Thirtieth Report Contents

Instruments of interest

Draft Criminal Justice Act 2003 (Home Detention Curfew) Order 2023

42.Certain offenders serving determinate sentences of more than 12 weeks but less than four years may be eligible for release 135 days before their automatic release date subject to conditions, including an electronically monitored curfew at a specified, suitable address: known as home detention curfew (HDC). This instrument increases the length of time that offenders may be released under HDC to 180 days (6 months). Alongside the legislation, the Ministry of Justice (MoJ) is also revising the policy framework document to add to the list of offences presumed to make someone unsuitable for HDC, for example a history of domestic abuse. MoJ estimates the net result will free up about 300 additional prison places.

43.We asked whether the probation service has sufficient resources for the influx. MoJ responded that it has injected an extra £155 million a year to deliver more robust supervision and reduce caseloads. It has also recruited 2,500 trainee probation officers over the last two years, and plans to recruit a further 1,500 by March 2023. (See additional information in Appendix 2.)

44.MoJ states that the purpose of HDC is to manage more effectively the transition of offenders from custody back into the community. Although this scheme has been running for more than 20 years the evidence of its usefulness in preventing reoffending is surprisingly limited. The main research cited is from 201127 and says only that “a like-for-like comparison based on offenders’ characteristics and sentence length showed that those released on HDC were no more likely to engage in criminal behaviour during the first two years after release from custody.”

45.MoJ added that “all electronic monitoring expansion projects are underpinned by robust evaluations designed to further develop our understanding of the effective use of our devices. We expect the first evaluations to be available internally in late 2024, with others to follow as the projects progress.” As we have seen little evidence for the basis on which these decisions are being made the House may wish to press MoJ to publish those evaluations as soon as possible.

Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023

46.Amongst other measures, these Rules would set out the operational framework for the Special Immigration Appeals Commission (SIAC) in cases where the Secretary of State exercises new powers to deprive an individual of their British citizenship without prior notice. The powers, provided for in the Nationality and Borders Act 2022 (“the Act”), are intended to be used against those who obtained citizenship by fraud and against the most dangerous people, such as terrorists, extremists and serious organised criminals.

47.When the Secretary of State makes or seeks to make an order under the Act, they must ask SIAC to consider whether the reasons for acting without notice are “obviously flawed”. The draft Rules contain the process for making and considering such an application; for example, SIAC would be required to provide an opinion within 14 days. This process does not impact the person’s statutory right of appeal against the deprivation decision. The Home Office told us that once these Rules complete their parliamentary process, the relevant provisions of the Act will be brought into force.

Criminal Legal Aid (Remuneration) (Amendment) Regulations 2023 (SI 2023/97)

48.These Regulations introduce a new fixed fee of £670 for defence advocates where a Court has issued a direction to allow pre-recorded video cross-examination or re-examination of vulnerable witnesses. The Explanatory Memorandum (EM) states that the aim of the system is to enhance the quality and reliability of evidence by improving witnesses’ experiences of cross-examination and by reducing the time between the complaint and the cross-examination. The new fee is part of a wider package of reforms to legal aid in response to the Criminal Legal Aid Independent Review (CLAIR) and to the strike action by criminal barristers last year.

49.We are disappointed, however, that the instrument was brought into force just one day after being laid, breaching the convention that a ‘made negative’ statutory instrument should be laid before Parliament for at least 21 days before it comes into force. The Ministry of Justice told us this was to mitigate the risk of further strike action, but we remind the Ministry to plan and resource its legislation appropriately so that parliamentary scrutiny is not curtailed.

Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) Order 2023 (SI 2023/116)

Protection Fund and Occupational Pension Schemes (Levy Ceiling) (No. 2) Order 2023 (SI 2023/117)

50.The Pensions Act 2004 requires the Department for Work and Pensions (DWP) to make an annual Order to increase the Pension Protection Fund (PPF) Levy Ceiling in line with the growth in earnings: regrettably due to error two Orders were needed this year. The levy ceiling is intended to provide both sufficient funding for PPF compensation and reassurance to the schemes from which the levy is drawn, that the levy will not be above a certain amount in any one year. Supplementary information published in Appendix 3 indicates that, for the financial year 2023–4, PPF intends to collect an estimated £200 million, which is approximately 16% of the levy ceiling of £1,246,964,705 set by this Order. In response to our questions, DWP disclosed that a recent independent review recommended that DWP and PPF work together to make the PPF levy more flexible.28 The Department is currently considering this recommendation and exploring ways in which to implement it.

Market Measures Payment Schemes (Amendments, Revocation and Transitional Provision) (England) Regulations 2023 (SI 2023/124)

51.This instrument amends retained EU law on public intervention (PI) and private storage aid (PSA) schemes in England. According to the Department for Environment, Food and Rural Affairs (Defra), PI schemes require the Government to buy and store certain products at a published price, while PSA schemes seek to address exceptional market disturbances by subsidising the cost of products when prices have fallen to a point that it is not economically viable to sell. Products are returned from storage to the market at the end of the contracted period when the market has recovered, and prices have improved. Defra says that the changes will make the framework for these schemes more suited to an England-only context.

52.While retaining the legal framework for PSA schemes, the instrument removes the requirement for inspections to be carried out whilst products are in storage and the obligation for businesses to provide a security when submitting a product into PSA. Defra says that inspections at intake and at the end of the storage period are sufficient, and that aid is paid only once the product condition and weight are confirmed at the end of the storage period. The instrument increases the minimum inspection levels at entry and removal of storage from 5% to 10% of stored products.

53.The instrument also removes the retained EU framework for the mandatory opening of PI schemes at certain times of the year. PI schemes will remain an option, however, for the Secretary of State should a sector suffer exceptional market conditions. PI schemes currently exist for a range of products, including common and durum wheat, beef, veal, barley, butter and skimmed milk powder. Defra says that these schemes are not an effective market support method. Asked about the impact on farmers if mandatory PI schemes are abolished and feedback from the sector, Defra told us that these schemes have had limited uptake in England: no cereals, for example, have entered PI schemes for the last ten years, and the mandatory beef PI scheme has not been used since the 1990s. Defra also told us that:

“[I]n informing industry of our plans, they said that they do not frequently use these schemes and did not indicate that they were concerned about the removal of mandatory PI schemes. They indicated a preference to schemes more suited to the domestic market than mandatory schemes if intervention were required in a situation of market disruption. The changes made to [PSA] make that scheme more suited to industry needs, while Government also retains the option of using PI in exceptional market conditions should it choose. The Agriculture Act 2020 also provides powers for the Secretary of State to give financial assistance to agricultural producers in England if their incomes are being, or are likely to be, affected by exceptional market conditions. [ … ] Stakeholders remarked that the use of [PI] schemes was minimal in recent years, considering them to be rather blunt instruments and inflexible in responding to market disruption. Stakeholders indicated their preference would be for schemes to be more tailored to a domestic market situation should such measures be required in the future.”


27 Ministry of Justice, ‘The effect of Home Detention Curfew on recidivism’ (6 May 2011): https://www.gov.uk/government/publications/the-effect-of-home-detention-curfew-on-recidivism [accessed 22 February 2023].

28 Department for Work and Pensions, ‘Departmental Review of the Pension Protection Fund (PPF)’: https://www.gov.uk/government/publications/departmental-review-of-the-pension-protection-fund-ppf/departmental-review-of-the-pension-protection-fund-ppf#summary-of-findings [accessed 22 February 2023].




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