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.
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)
- the Northern Ireland (Emergency Provisions) Act
- 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
- that consideration should be given to additional
safeguards alongside additional powers;
- that it should comply with the UK's international
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."
We warmly welcome this additional provision, and hope that the
annual report will have a separate section dealing with delegated
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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
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
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
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.
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.
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:-
||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.
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.
HL Deb. 6 April 2000, col. 1433. Back
The Committee discusses these below. Back