INTRODUCTION

• The Criminal Justice and Police Bill is in seven parts. Part 1 contains provisions for combatting crime and disorder. Part 2 concerns information disclosure for the purposes of criminal proceedings. Part 3 deals with powers of seizure. Part 4 amends the Police and Criminal Evidence Act 1984, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the Terrorism Act 2000. Part 5 covers Police Training. Part 6 covers police organisation. Part 7 makes various miscellaneous and supplemental provisions.
• This memorandum identifies the provisions in the Bill which confer powers to make delegated legislation. It explains in each case the purpose of the power, the reason why it is suitable for delegated legislation, and the nature and justification for any parliamentary procedures which apply.

CHAPTER 1 OF PART 1 OF THE BILL - ON THE SPOT PENALTIES FOR DISORDERLY BEHAVIOUR (FIXED PENALTY NOTICES)

CLAUSE 1(2): POWER OF THE SECRETARY OF STATE BY ORDER TO AMEND AN ENTRY IN THE TABLE OF OFFENCES FOR WHICH PENALTY NOTICES MAY BE GIVEN OR TO ADD OR REMOVE AN ENTRY, AND TO MAKE SUCH CONSEQUENTIAL AMENDMENTS TO PART 1 CHAPTER 1 OF THE BILL AS HE CONSIDERS NECESSARY.

POWER CONFERRED ON:      THE SECRETARY OF STATE

POWER EXERCISABLE BY:    ORDER MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  AFFIRMATIVE RESOLUTION

• Clause 1(1) lists the offences for which penalties notices may be given under Part 1, Chapter 1, of the Bill (On The Spot Penalties for Disorderly Behaviour).
• The power in Clause 1(2) allows the Secretary of State to amend the list, by amending an entry, or adding or removing an entry, by order. This power is exercisable by statutory instrument, subject to the affirmative resolution procedure.
• Clause 2(4) makes clear that by paying a penalty any liability to conviction of the offence is discharged. Clause 4 protects the right of an individual receiving a penalty notice by allowing him to ask for a trial as an alternative to paying the penalty. Clause 5(2) provides that if a penalty is paid within 21 days of issue - "the suspended enforcement period" - no proceedings may be brought for the offence.
• Penalty notices do not therefore affect the ability of any individual to seek a trial in relation to any alleged offence: they are purely an alternative which the police can offer and the alleged offender can accept. Where the alleged offender chooses to be tried he retains all the rights in relation to that trial which he would have had if charges had been brought in the conventional way.
• 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.
• Affirmative resolution procedure will ensure that proper scrutiny can be given to any proposals by the Secretary of State to exercise his power under Clause 1(2).

CLAUSE 3(1): POWER TO SPECIFY THE AMOUNT OF THE PENALTY IN RESPECT OF A PENALTY OFFENCE, SUBJECT TO THE LIMITATION THAT THE PENALTY MUST NOT EXCEED ¼ OF THE MAXIMUM PENALTY FOR WHICH A PERSON IS LIABLE ON CONVICTION OF THE OFFENCE.

POWER CONFERRED ON:      THE SECRETARY OF STATE

POWER EXERCISABLE BY:    ORDER MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  NEGATIVE RESOLUTION

• Clause 3(1) allows the Secretary of State to specify, by order, the sum to be payable in respect of a penalty offence. The penalty specified for a penalty offence must, if the scheme is to fulfil its purpose, be set so as to encourage payment. The penalty must therefore be favourably related to the penalty that an offender might expect to receive if he were convicted of the offence in court. Because the recipient has the right to ask for a trial in every case, setting a penalty too high would be self-defeating.
• Setting a penalty correctly so as to encourage payment is not an exact science. The government has said that it intends, with the co-operation of the police, to test the scheme before it is introduced nationally. It may well be necessary after testing to adjust the penalties to achieve improved results.
• It will be necessary, if new offences are added to the list in Clause 1, to specify a penalty that is appropriate to the offence. It will also be necessary from time to time to adjust the penalties in line with current sentencing practice and inflation.
• Because of this need for continued flexibility the department believes it is appropriate for the Secretary of State to set the levels of penalties by order.
• The Secretary of State's power to set penalties is limited by the provision in Clause 3(2) which sets a cap of one quarter of the maximum fine for the offence in question.
• In view of the fact that an individual retains the right to be tried in relation to any offence alleged in a penalty notice and because of the limit on the Secretary of State's power provided in the Bill, it is the department's opinion that the scrutiny provided by the negative resolution procedure is sufficient.

