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


Clause 279: By order, amend the period of driving disqualification for fine defaulters.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

This clause enables the magistrates' court to disqualify a fine defaulter from holding or obtaining a driving license for a period not exceeding 12 months. Subsection 5 contains an order making power for the Secretary of State to amend the twelve month limit. This is a re-enactment of provisions contained in the Crime (Sentences) Act 1997 dealing with fine defaulters. (No order has been made under them, as the substantive provisions were never commenced.)

It is felt that the ability to alter the 12 month limit would be helpful, as it would enable adjustments to be made in the light of experience following implementation of what would be a new sanction.

Affirmative resolution procedure is appropriate here because any order would amend primary legislation, and would alter the punitive weight of the penalty (whether upwards or downwards).

Clause 280-289: Contain no delegated powers.

Clause 291 introduces Schedule 27: Jury Service.

Power conferred on:    Lord Chancellor

Power exercisable by:    Guidance

Parliamentary Procedure:  Lay before Parliament

Paragraph (12) of Schedule 27 places a statutory duty on the Lord Chancellor to publish and lay before Parliament guidance relating to the exercise by the "appropriate officer" of his functions in relation to discretionary deferral of or excusal from jury service under sections 9 and 9A of the Juries Act 1974 (1974 Act).

Jury summoning is an administrative function of the Lord Chancellor governed by sections 2 to 7 of the 1974 Act. At present the Lord Chancellor discharges his functions through the Jury Central Summoning Bureau (JCSB) and the issue of guidance in the Crown Court manual. This, coupled with internal guidance produced by the JCSB, provides the basis on which the JCSB currently considers discretionary excusal or deferral from jury service, and exercises the functions of the "appropriate officer", under sections 9 and 9A of the Act. The Lord Chancellor has, therefore, already issued the sort of guidance referred to at paragraph (12) of the Schedule. The Schedule, however, makes new provision for the Lord Chancellor's power to issue guidelines to be made mandatory, and to require him to lay the guidance before parliament and arrange for it to be published.

Schedule 27 of the Bill makes provision to replace a number of existing statutory disqualifications from jury service, and entitlements to excusal from jury service as of right, with liability to jury service subject to showing "good reason" for excusal or deferral. This substantially increases the range of circumstances in which the "appropriate officer" (the JCSB in practice) may be called upon to exercise his discretion under sections 9 and 9A of the 1974 Act. The policy of making a significant shift from automatic to discretionary excusal acknowledges that correspondingly greater emphasis will fall on the provision made for guiding the exercise of that discretion. The guidance will apply to more cases and affect a much wider range of people, and there is therefore a heightened public interest in its accessibility. That is why the Bill imposes the new requirement for the guidance to be issued, laid before parliament and published.

The guidance will include provision relating to jury summoning procedure, including notice periods for those summoned, deferral periods and jury allowance. But it will also, importantly, guide the JCSB on the considerations which will be relevant in coming to a view on whether "good reason" for excusal or deferral has been made out in individual cases.

Clause 292(1AB)(2): By order, in relation to Individual Support Orders prescribe exceptions to the requirement for a court to explain the order, consequences of breach and power to review.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Negative Resolution

This clause amends section 1 of the Crime and Disorder Act 1998 to allow a new order (individual support order) aimed at preventing further anti-social behaviour to be available where an anti-social behaviour order has already been granted against a person aged 10-17. The individual support order is a civil order which will impose positive obligations upon its subject to tackle the underlying causes of a child or young person's anti-social behaviour.

Under subsection (1) of section 1AB, the court has an obligation to explain to the defendant in open court the effect of the order, the consequences of breach and the power to review the order on application. Subsection (2) allows for the Secretary of State to prescribe the cases where the explanation to the defendant may be made in writing; and where the explanation may be given in the absence of the defendant.

This is appropriate for delegated legislation so as to retain flexibility to enable a quick response to practical experience in using the new powers.

As decisions would be based on consultation with practitioners, the negative resolution procedure would provide an appropriate level of parliamentary scrutiny.

Paragraph (c) of subsection (3) of section 1AA also ensures that before the court makes an individual support order that individual support conditions are fulfilled, one of these conditions is that the Secretary of State has notified the court that arrangements for implementing the individual support order are available in the area.

