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Paragraphs 15-44: Scotland and Northern Ireland
112. These paragraphs make provision for Scotland and Northern Ireland equivalent to that for England and Wales in paragraphs 1-14. Paragraphs 36-37 apply in Northern Ireland only and have no equivalent in England and Wales or Scotland. However, by virtue of Clause 112(5) these provisions are treated as part of Part VII of the Bill and are therefore temporary and subject to annual renewal.
Paragraphs 45-53: Insolvency: UK Provisions
113. These paragraphs allow for cases where a person subject to a forfeiture order is declared bankrupt. Under sub-paragraph (3) of paragraph 47, the forfeiture order is set aside; but under paragraph 48, the Secretary of State is taken to be a creditor, and has to be paid after the debts of all other creditors. If the bankruptcy order is annulled then under paragraph 49 the forfeiture order comes back into effect. Paragraphs 50-51 provide limited protection from liability for insolvency practitioners in respect of the exercise of their duties.
SCHEDULE 5: TERRORIST INVESTIGATIONS
114. This Schedule, which is activated by Clause 37, corresponds to Schedule 7 to the PTA and was discussed in Chapter 6 of the Government's consultation document. Part I deals with England, Wales and Northern Ireland; Part II makes corresponding provision for Scotland. Most of the Schedule replicates the provisions of the PTA with some modification as indicated below.
Paragraphs 1-3: Searches
115. These paragraphs correspond to paragraphs 2-2A of Schedule 7 to the PTA and have the same effect, bringing together the provisions for dwellings in paragraph 2 and non-residential premises in paragraph 2A. They deal with warrants permitting search for and seizure of ordinary material (as opposed to "excepted material" as defined in paragraph 4).
116. In the PTA, paragraph 2(1)(a) defined relevant material in relation to "the investigation" - that is, the investigation for which the warrant was issued. The equivalent provision in the Bill, paragraph 1(3)(a), includes in the definition anything likely to be of substantial value to "a terrorist investigation", that is, any terrorist investigation. This is intended to enable a police officer to seize and retain not only material relevant to the investigation for which the warrant was issued but any material relevant to investigation of any of the matters specified in clause 32 without having to go back to court for a further warrant. A similar change is made throughout the rest of the Schedule.
117. Sub-paragraph (5)(c) of paragraph 1 gives the judge discretion over the necessity for a warrant in the particular case. This sub-paragraph replaces the conditions in paragraph 2(2) of Schedule 7 to the PTA. The reasoning behind this is best illustrated by a hypothetical example. Suppose the police need to find, seize and retain certain material on certain premises. They successfully contact a person entitled to grant entry to the premises and access to the material. That person is content to grant them such entry and access, but is not content for the material to be seized and retained. The police therefore need a warrant to authorise seizing and retaining the material; but the conditions in paragraph 2(2) of Schedule 7 to the PTA are not met, so under the PTA the justice of the peace cannot issue a warrant. It is to cover this eventuality that, in replicating this provision, a more general test that "the issue of a warrant is likely to be necessary in the circumstances of the case" has been substituted.
Paragraph 4: Excepted material
118. The material in this paragraph is similar to that in the second half of paragraph 1 of Schedule 7 to the PTA. It defines the categories of material to which the different investigative powers in the Schedule can be applied.
Paragraphs 5-10: Excluded and special procedure material: production and access
119. These paragraphs correspond to paragraphs 3-4 of Schedule 7 to the PTA and have the same effect. They provide for "production orders".
Paragraphs 11-12: Excluded and special procedure material: search
120. These paragraphs correspond to paragraph 5 of Schedule 7 to the PTA and have the same effect. They provide similar warrants to those in paragraphs 1-3 but this time for excluded and special procedure material.
Paragraphs 13-14: Explanations
121. These paragraphs correspond to paragraph 6 of Schedule 7 to the PTA. There is one change in effect. A person's response to an explanation order represents information given under compulsion and cannot normally be used in evidence against him, as this would be a breach of the right against self-incrimination (or "right to silence"). The PTA provided two exceptions to this general principle.
The first of these exceptions is replicated in the Bill (at paragraph 13(4)) but the second has been dropped.
