HUMAN RIGHTS COMPATIBILITY
2. This is the first bill on which we have reported
on which a report has been available from the Joint Committee
on Human Rights (JCHR). That Committee conducted an initial case
study of the Criminal Justice and Police Bill prior to its Report
stage in the House of Commons. Although it has not yet made any
detailed conclusions and recommendations it has published the
evidence it received from the Government and other organisations,
including Liberty and the Law Society, on this bill.[1]
This evidence included comment on the travel restriction orders
against drug trafficking offenders which courts may make under
Clause 33 (paragraphs 25-31 of the memorandum by the Home Office
to the JCHR) and on the disclosure of information for the purposes
of criminal investigations and criminal proceedings (paragraphs
54-62 of that memorandum) - see clauses 47 to 50. We have considered
these comments but they relate to the substantive powers granted
by the bill and we do not see them as raising issues relevant
to the question whether particular powers are appropriately delegated.
AFFIRMATIVE POWERS
ON THE SPOT PENALTIES
3. Clauses 1 to 11 are concerned with "on the
spot penalties" for disorderly behaviour. The Table in subsection
(1) of clause 1 lists the offences covered by these provisions;
subsection (2) allows the Secretary of State by order to "amend
an entry in the Table or add or remove an entry". Subsection
(3) allows an order to make consequential amendments to the bill.
4. The Home Office memorandum draws attention to
the novelty of this provision:
"This is a wholly new scheme and the department
will be closely monitoring its introduction to ensure that it
is targeted in an appropriate and effective way. Such experience,
and changing patterns of criminal behaviour mean it is likely
that from time to time this list will need amending. Experience
of the scheme may suggest that certain offences are unsuitable
for the scheme, or new offences may be considered appropriate
for adding to the list and we believe that it is important to
be able to respond flexibly to such experience to ensure the fairness
and effectiveness of the scheme. We suggest that, once the principle
of the availability of penalty notices for criminal offences has
been accepted by Parliament, primary legislation will not be necessary
in order to amend, add to or remove an offence from the list of
offences."
5. This power to amend the bill is important and
relates to a controversial new development in the criminal law
but it is clearly defined, cannot increase existing penalties,
and is subject to affirmative procedure. This has persuaded us
that it is appropriately delegated.
OTHER AFFIRMATIVE POWERS
6. Clause 33 enables a court sentencing an offender
for a "drug trafficking offence" to impose on him a
travel restriction order. Clause 34(1) defines "drug trafficking
offence" and paragraph (c) allows other offences under the
Misuse of Drugs Act 1971 to be added by order. Subsection (3)
allows an order to limit the designation of an additional offence
to designation for limited purposes or to offences committed in
such manner or in such circumstances as the order specifies. In
the view of the Committee the limitation to offences under the
1971 Act and the application of affirmative procedure make this
acceptable.
7. Clause 44 inserts five new sections in the Companies
Act 1985. These are concerned with providing confidentiality for
the usual residential address of the director, secretary and permanent
representative of a company who fears that disclosure of those
details would make him or those who live with him subject to violence
or intimidation. Under new section 723B(3) the Secretary of State
may make a confidentiality order. Subsections (5) to (10) leave
the detailed procedure (which includes provision of a "review"
of determinations) to be prescribed by regulations. New section
723C deals with the effect of confidentiality orders and subsections
(2) to (7) leave the detail to regulations. New section 723D (construction
of sections 723B and 723C) provides for further regulations. Finally
new section 723E allows regulations to create offences of making
false statements in an application for a confidentiality order
or disclosing information in contravention of regulations under
section 723E(2). All these powers to make regulations are made
subject to affirmative procedure by new section 723F(5) and subsection
(4) of that section enables regulations to repeal or modify any
enactment. The Committee considers that affirmative procedure
is appropriate and that it enables the Committee to accept that
delegation of these significant powers is appropriate.
8. The next affirmative power is in clause 70. This
clause is in Part 3 of the bill which deals with powers of seizure.
