Seventh Report Contents

Victims and Prisoners Bill

1.This Bill, which was brought from the House of Commons on 6 December 2023 and had its Second Reading on 18 December, makes provision for victims of crime and for the activities and release of prisoners. The Ministry of Justice has supplied us with a delegated powers memorandum (“the Memorandum”)1 relating to the Bill’s delegated powers.

2.We draw attention to one delegated power in the Bill: clause 52(4) (application of certain Convention rights in prisoner release cases). Clause 52 applies to cases where a court is considering whether Convention rights have been breached in relation to a decision—under prisoner-release legislation—regarding whether a person should be released from custody. Clause 52(3) requires a court to give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed.

3.Clause 52(4) defines “custodial sentence” to mean a sentence specified in negative procedure regulations made by the Secretary of State. The Memorandum has a section headed “justification for taking the power”. The first sentence (paragraph 153) is not a justification but a statement of the power itself. The second sentence is a statement of the purpose of the power (rather than its justification) even though there is a section on purpose that precedes the section on justification.

4.The Memorandum (paragraph 154) says that the technical meaning of “custodial sentence” differs between sentencing regimes and may change over time. Everything changes over time; that is not a reason for defining key legal terms in regulations rather than on the face of legislation. If it were, legal terms in every Act of Parliament would come with a Henry VIII power to amend them.

5.Moreover, where Parliament makes a major statement of principle—as in clause 52(3)—the statement should be intelligible from the Bill itself rather than having to await regulations before its full import can be understood.

6.We regard the power in clause 52(4) to define “custodial sentence” as an inappropriate delegation of power that should be removed from the Bill. The Memorandum (paragraph 154) says that the term “custodial sentence” has a generally recognised meaning. This being so, the meaning of “custodial sentence” should not be left to secondary legislation when prominent criminal statutes (the Criminal Justice Act 2003 and the Sentencing Act 2020) are able to define it with precision.

7.Not only is the justification for the delegated power unsatisfactory, the justification for the negative procedure is also unsatisfactory. The Memorandum (paragraph 155) says that the negative procedure is appropriate because regulations will contain technical detail, and the substance of the Bill will have been subject to full scrutiny during its passage.

8.We do not find these reasons compelling.

9.If (contrary to our earlier recommendation) the delegated power in clause 52(4) remains in the Bill, the affirmative procedure should apply to the making of the regulations rather than the negative procedure.


1 Memorandum by the Ministry of Justice, dated 4 December 2023




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