HOUSE OF LORDS
Delegated Powers & Regulatory Reform Committee
4th Report of Session 2007-08
Channel Tunnel Rail Link (Supplementary Provisions) Bill Criminal Justice and Immigration Bill Crossrail Bill European Communities (Finance) Bill House of Lords (Amendment) Bill [HL] Sale of Student Loans Bill
Government amendments: Child Maintenance and Other Payments Bill Children and Young Persons Bill [HL] Local Transport Bill [HL] Regulatory Enforcement and Sanctions Bill [HL]
Government responses: Child Maintenance and Other Payments Bill Children and Young Persons Bill [HL] Human Fertilisation and Embryology Bill [HL] Regulatory Enforcement and Sanctions Bill [HL]
Ordered to be printed 30 January and published 31 January 2008
Published by the Authority of the House of Lords
London : The Stationery Office Limited £price
HL Paper 49
The Delegated Powers and Regulatory Reform Committee The House of Lords appoints the Committee each session with the terms of reference “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 and draft orders laid before Parliament under sections 14 and 18 of the Legislative and Regulatory Reform Act 2006; and to perform, in respect of such draft orders, and in respect of subordinate provisions orders made or proposed to be made under the Regulatory Reform Act 2001, the functions performed in respect of other instruments and draft instruments by the Joint Committee on Statutory Instruments”.
Membership The members of the Delegated Powers and Regulatory Reform Committee are: The Lord Armstrong of Ilminster GCB CVO Rt Hon. the Lord Boyd of Duncansby PC QC The Lord Brett The Viscount Eccles CBE The Lord Faulkner of Worcester The Baroness Fritchie DBE The Baroness Gardner of Parkes The Lord Goodhart QC (Chairman) The Lord Razzall CBE The Lord Shaw of Northstead DL
Registered interests Members’ registered interests may be examined in the online Register of Lords’ Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be inspected in the House of Lords Record Office and is available for purchase from the Stationery Office.
Publications The Committee’s reports are published by the Stationery Office by Order of the House in hard copy and on the internet at www.parliament.uk/parliamentary_committees/dprr.cfm.
General information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at www.parliament.uk/about_lords/about_lords.cfm.
Contacts for the Delegated Powers and Regulatory Reform Committee Any query about the Committee or its work should be directed to the Clerk of the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020-7219 3103 and the fax number is 020-7219 2571. The Committee’s email address is [email protected].
History In February 1992, the Select Committee on the Committee work of the House, under the chairmanship of Earl Jellicoe, noted that “in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion” (Session 1991–92, HL Paper 35–I, paragraph 133). The Committee recommended setting up a delegated powers scrutiny committee which would, it suggested, “be well suited to the revising function of the House”. As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed experimentally in the following session. It was established as a sessional committee from the beginning of Session 1994–95. After the enactment of the Deregulation and Contracting Out Act 1994, the Committee was given the additional role of scrutinising deregulation proposals under that Act and the Committee became the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 expanded the order-making power to include regulatory reform and the Committee, renamed the Delegated Powers and Regulatory Reform Committee, took on the scrutiny of regulatory reform proposals under that Act. The Committee now scrutinises legislative reform orders under the successor to the 2001 Act, the Legislative and Regulatory Reform Act 2006.
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3
CONTENTS
Page Bills Channel Tunnel Rail Link (Supplementary Provisions) Bill 5 Criminal Justice and Immigration Bill 5 Crossrail Bill 9 European Communities (Finance) Bill 11 House of Lords (Amendment) Bill [HL] 11 Sale of Student Loans Bill 11
Government amendments Child Maintenance and Other Payments Bill 11 Children and Young Persons Bill [HL] 12 Local Transport Bill [HL] 12 Regulatory Enforcement and Sanctions Bill [HL] 12
Government responses Child Maintenance and Other Payments Bill 12 Children and Young Persons Bill [HL] 13 Human Fertilisation and Embryology Bill [HL] 13 Regulatory Enforcement and Sanctions Bill [HL] 13
Appendices 1: Criminal Justice and Immigration Bill – memorandum 14 2: Crossrail Bill – memorandum 69 3: Sale of Student Loans Bill – memorandum 85 4: Child Maintenance and Other Payments Bill – amendments 87 5: Children and Young Persons Bill [HL] – amendments 93 6: Local Transport Bill [HL] – amendments 94 7: Regulatory Enforcement and Sanctions Bill [HL] – amendments 101 8: Child Maintenance and Other Payments Bill — response 102 9: Children and Young Persons Bill [HL] — response 105 10: Human Fertilisation and Embryology Bill [HL] — response 107 11: Regulatory Enforcement and Sanctions Bill [HL] — response 108
Fourth Report
CHANNEL TUNNEL RAIL LINK (SUPPLEMENTARY PROVISIONS) BILL 1. This bill does not delegate legislative power.
CRIMINAL JUSTICE AND IMMIGRATION BILL 2. This substantial bill of 14 parts, the contents of which are summarised in paragraphs 4 to 74 of the Explanatory Notes, contains a large number of delegated powers. The Ministry of Justice has provided a memorandum, printed at Appendix 1, explaining the reasons for most of the delegations and the choice of procedure in each case.
Henry VIII Powers 3. There are Henry VIII powers in clauses 4(3), 15(6), 16(6), 29(2), 111(7), 141(4), 186(6), 190 and 197(4), paragraphs 27 and 35(3) of Schedule 1, paragraphs 10 and 25 of Schedule 2, paragraph 17(2) of Schedule 3, paragraph 6 of Schedule 5, paragraph 2(4) of Schedule 7, paragraph 3 of Schedule 18, paragraph 6 of Schedule 19, paragraph 7(3) of Schedule 29 and paragraph 11 of Schedule 35. Of those, the powers in the following provisions are made subject only to the negative procedure: • Clause 190 (Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994) • Paragraph 10 of Schedule 2 (which enables the amendment by order of the amounts of fines specified in four provisions of that Schedule, but only in so far as is necessary to reflect changes in the value of money) • Paragraph 17(2) of Schedule 3 (which enables the amendment by order of that Schedule, which applies in relation to Northern Ireland, in consequence of particular kinds of future changes to the law of Northern Ireland) • Paragraph 7(3) of Schedule 29 (which enables the amendment by order of the amount of a financial penalty specified in that paragraph, a power which could only be exercised so as to reflect a change in the amount set out under international arrangements relating to the enforcement abroad of such penalties) Apart from the power conferred by clause 190, which we consider below, we are satisfied that the negative procedure is not inappropriate in each of the above cases.
Release of prisoners after recall — clause 29(2) 4. Clause 29(2) inserts new sections 255A to 255D into the Criminal Justice Act 2003 to introduce new arrangements for the release of prisoners who 6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
have been recalled to prison under section 254 following their earlier release. New section 255A provides for a prisoner to be considered for “automatic release” at the end of the period of 28 days beginning with the date of his return to prison. Where the prisoner is not automatically released, new section 255C requires the referral of his case to the Parole Board where he has made representations under section 254(2) within that same period of 28 days. New sections 255A(9) and 255C(7) confer power on the Secretary of State to, in effect, substitute by affirmative order a different number of days for either of those periods. 5. These powers could be exercised in a way which could postpone prisoners’ right to automatic release, or postpone the referral of their cases to the Parole Board. In paragraph 38 of its memorandum, the Department explains that the affirmative procedure is appropriate because the exercise of either power would involve the amendment of primary legislation. The Department has not however explained why these powers are thought to be necessary, nor in what circumstances the power would be used. We draw this to the attention of the House, so that the House might seek a justification for this delegation.
Her Majesty’s Commissioner for Offender Management and Prisons and the Northern Ireland Commissioner for Prison Complaints — Parts 4 and 5 6. Clauses 50 to 97 (Parts 4 and 5) make provision for Her Majesty’s Commissioner for Offender Management and Prisons and for the Northern Ireland Commissioner for Prison Complaints. The Minister has announced that he intends to oppose the question in Committee that these clauses stand part of the bill1. Accordingly, we have not considered the delegations proposed in these two Parts.
Alternatives to prosecution for persons under 18 — Schedule 18, paragraph 3 7. Schedule 18, introduced by clause 98, inserts new sections 66A to 66H into the Crime and Disorder Act 1998, introducing provision for “youth conditional cautions” for offenders aged 16 or 17. Much of this provision is modelled on that for conditional cautions for adults in sections 23 to 27 of the Criminal Justice Act 2003. New section 66G requires the Secretary of State to prepare a draft code of practice in relation to youth conditional cautions. After consultation and (if appropriate) amendment, the code is laid before Parliament, and may be brought into force by negative order. The equivalent code in relation to adults under section 25 of the 2003 Act requires an affirmative order to bring it into force. In paragraph 77 of its memorandum, the Department supports its proposal for the negative procedure by explaining that the code for youth cautions will ‘closely follow’ that for adults and that, as the latter code has now been in place for some time, the affirmative procedure is no longer appropriate. 8. We do not regard it as self-evident that a code of practice concerned with the treatment of young persons as respects conditional cautions ought necessarily to reflect closely the equivalent code for adult offenders. The House might
1 Lord Hunt of Kings Heath, HL Deb 22 January 2008 col 129. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 7
well wish to satisfy itself that the substance of the code, if only in its initial form, is appropriate before it is brought into force by order under new section 66G(5): we made a similar recommendation in our Report on the bill which became the Criminal Justice Act 20032. We recommend that an order bringing the first code into force should require the affirmative procedure but that the negative procedure would afford an adequate level of scrutiny in respect of subsequent revisions.
Police misconduct and performance procedures — Schedule 32, paragraphs 7, 8, 15 and 16 9. Schedule 32, introduced by clause 177, amends provisions in the Police Act 1996 (“the Police Act”) and the Ministry of Defence Police Act 1987 about disciplinary proceedings and appeals concerning the conduct of officers of the civilian and MoD police forces. At present, both Acts provide that police officers up to the rank of chief superintendent cannot be dismissed, required to resign or reduced in rank without having been offered legal representation in disciplinary proceedings, and that such officers have a right of appeal to the police appeals tribunal from any decision that they be dismissed, required to resign or reduced in rank. The Police Act also provides that a civilian appellant is entitled to representation by a barrister or solicitor at a hearing before the police appeals tribunal. 10. As a result of the amendments to be made by Schedule 32, entitlement to legal representation in both civilian and MoD cases would become a matter for negative subordinate legislation3. Although the new section 84(1) of the Police Act (paragraph 7) imposes a duty to make regulations providing for an officer ‘to be represented in proceedings’, the circumstances in which legal representation is to be available are left to a power under new section 84(2). Exactly the same regime is to apply in MoD cases under new section 4(1) and (2) of the Ministry of Defence Police Act (paragraph 15). Moreover, the circumstances in which there is to be a right to appeal to the police appeals tribunal is to be left to negative rules under new section 85(1) of the PA (paragraph 8), and to negative regulations under new section 4A(1) of the Ministry of Defence Police Act (paragraph 16). Finally, the circumstances in which a civilian appellant before the police appeals tribunal will be entitled to legal representation are to be left to negative rules under new section 85(4) of the Ministry of Defence Police Act. 11. It is not unusual for rights first set out in primary legislation to be replaced by delegated provision in a future statute but we have carefully considered these particular provisions. We draw to the attention of the House that provision about entitlement to legal representation and about rights of appeal will in future appear in subordinate rather than primary legislation. In view of this, we consider that the first exercise of each of these four powers should attract the affirmative procedure.
2 21st Report (2002-03) HL Paper 122, paragraph 9. 3 The department’s memorandum indicates that no procedure will apply to rules made under paragraph 8(3) (new section 85(4)), but the bill in fact provides for each of these rule-making powers to be subject to the negative procedure: see paragraph 8(4) which substitutes a new section 85(5) of the Police Act 1996. 8 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Schedule 33, paragraph 17 12. Schedule 33, introduced by clause 178, amends the Police Reform Act 2002, inserting new provisions into Schedule 3 about the investigation of complaints of police misconduct. Paragraph 17 enables the Secretary of State, by regulations subject to the negative procedure, to define the terms “gross misconduct” and “misconduct”, which are used several times in the new provisions. The power to define in subordinate legislation words used in an Act is close to a Henry VIII power and we consider that, in the absence of clear justification to the contrary, it should require the affirmative procedure.
Foreign criminals: support — clause 186(6) and (7) 13. Clause 182 defines “foreign criminal” and Part 12 of the bill makes provision about a person who is designated as such by the Secretary of State. The Part covers immigration status; accommodation; maintenance and other support; and the conditions which may be imposed as respects residence, employment and monitoring of the person or a member of his family. 14. Clause 185(3) deals with the availability of support for a designated person (accommodation, essential living needs etc.) under section 95 of the Immigration and Asylum Act 1999 and subsection (4) provides that, save in exceptional circumstances, such support is not to be provided wholly or mainly by way of cash. 15. Clause 186(6) confers power on the Secretary of State by affirmative order to repeal, modify or disapply clause 185(4). In paragraph 193 of its memorandum, the Department explains that the power is necessary to ensure that the support scheme can be operated more flexibly “should the circumstances require it”, and that “if the temporary difficulties … continue” subsection (4) may need to be repealed. The memorandum does not however describe either the nature of the “circumstances” or “difficulties” which the Department envisages might justify the modification, disapplication or repeal of clause 185(4). We draw this to the attention of the House so that the House might seek a justification for a Henry VIII power of this kind.
Industrial action by prison officers — clauses 189 and 190 16. Clause 189 amends section 127 of the Crime and Disorder Act 1994 to re- instate an obligation (removed by a Regulatory Reform Order (‘RRO’) (S.I.2005/908)) to refrain from inducing a prison officer to take or continue to take “industrial action”, for which clause 189(3) inserts a new definition. Clause 190 inserts a new section 127A which enables the Secretary of State by negative order to suspend, and later revive, the operation of section 127. The power is to be exercisable in relation to different descriptions of prison officer, the categories of which are described in section 127(4), which is to be amended by clause 189(4). 17. In paragraph 202 of its memorandum, the Department envisages that section 127 would be suspended in relation to prison officers in respect of whom the Secretary of State is satisfied “that there exists equivalent protection from industrial action, whether by legally enforceable voluntary agreement or otherwise”. The Department goes on to say however that clause 190 implements a suggestion made by this Committee in session 2004-05 when it DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 9
considered4 a proposal that the RRO should amend section 127 so that it did not apply to prison officers (but continued to apply to custody officers and prisoner custody officers) in Great Britain, on the ground that equivalent provision had been secured through voluntary agreements. 18. In reporting on the RRO, our predecessor Committee expressed concern that the proposed amendment could remove necessary protection if a voluntary agreement were to lapse before Parliament had an opportunity to restore the prohibition in section 127. It suggested that one alternative might be to modify the proposal so that the operation of section 127 would be suspended as respects a union for so long as it had a current agreement with the Secretary of State not to engage in activity which that section would otherwise prohibit. The Report did not however suggest that the suspension should be effected by subordinate legislation (indeed, this could not have been included in an order under the Regulatory Reform Act 2001). 19. We welcome the department’s intention that an order which revives section 127 should attract the affirmative procedure but paragraph 202 of the memorandum does not explain why it is not possible for the suspension mechanism to be included in the 1994 Act itself. The House may wish to seek such an explanation from the Minister before agreeing to delegate to subordinate legislation the power to suspend and revive a provision of an Act.
CROSSRAIL BILL 20. This bill makes provision for the “Crossrail” railway from Maidenhead / Heathrow to Shenfield / Abbey Wood. A memorandum from the Department for Transport about the delegated powers in the bill is printed at Appendix 2. The bill is hybrid and the powers which it confers are restricted in their effect to certain localities, i.e. those affected by the Crossrail railway system. We have borne this in mind in our consideration of the level of parliamentary scrutiny required for subordinate legislation under the bill.
Permitted development: time limit — clause 11(2) 21. Clause 10 deems planning permission to be granted to certain Crossrail works, including new stations within the central section of the route to be constructed. Clause 11 makes this deemed planning permission conditional upon development being begun within ten years of Royal Assent. Clause 11(2), which is based on a similar provision in section 10(2) of the Channel Tunnel Rail Link Act 1996 allows the Secretary of State by order subject to negative resolution to extend the period of deemed planning permission. We consider this provision appropriate if limited in its application to specific development (as suggested by paragraph 17 of the memorandum).
Crossrail access contracts — clause 30 22. Clause 30(1) and (2) enable the Secretary of State, by order which must be laid before Parliament but which is not subject to a parliamentary procedure,
4 2nd Report (2004-05) paragraph 10. 10 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
to disapply for access contracts relating to the principal Crossrail tunnel the normal requirements for ORR approval. Paragraphs 40 and 41 of the memorandum have persuaded us of the need for a delegation and that its exercise need not be subject to a parliamentary procedure.
References to Secretary of State — clause 48(6) 23. Clause 48(6) confers a Henry VIII power subject only to the negative procedure, which we do not consider inappropriate.
Power to devolve functions to the Secretary of State — clause 60(1) 24. Clause 60(1) confers what is in effect a Henry VIII power to modify references in the Act to the Secretary of State to references to the Greater London Authority, Transport for London, or both and to make consequential provision which may include modifying the Act. The bill currently provides for no parliamentary procedure and the memorandum (paragraph 60) provides inadequate justification for this omission. The devolution of responsibility for the Crossrail project by modifying the Act may well give rise to issues over which Parliament should have a measure of control and we consider that this power should be subject to the negative procedure.
Arbitration — clauses 63(5) and 20(4) 25. Clause 63 makes provision for the arbitration of disputes under the Act. Subsection (5) enables the Secretary of State for Communities and Local Government and the Secretary of State for Transport acting jointly to make rules by statutory instrument subject to no parliamentary procedure about the arbitration. If (as seems likely) it is possible that one or other of the Secretaries of State might be a party to an arbitration arising from this Act, then we consider, despite the precedent in section 43 of the 1996 Act, that these rules should be subject to a parliamentary procedure (the negative procedure would suffice). Similar considerations might apply to the power at clause 20(4).
Urban Development Corporations — Schedule 7, paragraph 36 26. Paragraph 36 of Schedule 7 confers a narrow Henry VIII power subject only to negative procedure. Both due to the restricted nature of the power and for the reason given in paragraph 89 of the memorandum, this is not inappropriate.
Transfer schemes: tax provisions — Schedule 13, paragraph 45 27. Paragraph 45 of Schedule 13 enables the Treasury by regulations subject to negative procedure substantially to re-write the provisions of Schedule 13, which relate to tax provisions for transfer schemes. As the power concerns taxation only, the parliamentary procedure is in the House of Commons only.
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 11
EUROPEAN COMMUNITIES (FINANCE) BILL 28. This money bill does not delegate legislative power.
HOUSE OF LORDS (AMENDMENT) BILL [HL] 29. This private member’s bill does not delegate legislative power.
SALE OF STUDENT LOANS BILL 30. This bill enables rights to repayment of student loans to be sold. Clauses 4 and 5 amend the Secretary of State’s existing powers to make regulations about financial support for students. The exercise of the relevant powers is subject to either affirmative or negative procedure, at the option of the Secretary of State. Clause 8(3) to (5) amends the existing power of Welsh Ministers (which are less extensive than those of the Secretary of State). A memorandum from the Department for Innovation, Universities and Skills explains the amendment to existing powers, printed at Appendix 3. There is nothing in the delegations which we wish to draw to the attention of the House.
CHILD MAINTENANCE AND OTHER PAYMENTS BILL — GOVERNMENT AMENDMENTS 31. We reported on this bill in our 3rd Report (HL Paper 26). The Government have now invited us to consider several amendments to be moved in Grand Committee, now incorporated in the marshalled list (HL Bill 12—I). The Department for Work and Pensions has provided a supplementary memorandum on the amendments, printed at Appendix 4. 32. A number of the amendments change the status of the Child Maintenance and Enforcement Commission to that of a Crown body, but a Henry VIII power (amendment 68) provides for the Secretary of State, by order subject to affirmative resolution, to provide that the Commission ceases to be a Crown body. We do not regard this as inappropriate. 33. Another series of amendments (including amendment 157) makes further changes to the enforcement mechanisms in the Child Support Act 1991. The new provisions contain a number of regulation-making powers, all of them subject to affirmative resolution. The delegations are not inappropriate but we note that several of the powers concerned could, taken alone, appropriately have been made subject to the negative procedure. We do not however make and recommendation about this because it seems likely that a single set of regulations will cover all of the matters provided for in the new provisions and that this will be more convenient to the House than separate sets subject to different procedures. 12 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
34. There is nothing further in the amendments which we wish to draw to the attention of the House.
CHILDREN AND YOUNG PERSONS BILL [HL] — GOVERNMENT AMENDMENT 35. We reported on this bill in our 2nd Report (HL Paper 21). The Government have now invited us to consider an amendment to be moved in Grand Committee, printed on sheet HL Bill 8—I. The Department for Children, Schools and Families has provided a supplementary memorandum on the amendment, printed at Appendix 5. There is nothing in the amendment which we wish to draw to the attention of the House.
LOCAL TRANSPORT BILL [HL] — GOVERNMENT AMENDMENTS 36. We reported on this bill in our First Report (HL Paper 11) and published the Government’s response in our 2nd Report (HL Paper 21). The Government have now invited us to consider amendments for Report and on Third Reading, printed on sheets HL Bill 15(a) and HL Bill 19—I. The Department for Transport has provided two supplementary memoranda on the amendments, printed at Appendix 6. There is nothing in the amendments which we wish to draw to the attention of the House.
REGULATORY ENFORCEMENT AND SANCTIONS BILL [HL] — GOVERNMENT AMENDMENTS 37. We reported on this bill in our 2nd Report (HL Paper 21). The Government have now invited us to consider amendments to be moved in Grand Committee, printed on sheet HL Bill 7(e). The Department for Business, Enterprise and Regulatory Reform has provided a supplementary memorandum on the amendments, printed at Appendix 7. There is nothing in the amendments which we wish to draw to the attention of the House.
CHILD MAINTENANCE AND OTHER PAYMENTS BILL — GOVERNMENT RESPONSE 38. We reported on this bill in our 3rd Report (HL Paper 26) and the Government have now responded by way of a letter to the Chairman from Lord Mackenzie of Luton, Parliamentary Under-Secretary of State at the Department for Work and Pensions, printed at Appendix 8.
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 13
CHILDREN AND YOUNG PERSONS BILL [HL] — GOVERNMENT RESPONSE 39. We reported on this bill in our 2nd Report (HL Paper 21) and the Government have now responded by way of a letter to the Chairman from Lord Adonis, Parliamentary Under-Secretary of State at the Department for Children, Schools and Families, printed at Appendix 9.
HUMAN FERTILISATION AND EMBRYOLOGY BILL [HL] — GOVERNMENT RESPONSE 40. We reported on this bill in our First Report (HL Paper 11) and the Government have now responded by way of a letter to the Chairman from Professor the Lord Darzi of Denham, Parliamentary Under-Secretary of State at the Department of Health, printed at Appendix 10.
REGULATORY ENFORCEMENT AND SANCTIONS BILL [HL] — GOVERNMENT RESPONSE 41. We reported on this bill in our 2nd Report (HL Paper 21) and the Government have now responded by way of a letter to the Chairman from Lord Jones of Birmingham, Minister of State at the Department for Business, Enterprise and Regulatory Reform, printed at Appendix 11. 42. In our report, we questioned the provision at clause 53(3)(b), to authorise the use of information in evidence which could not otherwise lawfully so be used. The Government have justified the delegation at paragraph 23 of their response, which justification we accept. We consider however, that the power at clause 53(3)(b) should be limited to replicating provision which already exists for prosecuting the parallel criminal offence. 14 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
APPENDIX 1: CRIMINAL JUSTICE AND IMMIGRATION BILL
Memorandum by the Ministry of Justice
Introduction 1. This Memorandum describes the purpose and content of the Criminal Justice and Immigration Bill; identifies the provisions of the Bill which confer powers to make delegated legislation; and explains in each case why the power has been taken and the nature of, and reason for, the procedure selected. 2. The Bill is in 14 Parts: • Part 1 makes provision for youth rehabilitation orders, a new generic community sentence for children and young people. • Part 2 makes changes to the sentencing framework for both adult and young offenders, including restrictions on the on the use of suspended sentences for summary only offences and providing for non-dangerous offenders who breach the terms of their licence to be recalled to prison for a fixed 28 day period. • Part 3 deals with criminal appeals, including by amending the test for quashing convictions applied by the Court of Appeal. • Part 4 establishes the office of Her Majesty’s Commissioner for Offender Management and Prisons which will take on the functions of the Prison and Probation Ombudsman. • Part 5 establishes the office of the Northern Ireland Commissioner for Prison Complaints which will take over the functions of the Prisoner Ombudsman for Northern Ireland. • Part 6 includes other criminal justice provisions; amongst other things, it makes provision for youth conditional cautions, introduces a presumption in favour of trials proceeding in the absence of the accused and amends the compensation scheme for miscarriages of justice to achieve a better balance between the compensation paid to those wrongly convicted and that paid to victims of crime. • Part 7 makes changes to the criminal law, including by introducing a new offence of possession of extreme pornographic material. • Part 8 is concerned with international co-operation in relation to criminal justice matters; in particular, it includes measures providing for the mutual recognition of financial penalties within the European Union. • Part 9 makes provision for Violent Offender Orders, a new civil order to manage dangerous violent offenders beyond the period of their sentence. • Part 10 relates to anti-social behaviour; in particular, it confers powers on the police and local authorities to seek a closure order against premises where significant and persistent disorder has occurred and creates a new offence of causing nuisance or disturbance on hospital premises. • Part 11 relates to policing and includes a revised framework for taking disciplinary proceedings in respect of police misconduct and DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 15
unsatisfactory performance; this part also extends the remit of Her Majesty’s Inspectorate of Constabulary in relation to the inspection of police authorities. • Part 12 introduces a new special immigration status for foreign nationals involved in terrorism or other serious crimes whose removal is currently prevented by the UK’s international obligations. • Part 13 contains miscellaneous provisions, including placing a duty on MAPPA (multi-agency public protection arrangements) authorities to consider disclosure of information about child sex offenders. • Part 14 sets out supplementary provisions about orders and regulations, commencement, extent, repeals and so forth. 3. Clause 196 sets out the level of parliamentary scrutiny in respect of the order and regulation-making powers created by the Bill.
Part 1: Youth Rehabilitation Orders
Schedule 1, paragraph 26(5): Power to specify the description of a person responsible for monitoring an electronic monitoring requirement.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: None 4. Paragraph 26 of Schedule 1 provides that the court can order the electronic monitoring of the compliance of an offender with any of the other requirements set out in a relevant order. Subparagraph (5) requires the Secretary of State to specify by order those persons who may be responsible for such monitoring. This is best left to delegated legislation as amendments to the specification of the description of electronic monitoring providers will be required from time to time and the level of detail would make it inappropriate for primary legislation. This provision mirrors similar provisions in section 215(3) of the Criminal Justice Act 2003 (see Criminal Justice (Sentencing) (Programme and Electronic Monitoring Requirements) Order 2005 (SI 2005/963) for current order). It is not anticipated that the contents of any order made under this clause would be significantly different, save for possible changes in electronic monitoring providers. 5. Electronic monitoring has been available since 1999 (e.g. as part of Home Detention Curfew, curfew orders etc.) following a series of pilot projects which operated in selected areas during the previous ten years. As the description of providers of this service is unlikely to be of public interest no further parliamentary scrutiny is considered to be necessary. 16 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Schedule 1, paragraph 27(1) and (2): Power to amend certain limits of specified requirements.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 6. Paragraph 27 of Schedule 1 gives the Secretary of State power to amend the maximum number of hours which may be imposed under the unpaid work or curfew requirement, and to alter certain time limits (minimum and maximum durations) attached to specified requirements (namely, the curfew, exclusion, local authority residence and fostering requirements). 7. This is best left to delegated legislation as amendments may be required from time to time in the light of experience, and developments in technology. The Secretary of State currently has this power in respect of adult community orders (see section 223 of the Criminal Justice Act 2003). 8. Given the likely public interest, and the fact that any order would amend primary legislation, the affirmative resolution procedure is considered to be the appropriate level of parliamentary scrutiny.
