Part 1General order-making powers

Restrictions on powers of Ministers and Welsh Ministers

20Restriction on creation of functions

1

An order under the preceding provisions of this Act may not create—

a

a power to make subordinate legislation,

b

a power of forcible entry, search or seizure, or

c

a power to compel the giving of evidence.

2

Subsection (1) does not prevent an order from repealing and re-enacting a power.

21Restriction on transfer and delegation of functions

1

An order under the preceding provisions of this Act may not transfer any function to—

a

a charity, or

b

a person not otherwise exercising public functions who is not a charity,

unless the charity or person has consented.

2

An order under the preceding provisions of this Act may not transfer an excluded function to a person not otherwise exercising public functions.

3

In subsection (2) “excluded function” means—

a

a function of a tribunal exercising the judicial power of the State,

b

a power to make subordinate legislation,

c

a power of forcible entry, search or seizure,

d

a power to compel the giving of evidence, or

e

any other function the exercise or non-exercise of which would necessarily interfere with, or otherwise affect, the liberty of an individual.

22Restriction on creation of criminal offences

1

An order under the preceding provisions of this Act may not, in relation to any transfer or modification of functions, create a criminal offence that is punishable—

a

on indictment, with imprisonment for a term exceeding two years, or

b

on summary conviction, with—

i

imprisonment for a term exceeding the normal maximum term, or

ii

a fine exceeding level 5 on the standard scale.

2

In subsection (1)(b)(i) “the normal maximum term” means—

a

in relation to England and Wales—

i

in the case of a summary offence, 51 weeks, and

ii

in the case of an offence triable either way, twelve months;

b

in relation to Scotland—

i

in the case of an offence triable only summarily, six months, and

ii

in the case of an offence triable either summarily or on indictment, twelve months;

c

in relation to Northern Ireland, six months.

3

In Scotland, in the case of an offence which, if committed by an adult, is triable either on indictment or summarily and is not an offence triable on indictment only by virtue of—

a

Part 5 of the Criminal Justice Act 1988, or

b

section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995,

the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard scale is to be construed as a reference to the statutory maximum.

4

In England and Wales—

a

in the case of a summary offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (2)(a)(i) to 51 weeks is to be read as a reference to six months, and

b

in the case of an offence triable either way which is committed before F12 May 2022, the reference in subsection (2)(a)(ii) to twelve months is to be read as a reference to six months.

5

Subsection (1) does not prevent an order from repealing and re-enacting a criminal offence.