Select Committee on Delegated Powers and Deregulation Twelfth Report


Annex 1

TERRORISM BILL

Memorandum by the Home Office and Northern Ireland Office

  1.  This memorandum identifies each provision of the Terrorism Bill which provides for a power to make delegated legislation. It explains in each case the purpose of the power, the reason why the matter is to be left to delegated legislation, and the nature and justification for the procedure selected for the exercise of each power.

The purpose of the Terrorism Bill

  2.  The Bill is intended to introduce permanent measures to combat terrorism on a United Kingdom-wide basis, and also contains a temporary part, Part VII, which makes provision for additional measures designed to help deal with the particular terrorist threat in Northern Ireland.

Powers with UK-wide effect

Clause 3(3): Power to add an organisation to Schedule 2; remove an organisation from that Schedule; or amend that Schedule in any other way.
  
Power conferred on:the Secretary of State
Power exercisable by:order made by statutory instrument
Parliamentary procedure:affirmative resolution

  3.  Schedule 2 contains the list of organisations which are proscribed for the purposes of Part II of the Bill. Clause 3 enables the Secretary of State to add an organisation to the list in Schedule 2 (a), to remove an organisation from the list (b), or to amend the Schedule in any other way (c). The powers at (a) and (b) correspond to proscribing and deproscribing an organisation. That at (c) could be used, for example, to add, remove or amend a note to the Schedule.

  4.  For an organisation to be proscribed it must fulfil the criteria in clause 3(5). The Government has also made it clear that in deciding whether an organisation should be proscribed it will also take into account factors including the nature and scale of the group's activities; the specific threat they pose to the UK and UK citizens abroad; the extent of their presence in the UK; and the need to support other members of the international community in the global fight against terrorism.

  5.  Subordinate legislation is considered appropriate for this because terrorist organisations, and the threat they pose, change over time so it is important for the Secretary of State to be able to keep the list under review and up to date. As proscription is a heavy power, Parliamentary oversight of this process is considered essential. It is therefore submitted that the affirmative resolution procedure provides the right balance.

  6.  The clause 122(4) urgency procedure is provided because the factors affecting whether a particular organisation should be proscribed are all subject to sudden change. It is therefore essential that the Secretary of State should be able to react quickly and to amend Schedule 2 without undue delay.

Clause 4(3): Power to make regulations prescribing the procedure for applications under clause 4
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:negative resolution

  7.  Clause 3 of the Bill provides a power for the Secretary of State to proscribe organisations. Under clause 4, an organisation which has been proscribed, or any person affected by the organisation's proscription, may apply to the Secretary of State for the exercise of his power under clause 3(3)(b) to deproscribe the organisation. Clause 4 requires the Secretary of State to make regulations prescribing the procedure for such applications; and provides that the regulations shall require the Secretary of State to determine an application within a specified period of time, and shall require an application to state the grounds on which it is made.

  8.  This matter is considered appropriate for subordinate legislation because of the level of detail involved; and because of the need to change the regulations from time to time in the light of experience and circumstances.

Paragraph 5 of Schedule 3: Power to make rules for the Proscribed Organisations Appeals Commission
  
Power conferred on:the Lord Chancellor
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  9.  Schedule 3 makes provision for the constitution, administration and procedure for the Proscribed Organisations Appeals Commission ("POAC"). Paragraph 5(1) gives the Lord Chancellor power to make rules regulating the exercise of the right of appeal to the Commission; prescribing practice and procedure to be followed in relation to proceedings before the Commission; providing for proceedings before the Commission to be determined without an oral hearing in certain circumstances; making provision about evidence in proceedings before the Commission (including provision about burden of proof and admissibility of evidence); and making provision about proof of the Commission's decisions. Sub-paragraph (3) provides that the rules must make provision permitting organisations to be legally represented in proceedings before the Commission. Sub-paragraph (4) gives a further list of matters on which the Rules may make provision.

  10.  POAC is modelled on the Commission established under the Special Immigration Appeals Commission Act 1997 ("SIAC"), and the power to make rules for POAC is modelled on powers to make rules for SIAC under sections 5 and 8 of the 1997 Act. A preliminary draft of the POAC Rules to be made under the Terrorism Bill is available.

  11.  Secondary legislation is suitable for the matters set out in paragraph 5 because of the level of detail required, and the affirmative procedure is proposed because of the significance of these matters.

