Government responses: Apprenticeship, Skills, Children and Learning Bill and Coroners and Justice Bill - Delegated Powers and Regulatory Reform Committee Contents


Letter to the Chairman from Lord Bach, Parliamentary Under Secretary of State at the Ministry of Justice.

1.  I am writing in response to the Committee's report on the Coroners and Justice Bill, which was published on 30 April 2009 (7th Report of Session 2008-09). I am grateful for the work of the Committee in reviewing the Bill

2.  The Government accepts the Committee's two specific recommendations and I have today tabled amendments to clauses 86 and 127 of the Bill to address these. A copy of the amendments is enclosed.

3.   Our response to each of the Committee's conclusions and recommendations is set out below.

Clause 66(10) - Conditions for investigation anonymity orders

Though we consider the House can accept the need to modify those provisions, no justification is given for the possible need to repeal them altogether, which would widen the potential for investigation anonymity orders quite considerably. We draw this to the attention of the House.

4.  The Committee notes that clause 66(10) permits the Secretary of State to repeal, as well as modify, clause 66(4) to (6) and (9). The Government would point out, first, that the power does not extend to subsections (3), (7) and (8). These contain central elements of the investigation anonymity order scheme which should not be capable of modification or removal by subordinate legislation, that is to say, the limitation of the scheme to qualifying offences (subsection (3)), the focus on the witness's fear of harm or intimidation (subsection (7)) and the value of the information to the investigation (subsection (8)).

5.  As pointed out in the Government's memorandum to the Committee, subsections (4) to (6) and (9), which by contrast are capable of modification and repeal, all deal with the concept of a gang. The Government believes that the power to repeal these subsections raises no significant issue and is fully justified. It might, for example, be decided at some future time that the offences to which the Bill applies, namely murder and manslaughter and any further offences which might be added to clause 62, should attract the investigation anonymity order scheme without the need for a gang connection. As the Government has explained in debate, investigation anonymity orders are a novel measure and are targeted at the area of greatest concern, namely gang-related homicides. Furthermore, there will be offences, some of a serious nature, which are inherently difficult to imagine in the gang context, for example sexual offences. Without the power to repeal as well as modify the subsections of clause 66 which restrict the scheme to gang-related investigations, it would not be possible to add this kind of offence in such a way that it had any meaningful effect. The Bill provides the flexibility to apply gang-related conditions to an offence, or not, as appropriate.

Clause 86(2) - Vulnerable and intimidated witness: special measures

We recommend that the exercise of this power should be subject to affirmative procedure.

6.  The Government accepts this recommendation.

Clause 106 - Sentencing guidelines

We draw this difference of approach to the attention of the House.

7.  The Sentencing Council provisions in the Bill implement the recommendations of the independent working group chaired by Lord Justice Gage. A copy of the working group's report 'Sentencing Guidelines in England and Wales: An Evolutionary Approach' (July 2008) is available at:

8.  The majority of the Sentencing Commission Working Group did not support Parliamentary approval of sentencing guidelines. They regarded such a step as a significant and unwarranted change in the relationship between Government and Parliament on the one hand and the judiciary on the other. They also believed that it would inevitably result in the politicisation of the guidelines.

9.  As a result the Government's proposals in the Bill do not change the role of Parliament. Parliament will continue to set the sentencing framework for offences; creating and amending offences and setting maximum, and sometimes minimum, sentences. The Justice Select Committee's current informal scrutiny role will also continue but will be formalised with the Justice Select Committee having been added to the list of those who must be consulted by the Council on draft sentencing and allocation guidelines (see clause 106(6)).

Clause 127 - Implementation of directives; penalties

We recommend either that the offences which may be created by regulations be limited to specific offences such as those described in the memorandum and that a penalty limit (higher than that in paragraph 1(1)(d) of Schedule 2 of the 1972 Act) should be specified in the Bill; or that the affirmative procedure must apply to regulations creating new criminal offences punishable with penalties which would exceed those in paragraph 1(1)(d) of Schedule 2 of the 1972 Act.

10.  We have considered the two alternative recommendations put forward by the Committee. It is intended that this delegated power should be capable of being exercised both in relation to existing offences and to offences which may be created in future which engage the Services or E-Commence Directives, as such specifying particular offences on the face of the Bill would unacceptably narrow the scope of the power. The Government therefore proposed to give effect to the Committee's alternative proposal and apply the affirmative procedure to any exercise of the delegated power in the circumstances provided for in clause 127.

Ministry of Justice

June 2009

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