Supplemental provisions relating to sections 48 and 51

Clause 52 Extraterritorial application

134.     This clause supplements the provisions of clauses 48 and 51 that extend to acts of United Kingdom persons overseas.

Clause 53 Powers of entry

135.     This Clause gives powers of entry under warrant to constables and officers of the Secretary of State to search for evidence for the commission of an offence under clauses 48 and 51.

Clause 54 Customs and Excise prosecutions

136.     This clause permits the Customs and Excise Commissioners to enforce offences under clauses 48 and 51, in cases involving the movement of a nuclear weapon across a border. Officers of the Commissioners will be able to institute offences in England and Wales and Northern Ireland (assuming the Attorney General gives his consent under clause 55.

Clause 55 Offences

137.     Subsection (1) sets out additional offences in relation to obtaining an authorisation from the Secretary of State under clause 49 by fraud. These offences carry a sentence of up to two years imprisonment and a fine.

138.     Subsection (3) lays out individual liability of the relevant senior office holder in a body corporate, in addition to corporate responsibility.

Clause 56 Consent to prosecution

139.     This clause requires the Attorney General's consent for prosecutions under clause 48 and 51 in England and Wales and Northern Ireland.

PART 7: SECURITY OF PATHOGENS AND TOXINS

Clause 59 Pathogens and toxins in relation to which requirements under Part 7 apply

140.     This clause identifies those dangerous pathogens and toxins which will be brought immediately within the controls set out in this part of the Bill when Part 7 is brought into effect. These pathogens and toxins - listed in Schedule 5 - are those that potentially pose the greatest risk to human life if misused by terrorists. The clause gives the Secretary of State a power, by order, to modify the list.

141.     Subsection (4) defines "dangerous substance" to include anything (such as a plant or animal) that is infected by or is a carrier of a pathogen listed in Schedule 5 unless it satisfies prescribed conditions or is kept or used in prescribed conditions. This will allow for certain medicinal substances to be exempt from control provided that conditions guaranteeing the public against harm are met.

Clause 60 Duty to notify Secretary of State before keeping or using any dangerous substance

142.     This places a duty on the occupiers of premises to notify the Secretary of State before keeping or using any dangerous substance there. Occupiers of premises holding these substances when the Bill is enacted must notify the Secretary of State within one month. Similarly, occupiers of premises holding substances which are subsequently added to the Schedule will have one month in which to notify the Secretary of State of their holdings once any such modification comes into effect.

Clause 61 Power to require information about security of dangerous substances

143.     This clause is concerned with the security of dangerous substances and the premises in which they are kept or used. It allows the police to require occupiers to provide information about the security of any dangerous substances kept or used on their premises.

Clause 62 Power to require information about persons with access to dangerous substances

144.     This will allow the police to request information about persons who have access to dangerous substances or to the premises in which they are kept or used. It also places a duty on occupiers to ensure that other persons do not have access to the premises or substances. Where it is intended to give access to anyone else, notification of this must be given to the police, and access should be denied until 30 days following the notification unless otherwise agreed by the police.

Clause 63 Duty to comply with security directions

145.     This gives the police the power to require the occupier of premises holding dangerous substances to make improvements to the security arrangements operating there.

Clause 64 Duty to dispose of dangerous substances

146.     This will give the Secretary of State a power to require the disposal of any dangerous substances kept or used on premises where security arrangements are unsatisfactory.

Clause 65 Denial of access to dangerous substances

147.     This clause will give the Secretary of State the power to require that any specified person be denied access to dangerous substances or the premises in which they are held. The Secretary of State will be able to do so only where this is necessary in the interest of national security or public safety.

Clause 66 Powers of entry

148.     This gives the police the power to enter relevant premises, following notice, with any other persons, to assess security measures. This includes power to search or inspect the premises.

Clause 67 Search warrants

149.     This clause deals with the issue of search warrants to enable the police to enter and search premises. They may be issued where the police believe that dangerous substances are kept or used on premises for which no notification has been given, or where it is believed that the occupier may not be complying with directions under Part 7.

Clause 68 Offences

150.     This clause will make it an offence for occupiers of premises to fail, without reasonable excuse, to comply with any duty or directions imposed by or under this Part of the Bill.

Clause 69 Offences: bodies corporate

151.     This clause concerns offences committed by a body corporate, as the occupier of premises, under this Part of the Bill. It enables the prosecution of certain officers or employees, in addition to the body corporate.