Clause 24(2)(e): Power to specify kinds of monetary instrument to which the seizure of cash provisions in Clauses 25 to 31 will apply
  
Power conferred on:the Secretary of State
Power exercisable by:order made by statutory instrument
Parliamentary procedure:negative resolution

  12.  Clauses 25 to 31 provide powers to seize, detain and order forfeiture of terrorist cash. These powers are modelled on powers already available for drug trafficking cash under the Drug Trafficking Act 1994. Clause 24 provides a definition of cash, which includes coins and notes in any currency, postal orders, travellers' cheques, and bankers drafts, as well as such other kinds of monetary instrument as the Secretary of State may specify by order.

  13.  This is an appropriate matter for subordinate legislation because, while it is important that the definition of cash is precise, it is impossible to predict what kinds of monetary instruments may come into use by terrorists in future. The ability to add further kinds of monetary instruments to the definition could therefore be important in tackling new methods by which terrorists may seek to transfer funds. At the same time, additions to the definition of "cash" would be essentially technical matters designed to fulfil Parliament's intentions as enacted in the primary legislation.

Paragraph 52(1) of Schedule 4: Power to make an order to secure that an Islands or external insolvency practitioner has the same rights under Part IV of Schedule 4 in relation to property situated in the England and Wales, Scotland, or Northern Ireland, as he would if he were an insolvency practitioner in that part of the United Kingdom.
  
Power conferred on:in relation to property situated in England and Wales, the Secretary of State with the concurrence of the Lord Chancellor;
  
in relation to property situated in Scotland, the Secretary of State; and
  
in relation to property situated in Northern Ireland, the Department of Economic Development in Northern Ireland
  
Power exercisable by:statutory instrument
  
Parliamentary procedure:negative resolution

  14.  Part IV of Schedule 4 allows for cases where a person subject to a forfeiture order under the Schedule 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.

  15.  Paragraphs 51-52 provide limited protection from liability for insolvency practitioners in respect of the exercise of their duties. Paragraph 49 provides protection for insolvency practitioners in the United Kingdom. An order can be made under paragraph 52 to secure that an Islands or external insolvency practitioner has the same rights under Part IV of Schedule 4 in relation to property situated in the England and Wales, Scotland, or Northern Ireland, as he would if he were an insolvency practitioner in that part of the United Kingdom.

  16.  Paragraph 52 replicates paragraph 34 of Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989. To date no order has been made under that paragraph.

  17.  This matter is considered appropriate for secondary legislation because of the level of detail which would be required; and because that detail would depend on the whereabouts both of the property and of the insolvency practitioner in any particular case.

Paragraph 6(2) of Schedule 6: Power to provide that a class of person be, or cease to be, a financial institution for the purposes of Schedule 6
  
Power conferred on:the Secretary of State
Power exercisable by:order made by statutory instrument
Parliamentary procedure:affirmative resolution

  18.  Paragraphs 1-5 of the Schedule 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 institution to provide customer information within a specified time and in a specified manner. The definition of "financial institution" in paragraph 6 is based on the definition of "relevant financial business" in Regulation 4 of the Money Laundering Regulations 1993 (SI 1993/1933).

  19.  The order-making power enables the Secretary of State to amend, by the affirmative procedure, the definition of "financial institution". It might be appropriate to amend the definition, for example, in the light of any future changes to the types of institutions covered by the Money Laundering Regulations. The affirmative procedure is considered appropriate for this power.

  20.  The clause 122(4) urgency procedure is provided because it could be useful to add a class of institution quickly in a particular case.

Paragraph 7(3) of Schedule 6: Power to provide for a class of information to be, or to cease to be, customer information for the purposes of Schedule 6
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  21.  Paragraphs 1-5 of the Schedule 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 institution to provide customer information within a specified time and in a specified manner. Paragraph 7 defines the "customer information" which the constable may require.

  22.  The order-making power allows the Secretary of State to amend, by the affirmative procedure, the definition of "customer information". This reflects the position in Schedule 2 to the Proceeds of Crime (Northern Ireland) Order 1996, on which the new Schedule is modelled, except that in the 1996 Order regulations amending the types of information can be made by negative resolution. Affirmative resolution procedure is considered appropriate here given the broader nature of this power and the potential impact on financial institutions.

  23.  The clause 122(4) urgency procedure is provided because it could be useful to add a class of information quickly in a particular case.

