters more properly fall within
the remit of the Health Service Commissioner, or, in certain cases,
the Parliamentary Commissioner for Administration. These matters
are not necessarily easily distinguishable and may require negotiation
between the new Commissioner and the Health Service Commissioner
or other ombudsmen. The order-making power will therefore provide
for the ability to clarify which matters fall within the new Commissioner's
remit and those which do not.
55. Such clarification of what constitutes health
care for these purposes is best dealt with by delegated legislation
to provide flexibility, as the description of such matters may
need to be further clarified over time, and so as to ensure that
any changes can be made promptly if necessary. Because any order
intended to more clearly define health care matters will be directed
at improving the effectiveness of the Commissioner and other ombudsmen
in carrying out their respective functions, and ensuring matters
are dealt with appropriately, it is likely to be uncontroversial
and the negative procedure is considered to provide an appropriate
level of Parliamentary scrutiny.
Clause 63(8): Amending the definition of "listed
person" for the purposes of enabling the Commissioner to
co-operate with other ombudsmen.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Negative resolution
56. Clause 63 enables the Commissioner to co-operate
with other specified ombudsmen (each is referred to in the clause
and defined as a "listed person") in circumstances where
it appears either to the Commissioner or the appropriate ombudsman
that the matter with which either is dealing could be dealt with
by the other.
57. Clause 63(8) provides the Secretary of State
with an order making power to add to, omit or change the definition
of a "listed person". Over the course of time it may
be necessary or desirable that other ombudsmen or complaint handling
bodies be added to the definition of "listed person"
so as to bring them within the ambit of this clause. Consequently,
the making of such an amendment to the definition (e.g. by adding
a body to the definition) may require consequential amendment
of the primary legislation, subordinate legislation or an Act
of the Scottish Parliament. Subsection (9) permits the subsection
(8) power to be used to make any such amendments. Such an amendment
to the definition is best dealt with by delegated legislation
so as to ensure that any amendment (for which there may be a pressing
need) can be achieved promptly. Delegated legislation also preserves
maximum flexibility in respect of this element of the Commissioner's
powers. Such flexibility is appropriate in respect of amendments
required to reflect what may be a fast-changing consultative context.
Because any amendments to the definition of "listed person"
will be likely to be uncontroversial and will be directed at improving
the efficacy and effectiveness of the Commissioner and listed
persons in carrying out their respective functions, the negative
procedure which has been provided is sufficient to ensure an appropriate
level of Parliamentary scrutiny.
Clause 71(1): Modification of the term "controlling
authorities".
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative resolution
Clause 95(1): Modification of the term "controlling
authorities" - Northern Ireland.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative resolution
58. Schedule 13 contains a list of persons who
are "controlling authorities" for the purposes of Part
4. The Commissioner is required to report on the outcome of an
investigation of a death to the controlling authority considered
most directly involved with the matters covered by the investigation,
and may make recommendations to any controlling authority about
matters arising from a complaint or a death. A controlling authority
must respond to the Commissioner within 28 days of receiving a
recommendation arising from a complaint.
59. Clause 71(1) provides (in the definition
of a controlling authority) the Secretary of State with an order
making power to add a description of any other person to the list
of 'controlling authorities'. Such changes may be required from
time to time in order to add, for example, other persons who in
future might have similar responsibilities to those listed in
the clause as drafted. This might arise from organisational changes.
It is felt that delegated legislation would be most appropriate
to allow these changes to be made promptly as and when they arise.
It is not thought that a power only to make additions to the list
of 'controlling authorities' would be contentious. Adding to the
list does not in any way limit or reduce the Commissioner's remit
and the effect of any amendment will enable the Commissioner to
work closely with a wider range of interested bodies to ensure
that they are undertaking proper procedures or can take appropriate
action in relation to matters under consideration or investigation.
Therefore the negative resolution procedure is considered to provide
an appropriate degree of Parliamentary Scrutiny.
60. Clause 95(1) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Clause 71(2): Modification of the term "excepted
premises"
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative resolution
61. Clause 71(1) provides definitions of certain
terms used in Part 4. Clause 71(2) provides the Secretary of State
with an order making power to except certain premises from the
definition of "immigration detention premises" for the
purposes of the Commissioner's remits. The Government considers
that power to be necessary because at present directions made
under paragraph 18 of Schedule 2 to the Immigration Act 1971 (c.77)
specify a number of places at which people may be detained for
immigration purposes other than immigration removal centres and
port facilities - for example, police stations, hospitals and
"places of safety" (which may include private dwellings).
The Government does not consider that it would be appropriate
for the Commissioner to investigate complaints about treatment
of deaths occurring in such places, where other investigation
mechanisms will more effectively come into play. Similarly, it
is not considered that it would be appropriate for the Commissioner
to investigate events occurring in prisons in Scotland and Northern
Ireland (where persons may likewise be detained for immigration
purposes). The Government therefore proposes to except such premises.
Because such premises are set out in directions rather than primary
legislation, and may be subject to change, we consider that they
should be set out on a similar basis for the purposes of the Commissioner's
remits, rather than on the face of the Bill. Given the likely
public interest in safeguarding the broad overall remit of the
Commissioner the affirmative resolution procedure is provided
to ensure an appropriate level of Parliamentary scrutiny.
Clause 72(1): Modification of matters specified
by the Secretary of State from the scope of the Commissioner's
complaint handling remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(1): Modification of matters specified
by the Secretary of State from the scope of the Northern Ireland
Commissioner's complaint handling remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
62. Schedule 10 sets out the matters included
in the Commissioner's complaint handling remit. Clause 72(1) provides
the Secretary of State with an order making power to modify the
scope of Schedule 10 and, therefore, the Commissioner's complaint
handling remit. This is best left to delegated legislation as
such changes may be required from time to time. For example, such
changes could arise if it is thought appropriate for the Commissioner
to investigate complaints about other matters not currently included
in Schedule 10. The power allows for a matter to be added to the
Schedule, and for the amendment or repeal of a matter for the
time being specified in the Schedule. However, by virtue of clause
72(2) the power to amend or repeal is not permitted to exclude
those matters that fall within a description contained in Schedule
10 when the Act is passed. The flexibility of delegated legislation
is required to allow such changes to be made promptly where required.
The alternative to the power, and to the powers conferred by clause
72(3) and (5), would be a single wide power with very few details
set out in the Bill of the matters currently covered in the clauses
and related Schedules setting out the scope of the Commissioner's
functions. Given the likely public interest in safeguarding the
complaints remit of the Commissioner against any unjustified interference
that may impinge on his independence, or narrowing of that remit,
the affirmative resolution procedure is provided to ensure an
appropriate level of Parliamentary scrutiny.
63. Clause 96(1) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Clause 72(3): Modification of matters specified
by the Secretary of State from the scope of the Commissioner's
death investigation remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(3): Modification of matters specified
by the Secretary of State from the scope of the Northern Ireland
Commissioner's death investigation remit.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary procedure: Affirmative resolution
64. Schedule 11 sets out certain descriptions
of deaths included in the Commissioner's death investigation remit.
Clause 72(3) provides the Secretary of State with an order making
power to make modifications to Schedule 11 and, therefore, to
the scope of the Commissioner's death investigation remit. This
is best left to delegated legislation as such changes may be required
from time to time. Such changes could arise if there are changes
to the categories of custodial death that it is thought appropriate
for the Commissioner to investigate. The power allows new categories
to be added, and existing ones to be modified or removed. However,
by virtue of clause 72(4) the power to amend or repeal a category
of death is not permitted to exclude any death that falls within
a description contained in Schedule 11 when the Act is passed.
The flexibility of delegated legislation is required to allow
such changes to be made promptly where required. Given the likely
public interest in safeguarding the deaths remit of the Commissioner
against any unjustified interference that may impinge on his independence
or the breadth of that remit, and in avoiding the creation of
any unjustified exclusions from his ability to conduct independent
investigations into custodial deaths, the affirmative resolution
procedure is provided to ensure an appropriate level of Parliamentary
scrutiny.
65. Clause 96(3) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Clause 72(5): Modification of matters specified
by the Secretary of State from the scope of the Commissioner's
function to investigate certain other matters at the
request of the Secretary of State.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(5): Modification of matters specified
by the Secretary of State from the scope of the Northern Ireland
Commissioner's function to investigate certain other matters at
the request of the Secretary of State.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
66. The Secretary of State may request the Commissioner
to investigate any matter mentioned in clause 58(3) which is specified
in the request. Clause 72(5) provides the Secretary of State with
an order making power to modify clause 58(3) so as to add a description
of events, or amend or repeal any description of events specified
in that clause. This is best left to delegated legislation as
such changes may be required from time to time. For example, such
changes may be required to reflect changes to the names of the
persons or premises mentioned in clause 58(3). The flexibility
of delegated legislation is required to allow such changes to
be made promptly where required. Given the likely public interest
in safeguarding the functions of the Commissioner against any
unjustified interference that may impinge on his independence
or which may reduce or alter the scope of those functions, the
affirmative resolution procedure is provided to ensure an appropriate
level of Parliamentary scrutiny.
67. Clause 96(5) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Clause 72(6): Modification to prohibitions on
disclosure, or giving evidence, of protected information.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Negative resolution
Clause 96(6): Modification to prohibitions on
disclosure, or giving evidence, of protected information - Northern
Ireland.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: Negative resolution
68. Clause 65(3) provides that "protected
information" (as defined in clause 65(1)) shall not be disclosed
by the Commissioner unless one of the exemptions set out within
it applies. Clause 65(9) and (10) provide that a person named
in clause 65(11) shall not be called on to give evidence of certain
types of protected information unless they are called on to give
evidence in relation to proceedings mentioned in clause 65(3).
Clause 72(6) enables clause 65 to be modified to provide for the
addition, amendment or repeal of exceptions in subsection (3)
of that clause or further exceptions to be added to subsection
(8) of the clause. However, by virtue of clause 72(7), the power
to amend or repeal exceptions to subsection (3)(a), (b) or (c)
may not be exercised to remove an exception in that subsection
when the Act is passed. This is best left to delegated legislation
as such changes may be required from time to time in response
to specific factual circumstances that the Commissioner has had
to deal with in which disclosure or the giving of evidence was
clearly desirable but was not countenanced by clause 65(3) or
(8). The flexibility of delegated legislation is required to allow
such changes to be made promptly where required. Given that the
order-making power can only be used to extend rather than limit
the Commissioner's powers to disclose protected information (as
they exist at the point at which the Bill is enacted), the negative
resolution procedure is considered to provide an appropriate level
of Parliamentary scrutiny.
69. Clause 96(6) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Clause 73(1): Conferring of new functions on the
Commissioner by the Secretary of State.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 97(1): Conferring of new functions on the
Northern Ireland Commissioner by the Secretary of State.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary procedure: Affirmative resolution
70. Clause 73(1) provides the Secretary of State
with an order making power to confer additional functions on the
Commissioner, confer functions on the Secretary of State in relation
to any such additional functions conferred on the Commissioner
and provides for the application in relation to any such additional
function of any provisions of Part 4, with or without modifications.
Clause 196(2)(c), with clause 73(3), enables any necessary consequential
provisions that may be required to be made, including modifications
to any Act or subordinate legislation. This is best left to delegated
legislation as such additions may be required from time to time.
