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|Terrorism (Northern Ireland) Bill|
These notes refer to the Terrorism (Northern Ireland) Bill as introduced in the House of Commons on 11th October 2005 [Bill 52]
TERRORISM (NORTHERN IRELAND) BILL
1. These explanatory notes relate to the Terrorism (Northern Ireland) Bill as introduced to the House of Commons on 11th October 2005. They have been prepared by the Northern Ireland Office in order to assist the reader of the Bill and to inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not appear to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. The main purpose of the Bill is to extend the life of Part 7 of the Terrorism Act 2000 (c.11) ("2000 Act"). The 2000 Act reformed and extended previous counter-terrorism legislation. It placed counter-terrorism laws on a permanent footing in the UK in line with the recommendations made by Lord Lloyd of Berwick's Inquiry into legislation against terrorism (Cmnd.3420,1996) and the proposals in the Home Office consultation document Legislation against Terrorism (Cmnd.4178,1998). It was intended to combat all forms of terrorism, not just terrorism connected with the affairs of Northern Ireland. It provides a range of measures designed to prevent terrorism and support the investigation of terrorist crime and extends UK wide.
4. Part 7 of the 2000 Act contains provisions which extend only to Northern Ireland. There has been provision of special counter terrorism powers in Northern Ireland for over thirty years. These provisions are a direct response to the security situation that exists in that part of the UK. Under the Belfast ('Good Friday') Agreement (Cmnd.3883,1998) the Government made a commitment to make a return to normal security arrangements in Northern Ireland as early as possible, consistent with the level of terrorist threat.
[Bill 52-EN] 54/1
Therefore, unlike the rest of the 2000 Act which is permanent, the Part 7 provisions are temporary in nature and have been subject to annual renewal by order subject to the affirmative resolution procedure.Part 7 is also time-limited and in the absence of further primary legislation will expire at the end of the 18th February 2006. The Part 7 provisions are summarised in paragraphs 9 to 15 below.
5. In the Joint Declaration by the British and Irish Governments in April 2003 the Government set out that in the context of the definitive transition to exclusively peaceful and democratic means, and recognising the changed environment brought about by the new policing arrangements and structures, security normalisation in Northern Ireland would be implemented over a defined timeframe. A copy of the Joint Declaration has been placed in the library of both Houses. In Annex 1 to the Joint Declaration the Government set out a two year programme of normalisation that would be implemented in the context of an enabling environment. This programme includes a phased reduction in troop levels based in Northern Ireland, the removal of army observation posts and bases and the de-fortification of police stations. The programme also envisaged that the counter terrorism legislation particular to Northern Ireland would be repealed by the end of the two year period.
6. The IRA statement of 28th July 2005 stated that its leadership had formally ordered an end to its armed campaign. A copy of this has been placed in the library of both Houses. The Government responded to this statement by updating and triggering Annex 1 to the Joint Declaration on 1st August 2005. Under the Annex the Government is committed to the repeal of the Part 7 provisions by 31st July 2007 provided the enabling environment is established and maintained. At the present time the Government has assessed the security situation and determined that the Part 7 provisions remain necessary until the end of the normalisation programme. This Bill therefore makes provision for those Part 7 provisions currently in force (excluding section 78) to remain in force until 31st July 2007.
7. The Government has taken the view that it would be prudent to make legislative provision in case the security situation does not improve sufficiently to allow for the Part 7 provisions to cease to have effect in July 2007. The Bill therefore makes provision to enable the Secretary of State to extend the provisions of Part 7 by order for a specified period ending before 1st August 2008.
8. The Bill additionally makes provision to:
SUMMARY OF THE MAIN PART 7 PROVISIONS PRESERVED BY THIS BILL
Sections 65-80 and Schedule 9: Diplock Provisions
9. These sections make special judicial arrangements for prosecutions relating to paramilitaries and the situation in Northern Ireland and evidential provision in relation to such prosecutions. The most significant provisions are set out below:
Sections 81-90, 95 and Schedule 10: Police and Army Powers
10. These provisions provide powers enabling the army to operate independently of the police in Northern Ireland. They also provide additional powers to the police for use in the prevention and investigation of terrorist crime. The provisions include powers to enter premises, to arrest, to stop and search, to search and seize, to examine documents and to stop and question.
Sections 91-4: Road Closures and Land Requisitions
11. These sections allow for the requisition of land (on the authorisation of the Secretary of State), the temporary closure of roads (by police and army) and the permanent closure of roads (by order of the Secretary of State). The powers are necessary in providing land for police and army bases and to provide protection for residents at sectarian interfaces where the fear of attack by the opposing community remains real.
