Counter-Terrorism Bill

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Counter-Terrorism Bill

Counter-Terrorism Bill
Part 1 — Powers to gather and share information
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(a)
the reference to using material includes allowing a check to be made
against it, or against information derived from it, or disclosing it to any
person;
(b)
the reference to crime includes any conduct that—
(i)
constitutes a criminal offence (whether under the law of a part
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of the United Kingdom or of a country or territory outside the
United Kingdom), or
(ii)
is, or corresponds to, conduct that, if it took place in the United
Kingdom, would constitute a criminal offence;
(c)
the references to investigation and prosecution include, respectively,
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the investigation outside the United Kingdom of a crime or suspected
crime and a prosecution brought in respect of a crime in a country or
territory outside the United Kingdom.
(5)
In this section—
“DNA sample” means any material that has come from a human body
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and consists of or includes human cells;
“DNA profile” means any information derived from a DNA sample;
“fingerprints” means a record (in any form and produced by any method)
of the skin pattern and other physical characteristics or features of a
person’s fingers or either of a person’s palms;
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“law enforcement authority” means a police force, the Serious Organised
Crime Agency or the Commissioners for Her Majesty’s Revenue and
Customs or an authority having functions under the law of a country or
territory outside the United Kingdom—
(a)
corresponding to those of a police force, or
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(b)
otherwise involving the investigation or prosecution of
offences;
“police force” means any of the following—
(a)
the metropolitan police force;
(b)
a police force maintained under section 2 of the Police Act 1996
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(c. 16) (police forces in England and Wales outside London);
(c)
the City of London police force;
(d)
any police force maintained under or by virtue of section 1 of
the Police (Scotland) Act 1967 (c. 77);
(e)
the Police Service of Northern Ireland;
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(f)
the Police Service of Northern Ireland Reserve;
(g)
the Ministry of Defence Police;
(h)
the Royal Navy Police;
(i)
the Royal Military Police;
(j)
the Royal Air Force Police;
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(k)
the British Transport Police.
(6)
The following are “the existing statutory restrictions” referred to in subsection
(1)—
(a)
sections 63A and 64 of the Police and Criminal Evidence Act 1984
(c. 60);
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(b)
Articles 63A and 64 of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));
(c)
paragraph 14 or 20(3) of Schedule 8 to the Terrorism Act 2000 (c. 11);
(d)
section 2(2) of the Security Service Act 1989 (c. 5);

Counter-Terrorism Bill
Part 1 — Powers to gather and share information
15

(e)
section 1(2) of the Intelligence Services Act 1994 (c. 13).
Disclosure of information and the intelligence services
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Disclosure and the intelligence services
(1)
A person may disclose information to any of the intelligence services for the
purposes of the exercise by that service of any of its functions.
5
(2)
Information obtained by any of the intelligence services in connection with the
exercise of any of its functions may be used by that service in connection with
the exercise of any of its other functions.
(3)
Information obtained by the Security Service for the purposes of any of its
functions may be disclosed by it—
10
(a)
for the purpose of the proper discharge of its functions,
(b)
for the purpose of the prevention or detection of serious crime, or
(c)
for the purpose of any criminal proceedings.
(4)
Information obtained by the Secret Intelligence Service for the purposes of any
of its functions may be disclosed by it—
15
(a)
for the purpose of the proper discharge of its functions,
(b)
in the interests of national security,
(c)
for the purpose of the prevention or detection of serious crime, or
(d)
for the purpose of any criminal proceedings.
(5)
Information obtained by GCHQ for the purposes of any of its functions may be
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disclosed by it—
(a)
for the purpose of the proper discharge of its functions, or
(b)
for the purpose of any criminal proceedings.
(6)
A disclosure under this section does not breach—
(a)
any obligation of confidence owed by the person making the
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disclosure, or
(b)
any other restriction on the disclosure of information (however
imposed).
(7)
The provisions of this section are subject to section 20 (savings and other
supplementary provisions).
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20
Disclosure and the intelligence services: supplementary provisions
(1)
The provisions of section 19 (disclosure and use of information) do not affect
the duties with respect to the obtaining or disclosure of information imposed—
(a)
on the Director-General of the Security Service, by section 2(2) of the
Security Service Act 1989 (c. 5);
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(b)
on the Chief of the Intelligence Service, by section 2(2) of the
Intelligence Services Act 1994;
(c)
on the Director of GCHQ, by section 4(2) of that Act.
(2)
Nothing in that section authorises a disclosure that—
(a)
contravenes the Data Protection Act 1998 (c. 29), or
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(b)
is prohibited by Part 1 of the Regulation of Investigatory Powers Act
2000 (c. 23).