Clause 118(1): Power to make regulations providing for clauses 15 to 23 and 39 to apply to persons in the public service of the Crown.
  
Clause 118(2): Power to make regulations providing for clause 19 not to apply to persons who in the opinion of the Secretary of State are performing or connected with the performance of regulatory, supervisory, investigative or registration functions of a public nature.
  
Powers conferred on:the Secretary of State
Powers exercisable by:statutory instrument
Parliamentary procedure:negative resolution

  24.  Clauses 15 to 23 and 39 make provision relating to terrorist property, together with penalties and forfeiture powers. This is based on Part III of the Prevention of Terrorism (Temporary Provisions) Act 1989.

  25.  As part of that package, clause 19 requires any person who believes or suspects that another person has committed an offence under any of clauses 15 to 18 (a terrorist property offence), and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment, to disclose to a constable as soon as is reasonably practicable his belief or suspicion and the information on which it is based. This replicates section 18A of the Prevention of Terrorism (Temporary Provisions) Act 1989, which was inserted by the Criminal Justice Act 1993.

  26.  The powers in clause 118(1)-(2) to make regulations providing for these offences to apply to persons in the public service of the Crown, and to make regulations providing for clause 19 not to apply to persons who in the opinion of the Secretary of State are performing or connected with the performance of regulatory, supervisory, investigative or registration functions of a public nature, replicate provision in section 19A of the Prevention of Terrorism (Temporary Provisions) Act 1989, which was also inserted by the Criminal Justice Act 1993.

  27.  The Prevention of Terrorism (Temporary Provisions) Act 1989 (Crown Servants and Regulators etc) Regulations 1994, SI 1994/1758 have been made under this section. Their purpose is to ensure that Crown servants working in National Savings cannot avoid prosecution for terrorist property offences by relying on the general principle that the statute does not bind the Crown; and to ensure that the requirement in section 18A does not interfere with the performance of regulatory, supervisory, investigative or registration functions of a public nature.

  28.  Secondary legislation is considered the appropriate mechanism for this because of the possible need to modify the lists of persons affected in future.

Clause 53(2): Power to repeal paragraph 16 of Schedule 7
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  29.  Schedule 7 makes provision for port and border controls. Paragraph 16 enables the Secretary of State by order to make provision requiring a person, if required to do so by an examining officer, to complete and produce to the officer a card containing such information in such form as the order may specify. This provision is known as "carding", and only applies to journeys within the "Common Travel Area", that is, Great Britain, Northern Ireland, the Republic of Ireland and the Islands. This provision will be considered below. Clause 53(2) provides that the Secretary of State may repeal the carding provision by order which is subject to affirmative resolution procedure.

  30.  The "carding" power has been the subject of much debate. The police believe it to be an important tool in tackling terrorism - but others have objected on the grounds that it is an infringement of civil liberties, delays journeys and may be used disproportionately against Irish people.

  31.  The Bill therefore proposes that rather than being permanently available, the provision will be capable of being switched on or off by the Secretary of State under Schedule 7 paragraph 16, and also that the power may be repealed under clause 53(2). It is unusual to provide for the repeal of a power other than via primary legislation but it is submitted that it is justified in the present case, to allow maximum flexibility in responding to circumstances (particularly changes in the security situation) in the future handling of what has been a controversial power. That is also why it is proposed that the "urgency procedure" under clause 122(4) should be available. It is submitted that it is clearly appropriate that any such change should be the subject of the affirmative resolution procedure.

Paragraph 16 of Schedule 7: Power to make provision by order requiring a person to whom this paragraph applies, if required to do so by an examining officer, to complete and produce to the officer a card containing such information in such form as the order may specify
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  32.  This provision is known as "carding", and only applies to journeys within the "Common Travel Area", that is, Great Britain, Northern Ireland, the Republic of Ireland and the Islands. It is similar in some respects to paragraph 5 of Schedule 5 to the Prevention of Terrorism (Temporary Provisions) Act 1989.

  33.  It is submitted that subordinate legislation is the appropriate vehicle for this provision because the Secretary of State will wish to keep under review whether or not the carding powers should be available at any particular time. In this regard, he will wish to take particular account of the security situation in coming to a view on whether it would be a proportionate response for the powers to be "switched on". Moreover, the information which the Secretary of State would wish an examining officer to be able to require on a card, if the powers were switched on, and the form in which he may require it, could be subject to change in the light of operational experience. The order making provision thus offers a degree of flexibility. The availability of the clause 122(4) "urgency procedure" means that changes can be made speedily if necessary as a result of a change in circumstances, including the security situation.

