House of Commons - Explanatory Note
Justice And Security (Northern Ireland) Bill - continued          House of Commons

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Clause 16: Investigations: terms of reference

53.     This clause inserts new section 69D into the Northern Ireland Act 1998 that requires the Commission to write and distribute terms of reference for any investigation during which it wishes to exercise a power conferred on it by new sections 69A(1) or 69C(1).

Clause 17: Investigations: duty to report

54.     This clause requires the Commission to publish a report which indicates the finding of any investigations conducted under 69(8) of the Northern Ireland Act 1998 (regardless of whether it is exercising the new powers to require the provision of information or evidence or to access places of detention).

Clause 18: Recommendations

55.     This clause requires the Commission, before the end of a period of two years following commencement of the new powers conferred by this Bill, to make recommendations regarding the effectiveness of these powers.

Clause 19: Timing

56.     Subsection (1) provides that the Commission may only use the new statutory power to require the provision of information or evidence, or to access places of detention, from 1 January 2008, and as part of investigations into matters arising or situations that exist on or after this date. Subsection (2) provides that the Commission may not require the provision of information recorded before, a document created before, or evidence relating to a time before 1 January 2008. Subsection (4) allows a county court to make an order preventing the Commission from using these new powers to compel evidence, or access places of detention, in contravention of subsection (1) or (2).

Clause 20: Stop and Question

57.     This clause provides a member of the armed forces on duty or a constable with the power to stop and question a person for so long as is necessary to establish their identity and movements.

58.     Additionally, members of the armed forces may stop a person to question him or her about a recent explosion or incident endangering life, or about their knowledge of a person killed or injured in a recent explosion or incident. These additional grounds are intended to assist the military to undertake explosive ordnance disposal work, where they may wish to question people about explosions to gain knowledge which will help them ensure the safety of an area. Anyone who fails to stop or answer to the best of their knowledge and ability commits an offence.

Clause 21: Arrest

59.     This clause allows a member of the armed forces to arrest and detain a person for up to four hours if he or she reasonably suspects they are committing, about to commit or have committed an offence. Premises where that person is or is reasonably suspected to be may be entered and searched for the purposes of an arrest.

60.     The power to detain a person for up to four hours is intended to allow sufficient time for a PSNI officer to attend in order to re-arrest the person and charge them with an offence, if appropriate.

61.     It is envisaged that members of the armed forces will be deployed increasingly rarely, so will not have recourse to these powers on a regular basis. They are not expected to know the law as intimately as a police constable, hence in exercising their powers of arrest they will not be required to provide detailed legal grounds for arrest. Subsection (2) provides that members of the armed forces comply with any laws requiring them to state grounds for arrest by saying that they are making the arrest as a member of Her Majesty's Forces. There is an exception in subsection (5) for laws that only have effect by virtue of the Human Rights Act 1998. The effect of this is that the armed forces satisfy their legal obligations if they comply with subsection (2), except any overarching requirement under the Human Rights Act 1998.

62.     A member of the armed forces can seize and detain for up to four hours anything he or she reasonably suspects is being, has been or is intended to be used in the commission of an offence under clause 30 or 31 (offences related to powers of road closure and land seizure). This measure enables the retention of the articles to be used in the commission of those offences until a constable attends who will then decide whether to arrest and charge.

Clause 22: Entry

63.     This clause provides a power of entry to premises. Premises are defined at clause 41 to include vehicles.

64.     This clause allows a member of the armed forces or a constable to enter premises if he or she considers it necessary in the course of operations for the preservation of peace or the maintenance of order. Since no warrant is required, this clause enables officers on the ground to respond immediately to events as they arise.

65.     A constable may not enter a building unless the conditions in subsection (2) are satisfied. First, there must be written authorisation from an officer of the rank of superintendent or above. If no such authorisation is in place and it is not reasonably practicable to obtain written authorisation, then oral authorisation may be provided by an officer of the rank of Inspector or above. If it is not reasonably practicable to obtain either written or oral authorisation then a constable may enter a building without it.

66.     An authorisation must relate to a specified area within Northern Ireland. All authorisations must be retained in written form and constables who enter premises must make a record of each entry as soon as reasonably practicable. Subsection (6) sets out the information that should be included in such records. Copies of records or authorisations must be given to the owners or occupiers of buildings which have been entered as soon as is reasonably practicable.

Clause 23: Search for munitions and transmitters

67.     This gives effect to Schedule 3, detail of which is provided below.

Clause 24: Search for unlawfully detained persons

68.     This clause allows members of the armed forces to enter and search any premises in order to search for any person whom they reasonably believe has been unlawfully detained and whose life is endangered. No warrant is to be required because time will be critical in these situations.

