LEGAL AID, SENTENCING AND
PUNISHMENT OF OFFENDERS BILL
Part 3
Addendum to the
Delegated Powers Memorandum prepared by
the Ministry of Justice
for the
House of Lords Delegated Powers
and Regulatory Reform Committee
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Introduction
This Memorandum identifies amendments to Part 3 of the Bill tabled in the House of Lords
which confer powers to make delegated legislation, and it explains in each case why the
power has been taken and the nature of, and reason for, the procedure selected.
PART 3
SENTENCING AND PUNISHMENT OF OFFENDERS
CHAPTER 1
SENTENCING
General
Clause 61: Duty to give reasons for and explain effect of sentence
Power conferred on:
Lord Chancellor
Power exercisable by:
Order made by statutory instrument
Parliamentary procedure:
Negative resolution
The Memorandum for the Delegated Powers Committee (for introduction in the House
of Lords, 7th November 2011) contained the following details on this clause (see
paragraphs 214 to 216):
“Clause 61 gives the Secretary of State a power, by order, to exempt certain cases
from the duty to explain a sentence. This is a restatement of an existing power in
section 174 of the Criminal Justice Act 2003.
Changes are being made to simplify the provision to explain a sentence. Where such
sentences are obvious this may not be necessary. The Secretary of State can
therefore make the condition less onerous to the courts by removing this obligation for
certain types of offences (for example where there is a fixed penalty). The duty can
also be removed for convictions dealt with on paper (for example driving offences).
Such detail is suitable for delegated powers as it will alter over time depending on new
offences and new procedures.
The use of such a power and the exemptions will not be controversial and therefore the
negative resolution procedure is suitable.”
The committee made no observations on the power.
The order making power in clause 61 is in fact conferred on the Lord Chancellor, not
the Secretary of State, and this should have been reflected in the earlier memorandum.
Amendments are now proposed to clarify and reduce the scope of this order making
power to ensure that the duty to give reasons for the sentence and the duty to explain
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its effect can operate effectively in cases where the offender is absent. It is proposed to
retain a power that will allow the duty to give reasons for the sentence and the duty to
explain the effect of the sentence to be disapplied. This may be necessary in cases
which are largely dealt with on the papers, such as summary motoring offences. It is
proposed to amend the power to prescribe cases in which either the statement of
reasons or the explanation of effect can be given in writing or made in the absence of
the offender. The amendments would alter the power by allowing provisions to be
made about how the explanation of the effect of the sentence is to be given.
For the same reasons set out in the original statement above the power is suitable for
delegated power and for that power to be subject to the negative resolution.
Fines
Clause 80: Removal of limit on certain fines on conviction by the magistrates’
court
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
Amendments are being tabled to the Bill which will affect the powers under cl. 80 in a
few ways.
One set of amendments makes it clear that the power in cl. 80(2) applies on the
commencement day, so that it is not ‘always speaking’ (that is, it does not operate
whenever a new power comes into existence to create an offence punishable with a
fine of £5,000 or more (however expressed)).
A further amendment has the effect that powers under clause 80 may be exercised
from time to time. This means, in particular, that the power to substitute a new
maximum fine (see amendment to p. 62, line 7) where the effect of cl. 80(1) has been
disapplied by cl. 80(5)(a), may be exercised not only at the same time as the
disapplication, but subsequently. This is to ensure consistency by enabling any new
maximums of fixed amounts of £5,000 or more to be amended in the same way as
maximums of fixed amount of less than £5,000 (see cl. 81) and levels 1 to 4 on the
standard scale (see cl. 82). The affirmative resolution procedure will apply here, as it
does to the powers in cl. 80 generally.
A further amendment has the effect that the power in cl. 80(2) and the power in cl.
80(5)(a) apply in respect of common law offences. (There are a small number of
common law offences which attract maximum fines on summary conviction which are in
effect £5,000.)
Further amendments have the effect that powers to specify higher amounts are now
powers to specify any other amount. This would permit those powers to be exercised
to as to specify a lower amount.
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CHAPTER 2
BAIL
Clause 84 and Schedule 11: Amendments of bail enactments
Power conferred on:
Secretary of State
Power exercisable by:
Order made by Statutory Instrument
Parliamentary Procedure:
Negative Resolution
An amendment has been tabled to insert paragraph 28A into Schedule 11 to the Bill.
Paragraph 28A amends the Bail (Amendment) Act 1993. The 1993 Act currently
enables the prosecution to appeal to the Crown Court against the decision of a
magistrates’ court to grant bail to a defendant. The appeal provision is restricted to
those prosecutions conducted by the Director of Public Prosecutions or by a person
who falls within such class or description of person as may be prescribed, by order, by
the Secretary of State. The order made under this provision currently lists five
“prescribed prosecuting authorities”.
This amendment to the 1993 Act enables the prosecution to appeal to the High Court
against the decision of a Crown Court to grant bail to a defendant. It also extends the
use of the existing power for the Secretary of State to specify, by order, the prescribed
prosecuting authorities who can appeal to the High Court against a decision of the
Crown Court to grant bail to a defendant.
