Select Committee on Delegated Powers and Deregulation Twenty-Second Report



CRIMINAL JUSTICE AND COURT SERVICES BILL

Supplementary Memorandum by the Home Office

INTRODUCTION

1. This supplementary memorandum sets out in detail the policy justification for the Parliamentary procedure applying to various powers contained in Part III of the Bill. The Department apologise for the fact that these details were not set out in the Memorandum of 14th June 2000. In addition, it is very much regretted that, by condensing the description of the Parliamentary procedure applicable to the powers contained in clauses 45 and 46, the first Memorandum was misleading.

2. The clauses discussed below relate to the monitoring of offenders subject to community sentences. In particular, they relate to monitoring offenders' compliance with orders and requirements as to exclusion (from certain places)[6], abstinence from drug misuse[7] and curfew[8]. Provision is also made for the use of electronic means of monitoring any requirements of community orders.[9]

3. The scheme anticipates the availability of exclusion, drug abstinence and curfew conditions as free-standing community orders or as single component requirements of a community rehabilitation (probation) order. While this approach provides for the greater sentencing flexibility for the courts, it creates a certain amount of repetition in the draft legislation and the present exercise. It is worth considering and remembering the relationship between eg. exclusion orders[10] and exclusion requirements in community rehabilitation orders[11] etc.

4. The delegated powers provided, cater for three general categories of instrument:

RESPONSIBLE OFFICER ORDERS[12]

5. Orders in which the Secretary of State specifies who may be a "responsible officer" in relation to a particular type of community order or requirement. Such persons will be named in court orders of the relevant type and in the relevant area, as responsible for the supervision of an offender's compliance with this part of his sentence.

6. Subject to the notable exception of drug abstinence orders[13], it is suggested that no parliamentary procedure is required in relation to "responsible officer orders". The persons in question need have little or no direct contact with the offender. They have no real discretionary role as to the impact or severity of the sentence. They merely monitor and report on compliance (eg. with a curfew requirement). This will usually be by electronic means. However, while such Orders perform no regulatory role, they do provide an important means of notifying courts, offenders etc. of who the relevant responsible officers are.

RULES REGULATING MONITORING/ FUNCTIONS OF RESPONSIBLE OFFICERS[14]

7. Rules by which the Secretary of State regulates the monitoring of various orders and requirements and/ or the functions of responsible officers.

8. It is suggested that negative resolution procedure is appropriate for the making of these rules. In contrast with the previous category of instrument, an element of regulation (as well as publication) is involved. Such rules may be used to prescribe appropriate monitoring techniques. They may specify particular types of equipment (thus raising issues of cost, accuracy and level of intrusiveness). They may deal with issues as to if, when and how an officer is to engage with the offender and/other members of the public. However, it is considered that such matters may all be resolved within the ambit of the sentences as set out in the draft primary legislation. Thus the closer and more time-consuming scrutiny provided by draft affirmative resolution procedure is not currently proposed.

ORDERS VARYING POSSIBLE PERIODS AND/ ADDING RESTRICTIONS FOR VARIOUS REQUIREMENTS/SENTENCES[15]

9. Orders by which the Secretary of State directs that the minimum/ maximum period available to the court for the duration of a condition/ sentence may be altered. Orders by which the Secretary of State adds to the interferences which the sentencing court should seek to avoid.

10. As these instruments allow for alterations to the structure (in particular, duration) of sentences, some parliamentary scrutiny is clearly required. However (and subject once more to the exception of drug abstinence), it is suggested that negative resolution procedure may provide an adequate degree of parliamentary scrutiny. The sentences involved are non-custodial and discretionary in their nature. Thus Orders made under these powers may not force sentencing courts to make orders which they consider unduly harsh in any given case.

11. Further, where the Secretary of State may direct that additional restrictions (ie. interferences to be avoided), may apply, the power only allows for the provision of additional protections for the offender. The order-making power may not be used for the removal of such protections of the private life/ employment of the offender.

