Select Committee on Delegated Powers and Regulatory Reform Twenty-First Report


Annex 1

CRIMINAL JUSTICE BILL

Memorandum by the Home Office

1.  This memorandum identifies provisions for delegated legislation in the Criminal Justice Bill. The purpose of the memorandum is to explain the purpose of the delegated powers taken; describe why the matter is to be left to delegated legislation; and explain the procedure selected for each power and why it has been chosen.

2.  Many of the core criminal trials evidence and procedures reforms, and sentencing policy reforms within the Bill were signalled in the White Paper "Justice for All" published on 17 July2002[2].

3.  For an outline of the provisions see the attachment at end. More detailed information about the purpose and effect of the provisions in the Bill, and the background to the proposals, can be found in the Explanatory Notes published with the Bill.

DELEGATED POWERS

4.  The Bill contains 307 clauses and 32 schedules, some of which contain powers to make orders, rules or regulations by Statutory Instrument. Annex A to this memorandum identifies and explains all the relevant clauses fully. A table at the back of the annex lists all of the clauses containing delegated legislation.

5.  The 1973 Joint Committee on Delegated Legislation recommended that affirmative resolution procedure was appropriate for:

  • powers substantially affecting provisions of Acts of Parliament;
  • powers to impose or increase taxation; and
  • other powers of special importance, e.g. those creating serious criminal offences.

6.  Most of the orders, rules and regulations made under the powers in this Bill will follow the negative resolution procedure. This is because the Department considers that the considerations set out in paragraph 78 of the Second Report of the Joint Committee on Delegated Powers ("the Brooke Report") do not apply.

7.  The annex specifically identifies the 20 clauses where the affirmative resolution procedure is provided. Affirmative resolution has been provided in respect of:

  • clause 12: Drug testing for under-eighteens;
  • clause 25: (Conditional cautions) Code of practice;
  • clause 32(2): Defence disclosure;
  • clause 95: (Evidence of bad character) Offences "of the same description" or "of the same category";
  • clause 148: (Sentencing) Power to increase limits;
  • clause 154(7): Pre-sentence drug testing;
  • clause 171: Power to provide for court review of community orders;
  • clause 188: (Further provisions about orders) Meaning of "the responsible officer";
  • clause 214: (Further provisions about orders) Powers to amend limits;
  • clause 231: (Release on license of fixed term prisoners) Crediting of periods of remand in custody: terms of imprisonment and detention;
  • clause 236: (Release on license of fixed term prisoners) Power to release prisoners before required to do so;
  • clause 252: (Release on license of fixed term prisoners) Alteration by order of relevant proportion of sentence;
  • clause 254: Determination of minimum term in relation to mandatory life sentence;
  • clause 266: (Other provisions about sentencing) Alteration of penalties for other summary offences;
  • clause 268: (Other provisions about sentencing) Enabling powers: power to alter maximum penalties;
  • clause 275: (Firearms offences) Power by order to exclude application of minimum sentence to those under 18;
  • clause 278, Schedule 25 paragraph (5): Default orders: modifications of provisions relating to community orders;
  • clause 279: Fine defaulters: driving disqualification;
  • clause 295(7): Arrangements for assessing etc. risks posed by certain offenders;
  • clause 302(2)(b): Supplementary and consequential provision etc.

8.  Full details of these provisions and the reasons why they are subject to affirmative resolution are given in the annex.

9.  The Committee may wish to note that the Courts Bill contains provisions to create two new Rule Committees, for family and criminal business, and ensures consistency with the Civil Procedure Rule Committees.

Annex to the Memorandum

DELEGATED POWERS

Clauses 1-8: contain no delegated powers.

Clause 9: Power to issue or revise an existing Police and Criminal Evidence Act 1984 code and to issue new codes through a more limited consultation process and a requirement to lay the revised or new code before Parliament.