Such changes could arise if there are changes to the types of
matters or events that it is thought appropriate for the Commissioner
to investigate. The flexibility of delegated legislation is required
to allow such changes to be made promptly where required. Given
the wide range of possible new functions that could be conferred
on the Commissioner under this power, and the likely public interest
in ensuring that the extensive powers of the Commissioner to obtain
information for the purposes of his functions (which would include
any new functions) are used proportionately, the affirmative resolution
procedure is provided to ensure an appropriate level of Parliamentary
scrutiny.
71. Clause 97(1) makes similar provision in respect
of the Northern Ireland Commissioner for Prison Complaints.
Part 6: Other Criminal Justice Provisions
Schedule 18, Paragraph 3 - new section 66A(6)
of the Crime and Disorder Act 1998: Power to amend the maximum
period of an attendance condition attached to a youth conditional
caution
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory
instrument
Parliamentary procedure: Affirmative resolution
72. Schedule 18, paragraph 3 inserts new sections
66A to 66H into the Crime and Disorder Act 1998 which make provision
for youth conditional cautions. Subsection (4)(b) of new section
66A provides that a youth conditional caution may include a condition
that the offender attend at a specified place at specified times.
New section 66A(5) provides the maximum period for which an offender
may be required to attend is 20 hours, not including attendance
for rehabilitative purposes. New section 66A(6) provides that
the Secretary of State may amend this period by order. The purpose
of this order-making power is to ensure that the youth conditional
cautioning scheme will in practice be sufficiently flexible to
ensure that it can deliver its objectives in light of experience
of its operation. Having the ability to amend the maximum period
of attendance by order may be necessary if experience of using
conditional cautions in this way shows that longer periods of
attendance are necessary to properly deal with certain types of
offending. Alternatively experience may show that practical considerations,
such as heath and safety, mean that an appropriate activity may
take longer than 20 hours to complete. Finally, attendance at
a particular time or place may be required as part of a condition
of a requirement attached to a youth rehabilitation order under
other provisions of the Bill. The limits relating to those requirements
could change and if they did it may be appropriate to alter the
limits for conditional cautions accordingly. As this is akin to
a power to amend a maximum sentence the affirmative procedure
is considered appropriate. The order-making power mirrors that
in section 22(3C) of the Criminal Justice Act 2003 (as inserted
by section 17 of the Police and Justice Act 2006) which relates
to adult conditional cautions.
Schedule 18, Paragraph 3 - new section 66C(1)
and (2) of the Crime and Disorder Act 1998: Power to prescribe
the offences in respect of which a financial penalty may be attached
to a youth conditional caution and the maximum amount of such
penalties subject to the statutory limits.
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory
instrument
Parliamentary procedure: Negative resolution
73. New section 66A(4) of the Crime and Disorder
Act 1998 provides that a youth conditional caution may include
a condition that the offender pays a financial penalty. New section
66C(1) provides that a financial penalty condition may not be
attached to a youth conditional caution given in respect of an
offence unless the offence in question is one prescribed, or of
a description prescribed, by order. New section 66C(2) requires
that an order made under section 66C(1) must also specify the
maximum amount of the financial penalty that may be specified
for each offence or description of offence. The prescription of
offences will require a level of detail that would not be appropriate
for the face of the legislation. Furthermore, having the ability
to prescribe in an order the offences in respect of which a financial
penalty may be imposed will enable the list of offences to be
revised in the light of experience of operating the youth conditional
cautioning scheme and to take account of the creation of new criminal
offences which may be suitable for inclusion in the scheme. The
ability to prescribe the maximum amount of the financial penalty
applicable to each of the prescribed offences is circumscribed
by the upper limit of £100 imposed by section 66C(3). Given
the nature of the power and the limitations imposed on its exercise,
the negative resolution procedure is considered appropriate. The
order-making power mirrors that in section 23A(1) of the Criminal
Justice Act 2003 (as inserted by section 17 of the Police and
Justice Act 2006) which relates to adult conditional cautions.
Schedule 18, Paragraph 3 - new section 66C(4)
of the Crime and Disorder Act 1998: Power to amend by order the
maximum financial penalty that may be prescribed under section
66C(3).
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory
instrument
Parliamentary procedure: Affirmative resolution
save where the maximum monetary limit is increased in line with
changes in the value of money, in which case the negative resolution
procedure applies
74. New section 66A(4) of the Crime and Disorder
Act 1998 provides that a youth conditional caution may include
a condition that the offender pays a financial penalty. New section
66C(2) provides that the maximum amount of such a financial penalty
in respect of specified offences must be prescribed in an order
made under new section 66C(1). New section 66C(3) stipules that
the maximum financial penalty prescribed for an offence must not
exceed £100. New section 66C(4) allows the £100 maximum
to be amended by order. The purpose of this order-making power
is to ensure that the youth conditional cautioning scheme will
in practice be sufficiently flexible to ensure that it can deliver
its objectives in light of experience of its operation. Experience
of the use of financial penalties attached to youth conditional
cautions may make it appropriate for this limit to be altered
in order that the scheme can work as effectively as possible in
dealing with low level offending. Here it must be remembered that
acceptance of a youth conditional caution is entirely voluntary
and is a matter on which the offender can take legal advice. If
the offender considers that the penalty he is being offered is
higher than that he would receive if he pleaded guilty in the
Magistrates' Court then he is entitled to reject the offer of
a youth conditional caution and choose to be prosecuted. As this
is a power akin to powers to increase maximum penalties the affirmative
procedure is considered appropriate save where any increase in
the £100 limit is limited to up rating the amount in line
with inflation (in which case the negative resolution procedure
will apply). The order-making power mirrors that in section 23A(4)
of the Criminal Justice Act 2003 (as inserted by section 17 of
the Police and Justice Act 2006) which relates to adult conditional
cautions (on which the Delegated Powers and Regulatory Reform
Committee commented in their 22nd Report of the 2005/6
session, dated 15 June 2006).
Schedule 18, Paragraph 3 - new section 66G(5)
of the Crime and Disorder Act 1998: Power to bring a code of practice
in relation to youth conditional cautions into force by order.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative resolution
75. New section 66G of the Crime and Disorder
Act 1998 makes provision for the Secretary of State, with the
consent of the Attorney General, to publish a Code of Practice
setting out the circumstances in which youth conditional cautions
may be given, how they are to be given and who may give them,
the conditions which may be imposed and for what period, and arrangements
for monitoring compliance.
76. The Secretary of State is required to publish
the code in draft and to consider any representations regarding
it.
77. Matters of this sort of procedural detail
are more appropriate for delegated legislation than for inclusion
on the face of the statute. The equivalent power in section 25
of the Criminal Justice Act 2003 in relation to the adult conditional
cautioning scheme is subject to the affirmative procedure. The
Home Office memorandum to the Delegated Powers and Regulatory
Reform Committee in respect of the Criminal Justice Bill (see
Annex 1 of the Committee's 21st Report session 2002/03
dated 12 June 2003) argued that the affirmative procedure was
appropriate as the code will be new. Given that the code of practice
for the adult scheme has now been in place for some time, this
is no longer the case. Moreover the code of practice for the youth
scheme will closely follow that of the adult scheme, in these
circumstances the negative resolution procedure is considered
appropriate.
Schedule 18, Paragraph 3 - new section 66H(e)(vi)
of the Crime and Disorder Act 1998: Power to specify a person
as being a relevant prosecutor for the purposes of Chapter 1 of
Part 4 of the 1998 Act.
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
78. New section 66H of the Crime and Disorder
Act 1998 defines various terms in relating to the youth conditional
caution scheme, amongst these is the term "relevant prosecutor".
Section 66H(e) includes provision for the Secretary of State to
add to the list of relevant prosecutors by order. This provides
flexibility to take account of the potential creation of new prosecuting
bodies for whom it would be convenient to be able to participate
in the youth conditional cautioning scheme. Amendment to primary
legislation for such a matter of detail would be unduly burdensome.
The negative resolution procedure is regarded as an appropriate
level of parliamentary scrutiny. The order-making power mirrors
that in section 27 of the Criminal Justice Act 2003 which relates
to adult conditional cautions.
Schedule 19, paragraph 4 - new section 9A(5) of
the Rehabilitation of Offenders Act 1974: Power to make provision
excepting, in specified cases, official disclosures of caution
information from the offence of unauthorised disclosure
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
79. New section 9A(2) makes it an offence for
a person who in the course of his duties has custody or access
to any official record or information imputing that a named or
otherwise identifiable person has committed, been charged with,
prosecuted or cautioned for any offence which is the subject of
a spent conviction if, knowing or having reasonable cause to suspect
that the information is caution information he discloses it, otherwise
than in the course of his duties, to another person. New section
9A(5) provides that the Secretary of State may by order make provision
for excepting the disclosure of caution information from subsection
(2) in such cases or classes of cases as may be specified in the
order.
80. This order making power mirrors that in section
9(5) of the Rehabilitation of Offenders Act which deals with the
unauthorised disclosure of spent convictions. That power is also
subject to the affirmative resolution procedure by virtue of section
11 of that Act.
Schedule 19, paragraph 6 - Paragraph 4 of new
Schedule 2 to the Rehabilitation of Offenders Act 1974: Power
to make provision for exclusions and exceptions to the protection
afforded in respect of spent cautions
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative Resolution
81. New Schedule 2 to the Rehabilitation of Offenders
Act 1974 makes provision for the protection for spent cautions.
Paragraph 3 of the new Schedule 2 provides that where a person
received a caution which is spent he is to be treated for all
purposes in law as a person who has not committed, been charged
with, prosecuted or cautioned for any offence.
82. Under paragraph 3(3) where a question seeking
information about a person's previous cautions, offences, conduct
or circumstances then, except in judicial proceedings: (a) the
question shall be treated as not relating to spent cautions or
to any ancillary circumstances, and the answer may be framed accordingly;
and (b) the person questioned will not be subjected to any liability
or otherwise prejudiced by reason of any failure to acknowledge
or disclose a spent caution or any ancillary circumstances in
his answer to the question.
83. Under paragraph 3(4) of the new Schedule
2, any obligation imposed on any person to disclose any matters
to any other person shall not extend to requiring him to disclose
a spent caution or any ancillary circumstances (whether the caution
is his own or another's) and a caution which has become spent
or any ancillary circumstances, or any failure to disclose such
a caution or any such circumstances, shall not be a proper ground
for dismissing or excluding a person from any office, profession,
occupation or employment, or for prejudicing him in any way in
any occupation or employment.
84. Paragraph 4 enables the Secretary of State
to make provision for excluding or modifying the application of
paragraph 3(3) in relation to questions put in specified circumstances
and to provide for exceptions from the provisions in paragraph
3(4) and (5). This power mirrors that in section 4(4) of the Rehabilitation
of Offenders Act. Orders made under that provision specify various
offices and types of employment, for example, involving work with
children and vulnerable adults, where the employer may ask questions
about spent convictions. It is envisaged that similar exceptions
would apply in respect of spent cautions.
Schedule 20, paragraph 4 - new section 3AC(2)
of the Bail Act 1976: Requirement for a person responsible for
monitoring an electronic monitoring requirement to be of a description
specified in an order
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary procedure: None
85. Clause 101 and Schedule 20 amend the Bail
Act 1976 to provide that a court can order the electronic monitoring
of a person's compliance with any requirement imposed as a condition
of bail. The provisions (new section 3AC(2)) require the Secretary
of State to specify by order those persons who may be responsible
for such monitoring. This is best left to delegated legislation
as amendments to the specification of the description of electronic
monitoring providers will be required from time to time and the
level of detail would make it inappropriate for primary legislation.
