Counter-Terrorism and Border Security Bill

Explanatory Notes

Territorial extent and application

17 Clause 25 sets out the territorial extent of the Bill, that is, the jurisdictions in which the provisions of the Bill form part of the law of. The extent of the Bill can be different from its application. Application is about where a provision of a Bill produces a practical effect.

18 Subject to a number of exceptions, the provisions of the Bill extend and apply to England and Wales, Scotland and Northern Ireland. The provisions of the Bill with a more limited territorial extent and/or application 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 as an aggravating factor when sentencing for a specified non-terrorist offence (Clause 8(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 8(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 9 and 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 10) – extend and apply to Scotland only;

The amendments made to the provisions of the 2008 Order in respect of extended custodial sentences (Clause 11), together with certain 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 1984 Act in respect of ATTROs (Clause 15) – 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 19) – extends and applies to England and Wales and Scotland only;

The amendments to the 1993 Act (Clause 20) – extend and apply to England and Wales and Scotland only.

19 Clause 6 extends extra-territorial jurisdiction for the offences provided for by section 13 of the 2000 Act, section 2 of the 2006 Act and section 4 of the Explosive Substances Act 1883 such that if an individual were to commit one of these offences in a foreign country, they would be liable under UK law in the same way as if they had committed the offence in the UK.

20 Clause 25(7) to (9) confers powers to extend the application of amendments made by the Bill to the 2003 Act and 2006 Act to any of the Channel Islands or the Isle of Man, and those made to the 2011 Act to the Isle of Man, by Order in Council.

21 There is a convention that Westminster will not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without the consent of the legislature concerned. (In relation to Scotland and Wales this convention is enshrined in law: see section 28(8) of the Scotland Act 1998 and section 107(6) of the Government of Wales Act 2006.)

22 In the view of the UK Government, the matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament, National Assembly for Wales or the Northern Ireland Assembly, and consequently no legislative consent motion is being sought in relation to any provision of the Bill on the grounds that they relate to devolved purposes.

23 The provision in new section 22CA of the 1984 Act (inserted by Clause 15(2)) enabling traffic authorities (which include Scottish Ministers) to impose charges in respect of ATTROs alters the executive competence of Scottish Ministers and, accordingly, a legislative consent motion is being sought on such grounds in respect of this provision.

24 The amendment to section 8A of the Legal Aid (Scotland) Act 1986, made by paragraph 19 of Schedule 4, extends the power conferred on the Scottish Ministers to prescribe, by regulations, circumstances in which State funded legal advice and assistance may be made available. As such it alters the executive competence of Scottish Ministers and, accordingly, a legislative consent motion is being sought on such grounds in respect of this provision.

25 If there are amendments relating to matters within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly, the consent of the relevant devolved legislature(s) will be sought for the amendments.

26 See the table in Annex C for a summary of the position regarding territorial extent and application in the United Kingdom. The table also summarises the position regarding legislative consent motions and matters relevant to Standing Orders Nos. 83J to 83X of the Standing Orders of the House of Commons relating to Public Business.

 

Prepared 12th September 2018