CRIMINAL JUSTICE BILL
1. This is a significant bill, in fourteen Parts
and with 32 Schedules, which makes changes to the law in a number
of areas, summarised at paragraph 9 of the Explanatory Notes published
with the bill. In general, the bill extends only to England and
2. There are many delegated powers, as is to
be expected in a bill of this length. The powers are (except for
that at Schedule 26, paragraph 20) identified in the memorandum
to the Committee from the Home Office. The memorandum is printed
at Annex 1 to this Report.
3. Although in most instances we take the view
that the delegations are appropriate and subject to an appropriate
level of Parliamentary scrutiny, a number of delegated powers
raise issues to which the Committee wishes to draw the attention
of the House. We first set out the relevant Henry VIII powers
and then consider other delegated powers.
4. There are Henry VIII powers at clauses 12(3)(c),
148, 154(7), 171, 188(3), 214, 236(6), 252, 254(6), 266(2) and
(3), 268(1), 275, 279(5), 295(7) and 302, and Schedule 25, paragraph
5, Schedule 26, paragraph 20 and Schedule 29, paragraph 9. With
the exception of the powers conferred by Schedule 29, paragraph
9 (which are subject to negative procedure), the affirmative procedure
applies in each case.
5. Clause 12 (3)(c) enables the Secretary of
State to alter the minimum age at which persons in police detention
may be tested for class A drugs. (This age is lowered from 18
to 14 by clause 12(3)(a).) The purpose of the power is clear and
its principle apparent from the bill. Although there is no maximum
or (more importantly) minimum age specified, we note that there
is a safeguard for under-17s at new subsection (5A) of section
63B of the Police and Criminal Evidence Act 1984 (see clause 12(3)(b)).
We take the view that in this instance the delegation and the
level of scrutiny are appropriate. Bearing in mind, however, that
this provision could be extended to children below the age of
14, we suggest that the House may wish to invite the Government
to provide an assurance that the purpose of the provision relates
only to identifying those who may need treatment and has no effect
on the age of criminal responsibility of children.
6. Clause 148 enables the Secretary of State
to raise from 12 to 18 months the new general limit on the term
of imprisonment which a magistrates' court may impose. (This limit
is itself raised from 6 to 12 months by clause 146(1).) There
is a corresponding power in relation to maximum consecutive terms
of imprisonment. According to the Home Office memorandum, a decision
to use the power under clause 148 will be taken when it is demonstrated
that "magistrates are making effective use of their new sentencing
powers and are retaining more cases for trial".
7. Although the power under clause 148
is subject to affirmative resolution, we considered whether a
provision of such importance and general application should appropriately
be left to delegated legislation at all. We have concluded that
it should not. The Committee's attention
was not drawn to any precedent for increasing the jurisdiction
of the courts in this way. The Committee appreciates that the
provision of affirmative procedure to trigger the amendments in
clause 148 will guarantee that there is a debate at that time.
But the Committee considers that the issue is of such importance
that the level of Parliamentary scrutiny and control should be
that which only a bill can provide, which will include the opportunity
8. Section 254(5) requires the court, when considering
the seriousness of an offence in relation to a mandatory life
sentence, to have regard to principles listed in Schedule 17 to
the bill. Clause 254(6) enables the Secretary of State to amend
Schedule 17. This is an important list. In our view, however,
both the delegation and the level of Parliamentary scrutiny (affirmative
procedure) are appropriate.
9. Clause 9 makes significant changes to the
process of establishing and amending codes of practice under the
Police and Criminal Evidence Act 1984. It is explained in full
in the memorandum where it is stated that amendments are to be
tabled about the level of Parliamentary scrutiny that will apply.
We shall consider those amendments when they are available to
the House. Meanwhile, we wish to endorse the principle (proposed
in the memorandum) that new codes and significant amendments to
existing codes (however that is to be defined) should be subject
to affirmative procedure.
Schedule 29, paragraph 4
10. Schedule 29 concerns amendments to the Police
Act 1997 and disclosure of criminal and other records by the Criminal
Records Bureau for employment vetting purposes. As explained in
paragraph 639 of the Explanatory Notes, this provision (in particular,
paragraph 4(3)) replaces material set out in the Police Act 1997
itself or in regulations (subject to affirmative procedure) under
section 115(4)(a) of that Act, with a power to prescribe that
material by regulations under that Act subject to negative procedure.
Whilst we take the view that both the delegation and the level
of Parliamentary scrutiny are appropriate, we draw to the attention
of the House the reduced level of Parliamentary control and scrutiny
under this provision.
11. We draw to the attention of the House
the recommendation in paragraph 7 and the points raised in paragraphs
9 and 10. There are no further matters in relation to the delegated
powers in this bill on which we wish to report to the House at
this stage. We anticipate however reporting again to the House
when the amendments to the bill mentioned in paragraph 9 above
are before the House for consideration.