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The government has tabled further amendments to the Crime and Policing Bill for Commons Committee stage. These amendments introduce new delegated powers. This supplementary memorandum explains why the new powers have been taken and the justification for the procedure selected.

Youth diversion orders:

(i) New clause 鈥淓lectronic monitoring of compliance with order: England and Wales鈥� (3): Power to specify description of 鈥渞esponsible person鈥�

(ii) New clause 鈥淒ata from electronic monitoring in England and Wales: code of practice鈥�: Duty to issue code of practice relating to data from electronic monitoring

Power conferred on:	Secretary of State
Power exercisable by:	(i) Regulations made by statutory instrument (ii) Statutory guidance
Parliamentary procedure:	(i) None (ii) None

Context and purpose

1. Chapter 1 of Part 14 of the bill provides for youth diversion orders, a new counter-terrorism risk management tool specifically designed for young people under the age of 21. Youth diversion orders (YDOs) will be made by the courts on application by the police and include prohibitions and requirements designed to divert the person from further involvement in the criminal justice system, enabling the police to intervene earlier to prevent the person subject to an order engaging in terrorism and to address any underlying causes of their behaviour. Breach of an order will be a criminal offence (see clause 118).

2. New clause 鈥淓lectronic monitoring of compliance with order: England and Wales鈥� provides that amongst the requirements that may be attached to a YDO in England and Wales is an electronic monitoring requirement. An electronic monitoring requirement may be imposed to support the monitoring of an individual鈥檚 compliance with other requirements of the order (for example, where an exclusion/inclusion zone or a curfew are imposed). Electronic monitoring is undertaken using an electronic tag usually fitted to a subject鈥檚 ankle.

3. The tag worn by the subject transmits data to a monitoring centre where it is processed and stored. The monitoring centre, operated by a 鈥渞esponsible person鈥�, reviews this data to see whether an individual being electronically monitored is complying with the conditions of the YDO. Where a subject has failed to comply, the responsible person provides information to the relevant authority, in this case the police, responsible for the enforcement of the order.

4. The new clause sets out further provision about electronic monitoring requirements. Subsection (2) provides that a YDO which includes an electronic monitoring requirement must specify the person who is responsible for the monitoring (鈥渢he responsible person鈥�). Subsection (3) provides that the responsible person must be of a description specified in regulations made by the Secretary of State. Similar enabling powers are contained in, for example, section 3AC(2) of the Bail Act 1976, section 215(3) of the Criminal Justice Act 2003 and section 37(7) of the Domestic Abuse Act 2021. The relevant statutory instrument made under the first two of those powers is the Criminal Justice (Electronic Monitoring) (Responsible Person) Order 2017 (SI 2017/235).

5. New clause 鈥淒ata from electronic monitoring in England and Wales: code of practice鈥� requires the Secretary of State to issue a code of practice on the processing of data gathered in the course of an electronic monitoring requirement of a YDO.

6. The processing of such data will be subject to the requirements in the UK General Data Protection Regulation and the Data Protection Act 2018. The code of practice issued under clause 124 is intended to set out the appropriate tests and safeguards for the processing of such data, in order to assist with compliance with the data protection legislation.聽 For example, the government envisages that the code will set out the length of time for which data may be retained and the circumstances in which it may be permissible to share data. It is intended that the code will cover the storage, retention and sharing of personal data gathered under a requirement that is imposed for the purpose of monitoring compliance with another requirement.

7. Similar provision for a code of practice in respect of the processing of data from electronic monitoring is included in section 215A of the Criminal Justice Act 2003 (as inserted by the Crime and Courts Act 2013). The code is available . Section 51 of the Domestic Abuse Act 2021 also makes similar provision in relation to domestic abuse prevention orders.

Justification for taking the power

8. Regulations made under subsection (3) of new clause 鈥淓lectronic monitoring of compliance with order: England and Wales鈥� will provide a description of the person with whom the Secretary of State has made arrangements for providing the electronic monitoring services for the purposes of the YDO regime. Providing a description of the responsible person is properly an administrative procedure. For that reason, the designation of the responsible person is considered an appropriate matter for secondary legislation.

9. The government considers that a code of practice is the most appropriate vehicle to set out expectations and broad responsibilities in relation to the processing of data gathered under the electronic monitoring requirement. There is a vast range of statutory guidance, such as this, issued each year and it is important that guidance can be updated quickly to keep pace with operational good practice.

Justification for the procedure

10. By virtue of new subsection (4A) of clause 132, regulations made under new clause 鈥淓lectronic monitoring of compliance with order: England and Wales鈥� are not subject to any parliamentary procedure. The primary purpose of these regulations is simply to put into the public domain the name of one or more persons contracted to provide electronic monitoring services for the purposes of YDOs; as indicated above, the selection of the contractor(s) is properly an administrative matter for the executive. Given this, no form of parliamentary scrutiny is considered necessary. This mirrors the approach with the analogous delegated powers in section 3AC(2) of the Bail Act 1976, section 215(3) of the Criminal Justice Act 2003 and section 37(7) of the Domestic Abuse Act 2021.

11. As regards the code of practice relating to data from electronic monitoring, given the likely content and nature of the code, and in particular the fact that it will not define or create new legal responsibilities and that the processing of data must be in accordance with the requirements of data protection legislation, the government does not consider it is necessary for the code to be subject to any parliamentary procedure. This approach is consistent with the analogous code provided for in section 215A of the Criminal Justice Act 2003 and section 51 of the Domestic Abuse Act 2021.

Home Office