Clause 70 Offences: partnerships and unincorporated associations

152.     This clause clarifies how the provisions relating to offences apply to an unincorporated association or partnership where it is the occupier of the premises.

Clause 71 Denial of access to dangerous substances: appeals

153.     This clause provides for the establishment of the Pathogens Access Appeal Commission to receive appeals made by any person denied access on the direction of the Secretary of State under clause 65. It also clarifies that a further appeal may be made on a question of law and brings Schedule 6 into effect, defining the constitution and procedures of the new commission.

Clause 72 Other appeals

154.     This clause will provide occupiers of premises with a right of appeal against directions relating to compliance with security directions, disposal of dangerous substances or the provision of information about security arrangements, on the grounds that the requirement is unreasonable.

Clause 73 Giving of directions or notices

155.     This allows directions or notices under Part 7 to be sent by post.

Clause 74 Orders and regulations

156.     This contains supplementary provisions about orders or regulations under Part 7. They will be made by statutory instrument subject to the draft affirmative resolution procedure (in the case of orders amending Schedule 5) and the negative resolution procedure (in other cases).

Clause 76 Power to extend Part 7 to animal or plant pathogens, pests or toxic chemicals

157.     This provides the Secretary of State with the power to add toxic chemicals, animal and plant pathogens and pests to the controls set out in this part of the Bill. The powers may be extended where the Secretary of State is satisfied that the chemicals concerned could be used in an act of terrorism to endanger life or cause serious harm to human health or the pathogens or pests could be used in an act of terrorism to cause widespread damage to property, significant disruption or alarm. Orders under this clause will be subject to the draft affirmative resolution procedure.

PART 8: CIVIL NUCLEAR SECURITY

Clause 77 Atomic Energy Authority special constables

158.     Subsection (1) extends the places within which the AEAC has powers of constables to include any licensed nuclear sites, and not just those of those of UKAEA, BNFL and Urenco Limited.

159.     Subsections (2) and (8) provide an order-making power which can be used to list the sites used primarily or exclusively for defence purposes at which the AEAC will not operate. It is intended that the AEAC will operate on civil nuclear sites only.

160.     Subsection (3) extends the constabulary powers and privileges of AEAC officers to 5 km from any licensed site. It is intended that administrative arrangements between the AEAC and local police forces will set out how the two will exercise their powers in relation to the other.

161.     Subsection (4) gives the AEAC power to escort nuclear material and to pursue, arrest and detain any person who steals, attempts to steal or otherwise interferes with nuclear material whilst it is in the care of the AEAC.

162.     Subsection (5) confers constabulary powers to prepare a trans-shipment or storage point that nuclear material will pass through or be stored whilst it is being transported. A trans-shipment point is a point of transport interchange, such as from road to air, sea to air, train to train, etc.

163.     The definition of "nuclear material" in subsection (7) is a narrower definition than that contained in the current legislation. It includes only fissile material, and not non-nuclear radioactive material, which is less sensitive and does not require AEAC escort.

Clause 78 Regulation of security of civil nuclear industry

164.     Subsection (1) contains a power to make regulations to ensure security in the civil nuclear industry. The main areas covered by the regulations are the security of nuclear sites, nuclear material in course of transport, and sensitive information relating to the security of nuclear sites, nuclear material and sensitive nuclear technology, in particular uranium enrichment technology.

165.     Subsection (2) provides that the regulations may, for the purposes of security regulation, include specified measures which are set out in the Health and Safety at Work Act 1974. These include the enforcement provisions, since it is intended that the new security regulations will borrow the existing enforcement provisions in that Act. Subsection (2) also provides that the new regulations may create criminal offences.

Clause 79 Repeals relating to security of civil nuclear installations

166.     This repeals certain provisions which are no longer needed.

167.     Subsection (1) repeals paragraphs 5 and 6 of Schedule 1 to the Nuclear Installations Act 1965. Paragraph 5 gives the Secretary of State powers to issue directions to certain designated nuclear operating bodies (BNFL, UKAEA, and later Urenco Ltd). This is the basis of the current system of nuclear security regulation at sites other than nuclear generating stations. This system will be replaced by the regulations which will be made under clause 77.