  34.  The affirmative procedure is considered appropriate because of the nature of the carding power and its impact on the travelling public.

Paragraph 17(4) of Schedule 7: Power to prescribe the kind of information which may be specified in a request under paragraph 17(2) of Schedule 7
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:negative resolution

  35.  Paragraph 17(2) of Schedule 7 enables an examining officer to give the owners or agents of a ship or aircraft ("a carrier") a written request to provide specified information relating to passenger, crew, or vehicles belonging to passenger and crew: the carrier must then comply with the request. This is known as a power to demand "manifest information".

  36.  This replaces the provision in paragraph 10 of Schedule 5 to the Prevention of Terrorism (Temporary Provisions) Act 1989. There, the kind of information which may be demanded is specified on the face of the primary legislation - in paragraph 10(5) - as names and dates and places of birth.

  37.  The Bill, by contrast, allows the kind of information which may be demanded to be specified by order. The Government is exploring with the police and other interested parties what kinds of information should be specified. It is submitted that this is an appropriate matter for subordinate legislation because it is desirable to be able to alter the information requirement in the light of operational experience or developments in technology. This is the approach taken in comparable provisions in the Immigration and Asylum Act 1999.

  38.  The negative resolution procedure is considered appropriate. Interested parties will have been consulted prior to the tabling of an order and a Regulatory Impact Assessment prepared. The similar provision in section 18 of the Immigration and Asylum Act 1999 is subject to the negative resolution procedure.

Paragraph 3 of Schedule 8:
  
(a)power to require the audio recording of interviews in accordance with a Code of Practice
(b)power to require the video recording of interviews in accordance with a Code of Practice
(c)power to bring Codes of Practice for audio and video recording of interviews into force
(a)Power conferred on : the Secretary of State
Power exercisable by : order made by statutory instrument
Parliamentary procedure : negative resolution

  39.  Paragraph 3(1) of Schedule 8 imposes a duty upon the Secretary of State to issue a code of practice about audio recording of interviews by constables of persons detained under section 41 of the Bill or under Schedule 7 of the Bill at a police station, and to make an order requiring the audio recording of such interviews in accordance with the code.

  40.  This order making power is subject to the negative resolution procedure. The principle that interviews will be subject to audio recording is on the face of the Bill and only the timing of its introduction remains to be settled.

(b) Power conferred on : the Secretary of State
Power exercisable by : order made by statutory instrument
Parliamentary procedure : affirmative resolution

  41.  Paragraph 3(2) of Schedule 8 provides that the Secretary of State may make an order requiring the video recording of interviews by constables of those arrested under section 41 of the Bill or under Schedule 7 of the Bill at a police station. Any order may apply to all or part of the United Kingdom and must specify whether the video recording shall be silent or with sound.

  42.  This order making power is subject to the affirmative resolution procedure given the range of issues potentially covered by the order, and the resource and other implications of any decision to introduce video recording.

(c ) Power conferred on : the Secretary of State
Power exercisable by : order made by statutory instrument
Parliamentary procedure : affirmative resolution

  43.  Paragraph 4(4) provides that a code of practice in respect of audio or video recording of interviews must be published in draft, consulted upon, and laid before Parliament. After that the code may be brought into operation by order.

  44.  Any such order is to be subject to the affirmative resolution procedure. This combines the necessary ability to alter the codes as circumstances demand with the level of Parliamentary scrutiny warranted by the importance of the issues to be covered.

Paragraph 21 of Schedule 8: Power to make provision to require that, in Scotland, a solicitor shall be allowed to be present at interviews
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:negative resolution

  45.  Paragraph 21 requires the Secretary of State to make an order in respect of Scotland requiring that except in such circumstances and subject to such conditions as may be specified in the order, where a person arrested and detained under section 41 of the Act has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview .

  46.  Subordinate legislation is considered the appropriate vehicle for this because the equivalent provision for England and Wales and Northern Ireland is found in the PACE Codes, which are of course capable of amendment. Whilst amendments to the Codes are subject to the 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.

Paragraph 4(1)(e) of Schedule 14: power to specify a person to whom information acquired by an officer may be supplied, and the use for which it may be supplied
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  47.  Paragraph 4 provides a power for an authorised or examining officer, as defined in paragraph 1 of Schedule 14, to supply information to the Secretary of State for use in relation to immigration; to the Commissioners of Customs and Excise or a customs officer; to a constable; or to the Director General of NCIS or of the National Crime Squad.