The Explanatory Notes give an account of the 21 clauses and two
Schedules in this Part. Clause 51 extends existing powers of seizure
from premises to cure a defect in the present law revealed in
the case, decided in the Divisional Court in 1999, which is discussed
in paragraph 150 to 153 of the Explanatory Notes. Clause 52 makes
a similar extension to existing powers of seizure from the person.
The Existing powers to which these clauses apply are set out in
Parts 1 and 2 of Schedule 2. Clause 64 provides that most of the
provisions of Part 3 shall apply to copies as they do to originals
and "Accordingly the powers in clauses 51 and 53 and the
protection in clauses 55, 56 and 60 apply to copies of material
taken under the powers listed in Schedule 2" (paragraph 174
of the Explanatory Notes). The powers listed in subsection (3)
are powers given to the police and others to obtain hard copies
etc. of information which is stored in electronic form and subsection
(2)(c) applies the protection in clauses 55, 56 and 60 to copies
obtained under those powers as if those copies had been obtained
under powers of seizure. Clause 70 allows the Secretary of State
to make an order adding to the lists of powers in Schedule 2 or
clause 64(2). The added power must, therefore, be a power of seizure
from premises or person or a power to obtain a hard copy of electronically
stored information.
9. The effect of adding a power to Schedule 2 is
to extend to that power the additional powers created by clause
51 or 52, as the case may be, while adding a power to clause 64(2)
is to extend the protection in clauses 55, 56 and 60 to copies
taken under that power. We have considered whether the extension
of a power by adding it to Schedule 2 is an appropriate delegation
of legislative power. We have concluded that it is: Parliament
will have approved the general policy behind clauses 51 and 52
if those clauses survive; the clauses are applied by Schedule
2 to a great many powers and the addition of one or more powers
does not in our view raise issues of such importance that primary
legislation is required; and affirmative procedure provides for
Parliamentary control.
10. Clause 70 contains two supplementary powers -
the powers to modify Part 3 of the bill and to modify any enactment
applying to the power designated in the order. Again we considered
whether this was appropriate delegation. We noted that the power
to modify Part 3 was limited to consequential modifications but
that the power to modify other enactments was not. We understand
that it may be necessary to make provisions about the designated
power similar to those made by Schedule 3 in respect of those
powers already listed in Schedule 2. We think that the bill
should be amended to make clear that these modifications of enactments
should be confined to those which are consequential on the designation
of a particular power. There may be drafting difficulties in achieving
this but unless they would make the provision too lengthy or clumsy,
we see an amendment as necessary to make the delegation appropriate.
11. The last of the affirmative powers is in Clause
77. Subsection (1) inserts a new section 60A in the 1984 Act under
subsection (1)(a) of which the Secretary of State will have power
to issue a code of practice for the visual recording of interviews
in police stations. Subsection (2) of Clause 77 amends section
67(2) of the 1984 Act to apply to such a code the provisions of
that Act about orders made under it. These include consultation
and the laying of a draft before Parliament. Under section 67(5)
an order bringing a code into operation has no effect until approved
by both Houses. We discuss clause 77 further in paragraph 15 below.
NEGATIVE POWERS
12. As the Home Office memorandum has given a full
account of all the other powers in the bill the Committee has
found it necessary to refer in this report only to those which
may be of particular interest to the House. Those that the Committee
does not mention it considers to be appropriately delegated and
not requiring affirmative procedure.
13. Clause 12 confers police powers to stop "alcohol
consumption in designated public places". Clause 13 is concerned
with the designation by local authorities of public places where
nuisance, annoyance or disorder has been associated with the consumption
of alcohol in that place. Clause 14 limits the scope of
"public place" by excluding places where the consumption
of alcohol is authorised by the licensing laws. While the decisions
about designation are for the local authority, the Secretary of
State prescribes the procedure in regulations under clause 13(4).
The Committee thinks this appropriate.
