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


Supplementary Memorandum by the Home Office

1.  This supplementary memorandum relates to a amendments to Part 11 of the Criminal Justice Bill which was tabled on 28 October and 29 October which concerns a delegated power. The text of the amendment is attached.

2.  Clauses 265-269 of the Bill provide for a minimum sentence for certain offences involving prohibited firearms. Clause 270 provides for an increase in the maximum sentence for smuggling prohibited firearms. The purpose of the amendment is to allow these measures to be fully applied to any firearm which is prohibited in the future.

3.  Section 1(4) of the Firearms (Amendment) Act 1988 contains a power for the Secretary of State to make an Order to add specially dangerous firearms to the list of prohibited firearms in section 5 of the Firearms Act 1968. Clause 45 of the Anti-social Behaviour Bill will amend this power so that it also applies to specially dangerous air weapons and allows greater flexibility of response. Those changes, which the Delegated Powers and Regulatory Committee considered in its 23rd Report, will allow a future order to include some, but not all, of the amendments necessary to apply the measures in clauses 265-270 of the Criminal Justice Bill to any firearms prohibited in the future. They will enable an order to amend the principle Act but not other enactments. The attached amendment extends section 1(4) of the 1988 Act to ensure that the order-making power is capable of including all the remaining changes necessary.

4.  The amendment allows a future order to amend the Powers of Criminal Courts (Sentencing) Act 2000 to make provision for juveniles to be detained for the minimum sentence in respect of an offence involving a firearm which was being prohibited by that order. The corresponding provision in the current version of the Criminal Justice Bill is at clause 267. The amendment would also allow a future order to amend the Customs and Excise Management Act 1979 so as to apply the 10 year maximum sentence in respect of an offence of smuggling a firearm which was being prohibited by that order. The corresponding provision in the current version of the Bill is at clause 270.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary procedure:  Affirmative Resolution.

This is considered to be the appropriate level of parliamentary scrutiny for a power of this nature and is in line with the existing arrangements.

5.  Amendment 4 New Clause - "Early release of prisoners liable to removal from the United Kingdom" - provides for an early removal from prison scheme for foreign national prisoners liable to removal. The scheme will result in eligible prisoners being removed from the UK up to 135 days earlier than their normal release date, subject to having served at least half the custodial period of their sentence. The formula which establishes the requisite custodial period to be served is set out in subsections 1, 2 and 3.

6.  Subsection 6 gives the Secretary of State the power to amend by order the requisite custodial period to be served before early removal is possible.

Power conferred on:    The Secretary of State

Power exercisable by:    Order made by Statutory Instrument

Parliamentary procedure:  Affirmative Resolution

7.  An order making power is necessary as there may be a future need to change the requisite period for operational purposes. It is important to be able to respond quickly and flexibly under these circumstances. The affirmative procedure will, however, ensure that any proposals are subject to full parliamentary scrutiny, and is considered necessary given that the provision may affect the liberty of an individual.

8.  Amendment 8 - New Schedule "Prisoners liable to removal from United Kingdom: Modifications of Criminal Justice Act 1991" allows the new early removal from prison scheme created in the Bill to be applied to prisoners already serving sentences and subject to the early release arrangements in the Criminal Justice Act 1991. The calculation of the requisite period in custody to be served before removal from prison can be granted is defined in subsection 5 of the Schedule. The maximum period for which early removal may be granted is 135 days.

9.  Subsection 6 confers on the Secretary of State the power to amend the definition of the requisite period by order. The reasons for requiring such powers and the level of parliamentary procedure are as for the delegated powers proposed in amendment 4 above.

Power conferred on:    The Secretary of State

Power Exercisable by:    Order made by Statutory Instrument

Parliamentary Procedure:  Affirmative Resolution

10.  An order making power is necessary as there may be a future need to change the requisite period for operational purposes. It is important to be able to respond quickly and flexibly under these circumstances. The affirmative procedure will, however, ensure that any proposals are subject to full parliamentary scrutiny, and is considered necessary given that the provision may affect the liberty of an individual.

31 October 2003


 
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