Section 96: Regulation-Making Power for the Secretary of State
12. This section enables the Secretary of State to make regulations for the preservation of peace and the maintenance of order. The power is wide ranging. Regulations made under it are subject to the affirmative resolution procedure. The Northern Ireland (Emergency Provisions) Regulations 1991 (S.I.1991/1759) and the Northern Ireland (Emergency Provisions) Regulations 1975 (S.I. 1975/2213) were made under the predecessor of this power and remain in force.
Sections 98-101 and 104: Safeguards
13. These sections provide safeguards in the operation of Part 7 including the provision for the appointment of an Independent Assessor of Military Complaints Procedures and a power for the Secretary of State to make Codes of Practice in relation to the police and army powers under Part 7.
Section 106 and Schedule 13: Regulation of Private Security Industry
14. These provisions provide for the regulation of the private security industry in Northern Ireland.
Section 108: Opinion Evidence
15. Section 108 allows for the oral evidence of a police officer, of at least the rank of superintendent, to be admissible as evidence that the accused is or was a member of a specified organisation. The accused cannot be committed for trial, found to have a case to answer or convicted solely on the basis of this statement.
16. The Bill extends only to Northern Ireland.
COMMENTARY ON CLAUSES
Clause 1: Continuance in force of Part 7 of the Terrorism Act 2000
17. The majority of the Part 7 provisions came into force on 19th February 2001. Section 112(1) provides for Part 7 to cease to have effect at the end of a period of one year from that date. However, section 112(2) enables the Secretary of State to provide by order that any Part 7 provision currently in force is to continue in force for a further twelve months. Such an order is subject to either the affirmative resolution procedure (section 123(4)(f)) or the urgency procedure (section 123(5)). Section 112(4) provides that Part 7 shall cease to have effect at the end of a five year period from the date on which it came into force (i.e. at the end of 18th February 2006).
18. The majority of the provisions in Part 7 have been continued in force by the following annual orders:
19. Subsections (1) and (2) of clause 1 provide that those Part 7 provisions which are in force on 18th February 2006 (excluding section 78) (the "extended provisions") will continue in force after that date but will cease to have effect at the end of 31st July 2007. The Secretary of State may, before 31st July 2007, continue to bring the extended provisions in and out of force by order under section 112(2).
20. Subsection (3) enables the Secretary of State to provide by order for any of the extended provisions to continue in force for a specified period ending before 1st August 2008. Such an order is subject to the affirmative resolution procedure (subsection (8)). Without further primary legislation the extended provisions cannot be continued in force past that date.
21. Section 112(2)(c) of the 2000 Act enables the Secretary of State to provide by order for any provision of Part 7 which is not in force to come into force and remain in force for a period not exceeding twelve months. Subsection (4) amends section 112(2)(c) of the 2000 Act so that the life of an extended provision cannot be continued beyond 1st August 2007. Subsection (6)(a) makes specific provision to enable an order under subsection (3) to amend this date to 1st August 2008.
22. Section 11 of, and Schedule 2 to, the 2004 Act deal with the enforcement of bail granted under section 67 of the 2000 Act. These provisions ensure that those granted bail under section 67 are, as regards enforcement, in the same or a similar position to those who are granted bail for non-scheduled offences. Section 11 creates a duty to surrender to custody for those granted bail in scheduled cases under section 67 of the 2000 Act. The duty is either a duty to surrender to the custody of a court, or to surrender to the custody of the governor of a prison (the latter duty is to cover those released on compassionate bail).
23. Section 11(4) of the 2004 Act provides that Section 11 and Schedule 2 will cease to have effect on the same day as Part 7 of the 2000 Act or such earlier date as the Secretary of State may by order appoint.
24. Subsection (5) amends Section 11(4)(a) so that section 11 and Schedule 2 will cease to have effect as from the end of 31st July 2007 or by such earlier date as the Secretary of State may by order appoint. Subsection (6)(a) makes specific provision to enable an order under subsection (3) to amend the 2004 Act provision so that these 2004 Act provisions cease to have effect as from the end of 31st July 2008.
25. Paragraph 37 of Schedule 4 to the 2000 Act, which makes it an offence to contravene a restraint order, is treated as a Part 7 provision (section 112(5)(a)). Subsection (9) preserves this position with effect that, in common with the other extended provisions, if paragraph 37 continues in force it will cease to have effect on 31st July 2007 (subject to an order under subsection (3)).