69.     The clause requires the power to search a dwelling to be exercised only if authorised by a commissioned officer. This recognises the special status of people's homes: 'dwelling' is defined at clause 41 of the Bill.

Clause 25: Premises: vehicles, & c.

70.     This clause provides that references to premises (found in clauses 21(3), 22, 24, 27 and 32 and Schedule 3) include vehicles. Where records must be made of a search, and that search is of a vehicle, references to the need to record an address will be taken as a reference to the location of the vehicle and its registration number. References to the occupier will be taken to refer to the owner or driver of the vehicle.

A power to search premises includes a power to stop a vehicle, and where necessary or expedient, cause it to be taken away for searching. An offence of failing to stop a vehicle is created.

71.     Subsection (5) enables, when searching a vehicle for munitions and transmitters, the searcher to require a person to remain with the vehicle or to go to any place the vehicle is taken where the searcher reasonably believes it necessary for carrying out the search. Reasonable force may be used to secure compliance with these requirements.

72.     Subsection (6) provides that a requirement to stay with the vehicle, or go to where it is taken, may only last as long as the search, or for four hours (extendable to eight hours in certain circumstances), whichever is shorter. A record must be made and a copy given to the owner or driver of the vehicle.

Clause 26: Examination of documents

73.     This clause provides that a member of the armed forces may examine documents found in a search under clauses 23 to 25 in order to ascertain whether the information contained in them is likely to be useful for terrorism, and if necessary or expedient remove them to another place, for up to 48 hours. A person may not examine a document which he or she has reasonable cause to believe is subject to legal privilege.

74.     It is an offence to obstruct a member of the armed forces in exercising this power.

Clause 27: Examination of documents: procedure

75.     This clause provides that documents examined using the power at clause 26 of the Bill may not be photographed or copied. Written records of examinations must be made as soon as reasonably practicable and must include the information listed at subsections (2) and (3). A copy of the records should be supplied to the person who had custody of the document or to the occupier of the building where the document was found.

Clause 28: Taking possession of land, & c.

76.     This clause provides that the Secretary of State may authorise someone to take possession of land or property and carry out work on it. He may also authorise a person to place buildings and other structures in a state of defence, for instance through fortification. Property may be detained, destroyed or moved by authorised persons, and the Secretary of State may also authorise persons to take actions which interfere with public rights or private rights of property. These powers may only be exercised where it is necessary for the preservation of peace or the maintenance of order. It is intended that such powers will be used during the marching season in Northern Ireland and to allow the rapid creation of 'peace walls' at interfaces where

there is community tension. These powers may be exercised at very short notice, hence they are exempt from normal planning processes.

Clause 29: Road closure: immediate

77.     A member of the armed forces, or someone authorised by the Secretary of State, may close roads, divert them and restrict and prohibit the use of rights of way or waterways where it is immediately necessary for the preservation of peace or the maintenance of order. These powers are also intended for the management of the marching season in Northern Ireland. For example, roads and public rights of way may be closed at short notice in reaction to events on the ground.

Clause 30: Sections 28 and 29: supplementary

78.     This clause creates an offence of interfering with works and equipment used to take possession of land or close or divert roads, rights of way, etc, unless there is a reasonable excuse for doing so.

79.     This clause also provides that authorisations under clauses 28 and 29 may authorise the exercise of all the powers, or only some of them, and that authorisations may relate to a person or to a group of people.

Clause 31: Road closure: by order

80.     This clause provides the Secretary of State with a power to close, partially close, or divert roads if necessary for the preservation of the peace or the maintenance of order. An offence of interfering with road closure works or equipment is created. Offences of executing bypass works within 200 metres of road closure works, having materials and tools for executing such works within 200 metres and knowingly permitting either of these to take place on land are created. There is a defence of reasonable excuse.

Clause 32: Exercise of powers

81.     This clause provides that powers under clauses 20 to 29 are additional to those already in common law, and should not be taken to affect the Royal prerogative. It also provides for the use of reasonable force by a constable or member of the armed forces in relation to those clauses.

82.     Anything seized may be retained for as long as is necessary and a power to search premises conferred by this Bill includes the power to search a container. A member of HM Forces not in uniform must produce evidence that he is a member of HM Forces, if he is requested to do so when exercising the powers in clauses 20 to 29.

Clauses 33: Code of practice

83.     This clause allows the Secretary of State to make codes of practice in relation to the seizure and retention of property by the police and in relation to the exercise of the powers conferred by the Bill. The Secretary of State must publish a draft code of practice, consider any representations about the draft, and if he thinks is appropriate, modify the draft. The draft code must be laid before Parliament and may be brought into force by order. These procedures apply again where the whole or a part of the code is revised and it is re-issued.

