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Fifteenth Report Contents

Appendix 1: Police, Crime, Sentencing and Courts Bill: Government Responses

Letter from Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State at the Ministry of Justice, and Baroness Williams of Trafford, Minister of State at the Home Office, to the Rt Hon. Lord Blencathra, Chair of the Delegated Powers and Regulatory Reform Committee on the DPRRC’s 6th Report of Session 2021-22

Thank you for your report following the Committee’s scrutiny of the provisions of the Police, Crime, Sentencing and Courts Bill (“the Bill”). The Government has carefully considered the Committee’s recommendations and our response is set out below.

Paragraph 14

The Committee’s recommendation

The Committee has made recommendations in relation to clauses 7 and 8, relating to the publication and dissemination of a strategy to prevent and reduce serious violence. At paragraph 14 the Committee recommended that:

Accordingly, we consider that the delegated powers in clauses 7(9) and 8(9) should be amended to require the publication of any action which is specified in a “strategy” as one that an educational authority, a prison authority or a youth custody authority must carry out.

Government response

The Government accepts the Committee’s recommendation. We will bring forward amendments at Report to make provision for the publication of strategies on the face of the Bill. This will be subject to certain safeguards: that material should not be included if the specified authorities consider that it might place the safety of any person in jeopardy, prejudice the prevention and detection of crime or the investigation or prosecution of an offence, or compromise the security of, or good order or discipline within, an educational, prison or youth custody authority.

Paragraph 24

The Committee’s recommendation

The Committee has made recommendations in relation to clauses 18(1), 31(1), 64 and 140(1) related to the issuing of guidance across four areas: the prevention and reduction of serious violence, in connection with offensive weapon homicide reviews, in respect of the exercise by the police of functions relating to trespassers on land and in respect of the exercise by the police of functions in relation to serious violence reduction orders. At paragraph 24 the Committee recommend:

We consider that guidance under clauses 18(1), 31(1), 64 and 140(1) should be subject to Parliamentary scrutiny and that—

Government response

As the Committee will be aware, the Government set out its policy in relation to parliamentary scrutiny of statutory guidance in a letter from the Leader of the House of Lords, dated 16 October 2018, and reproduced at Appendix 1 of the Committee’s 35th Report of session 2017/19. Amongst other things, the letter contained the following passage:

“…….it is Government policy that guidance should not be used to circumvent the usual way of regulating a matter. If the policy is to create rules that must be followed, the Government accepts that this should be achieved using regulations subject to parliamentary scrutiny and not guidance. The purpose of guidance is to aid policy implementation by supplementing legal rules. This remains the Government’s policy and there is no intention to alter this approach.

There is a vast range of statutory guidance issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament from scrutinising guidance at any time. In certain exceptional circumstances it may be appropriate for guidance to be laid before Parliament or be subject to the negative procedure.”

This remains the Government’s policy and it informs the Government’s response to the Committee’s recommendations in relation to the parliamentary scrutiny of statutory guidance.

We note too the Committee’s recommendations in relation to this session’s Environment Bill where the Committee recommended that various statutory guidance to be issued under powers conferred by that Bill should be subject to a laying requirement only.

In view of the above, the Government will bring forward amendments at Report stage to provide for the guidance to be issued under clauses 18(1), 31(1) and 64 to be laid before Parliament and for the guidance provided for in clause 140(1) to be subject to the equivalent of the negative resolution procedure.

Paragraph 26

The Committee’s recommendation

The Committee makes recommendations in relation to clause 140(1) which makes complements separate revisions to PACE code A in relation to stop and search powers. At paragraph 26 the Committee recommends:

We consider that revisions to the PACE code of practice on police powers to stop and search—to cover the new power to stop and search a person without any requirement for reasonable suspicion that they are carrying a weapon—are sufficiently significant to merit affirmative procedure scrutiny. The House may wish to press the Minister to confirm that any such revisions will be subject to affirmative procedure scrutiny.

Government response

The Government accepts the Committee’s recommendation and can confirm that the affirmative procedure will be applied to the consequential changes to PACE Code A.

Paragraphs 34 – 35

The Committee’s recommendation

The Committee makes recommendations related to clause 43 and Schedule 4 which make provision with regard to the granting of pre-charge bail. At paragraphs 34 and 35 the Committee made the following recommendations:

34. We consider that guidance under new section 50B of PACE should be subject to Parliamentary scrutiny, with the negative procedure applying.

35. We are also concerned that the power to produce the guidance in question is given to a non-statutory body (the College of Policing). When that body was created in 2012, the then Home Secretary said in a written ministerial statement that it would be “established on a statutory basis as soon as parliamentary time allows”. We are surprised that the opportunity to do so has not been taken in this Bill.