Schedule 1, paragraph 35(1): Power to allow or require a court to review the progress of an offender under a youth rehabilitation order, to attach or remove a review provision, and regulate the timings and content of reviews.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 9. Paragraph 35 of Schedule 1 enables the Secretary of State to make an order allowing or requiring a court to review the progress of an offender under a youth rehabilitation order. The Secretary of State can also allow a court to attach or remove a review provision from a youth rehabilitation order, and regulate the timing and content of reviews. Such an order may in particular contain provisions similar to those (contained in sections 191 and 192 of the Criminal Justice Act 2003) applying to reviews of suspended sentence orders. 10. Subparagraph (3) allows the Secretary of State to make consequential amendments to, or repeals of, any provision in Part 1 of the Bill or in Chapter 1 of Part 12 of the Criminal Justice Act 2003 (General Provisions about Sentencing). 11. The content of any such order would be based on consultation with the courts. The affirmative resolution procedure is considered appropriate given the power to alter primary legislation; moreover, it is recognised that a change to court powers of this type should be debated in both Houses. Section 178 of the Criminal Justice Act 2003 contains a similar power in relation to adult community orders. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 17
Schedule 2, paragraph 10(1): Power to amend the amount of fines that may be imposed for breach of a youth rehabilitation order.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 12. Paragraph 10 of Schedule 2 gives the Secretary of State power to amend the maximum fines that may be imposed by a magistrates’ or Crown court on an offender for breach of a youth rehabilitation order. Under paragraphs 6(2)(a) and 8(2)(a) the current maxima are £250 in the case of an offender under 14, and £1,000 in any other case. By virtue of paragraph 10(2) the power may only be exercised to the extent it is necessary to up rate the maxima in line with inflation. Given this significant limitation, it is considered that the negative resolution procedure is appropriate.
Schedule 2, paragraph 25: Power to amend maximum period of fostering requirement.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 13. Paragraph 25 of Schedule 2 gives the Secretary of State power to amend the maximum period of a fostering requirement attached to a youth rehabilitation order. Such an order may substitute the 18 month period specified in the Bill or any other period specified under a previous order made under this paragraph. 14. This is best left to delegated legislation as amendments may be required from time to time in the light of experience. 15. Given the likely public interest, and the fact that any order would amend primary legislation, the affirmative resolution procedure is considered to be the appropriate level of parliamentary scrutiny.
Schedule 3, paragraphs 1(4) and 2(4): Power to designate body other than Probation Board for Northern Ireland responsible for making suitable arrangements for an offender’s supervision.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative 16. Paragraph 1 of Schedule 3 makes provision for the making of a youth rehabilitation order where the offender is to reside in Northern Ireland. Paragraph 2 makes provision for the amendment of a youth rehabilitation order where the offender is residing or proposing to reside in Northern Ireland. A court may only make or amend a youth rehabilitation order in such circumstances where they are satisfied that, amongst other things, that suitable arrangements can be made for the 18 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
offender’s supervision by the Probation Board for Northern Ireland. Subparagraph (4) of paragraphs 1 and 2 enables the Secretary of State to designate by order a body other than the Probation Board for Northern Ireland to undertake the supervision of offenders subject to a youth rehabilitation order in Northern Ireland. 17. The need for an order could, for example, arise as a result of greater involvement by the voluntary sector in delivery of probation services in Northern Ireland. Any changes would be subject to consultation with practitioners. The Government considers that the negative resolution procedure would provide an appropriate level of parliamentary scrutiny.
Schedule 3, paragraph 17(2): Power to amend provisions of Schedule 3 in consequence of changes to the law in Northern Ireland.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative 18. Schedule 3 provided for the transfer of youth rehabilitation orders to Northern Ireland. The provisions are based on the requirements that may be attached to such an order by a court in England and Wales. In the event that new requirements are introduced in Northern Ireland it should be open to a court in England and Wales to impose any such requirements on an offender who is to reside in Northern Ireland. Paragraph 17(2) enables the Secretary of State, by order, to make amendments to Schedule 3 that are consequential upon changes to the law in Northern Ireland introducing further descriptions of community orders that may be imposed on an offender under 18. 19. Although this is a power to amend primary legislation, it is considered that the negative resolution procedure is appropriate in this case as the power to amend Schedule 3 is restricted to making amendments consequential upon amendments made elsewhere to the law in Northern Ireland.
Clause 4(3): Power to amend meaning of “the responsible officer” or a ‘qualifying officer’ in relation to an offender subject to a youth rehabilitation order.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 20. Clause 4 defines who the responsible officer is in relation to an offender to whom a youth rehabilitation order relates. Under subsection (1)(a), if a youth rehabilitation order imposes a curfew requirement or exclusion requirement but no other requirement, and if that curfew or exclusion order is electronically monitored, the responsible officer is the person responsible for the electronic monitoring. Under subsection (1)(b), if a youth rehabilitation order imposes only an attendance centre requirement, the responsible officer is the officer in charge of the attendance centre. In all other cases, the responsible officer is the qualifying officer, who is either a member of a youth offending team or an officer of the local probation board. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 19
21. Subsection (3) allows the Secretary of State to amend by order the definition of a responsible officer and qualifying officer, and to amend any other provisions in Part 1 of the Bill or in Chapter 1 of Part 12 of the Criminal Justice Act 2003 (General Provisions about Sentencing) which would need amending due to a change in the definition of the responsible officer or qualifying officer. The need for an order could, for example, arise as a result of greater involvement by the voluntary sector in delivery of services as a result of the provisions of the Offender Management Bill. 22. Any changes would be subject to consultation with practitioners. The affirmative resolution procedure is appropriate because an order under this clause would amend primary legislation. Section 197(3) of the Criminal Justice Act 2003 contains a similar power in relation to adult community orders.
Clause 5(4) and paragraph 29(4) of Schedule 1: Power to further restrict responsible officers in giving instructions to an offender pursuant to a youth rehabilitation order and the courts in imposing requirements on an offender to be made subject to such an order.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 23. Clause 5(3) requires a responsible officer, when giving instructions to an offender pursuant to a youth rehabilitation order to ensure, as far as is practicable, that any such instruction does not conflict with the offender’s religious beliefs or any other youth rehabilitation order which the offender is subject to, or interfere with the offender’s education or employment. Paragraph 29(3) of Schedule 1 similarly places an obligation on the courts, when imposing a youth rehabilitation order, to avoid imposing any requirements which would give rise to such conflicts or interference. Clause 5(4) and paragraph 29(4) of Schedule 1 gives the Secretary of State an order-making power to add further restrictions upon responsible officers and the courts respectively beyond the avoidance of conflict with the offender’s religious beliefs, education or employment and interference with the requirements of other youth rehabilitation orders. 24. In the light of the experience of operating the new sentencing framework a need for further provisions may become desirable. For example, it may become necessary to introduce additional restrictions on the making of orders for offenders with particular domestic responsibilities should it become clear that the way in which courts were using the new sentences was interfering unreasonably with the offenders’ lives. 25. As the powers would always be exercised in favour of the offender and would be based on consultation with practitioners the negative resolution procedure would provide an appropriate level of parliamentary scrutiny. Section 217(3) of the Criminal Justice Act 2003 contains a similar power in relation to adult community orders. 20 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 8: Power to modify or adapt provisions in Part 1 in its application to the Isles of Scilly
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 26. Clause 8 gives the Secretary of State the power to specify how Part 1 of the Bill should apply to the Isles of Scilly subject to any specified exceptions, adaptations and modifications. This power is needed because the Council of the Isles of Scilly is neither a county council nor a district council, so it is necessary to allow the provisions on youth rehabilitation orders that relate to county councils or district councils to be applied to the Council of the Isles of Scilly, with or without modifications. 27. The Government considers that given the technical nature of the exceptions, adaptations and modifications the negative resolution procedure provides the appropriate level of scrutiny.
Part 2: Sentencing
Clause 15(6) – new section 227(6) of the Criminal Justice Act 2003: Power to modify the period specified in section 227(2B)
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
Clause 16(6) – new section 228(7) of the Criminal Justice Act 2003: Power to modify the period specified in section 228(2A)
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 28. New section 227(2B) of the Criminal Justice Act 2003 makes it a condition of imposing an extended sentence of imprisonment for public protection that the sentencing court considers that the appropriate custodial term would be at least 4 years. 29. New section 227(6) will enable the Secretary of State to amend the period specified in section 227(2B) by order. The 4 year period is designed to result in a 2 year tariff after release provisions are applied. If the release provisions in Chapter 6 of Part 12 of the Criminal Justice Act 2003 were to be changed, for example to amend the requisite custodial period in section 244(3)(a) of that Act, using the delegated power in section 267 of the 2003 Act, the 4 years would need to be changed accordingly. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 21
30. The affirmative resolution procedure is appropriate as any amendment to the period of 4 years referred to in section 227(2B) would alter the sentencing powers of courts to impose an extended sentence for public protection on an adult offender. In effect, it would alter the lower threshold at which a court can impose a sentence for public protection on an adult offender. 31. Clause 16 makes a parallel change to section 228 of the Criminal Justice Act 2003 which makes similar provision in respect of offenders under 18.
Clause 21(4) – new section 240A(4) of the Criminal Justice Act 2003: Power to allow a court not to give a credit for periods of remand on bail in certain cases
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
Schedule 7, paragraph 2(4): Power to allow a court not to give a credit for periods of remand on bail in certain cases
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 32. New section 240A(2) of the Criminal Justice Act 2003, inserted by clause 21, provides for time spent on bail subject to a qualifying curfew condition and an electronic monitoring condition to be credited against a subsequent custodial sentence. New section 240A(4) and (6) enables the court to disregard the provisions within new section 240A where the Secretary of State has made rules excepting cases where the offender is sentenced to serve consecutive terms of imprisonment, to terms which are wholly or partly concurrent or in relation to periods during which the person is also subject to electronic monitoring required by an order by made a court or the Secretary of State. 33. This is best left to delegated legislation to ensure consistency with other provisions of the Criminal Justice Act 2003 and to allow the Secretary of State flexibility in prescribing particular circumstances in which the credit provisions of section 240A may be misapplied. New section 240A(6)(a) and (b) mirror the rule-making powers in section 240(4)(a), which contains very similar provisions in relation to crediting periods of remand in custody. New section 240A(6)(c) allows the Secretary of State to makes rules to disapply the credit provisions in section 240A in circumstances where the defendant is also subject to electronic monitoring requirements other than those imposed as a condition of his bail, for example as part of a non-custodial sentence. The level of detail likely to be required and the need, in light of any changes in sentencing policy, to amend the list of circumstances in which the credit provisions in section 240A are disapplied, makes this an appropriate subject for delegated legislation. 34. Any rules that were made under this section would be based on consultation with practitioners as it is likely to be of public interest. The affirmative resolution procedure is regarded as an appropriate level of parliamentary scrutiny; this is in line 22 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
with the similar rule making power in section 240(4)(a) of the Criminal Justice Act 2003. 35. Schedule 7 provides for transitional provisions in relation to certain repealed provisions which continue to have effect in certain circumstances. Paragraph 2(4) of that Schedule contains an identical rule making power to that in new section 240A.
Clause 29 – new sections 255A(9) and 255C(7) of the Criminal Justice Act 2003: Power to vary 28 day fixed term recall period
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 36. Clause 29 amends the Criminal Justice Act 2003 by introducing new recall and post-recall procedures relating to different categories of offender. The relevant amendments to the 2003 Act insert new sections 255A to 255D. 37. Broadly speaking, new section 255A provides that an offender who is recalled to prison from supervision on licence in the community will automatically be released at the expiry of a period of 28 days following return to prison. Before that period expires the offender may be released by the Secretary of State or may have the issue of recall and re-release considered by the Parole Board if he makes representations against recall. By contrast, section 255C provides that a recalled offender should have his case referred automatically to the Parole Board by the Secretary of State after the expiry of a similar 28 day period. Once again, he may be released before that time by the Secretary of State or by making an early application for the case to be reviewed by the Parole Board. The question as to which procedure applies in any given case is answered by reference to the criteria set out in the new sections themselves. 38. The power in new sections 255A and 255C enable the Secretary of State to substitute by order a reference to another period of time in pace of the current reference to 28 days. The affirmative resolution procedure (which applies by virtue of the amendment made to section 330 of the Criminal Justice Act 2003 by clause 29(4)) offers the appropriate level of scrutiny for the exercise of such a power in light of the fact that such an exercise would lead to an amendment of primary legislation.
Schedule 5, paragraph 6: Power to alter maximum duration of an unpaid work requirement, attendance centre requirement or curfew requirement that may be imposed on youth fine defaulters.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 39. A ‘youth default order’ enables an unpaid work, attendance centre or curfew requirement to be imposed upon a youth fine defaulter, in lieu of taking action against the parents. Paragraphs 2, 3 and 4 of Schedule 5 set out the number of hours of work, attendance at an attendance centre or curfew that correspond to the DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 23
level of the fine respectively. Paragraph 6 provides the Secretary of State with an order making power to amend the number of hours or days of unpaid work, attendance at an attendance centre or curfew in paragraphs 2, 3 and 4 or the amount of money default of which attracts the penalty. 40. This power is necessary given the need to respond quickly and flexibly, and the level of detail likely to be required. For example in time with inflation the number of hours and days equating to a particular fine amount may need to be revised downwards, and equally the levels of fine referred to may become outdated. 41. Given that default orders may be likely to be of public interest, and that the order would amend primary legislation, the affirmative resolution procedure is considered an appropriate level of parliamentary scrutiny. A similar delegated power is contained in paragraph 5 of Schedule 31 to the Criminal Justice Act 2003.
Clause 41(2) – new paragraph 9C(2) of Schedule 5 to the Courts Act 2003: Power to prescribe benefits from which deductions may be made
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 42. Clause 41 inserts new paragraphs 9A, 9B and 9C into Part 3 of Schedule 5 to the Courts Act 2003. 43. Paragraph 9A empowers a designated officer in a magistrates’ court to ask for information about a person’s benefit status from the Secretary of State, in order to assist a court in deciding whether to make an application for benefits deductions. 44. Paragraph 9B places restrictions on what can be done with the information, including an offence of using or disclosing the information in an unauthorised manner or otherwise than in accordance with the intended purposes. 45. Paragraph 9C contains a power to allow the Lord Chancellor to prescribe in regulations which particular benefits the court may ask for information about. 46. It is intended that the Lord Chancellor will prescribe those social security benefits from which deductions under section 24 of the Criminal Justice Act 1991 (fines recovery) can be made. In addition, a court will be permitted access to information about other types of benefit to assist the court in making its decision whether to make an application for benefit deductions under Part 3 of Schedule 5 to the Courts Act 2003. 47. The Bill provides that the Lord Chancellor’s regulation making power in new paragraph 9C is subject to the negative resolution procedure. The Government considers this to be the appropriate level of parliamentary scrutiny as the powers are not controversial and so a high level of parliamentary scrutiny is not considered to be necessary. 48. The fundamental power to ask for the offender’s benefit status is clearly established in the clause and as such will be subject to scrutiny during the passage of the Bill. The regulation-making powers simply specify which benefits will be disclosed. 24 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Part 3: Appeals 49. There are no delegated powers in Part 3.
Parts 4 and 5: Her Majesty’s Commissioner for Offender Management and Prisons and The Northern Ireland Commissioner for Prison Complaints 50. The provisions in Part 4 of the Bill are similar to the provisions contained in the Management of Offenders and Sentencing Bill introduced in the House of Lords on 12 January 2005. That Bill fell when the 2005 general election was called. The Delegated Powers and Regulatory Reform Committee reported on the Bill in their 7th Report of Session 2004-05 (HL paper 39).
Clause 51(4): Exclusion of matters from the scope of the Commissioner’s complaint handling remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
Clause 75(4): Exclusion of matters from the scope of the Northern Ireland Commissioner’s complaint handling remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 51. Clause 51 and the related Schedule 10 make provision for the handling of eligible complaints by the Commissioner. Clause 51(4) provides the Secretary of State with an order making power to specify matters which are excluded matters for the purposes of the Commissioner’s complaints remit. This is best left to delegated legislation as such changes may be required from time to time. For example, to avoid potential duplication of provision, it may be necessary to prevent the Commissioner from dealing with a complaint so far as it relates to certain matters falling within the jurisdiction of another independent body. The flexibility of delegated legislation is required to allow such exceptions to be made promptly where required. Given the likely public interest in safeguarding the complaints remit of the Commissioner against any unjustified narrowing of the matters that the Commissioner is able to address as part of that remit, the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny. 52. Clause 75(4) makes similar provision in respect of the complaints remit of the Northern Ireland Commissioner for Prison Complaints. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 25
Clause 51(7): Description of matters which are to be regarded as related to the provision of health care.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 53. Clause 51(3)(c) provides that matters related to the provision of health care are excluded from the complaints remit of the Commissioner. Clause 51(7) provides the Secretary of State with an order making power to provide that matters of a particular description are, or are not, to be regarded for the purposes of clause 51(3)(c) as related to the provision of health care. 54. Health care matters more properly fall within the remit of the Health Service Commissioner, or, in certain cases, the Parliamentary Commissioner for Administration. These matters are not necessarily easily distinguishable and may require negotiation between the new Commissioner and the Health Service Commissioner or other ombudsmen. The order-making power will therefore provide for the ability to clarify which matters fall within the new Commissioner’s remit and those which do not. 55. Such clarification of what constitutes health care for these purposes is best dealt with by delegated legislation to provide flexibility, as the description of such matters may need to be further clarified over time, and so as to ensure that any changes can be made promptly if necessary. Because any order intended to more clearly define health care matters will be directed at improving the effectiveness of the Commissioner and other ombudsmen in carrying out their respective functions, and ensuring matters are dealt with appropriately, it is likely to be uncontroversial and the negative procedure is considered to provide an appropriate level of Parliamentary scrutiny.
Clause 63(8): Amending the definition of “listed person” for the purposes of enabling the Commissioner to co-operate with other ombudsmen.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution 56. Clause 63 enables the Commissioner to co-operate with other specified ombudsmen (each is referred to in the clause and defined as a “listed person”) in circumstances where it appears either to the Commissioner or the appropriate ombudsman that the matter with which either is dealing could be dealt with by the other. 57. Clause 63(8) provides the Secretary of State with an order making power to add to, omit or change the definition of a “listed person”. Over the course of time it may be necessary or desirable that other ombudsmen or complaint handling bodies be added to the definition of “listed person” so as to bring them within the ambit of this clause. Consequently, the making of such an amendment to the definition (e.g. by adding a body to the definition) may require consequential amendment of the primary legislation, subordinate legislation or an Act of the Scottish Parliament. Subsection (9) permits the subsection (8) power to be used to make any such 26 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
amendments. Such an amendment to the definition is best dealt with by delegated legislation so as to ensure that any amendment (for which there may be a pressing need) can be achieved promptly. Delegated legislation also preserves maximum flexibility in respect of this element of the Commissioner’s powers. Such flexibility is appropriate in respect of amendments required to reflect what may be a fast- changing consultative context. Because any amendments to the definition of “listed person” will be likely to be uncontroversial and will be directed at improving the efficacy and effectiveness of the Commissioner and listed persons in carrying out their respective functions, the negative procedure which has been provided is sufficient to ensure an appropriate level of Parliamentary scrutiny.
Clause 71(1): Modification of the term “controlling authorities”.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative resolution
Clause 95(1): Modification of the term “controlling authorities” – Northern Ireland.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative resolution 58. Schedule 13 contains a list of persons who are “controlling authorities” for the purposes of Part 4. The Commissioner is required to report on the outcome of an investigation of a death to the controlling authority considered most directly involved with the matters covered by the investigation, and may make recommendations to any controlling authority about matters arising from a complaint or a death. A controlling authority must respond to the Commissioner within 28 days of receiving a recommendation arising from a complaint. 59. Clause 71(1) provides (in the definition of a controlling authority) the Secretary of State with an order making power to add a description of any other person to the list of ‘controlling authorities’. Such changes may be required from time to time in order to add, for example, other persons who in future might have similar responsibilities to those listed in the clause as drafted. This might arise from organisational changes. It is felt that delegated legislation would be most appropriate to allow these changes to be made promptly as and when they arise. It is not thought that a power only to make additions to the list of ‘controlling authorities’ would be contentious. Adding to the list does not in any way limit or reduce the Commissioner’s remit and the effect of any amendment will enable the Commissioner to work closely with a wider range of interested bodies to ensure that they are undertaking proper procedures or can take appropriate action in relation to matters under consideration or investigation. Therefore the negative resolution procedure is considered to provide an appropriate degree of Parliamentary Scrutiny. 60. Clause 95(1) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 27
Clause 71(2): Modification of the term “excepted premises”
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative resolution 61. Clause 71(1) provides definitions of certain terms used in Part 4. Clause 71(2) provides the Secretary of State with an order making power to except certain premises from the definition of “immigration detention premises” for the purposes of the Commissioner’s remits. The Government considers that power to be necessary because at present directions made under paragraph 18 of Schedule 2 to the Immigration Act 1971 (c.77) specify a number of places at which people may be detained for immigration purposes other than immigration removal centres and port facilities – for example, police stations, hospitals and “places of safety” (which may include private dwellings). The Government does not consider that it would be appropriate for the Commissioner to investigate complaints about treatment of deaths occurring in such places, where other investigation mechanisms will more effectively come into play. Similarly, it is not considered that it would be appropriate for the Commissioner to investigate events occurring in prisons in Scotland and Northern Ireland (where persons may likewise be detained for immigration purposes). The Government therefore proposes to except such premises. Because such premises are set out in directions rather than primary legislation, and may be subject to change, we consider that they should be set out on a similar basis for the purposes of the Commissioner’s remits, rather than on the face of the Bill. Given the likely public interest in safeguarding the broad overall remit of the Commissioner the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny.
Clause 72(1): Modification of matters specified by the Secretary of State from the scope of the Commissioner’s complaint handling remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(1): Modification of matters specified by the Secretary of State from the scope of the Northern Ireland Commissioner’s complaint handling remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution 62. Schedule 10 sets out the matters included in the Commissioner’s complaint handling remit. Clause 72(1) provides the Secretary of State with an order making power to modify the scope of Schedule 10 and, therefore, the Commissioner’s complaint handling remit. This is best left to delegated legislation as such changes may be required from time to time. For example, such changes could arise if it is 28 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
thought appropriate for the Commissioner to investigate complaints about other matters not currently included in Schedule 10. The power allows for a matter to be added to the Schedule, and for the amendment or repeal of a matter for the time being specified in the Schedule. However, by virtue of clause 72(2) the power to amend or repeal is not permitted to exclude those matters that fall within a description contained in Schedule 10 when the Act is passed. The flexibility of delegated legislation is required to allow such changes to be made promptly where required. The alternative to the power, and to the powers conferred by clause 72(3) and (5), would be a single wide power with very few details set out in the Bill of the matters currently covered in the clauses and related Schedules setting out the scope of the Commissioner’s functions. Given the likely public interest in safeguarding the complaints remit of the Commissioner against any unjustified interference that may impinge on his independence, or narrowing of that remit, the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny. 63. Clause 96(1) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints.
Clause 72(3): Modification of matters specified by the Secretary of State from the scope of the Commissioner’s death investigation remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(3): Modification of matters specified by the Secretary of State from the scope of the Northern Ireland Commissioner’s death investigation remit.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution 64. Schedule 11 sets out certain descriptions of deaths included in the Commissioner’s death investigation remit. Clause 72(3) provides the Secretary of State with an order making power to make modifications to Schedule 11 and, therefore, to the scope of the Commissioner’s death investigation remit. This is best left to delegated legislation as such changes may be required from time to time. Such changes could arise if there are changes to the categories of custodial death that it is thought appropriate for the Commissioner to investigate. The power allows new categories to be added, and existing ones to be modified or removed. However, by virtue of clause 72(4) the power to amend or repeal a category of death is not permitted to exclude any death that falls within a description contained in Schedule 11 when the Act is passed. The flexibility of delegated legislation is required to allow such changes to be made promptly where required. Given the likely public interest in safeguarding the deaths remit of the Commissioner against any unjustified interference that may impinge on his independence or the breadth of that remit, and in avoiding the creation of any unjustified exclusions from his ability to conduct independent investigations into custodial deaths, the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 29
65. Clause 96(3) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints.
Clause 72(5): Modification of matters specified by the Secretary of State from the scope of the Commissioner’s function to investigate certain other matters at the request of the Secretary of State.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 96(5): Modification of matters specified by the Secretary of State from the scope of the Northern Ireland Commissioner’s function to investigate certain other matters at the request of the Secretary of State.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution 66. The Secretary of State may request the Commissioner to investigate any matter mentioned in clause 58(3) which is specified in the request. Clause 72(5) provides the Secretary of State with an order making power to modify clause 58(3) so as to add a description of events, or amend or repeal any description of events specified in that clause. This is best left to delegated legislation as such changes may be required from time to time. For example, such changes may be required to reflect changes to the names of the persons or premises mentioned in clause 58(3). The flexibility of delegated legislation is required to allow such changes to be made promptly where required. Given the likely public interest in safeguarding the functions of the Commissioner against any unjustified interference that may impinge on his independence or which may reduce or alter the scope of those functions, the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny. 67. Clause 96(5) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints. 30 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 72(6): Modification to prohibitions on disclosure, or giving evidence, of protected information.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution
Clause 96(6): Modification to prohibitions on disclosure, or giving evidence, of protected information – Northern Ireland.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution 68. Clause 65(3) provides that “protected information” (as defined in clause 65(1)) shall not be disclosed by the Commissioner unless one of the exemptions set out within it applies. Clause 65(9) and (10) provide that a person named in clause 65(11) shall not be called on to give evidence of certain types of protected information unless they are called on to give evidence in relation to proceedings mentioned in clause 65(3). Clause 72(6) enables clause 65 to be modified to provide for the addition, amendment or repeal of exceptions in subsection (3) of that clause or further exceptions to be added to subsection (8) of the clause. However, by virtue of clause 72(7), the power to amend or repeal exceptions to subsection (3)(a), (b) or (c) may not be exercised to remove an exception in that subsection when the Act is passed. This is best left to delegated legislation as such changes may be required from time to time in response to specific factual circumstances that the Commissioner has had to deal with in which disclosure or the giving of evidence was clearly desirable but was not countenanced by clause 65(3) or (8). The flexibility of delegated legislation is required to allow such changes to be made promptly where required. Given that the order-making power can only be used to extend rather than limit the Commissioner’s powers to disclose protected information (as they exist at the point at which the Bill is enacted), the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny. 69. Clause 96(6) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 31
Clause 73(1): Conferring of new functions on the Commissioner by the Secretary of State.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution
Clause 97(1): Conferring of new functions on the Northern Ireland Commissioner by the Secretary of State.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution 70. Clause 73(1) provides the Secretary of State with an order making power to confer additional functions on the Commissioner, confer functions on the Secretary of State in relation to any such additional functions conferred on the Commissioner and provides for the application in relation to any such additional function of any provisions of Part 4, with or without modifications. Clause 196(2)(c), with clause 73(3), enables any necessary consequential provisions that may be required to be made, including modifications to any Act or subordinate legislation. This is best left to delegated legislation as such additions may be required from time to time. Such changes could arise if there are changes to the types of matters or events that it is thought appropriate for the Commissioner to investigate. The flexibility of delegated legislation is required to allow such changes to be made promptly where required. Given the wide range of possible new functions that could be conferred on the Commissioner under this power, and the likely public interest in ensuring that the extensive powers of the Commissioner to obtain information for the purposes of his functions (which would include any new functions) are used proportionately, the affirmative resolution procedure is provided to ensure an appropriate level of Parliamentary scrutiny. 71. Clause 97(1) makes similar provision in respect of the Northern Ireland Commissioner for Prison Complaints.
Part 6: Other Criminal Justice Provisions
Schedule 18, Paragraph 3 – new section 66A(6) of the Crime and Disorder Act 1998: Power to amend the maximum period of an attendance condition attached to a youth conditional caution
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: Affirmative resolution 72. Schedule 18, paragraph 3 inserts new sections 66A to 66H into the Crime and Disorder Act 1998 which make provision for youth conditional cautions. Subsection (4)(b) of new section 66A provides that a youth conditional caution may include a 32 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
condition that the offender attend at a specified place at specified times. New section 66A(5) provides the maximum period for which an offender may be required to attend is 20 hours, not including attendance for rehabilitative purposes. New section 66A(6) provides that the Secretary of State may amend this period by order. The purpose of this order-making power is to ensure that the youth conditional cautioning scheme will in practice be sufficiently flexible to ensure that it can deliver its objectives in light of experience of its operation. Having the ability to amend the maximum period of attendance by order may be necessary if experience of using conditional cautions in this way shows that longer periods of attendance are necessary to properly deal with certain types of offending. Alternatively experience may show that practical considerations, such as heath and safety, mean that an appropriate activity may take longer than 20 hours to complete. Finally, attendance at a particular time or place may be required as part of a condition of a requirement attached to a youth rehabilitation order under other provisions of the Bill. The limits relating to those requirements could change and if they did it may be appropriate to alter the limits for conditional cautions accordingly. As this is akin to a power to amend a maximum sentence the affirmative procedure is considered appropriate. The order-making power mirrors that in section 22(3C) of the Criminal Justice Act 2003 (as inserted by section 17 of the Police and Justice Act 2006) which relates to adult conditional cautions.
