28 June 2000
By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
CRIMINAL JUSTICE AND COURT
1. The bill transfers the Probation Service into
the National Probation Service (NPS) for England and Wales and
creates the Children and Family Court Advisory and Support Service
(CAFCASS) to look after the interests of children in family court
proceedings. The bill also introduces new powers to test suspects
for drugs; extends electronic monitoring; establishes a scheme
for identifying and banning unsuitable people from working with
children; provides for DVLA driver records to be copied to the
Police National Computer; enables courts to set tariffs in cases
of detention during Her Majesty's pleasure; and makes a number
of other changes to the criminal justice system.
2. The Home Office has supplied a Memorandum which
it helpfully clarified in a supplementary memorandum and oral
evidence to the Committee. All the oral and written evidence is
printed in the Annex to this report. The powers in the bill are
as follows: clauses 1(3), 4(6), 5(5) and (6), 8(1), 9(2), 10(2),
12(3), 19(1), 20(1) and (4), 23(2) and (4), 24 (definitions of
"prescribed" and "regulations"), 25(2), 34(13),
35(1), 41 (in new sections 40A(6) and 40C(1) and (2)), 42 (in
new sections 58A(4) and (8) and 58B(4)), 44(1) (in new subsection
(2E) of section 42), 45 (in new paragraph 7(4), (8) and (9)),
46 (in new paragraph 8(4), (7) and (8)), 47 (in new section 36B(5)
and (6)), 48(2), 50, 52(2) (in new section 63B(6)) and (5), 57(4),
58(2) (new subsection (5D)), 59(4), 61(1) (definition of "specified")
and (2), 62(2), 68 and 71(1) (commencement) and Schedules 1 (the
power to make regulations under paragraphs 2(4) and (5), 3(4),
4, 6, 7 and 10), 2 (the power to make regulations under paragraphs
2(1), 4, 5(2) and 15) and 6 (paragraph 81 - the extension of an
existing power to make regulations). The Committee has confined
its comments to discussing those powers which are not subject
to Parliamentary control and those which raise points for the
House to consider.
3. Clauses 18 to 23 are concerned with the transfer
of property and staff to the two new services from existing authorities.
Clause 19(1) provides that the appropriate Minister (the
Home Secretary for the NPS for England and Wales and the Lord
Chancellor for CAFCASS - clause 24) "may by order make a
scheme" for the transfer of assets and liabilities. The bill
does not provide that the order is to be a statutory instrument
or provide for Parliamentary control. Clauses 20(1) and 23(2)
make similar provision for a scheme to transfer staff but a staff
transfer order may not be made without the consultation required
by clause 20(4) and the regulations to be made under it (which
are subject to negative procedure) or by clause 23(4) and the
regulations under it (also subject to negative procedure). The
Committee accept that it is appropriate that there should be no
Parliamentary control over orders transferring staff and property
from one public authority to another.
4. Clause 41, by inserting new sections in
the Powers of Criminal Courts (Sentencing) Act 2000 (a consolidation),
creates a new form of sentence, an "exclusion order"
prohibiting the offender from entering a place specified in the
order for a specified period not exceeding a year. Subsection
(6) of new section 40A provides for an order to make a person
responsible for monitoring the offender's whereabouts and also
provides that that person "shall be of a description specified
in an order made by the Secretary of State". Schedule 6 includes
many amendments to the 2000 Act and paragraph 175 amends the section
which contains supplementary provisions about orders and rules.
Since section 40A(6) is not added to the lists of powers subject
to negative or affirmative control, an order under it would be
a statutory instrument but not subject to Parliamentary control.
The Committee noted that the bill treats other similar powers
differently and we discuss these next.
5. Clause 42 creates "drug abstinence
orders" and new section 58A(4) provides for supervision by
a person of a description specified in an order made by the Secretary
of State. An amendment made by paragraph 175 of Schedule 6 applies
6. Clause 45 allows the imposition of "curfew
requirements" and monitoring is covered in new paragraph
7(4) added to Schedule 2 to the 2000 Act. Paragraph 175 does not
apply Parliamentary control.
7. Clause 47, by inserting section 36B in
the 2000 Act, provides for the electronic monitoring of requirements
in community orders. Subsection (5) provides for an order to specify
descriptions of persons who may do the monitoring. As with clauses
41 and 45, there is no provision for Parliamentary control.
