Infrastructure Bill [HL], Serious Crime Bill [HL], Armed Forces (Service Complaints and Financial Assistance) Bill [HL] - Delegated Powers and Regulatory Reform Committee Contents

Serious Crime Bill [HL]

8.   The Bill had its Second Reading on 16 June. It is in six Parts and covers a range of matters. Part 1 makes provision about the recovery of property derived from the proceeds of crime, making amendments to the Proceeds of Crime Act 2002. Part 2 makes amendments to the Computer Misuse Act 1990. Part 3 provides for a new offence of participating in the activities of an organised crime group and amends the provisions in respect of serious crime prevention orders and gang injunctions. Part 4 provides for the seizure and forfeiture of substances used as drug-cutting agents. Part 5 amends the criminal law in relation to the offences of child cruelty and female genital mutilation, and provides for a new offence of possession of "paedophile manuals". Part 6 provides for or extends extraterritorial jurisdiction in respect of certain offences under the Terrorism Act 2006 and confers Parliamentary approval for two EU decisions. The Home Office have prepared a memorandum for the Committee explaining the delegated powers in the Bill.[2]

Clauses 10 and 30 - Power to amend default sentences

9.   Chapter 1 of Part 1 of the Bill amends provisions of the Proceeds of Crime Act 2002 ("the 2002 Act") which deal with confiscation orders. Clause 10 of the Bill amends section 35 of the Proceeds of Crime Act 2002 to specify the maximum terms which may be imposed by the Crown Court under section 139(2) of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of a confiscation order. The maximum term, which varies according to the amount recoverable under the order, is set out in a table contained in new subsection (2A) of section 35. Broadly, the effect of the amendments is to increase the maximum term where the amount payable under the confiscation order is more than £500,000. New subsection (2C) of section 35 contains an order making power which will allow the Secretary of State to amend the table in subsection (2A). It also allows the Secretary of State to make provision for minimum terms of imprisonment or detention which are to apply for the purposes of section 139(2) of the 2000 Act.

10.   The explanation for the powers conferred by clause 10 are contained in paragraphs 3 to 12 of the department's memorandum. We were disappointed that this explanation contained no specific reasons for including the power to make provision for minimum terms, particularly as it is a feature which is absent from the current legislative framework and there is, as far as we are aware, no comparable precedents in other legislation; certainly none was referred to in the memorandum. In our view, requiring the imposition of a minimum term constitutes a significant derogation from the powers of a court to exercise its own discretion in deciding the appropriate sentence in a particular case. For this reason, we do not believe the question of whether or not, or how, the legislation should provide for minimum terms is something which should be delegated to subordinate legislation. Accordingly we consider that the delegation of powers by clause 10, in so far as it relates to the delegation of the power under section 35(2C)(a) of the 2002 Act to make provision for minimum terms, is inappropriate.

11.   The amendments made by clause 10 apply to England and Wales. Equivalent changes are proposed for Northern Ireland in clause 30. For the same reasons, we consider that the delegation of powers by clause 30, in so far as it relates to the delegation of the power under section 185(2B)(a) of the 2002 Act to make provision for minimum terms, is inappropriate.

Clause 67 - Power to "modify" Acts

12.   Clause 67(2) enables the Secretary of State to make regulations consequential on any provision of the Bill. By virtue of subsection (3) such regulations may include provision "amending, repealing, revoking or otherwise modifying" any provision made by or under primary legislation passed before the Bill or in the same Session. Generally, regulations under clause 67(2) are subject to the negative procedure (see clause 67(6)); but where the regulations amend, repeal or revoke any provision of primary legislation they are subject to the affirmative procedure (see clause 67(5)).

13.   No explanation is given in the memorandum as to the kind of changes to primary legislation which are envisaged using the "otherwise modifying" powers, or why the affirmative procedure is appropriate for an amendment to primary legislation but not where a provision of primary legislation is modified in some other way, such as by a non-textual modification. As we have said, in paragraph 2 above, about similar provision in the Infrastructure Bill [HL], a non-textual modification of primary legislation is capable of making changes which are no less significant than textual amendments. In line with our conclusions on the Infrastructure Bill [HL], set out in paragraph 4 above, we recommend that, unless the words "otherwise modifying" can be fully explained to the House's satisfaction, those words should be removed; or, if they are retained, that the words "otherwise modify" should be inserted in clause 67(5) so that regulations made under clause 67 in reliance on them will require the affirmative procedure.

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