The order lists the prosecuting authorities which will change over time depending on the
amalgamation and creation of new prosecutors. The Secretary of State will need to be
able to react quickly to any such changes. Therefore the specification of such detail is
suitable for being dealt with by way of a delegated power.
The current power is deemed suitable to be dealt with by the negative resolution
procedure. The extension of this existing power is not controversial and will be used for
the same purposes but for different proceedings and courts. Therefore the negative
resolution procedure is appropriate for the extension of this existing delegated power.
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CHAPTER 3
REMANDS OF CHILDREN OTHERWISE THAN ON BAIL
Clause 96(10): Remands to Youth Detention Accommodation. Power to
provide by regulations that functions under cl. 96 are not exercisable by the
YJB concurrently with the Secretary of State.
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
Clause 96 gives the Secretary of State the power to direct to where a child remanded to
youth detention accommodation may be placed in consultation with the designated
local authority. By virtue of cl. 96(9), a function of the Secretary of State under cl. 96 is
exercisable by the Youth Justice Board concurrently with the Secretary of State.
Clause 96(10) gives the Secretary of State power to provide by order that that function
is not exercisable by the Youth Justice Board concurrently with the Secretary of State.
At the present time the placement of children on remand is managed by the Youth
Justice Board (as is reflected by clause 96(9)). The purpose of this delegated power is
to allow the Secretary of State to exercise this function instead. The requirement that
any such regulations be made by affirmative procedure reflects the importance of such
a decision and is in line with provisions in the Crime and Disorder Act 1998, s. 41(6)
which allows the Secretary of State power to amend or remove the functions of the YJB
as set out in that section by the same procedure.
Clause 97: Arrangements for remands
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
Clause 97 gives the Secretary of State the power to make arrangements for or in
connection with the accommodation in secure children’s homes of children remanded to
youth detention accommodation. By virtue of cl. 97(5), the functions of the Secretary of
State under cl. 97 are exercisable by the Youth Justice Board concurrently with the
Secretary of State. Clause 97(7) gives the Secretary of State power to provide by
regulations that that function is not exercisable by the Youth Justice Board concurrently
with the Secretary of State.
Substantially the same points fall to be made here as in respect of the power in cl.
96(10) above.
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CHAPTER 4
RELEASE ON LICENCE ETC
Paragraph 29 of New Schedule 20B to the Criminal Justice Act 2003 inserted
by paragraph 10 of Schedule 17 to the Bill: Restatement of transitional
provisions
Power conferred on:
Secretary of State
Power exercisable by:
Rules made by Statutory Instrument
Parliamentary Procedure:
Negative Resolution
Paragraph 10 of Schedule 17 inserts new Schedule 20B into the Criminal Justice
Act 2003 as part of the consolidation of existing release and recall regimes. There
are layers of legislation prescribing the release and licence provisions of existing
prisoners depending when their offence was committed or when they were
sentenced. Amendments are being tabled stripping away these layers and the
relevant transitional and saving provisions. Those release and licence provision to
be saved are reproduced as part of the Criminal Justice Act 2003 so that all
releases going forward will be made under that Act. New Schedule 20B has, at
paragraph 29 (additional days), restated paragraph 10 of Schedule 12 of the
Criminal Justice Act 1991. This allows for prison rules made under section 42 of the
Prison Act 1952 to include provision that forfeited remission time can be treated as
additional days.
The restatement of this provision relates to prisoners whose release is still subject
to the Criminal Justice Act 1967. Under that Act there was a different regime for
time added to a sentence for disciplinary offences. This power ensures that when
calculating a sentence end date any remission time forfeited for disciplinary
offences in prison will still apply in the current system.
The power is suitable for delegation as it is allows prescription of the process of
sentence calculation. There is precedent for such a power in section 257 of the
Criminal Justice Act which gives a power for prison rules to include provision for the
calculation of additional days – the equivalent to 1967 Act regime.
Prison rules are subject to negative resolution procedure and these matters have
been found suitable as such in the past and for the current similar provision.
CHAPTER 5
DANGEROUS OFFENDERS
Clause 117: Power to change test for the release on licence of certain
prisoners
Power conferred on:
Secretary of State
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Power exercisable by:
Order made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
The Memorandum for the Delegated Powers Committee (for introduction in the
House of Lords, 7th November 2011) contained the following details on this clause
(see paragraphs 275 to 281):
Clause 117 provides a power for the Secretary of State to change the release test
applied by the Parole Board for the initial release of a prisoner serving an
indeterminate sentence for public protection (IPP) under section 225 of the Criminal
Justice Act 2003 (“2003 Act”) (release for which is governed by section 28 of the
Crime (Sentences) Act 19971) or the new determinate extended sentence (sections
226A and 226B) inserted into the 2003 Act by the Bill (release for which is under the
new section 246A as inserted by the Bill).
The power allows the Secretary of State to make an order setting out the conditions
under which the Parole Board release of prisoners serving IPP sentences or the
new extended sentence. The conditions may be either requirements that must be
satisfied for release to be directed or requirements that must be satisfied for release
to be refused. The power allows for consequential amendment of the sections
which would need to be altered to achieve the change.
For the following reasons we believe that this is a suitable delegation.