168.     Paragraph 6 has become redundant. It provided a safeguard for employees in the bodies listed above through requiring the Minister's consent to be obtained before dismissing an employee on security grounds. In recent years however, the appeal procedures established under the security vetting system have replaced the need for this provision.

169.     Subsection (2) amends section 19(1) of the Atomic Energy Authority Act 1971 to reflect the changes in subsection 1.     

Clause 80 Prohibition of disclosures in relation to nuclear security

170.     Subsections (1) and (2) set out the circumstances in which the offence is committed. The offence covers disclosures that might prejudice the security of nuclear sites or of nuclear material held on such sites or being transported to or from such sites or being carried on a British ship.

171.     Subsection (3) sets out the penalties for the offence.

172.     Subsection (4) defines terms used in the section. The definition of "nuclear site" covers all sites which require a licence under s.1(1) of the Nuclear Installations Act 1965.

173.     Subsections (5) and (6) ensure that the offence can be committed outside the United Kingdom by United Kingdom persons as defined in Clause 81 (i.e. as well as by any person in the UK). Such persons may be prosecuted in the United Kingdom.

Clause 81 Prohibition of disclosures of uranium enrichment technology

174.     Subsections (1) and (2) confer a power to make regulations prohibiting the disclosure of uranium enrichment technology and define what is meant by uranium enrichment for the purposes of this clause.

175.     Subsection (3) makes it an offence to contravene a prohibition in the regulations and sets out the penalties for the offence.

176.     Subsection (4) enables the regulations to provide for disclosures not to be prohibited in prescribed circumstances or when authorised by the Secretary of State, and enables the regulations to create defences to the offence.

177.     Subsection (5a) enables the regulations to provide that the prohibition on disclosure applies to United Kingdom persons abroad.

178.     Subsections (6) and (7) provide that the regulations are to be made by statutory instrument subject to affirmative resolution in both Houses of Parliament.

179.     Subsection (8) defines terms used in this clause.

Clause 82 Part 8 : supplementary

180.     Subsection (1) provides that a prosecution under clause 79 or 80 can only be instituted by, or with the consent of, the Attorney General (as regards a prosecution in England and Wales) and the Attorney General for Northern Ireland (as regards a prosecution in Northern Ireland).

181.     Subsections (2) and (3) define what is meant by a United Kingdom person for the purposes of clauses 79 and 80.

PART 9: AVIATION SECURITY

Clause 83 Arrest without warrant

182.     This clause provides for certain offences to be inserted at the end of section 24(2) of the Police and Criminal Evidence Act 1984 (PACE). This has the effect of giving the police the power to arrest suspects, even though the maximum penalties for the offences in themselves are not sufficient to give an automatic power of arrest.

183.     The offences to be covered are those relating to unauthorised presence in the restricted zone of an airport or on an aircraft (sections 21(C)(1) and 21D(1) of the Aviation Security Act 1982) and trespassing on a licensed aerodrome (section 39(1) of the Civil Aviation Act 1982).

184.     Section 24 of PACE extends only to England and Wales. The clause therefore also makes similar change to the equivalent policing legislation in Northern Ireland to ensure consistency. In Scotland, powers of arrest for these offences would be subject to the general rule that arrest without warrant is not justified unless necessary in the interests of justice. In order to ensure that the police in Scotland have the desired power of arrest a statutory power of arrest without warrant is to be introduced.

Clause 84 Trespass on aerodrome: penalty

185.     The penalty for the above offence is being increased. The proposed penalty (a level 3 fine, currently £1,000) reflects the view that the offence is not as serious as unauthorised access in a Restricted Zone or on an aircraft (level 5 fine, currently £5,000), but would be proportionate to penalties existing under Article 122 of the current Air Navigation Order 2000 (S.I 2000/No.1562). Currently these involve fines in the level 3 and level 4 scale. At the present time a fine under level 4 involves a maximum sum of £2,500.

Clause 85 Removal of intruder

186.     Sections 21C and 21D of the Aviation Security Act 1982 make it an offence for an unauthorised person to go into an airport's restricted zone, or onto an aircraft, or to remain in either place after being asked to leave. However there is no specific power to remove someone who refuses to leave after being asked to do so. This clause provides such a power to enable a constable or duly authorised person to do so. Subsection (1) deals with aerodromes and subsection (2) deals with aircraft.