This provision mirrors similar provisions in section 215(3) of
the Criminal Justice Act 2003 (see Criminal Justice (Sentencing)
(Programme and Electronic Monitoring Requirements) Order 2005
(SI 2005/963) for current order). It is not anticipated that the
contents of any order made under this clause would be significantly
different, save for possible changes in electronic monitoring
providers.
86. Electronic monitoring has been available
since 1999 (for example, as part of curfew orders, home detention
curfews, etc) following a series of pilot projects which operated
in selected areas during the previous ten years. As the description
of the providers of this service is unlikely to be of public interest
no further Parliamentary scrutiny is considered necessary.
Schedule 20, paragraph 4 - new section 3AC(3)
of the Bail Act 1976: Regulation of the electronic monitoring
of offenders on bail
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary procedure: Negative Resolution
87. Clause 101 and Schedule 20 insert into the
Bail Act 1976 a new section 3AC which provides powers for the
Secretary of State to make rules regulating the electronic monitoring
on bail and the functions of those responsible for it. The relevant
subsections (which are modified to include adults) replace the
equivalent provisions in subsections (6) to (10) and (12) of the
existing section 3AA of the Bail Act 1976, which apply only to
juveniles. Like the present rule-making power, the power in section
3AC is subject to the negative resolution procedure which is considered
to provide an appropriate level of Parliamentary scrutiny.
Clause 106(6) - new paragraph 1A of Schedule 3
to the Access to Justice Act 1999: Power to make regulations in
respect of the provisional grant of right to representation
Power conferred on: The Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
88. This clause amends Part 1 of the Access to
Justice Act 1999 (the 1999 Act) to allow for the provisional grant
of a right to representation in prescribed circumstances. Paragraph
2A of Schedule 3 to the 1999 Act, confers a power on the Lord
Chancellor to make regulations providing that the Legal Services
Commission may grant rights of representation in criminal proceedings
of a prescribed description and may withdraw such rights in prescribed
circumstances. Paragraph 3A of that Schedule provides that regulations
may prescribe the form which the grant of a right to representation
is to take, under paragraph 2A or 3, which confers limited powers
on the Legal Services Commission to make such grants.
89. Delegated legislation about the granting
of rights of representation is considered appropriate because
of the level of detail required, but because of the importance
to the Act of the change of responsibility for granting rights,
regulations under paragraph 2A are subject to the affirmative
resolution procedure (see section 25(9) of the 1999 Act). Subsidiary
matters of exceptions to the Legal Services Commission's power
to grant rights of representation are dealt with in regulations
subject to the negative resolution procedure. The form which a
grant of a right to representation should take is also set out
in delegated legislation, and is subject to the negative resolution
procedure.
90. This clause, which would insert a new paragraph
1A, provides for regulations to set out circumstances in which
a right to representation may be provisionally granted to individuals
involved in an investigation which may result in criminal proceedings,
for the purpose of those proceedings, about the stage of an investigation
at which the right may be provisionally granted, and the circumstances
in which any provisional grant ceases to be provisional and becomes
a grant, or where it is to be withdrawn.
91. For the same reasons as set out in paragraph
86 above, delegated legislation about the granting of provisional
rights of representation is considered appropriate because of
the level of detail that may be required, and because of the importance
of the change, regulations under new paragraph 1A are to be subject
to the affirmative resolution procedure (see clause 59(4)).
Clause 107(3) - new paragraph 6(2)(f) of Schedule
3 to the Access to Justice Act 1999: Power to prescribe additional
categories of information in respect of persons in receipt of
benefits that may be requested by Courts Service staff to enable
assessment of financial eligibility for legal aid
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
92. Clause 107 amends Schedule 3 to the Access
to Justice Act to establish a gateway to allow for specific information
to be disclosed to the Legal Services Commission by the Department
of Work and Pensions (DWP) and HM Revenue and Customs (HMRC) for
purposes relating to the grant of legal aid, and places certain
restrictions on the disclosure of that information. It enables
a request to be made for prescribed information. It may be that
in future it is easier to obtain certain data from HMRC, than
from DWP, or vice versa, or that new categories of information
relevant to Legal Services Commission's purposes, are collected
by either department. Therefore, to cover this eventuality, the
Government consider that the Lord Chancellor should have regulation
making powers to prescribe additional categories of information
that can be requested from DWP and/or HMRC.
93. Clause 107(2) amends section 25(9) of the
1999 Act so as to make regulations under new paragraph 6 subject
to the affirmative resolution procedure. This is felt to be an
appropriate level of scrutiny because it involves the disclosure
of personal information.
Clause 107(3) - new paragraph 6(3)(d) of Schedule
3 to the Access to Justice Act 1999: Power to prescribe additional
categories of information in respect of persons employment status
that may be requested by Courts Service staff to enable assessment
of financial eligibility for legal aid
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
94. New paragraph 6(3)(d) of Schedule 3 to the
Access to Justice Act provides for regulations to set out any
other information which may be requested from HMRC. New paragraph
6(4) provides that any regulations may, in particular, relate
to an individual's income. The Government consider that the Lord
Chancellor should have regulation making powers to prescribe additional
categories of information that can be requested to cover the eventuality
that, in future, changes are made to the factors which are
relevant for the purposes of assessing financial eligibility.
Given that other categories of information are set out in primary
legislation, the affirmative procedure is considered appropriate
for regulations adding to the list of categories.
Clause 107(3) - new paragraph 8 of Schedule 3
to the Access to Justice Act 1999: Power to prescribe types of
benefit for the purpose of the definition of "benefit status"
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
95. New paragraph 8 of Schedule 3 to the Access
to Justice Act provides for certain benefits to be prescribed
by regulations for the purposes of paragraph 6 of Schedule 3 to
the 1999 Act. Paragraph 8 also defines benefit status
as being the type of prescribed benefit an individual receives,
the amount received, and the frequency with which it is paid.
Such regulations will be able to mirror the existing secondary
legislation on benefits and means testing (see the Criminal Defence
Service (Financial Eligibility) Regulations 2006 (SI 2006/2492)).
They will be subject to the negative resolution procedure, in
line with the position for that existing legislation (section
25(9A) and (10) of the 1999 Act provides that, save for the first
exercise of the power, regulations under paragraph 3B of Schedule
3 to the Act are subject to the negative procedure).
Clause 108(3) - new section 18A of the Access
to Justice Act 1999: Power to make regulations as to pilot schemes
Power conferred on: The Lord Chancellor
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
96. Clause 108 amends the Access to Justice Act
1999 to provide for a power to pilot any schemes under secondary
legislation about the Criminal Defence Service. This clause does
not itself confer any powers to make delegated legislation, but
does set out how existing powers to do so are to be exercised.
97. New section 18A of the 1999 Act applies to
any instruments under sections 12, 13, 14, 15, 17, 17A or 22(5)
or paragraphs 1A to 5 of Schedule 3 of that Act, and provides
that they may have effect only for a specified period of up to
twelve months, unless the Lord Chancellor extends this period
by order where necessary to ensure the effective operation of
a scheme or to coordinate it with another relevant pilot scheme,
for up to eighteen months. The Lord Chancellor may further extend
this period in order to cover any gap between the end of the pilot
and wider rollout. Any pilot scheme may apply in relation to one
or more area, type of court, type of offence or class of person.
98. A scheme of delegated legislation currently
operates in relation to the pilot scheme in section 17A (referred
to in section 25(9) of the 1999 Act). Clause 108(4) inserts a
new subsection (9B) into section 25 which provides that any instrument
under new section 18A will be subject to the affirmative resolution
procedure, which is also the current position under section 25(9A).
Clause 111(7) - new section 133A(7) of the Criminal
Justice Act 1988: Power to alter the overall compensation limit
or the earnings compensation limit
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative resolution
Schedule 35, paragraph 11 - new section 276A(7)
of the Armed Forces Act 2007: Power to alter the overall compensation
limit or the earnings compensation limit
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Affirmative resolution
99. Clause 111(7) introduces a new section 133A
into the Criminal Justice Act 1988. Subsections (5) and (6) of
new section 133A impose limits on the overall amount
of compensation payable for a particular miscarriage of justice
and on the amount of compensation payable for a person's
loss of earnings or earnings capacity in any one year. The subsections set the
overall limit at £500,000 and the earnings limit at 1.5
times the median annual gross earnings according to the latest
figures published by the Office for National Statistics at the
time of the assessment.
100. New section 133A(7) provides the Secretary
of State with an order making power to amend these limits. This
power is necessary to enable the limits to be changed from
time to time for policy reasons, to take account of inflation, and/or
to take account of changes in the practices or terminology of
the Office for National Statistics. The flexibility of delegated
legislation is appropriate to allow changes to be made promptly
where required.
101. The affirmative resolution procedure is
appropriate because an order under new section 133A would amend
primary legislation.
102. New section 276A(5) to (7) of the Armed
Forces Act 2006, inserted by paragraph 11 of Schedule 35, contains
similar provision in respect of the armed forces.
Part 7: Criminal Law
Schedule 27, paragraph 9(1): Power to extend certain
provisions of the Customs and Excise Management Act 1979, as amended,
to the Channel Islands or any British overseas territory.
Power conferred on: Her Majesty
Power exercisable by: Order in Council
Parliamentary Procedure: None
103. Paragraph 9 of Schedule 27 provides a power
for Her Majesty by Order in Council to extend certain provisions
of the Customs and Excise Management Act 1979 ("the 1979
Act"), as amended by Schedule 27, to the Channel Islands
or any British overseas territory, with or without modification.
104. The purpose of the amendments made to the
1979 Act by Schedule 27, together with amendments made to the
Nuclear Material (Offences) Act 1983 ("the 1983 Act")
by Part 1 of Schedule 27, is to facilitate ratification by the
UK of certain amendments made in 2005 to the international Convention
on the Physical Protection of Nuclear Material ("the Convention").
The Convention as it stands requires State Parties to provide
in their law for "punishable offences" covering various
descriptions of conduct involving nuclear material. The amended
Convention requires additional descriptions of conduct to be covered
by offences, including conduct in relation to nuclear facilities.
For example, it requires State Parties to provide for an offence
constituted by the misuse of nuclear material with the intention
of causing environmental damage and an offence constituted by
an act directed against a nuclear facility with the intention
of causing death, injury, damage to property or environmental
damage as a result of the emission of radiation or release of
radioactive substances. The amended Convention also requires State
Parties to have offences dealing with the movement of nuclear
material from one State to another without lawful authority. The
offences must carry appropriate penalties which take account of
their seriousness. The Convention requires each State Party to
provide for extraterritorial offences as well as offences constituted
by conduct in its own territory.
105. The 1983 Act implements the offence provisions
of the Convention as they stand (unamended). The UK ratified the
Convention in 1991. Section 7(2) of the 1983 Act provides a power,
exercisable by Order in Council, to extend its provisions, with
or without modification, to any of the Channel Islands, the Isle
of Man or any "colony". The Convention has been applied
to the Channel Islands and the Isle of Man but not to any British
overseas territory. Orders in Council were made under section
7(2) extending the 1983 Act with modifications to Guernsey[5],
Jersey[6]
and the Isle of Man[7].
