Eleventh Report
Counter-Terrorism Bill
1. The purpose of this eight-Part bill is summarised
in paragraphs 5 to 13 of the Explanatory Notes. The Home Office
has prepared a memorandum for the Committee, printed at Appendix
1, which explains the delegated powers in the bill and the level
of parliamentary control which it is proposed should apply to
their exercise. Of the seventeen delegations in the bill, we wish
only to mention the following.
Pre-charge detention — clause 23
2. Clause 23 introduces Schedule 2, which in
turn inserts a new Part 4 into Schedule 8 to the Terrorism Act
2000 to provide for the extension, on application to a senior
judge, of the period for which a suspected terrorist may be detained
under section 41 of that Act, up to a maximum period of 42 days.
The new power to apply for an extension is to be exercisable only
when an order under clause 23 is in force. Clause 23(1) enables
the Secretary of State to declare by order that the power under
section 41 of the 2000 Act is exercisable. The decision to make
the order is subject to prior conditions: in particular an order
under section 25 of the Terrorism Act 2006 must be in force; and
the decision must in effect be supported by a report from the
prosecuting authorities and the police under clause 24 and by
independent legal advice under clause 25. Once the order is made,
the chairmen of the Joint Committee on Human Rights, the House
of Commons Home Affairs Committee and the Intelligence and Security
Committee must be notified and given a copy of the order and supporting
documents (clause 26), and a statement must be laid before both
Houses (clause 27), as must the order and the legal advice (clauses
28(1) and 25(6)). The order lapses after seven days of being laid
unless approved meanwhile by a resolution of each House (clause
28(1)).
3. The power at clause 23(1) is thus subject
to the made affirmative procedure. The memorandum (paragraph 6)
suggests that no parliamentary procedure is strictly required
for this power because it is akin to a commencement order. We
disagree: it seems to us that this power to switch on the provision
in new Part 4 for a period of 30 days has been included not for
the purposes of commencement (which is provided for in clause
104(5)) but with a view to satisfying Parliament that it will
have a role in the exercise of powers under the new Part 4. The
subject matter of this power is undoubtedly controversial, but
it is a matter of policy for the House to determine whether this
additional step (of a declaration under clause 23 before the new
extension provisions can be invoked) is appropriate. For our part,
we do not regard the procedure attached to the making of an order
under clause 23(1) as inappropriate.
Henry VIII powers
4. The bill contains Henry VIII powers in clauses
39, 40, 44, 46, 52, 57 and 69. The first six of these confer order-making
powers to amend lists of offences, or specified periods of imprisonment,
set out in provisions under which a person charged with, or convicted
of, a listed offence becomes liable to particular treatment, or
a particular obligation, under the bill or another Act. (For instance,
where a person is convicted of an offence listed in clause 52(1)
or (2) and sentenced to imprisonment for more than a minimum term
specified in clause 56, the notification requirements in Part
4 are triggered by clause 56; and clauses 52(3) and 57(1) enable
the lists of offences, and the minimum terms of imprisonment,
to be amended by order.) With one exception, we do not consider
any of these delegations inappropriate, in view of the limitations
in clauses 44(3), 52(5)-(7) and 57(2)&(3) and the affirmative
procedure which is to apply in each case.
FORFEITURE: TERRORISM OFFENCES — CLAUSE 46
5. The exception relates to clause 46, which
inserts a new section 23A into the Terrorism Act 2000 to enable
a court, where a person is convicted of an offence specified in
subsection (2), (3) or (4), to order the forfeiture of money or
other property which was, was intended to be, or might be, used
for the purposes of terrorism. Subsection (5) enables the Secretary
of State to amend subsection (2) or (3) by affirmative order.
The power is comparable with that in clause 44, which enables
amendment by order of the list of offences in Schedule 3 to the
bill (conviction for any of which also 'triggers' the forfeiture
provision - see new section 23A(4)). But an order under clause
44 which adds a new offence to Schedule 3 expressly applies only
in relation to offences committed after it comes into force (subsection
44(3)), a qualification not applied to an order under new section
23A(5). The memorandum (paragraphs 32-36) does not explain why
offences added to subsections (2) and (3) of new section 23A should
be treated differently from those added for the purpose of subsection
(4). We recommend that, in the absence of a justification for
the difference, the bill should be amended so that the power conferred
by new section 23A(5) should be subject to the same qualification
as appears in clause 44(3).
ASSET FREEZING PROCEEDINGS — CLAUSE 69
6. Part 5 of the bill makes provision about court
proceedings in connection with the freezing of assets of suspected
terrorists. Clause 69(2) defines an "asset freezing decision"
(for the purpose of defining "asset freezing proceedings"
in subsection (1)) by reference to "a UN terrorism order",
being one of four Orders in Council specified in subsection (3)
(all of which were made in response to a request by the United
Nations Security Council to implement sanctions imposed under
a decision of the Council). Subsection (4) enables the Treasury
to amend the list of Orders in Council by negative order. Although
the effect of adding further Orders in Council might bring additional
proceedings within the "asset freezing proceedings"
to which special procedural rules can be applied under Part 5
of the bill, the power conferred by clause 69(4) is itself a fairly
narrow one, as only another Order in Council made in response
to a Security Council decision (albeit not expressly confined
to one about terrorism or assets) can be added to the list in
subsection (3). In view of this constraint, we do not consider
the negative procedure to be inappropriate.
Asset freezing proceedings — Clauses 70,
71 and 75
7. Clauses 70 and 71 enable provision to be made
by rules of court about asset freezing proceedings and appeals
relating to them. Amongst other matters, the rules may enable
proceedings to be conducted in the absence of a party (other than
the Treasury) or his legal representative (clause 70(4)), and
must provide for the Treasury's right not to disclose relevant
material to another party or his legal representative (clause
71(3)).