Schedule 18, Paragraph 3 – new section 66C(1) and (2) of the Crime and Disorder Act 1998: Power to prescribe the offences in respect of which a financial penalty may be attached to a youth conditional caution and the maximum amount of such penalties subject to the statutory limits.
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: Negative resolution 73. New section 66A(4) of the Crime and Disorder Act 1998 provides that a youth conditional caution may include a condition that the offender pays a financial penalty. New section 66C(1) provides that a financial penalty condition may not be attached to a youth conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, by order. New section 66C(2) requires that an order made under section 66C(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence. The prescription of offences will require a level of detail that would not be appropriate for the face of the legislation. Furthermore, having the ability to prescribe in an order the offences in respect of which a financial penalty may be imposed will enable the list of offences to be revised in the light of experience of operating the youth conditional cautioning scheme and to take account of the creation of new criminal offences which may be suitable for inclusion in the scheme. The ability to prescribe the maximum amount of the financial penalty applicable to each of the prescribed offences is circumscribed by the upper limit of £100 imposed by section 66C(3). Given the nature of the power and the limitations imposed on its exercise, the negative resolution procedure is considered appropriate. The order-making power mirrors that in section 23A(1) of the Criminal Justice Act 2003 (as inserted by section 17 of the Police and Justice Act 2006) which relates to adult conditional cautions. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 33
Schedule 18, Paragraph 3 – new section 66C(4) of the Crime and Disorder Act 1998: Power to amend by order the maximum financial penalty that may be prescribed under section 66C(3).
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: Affirmative resolution save where the maximum monetary limit is increased in line with changes in the value of money, in which case the negative resolution procedure applies 74. New section 66A(4) of the Crime and Disorder Act 1998 provides that a youth conditional caution may include a condition that the offender pays a financial penalty. New section 66C(2) provides that the maximum amount of such a financial penalty in respect of specified offences must be prescribed in an order made under new section 66C(1). New section 66C(3) stipules that the maximum financial penalty prescribed for an offence must not exceed £100. New section 66C(4) allows the £100 maximum to be amended by order. The purpose of this order-making power is to ensure that the youth conditional cautioning scheme will in practice be sufficiently flexible to ensure that it can deliver its objectives in light of experience of its operation. Experience of the use of financial penalties attached to youth conditional cautions may make it appropriate for this limit to be altered in order that the scheme can work as effectively as possible in dealing with low level offending. Here it must be remembered that acceptance of a youth conditional caution is entirely voluntary and is a matter on which the offender can take legal advice. If the offender considers that the penalty he is being offered is higher than that he would receive if he pleaded guilty in the Magistrates’ Court then he is entitled to reject the offer of a youth conditional caution and choose to be prosecuted. As this is a power akin to powers to increase maximum penalties the affirmative procedure is considered appropriate save where any increase in the £100 limit is limited to up rating the amount in line with inflation (in which case the negative resolution procedure will apply). The order-making power mirrors that in section 23A(4) of the Criminal Justice Act 2003 (as inserted by section 17 of the Police and Justice Act 2006) which relates to adult conditional cautions (on which the Delegated Powers and Regulatory Reform Committee commented in their 22nd Report of the 2005/6 session, dated 15 June 2006).
Schedule 18, Paragraph 3 – new section 66G(5) of the Crime and Disorder Act 1998: Power to bring a code of practice in relation to youth conditional cautions into force by order.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative resolution 75. New section 66G of the Crime and Disorder Act 1998 makes provision for the Secretary of State, with the consent of the Attorney General, to publish a Code of Practice setting out the circumstances in which youth conditional cautions may be given, 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. 34 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
76. The Secretary of State is required to publish the code in draft and to consider any representations regarding it. 77. Matters of this sort of procedural detail are more appropriate for delegated legislation than for inclusion on the face of the statute. The equivalent power in section 25 of the Criminal Justice Act 2003 in relation to the adult conditional cautioning scheme is subject to the affirmative procedure. The Home Office memorandum to the Delegated Powers and Regulatory Reform Committee in respect of the Criminal Justice Bill (see Annex 1 of the Committee’s 21st Report session 2002/03 dated 12 June 2003) argued that the affirmative procedure was appropriate as the code will be new. Given that the code of practice for the adult scheme has now been in place for some time, this is no longer the case. Moreover the code of practice for the youth scheme will closely follow that of the adult scheme, in these circumstances the negative resolution procedure is considered appropriate.
Schedule 18, Paragraph 3 – new section 66H(e)(vi) of the Crime and Disorder Act 1998: Power to specify a person as being a relevant prosecutor for the purposes of Chapter 1 of Part 4 of the 1998 Act.
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 78. New section 66H of the Crime and Disorder Act 1998 defines various terms in relating to the youth conditional caution scheme, amongst these is the term “relevant prosecutor”. Section 66H(e) includes provision for the Secretary of State to add to the list of relevant prosecutors by order. This provides flexibility to take account of the potential creation of new prosecuting bodies for whom it would be convenient to be able to participate in the youth conditional cautioning scheme. 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. The order-making power mirrors that in section 27 of the Criminal Justice Act 2003 which relates to adult conditional cautions.
Schedule 19, paragraph 4 – new section 9A(5) of the Rehabilitation of Offenders Act 1974: Power to make provision excepting, in specified cases, official disclosures of caution information from the offence of unauthorised disclosure
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 79. New section 9A(2) makes it an offence for a person who in the course of his duties has custody or access to any official record or information imputing that a named or otherwise identifiable person has committed, been charged with, prosecuted or cautioned for any offence which is the subject of a spent conviction if, knowing or having reasonable cause to suspect that the information is caution information he discloses it, otherwise than in the course of his duties, to another person. New section 9A(5) provides that the Secretary of State may by order make provision for DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 35
excepting the disclosure of caution information from subsection (2) in such cases or classes of cases as may be specified in the order. 80. This order making power mirrors that in section 9(5) of the Rehabilitation of Offenders Act which deals with the unauthorised disclosure of spent convictions. That power is also subject to the affirmative resolution procedure by virtue of section 11 of that Act.
Schedule 19, paragraph 6 – Paragraph 4 of new Schedule 2 to the Rehabilitation of Offenders Act 1974: Power to make provision for exclusions and exceptions to the protection afforded in respect of spent cautions
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 81. New Schedule 2 to the Rehabilitation of Offenders Act 1974 makes provision for the protection for spent cautions. Paragraph 3 of the new Schedule 2 provides that where a person received a caution which is spent he is to be treated for all purposes in law as a person who has not committed, been charged with, prosecuted or cautioned for any offence. 82. Under paragraph 3(3) where a question seeking information about a person’s previous cautions, offences, conduct or circumstances then, except in judicial proceedings: (a) the question shall be treated as not relating to spent cautions or to any ancillary circumstances, and the answer may be framed accordingly; and (b) the person questioned will not be subjected to any liability or otherwise prejudiced by reason of any failure to acknowledge or disclose a spent caution or any ancillary circumstances in his answer to the question. 83. Under paragraph 3(4) of the new Schedule 2, any obligation imposed on any person to disclose any matters to any other person shall not extend to requiring him to disclose a spent caution or any ancillary circumstances (whether the caution is his own or another’s) and a caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment. 84. Paragraph 4 enables the Secretary of State to make provision for excluding or modifying the application of paragraph 3(3) in relation to questions put in specified circumstances and to provide for exceptions from the provisions in paragraph 3(4) and (5). This power mirrors that in section 4(4) of the Rehabilitation of Offenders Act. Orders made under that provision specify various offices and types of employment, for example, involving work with children and vulnerable adults, where the employer may ask questions about spent convictions. It is envisaged that similar exceptions would apply in respect of spent cautions. 36 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Schedule 20, paragraph 4 – new section 3AC(2) of the Bail Act 1976: Requirement for a person responsible for monitoring an electronic monitoring requirement to be of a description specified in an order
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: None 85. Clause 101 and Schedule 20 amend the Bail Act 1976 to provide that a court can order the electronic monitoring of a person’s compliance with any requirement imposed as a condition of bail. The provisions (new section 3AC(2)) require the Secretary of State to specify by order those persons who may be responsible for such monitoring. This is best left to delegated legislation as amendments to the specification of the description of electronic monitoring providers will be required from time to time and the level of detail would make it inappropriate for primary legislation. This provision mirrors similar provisions in section 215(3) of the Criminal Justice Act 2003 (see Criminal Justice (Sentencing) (Programme and Electronic Monitoring Requirements) Order 2005 (SI 2005/963) for current order). It is not anticipated that the contents of any order made under this clause would be significantly different, save for possible changes in electronic monitoring providers. 86. Electronic monitoring has been available since 1999 (for example, as part of curfew orders, home detention curfews, etc) following a series of pilot projects which operated in selected areas during the previous ten years. As the description of the providers of this service is unlikely to be of public interest no further Parliamentary scrutiny is considered necessary.
Schedule 20, paragraph 4 – new section 3AC(3) of the Bail Act 1976: Regulation of the electronic monitoring of offenders on bail
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary procedure: Negative Resolution 87. Clause 101 and Schedule 20 insert into the Bail Act 1976 a new section 3AC which provides powers for the Secretary of State to make rules regulating the electronic monitoring on bail and the functions of those responsible for it. The relevant subsections (which are modified to include adults) replace the equivalent provisions in subsections (6) to (10) and (12) of the existing section 3AA of the Bail Act 1976, which apply only to juveniles. Like the present rule-making power, the power in section 3AC is subject to the negative resolution procedure which is considered to provide an appropriate level of Parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 37
Clause 106(6) – new paragraph 1A of Schedule 3 to the Access to Justice Act 1999: Power to make regulations in respect of the provisional grant of right to representation
Power conferred on: The Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 88. This clause amends Part 1 of the Access to Justice Act 1999 (the 1999 Act) to allow for the provisional grant of a right to representation in prescribed circumstances. Paragraph 2A of Schedule 3 to the 1999 Act, confers a power on the Lord Chancellor to make regulations providing that the Legal Services Commission may grant rights of representation in criminal proceedings of a prescribed description and may withdraw such rights in prescribed circumstances. Paragraph 3A of that Schedule provides that regulations may prescribe the form which the grant of a right to representation is to take, under paragraph 2A or 3, which confers limited powers on the Legal Services Commission to make such grants. 89. Delegated legislation about the granting of rights of representation is considered appropriate because of the level of detail required, but because of the importance to the Act of the change of responsibility for granting rights, regulations under paragraph 2A are subject to the affirmative resolution procedure (see section 25(9) of the 1999 Act). Subsidiary matters of exceptions to the Legal Services Commission’s power to grant rights of representation are dealt with in regulations subject to the negative resolution procedure. The form which a grant of a right to representation should take is also set out in delegated legislation, and is subject to the negative resolution procedure. 90. This clause, which would insert a new paragraph 1A, provides for regulations to set out circumstances in which a right to representation may be provisionally granted to individuals involved in an investigation which may result in criminal proceedings, for the purpose of those proceedings, about the stage of an investigation at which the right may be provisionally granted, and the circumstances in which any provisional grant ceases to be provisional and becomes a grant, or where it is to be withdrawn. 91. For the same reasons as set out in paragraph 86 above, delegated legislation about the granting of provisional rights of representation is considered appropriate because of the level of detail that may be required, and because of the importance of the change, regulations under new paragraph 1A are to be subject to the affirmative resolution procedure (see clause 59(4)). 38 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 107(3) – new paragraph 6(2)(f) of Schedule 3 to the Access to Justice Act 1999: Power to prescribe additional categories of information in respect of persons in receipt of benefits that may be requested by Courts Service staff to enable assessment of financial eligibility for legal aid
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 92. Clause 107 amends Schedule 3 to the Access to Justice Act to establish a gateway to allow for specific information to be disclosed to the Legal Services Commission by the Department of Work and Pensions (DWP) and HM Revenue and Customs (HMRC) for purposes relating to the grant of legal aid, and places certain restrictions on the disclosure of that information. It enables a request to be made for prescribed information. It may be that in future it is easier to obtain certain data from HMRC, than from DWP, or vice versa, or that new categories of information relevant to Legal Services Commission’s purposes, are collected by either department. Therefore, to cover this eventuality, the Government consider that the Lord Chancellor should have regulation making powers to prescribe additional categories of information that can be requested from DWP and/or HMRC. 93. Clause 107(2) amends section 25(9) of the 1999 Act so as to make regulations under new paragraph 6 subject to the affirmative resolution procedure. This is felt to be an appropriate level of scrutiny because it involves the disclosure of personal information.
Clause 107(3) – new paragraph 6(3)(d) of Schedule 3 to the Access to Justice Act 1999: Power to prescribe additional categories of information in respect of persons employment status that may be requested by Courts Service staff to enable assessment of financial eligibility for legal aid
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 94. New paragraph 6(3)(d) of Schedule 3 to the Access to Justice Act provides for regulations to set out any other information which may be requested from HMRC. New paragraph 6(4) provides that any regulations may, in particular, relate to an individual’s income. The Government consider that the Lord Chancellor should have regulation making powers to prescribe additional categories of information that can be requested to cover the eventuality that, in future, changes are made to the factors which are relevant for the purposes of assessing financial eligibility. Given that other categories of information are set out in primary legislation, the affirmative procedure is considered appropriate for regulations adding to the list of categories. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 39
Clause 107(3) – new paragraph 8 of Schedule 3 to the Access to Justice Act 1999: Power to prescribe types of benefit for the purpose of the definition of “benefit status”
Power conferred on: Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 95. New paragraph 8 of Schedule 3 to the Access to Justice Act provides for certain benefits to be prescribed by regulations for the purposes of paragraph 6 of Schedule 3 to the 1999 Act. Paragraph 8 also defines benefit status as being the type of prescribed benefit an individual receives, the amount received, and the frequency with which it is paid. Such regulations will be able to mirror the existing secondary legislation on benefits and means testing (see the Criminal Defence Service (Financial Eligibility) Regulations 2006 (SI 2006/2492)). They will be subject to the negative resolution procedure, in line with the position for that existing legislation (section 25(9A) and (10) of the 1999 Act provides that, save for the first exercise of the power, regulations under paragraph 3B of Schedule 3 to the Act are subject to the negative procedure).
Clause 108(3) – new section 18A of the Access to Justice Act 1999: Power to make regulations as to pilot schemes
Power conferred on: The Lord Chancellor
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 96. Clause 108 amends the Access to Justice Act 1999 to provide for a power to pilot any schemes under secondary legislation about the Criminal Defence Service. This clause does not itself confer any powers to make delegated legislation, but does set out how existing powers to do so are to be exercised. 97. New section 18A of the 1999 Act applies to any instruments under sections 12, 13, 14, 15, 17, 17A or 22(5) or paragraphs 1A to 5 of Schedule 3 of that Act, and provides that they may have effect only for a specified period of up to twelve months, unless the Lord Chancellor extends this period by order where necessary to ensure the effective operation of a scheme or to coordinate it with another relevant pilot scheme, for up to eighteen months. The Lord Chancellor may further extend this period in order to cover any gap between the end of the pilot and wider rollout. Any pilot scheme may apply in relation to one or more area, type of court, type of offence or class of person. 98. A scheme of delegated legislation currently operates in relation to the pilot scheme in section 17A (referred to in section 25(9) of the 1999 Act). Clause 108(4) inserts a new subsection (9B) into section 25 which provides that any instrument under new section 18A will be subject to the affirmative resolution procedure, which is also the current position under section 25(9A). 40 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 111(7) – new section 133A(7) of the Criminal Justice Act 1988: Power to alter the overall compensation limit or the earnings compensation limit
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative resolution
Schedule 35, paragraph 11 – new section 276A(7) of the Armed Forces Act 2007: Power to alter the overall compensation limit or the earnings compensation limit
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative resolution 99. Clause 111(7) introduces a new section 133A into the Criminal Justice Act 1988. Subsections (5) and (6) of new section 133A impose limits on the overall amount of compensation payable for a particular miscarriage of justice and on the amount of compensation payable for a person’s loss of earnings or earnings capacity in any one year. The subsections set the overall limit at £500,000 and the earnings limit at 1.5 times the median annual gross earnings according to the latest figures published by the Office for National Statistics at the time of the assessment. 100. New section 133A(7) provides the Secretary of State with an order making power to amend these limits. This power is necessary to enable the limits to be changed from time to time for policy reasons, to take account of inflation, and/or to take account of changes in the practices or terminology of the Office for National Statistics. The flexibility of delegated legislation is appropriate to allow changes to be made promptly where required. 101. The affirmative resolution procedure is appropriate because an order under new section 133A would amend primary legislation. 102. New section 276A(5) to (7) of the Armed Forces Act 2006, inserted by paragraph 11 of Schedule 35, contains similar provision in respect of the armed forces.
Part 7: Criminal Law
Schedule 27, paragraph 9(1): Power to extend certain provisions of the Customs and Excise Management Act 1979, as amended, to the Channel Islands or any British overseas territory.
Power conferred on: Her Majesty
Power exercisable by: Order in Council
Parliamentary Procedure: None 103. Paragraph 9 of Schedule 27 provides a power for Her Majesty by Order in Council to extend certain provisions of the Customs and Excise Management Act 1979 (“the 1979 Act”), as amended by Schedule 27, to the Channel Islands or any British overseas territory, with or without modification. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 41
104. The purpose of the amendments made to the 1979 Act by Schedule 27, together with amendments made to the Nuclear Material (Offences) Act 1983 (“the 1983 Act”) by Part 1 of Schedule 27, is to facilitate ratification by the UK of certain amendments made in 2005 to the international Convention on the Physical Protection of Nuclear Material (“the Convention”). The Convention as it stands requires State Parties to provide in their law for “punishable offences” covering various descriptions of conduct involving nuclear material. The amended Convention requires additional descriptions of conduct to be covered by offences, including conduct in relation to nuclear facilities. For example, it requires State Parties to provide for an offence constituted by the misuse of nuclear material with the intention of causing environmental damage and an offence constituted by an act directed against a nuclear facility with the intention of causing death, injury, damage to property or environmental damage as a result of the emission of radiation or release of radioactive substances. The amended Convention also requires State Parties to have offences dealing with the movement of nuclear material from one State to another without lawful authority. The offences must carry appropriate penalties which take account of their seriousness. The Convention requires each State Party to provide for extraterritorial offences as well as offences constituted by conduct in its own territory. 105. The 1983 Act implements the offence provisions of the Convention as they stand (unamended). The UK ratified the Convention in 1991. Section 7(2) of the 1983 Act provides a power, exercisable by Order in Council, to extend its provisions, with or without modification, to any of the Channel Islands, the Isle of Man or any “colony”. The Convention has been applied to the Channel Islands and the Isle of Man but not to any British overseas territory. Orders in Council were made under section 7(2) extending the 1983 Act with modifications to Guernsey5, Jersey6 and the Isle of Man7. 106. Part 1 of Schedule 27 amends the 1983 Act to facilitate ratification of the amended Convention. Paragraph 7 updates the reference to “any colony” in section 7(2) so that it refers to any British overseas territory. 107. The amendments to the 1979 Act made by Part 2 of Schedule 27 form part of the implementation of the Convention requirement for a serious offence of moving nuclear material between States without lawful authority. UK law already provides for offences of exporting, importing or shipping nuclear material contrary to a prohibition or restriction. The relevant offences are those in sections 50(2) and (3), 68(2) and 170(1) and (2) of the 1979 Act. Schedule 23 of the Bill amends sections 1, 50, 68 and 170 of the 1979 Act in order to increase the penalty for these offences from a maximum of 7 years imprisonment on conviction on indictment to a maximum of 14 years. The purpose is to give effect to the Convention requirement that the offence must be punishable by an appropriate penalty which takes account of its seriousness. 108. The power in section 7(2) of the 1983 Act is clearly confined to the provisions of that Act. If it is decided that the amended Convention should be extended to the Crown Dependencies or overseas territories it may be necessary also to extend the amended provisions of the 1979 Act to those territories, with or without modification, so as to give full effect to the Convention requirement for a serious
5 S.I. 1991/1717. 6 S.I. 1991/1718. 7 S.I.1991/1719. 42 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
offence of importing or exporting nuclear material without lawful authority. That is the purpose of the power in paragraph 9 of Schedule 27.
Part 8: International co-operation in relation to criminal justice matters
Clause 130(5)(g): Power to specify further financial penalties.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution
Clause 132(4)(b)(vi): Power to specify further financial penalties – Northern Ireland
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 109. These powers allow the Lord Chancellor to specify further financial penalties for which enforcement requests may be made to other Member States. Clauses 130(5) and 132(4)(b) list the financial penalties that are included and these order making powers allows the Lord Chancellor to add to the list. The powers are limited to adding financial penalties within the meaning of the Framework Decision on financial penalties so the negative resolution procedure is considered to be appropriate.
Clause 131(4): Power to make provision for further enforcement of financial penalties – England and Wales
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution where primary legislation is amended or repealed; otherwise negative resolution
Clause 133(4): Power to make provision for further enforcement of financial penalties – Northern Ireland.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution where primary legislation is amended or repealed; otherwise negative resolution 110. These powers allow the Lord Chancellor to make provision for further steps to be taken to enforce a financial penalty after the penalty has been sent to another state DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 43
for enforcement purposes. There are certain circumstances, set out in the Framework Decision, where a financial penalty remains unpaid and it will be returned to the United Kingdom for further enforcement. These provisions allow the Lord Chancellor to make provision for the further enforcement of penalties in these circumstances. Given the technical nature of such provisions, it is considered that they may be set out in secondary legislation and that the negative resolution procedure would normally provide the appropriate level of Parliamentary scrutiny. However, by virtue of clause 196(4), the power includes a power to modify, amend, repeal or revoke any Act (including any Act passed in the same session of Parliament as the Bill, including the Bill itself), any subordinate legislation made before the passing of this Act, any Northern Ireland legislation and any instrument made under Northern Ireland legislation prior to the passing of the Bill. Where any primary legislation is amended or repealed an Order will be subject to the affirmative resolution procedure.
Clause 141(3): Power to make further provision for and in connection with giving effect to the Framework Decision on financial penalties
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution where primary legislation is amended or repealed; otherwise negative resolution 111. Clause 141(3) confers power on the Lord Chancellor to make further provision for and in connection with giving effect to the Framework Decision on financial penalties. The power includes a power to modify, amend, repeal or revoke any Act (including any Act passed in the same session of Parliament as the Bill, including the Bill itself), any subordinate legislation made before the passing of this Act, any Northern Ireland legislation and any instrument made under Northern Ireland legislation prior to the passing of the Bill. This power is wide but is conferred for the narrow purpose of giving effect to the Framework Decision. Where any primary legislation is amended or repealed an Order will be subject to the affirmative resolution procedure.
Schedule 29, paragraph 7(3): Power by order to vary 70 euro threshold for enforcement of financial penalties.
Power conferred on: The Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 112. The Framework Decision on financial penalties contains a minimum threshold of 70 Euros. Financial penalties less than that sum can be refused enforcement in other Member States. It is likely that this figure will be raised in the future so this power is needed to amend reference to this figure in the Schedule. Given that any change to the 70 euro threshold would need to be agreed by the Member States and incorporated into an amended Framework Decision, which the UK would then be required to implement, the Government believes that the negative resolution procedure is appropriate. 44 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 147 – revised section 27(1) of the Crime (International Co-operation) Act 2003: Power to transfer functions under Crime (International Co-operation) Act 2003 in relation to direct taxation
Power conferred on: Treasury
Power exercisable by: Order made by statutory instrument
Parliamentary Procedure: Negative resolution 113. Clause 147 amends section 27(1) of the Crime (International Co-operation) Act 2003 (the 2003 Act), which contains an order-making power to provide that functions conferred on the Secretary of State under sections 10, 11 and 13 to 26 of the 2003 Act (which relate to requests from overseas authorities to obtain evidence in the UK, and to the processing of domestic and overseas evidence freezing orders) may, in circumstances prescribed in the order, be exercisable by the Commissioners of Customs and Excise. The clause also repeals paragraph 14 of Schedule 2 to the Commissioners for Revenue and Customs Act 2005 which places restrictions on the exercise of the order-making power in section 27(1) of the 2003 Act. The combined effect of both changes is that the Treasury may by order provide for functions conferred on the Secretary of State under sections 10, 11 and 13 to 26 of the 2003 Act to be exercisable instead by Her Majesty’s Commissioners for Revenue and Customs in relation to direct tax matters. 114. The existing order making power in section 27(1) of the 2003 Act is subject to the negative resolution procedure and the Government’s view is that this is also the appropriate level of parliamentary scrutiny for the amended provision.
Part 9: Violent Offender Orders
Clause 150(5): Power to provide for applications for violent offender orders to be made by persons other than a chief officer of police
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 115. Applications for violent offender orders (VOOs) may be made by a chief officer of police. The purpose of this order making power is to enable other persons or bodies to apply for such orders. This power has been included in the Bill to give flexibility in the operation of VOOs. It will permit other persons (such as probation officers) to apply for a VOO if this is considered desirable at a future date. This power is similar to the power in section 1A of the Crime and Disorder Act 1998 which enables persons or bodies to be specified as a ‘relevant authority’ for the purposes of applying for an anti-social behaviour order. The power includes the ability for provisions of Part 9 to apply to additional persons/bodies with modifications. This is necessary as, for example, we do not want a probation officer to be able to apply to vary a VOO for which the police have applied. 116. This power will be subject to the negative resolution procedure. The Government considers that this is an appropriate level of Parliamentary scrutiny for a power of this nature. The power in section 1A of the Crime and Disorder Act 1998 is also subject to the negative resolution procedure. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 45
Clause 155(5) and (6): Power to issue guidance relating to the review of Violent Offender Orders made in respect of person under 17
Power conferred on: The Secretary of State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None 117. The purpose of these powers is to enable the Secretary of State to issue guidance to those carrying out or participating in the review of a Violent Offender Order in order to outline a sensible framework for the conduct of such reviews in light of the statutory requirements. The guidance would provide advice to chief officers of police as to whom to invite to participate in a review (subsection (5)) and would provide further detail on how a review should be carried out, what particular matters should be dealt with, who should receive a copy of the findings of the review and what action is appropriate to take in consequence of the findings (subsection (6)). 118. Clause 155(4) already requires the annual reviews of Violent Offender Orders made against young offenders to include consideration of the extent to which the young person has complied with the Order, the adequacy of support available to help him to comply with the Order, and any matters relevant to whether an application to vary, renew or discharge the Order should be made. Furthermore, clause 155(2) and (3) already places the duty to carry out such reviews on the chief officer of police and specify during which periods the review should occur. 119. There is no parliamentary procedure for the issue of such guidance since it will be worked up in consultation with practitioners, it will not conflict with the statutory provisions governing the review of Violent Offender Orders, and those carrying out or participating in a review merely have to have regard to it.
Clause 157(2): Power to prescribe additional information in respect of a person subject to the violent offender notification requirements
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 120. Clause 157(2)(h) confers power on the Secretary of State to amend the violent offender notification requirements by regulations. Under clause 157(1), violent offenders subject to the notification requirements are required to inform police of their name(s), date of birth, national insurance number, home address and any other address where he regularly resides or stays. Taking a regulation making power to add to the information which must be notified by offenders is intended to allow the Secretary of State to ensure effective monitoring of offenders in light of changing developments in technology and patterns of behaviour. As examples, the power could be used to require offenders to notify their e-mail address or passport numbers. 121. These regulations will be subject to the affirmative resolution procedure. This should ensure the appropriate level of parliamentary scrutiny of these powers, given that the regulations will be imposing additional requirements on those persons 46 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
subject to the violent offender notification scheme and that failure to comply with the notification requirements is a criminal offence.
Clause 158(2) and (3): Power to require notification where there is a change in circumstances, and the details in respect of such changes in circumstances where a person is subject to the violent offender notification scheme
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 122. Under clause 158, if a person subject to the violent offender notification scheme changes their details, for example, by moving house, they must notify the police of this change within 3 days (together with the required information set out in clause 158(2)). Subsections (2) and (3) ensure that where the Secretary of State adds an additional requirement to the violent offender notification requirements requiring further information to be notified to the police under clause 157(2)(h), he will also have the power to require the offender to notify the police of any change in these additional details. 123. It is intended that the affirmative resolution procedure will provide the appropriate level of parliamentary scrutiny in line with the regulation making power provided under section 157(2).