CLAUSE 3(3) AND 3(4): POWER TO PRESCRIBE THE FORM OF THE PENALTY NOTICE, GIVEN THAT THE NOTICE MUST INCLUDE AT LEAST THE MINIMUM INFORMATION SET OUT IN CLAUSE 3(3) (B)-(G)

POWER CONFERRED ON:     THE SECRETARY OF STATE

POWER EXERCISABLE BY:    REGULATIONS MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  NEGATIVE RESOLUTION

• Clause 3(3)(a) requires that a penalty notice, issued to an offender in respect of a penalty offence listed in Clause 1, must be in the prescribed form. Clause 3(4) provides that this is to be achieved by regulations made by the Secretary of State. Clause 3(5) provides that the power to make regulations is to be exercisable by statutory instrument and Clause 3(6) subjects such an instrument to the negative resolution procedure.
• The power to prescribe the form of the notice is not unlimited. Clause 3(3) (b)-(g) ensures that the form of notice specified by the Secretary of State must include sufficient information as to provide reasonable information about the offence and the options open to the alleged offender in terms of paying the penalty or opting for a trial. This should enable the recipient to take an informed decision how to respond, and therefore ensures the rights of the individual are protected.
• It is important that the form of the penalty notice itself is clear and easily understood and that where experience shows that parts of the form cause difficulties in practice they can be amended relatively quickly. In addition it will be necessary to review the form and the information it contains from time to time to reflect changes in, for example, administrative details, penalties, or the offences covered by the scheme. The ability to specify the contents of the form using this power will ensure that this is the case.
• The existence of a power to specify the form of the notice in regulations will ensure consistency of practice around the country. The list of information which the Secretary of State must include on the form by virtue of clause 3(3) is such as to ensure the rights of the individual are fully protected. The department therefore believes that the Secretary's of State's power is considerably curtailed by Clause 3(3) and that the negative resolution procedure is appropriate.

CLAUSES 12 TO 16 OF PART 1 - ALCOHOL CONSUMPTION IN DESIGNATED PUBLIC PLACES

CLAUSE 13(4): POWER TO PRESCRIBE PROCEDURE TO BE FOLLOWED BY LOCAL AUTHORITIES IN DESIGNATING PUBLIC PLACES FOR THE PURPOSES OF CLAUSE 13

POWER CONFERRED ON:     THE SECRETARY OF STATE

POWER EXERCISABLE BY:    ORDER MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  NEGATIVE RESOLUTION

• Clauses 12 to 16 contain provisions related to the control of alcohol consumption in designated public places. The police will be able to require a person not to drink alcohol in these areas and seize opened containers of alcohol. Failure to comply with either requirement will be an offence. The powers will only be available in areas designated for this purpose by order by local authorities. Before designating a public place in their area, the authority must be satisfied that nuisance or annoyance to the public or disorder has been associated with the consumption of alcohol in that place.
• Clause 13(4) provides power for the Secretary of State to make regulations prescribing the procedure to be followed in the making of such orders. Clause 13(5) provides that the regulations must include publicity requirements as to the making and effect of such orders. The regulations are also likely to contain provisions as to consultation eg of owners of land affected and parish councils and as to the procedural requirements for the making of an order.
• The criteria for making a designation order are set out on the face of the Bill and negative resolution procedure is considered appropriate for these regulations as to the procedure to be followed in making an order.

CLAUSES 17 TO 32 - CLOSURE OF CERTAIN LICENSED PREMISES AND UNLICENSED PREMISES, OTHER PROVISIONS FOR COMBATING ALCOHOL RELATED DISORDER.

• Clauses 17 and 18 and clauses 19 to 28 deal with closure of certain licensed premises and unlicensed premises respectively. Clauses 29 to 32 make other provision for combatting alcohol related disorder.

CLAUSE 17 - NEW SECTION 179F(5) OF THE LICENSING ACT 1964 - POWER TO MAKE REGULATIONS ABOUT THE PROCEDURE AND PRACTICE TO BE FOLLOWED IN PROCEEDINGS BEFORE LICENSING JUSTICES UNDER SECTIONS 179B AND 179E OF THE 1964 ACT.

