Select Committee on Delegated Powers and Deregulation Twelfth Report

Supplementary memorandum by the Home Office and Northern Ireland Office

  1.  This memorandum supplements that on the whole Bill submitted on 21 March and addresses the two concerns identified in Dr F P Tudor's letter to Andrew Englefield of 22 March.

Clause 12

  2.  As 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), the Government has indeed sought to follow the four principles set out by Lord Lloyd and quoted in Dr Tudor's letter. The Committee will be aware that both the Home Secretary and Lord Bassam are of the view that the provisions of the Bill are compatible with the Convention rights for the purposes of the Human Rights Act 1998.

  3.  Clause 12 is a key part of the proscription regime under the Bill. The Government recognises that proscription is a heavy power and should be used sparingly. Ministers have made it clear that in deciding whether an organisation should be proscribed they will take into account factors including the nature and scale of the group's activities; the specific threat they pose to the UK and, where appropriate, 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. The Committee's attention is drawn in addition to the safeguards in respect of the use of this power which are provided by the Proscribed Organisations Appeal Commission procedure set out in Clauses 4 to 10 and Schedule 3.

  4.  An important objective of the proscription regime is to deprive terrorist organisations of the "oxygen of publicity". Thus Clause 12 seeks to outlaw meetings supporting or furthering the activities of proscribed organisations. This was explained by the Minister of State, Home Office (Mr Charles Clarke) in the discussion at Commons Committee on 25 January (at columns 126 to 141 of the Official Report). Equivalent provisions in respect of terrorism connected with the affairs of Northern Ireland have formed part of the United Kingdom's prevention of terrorism legislation since 1974.

  5.  The Government therefore believes that the proscription regime, including the Clause 12 offence, is "in accordance with the law"/"prescribed by law" for the purposes of the relevant Convention rights; is in pursuit of a legitimate aim for the purposes of those rights (in particular in the interests of national security and of public safety, for the prevention of crime and for the protection of the rights of others); and is in itself proportionate to the aim pursued. It will be open to an accused being prosecuted under Clause 12 to raise any Convention rights in his defence, under section 7(1)(b) of the Human Rights Act 1998, once that is fully implemented.

Clause 96

  6.  This power replicates the power at section 49 of the Northern Ireland (Emergency Provisions) Act 1996. The following is an extract from the memorandum on that Act submitted to the Committee by the Northern Ireland Office, as reproduced in the Committee's 15th Report of the 1995-96 session.

    Clause 49: power to make regulations for preserving the peace, etc.

    11.  Subsection (1) allows the Secretary of State to make regulations additional to the provisions of the Bill "for promoting the preservation of the peace and the maintenance of order". Subsection (2) allows regulations under the clause to authorise the Secretary of State "to make orders for such purposes as may be specified in the regulations". Subsection (3) creates a summary offence for contravention of the regulations or of any instrument or directions under them.

    12.  There are two sets of regulations which, by virtue of section 17(2)(b) of the Interpretation Act 1978, would be preserved by the enactment of this clause. The first is the Northern Ireland (Emergency Provisions) Regulations 1975 (SI 1975/2213), which provide that unattended vehicles must be secure and immobilised and are intended to hinder car bombings and hi-jackings. The second is the Northern Ireland (Emergency Provisions) Regulations 1991 (SI 1991/1759), which consolidated regulations made in 1978 and amended in 1989. These regulations allow the Secretary of State to regulate vehicle use on particular roads, allow the Secretary of State or an assistant chief constable to give directions regulating rail traffic, and allow a chief inspector to require persons taking part in a funeral to travel in vehicles.

    13.  The regulation-making power continues to be necessary feature of the emergency provisions legislation. It is justified by the need to be able to respond rapidly to, for example, new threats to public order. Despite the apparent breadth of the power, the terms of subsection (1) ("for promoting the preservation of the peace and the maintenance of order"), which reflect the long title of the 1991 Act, make it clear that the order-making power does not expand the scope of the 1991 Act or of the present Bill.

    14.  It is submitted that the affirmative resolution procedure provides a proper degree of Parliamentary scrutiny. The availability of the urgency procedure (as to which, see paragraph 20 below), is necessary to enable the Secretary of State to respond rapidly should circumstances demand an immediate legislative response.

    15.  Orders made pursuant to these regulations are not statutory instruments: see clause 60(4) of the Bill. The only regulation currently in force which allows such orders to be made is regulation 2 of the 1991 Regulations, concerning road traffic. Under that regulation, a number of vehicle control zones have been designated, the orders designating them being published in the Belfast Gazette and receiving publicity locally. It is not thought that the orders, which are necessarily local in nature, require Parliamentary scrutiny or that it would be useful for them to be made as statutory instruments.

  7.  It is submitted that this power, now at Clause 96 of the Terrorism Bill, remains an essential provision for Northern Ireland for the reasons discussed in the 1996 Memorandum. The Secretary of State must be able to respond to changes in the security situation and must be able to introduce new measures for the preservation of the peace. Currently in force under the 1991 Regulations, for example, is an order similar to the one referred to in paragraph 15 of the above extract, which restricts traffic in certain control zones. These are areas around security force bases and establishments where there is a high security risk.

  8.  These security measures are, by their nature, relatively long-lasting when the security situation so dictates, so that controlling vehicles under alternative provisions of Part VII of the Terrorism Bill would be inappropriate. For example, under Clauses 92 and 94, there are powers for the police and the Secretary of State respectively to close roads or to divert traffic. These powers have traditionally been used to close roads or divert traffic only for as long as is necessary in circumstances anticipated at a particular time (during the time surrounding a contentious march, for example).

  9.  Conversely, neither would it be suitable to make the vehicle control restrictions currently in force under the 1991 Regulations permanent. Although it is anticipated that the restrictions will remain in force for the foreseeable future, as they are essential measures to protect security bases, it is not inconceivable that the controls could be lifted in the future.

27 March 2000

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