Counter-Terrorism and Border Security Bill

Explanatory Notes

Annex C - Territorial extent and application in the United Kingdom

Subject to certain exceptions, the provisions of the Bill extend and apply to England and Wales, Scotland and Northern Ireland. The exceptions are as follows:

The extension to Northern Ireland of the provisions, in section 30 of the 2008 Act, requiring a court to treat a terrorist connection to a specified non-terrorist offence as an aggravating factor when sentencing (clause 7(2) and (3)) – extends to the whole of the UK but applies to Northern Ireland only;

The addition of certain offences to the list of offences where a court is required to consider whether there is a terrorist connection (clause 7(5) and (6)) – extends to the whole of the UK but variously apply to England, Wales and Northern Ireland only, Scotland only or Northern Ireland only;

The amendments made to the provisions of the 2003 Act in respect of extended determinate sentences and sentences for offenders of particular concern (clause 8), together with certain consequential amendments in Part 1 of Schedule 4 – extend and apply to England and Wales only;

The amendments made to the provisions of the 1995 Act in respect of extended sentences (clause 9) – extend and apply to Scotland only;

The amendments made to the provisions of the 2008 Order in respect of extended custodial sentences (clause 10), together with the consequential amendments in Part 2 of Schedule 4 – extend and apply to Northern Ireland only;

The changes to the legislative framework governing the retention of fingerprints and DNA profiles - Schedule 2 amends seven enactments some of which extend and apply to England and Wales, Scotland or Northern Ireland only;

The amendments to the Road Traffic Regulation Act 1984 in respect of ATTROs (clause 14) – extend and apply to England and Wales and Scotland only;

Enabling local authorities to refer persons vulnerable to being drawn into terrorism to panels constituted under section 36 of the 2015 Act (clause 18) – extends and applies to England and Wales and Scotland only;

The amendments to the Reinsurance (Acts of Terrorism) Act 1993 (clause 19) – extend and apply to England and Wales and Scotland only.

In the view of the Government of the United Kingdom, none of the provisions of the Bill are within the legislative competence of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. 1

Provision

Extends to E & W and applies to England?

Extends to E & W and applies to Wales?

Extends and applies to Scotland?

Extends and applies to Northern Ireland?

Would corresponding provision be within the competence of the National Assembly for Wales?

Would corresponding provision be within the competence of the Scottish Parliament?

Would corresponding provision be within the competence of the Northern Ireland Assembly?

Legislative Consent Motion needed?

Clause 1

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 2

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 3

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 4

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 5

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 6

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 7

In part

In part

In part

In part

N/A

N/A

N/A

No

Clause 8

Yes

Yes

No

No

No

No

No

No

Clause 9

No

No

Yes

No

N/A

N/A

N/A

No

Clause 10

No

No

No

Yes

N/A

N/A

N/A

No

Clause 11

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 12

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 13

In part

In part

In part

In part

N/A

N/A

N/A

No

Clause 14

Yes

Yes

Yes

No

N/A

N/A

N/A

Yes (S)

Clause 15

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 16

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Clause 17

In part

In part

In part

In part

N/A

N/A

N/A

No

Clause 18

Yes

Yes

Yes

No

N/A

N/A

N/A

No

Clause 19

Yes

Yes

Yes

No

N/A

N/A

N/A

No

Clause 20

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Schedule 1

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Schedule 2

In part

In part

In part

In part

N/A

N/A

N/A

No

Schedule 3

Yes

Yes

Yes

Yes

N/A

N/A

N/A

No

Schedule 4

In part

In part

In part

In part

N/A

N/A

N/A

No

Minor and consequential effects

There are no minor or consequential effects which are relevant to this analysis.

Subject matter and legislative competence of devolved legislatures

The provisions in Part 1 of the Bill deal with counter-terrorism and, in the case of clause 19, financial services, while those in Part 2 relate to national security. In Scotland, "national security", "s pecial powers, and other special provisions, for dealing with terrorism" and "financial services" are reserved matters by virtue of sections A3 and B8 of Schedule 5 to the Scotland Act 1998. In Wales, "national security", "s pecial powers, and other special provisions, for dealing with terrorism" and "financial services" are reserved matters by virtue of paragraphs 17, 32 and 33 of Schedule 7A to the Government of Wales Act 2006. In Northern Ireland, "national security" and "s pecial powers and other provisions for dealing with terrorism" are excepted matters by virtue of paragraph 17 of Schedule 2 to the Northern Ireland Act 1998.

Clause 8 amends certain sentencing provisions in the 2003 Act insofar as they relate to terrorism offenders. Sentencing is not devolved to the National Assembly for Wales under the Government of Wales Act 2006 (paragraph 8(1)(c) of Schedule 7A). In relation to Scotland, sentencing is not generally reserved to the UK Government under the Scotland Act 1998, however, certain aspects of the criminal law and therefore sentencing in respect of relevant offences (including where they relate, as here, to special powers for dealing with terrorism (section B8 of Schedule 5 to the Scotland Act 1998)) are reserved. In relation to Northern Ireland, sentencing is not generally an excepted or a reserved matter under the Northern Ireland Act 1998, although certain aspects of the criminal law and therefore sentencing in respect of relevant offences (including where they relate, as here, to special powers for dealing with terrorism (paragraph 17 of Schedule 2 to the Northern Ireland Act 1998)) are excepted. As such, the Scottish Parliament and the Northern Ireland Assembly could not make corresponding provision to that contained in clause 8.

1 References in this Annex to a provision being within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly are to the provision being within the legislative competence of the relevant devolved legislature for the purposes of Standing Order No. 83J of the Standing Orders of the House of Commons relating to Public Business.

 

Prepared 5th June 2018