POWER CONFERRED ON:      THE SECRETARY OF STATE

POWER EXERCISABLE BY:    REGULATIONS MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  NONE

• Clause 17 inserts sections 179A to 179K into the Licensing Act 1964, providing for the closure of certain licensed premises in the event of disorder or disturbance. Section 179F sets out various procedural requirements relating to the court hearings which will follow a closure order made by the police. Subsection (5) allows the Secretary of State to make regulations in connection with proceedings before licensing justices at two different stages of the process which follows the making of a closure order. The first stage is the hearing under section 179B at which either licensing justices or justices of the peace consider a closure order as soon as reasonably practical after the order is made. The second stage is the hearing under section 179E at which the licensing justices consider whether to revoke the licence of premises which have been the subject of a closure order.
• This power has been included in case it proves necessary to prescribe details of the court procedures which follow the making of a closure order. Closure orders are an as yet untried way of dealing with disorder and disturbance in licensed premises, and the department takes the view that it is prudent to enable the Secretary of State to regulate the relevant court procedures in the light of experience once closure orders have been made in practice.
• The department believes that no Parliamentary control is needed for this enabling power because it is likely to be used only for prescribing procedural details. This approach is consistent with the existing practice of the Licensing 1964 Act. Section 91 of the 1964 Act already provides that the Secretary of State may make rules prescribing the procedure on applications to licensing justices and on the exercise of the powers of licensing justices under that Act. Such rules are exercisable by statutory instrument but are not subject to Parliamentary scrutiny. In the Department's view the power in section 179F(5) will be used to prescribe provisions of a similar level of significance and detail as those prescribed by section 91.

CHAPTER 3 OF PART 1 - TRAVEL RESTRICTIONS ON DRUG TRAFFICKING OFFENDERS; INTIMIDATING, HARMING AND THREATENING WITNESSES; AND LOCAL CHILD CURFEW SCHEMES.

CLAUSE 34(1)(C): POWER TO DESIGNATE ADDITIONAL OFFENCES UNDER THE MISUSE OF DRUGS ACT 1971 AS "DRUG TRAFFICKING OFFENCES" FOR THE PURPOSES OF TRAVEL RESTRICTION ORDERS

POWER CONFERRED ON:      THE SECRETARY OF STATE

POWER EXERCISABLE BY:    ORDER MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  AFFIRMATIVE RESOLUTION

• Clauses 33 to 37 contain provision for a new power for a court to impose a travel restriction order on an offender when sentencing him to imprisonment for 4 years or more for a drug trafficking offence. Clause 34 defines "drug trafficking offence" for this purpose as including offences under section 4(2) or (3) of the Misuse of Drugs Act 1971 (production and supply of controlled drugs) and offences under section 20 of that Act (assisting in or inducing commission outside the UK of a corresponding offence). It also includes offences under the Customs and Excise Management Act 1979 relating to importation, exportation etc. and conspiracy, attempt and incitement to commit those offences.
• Clause 34(1)(c) gives the Secretary of State power to designate other offences under the Misuse of Drugs Act 1971 as drug trafficking offences for this purpose. Any order may provide that any offence is so designated only for purposes or if committed in such manner or circumstances as may be prescribed.
• The purpose of the power is to enable the Secretary of State to take account of changes in offending behaviour or patterns or the creation of new offences. It is limited to offences under the 1971 Act and is subject to the affirmative resolution procedure. The department considers that this provides an appropriately limited power and adequate parliamentary scrutiny.

CLAUSE 37: POWER TO PRESCRIBE REMOVAL POWERS AND TO MAKE EXCEPTIONS FROM THE PRESUMPTION THAT A TRAVEL RESTRICTION ORDER REMAINS IN FORCE NOTWITHSTANDING THE EXERCISE OF A PRESCRIBED REMOVAL POWER.

POWER CONFERRED ON:     THE SECRETARY OF STATE

POWER EXERCISABLE BY:    ORDER MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  NEGATIVE RESOLUTION

• Clause 37 provides that a travel restriction order is not to prevent the exercise of any "prescribed removal power" in relation to that person. Such powers must be designated by the Secretary of State by order under clause 37(4). A travel restriction order will remain in force despite the exercise of a removal power unless the Secretary of State provides otherwise by order under clause 37(2)(a).
• The purpose of the powers under this clause is to preserve statutory powers to remove someone from the UK notwithstanding the fact that he is the subject of a travel restriction order. The relevant powers will include those relating to deportation, extradition and repatriation of prisoners. Where a person subject to a travel restriction order is permanently removed from the United Kingdom under one of the prescribed powers, it may not be necessary for the travel restriction order to remain in force. However where the removal is for a temporary purpose eg to give evidence in proceedings abroad, the travel restriction order should remain in force. Hence the power in clause 37(2)(a) to provide in such cases as may be specified that an order shall not remain in force. An order made under that subsection may also make incidental, supplemental, consequential and transitional provision.
• The purpose of these powers is to preserve the existing statutory powers to remove people from the UK and to ensure that there is no conflict between existing powers and the new travel restriction order. It is considered that negative resolution procedure provides an appropriate level of parliamentary scrutiny.