Power conferred on:    The Secretary of State

Power exercisable by:    Code of Practice

Parliamentary Procedure:  Lay before Parliament

This clause makes fundamental changes to the process for establishing and amending codes of practice under PACE. At present there are codes covering stop and search, searching of premises, detention, identification, and the recording of interviews. Currently issuing a new code or revising an existing code requires extensive public consultation and an active process of parliamentary consideration using the affirmative resolution procedure. The amendments provide a more limited consultation process and a simple requirement to lay a new code or a revised code before Parliament.

New PACE section 67(1) defines "code" by means of reference to various sections of PACE. Subsection (2) would allow the Secretary of State to revise the whole or any part of a code at any time. Subsection (3) would allow the effect of a code or any revision to be limited to specific areas, periods, offences or descriptions of offender. Subsection (4) would require the Secretary of State, before issuing a code or any revision of a code, to consult persons representing the interests of police authorities, persons representing the interests of chief officers of police and such other persons as he thinks fit. Subsection (5) would place the Secretary of State under a duty to lay any code or revision before Parliament.

Subsections (2) to (4) of clause 7 would amend section 113 of PACE so that the regime for making or amending codes of practice applicable to the military police will be similar to the revised arrangements described above.

The affirmative resolution procedure has proved cumbersome for amending the PACE codes. Keeping the codes more up-to-date as a policing tool would greatly enhance their usefulness for police officers and others involved in the criminal justice process. There have only been three comprehensive revisions of the whole set of codes since they first came into force in 1986. The most recent versions came into force on 1 April 2003 and they will soon need to be revised again. This lack of regular revision means that they are always out-of-date and that officers are working with codes that do not fully reflect the current law or good practice.

Much of the material in the codes merely reflects and explains the contents of primary legislation and so many prospective changes have effectively already been subject to parliamentary consideration. Other changes may involve non-contentious changes to procedures or merely be intended to clarify provisions or correct errors.

The Home Affairs Select Committee (HASC) has recommended preservation of the existing procedures where a code is being established for the first time or where revisions of substantial importance or significance are proposed. The extent of the changes contained in clause 7 was also criticised during the Bill's passage through the Commons and Ministers have undertaken that certain amendments will be introduced in the Lords. In particular the affirmative procedure will be retained for new codes and consultation requirements will be extended to include the Bar Council and the Law Society. Ministers have also recognised that the affirmative procedure is appropriate for significant amendments to the codes, but it has not proved possible to devise an objective test of when a proposed change falls into that category.

Consideration has been given to the possibility of the Secretary of State involving the HASC in advising on whether specific changes warrant detailed parliamentary scrutiny or not. However, there are substantial legal difficulties with specifying a role for the Committee on the face of the Bill. In particular, these difficulties arise from the fact that the names and functions of parliamentary committees are subject to change over time. There are also difficult issues linked to the mechanism by which the Secretary of State would consult such a committee in pursuance of a statutory obligation and the remedies available to the committee if he failed to do so.

An alternative would be to create scope within PACE for the Secretary of State to choose either the affirmative procedure or a mere requirement for laying before parliament for each proposed change to the codes. Ministers could then undertake in parliament to consult the HASC in each case as to the appropriate procedure and to be bound by the Committee's advice. This would be a way to ensure an effective role for the HASC, but without referring to the Committee on the face of the legislation.

All these issues will require further consideration in the Lords.

Clauses 10-11: Contain no delegated powers



Clause 12(3)(c): By order, enables amendment of the minimum age at which persons in police detention may be tested for specified class A drugs.

Power conferred on:    The Secretary of State

Power exercisable by:     Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

Section 57 of the Criminal Justice and Court Services Act 2000 inserted new provisions in the Police and Criminal Evidence Act 1984 (PACE), enabling custody officers after charge, to detain a person to enable a sample to be taken to test for the presence of any specified class A drug, subject to the conditions detailed in section 63B of PACE. The conditions include that the person concerned has attained the age of 18. (The current provisions apply only in certain police areas in which the section has been brought into force.)

Clause 12 amends these provisions in PACE relating to testing persons in police detention to enable persons who have attained the age of 14 to be tested for specified class A drugs.

