Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

CRIMINAL JUSTICE AND COURT SERVICES BILL

Memorandum by the Home Office

PART IV
General and supplementary
Chapter I
General

CLAUSE 62: ACCESS TO DRIVER LICENSING RECORDS



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


77. This clause gives the Secretary of State power to make regulations to allow the bulk transfer of driver licensing data from the Driver and Vehicle licensing Agency (DVLA) to the Police Information Technology Organisation (PITO). PITO is a non-departmental public body which operates the police national computer (PNC). The intention is that driver information will be copied to the PNC.

78. The facility will afford constables rapid, road-side access (via their control rooms) to information concerning drivers they may have stopped. Police enquiries of the driver record are likely to be based on details provided by those drivers. Information held on the PNC will be accessible only by the police. Confidential medical information held by the DVLA will not be included in the data transfer.

79. Considerable administrative savings are expected, together with a reduction in inconvenience to the motorist by removing the need for documentation to be produced at police stations in many cases.

80. Clause 62(2) narrows further the use of the information concerned and confers the power on the Secretary of State to determine by regulations: (a) the purposes for which constables may be given access to the information; and (b) the circumstances in which this information can be further disclosed by them.

81. Negative resolution procedure is felt to be appropriate as the clause will replace Section 105 of the Road Traffic Act 1988, which authorises disclosure of information on request of the Chief Constable. Regulations enacted for this purpose are already subject to the negative resolution procedure. The view is taken that there would not be a qualitative change in the nature of the information to be made available over that which can be currently disclosed - the benefit of the new measure is that it allows more efficient access to DVLA data.

82. The regulations will prescribe the categories of offence for which police may require the information. It is intended that the regulations will be used to specify road traffic offences only and be used by the police in the enforcement of road traffic law. By determining the purposes for which the information may be used, the regulations do not extend the general scope of the clause but have the effect of limiting the possible use which the police might make of that information. To that extent, the provision to make regulations safeguards against improper disclosure of information.

CHAPTER II
Supplemental

CLAUSE 67: SUBORDINATE LEGISLATION

83. Clause 67(2) provides that any power of the Lord Chancellor or Secretary of State to make any regulations, rules or order under the Bill shall be exercisable by statutory instrument (unless it is a power to make an order under clause 19, 20 or 23). Subsection (3) of that clause provides that such power may be exercised so as to make different provision for different purposes or areas. Subsection (4) provides that it may contain supplementary, incidental, consequential, transitory, transitional or saving provisions, as the minister considers necessary or expedient. Given the extent of powers to make subordinate legislation under this Bill, it is considered that this provision is necessary.

CLAUSE 68: SUPPLEMENTARY AND CONSEQUENTIAL PROVISION, ETC.



Power conferred on: The Secretary of State or Lord Chancellor
Power exercisable by: Statutory Instrument
Parliamentary procedure Affirmative resolution
Other relevant provisions:


84. Clause 68 confers the power on the Secretary of State or Lord Chancellor to make an order or further provisions to give full effect to any provision of this Act. This order may include the amendment or repeal of any enactment, instrument or document (clause 68(2)). This power follows normal practice with a Bill of this size and range of scope, so that any necessary supplementary and transitional provision, not identified at this stage, can be made after the Bill is enacted. If this involves amendment or repeal of another enactment, instrument or document, the power would be exercised through the affirmative resolution procedure, approved by each House of Parliament but otherwise would be negative resolution.

CLAUSE 71: COMMENCEMENT

85. Clause 71 provides for the new Act to be brought into force by a commencement order on a day to be appointed by the Lord Chancellor or the Secretary of State. Different days may be appointed for different areas or different purposes. This power is not subject to any Parliamentary procedure following normal practice with commencement orders.

