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Arrangement of Clauses (Contents)
These notes refer to the Terrorism Bill
1. These explanatory notes relate to the Terrorism Bill as brought from the House of Commons on 20th March 2000. They have been prepared by the Home Office and the Northern Ireland Office in order to assist the reader of the Bill and to help 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. Where a clause or part of a clause does not seem to require any explanation or comment none is given.
3. The Bill reforms and extends existing counter-terrorist legislation, and puts it largely on a permanent basis. The existing legislation concerned is:
4. The Bill builds on the proposals in the Government's consultation document Legislation against terrorism (Cm 4178), published in December 1998. The consultation document in turn responded to Lord Lloyd of Berwick's Inquiry into legislation against terrorism (Cm 3420), published in October 1996.
5. Existing counter-terrorist legislation provides a range of measures designed to prevent terrorism and support the investigation of terrorist crime. These fall into three broad categories: a power for the Secretary of State to proscribe terrorist organisations, backed up by a series of offences connected with such organisations (membership, fundraising etc); the creation of other specific offences connected with terrorism (such as fund-raising for terrorist purposes, training in the use of firearms for terrorist purposes, etc); and a range of police powers (powers of investigation, arrest, stop and search, detention, etc) for use in preventing and investigating terrorism.
6. The Bill repeals the PTA and re-enacts those of its provisions which remain necessary, with a number of modifications. 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.
7. The existing EPA would repeal itself on 24 August 2000. The consultation document expressed the Government's hope that the special provision it makes for Northern Ireland might not be needed after that date, an objective to be kept under review in the light of developments in the security situation. The Government takes the view that the time is not yet right to remove all of these provisions. Part VII therefore provides additional temporary measures for Northern Ireland only, time-limited to 5 years.
8. Existing counter-terrorist legislation was originally designed in response to terrorism connected with the affairs of Northern Ireland ("Irish terrorism"), and some of its provisions were subsequently extended to certain categories of international terrorism. It does not apply to any other terrorism connected with UK affairs ("domestic terrorism"). Under the Bill these restrictions will be lifted, so that counter-terrorist measures will be applicable to all forms of terrorism: Irish, international, and domestic.
9. The Parts and Schedules of the Bill are as follows.
PART I: INTRODUCTORY
Clause 1: Definition of terrorism
10. Under the PTA, terrorism "means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear" (section 20). The definition in the PTA is limited in that the powers and offences in that Act only apply to terrorism connected with the affairs of Northern Ireland ("Irish terrorism") or Irish and international terrorism. The Bill, as suggested in the consultation document, adopts a wider definition, recognising that terrorism may have religious or ideological as well as political motivation, and covering actions which might not be violent in themselves but which can, in a modern society, have a devastating impact. These could include disrupting key computer systems or interfering with the supply of water or power where life, health or safety may be put at risk.
11. Subsection (2) provides for the definition to cover terrorism not only within the United Kingdom but throughout the world. This is implicit in the PTA definition but the Bill makes it explicit.
Clause 2: Temporary legislation
12. Subsection (1) repeals the PTA and EPA. Subsection (2), together with Schedule 1, preserves certain provisions of the EPA, in some cases with amendment, until the date on which Part VII (Northern Ireland) of the Bill is brought into force.
PART II: PROSCRIBED ORGANISATIONS
13. Part II is based on Part I of the PTA (which has effect in Great Britain only) and on sections 30-31 of the EPA (which have effect in Northern Ireland only). The proscription regime under the Bill differs from those it replaces as follows:
Clause 3: Proscription
14. Schedule 2 lists all organisations currently proscribed under the PTA and the EPA. Some organisations are currently proscribed in Northern Ireland under the EPA but not in Great Britain under the PTA. Under the Bill, any organisation deemed to merit proscription will be proscribed throughout the whole of the UK. The Government is considering which organisations involved in international terrorism might be added to the Schedule.
15. The power to proscribe and deproscribe in subsection (3), including deproscription following a successful appeal, will be subject to the affirmative resolution procedure.
Clauses 4-6: Deproscription: application and appeals
16. These clauses set out the route by which an organisation which thinks it should not be proscribed, or an affected individual, may seek a remedy. The first step is to ask the Secretary of State to deproscribe; the Secretary of State will be obliged to consider such applications within a period of time specified in regulations to be made under subsection (3) of Clause 4. If the Secretary of State refuses to deproscribe, then the organisation or individual may appeal to POAC as set out in Clause 5 and Schedule 3.
