Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

CRIMINAL JUSTICE AND COURT SERVICES BILL

Memorandum by the Home Office

PART I
THE NEW SERVICES
Chapter I
National Probation Service for England and Wales
Clause 1(3): Purposes of the Chapter



Power conferred on: The Secretary of State
Power exercisable by:Statutory Instrument
Parliamentary procedure:Negative resolution
Other relevant provisions:Clause 5(1), 5(5), 7(6)


4. Clause 1(3) confers powers on the Secretary of State to extend by regulations the purposes of the National Probation Service for England and Wales. Clause 1(1) provides that these purposes are:

a)  courts to be given assistance to determine the appropriate sentences to pass and make other decisions in respect of those charged with or convicted of offences and

b)  the supervision and rehabilitation of such persons.

5. Such regulations would be made by statutory instrument under negative resolution procedure (clause 67(6)).

6. The reason for the power is because it may be desirable to add to the Service's functions. An example might be new functions relating to the giving of information to victims. It is submitted that the negative resolution procedure is an appropriate level of Parliamentary scrutiny for this power, given that any extension of functions must relate to persons charged with or convicted of offences which is what the purposes of Chapter 1 presently cover.

CLAUSE 4(6) LOCAL BOARDS



Power conferred on: The Secretary of State
Power exercisable by:Statutory Instrument
Parliamentary procedure:Negative resolution
Other relevant provisions:


7. Clause 4(6) confers powers on the Secretary of State to alter from time to time by order the boundaries of the local Board areas in England and Wales. The initial boundaries will comprise the police areas in England and Wales, the Metropolitan Police District and City of London Police Area.

8. The Government's strategic aim is to align the boundaries of all the criminal justice agencies. Initially, the building blocks are the police areas, but it may be desirable for some reason to have one or more local board areas which are not exactly co-terminous with a police area. That is the reason for this power.

9. Such orders would be made by statutory instrument under the negative resolution procedure (clause 67(6)). We think this level of Parliamentary control is sufficient for what is likely to be a non-contentious, administrative issue. Under the Probation Service Act 1993 a similar power is not subject to any Parliamentary procedure.

CLAUSE 5(5): FUNCTIONS OF LOCAL BOARD



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution (clause 65(6))
Other relevant provisions: Clause 1(3)


10. Clause 5(5) gives the power to make regulations to confer further functions on local boards or officers of local boards. This power will be necessary if, for example, the purposes of the Probation Service are extended (see clause 1(3) above). It is considered that the negative resolution procedure is adequate because it is intended merely to add to the functions of the board so as more effectively to achieve the existing purposes or to reflect any extension of the overall purposes of the Service under clause 1(3).

CLAUSE 5(6): GRANTS BY LOCAL BOARDS



Power conferred on : The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary procedure: Negative resolution
Other relevant provisions:


11. Clause 5(6) makes provision for a local board to give grants or other financial assistance to any person but only in pursuance of regulations for this purpose. Boards will have the opportunity to use their resources flexibly in organising their work; they can contract work out to organisations or individuals.

12. A wide range of grant-aiding powers have been used by the Probation Service since 1994. Examples would be the provision of educational and employment services, or drug and alcohol services to offenders. Partnership work is central to crime prevention at a local level and this Bill seeks to strengthen that provision. This power is exercisable through statutory instrument through negative resolution procedure, (see clause 67(6)) being, it is submitted, non-contentious.

CLAUSE 8: SUPPORT SERVICES



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions:


13. Clause 8(1) gives the Secretary of State a power to make an order in relation to any area for support services to be carried out by persons other than the employees of the local board, though under arrangements made with the board. This power enables the Secretary of State to require local boards to change the arrangements for the provision of support services.

14. The Secretary of State would only be able to do this if better efficiency, higher standards or better value for money could be achieved (which is not something that can be assessed now - hence the need for a power). It would be of particular use when economies of scale might be achieved by grouping boards, either regionally or nationally, and letting a contract for the provision of a service such as the provision of IT or the administration of the payroll.