Counter-Terrorism Bill
Part 2 — Detention and questioning of terrorist suspects
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(3)
The provisions of that section are without prejudice to any rule of law
authorising the obtaining, use or disclosure of information by any of the
intelligence services.
(4)
Schedule 1 contains amendments consequential on that section.
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Disclosure and the intelligence services: interpretation
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(1)
In sections 19 and 20 “the intelligence services” means the Security Service, the
Secret Intelligence Service and GCHQ.
(2)
References in section 19 to the functions of those services are—
(a)
in the case of the Security Service, to the functions specified in section
1(2) to (4) of the Security Service Act 1989 (c. 5);
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(b)
in the case of the Secret Intelligence Service, to the functions specified
in section 1(1)(a) and (b) of the Intelligence Services Act 1994 (c. 13),
exercised in accordance with section 1(2) of that Act;
(c)
in the case of GCHQ—
(i)
to the functions specified in section 3(1)(a) of that Act, exercised
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in accordance with section 3(2) of that Act, and
(ii)
to the functions specified in section 3(1)(b) of that Act.
(3)
In sections 19, 20 and this section “GCHQ” has the same meaning as in the
Intelligence Services Act 1994 (see section 3(3) of that Act).
(4)
Section 81(5) of the Regulation of Investigatory Powers Act 2000 (c. 23)
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(meaning of “prevention” and “detection”), so far as it relates to serious crime,
applies for the purposes of section 19 as it applies for the purposes of the
provisions of that Act not contained in Chapter 1 of Part 1.
Part 2
Detention and questioning of terrorist suspects
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Pre-charge detention
22
Grave exceptional terrorist threat
(1)
In this Part “grave exceptional terrorist threat” means an event or situation
involving terrorism which causes or threatens—
(a)
serious loss of human life,
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(b)
serious damage to human welfare in the United Kingdom, or
(c)
serious damage to the security of the United Kingdom.
(2)
For the purposes of subsection (1)(b) an event or situation causes or threatens
damage to human welfare only if it causes or threatens—
(a)
human illness or injury,
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(b)
homelessness,
(c)
damage to property,
(d)
disruption of a supply of money, food, water, energy or fuel,
(e)
disruption of a system of communication,
(f)
disruption of facilities for transport, or
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(g)
disruption of services relating to health.

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Part 2 — Detention and questioning of terrorist suspects
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(3)
The event or situation mentioned in subsection (1)—
(a)
may occur or be inside or outside the United Kingdom, and
(b)
may consist in planning or preparation for terrorism which if carried
out would meet one or more of the conditions in that subsection.
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Power to declare reserve power exercisable
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(1)
The Secretary of State may by order declare that the power conferred by Part 4
of Schedule 8 to the Terrorism Act 2000 (c. 11), inserted by Schedule 2 to this
Act, to apply for and extend detention under section 41 of that Act beyond 28
days (“the reserve power”) is exercisable.
(2)
No such order may be made unless—
10
(a)
an order is already in force under section 25 of the Terrorism Act 2006
(c. 11) (extension of maximum period of detention to 28 days), and
(b)
the Secretary of State has received a report complying with the
requirements of section 24 (report of operational need for further
extension of maximum period of detention).
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(3)
The effect of an order under this section is that the reserve power is exercisable
in the case of all persons—
(a)
then detained under section 41 of that Act, or
(b)
subsequently detained under that section at a time when the order is in
force.
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24
Report of operational need for further extension of maximum period of
detention
(1)
The report required by section 23(2)(b) is a report by—
(a)
the Director of Public Prosecutions and the chief officer of a police force
in England and Wales,
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(b)
the Crown Agent and the chief constable of a police force in Scotland, or
(c)
the Director of Public Prosecutions for Northern Ireland and the Chief
Constable of the Police Service of Northern Ireland,

