CRIMINAL JUSTICE AND COURT SERVICES BILL
- GOVERNMENT RESPONSE
1. This response to the 22nd Report of the Select
Committee on Delegated Powers and Deregulation has been prepared
by the Home Office. It supplements the Department's Memorandum
of 14th June 2000, the Supplementary Memorandum of 27th June 2000
and the evidence given on 28th June 2000.
2. The Committee makes two recommendations for consideration
by the House. The first is that the order-making power in Clause
48(2) (to apply the special enforcement procedures to drug treatment
and testing orders) should be subject to the negative rather than
the affirmative procedure.
3. The Department has given the Committee's recommendation
careful consideration. Although it is true that Parliament's acceptance
of the power implies an acceptance that it can be appropriate
for the special enforcement procedures to apply to the drug treatment
and testing order, the Department continues to believe that the
draft affirmative procedure is appropriate. That is because of
the extent of the new powers conferred by clause 48 of the Bill
and the controversy that this clause has generated at Second reading
in the Lords. In addition, there might be an issue about when
it should be applied to the drug treatment and testing order and
a debate in both Houses would give Parliament the opportunity
to consider that aspect. For these reasons, the Department considers
that the draft affirmative procedure remains the appropriate procedure.
4. The second and main recommendation of the Committee
concerns the power to make changes to the periods of exclusion
orders, drug abstinence orders and exclusion and curfew requirements
of community orders (Clauses 41, 42, 45 and 46). The Committee
recommends deleting these powers from the Bill, or, if the House
accepts the need for the powers, making the procedure draft affirmative.
5. The Department believes that these powers should
be delegated for two main reasons: the need for flexibility and
the existence of precedents. We will deal with each of these in
6. Because these orders are experimental in nature
and are due to be piloted before implementation, the Department
cannot be absolutely sure about the most effective period at the
time of legislating. The proposed periods are based on the best
available evidence to date. If the pilots, commencing next year,
give an early indication that different periods would be more
effective, it would be preferable to test those periods as well
before national roll-out.
7. The maximum length of the exclusion order has
been set at a year, partly on the basis that exclusion is less
intrusive than the curfew order (the maximum period of which has
been set at six months), but it may for example be too short to
act as an effective deterrent to a stalker or a domestic violence
8. If there is no delegated power to amend the periods
then the full potential of these orders and requirements may not
be tested. A suitable vehicle for primary legislation simply may
not be available at the time.
9. There are of course precedents for increasing
the maximum period of a community order by secondary legislation
and these precedents have been identified in the oral evidence
given to the Committee. In addition, the Department notes that
the minimum and maximum periods for drug treatment and testing
orders can be changed by secondary legislation (section 58 of
the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA").
So what the Department is proposing is not unprecedented and this
seems to the Department a relevant consideration in the decision
to use secondary legislation.
10. For this reason, the Department is minded to
retain the powers.
11. It is however accepted that all the relevant
order making powers should be subject to the affirmative resolution
procedure and we would propose amendments to that effect to the
House at Committee stage.
12. In addition, we propose, for consistency's
sake, to amend the PCCA so that changes to the period of the curfew
order are made subject to the affirmative resolution procedure,
rather than the negative procedure as at present. We would propose
this amendment at Committee stage.
13. We hope that this response indicates the serious
consideration we have given and appropriate action taken on the
important issues raised by the Report of the Committee.
6 July 2000