Clause 293-294: Contain no delegated powers.

Clause 295 (6) (h): By order this subsection enables the Secretary of State to specify those providers of electronic monitoring services who are required to co-operate with the responsible authority in the establishment of arrangements for assessing etc. risk posed by sexual or violent offenders.

Clause 295 (7): By order, enables the Secretary of State to add to or remove from the list of bodies (subsection (6)) who must co-operate with the responsible authority as defined by subsection (3).

Powers conferred on:    The Secretary of State

Powers exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  (6)(h)- Negative Resolution; (7)-Affirmative Resolution;

Clause 295 places a duty on the 'responsible authority' (the chief officer of police, the local probation board for each area and the Prison Service acting jointly) to establish arrangements for assessing and managing the risks posed by "relevant sexual and violent offenders" and other offenders who may cause serious harm to the public. These arrangements, the multi-agency public protection arrangements (or the MAPPA) in their original form, were established in each of the 42 Areas of England and Wales through the implementation of Sections 67 and 68 of the Criminal Justice and Court Services Act (2000).

Clauses 295 and 296 substantially re-enact the earlier provision but strengthen the MAPPA by placing a 'duty to co-operate' (defined in subsection (3)) on various bodies whose existing statutory responsibilities enable them to contribute to these arrangements to protect the public. Clause 295 (7) empowers the Secretary of State to add to or remove bodies from the list of those upon whom the duty to co-operate is imposed. Although we are confident that the list as formulated includes all those currently deemed as having a contribution to make to the MAPPA, it is conceivable that other bodies may assume a role which recommends their inclusion; or that the existing role of bodies currently on the list may change making their participation no longer necessary. It is appropriate, given the very real operational nature of the MAPPA, for such changes to be made by means of a delegated power. Any such changes would the subject of consultation with practitioners beforehand and subject to the affirmative resolution procedure to ensure an appropriate level of parliamentary scrutiny.

Clause 296 -297: Contains no delegated powers.

Clause 298 introduces Schedule 29: Criminal record certificates: amendments of Part 5 of Police Act 1997 - paragraph (4): Power to specify circumstances in which an enhanced criminal records certificate will be available.

Power conferred on:    The Secretary of State

Power exercisable by:    Regulations made by statutory instrument

Parliamentary Procedure:  Negative resolution

This paragraph amends section 115 of the Police Act 1997. Section 115(2) as amended will permit the Secretary of State to prescribe by regulations the circumstances in which an applicant will be entitled to apply for an enhanced criminal record certificate.

It is expected that the regulations will initially largely replicate the existing provisions of section 115(3) to (5) and (6C) to (6E) but the power would confer the flexibility both to add to or subtract from the list of those eligible for an enhanced criminal record disclosure following a risk assessment and, as necessary, to clarify some of the terms employed (for example, the meaning of 'regularly' in section 115(3)). It is the Department's view that the negative resolution procedure is an appropriate level of parliamentary scrutiny.

Clause 298 introduces Schedule 29: Criminal record certificates: amendments of Part 5 of Police Act 1997 - paragraph (7): Power to make provision about registration.

Power conferred on:    The Secretary of State

Power exercisable by:    Regulations made by statutory instrument

Parliamentary Procedure:  Negative resolution

This paragraph inserts a new section 120ZA into the Police Act 1997. Section 120ZA(1) will permit the Secretary of State to make provision by regulations concerning the registration of registered bodies with the Criminal Records Bureau.

Section 120(3) of the Police Act 1997 currently permits the Secretary of State to make regulations about the maintenance of the register: such regulations are subject to the negative resolution procedure. This new provision expands that power and is expected to be used to make provision for the imposition of conditions to be complied with by a registered body.

Having established on the face of the 1997 Act the principle that registration should be subject to conditions it is appropriate to leave the detail of such conditions, which may change over time, to secondary legislation.

It is the Department's view that the negative resolution procedure is an appropriate level of parliamentary scrutiny.

Clause 298 introduces Schedule 29: Criminal record certificates: amendments of Part 5 of Police Act 1997 - paragraph (9): Power to make provision for a minimum number of applications to be countersigned in any period of twelve months.

