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1 Policing and Crime Bill Delegated Powers POLICING AND CRIME BILL DELEGATED POWERS MEMORANDUM MEMORANDUM BY THE HOME OFFICE Introduction 1. This Memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Policing and Crime Bill. The Bill was introduced in the House of Lords on 14 June 2016. The memorandum identifies the provisions of the Bill which confer powers to make delegated legislation. It explains in each case why the power has been taken and the nature of, and reason for, the procedure selected. The memorandum has been prepared by the Home Office and HM Treasury. 2. The Bill gives effect to the Conservative Party’s manifesto commitment to “finish the job of police reform”. The Bill is in nine Parts: Part 1 places a duty on police, fire and ambulance services to collaborate, enables Police and Crime Commissioners (“PCCs”) to take on responsibility for fire and rescue services where a local case is made, and abolishes the London Fire and Emergency Planning Authority and transfers its functions to the London Fire Commissioner. It also provides for inspection of fire and rescue services. Part 2 reforms the police disciplinary and complaints systems, provides for a new system of “super-complaints” and confers new protections on police whistle-blowers. This Part also further strengthens the independence of HM Inspectorate of Constabulary and ensures that it is able to deliver end-to-end inspections of the police. Part 3 better enables chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers and conferring a power on the Home Secretary to specify police ranks in regulations. This Part also strengthens the accountability and transparency of the Police Federation for England and Wales. Part 4 contains a number of reforms to police powers, including to: pre-charge bail to put a stop to people remaining on bail for lengthy periods with no independent judicial scrutiny of its continued necessity; provide for the retention of biometric material where a person has committed an offence outside of England and Wales; the powers under sections 135 and 136 of the Mental Health Act 1983 to stop vulnerable people experiencing a mental health crisis being detained in police custody; to the Police and Criminal Evidence Act 1984 to ensure that 17 years olds who are detained in police custody are treated as children for all purposes; to extend the geographical reach of police enforcement powers so that they can effectively detect and investigate any offence on ships at sea; and to provide for cross-border powers of arrest. 1 Part 5 makes further provision in respect of the term of office of Deputy PCCs and confers a power on the Home Secretary to change the name of a police area by regulations. Part 6 amends the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists and by ensuring that, through statutory guidance, robust background checks are made on the suitability of persons to hold a firearms licence or shotgun certificate. Part 7 amends the Licensing Act 2003 to make the licensing system more effective in preventing crime and disorder. Part 8 strengthens the enforcement regime for EU, UN and other financial sanctions by increasing the maximum custodial sentence on conviction for a breach offence, introducing new enforcement powers including monetary penalties, and by providing for the immediate implementation of UN-mandated sanctions. Part 9 includes miscellaneous and general provisions, including an amendment to the Sexual Offences Act 2003 to better protect children and young people from sexual exploitation. This Part also contains provision to: require arrested persons to state their nationality; for suspected foreign nationals to produce their nationality document(s) following arrest; for defendants in criminal proceedings to provide their name, date of birth and nationality to the court; to give police and immigration officers further powers to seize cancelled foreign travel documents; to provide lifelong anonymity for victims of forced marriage and to provide for statutory guidance in respect of the licensing of taxis and private hire vehicles. PART 1: EMERGENCY SERVICES COLLABORATION Schedule 1, paragraph 5 – new section 4A(1) of the Fire and Rescue Act 2004: Power to provide for PCC to be fire and rescue authority Power conferred on: Secretary of State Power exercisable by: Order made by statutory instrument Parliamentary procedure: Negative procedure 3. As set out within the Government’s response to its consultation on emergency services collaboration, Enabling closer working between the emergency services: consultation responses and next steps published on 26 January 2016, the Government intends to enable PCCs to take on responsibility for fire and rescue services where it would be in the interests of economy, efficiency and effectiveness or public safety and where a local case is made. This builds on the Government’s manifesto commitment to “enable fire and police services to work more closely together and develop the role of our elected and accountable Police 2 and Crime Commissioners”. Chapter 2 of Part 1 to the Bill gives effect to these proposals. 4. The Government does not intend to mandate the transfer of fire and rescue services to PCCs and the policy intention is that arrangements for PCCs seeking responsibility for their local fire and rescue authority should be locally determined. Given this approach, it is necessary to confer on the Secretary of State delegated powers to give effect to changes in the governance arrangements in a particular area. Accordingly, new section 4A(1) of the Fire and Rescue Services Act 2004 (“the 2004 Act”) provides a power, by order, to create a new corporation sole as the fire and rescue authority for the area covered by the order and for the PCC for that area to be that fire and rescue authority. Before making an order under new section 4A(1), the Bill requires the Home Secretary to be satisfied that such an order would be in the interests of economy, efficiency and effectiveness, or in the interests of public safety (new section 4A(5)). Given this requirement for a PCC’s proposals to meet one or other (or both) of these tests, this again necessitates leaving the implementation of changes to the governance of particular fire and rescue services to secondary legislation so that a judgement as to the efficacy of the proposals can be taken on a case-by-case basis. This is consistent with the Government’s broader position in relation to the local devolution of powers as provided for in the Cities and Local Government Devolution Act 2016. 5. New Schedule A1 to the 2004 Act (as inserted by paragraph 12 of Schedule 1 to the Bill) sets out the procedure for orders under new section 4A. Such an order may only be made if a PCC brings forward a proposal on which they have consulted locally (new section 4A(4) and paragraph 3 of new Schedule A1). Where an upper-tier local authority does not support the proposal put forward by the PCC, paragraph 4 of new Schedule A1 requires the Home Secretary to obtain an independent assessment of the proposal. 6. New sections 4B and 4D and 4G of the 2004 Act set out the further provisions that may be made by an order made under new section 4A. 7. The Government’s policy is that where a PCC takes on responsibility for the governance of fire and rescue services, the area served by the new style fire and rescue authority must be coterminous with the police force area. In cases where police and fire and rescue boundaries are not coterminous, new section 4B(1) enables an order under new section 4A to amend the boundaries of the relevant fire and rescue authorities It is expected that a PCC’s proposal would set out any proposed boundary changes, and the Secretary of State will have regard to these when considering whether it would be in the interests of economy, efficiency and effectiveness or public safety for the order to be made. The power cannot be used to alter police force areas; the procedure in section 32 of the Police Act 1996 (“the 1996 Act”) will continue to apply. 8. By virtue of new section 4D, an order under new section 4A may also make various supplementary provision, including about the delegation of functions of the new authority to a deputy PCC, the sub-delegation of functions by that deputy PCC and the delegation of functions to employees of the fire and rescue 3 authority. The Government considers that it is preferable to make bespoke provision in an order made under new section 4A rather that generic provision, of restricted application, on the face of the 2004 Act. 9. New section 4G of the 2004 Act particularises the transitional provision that can be made by an order under new section 4A of the 2004 Act by virtue of the existing powers in section 60(2) of the 2004 Act. This is intended to confirm that an order under section 4A can, if local arrangements should require, include provision for a PCC specified in that order to act as a shadow FRA to exercise preparatory functions in a period prior to assuming full responsibility for fire and rescue functions. Such functions may relate for example to governance matters or financial matters where the PCC may have a role in setting the fire precept that they would inherit. The powers also enable provision to be made, after the order is fully in force, for the equalisation of council tax precepts over a specified period where fire and rescue authority areas are altered by a section 4A order.
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