Select Committee on Delegated Powers and Deregulation Twelfth Report


TWELFTH REPORT


12 April 2000




  By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

ORDERED TO REPORT

TERRORISM BILL

INTRODUCTION

  1.  This bill reforms and extends existing counter-terrorist legislation, and puts it largely on a permanent basis. Existing counter-terrorist legislation was originally designed in response to terrorism connected with the affairs of Northern Ireland. Though some of its provisions were subsequently extended to certain categories of international terrorism, it does not apply to other domestic terrorism. Under the bill these restrictions would be lifted, so that counter-terrorist measures would be applicable to all forms of terrorism.

  2.  The existing legislation is:

  • the Prevention of Terrorism (Temporary Provisions) Act 1989;

  • the Northern Ireland (Emergency Provisions) Act 1986; and

  • sections 1 to 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998.

The bill repeals the Prevention of Terrorism (Temporary Provisions) Act 1989 and re-enacts, with modifications, those of its provisions which the Government considers necessary. At present counter-terrorist legislation is subject to annual renewal by Parliament. Under the bill this will in general no longer be the case. The main provisions in the bill will be permanent.

  3.  The Northern Ireland (Emergency Provisions) Act 1986 would repeal itself on 24 August 2000. Part VII of the present bill provides additional temporary measures for Northern Ireland only, time-limited to five years.

Human rights issues

  4.  Counter-terrorist legislation operates on the delicate cusp between the maintenance of national security and the preservation of the liberty of the individual. As a result, Parliament considers such legislation with great care.

  5.  In his Inquiry into Legislation Against Terrorism 1996 (Cm 3420) Lord Lloyd of Berwick accepted that permanent anti-terrorist legislation was necessary but recognised that the creation of permanent measures, which did not accord suspects their usual rights and created offences which were additional to existing criminal ones, could breach human rights standards. Lord Lloyd therefore adopted the following four principles which he believed would need to be adhered to in creating such legislation:

  • that it should approximate as closely as possible to ordinary criminal law and procedure;

  • that it should create additional offences and powers only where necessary to meet an anticipated threat, and should balance the need for security with respect for individual rights;

  • that consideration should be given to additional safeguards alongside additional powers;

  • that it should comply with the UK's international obligations.

  6.  The Home Secretary indicated at the Bill's Second Reading in the House of Commons on 14 December 1999 (at column 153 of the Official Report) that the Government had sought to follow the four principles set out by Lord Lloyd.

  7.  Furthermore, both the Home Secretary and Lord Bassam of Brighton have expressed their view that the provisions of the Bill are compatible with the Convention rights for the purposes of the Human Rights Act 1998.

  8.  During the Second Reading debate in the House of Lords Lord Bassam of Brighton drew the House's attention to "a significant addition to Part VIII of the Bill made after debate in another place. Clause 125 of the Bill requires an annual report on the operation of the legislation to be laid before Parliament. The Government believe that the time has come for counter-terrorist powers to be made permanent, but they fully recognise the interest and concern in both Houses, and in the country more generally, in ensuring that these powers continue to be used fairly, proportionately and effectively. An annual independent report will allow those issues to be addressed." [1] We warmly welcome this additional provision, and hope that the annual report will have a separate section dealing with delegated powers.

  9.  Nonetheless, despite these various reassurances, concerns about human rights issues in connection with the bill have persisted. Most of these relate to matters arising in the primary legislation, and as such are for Parliament as a whole, rather than this Committee, to consider. They include the burden of proof, the extension of the definition of terrorism, provisions about the proscription of organisations, provisions relating to the holding of assemblies and provisions as to carding and disclosure of information.

