Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

CRIMINAL JUSTICE AND COURT SERVICES BILL

Memorandum by the Home Office

PART III
DEALING WITH OFFENDERS
Chapter I
Community Sentences
New Community Orders

CLAUSE 41: EXCLUSION ORDERS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: None or negative resolution
Other relevant provisions: Clauses 45, 46 and 47; paragraph 175 of Schedule 6; and section 160 of the PCCA 2000


41. Clause 41 amends the Powers of Criminal Courts (Sentencing) Act 2000 (PCCA) to make provision for 'exclusion orders'. An exclusion order is similar in many respects to a 'curfew order', but it prohibits an offender from entering a specified place or area for a specified period. The courts will not be able to make an exclusion order unless they have been notified that arrangements are in place in their area and the orders will be piloted.

42. Clause 41 inserts a new section 40A (6) into the PCCA, conferring the power on the Secretary of State to make an order describing persons responsible for monitoring the exclusion order. By virtue of paragraph 175 of Schedule 6 to the Bill and section 160 of the PCCA, this power is not subject to any Parliamentary procedure. We consider this to be justified because, as in the case of responsible officers under the Criminal Justice Act 1991, what matters in this context is that an order specifying a person as a responsible officer is published so that it is clear who has the authority for monitoring offenders. Parliamentary scrutiny seems less significant in this context.

43. Clause 41 also inserts a new section 40C(1) into the PCCA which empowers the Secretary of State to make rules for the regulation of the monitoring regime of offenders subject to exclusion orders, and of the functions of the persons monitoring them. The Secretary of State may also make an order (new section 40C(2) directing that the maximum period of exclusion orders be changed, or may add to the list of activities with which the requirements of an order must not conflict.

44. These powers will be exercised by statutory instrument through negative resolution procedure. This follows from paragraph 175 of Schedule 6 to the Bill and section 160 of the PCCA.

CLAUSE 42: DRUG ABSTINENCE ORDERS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution and affirmative resolution
Other relevant provisions: Clauses 45, 46, 47; paragraph 175 of Schedule 6 to the Bill; section 160 of the PCCA 2000


45. Clause 42 makes provision for a new sentence: the Drug Abstinence Order, lasting between 6 months and three years.

46. Clause 42 inserts new sections 58A & B into the Powers of the Criminal Courts (Sentencing) Act 2000 (PCCA). Clause 58A(8) confers the power on the Secretary of State to make rules for regulating the provision of samples in pursuance of drug abstinence orders as described in 58A(1)(b). The Drug Abstinence Orders will be piloted along with other drugs testing provisions and this will include evaluating how best samples are to be collected and by whom, to ensure that the process is as efficient as possible. A number of options will be investigated.

47. This power is necessary to establish practice for the provision samples which may be given (equipment, storage etc.) but is a matter of administrative detail and as such does not need to be subject to full Parliamentary scrutiny. It will be exercisable under the negative resolution procedure.

48. New section 58A(4) gives the Secretary of State the power to specify the description of persons who will supervise those subject to a drug abstinence order. New section 58B(4) gives the Secretary of State the power by order to amend the duration of a drug abstinence order by substituting a different period for the minimum or maximum period. The latter power is necessary so that the Drug Abstinence Order mirrors the duration of community rehabilitation, community punishment and community punishment and rehabilitation orders.

49. Both these powers are subject to the draft affirmative procedure because of the significance of the power for those subject to a drug abstinence order.

CLAUSE 44: COMMUNITY SENTENCES: DRUG ABSTINENCE REQUIREMENTS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 42, 46, 47, 57, 66; paragraph 175 of Schedule 6 to the Bill; section 160 of the PCCA 2000


50. Clauses 44-47 make provision for community orders to be enhanced by new provisions in this bill. Clause 44 amends the PCCA to enable community orders to have a drug abstinence requirement. A new subsection (2E) in section 42 confers the power on the Secretary of State to make rules for the provision of samples as described in new section (2A). This power is similar to that described above in clause 42 and is again a matter of administrative detail which does not require full parliamentary scrutiny. This power will be exercisable through the negative resolution procedure.

