Serious Crime Bill
Delegated Powers – Supplementary Memorandum by the Home Office
The Commons amendments to the Serious Crime Bill include a number of
new delegated powers. This supplementary memorandum explains why the
powers have been taken and the reason for the procedure selected.
Commons Amendment 5: Power to make regulations adding to,
removing from or otherwise altering the descriptions of “regulated
profession”
Power conferred on:
The Secretary of State
Power exercisable by:
Regulations made by statutory instrument
Parliamentary procedure:
Affirmative
2. Commons Amendment 5 would insert into the Bill new clause “Duty to
notify police of female genital mutilation” which, in turn, would insert new
section 5B into the Female Genital Mutilation Act 2003 (“the FGM Act”). New
section 5B would place a duty on a person working in a “regulated profession”
to notify the police when, in the course of their work, they discover that an act
of female genital mutilation appears to have been carried out on a girl who is
aged under 18. By virtue of new section 5B(2)(a) of the FGM Act, the duty
would apply to healthcare professionals, teachers and social care workers in
Wales on the basis that this range of professionals are most likely to acquire
the required direct knowledge that a child has been subjected to FGM either
as a result of a visual confirmation or as a result of the victim disclosing to
them that she has been subjected to FGM. However, new section 5B(8) would
confer on the Secretary of State a power to add to, remove from or otherwise
alter, the descriptions of “regulated profession” to whom the duty applies.
3. The regulation-making power includes a power to make consequential,
transitional, transitory or saving provision (new section 5B(9)(b)). In particular,
it may be necessary to amend, add to or remove definitions in new section
5B(11) and (12).
4. This regulation-making power would afford the flexibility to extend the
categories of professionals to whom the duty applies if, in the light of
experience, it is evident that other professionals would have the requisite
knowledge as a result of victims making disclosures to them, for example,
early years professionals. Such a power is considered appropriate as
Parliament would have approved the principle of the mandatory reporting duty
and its application to persons working in specified categories of “regulated
professions”. The power can only be used to add to, remove from or
otherwise alter the descriptions of regulated professions to which the duty is
to apply and could not be used to extend (or narrow) the scope of the
reporting duty, for example so that it applied in respect of victims over 18 or to
suspected victims in any age group. The power to extend the categories of
regulated professionals to whom the duty is applied is therefore narrowly
drawn, albeit that the power could, in principle, be used to apply the duty to
any class of person operating in a professional capacity and subject to some
level of regulation (for example, youth workers).
5. By virtue of new section 5B(10) of the FGM Act, the regulation-making
power is subject to the affirmative procedure. This is considered appropriate
given the ‘Henry VIII’ nature of the power. It also recognises that in adding the
new clause to the Bill Parliament will have agreed a particular set of regulated
professions to whom the duty should apply and will ensure that both Houses
have the opportunity to consider and approve any changes to the range of
regulated professionals before such changes can take effect.
Commons Amendment 6: Power to issue guidance in relation to the
Female Genital Mutilation Act 2003
Power conferred on:
Secretary of State
Power exercisable by:
Statutory Guidance
Parliamentary procedure
None
6. The FGM Act already provides for offences in relation to FGM. Clauses 69
to 72 of the Bill make a number of amendments to the FGM Act to further
strengthen the criminal and civil law to tackle FGM. These provisions extend
the extra-territorial reach of the offences in the FGM Act so that they apply to
offences involving habitual (as well as permanent) UK residents; introduce a
new offence of failing to protect a girl at risk of FGM, grant lifelong anonymity
to victims, and provide for a civil order (the FGM protection order) to protect
potential victims. And, as indicated above, new clause “Duty to notify police of
female genital mutilation“ further amends the FGM Act to place a duty on
specified regulated professionals to notify the police when, in the course of
their work, they discover that an act of FGM appears to have been carried out
on a girl who is aged under 18. To complement these provisions, Commons
Amendment 6 would insert new section 5C into the FGM Act which would
enable the Secretary of State to issue guidance about any of the provisions in
the FGM Act, as amended, or other matters relating to FGM. In preparing the
guidance, the Secretary of State would be under a duty to consult the Welsh
Ministers so far as the guidance is to a body exercising devolved Welsh
functions, and such other persons as she considers appropriate. Persons
exercising public functions to whom the guidance is given will be under a duty
to have regard to the guidance when exercising such functions.
