Policy paper

Police, Crime, Sentencing and Courts Bill: supplementary delegated powers memorandum

Updated 29 June 2023

This was published under the 2019 to 2022 Johnson Conservative government

The government has tabled further amendments to the Police, Crime, Sentencing and Courts Bill for Lords Report stage. These amendments include one new delegated power and 2 modifications of existing powers in the Bill. This supplementary memorandum explains why these new and modified powers have been taken and the justification for the procedure selected.

New clause “Interference with use or operation of key national infrastructure”: Power to amend the definition of key national infrastructure.

• Power conferred on: Secretary of State
• Power exercisable by: regulations made by statutory instrument
• Parliamentary procedure: affirmative procedure

Purpose of the power

1. New clause “Interference with the use or operation of key national infrastructure” creates a new offence of intentionally and/or recklessly interfering, without reasonable excuse, with the operation of key national infrastructure, as defined in the clause, in England and Wales. Any person found guilty of this offence will face a maximum penalty on summary conviction of an unlimited fine and/or six-months imprisonment and on conviction on indictment of an unlimited fine and/or 12-months imprisonment. Interference is defined as an act which prevents the infrastructure from being used or operated to any extent for its intended purposes, acts which significantly delay its operation are also in scope. Key national infrastructure is defined in subsection (7) and new clause “Key national infrastructure” makes further provision about these kinds of infrastructure. Subsection (8) provides the Secretary of State with a delegated power to amend the list of key national infrastructure contained in subsection (7) and the new clause “Key national infrastructure”.

Justification for taking the power

2/. The purpose of this regulation-making power is to ensure the list of key national infrastructure within scope of this offence remains up to date. What constitutes “key national infrastructure” will change and develop over time. For example, oil in the future may no longer be considered key as other forms of fuel become more widespread, whilst new types of infrastructure may develop and become an integral part of our infrastructure network. Providing this delegated power will ensure this offence remains operable in future contexts.

Justification for the procedure

3. By virtue of subsection (10), regulations made under subsection (8) will be subject to the affirmative procedure. The affirmative procedure is considered appropriate as this power will amend the scope of a serious criminal offence. Additionally, this offence could impact a person’s rights to freedoms of expression and assembly. The affirmative procedure is also considered appropriate for a Henry VIII power such as this. Therefore, Parliament should have the opportunity to debate and approve any such new arrangements before they take effect.

Clause 9(2): Power to authorise the disclosure of information by a prescribed person to a specified authority for the purposes of preventing and reducing serious violence in a prescribed area.

• Power conferred on: Secretary of State
• Power exercised by: regulations made by statutory instrument 8 Parliamentary procedure: draft affirmative resolution

Context and purpose

4. Clause 9(1) enables the Secretary of State, by regulations, to confer powers on a specified authority to collaborate with a person prescribed in the regulations, and vice versa, for the purposes of preventing and reducing serious violence in a prescribed area. This could enable agencies which are not specified authorities – for example, other public bodies, charities or private companies – to collaborate where appropriate with the specified authorities.

5. Complementary regulations made under clause 9(2) would provide for an information sharing gateway to enable a prescribed person to disclose information they hold to a specified authority for the same purposes. This would be a permissive gateway. It would permit but would not require the sharing of information. Information could be shared under this gateway notwithstanding any obligation of confidence or any other restriction on the disclosure of the information. However, a disclosure would not be permitted if it would contravene data protection legislation or the prohibitions on disclosure provided for in Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (clause 9(4) and (5)). The amendments to this power (new subsection (5A) of clause 9) further limit the information that can be shared, providing that in addition, personal information cannot be disclosed by a health and social care authority (defined by clause 10 and Schedule 1), nor can any patient information be disclosed.