187.     Similar powers appear in section 31(4) of the Channel Tunnel (Security) Order 1994 and in section 39(2A) of the Aviation and Maritime Security Act 1990, as amended.

Clause 86 Aviation security services

188.     Under section 21F of the Aviation Security Act 1982, the Secretary of State for Transport, Local Government and the Regions may, by regulations, maintain a list of air cargo agents who are approved by him to offer secure air cargo services. Under the regulations (S.I 1993/No.1073) air cargo agents may only apply to be included on the list if they are involved in applying security controls to air cargo.

189.     The Government wishes to make similar arrangements for other parts of the industry which provide security services to civil aviation - for example companies contracted by airports and airlines to provide passenger and baggage screening services, and companies and individuals who provide aviation security training services.

190.     The clause inserts a new section 20A into the 1982 Act, which will give the Secretary of State the power to set up, by regulations, lists of other categories of companies or individuals associated with the provision of aviation security services.

Clause 87 Detention of aircraft

191.     Under the Aviation Security Act 1982 there is no specific power for a Department for Transport, Local Governments & the Regions (DTLR) Aviation Security Inspector who is an example of "an authorised person" for the purposes of the 1982 Act to detain an aircraft other than for the purposes of inspecting it (see section 20(3) of the 1982 Act). However, once that inspection is finished, an inspector has no further powers to detain the aircraft even if he is concerned about the standard of security applied, although they can advise the pilot not to fly. Similarly there is no direct power for an authorised person to prevent aircraft from flying because there is good reason to believe it could be a target for attack.

192.     The clause inserts into the 1982 Act a new section 20B, which gives an authorised person the power to detain aircraft by direction if there is reason to believe that its security has been compromised because of a failure to comply with the Department's statutory Directions or an Enforcement Notice. Directions are issued by the Secretary of State to aerodrome managers and airline operators using the powers contained in sections 12-14 of the 1982 Act. An Enforcement Notice is defined in section 24A of the 1982 Act. Consequently if a threat has been made against the aircraft; or an act of violence is likely to be committed against the aircraft, then a detention direction can be issued.

193.     The clause enables a detention direction to be issued in respect of any aircraft operating or registered in the United Kingdom. Such a direction can apply to all aircraft in a specified class, for example all flights leaving for the USA from UK airports. In effect this means the power ranges from the detention of a single aircraft, to detaining all flights going to specific destinations.

194.     The new section provides for what the authorised person may do. This may include entering the aircraft, removing things and using reasonable force to ensure that the aircraft does not fly. The new provision also allows for objections to the direction, and provides for offences for failing to comply or obstruction. On summary conviction fines up to £5,000 (level 5) can be imposed. Alternatively, on indictment the penalty could be a maximum of 2 years and or a fine of any level set by the court.

195.     An analogous provision for detention of ships and Channel Tunnel trains exists (section 21 of the Aviation & Maritime Security Act 1990 and article 27 of the Channel Tunnel (Security) Order 1994 [SI 1994 No 570] respectively) when there has been failure to comply with a direction or Enforcement Notice.

Clause 88 Air cargo agent: documents

196.     By regulations under Section 21F of the Aviation Security Act 1982, the Secretary of State operates a listing system for security approved air cargo agents. Such agents are allowed to apply security controls to cargo before it is passed to an airline for carriage. To be added to the list, a cargo agent must be able to demonstrate that he has the capability to meet security criteria set down by the Secretary of State. However, there is no offence of pretending to have been approved by DTLR to operate as a security approved air cargo agent.

197.     The clause inserts into the 1982 Act a new section 21FA, to create a new offence of issuing a document which falsely claims to come from a security approved air cargo agent. It is proposed that this be a summary offence, attracting a maximum penalty of six months imprisonment or a fine not exceeding £5,000 (level 5) on the standard scale, or both.

PART 10: POLICE POWERS

Identification

198.     Clause 90 of the Bill amends the Police and Criminal Evidence Act 1984 (PACE) to provide additional powers to carry out searches and examinations of those in police detention for identification purposes and to take fingerprints for identification purposes.