CLAUSE 44 INTRODUCES NEW SECTIONS 723B - 723F OF THE COMPANIES ACT 1985 WHICH INCLUDE NEW PROVISIONS RELATING TO THE DISCLOSURE BY DIRECTORS, COMPANY SECRETARIES AND PERMANENT REPRESENTATIVES OF THE BRANCHES OF OVERSEAS COMPANIES IN GREAT BRITAIN OF THEIR USUAL RESIDENTIAL ADDRESSES. EACH OF THE NEW SECTIONS INCLUDE REGULATION MAKING POWERS CONFERRED ON THE SECRETARY OF STATE FOR TRADE AND INDUSTRY.

POWER CONFERRED ON:      THE SECRETARY OF STATE FOR TRADE AND INDUSTRY

POWER EXERCISABLE BY:    REGULATIONS MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  AFFIRMATIVE RESOLUTION

• The purpose of these new sections is to allow certain directors, etc to be excluded from the provisions in the Companies Act which require their usual residential address to be available for public inspection, and for a service address to be substituted. There will still be an obligation to provide a home address to the company and for the latter to provide it to Companies House, but this information will be kept on a separate and secure register. The home address will be available to such bodies and persons as will be defined in the Regulations.
• It will be necessary for an entirely new system to be set up by Companies House under which a director etc who considers that publication of his home address would result in him being at serious risk of violence or intimidation could apply to the Secretary of State for a confidentiality order. Following the issuing of such an order all future documents filed at Companies House for the public record which are required to contain his home address will appear on the public record with the service address, and the home address will appear only on the separate, secure register ("the confidential records"). Providing for the details of the new system including all of the technical and administrative changes that Companies House will need to institute will be a very substantial task and one that it is possible will need to be modified in the light of experience. Against this background, it was considered that that the new Companies Act sections should, in the main, be enabling ones with the detail set out in Regulations. However, in order to ensure that Parliament can properly scrutinise these details the Regulations will be subject to affirmative resolution. The delegated powers are set out below.
• Section 723B enables Regulations to make provision about Confidentiality Orders including provision for the payment of fees on the making of an application to fund the cost of setting up and maintaining the system of Confidentiality Orders, the manner in which applications for such orders are to be made, including the information to be given by applicants and the procedure for determining how the decision on the application is to be reached, and provision for the period for which Confidentiality Orders are to remain in force and the grounds for revoking such orders.
• Section 723C enables Regulations to make provision for protection for usual residential addresses filed on the company's own register of directors. It also provides for Regulations to make provision for the inspection of the confidential records including who may inspect them, for the use of information derived from them and about applications for accessing from those who are not granted automatic access. The Regulations may also set out the conditions governing the choice of service addresses. It is anticipated that certain public bodies such as law enforcement agencies will have automatic access rights to the private address under the Regulations; the Regulations may cover the means by which those not afforded automatic rights will be able to apply to be given access by the court.
• Section 723D enables "the court" referred to in section 723C to be specified in Regulations. Regulations may also provide that documents delivered after the coming into force of a Confidentiality Order can be treated as having been delivered at the time when they were required by law to be delivered. This seeks to ensure that companies have no incentive to delay presenting information that they are required to do by law in order to take advantage of the possible granting of a Confidentiality Order.
• Section 723E(1) enables Regulations to be made providing for it to be an offence for a person to give false information knowingly or recklessly when applying for a Confidentiality Order or for providing confidential information in breach of Regulations made under section 723C. Section 723E(2) sets out the penalties that might be imposed by Regulations for breach of the offences described in sub-section (1).
• Section 723F makes further provision as to how the Regulation making powers conferred by sections 723B, C, D and E are to be exercised and as to what may be done under them. The usual power to make different provision for different cases etc is conferred. Any Regulations made under those powers are to be subject to the affirmative procedure and cannot be made unless a draft of the instrument containing them has been laid before Parliament and approved by resolution of each House.