  10.  The Committee received a submission from Justice on the bill, which is printed in Annex 1 to this report. As this submission makes clear, most of Justice's concerns relate to ECHR issues raised by substantive provisions in the bill, although the final paragraphs deal with delegated powers. Justice argues that "to ensure that the Bill is fully human rights compliant, parliamentary oversight of the delegated powers in the Bill should be extended, and the scope of certain of the powers should be circumscribed." Concern is expressed at the number of powers "subject only to a negative resolution procedure". In particular attention is drawn to clause 72 and paragraph 16 of Schedule 7.[2] Justice also criticises clause 96, which the Committee discusses in detail below.

  11.  The Committee's task is limited to reporting on the propriety of the delegation of powers, and the parliamentary control provided, on the assumption that Parliament approves the primary legislation. As there is an account of all the delegated powers in the Home Office's Memorandum the Committee's report comments only on matters which the Committee think raise issues for the House to consider.

The emergency procedure

  12.  Under clause 122(4) an order or regulations subject to affirmative procedure under the bill may be made without a draft having been approved by Parliament if "the Secretary of State is of the opinion that it is necessary by reason of urgency". As Justice mentions in its submission, all but one of the affirmative powers can be exercised by "emergency procedures".

  13.  The use of emergency or urgency procedures is a well-trawled concept, and Parliament only agrees to these where they are considered strictly necessary. The appropriateness of the use of such emergency powers is no doubt one which the future Human Rights Committee will keep under review.

POWERS SUBJECT TO THE AFFIRMATIVE PROCEDURE

  14.  A considerable number of the powers in the bill are subject to the affirmative resolution procedure. We look at these first.

Clause 3(3)

  15.  The new definition of terrorism in clause 1 makes the power to proscribe organisations a wider power than that it replaces. The power also covers removing an organisation from Schedule 2 or amending "that Schedule in some other way". The Government's Memorandum suggests that this power might be used to add, remove or amend a Note to the Schedule - the existing Note deals with the identification of an organisation which has used one name but may have another. The House may wish to seek further justification from the Minister for this unusual power.

  16.  This Henry VIII power is subject to affirmative procedure. A new safeguard is the right of appeal against proscription (whether under Schedule 2 as it stands or as it is amended by an order under clause 3(3)). That appeal lies to the Proscribed Organisations Appeal Commission established by the bill and is to be considered in the light of the principles applicable on an application for judicial review. If the appeal is allowed, the Secretary of State is required to make an order removing the organisation from the list in Schedule 2 (see comments below). Clause 6 allows for further appeals, and clause 7 deals with the consequences of a successful appeal.

  17.  The Committee accepts that there may be a very real need for the power to proscribe organisations and that the bill provides important safeguards which will provide a valuable check on the exercise of this power.

Clause 5(5)(b)

  18.  Clause 5(5) places a requirement on the Secretary of State to make an order removing an organisation from Schedule 2 when there has been a successful appeal to the new Commission. This may be done either by laying a draft order before parliament or, under clause 5(5)(b), by making an order "in pursuance of section 122(4)". Clause 122(4) is the emergency procedure applicable to 12 affirmative powers in the bill. The wording of clause 7(1)(b) makes it clear that the Secretary of State's order is made under clause 3(3)(b) and may be made as a draft affirmative procedure order or, "in reliance on" clause 122(4), under the emergency procedure.

  19.  The Committee questions whether it is necessary for Parliament to approve a decision which has been taken by an independent Commission and has been open to challenge in the courts and suggests that it would be better for action under clause 5(5)(b) to be treated as a separate power not subject to Parliamentary control.

Clause 31

  20.  This clause is not mentioned in the Government's Memorandum. It extends existing powers to make rules of court to enable procedures to be prescribed for appeals under clauses 26 to 29.

Clause 53

  21.  Clause 53 gives effect to Schedule 7 which establishes new port and border controls. Paragraph 16 of the Schedule applies to travellers on ships or planes between Great Britain, the Republic of Ireland, Northern Ireland and the Islands and allows the Secretary of State to make an order requiring such persons to complete a card containing information about themselves ("carding"). An order under this paragraph is subject to affirmative procedure (or emergency procedure). Clause 53(2) allows an order made by the Secretary of State to repeal paragraph 16. Such an order is subject to affirmative procedure (but emergency procedure is not applied). If Parliament agrees that there may be a need to provide for carding, the Committee considers that this delegation of detail is appropriate. The affirmative procedures applied to Clause 53(2) ensure that Parliament has the opportunity to discuss the changes that justify that relaxation.