Clause 34: Code: effect

84.     Failure by a police officer or a member of the armed forces to comply with any part of a code of practice does not make them liable to civil or criminal proceedings, with the exception for armed forces personnel of proceedings under the Army Act 1955, Air Forces Act 1955 and Naval Discipline Act 1957 (but not civil offences under those Acts). A code is admissible as evidence in criminal and civil proceedings, and must be taken into account by a court or tribunal where the code appears relevant.

Clause 35: Code: procedure for order

85.     This clause sets out the procedure for bringing the code under clause 33 into force. The order giving effect to the code must be laid in draft in Parliament and is subject to the affirmative resolution procedure before being made.

86.     An order may be made without a draft having been approved if the Secretary of State believes there is an urgent reason for the code to be brought into force. Any order doing so must contain a declaration to that effect from the Secretary of State and will only last 40 days unless a resolution approving the order is passed by both Houses of Parliament within that time. The end of an order (and the code brought into force by it) will not prejudice any actions previously taken or the making of a new order.

Clause 36: Records

87.     This clause places a duty on the Chief Constable of the Police Service of Northern Ireland to make arrangements for constables to make records of the exercise of the powers in clauses 20 to 25. This is only necessary where it is reasonably practicable for a record to be made, and a record is not already required by legislation.

88.     These records will be used to produce statistics which will inform the independent reviews of this legislation provided for at clause 38 below.

Clause 37: Compensation

89.     This clause gives effect to Schedule 4, which is described below.

Clause 38: Prosecution

90.     With the exclusion of Schedule 4 (which has an offence of obtaining compensation by deception at paragraph 12), the prosecution of any offence created in clauses 20 to 31 requires the consent of the DPP(NI). If it appears to the DPP(NI) that the offence is connected with the affairs of another country then the permission of the Attorney General for Northern Ireland is required. This is intended to provide a safeguard against malicious prosecution.

91.     The clause provides for the Advocate General for Northern Ireland to take over the role of the Attorney General on the devolution of policing and justice functions to the Northern Ireland Assembly. The Advocate General will be responsible for various excepted and reserved matters in Northern Ireland.

Clause 39: Review

92.     This clause provides for the Secretary of State to appoint a reviewer to consider the operation of clauses 20 to 31 in this Bill and the procedures adopted by the head of the armed forces in Northern Ireland for receiving, investigating and responding to complaints. The Secretary of State may also direct the reviewer to conduct a review into other specified matters, not necessarily related to powers in the Bill or military complaints procedures.

93.     Reviews will cover the period of a year, with the first report to be published as soon as is practical after 31st July 2008. The report of each review shall be laid before Parliament by the Secretary of State once he has received it from the reviewer. Provision is made for paying expenses and allowances to the reviewer.

Clause 40: Duration

94.     This clause allows the Secretary of State to repeal clauses 20 to 39 of the Bill so that powers may be taken out of force as they become unnecessary. It is envisaged that this would be due to alternative powers becoming available or changes in operational need. Such orders would be subject to the affirmative resolution procedure.

Clause 41: Interpretation

95.     The clause defines some of the terms used in the Bill.

Clause 42: Chief Inspector of Criminal Justice

96.     This clause inserts the Northern Ireland Court Service, the Northern Ireland Legal Services Commission and the Life Sentence Review Commissioners into the list of organisations which the Chief Inspector of Criminal Justice in Northern Ireland shall inspect under his powers which are contained in Part 3 of the Justice (Northern Ireland) Act 2002. Subsection (6) inserts new subsection (6A) into section 47 of that Act and will exclude from inspection any judge or other person making judicial decisions or exercising judicial discretion, so that the Court Service is only subject to inspection in respect of court administration. The clause also provides that the Lord Chancellor is included in the process of consultation on the Chief Inspector's work programme (subsection (4)) and in receiving any completed reports in respect of the Court Service and the Legal Services Commission (subsection (7)).

Clause 43: Free legal aid in magistrates' courts

97.     This clause enables the magistrates' court to make a restricted certificate for legal aid that covers only specified proceedings or aspects of proceedings. At the

moment, the magistrates' court can only make a certificate that covers the whole of proceedings, even if legal aid is only required for one stage (eg a bail hearing).

Clause 44: Altering title of resident magistrate

98.     The Report of the Northern Ireland Criminal Justice Review recommended restyling Northern Ireland resident magistrates as district judges (magistrates' courts) in order to demonstrate publicly that the magistracy is an integral part of the judiciary.

99.     Section 102 of the Courts Act 2003 provides the Lord Chancellor with a general power to alter, by order, existing judicial titles in relation to the Supreme Court and the county courts in Northern Ireland following consultation with the Lord Chief Justice of Northern Ireland. Clause 44 amends section 102 of the 2003 Act so as to enable the Lord Chancellor to use this power to alter the titles of resident magistrate, presiding resident magistrate and deputy resident magistrate.