17. The grounds on which POAC will allow an appeal are set out in subsection (3) of Clause 5. The reference to "the principles applicable on an application for judicial review" allows that once the Human Rights Act 1998 is fully in force, it will be possible for an appellant to raise points concerning those rights under the European Convention on Human Rights which are "Convention rights" under the 1998 Act.
18. Subsections (4)-(5) of Clause 5 deal with the consequences of an appeal to POAC being successful. Where POAC makes an order, this has the effect of requiring the Secretary of State either to lay a draft deproscription order before Parliament or to make a deproscription order on the basis of the urgency procedure (see below).
19. Clause 6 allows a further appeal from a decision of POAC on a question of law.
Clause 7-8: Appeal: effect on conviction
20. If an appeal to POAC is successful, and an order has been made deproscribing the organisation, anyone convicted of one of the offences listed in subsection (1)(c) in respect of the organisation, so long as the offence was committed after the date of the refusal to deproscribe, may, in England and Wales, appeal against his conviction to the Court of Appeal or Crown Court, and the Court will allow the appeal. Subsection (8) ensures that he can seek compensation for the conviction. Corresponding provision is made for Scotland and Northern Ireland.
Clause 9: Human Rights Act 1998
21. Since it is intended that the Lord Chancellor will make rules under section 7(2) of the Human Rights Act so that proceedings under section 7(1)(a) of that Act are brought before POAC, this clause of the Bill applies provisions in the Bill relating to appeals to POAC to such proceedings under the Human Rights Act.
Clause 10: Immunity
22. An individual who seeks deproscription by way of application or appeal, either on behalf of the proscribed organisation or as a person affected, might be discouraged from pursuing either course, or from instituting proceedings under section 7 of the Human Rights Act, by the risk of prosecution for certain offences, for example the offence of membership of a proscribed organisation. This clause therefore ensures that evidence of anything done, and any document submitted for these proceedings, cannot be relied on in criminal proceedings for such an offence except as part of the defence case.
Clauses 11-12: Membership and support
23. These offences are based on those in sections 2 and 3 of the PTA and sections 30 and 31 of the EPA, and have the same effect. The offence in Clause 12(1) is concerned with support other than "money or other property", because that kind of support is dealt with in Part III of the Bill.
Clause 13: Uniform
24. This clause replicates an offence which at section 3 of the PTA and section 31 of the EPA. The PTA version, which has effect in England and Wales and in Scotland, is summary only with a maximum custodial penalty of 6 months. The EPA version, which has effect in Northern Ireland is an either way offence with a maximum custodial penalty on indictment of 1 year. In the Bill, the offence is summary only, as in the PTA. Thus in consolidating the legislation the Bill aligns the situation in Northern Ireland with that in Great Britain.
PART III: TERRORIST PROPERTY
25. This Part corresponds to Part III of the PTA ("Financial assistance for terrorism") and was discussed in Chapter 6 of the Government's consultation document under the heading "Terrorist finance". The name has been changed to "Terrorist property" to make it clear that in the Bill - just as in the PTA - the Part III offences apply not only to money but also to other property. While Part III of the PTA applies only to Irish and certain kinds of international terrorism, Part III of the Bill applies to all forms of terrorism.
26. In addition to replicating Part III of the PTA, Part III of the Bill also introduces a new power for the police, customs officers and immigration officers to seize cash at borders and to seek forfeiture of the cash in civil proceedings. This is modelled on a power which already exists in Part III of the Drug Trafficking Act 1994 (c. 37).
Clause 14: Terrorist property
27. This definition comes into play in the "money laundering" offence (Clause 18) and the power to seize and forfeit cash at borders (Clauses 25 and 28). Subsection (1) makes it clear that terrorist property can include both property to be used for terrorism and proceeds of acts of terrorism. Subsection (2)(a) makes explicit that the proceeds of an act of terrorism covers not only the money stolen in, say, a terrorist robbery, but also any money paid in connection with the commission of terrorist acts. Subsection (2)(b) makes explicit that any resources of a proscribed organisation are covered: not only the resources they use for bomb-making, arms purchase etc but also money they have set aside for non-violent purposes such as paying rent.
Clauses 15-17: Fundraising, use, possession and funding arrangements
28. These clauses correspond to sections 9 and 10 of the PTA. They are based on section 9, but under Clause 1(3) of the Bill the words "for the purposes of terrorism" can be taken to include "for the benefit of a proscribed organisation". As a result, the offences of fund-raising, and using and possessing money, and entering into funding arrangements for a proscribed organisation (section 10 of the PTA) are subsumed into these clauses.