CLAUSE 45: COMMUNITY SENTENCES: CURFEW REQUIREMENTS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 42, 44, 46, 47, 57, 66


51. Clause 45 amends Schedule 2 of the PCCA in respect of additional requirements which may be included in community rehabilitation orders, and community punishment and rehabilitation orders, namely the addition of a "curfew requirement" in a new paragraph 7 of that Act.

52. Similar powers to those in clause 41 above (on exclusion orders) are conferred on the Secretary of State in relation to requirements of community orders.

53. Sub-paragraph 7(4) of Schedule 2 to the PCCA confers the power on the Secretary of State to make an order describing the responsible person for monitoring the offender's whereabouts during curfew periods.

54. Sub-paragraph 7(8) confers the power on the Secretary of State to make rules for regulating (a) the monitoring of the offender's whereabouts and (b) the functions of any person responsible for such monitoring.

55. Sub-paragraph 7(9) gives the power to the Secretary of State to direct (a) different periods of curfew and (b) specify additional restrictions in relation to sub-paragraph 3 (avoiding conflict with offender's religious beliefs, other community orders, school or other education).

56. All these powers are subject to the negative resolution procedure. It is submitted that this is the appropriate level of Parliamentary scrutiny for these powers.

CLAUSE 46: COMMUNITY SENTENCES: EXCLUSION REQUIREMENTS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 41, 42, 44, 45, 47, 57, 66; paragraph 175 of Schedule 6 to the Bill; section 160 of the PCCA 2000


57. This clause amends Schedule 2 to the PCCA in a similar way to clause 45 above, enabling "exclusion requirements" of community rehabilitation and community punishment and rehabilitation orders.

58. Sub-paragraph 8(4) confers the power on the Secretary of State to make an order specifying the description of persons responsible for monitoring the offender's whereabouts while subject to an exclusion requirement.

59. Sub-paragraph 8(7) confers the power on the Secretary of State to make rules for regulating (a) the monitoring of the whereabouts of an offender subject to an exclusion requirement (eg. method, equipment etc.) and (b) the functions of any person responsible for monitoring those whereabouts).

60. Sub-paragraph 8(8) gives the power to the Secretary of State by order to direct (a) changes to the maximum periods of the requirement and (b) additional restrictions in relation to sub-paragraph (4) (avoiding conflict with the offender's religious beliefs, other community orders, school or other education).

61. These powers are subject to the negative resolution procedure. It is submitted that this is the appropriate level of Parliamentary scrutiny for such powers.

CLAUSE 47: COMMUNITY SENTENCES: ELECTRONIC MONITORING OF REQUIREMENTS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: None or negative resolution
Other relevant provisions: Clauses 44, 45, 46, 57, 58, 66; paragraph 175 of Schedule 6 to the Bill; section 175 of the PCCA 2000


62. Clause 47 amends the PCCA in respect of monitoring certain requirements of community orders through electronic means, by inserting a new section 36B "Electronic monitoring of requirements in community orders".

63. Subsection 36B(5) confers the power on the Secretary of State to describe the person responsible for the electronic monitoring requirement. This is not subject to any Parliamentary procedure. Subsection 36B(6) empowers him to make rules for regulating (a) the electronic monitoring (eg. the precise method, equipment etc.) and (b) the functions of the responsible persons for electronic monitoring. This is subject to the negative resolution procedure.

CLAUSE 48: BREACH OF COMMUNITY ORDERS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Draft affirmative
Other relevant provisions: Paragraph 175 of Schedule 6 to the Bill; section 175 of the PCCA 2000


64. Clause 48 amends Schedule 3 to the PCCA 2000 so as to make it clear that orders mentioned in paragraph 1 of that Schedule are orders to which the warning provisions of clause 48 apply. Subsection (1) of clause 48 gives the Secretary of State a power to apply the warning provisions to any other order. Because this is a power which affects the extent of the application of the warning provisions, it is considered that the draft affirmative procedure is appropriate.

CLAUSE 50: REGULATION OF COMMUNITY ORDERS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 38-48


65. Clause 50 provides for the regulation of community orders. These provisions replace a substantial section of the current Probation Rules. They give the Secretary of State the power to regulate the functions of officers of local boards in relation to supervising probation and community service orders, the number of hours of work, reckoning of hours of work, work records and payment of travelling and other expenses in connection with performance of work. As a replacement of current probation rules and being administrative in nature and detail, these powers would be exercisable through negative resolution procedure.