Government response

For the reasons set out above, the Government considers that the existing requirement in the Bill for the guidance under new section 50B of PACE to be laid before Parliament provides the appropriate level of parliamentary oversight.

The College of Policing retains a long term aim of achieving a Royal Charter. However, while it remains substantially publicly funded through the Home Office it retains the holding position of a company limited by guarantee. However, a number of the College’s functions have statutory underpinning (see section 123 to 130 of the Anti-social behaviour, Crime and Policing Act 2014). The College Chair, Lord Herbert of South Downs, is currently undertaking a fundamental review of the College and the Government will consider carefully the recommendations flowing from that review.

Paragraph 43

The Committee’s recommendation

The Committee has made recommendations with regard to clauses 36(1), 39(1) which make allowance for specified persons to extract information stored on an electronic device with user consent or where the user has died and clause 41(1) which makes regulation about the exercise of powers in relation to confidential information. At paragraph 43 the Committee made the following recommendation:

We consider that—

Government response

The Government accepts the Committee’s recommendation and will bring forward amendments at Report stage to place on the face of the Bill provision about the exercise of powers to extract confidential information, thus removing the regulation making power currently found in clause 41.

Paragraph 60

The Committee’s recommendation

The Committee makes recommendations in relation to clauses 55(4) and 56(6) which provide for the ability to define serious disruption to the activities of an organisation and to the life of the community respectively in relation to a public procession or assembly and clause 61 which provides for the ability to define serious disruption to the activities of an organisation in relation to a one-person protest. At paragraph 60 the Committee made the following recommendation:

We consider that the definitions of the expressions “serious disruption to the activities of an organisation” and “serious disruption to the life of the community” are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill, coupled with a power to amend those definitions by affirmative procedure regulations.

Government response

The Government accepts the Committee’s recommendation and will bring forward amendments at Report to give effect to it.

Paragraphs 66 and 75

The Committee’s recommendations

Paragraphs 66 and 75 of the Committee’s report made recommendations in relation to clauses 77(6)(b) and (c), 80(8), 81(3), 89(8) and 90(3) which relate to the creation of two new cautions: diversionary and community cautions.

We therefore consider that the Bill should be amended so that the offences which are to be excluded from community caution disposal are listed on the face of the Bill coupled with a power to amend that list by affirmative procedure regulations.

Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny, with the affirmative procedure applying.

Government response

The Government maintains that it sets out those offences that are to be excluded for the purposes of community cautions via secondary legislation. This mirrors the approach taken in the Criminal Justice and Courts Act 2015 which sets out that the simple caution may not be used in relation to offences specified by order made by the Secretary of State by secondary legislation. This approach allows future changes to be incorporated without primary legislation. Secondary legislation is considered to be appropriate for setting out the list of excluded offences as the level of detail required may not be appropriate for the face of the bill. By utilising secondary legislation, stakeholders will have sufficient time for essential engagement to identify the relevant offences. The decisions on this point will be subject to parliamentary scrutiny via the affirmative procedure.

However, the Government agrees the Committee’s further recommendation related to cautions, namely that both increases and decreases in the maximum number of hours of unpaid work or attendance, or in the maximum financial penalty, will be subject to affirmative procedure, rather than increases alone. The Government acknowledges that a decision to decrease the maximum hours or financial penalty may be a matter of importance to Parliament.

Paragraph 84

The Committee’s recommendation

The Committee also made recommendations relating to clause 129 and Schedule 13 which provide for the power to specify special procedures for community and suspended sentence orders. At paragraph 84 the Committee made the following recommendation:

We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.

Government response

The Government accepts the Committee’s recommendation and will bring forward amendments at Report Stage to give effect to this. The Government maintains that regulations made by the Secretary of State that specify which courts are pilot courts for the 18 month pilot period, which persons are subject to the orders (i.e. a specific cohort within a particular pilot site) and/or the offences to which the orders relate, or otherwise describe the orders that qualify for special procedures, should continue to be subject to the negative procedure. The Government accepts that changing the status of a pilot site to a permanent site absolutely should be subject to increased Parliamentary scrutiny via the affirmative resolution procedure. However, establishing which cohorts, and which sites, will be part of the pilot is primarily a policy matter, balanced against questions of timing and implementation, and so the Government believes that the negative resolution procedure is right in these circumstances.