to the following effect.
(2)
The report must—
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(a)
state that each of the persons making the report is satisfied that there
are reasonable grounds for believing that the detention of one or more
persons beyond 28 days will be necessary for one or more of the
purposes mentioned in subsection (3) below, and
(b)
give details of the grounds for that belief.
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(3)
The purposes referred to in subsection (2)(a) are—
(a)
to obtain, whether by questioning or otherwise, evidence that relates to
the commission by the detained person or persons of a serious terrorist
offence,
(b)
to preserve such evidence, or
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(c)
pending the result of an examination or analysis of any such evidence
or of anything the examination or analysis of which is to be or is being
carried out with a view to obtaining such evidence.
(4)
In subsection (3)(a) a “serious terrorist offence” means—

Counter-Terrorism Bill
Part 2 — Detention and questioning of terrorist suspects
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(a)
an offence under the Terrorism Act 2000 (c. 11) or the Terrorism Act
2006 (c. 11), or
(b)
any offence that has a terrorist connection,

in respect of which an offender who has attained the age of 21 (in England and
Wales, 18) is liable on conviction to a sentence of imprisonment for life.
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(5)
The report must also state that each of the persons making the report is
satisfied that the investigation in connection with which the detained person
or persons is or are detained is being conducted diligently and expeditiously.
(6)
Until the coming into force of section 61 of the Criminal Justice and Court
Services Act 2000 (c. 43) (abolition of sentences of custody for life etc),
10
subsection (4) has effect with the omission of the words “(in England and
Wales, 18)”.
25
Independent legal advice
(1)
Before making an order under section 23 the Secretary of State must obtain for
the purposes of sections 26 and 27 independent legal advice as to whether the
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Secretary of State can properly be satisfied of the matters mentioned in section
27(2).
(2)
“Independent legal advice” means advice from a lawyer other than a
government lawyer.
(3)
A “lawyer” means—
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(a)
as respects England and Wales, a person who, for the purposes of the
Legal Services Act 2007, is an authorised person in relation to an
activity which constitutes the exercise of a right of audience or the
conduct of litigation (within the meaning of that Act);
(b)
as respects Scotland, an advocate (whether in practice as such or
25
employed to give legal advice), or a solicitor who holds a practising
certificate;
(c)
as respects Northern Ireland—
(i)
a barrister (whether in practice as such or employed to give
legal advice); or
30
(ii)
a solicitor who holds a practising certificate.
(4)
Until the commencement of the relevant provisions of the Legal Services Act
2007, the following is substituted for subsection (3)(a)—
“(a)
as respects England and Wales—
(i)
a barrister (whether in practice as such or employed to
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give legal advice);
(ii)
a solicitor who holds a practising certificate; or
(iii)
a person other than a barrister or solicitor who is an
authorised advocate or authorised litigator (within the
meaning of the Courts and Legal Services Act 1990);”.
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(5)
A “government lawyer” means a lawyer who holds, or has held, an office
(other than judicial office) or employment under the Crown.
(6)
If an order under section 23 is made the Secretary of State must lay before
Parliament at the same time as the statement required by section 27 a copy of
the advice obtained under this section.
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Counter-Terrorism Bill
Part 2 — Detention and questioning of terrorist suspects
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(7)
If it appears to the Secretary of State that the advice contains material whose
disclosure—
(a)
would be damaging to the public interest, or
(b)
might prejudice the prosecution of any person,