7. The intention is to place relevant aspects of the existing multi-agency
practice guidelines on FGM1, updated to reflect the provisions in the Bill, on a
1
Available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380125/MultiAg
encyPracticeGuidelinesNov14.pdf
statutory footing. That guidance provides information on identifying when a girl
or young women may be at risk of FGM and responding appropriately to
protect them, identifying when a girl or young women has been subjected to
FGM and responding appropriately to support them, and measures that can
be implemented to prevent the practice of FGM. The revised guidance would
detail the changes to the FGM Act and, in particular, provide information on
applying for FGM protection orders and complying with the statutory duty to
report known cases of FGM against girls and young women under 18. Placing
the existing guidance on a statutory footing would help promote awareness
amongst public authorities of the strategies and powers available to them to
tackle FGM.
8. Any guidance issued under new section 5C of the FGM Act would not be
subject to any parliamentary scrutiny, on the grounds that it would provide
practical advice on the application of the legislative provisions and would be
worked up in consultation with all interested stakeholders and practitioners.
The guidance will not conflict with, or alter the scope of, the criminal offences
or civil powers in the FGM Act, as amended. Moreover, whilst a person
exercising public functions will be required to have regard to the guidance
when exercising those functions, the guidance will not be binding to the extent
that this requirement falls short of a duty to follow the guidance. The approach
taken in the new clause is consistent with other legislative provisions
providing for statutory guidance, in particular section 63Q of the Family Law
Act 1996 in relation to forced marriage.
Commons Amendment 8: Power to issue guidance in relation to new
offence of controlling or coercive behaviour in intimate or family
relationships
Power conferred on:
Secretary of State
Power exercisable by:
Statutory Guidance
Parliamentary procedure
None
9. Commons Amendment 8 would provide for a new domestic abuse offence.
The new clause (“Controlling or coercive behaviour in an intimate or family
relationship”) sets out the elements of the new offence. In appropriate cases
certain terms used in the construction of the offence are defined in the
legislation, for example the term “members of the same family”, while others,
such as “controlling or coercive” are left undefined and will take their ordinary
meaning. In the normal way, it will be a matter for a jury or magistrates to
determine whether, on the facts of a particular case, the offence has been
made out. That said, the Government sees the merit in providing guidance to
the police to accompany the new offence to assist police forces in
understanding and investigating the new offence, and in giving statutory
underpinning to such guidance. Statutory guidance is also expected to be of
value to third sector organisations and others working in the field of domestic
abuse. Accordingly, new clause “Guidance”, inserted by Commons
Amendment 8, would confer a power on the Secretary of State to issue
guidance to whatever persons she considers appropriate concerning the
investigation of the new offence. This is accompanied by a power to revise
any guidance which is issued, and a duty to arrange for any guidance that is
issued or revised to be published. Amongst other things, such guidance would
provide examples of the kind of behaviours that might be considered to be
controlling or coercive when the offence is being investigated.
10. Any guidance issued under the new clause would not be subject to any
parliamentary scrutiny, on the grounds that it would be worked up in
consultation with all interested stakeholders and practitioners. The guidance
will not conflict with, or alter the scope of, the new criminal offence, which will
itself be the subject of parliamentary scrutiny during the passage of this Bill.
And finally, new clause “Guidance” does not impose any obligation on any
named public authorities or individuals to follow the new statutory guidance.
The approach taken in the new clause is consistent with other legislative
provisions providing for statutory guidance, for example, section 63Q of the
Family Law Act 1996 in relation to forced marriage and sections 19, 32, 41,
56, 73 and 91 of the Anti-social Behaviour, Crime and Policing Act 2014 in
respect of powers for tackling anti-social behaviour.
