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.
2 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
|