Part 1

General order-making powers

Restrictions on powers of Ministers and Welsh Ministers

Restriction on creation of criminal offences
22
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 2 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.
Words in s. 22(4)(b) substituted (28.4.2022) by The Criminal Justice Act 2003 (Commencement No. 33) and Sentencing Act 2020 (Commencement No. 2) Regulations 2022 (S.I. 2022/500), regs. 1(2), 5(1), Sch. Pt. 1