It is proposed to introduce these provisions on a pilot basis in the case of those who have not attained the age of 18 so that the testing of persons aged 14-17 can be evaluated and the findings taken into account with other research evidence. Flexibility is required to change the minimum age for drug testing, as appropriate, should evidence emerge, either to suggest that the provision should be extended to include those younger than 14, or that testing persons in police detention from the age of 14 is an ineffective use of resources. Given the degree of flexibility required this should be left to delegated legislation.

Whilst any decisions will be evidence-based and made in consultation with relevant bodies, given the likely parliamentary and public interest and concerns about the rights of children and young persons in relation to testing on charge, affirmative resolution procedure is considered to be an appropriate level of parliamentary scrutiny.

The clause also ensures that these provisions will not apply in respect of persons under the age of 18 unless the relevant chief officer of the police force concerned has been notified that arrangements for testing persons under the age of 18 have been made in the police station (or police area) concerned. This will facilitate the piloting of the provisions in respect of those under 18 in selected sites alongside the continuing testing of those age 18 and over.

Clauses 13-18: Contain no delegated powers.

Clause 19: Does not contain a delegated order or rule making power but ensures that the provisions in respect of the presumption against bail apply only where the court has been notified by the Secretary of State that arrangements have been made for conducting a relevant assessment, and providing relevant follow-up, in the area in which it appears that the drug user would reside if granted bail. The bail condition to undergo an assessment and participate in any relevant follow up can only be applied in areas where appropriate arrangements are in place.

Clauses 20- 24: Contain no delegated powers.

Clause 25 (5): Power to bring a code of practice in relation to conditional cautions into force by order.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

This clause makes provision for the Home Secretary, with the consent of the Attorney General, to publish a Code of Practice setting out the criteria for giving conditional cautions, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

The Home Secretary is required to publish the code in draft and to consider any representations regarding it.

Matters of this sort of procedural detail are more appropriate for delegated legislation than for inclusion on the face of the statute.

As the code will be new, the affirmative resolution procedure is considered the appropriate level of parliamentary scrutiny.

Clauses 26-27: Contain no delegated powers.

Clause 28(5)(h): By order, specify the definition of public prosecutor for instituting criminal proceedings.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

Clause 28 provides for a new method of instituting criminal proceedings which consists in the issue to the person to be prosecuted of a written charge, together with a written requirement ('a requisition') for him or her to appear before a magistrates' court to answer to the charge. It is available to a public prosecutor, as defined in subsection (5). Subsection (5) includes provision for the Secretary of State to add to the list of public prosecutors by means of a statutory instrument. This provides flexibility to take account of the potential creation of new prosecuting bodies for whom it would be convenient to be able to use the new procedure. Amendment to primary legislation for such a matter of detail would be unduly burdensome.

The negative resolution procedure is regarded as an appropriate level of parliamentary scrutiny.

Clause 29(1): Power to make rules under s. 144 of the Magistrates' Courts Act 1980 to make provision as to the form, content, recording, authentication and services of written charges or requisitions, and such other provision in relation to written charges or requisitions as appears to the Lord Chancellor to be necessary or expedient.

Power conferred on:    Authority making rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause enables Rules of Court to make ancillary provision for the new system of charging.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of scrutiny.

Clauses 30-31: Contain no delegated powers.



Clause 32(2)(4): Power to prescribe in regulations further details that are to be contained in defence statements.

Power conferred on:    The Secretary of State

Power exercisable by:    Regulations by Statutory Instrument

Parliamentary Procedure:  Affirmative resolution

Clause 32 amends and amplifies the defence statement procedure in section 5 of the Criminal Procedure and Investigations Act 1996.

A common criticism of section 5 of the 1996 Act is that little guidance is offered to defence practitioners as to what should go into a defence statement. Clause 32 inserts a new section 6A into the 1996 Act, setting out a fuller and clearer list than hitherto of the matters to be included. The regulation making power will enable the Secretary of State to specify these matters in more detail, but will not enable the Secretary of State to add other general matters to the list.