CLAUSE 41 - EXCLUSION ORDERS

12. Clause 41 inserts new sections 40A (6) and 40C (1) and (2) into the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA"), which provide for three new powers to make delegated legislation.

NEW SECTION 40A (6)

13. This confers the power on the Secretary of State to make an order describing persons responsible for monitoring an exclusion order. It follows from amendments made to section 160 of the PCCA that this power is not subject to any Parliamentary procedure. This power, and the procedure applicable, mirrors that in section .37(6) of the PCCA ('curfew orders'), which consolidates section 12 (4) of the Criminal Justice Act 1991 ("the 1991 Act"). We suggest that Parliamentary scrutiny of the exercise of this power is not necessary because it simply allows the Secretary of State to identify those responsible for monitoring the offender's whereabouts. It is more akin to a process of notification rather than regulation.

14. As in the case of responsible officers in section 37(6) of the PCCA, an order specifying a person as a responsible officer is published so that it is clear who has the authority for monitoring offenders.

15. By virtue of amendments made to section 160 of the PCCA, different provision may be made for different cases or classes of case This allows for the provision of different responsible officers on a regional basis or for cases where monitoring is to be provided electronically or by other means.

16. An example of the exercise of the power to make an order under section 12 (4) of the 1991 Act (now consolidated in section 37(6) of the PCCA), is "The Curfew Condition (Responsible Officer) Order 1999" (SI 1999/9). That order lists the areas of England and Wales in which the responsible officer is to be an employee of named electronic monitoring contractor companies. A copy is enclosed for ease of reference.

NEW SECTION 40C (1)

17. This mirrors section 40(1) of the PCCA (consolidating section 15 (1) of the 1991 Act) in providing the Secretary of State with the power to make rules for the regulation of the monitoring regime of offenders subject to exclusion orders, and the functions of the officers responsible for that monitoring. By virtue of amendments made to section 160 of the PCCA this power is subject to the negative resolution procedure. This power does involve an element of regulation, but has no impact on the structure of the sentence, neither does it allow rules to provide responsible officers with any discretion in the carrying out of their functions.

18. However, because a degree of regulation is involved, some Parliamentary scrutiny is regarded as necessary and we believe that the appropriate level of scrutiny for such a limited power is the negative resolution procedure.

19. By virtue of amendments to section 160 of the PCCA, provision may be made for different cases or classes of case. This allows eg. for differing regulation of electronically or otherwise monitored orders.

NEW SECTION 40C (2)

20. This is to be compared with section 40 (2) of the PCCA(which consolidates section 12 (7) of the 1991 Act). The Secretary of State is given the power to direct that the maximum period of exclusion orders be changed, and he may also add to the activities set out in new section 40A (5) with which the requirements of an order must not conflict.

21. It is subject to the negative resolution procedure by virtue of amendments made to section 160 of the PCCA. It is submitted that this is the appropriate procedure.

22. The power to change the maximum period of exclusion could affect the structure of the sentence. However, the exercise of this power would not fetter the discretion of the court when imposing the order. The court would have available to it a new maximum period, but there would be no mandatory requirement to impose it. The court would still have a responsibility and discretion to decide the appropriate length of the exclusion order, taking into account all the circumstances of the individual case (and would be subject to the requirements of section 35 of the PCCA and, of course, the Human Rights Act, from October 2000).

23. The power to impose additional restrictions in the new section 40A(5) would only serve to restrict the freedom of the court in imposing the order, by adding to the activities of the offender with which the order must not conflict. Therefore it would add to the protections provided for the benefit of the offender, and could only curtail the power of the courts.

24. For these reasons we believe the appropriate level of Parliamentary scrutiny is the negative resolution procedure. By virtue of amendments made to section 160 of the PCCA, provision may be made for different cases or classes of case. This would eg. allow for the possibility of particular restrictions in relation to younger offenders or other groups who may present particular problems.