8. There are thus four powers in the bill which are
concerned with specifying the persons who may monitor or supervise
the performance of a sentence imposed by a court. Three of these
powers are not subject to Parliamentary control while the fourth
is subject to affirmative procedure. The supplementary memorandum
provided by the Home Office argued that the supervision of drug
abstinence orders might require exceptional qualities, and that
this justified the use of the affirmative procedure for the power
in section 58A(4) while the other powers were much closer to administrative
orders. The Committee is satisfied that the correct level of parliamentary
control is provided in each instance.
9. There are affirmative powers in clauses 10(2),
25(2), 34(2), 42 (new section 58A(4) and new section 58B(4)),
48(2), 52(2) (new section 63B(6)), 52(5), 61(2), and 68(2). Except
for clauses 10(2), 48(2) and 52(2) and the new section 58A(4)
discussed earlier, these are all Henry VIII powers.
With the exception of section 58B(4) which we discuss below, the
Committee sees these Henry VIII powers as appropriately delegated
and subject to appropriate Parliamentary control.
10. Clause 10(2) is a "default power"
enabling different arrangements for the provision of probation
services to be made if a local board fails in its duties. The
Committee sees affirmative procedure as appropriate because Parliament
will wish to debate alleged failures of the local board.
11. Schedule 3 to the 2000 Act deals with the breach,
revocation and amendment of various orders which a court may impose
when sentencing an offender. These are listed in paragraph 1(1)
which at present lists:-
(a) a curfew order
(b) a probation order
(c) a community service order
(d) a combination order
(e) a drug treatment and testing order.
Schedule 6 to the bill adds "(aa) an exclusion
order" and "(f) a drug abstinence order" (see paragraph
178(2)). Clause 48 (2) selects for special enforcement procedures
all but "(e) a drug treatment and testing order" and
provides that an order may apply the special procedure to "any
other order mentioned in" paragraph 1(1). An order is subject
to affirmative procedure. All that an order under this power
can do is to apply the special enforcement procedures to drug
treatment and testing orders. If Parliament accepts the case for
conferring this power, it will necessarily accept that it can
be appropriate for those procedures to apply to drug treatment
and testing orders. This suggests that negative procedure would
12. Clause 52 is about the testing for drugs
of persons in police detention. Subsection (6) of the new section
63B provides that a sample may be taken only by "a person
prescribed by regulations" subject to affirmative procedure.
The Committee sees the considerations applying to powers given
for the regulation of the police as different from those which
apply to a power to regulate the enforcement of court orders and
sees no reason to question the choice of affirmative procedure
here when it has suggested that negative procedure should apply
to the powers discussed in paragraphs 4-8 above.
13. The remaining powers are subject to negative
procedure. The Committee wishes to draw the attention of the House
to the important powers in clauses 41, 42, 45 and 46.
14. We have mentioned earlier the new power to make
exclusion orders created by clause 41. That clause inserts
three sections in the 2000 Act and the last of these creates two
new powers. New section 40C(1) provides for rules for regulating
the monitoring of the whereabouts of persons subject to exclusion
orders and the Committee sees no need to comment on that.
15. Section 40C(2) raises different issues for it
is a Henry VIII provision which confers power by order to direct
that section 40A(1) "shall have effect with the substitution,
for the period there specified of such period as may be specified
in the order" or "that subsection (5) ... shall have
effect with such additional restrictions as may be so specified".
These restrictions are restrictions on the discretion of the
court when sentencing an offender and the addition of a restriction
cannot prejudice an offender. However, substituting a different
period could allow exclusion orders to remain in force for more
than the year provided in the bill as it stands. The Committee
sees no difficulty with the power to add restrictions but considers
that it is inappropriate for Parliament to delegate the power
to increase the severity of a sentencing power.
16. We discussed our concerns in oral evidence
with the Home Office. In doing so we bore in mind the following
points. In the bill itself Parliament is being asked to consider
the maximum length of sentence, and it is right and proper for
Parliament to consider such sentencing issues. We asked if there
were a precedent for a power to increase the length of a sentence
by secondary legislation. The Home Office identified two precedents
(sections 45 and 50 of the Powers of Criminal Courts (Sentencing)
but they readily admitted that these were not an exact parallel
(Q 9). In so far as precedents do exist they date from before
the establishment of this Committee, and so this issue has not
come before us before.