Paragraphs 15-16: Urgent cases
122. These paragraphs correspond to paragraph 7 of Schedule 7 to the PTA and have similar effect. They provide that in urgent cases a police superintendent may issue warrants and explanation orders, so long as he notifies the Secretary of State. The condition in paragraph 7(1) that the action must be "in the interests of the State" has been dropped. This is because the Bill applies to all forms of terrorism: the power might therefore be used in a case where the terrorism was directed against another country.
Paragraphs 19-21: Secretary of State orders
123. Under paragraph 8 of Schedule 7 to the PTA, in Northern Ireland only, the Secretary of State may authorise the police to carry out searches for, or require the production of, material in connection with investigations into terrorist finance offences or in relation to the offence of directing a terrorist organisation. These paragraphs replicate those provisions, again for Northern Ireland only, in an updated form consistent with the other provisions in Schedule 5 to the Bill. Clause 112(5) ensures that the provisions are treated as if they were in Part VII of the Bill. This will mean that, along with all the Northern Ireland specific measures, these provisions will be temporary and renewable.
SCHEDULE 6: FINANCIAL INFORMATION
124. This Schedule adds to the powers available to investigate terrorist finance a further investigative tool which has already been used in the investigation of the proceeds of crime in Northern Ireland. The purpose of an order under the Schedule is to enable a constable to identify accounts in relation to terrorist investigations. It is therefore intended for use at an earlier stage in an investigation than production and explanation orders under Schedule 5 of the Bill.
125. This method of investigation is sometimes known as a "general bank circular" investigation.
126. The provisions are modelled on certain powers of "financial investigators" in Northern Ireland under Schedule 2 of the Proceeds of Crime (Northern Ireland) Order 1996. There are no "financial investigators" outside Northern Ireland. The power in the Schedule is therefore to be exercisable by a constable. The other main difference with the Northern Ireland model is that while the power in the 1996 Order is to investigate proceeds of crime, that in the new Schedule is to investigate terrorist finance. This is both a broader category (because it can include money or other property intended for use in terrorism as well as any proceeds of terrorist acts) and a narrower one (because it is focussed on terrorist as opposed to any other crime).
127. These paragraphs allow a constable of at least the rank of superintendent to apply to a Circuit judge or equivalent for an order enabling the constable to require a financial insitution to provide customer information within a specified time and in a specified manner. It is an offence for an institution to fail to comply with the requirement.
128. The definition in this paragraph of "financial institution" is based on the definition of "relevant financial business" in Regulation 4 of the Money Laundering Regulations 1993 (SI 1993/1933).
129. This paragraph defines the customer information which the constable may require. The definition of a "business relationship" is based on that in Regulation 3 of the Money Laundering Regulations 1993.
130. This paragraph allows for the non-compliance offence in paragraph 1 to be committed by an officer of an institution as well as by the institution itself.
SCHEDULE 7: PORT AND BORDER CONTROLS
131. This Schedule makes similar provision to that at Schedule 5 to the PTA. The main differences are that:
SCHEDULE 8: DETENTION
Part I: Treatment of persons detained under section 41 or examined under Schedule 7
132. Paragraph 1 replicates the power of the Secretary of State under the PTA to direct where persons detained under Clause 41 or Schedule 7 shall be detained. Paragraphs 2-22 make provision for those detained under the Bill's arrest and detention procedures including that steps may be taken to identify them; that fingerprints, intimate samples (e.g. DNA) and non-intimate samples (e.g. hair) may be taken; and the limited circumstances in which a detainee may be kept incommunicado or without access to legal advice. Paragraph 3 provides that interviews at a police station must be audio recorded in compliance with a Code of Practice. It also provides an order-making power whereby similar provision may be made in respect of video recording.
Part II: Review of detention under section 41
133. Paragraphs 23-30 set out the arrangements for reviews of the continued detention by the police of a person arrested under Clause 41.
Part III: Extension of detention under section 41
Paragraph 31: Warrants of further detention
134. This paragraph provides that a police officer of at least the rank of superintendent may apply for a warrant of further detention in respect of an arrest under Clause 41. The application will be made to a judicial authority as defined by sub-paragraph (4). A warrant issued by the judicial authority will authorise the detention of a specific person for a specified period of time, with the maximum detention period being seven days from the time of arrest under Clause 41, or from the time when his examination under Schedule 7 began, whichever is earlier.