The Bill as introduced into Parliament envisaged that the regulations would be made by negative resolution procedure on the grounds that this was the normal approach in relation to Rules of Court and regulations governing criminal procedure.

In Commons Committee[3] the Opposition tabled an amendment, accepted by the Government, changing this to the affirmative resolution procedure. The Government explained on that occasion that it could accept the amendment because of the nature of the issues that would be covered in any such regulations, and because such issues had hitherto been covered in their entirety in the primary legislation.

Clauses 33-47: Contain no delegated powers.

Clause 48: Rules of Court.

Power conferred on:    Authority Making Rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative resolution

The rule-making provision introduced by this clause clarifies that Rules of Court may be made, governing the detail of the procedure to be followed in respect of applications under Part 7 in general, and in particular applying time limits to the making of such applications or the taking of other procedural steps.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of parliamentary scrutiny.

Clause 49: Power to make Crown Court Rules to make provision for a hearing for application for trial on indictment without a jury.

Power conferred on:    Authority Making Rules of Court

Power exercisable by:    Rules

Parliamentary Procedure:  Negative Resolution

It is necessary to have a different procedure for applications for trials without a jury than will operate in England and Wales. This clause substitutes a clause for clause 44 of the Bill to enable application of this part of the Bill to Northern Ireland. This substitute clause 44 provides that in a trial under the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 applications for a trial without a jury must be made at the preparatory hearing. In any other trial, the new clause 44 provides that the application must be made at a hearing, provision for which is to be made by Crown Court Rules. The new clause also makes amendments to clauses 46 and 47 of the Bill to ensure that there is a right of appeal available in Northern Ireland from the hearing to be provided for by Crown Court Rules.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of scrutiny.

Clause 50: Does not contain a delegated order or rule making power but enables the Secretary of State to notify courts when suitable facilities for 'live links' are available in the area where the criminal proceedings are to take place. This allows for phased implementation.

Clauses 51-53: Contain no delegated powers.

Clause 54: Power to make rules of court (Magistrates' Courts Rules, Crown Court Rules or Criminal Appeals Rules) governing the procedure to be followed, and the arrangements which must be put in place, when an application is made for evidence to be given through a live link.

Power conferred on:    Authority making Rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

The rules are necessary to govern the procedure for making an application for evidence to be given through a live link, and for arrangements or safeguards to be put in place before this means of giving evidence can be used.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of scrutiny.

The rule making powers are in the same terms as provided for in the Youth Justice and Criminal Evidence Act 1999.

Clauses 55-85: Contain no delegated powers.

Clause 86: Power to make rules of court (in particular Criminal Appeals Rules and Crown Court Rules) in respect of various court procedures set out in Part 10 retrial for serious offences.

Power conferred on:    Authority making Rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause would enable rules of court to be made in respect of the various court procedures set out in Part 10 of the Bill - Retrial for Serious Offences.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of scrutiny.

Clause 87: Power to use section 31 of the Armed Forces Act 2001 to apply to the armed forces provisions equivalent (subject to modifications) to Part 10 (Retrial for serious offences) and to apply those provisions to such service offences as the Secretary of State may decide.

Power conferred on:  Secretary State (under section 31 of the Armed Forces Act 2001)

Power exercisable by:    Order by Statutory Instrument

Parliamentary Procedure:  Negative Resolution, unless the order alters the text of an Act

  (in which case affirmative resolution)

This clause ensures that section 31 of the Armed Forces Act enables provisions equivalent to Part 10 to be applied (subject to modifications) to the armed forces. It further enables the Secretary of State to specify by order those service offences to which the provisions equivalent to part 10 are to apply. These are likely to be limited to ones which are broadly equivalent seriousness to the civil offences set out in Schedule 4 to the Bill.