Clause 18: Money laundering
29. This clause corresponds to section 11 of the PTA and has the same effect. Although it is entitled "money laundering" and is most likely to be used for money, it also applies to "laundering" type arrangements in respect of other property.
Clause 19: Disclosure of information: duty
30. This clause is based on section 18A of the PTA and has the same effect. It requires banks and other businesses to report any suspicion they may have that someone is laundering terrorist money or committing any of the other terrorist property offences in Clauses 15-18. Subsection (1)(b) ensures the offence is focused on suspicions which arise at work. Subsection (5) preserves the exemption in respect of legal advisers' privileged material.
31. Suspicions arising in home life were covered by section 18 of the PTA which the Government has decided, following Lord Lloyd, not to replicate.
Clauses 20-21: Disclosure of information: permission; co-operation with the police
32. These clauses correspond to section 12 of the PTA and have the same effect. Clause 20 ensures that businesses can disclose information to the police without fear of breaching legal restrictions. Subsection (1) of Clause 21 allows for the activities of informants who may have to be involved with terrorist property if they are not to be found out and protects others who may innocently become involved. Subsection (2) makes it possible for someone involved with such property to avoid prosecution by telling the police as soon as is reasonably practical (subsection (3)) and discontinuing his involvement if asked to do so by the police (subsection (4)).
Clauses 22-23: Penalties and forfeiture
33. Clause 22 corresponds to section 13(1) of the PTA and has the same effect. Clause 23 is based on section 13(2) of the PTA and has similar effect subject to one substantive modification. Subsection (6) allows for forfeiture of the proceeds of a terrorist property offence. This could arise in a case where an accountant prepared accounts on behalf of a proscribed organisation - thus facilitating the retention or control of the organisation's money - and was paid for doing so. The money he received in payment could not be forfeited under section 13(2) of the PTA because it was not intended or suspected for use in terrorism. It could not be confiscated under the Criminal Justice Act 1988 because that confiscation regime excludes terrorist property offences. Subsection (6) closes this loophole between the confiscation scheme in the 1988 Act and the counter-terrorist forfeiture scheme.
Clauses 24-31: Seizure, detention and forfeiture of terrorist cash at borders
34. These clauses are based on sections 42-48 of the Drug Trafficking Act 1994 (c. 37) which relate to drug trafficking money imported or exported in cash. The main difference (apart from applying the powers to terrorist rather than drug trafficking cash) is that the powers in the Drug Trafficking Act only apply to cash being taken across the UK's external borders, while those in the Bill apply to cash being taken from Northern Ireland to Great Britain and vice versa. As with drug trafficking, no criminal conviction is required.
Clause 24: Interpretation
35. Subsection (1) allows the power to seize cash to be exercised by any of the agencies operating at borders: police, customs and immigration. This is to allow for the event that a customs or immigration officer is the first to find the cash. However, it is expected that for the most part the power will be exercised by the police. The definition of cash in subsection (2) is intended to cover the most readily realisable monetary instruments used by terrorists; the order-making power in subsection (2)(e) will enable the Secretary of State to add further monetary instruments as the need arises.
Clause 25: Seizure and detention
36. Once cash has been seized, then under this clause it can be detained for up to 48 hours. During that time the authorities must either seek continued detention or forfeiture. If neither of these occurs during the first 48 hours, the cash will be returned.
Clauses 26-27: Continued detention of cash
37. A magistrate can allow continued detention for up to 3 months under subsection (2)(b) of Clause 26. A further application can be granted after the 3 months has expired, and so on, up to a maximum of two years (subsection (4)). In Clause 27, subsection (1) provides for any interest accruing on the cash, and subsections (2)-(5) for application to the court for a direction that the cash be released.
Clauses 28-29: Forfeiture and appeal
38. This Clause provides for civil forfeiture proceedings in relation to the seized cash. Evidence that the cash is terrorist property is required to the civil standard (subsection (2) of Clause 28); proceedings for a criminal offence are not needed (subsection (3)) and the proceedings themselves are civil as opposed to criminal (subsection (4)). Appeals must be lodged within 30 days, and the route of appeal is in England and Wales to the Crown Court; in Northern Ireland to the county court; and in Scotland to the Court of Session. A successful appeal will result in the cash being paid back, together with any accrued interest.
39. Subsections (6)-(7) provide for the situation where an organisation is deproscribed following a successful appeal to POAC, and a forfeiture order has been made in reliance (in whole or in part) on the fact that the organisation was proscribed. In such cases, the person whose cash has been forfeited may appeal at any time before the end of the period of 30 days beginning with the date on which the deproscription order comes into force.