the duty of Secretary of State under subsection (6) is to lay before Parliament a
5
copy of a version of the advice, provided by or agreed with the independent
legal adviser, that does not contain such material.
26
Notification of chairmen of certain committees
(1)
The Secretary of State must on making an order under section 23 forthwith
notify—
10
(a)
the chairman of the Home Affairs Committee of the House of
Commons,
(b)
the chairman of the Joint Committee on Human Rights, and
(c)
the chairman of the Intelligence and Security Committee.
(2)
The Secretary of State must also, as soon as reasonably practicable, provide
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each of those persons with a copy of—
(a)
the report received under section 24 (report on operational need for
further extension of maximum period of detention), and
(b)
the legal advice obtained under section 25 (independent legal advice).
(3)
The information received under subsection (1) and the documents received
20
under subsection (2) are to be held by the recipients subject to the terms of their
oath as a privy counsellor (or if any recipient is not a privy counsellor, on
corresponding terms).
(4)
The references in subsection (1) to the Home Affairs Committee of the House
of Commons and the Joint Committee on Human Rights shall—
25
(a)
if the name of the Committee is changed, be taken (subject to paragraph
(b)) to be references to the Committee by its new name;
(b)
if the functions of the Committee at the passing of this Act (or functions
substantially corresponding to those functions) become functions of a
different committee, be taken to be references to the committee by
30
whom the functions are for the time being exercisable.
27
Statement to be laid before Parliament
(1)
After making an order under section 23 the Secretary of State must lay before
Parliament a statement to the following effect.
(2)
The statement must state that the Secretary of State is satisfied—
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(a)
that a grave exceptional terrorist threat has occurred or is occurring,
(b)
that the reserve power is needed for the purpose of investigating the
threat and bringing to justice those responsible,
(c)
that the need for that power is urgent, and
(d)
that the provision in the order is compatible with Convention rights
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(within the meaning of section 1 of the Human Rights Act 1998 (c. 42)).
(3)
The statement may include such other information as to the reasons for the
decision to make the order as appears to the Secretary of State to be
appropriate.

Counter-Terrorism Bill
Part 2 — Detention and questioning of terrorist suspects
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(4)
The statement must not include—
(a)
the name of any person then detained under section 41 of the Terrorism
Act 2000 (c. 11), or
(b)
any material that might prejudice the prosecution of any person.
(5)
The statement must be laid before Parliament within two days after the day on
5
which the order was made or, if that is not practicable, as soon as is practicable.
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Parliamentary scrutiny
(1)
Where an order under section 23 is made—
(a)
the Secretary of State must as soon as is reasonably practicable lay the
order before Parliament, and
10
(b)
the order shall lapse at the end of the period of seven days beginning
with the date of laying unless during that period each House of
Parliament passes a resolution approving it.
(2)
If the order lapses under this section, the officer having custody of a person
whose detention—
15
(a)
was authorised by virtue of the reserve power, and
(b)
is not otherwise authorised by law,

must release that person immediately.
(3)
Nothing in this section—
(a)
prevents the making of a new order, or
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(b)
affects anything done by virtue of the order before it lapsed.
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Parliamentary scrutiny: prorogation and adjournment
(1)
If when an order is made under section 23 Parliament stands prorogued to a
day after the end of the period of five days beginning with the date on which
the order is made, Her Majesty shall by proclamation under the Meeting of
25
Parliament Act 1797 (c. 127) require Parliament to meet on a specified day
within that period.
(2)
If when an order is made under that section the House of Commons stands
adjourned to a day after the end of the period of five days beginning with the
date on which the order is are made, the Speaker of the House of Commons
30
shall arrange for the House to meet on a day during that period.
(3)
If when an order is made under that section the House of Lords stands
adjourned to a day after the end of the period of five days beginning with the
date on which the order is made, the Speaker of the House of Lords shall
arrange for the House to meet on a day during that period.
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(4)
In subsections (2) and (3) a reference to the Speaker of the House of Commons
or the Speaker of the House of Lords includes a reference to a person
authorised by Standing Orders of the House of Commons or of the House of
Lords to act in place of the Speaker of the House of Commons or the Speaker
of the House of Lords in respect of the recall of the House during adjournment.
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30
Duration
(1)
An order under section 23 lapses at the end of the period of 30 days beginning
with the day on which the order was made.