106. Part 1 of Schedule 27 amends the 1983 Act
to facilitate ratification of the amended Convention. Paragraph
7 updates the reference to "any colony" in section 7(2)
so that it refers to any British overseas territory.
107. The amendments to the 1979 Act made by Part
2 of Schedule 27 form part of the implementation of the Convention
requirement for a serious offence of moving nuclear material between
States without lawful authority. UK law already provides for offences
of exporting, importing or shipping nuclear material contrary
to a prohibition or restriction. The relevant offences are those
in sections 50(2) and (3), 68(2) and 170(1) and (2) of the 1979
Act. Schedule 23 of the Bill amends sections 1, 50, 68 and 170
of the 1979 Act in order to increase the penalty for these offences
from a maximum of 7 years imprisonment on conviction on indictment
to a maximum of 14 years. The purpose is to give effect to the
Convention requirement that the offence must be punishable by
an appropriate penalty which takes account of its seriousness.
108. The power in section 7(2) of the 1983 Act
is clearly confined to the provisions of that Act. If it is decided
that the amended Convention should be extended to the Crown Dependencies
or overseas territories it may be necessary also to extend the
amended provisions of the 1979 Act to those territories, with
or without modification, so as to give full effect to the Convention
requirement for a serious offence of importing or exporting nuclear
material without lawful authority. That is the purpose of the
power in paragraph 9 of Schedule 27.
Part 8: International co-operation in relation
to criminal justice matters
Clause 130(5)(g): Power to specify further financial
penalties.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
Clause 132(4)(b)(vi): Power to specify further
financial penalties - Northern Ireland
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
109. These powers allow the Lord Chancellor to
specify further financial penalties for which enforcement requests
may be made to other Member States. Clauses 130(5) and 132(4)(b)
list the financial penalties that are included and these order
making powers allows the Lord Chancellor to add to the list. The
powers are limited to adding financial penalties within the meaning
of the Framework Decision on financial penalties so the negative
resolution procedure is considered to be appropriate.
Clause 131(4): Power to make provision for further
enforcement of financial penalties - England and Wales
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
where primary legislation is amended or repealed; otherwise negative
resolution
Clause 133(4): Power to make provision for further
enforcement of financial penalties - Northern Ireland.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
where primary legislation is amended or repealed; otherwise negative
resolution
110. These powers allow the Lord Chancellor to
make provision for further steps to be taken to enforce a financial
penalty after the penalty has been sent to another state for enforcement
purposes. There are certain circumstances, set out in the Framework
Decision, where a financial penalty remains unpaid and it will
be returned to the United Kingdom for further enforcement. These
provisions allow the Lord Chancellor to make provision for the
further enforcement of penalties in these circumstances. Given
the technical nature of such provisions, it is considered that
they may be set out in secondary legislation and that the negative
resolution procedure would normally provide the appropriate level
of Parliamentary scrutiny. However, by virtue of clause 196(4),
the power includes a power to modify, amend, repeal or revoke
any Act (including any Act passed in the same session of Parliament
as the Bill, including the Bill itself), any subordinate legislation
made before the passing of this Act, any Northern Ireland legislation
and any instrument made under Northern Ireland legislation prior
to the passing of the Bill. Where any primary legislation is amended
or repealed an Order will be subject to the affirmative resolution
procedure.
Clause 141(3): Power to make further provision
for and in connection with giving effect to the Framework Decision
on financial penalties
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Affirmative
Resolution where primary legislation is amended or repealed; otherwise
negative resolution
111. Clause 141(3) confers power on the Lord
Chancellor to make further provision for and in connection with
giving effect to the Framework Decision on financial penalties.
The power includes a power to modify, amend, repeal or revoke
any Act (including any Act passed in the same session of Parliament
as the Bill, including the Bill itself), any subordinate legislation
made before the passing of this Act, any Northern Ireland legislation
and any instrument made under Northern Ireland legislation prior
to the passing of the Bill. This power is wide but is conferred
for the narrow purpose of giving effect to the Framework Decision.
Where any primary legislation is amended or repealed an Order
will be subject to the affirmative resolution procedure.
Schedule 29, paragraph 7(3): Power by order to
vary 70 euro threshold for enforcement of financial penalties.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
112. The Framework Decision on financial penalties
contains a minimum threshold of 70 Euros. Financial penalties
less than that sum can be refused enforcement in other Member
States. It is likely that this figure will be raised in the future
so this power is needed to amend reference to this figure in the
Schedule. Given that any change to the 70 euro threshold would
need to be agreed by the Member States and incorporated into an
amended Framework Decision, which the UK would then be required
to implement, the Government believes that the negative resolution
procedure is appropriate.
Clause 147 - revised section 27(1) of the Crime
(International Co-operation) Act 2003: Power to transfer functions
under Crime (International Co-operation) Act 2003 in relation
to direct taxation
Power conferred on: Treasury
Power exercisable by: Order made by
statutory instrument
Parliamentary Procedure: Negative resolution
113. Clause 147 amends section 27(1) of the Crime
(International Co-operation) Act 2003 (the 2003 Act), which contains
an order-making power to provide that functions conferred on the
Secretary of State under sections 10, 11 and 13 to 26 of the 2003
Act (which relate to requests from overseas authorities to obtain
evidence in the UK, and to the processing of domestic and overseas
evidence freezing orders) may, in circumstances prescribed in
the order, be exercisable by the Commissioners of Customs and
Excise. The clause also repeals paragraph 14 of Schedule 2 to
the Commissioners for Revenue and Customs Act 2005 which places
restrictions on the exercise of the order-making power in section
27(1) of the 2003 Act. The combined effect of both changes is
that the Treasury may by order provide for functions conferred
on the Secretary of State under sections 10, 11 and 13 to 26 of
the 2003 Act to be exercisable instead by Her Majesty's Commissioners
for Revenue and Customs in relation to direct tax matters.
114. The existing order making power in section
27(1) of the 2003 Act is subject to the negative resolution procedure
and the Government's view is that this is also the appropriate
level of parliamentary scrutiny for the amended provision.
Part 9: Violent Offender Orders
Clause 150(5): Power to provide for applications
for violent offender orders to be made by persons other than a
chief officer of police
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
115. Applications for violent offender orders
(VOOs) may be made by a chief officer of police. The purpose of
this order making power is to enable other persons or bodies to
apply for such orders. This power has been included in the Bill
to give flexibility in the operation of VOOs. It will permit other
persons (such as probation officers) to apply for a VOO if this
is considered desirable at a future date. This power is similar
to the power in section 1A of the Crime and Disorder Act 1998
which enables persons or bodies to be specified as a 'relevant
authority' for the purposes of applying for an anti-social behaviour
order. The power includes the ability for provisions of Part 9
to apply to additional persons/bodies with modifications. This
is necessary as, for example, we do not want a probation officer
to be able to apply to vary a VOO for which the police have applied.
116. This power will be subject to the negative
resolution procedure. The Government considers that this is an
appropriate level of Parliamentary scrutiny for a power of this
nature. The power in section 1A of the Crime and Disorder Act
1998 is also subject to the negative resolution procedure.
Clause 155(5) and (6): Power to issue guidance
relating to the review of Violent Offender Orders made in respect
of person under 17
Power conferred on: The Secretary of
State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
117. The purpose of these powers is to enable
the Secretary of State to issue guidance to those carrying out
or participating in the review of a Violent Offender Order in
order to outline a sensible framework for the conduct of such
reviews in light of the statutory requirements. The guidance would
provide advice to chief officers of police as to whom to invite
to participate in a review (subsection (5)) and would provide
further detail on how a review should be carried out, what particular
matters should be dealt with, who should receive a copy of the
findings of the review and what action is appropriate to take
in consequence of the findings (subsection (6)).
118. Clause 155(4) already requires the annual
reviews of Violent Offender Orders made against young offenders
to include consideration of the extent to which the young person
has complied with the Order, the adequacy of support available
to help him to comply with the Order, and any matters relevant
to whether an application to vary, renew or discharge the Order
should be made. Furthermore, clause 155(2) and (3) already places
the duty to carry out such reviews on the chief officer of police
and specify during which periods the review should occur.
119. There is no parliamentary procedure for
the issue of such guidance since it will be worked up in consultation
with practitioners, it will not conflict with the statutory provisions
governing the review of Violent Offender Orders, and those carrying
out or participating in a review merely have to have regard to
it.
Clause 157(2): Power to prescribe additional information
in respect of a person subject to the violent offender notification
requirements
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
120. Clause 157(2)(h) confers power on the Secretary
of State to amend the violent offender notification requirements
by regulations. Under clause 157(1), violent offenders subject
to the notification requirements are required to inform police
of their name(s), date of birth, national insurance number, home
address and any other address where he regularly resides or stays.
Taking a regulation making power to add to the information which
must be notified by offenders is intended to allow the Secretary
of State to ensure effective monitoring of offenders in light
of changing developments in technology and patterns of behaviour.
As examples, the power could be used to require offenders to notify
their e-mail address or passport numbers.
121. These regulations will be subject to the
affirmative resolution procedure. This should ensure the appropriate
level of parliamentary scrutiny of these powers, given that the
regulations will be imposing additional requirements on those
persons subject to the violent offender notification scheme and
that failure to comply with the notification requirements is a
criminal offence.
Clause 158(2) and (3): Power to require notification
where there is a change in circumstances, and the details in respect
of such changes in circumstances where a person is subject to
the violent offender notification scheme
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
122. Under clause 158, if a person subject to
the violent offender notification scheme changes their details,
for example, by moving house, they must notify the police of this
change within 3 days (together with the required information set
out in clause 158(2)). Subsections (2) and (3) ensure that where
the Secretary of State adds an additional requirement to the violent
offender notification requirements requiring further information
to be notified to the police under clause 157(2)(h), he will also
have the power to require the offender to notify the police of
any change in these additional details.
123. It is intended that the affirmative resolution
procedure will provide the appropriate level of parliamentary
scrutiny in line with the regulation making power provided under
section 157(2).
Clause 159(5): Power to specify frequency with
which a person subject to the violent offender notification scheme
who has no sole or main residence in the UK must notify the police
of the required information
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
124. This subsection allows the Secretary of
State to make the reporting requirements more frequent for those
violent offenders who do not have a sole or main residence, but
who are nevertheless in the UK. Under clause 159, all violent
offenders subject to the notification requirements will be required
to notify the police annually of the information specified in
clause 157(2). However, it is felt appropriate to provide for
more frequent notification requirements in relation to homeless
offenders who may otherwise be able to abscond more easily, as
they only need notify the police of an address or location where
they can be found regularly. It is also intended to prevent exploitation
of the provisions by those offenders with a main or sole residence
who nevertheless attempt to register as homeless in an attempt
to evade the police. The frequency of reporting is to be set out
in regulations in order that it can be varied in accordance with
operational experience.
125. It is intended that the affirmative resolution
procedure will provide the appropriate level of parliamentary
scrutiny in line with the regulation making powers provided in
clauses 157 and 158.