PART IV: TERRORIST INVESTIGATIONS
Clause 32: Terrorist investigation
40. This definition applies to the power in Clauses 33-36 to use cordons, to the powers in Schedule 5 to obtain search warrants, production orders and explanation orders; and to the power in Schedule 6 to make financial information orders. There is also an offence in Clause 39 of "tipping off" in relation to a terrorist investigation.
Clauses 33-36: Cordons
41. These clauses make similar provision to that inserted into the PTA, at section 16C and Schedule 6A, by the Prevention of Terrorism (Additional Powers) Act 1996 (c. 7). They give the police the power for a limited period to designate and demarcate a specified area as a cordoned area for the purposes of a terrorist investigation - for instance in the wake of a bomb. They also make it an offence to breach a cordon.
Clause 37: Powers
42. See notes on Schedule 5 below.
Clause 38: Financial information
43. See notes on Schedule 6 below.
Clause 39: Disclosure of information, &c.
44. This clause corresponds to section 17(2)-(6) of the PTA and has similar effect. The offences it sets out, including that at subsection (2)(a) which is sometimes called "tipping off", are essential to the disclosure regime and have a powerful deterrent effect.
PART V: COUNTER-TERRORIST POWERS
Clauses 41-43: Arrest power and related search powers
45. These clauses make similar provision to the arrest provisions at sections 14 and 15 of the PTA. There is a special arrest power for use in terrorist cases to make provision for circumstances where, at the point when the police believe an arrest should take place, there is not enough to charge an individual with a particular offence even though there is reasonable suspicion of involvement with terrorism. Clauses 42 and 43 give the police powers to search people liable to arrest under Clause 41. Subsection (9) of Clause 41 and subsection (5) of Clause 43, respectively, give constables the power to make an arrest under section 41(1) of the Bill in any Part of the United Kingdom, and to search people under clause 43 (these subsections in other words confer "cross border" powers of arrest and search).
Clauses 44-47: General powers to stop and search
46. These clauses make similar provision to the following sections of the PTA: section 13A (inserted by the Criminal Justice and Public Order Act 1994 (c. 33)) and section 13B (inserted by the Prevention of Terrorism (Additional Powers) Act 1996 (c. 7)). They give the police powers to stop and search vehicles and their occupants, and pedestrians, for the prevention of terrorism. As with the powers under the PTA, authorisations apply to a specific area and are for a maximum of 28 days (though that period may be renewed). The main difference is that vehicle stop and search authorisations, as well as pedestrian authorisations, will have to be confirmed or amended by a Secretary of State within 48 hours of their being made, or they will cease to have effect.
Clauses 48-52: Parking
47. These clauses make similar provision to that inserted by the Prevention of Terrorism (Additional Powers) Act 1996 (c. 7) as section 16D of the PTA. This gives the police the powers to restrict or prohibit parking for a limited period in a specified area for the prevention of terrorism and makes it an offence to park in or refuse to move from such an area.
Clause 53: Port and border controls
48. This clause brings into effect Schedule 7 on port and border controls, and provides for the Secretary of State to repeal by order the provision at paragraph 16 of the Schedule enabling him to bring in by order a "carding" requirement for passengers in the Common Travel Area.
PART VI: MISCELLANEOUS
49. This Part deals, among other things, with the offences which were discussed in Chapter 12 of the Government's consultation paper under the heading "Ancillary offences".
Clauses 54-55: Weapons training
50. These clauses correspond to the offence at section 34 of the EPA. Whereas that offence applied only in Northern Ireland, the new version applies throughout the UK. It has also been extended to cover chemical, biological and nuclear weapons and materials as well as conventional firearms and explosives; and to cover recruitment for training (subsection (3)) as well as the training itself. Subsection (5) of Clause 54 provides a defence for persons who are acting for non-terrorist purposes, such as the armed forces.
51. A further modification concerns the need for a recipient of the training. Under subsection (1) of Clause 54, by contrast with its predecessor in the EPA, no recipient is needed for the offence to be committed. This means that the offence could cover someone who makes weapons instruction for terrorist purposes generally available, for example via the Internet.
52. The definitions of chemical, biological and nuclear weapons and materials are based on other statutes.
* Section 1(1)(b) of the Biological Weapons Act 1974 (c. 6) applies to any weapon, equipment or means of delivery designed to use biological agents or toxins for hostile purposes or in armed conflict.
* The meaning of "nuclear material" set out in the Schedule to the Nuclear Material (Offences) Act 1983 (c. 18), is "plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotopes 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore-residue; any material containing one or more of the foregoing". The Schedule also further defines "uranium enriched in the isotopes 235 or 233".
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