Clause 159(5): Power to specify frequency with which a person subject to the violent offender notification scheme who has no sole or main residence in the UK must notify the police of the required information
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 124. This subsection allows the Secretary of State to make the reporting requirements more frequent for those violent offenders who do not have a sole or main residence, but who are nevertheless in the UK. Under clause 159, all violent offenders subject to the notification requirements will be required to notify the police annually of the information specified in clause 157(2). However, it is felt appropriate to provide for more frequent notification requirements in relation to homeless offenders who may otherwise be able to abscond more easily, as they only need notify the police of an address or location where they can be found regularly. It is also intended to prevent exploitation of the provisions by those offenders with a main or sole residence who nevertheless attempt to register as homeless in an attempt to evade the police. The frequency of reporting is to be set out in regulations in order that it can be varied in accordance with operational experience. 125. It is intended that the affirmative resolution procedure will provide the appropriate level of parliamentary scrutiny in line with the regulation making powers provided in clauses 157 and 158. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 47
Clause 160(1): Power to make regulations with respect to persons subject to a VOO in relation to travel outside the United Kingdom
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 126. This clause forms part of the notification regime that will apply to persons subject to a VOO. Regulations may require such persons to give a notification before they leave the United Kingdom and if they subsequently return to the United Kingdom. The level of detail that will be needed for these regulations means that it is appropriate for this to be set out in delegated legislation. The regulations are subject to the affirmative resolution procedure, which the Government considers is appropriate given that they will be imposing additional requirements on persons subject to a VOO. A close precedent for this power is in section 86 of the Sexual Offences Act, which is also subject to the affirmative procedure.
Clause 167(2): Power to make regulations requiring notice to be given when a person subject to a VOO is in prison, service detention or is detained in a hospital.
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 127. This clause applies when a person subject to a VOO is serving a sentence of imprisonment, a term of service detention or is detained in a hospital. Regulations may require the person who is responsible for such a person to give notice that he has become so responsible and when the person is released. The level of detail that will be required makes these provisions suitable for inclusion in delegated legislation. The regulations will be subject to the negative resolution procedure. The Government considers that this is an appropriate level of Parliamentary scrutiny. There is a close precedent for this power in section 96 of the Sexual Offences Act 2003, which is also subject to the negative resolution procedure.
Part 10: Anti-Social Behaviour
Schedule 30 – new section 11A(10) of the Anti-social Behaviour Act 2003: Power to specify premises or description of premises in respect of which closure powers do not apply
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 128. The powers to issue closure notices and apply for closure orders in respect of premises on which there has been anti-social behaviour and significant and persistent disorder or persistent serious nuisance to members of the public extend to 48 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
all types of premises. It is expected that police and local authorities will exercise discretion in accordance with guidance so as not to use the powers inappropriately. 129. The purpose of the power in new section 11A(10) of the Anti-social Behaviour Act 2003 is to enable the Secretary of State to specify by regulations premises or descriptions of premises to which the powers do not apply if, as a result of subsequent consultation with practitioners, that is deemed appropriate. An identical power exists in respect of the current closure powers for premises associated with Class A drugs under Part 1 of the Anti-social Behaviour Act 2003. 130. The negative resolution procedure provides an appropriate level of scrutiny for three reasons: the power could only be used to restrict the universal application of the closure powers on the face of the clause. The precedent in section 1(9) of the Anti- social Behaviour Act 2003 already attracts the negative procedure; and the power would only be exercised following consultation with practitioners.
Clause 172(1): Power to publish guidance in respect of the power to remove persons causing nuisance or disturbance on NHS premises
Power conferred on: The Secretary of State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None
Schedule 31, paragraph 3(1): Power to publish guidance in respect of the power to remove persons causing nuisance or disturbance on HSS premises
Power conferred on: The Department of Health, Social Services and Public Safety
Power exercisable by: Statutory guidance
Parliamentary Procedure: None 131. Clause170 creates an offence of causing a nuisance or disturbance to NHS staff on NHS premises to address behaviour which disrupts NHS staff in the performance of their duties and affects the delivery of healthcare. Clause 171 allows police constables or members of staff authorised by English NHS trusts, Primary Care Trusts and NHS foundation trusts to remove an individual suspected of committing the offence. Clause 172 provides for the Secretary of State to prepare and publish guidance about the exercise of the powers under clause 171. Schedule 31 makes similar provision in respect of HPSS premises in Northern Ireland. 132. The primary legislation contains the main safeguards in relation to the power to remove a person to ensure that those seeking medical advice, treatment or care are not capable of committing the offence (clause 170(1)(c)) and further, that a person cannot be removed if the authorised officer has reason to believe that the person requires medical advice, treatment or care, or that removal will endanger his physical or mental health (171(4)). 133. However, the guidance under clause 172 (and paragraph 3 of Schedule 31) will assist health bodies to ensure that they exercise their powers effectively and equitably and it is intended that it will set out detailed guidelines for NHS trusts, Primary Care Trusts and NHS foundation trusts 9and the equivalent Northern Ireland bodies) to ensure that there are further safeguards in place to prevent DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 49
inappropriate use of the powers. Both the authorised officers and the NHS bodies will be under a duty to have regard to this guidance and clause 172(2) provides some detail on the types of issue that will be covered by the guidance. 134. The level of detail and the changes that may be required from time to time make this inappropriate for primary legislation. In addition, it would not be appropriate to place mandatory requirements on health bodies in relation to these functions. These functions are designed to be managed and implemented locally in order to meet specific needs for individual health bodies. Furthermore, each instance of nuisance and disturbance behaviour is likely to be different, making mandatory requirements prescribing the exact procedures to be followed unsuitable. Instead, the aim of the guidance is to provide an outline of best practice and to alert health bodies and authorised officers to the types of matters to be considered and types of procedures to be put in place before exercising the power of removal. This will place a responsibility on the health body and/or authorised officer to assess each case on its merits, which is more likely to ensure that a person’s rights are safeguarded. 135. Parliamentary scrutiny is not considered appropriate for guidance with this detailed level of provision. However, there is a duty on the Secretary of State (and the Department of Health, Social Services and Public Safety) to consult with relevant parties before publishing such guidance.
Clause 174(1) - new section 1J(7) of the Crime and Disorder Act 1998: Power to issue guidance relating to the review of anti-social behaviour orders made in respect of person under 17
Power conferred on: The Secretary of State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None 136. The purpose of the power in new section 1J(7) of the Crime and Disorder Act 1998 is to enable the Secretary of State to issue guidance to those carrying out or participating in the review of an ASBO in order to outline a sensible framework for carrying out the reviews in light of the statutory requirements. The guidance would provide further detail on how the review should be carried out, what particular matters should be dealt with, and what action is appropriate to take in consequence of the findings. 137. New section 1J(6) already requires the annual reviews of ASBOs against under 18 to include consideration of the extent to which the child or young person has complied with the ASBO, the adequacy of support available to help him to comply with the ASBO, and any matters relevant to whether an application to vary or discharge the ASBO should be made. Furthermore, new section 1J(2) and (3) already specify during which periods the review should occur and new section 1K(1)-(6) specify who must carry out the review, who must co-operate in it, and who may be invited to it by whom. 138. There is no parliamentary procedure for the issue of such guidance since it will be worked up in consultation with practitioners, it will not conflict with the statutory provisions governing ASBO reviews, and those carrying out or participating in a review merely have to have regard to it. 50 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Part 11: Policing
Schedule 32, paragraph 3: Modification of power to make regulations for police forces and special constables in section 50 of the Police Act 1996
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 139. Section 50(3) of the Police Act 1996 currently provides (in paragraph (a)) that regulations under section 50 shall establish procedures for cases in which members of a police force may be dealt with by a number of specified sanctions, including dismissal, requirement to resign, fine, reprimand and caution. It also provides (in paragraph (b)) that regulations shall secure that any case in which a senior officer may receive one of the sanctions specified in paragraph (a) is decided by the police authority for that officer’s force. This section is being replaced by a new section 50(3) under which regulations shall establish procedures for disciplinary proceedings in respect of the conduct, efficiency and effectiveness of members of police forces including procedures for cases in which such persons may be dealt with by dismissal. 140. This amendment is being made because under the proposed new procedures for dealing with police misconduct and performance, not all of the sanctions currently specified in section 50(3) will be available. Requiring regulations only to provide for the sanction of dismissal ensures that the procedures will be able to deal effectively with the most serious cases but also that there will be the necessary flexibility in the regulations to provide only such other sanctions as are considered necessary. 141. The existing section 50(3)(b) is being removed because under the new policy the panel conducting the proceedings for senior officers will make its finding and impose the sanction itself, rather than the police authority. The Government does not think that it is necessary to make any replacement for this section in the Police Act. The Secretary of State, in consultation with the Police Advisory Board for England and Wales can appropriately decide who should impose sanctions on senior officers (as he will do in relation to non-senior officers). 142. Before regulations under section 50 can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account by the Secretary of State. Regulations under section 50 are already subject to the negative resolution procedure. The Government considers this continues to provide an appropriate level of Parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 51
Schedule 32, paragraph 4 – amendment to section 51 of the Police Act 1996: power to make regulations for special constables
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 143. Under section 51(2)(ba) of the Police Act 1996, regulations can already be made containing provision with respect to the conduct of special constables and the maintenance of discipline. Paragraph 4(2) of schedule 19 amends this provision by including a reference to “efficiency and effectiveness”. The reason for this amendment is to enable the new performance regulations to apply to special constables; the existing regulations only apply to members of a police force. This amendment provides clear vires for such regulations to be made. 144. Paragraph 4(3) inserts a new section 51(2A), which mirrors the new section 50(3). This section is being inserted to ensure that regulations under section 51 establish procedures for disciplinary proceedings and provide for the sanction of dismissal. This will ensure that the procedures can deal effectively with the most serious cases but also that there will be the necessary flexibility in the regulations to provide only such other sanctions as are considered necessary. 145. Regulations under section 51 are already subject to the negative resolution procedure. The Government considers this continues to provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 7 – new section 84(1) of the Police Act 1996: Power to make regulations in relation to representation at disciplinary hearings
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 146. The entitlement to representation at disciplinary proceedings is currently set out in section 84 of the Police Act 1996. This section is being replaced with a duty on the Secretary of State to make regulations setting out an officer’s entitlement to representation at proceedings. The regulations will also make provision for the person(s) conducting the proceedings to receive advice. 147. The entitlement to representation will be set out in secondary legislation to provide the necessary flexibility. Different regulations will be made covering misconduct and performance and the entitlement to legal representation will arise in different circumstances under each of these sets of regulations. Further, the non-legal persons who may represent an officer will be different in the case of police officers and special constables. 148. New section 84(2) sets out particular matters that may be included in the regulations; new section 84(3) sets out particular matters that the regulations must contain. These provisions therefore provide details as to the content of the regulations. Overall, the level of detail required under section 84 means that it is appropriate for this to be set out in secondary legislation. 52 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
149. Before the regulations can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account. The regulations will be subject to the negative resolution procedure. Given the requirement to consult and the fact that the power will set out entitlement to representation and advice, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 7 – new section 84(4) of the Police Act 1996: power to make regulations prescribing the person or panel of persons who will conduct disciplinary proceedings
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 150. This power enables the make up of “the panel” for the purposes of new section 84 of the Police Act 1996 to be prescribed in regulations. Depending on the circumstances, the panel will be made up of one person or a group of persons. This power gives flexibility to provide for the different types of disciplinary proceedings that can arise and is therefore an appropriate way of defining “the panel” for the purposes of section 84. 151. Before the regulations can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account. The regulations will be subject to the negative resolution procedure. Given the requirement to consult and the nature of the power, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 7 – new section 84(5) of the Police Act 1996: Power to prescribe circumstances where “relevant authority” also includes Independent Police Complaints Commission (IPCC).
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 152. The circumstances in which the IPCC will be a “relevant authority” for the purposes of new section 84 will be set out in regulations. This is to provide sufficient flexibility and because the Government considers that the level of detail required to specify these circumstances is appropriately set out in regulations. Before the regulations can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account. The regulations will be subject to the negative resolution procedure. Given the requirement to consult and the nature of the power, the Government considers this will provide an appropriate level of Parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 53
Schedule 32, paragraph 8(2) – new section 85(1) of the Police Act 1996: duty to make rules prescribing the cases in which an appeal may be made to the Police Appeals Tribunal (PAT)
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 153. The circumstances in which a member of a police force may currently appeal to a PAT are set out in section 85(1). Rather than provide that an officer who has received a particular sanction may appeal to the PAT (as in section 85 at the moment), the new policy is that an officer may appeal to the PAT where a particular finding has been made against him, such as gross misconduct or unsatisfactory performance (regardless of the sanction imposed). As these terms will be defined in regulations, the Government does not consider it appropriate to refer to these terms in the primary legislation. Therefore, the circumstances in which an officer may appeal to the PAT will all be set out in rules. 154. Before the rules can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account. The rules will be subject to the negative resolution procedure. Given the requirement to consult and the fact that the power creates entitlement to appeal to the PAT, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 8(3) – new section 85(4) of the Police Act 1996: Modification of existing power to make rules governing procedures on appeal to Police Appeal Tribunal
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary Procedure: Laid before Parliament 155. Section 85(3) currently contains a power to make rules as to the procedure on appeals to the PAT. Paragraph 8(3) modifies this power in two respects. First, it provides that such rules may specify the circumstances in which a PAT may determine a case without a hearing. The circumstances in which a PAT can currently determine a case without a hearing are set out in paragraph 6(1) of Schedule 6 to the Police Act 1996. The Government has decided to set these circumstances out in the rules because it is a procedural matter and is related to the issue of representation at a PAT which is dealt with below. The Government considers it appropriate for both matters to be dealt with in the rules. 156. Second, it provides that the rules may make provision for the representation of the appellant and the respondent in a hearing before the PAT. The entitlement to representation before a PAT is currently set out in paragraph 6(2) of Schedule 6 to the Police Act 1996. The Government has decided to set such entitlement out in the rules to provide the necessary flexibility. An officer who appeals to a PAT will be entitled to legal representation or to representation by a specified person. Different persons will be specified in the case of police officers and special constables. 54 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
157. Before the rules can be made, a draft of them must be sent to the Police Advisory Board for England and Wales and the representations of that Board must be taken into account. The rules are required to be laid before Parliament after they are laid. Given the nature of this power, the Government considers that this provides an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 9(2) – new section 87(1) of the Police Act 1996: Power to issue guidance concerning disciplinary proceedings
Power conferred on: The Secretary of State
Power exercisable by: Statutory guidance
Parliamentary Procedure: None 158. Section 87 of the Police Act 1996 already contains a power for the Secretary of State to issue guidance to specified persons as to the discharge of their functions in relation to disciplinary proceedings. Such persons must have regard to the guidance when discharging these functions. Paragraph 9(2) amends this power by enabling the Secretary of State to also issue guidance to special constables and police staff. Special constables and police staff will have functions under the new conduct and performance regulations. It is therefore appropriate for this power to be modified in this way. There is no Parliamentary procedure for section 87 at present and the Government considers that this remains appropriate.
Schedule 32, paragraph 14 – revised section 3A(1) of the Ministry of Defence Police Act 1987: Modification of power to make regulations relating to disciplinary matters
Power conferred on: The Secretary of State
Power exercisable by: Regulations by Statutory Instrument
Parliamentary Procedure: Negative Resolution 159. Section 3A(1) of the Ministry of Defence Police Act 1987 currently provides that regulations under section 3A shall establish procedures for cases in which a member of the Ministry of Defence Police may be dealt with by a number of specified sanctions, including dismissal, requirement to resign, fine, reprimand and caution. This section is being replaced by a new section 3A under which regulations shall establish procedures for disciplinary proceedings in respect of the conduct of members of the Ministry of Defence Police, including procedures for cases in which such persons may be dealt with by dismissal. 160. This amendment is being made because under the proposed new procedures for dealing with police misconduct, not all of the sanctions currently specified in section 3A will be available. Requiring regulations only to provide for the sanction of dismissal ensures that the procedures will be able to deal effectively with the most serious cases but also that there will be the necessary flexibility in the regulations to provide only such other sanctions as are considered necessary. 161. Before regulations under section 3A are made, a draft of them will be placed through the MoD Police Committee and the Agency Management Board for comment and approval. The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. Regulations under section 3A DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 55
are already subject to the negative resolution procedure. The Government considers that this continues to provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 – revised section 4(1) of Ministry of Defence Police Act 1987: Modification of power by regulations to make provision relating to representation at disciplinary hearings
Power conferred on: The Secretary of State
Power exercisable by: Regulations by Statutory Instrument
Parliamentary Procedure: Negative Resolution 162. The entitlement to representation at disciplinary proceedings is currently set out in section 4 of the Ministry of Defence Police Act 1987. This section is being replaced with a duty on the Secretary of State to make regulations setting out an officer’s entitlement to representation at proceedings. The regulations will also make provision for the person(s) conducting the proceedings to receive advice. 163. The entitlement to representation will be set out in secondary legislation to provide the necessary flexibility. 164. New section 4(2) sets out particular matters that may be included in the regulations; new section 4(3) sets out particular matters that the regulations must contain. These provisions therefore provide details as to the content of the regulations. Overall, the level of detail required under section 4 means that it is appropriate for this to be set out in secondary legislation. 165. Before regulations under section 4 are made, a draft of them will be placed through the MoD Police Committee and the Agency Management Board for comment and approval. The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. Regulations under section 4 will also be subject to the negative resolution procedure. Given the requirement to consult and the fact that the power will set out entitlement to representation and advice, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 – new section 4(4) of the Ministry of Defence Police Act 1987: power to make regulations prescribing the person or panel of persons who will conduct disciplinary proceedings
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 166. This power enables the make up of “the panel” for the purposes of new section 4 of the Ministry of Defence Police Act 1987 to be prescribed in regulations. Depending on the circumstances, the panel will be made up of one person or a group of persons. This power gives flexibility to provide for the different types of disciplinary proceedings that can arise and is therefore an appropriate way of defining “the panel” for the purposes of section 4. 167. Before the regulations are made, a draft of them will be placed through the MoD Police Committee and the Agency Managements Board for comment and approval. 56 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. The regulations will be subject to the negative resolution procedure. Given the requirement to consult and the nature of the power, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 15 – new section 4(5) of the Ministry of Defence Police Act 1987: Power to prescribe circumstances where “relevant authority” also includes Independent Police Complaints Commission (IPCC).
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 168. The circumstances in which the IPCC will be a “relevant authority” for the purposes of new section 4 will be set out in regulations. This is to provide sufficient flexibility and because the Government considers that the level of detail required to specify these circumstances is appropriately set out in regulations. Before the regulations are made, a draft of them will be placed through the MoD Police Committee and the Agency Management Board for comment and approval. The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. The regulations will also be subject to the negative resolution procedure. Given the requirement to consult and the nature of the power, the Government considers this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 16 – new section 4A(1) of the Ministry of Defence Police Act 1987: duty to make regulations prescribing the cases in which an appeal may be made to the Police Appeals Tribunal (PAT)
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 169. The circumstances in which a member of the Ministry of Defence Police may currently appeal to an appeals tribunal are set out in section 4A. Rather than provide that an officer who has received a particular sanction may appeal to the appeals tribunal (as in section 4A at the moment), the new policy is that an officer may appeal to the PAT where a particular finding has been made against him, such as gross misconduct (regardless of the sanction imposed). As these terms will be defined in regulations, the Government does not consider it appropriate to refer to these terms in the primary legislation. Therefore, the circumstances in which an officer may appeal to the PAT will all be set out in regulations. 170. Before regulations under section 4A are made, a draft of them will be placed through the MoD Police Committee and the Agency Management Board for comment and approval. The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. Regulations under section 4A will also be subject to the negative resolution procedure. Given the requirement to consult and the fact that the power creates an entitlement to appeal to the PAT, the DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 57
Government considers that this will provide an appropriate level of Parliamentary scrutiny.
Schedule 32, paragraph 16 – new section 4A(3) of the Ministry of Defence Police Act 1987: Modification of existing power to make provision as to procedures on appeal to Police Appeal Tribunal
Power conferred on: The Secretary of State
Power exercisable by: Rules made by Statutory Instrument
Parliamentary Procedure: Negative resolution 171. Section 4A(3) currently contains a power to make provision as to the procedure on appeals to appeals tribunals and to make provision equivalent, subject to such modifications as the Secretary of State thinks fit, to that made in relation to police appeals tribunals by any provision of Schedule 6 to the Police Act 1996 or Schedule 3 to the Police (Scotland) Act 1967. Paragraph 16 modifies this power in two respects. First, it provides that such rules may specify the circumstances in which a PAT may determine a case without a hearing. The circumstances in which a PAT can currently determine a case without a hearing are set out in regulation 9(1) and (2) of the Ministry of Defence Police Appeals Tribunals Regulations 2004 (SI 2004/652). The Government has decided to expressly make provision for these circumstances to be set out in the regulations to reflect the amendments to Schedule 6 to the Police Act 1996 which omit these circumstances. The Government considers it appropriate that these matters are dealt with in the regulations under provisions which are consistent with the amendments to the Police Act 1996. 172. Second, it expressly provides that the regulations may make provision for the representation of the appellant and the respondent in a hearing before the PAT. The entitlement to representation before a PAT is currently set out in regulation 9(3) of the MDP Appeals Tribunals Regulations 2004. The Government has decided to expressly make provision for such entitlement to be set out in the regulations to provide for consistency with the amendments to the Police Act 1996. An officer who appeals to a PAT will be entitled to legal representation or to representation by a specified person. Different persons will be specified in the case of police officers and senior officers. 173. Before the regulations are made, a draft of them will be placed through the MoD Police Committee and the Agency Management Board for comment and approval. The Chief Officers’ Association and the Defence Police Federation are also consulted throughout the process. Regulations under section 4A will be subject to the negative resolution procedure. Given the nature of this power, the Government considers that this provides an appropriate level of Parliamentary scrutiny. 58 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Schedule 32, paragraph 18: Modification of power to make general police regulations in relation to the British Transport Police Force in section 36 of the Railways and Transport Safety Act 2003
Power conferred on: The British Transport Police Authority
Power exercisable by: Regulations
Parliamentary procedure None 174. Section 36 of the Railways and Transport Safety Act 2003 enables the British Transport Police Authority (BTPA) to make regulations about the government, administration and conditions of constables or other persons employed in the service of the Police Force which apply with or without modification regulations under section 50 of the Police Act 1996 and deal with matters that could be dealt with by those regulations (section 36(1)). Section 36(2) requires the BTPA to make regulations similar to the provision made by and under sections 84 and 85 of the Police Act 1996 (representation at disciplinary proceedings and appeal). 175. Paragraph 18 amends section 36 to require the Authority to make regulations similar to the provision made by and under Schedule 6 to the Police Act 1996 (appeals to police appeals tribunals). This will require the BTPA to make provision dealing with the constitution and proceedings of police appeals tribunals. By way of example, the BTPA would use this power to ensure that the membership of the tribunal includes a representative of the British Transport Police Federation.
Schedule 32, paragraph 19: Modification of power to make police regulations relating to special constables of the British Transport Police Force in section 37 of the Railways and Transport Safety Act 2003
Power conferred on: The British Transport Police Authority
Power exercisable by: Regulations
Parliamentary procedure None 176. Section 37 of the Railways and Transport Safety Act 2003 enables the BTPA to make regulations about the government, administration and conditions of service of special constables of the Police Force which apply with or without modification regulations under section 51 of the Police Act 1996 and deal with matters that could be dealt with by those regulations (section 37(1)). 177. Paragraph 19 amends section 37 to require the BTPA to make regulations similar to the provision made by and under sections 84 and 85 of the Police Act 1996 (representation at disciplinary and other proceedings, and appeal), and Schedule 6 to the Police Act 1996 (appeals to police appeals tribunals) in relation to special constables. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 59
Schedule 32, paragraph 20: Modification of power to make police regulations by the Secretary of State in section 42 of the Railways and Transport Safety Act 2003
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary procedure Negative resolution 178. Section 42 of the Railways and Transport Safety Act 2003 enables the Secretary of State to make regulations in relation to the Police Force in respect of any matter about which he could make regulations under section 50, 51 ,52 or 60 of the Police Act 1996 (section 42(1)). By section 42(3) where such regulations make provision for a matter specified in section 50(3) of the Police Act 1996 (disciplinary proceedings) they must also make provision similar to that made by and under sections 84 and 85 of that Act (representation at disciplinary proceedings and appeal) (section 42(3)). 179. Paragraph 20 amends section 42(3) to require the Secretary of State to make regulations similar to the provision made by and under sections 84 and 85 of the Police Act 1996 (representation at disciplinary and other proceedings, and appeal), and Schedule 6 to the Police Act 1996 (appeals to police appeals tribunals) in specified circumstances relating to special constables. 180. Before making such regulations, the Secretary of State has an obligation to consult the BTPA, the Chief Constable of the British Transport Police Force and certain specified staff associations (section 42(4)).
Schedule 33, paragraph 3 – new paragraph 19A(7) of Schedule 3 to Police Reform Act 2002: Power to prescribe information to be included in a notification in respect of a “severity assessment”
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 181. New paragraph 19A provides that where there is an investigation under Schedule 3 into conduct which may amount to a criminal offence or justify the bringing of disciplinary proceedings, the investigator shall conduct a ‘severity assessment’ as to whether the conduct would amount to misconduct or gross misconduct and the likely form of any disciplinary proceedings. He must then give notice to the person under investigation setting out the matters set out at paragraph 19A(7)(a) to (d). These include prescribed information about the results of the severity assessment, notice that the person may submit relevant documents to the investigator and the time limits for doing so, prescribed information about any interview conducted as part of the investigation and ‘such other information as may be prescribed’. 182. This notice will mirror the notice to be given to persons under investigation under the Police (Conduct) Regulations 2008 (to be made under section 50 of the Police Act 1996) (“the Conduct Regulations”) and expands slightly on the notice already given under regulation 9 of the Police (Conduct) Regulations 2004. The ‘other information’ to be set out in the notice will include the nature of the allegation against the person concerned and his right to seek advice. The number of matters 60 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
and the level of detail to be set out in this notice mean that it is appropriate for secondary legislation. In light of the nature of this power and the fact that the Bill sets out the most important rights of the person under investigation to be included in the notice means that the negative resolution procedure is appropriate.
Schedule 33, paragraph 3: new paragraph 19B(2)(b) of Schedule 3 to the Police Reform Act 2002: person of prescribed description
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 183. New paragraph 19B of Schedule 3 provides that the officer concerned may, within a time limit, provide statements and other documents relating to any matter under investigation to the person investigating and that that person must consider such documents. It also provides that a person of a prescribed description may provide relevant documents to the person investigating. The intention is that the officer concerned’s ‘police friend’ will be such a prescribed person. The police friend is a police officer, a police staff member or (in the case of a member of a police force) a person nominated by the police officer’s staff association, chosen by the officer concerned to assist him throughout an investigation and disciplinary proceedings. The police friend has a number of roles under the Conduct Regulations and so it makes sense for the person to be prescribed under these Regulations; the negative procedure is considered appropriate.
Schedule 33, paragraph 3 – new paragraph 19C(1) of Schedule 3 to the Police Reform Act 2002: Power to make provision as to the procedure to be followed in interview of person whose conduct is being investigated
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 184. Where an investigation under Schedule 3 is conducted into conduct which may amount to a criminal offence or justify the bringing of disciplinary proceedings, the person whose conduct is under investigation may ultimately face disciplinary proceedings (under the Conduct Regulations). There is provision in the Conduct Regulations about interviews conducted during investigations under those Regulations. This regulation-making power is to enable similar provision to be made in respect of interviews conducted by an investigator appointed under Schedule 3 to the 2002 Act. The provisions will concern the timing of the interview, the information to be provided to the person interviewed and the right of that person to be accompanied (these matters are specifically allowed for on the face of the Bill). Other matters that the regulations are intended to cover include that a person accompanying the person being interviewed may not answer any questions on their behalf. 185. In light of the nature of this power, the level of detail (there will be a procedure for determining the timing of the interview) and the fact that similar provision already DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 61
exists in Regulations subject to the negative procedure, the negative resolution procedure is appropriate.