Commons Amendment 10: Power to make regulations conferring power
on a court to order a communications provider to disconnect a mobile
phone in use in prison without authorisation
Power conferred on:
The Secretary of State and the Scottish
Ministers
Power exercisable by:
Regulations made by statutory instrument
Parliamentary procedure:
Affirmative
11. New clause “Prevention or restriction of use of communication devices by
prisoners etc”, inserted by Commons Amendment 10, would confer on the
Secretary of State (in relation to England and Wales) and the Scottish
Ministers (in relation to Scotland) a power to make provision by regulations
conferring power on a court to make a “telecommunications restriction order”.
This is an order which would require a communications provider to take
whatever action the order specifies for the purpose of preventing or restricting
the use of a mobile phone (or other communications device) in a prison where
the use of the phone is unauthorised. The new clause sets out what
regulations must make provision about (subsection (3)) and what they may
make provision about (subsection (4)). It also defines certain terms, such as
“communications provider” (subsection (8)).
12. Mobile phones in prisons are associated with numerous crimes, including
the illicit supply of drugs and other organised crime. There are a number of
offences relating to the use of mobile phones in prisons without authorisation.
These can be found in the Prison Act 1952 (for England and Wales). Similar
offences exist for Scotland. Section 40D(1) of the Prison Act 1952 creates the
offence of taking a photograph or making sound recordings in a prison or
transmitting any image or sound by electronic communications. Section
40D(3) creates offences designed to prohibit the conveyance or transmission
of restricted documents out of a prison. Section 40D(3A) creates an offence in
relation to the possession of, inter alia, a mobile phone, without authorisation.
13. ‘Authorisation’ for the purposes of section 40D of the Prison Act 1952 is
defined in section 40E of that Act and means authorisation given for the
purposes of that section in relation to all prisons or prisons of a specified
description, by prison rules or by the Secretary of State; and in relation to a
particular prison—



by the Secretary of State;
by the governor or director of the prison;
by a person working at the prison who is authorised by the governor or
director to grant authorisation on his behalf.
14. The Prisons Rules 1999 provide for powers of confiscation of
unauthorised articles:
‘43(5) The governor may confiscate any unauthorised article found in
the possession of a prisoner after his reception into prison, or
concealed or deposited anywhere within a prison.’.
15. Detection technology and cell and prisoner searches are currently used to
identify and seize phones in prison. However, many of the phones in question
are not found resulting in few prosecutions and relatively few confiscations.
16. Although communications providers may be able to disconnect the
phones in question in accordance with the terms and conditions attached to
usage, this is not certain. Consequently, the Government considers it
necessary to make bespoke provision via regulations where a court can order
the communications provider to disconnect the phone.
17. The Government considers that it is appropriate to put the detail pertaining
to this measure into regulations, since some of it will necessarily be technical
in nature. As technology evolves, and new equipment becomes available, it
may for instance be necessary to update the detection to disconnection
process. Technology has a limited lifespan and therefore, by including
technical details about the process in regulations as opposed to on the face of
the Bill, we are better placed to amend if required. Further, given that
technology changes rapidly and that therefore it may be necessary to modify
the provisions accordingly, it is more practicable to do this via secondary
legislation. That said, whilst the scheme is to be set out in secondary
legislation, the purpose of the scheme, namely to confer a power on the civil
courts to require communication providers to take specified action to prevent
or restrict the use of mobile phones by prisoners, is clearly set out on the face
of the new clause (subsections (1) and (2)). Moreover, the new clause
requires that any regulations must include certain core elements of the
scheme (subsection (3)), including key safeguards in respect of rights to make
representations and provision about appeals. Subsection (4) sets out matters
about which the regulations may make provision.
18. Given that the scheme itself is to be set out in secondary legislation, and
in order to ensure that the rights of those affected are fully considered, the
Government considers that it is appropriate for the regulations to be subject to
the affirmative procedure thereby ensuring that the details of the scheme must
be debated and approved by both Houses (or, in Scotland, by the Scottish
Parliament).
Home Office
24 February 2015