Clause 160(1): Power to make regulations with
respect to persons subject to a VOO in relation to travel outside
the United Kingdom
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
126. This clause forms part of the notification
regime that will apply to persons subject to a VOO. Regulations
may require such persons to give a notification before they leave
the United Kingdom and if they subsequently return to the United
Kingdom. The level of detail that will be needed for these regulations
means that it is appropriate for this to be set out in delegated
legislation. The regulations are subject to the affirmative resolution
procedure, which the Government considers is appropriate given
that they will be imposing additional requirements on persons
subject to a VOO. A close precedent for this power is in section
86 of the Sexual Offences Act, which is also subject to the affirmative
procedure.
Clause 167(2): Power to make regulations requiring
notice to be given when a person subject to a VOO is in prison,
service detention or is detained in a hospital.
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
127. This clause applies when a person subject
to a VOO is serving a sentence of imprisonment, a term of service
detention or is detained in a hospital. Regulations may require
the person who is responsible for such a person to give notice
that he has become so responsible and when the person is released.
The level of detail that will be required makes these provisions
suitable for inclusion in delegated legislation. The regulations
will be subject to the negative resolution procedure. The Government
considers that this is an appropriate level of Parliamentary scrutiny.
There is a close precedent for this power in section 96 of the
Sexual Offences Act 2003, which is also subject to the negative
resolution procedure.
Part 10: Anti-Social Behaviour
Schedule 30 - new section 11A(10) of the Anti-social
Behaviour Act 2003: Power to specify premises or description of
premises in respect of which closure powers do not apply
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
128. The powers to issue closure notices and
apply for closure orders in respect of premises on which there
has been anti-social behaviour and significant and persistent
disorder or persistent serious nuisance to members of the public
extend to all types of premises. It is expected that police and
local authorities will exercise discretion in accordance with
guidance so as not to use the powers inappropriately.
129. The purpose of the power in new section
11A(10) of the Anti-social Behaviour Act 2003 is to enable the
Secretary of State to specify by regulations premises or descriptions
of premises to which the powers do not apply if, as a result of
subsequent consultation with practitioners, that is deemed appropriate.
An identical power exists in respect of the current closure powers
for premises associated with Class A drugs under Part 1 of the
Anti-social Behaviour Act 2003.
130. The negative resolution procedure provides
an appropriate level of scrutiny for three reasons: the power
could only be used to restrict the universal application of the
closure powers on the face of the clause. The precedent in section
1(9) of the Anti-social Behaviour Act 2003 already attracts the
negative procedure; and the power would only be exercised following
consultation with practitioners.
Clause 172(1): Power to publish guidance in respect
of the power to remove persons causing nuisance or disturbance
on NHS premises
Power conferred on: The Secretary of
State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
Schedule 31, paragraph 3(1): Power to publish
guidance in respect of the power to remove persons causing nuisance
or disturbance on HSS premises
Power conferred on: The Department of
Health, Social Services and Public Safety
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
131. Clause170 creates an offence of causing
a nuisance or disturbance to NHS staff on NHS premises to address
behaviour which disrupts NHS staff in the performance of their
duties and affects the delivery of healthcare. Clause 171 allows
police constables or members of staff authorised by English NHS
trusts, Primary Care Trusts and NHS foundation trusts to remove
an individual suspected of committing the offence. Clause 172
provides for the Secretary of State to prepare and publish guidance
about the exercise of the powers under clause 171. Schedule 31
makes similar provision in respect of HPSS premises in Northern
Ireland.
132. The primary legislation contains the main
safeguards in relation to the power to remove a person to ensure
that those seeking medical advice, treatment or care are not capable
of committing the offence (clause 170(1)(c)) and further, that
a person cannot be removed if the authorised officer has reason
to believe that the person requires medical advice, treatment
or care, or that removal will endanger his physical or mental
health (171(4)).
133. However, the guidance under clause 172 (and
paragraph 3 of Schedule 31) will assist health bodies to ensure
that they exercise their powers effectively and equitably and
it is intended that it will set out detailed guidelines for NHS
trusts, Primary Care Trusts and NHS foundation trusts 9and the
equivalent Northern Ireland bodies) to ensure that there are further
safeguards in place to prevent inappropriate use of the powers.
Both the authorised officers and the NHS bodies will be under
a duty to have regard to this guidance and clause 172(2) provides
some detail on the types of issue that will be covered by the
guidance.
134. The level of detail and the changes that
may be required from time to time make this inappropriate for
primary legislation. In addition, it would not be appropriate
to place mandatory requirements on health bodies in relation to
these functions. These functions are designed to be managed and
implemented locally in order to meet specific needs for individual
health bodies. Furthermore, each instance of nuisance and disturbance
behaviour is likely to be different, making mandatory requirements
prescribing the exact procedures to be followed unsuitable. Instead,
the aim of the guidance is to provide an outline of best practice
and to alert health bodies and authorised officers to the types
of matters to be considered and types of procedures to be put
in place before exercising the power of removal. This will place
a responsibility on the health body and/or authorised officer
to assess each case on its merits, which is more likely to ensure
that a person's rights are safeguarded.
135. Parliamentary scrutiny is not considered
appropriate for guidance with this detailed level of provision.
However, there is a duty on the Secretary of State (and the Department
of Health, Social Services and Public Safety) to consult with
relevant parties before publishing such guidance.
Clause 174(1) - new section 1J(7) of the Crime
and Disorder Act 1998: Power to issue guidance relating to the
review of anti-social behaviour orders made in respect of person
under 17
Power conferred on: The Secretary of
State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
136. The purpose of the power in new section
1J(7) of the Crime and Disorder Act 1998 is to enable the Secretary
of State to issue guidance to those carrying out or participating
in the review of an ASBO in order to outline a sensible framework
for carrying out the reviews in light of the statutory requirements.
The guidance would provide further detail on how the review should
be carried out, what particular matters should be dealt with,
and what action is appropriate to take in consequence of the findings.
137. New section 1J(6) already requires the annual
reviews of ASBOs against under 18 to include consideration of
the extent to which the child or young person has complied with
the ASBO, the adequacy of support available to help him to comply
with the ASBO, and any matters relevant to whether an application
to vary or discharge the ASBO should be made. Furthermore, new
section 1J(2) and (3) already specify during which periods the
review should occur and new section 1K(1)-(6) specify who must
carry out the review, who must co-operate in it, and who may be
invited to it by whom.
138. There is no parliamentary procedure for
the issue of such guidance since it will be worked up in consultation
with practitioners, it will not conflict with the statutory provisions
governing ASBO reviews, and those carrying out or participating
in a review merely have to have regard to it.
Part 11: Policing
Schedule 32, paragraph 3: Modification of power
to make regulations for police forces and special constables in
section 50 of the Police Act 1996
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
139. Section 50(3) of the Police Act 1996 currently
provides (in paragraph (a)) that regulations under section 50
shall establish procedures for cases in which members of a police
force may be dealt with by a number of specified sanctions, including
dismissal, requirement to resign, fine, reprimand and caution.
It also provides (in paragraph (b)) that regulations shall secure
that any case in which a senior officer may receive one of the
sanctions specified in paragraph (a) is decided by the police
authority for that officer's force. This section is being replaced
by a new section 50(3) under which regulations shall establish
procedures for disciplinary proceedings in respect of the conduct,
efficiency and effectiveness of members of police forces including
procedures for cases in which such persons may be dealt with by
dismissal.
140. This amendment is being made because under
the proposed new procedures for dealing with police misconduct
and performance, not all of the sanctions currently specified
in section 50(3) will be available. Requiring regulations only
to provide for the sanction of dismissal ensures that the procedures
will be able to deal effectively with the most serious cases but
also that there will be the necessary flexibility in the regulations
to provide only such other sanctions as are considered necessary.
141. The existing section 50(3)(b) is being removed
because under the new policy the panel conducting the proceedings
for senior officers will make its finding and impose the sanction
itself, rather than the police authority. The Government does
not think that it is necessary to make any replacement for this
section in the Police Act. The Secretary of State, in consultation
with the Police Advisory Board for England and Wales can appropriately
decide who should impose sanctions on senior officers (as he will
do in relation to non-senior officers).
142. Before regulations under section 50 can
be made, a draft of them must be sent to the Police Advisory Board
for England and Wales and the representations of that Board must
be taken into account by the Secretary of State. Regulations under
section 50 are already subject to the negative resolution procedure.
The Government considers this continues to provide an appropriate
level of Parliamentary scrutiny.
Schedule 32, paragraph 4 - amendment to section
51 of the Police Act 1996: power to make regulations for special
constables
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
143. Under section 51(2)(ba) of the Police Act
1996, regulations can already be made containing provision with
respect to the conduct of special constables and the maintenance
of discipline. Paragraph 4(2) of schedule 19 amends this provision
by including a reference to "efficiency and effectiveness".
The reason for this amendment is to enable the new performance
regulations to apply to special constables; the existing regulations
only apply to members of a police force. This amendment provides
clear vires for such regulations to be made.
144. Paragraph 4(3) inserts a new section 51(2A),
which mirrors the new section 50(3). This section is being inserted
to ensure that regulations under section 51 establish procedures
for disciplinary proceedings and provide for the sanction of dismissal.
This will ensure that the procedures can deal effectively with
the most serious cases but also that there will be the necessary
flexibility in the regulations to provide only such other sanctions
as are considered necessary.
145. Regulations under section 51 are already
subject to the negative resolution procedure. The Government considers
this continues to provide an appropriate level of Parliamentary
scrutiny.
Schedule 32, paragraph 7 - new section 84(1) of
the Police Act 1996: Power to make regulations in relation to
representation at disciplinary hearings
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
146. The entitlement to representation at disciplinary
proceedings is currently set out in section 84 of the Police Act
1996. This section is being replaced with a duty on the Secretary
of State to make regulations setting out an officer's entitlement
to representation at proceedings. The regulations will also make
provision for the person(s) conducting the proceedings to receive
advice.
147. The entitlement to representation will be
set out in secondary legislation to provide the necessary flexibility.
Different regulations will be made covering misconduct and performance
and the entitlement to legal representation will arise in different
circumstances under each of these sets of regulations. Further,
the non-legal persons who may represent an officer will be different
in the case of police officers and special constables.
148. New section 84(2) sets out particular matters
that may be included in the regulations; new section 84(3) sets
out particular matters that the regulations must contain. These
provisions therefore provide details as to the content of the
regulations. Overall, the level of detail required under section
84 means that it is appropriate for this to be set out in secondary
legislation.
149. Before the regulations can be made, a draft
of them must be sent to the Police Advisory Board for England
and Wales and the representations of that Board must be taken
into account. The regulations will be subject to the negative
resolution procedure. Given the requirement to consult and the
fact that the power will set out entitlement to representation
and advice, the Government considers this will provide an appropriate
level of Parliamentary scrutiny.
Schedule 32, paragraph 7 - new section 84(4) of
the Police Act 1996: power to make regulations prescribing the
person or panel of persons who will conduct disciplinary proceedings
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
150. This power enables the make up of "the
panel" for the purposes of new section 84 of the Police Act
1996 to be prescribed in regulations. Depending on the circumstances,
the panel will be made up of one person or a group of persons.
This power gives flexibility to provide for the different types
of disciplinary proceedings that can arise and is therefore an
appropriate way of defining "the panel" for the purposes
of section 84.
151. Before the regulations can be made, a draft
of them must be sent to the Police Advisory Board for England
and Wales and the representations of that Board must be taken
into account. The regulations will be subject to the negative
resolution procedure. Given the requirement to consult and the
nature of the power, the Government considers this will provide
an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 7 - new section 84(5) of
the Police Act 1996: Power to prescribe circumstances where "relevant
authority" also includes Independent Police Complaints Commission
(IPCC).