Schedule 33, paragraph 10(4) – new paragraph 22(7) of Schedule 3 to the Police Reform Act 2002: Power to make provision as to content of reports
Power conferred on: The Secretary of State
Power exercisable by: Regulations by Statutory Instrument
Parliamentary Procedure: Negative Resolution 186. Where an investigation under Schedule 3 is conducted into conduct which may amount to a criminal offence or justify the bringing of disciplinary proceedings, this regulation-making power allows the Secretary of State to provide that the report must include specified matters and be accompanied by specified documents. Provisions made under this power will mirror provisions in the Conduct Regulations. They will provide that the report will provide an accurate summary of the evidence, will attach relevant documents and indicate the investigator’s opinion as to whether or not there is a case to answer in respect of misconduct or gross misconduct. This regulation-making power will allow reports submitted on these types of investigations to be in a similar format to reports submitted on investigations into the conduct of police officers under the Conduct Regulations. 187. The information to be included in and attached to the investigation report may need to change as the requirements of the new disciplinary system become clear over time. This information is already provided for reports submitted under the Conduct Regulations and so it makes sense for this information also to be included in secondary legislation for reports submitted under the similar system in the Police Reform Act 2002. The nature of the power is suitable for the negative resolution procedure.
Schedule 33, paragraphs 11(3) and 12(3) – new paragraphs 23(2A) and 24(2A) of Schedule 3 to the Police Reform Act 2002: Power to prescribe category of matters dealt with in an investigation report for purposes of paragraphs 23(2) and 24(2) of the 2002 Act respectively
Power conferred on: The Secretary of State
Power exercisable by: Regulations by Statutory Instrument
Parliamentary Procedure: Negative Resolution 188. Amended paragraphs 23(2) and 24(2) of Schedule 3 to the Police Reform Act 2002 provide that the Independent Police Complaints Commission (“IPCC”) and the appropriate authority (respectively) must, on receipt of a report into an investigation conducted under Schedule 3, determine whether the conditions set out in new paragraphs 23(2A) and 24(2A) are satisfied. If the conditions are satisfied, they must refer the report to the Director of Public Prosecutions (“DPP”). The first condition is that there is an indication that a criminal offence may have been committed by the person whose conduct was investigated. The second condition is that either the IPCC/appropriate authority considers the matter should be considered by the DPP or that the matters in the report fall within a prescribed category of matters. It may be that there are categories of cases which the Secretary 62 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
of State considers should be referred to the DPP in all circumstances and where it is therefore not appropriate to leave to the discretion of the IPCC/appropriate authority whether or not the matter is so referred. An example of such a category might be fatal police shootings. A regulation-making power is required as it may be that it transpires over time that the categories need to be changed. 189. The main change being made to the test for when matters are to be referred to the DPP is to add in a discretion. At present the test is simply when the report indicates that a criminal offence may have been committed. This has led to excessive numbers of unmeritorious cases being referred. If Parliament considers the discretionary element of the referral test is appropriate, the power to add back in categories of cases that must be referred is an appropriate matter for the negative resolution procedure.
Schedule 33, paragraph 17 - new paragraph 29 of Schedule 3 to the Police Reform Act 2002: definitions of ‘gross misconduct’ and ‘misconduct’
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 190. New paragraph 29 of Schedule 3 provides that the terms ‘gross misconduct’ and ‘misconduct’ which are used in some of the other new provisions in Schedule 3 have meanings given in regulations. In particular, following completion of the investigation, the appropriate authority must determine whether the officer concerned has a case to answer in respect of misconduct, gross misconduct or neither and must, in specified circumstances, report to the Independent Police Complaints Commission on its determination. These terms are already being used in the Conduct Regulations in respect of cases investigated under those Regulations, and the determination made following the completion of an investigation carried out either under Schedule 3 or the Conduct Regulations is to be the same. The definition refers to the Schedule to the Conduct Regulations which sets out the standards of professional behaviour required of a police officer. Again therefore it makes sense for these terms to be defined in secondary legislation, and the negative procedure is considered to be appropriate. The terms ‘gross misconduct’ and ‘misconduct’ may also be used in respect of police staff members, whose disciplinary procedure is not set out in the Conduct Regulations. Other regulations may therefore set out different definitions in respect of police staff members, but again, the negative procedure will be appropriate. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 63
Part 12: Special immigration status
Clause 186(6): Power to repeal, modify or disapply clause 185(4) which provides that support must not be provided wholly or mainly by way of cash
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution 191. Clause 185(4) provides that, support under section 95 of the Immigration and Asylum Act 1999 (as applied to a designated person in accordance with Part 11) may not be provided wholly or mainly by way of cash unless the Secretary of State thinks it appropriate because of exceptional circumstances. 192. Clause 186(6) provides a power by order to repeal, modify or disapply (to any extent) clause 185(4); and an order may make provision generally or only for specified cases or circumstances and may make different provision for different cases or circumstances. 193. It is submitted that this is an appropriate use of delegated power. The current intention is that clause 185(4) should not be disapplied and therefore it would not be possible to make provision for its disapplication other than by delegated power. However, it is important to have this power to ensure that the support scheme can be operated in a more flexible manner if the circumstances require it. Further, if the temporary difficulties which made the disapplication of clause 185(4) necessary to continue, it might be necessary, after evaluating the circumstances, for the Secretary of State to exercise the power to repeal the provision. 194. Under clause 196 the order is exercisable by statutory instrument subject to the draft affirmative procedure. This is because the concept of support mainly in kind (and by vouchers) is a central principle of the support scheme; and it is thought right that Parliament should have the right to debate its disapplication, modification or removal. Further, the power also entails the amendment of primary legislation.
Clause 186(7): A remedial order made under section 10 of the Human Rights Act 1998 which amends a provision mentioned in clause 185(6) may amend or repeal clause 185(6)
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory Instrument
Parliamentary procedure: Affirmative resolution unless it appears to the Secretary of State that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved 195. Clause 185(6) provides that a designated person shall not be treated as a person subject to immigration control for the purposes of section 161(1)(b) of the 1999 Act or as a person from abroad who is not eligible for housing assistance for the purposes of section 185(4) of the Housing Act 1996. 196. Section 185(4) of the Housing Act provides that a person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of Part VII of that Act whether another person is homeless or threatened with 64 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
homelessness or has a priority need for accommodation. Section 119(1)(b) of the 1999 Act is the equivalent provision in relation to Scotland and Northern Ireland. In the case of R (Morris) v Westminster City Council and another the Court of Appeal made a declaration of incompatibility in relation to section 185(4) of the Housing Act. 197. Action has not yet been taken to remove the incompatibility and so clause 186(6) is necessary. However, if a remedial order under section 10 of the Human Rights Act 1998 is used to remove the incompatibility, clause 186(7) provides that clauses 185(6) may be amended or repealed. It is submitted that this is an appropriate use of delegated power as it will allow designated persons to be treated in the same manner as persons subject to immigration control once there is a remedy for the incompatibility. This will be achieved by way of the remedial order made under section 10 of the Human Rights Act which is exercisable by statutory instrument subject to the draft affirmative procedure unless there is great urgency.
Clause 187(3): power to prescribe a grace period for the continuation of support
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution 198. Clause 187(2) provides that after designation lapses support may not be provided, subject to a number of exceptions. Clause 187(3) sets out exception 1: that if designation lapses because a designated person is granted leave to enter or remain in the United Kingdom or is notified of a right of residence in the United Kingdom by virtue of the Community treaties, support may be provided in respect of a period which ends on a date determined in accordance with an order of the Secretary of State. 199. It is submitted that this is an appropriate use of delegated power because it provides flexibility to alter the period during which a person continues to receive support. It is further submitted that the negative resolution procedure provides an appropriate level of Parliamentary control.
Clause 187(4): power to prescribe a grace period for the continuation of support
Power conferred on: Secretary of State
Power exercised by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution 200. Clause 187(2) provides that after designation lapses support may not be provided, subject to a number of exceptions. Clause 187(4) sets out exception 2: that if designation lapses because a designated person is made the subject of a deportation order support may be provided in respect of any period during which an appeal against the deportation order may be brought, any period during which such an appeal is pending and, after an appeal ceases to be pending, such period as the Secretary of State may specify by order. 201. As with clause 187(3), it is submitted that this is an appropriate use of delegated power because it provides flexibility to alter the period during which a person DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 65
continues to receive support. It is further submitted that the negative resolution procedure provides an appropriate level of Parliamentary control.
Part 13: Miscellaneous
Clause 190 - new section 127A of the Criminal Justice and Public Order Act 1994: Power to suspend, and subsequently revive, the operation of section 127
Power conferred on: The Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary Procedure: Negative Resolution 202. Clause 190 confers power on the Secretary of State to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994. If section 127 is suspended it can be revived by a subsequent order. Orders may make different provision in relation to different descriptions of prison officer. It is expected that the operation of section 127 could be suspended in relation to prison officers in respect of whom the Secretary of State is content that there exists equivalent protection from industrial action, whether by legally enforceable voluntary agreement or otherwise. Clause 190 implements a suggestion of the Delegated Powers and Regulatory Reform Committee in their report on draft Regulatory Reform (Prison Officers) (Industrial Action) Order 2004 (see paragraph 10 of the Second Report of Session 2004-05, 13 December 2004). The Bill currently provides for the negative resolution procedure to apply. This is considered an appropriate level of parliamentary scrutiny when the operation of section 127 is suspended, however, the Secretary of State for Justice indicated at Commons Report Stage (Hansard 9 January 2008, col 333) that the Bill would be amended to provide for the affirmative procedure to apply to any order that reactivated section 127.
Clause 193(1) – new section 83(5)(h) of the Sexual Offences Act 2003: Power to prescribe additional information in respect of a person subject to the sex offender notification requirements
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 203. Clause 193(1) confers power on the Secretary of State to amend the sex offender notification requirements by regulations. At present, under section 83(5) of the Sexual Offences Act 2003, sex offenders subject to the notification requirements are required to inform police of their name, date of birth, national insurance number, home address and any other address where he regularly stays. Taking a regulation making power to add to the information which must be notified by offenders is intended to allow the Secretary of State to ensure effective monitoring of offenders in light of changing developments in technology and patterns of behaviour. As examples, the power could be used to require sex offenders to notify their e-mail address or passport numbers or to require the offender to inform the police if he or she forms a relationship with a person who has children under 18. 66 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
204. Paragraph 53(1) to Schedule 36 will allow the Secretary of State to change the notification requirements in respect of particular categories of offender, for example, those who have committed sexual offences against children. 205. These regulations will be subject to the affirmative resolution procedure. This should ensure the appropriate level of parliamentary scrutiny of these powers, given that the regulations will be imposing additional requirements on those persons subject to the sex offender notification scheme and that failure to comply with the notification requirements is a criminal offence.
Clause 193(2) – section 84(1) and (2) of the Sexual offences Act 2003, as amended: Power to require notification of changes in circumstances, and the details in respect of such changes in circumstances where a person is subject to the sex offender notification scheme
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 206. Currently, if a person subject to the sex offender notification scheme changes their details, for example, by moving house, they must notify the police of this change within 3 days. Subsections 193(2) to (5) ensure that where the Secretary of State adds an additional requirement to the sex offender notification requirements requiring further information to be notified to the police under new section 83(5)(h) of the Sexual Offences Act 2003, he will also have the power to require the offender to notify the police of any change in these additional details. 207. It is intended that the affirmative resolution procedure will provide the appropriate level of parliamentary scrutiny in line with the regulation making power provided under section 167(1).
Clause 193(9) – new section 85((5) of the Sexual Offences Act 2003: Power to specify frequency with which a person subject to the sex offender notification scheme who has no sole or main residence in the UK must notify the police of the required information
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary Procedure: Affirmative Resolution 208. This subsection allows the Secretary of State to make the reporting requirements more frequent for those sex offenders who do not have a sole or main residence, but who are nevertheless in the UK. Currently, all sex offenders subject to the notification requirements must notify the police annually of the information specified in section 83(5) of the Sex Offenders Act 2003. However, it is felt appropriate to provide for more frequent notification requirements in relation to homeless offenders who may otherwise be able to abscond more easily, as they only need notify the police of an address or location where they can be found regularly. It is also intended to prevent exploitation of the provisions by those offenders with a main or sole residence who nevertheless attempt to register as homeless in an attempt to evade the police. The frequency of reporting is to be set out in DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 67
regulations in order that it can be varied in accordance with operational experience. It will also allow for different provisions to be made according to the category of homeless offender. 209. It is intended that the affirmative resolution procedure will provide the appropriate level of parliamentary scrutiny in line with the regulation making powers provided in the other parts of this clause.
Part 14: General
Clause 197(3) power to make provision which is supplementary, incidental, consequential etc. on the Bill
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory instrument
Parliamentary procedure: Affirmative resolution where primary legislation is amended or repealed; otherwise negative resolution 210. Clause 197(3) confers power on the Secretary of State to make such supplementary, incidental, consequential, transitory, transitional or saving provision as he considers appropriate for the purposes of the Bill. The power includes a power to amend or repeal any Act, Northern Ireland legislation or subordinate legislation including the Bill (clause 196(4)). 211. The powers conferred by clause 197 are wide. But there are various precedents for such provisions including section 333 of the Criminal Justice Act 2003, section 173 of the Serious Organised Crime and Police Act 2005 and section 51 of the Police and Justice Act 2006. There are significant changes made by the Bill to existing primary legislation and it is possible that not all of the consequences of them have been identified in the Bill’s preparation. To the extent that an order under this clause amends or repeals primary legislation, it will be subject to the affirmative resolution procedure (see clause 196(3)(l)). Otherwise, the order will be subject to the negative resolution procedure. It is submitted that this provides the appropriate level of parliamentary scrutiny for the powers conferred by this clause.
Schedule 36, paragraph 68 – power to issue guidance to responsible authorities in respect of their functions in respect of the disclosure of information about convictions of child sex offenders
Power conferred on: Secretary of State
Power exercisable by: Statutory guidance
Parliamentary procedure: None 212. Guidance is already provided to MAPPA authorities explaining how they should approach decisions to disclose information about child sex offenders to members of the public. Paragraph 68 allows for the Secretary of State to issue statutory guidance to which the MAPPA authorities must have regard in discharging their duty to consider disclosure. This is intended to ensure consistency across MAPPA areas, an issue identified by the Review of the Protection of Children from Sex Offenders. 68 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
There is no Parliamentary procedure for issuing this guidance and the Government considers that this remains appropriate.
Clause 201(3) to (5): Commencement power
Power conferred on: Lord Chancellor; Department of Health, Social Security and Public Safety; and Secretary of State
Power exercisable by: Order made by statutory instrument
Parliamentary Procedure: None 213. Subsections (4) to (6) of clause 201 contain standard powers to bring provisions of the Bill into force by commencement order. They are conferred on the Lord Chancellor (subsection (4)), the Northern Ireland Department of Health, Social Security and Public Safety (subsection (5)), and the Secretary of State (subsection (6)). As usual with the commencement orders, they are not subject to any parliamentary procedure. Parliament has approved the principle of the provisions to be commenced by enacting them; commencement by order enables the provisions to be brought into force at a convenient time. Ministry of Justice January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 69
APPENDIX 2: CROSSRAIL BILL
Memorandum by the Department for Transport 1. This memorandum identifies provisions for delegated legislation in the Crossrail Bill 2007/08. It describes the Bill in outline and deals in detail with the delegated powers it confers. 2. The main purpose of this Bill is to secure the powers necessary to build Crossrail. Crossrail will consist of new rail tunnels running west-east through central London connecting directly with existing surface rail routes to Maidenhead and Heathrow in the west and Shenfield and Abbey Wood in the east. By connecting the major London rail terminals of Paddington and Liverpool Street, Crossrail will enable interconnecting mainline train services to cross the centre of London via a number of new purpose-built stations.
Hybrid Bills 3. The Bill is a Hybrid Bill because it contains provisions which have an impact on the interests of particular individuals, as well as containing provisions of a more general public nature. A Hybrid Bill is a Public Bill promoted by the Government which is treated like a Private Bill for part of its passage through Parliament, in addition to being scrutinised in the same way as any other Public Bill. 4. This means that individuals, groups and organisations opposed to aspects of the Bill have an opportunity to oppose it or to seek its amendment before a Select Committee in either or both Houses. Those who are especially and directly affected by the Bill may “petition” against it. Petitioning against the Crossrail Bill in the House of Commons took place during previous Parliamentary sessions. There is a second opportunity to petition against the Bill in the House of Lords, where petitioners may have their arguments heard by a Select Committee of that House.
Summary of the Bill’s provisions 5. The Bill comprises sixty-seven clauses and seventeen schedules. The main provisions of the Bill provide for: (a) the authorisation of works necessary to build Crossrail and associated works. These powers are vested in “the nominated undertaker” and the Bill gives the Secretary of State the ability to nominate that undertaker. The Department for Transport is currently being assisted in taking the project forward by Cross London Rail Links Limited (CLRL) – a Department for Transport/Transport for London joint venture company. No binding agreements have yet been reached as to the final form of project delivery (including the letting and management of major construction contracts) and so flexibility is still required in the Bill. However, copies of a non- binding Heads of Terms agreement between the Secretary of State and TfL as to project governance have been made available to Parliament and the public (for which see www.dft.gov.uk/pgr/rail/pi/crossrail/crossrailheadsofterms) ; (b) the acquisition of land and interests in land necessary for those works. The powers of compulsory purchase sought in the Bill are vested in the Secretary of State but could also be transferred to the Greater London Authority or Transport for London, again to provide flexibility in 70 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
implementation. The compulsory purchase powers in the Bill would expire five years after Royal Assent, though they could be extended; (c) the establishment of a planning and heritage regime for the works. The former seeks to give local planning authorities and the various statutory bodies an appropriate degree of control over the planning aspects of the project (and will be augmented by other arrangements, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). Heritage issues will also be the subject of separate agreements with English Heritage and the local authorities. (d) The Bill deems planning permission to be granted for Crossrail works specified in Schedule 1 to the Bill and any ancillary works whose environmental impacts have been assessed. However, certain reserved matters – of relative detail – remain the concern of the relevant planning authority in whose area the works will take place. The roles of such authorities in respect of such reserved matters are as set out in Schedule 7. These roles vary depending on the nature of the authority concerned and, in particular, whether the hybrid Bill process means that they have entered into agreements with the Secretary of State about the handling of such planning applications. The Bill contains various powers to make delegated legislation which relate to this area; (e) the application of existing railway and other miscellaneous legislation to Crossrail. Chief amongst these are the provisions which seek to establish the railways regulatory regime which will apply to Crossrail and its interface with the existing network; (f) the transfer by transfer scheme of property, rights and liabilities from CLRL or the Secretary of State, or their wholly-owned subsidiaries, or, with their consent, the GLA, TfL, the London Development Agency or any of their subsidiaries, that may be necessary to ensure that the nominated undertaker is capable of delivering the project; and (g) the devolution of control of the Crossrail project to the Greater London Authority or Transport for London (or a combination of the two). 6. The provisions of the Bill and the legislative framework that it seeks to establish are similar to those in the Channel Tunnel Rail Link Act 1996, the last Hybrid Bill for a railway project. This is because the 1996 Act has been put to the test and by and large has worked well (although some changes from the 1996 Act framework have been made, either as a result of the particular requirements of Crossrail or following experience in implementing the 1996 Act). In many circumstances, drawing on the experience of the 1996 Act, the Department has taken similar powers to make various provision in secondary legislation and have often put forward the same level of Parliamentary scrutiny for such provision. This has, however, been done with consideration of whether such an approach was or remains appropriate.
Description and analysis of delegated powers 7. Full details of the powers to make delegated legislation is set out below. This section of the Memorandum describes the powers taken, explains their purpose, explains why the matter is to be left to delegated legislation rather than included in the Bill, and specifies the Parliamentary scrutiny procedure provided for each power (if any). Clause 6(7) – Power to extend the Compulsory Purchase Powers; form and procedure – special Parliamentary procedure DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 71
8. Clause 6 allows the Secretary of State to acquire by compulsion land within identified limits and within a timescale set out in subsection (6). Clause 6(7) allows the Secretary of State, by order, to extend the time limit for the acquisition of such land. By virtue of clause 6(8), this extension may be done only once in relation to any particular bit of land, and the time limit may be extended by no more than five years. Any such order would be subject to special Parliamentary procedure. 9. These provisions have already been amended at the request of the House of Commons Select Committee (which heard petitions against the Bill). Originally there was no limit on the number of times, or duration for which, the powers of compulsory acquisition could have been extended. In response to concerns voiced by petitioners against the Bill the Department introduced the limitations in clause 6(8). The Department also tried to assist the Select Committee be providing to them an explanation of the special Parliamentary procedure (this explanation follows below (for ease of reference): Erskine May and, of course, the relevant legislation provide more detail). 10. The extension of CPO powers can only be done by the Secretary of State (the powers are not devolvable to London government) by a statutory order subject to “special parliamentary procedure”. 11. Special parliamentary procedure is an unusual procedure established by the Statutory Orders (Special Procedure) Act 1945 (as amended by the Statutory Orders (Special Procedure) Act 1965). The procedure is particularly relevant in cases such as this where land is subject to compulsory acquisition and where there is a need for renewal of such powers to be subject to scrutiny. 12. A special procedure order must first be laid by a Minister before Parliament, along with a certificate stating that various preliminary proceedings have been complied with. This is a trigger, allowing objectors (such as those whose land is concerned) 21 days to deposit petitions against the order or in favour of amendments. The Chairman of Ways and Means and the Chairman of Committees in the House of Lords determine any questions of standing before reporting to both Houses whether any petitions remain against the order. Within 21 days of this report, any Member of either House may move that the order be annulled or that petitions against the order be not referred to a joint committee. 13. If the order is annulled there can be no further proceedings on it, although a fresh order may later be introduced. If no further petitions remain against the order, or seeking amendments to it, then the order comes into force. Otherwise the remaining petitions are referred to a Joint Committee, where it is for the petitioners to prove the merits of their case. The Committee may approve the order, with or without amendments, or decline to approve it. 14. If the order is reported from the Committee without amendment, or with amendments which are accepted by the Minister, it comes into force. In the event that the order is reported with amendments which are not accepted, or the order is not approved by the Committee, the order may be confirmed via the introduction of a public bill. 15. Although part of a little-used process, special procedure orders are suited to the kind of scenario covered by clause 6 of the Crossrail Bill (i.e. a power to extend compulsory purchase powers) in that they enable objections to be made by individuals and provide for active scrutiny by Parliament. The Department suggests that the level of scrutiny applying to this power is therefore appropriate. 72 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 11(2) – Power to extend ten year time period within which development must be begun; form and procedure – Order subject to negative resolution 16. Clause 10 of the Crossrail Bill deems planning permission to be granted to certain key (and other) Crossrail works, including new stations within the central section of the route, to be constructed (such works are termed “scheduled works” because they are specifically identified in Schedule 1 to the Bill). Clause 11 makes this deemed planning permission conferred by clause 10 conditional upon development being begun within ten years of Royal Assent. Clause 11(2) allows the Secretary of State to extend the period of deemed planning permission. The power is exercisable by order in a statutory instrument subject to the negative resolution procedure. 17. Consistently with clause 6, all land to be acquired for the project should be so acquired within five years of Royal Assent (or possibly ten if this period is extended using clause 6(7)). However, the ability to commence some development beyond this ten year period without seeking further planning permission may be necessary. This contingency is a consequence of the size and complexity of the Crossrail project, which has a construction period that is expected to last a number of years and for which not all works will commence at the same time. 18. It is therefore appropriate to take this power, subject to the negative resolution procedure, which would enable adequate scrutiny in light of whatever (unforeseen) circumstances there may be at the time.
Clause 12 – Provision to make regulations about fees for relevant planning applications; form and procedure – Regulations subject to negative resolution 19. Clause 12(1) allows the Secretary of State for Transport and the Secretary of State for Communities and Local Government, acting jointly, to make regulations about the fees to be charged by local planning authorities for the requests for approval of details under Schedule 7 of the Bill to be submitted for Crossrail. In effect, the provision in these regulations will be in place of the provision made under section 303 of the Town and Country Planning Act 1990 (fees for planning applications). 20. The power to make such regulations – and the degree of Parliamentary scrutiny for such regulations – echoes the power in section 11 of the Channel Tunnel Rail Link Act 1996 (c.61). In fact the Department would expect to make regulations resembling those made under that Act (see S.I. 1997/822). 21. The reason for providing a fees structure specifically for Crossrail is that the nature of the requests for approval differs from those under a normal planning application, being limited to requests for approval of certain specific operations or works as set out in Schedule 7.
Clause 13(1) – Provision to disapply by order the deemed planning permission under the Bill in respect of the maintenance or alteration of development; form and procedure – Order to be laid before Parliament after being made 22. Clause 13(1) allows the Secretary of State, by means of an order made by statutory instrument, to disapply the deemed planning permission granted by clause 10(1) in respect of development consisting of operations for the maintenance or alteration of Crossrail works from the date specified in the order. In essence, this provision allows the Secretary of State to switch off the deemed planning permission granted by the Bill in respect of future works on the resultant Crossrail structures. This is most likely to be used in the case of the electrification and signalling work done on sections of the existing railway network, and would ensure that a single planning regime covered works in relation to existing track after the Crossrail construction DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 73
phase has been completed. Given the flexibility provided by the Bill in terms of the arrangements for future ownership and operation of the Crossrail infrastructure, it is appropriate to afford corresponding discretion to the Secretary of State in exercising this power to ‘switch off’ the deemed planning permission. 23. Exercise of this power would be an act of administrative simplification following constructing of Crossrail, restoring the normal planning regime for certain works. As such it requires transparency rather than direct Parliamentary scrutiny, hence the Department believes that all that is required is for the resultant Order to be laid before Parliament after making.
Clause 20(4) – Power to make provision in relation to appeals about the control of construction sites; form and procedure – Regulations made by statutory instrument not subject to Parliamentary procedure 24. Clause 20 provides bespoke provision concerning disputes about construction site noise or prior consent for work on construction sites. These issues would fall within the “reserved matters” over which local planning authorities have control – see paragraph 5c above for relevant comments. Clauses 20(1) to (3) modify the operation of sections 60 and 61 of the Control of Pollution Act 1974, so that appeals under those provisions are determined by the Secretary of State (rather than by a magistrates’ court) or, if the parties agree, by arbitration. 25. Clause 20(4) enables the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to make regulations about such procedural matters in relation to such arbitrations as may be made by regulations in relation to appeals under section 70 of the 1974 Act. Such regulations would be made by statutory instrument. 26. Clause 20 is closely modelled on section 29 of the Channel Tunnel Rail Link Act 1996. 27. The power would be used if it were considered necessary to supplement the ordinary procedures for statutory arbitrations with tailored provision for noise appeals under Part 3 of the Control of Pollution Act 1974 similar to that found in regulations under section 70(2) and (3) of that Act. The equivalent power was not, in fact, exercised under the 1996 Act. The power is to be exercised jointly between the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs because the latter has policy responsibility for control of construction noise. 28. No parliamentary procedure is envisaged, as was the case in the 1996 Act, as the power is limited to matters of administrative procedure.
Clause 24(1), 24(2), 24(3) – Power of the Secretary of State to give directions to the ORR specifying the minimum operating service: directions not made by statutory instrument not subject to Parliamentary procedure 29. Clause 24(1) enables the Secretary of State, after consultation (under clause 24(4)), to specify the minimum operating levels that will establish the principal Crossrail passenger services from a specified date (specified under clause 24(3)). Clause 24(2) enables the Secretary of State to distinguish between important Crossrail services that the Office of Rail Regulation (“ORR”) must facilitate and others to which it need not give special consideration. 30. This direction, which must be published, sets the basis for the ORR’s overriding duty to facilitate the principal Crossrail passenger services under clause 23, which 74 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
obliges the ORR not to grant access rights to other railway operators that would run beyond the start of the prospective principal Crossrail passenger services and would conflict with them. 31. Whilst the direction sets the basis for the systematic effect on the ORR’s access contract functions detailed in clause 23, the direction itself constitutes a non- legislative strategic decision about use of the railway that is based on current and future consultation and train timetabling work. The Secretary of State normally has a considerable influence on network usage strategy, not least because he specifies passenger franchises. Where such strategy relates to Crossrail services, clauses 23 and 24 change the balance of decision making as between the Secretary of State and the ORR. Simply because this balance changes, it is not considered necessary to subject utilisation strategy to Parliamentary scrutiny by placing the directions before it. 32. There are other powers of direction contained in the railway clauses, but they, even more so than in clause 24, relate to particular executive-style decisions made in a specific or localised context. Many of these are, for example, comparable to the ORR’s existing powers to require entry into an access contract as contained in the Railways Act 1993 (see section 17 of the Act). The Department therefore considers those in this section of the Bill to be non-legislative directions and hence has not elaborated on this for the purposes of this memorandum.