Clause 65

  22.  This clause is the first in Part VII which replaces the Northern Ireland (Emergency Provisions) Act 1998. Clause 112 provides for the expiry and renewal of Part VII and clause 113 makes transitional provisions. Clause 65(3) allows an order made by the Secretary of State to amend the list of "scheduled offences" in Schedule II. Affirmative procedure (or emergency procedure) applies, as was the case in the 1998 Act, and the Committee considers this appropriate.

Clause 96

  23.  While this clause replicates section 49 of the 1998 Act, the power it confers to make regulations "for promoting the preservation of the peace and the maintenance of order" (in Northern Ireland) demands separate scrutiny. The Home Office has provided a defence of the clause in the Supplementary Memorandum printed in Annex 1 to this Report. Justice comments at length on this power questioning whether it is right that emergency procedure should be available for it and concludes that "in the context of permanent anti-terrorist legislation, the powers to make delegated legislation under this provision are too broad and ill defined, and therefore risk infringing Convention rights, even in cases of "urgency"."

  24.  In the view of the Committee, it is not the power to make regulations which has to have the specificity required by Article 7 of the ECHR - if that were so, the same defects could be found in, for example, the most celebrated of general powers, that in the European Communities Act 1972. What has to be clearly defined in law is any offence created by the regulations and no formulation of a power can ensure that the exercise of the power will achieve the required specificity. The main issue for Parliament in relation to this clause is whether there is a real risk that legislation will be needed to deal with an emergency in Northern Ireland without there being time for Parliament to legislate by bill. If Parliament accepts that there is, then delegation is appropriate, even though it is in the widest terms; and it follows that it is essential to allow emergency procedure as an alternative to affirmative procedure.

  25.  Whilst we at first recoiled from the potential width of the powers, for ourselves we have not seen any formal way of circumscribing them without taking away the flexibility that may be necessary. But the House may wish to probe this issue with the Minister. We regard it as a valuable discipline, however, that the Minister will have to certify that the regulations comply with the Human Rights Act. We also anticipate that any order made under this power would be scrutinised by the future Joint Committee on Human Rights. Finally, we drew comfort from the fact that courts would be able to consider Human Rights issues arising from any order.

Clause 112

  26.  Part VII will be brought into force by a commencement order (clause 127). It will then cease to have effect after one year (subsection (1) of clause 112) but its life may be extended by order under subsection (2) until it finally expires 5 years after commencement (subsection 4). Orders under subsection (2) can extend the life of any provision for up to 12 months and may revive any provision which had previously expired. Orders are subject to affirmative procedure (or emergency procedure). All this follows the 1998 Act.

Other affirmative powers

  27.  Schedule 1 comes into force on Royal Assent and provides for the temporary extension of the Northern Ireland (Emergency Provisions) Act 1996 until it is replaced by the corresponding provisions of the bill. The Schedule extends for a year the life of the provisions of the 1998 Act which are at present in force and an order under paragraph 1(2) (b) can extend this period for a further 12 months. An order is subject to affirmative procedure (or emergency procedure). (An order under paragraph 1(4) can bring to an end the life of any of the provisions extended by the Schedule - no Parliamentary procedure is applied, but that seems appropriate to a power which will leave the provisions of the bill to apply in the future.)

  28.  Paragraph 5 of Schedule 3 confers on the Lord Chancellor power to make rules regulating the right of appeal to the Commission under clause 5(2). The power covers controversial matters like excluding the appellant and his representatives from the proceedings (subsection (4) (b)) and it is right that affirmative procedure should apply (though there is provision for using the emergency procedure).