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
152. The circumstances in which the IPCC will
be a "relevant authority" for the purposes of new section
84 will be set out in regulations. This is to provide sufficient
flexibility and because the Government considers that the level
of detail required to specify these circumstances is appropriately
set out in regulations. Before the regulations can be made, a
draft of them must be sent to the Police Advisory Board for England
and Wales and the representations of that Board must be taken
into account. The regulations will be subject to the negative
resolution procedure. Given the requirement to consult and the
nature of the power, the Government considers this will provide
an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 8(2) - new section 85(1)
of the Police Act 1996: duty to make rules prescribing the cases
in which an appeal may be made to the Police Appeals Tribunal
(PAT)
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
153. The circumstances in which a member of a
police force may currently appeal to a PAT are set out in section
85(1). Rather than provide that an officer who has received a
particular sanction may appeal to the PAT (as in section 85 at
the moment), the new policy is that an officer may appeal to the
PAT where a particular finding has been made against him, such
as gross misconduct or unsatisfactory performance (regardless
of the sanction imposed). As these terms will be defined in regulations,
the Government does not consider it appropriate to refer to these
terms in the primary legislation. Therefore, the circumstances
in which an officer may appeal to the PAT will all be set out
in rules.
154. Before the rules can be made, a draft of
them must be sent to the Police Advisory Board for England and
Wales and the representations of that Board must be taken into
account. The rules will be subject to the negative resolution
procedure. Given the requirement to consult and the fact that
the power creates entitlement to appeal to the PAT, the Government
considers this will provide an appropriate level of Parliamentary
scrutiny.
Schedule 32, paragraph 8(3) - new section 85(4)
of the Police Act 1996: Modification of existing power to make
rules governing procedures on appeal to Police Appeal Tribunal
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary Procedure: Laid before Parliament
155. Section 85(3) currently contains a power
to make rules as to the procedure on appeals to the PAT. Paragraph
8(3) modifies this power in two respects. First, it provides that
such rules may specify the circumstances in which a PAT may determine
a case without a hearing. The circumstances in which a PAT can
currently determine a case without a hearing are set out in paragraph
6(1) of Schedule 6 to the Police Act 1996. The Government has
decided to set these circumstances out in the rules because it
is a procedural matter and is related to the issue of representation
at a PAT which is dealt with below. The Government considers it
appropriate for both matters to be dealt with in the rules.
156. Second, it provides that the rules may make
provision for the representation of the appellant and the respondent
in a hearing before the PAT. The entitlement to representation
before a PAT is currently set out in paragraph 6(2) of Schedule
6 to the Police Act 1996. The Government has decided to set such
entitlement out in the rules to provide the necessary flexibility.
An officer who appeals to a PAT will be entitled to legal representation
or to representation by a specified person. Different persons
will be specified in the case of police officers and special constables.
157. Before the rules can be made, a draft of
them must be sent to the Police Advisory Board for England and
Wales and the representations of that Board must be taken into
account. The rules are required to be laid before Parliament after
they are laid. Given the nature of this power, the Government
considers that this provides an appropriate level of Parliamentary
scrutiny.
Schedule 32, paragraph 9(2) - new section 87(1)
of the Police Act 1996: Power to issue guidance concerning disciplinary
proceedings
Power conferred on: The Secretary of
State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
158. Section 87 of the Police Act 1996 already
contains a power for the Secretary of State to issue guidance
to specified persons as to the discharge of their functions in
relation to disciplinary proceedings. Such persons must have regard
to the guidance when discharging these functions. Paragraph 9(2)
amends this power by enabling the Secretary of State to also issue
guidance to special constables and police staff. Special constables
and police staff will have functions under the new conduct and
performance regulations. It is therefore appropriate for this
power to be modified in this way. There is no Parliamentary procedure
for section 87 at present and the Government considers that this
remains appropriate.
Schedule 32, paragraph 14 - revised section 3A(1)
of the Ministry of Defence Police Act 1987: Modification of power
to make regulations relating to disciplinary matters
Power conferred on: The Secretary of
State
Power exercisable by: Regulations by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
159. Section 3A(1) of the Ministry of Defence
Police Act 1987 currently provides that regulations under section
3A shall establish procedures for cases in which a member of the
Ministry of Defence Police may be dealt with by a number of specified
sanctions, including dismissal, requirement to resign, fine, reprimand
and caution. This section is being replaced by a new section 3A
under which regulations shall establish procedures for disciplinary
proceedings in respect of the conduct of members of the Ministry
of Defence Police, including procedures for cases in which such
persons may be dealt with by dismissal.
160. This amendment is being made because under
the proposed new procedures for dealing with police misconduct,
not all of the sanctions currently specified in section 3A will
be available. Requiring regulations only to provide for the sanction
of dismissal ensures that the procedures will be able to deal
effectively with the most serious cases but also that there will
be the necessary flexibility in the regulations to provide only
such other sanctions as are considered necessary.
161. Before regulations
under section 3A are made, a draft of them will be placed through
the MoD Police Committee and the Agency Management Board for comment
and approval. The Chief Officers' Association and the Defence
Police Federation are also consulted throughout the process. Regulations
under section 3A are already subject to the negative resolution
procedure. The Government considers that this continues to provide
an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 - revised section 4(1)
of Ministry of Defence Police Act 1987: Modification of power
by regulations to make provision relating to representation at
disciplinary hearings
Power conferred on: The Secretary of
State
Power exercisable by: Regulations by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
162. The entitlement to representation at disciplinary
proceedings is currently set out in section 4 of the Ministry
of Defence Police Act 1987. This section is being replaced with
a duty on the Secretary of State to make regulations setting out
an officer's entitlement to representation at proceedings. The
regulations will also make provision for the person(s) conducting
the proceedings to receive advice.
163. The entitlement to representation will be
set out in secondary legislation to provide the necessary flexibility.
164. New section 4(2) sets out particular matters
that may be included in the regulations; new section 4(3) sets
out particular matters that the regulations must contain. These
provisions therefore provide details as to the content of the
regulations. Overall, the level of detail required under section
4 means that it is appropriate for this to be set out in secondary
legislation.
165. Before regulations under section 4 are made,
a draft of them will be placed through the MoD Police Committee
and the Agency Management Board for comment and approval. The
Chief Officers' Association and the Defence Police Federation
are also consulted throughout the process. Regulations under section
4 will also be subject to the negative resolution procedure. Given
the requirement to consult and the fact that the power will set
out entitlement to representation and advice, the Government considers
this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 - new section 4(4) of
the Ministry of Defence Police Act 1987: power to make regulations
prescribing the person or panel of persons who will conduct disciplinary
proceedings
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
166. This power enables the make up of "the
panel" for the purposes of new section 4 of the Ministry
of Defence Police Act 1987 to be prescribed in regulations. Depending
on the circumstances, the panel will be made up of one person
or a group of persons. This power gives flexibility to provide
for the different types of disciplinary proceedings that can arise
and is therefore an appropriate way of defining "the panel"
for the purposes of section 4.
167. Before the regulations are made, a draft
of them will be placed through the MoD Police Committee and the
Agency Managements Board for comment and approval. The Chief Officers'
Association and the Defence Police Federation are also consulted
throughout the process. The regulations will be subject to the
negative resolution procedure. Given the requirement to consult
and the nature of the power, the Government considers this will
provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 - new section 4(5) of
the Ministry of Defence Police Act 1987: Power to prescribe circumstances
where "relevant authority" also includes Independent
Police Complaints Commission (IPCC).
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
168. The circumstances in which the IPCC will
be a "relevant authority" for the purposes of new section
4 will be set out in regulations. This is to provide sufficient
flexibility and because the Government considers that the level
of detail required to specify these circumstances is appropriately
set out in regulations. Before the regulations are made, a draft
of them will be placed through the MoD Police Committee and the
Agency Management Board for comment and approval. The Chief Officers'
Association and the Defence Police Federation are also consulted
throughout the process. The regulations will also be subject to
the negative resolution procedure. Given the requirement to consult
and the nature of the power, the Government considers this will
provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 16 - new section 4A(1)
of the Ministry of Defence Police Act 1987: duty to make regulations
prescribing the cases in which an appeal may be made to the Police
Appeals Tribunal (PAT)
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
169. The circumstances in which a member of the
Ministry of Defence Police may currently appeal to an appeals
tribunal are set out in section 4A. Rather than provide that an
officer who has received a particular sanction may appeal to the
appeals tribunal (as in section 4A at the moment), the new policy
is that an officer may appeal to the PAT where a particular finding
has been made against him, such as gross misconduct (regardless
of the sanction imposed). As these terms will be defined in regulations,
the Government does not consider it appropriate to refer to these
terms in the primary legislation. Therefore, the circumstances
in which an officer may appeal to the PAT will all be set out
in regulations.
170. Before regulations under section 4A are
made, a draft of them will be placed through the MoD Police Committee
and the Agency Management Board for comment and approval. The
Chief Officers' Association and the Defence Police Federation
are also consulted throughout the process. Regulations under section
4A will also be subject to the negative resolution procedure.
Given the requirement to consult and the fact that the power creates
an entitlement to appeal to the PAT, the Government considers
that this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 16 - new section 4A(3)
of the Ministry of Defence Police Act 1987: Modification of existing
power to make provision as to procedures on appeal to Police Appeal
Tribunal
Power conferred on: The Secretary of
State
Power exercisable by: Rules made by Statutory
Instrument
Parliamentary Procedure: Negative resolution
171. Section 4A(3) currently contains a power
to make provision as to the procedure on appeals to appeals tribunals
and to make provision equivalent, subject to such modifications
as the Secretary of State thinks fit, to that made in relation
to police appeals tribunals by any provision of Schedule 6 to
the Police Act 1996 or Schedule 3 to the Police (Scotland) Act
1967. Paragraph 16 modifies this power in two respects. First,
it provides that such rules may specify the circumstances in which
a PAT may determine a case without a hearing. The circumstances
in which a PAT can currently determine a case without a hearing
are set out in regulation 9(1) and (2) of the Ministry of Defence
Police Appeals Tribunals Regulations 2004 (SI 2004/652). The Government
has decided to expressly make provision for these circumstances
to be set out in the regulations to reflect the amendments to
Schedule 6 to the Police Act 1996 which omit these circumstances.
The Government considers it appropriate that these matters are
dealt with in the regulations under provisions which are consistent
with the amendments to the Police Act 1996.
172. Second, it expressly provides that the regulations
may make provision for the representation of the appellant and
the respondent in a hearing before the PAT. The entitlement to
representation before a PAT is currently set out in regulation
9(3) of the MDP Appeals Tribunals Regulations 2004. The Government
has decided to expressly make provision for such entitlement to
be set out in the regulations to provide for consistency with
the amendments to the Police Act 1996. An officer who appeals
to a PAT will be entitled to legal representation or to representation
by a specified person. Different persons will be specified in
the case of police officers and senior officers.
173. Before the regulations are made, a draft
of them will be placed through the MoD Police Committee and the
Agency Management Board for comment and approval. The Chief Officers'
Association and the Defence Police Federation are also consulted
throughout the process. Regulations under section 4A will be subject
to the negative resolution procedure. Given the nature of this
power, the Government considers that this provides an appropriate
level of Parliamentary scrutiny.