SCHEDULE I



Local Probation Boards
Power conferred on: The Secretary of State
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Clauses 1-10


86. This Schedule provides various powers to make regulations in respect of matters relating to local probation boards. These include:

Paragraph 2(4): provision as to the appointment of chairman and other members (including the number, or limits on the number, of members who may be appointed and any conditions to be fulfilled for appointment as a member);

Paragraph 2(5): a requirement for regulations to be made to provide that, as far as practicable, persons appointed are representative of the local community and live or work in that area;

Paragraph 3(4): provision as to the tenure of office of the members (including the circumstances in which they cease to hold office or may be removed or suspended from office);

Paragraph 4: regulations may require the chairman to make a report to the Secretary of State about the performance of the members or any of them and may confer other functions on the chairman;

Paragraph 6 provides for the power to make regulations concerning the establishment and functions of committees and sub-committees (including committees and sub-committees which consist of or include persons who are not members of the board) and the procedure of the boards and of any committees or sub-committees of the boards (including the validation of proceedings in the event of vacancies or defects in appointment);

Paragraph 7 gives the Secretary of State power to make provision through regulations for the appointment of a secretary or treasurer (including the conditions to be fulfilled for appointment), and their tenure of office (including the circumstances in which the secretary or treasurer ceases to hold office or may be removed or suspended from office);

Paragraph 10 confers the power on the Secretary of State to make regulations prescribing the functions or other powers of a local board to be performed by the chief officer on behalf of the board. This is a very important provision which enables regulations to clarify the role of the chief officer in the day to day running of the service. The detail of that role will vary from time to time and secondary legislation will allow the flexibility to make amendments;

Paragraph 18 provides for regulations requiring each local board to make and publicise arrangements for dealing with complaints made by or on behalf of prescribed persons. This is designed to ensure that every service has an internal complaints procedure which matches the best practice set out in the Cabinet office's "Service First" charter for public services.

87. All of the above powers under Schedule 1 relate to procedures for the new local boards. Many of these matters are currently dealt with in respect of probation committees through secondary legislation as set out in The Probation Rules 1984 (SI No. 647, as amended) exercised through the negative resolution procedure or subject to no Parliamentary scrutiny. They are primarily matters of administrative detail.

88. It is therefore considered that the power for the Secretary of State to make these new rules should be by statutory instrument, subject to the negative resolution procedure.

SCHEDULE 2
Children and Family Court Advisory and Support Service

89. This schedule sets out the detail regarding the CAFCASS board, staff and procedures.



Power conferred on: The Lord Chancellor
Power exercisable by: Statutory Instrument
Parliamentary procedure: Negative resolution
Other relevant provisions: Paragraphs 11-17


90. Paragraph 2 confers the power on the Lord Chancellor to make regulations over the appointment of chairman and other members, and the co-option of additional members to the Children and Family Court Advisory and Support Service, and their tenure, including the circumstances in which they would cease to hold office or may be removed or suspended from office. This power, as with others in this schedule, reflects the relationship between a NDPB and its sponsoring department.

91. Paragraph 4 confers the power on the Lord Chancellor to issue regulations regarding the establishment and procedure of committees (including committees which involve people who are not the Chair or another member of the board) for the new Service. This will give CAFCASS autonomy in establishing committees and sub-committees but requiring that this occur within a framework that ensures public accountability.

92. Paragraph 5(2) confers the power on the Lord Chancellor to make provision as to the qualifications, experience or training to be required of officers of the Service. This allows the flexibility to develop the human resources necessary to ensure the delivery of a high quality and consistent service across the country which reflects developing best practice, relevant research and evolving legislative requirements, including those arising from the implementation of the Human Rights Act 1998.

93. All the above powers will be exercisable by statutory instrument through negative resolution procedure as these matters are essentially ones of detail.

POWERS OF DIRECTION

94. The direction-making powers in this Bill fall into three categories; powers relating to clause 7, which concerns the relationship between the Home Secretary and the Chief Inspector of Probation, the powers in Schedule 1 which relate to the Home Secretary's relationship with local boards, and those in Schedule 2 which relate to the Lord Chancellor's relationship with CAFCASS.

CLAUSE 7

95. Clause 7(2) confers the power on the Secretary of State to direct the members of the probation inspectorate to assess the provision made by the probation boards. Clause 7(4) gives him the power to give directions about the information, form and timing of their report. Clause 7(6) allows him to give directions about conferring further functions on the inspectorate.

96. The clause 7 powers clarify the Chief Inspector's role, which is to give the Home Secretary the information he requires on the performance of local boards.

