APPENDIX 1: COUNTER-TERRORISM BILL
Memorandum by the Home Office
Introduction
1. The Counter-Terrorism Bill is in eight parts.
Part 1 makes provision in relation to the gathering and sharing
of information. Part 2 makes provision in relation to the pre-charge
detention and post-charge questioning of terrorist suspects. Part
3 makes provision relating to jurisdiction and for aggravating
sentences for offences with a terrorist connection and extends
the forfeiture regime for terrorist-related offences. Part 4 provides
for a new notification regime for persons convicted of terrorist-related
offences and foreign travel orders. Part 5 makes provision in
relation to asset freezing proceedings. Part 6 relates to Inquests
and Inquiries. Part 7 contains miscellaneous provisions, including
provision about the costs of policing at gas facilities. Part
8 contains supplementary provisions.
Part 2: Detention and Questioning of Terrorist
Suspects
Clause 23(1): Order declaring reserve power available
2. Part 1 of Schedule 2 to the Bill inserts a
new Part 4 into Schedule 8 to the Terrorism Act 2000 (Detention).
This introduces a new power, which may be made exercisable by
order for a period of 30 days at a time (subject to the order
being approved by both Houses within 7 days of it being laid before
Parliament), to allow terrorist suspects (arrested and detained
under section 41 of the 2000 Act) to be detained pre-charge for
a maximum of 42 days.
3. New paragraph 39 of Schedule 8 to the Terrorism
Act 2000 provides that an extension may be granted in respect
of a warrant of further detention, authorising detention of a
terrorist suspect beyond 28 days. The extension may be made by
a judge, following an application made by the persons named in
paragraph 39(1). These persons are a Crown Prosecutor (with the
consent of the DPP or an authorised Crown Prosecutor), the Lord
Advocate or a procurator fiscal or the DPP for Northern Ireland.
Each extension granted will be for a period 7 days or less up
to a maximum of 42 days from the time of arrest (or, if the person
was being detained under Schedule 7 to the 2000 Act when arrested,
the time the examination started). This is the 'reserve power'
(see clause 23(1)).
4. Clause 23(1) provides the Secretary of State
with the power to make an order declaring the reserve power exercisable.
This order-making power is subject however to the provision in
clause 23(2) that the Secretary of State may not make such an
order unless (a) an order is already in force under section 25
of the Terrorism Act 2006 (the effect of which is that the maximum
period of detention for terrorist suspects is 28 days); and (b)
she has received a report from the DPP, the Crown Agent or the
DPP for Northern Ireland and the police in the terms specified
in clause 24. Those are, broadly, that they reasonably believe
that more than 28 days pre-charge detention is necessary to obtain,
preserve or analyse evidence in an investigation into a serious
terrorist offence (one carrying a life penalty) and that the investigation
is being conducted diligently and expeditiously.
5. The power to make the higher limit of 42 days
for pre-charge detention for terrorist suspects exercisable is
suitable for secondary legislation. This is because the intention
is that this higher limit is an exceptional measure, to be made
exercisable only where the Home Secretary considers it appropriate,
following receipt of the requisite report from the DPP and police
as to the operational need for it in relation to a serious terrorist
offence, and to remain available only for a limited period of
30 days, subject to Parliamentary approval. The availability of
the power for such short periods at a time can only be achieved
by secondary legislation.
6. Because the principle of making the higher
limit of 42 days available in the circumstances provided for in
the Bill will have been approved during the passage of the Bill,
and the power in clause 23 is simply to make the reserve power
exercisable (and the reserve power is set out exhaustively in
Schedule 1 to the Bill) neither the affirmative or negative Parliamentary
procedure is required for this order-making power: the power is
akin to a commencement order and the order may bring the new Part
4 of Schedule 8 to the Terrorism Act 2000 immediately into force.
However, there is a bespoke Parliamentary procedure and set of
Parliamentary safeguards provided for in the Bill.
7. On making an order, the Secretary of State
must immediately notify the chairmen of the Home Affairs Committee,
the Joint Committee on Human Rights and the Intelligence and Security
Committee that she has done so. She must also provide them with
a copy of the legal advice she is required to obtain from a non-government
lawyer under clause 25 and a copy of the report from the DPP and
police.
8. The Secretary of State must make a statement
to Parliament within 2 days or as soon as practicable after making
the order, explaining her decision to make the reserve power exercisable
and must at the same time lay before Parliament a copy of the
legal advice (redacted if necessary). The statement must comply
with the provisions in clause 27, which include that the Secretary
of State must state she is satisfied:
a) that a grave exceptional terrorist threat
has occurred or is occurring;
b) the reserve power is needed for the purpose
of investigating the threat and bringing those responsible to
justice;
c) that the need for the power is urgent; and
d) that making the reserve power exercisable
is compatible with Convention rights.
9. Clause 28 provides that the Secretary of State
must lay the order before Parliament as soon as reasonably practicable
after it is made. The order shall lapse within 7 days from laying
unless during that period both Houses pass a resolution approving
it.
10. Clause 29 makes provision for the recall
of Parliament if it is prorogued or adjourned when the order needs
to be approved. This provision is in the same terms as that in
section 28 of the Civil Contingencies Act 2004. It is considered
that the issue of extending pre-charge detention for up to 42
days is sufficiently important to require the recall of Parliament
to debate the matter and approve (or otherwise) the order.
11. Clause 30 provides that the order making
the reserve power exercisable lapses 30 days after it is made.
In other words, new Part 4 of Schedule 8 to the Terrorism Act
2000 will only be in force for periods of 30 days at a time (and
only then subject to approval by both Houses of Parliament within
7 days of the order being laid).
