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 the coming into force of section 154(1) of that Act, 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.