97. The Home Secretary will be accountable in Parliament for the performance of the service as a whole, in a way which he has not been before. While he will have access to management information produced by boards, an external assessment of the stand and quality of service achieved by each board will provide an important element of the picture. It will be all the more important in an area where there appear to be problems, and the reasons for those problems is not clear - particularly if there is any question of bringing into force the default powers in clause 10.

98. It is, therefore, vital that the Home Secretary should be able to specify what information he needs from the Chief Inspector, the time by which he needs it, and the format in which it should be presented. This reflects the fact that the role of the Chief Inspector as set out in this Bill is to advise the Home Secretary in the fulfilment of his statutory functions. It would be inappropriate for this power to be exercised through secondary legislation; circumstances may change from area to area in terms of what information is needed and when. Using the power of direction allows for this flexibility. It also makes it possible for the Home Secretary to get the information and advice he needs quickly in cases where there is a perceived problem, so that he can respond effectively and without delay.

SCHEDULE 1

99. The Schedule 1 powers are also a consequence of the Secretary of State's accountability for the service under the new structure. Clearly, it would be unreasonable to hold anyone accountable for something which was largely outside their control. Under the current arrangements probation committees are independent bodies whose powers are defined in broad terms by the Probation Service Act 1993 and in detail by secondary legislation, the Probation Rules.

100. Experience has shown that this is not a structure which produces consistently good standards of performance across the service as a whole, neither does it have the flexibility to respond quickly and consistently to new demands on the criminal justice system. Significant differences between the performance in different areas have proved hard to explain, and where a committee appears to be providing a poor service, there is no power to bring about improvements.

101. Creating a National Probation Service gives the Secretary of State the responsibility for achieving consistency and high standards across all the boards, and this means he must be able to set the parameters for the way they operate and give them directions to effect an improvement if they fall below the standards.

102. In many organisations this kind of direction-making power is taken for granted as part of the normal manager/employee relationship. The structure of the proposed National Probation Service follows a different model, in order to ensure local governance, so that staff employed by the local boards and board members, including chief officers, are appointees rather than employees. So the powers of direction are needed to clarify that the Secretary of State has the power, and the responsibility, to manage the service as a whole.

103. Paragraph 12 confers on the Secretary of State the power to give directions about how the functions and other powers of the local boards should be performed.

104. This allows the Secretary of State to highlight priorities and issues that the service needs to address.

105. Paragraph 13 confers a power on the Secretary of State to give a local board directions on how it exercises its ancillary powers, and in particular related to property and money. These are important matters where the Secretary of State needs powers to set parameters for local boards. Paragraph 14 clarifies that these directions can be used for local boards generally or in relation to one or more local boards.

106. Paragraph 15 provides the Secretary of State with direction making powers in relation to the information to be contained in annual plan prepared by a local board. Paragraph 15(2) gives the Secretary of State the power to direct the local board to modify its plan if he does not think it is satisfactory.

107. Paragraph 16 confers on the Secretary of State a power to make directions related to the form and contents of the financial statement.

SCHEDULE 2

108. The powers to direct in Schedule 2 are a necessary part of the Lord Chancellor's relationship with CAFCASS. The powers cover similar areas to that exercised by the Secretary of State in Schedule 1 but they strike a balance between the accountability and independence of CAFCASS as a Non-Departmental Public Body.

109. Paragraph 9(2) and (3) confers on the Lord Chancellor the power to give directions about:

How the functions and other powers of the Service should be performed

How officers of the Service should perform their functions and

The quality and standards of services provided

110. This allows the Lord Chancellor to highlight priorities and issues that the service needs to address.

111. Paragraph 10 confers a power on the Lord Chancellor to give the Board direction on how it exercises its ancillary powers, and in particular related to property and money. These are important matters where the Lord Chancellor needs powers to set parameters for the Board of CAFCASS.

112. Paragraph 12 provides the Lord Chancellor with direction making powers in relation to the information to be contained in CAFCASS annual report and the form the report should take.

113. Paragraph 13 confers on the Lord Chancellor a power to make directions related to the form and contents of the financial statement and the appointment of auditors.

14 June 2000


 
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