199.     In respect of searches of detained persons for identification purposes, the police have existing powers of search for other reasons. In particular section 54 (6) of PACE allows a custody officer to authorise a detained person to be searched if this is necessary in order to ascertain and record everything the detained person has with him. The new provisions will make it clear that searching could be specifically directed towards establishing identity. Currently, where identifying marks are clearly visible and outside those parts of the body normally covered by clothing, it is normally a straightforward matter for the police to record them for the purposes of identification. However, in circumstances where they are not clearly visible the only powers currently available to the police are to question the suspect as to whether such marks exist. The suspect may agree to submit to a voluntary examination, but if he refuses there is no authority whatsoever to compel him to do so. The new provisions will rectify that.

200.     Sections 27 and 61 of PACE as amended by section 78 of the Criminal Justice and Police Act 2001 provide powers to take fingerprints without consent where persons have been convicted or charged or cautioned for a recordable offence or where there are reasonable grounds to suspect their involvement in a criminal offence and that fingerprints would tend to confirm or disprove that; and on answering bail at a court or police station if there is a dispute about identity. Where fingerprints are authorised to be taken to confirm or disprove a person's involvement in a crime, the prints can only be taken if an officer of at least superintendent rank (amended to inspector rank on implementation of section 78 of the 2001 Act) authorises them to be so taken. Fingerprints cannot, however, be taken where the issue is merely one of identity. Where someone enters police custody and refuses to identify themselves or where the police have reason to doubt the information they provide about their identity, there is no legal entitlement for the police to take fingerprints which could be examined against existing databases in an attempt to resolve the identification issue.

201.     The effect of clause 90(2) is to provide an additional power in PACE to take fingerprints from an arrested person in an effort to establish or check their identity.

202.     There are no provisions in PACE on the taking of photographs of suspects. PACE Code D sets out guidance on the taking of photographs of those in police custody. In short, photographs can be taken without consent on charge or conviction for a recordable offence; where there are reasonable grounds to suspect involvement in an offence and identification evidence in relation to the offence is available; and where a number of people are arrested at once and it is necessary to photograph them to establish who was arrested and when and where. But there is no power to use reasonable force to take a photograph.

203.     Consequently there is no explicit power for the police to require the removal of masks, face coverings or face paint of those in custody so that those wearing them can be reliably photographed. Clause 94 provides both the power to require the removal of masks, coverings or face paint to identify and photograph a person and to use reasonable force to do so, if necessary.

204.     Clause 94 strengthens police powers in relation to the removal of face coverings. It adds to the power in section 60 of the Criminal Justice and Police Act 1994 to require the removal of face coverings where an authorisation is given by a senior officer for a given locality. The test for an authorisation under section 60 is reasonable belief that incidents of serious violence may take place in the locality and that it is expedient to give an authorisation to prevent their occurrence. An authorisation under that section gives the police powers to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments. It also gives the police power to require the removal of face coverings. This clause provides that in relation to the power to require the removal of face coverings only, an authorisation may also be given where a senior officer reasonably believes activities may take place in the locality involving the commission of offences and that it is expedient to give such an authorisation to prevent or control those activities.

Clause 89 Fingerprinting of terrorist suspects

205.     Clause 89 amends the provisions in the Schedule 8 to the Terrorism Act 2000 by providing that in addition to the grounds already specified fingerprints can be taken from those detained under the Act in order to ascertain their identity. At present fingerprints may only be taken from a person detained under the Act to establish if he has been involved in certain offences under the Act or to establish if he has been concerned in the commission, preparation, or instigation of acts of terrorism.

206.     Subsection (2) amends that part of Schedule 8 which covers the fingerprinting of persons detained under the Act in England Wales and Northern Ireland by inserting two new sub-paragraphs in paragraph 10 of Schedule 8. Sub-paragraph (6A) allows an officer of at least superintendent rank to authorise the taking of fingerprints of a person detained at a station without the person's consent if the officer is satisfied that the fingerprints will enable the identification of the person, and that the person has refused to identify himself or the officer reasonably believes that he has given a false identity. Sub-paragraph (6B) allows the powers to be used to show that a person is not a particular person. For example this would cover incidents where an officer believes that a suspect has claimed to be his brother or friend rather than himself.

207.     Subsection (3) makes similar amendments to the provisions of Schedule 8 which apply to Scotland by adding two further subsections after section 18(2) of the Criminal Procedure (Scotland) Act 1995. The new subsections allow a constable to take or require fingerprints from a person if he is satisfied that they will help to identify the person and the person has refused to identify himself or the constable reasonably believes that the person has given a false identity including circumstances where the constable believes that the person has claimed to be another person such as a relative or friend.