8. Rules of court are not usually made by Ministers:
in England and Wales they are made by the Civil Procedure Rule
Committee (which comprises mainly judges, barristers and solicitors),
subject to their being allowed by the Lord Chancellor; and they
are subject also to the negative procedure. In Scotland, the Lord
President of the Court of Session makes rules. But clause 75 applies
a special procedure to the first rules to be made under Part 5.
As respects England and Wales and Northern Ireland, they are to
be made by the Lord Chancellor but will cease to have effect if
they are not approved by both Houses within 40 days of being laid
before Parliament.
9. The provision for rules of court under Part
5 closely resembles that for rules in relation to control orders
under the Prevention of Terrorism Act 2005. When considering the
bill for that Act, we noted the composition of the Civil Procedure
Rule Committee, observed that it was an important element in the
rule-making process, and suggested that the House ask for an explanation
why it was the Lord Chancellor who was to make the first rules[1].
In his response to the Committee's report, the Lord Chancellor
explained that it was essential that the rules be made quickly
so as to be in force shortly after enactment of the bill, and
that there would be insufficient time for them to be made by the
Rule Committee in the usual way[2].
10. Paragraph 68 of the Home Office's memorandum
provides no explanation why clause 75 confers the power to make
the initial rules on the Lord Chancellor; nor is there any suggestion
in the memorandum that similar considerations of urgency apply
to the present power as applied in the rather unusual circumstances
of the 2005 Act. For our part, we cannot see that the same
considerations of urgency apply here and so recommend that, in
the absence of a justification, the power to make rules of court
under clauses 70 and 71 be conferred on the Rule Committee in
the usual way. The power should be subject to the affirmative
procedure, at least on first exercise, in view of the unusual
nature of the power conferred by clauses 70(4) and 71(3).
Specially appointed coroners — clause 79
11. Part 6 of the bill includes amendments to
the Coroners Act 1988 to require an inquest to be held without
a jury where the Secretary of State has certified that it would
involve consideration of material that should, in the public interest,
not be made public (clauses 77 & 78); and in such cases an
"approved coroner" or a judge - a "specially appointed
coroner" - may be appointed to hold the inquest (clause 79).
New section 18B in the 1988 Act provides for inquests where there
is a specially appointed coroner, and subsection (4) enables the
Secretary of State to provide by negative regulations for the
1988 Act and other law relating to coroners and inquests to apply
subject to specified modifications.
12. Inquests into deaths involving issues of
national security can attract considerable public interest and
the provision in clauses 77 to 79 for specially appointed coroners
and specially tailored rules governing their powers and procedures
could prove controversial. In the light of this, we recommend
that the power conferred by clause 79 be subject to the affirmative
procedure.
Crossrail Bill — Government Amendments
13. We reported on this bill in our 4th Report
(HL Paper 49). The Government have now invited us to consider
amendments to be moved in Grand Committee on re-commitment, printed
as amendments 3 and 7 in the marshalled list, HL Bill 61-I. The
Department for Transport has provided a supplementary memorandum
on the amendments, printed at Appendix 2. Amendment 3, the new
clause "Objective of ORR in relation to Crossrail",
has the effect of including in the Office of Rail Regulation's
objectives the objective of facilitating the construction of Crossrail.
Subsection (3) enables the Secretary of State by order to specify
that the section shall cease to have effect. The memorandum says
"Once the Crossrail construction phase has been completed,
this objective will cease to have any purpose". Although
we see no need for the amendment to be amended, the House might
welcome an undertaking from the Minister that the Secretary of
State will not exercise the power until the Crossrail construction
phase has been completed. There is nothing else in the delegations
in these amendments which we wish to draw to the attention of
the House.
Pensions Bill — Government Amendments
14. We reported on this bill in our 9th Report
(HL Paper 111). The Government have now invited us to consider
amendments to be moved in Committee. The Department for Work and
Pensions have provided supplementary memoranda on the amendments,
printed at Appendix 3. The first amendment is No 106A on the marshalled
list, HL Bill 50-I and there is nothing in the delegation in the
amendment which we wish to draw to the attention of the House.
15. The second set of amendments are the two
new clauses inserted after clause 84 and printed on sheet HL Bill
50-II(b). These clauses provide a power, exercisable by
statutory instrument subject to the negative procedure, to apply
a modified version of Part 1 of the bill to persons working on
vessels and to offshore workers, including provision relating
to persons who are not British subjects and affecting activities
outside the United Kingdom. The memorandum provides no justification
for the negative procedure in either case. We consider that
the delegations in these two new clauses should be subject to
affirmative procedure because this is the level of control which
applies to comparable powers in existing legislation (respectively,
section 117 of the Social Security Contributions and Benefits
Act 1992 and section 42 of the National Minimum Wage Act 1998)
and because that level of control is appropriate in the light
of ways in which the exercise of the powers could affect the rights
of persons to whom Part 1 of the bill would not otherwise apply.
Planning and Energy Bill — Government
Amendment
16. We reported on this bill in our 10th Report
(HL Paper 120). The Minister has written to the Chairman (the
correspondence is printed at Appendix 4) to explain further the
proposed amendment to the bill (now tabled and printed on sheet
HL Bill 56(a)) to remedy a drafting deficiency whereby
the current bill unintentionally and imperfectly creates a delegated
power. If amended in this way, the bill will not delegate legislative
power.
1 12th Report (Session 2004-05), HL Paper 63. Back
2
13th Report (Session 2004-05), HL Paper 80. Back
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