APPENDIX 6: CRIMINAL JUSTICE AND IMMIGRATION
BILL — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Hunt of Kings
Heath, Minister of State, Ministry of Justice
1. I am writing in response to the Committee's
Report on the Criminal Justice and Immigration Bill, which was
published on 30 January 2008. I am grateful for the work of the
Committee in reviewing the Bill
2. The Government broadly accepts the Committee's
specific recommendations and I have today tabled some amendments
to the Bill to address these. A copy of the amendments is enclosed.
Further amendments in respect of Schedule 18 to the Bill will
be tabled for Report.
3. There are, however, a few issues on which
I would like to respond to the Committee. I address each of the
Committee's recommendations or requests for further information
below.
Report Paragraph 5: Release of prisoners after
recall - Clause 29(2)
4. The Committee asked about the rationale behind
the proposed order-making power to adjust the number of days a
recalled prisoner must serve before being automatically re-released
or, if not released, have their case referred to the Parole Board.
The re-release following recall provisions contained in the Bill
offer a more flexible approach to re-releasing recalled offenders.
The Secretary of State will want to monitor their operation closely.
Operational experience may demonstrate that it is necessary to
amend these periods in order to enhance public protection, improve
future compliance or offer a more proportionate response to breach
of licence conditions. Improved processes may offer scope to amend
the minimum period before a recalled prisoner's case is referred
to the Parole Board. In these circumstances we want to have a
mechanism under which the necessary adjustments can be made swiftly.
5. An absence of the proposed order-making powers
would deny the Secretary of State the opportunity to seek to amend
the periods specified in the Bill other than by primary legislation.
6. The order-making powers are subject to the
affirmative procedure, as such the 28-day period cannot therefore
be adjusted without the approval of both Houses. The Government
believes this provides a sufficient safeguard.
Report Paragraph 8: Alternatives to prosecution
for persons under 18 - Schedule 18, paragraph 3
7. The Bill provides for a code of practice to
be drawn up in relation to the new youth conditional caution and
for it to be laid before Parliament and brought into force by
negative order. The Committee recommended that an order
bringing the first code into force should require the affirmative
procedure but that the negative procedure would afford an adequate
level of scrutiny in respect of subsequent revisions.
8. The Government accepts this recommendation.
Report Paragraph 11: Police misconduct and performance
procedures — Schedule 32, paragraphs 7, 8, 15 and 16
9. These provisions of the Bill concern disciplinary
proceedings and appeals concerning the conduct of police officers
and civilian and Ministry of Defence police personnel. The detailed
provisions regarding rights to legal representation and appeals
will appear in secondary legislation. The Committee drew these
provisions to the attention of the House and recommended that
the first exercise of each of these four powers should attract
the affirmative procedure.
10. The Government accepts this recommendation.
Report Paragraph 12: Police misconduct and performance
procedures — Schedule 33, paragraph 17
11. The Committee expressed concerns that the
power to define in subordinate legislation the terms "gross
misconduct" and "misconduct" was close to a Henry
VIII power and should (in the absence of clear justification)
require the affirmative procedure.
12. The Government proposes to amend the Bill
so that the definitions of 'gross misconduct' and 'misconduct'
appear on the face of the Police Reform Act 2002 as amended by
the Bill. Those definitions will refer to a breach of the Standards
of Professional Behaviour which will be defined in regulations
subject to the negative resolution procedure. The Government does
not consider it necessary to define the Standards in primary legislation,
given the length and detailed nature of the Standards and the
fact that they may be amended from time to time to take into account
changes in policing and police behaviour.
13. Nor is it a novel approach for Standards
to be set out in secondary legislation. The Standards, currently
termed the 'Code of Conduct', are already set out in secondary
rather than primary legislation in the form of Schedule 1 to the
Police (Conduct) Regulations 2004 made under section 50 and 51
of the Police Act 1996. However, to link conduct matters referred
to the Independent Police Complaints Commission with disciplinary
proceedings under the Police Act 2006, it has become necessary
to refer to these terms in the Police Reform Act 2002.
Report Paragraph 15: Foreign criminals: support
- clause 186(6) and (7)
14. Clause 186(6) confers power on the Secretary
of State to order the repeal, modification or disapplication of
clause 185(4), subject to the affirmative procedure. Clause 185(4)
provides that support for designated persons should not be provided
wholly or mainly by way of cash except in exceptional circumstances.
The Committee sought an explanation for this power.
15. Clause 186(6) is a contingency power which
would be used only if unforeseen circumstances arose which meant
it was not possible to provide a reasonable level of support unless
the support was provided wholly or mainly by way of cash.
16. The support regime for Special Immigration
Status is modelled upon Part 6 of the Immigration and Asylum Act
1999, which provides for the support for asylum-seekers. The intention
is that, save in exceptional circumstances, support for designated
persons is not to be provided wholly or mainly by way of cash
(clause 185(4)).
17. We are confident that it will be possible
to construct support arrangements which both meet the support
needs of the person concerned, and conform to this objective.
If this is the case, it will not be necessary to use the power
contained in clause 185(6).
18. However, our experience of running the asylum
seeker support arrangements has shown that it is not always possible
to predict developments. For example, if a chain of stores in
a region were to decide that it would no longer accept vouchers,
this might make it necessary to review the way in which support
was provided in that area.
19. Bearing in mind that support will only be
provided to people who are, or who are likely to become, destitute,
The Government needs to be able to respond quickly to developments
which affect the ability to provide support. The Government does
not believe that primary legislation could be enacted sufficiently
quickly to allow the provision of support to continue; nor would
it be flexible enough to accommodate temporary suspensions of
the restriction - which might be limited to a particular area
- while new arrangements were made. That is why the Government
proposes that the power to modify, disapply or repeal clause 185(4)
should be exercised by order rather than by primary legislation.
Report Paragraph 19: Industrial action by prison
officers - clauses 189 and 190
20. The Committee queried why the power to suspend
the operation of section 127 of the Criminal Justice and Public
Order Act 1994 (which contains the prohibition on inducing prison
officers to take industrial action) cannot appear on the face
of the 1994 Act. The Committee highlighted the option of modifying
the Bill so that the operation of section 127 would be suspended
as respects a union for so long as it had a current agreement
with the Secretary of State not to engage in activity which that
section would otherwise prohibit.
21. The Government does not favour this option
because it is crucial that there is certainty over whether section
127 is in force, given the potentially serious consequences of
industrial action in the Prison estate. If the 1994 Act stated
that section 127 would be suspended while a voluntary agreement
was in force, there would be too serious a risk of disputes as
to whether any agreement was still in force.
22. However the Government has tabled an amendment
to ensure that an order suspending section 127 and any further
order reviving section 127 would attract the affirmative procedure
(see amendment 174A on the Marshalled List for Lords Committee
stage).
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