14. Clause 74 makes provision allowing the use of
video and telephone links for decisions about detention. The section
inserts two new sections in the Police and Criminal Evidence Act
1984. New section 45A allows regulations to provide that, in the
case of an arrested person held in a police station, some or all
of the functions listed in subsection (2) may be performed by
an officer elsewhere who is using video conferencing facilities.
The Committee sees as appropriate the division between provisions
in the clause and those left to regulations and accepts that negative
procedure is appropriate.
15. Clauses 77 and 78 are concerned with codes of
practice about police procedures (interviews etc.). Clause 77(1)
inserts a new section 60A (visual recording of interviews) in
the 1984 Act. We have discussed earlier subsection (1)(a) of the
new section, which allows the Secretary of State to issue a code
of practice about the visual recording of interviews. Subsection
(1)(b) allows the Secretary of State to make an order requiring
the visual recording of interviews in accordance with his code.
The amendment made to the 1984 Act by clause 78 allows the Secretary
of State to modify by order any code under the 1984 Act in relation
to an area of England and Wales, for a period not exceeding two
years or in relation to certain offences or offenders (or any
combination of these three). The Committee sees these delegated
powers as consistent with the 1984 Act and appropriate delegation,
and the negative procedure as appropriate.
16. Clause 132 amends the Bail Act 1976 to provide
for the electronic monitoring of bail conditions imposed on a
child or young person. The new section 3AA restricts the circumstances
in which an electronic monitoring condition can be imposed by
a court. Subsections (7) to (10) provide for rules made by the
Secretary of State to regulate the monitoring of such conditions.
The Committee sees this as a proper division between primary and
delegated legislation.
17. A similar issue arises in relation to the new
section 23AA inserted by clause 133(2) in the Children and Young
Persons Act 1969.
POWERS NOT SUBJECT TO PARLIAMENTARY CONTROL
18. Clause 17 inserts a number of new sections in
the Licensing Act 1964. Among these is section 179F (procedural
requirements) subsection (5) of which confers power on the Secretary
of State to make regulations about the procedure and practice
of licensing justices in proceedings under sections 179B (closure
orders) and 179E (revocation of justices' licence etc. after closure
order). These procedural regulations are not subject to Parliamentary
control and the memorandum argues that this is consistent with
the 1964 Act where procedural rules are also not subject to Parliamentary
control. The Committee agrees with this approach.
19. Clause 79 (taking of fingerprints) amends the
1984 Act. Subsection (7) inserts a new subsection (8A) in section
61 which requires any device used to take fingerprints electronically
to be one approved for the purpose by the Secretary of State.
Similarly clause 81(4) inserts a new subsection (9A) in section
63 of the 1984 Act which requires any device used to take a skin
impression electronically to be one approved for the purpose by
the Secretary of State. The memorandum treats these as delegated
powers but they are not exercised by order or regulations, are
not statutory instruments and are not subject to Parliamentary
control. In view of the administrative nature of this control
over the choice of suitable electronic equipment the Committee
sees this as appropriate.
20. The powers to make rules conferred by the amendments
made by clauses 132(2) and 133(2) have been discussed earlier.
Those amendments also confer power on the Secretary of State to
specify by order the description of persons who may be made responsible
for the electronic monitoring ordered by a court under those provisions.
The Secretary of State's orders are to be statutory instruments
but are not made subject to Parliamentary control. The memorandum
argues that these orders merely notify the courts of suitable
persons available to the courts in particular areas and are not
appropriate for Parliamentary control. The Committee agrees with
this approach.
RECOMMENDATION
21. The Committee has suggested that Clause 70(1)(c)
of the bill should, if practicable, be amended to make clear that
modifications of enactments made under it should be confined to
those which are consequential on the designation of a particular
power. There is nothing else in the bill which the Committee wishes
to draw to the attention of the House.
1 Joint Committee on Human Rights, First Special
Report: Criminal Justice and Police Bill, session 2000-2001,
HL Paper 42, HC 296. Back