Clause 2: Repeal of certain provisions
26. By virtue of clause 1 those provisions of Part 7 which are in force on 18th February 2006, other than section 78, are preserved by this Bill. Clause 2 makes provision to ensure that those provisions which are not in force on 18th February 2006, together with section 78, are repealed since the Government no longer considers them necessary.
27. Subsection (1) ensures that the provisions to be repealed cannot be brought back into force by an order under section 112(2)(c) of the 2000 Act or continued in force by an order under clause 1(3).
28. The provisions to be repealed are as follows:
29. Under Article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I.1998/1504 (N.I.9)) ("1998 Order") a child who is convicted can be detained by an order of the court if the maximum sentence which can be imposed on an adult for the offence is fourteen years. Section 78 of the 2000 Act modifies the application of Article 45 to provide that if a child is convicted of a scheduled offence on indictment where the maximum sentence which can be imposed in the case of an adult is not less than five years the court can authorise the detention of a young person convicted of such an offence.
30. The origin of this provision lies partly in the historical lack of secure accommodation for juveniles serving custodial sentences in Northern Ireland. The court was empowered to order the detention of the child in such place and under such conditions as the Secretary of State may direct. This was intended to address the concern that remand homes were not secure places of detention and that a young person held there may be an escape risk or may be targeted by paramilitary organisations. This concern has been addressed by the provision of better juvenile accommodation in Northern Ireland and thus the provision is considered no longer necessary. Subsection (2)(d) of clause 2 therefore makes provision for its repeal.
Clause 3: Scheduled offences
31. Section 65 of, and Schedule 9 to, the 2000 Act define the "scheduled offences" which qualify for the special procedures and provisions set out in section 66 to 80 because such offences are commonly committed by paramilitaries and terrorist organisations or are related to the situation in Northern Ireland.
32. Note 1 to Part 1 of the Schedule gives the Attorney General the power to certify that in particular cases certain offences listed in that Part are not to be treated as scheduled offences. This enables the Attorney General to ensure that an offence will not be subject to the special provisions if it is not related to the situation in Northern Ireland.
33. Currently the Attorney General only has a discretion to de-schedule an offence if it is listed in the Schedule as being subject to Note 1. A concern has arisen that certain offences, such as those in paragraph 22 of Schedule 9, that may be committed in circumstances not connected with the emergency in Northern Ireland would nevertheless have to be tried through the Diplock court system because they are not subject to Note 1. Thus cases related to international terrorism but unconnected with the situation in Northern Ireland would be tried without a jury in Northern Ireland but with a jury in Great Britain. The effect of subsections (1) and (2) is that all scheduled offences will now be subject to Note 1 and the Attorney General will have the power deschedule all the offences listed in the Schedule.
34. The purpose of subsections (3) to (5) is to add certain offences set out in the section 9 of the 2005 Act to the list of offences in Schedule 9 to the 2000 Act. The 2005 Act provides for the making of control orders which impose obligations considered necessary for purposes connected with preventing or restricting an individual's involvement with terrorism-related activity.
35. Section 9 of the 2005 Act creates three criminal offences in relation to control orders:
36. The effect of subsections (4) and (5) is that an offence under the 2005 Act will only be treated as a scheduled offence if it is alleged to have been committed after the coming into force of the Bill.
Clause 4: Transitional provision in connection with the expiry of Part 7
37. Subsection (1) enables the Secretary of State by order to make transitional, saving and consequential provision as he considers appropriate in connection with the expiry of Part 7 provisions whether by virtue of section 112 of the 2000 Act or clause 1 of this Bill. Such an order would be subject to the affirmative resolution procedure (subsection (5)).
38. Subsection (2) sets out a number of provisions which may be included in such an order:
FINANCIAL EFFECTS OF THE BILL
39. The Bill will entail no significant additional public expenditure.
PUBLIC SECTOR MANPOWER
40. The Bill will entail no changes to public service manpower.
REGULATORY IMPACT ASSESSMENT
41. The Bill has no regulatory impact.
EUROPEAN CONVENTION ON HUMAN RIGHTS
42. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Peter Hain, the Secretary of State for Northern Ireland, has made the following statement under section 19(1)(a) of that Act:
"In my view, the provisions of the Terrorism (Northern Ireland) Bill are compatible with the Convention rights".
In doing so the Minister has considered the compatibility of the statutory provisions preserved by this Bill, which were also subject to consideration under section 19 of the Human Rights Act 1998 during the passage of the 2000 Act.
43. The commencement date for the Bill is the end of 18th February 2006. This is the date on which Part 7 would otherwise expire.
|© Parliamentary copyright 2005||Prepared: 12 October 2005|