The Home Office emphasised that the sentence under consideration
was a significant one: "an exclusion order is capable of
having a majorly intrusive effect on an offender's life"
(Q 19). Moreover, the sentence was not only novel - "a brand
new community order" (Q 18) - but in the nature of an experiment,
which might take at least two years to evaluate (QQ 29-30).
17. Having listened carefully to the Home Office,
we consider that, in principle, the length of a sentence should
not be extended by secondary legislation, and that this order-making
power should be deleted from the bill. If, contrary to our view,
the House thinks otherwise, then clearly the power should be made
subject to affirmative procedure as are sections 45 and 50 of
the Act of 2000 to which we have referred.
18. Similar considerations apply to section 58B(4)
inserted in the 2000 Act by clause 42. That power is made
subject to affirmative procedure by paragraph 175(c) of Schedule
6 but unfortunately by a mistake it is also made subject to negative
procedure by paragraph 175(b). Section 58B(4) allows the amendment
of the maximum and minimum periods specified in section 58A for
the length of a drug abstinence order. Again the Committee question
whether it is appropriate to delegate a power to increase the
severity of a sentencing power. The Home Office's Supplementary
Memorandum explained that the affirmative procedure was considered
necessary because "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."
In oral evidence the Home Office also referred to the fact that
the power raised questions in relation to Article 8 of the European
Convention on Human Rights: "it is incredibly important that
any order of this kind, which subjects a person to a liability
to be tested, essentially at the discretion of the responsible
officer - that is a crucial difference with, for example, curfew
and exclusion orders - is an intrusion into a person's private
life. It is very important that the intrusion be a necessary and
proportionate measure in relation to dealing with crime"
(Q 11). The Committee considers that this area of sentencing policy
is so sensitive, and so experimental, that the order-making power
should be deleted from the bill. If, contrary to our recommendation,
the power is to remain, the bill should be amended to make it
clear that only affirmative procedure applies.
19. Clause 45 allows the addition of curfew
requirements to community sentences. Paragraph 7(2) inserted in
Schedule 2 to the 2000 Act places two limits on this power - the
curfew requirement cannot last longer than six months and cannot
impose a curfew of less than two hours or more than 12 hours in
any day. Paragraph 7(9)(a) allows different periods to be substituted
by order in paragraph 7(2). As this could extend the length of
the order or the daily curfew, it allows an increase in the severity
of the sentence and the Committee again question whether this
is an appropriate delegation. As with sections 40C(2) and 54B(4),
the Committee suggests that if the power is to remain in the bill,
affirmative procedure should apply.
20. Clause 46 allows exclusion requirements
to be added to community rehabilitation orders. Paragraph 8(1),
added by the clause to Schedule 2 to the 2000 Act limits the life
of an exclusion requirement to one year. Paragraph 8(8)(a) allows
this period to be altered. The Committee question whether it
is appropriate to delegate a power which could increase the severity
of a sentencing power. If the House disagrees with this recommendation,
and the power is to remain in the bill, then the affirmative procedure
is clearly necessary.
21. The Committee has drawn attention to the powers
in clauses 41, 42, 45 and 46, each of which allows for the amendment
of the bill to increase the severity of a sentencing power. The
Committee recommends that these powers should be omitted. If those
powers are to remain, which would be contrary to our recommendation,
the Committee suggests that they should be subject to affirmative
22. The Committee considers that no other amendment
is necessary either to the delegated powers in the bill or to
the parliamentary control provided for these powers.
1 The Henry VIII powers which the Committee comments
on in this report are negative except for 58A(4). Back
There is a third in section 50. Back
The Powers of Criminal Courts (Sentencing) Act 2000, to which
the Home Office officials referred in their oral evidence (QQ
4, 13-15, 24, 31) is a Consolidation Act, and therefore the Committee
did not consider it during its parliamentary passage. Back
Paragraph 29 of the Supplementary Memorandum. Back
This report is also published on the Internet at the House of
Lords Select Committee Home Page (http://www.parliament.uk), where
further information about the work of the Committee is also available. Back