Currently the Parole Board direct the release of life prisoners, certain determinate
sentence prisoners whose offences were committed before 4 April 2005 (1991 Act
prisoners), some extended sentences under the 2003 Act and all recalled prisoners
who are not subject to automatic release. The current test for IPP prisoners is the
same as that for lifers and this has been adopted for the new determinate extended
sentences. However, there is no release test set out in legislation for release of
1991 Act prisoners. Nor is there any legislative Parole Board release test for
recalled offenders serving any type of sentence. Therefore, there it is not deemed
necessary to have a release test set out in primary legislation.
It is not clear whether a release test set for indeterminate sentences is suitable for
determinate sentences where the considerations will be different (if not released
early by the Parole Board release will at some point become automatic). It is also
not clear that the current test for IPP’s is the right test when the release rate of such
prisoners is considerably lower than that of life sentence prisoners where the same
test is applied. In the sentencing Green Paper we raised the issue of whether the
Parole Board’s test for release in these cases was the right one, and committed to
explore further whether the current release test for IPPs (and consequently now the
new extended determinate sentence) ensures effective public protection while
allowing offenders to demonstrate that they can be safely managed in the
community. In the interests of justice we would want to be able to respond swiftly to
any conclusion that that the release test should be revised so that different
conditions can be satisfied.”
Changing the release test will not change the parameters of the sentence set by the
court. Nor will it change the eligibility points for release which are set out in the
primary legislation. Although secondary legislation was deemed suitable to alter the
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1997 c.43
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proportion of a determinate sentence which must be served in custody (section 269
of the 2003 Act).
The affirmative resolution procedure is suitable because exercise of the power will
amend primary legislation.
The committee made no observations on the power.
Amendments consolidating the release and recall provisions are being laid which
will provide consistency in all determinate sentences subject to Parole Board
release so that all the release tests are the same. Amendment will also be laid to
extend the power in clause 117 to allow for such tests to be altered. This will apply
to existing prisoners subject to Parole Board release who are long term prisoners
under the Criminal Justice Act 1991 who committed an offence listed in Schedule
15 of the 2003 Act and certain old extended sentences subject to Parole Board
release. These sentences apply to similar offences as included in the new extended
sentence to which this power already applies. The amendments will ensure that the
order making power can be applied consistently across all forms of determinate
sentence release where the test is used and such tests can be altered at the same
time.
For the reasons set out in the earlier memorandum and reproduced above the
power is suitable for delegation. The power for the amendments will also be subject
to the affirmative procedure.
CHAPTER 8
REHABILITATION OF OFFENDERS
Clause 131: Establishment or alteration of rehabilitation periods
Power conferred on:
Secretary of State
Power exercisable by:
Order made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
Clause 131 gives the Secretary of State a power, by order, to amend the
rehabilitation periods for adult and young offenders (see table in the new section
5(2) of the Rehabilitation of Offenders Act 19742). It also allows changes to the
rehabilitation period for community, youth or relevant orders set out in section 5(3)
of the Act. This is a restatement of an existing power in section 5(11) of the
Rehabilitation of Offenders Act 1974.
Section 5 deals with rehabilitation periods for sentences within the scope of the
Rehabilitation of Offenders Act 1974. Clause 131 re-writes section 5, extending the
types of sentences within the scope of the Act and simplifying the content. The
order making power allows the Secretary of State to amend the rehabilitation
periods set out in the section. The power in this clause replaces the current power
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1974 c.53.
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in section 5. It has been amended purely to reflect the changes to the structure of
section 5.
Such detail is suitable for delegated powers as it allows rehabilitation periods to be
amended to reflect changing sentencing practices in a flexible way. Although the
power has not been used before, the appropriateness of the length of rehabilitation
periods is kept under review.
The affirmative resolution procedure is suitable because exercise of the power will
alter the effect of primary legislation.
Schedule 24: Rehabilitation of Offenders: Consequential Provisions
Power conferred on:
Secretary of State
Power exercisable by:
Order made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
Paragraph 10 of Schedule 24 expands the order making powers of the Secretary
of State under the Rehabilitation of Offenders Act 19743 to allow for orders made
under the relevant powers in the Act to also make consequential, supplementary,
incidental, transitional, transitory and savings provisions.
Orders made under the 1974 Act will be amending the Act itself, for example the
rehabilitation periods set out in the Act. As such orders will be amending the
primary legislation it may be necessary to make consequential, supplementary,
incidental, transitional, transitory and savings provisions to ensure any
amendments can be brought into effect appropriately. It may be that some
changes would only take effect for sentences imposed after the changes and
therefore the unamended provisions would need to be saved for those already
sentenced.
Such detail is suitable for delegated powers as it facilitates the operation of
exercising any of the other Order making powers. It will not be evident until the
other orders are drafted if the use of this power is necessary. Therefore the use of
this power relies on the creation of other secondary legislation and cannot set out
in primary legislation. .
This power will be used with order making powers amending primary legislation
and may also be used to make consequential amendment to primary legislation.
Therefore, it is suitable for the power to be subject to the level of scrutiny under
the affirmative resolution procedure.
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1974, c.53.
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