Clause 27(7) – Power to make provision in relation to the carrying out by the Office of Rail Regulation (henceforth “ORR”) of functions relating to the amendment of rail access contracts; form and procedure – Regulations subject to negative resolution 33. Clause 27 operates in respect of access contracts entered into prior to the enactment of the Bill that may affect the operation of principal Crossrail passenger services. “Access contracts” are contracts conferring permission to use a railway facility, e.g. contracts between Network Rail and train operators allowing the latter to run trains for a corresponding fee. Clause 27(2) provides that once the Secretary of State has specified minimum operating levels for the purpose of defining a “principal Crossrail passenger service”, the Office of Rail Regulation (“ORR”) must identify contracts that would prejudice the principal Crossrail passenger services from their specified start of operation. 34. Under clause 27, where the Secretary of State objects to a prejudicial (conflicting) access contract, the ORR may require a variation to that contract, or may declare it void in whole or in part. When doing so, the ORR may give directions requiring the payment of compensation. 35. Clause 27(7) provides a power for the Secretary of State by regulations by statutory instrument to make provision in relation to the carrying out by the ORR of its functions of interfering with access contracts and its discretion to require compensation to be paid. To understand better the form of any likely regulations, indicative reference is made to paragraphs 3 to 6 of Schedule 4 to the Railways Act 1993 (c. 43). Paragraphs 3 to 6 of that Schedule deal with notifying and informing both directly affected persons, and other interested persons, about the imposition of a contract. They also make provision for the ORR to hear representations, in respect of the ORR’s decision-making functions and concerning the effects of directions on those affected and interested persons. 36. The regulation making power under clause 27 is essentially procedural and there is an explicit indication on the face of the Bill of the general nature they might follow. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 75
The Department therefore considers that it is unnecessary to put this detail in the Bill itself and that the negative resolution procedure is an appropriate mechanism for scrutiny of any resultant regulations.
Clause 28(8) – Power to make provision about the consideration of access contracts; form and procedure – Regulations subject to negative resolution 37. Clause 28(8) is relevant where a would-be Crossrail passenger service provider applies to the ORR for a direction requiring a railway facility owner to give it contractual rights to run passenger services (otherwise than through the central tunnel). It was conceived as being a way of ensuring that a Crossrail passenger service, consistent with that which underpins the social and financial case for Crossrail, can operate an integrated service pattern across the route. 38. Schedule 4 to the Railways Act 1993 sets out the procedure by which the ORR considers, under existing legislation, whether to compel the owner of a rail asset to offer an access contract to an applicant (see the comments in paragraph 35 above). Under clause 28, the ORR’s functions of (potentially) directing the entry into of access contracts will be changed in the circumstances identified in clause 28(1). In such circumstances, procedures broadly based on – but not exactly corresponding to – those set out in Schedule 4 would be desirable. 39. Clause 28(8) therefore allows for the Secretary of State to make regulations governing the procedures which the ORR would follow in respect of someone seeking an access contract by compulsion. The terms of such regulations would be relatively detailed and because they will be procedural and broadly precedented by existing mechanisms the Department considers that they are appropriate matters to be addressed in secondary legislation subject to negative resolution.
Clause 30(1), 30(2) – Power to make provision about the disapplication of sections 18 and 22 of the Railways Act to infrastructure; form and procedure – Order laid before Parliament after making 40. Clauses 30(1) and (2) allow the Secretary of State, by order, to disapply provisions in the Railways Act 1993 which would otherwise require access contracts to be pre- approved by the Office of Rail Regulation (“ORR”) in relation to, or associated with, the principal Crossrail tunnel. The purpose of such provisions is to prevent the ORR coming to a different strategic view on the desirability of a service pattern at variance with the Secretary of State’s views and at variance with a service which underpins the social and financial case for Crossrail. 41. The parameters of a principal Crossrail passenger service are currently being considered (albeit in the different context of an ORR consultation) and much timetabling work is being undertaken – as explained further below. However, the exact parameters of and parties to of an access contract that would “support” principal Crossrail passenger services are subject to further work and consideration. The Secretary of State cannot, therefore, specify in the Bill what access contracts or classes of access contracts should go without ORR pre-approval – in other words, delegation of the power to make this specification is necessary. 42. It is proper to note that under section 20 of the Railways Act 1993, certain facility owners (such as owners of metro systems) are exempted from the requirement to have their access contracts pre-approved by the ORR. Such exemptions are made under order subject to the negative resolution procedure. However, such exemptions are not truly comparable. They relate to the ongoing status of 76 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
infrastructure, rather than to an executive-style decision about the value of a particular (or particular class of) access contract. 43. During Public Bill Committee in the House of Commons the purpose of this clause was not opposed, but the government undertook to and did bring forward an additional obligation on the Secretary of State to consult such persons he thought appropriate. Given the level of consultation involved and given that the power is intended to deliver a tenet of the enabling Crossrail legislation the Department believes that no additional Parliamentary procedure is required. 44. The quantum and pattern of Crossrail services necessary to support the social and financial case for Crossrail has been defined in some detail. This information has been used to produce illustrative train timetables, which take account of other services on existing networks, and which have been tested by means of computer modelling, with further refinement continuing. The House of Commons Select Committee heard extensive evidence about the feasibility and impact of this proposed level of Crossrail services, and it is likely that petitioners will seek to raise the matter in the House of Lords Select Committee.
Clause 33(6) – Power to make provision about the consideration of access contracts; form and procedure – Regulations subject to negative resolution 45. Clause 33(2) gives the ORR the power to give directions requiring access contracts concerning (in effect) the overground element of the Crossrail route to be varied if this is necessary to facilitate principal Crossrail passenger services as required by the Secretary of State. 46. As is the case with equivalent functions of the ORR under clauses 27 and 28, the Secretary of State may, by virtue of clause 33(6), make provision in relation to the carrying out by the ORR of its functions. 47. For reasons previously advanced (because these regulations will contain procedure broadly corresponding to a precedent), the Department believes that such regulations are appropriate to be made by secondary legislation subject to the negative resolution procedure.
Clause 36(1) and 36(3) – Power to amend or revoke franchising and access exemptions; form and procedure – Order subject to negative resolution 48. Clause 36 allows the Secretary of State, by means of an order by statutory instrument subject to negative resolution, to restrict or amend certain exemptions from regulation relating to London Regional Transport (Transport for London) infrastructure and the Heathrow Spur (a relatively short rail link running from Heathrow to the Great Western Main Line). This power only arises for the purposes of, or for purposes including, facilitating Crossrail services. 49. The question of regulation of Crossrail infrastructure has been the subject of discussion with Transport for London (as co-sponsor of the project) and with BAA (owner of the Spur who petitioned against the Bill on the grounds that they were specifically affected by it) in the context of progressing the hybrid Bill. Whether or not such powers can be used may be the subject of further negotiation in the context of consideration of the Bill by the House of Lords Select Committee to which it is committed. In any event, the powers under clause 36(1) and (3) could only be executed for limited purposes and following consultation. The negative resolution procedure that is provided corresponds to that which would be required under a conventional decision to exempt a rail facility from an aspect of regulation. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 77
50. The power under clause 36(3) is an adjunct to the power under clause 36(1). Again, this issue remains contentious pending negotiations in advance of the House of Lords Select Committee where, if no resolution can be reached, BAA would have the opportunity to request that Committee to make a ruling on this topic. The Department would expect not to have to use this power because, at a level of principle, BAA is supportive of Crossrail services running to Heathrow.
Clause 39(1) – Power designate persons as protected railway companies; form and procedure – Order subject to negative resolution 51. Clause 39 allows the Secretary of State by order to provide that a company be treated as a protected railway company, which engages the Railway Administration Order regime as contained in sections 59 to 65 of the Railways Act 1993. Such a company must be the manager of or have rights relating to a railway facility that is contained in or associated with the Crossrail tunnel. 52. In respect of a body designated as a “protected railway company”, the Secretary of State may apply to a court for a Railway Administration Order in the event of the insolvency or winding up of the body. The purposes of Railway Administration Orders are to secure the transfer to another company of an undertaking so that relevant railway operations may be continued, and to secure the continuation of such railway operations pending a transfer. 53. It is important to note that the power of designation can only happen with the consent of the company concerned. Because the identity or nature of the Crossrail operator is necessarily undetermined at this time, the power under clause 39 must be exercised by secondary legislation. As the making of the order will be by consent in the context of determining the ultimate train operator and as it engages an existing statutory regime, the Department considers that the negative resolution procedure is the appropriate level of Parliamentary scrutiny.
Clause 43(1), 43(2), 43(3) – Power to transfer statutory powers and duties from a railway operator; form and procedure – by order 54. Clause 43(1) provides for the Secretary of State, if he requires any land from a railway operator for the purposes of Crossrail and on that land there are works authorised by statute, to transfer to him or the nominated undertaker any statutory power or duty relating to those works that was previously exercisable by the railway operator. This clause simply allows any statutory power or duties to be transferred with the land acquired. Clause 43(2) makes provision for the onward transfer of powers or duties. In a corresponding way, clause 43(3) is relevant if a railway operator acquires any land from the Secretary of State on which there are Crossrail works. In such circumstances, the Secretary of State may - with the consent of the railway operator concerned - by order transfer any duty under the Bill relating to those works. One example of the use of this power is in relation to the portals of the principal Crossrail tunnel. At these locations the nominated undertaker will necessarily undertake works on railway land and after completion land will be returned to the railway operator. 55. The powers are intended to marry land ownership with statutory duties and powers appropriately. Because the question of land ownership during and after Crossrail construction is not settled, these powers are necessarily delegated to allow for flexibility. Since the transfer of any duty to a third party requires consent, and since the nature of the power is as outlined above, the Department considers that it should be exercised as an executive order not subject to Parliamentary procedure. This was the position for which the Channel Tunnel Rail Link Act 1996 provided. 78 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Clause 48(1), (6) – Power to specify nominated undertaker; form and procedure – Order under 48(1) not subject to Parliamentary procedure; Order under 48(6) subject to negative resolution. 56. Clause 48(1) provides for the Secretary of State to nominate, by means of an order, one or more nominated undertakers for the purposes of the Bill. Such orders will reflect discussions (and probably agreements) between the Secretary of State and the Mayor - the co-sponsors of the Crossrail project - about project delivery. Heads of Terms between the Secretary of State for Transport and Transport for London (TfL) were published on 26 November 2007. These indicate that the nominated undertaker is for most purposes intended to be Cross London Rail Links Ltd, a company that from Royal Assent will be wholly owned by TfL. The Government made clear during Public Bill Committee that it is committed to transparency about the way the project is to be implemented. It intends to publish further information about delivery of the project, for example as detailed agreements are signed pursuant to the Heads of Terms (subject to protecting commercial confidentiality). It is expected therefore that Parliament will be given a good understanding about how the nomination provisions will be exercised. 57. In the absence of a named nominated undertaker for any provision of the Bill, the Secretary of State is deemed to be the nominated undertaker for the purposes of that provision. Where this is the case, clause 48(6) provides a power exercisable by means of an order to modify the Crossrail Act where this appears necessary or expedient. This would enable the Secretary of State to modify the provisions in situations such as where the functions of nominated undertaker are vested in him but he also has the function of determining disputes between the nominated undertaker and other parties. 58. Exceptionally, the Department believe that the negative resolution procedure is appropriate for such a provision because the context in which the ability to use this power could arise is very significantly curtailed. Our proposed level of Parliamentary scrutiny is what was provided for in relation to similar provisions in the Channel Tunnel Rail Link Act 1996 and the Channel Tunnel Act 1987.
Clause 60(1) – Power to devolve functions to the Mayor; form and procedure – Order to be laid before Parliament after making 59. Clause 60(1) allows the Secretary of State, by means of an order, to devolve certain provisions of the Bill to the Greater London Authority, Transport for London or to the Greater London Authority and Transport for London. This power is necessary to allow the flexibility for the Crossrail project to be taken forward by these bodies, should the Secretary of State consider this to be appropriate. 60. As is acknowledged by clause 60(2), the Secretary of State and the Mayor may (and probably will) enter into an agreement as to how the project will be devolved. The Department sees this as a policy decision – linked to funding and political decisions about accountability. The decision should be made transparently but by executive bodies. In this vein, as mentioned above, a copy of the Heads of Terms between the Secretary of State and TfL was made available during the course of the House of Commons Public Bill Committee proceedings.
Clause 63(5) – Power to make rules as to arbitration; form and procedure – Rules not subject to Parliamentary procedure 61. Clause 63 sets out how disputes under the Bill will be dealt with unless otherwise provided for. Disputes will be settled by a single arbitrator agreed by both parties. If DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 79
no agreement can be reached on the identity of that single arbitrator, either party may, having informed the other, ask the President of the Institution of Civil Engineers to appoint an arbitrator. 62. Clause 63(1) is well precedented in Private Acts for railways, and can also be found as model clause 45 in the model clauses in Schedule 1 to the Transport and Works (Model Clauses for Railways and Tramways) Order 2006. Clause 63(5) allows the Secretary of State for Transport, and the Secretary of State for Communities and Local Government, acting jointly, to issue procedural rules made under statutory instrument governing arbitration. This provision is simply aimed at giving the Secretaries of State the flexibility of issuing procedural rules should they deem it necessary. 63. These provisions, and the associated scrutiny, mirrors section 43 of the Channel Tunnel Rail Link Act 1996.
Schedule 6, paragraph 13 – Power to enable the acquisition of rights and easements by third parties; form and procedure – Orders not subject to Parliamentary procedure 64. Section 6(1) of the Bill allows the Secretary of State to acquire compulsorily land shown within the relevant Bill limits which is required for Crossrail. Paragraph 13 of Schedule 6 allows the Secretary of State, by order, to provide that new rights may be acquired by such persons are specified in the order. However, those rights are only the rights to create and acquire such easements or other rights over land as may be required for or in connection with Crossrail works. 65. Some of the land which has been identified as land to be acquired or used in respect of the project is intended to be used for the purposes of diverting statutory undertakers’ apparatus. For apparatus placed underground, it would be common for this to be done by the acquisition of easements by the utility concerned, rather than by acquiring the outright. In other cases rights of way will be required for the purpose of maintaining works to be constructed on the existing rail network. It is Network Rail, the owner for the network, which needs the benefit of these rights rather than the Secretary of State. The purpose of this provision is to ensure that any such rights acquired can operate properly as legal easements by ensuring that the appropriate body acquires them. It is not a power to extend or alter the nature of the rights to be acquired but essentially an administrative provision to ensure the proper working of the land acquisition powers of the Bill. Given the limited nature and purpose of this power no Parliamentary scrutiny is necessary. A similar provision was included in the Channel Tunnel Rail Link Act 1996 (but which given the different circumstances of that project related only to the relocation of apparatus and did not address obtaining access to works on the rail network).
Schedule 7, paragraph 1 – Power to specify qualifying authority: form and procedure – Order subject to negative resolution (as regards the power under 1(3) and 1(4)) 66. Schedule 7, paragraph 1 requires the Secretary of State, by means of on order made by statutory instrument (not subject to Parliamentary procedure) to specify – in effect, name – “qualifying authorities” for the purposes of Schedule 7. Schedule 7 provides two sets of planning conditions as alternatives. The shorter of the two sets of conditions applies to developments within the areas of non-qualifying authorities. A longer set applies to development within the areas of qualifying authorities and thus these authorities have extended powers. 80 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
67. It is intended that the qualifying authorities will be local planning authorities which, by the time the Select Committee in the House of Lords reports, have given the Secretary of State various undertakings about handling of planning applications (intended to be included in a “Planning Memorandum” – or statement of agreed decisions about what will be acceptable for Crossrail in planning terms – which is being developed with local authorities). A similar arrangement was adopted for the planning aspects of the Channel Tunnel Rail Link Act 1996. Reference to paragraph 5c of this memorandum above may further assist in understanding the planning arrangements. 68. This is delegated legislation only in the sense of an obligation to list those with whom the Select Committee processes have yielded satisfactory results and where the authorities in question have decided to become qualifying authorities. As it is merely a function of putting matters formally on the record after Parliamentary scrutiny, no further scrutiny is required. The powers in this regard are identical to those contained in paragraph 1 of Schedule 6 to the Channel Tunnel Rail Link Act 1996 . 69. The powers under 1(3) and 1(4) are also identical to those in paragraphs 1(3) and 1(4) of Schedule 6 to the Channel Tunnel Rail Link Act 1996. Subparagraph (3) enables the Secretary of State by order made by statutory instrument to provide that an authority shall cease to be a qualifying authority. Subparagraph (4) effectively provides for the reverse - that is to say, it enables the Secretary of State by order made by statutory instrument to provide that a non-qualifying authority shall become a qualifying authority where there has been a significant change in circumstances. 70. These powers might be used if, following the completion of major works, an authority asked to change its status because it felt that the increased controls that had been conferred on it as a qualifying authority were not cost effective for the remaining minor works. The powers might also be used if a qualifying authority persistently failed to comply with the undertakings that it had given in relation to the handling of applications. Alternatively, an authority that had not been a relevant planning authority at the time that the Bill was reported from the Select Committee in the House of Lords, but became on subsequently, might be designated a qualifying authority at a later date where there has been a significant change of circumstances. This power was used in relation to the Channel Tunnel Rail Link to deal with changes to the structure of local government in Kent after the 1996 Act was enacted. 71. Paragraph 2 of Schedule 7 allows such orders to make transitional provisions if a request for approval under Schedule 7 is still under consideration at the time when a local authority’s status is changed. To allow the Secretary of State to give some reassurance to any body that may be appointed as nominated undertaker, the Secretary of State has also been given the power to fetter his discretion. This would enable him to include requirements to take into account potential disruption to the construction programme, for example. This is equivalent provision to paragraph 2 of Schedule 6 to the Channel Tunnel Rail Link Act 1996 72. Paragraph 1(5) requires the Secretary of State to consult the nominated undertaker and the authority concerned before making an order under subparagraph (3) or (4). As this would involve a change in designation after the Parliamentary scrutiny by the Select Committee had been completed, orders made under subparagraph (3) or (4) would be subject to the negative resolution procedure, to provide an appropriate degree of Parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 81
Schedule 7: Paragraph 28(1) – Power to require a planning authority to refer any request for approval under Part 2 or 3 to Ministers; form and procedure – directions not subject to Parliamentary procedure 73. Paragraph 28 of Schedule 7 enables the Secretaries of State for Transport and the Secretary of State for Communities and Local Government (‘the appropriate Ministers’ as defined in paragraph 37(2)) to give directions to a planning authority requiring it to refer to them any request for approval under Part 2 or 3 of the Schedule. Such Directions may relate to a specific request or to requests of a specific description and may cancel or vary specific requests. 74. This paragraph is identical to paragraph 30 of Schedule 6 to the Channel Tunnel Rail Link Act 1996 which was scrutinised by the Delegated Powers of Scrutiny Committee. This in turn followed the precedent set by paragraph 19 of Schedule 3 to the Channel Tunnel Act 1987. It was thought that there might be particular cases where it would be more appropriate for the request for approval under Schedule 7 to be determined at Ministerial level rather than by the relevant planning authority. This paragraph gives the appropriate Ministers the flexibility to give directions in such cases. 75. This power is analogous to the one in section 77 of the Town and Country Planning Act 1990 with respect to applications for planning permission, often referred to as ‘call in’. No Parliamentary scrutiny is considered necessary. Under the Bill, the Secretaries of State for Transport and the Secretary of State for Communities and Local Government acting jointly would, in any event, have the power to determine any appeals relating to a request for approval under Part 2 or 3 of the Schedule. Therefore, Parliament has already accepted that they are the appropriate authority to decide such matters.
Schedule 7: Paragraph 29(1) – Power to restrict a planning authority’s powers in relation to a request for approval under Part 2 or 3; form and procedure – directions not subject to Parliamentary procedure Paragraph 29 of Schedule 7 enables the Secretaries of State for Transport and the Secretary of State for Communities and Local Government (‘the appropriate Ministers’ as defined in paragraph 37(2)) to give directions to a planning authority which restrict its powers in relation to the granting of approval of requests made under Part 2 or 3 of the Schedule. Such Directions may relate to a specific approval or to approvals of a specific description, may relate to a specific period or be without a time limit and may cancel or vary specific requests. This paragraph is virtually identical to paragraph 31 of Schedule 6 to the Channel Tunnel Rail Link Act 1996. This in turn followed the precedent set by paragraph 20 of Schedule 3 to the Channel Tunnel Act 1987. This provision is similar to that found in article 14 of the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419), made under section 74(1)(a) of the Town and Country Planning Act 1990. Its use in practice is generally coupled with the possible exercise of powers of call-in similar to those provided in paragraph 28 of Schedule 7 to the Bill - for example, the directions may require an application in a given set of circumstances not to be granted until relevant information has been supplied to the Secretary of State to enable him to decide whether to call the application in. No Parliamentary scrutiny is considered necessary. Under the Bill, the Secretaries of State for Transport and the Secretary of State for Communities and Local Government acting jointly would, in any event, have the power to determine any appeals relating to a request 82 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE for approval under Part 2 or 3 of the Schedule. Therefore, Parliament has already accepted that they are the appropriate authority on such matters.
Schedule 7: Paragraph 30(1) – Power to make provision for the forms of notice of appeal against a decision of a planning authority;
Paragraph 30(5) - Power to make provision for the extension of the period for payments by cheque;
Paragraph 34 – Power to make provision about appeals under paragraph 30; form and procedure for all such powers – Regulations subject to negative resolution 76. Paragraphs 30 to 35 of Schedule 7 set out a mechanism for the nominated undertaker (being the person appointed to construct or maintain one or more aspects of Crossrail) to appeal decisions by local planning authorities under the Schedule (i.e. decisions in respect of such planning issues for which the local planning authority has retained responsibilities). Appeals are made to the Secretaries of State for Transport and Communities and Local Government acting jointly. These paragraphs follow very closely corresponding provision in the Channel Tunnel Rail Link Act 1996. 77. Paragraph 30(1) - which should be read in conjunction with paragraph 30(9) - provides a power for “the appropriate Ministers” (being the above-mentioned Secretaries of State) to prescribe the form which such notices of appeal must take. 78. Similarly, paragraph 30(5) provides a limited power to extend the period for consideration of a request for planning approval where payment has been provided by cheque. Such amendment of the primary legislation by statutory instrument would only be to extend the time period in this limited circumstance by a number of days. 79. Finally, in this area, paragraph 34(2) provides that the appropriate ministers may by regulations make such provision as they think fit about procedure in relation to appeals under paragraph 30. This power is equivalent to the power to make procedural regulations for written representation procedures in section 323 of the Town and Country Planning Act 1990, and to make rules for public inquiries and hearings in section 9 of the Tribunals and Inquiries Act 1992 (such regulations/rules have been made). They are subject to the negative resolution procedure. 80. The provisions in paragraphs 30(1), 30(9), 30(5) and 34 (2) are equivalent to those in paragraphs 32(1), 32(7), 32 (5) and 36(2) of Schedule 6 to the Channel Tunnel Rail Link Act 1996 respectively. As these powers relate purely to procedural matters, paragraph 35(2) provides for them to be exercised by the making of regulations in a statutory instrument subject to the negative resolution procedure (as was the case for the equivalent powers in the 1996 Act).
Schedule 7, paragraph 36 – Power to amend Schedule 7 to accommodate the Olympic Delivery Authority as a planning authority; form and procedure – Order subject to negative resolution. 81. Schedule 7 allows the Secretary of State, by means of an order, to name “qualifying authorities” for the purposes of Schedule 7. These qualifying authorities will be local planning authorities. Parts 2 and 3 of Schedule 7 confer on local planning authorities different levels of control on Crossrail development depending on whether or not they have been designated a qualifying authority. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 83
82. Section 149 of the Local Government, Planning and Land Act 1980 (“the 1980 Act”) provides a mechanism for an urban development corporation (“UDC”) to be the local planning authority for the whole of any portion of its area in place of any authority which would otherwise be the local planning authority. The mechanism under the 1980 Act in respect of UDCs is not directly relevant to Crossrail – as no such bodies now exist or are likely to come into existence. 83. However, the London Olympic and Paralympic Games Act 2006 makes use of this statutory mechanism (i.e. section 149 of the 1980 Act) for altering the identity of the local planning authority. Specifically, section 5 of the 2006 Act provides for section 149 to apply in relation to the Olympic Delivery Authority (“ODA”) as it applies in relation to an UDC. The area for which the ODA would become the local planning authority would be determined by order under section 149(1) (see section 5(2)(b) of the 2006 Act). Such an Order - covering the Olympic Park area - has been made (S.I. 2006/2185). 84. Crossrail works are expected to take place within the area specified in this Order. This raises the prospect that the power in paragraph 36 of Schedule 7 will be required in order to accommodate the ODA as a local planning authority for the purposes of the reserved matters set out in Schedule 7. Discussions are, however, continuing with the ODA and the relevant local planning authority (the London Borough of Newham) as to whether the ODA will wish to exercise control on any of these reserved matters, and if so whether they intend to negotiate an undertaking with the Secretary of State with respect to the handling of planning matters arising under Schedule 7 (please refer to paragraph 1(1)(a) of Schedule 7). 85. As the exercise of the power in paragraph 36 has consequences both for the ODA and the local planning authority concerned the level of Parliamentary scrutiny proposed is the same as for the exercise of the powers in sections 1(3) and 1(4) of Schedule 7.
Schedule 13, paragraph 45 – Power to make further provision in relation to transfer schemes; form and procedure – Regulations subject to negative resolution by the House of Commons 86. Schedule 12 to the Bill enables the Secretary of State to make a scheme to transfer property, rights or liabilities from Cross London Rail Links Ltd (the publicly owned company assisting in the promotion of the project) or the Secretary of State, or, with their consent, the Greater London Authority, Transport for London, the London Development Agency or any of their subsidiaries. This means that assets and obligations can be transferred as a matter of law under statute rather than by a lengthy and complicated series of contracts requiring the input of various third parties. The power to make a transfer scheme will assist in ensuring that assets and liabilities are held by the right parties, so helping the process of project delivery. 87. Where assets and liabilities are transferred between public bodies to produce the optimal project structure, it would be an unnecessary administrative burden and of no net value for the tax regime to create charges – and to produce notional gains and losses – within the public sector. Such changes in tax treatment could inhibit the adoption of the most advantageous project structure. 88. Schedule 13 therefore contains detailed and technical provision intended to avoid the unnecessary flow of tax liabilities and benefits. However, the major construction works for Crossrail will not start until 2010, the period during which transfer schemes under Schedule 12 are most likely to be made is 2010 to 2017. This means that there is scope for general tax rules to change over time, which could impact on 84 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
the effectiveness of these provisions. The government has therefore recognised a need for there to be provision for “future-proofing” the function of this Schedule. 89. Paragraph 45 of Schedule 13 therefore allows the Treasury, by regulations, to make provision for varying the way in which certain, defined or “relevant” taxes will have effect from time to time in relation to Crossrail transfer schemes. Such regulations would be made by statutory instrument subject to annulment in pursuance of a resolution of the House of Commons. 90. As a power to modify the application of primary legislation, this form of scrutiny is an exception to the general rule. However, because it is a reserve power for an understood and uncontroversial purpose in respect of identified taxes, the Department suggests that this is the appropriate level of scrutiny.
Schedule 15, paragraph 7(2) - Power to give directions with respect to the carrying out of any function under the Schedule; form and procedure - directions not made by statutory instrument and not subject to Parliamentary procedure 91. Schedule 15 details the bespoke arrangements that have to be made for the removal and reinterment or cremation of any human remains or for the removal, keeping, disposal and recording of any monuments found in any land comprised in a burial ground used for the purpose of constructing the Crossrail works. 92. Paragraph 7(2) of the Schedule allows the Secretary of State to give such directions as he thinks fit with respect to the carrying out of any function under this Schedule. 93. The provisions of this Schedule are identical to the equivalent Schedule (Schedule 11) in the Channel Tunnel Rail Link Act 1996. No directions were issued under that Schedule. 94. The arrangements set out in this Schedule are already quite detailed. However circumstances may arise in which further detail is needed - for example to specify in which local newspapers the nominated undertaker shall publish notices regarding remains or monuments (paragraph 1), or where a licensee may reinter remains (paragraph 4). It was therefore thought appropriate that the Secretary of State should have the flexibility of being able to give such directions. 95. As such directions can only be made in relations to matters of administrative detail it was not considered appropriate to make provision for any Parliamentary procedure.