Power conferred on:    The Secretary of State

Power exercisable by:    Regulations made by statutory instrument

Parliamentary Procedure:  Negative resolution

This paragraph inserts a new section 120AA into the Police Act 1997. Section 120AA(1) will permit the Secretary of State to make provision by regulations for a minimum number of applications to be countersigned in any period of twelve months. The Secretary of State could refuse to register any person who was unlikely to countersign the minimum number of applications. Should a registered body countersign less than the prescribed minimum number of applications in any twelve month period then it would be open to the Secretary of State to seek to cancel their registration.

The power to prescribe a minimum number of applications may need to be exercised in order that each registered body builds up sufficient experience and expertise in countersigning applications.

Having established on the face of the 1997 Act the power to set a minimum threshold it is appropriate to leave the level of the threshold, which may change over time in the light of experience, to secondary legislation.

Clause 298 introduces Schedule 29: Criminal record certificates: amendments of Part 5 of Police Act 1997 paragraph (9): Power to amend notice period to be given to a registered person of the cancellation or suspension of their registration.

Power conferred on:    The Secretary of State

Power exercisable by:    Regulations made by statutory instrument

Parliamentary Procedure:  Negative resolution

This paragraph inserts a new section 120AB into the Police Act 1997. Section 120AB(9) will permit the Secretary of State to amend by regulations the notice period to be given to a registered person of the cancellation or suspension of their registration. The notice period is six weeks (see new section 120AB(4)(a)). The purpose of the notice period is to allow applicants for disclosures to make alternative provision if a registered person's registration is to be suspended or cancelled. Six weeks is considered adequate but experience may indicate that an alternative period would be preferable.

It is the Department's view that the negative resolution procedure is an appropriate level of Parliamentary scrutiny.

Clause 299: Power to make orders and rules.

This clause makes provision in relation to the Parliamentary procedure and scope of the delegated legislation making powers conferred on the Secretary of State and the Lord Chancellor under the provisions in the Bill.

Clause 300-301: Contain no delegated powers.


Clause 302: By order, enables supplementary, incidental or consequential provision and transitory, transitional or saving provisions to be made.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Negative Resolution; (b) - Affirmative

This clause enables the Secretary of State to make any supplementary, incidental or consequential provision, and any transitory, transitional or saving provision where he considers this to be necessary or expedient. Given the scale of the reforms contained in this Bill as a matter of practicality, it has proved challenging to anticipate the full extent of the consequential amendments needed. This power is necessary as further statutory references in need of amendment may subsequently come to light that have not been provided for.

This clause also provides that where one provision of the Bill is brought into force before another, the power includes power to modify the provision brought into force so as to take account of the fact that the provision is not yet in force. The power also includes a general power to make consequential amendments to other Acts. Given the number of provisions that will need to be piloted and phased-in in the light of experience, particularly so to ensure that the new sentencing framework operates smoothly, a clause of this nature is unavoidable. Without this powers there would be a disproportionate increase in the length of the Bill.

Many of the changes are expected to be technical and consequential in nature, based on consultation with practitioners and of little public interest. The negative resolution procedure offers an appropriate degree of parliamentary scrutiny for all cases save those where primary legislation is amended, when the affirmative procedure will be used.

Clause 303: Does not contain a delegated order or rule making power but provides that an Order in Council under section 85 of the Northern Ireland Act 1998 (or during direct rule, paragraph (1) of the Schedule to the Northern Ireland Act 2000), is to be subject to negative resolution rather than affirmative procedure if it is made for purposes corresponding to Part 9 (prosecution Appeals) and Part 11 (Evidence) of the Bill.

Clause 304: Contains no delegated power.

Clause 305: By order, enables commencement of provisions.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  None

This clause provides that those provisions of the Act which do not come into force on Royal Assent. Subsection (3) of this clause provides for those provisions of the Act which are not mentioned in subsection (1) or (2) to come into force on such days as may be appointed by the Secretary of State by order. To enable certain provisions to be piloted a commencement order may make different provision for different purposes and different areas.

As is normal in the case of commencement orders, no parliamentary procedure is regarded as necessary.

Clause 306-307: Contains no delegated powers.


 
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