Significant modifications will be needed to Part 10 so as to make equivalent provision for the armed forces. They will need to take account of different modes of trial (courts martial), appeal to the Courts-Martial Appeal Court, different authorities (instead of the DPP), offences tried by court-martial outside England and Wales, and appropriate offences of equivalent seriousness under the armed forces' legislation. Such detailed modification can most appropriately be provided by statutory instrument.

Clauses 88-94: Contain no delegated powers.

Clause 95: Defines convictions for an offence 'of the same description' or 'of the same category', for the purpose of clause 93(1)(d).

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

Clause 93(1)(d) provides that evidence of a defendant's bad character is admissible if it is a conviction for an offence of the same description, or of the same category as the one with which he is charged. Clause 95 defines these terms and provides for the Secretary of State to provide by Order for categories of offences. All offences in a category must be of the same type, e.g. offences involving violence against the person.

The prescription of categories will require a level of detail that would not be appropriate for the face of the legislation. It is also likely to require amendment from time to time. This suggests that delegated legislation is the most appropriate vehicle for the categories.

As the admissibility of bad character evidence is one of considerable importance in criminal proceedings and one that attracts considerable Parliamentary and public interest the affirmative resolution procedure provides the appropriate level of parliamentary scrutiny.

Clauses 96-103 Contain no delegated powers.

Clause 104: Provides for rules of court to be made to require a defendant who wishes to adduce evidence of a co-defendant's bad character to give notice to the co-defendant of that intention.

Power conferred on:    Authority making Rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause enables Rules of Court to be drawn up so that notice can be required where a defendant intends to adduce evidence of a co-defendant's bad character. Subsection (3) provides that the rules may contain provision for the court or co-defendant to waive the requirement for notice, ensuring that delays do not occur unnecessarily.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of parliamentary scrutiny.

Clauses 105-124: Contain no delegated powers.

Clause 125: Power to make rules of court to govern the notice and leave procedures under Chapter 2 Hearsay Evidence.

Power conferred on:    Authority making Rules of Court

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause enables rules of court to make such provisions as appears necessary for the purpose of Chapter 2.

The primary purpose of the power is to enable rules of court to make provision for the procedure to be followed where a party to the proceedings knows in advance of the trial that he wishes to adduce hearsay evidence. The intention is that rules of court will govern both the notice and leave procedures and will ensure that adequate safeguards are put in place for the benefit of the party against whom the hearsay evidence is to be adduced.

It is not appropriate to include this level of procedural detail on the face of the legislation. As with other Rules of Court, dealing with detailed procedural matters rather than substantive issues, the negative resolution procedure provides an appropriate level of parliamentary scrutiny.

Clauses 126-129: Contain no delegated powers.

Clause 130(6): By order, specify the description of an either way offence for the purpose of giving evidence by video recording.

Power conferred on:    Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause permits a video recording of an interview with a witness (other than the defendant) or a part of such a recording, to be admitted as evidence in chief of the witness in a wider range of circumstances that is presently the case. The clause would enable the Secretary of State to prescribe from the list of lesser offences triable either way those in relation to which it would be most appropriate to allow video recorded evidence.

The department will be closely monitoring the extended use of video recorded statements to ensure that the new arrangements are targeted in an appropriate and effective way. Such experience, and changing patterns of criminal behaviour mean it is likely that from time to time that the list of offences triable either way will need to be amended. For example, experience may suggest that certain offences are unsuitable for inclusion in the new scheme, or new offences may be considered appropriate for adding to the list. We believe that negative resolution provides an appropriate level of parliamentary scrutiny for this purpose.

Clause 131(6): Does not contain a delegated order or rule making power but enables the Secretary of State to notify courts when suitable arrangements are available in the area for a court to make a direction that video recorded evidence should be admitted as the witnesses evidence in chief.

Clauses 132-147: Contain no delegated powers.

Clause 148: By order, enables a specified increase in the general limit on the term of imprisonment that may be imposed by a magistrates' court's power to impose imprisonment.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

This clause provides the Secretary of State with an order-making power to increase the limits in clauses 146 and 147 from 12 months to 18 months custody in respect of any one offence, and from 18 months to 24 months custody in respect of two or more offences to be served consecutively.