15. Such an order would be made by statutory instrument under the negative resolution procedure (see clause 67(6)). It is considered that this procedure is adequate since we are not here concerned with the contracting out of core activities involved in the supervision of offenders, but with support services only.

CLAUSE 9(2) APPROVED BAIL HOSTELS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clause 5(3)


16. Clause 9 replicates the current arrangements which allow the Secretary of State to approve probation hostels and widens the provision to include other premises used for the accommodation of offenders (as described in Clause 5(3)).

17. Clause 9(2) gives the Secretary of State the power to make regulations for the regulation, management and inspection of those premises. Such regulations will replace the existing probation hostel rules and are non-contentious, hence the negative resolution procedure. The level of detail required is not necessary on the face of the Bill and will change from time to time, hence the need for a power.

CLAUSE 10: DEFAULT POWERS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Affirmative resolution
Other relevant provisions: Schedule 1


18. Clause 10 gives the Secretary of State the power to make a management order which can modify the composition of a local board by replacing all or any of its members with persons determined in accordance with an arrangement made between him and an organisation (a "management arrangement").

19. This order would be used in exceptional circumstances where a board was failing to perform its functions or to achieve value for money. It enables the Secretary of State to ensure that the functions of the Service in that area are carried out in the event of a board failing to deliver services to the required standard.

20. This power would be used as the final stage in a process which would start with the monitoring of management information about a board's performance, would move through inspection to ascertain the reason for any failings, and would include giving the board directions to help it overcome those failings.

21. Only if the board was unwilling or unable to respond to that process would this management arrangement be set up. The current system allows for no such remedial action. It is because it is not known at this stage whether an order will be needed under clause 10 that this power is necessary.

22. Such an order would be made by statutory instrument under the affirmative resolution procedure (clause 67(5)). This is considered appropriate since the power involves fundamental changes to the composition of a board as a result of the board's failure in the view of the Secretary of State to perform adequately.

PART I CHAPTER II

CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE (CAFCASS)

23. This part of the Bill covers the setting up of a new court advisory service for children and families, merging Family Court Welfare staff from the Probation Service, Guardian ad Litem and Reporting Officers (GALRO) (both self-employed and those employed by local authorities) and staff from the office of the Official Solicitor.

CLAUSE 12(3&4): PRINCIPLE FUNCTIONS OF THE SERVICE



Power conferred on: The Lord Chancellor
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clause 5(6), Schedule 2


24. Clause 12(3) gives the power to the Lord Chancellor to provide for grants to be paid by the Service to any person for the purpose of furthering the performance of any of the Service's functions. This will enable CAFCASS to continue with grant-making arrangements in the same way as the probation service currently does. Such grants to voluntary organisations contribute to the development of non-statutory services such as contact centres. This is a valuable tool in promoting new ways of working and we would want CAFCASS to have the discretion to continue such initiatives, but it does not need to be set out in detail on the face of the Bill.

25. Clause 12(4) provides for conditions to be set in relation to the purpose of grants payable under clause 12(3) including repayment to the Service in specified circumstances. This enables the Lord Chancellor to exercise control over the grant-making powers of the new Service.

26. All the powers under clause 12 would be exercisable through statutory instrument made through negative resolution procedure, being matters of essentially administrative detail and non-contentious.

PART I CHAPTER III
General
Property and staff

27. Clauses 19, 20, and 23 set out powers relating to the transfer of property, liabilities and staff to the two new services; the National Probation Service for England and Wales and CAFCASS. Clause 67(2) states that these powers will not be exercisable through statutory instrument. They will be exercised through a "scheme" which can be set up simply by order of the Minister in question. Clause 20(4) and 23(4) do however include powers through statutory instrument relating to consultation.