MISCELLANEOUS
Police powers: drugs

CLAUSE 52:TESTING PERSONS IN POLICE DETENTION



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Affirmative resolution
Other relevant provisions: Clauses 42, 46, 47, 57, 66


66. Clause 52 sets out the procedure for taking urine and non-intimate samples (e.g. oral saliva swabs) for the purposes of testing those charged with certain acquisitive and drugs offences for the presence of specified Class A drugs. The procedures are set out through insertions of new sections in the Police and Criminal Evidence Act 1984.

67. Clause 52(2) refers to an amendment of the Police and Criminal Evidence Act (subsection 63B(6)) conferring the power on the Secretary of State to regulate those persons who may take urine or non-intimate samples under this part of the Bill. These regulations would be made by statutory instrument through the affirmative resolution procedure, approved by each House of Parliament.

68. Clause 52(5) confers the power on the Secretary of State to amend sections of the Act so as to extend the drug testing provision to those offenders who have been arrested but not been charged with the offences in question.

69. Drug testing on charge will help to establish those using heroin and/or crack/cocaine. This will enable more effective referrals to drug treatment services to be made. A positive screening test confirmed by laboratory analysis will then be used to inform decisions about bail and through the remainder of the criminal justice process. These provisions will be fully tested and evaluated during piloting.

70. If evidence from the pilot phase or elsewhere emerged to suggest that testing on charge should be augmented or replaced by an option to test at arrest, an extension of these powers would be required to allow testing at arrest. A proportionate response would require clear and substantial evidence to support this, which would be available for full Parliamentary scrutiny. Any extension of these powers will be exercised through affirmative procedure, approved by each House of Parliament.

CLAUSE 57: RELEASE ON LICENCE ETC: CONDITIONS AS TO MONITORING



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 45, 46, 47, 58, 59


71. Clause 57(4) refers to conditions of release on licence. It confers the power on the Secretary of State to make rules about electronic monitoring conditions that may be imposed (eg. by prison governors) in licences, including temporary licences. This power is similar to that described in clause 47 and is again a matter of administrative detail which does not require full parliamentary scrutiny. It would be exercisable through the negative resolution procedure.

CLAUSE 58: SUPERVISION OF YOUNG OFFENDERS AFTER RELEASE



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 45, 46, 44, 45, 46, 47, 52, 57, 59


72. Clause 58 amends section 65 of the Criminal Justice Act 1991, which requires certain young offenders to be released from custody subject to a notice of supervision. New subsection (5D) confers the power on the Secretary of State to make rules about electronic monitoring and drug testing requirements in notices of supervision, and to regulate the provision of urine samples in those cases where young offenders are subject to drug testing requirements. These powers would be exercisable through negative resolution procedure.

CLAUSE 59: RELEASE ON LICENCE ETC: DRUG TESTING REQUIREMENTS



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 42, 43, 44, 52, 57, 58


73. Clause 59(4) gives the power to the Secretary of State to regulate the provision of urine samples in those cases where prisoners on licence, including temporary release licence, are subject to a drug testing condition in accordance with clause 59(3). This power is similar to that described in clause 44 and is a matter of administrative detail which does not require full Parliamentary scrutiny. It would be exercisable through negative resolution procedure.

CHAPTER III
Supplementary

CLAUSE 61: INTERPRETATION



Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure Affirmative resolution
Other relevant provisions: Clauses 42, 43, 44, 52, 53, 59


74. Clause 61(2) confers the power on the Secretary of State to amend Schedule 5 to the Act so that the definition of what comprises "trigger offence" can be changed (add, modify or omit any description of offence).

75. The offences which have been designated as "trigger" offences are those which research shows are most closely linked to specified Class A drug misuse. Evaluation of the Drug Testing of Arrestees programme has clearly identified a strong link between drug misuse and certain acquisitive crimes, robbery and Class A drug offences.

76. This research is continuing and should evidence emerge to indicate that either additional crimes are now linked to drug misuse, or that existing trigger offences no longer show evidence of a link to drug misuse, the power to amend "trigger" offences will be required. Evidence to support any changes should be open to full parliamentary scrutiny and because of the seriousness of changing or extending the trigger offences, this provision would be subject to affirmative resolution procedure, being passed through both Houses of Parliament.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000