This has been left to delegated legislation as it is not intended to make any order under this clause to increase the limits until the manner in which the increases in clauses 146 and 147 are working under the new framework has been assessed. In light of the experience if magistrates are making effective use of their new sentencing powers and are retaining more cases for trial, then a further increase under this clause would be envisaged.

An increase in magistrates' sentencing powers is an area of reform that is of considerable public interest, so it is considered that the affirmative resolution procedure is appropriate. Because the limit to which the increase will apply (18 and 24 months) has been made explicit on the face of the statute it is considered that this procedure will provide an appropriate level of Parliamentary scrutiny.

Clause 149-150: Contains no delegated powers.

Clause 151: Power to make rules to prescribe the information contained and presented in a pre-sentence report.

Power conferred on:    Secretary of State

Power exercisable by:    Rules by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause re-enacts section 162 of the Powers of Criminal Courts (Sentencing) Act 2000. It provides a definition for a pre-sentence report, and stipulates by whom such a report must be prepared. In the case of an adult offender, this must be an officer of a local probation board and for an offender aged 18 or under an officer of a local probation board, social worker or member of a youth offending team. Subsection (1)(b) provides that a pre-sentence report contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State.

The subject matter and level of detail make this material unsuitable for primary legislation. There is no reason to depart from the existing negative resolution procedure.


Clause 152: Disclosure of pre-sentence report.

Power conferred on:    Secretary of State

Power exercisable by:    Order by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

Clause 152 enables the Secretary of State to prescribe by order those prosecutors to whom the court must always provide a pre-sentence report. This power re-enacts that contained in section 156(4) of the Powers of Criminal Courts (Sentencing) Act 2000, which is similarly subject to negative procedure. SI 1988/191 indicates the likely contents of an instrument made under clause 152.

Clause 153: Contains no delegated powers.

Clause 154(7): By order, amend the minimum age at which a person, convicted of an offence, may be required to provide a sample for testing for the presence of any specified Class A drug, by order of the court where it is considering passing a community sentence.

Power conferred on:    Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

Clause 154(7) re-enacts, with some modifications, the existing provisions in section 36 A of the Powers of Criminal Courts (Sentencing) Act 2000 for the pre-sentence drug testing of persons aged 18 and over. It enables the court to make an order, requiring a convicted offender who is at least 14 years old, to be tested to ascertain whether he has any specified class A drug in his body.

It is proposed to introduce the provisions initially in limited areas so that their effectiveness can be assessed.

Flexibility is needed to change the minimum age for pre-sentence testing, as appropriate, in the event that evidence should emerge either to suggest that the provisions should be extended to convicted persons younger than 14, or that pre-sentence drug testing of young offenders from the age of 14 is an ineffective use of resources. This should be left to delegated legislation given the degree of flexibility required.

The provision is consistent with other provisions in the Bill which extend drug testing to the under 18s and will provide an additional option to the court to enable it to obtain up to date information about a young person's recent drug use. Any decision to amend the minimum age for pre-sentence testing will be based on evidence and made in consultation with relevant bodies. The affirmative resolution procedure would provide an appropriate level of parliamentary scrutiny.

The clause also provides that the court may not make an order to test unless it has been notified by the Secretary of State that the power to make such orders is exercisable by the court.

Clauses 155-159: Contain no delegated powers

Clause 160: does not contain an order or rule making power however it provides for the creation of a Sentencing Guidelines Council (to promulgate guidelines to enable all courts dealing with criminal cases to approach the sentencing of offenders from a common starting point).


2   The White Paper was informed by the extensive reviews of the criminal courts and sentencing policy conducted by Sir Robin Auld (Review of the Criminal Courts in England and Wales) and John Halliday (Making Punishments Work: report of a review of the sentencing framework for England and Wales). Back

3   Please see Hansard Standing Committee B, 9 January 2003, afternoon session, columns 239-240. Back


 
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