APPENDIX 2: CORONERS AND JUSTICE BILL
GOVERNMENT RESPONSE |
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
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:
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: http://www.justice.gov.uk/publications/sentencing-commission.htm
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