  29.  Paragraph 14 of Schedule 4 allows for an Order in Council to provide for the enforcement in England and Wales of orders forfeiting terrorist property made in a country or territory specified in the Order. Affirmative procedure is applied by sub-paragraph (6). Paragraphs 28 and 44 make similar provision for the enforcement of external orders in Scotland and Northern Ireland.

  30.  Schedule 6 is concerned with enabling a constable to obtain "customer information" from a "financial institution" for the purposes of a terrorist investigation. Financial institutions are listed in paragraph 6(1) and paragraph 6(2) allows an order to provide for a class of person to be a financial institution for the purposes of the Schedule. Affirmative procedure (or emergency procedure) is applied by clause 122.

  31.  Schedule 8 is concerned with the treatment of persons detained on suspicion of being a terrorist. Paragraph 3(2) allows an order (subject to affirmative or emergency procedure) to require the video recording of interviews by constables of persons so detained.

  32.  Schedule 14 makes provision about the exercise of functions by authorised officers for the purposes of Clauses 25 to 31 and examining officers for the purposes of Schedule 7. Paragraph 4(1) allows information acquired by such officers to be supplied to listed persons or "to a person specified by order of the Secretary of State for use of a kind specified in the order". Affirmative or emergency procedure applies. The Committee wishes to draw the attention of the House to this power; we recommend that the House should seek an explanation of why it has to be in such wide terms.

  33.  Paragraph 6 of Schedule 14 requires the Secretary of State to issue a code about the exercise by officers of functions under the bill. The Secretary of State is required to publish a draft, consider representations and consider modifying the draft. He then lays the draft (whether or not revised) before Parliament and brings it into operation by order subject to affirmative or emergency procedure.

POWERS SUBJECT TO NEGATIVE PROCEDURE

Clause 4

  34.  This clause provides for the Secretary of State to consider applications for him to remove an organisation from Schedule 2. Subsection (3) requires him to make regulations prescribing the procedure for such applications (negative procedure applies).

Clause 72

  35.  This clause (which applies only in Northern Ireland) is concerned with time limits for preliminary proceedings for scheduled offences. On this Justice comments that the power "includes determination of maximum periods for holding a suspect in custody, and the provision of bail, matters which have substantial human rights implications". At present there is no equivalent in Northern Ireland of the Bail Act 1976 and there are no time limits laid down for the various stages of criminal proceedings and custody pending trial. It follows that regulations under this clause can increase but not reduce safeguards for the accused and that the danger to be feared is that no regulations are made or that those that are do not go far enough in protecting the accused. In the circumstances to provide affirmative procedure would be no greater guarantee of regulations that would satisfy the tests that Justice would apply.

  36.  The Government's Memorandum explains that "this clause replicates section 8 of the EPA and no regulations have been made under that provision to date".

Clauses 79, 80, 97 and 100

  37.  The powers in these clauses re-enact powers in the 1998 Act. They are discussed in the Government's Memorandum and the Committee sees no need to comment further.

Schedule 7

  38.  Paragraph 17 of Schedule 7 contains a provision allowing an examining officer to require the owner or agents of a ship or aircraft (arriving in Great Britain from the Republic of Ireland, N.I. or any of the Islands or arriving in N.I. from any of those places) to provide information about passengers, crew and their vehicles. The Secretary of State is to prescribe by order the kind of information that may be requested. Paragraph 10 of Schedule 5 to the Prevention of Terrorism (Temporary Provisions) Act 1989 confers a similar power on examining officers but in that paragraph the kind of information which may be demanded is specified as names and dates and places of birth. However, in section 18 of the Immigration and Asylum Act 1999, which confers a similar power, the detail is left to be prescribed by order subject to negative procedure.

  39.  The provision of information about passengers raises a number of sensitive issues and the Committee considers that the bill should be amended to provide for the affirmative procedure on the first occasion that such an order is made.