CLAUSE 42 - DRUG ABSTINENCE ORDERS

25. This inserts new sections 58A and 58B into the PCCA. New section 58A provides for two new delegated powers and new section 58B provides for one new delegated power.

NEW SECTION 58A

26. Subsection (4) provides a power for the Secretary of State to specify the description of persons who will supervise an offender subject to a drug abstinence order. By virtue of amendments made to section 160 of the PCCA, the level of Parliamentary scrutiny is the draft affirmative procedure. It is submitted that this is the appropriate procedure in this case notwithstanding the different level of scrutiny which has been provided for apparently similar powers elsewhere. These provisions differ from those described above in relation to electronic monitoring and exclusion orders. Drug testing could lead to a greater degree of intrusion into an individual's private life. In addition greater discretion can be exercised by the responsible officer. Crucially, a drug abstinence order (subsection (1)(b)), involves an obligation to provide a sample "when instructed to do so by the responsible officer". This creates a substantial responsible officer discretion as to when and how often an offender should be tested. It is therefore submitted that it is right that any exercise of the power is subject to a debate in both Houses of Parliament.

27. Subsection (8) of new section 58A of the PCCA provides a power to make rules for regulating the provision of samples in pursuance of instructions under subsection (1) (b) of that section. It is subject to the negative resolution procedure by virtue of amendments made to section 160 of the PCCA. We believe that this is appropriate given the regulatory nature of the power which will be used to regulate, for example, the type of equipment that is used. Since the choice of officers will be subject to the affirmative procedure then this level of scrutiny seems appropriate.

NEW SECTION 58B

28. This provides a new power in subsection (4) for the Secretary of State by order to amend the duration of a drug abstinence order by substituting a different maximum or minimum period. The amendments to section 160 of the PCCA are unclear as to whether the intention is for this power to be subject the draft affirmative or negative resolution procedure since it is mistakenly referred to as subject to both.

29. The intention is that it should be subject to the draft affirmative procedure. The reason is that drug testing is very intrusive and places offenders at the discretion of an officer for large periods of time. We consider it is important that Parliament has the opportunity to debate the necessity for changes to the maximum or minimum periods of the order.

CLAUSE 44

30. This clause provides for a new power in new section 42 (2E) of the PCCA to make rules for the provision of samples as provided for in new section 42 (2A). By virtue of amendments to section 160 of the PCCA the level of Parliamentary scrutiny will be the negative resolution procedure which it is submitted is appropriate. As with the power in clause 42 (the new section 58A (8)) this power is purely regulatory and will be used, for example, to determine the type of equipment that should be used in taking samples.

CLAUSE 45 - COMMUNITY SENTENCES: CURFEW REQUIREMENTS

31. This clause provides for three new delegated powers in a new paragraph 7 of Schedule 2 to the PCCA.

NEW PARAGRAPH 7(4) OF SCHEDULE 2 TO THE PCCA

32. This gives the Secretary of State the power to specify the descriptions of persons who are to be responsible for monitoring an offender's whereabouts when he is subject to a curfew requirement which is attached to a community rehabilitation order. It follows from amendments made to section 160 of the PCCA that no Parliamentary procedure has been provided for in respect of this power. It is submitted that this appropriate. Like the power in clause 41 (new section 40A (6)) no discretion can be conferred by an order, and it is again more an issue of notification rather than regulation. For this reason, we do not believe that Parliamentary scrutiny is required.

NEW PARAGRAPH 7(8) OF SCHEDULE 2

33. This provides the Secretary of State with the power to make rules for the regulation of the monitoring regime of offenders subject to exclusion orders, and the functions of the officers responsible for that monitoring. By virtue of amendments made to section 160 of the PCCA, it is subject to the negative resolution procedure. It is submitted that this appropriate. This is because the power does involve an element of regulation, but has no impact on the structure or severity of the sentence.