Schedule 32, paragraph 18: Modification of power
to make general police regulations in relation to the British
Transport Police Force in section 36 of the Railways and Transport
Safety Act 2003
Power conferred on: The British Transport
Police Authority
Power exercisable by: Regulations
Parliamentary procedure None
174. Section 36 of the Railways and Transport
Safety Act 2003 enables the British Transport Police Authority
(BTPA) to make regulations about the government, administration
and conditions of constables or other persons employed in the
service of the Police Force which apply with or without modification
regulations under section 50 of the Police Act 1996 and deal with
matters that could be dealt with by those regulations (section
36(1)). Section 36(2) requires the BTPA to make regulations similar
to the provision made by and under sections 84 and 85 of the Police
Act 1996 (representation at disciplinary proceedings and appeal).
175. Paragraph 18 amends section 36 to require
the Authority to make regulations similar to the provision made
by and under Schedule 6 to the Police Act 1996 (appeals to police
appeals tribunals). This will require the BTPA to make provision
dealing with the constitution and proceedings of police appeals
tribunals. By way of example, the BTPA would use this power to
ensure that the membership of the tribunal includes a representative
of the British Transport Police Federation.
Schedule 32, paragraph 19: Modification of power
to make police regulations relating to special constables of the
British Transport Police Force in section 37 of the Railways and
Transport Safety Act 2003
Power conferred on: The British Transport
Police Authority
Power exercisable by: Regulations
Parliamentary procedure None
176. Section 37 of the Railways and Transport
Safety Act 2003 enables the BTPA to make regulations about the
government, administration and conditions of service of special
constables of the Police Force which apply with or without modification
regulations under section 51 of the Police Act 1996 and deal with
matters that could be dealt with by those regulations (section
37(1)).
177. Paragraph 19 amends section 37 to require
the BTPA to make regulations similar to the provision made by
and under sections 84 and 85 of the Police Act 1996 (representation
at disciplinary and other proceedings, and appeal), and Schedule
6 to the Police Act 1996 (appeals to police appeals tribunals)
in relation to special constables.
Schedule 32, paragraph 20: Modification of power
to make police regulations by the Secretary of State in section
42 of the Railways and Transport Safety Act 2003
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary procedure Negative resolution
178. Section 42 of the Railways and Transport
Safety Act 2003 enables the Secretary of State to make regulations
in relation to the Police Force in respect of any matter about
which he could make regulations under section 50, 51 ,52 or 60
of the Police Act 1996 (section 42(1)). By section 42(3) where
such regulations make provision for a matter specified in section
50(3) of the Police Act 1996 (disciplinary proceedings) they must
also make provision similar to that made by and under sections
84 and 85 of that Act (representation at disciplinary proceedings
and appeal) (section 42(3)).
179. Paragraph 20 amends section 42(3) to require
the Secretary of State to make regulations similar to the provision
made by and under sections 84 and 85 of the Police Act 1996 (representation
at disciplinary and other proceedings, and appeal), and Schedule
6 to the Police Act 1996 (appeals to police appeals tribunals)
in specified circumstances relating to special constables.
180. Before making such regulations, the Secretary
of State has an obligation to consult the BTPA, the Chief Constable
of the British Transport Police Force and certain specified staff
associations (section 42(4)).
Schedule 33, paragraph 3 - new paragraph 19A(7)
of Schedule 3 to Police Reform Act 2002: Power to prescribe information
to be included in a notification in respect of a "severity
assessment"
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
181. New paragraph 19A provides that where there
is an investigation under Schedule 3 into conduct which may amount
to a criminal offence or justify the bringing of disciplinary
proceedings, the investigator shall conduct a 'severity assessment'
as to whether the conduct would amount to misconduct or gross
misconduct and the likely form of any disciplinary proceedings.
He must then give notice to the person under investigation setting
out the matters set out at paragraph 19A(7)(a) to (d). These include
prescribed information about the results of the severity assessment,
notice that the person may submit relevant documents to the investigator
and the time limits for doing so, prescribed information about
any interview conducted as part of the investigation and 'such
other information as may be prescribed'.
182. This notice will mirror the notice to be
given to persons under investigation under the Police (Conduct)
Regulations 2008 (to be made under section 50 of the Police Act
1996) ("the Conduct Regulations") and expands slightly
on the notice already given under regulation 9 of the Police (Conduct)
Regulations 2004. The 'other information' to be set out in the
notice will include the nature of the allegation against the person
concerned and his right to seek advice. The number of matters
and the level of detail to be set out in this notice mean that
it is appropriate for secondary legislation. In light of the nature
of this power and the fact that the Bill sets out the most important
rights of the person under investigation to be included in the
notice means that the negative resolution procedure is appropriate.
Schedule 33, paragraph 3: new paragraph 19B(2)(b)
of Schedule 3 to the Police Reform Act 2002: person of prescribed
description
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
183. New paragraph 19B of Schedule 3 provides
that the officer concerned may, within a time limit, provide statements
and other documents relating to any matter under investigation
to the person investigating and that that person must consider
such documents. It also provides that a person of a prescribed
description may provide relevant documents to the person investigating.
The intention is that the officer concerned's 'police friend'
will be such a prescribed person. The police friend is a police
officer, a police staff member or (in the case of a member of
a police force) a person nominated by the police officer's staff
association, chosen by the officer concerned to assist him throughout
an investigation and disciplinary proceedings. The police friend
has a number of roles under the Conduct Regulations and so it
makes sense for the person to be prescribed under these Regulations;
the negative procedure is considered appropriate.
Schedule 33, paragraph 3 - new paragraph 19C(1)
of Schedule 3 to the Police Reform Act 2002: Power to make provision
as to the procedure to be followed in interview of person whose
conduct is being investigated
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
184. Where an investigation under Schedule 3
is conducted into conduct which may amount to a criminal offence
or justify the bringing of disciplinary proceedings, the person
whose conduct is under investigation may ultimately face disciplinary
proceedings (under the Conduct Regulations). There is provision
in the Conduct Regulations about interviews conducted during investigations
under those Regulations. This regulation-making power is to enable
similar provision to be made in respect of interviews conducted
by an investigator appointed under Schedule 3 to the 2002 Act.
The provisions will concern the timing of the interview, the information
to be provided to the person interviewed and the right of that
person to be accompanied (these matters are specifically allowed
for on the face of the Bill). Other matters that the regulations
are intended to cover include that a person accompanying the person
being interviewed may not answer any questions on their behalf.
185. In light of the nature of this power, the
level of detail (there will be a procedure for determining the
timing of the interview) and the fact that similar provision already
exists in Regulations subject to the negative procedure, the negative
resolution procedure is appropriate.
Schedule 33, paragraph 10(4) - new paragraph 22(7)
of Schedule 3 to the Police Reform Act 2002: Power to make provision
as to content of reports
Power conferred on: The Secretary of
State
Power exercisable by: Regulations by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
186. Where an investigation under Schedule 3
is conducted into conduct which may amount to a criminal offence
or justify the bringing of disciplinary proceedings, this regulation-making
power allows the Secretary of State to provide that the report
must include specified matters and be accompanied by specified
documents. Provisions made under this power will mirror provisions
in the Conduct Regulations. They will provide that the report
will provide an accurate summary of the evidence, will attach
relevant documents and indicate the investigator's opinion as
to whether or not there is a case to answer in respect of misconduct
or gross misconduct. This regulation-making power will allow reports
submitted on these types of investigations to be in a similar
format to reports submitted on investigations into the conduct
of police officers under the Conduct Regulations.
187. The information to be included in and attached
to the investigation report may need to change as the requirements
of the new disciplinary system become clear over time. This information
is already provided for reports submitted under the Conduct Regulations
and so it makes sense for this information also to be included
in secondary legislation for reports submitted under the similar
system in the Police Reform Act 2002. The nature of the power
is suitable for the negative resolution procedure.
Schedule 33, paragraphs 11(3) and 12(3) - new
paragraphs 23(2A) and 24(2A) of Schedule 3 to the Police Reform
Act 2002: Power to prescribe category of matters dealt with in
an investigation report for purposes of paragraphs 23(2) and 24(2)
of the 2002 Act respectively
Power conferred on: The Secretary of
State
Power exercisable by: Regulations by
Statutory Instrument
Parliamentary Procedure: Negative Resolution
188. Amended paragraphs 23(2) and 24(2) of Schedule
3 to the Police Reform Act 2002 provide that the Independent Police
Complaints Commission ("IPCC") and the appropriate authority
(respectively) must, on receipt of a report into an investigation
conducted under Schedule 3, determine whether the conditions set
out in new paragraphs 23(2A) and 24(2A) are satisfied. If the
conditions are satisfied, they must refer the report to the Director
of Public Prosecutions ("DPP"). The first condition
is that there is an indication that a criminal offence may have
been committed by the person whose conduct was investigated. The
second condition is that either the IPCC/appropriate authority
considers the matter should be considered by the DPP or that the
matters in the report fall within a prescribed category of matters.
It may be that there are categories of cases which the Secretary
of State considers should be referred to the DPP in all circumstances
and where it is therefore not appropriate to leave to the discretion
of the IPCC/appropriate authority whether or not the matter is
so referred. An example of such a category might be fatal police
shootings. A regulation-making power is required as it may be
that it transpires over time that the categories need to be changed.
189. The main change being made to the test for
when matters are to be referred to the DPP is to add in a discretion.
At present the test is simply when the report indicates that a
criminal offence may have been committed. This has led to excessive
numbers of unmeritorious cases being referred. If Parliament considers
the discretionary element of the referral test is appropriate,
the power to add back in categories of cases that must be referred
is an appropriate matter for the negative resolution procedure.
Schedule 33, paragraph 17 - new paragraph 29 of
Schedule 3 to the Police Reform Act 2002: definitions of 'gross
misconduct' and 'misconduct'
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Negative Resolution
190. New paragraph 29 of Schedule 3 provides
that the terms 'gross misconduct' and 'misconduct' which are used
in some of the other new provisions in Schedule 3 have meanings
given in regulations. In particular, following completion of the
investigation, the appropriate authority must determine whether
the officer concerned has a case to answer in respect of misconduct,
gross misconduct or neither and must, in specified circumstances,
report to the Independent Police Complaints Commission on its
determination. These terms are already being used in the Conduct
Regulations in respect of cases investigated under those Regulations,
and the determination made following the completion of an investigation
carried out either under Schedule 3 or the Conduct Regulations
is to be the same. The definition refers to the Schedule to the
Conduct Regulations which sets out the standards of professional
behaviour required of a police officer. Again therefore it makes
sense for these terms to be defined in secondary legislation,
and the negative procedure is considered to be appropriate. The
terms 'gross misconduct' and 'misconduct' may also be used in
respect of police staff members, whose disciplinary procedure
is not set out in the Conduct Regulations. Other regulations may
therefore set out different definitions in respect of police staff
members, but again, the negative procedure will be appropriate.
Part 12: Special immigration status
Clause 186(6): Power to repeal, modify or disapply
clause 185(4) which provides that support must not be provided
wholly or mainly by way of cash
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
191. Clause 185(4) provides that, support under
section 95 of the Immigration and Asylum Act 1999 (as applied
to a designated person in accordance with Part 11) may not be
provided wholly or mainly by way of cash unless the Secretary
of State thinks it appropriate because of exceptional circumstances.