Clause 45: Private Security Industry

100.     This clause sets out the pattern of transitional arrangements between the repeal of Schedule 13 of the Terrorism Act 2000, the introduction of Schedule 5 (interim arrangements) and the eventual regulation by the SIA as established by the 2001 Act. This clause also modifies the 2001 Act and gives it UK-wide effect by making it extend to Northern Ireland as well as England, Wales and Scotland.

101.     Following the repeal of Schedule 13 on 31 July 2007, Schedule 5 of this Bill will have effect on 1 August 2007. Because the SIA cannot commence licensing in Northern Ireland immediately, Schedule 5 establishes a form of regulation for the transitional period. Once the SIA are ready to commence licensing in Northern Ireland, the relevant provisions of the 2001 Act will be brought into effect in Northern Ireland by statutory instrument in accordance with subsection (4). That order will repeal Schedule 5, thereby ending the interim scheme of regulation.

102.     The 2001 Act sets up a scheme of statutory regulation of the private security industry. It establishes the SIA and defines its functions. These are:

  • to licence individuals and to approve companies;

  • to keep under general review the private security industry and the operation of the legislative framework;

  • to monitor the activities and effectiveness of those working in the industry;

  • to conduct inspections;

  • to set and approve standards of conduct, training and supervision within the industry; and

  • to make recommendations to improve standards.

103.     The 2001 Act regime also specifies a range of activities which are licensable by the SIA, and details offences of providing unlicensed security services. It defines

the various licensing functions of the SIA such as licensing criteria, licence conditions and appeals in licensing matters.

104.     The current designated sectors or activities that must be covered by a licence are as follows:

  • Door supervisors - both in house and supplied under a contract for service;

  • Vehicle immobilisers on private land - both in house and supplied under a contract for service;

  • Security guards supplied under a contract for services;

  • Key holders supplied under a contract for services;

  • Close protection operatives supplied under a contract for services;

  • Cash and valuables in transit operatives supplied under a contract for services; and

  • Public space surveillance CCTV operatives supplied under a contract for services.

105.     This Bill enables all of these sectors and activities to be regulated in Northern Ireland by the SIA.

106.     The SIA take various criteria into account when deciding whether to grant a licence or not. They ensure that applicants are properly trained in relevant areas, as well as checking for criminal convictions. The suitability of the applicant to work in the private security industry is assessed and they are granted or refused a licence according to the defined criteria.

107.     A full explanation of the operation of the SIA and the 2001 Act is available in the Explanatory Notes prepared by the Home Office to be read in conjunction with the 2001 Act.

Clause 46: Amendments to the Private Security Industry Act 2001

108.     This clause makes technical changes to the 2001 Act to allow for differences between Great Britain and Northern Ireland, for example, subsection (2) amends section 11 of the 2001 Act (licensing appeals) so that in relation to Northern Ireland, a reference to the Crown Court means a reference to the county court.

109.     Subsection (6) amends section 25 of the 2001 Act (interpretation) by clarifying that any reference to an Act that does not extend to Northern Ireland shall be taken as a reference to the equivalent (or nearest equivalent) legislation that applies to Northern Ireland. For example, 'director' is defined by reference to the Companies Act 1985, which does not extend to Northern Ireland. The equivalent definition in Northern Ireland is found in the Company Directors Disqualification (Northern Ireland) Order 2002.

110.     Paragraph 4(1) of Schedule 2 to the 2001 Act defines the activities covered as surveillance, inquiries or investigations carried out for the purpose of obtaining information about a person or about a person's activities or whereabouts. Subsection (7) amends that Schedule by inserting new paragraph 4B which exempts the activities of a barrister-at-law or a solicitor in Northern Ireland which are carried out for the purposes of the provision of legal services. This is to ensure that the activities of solicitors and barristers in Northern Ireland are not caught as designated, licensable activities.

Clauses 47 to 51: Repeals and revocations, Financial provisions, Extent, Commencement, Short Title

111.     Clause 47 brings Schedule 6 (repeals and revocations) into effect.

112.     Clause 48 provides that expenditure in relation to this Bill will be paid out of money provided by Parliament.

113.     Clause 49 details the extent of the Bill. The Bill extends to Northern Ireland only, except for clauses 13 to 19, clauses 44 to 46 and Schedules 1 and 5. Of those exceptions, amendments made by Schedule 1 have the same extent as the provisions being amended, while the other provisions extend to England, Wales, Scotland and Northern Ireland.

114.     Clause 50 provides for clauses 20 to 39 to come into force on 1st August 2007. Clauses 48 to 51 will come into force on Royal Assent and other provisions of the Bill will come into force by statutory instrument on a day appointed by the Secretary of State by order. An order under the clause may make transitory or transitional provision or savings.

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Prepared: 27 November 2006