Paragraph 32: Time limit
135. This paragraph makes provision for an application to be made either within the 48-hour period specified in Clause 41(3) or within six hours of the end of that period. Where an application is made within this six-hour period the judicial authority will dismiss the application, if he thinks it could reasonably have been made before the 48-hour period expired.
Paragraph 35: Representation
136. This paragraph provides that an individual to whom an application for further detention applies must be notified that an application has been made, the time at which it is to be heard, and the grounds on which further detention is sought.
Paragraph 36: Information
137. This paragraph further provides that information about the application may be withheld from the individual or anyone representing him in certain circumstances.
SCHEDULE 9: SCHEDULED OFFENCES
138. This Schedule sets out those offences which are subject to the special provisions set out in Part VII of the Bill for non-jury trials on account of being terrorist-related. In relation to a number of these offences, the Schedule enables the Attorney General to certify that particular cases are not to be treated as "scheduled" if he judges that they are not connected with the emergency situation in Northern Ireland.
SCHEDULE 10: MUNITIONS AND TRANSMITTERS: SEARCH AND SEIZURE
Paragraphs 2-7: Entering premises; stopping and searching persons; and seizure
139. These paragraphs contain the main powers used by the police and Army to enter premises and dwellinghouses for the purpose of searching for arms etc. Under PACE, the police have general powers of entry and search of places to which the public has access. A search warrant is required to search dwellings other than for the purposes of making an arrest. PACE also provides entry and search powers upon or after arrest. Paragraph 4 adds to such powers: a power to restrict movement of persons present on premises which are in the course of being searched
140. PACE powers to stop and search in public places are exercisable on suspicion that a stolen item, offensive weapon, or an item intended for criminal use will be found. Entry and search of premises other than to make an arrest or prevent a breach of the peace, damage or injury must be under the authority of a warrant. By contrast paragraph 6 allows the police and Army to stop and search any person in a public place for unlawful munition or wireless apparatus and to search any person not in a public place on reasonable suspicion of having such items.
Paragraph 8-11 : Records and offence
141. This provision places a duty on the police and Army to make a written record of searches conducted under Schedule 10; and it makes it an offence to fail to comply with any requirement on the restriction of movement of persons during a search; to wilfully obstruct or seek to frustrate the object of such a search; and to fail to stop when required to do so.
SCHEDULE 11: INDEPENDENT ASSESSOR OF MILITARY COMPLAINTS PROCEDURES IN NORTHERN IRELAND
142. See notes on Clause 98 above.
SCHEDULE 12: COMPENSATION
143. This Schedule allows for compensation to be claimed from the Secretary of State where property is taken, occupied, destroyed or damaged, or any other private property rights interfered with as a consequence of action taken under Part VII of the Bill. No compensation is payable, however, where the action taken is in connection with, or reveals evidence of, a scheduled offence or an offence under the Bill for which the owner of the property is later convicted.
SCHEDULE 13: PRIVATE SECURITY SERVICES
Paragraphs 1-5: Security services interpretation; unlicensed services: offences
144. These paragraphs define security services and create offences of providing or offering security services for reward without being a holder or the agent of a holder of a licence from the Secretary of State, and of advertising the provision of security services by a non-holder of a licence. It is also an offence under this schedule to pay money for security services to someone who is not the holder of a valid licence; however, paragraph 4 allows for a defence of reasonable belief if a person is charged with such an offence.
Paragraph 6: Application for licence
145. This paragraph deals with applications for licences to the Secretary of State and specifies the kind of information that may be required. Under the paragraph it is an offence knowingly or recklessly to give false or misleading information in connection with an application.
Paragraphs 7-9: Issue, duration, and revocation of licence
146. These paragraphs are based on section 39 of the EPA and have similar effect subject to one substantive modification. Sub-paragraphs (2)-(6) of paragraph 7 confer a power on the Secretary of State to impose a condition when granting a licence for the provision of security services. The inclusion of this new power is intended to permit a much more flexible and proportionate response to applications.