Schedule 16, paragraph 2 - power to specify conditions of the deemed planning permission in relation to reinstatement of discontinued facilities: directions not made by statutory instrument, not subject to Parliamentary procedure 96. Schedule 16 makes provision concerning the reinstatement (within Bill limits) of facilities which have been discontinued as a consequence of Crossrail construction, and the conditioning by the Secretary of State of the deemed planning permission for such reinstatement provided by the Bill8 . Because these reinstatements are indirect consequences, rather than direct elements, of construction, specific powers to re-site such facilities are needed. It is envisaged that these powers will be used in a limited number of cases - for example a concrete batching plant at Royal Oak, and a travellers’ site in Tower Hamlets. 97. The facilities likely to be reinstated are unlikely to be railway development. They are therefore likely to require a different set of conditions than provided for under the
8 Paragraph 5c of this memorandum summarises the planning arrangements provided by this Bill. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 85
normal regime for reserved matters in relation to Crossrail works set out in Parts 2 and 3 of Schedule 7 of the Bill. Paragraph 2 of Schedule 16 provides the requisite powers to attach conditions. It should be noted that the Secretary of State’s power to disapply or modify Parts 2 or 3 of Schedule 7 can only be exercised in consequence of directions given to impose new conditions. 98. These conditions will be entirely site specific details. It would be most unusual to provide for Parliament to have scrutiny of planning conditions. Department for Transport January 2008
APPENDIX 3: SALE OF STUDENT LOANS BILL
Memorandum by the Department for Innovation, Universities and Skills
Introduction 1. The Sale of Student Loans Bill enables a programme of sales of the Government’s rights and responsibilities relating to income-contingent repayment student loans. It is expected to raise £6 billion in receipts by the end of financial year 2008-09, and will represent a genuine transfer of risk away from the public sector. The Government will retain the power to set terms and conditions for all loans. 2. The Sale of Student Loans Bill does not include any new regulation-making powers. It does, however, include two clauses that make minor changes to existing powers in s. 22 Teaching and Higher Education Act 1998 and which will affect the way in which the Secretary of State for Innovation, Universities and Skills can make regulations regarding student loans. The clauses in question are Clause 4 (Loan regulations) and Clause 5 (Repayment).
Territorial Extent 3. The Bill extends to England and Wales only. The Bill confers the right to conduct loan sales on the Welsh Ministers. It does not devolve further powers or amend other delegated legislation making powers held by Welsh Ministers.
Clause 4 (Loan Regulations) 4. Clause 4(2) permits the Secretary of State to amend loan regulations so that borrowers repayments (other than those made through employers) made through a third party can be payable directly to the loan purchaser or his agent. This provision allows the Student Loans Company (SLC) and others to collect additional repayments from borrowers in a capacity as the agent of the purchaser. This is required so that, for example, borrowers of sold loans can make additional repayments to those collected through the tax system. 5. Clause 4(3) allows regulations to provide for purchasers to have the same rights as the Secretary of State in terms of requiring borrowers to reimburse them for expenses caused by a borrower’s failure to make a payment that is due. Without this provision, there would be no way of ensuring that such monies would be payable to the purchaser. 86 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
6. Clause 4(4) and 4(5) enables the Government to apply any future change in loan regulations to sold loans as well as those which are still owned by the Government and includes loans which are taken out before such changes take effect, where the change would be retrospective. This is to ensure that all borrowers can be treated equally, for example if the repayment threshold (the level of annual income at which point borrowers are required to start making repayments) were to be altered by the Government.
Clause 5 (Repayment) 7. Clause 5(1) permits the amendment of regulations so that repayments and any other money due from a borrower in relation to a sold loan can be payable to the purchaser. This provision is a central part of the Bill – without it, borrowers could not be obliged to make repayments to loan purchasers. In this case student loans would clearly not be a saleable asset. 8. At present Her Majesty’s Revenues and Customs (HMRC) collects the majority of repayments through the tax system but the SLC also plays a role in collecting repayments from some borrowers – for example, those who move overseas and those who wish to make additional repayments. Clause 5(2) allows for the amendment of regulations so that payment through the taxation system or through an agent of the purchaser (presently the SLC) can continue with respect to sold loans. 9. Although the provisions of clause 5(3) do not, in fact, amend existing delegated legislation powers, they will, for payments due in relation to sold loans, require references to the Secretary of State in the loan regulations to be read as references to the loan purchaser and require payment to be made to the purchaser (note- unless alternative arrangement is made in the transfer arrangements themselves- see clause 5(4).
Scrutiny 10. The wider regulations permitted by these changes will be subject to the scrutiny applying to the existing legislation under which they will be made. It is not proposed that any additional, formal type of parliamentary scrutiny is applied to any of the powers for regulatory reform outlined above. The Government believes these amended powers are purely consequential – their purpose is to grant loan purchasers the same rights with regard to sold loans as the Secretary of State has with regard to retained loans, and to ensure that all borrowers are treated equally regardless of whether their loan is sold or not. Department for Innovation, Universities and Skills January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 87
APPENDIX 4: CHILD MAINTENANCE AND OTHER PAYMENTS BILL — GOVERNMENT AMENDMENTS
Supplementary Memorandum by the Department for Work and Pensions
Introduction 1. This supplementary memorandum sets out delegated powers conferred by Government amendments made to the Child Maintenance and Other Payments Bill. It explains in each case the purpose of the power; the reason why it is left to delegated legislation; whether the power is subject to Parliamentary scrutiny and, if so, what procedure applies; and the reason for that procedure. 2. A previous memorandum on the Child Maintenance and Other Payments Bill was submitted to the Committee on the 5th of June 2007, and again on 4th of December 2007. The Committee’s report was published on 13th of December 2007 (Third Report of the 2007-2008 session).
Parliamentary Scrutiny 3. The Committee should note that apart from the order-making power in amendment g197 (Disclosure of information relating to family proceedings) which is subject to negative procedure, the new delegated powers conferred by the amendments to the Bill are subject to affirmative procedure. 4. Reasons for the procedures chosen are set out below.
Analysis of delegated powers by Government amendment
Part 1 – The Child Maintenance and Enforcement Commission
Amendment g68 – Review of the status of the Commission 5. A series of Government amendments have been tabled to Schedule 1 of the Child Maintenance and Other Payments Bill which have the effect of giving the Child Maintenance and Enforcement Commission Crown status. Amendment g68 inserts a new clause into the Bill requiring the Secretary of State to review the status of the Commission as a Crown body. This review must be conducted as soon as reasonably practicable after the end of the initial three-year period after the Commission has come into existence. The report of the review must be laid before Parliament. 6. Subsection (6) of the inserted clause allows the Secretary of State to make an order removing the Crown status of the Commission following a review. 7. Subsection (7)(a) provides that an order made under subsection (6) may make such amendments to Schedule 1 to the Child Maintenance and Other Payments Bill as are necessary or expedient as a result of the Commission ceasing to be a Crown body. This power is needed to ensure that the legislation remains coherent following a change to non-crown status. For example, references to the terms and conditions of staff appointments being made ‘with the approval of the Minister for the Civil Service’ would need to be removed, as staff would no longer be civil servants. 8. Subsection (7)(b) provides that an order made under subsection (6) may provide for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) (“TUPE”) to apply as if the Commission ceasing to be a Crown body 88 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
were a transfer of an undertaking or business. This would be used to ensure that the Commission’s staff were accorded full protection in line with TUPE when they moved from being civil servants to public servants. 9. Under subsection (7)(b), an order under subsection (6) may provide for TUPE Regulations to be subject to certain modifications. Modifications are likely to be necessary as TUPE regulations are not drafted with public sector reorganisations in mind and without modification of the regulations, staff may not be fully protected. 10. Government amendments to clause 52 provide that any order made under the powers set out in amendment g68 will be subject to affirmative resolution. A change in the status of the Commission from a Crown body would be a significant change, and it is appropriate that Parliament should be able to fully scrutinise both that decision and the consequential amendments that flow from it.
Part 3 Child Support etc.
Amendments g111, g112, g117, g118, g120-125, g127-133, g214 - Clause 21 – Orders for deductions from regular accounts 11. Amendment g117 inserts a new subsection (3A) into new section 32A which is to be inserted into the 1991 Act by clause 21. Section 32A(3A)(a) provides a power to prescribe in regulations the types of account in respect of which a regular deduction order cannot be made. It is intended that accounts such as trust accounts will not be accessible through a regular deduction order. It is necessary to use regulations to exclude certain types of account to ensure that the provisions around regular deduction orders are able to respond to new financial products and to circumstances which arise, for instance, where it becomes apparent that some non-resident parents are using excepted accounts in an unexpected manner to avoid deduction orders. 12. Section 32A(3A)(b) allows regular deduction orders to be made in respect of joint accounts, but only if regulations have first been made by the Secretary of State allowing this. Regulations must therefore be made providing for new section 32A to apply to joint bank accounts. Section 32A(3A)(b) further provides that regular deduction orders can only be made in respect of joint bank accounts if they are not of the types precluded from having orders made against them in regulations made under section 32A(3A)(a). The kinds of accounts prescribed in regulations under section 32A(3A)(a) will therefore be excluded from having regular deduction orders made against them whether they are individual or joint accounts. 13. Amendment g122 inserts a new section 32AA (Orders under section 32A: joint accounts) into clause 21. New section 32AA(3) provides for the Secretary of State to prescribe in regulations matters which the Commission must take into account when determining the amounts which are to be deducted from a particular joint account. This is a safeguard to ensure the Commission considers certain matters when making an order. It is intended that such matters will include the intention of the parties at the time the account was opened and the intended use of the funds in the account. 14. Amendment g124 makes changes to new section 32B(2)(h), which is to be inserted by clause 21. The amended section allows the Secretary of State to make regulations regarding the notifications to be given to the liable person, and any joint account holders, as to the amounts deducted and amounts paid under an order. 15. Amendment g127 makes changes to new section 32B(2)(k), which is to be inserted by clause 21. The amended section 32B(2)(k) allows for regulations to set out the circumstances in which the deposit-taker, the liable person or any joint account DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 89
holder may apply to the Commission for a review of the regular deduction order. Regulations will specify that such persons be able to apply to the Commission for a review of the order. For example, it is envisaged that a non-resident parent will be able to request a review of an order to reflect a change in their circumstances, a change in the maintenance calculation, or if they are suffering hardship. 16. Amendment g130 makes changes to new section 32B(4) (Regulations about orders under section 32A: appeals), which is to be inserted by clause 21. The amended section obliges the Secretary of State to make regulations providing a right of appeal to any person affected to a court against (a) the making of a regular deduction order or (b) a decision made by the Commission regarding an application for a review of an order made under regulations pursuant to section 32B(2)(k). Amendment g131 changes the references to “the magistrates’ court (or, in Scotland, the sheriff)” to “a court”. The court to which appeals will be made will be set out in regulations. We are still consulting, however it is our intention that for the purposes of England and Wales, appeals against a deduction will be heard by the County Court, with the exception of appeals against deductions from joint accounts which will be heard in the High Court. We are consulting with the Scottish Executive to ensure that the most appropriate courts in Scotland will hear such appeals there. 17. Amendment g214 makes all regulations made under the regulation making powers inserted by clause 21 subject to the affirmative procedure. This is appropriate given the wide ranging scope of the provisions set out in clause 21.
Amendments g134, g136, g139, g142-144, g146, g148, g150, g152-154, g156-157, g159-164, g166-167, g170-172, g214 - Clause 22 – Lump sum deduction orders 18. Amendment g134 removes subsections (1) and (2) of the new section 32D, which is to be inserted by clause 22, and replaces them with new subsections (1), (1A) and (1B). These are concerned with interim lump sum deduction orders. 19. Section 32D(1)(b) allows regulations to be made setting out the type of amounts due or accruing to the liable person in respect of which a lump sum deduction order can be made. Section 32D(1)(a) provides for lump sum orders to be made in respect of accounts held by the liable person with a deposit-taker – so section 32D(1)(b) ensures that other amounts due or accruing to the liable person which are held by a third party can still have orders made in respect of them provided they are of a type prescribed in regulations. Section 32D(1)(b) is intended to allow different financial products to be covered by lump sum deduction orders as such products are developed. 20. Section 32D(1A)(a) prevents orders being made under section 32D(1)(a) in respect of certain types of accounts. The subsection provides for regulations describing those types of accounts in respect of which a lump sum order cannot be made. It is intended that those accounts to be excepted may include trust accounts. Section 32D(1A)(b) allows orders to be made in respect of joint accounts only if the Secretary of State makes regulations so providing and the joint account is not of a kind prescribed as ineligible under section 32D(1A)(a). 21. Section 32D(1B) allows the Secretary of State to make regulations setting out the conditions which are not be taken into account when the Commission makes a decision as to whether an amount is to be taken as ‘due or accruing to the liable person’, and therefore eligible for a lump sum deduction order. Such conditions might include any time limits or notice periods which apply to the return of funds invested. 90 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
22. Amendment g153 inserts a new subsection (3A) into new section 32E (lump sum deductions: final orders) which is to be inserted by clause 22. Section 32E(3A)(b) provides for regulations to set out any matters which are to be taken into account by the Commission when determining the amount to be specified in an order made in respect of a joint account. This is in addition to the requirement in 32E(3A)(a) that the Commission must have regard to the amount contributed to the account by each account holder in determining the amount to be specified in the order. It is intended that matters provided for in regulations will include the intention of the parties at the time the account was opened and the intended use of the funds in the account. This is a safeguard to ensure that any other account holders are not unfairly affected by the order. 23. Amendment g156 inserts new sections 32EA (Orders under sections 32D and 32E: freezing of accounts etc.), 32EB (Orders under section 32E: deductions and payments) and 32EC (Power to disapply sections 32EA(1) and (2) and 32EB(2)(b) and (4)(b)) into clause 22. 24. Section 32EA(1) and (2) provide that a lump sum deduction order shall act as an instruction to the deposit-taker or third party not to do anything which reduces the amount held or due below the amount specified in the order during the relevant period. If the amount held or due is already below the amount specified in the order, the deposit-taker or third party is not to further reduce the amount. Section 32EA(3) allows the Secretary of State to make regulations setting out the circumstances in which amounts held or due may be reduced by the deposit-taker or third party, as made under the regulation making power provided for in section 32EC(1). The ‘relevant period’ begins with the service of the order on the deposit- taker or third party, and ends with the end of the period during which an appeal can be brought by virtue of regulations made under new section 32G(6). 25. Sections 32EB(1) and (3) provide for the deposit-taker or third party to pay the amount specified in the order to the Commission. If an amount of arrears specified in the order remains unpaid once the deposit-taker or third party has paid as much of the amount held by or due to the liable person as it is able (i.e. if the amount held or due is not enough to cover the amount specified in the order), section 32EB(2) and (4) provides that the order shall act as an instruction to the deposit-taker or third party to pay to the Commission any amount not exceeding the remainder of the amount specified on the order, and is also required to do nothing which would otherwise reduce the amount held by or due to the liable person. The order will therefore continue until the relevant time to have effect on any future amounts received in the account, or which become due to the liable person from the third party. Section 32EB(5) provides that section 32EB will only have effect subject to regulations made under sections 32EC(1) and 32G(2)(c). The ‘relevant time’ will usually be the time at which the remaining amount is paid, or the time at which the order lapses or is discharged. Section 32EB(6)(c) allows for regulations to set out other events or circumstances which would bring the effect of the order to an end. It is intended that such events or circumstances will include the death of the liable person. 26. Section 32EC(1) allows the Secretary of State to make regulations setting out the circumstances in which the requirement not to reduce an amount held by or due to the liable person may be disregarded and the amount reduced. Subsection (2) allows the Secretary of State to make regulations providing that the Commission’s consent must be obtained in specified circumstances Subsection (3) allows regulations to provide for an application for the Commission’s consent to the reduction of an amount held to be made by (a) the deposit-taker or third party at DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 91
which the order is directed; (b) the liable person; and (c) any other account-holder in the event of the account being a joint account. Subsection (4) provides for regulations to give certain persons a right of appeal to a court if the Commission does not consent to the reduction of an amount held. Those persons to have a right of appeal will include the liable person and any persons named as joint holders of the account from which the deduction is being taken. Subsection (5) specifies that the regulations may make provision regarding the period of time within which a right of appeal against the Commission’s refusal to consent may be made, and the powers of the court hearing an appeal against such a refusal. It is envisaged that an appeal must be made within 28 days. 27. Amendment g160 inserts a new subsection into section 32G(2), allowing the Secretary of State to make regulations setting out the circumstances in which amounts standing to the credit of an account are to be disregarded when making an interim lump sum order, requiring the deposit-taker not to reduce the amount, or paying the amount stated on the order to the Commission. It is anticipated that these circumstances will include amounts which not due to the liable person. Amendment g161 replaces subsection (c) in section 32G(2). The new subsection (c) is similar to that which it replaces, and gives the Secretary of State the power to make regulations allowing the deposit-taker or third party to deduct a specified amount towards the administrative costs of processing the lump sum deduction order before paying an amount to the Commission. 28. Amendment g162 adds to section 32G(2)(d), which allows the Secretary of State to make regulations regarding notifications to be given to the liable person as to the amounts deducted and amounts paid under an order. If the account specified in the order is a joint account, the regulations will provide for any other account holders to also be notified. 29. Amendment g163 removes section 32G(4), which allows the Secretary of State to make regulations providing for the Commission’s consent to be required in certain prescribed circumstances before an amount held by or due to the liable person can be reduced by the deposit-holder or third party. This is now provided for in the new section 32EC(2). 30. Amendment g214 makes all regulation making powers provided for in clause 22 subject to affirmative resolution. This is appropriate given the wide ranging scope of the provisions set out in clause 22.
Amendment g197– Disclosure of information relating to family proceedings. 31. Amendment g197 inserts a new section 49AA (Disclosure of information relating to family proceedings) into the Child Support Act 1991. This clause ensures that disclosure of information relating to family proceedings to the Commission, or a person providing services to the Commission by a party to the proceedings is not a contempt of court. 32. New section 49AB(1) sets out a list of proceedings which are to be considered “family proceedings” for the purposes of section 49AA. New section 49AB(3) gives the Secretary of State the power to make an order amending section 49AB(1) to change or add further proceedings to the list of family proceedings provided that the other proceedings were commence on or after the order came into force. This is a Henry VIII power, which is needed to ensure that the definition of family proceedings in section 49AA is kept up to date and relevant. 33. The order making power provided for in this new clause is to be subject to negative procedure. Whilst a Henry VIII power will usually be subject to affirmative 92 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
resolution procedure, given the nature and narrow scope of this power and the requirement that the consent of the Lord Chancellor is required before the order can be made, it is considered that a negative procedure is appropriate. Department for Work and Pensions January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 93
APPENDIX 5: CHILDREN AND YOUNG PERSONS BILL [HL] — GOVERNMENT AMENDMENT
Supplementary memorandum by the Department for Children, Schools and Families 1. As acknowledged by the Committee in its report the Department has indicated in a previous supplementary memorandum that it was reviewing clause 13 of the Children and Young Persons Bill, and in particular the ambit of the power in the new Section 23ZA (1) (b). 2. A Government amendment has been tabled which requires local authorities to ensure that children who were looked after by them but who have ceased to be looked after as a result of prescribed circumstances are visited. This would significantly reduce the ambit of the delegated power in clause 13. The power to prescribe the circumstances as a result of which a child ceases to be looked after and must then be visited will be exercisable by negative resolution, the parliamentary procedure adopted for this clause for the reasons set out in our memorandum of 14 November which the Department continues to believe is appropriate for this case. 3. It is intended that local authorities will be required by regulations to ensure that children who were voluntarily accommodated under section 20 are visited when they lose their looked after status because they cease to be so accommodated when detained in secure training centres, young offender institutions or prisons. The power will also enable us to extend the visiting requirement to other comparable groups of vulnerable formerly looked after children, who are living away from home in circumstances in which it would be right to expect the local authority to take a continuing interest in their welfare and their needs for services might otherwise not come to the attention of the authorities. 4. This will enable us to deliver our policy of placing the local authority under a duty to ensure a representative of theirs visits children who immediately before entering custody were accommodated by them under section 20 of the Children Act 1989. Department for Children, Schools and Families December 2007 94 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
APPENDIX 6: LOCAL TRANSPORT BILL [HL] — GOVERNMENT AMENDMENTS
Supplementary memorandum by the Department for Transport
Introduction 1. This memorandum supplements the Memoranda to the Delegated Powers and Regulatory Reform Committee dated 8th and 29th November 2007 which described provisions for delegated legislation in the Local Transport Bill (introduced in the House of Lords on 7th November 2007, published on 8th November 2007 and reprinted as amended in Grand Committee on 18 December 2007). This memorandum describes some new provisions in amendments to the Local Transport Bill [HL] which the Government intends to move on Report. Other amendments also to be moved on Report do not affect delegated powers. 2. References to clause numbers in this memorandum are to those clauses in the Bill as amended in Grand Committee.
Provision for Delegated Legislation
Clause 38: Quality contracts: application of TUPE 3. The effect of clause 38 of the Bill as currently drafted would be to insert a new section 134B into the Transport Act 2000 (“TA 2000”) to provide that the transfer of an employee of an existing bus operator to a new employer who is providing services under a quality contract would be regarded as a “relevant transfer” for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The new section 134B would, however, leave discretion for the new operator to determine which, if any, of the existing operator’s staff he wanted to employ and who would therefore transfer. 4. The Government agreed to review this provision in the light of points raised in Grand Committee: in particular, the view that the provisions could usefully go further in providing greater certainty for all the employees of a bus operator who may be affected by the award of a quality contract. 5. Following further consideration the Government has concluded that the scope of this provision should be extended, and is tabling an appropriate amendment to be moved at Report stage. The effect of that amendment would be to provide that where, as a result of the making of a quality contracts scheme, one operator must cease to provide local bus services and services are instead provided by another person under a quality contract, that is to be treated as a relevant transfer for the purposes of TUPE. 6. The application of the TUPE provisions following the making of a quality contracts scheme could be complex. The new network of services may look very different from the old one, and it may not always be obvious to which new employer employees should transfer. 7. Because of these potential complexities, the amendment would provide a power for the Secretary of State to make secondary legislation prescribing the process for the determination of staff transfers and in particular, at a local level, which staff should be associated with which new contract. This would not be a power for the local authority to determine whether or not TUPE should apply in the case of a particular DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 95
scheme - that would be determined by the primary legislation. The regulations would instead prescribe the logistics of deciding which staff should go where. 8. The Department has considered whether such details could be included on the face of the Bill, but has concluded that that would not be appropriate for two reasons. First, these are essentially procedural matters and the regulations would prescribe the process which a local transport authority, in discussions with employers, trades union representatives, and affected staff would need to follow as part of the making and implementation of a quality contracts scheme. Secondly, the process is likely to be complex and the Department considers that further discussions with interested parties - in particular those local authorities who are considering whether quality contracts schemes might be appropriate in their areas - would enable better-quality legislation to be prepared. It may also be the case that the process would need to be amended in the future, if experience dictates that minor adjustments might be necessary. This would be more easily achieved if the provisions are in secondary, rather than primary, legislation. 9. The provisions in Part 2 of the TA 2000 about quality contracts schemes include a number of powers to prescribe procedural matters in secondary legislation (see section 133 of that Act as would be amended by the clause 35 of the Bill). By virtue of section 160 of the TA 2000, such regulations are subject to the negative resolution procedure. Consistent with this, the Department proposes that these new regulation-making powers should also be subject to that negative procedure.
Clauses 65 and 66: Passenger Representation
New clause to be inserted after clause 66: Power to require the display of certain information 10. The Government considers that the interests of bus passengers should be more strongly represented, and a consultation paper entitled Options for strengthening bus passenger representation was issued shortly after publication of the Bill. This consultation set out a number of options for providing a stronger “voice” for passengers, and will run until March 2008. The provisions contained in clauses 65 and 66 of the Bill allow a degree of flexibility in order to accommodate a range of different possible outcomes from the consultation process.
Additional powers in clauses 65 and 66 11. During Grand Committee the Department agreed to consider amendments aimed at ensuring that any statutory Public Transport Users’ Committee established under clause 65 of the Bill would have the power to make representations about bus services to appropriate persons, such as traffic commissioners, local authorities and bus operators, and that such persons would be under an obligation to have regard to such representations. 12. Having considered the issues further, the Government is tabling amendments to clauses 65 and 66 which would enable the Secretary of State, by order, to place obligations on certain persons to take specified actions where representations are made to them by the Passenger Transport Users’ Committee (or by the Rail Passengers’ Council, as the case may be). The Government envisages that the power could be used to require parties such as those mentioned in paragraph 11 above to consider and perhaps formally respond to representations made by the passenger representative body. 96 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
13. Consistent with the order-making powers already inserted into the Transport Act 1985 (“TA 1985”) by clauses 65 and 66, the new provisions would also be subject to the affirmative resolution procedure. The power under the proposed new section 125C, which would be inserted into the TA 1985 by the amended clause 65, includes a power to amend, repeal or revoke any provision of an enactment (whenever made or passed) conferring functions on the relevant person or body. This is necessary to cater for the possibility that the order-making power might be exercised some time into the future, by which time other relevant enactments might have been made or passed. The reasoning here is the same as for other powers in clauses 65 and 66, which also extend to the amendment etc. of future enactments (see the Government’s response to the Committee’s First Report of Session 2007- 08, dated 30th November).
Delegated power in new clause proposed to be inserted after clause 66 14. Another issue which the Government agreed to consider during Grand Committee related to the display of information about passenger representative bodies on public transport vehicles and at locations such as bus stations. The Government agrees that it might be appropriate to require such information to be visible so that passengers know whom they can contact if they have a complaint about the service that they have received. The Government believes that the power to require providers of services to display such information might be relevant in respect of existing non- statutory bodies, as well as in respect of any statutory body which might be established in future under powers in this Bill. The power would also be wide enough to require more general passenger information details to be displayed such as an operator’s own customer service contacts or public transport information services (like Traveline or Transport Direct). 15. The proposed new clause would empower the appropriate national authority (the Secretary of State in England and the Welsh Ministers in Wales) to place obligations on prescribed persons to display appropriate information. The provision would enable the appropriate national authority to prescribe, in regulations, financial penalties that may be imposed by the traffic commissioners where operators of public service vehicles failed to meet the prescribed obligations. 16. Traffic commissioners can already take enforcement action against the operators of public service vehicles in prescribed circumstances (see section 155 of the TA 2000), and this proposal is similar in approach. As under section 155, the maximum level of the fine could be prescribed in regulations and the traffic commissioner would have discretion, on a case by case basis, to determine the level of fine to be imposed. A right of appeal against the imposition of a fine would lie to the Transport Tribunal. This is consistent with other appeal rights against decisions of traffic commissioners. 17. As explained in paragraph 10 above, decisions about the form and structure of any future passenger representative body have not yet been made. Taking a power to prescribe requirements about the display of information would provide the Department with sufficient flexibility to ensure that the provisions accurately reflect the future structure of passenger representative bodies. It would also provide more opportunity for consultation with interested parties, including in particular any new statutory passenger representative body, about the details to be included in the regulations. 18. There is a precedent for using secondary legislation to prescribe details about information to be displayed on public service vehicles which is to be found in section 60(1)(f) of the Public Passenger Vehicles Act 1981. The Department DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 97
considered whether this power was wide enough to make the provisions described in this memorandum, but concluded that it was not (not least because that power is available only for the bringing into effect of the PPVA 1981, with which these new provisions are not connected). 19. Regulations made under this provision would be mainly of a procedural nature. For this reason, and consistent with the power described in paragraph 18 above, such regulations would be subject to the negative resolution procedure.