  48.  The power to add further persons to this list is provided so that if in future it is judged operationally desirable, the supply of information to other agencies may be facilitated. This might occur if links with other agencies develop or relevant responsibilities change.

  49.  The affirmative procedure is considered appropriate for this because it concerns the passing of information to third parties. The similar provisions in sections 21 and 22 of the Immigration and Asylum Act 1999 are subject to the affirmative resolution procedure.

Paragraph 7(3) of Schedule 14: Power to bring into operation a code of practice
  
Power conferred on:the Secretary of State
Power exercisable by:statutory instrument
Parliamentary procedure:affirmative resolution

  50.  Paragraphs 5 to 7 provide for codes of practice in relation to the powers conferred on examining officers and authorised officers (within the meaning of section 24) by the Bill. Subordinate legislation is considered appropriate because of the level of detail needed and for the need to retain a degree of flexibility to amend the Codes in the light of operational circumstances and other factors.

  51.  The affirmative resolution procedure is considered appropriate because the codes could have a significant impact on the travelling public and others affected by the powers in the Bill.

Temporary Northern Ireland powers

Paragraph 1(2)(b) of Schedule 1, and
paragraph 1(4) of Schedule 1
  
Power conferred on:the Secretary of State
Power exercisable by:order
Parliamentary procedure:1(2)(b) affirmative; and 1(4) none

  52.  Schedule 1 comes into effect on Royal Assent and will continue in force those provisions of the EPA which are in force on that day. Paragraph 1(2) provides that the provisions of the EPA which are in force on Royal Assent shall remain in force for a period of 12 months and that the Secretary of State may by order provide for any of those provisions to continue in force for a period of up to 12 months thereafter.

  53.  An order under paragraph 1(2)(b), by virtue of clause 122, will be subject to affirmative resolution. This is in line with the usual practice that emergency powers in Northern Ireland are temporary and renewable by affirmative resolution each year. The intention is that the Schedule 1 provisions will remain in force only until the remaining provisions of the Act are commenced by order. The aim is to do this early in 2001 and, therefore, it should not be necessary to renew by order the EPA provisions retained by Schedule 1.

  54.  Under paragraph 1(4), the Secretary of State may by order provide that an EPA provision temporarily extended by Schedule 1 shall cease to have effect on a specified day, or, if it has already been ceased temporarily, that it shall cease to be a temporary provision for the purposes of the 1996 Act. There is no procedure for such an order. This power is considered similar to a commencement power where no Parliamentary procedure would be the norm. This order making power would be used to cease the provisions retained by Schedule 1 at the point at which their replacement provisions, in Part VII of the Bill, are brought into force.

Clause 65(3): power to amend Schedule 9
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:affirmative resolution

  55.  Clause 65 replicates section 1 of the Northern Ireland (Emergency Provisions) Act 1996. It defines "scheduled offences" for the purposes of Part VII. A scheduled offence is one which is listed in Part II or III of Schedule 9 to the Bill and qualifies for special treatment because it is a terrorist offence or is related to the security situation in Northern Ireland. A scheduled offence would be tried before a Diplock (non-jury) court by virtue of clause 75. Under Schedule 9, the Attorney General may certify a case out of the Diplock procedures and into a jury trial where he is satisfied that the offence in question is not related to the emergency situation.

  56.  Clause 65(3) enables the Secretary of State to amend Schedule 9 by order. He may add or delete an offence or otherwise amend Schedule 9.

  57.  We continue to believe that this is a subject suitable for delegated legislation. Without this power, primary legislation would be required to change the list of scheduled offences. Orders made under this power have traditionally been subject to the affirmative resolution procedure. Classifying an offence as being appropriate for a non-jury trial would continue to be a matter on which fullest Parliamentary scrutiny is required.

  58.  This power is covered by the urgency procedure in clause 122(4), through which it is possible for the Secretary of State to exercise the power immediately provided the order contains a declaration of the Secretary of State's opinion that it is necessary to do so by reason of urgency. Where the urgency procedure is used, the order will cease to have effect after 40 days unless the order is approved through a resolution of both houses in the meantime.

Clause 72: power to make regulations about time limits for preliminary proceedings.
  