147. More generally the paragraphs make provision for the issue, duration and revocation of licences by the Secretary of State and allow him to refuse or revoke a licence if he is satisfied that a proscribed organisation, or an organisation closely associated with a proscribed organisation, would benefit from the issue of a licence; or where the applicant has persistently failed to comply with the requirements of this Schedule or a condition imposed with his licence.
Paragraphs 10-11: Appeal
148. These paragraphs provide a new route of appeal to the High Court against refusal, revocation or conditions imposed on a licence which is designed to fulfil our ECHR obligations under Article 6. If the Secretary of State wishes to rely on a certificate under paragraph 11(1) in order to protect any sensitive information on which he may have based his decision, the applicant may appeal against the certificate to the Northern Ireland Tribunal who will scrutinise the basis for it. In either case the merits of the Secretary of State's decision will be examined by a judicial body.
Paragraphs 12-15: Change of personnel
149. These paragraphs make it a requirement for applicants for and holders of licences to notify the Secretary of State of certain changes, or proposed changes, of personnel affecting their business. It also imposes time limits on when notifications must be made in advance of any changes being introduced.
SCHEDULE 14: EXERCISE OF OFFICERS' POWERS
150. Paragraph 4 allows information collected by immigration officers and customs officers to be supplied to police officers and vice versa thus facilitating increased co-operation between frontier control agencies. It also creates an order-making power to permit other organisations to be added to the list in future.
151. Paragraphs 5-7 make provision for the issuing of codes of practice for authorised and examining officers.
SCHEDULE 15: REPEALS
152. Because the Bill repeals the PTA, EPA and sections 1 to 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998, any of those provisions which are not carried over to the Bill will no longer have effect once the Bill is fully in force.
153. Part II of the PTA includes a power for the Secretary of State to make exclusion orders. These orders could prevent a person from entering Northern Ireland, or from entering Great Britain, or from entering the United Kingdom. This Part was lapsed by the Government in 1998 and is not replicated in the Bill.
154. Section 18 of the PTA makes it an offence for any person holding information which could be of use in preventing or investigating Irish terrorism, not to disclose that information to the police. This offence is not replicated in the Bill. The similar but more focused offence at section 18A of the PTA is replicated as Clause 19 of the Bill.
155. Section 35 of the EPA makes it an offence in Northern Ireland to wear a hood. This offence is not replicated in the Bill.
FINANCIAL EFFECTS OF THE BILL
156. The Bill may result in an increased burden on the criminal justice system. It is particularly difficult to predict the impact of new offences which will have an important deterrent effect and may result in few if any prosecutions. For example, depending on the number of additional cases, the additional annual costs could amount to at least £1.9m to the Lord Chancellor's Department, £1.2m to the Crown Prosecution Service and £2.3m to the Home Office. Other costs arising from the Bill will be marginal.
EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER
157. The Bill is not expected to have any significant effect on public service manpower requirements.
SUMMARY OF THE REGULATORY APPRAISAL
158. A Regulatory Impact Assessment of the provision in Schedule 6 (Financial Information) has been prepared and is available. It concludes that the provision may reasonably be expected to identify around 1300 relevant bank accounts per year at a compliance cost of around £900,000 to the banking and financial services industries. The Home Secretary has made a declaration that he is satisfied that the balance between cost and benefit is the right one in the circumstances.
159. The provisions in Schedule 7 (Port and border controls) which may affect businesses (on the provision of facilities and the collection of information) are based on existing requirements under the PTA. It is not expected that they will place any significant additional burden on business. A more detailed statement on this is available.
160. The above documents may be obtained from:
The Home Office
50 Queen Anne's Gate
Fax: 0171 273 4001
EUROPEAN CONVENTION ON HUMAN RIGHTS
161. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined in section 1 of that Act). Lord Bassam of Brighton has made the following statement:
162. Clause 127 provides for the Northern Ireland transitional provisions (Clause 2(2) and Schedule 1), general transitional provisions, and extent and short title provisions to come into force on Royal Assent. The other provisions will come into force on such dates as the Secretary of State appoints by order.
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