The House of Lords Delegated Powers and Regulatory Reform
Committee (DPRRC) has published a report on the
Sentencing Bill flagging concerns with two delegated powers
contained in the Bill.
The Committee say that Clause 17 in the Bill, which gives
the Lord Chancellor to authority to substantially rewrite more
than 40 sections of the Sentencing Act 2020 on community
sentencing requirements for offenders, is a ‘Henry VIII power'
which should be removed, as such significant powers to amend
legislation should be a matter for Parliament rather than
Ministers.
The Clause would allow the Lord Chancellor to change the
requirements on offenders in a broad range of areas, including
driving motor vehicles, attending public events, entering
drinking establishments and leaving certain areas, by statutory
instrument, a form of secondary legislation.
The Government say the power is necessary to grant sentencers
greater flexibility but the Committee point out that flexibility
comes at the price of denying Parliament the ability to amend
that comes with primary but not secondary legislation. In this
case the Lord Chancellor could use the power to increase or
reduce the requirements on offenders in community sentencing
without Parliament being able to amend the proposed changes.
The Committee also flag Clause 35 of the Bill which
requires offenders to have their photograph and name published
where unpaid work requirements are imposed as part of a community
order or suspended sentence. The Clause says the
Secretary of State may at a later stage identify cases where that
requirement does not apply - an example given is “certain cohorts
or persons with certain vulnerabilities” – and these can be added
to the Bill via secondary legislation through the ‘negative
procedure' meaning they come into force without formal approval
by Parliament.
The Committee say this provision should be subject to an
affirmative procedure which would require Parliamentary approval
before coming into force.
The full report is available online here