Power conferred on: the Secretary of State
Power exercisable by:regulations made by statutory instrument
Parliamentary procedure:negative resolution

  59.  Clause 72 enables the Secretary of State to make regulations about time limits in preliminary proceedings for scheduled offences. This power replicates section 8 of the EPA and no regulations have been made under that provision to date.

  60.  Regulations may cover matters such as the time the prosecution is allowed to complete the relevant stage; and the time the accused may be kept in custody while awaiting completion of the stage.

  61.  The matters which may be included in Regulations under clause 72 are procedural matters and the negative resolution procedure continues to be the appropriate mechanism.

Clause 79(5): power to substitute different length of sentence and a different maximum period of remission for those mentioned in 79(1)
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:negative resolution

  62.  Clause 79 replicates section 15 of the EPA. This clause provides that remission granted in respect of a prison sentence of 5 years or more for a scheduled offence shall not exceed one third of the term. Clause 79(5) enables the Secretary of State to vary by order the relevant sentence and the remission period.

  63.  This power has traditionally been exercisable by negative resolution. The matters contained in the order could specify a different remission period, that is the time to be spent in at liberty as compared to the total sentence. The order may also change the length of sentence which attracts the restricted remission, making it more or less severe (for example, remission could be restricted where the sentence was as comparatively short as 2 years, or not restricted unless the sentence was for example as long as 8 years). Parliament would have approved the principle that remission in relation to a scheduled offence may be different to that granted in non-scheduled offences. The negative resolution procedure remains appropriate.

Clause 80(9): power to substitute a different period for the period of one year mentioned in 80(1)
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:negative resolution

  64.  Clause 80 replicates section 16 of the EPA. Clause 80 applies to a person convicted of a scheduled offence committed during a period of remission relevant to an earlier term of imprisonment which was for a period exceeding one year. Clause 80 applies where a person is sentenced to imprisonment or detention for a period exceeding one year. Clause 80(9) enables the Secretary of State to vary the one year period by order.

  65.  Orders made under this power have traditionally been subject to the negative resolution procedure. The matter for the order is the technical issue of the minimum length of sentence which attracts the consequences under clause 80(2) when a scheduled offence is committed during remission. Under clause 80(2), where a person is sentenced to a term of imprisonment for a scheduled offence, the court must in addition return the person to imprisonment for the period between the date of the order and the date on which the original sentence would have expired but for his discharge.

  66.  The negative resolution procedure remains appropriate, with Parliament having approved the principle that special arrangements should apply where a person is convicted of an offence during a period of remission for a scheduled offence.

Clause 96: power to make regulations for promoting the preservation and maintenance of order
  
Power conferred on: the Secretary of State
Power exercisable by:regulations
Parliamentary procedure:affirmative resolution

  67.  Clause 96 replicates section 49 of the EPA. It enables the Secretary of State to make regulations to promote the preservation of the peace and the maintenance of order. These regulations would allow the Secretary of State to make orders or give directions for specified purposes. It is an offence to fail to comply with regulations or an order or a direction made under this power.

  68.  Given the wide range of matters which could be included in regulations and orders or directions made under them by virtue of this clause, it is right that the power continues to be subject to the affirmative resolution procedure. By clause 122(7)(b) orders made under any regulations would not be made by statutory instrument.

  69.  This power is covered by the urgency procedure in clause 122(4), through which it is possible for the Secretary of State to exercise the power immediately provided the order contains a declaration of the Secretary of State's opinion that it is necessary to do so by reason of urgency. Where the urgency procedure is used, the order will cease to have effect after 40 days unless the order is approved through a resolution of both houses in the meantime.

Clause 97(1) and (3): powers to confer examining officer functions on members of Her Majesty's Forces; and to make provision about entering or leaving Northern Ireland by land
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:negative resolution

  70.  Clause 97(1) replicates paragraph 1(2) of Schedule 5 to the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the PTA"). It enables the Secretary of State to confer on Her Majesty's Forces the powers of an examining officer under Schedule 7 to the Bill. An examining officer has certain powers at ports and borders as set out in Schedule 7 to stop, question, detain and search persons and vehicles and to detain property. The power to make the Army examining officers has not been used to date.

  71.  The order making power is within Part VII of the Bill rather than in Schedule 7 to ensure it is temporary and renewable in line with other Northern Ireland specific provisions. Should the power be used, it would be subject to the negative resolution procedure. This continues to be appropriate, with Parliament having approved the principle that the Army may undertake these functions should the security situation in Northern Ireland so require.