Clause 75: delegation of local authority functions 20. Clause 75 of the Local Transport Bill enables the Secretary of State to make an Order delegating any function of a local authority to an ITA or eligible local transport authority, subject to the conditions set out in clause 75(1), and to the affirmative resolution procedure in both Houses of Parliament as set out in clause 82. 21. “Local authority” for these purposes is defined in clause 75(3). It includes a county council, a metropolitan district council, and a non-metropolitan district council for an area for which there is no county council. The government is tabling an amendment which would provide that the power of delegation in clause 75 will apply to the functions of all district councils, and will therefore apply additionally to the functions of a non-metropolitan district council for an area for which there is a county council. 22. The purpose of this change is to ensure that a local authority function (such as taxi licensing under the Transport Act 1985) can be delegated to an ITA in relation to any local authority area within the area of the ITA, whether from a district in a metropolitan county, from an area with a unitary authority, or from an area in a non-metropolitan county which does not have a unitary local authority. Department for Transport January 2008
Second supplementary memorandum by the Department for Transport
Introduction 1. This memorandum supplements the Memoranda to the Delegated Powers and Regulatory Reform Committee dated 8th and 29th November 2007, and 9th January 2008, which described provisions for delegated legislation in the Local Transport Bill [HL] (introduced on 7th November 2007, published on 8th November 2007 and subsequently reprinted on 18 December 2007 and 17th January 2008). This memorandum describes one further provision in an amendment to the Local Transport Bill [HL] which the Government intends to move on Third Reading in the House of Lords. 2. References to clause numbers in this memorandum are to those clauses in the Bill as amended on Report. 98 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Provision for Delegated Legislation
Clause 115: Provision concerning the notification to an appropriate traffic commissioner of the use of a vehicle subject to operator licensing rules 3. On Report in the House of Lords a Government amendment inserted a new clause 115, which would amend existing provisions relating to goods vehicles operator licensing. The effect of Clause 115 would be to provide flexibility as to whether or not a fee should be charged when a goods vehicle operator notifies the appropriate traffic commissioner that a vehicle has been added to an operator licence. This remedies inflexibility in the current legislation, which could have impeded the Government’s fee simplification proposals for operator licensing. There are already delegated powers to prescribe operator licence fees and Clause 115 as inserted in Report did not propose any new delegated power. 4. The Government proposes to amend Clause 115 at Third Reading by replacing subsection (2) of Clause 115. Subsection (2) amends section 263 of the Transport Act 2000 (“TA 2000”), which itself amends section 5(6) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”). 5. The effect of the further amendment to be moved at Third Reading would be to amend section 5(6) of the 1995 Act so as to enable the Secretary of State to prescribe, in regulations, the timescale within which a goods vehicle operator is required to notify the appropriate traffic commissioner of a new vehicle to be used under that operator’s licence. 6. Section 5(6) of the 1995 Act requires the registration numbers of every vehicle used by a goods vehicle operator to be specified on that operator’s licence. This is primarily to aid roadside vehicle enforcement by the Vehicle and Operator Services Agency (“VOSA”) and the police. However, when a goods operator adds a new vehicle to their fleet, the existing legislation provides a one-month grace period before that information must be specified on the operator’s licence - to aid operational flexibility. This is called the ‘margin concession’. 7. The Government decided that it wanted to abolish the ‘margin’ - primarily to improve roadside enforcement as it can be difficult for VOSA and the police to determine who the operator of a vehicle is when it is being used under the ‘margin’. In order to make legislative provision for this policy, section 263 of the TA 2000 introduced an amendment to section 5(6) of the 1995 Act to abolish the margin. This provision has yet to be commenced. DfT issued a public consultation (Modernising Operator Licensing) in December 2005 that, amongst other things, proposed to commence s.263 and abolish the current ‘margin concession’, as it was felt that modern database and enforcement methods together with the prospect of online vehicle notification and fee payment were maturing such that it would no longer be needed by industry. Instant notification was seen as a real prospect. 8. However, responses to consultation showed that abolition of the margin concession could impose a much higher burden on the industry than originally thought. This is primarily due to the level of short-term vehicle hiring that goes on in the haulage industry. If the margin concession were abolished, operators would need to specify every vehicle on their licence as soon as they started using it - even if it was on hire for only part of one day. VOSA has also expressed concern that their administrative systems would struggle to cope with the workload associated with immediate notification without substantial expenditure, which would have cost implications for the industry. Therefore, as part of the Ministerial announcement on the outcome of the consultation in December 2006, DfT proposed to carry out further work to DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 99
evaluate the costs and benefits of this proposal before making a decision. This would include looking at options for minimising the burden of an immediate notification requirement. 9. Subsequent discussions with the industry and VOSA suggest that reducing the ‘margin’ from one month to, say, 2-3 days may offer a suitable compromise between the need to improve enforcement whilst at the same time minimising the additional burden of notification on the industry. 10. The Department has considered whether a specific timescale for notification could be specified in primary legislation but has concluded that that would not be appropriate for two reasons. Firstly, these are essentially procedural matters. There are already wide regulation-making powers within the 1995 Act. These include a power to prescribe by regulations the notification to a traffic commissioner of a vehicle which has ceased to be used. The absence of a power to prescribe by regulations the notification of a vehicle which is about to be used is anomalous and creates an unnecessary inflexibility. 11. Secondly, the process of deciding the best timescale and whether different rules should apply to different circumstances, is not yet concluded and the Department considers that further discussions with interested parties - in particular industry and those concerned with enforcement, would enable better-quality legislation to be prepared. It may also be the case that the process would need to be amended in the future, if experience or developments in on-line services mean that minor adjustments might be necessary or desirable. Indeed, the long term aim of ensuring notification is as prompt as reasonably possible, would be more easily achieved if the provisions are in secondary, rather than primary, legislation. The Government could, for example, replace the one month margin with a shorter period of, say, three days, in primary legislation based on what is currently workable. However, this may become an excessive timescale in the future, when electronic notification, involving operators and even hire companies, might be more sophisticated and universal. Indeed, DfT has not entirely ruled out the possibility of maintaining instant notification, as provided for in the TA 2000, if the current obstacles can be overcome. 12. The amendment to clause 115 has therefore been drafted in such a way that: • the power to prescribe a notification period is restricted to a maximum period of one month; • the new subsection (6A) of the 1995 Act would work to either require instant notification, or a period of grace up to one month; • since section 57(7)(a) of the 1995 Act allows regulations made under that Act to make different provision for different cases or classes of cases or different circumstances, any relevant day, as prescribed, could make different provisions for different circumstances. 13. Section 57 of the 1995 Act makes provision in respect of regulations and orders made under that Act. Subsection (11) provides that any regulations made under that Act, other than regulations made under section 30(3) (periods of review for operating centres), are subject to the negative resolution procedure. Regulations made under the new section 5(6) of that Act, as would be inserted by the amendment section 263 of the TA 2000 would, therefore, also be subject to the negative resolution procedure. The primary legislation, as would be amended by clause 115, already sets a maximum period of time for the margin. If a margin is to be prescribed within that maximum period, the Department believes it to be 100 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
appropriate that such regulations should be subject to the negative resolution procedure. Department for Transport January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 101
APPENDIX 7: REGULATORY ENFORCEMENT AND SANCTIONS BILL [HL] — GOVERNMENT AMENDMENTS
Supplementary memorandum by the Department for Business, Enterprise and Regulatory Reform 1. On 8 November 2007, the Department for Business, Enterprise and Regulatory Reform submitted a memorandum to the House of Lords Select Committee on Delegated Powers and Regulatory Reform in respect of the delegated powers in the Regulatory Enforcement and Sanctions Bill. This memorandum supplements that memorandum, providing details of and justification for a delegated power that has been added to the Bill by way of amendment. 2. Details of the new delegated power are set out below:
Power conferred on: HM Treasury
Power exercisable by: Regulations
Parliamentary Procedure: Negative resolution of the House of Commons
3. The power will be included in a new clause numbered 18 and permits H M Treasury to make tax provisions in connection with transfers of property, rights and liabilities made under section 17(2)(a) of the Bill. Orders dissolving LBRO made under section 17(1) can provide for the transfer of property, rights and liabilities of LBRO to another person. This provision will ensure that such a transfer does not have unintended tax consequences. 4. The provision includes a delegated power because it is not possible now to determine what will be the applicable tax provisions at the time that any relevant transfer of property, rights and liabilities takes place. 5. Given that the power will be used to maintain tax neutrality of any relevant transfer, and does not allow for taxation to be varied in any other way, negative resolution of the House of Commons is the most appropriate Parliamentary procedure. In addition, this is in line with precedents, including for example, section 5 of the Legislative and Regulatory Reform Act 2006 which makes equivalent provision. Department for Business, Enterprise and Regulatory Reform January 2008 102 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
APPENDIX 8: CHILD MAINTENANCE AND OTHER PAYMENTS BILL — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Mackenzie of Luton, Parliamentary Under- Secretary of State, Department for Work and Pensions 1. I am grateful for the detailed consideration the Committee has given to the Child Maintenance and Other Payments Bill in your Third Report for the 2007-2008 Parliamentary Session. I am pleased that the Committee is content with the overall approach we have taken in the Bill. 2. With respect to the Committee’s specific recommendations, the Departments position is as follows. I will deal with each of these recommendations in turn below.
Objectives and functions of the Commission – clauses 3(2) and 11(2) 3. In paragraphs 4 and 5 of the report, the Committee draws attention to the fact that the objectives of the Commission are made by reference to children who live apart from one or both parents, and that there is a regulation making power which allows the Secretary of State to set out when a child is to be considered as living apart from a parent or not. The Committee raises a concern that this power could widen the objectives of the Commission. We do not consider this to be the case. The regulation making power can only be used to set out the circumstances that constitute “living apart” for the purposes of child maintenance. It does not change the meaning of child or parent. The power to define when a child is living apart from a parent is only there because the stand-alone provisions in the Bill are not covered by the provisions relating to shared care and special cases provisions which currently set out the rules about when a child is or is not living apart from a parent for the purposes of the Child Support Act 1991. We anticipate that this power will be used to ensure that the free-standing provisions in the Bill and the provisions under the 1991 Act interact sensibly. The power to make provision for special cases setting out where a child is or is not living with a parent for the purposes of the statutory scheme is contained in section 42 of the 1991 Act. For new scheme cases (and, by extension, the amended statutory scheme under the Bill), this power is subject to negative procedure. Given that it is likely that these powers will be exercised together in future, the department considers that negative procedure for the Bill provision is also appropriate. 4. The Committee also raises a concern over the power to add to the Commission’s functions as necessary for achieving the objectives, which it considered to be a wide power in the light of the view that the power to define living apart might widen the scope of the objectives. As set out above, we do not consider that this widens the scope. In addition, we would point out that it is not uncommon to include such a provision. Recent examples of legislation where functions may be added include: • The Gangmasters Licensing Act 2004 contains a provision enabling the Secretary of State to confer functions in regulations on the Gangmasters Licensing Authority (see section 1(2)(f)). This is a wider provision as it is not limited in any way (e.g. to objectives, etc) and is subject to negative procedure. • Section 116(2) of the Education and Inspections Act 2006 allows the Secretary of State to assign further functions to the Chief Inspector in connection with performance of functions. This power is not subject to any form of parliamentary scrutiny. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 103
5. None of these powers is subject to affirmative procedure. We therefore consider that negative procedure is appropriate here.
Fees – clause 6 6. In paragraph 6 of its report, the Committee suggests that clause 6(2) of the Bill should be aligned with section 47(2) of the 1991 Child Support Act, to specify who may be liable to pay any fees charged by the Commission. The Committee also suggests that the Bill could contain an additional power, subject to affirmative resolution, allowing further categories of people to be added to the list of those liable to fees. 7. We have considered the Committee’s suggestion but would prefer not to make this amendment. Firstly, we do not consider such an amendment to be necessary. All regulations which set out details of a charging regime, including those under clause 6(2), are subject to affirmative resolution, so there is already a requirement for Parliament to approve any legislation which creates a category of persons liable to pay fees under clause 6 of the Bill. Secondly, it may lead to undue complication – for example, the terms “non-resident parent” and “person with care” are applicable where there is a current maintenance calculation. If the Commission were imposing a charge in a case where it was collecting a debt but there was no current assessment, then different terms such as “liable person” would need to be used. 8. The new provision is drawn more broadly than Section 47 of the 1991 Act and is intentionally more flexible, as it needs to provide for a wider range of circumstances and achieve more objectives than the charging provision in the 1991 Act. 9. We do not expect fees to be introduced in any form immediately, and believe that the Commission should be allowed to take a key role in setting the details of a charging regime, to help achieve its objectives. This includes specifying who is liable to pay any fees. The details will be subject to Ministerial agreement and Parliamentary approval. It is for this reason that this level of detail has not been included in the Bill.
Monitoring of curfew orders – clause 26 (new section 39O(4)) 10. The Committee recommends, in paragraph 8 of its report, that the first exercise of the power in new section 39O(4) should be subject to the affirmative procedure. We accept this recommendation. I will be tabling an amendment to change the procedure from negative to affirmative in the first instance. I regret that I am unable to include a draft of this amendment with this letter.
Transfer of arrears – clause 32 (new section 49A) 11. In paragraph 9 of its report, the Committee expresses concern that the person with care’s consent to the sale of the debt is not on the face of the Bill, and recommends that a limitation by reference to such permission should appear on the face of the Bill unless further justification is provided. We are accepting this recommendation. I will table an amendment placing the requirement that the parent with care’s concern is sought on the face of the Bill. I regret that I am unable to include a draft of this amendment with this letter. It is intended that the amendment will be tabled at Report Stage. 12. In paragraph 10, the Committee expresses concern that the power in section 49A(4) (b) might be used to prevent a debt purchaser from recovering the debt. 104 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
13. We believe that in certain circumstances, the Commission should be able to prevent the collection of debt by the purchaser. We believe that this could be necessary if in the Commission’s view the safety of the person with care or the welfare of relevant child(ren) was put at risk by the actions of the purchaser. This might occur, for example, where the purchaser’s efforts to recover the debt resulted in threats to the person with care or child. 14. If a company were to purchase debt from the Commission it would do so in the knowledge that the Commission would be able to prevent that debt being recovered. We would expect any contract for sale to make provision for that possibility. 15. The regulations made under this power will provide protection for the person with care and the child, by ensuring that the Commission retains some authority over transferred debts.
Pilot schemes – clause 38 16. In paragraph 11 of its report, the Committee recommended that affirmative procedure is appropriate for the introduction of pilot schemes. We accept this recommendation. I will table an amendment to provide for any regulations which, by virtue of the new section 51A (to be inserted by clause 38), have effect for a limited period to be subject to the affirmative procedure. I regret that I am unable to include a draft of this amendment with this letter.
Mesothelioma: lump sum payments: conditions of entitlement – clause 44 17. In paragraph 12 of its report, the Committee recommends that the regulations prescribing the conditions for entitlement to a lump sum payment for mesothelioma in clause 44 be made subject to the affirmative procedure in the first instance. We accept this recommendation. I will table an amendment changing the regulation making procedure from negative to affirmative in the first instance. I regret that I am unable to include a draft of this amendment with this letter.
Conclusion 18. I trust that this letter has clarified the intentions behind the provisions which the Committee has highlighted, and that the Committee is reassured by the greater detail which I can here provide. 19. It may interest the Committee to know that we intend to table a number of other Government amendments at Committee stage. I enclose a brief summary of these amendments alongside this letter [Not printed]. I would also, of course, be happy to discuss the amendments with the Committee. 20. I have provided copies of this letter to Lord Skelmersdale, Lord Kirkwood of Kirkhope, and other peers interested in the Bill, and am placing a copy in the Libraries of both Houses. January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 105
APPENDIX 9: CHILDREN AND YOUNG PERSONS BILL [HL] — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Adonis, Parliamentary Under-Secretary of State, Department for Children, Schools and Families 1. I am grateful for the work of the Committee in reviewing the Children and Young Persons Bill. The Committee made a recommendation relating to clause 18 and welcomed Government plans to limit the power conferred by clause 13. I address each in turn below.
Clause 18: Entitlement to payment in respect of higher education 2. Clause 18 adds to the duties that local authorities owe to care leavers by requiring local authorities to pay a fixed sum to those who go on to pursue a course of higher education. The amount of the payment will be set in regulations to be made by the appropriate national authority. 3. Clause 18(2) of the Bill, (new subsection (5B)(b)), currently contains a power, subject to negative resolution, to prescribe the meaning of “higher education”, which reflects an almost identical power in section 28(1) of the Teaching and Higher Education Act 1998. The committee considered that the power in new subsection (5B)(b) should (like that in the 1998 Act) attract the affirmative procedure on its first exercise, because it will define the scope of the local authority’s duty under this clause. 4. The Government accepts the committee’s recommendation that the power in new subsection (5B)(b) should attract the affirmative procedure on its first exercise and has tabled an amendment to this effect.
Clause 13: Duty of local authority to ensure visits to looked after children and others 5. The committee commented on the extent of the power conferred by subsection (1)(b)(i) of clause 13. Clause 13 inserts a new section 23ZA into the Children Act 1989 (“the 1989 Act”) to place a duty on a local authority to ensure that children looked after by the authority, and certain other children and young persons, receive visits from a representative of the authority and that appropriate advice, support and assistance is made available to them. The committee was “concerned” by the extent of “this power as it would enable the Secretary of State to prescribe any description of child or young person (other than ones already looked after by an authority) and there appears to be no definition of ‘young person’ for the 1989 Act as a whole.” 6. The committee acknowledged in its report that the Government was reviewing clause 13 of the Children and Young Persons Bill, and in particular the ambit of the power in the new Section 23ZA (1) (b). 7. A Government amendment has been tabled which would enable the Secretary of State by regulations to require local authorities to ensure that children who were looked after by them but who have ceased to be looked after as a result of prescribed circumstances are visited. This would significantly reduce the ambit of the delegated power in clause 13. The power to prescribe the circumstances as a result of which a child ceases to be looked after and must then be visited will be exercisable by negative resolution, the parliamentary procedure adopted for this clause for the reasons set out in our memorandum of 14 November which the Department continues to believe is appropriate for this case. 106 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
8. It is intended that local authorities will be required by regulations to ensure that children who were voluntarily accommodated under section 20 are visited when they lose their looked after status because they cease to be so accommodated when detained in secure training centres, young offender institutions or prisons. The power will also enable us to extend the visiting requirement to other comparable groups of vulnerable formerly looked after children, who are living away from home in circumstances in which it would be right to expect the local authority to take a continuing interest in their welfare and their needs for services might otherwise not come to the attention of the authorities. 9. This will enable us to deliver our policy of placing the local authority under a duty to ensure a representative of their’s visits children who immediately before entering custody were accommodated by them under section 20 of the Children Act 1989. 10. I am copying this letter to the clerk of the Committee and to all Peers who took part in the second reading debate and those Peers who have indicated they are keen to follow the progress of the Bill. I am also placing a copy of this letter in the House Library. January 2008 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 107
APPENDIX 10: HUMAN FERTILISATION AND EMBRYOLOGY BILL [HL] — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Darzi of Denham, Parliamentary Under- secretary of State, Department of Health 1. Thank you for the report from the Delegated Powers and Regulatory Reform Committee that was published on 22 November 2007 and contained recommendations in relation to the Human Fertilisation and Embryology Bill. 2. The Government welcomed the recommendations made by the Committee and has considered them. Amendments to implement the two recommendations have been brought forward, a copy of these amendments is enclosed. This letter responds formally to the recommendations.
Inter-species embryos 3. The Committee recommended that the power in new section 4A(7) that allows the Secretary of State, by regulations, to make any amendment of the definition of inter- species embryos, was so wide a power that it was inappropriate. The Government has considered this point in detail and is therefore proposing to limit it to a power to amend (but not repeal), and to introduce a criterion that the power can only be exercised in the light of scientific developments. This mirrors the limits on a similar power already in the Bill in relation to human embryos. The power is subject to affirmative resolution.
Procedure in relation to determination of licences 4. The Committee also recommended that the power at clause 19B(2) was inappropriately delegated to the Human Fertilisation and Embryology Authority, and instead should be exercised by the Secretary of State. 5. Clause 19B(2) provides for a regulation making power in relation to applications for the determination of licences under the Act. The power in the Bill as drafted was to be exercised by the Authority. Clause 19B(3) provides details of what the regulations may provide, in particular, they may set out procedure in relation to the determination of licences, including requirements for people to give evidence or produce documents, and the admissibility of such evidence. 6. The Government accepts the principle that this matter should be subject to the level of scrutiny suggested by the Committee and has brought forward an amendment accordingly.
Embryo testing and sex selection 7. We thank the Committee for raising the point regarding the power at 1ZC(1). The Government feel that this is a necessary power in order to be able to be flexible in the future to add or amend the purposes for which embryos can be tested. It is possible that in the future new techniques will be developed to test embryos which are not covered in the Bill. This power would therefore allow for additional purposes to be added to the list in paragraph 1ZA(1) to enable the HFEA to issue a licence for embryo testing for other purposes. January 2008 108 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
APPENDIX 11: REGULATORY ENFORCEMENT AND SANCTIONS BILL [HL] — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Jones of Birmingham, Minister of State, Department for Business, Enterprise and Regulatory Reform 1. I am writing in response to the Committee’s report on the Regulatory Enforcement and Sanctions Bill, which was published on 6 December 2007. 2. The Government has accepted a number of the Committee’s recommendations and I have today tabled some amendments to the Bill to address these. A copy of the amendments is enclosed. 3. There are, however, a few issues on which I would like to respond to the Committee.
Local Better Regulation Office – Part 1 Report Paragraph 38: Relevant functions - Clause 4 4. The Committee asked about the rationale for the treatment of regulations made under section 2(2) of the European Communities Act 1972 (ECA 1972), by the use of a list of category headings at clause 4(3) of the Bill. 5. I believe that listing all the regulations whether in the Bill or by statutory instrument would be impractical: regulations under ECA 1972 are made very frequently and any list would very quickly be out of date. The approach taken in the Bill makes it clear which regulations are in scope: in the majority of cases, it will be clear whether particular section 2(2) regulations fall within the category headings, as the regulations themselves generally include a subject heading, such as “Animal Health” or “Consumer Protection” which leaves no room for doubt. 6. There may be some cases of doubt, and the Committee questioned the rationale of the provision in clause 4(7) which allowed the Secretary of State to decide whether or not regulations fell within one of the matter headings. As you will see, we propose amending the Bill to make such a decision subject to Parliamentary oversight through the negative resolution procedure. Report Paragraph 42: Local Better Regulation Office’s (LBRO) power of direction: Guidance to local authorities - Clause 7 7. The Government has accepted the Committee’s recommendations in relation to the operation of this clause (and the related amendment to Clause 15). 8. The Committee asked for a list of the guidance that might be involved in LBRO’s power of direction at clause 7(1)(b): the Bill restricts this power to guidance that is issued to local authorities “under an enactment which relates to the exercise of a relevant function”. In effect this will mean guidance issued by other bodies with statutory powers to issue guidance relating to the exercise by local authorities of the functions that fall within LBRO’s scope. Report Paragraph 44: Power to dissolve LBRO - Clause 17 9. The Committee asked for an explanation of the power in clause 17(2)(b) to transfer any of the functions and powers of LBRO to another body when it is dissolved. 10. Once LBRO’s objectives of securing better regulation by local authorities has been achieved, clause 17 allows for the body to be dissolved. However, LBRO has some specific operational functions (essentially those under Part 2 relating to the DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 109
administration of the Primary Authority scheme) which will need to be carried out indefinitely, regardless of the overall standard of local authority regulation. The power to transfer functions has been included with this particular function in mind and we do not, therefore, propose to amend this provision.
Co-ordination of regulatory enforcement – Part 2 Report Paragraph 46: Specification of legislation in reserved areas in Scotland and Northern Ireland - Clause 22 11. The Committee noted that clauses 22(1)(b) and (c) of the Bill allow for an order which will specify the extent to which Part 2 of the Bill will apply in Scotland and Northern Ireland, and recommended that this should be restricted to listing a subset of the legislation listed in Schedule 3. 12. I can assure the Committee that there is no intention to go beyond the English and Welsh scope through these orders, and you will have seen the amendment that I have tabled. The amendment allows for the inclusion in an order of legislation in Scotland and Northern Ireland which has equivalent effect to that in Schedule 3. This is to allow the orders to specify functions which are within the scope of the legislation included in Schedule 3, but are given effect by Northern Ireland or Scotland specific legislation.
Civil sanctions – Part 3 Report Paragraph 58: Discretionary Requirements - Clause 40 13. The Committee accepted that there should be no upper limit for variable monetary penalties (VMPs) for either way offences but recommended that the Bill should specify a maximum limit for offences that would otherwise be tried summarily, unless the Government could make the case for the absence of such a limit. 14. VMPs are designed to be flexible enough to allow a regulator to capture any financial benefit a business may have accrued through its regulatory non- compliance, a key recommendation of both the Hampton and Macrory reviews. While I would expect VMPs to be used mainly for more serious acts of non- compliance, there may be circumstances where they are imposed for what are summary only offences. This could include, for example, offences under section 9(4) of the Wildlife and Countryside Act 1981, where a developer may have destroyed protected species in clearing land for development. The statutory maximum for the offence is £5,000 but the financial benefit of the developer’s non- compliance could be much higher. Enabling penalties to be set at a level to capture such benefit will ensure that there is sufficient deterrent and will help to level the playing field for businesses. 15. The regulator will, however, be required by clause 61 to publish guidance setting out the matters it is likely to take into account when setting the level of VMP, so there will be transparency in the process. 16. A business will of course be able to raise objections and make representations against the imposition of a variable monetary penalty after the notice of intent is issued and will be able to appeal against the level of the penalty if it feels this is unreasonable. If the tribunal agrees with the appellant it will have the power to withdraw or vary the penalty imposed. Report Paragraph 60: Stop Notices - Clause 44 17. The Committee suggested that the Bill must specify the essential elements of the compensation arrangements for stop notices. I understand the Committee’s 110 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
concerns about the severity of stop notices as a sanction and it is for this reason that we have set the threshold for their usage so high (i.e. a significant risk of serious harm). 18. Clause 46 leaves the detailed provision about the compensation scheme to secondary legislation for reasons of flexibility, as the legislation is intended to cover a wide range of regulators and regulatory offences. In particular, the compensation provisions need to take account of any existing compensation schemes that regulators currently operate, as well as any common law rights to compensation. Examples of existing statutory compensation schemes include section 14 of the Consumer Protection Law Act 1987 and section 12 of the Food Safety Act 1990. Any compensation scheme would also need to take account of provisions such as section 71 of the Financial Services and Markets Act 2000 should, for example, the Financial Services Authority wish to make use of stop notices as a sanction. Report Paragraph 62: Appeals - Clause 52 19. I agree with the Committee that the rights of appeal are of fundamental importance to the fairness of the new sanctioning regimes and that is why we have strengthened considerably the relevant provisions in the Bill since it was published in draft last summer. We have, in particular, added the minimum grounds for appeal for each of the sanctions and specified that appeals must be heard by a statutory tribunal. 20. The Bill, however, is not prescriptive in terms of the powers of the tribunal that will hear appeals against the new sanctions. Again, this is for reasons of flexibility, in order to allow individual schemes to take account of the existing powers of the particular tribunal that will hear appeals. Furthermore, as appeals will be heard by existing tribunals, the powers and procedures will already have been established in other legislation. We envisage that most appeals will be heard by the new First-tier Tribunal. Many of the powers and procedures of this tribunal will be set out in either the primary legislation that established it (the Tribunals, Courts and Enforcement Act 2007) or tribunal procedural rules. If appeals are directed to another tribunal, such as the employment tribunals, then this too will have its own existing powers and procedures. Report Paragraph 63: Supplementary Provision: Clause 53 21. The Committee drew this provision to the attention of the House in order to seek justification of the provision from the Minister. I am sorry that our Memorandum was not clearer on the need for this power. 22. Clause 53 enables an order made under Part 3 of the Bill to make consequential and other supplementary provisions. It allows existing investigation powers of the regulator in relation to the relevant offence to be extended so that they may be used where a regulator seeks to impose a civil sanction conferred under the Bill for that offence. 23. The Committee has raised particular concerns about subsection 3(b) of the clause. The purpose of this subsection is to amend specific restrictions on the use of evidence so that they may be used, in appropriate cases, in proceedings imposing the civil sanction. A hypothetical example of how this power might be used is in relation to the restriction in section 197 of the Enterprise Act 2002. This section limits the use of compulsorily obtained statements which have been obtained during an investigation of the cartel offence at section 188. It restricts the use of those statements to prosecution for giving false or misleading information or prosecution for some other offence where in giving evidence that person makes a statement inconsistent with it. It would be inequitable if a regulator could not rely upon those statements if during proceedings for the civil sanction, the person makes statements DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 111
which are inconsistent. In other words, where in a criminal prosecution, the regulator benefits from an exception from evidential restrictions, we propose that it should also be extended where the regulator proposes to impose a civil sanction for that criminal offence. Furthermore, it may also encourage regulators to pursue criminal prosecution in all cases where there has been a previous criminal investigation so as to ensure that there is full availability of evidence. This would be a departure from the risk-based approach to regulation that we seek to encourage. 24. I wish to assure the Committee that the power is not intended to remove restrictions or protections from persons arbitrarily. Furthermore, it is not intended to be used to remove the privilege against self-incrimination wholesale. The power can only be used for the purpose of facilitating the use of the civil sanctions under part 3. It would be up to implementing departments to assess whether such restrictions hindered the use of the civil sanctions and whether amendment or removal of these restrictions would be compatible with ECHR rights in accordance with their duty under section 6 of the Human Rights Act 1998. January 2008