192. Clause 186(6) provides a power by order
to repeal, modify or disapply (to any extent) clause 185(4); and
an order may make provision generally or only for specified cases
or circumstances and may make different provision for different
cases or circumstances.
193. It is submitted that this is an appropriate
use of delegated power. The current intention is that clause 185(4)
should not be disapplied and therefore it would not be possible
to make provision for its disapplication other than by delegated
power. However, it is important to have this power to ensure that
the support scheme can be operated in a more flexible manner if
the circumstances require it. Further, if the temporary difficulties
which made the disapplication of clause 185(4) necessary to continue,
it might be necessary, after evaluating the circumstances, for
the Secretary of State to exercise the power to repeal the provision.
194. Under clause 196 the order is exercisable
by statutory instrument subject to the draft affirmative procedure.
This is because the concept of support mainly in kind (and by
vouchers) is a central principle of the support scheme; and it
is thought right that Parliament should have the right to debate
its disapplication, modification or removal. Further, the power
also entails the amendment of primary legislation.
Clause 186(7): A remedial order made under section
10 of the Human Rights Act 1998 which amends a provision mentioned
in clause 185(6) may amend or repeal clause 185(6)
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
unless it appears to the Secretary of State that, because of the
urgency of the matter, it is necessary to make the order without
a draft being so approved
195. Clause 185(6) provides that a designated
person shall not be treated as a person subject to immigration
control for the purposes of section 161(1)(b) of the 1999 Act
or as a person from abroad who is not eligible for housing assistance
for the purposes of section 185(4) of the Housing Act 1996.
196. Section 185(4) of the Housing Act provides
that a person from abroad who is not eligible for housing assistance
shall be disregarded in determining for the purposes of Part VII
of that Act whether another person is homeless or threatened with
homelessness or has a priority need for accommodation. Section
119(1)(b) of the 1999 Act is the equivalent provision in relation
to Scotland and Northern Ireland. In the case of R (Morris)
v Westminster City Council and another the Court of Appeal
made a declaration of incompatibility in relation to section 185(4)
of the Housing Act.
197. Action has not yet been taken to remove
the incompatibility and so clause 186(6) is necessary. However,
if a remedial order under section 10 of the Human Rights Act 1998
is used to remove the incompatibility, clause 186(7) provides
that clauses 185(6) may be amended or repealed. It is submitted
that this is an appropriate use of delegated power as it will
allow designated persons to be treated in the same manner as persons
subject to immigration control once there is a remedy for the
incompatibility. This will be achieved by way of the remedial
order made under section 10 of the Human Rights Act which is exercisable
by statutory instrument subject to the draft affirmative procedure
unless there is great urgency.
Clause 187(3): power to prescribe a grace period
for the continuation of support
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory
Instrument
Parliamentary procedure: Negative resolution
198. Clause 187(2) provides that after designation
lapses support may not be provided, subject to a number of exceptions.
Clause 187(3) sets out exception 1: that if designation lapses
because a designated person is granted leave to enter or remain
in the United Kingdom or is notified of a right of residence in
the United Kingdom by virtue of the Community treaties, support
may be provided in respect of a period which ends on a date determined
in accordance with an order of the Secretary of State.
199. It is submitted that this is an appropriate
use of delegated power because it provides flexibility to alter
the period during which a person continues to receive support.
It is further submitted that the negative resolution procedure
provides an appropriate level of Parliamentary control.
Clause 187(4): power to prescribe a grace period
for the continuation of support
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory
Instrument
Parliamentary procedure: Negative resolution
200. Clause 187(2) provides that after designation
lapses support may not be provided, subject to a number of exceptions.
Clause 187(4) sets out exception 2: that if designation lapses
because a designated person is made the subject of a deportation
order support may be provided in respect of any period during
which an appeal against the deportation order may be brought,
any period during which such an appeal is pending and, after an
appeal ceases to be pending, such period as the Secretary of State
may specify by order.
201. As with clause 187(3), it is submitted that
this is an appropriate use of delegated power because it provides
flexibility to alter the period during which a person continues
to receive support. It is further submitted that the negative
resolution procedure provides an appropriate level of Parliamentary
control.
Part 13: Miscellaneous
Clause 190 - new section 127A of the Criminal
Justice and Public Order Act 1994: Power to suspend, and subsequently
revive, the operation of section 127
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Negative Resolution
202. Clause 190 confers power on the Secretary
of State to suspend the operation of section 127 of the Criminal
Justice and Public Order Act 1994. If section 127 is suspended
it can be revived by a subsequent order. Orders may make different
provision in relation to different descriptions of prison officer.
It is expected that the operation of section 127 could be suspended
in relation to prison officers in respect of whom the Secretary
of State is content that there exists equivalent protection from
industrial action, whether by legally enforceable voluntary agreement
or otherwise. Clause 190 implements a suggestion of the Delegated
Powers and Regulatory Reform Committee in their report on draft
Regulatory Reform (Prison Officers) (Industrial Action) Order
2004 (see paragraph 10 of the Second Report of Session 2004-05,
13 December 2004). The Bill currently provides for the negative
resolution procedure to apply. This is considered an appropriate
level of parliamentary scrutiny when the operation of section
127 is suspended, however, the Secretary of State for Justice
indicated at Commons Report Stage (Hansard 9 January 2008, col
333) that the Bill would be amended to provide for the affirmative
procedure to apply to any order that reactivated section 127.
Clause 193(1) - new section 83(5)(h) of the Sexual
Offences Act 2003: Power to prescribe additional information in
respect of a person subject to the sex offender notification requirements
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
203. Clause 193(1) confers power on the Secretary
of State to amend the sex offender notification requirements by
regulations. At present, under section 83(5) of the Sexual Offences
Act 2003, sex offenders subject to the notification requirements
are required to inform police of their name, date of birth, national
insurance number, home address and any other address where he
regularly stays. Taking a regulation making power to add to the
information which must be notified by offenders is intended to
allow the Secretary of State to ensure effective monitoring of
offenders in light of changing developments in technology and
patterns of behaviour. As examples, the power could be used to
require sex offenders to notify their e-mail address or passport
numbers or to require the offender to inform the police if he
or she forms a relationship with a person who has children under
18.
204. Paragraph 53(1) to Schedule 36 will allow
the Secretary of State to change the notification requirements
in respect of particular categories of offender, for example,
those who have committed sexual offences against children.
205. These regulations will be subject to the
affirmative resolution procedure. This should ensure the appropriate
level of parliamentary scrutiny of these powers, given that the
regulations will be imposing additional requirements on those
persons subject to the sex offender notification scheme and that
failure to comply with the notification requirements is a criminal
offence.
Clause 193(2) - section 84(1) and (2) of the Sexual
offences Act 2003, as amended: Power to require notification of
changes in circumstances, and the details in respect of such changes
in circumstances where a person is subject to the sex offender
notification scheme
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
206. Currently, if a person subject to the sex
offender notification scheme changes their details, for example,
by moving house, they must notify the police of this change within
3 days. Subsections 193(2) to (5) ensure that where the Secretary
of State adds an additional requirement to the sex offender notification
requirements requiring further information to be notified to the
police under new section 83(5)(h) of the Sexual Offences Act 2003,
he will also have the power to require the offender to notify
the police of any change in these additional details.
207. It is intended that the affirmative resolution
procedure will provide the appropriate level of parliamentary
scrutiny in line with the regulation making power provided under
section 167(1).
Clause 193(9) - new section 85((5) of the Sexual
Offences Act 2003: Power to specify frequency with which a person
subject to the sex offender notification scheme who has no sole
or main residence in the UK must notify the police of the required
information
Power conferred on: The Secretary of
State
Power exercisable by: Regulations made
by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
208. This subsection allows the Secretary of
State to make the reporting requirements more frequent for those
sex offenders who do not have a sole or main residence, but who
are nevertheless in the UK. Currently, all sex offenders subject
to the notification requirements must notify the police annually
of the information specified in section 83(5) of the Sex Offenders
Act 2003. However, it is felt appropriate to provide for more
frequent notification requirements in relation to homeless offenders
who may otherwise be able to abscond more easily, as they only
need notify the police of an address or location where they can
be found regularly. It is also intended to prevent exploitation
of the provisions by those offenders with a main or sole residence
who nevertheless attempt to register as homeless in an attempt
to evade the police. The frequency of reporting is to be set out
in regulations in order that it can be varied in accordance with
operational experience. It will also allow for different provisions
to be made according to the category of homeless offender.
209. It is intended
that the affirmative resolution procedure will provide the appropriate
level of parliamentary scrutiny in line with the regulation making
powers provided in the other parts of this clause.
Part 14: General
Clause 197(3) power to make provision which is
supplementary, incidental, consequential etc. on the Bill
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: Affirmative resolution
where primary legislation is amended or repealed; otherwise negative
resolution
210. Clause 197(3) confers power on the Secretary
of State to make such supplementary, incidental, consequential,
transitory, transitional or saving provision as he considers appropriate
for the purposes of the Bill. The power includes a power to amend
or repeal any Act, Northern Ireland legislation or subordinate
legislation including the Bill (clause 196(4)).
211. The powers conferred by clause 197 are wide.
But there are various precedents for such provisions including
section 333 of the Criminal Justice Act 2003, section 173 of the
Serious Organised Crime and Police Act 2005 and section 51 of
the Police and Justice Act 2006. There are significant changes
made by the Bill to existing primary legislation and it is possible
that not all of the consequences of them have been identified
in the Bill's preparation. To the extent that an order under this
clause amends or repeals primary legislation, it will be subject
to the affirmative resolution procedure (see clause 196(3)(l)).
Otherwise, the order will be subject to the negative resolution
procedure. It is submitted that this provides the appropriate
level of parliamentary scrutiny for the powers conferred by this
clause.
Schedule 36, paragraph 68 - power to issue guidance
to responsible authorities in respect of their functions in respect
of the disclosure of information about convictions of child sex
offenders
Power conferred on: Secretary of State
Power exercisable by: Statutory guidance
Parliamentary procedure: None
212. Guidance is already provided to MAPPA authorities
explaining how they should approach decisions to disclose information
about child sex offenders to members of the public. Paragraph
68 allows for the Secretary of State to issue statutory guidance
to which the MAPPA authorities must have regard in discharging
their duty to consider disclosure. This is intended to ensure
consistency across MAPPA areas, an issue identified by the Review
of the Protection of Children from Sex Offenders. There is no
Parliamentary procedure for issuing this guidance and the Government
considers that this remains appropriate.
Clause 201(3) to (5): Commencement power
Power conferred on: Lord Chancellor;
Department of Health, Social Security and Public Safety; and Secretary
of State
Power exercisable by: Order made by
statutory instrument
Parliamentary Procedure: None
213. Subsections (4) to (6) of clause 201 contain
standard powers to bring provisions of the Bill into force by
commencement order. They are conferred on the Lord Chancellor
(subsection (4)), the Northern Ireland Department of Health, Social
Security and Public Safety (subsection (5)), and the Secretary
of State (subsection (6)). As usual with the commencement orders,
they are not subject to any parliamentary procedure. Parliament
has approved the principle of the provisions to be commenced by
enacting them; commencement by order enables the provisions to
be brought into force at a convenient time.
Ministry of Justice
January 2008
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