  72.  Clause 97(3) replicates section 16(4) of the PTA which contains a power traditionally exercisable by negative resolution. It allows the Secretary of State to make by order provision about leaving or entering Northern Ireland by land. This power is exercisable only to supplement or modify provisions already in Schedule 7 which Parliament would have passed and the negative resolution procedure remains appropriate. This power is also temporary and renewable.

Clause 100(1)(b) and Clause 101(4): the power to make an order requiring compliance with the silent video Code of practice and the power to bring a Code into force by order
  
Power conferred on: the Secretary of State
Power exercisable by:regulations
Parliamentary procedure:negative resolution under clause 100(1)(b), affirmative under clause 101(4)

  73.  Clause 100 replicates section 53 of the EPA. Clause 100(1)(a) requires the Secretary of State to make a code of practice about the silent video recording of police interviews of persons detained by the RUC under Clause 41 of the Bill. Clause 100(1)(b) requires the Secretary of State to make an order requiring silent video recording of interviews in accordance with the code. It is this order which requires compliance with the code itself.

  74.  It is the code which contains the information in which Parliament will have an interest. Under clause 101, the Secretary of State must consult on the draft code and it must be laid before Parliament. Once the code has been laid, it can be brought into force by an order subject to affirmative resolution procedure under clause 101(4). Given that Parliament will have debated the detail of the code, it remains appropriate that the order requiring compliance with it is subject to the negative resolution procedure. This arrangement replicates the position under the EPA.

Clause 101(4): power to bring codes into force by order
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:affirmative resolution

  75.  Clause 101(4) has a more general application. In addition to the matters referred to above, the Secretary of State would be required to bring into force by a affirmative resolution order any code of practice made for the police or the Army under clause 99. As with the silent video code, it is right that Parliament should have the opportunity to debate any such code and the affirmative resolution procedure remains appropriate. This arrangement replicates the position under the EPA.

  76.  This power is covered by the urgency procedure in clause 122(4), through which it is possible for the Secretary of State to exercise the power immediately provided the order contains a declaration of the Secretary of State's opinion that it is necessary to do so by reason of urgency. Where the urgency procedure is used, the order will cease to have effect after 40 days unless the order is approved through a resolution of both houses in the meantime.

Clause 112(2); power to continue Part VII in force
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:affirmative resolution

  77.  Part VII of the Bill contains measures specific to Northern Ireland. Whereas the rest of Bill is permanent. It has a maximum life span of five years from commencement. The Part VII powers are in addition to other measures in the Bill and to a large extent replicate the provisions of the EPA. Part VII will be commenced by on order under clause 127.

  78.  Clause 112(1) provides that Part VII will remain in force for one year. Clause 112(2) enables the Secretary of State to by order retain Part VII provisions already in force for another year; to lapse a provision; or to commence a provision not already in force for a period of one year.

  79.  To ensure that other Northern Ireland specific measures outside of Part VII are also temporary and renewable (namely paragraphs 36 and 37 of Schedule 4 and paragraphs 19-21 of Schedule 5), clause 112(5) treats those measures as if they were in Part VII. Clause 112(3) further provides that an order under 112(2) may make general provision, may make provision only in relation to Her Majesty's Forces, or may make provision except in respect of Her Majesty's forces.

  80.  The annual renewal of the EPA has traditionally been subject to affirmative resolution. Part VII contains extra powers for Northern Ireland and it is appropriate that the affirmative resolution procedure continues to apply.

Paragraph 8 of Schedule 13: the power to vary the duration of Schedule 13 licenses
  
Power conferred on: the Secretary of State
Power exercisable by:order
Parliamentary procedure:none

  81.  Schedule 13 makes provision for the regulation of private security services in Northern Ireland. It is given effect by clause 106 which, as a Part VII clause, is temporary and renewable under clause 112.

  82.  Paragraph 8 of Schedule 13 makes provision about the duration of a licence issued by the Secretary of State under that schedule. It currently provides that a licence shall expire after one year. Paragraph 8(3) enables the Secretary of State by order to substitute a different licence duration. Under clause 122(6) such an order must be laid before Parliament. It is right that, having passed Schedule 13, Parliament should be informed about any change to the licence duration but this is essentially a technical regulatory measure and no formal Parliamentary procedure is necessary.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000