Justification for the power

6. The powers in clause 9(1) and (2) would be exercised in response to concerns raised by non-duty holders about collaboration with a specified authority, including disclosing information to a specified authority. The powers would be exercisable in response to concerns that may be raised in the future including as a result of emerging serious crime threats, and so it is not possible to address them on the face of the Bill. Moreover, the power to authorise collaboration and establish information sharing gateways is specific to a prescribed person or prescribed area and therefore more appropriately provided for in secondary legislation. The amendments will limit the extent of the power to share information which can be conferred by regulations under clause 9(2), providing that no personal information can be shared by health and social care authorities, and no patient data can be shared. These amendments recognise concerns raised in relation to the potential use of the power to share personal medical information undermining trust between doctors and their patients.

Justification for the procedure

7. By virtue of clause 21(4), regulations made under clause 9(2) are subject to the draft affirmative procedure. This is considered appropriate as regulations would have the effect of conferring new powers to share information. Given the sensitivities that can arise as a result of such information-sharing gateways, Parliament should have the opportunity to debate and approve any such new arrangements before they take effect. While the amendments to clause 9 narrow the regulation-making power, this does not materially change the justification for adopting the draft affirmative procedure.

Amendments to clause 141(1) – modification of new section 342J of the Sentencing Code: Guidance in respect of the exercise of functions in relation to Serious Violence Reduction Orders (SVROs).

• Power conferred on: Secretary of State
• Power exercisable by: statutory guidance
• Parliamentary procedure: negative procedure

Context and purpose

8. New Chapter 1A of Part 11 of the Sentencing Code (as inserted by clause 141 of the Bill) confers a number of powers and duties on the police in relation to SVROs. On introduction, new section 342J provided that the Secretary of State may issue guidance to the police on the exercise of these and other functions under this Chapter. Police constables, chief officers of police and the chief constable of the British Transport Police Force are required to have regard to any guidance when exercising functions to which the guidance relates. Amendments to clause 141 widen the power to issue guidance so that guidance may be issued on any matter relating to SVROs and provide a non-exhaustive list of the matters that may be covered by the guidance.

Justification for the power

9. The purpose of any guidance under new section 342J is to support the police in relation to the operation of SVROs. Amongst other things, the statutory guidance will provide:

• guidance about the exercise by constables, chief officers of police and the chief constable of the British Transport Police Force of their functions under Chapter 1A of Part 11
• guidance about identifying offenders in respect of whom it may be appropriate for applications for SVROs to be made
• guidance about providing assistance to prosecutors in connection with applications for SVROs
• guidance about the monitoring and reporting of the use of SVROs

10. The guidance will be prepared in consultation with all four pilot forces; the National Police Chiefs’ Council portfolio leads for Serious Violence, Knife Crime and Stop and Search; the Judicial Office; Crown Prosecution Service; HM Inspectorate of Constabulary & Fire and Rescue Services; College of Policing; HM Courts and Tribunals Service; and HM Prisons and Probation Service.

11. A draft of the guidance is available at: Serious Violence Reduction Orders: draft statutory guidance. Any such guidance will complement separate revisions to the relevant code of practice (Code A) under section 66 of the Police and Criminal Evidence Act 1984 on the exercise of statutory stop and search powers which will be revised to set out the stop and search power under new section 342E. There is a vast range of statutory guidance issued each year and it is important that guidance can be updated rapidly to keep pace with events, operational good practice and the outcome of the pilot provided for in clause 141.

12. The requirement for the guidance to be published in such manner as the Secretary of State sees fit will ensure that it remains accessible to those who need to refer to it.

Justification for the procedure

13. On introduction of the Bill, the guidance under new section 342J was not subject to any parliamentary procedure consistent with the run of precedents for similar statutory guidance in respect of other civil preventative orders, for example Knife Crime Prevention Orders. It is the government’s view that the extension of the scope of the guidance does not of itself justify a change to the parliamentary procedure. However, having considered the DPRRC’s 6th report of session 2021/22, the government has tabled amendments to provide for the guidance issued under section 342J to be subject to the equivalent of the negative procedure.

Home Office

1 December 2021