Schedule 8, paragraph 21

  40.  Part 1 of Schedule 8 is concerned with the detention of persons detained under clause 41 (arrest without warrant anywhere in UK of suspected terrorist) or Schedule 7 (port and border controls - see paragraph 6(3)). Paragraph 21 (which is limited to Scotland) confers on the Secretary of State a power, by order subject to negative procedure, to require that, except in such circumstances and subject to such conditions as may be specified in the order, where a person detained has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview. The Government's Memorandum discusses this power in paragraphs 45 and 46 where it is explained that equivalent provision for England and Wales and Northern Ireland is to be found in the PACE codes.

  41.  Justice may have had this provision in mind when drawing attention to the power to make regulations "without prior Parliamentary scrutiny". The Government's Memorandum justified negative procedure in these terms: "Whilst amendments to the PACE codes are subject to affirmative resolution procedure, it is submitted that the negative resolution procedure is appropriate here given the narrower focus and that use of the provision will enhance the safeguards available to the detainee". The Committee noted that paragraph 21 requires the Secretary of State to make regulations and that without regulations the detainee will not have the rights which he should have. It considers, however, that the power is sufficiently important that its first use should be subject to the affirmative procedure, to provide the opportunity for a Parliamentary debate on safeguards for detainees.

POWERS NOT SUBJECT TO PARLIAMENTARY CONTROL

Clause 118

  42.  This clause is discussed with clauses 15 to 23 and 39 in the Government's Memorandum (paragraphs 24 to 28.) The provisions in clause 118 derive from section 19A inserted in the Prevention of Terrorism (Temporary Provisions) Act 1989 by the Criminal Justice Act 1993 and the powers in subsections (1) and (2) of section 19A are both subject to negative procedure. The Government's Memorandum states that both powers in the clause are subject to negative procedure. In fact the power in subsection (1) is not subject to any Parliamentary procedure as only clause 118(2) is listed in clause 122(2). This is apparently a mistake, and the House may wish to amend the bill to provide the negative procedure for the power in clause 118(1).

  43.  In addition to the commencement power and the powers already mentioned above the following powers are not subject to Parliamentary control:-

clause 94- order closing specified road;
clause 96-orders made under regulations under subsection (2);
paragraph 36 of Schedule 4 - restraint orders made by the Secretary of State when making an
application to a court for the order would be likely to put lives
at risk or prejudice terrorist investigations;
paragraphs 19 to 21 of Schedule 5- these also are not legislative orders e.g. an order under
paragraph 19 is equivalent to a search warrant.


CODES OF PRACTICE

  44.  The Committee has already referred to the code under paragraph 6 of Schedule 14. There are other codes under Clauses 99 (1) (exercise of powers under the bill by police officers) and (2) (ditto by the army) and 100 (code about silent video recording of interviews of persons arrested for suspected terrorism) and Schedule 8 (paragraph 3(1) - audio recording of interviews, paragraph 3(4) - video recording of interviews, paragraph 4 - publishing of draft codes, laying before Parliament and commencement by affirmative order). None of these raise issues which we wish to draw to the attention of the House.

RULES OF COURT

  45.  The Committee has already referred to clause 31. There are other provisions in the Schedules to the bill which extend existing powers to make rules of court. None of these raise issues which we wish to draw to the attention of the House.

RECOMMENDATION

  46.  Although this is an important and controversial bill, it is for the most part the substantive provisions of the bill and not the delegated powers it contains which are the cause for concern. The Committee have recommended that the bill should be amended in the following respects:

  • paragraph 17 of Schedule 7, to provide for the first order made under this power to be made subject to the affirmative procedure;

  • paragraph 21 of Schedule 8, to provide for the first use of the power to be made subject to the affirmative procedure;

  • clause 118(1), to apply negative procedure.

The Committee has also drawn attention to a number of issues which the House will wish to consider carefully during the course of the bill's passage. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.


1   HL Deb. 6 April 2000, col. 1433. Back

2   The Committee discusses these below. Back


 
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