Police, Crime, Sentencing and Courts Bill — House of Lords, 2021-11-08
Topic: Law and Crime
Charles Falconer (Labour, Centre-left): I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this: "We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills." In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given The Government put forward a memorandum to justify this approach which said as follows: "The list of offences which may not be suitable for"— a community caution— "is likely to change regularly" and "will be subject to continual updating and changing which makes it more suitable for secondary legislation" The Delegated Powers Committee report states: "The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’." The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them The Delegated Powers Committee report says: "We consider that the Government’s justification for its approach"— applying only when penalties are increasing and not when they are decreasing— "is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns." Again, we agree with that. The committee continues at paragraph 75: "Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny" That is simply to quote what the Delegated Powers Committee says The final group relates to Clause 129 and Schedule 13, which gives the courts power "to review community and suspended sentence orders, and … to commit an offender to custody for breach of" such orders. The memorandum that the Government presented to the committee says that "the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community" The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country The committee report points out: "The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process"— and it sets out certain things they can take into account in relation to it. The report continues: "Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’." That is what the Government said in their memorandum The Delegated Powers Committee disagreed with that, saying that "the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure." That is what our third set of amendments does in relation to that I apologise for taking so long to go through this, but these are important issues.