CLAUSE 19(1): PROPERTY



Power conferred on: The Secretary of State or the Lord Chancellor
Power exercisable by: Scheme by order
Parliamentary procedure: None
Other relevant provisions: Clauses 20, 21, 23, 24, 67(2), Schedule 3


28. The powers given to the "appropriate Minister" under this clause may be exercised by the Home Secretary in the case of matters relating to the Probation Service for England and Wales, or the Lord Chancellor in the case of arrangements relating to CAFCASS. The clause allows the Minister to make a "scheme" by order for the transfer of property and liabilities belonging to an old employer to the Minister or the Lord Chancellor, and from there to a new employer, or directly to a new employer or directly to CAFCASS.

29. These powers will be used in different ways for the National Probation Service and CAFCASS. In the former case, all property will be taken into the ownership of the Secretary of State and both land and buildings will be retained in central ownership. Other property will be passed to the appropriate local board. In relation to CAFCASS, property will come from a number of different "old employers", local authorities, the Official Solicitor and probation committees. This power will allow the Lord Chancellor to make arrangements for the transfer of property to CAFCASS.

CLAUSE 20(1): TRANSFER OF STAFF



Power conferred on: The Secretary of State or the Lord Chancellor
Power exercisable by: Scheme by order
Parliamentary procedure: None
Other relevant provisions: Clauses 19, 21, 23, 24, 67(2), Schedules 2 & 3


30. Clause 20(1) allows the Secretary of State or the Lord Chancellor to make a "scheme" to transfer staff into the new Services. These schemes would cover the transfer of staff from a probation committee to a local board or to CAFCASS, and the transfer of relevant local staff and staff of the official solicitor's office to CAFCASS. Because there is doubt about whether the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations apply to these transfers, clause 21 makes provision to ensure that TUPE like protection will apply to staff's terms and conditions of service when they transfer to their new employers. Clause 22 makes provision for the effect of the transfer of people currently employed as chief probation officers into post-holders appointed as chief officers in area boards.

CLAUSE 20(4): TRANSFER OF STAFF



Power conferred on: The Secretary of State or the Lord Chancellor
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 19, 21, 23, 24, 67(2), Schedules 2 & 3


31. Clause 20(4) confers the power on the appropriate Minister to make prescribed requirements about the necessary consultation which should take place before making a "scheme" as described in clause 20(1) above. Clause 24 clarifies that these requirements are to be set out in regulations. This power enables each employee and chief probation officer to be consulted appropriately before being subject to transfer or appointment arrangements under a scheme. This power is exercisable through the negative resolution procedure, being a non-contentious and administrative issue.

CLAUSE 23(2): TRANSFER OF STAFF IN CONSEQUENCE OF ARRANGEMENTS UNDER PART I



Power conferred on: The Secretary of State or the Lord Chancellor
Power exercisable by: Scheme by order
Parliamentary procedure: None
Other relevant provisions: Clauses 5, 8, 9, 20, 21, 24, Schedules 2 & 3


32. Clause 23 is designed to protect the interests of staff whose jobs are transferred to a new employer under the contracting out provisions relating to the National Probation Service, as set out in clauses 5 and 8 of the Bill, or those relating to CAFCASS in clause 13. It will also apply where such contracting out arrangements end and the work returns to the original employer.

33. Clause 23(2) ensures that staff who transfer with their jobs in these circumstances can be given, through the setting up of a "scheme" by order by the appropriate Minister, the protection of their terms and conditions provided for in clause 21.

CLAUSE 23(4): TRANSFER OF STAFF IN CONSEQUENCE OF ARRANGEMENTS UNDER PART I



Power conferred on: The Secretary of State or the Lord Chancellor
Power exercisable by: Negative resolution
Parliamentary procedure: None
Other relevant provisions: Clauses 19, 20(4), 21, 24, Schedules 2 & 3


34. Clause 23(4) confers a similar power to that in 20(4). This is to ensure that consultation takes place with each eligible employee, in accordance with regulations, before a "scheme" is set up for the transfer of staff. This power will be exercisable through the negative resolution procedure, being a non-contentious and administrative matter.


 
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