1 December 2021

Letter from Lord Wolfson of Tredegar QC and Baroness Williams of Trafford to the Lord Blencathra on the DPRRC’s 13th Report of Session 2021-22

Thank you for your further report dealing with the Government amendments to the Police, Crime, Sentencing and Courts Bill tabled for Committee stage. The Government has again carefully considered the Committee’s recommendations and our response is set out below.

The Committee’s recommendation

19. We consider that new section 342V contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise by the police of functions that could prove to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence - and are not considered to be at risk of offending - may nonetheless be made subject to restrictions on liberty backed by criminal penalties.

20.We are disappointed that the supplementary Memorandum fails to even acknowledge what we said in our earlier Report on this very Bill about powers to issue guidance to which the police “must have regard”. We identified two examples of such guidance that we said were sufficiently significant to merit affirmative procedure scrutiny because they related to the exercise of police functions that could prove to be highly controversial. We consider that the exercise of police functions in relation to serious disruption prevention orders could prove to be even more controversial.

21.Accordingly, we consider that guidance under new section 342V is sufficiently significant to merit affirmative procedure scrutiny.

Government response

The Government does not agree that the new section 342V of the Sentencing Code contains “an extreme example of a power to issue guidance on the exercise of statutory functions”. Serious Disruption Prevention Orders (SDPOs) are not a new concept. Successive Governments, dating back at least to the creation of Ant-Social Behaviour Orders in the Crime and Disorder Act 1998, have legislated for civil preventative orders of this kind which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventative order regimes include similar provision to that contained in new section 342V for the Secretary of State to issue guidance. Examples in Table 1 (see below).

We can assure the Committee that in considering the appropriate level of parliamentary scrutiny for SDPOs we paid careful attention to the Committee’s earlier report on the Bill. Indeed, it was in the light of that report, and in particular the Committee’s recommendation in relation to the statutory guidance to accompany Serious Violence Reduction Orders, that the Government decided that, exceptionally, the negative procedure should apply to the SDPO guidance. This was despite the general run of precedents that, in our view, point to such guidance not being subject to any parliamentary procedure. We note that as recently as the Committee’s 21st report of session 2019–21, the Committee made no comment or recommendation to the effect that the statutory guidance in relation to Domestic Abuse Protection Notices and Domestic Abuse Protection Orders should be subject to any parliamentary procedure. As the table above shows, the Committee took a similar position in relation to previous Bills providing for very similar statutory guidance. Given this, we remain of the view that the negative procedure is appropriate in this case.

Table 1: Examples

Name of order

Power to issue guidance

Parliamentary procedure, if any

DPRRC report and recommendations, if any

Female Genital Mutilation Protection Orders (FGMPO)

Section 5C of the Female Genital Mutilation Act 2003* – inserted by the Serious Crime Act 2015

None

The FGMPO provisions were added to the Bill in the Commons after the Committee had published its 2nd Report of session 2014/15

Sexual Harm Prevention Orders and Sexual Risk Orders

Orders and Sexual Risk Orders

Sections 103J(1) and 122J(1) of the Sexual Offences Act 2003 – inserted by the Anti-social Behaviour, Crime and Policing Act 2014

None

12th Report of session 2013/14

Forced Marriage Protection Orders

Section 63Q of the Family Law Act 1996* - inserted by Forced Marriage (Civil Protection) Act 2007

None

Not known

Gang injunctions

Section 47 of the Policing and Crime Act 2009*

Laying only

Not known

Domestic Violence Protection Orders

Section 31 of the Crime and Security Act 2010*

None

Not known

Anti-social behaviour injunctions; dispersal powers; Community Protection Notices; Public Spaces protection Orders; Closure Notices.

Sections 19, 41, 56, 73 and 91 of the Anti-social Behaviour, Crime and Policing Act 2014

None

12th Report of session 2013/14

Slavery and trafficking prevention orders and slavery and trafficking risk orders

Section 33 of the Modern Slavery Act 2015

None

10th Report of session 2014/15

Stalking Protection Orders

Section 12 of the Stalking Protection Act 2019

None

45th Report of session 2017/19

Knife Crime Prevention Orders (KCPOs)

Section 30 of the Offensive Weapons Act 2019*

None

The KCPO provisions were added to the Bill at Lords Report after the Committee had published its 44th Report of session 2017/19

Criminal Behaviour Orders

Section 341 of the Sentencing Act 2021 (formally section 32 of the Anti-social Behaviour, Crime and Policing Act 2014)

None

12th Report of session 2013/14

Domestic Abuse Protection Orders

Section 50 of the Domestic Abuse Act 2021*

None

21st Report of session 2019/21

* Includes duty on specified persons to have regard to the guidance.



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