NEW PARAGRAPH 7(9) OF SCHEDULE 2

34. The Secretary of State is given the power to substitute new maximum and minimum periods for those given in sub-paragraph (2), and the power to add restrictions to those already in place in sub-paragraph (3). The power is subject to the negative resolution procedure by virtue of amendments made to section 160 of the PCCA. It is submitted that this appropriate. The sentence involved, a curfew requirement, is not in the same category as a drug abstinence order and the substitution of a new period by order will not force the courts to make an order they consider unduly harsh in any particular case. The court would still have discretion in operating within the periods laid down. In the case of the restrictions that may added to sub-paragraph (3), they will again be for the benefit of the offender.

CLAUSE 46 - COMMUNITY SENTENCES: EXCLUSION REQUIREMENTS

35. Clause 46 provides for three new powers in a new paragraph 8 of Schedule 2 to the PCCA.

NEW PARAGRAPH 8 (4) OF SCHEDULE 2

36. This provides a power to specify the persons responsible for monitoring those subject to exclusion requirements included in a community rehabilitation order. No Parliamentary scrutiny is provided for. It is submitted that this is appropriate for the same reasons given in relation to new paragraph 7(4) of Schedule 2 to the PCCA (see clause 45).

NEW PARAGRAPH 8(7) OF SCHEDULE 2

37. This gives the Secretary of State power to make rules for regulating the monitoring of the whereabouts of offenders subject to an exclusion requirement, and the functions of the responsible officers. The level of Parliamentary scrutiny is the negative resolution procedure. It is submitted that this is appropriate for the same reasons given in relation to new paragraph 7 (8) of Schedule 2 to the PCCA (see clause 45).

NEW PARAGRAPH 8(8) OF SCHEDULE 2

38. This provides a power for the Secretary of State to substitute a new period for that given in sub-paragraph (1), and to add restrictions to those listed in sub-paragraph (3). By virtue of amendments to section 160 of the PCCA, the level of Parliamentary procedure is negative resolution. It is submitted that this appropriate for the same reasons given in relation to new paragraph 7(9) of Schedule 2 to the PCCA (see clause 45).

CLAUSE 47 - COMMUNITY SENTENCES: ELECTRONIC MONITORING OF REQUIREMENTS

39. This provides for two new delegated powers in a new section 36 B of the PCCA.

NEW SECTION 36B (5)

40. This confers the power on the Secretary of State to describe the person responsible for the electronic monitoring of requirements of community orders. This is not subject to any Parliamentary procedure because, as has been mentioned before in relation to similar powers, it simply provides for the Secretary of State to identify the persons responsible for carrying out this monitoring.

NEW SECTION 36B (6)

41. This empowers the Secretary of State to make rules for regulating (a) the electronic monitoring (e.g. the precise method, equipment etc.) and (b) the functions of the persons responsible for electronic monitoring. It is subject to the negative resolution procedure by virtue of amendments made to section 160 of the PCCA. The policy aim is to allow the Secretary of State to take advantage of further advances in technology to improve the electronic monitoring of the terms of community sentences. Although it is a broader power than that, for example, in new paragraph 7(8) to Schedule 2 to the PCCA, because it relates to the electronic monitoring of compliance with requirements included in any community order, the principle behind the power is the same because it has no impact on the structure or severity of the sentence.

27th June 2000



6   Clauses 41 and 46. Back

7   Clauses 42 and 44. Back

8   Clause 45. Back

9   Clause 47. Back

10   Clause 41. Back

11   Clause 46. Back

12   Clauses 41(40A(6)), 42(58A(4)), 45 (Para 7(4)), 46 (Para 8(4)), 47(36B(5)). Back

13   Clause 58A(4). Back

14   Clauses 41(40C(1)), 42(58A(8)), 44(42(2E)), 45 (Para 7(8)), 46 (Para 8(7)), 47(36B(6)). Back

15   Clauses 41(40C(2)), 42(58B(4)), 45 (Para 7(9)), 46 (Para 8(8)). Back


 
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