12. When an order lapses under clause 28 or
30 however, the Secretary of State may make a further order, providing
the conditions in clause 23(2) are met.
13. The independent reviewer of terrorist legislation
must report within 6 months of the end of each period during which
the reserve power was in force and this report will be laid before
Parliament (clause 31). The report will be on individual cases
where detention was extended beyond 28 days and on the reasonableness
of the Home Secretary's decision to make the order declaring the
reserve power exercisable.
14. This is a matter suitable for secondary
legislation because of the limited period for which the reserve
power is to be exercisable. The Home Secretary must be able to
make the power exercisable immediately because of the urgent operational
need, but because of the importance of the measure, the order
is subject to a suitable level of Parliamentary scrutiny as described
above.
Clause 34(6): Power to amend codes of practice
issued under section 66 of the Police and Criminal Evidence Act
1984 (c.60)
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: negative or affirmative
resolution
15. Codes of practice have been brought into
operation by way of orders made under section 66 of the Police
and Criminal Evidence Act. These have been revised from time to
time by way of orders made under section 66(7A). The power to
make an order bringing a revision of a code into operation can
be made under the affirmative or the negative procedure. Clause
34(6) of this Bill requires codes of practice issued under section
66 to provide for post charge questioning of a person about terrorist-related
offences in England and Wales.
16. This is therefore not a new delegated power
but is an extension of the delegated power already found in section
66(7A) of the Police and Criminal Evidence Act. The parliamentary
procedure for orders made under that provision is not being altered.
Clause 37 (2) Power to disapply compulsory recording
of interviews
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
17. Clause 37 requires post-charge questioning
under clauses 34, 35, & 36 to be video-recorded with sound
except where the Secretary of State provides by an order that
this should not be the case. There are some areas, for example
in Scotland, where facilities for video recording with sound are
not yet available. The order making power provided for in subsection
(2) allows the Secretary of State to disapply the compulsory requirement
in different parts of the UK (under subsection (5)).
18. As the Order would remove the compulsory
requirement for the recording of interviews in different parts
of the UK, the appropriate Parliamentary procedure is the affirmative
resolution procedure as provided by clause 37(2), which will allow
Parliament the opportunity to fully debate the amendments.
Clause 38(4): Power to issue and revise code of
practice for recording of interviews
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
19. Clause 38 sets out the process for the issue
and revision of a code of practice for the video-recording of
post-charge questioning under clause 37. Clause 38(4) enables
the Secretary of State to bring the code of practice into operation
by way of an order. This power is similar to the power provided
for in paragraphs 3 and 4 of Schedule 8 of the Terrorism Act 2000
which enable the Secretary of State to bring a code of practice
for the audio and video recording of persons detained under section
41 or Schedule 7 of that Act by order.
20. As the code of practice made under this clause
will be admissible in evidence in criminal and civil proceedings
(as a result of clause 38(8), the appropriate Parliamentary procedure
is the affirmative resolution procedure (provided by clause 38(5))
which allows Parliament to fully debate the requirements
Clause 39(3): Power to amend the list of terrorism
offences in clause 39(1) or (2)
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
21. Clause 39(1) lists the terrorism offences
about which a person can be asked questions post charge. It may
be that other terrorism offences need to be added to the list
of offences included here. Some of the more minor terrorism offences
are not included in the list, but it may be that practitioners
advise at a later date that it would be useful to have this power
in relation to such offences. Conversely, it may transpire that
an offence currently on the list should be removed, if for example
it appears that it is unlikely post-charge questioning will ever
be appropriate for that offence. A power to amend this list is
therefore included so that, where appropriate, this list of offences
can be updated without the need for primary legislation.
22. As the order will amend primary legislation,
the appropriate Parliamentary procedure is the affirmative resolution
procedure (as provided in clause 39(4)).
Part 3: Prosecution and punishment of offences
Clause 40(4): Power to amend list of terrorism
offences which may be tried in any part of the United Kingdom
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
23. Clause 40 provides that where an offence
to which the clause applies is committed in any part of the United
Kingdom, that offence may be tried by a court in any part of the
United Kingdom. This provision overrides the common law position
which restricts the jurisdiction of court in England and Wales,
Northern Ireland or Scotland to offences which are committed (or
a substantial part of which are committed) within that part of
the UK. The purpose of this provision is to ensure that where
linked offences take place across different jurisdictions in the
UK, they may be tried at the same time by the same court.
24. Clause 40(2) and (3) sets out the list of
offences to which this clause applies. These are offences under
the terrorism legislation and ancillary offences. Clause 40(4)
provides the Secretary of State with an order-making power to
amend clause 40(2) and (3). This is so that further terrorist-related
offences may be added to the list of offences which may be tried
in any part of the UK at a later date if this is considered necessary.
The current list is restricted to offences under the terrorism
legislation and does not include other offences which may be charged
in terrorism cases such as murder or offences under the Offences
Against the Person Act 1861. This is because such offences do
not have UK-wide extent and so jurisdiction in relation to such
offences raises wider issues which will be considered separately
from this Bill. It may be however that in due course it will be
considered appropriate for such offences to be added to the list
of offences in clause 40(2) and that is why an order-making power
is required.
25. Further, there are other offences which we
envisage might be charged in terrorism cases and which apply UK-wide
(for example offences under the Chemical Weapons Act 1974) but
which do not have UK-wide jurisdiction. If these offences are
used for such cases in the future it would be sensible to be able
to add them to clause 40(2). There is provision in clause 40(6)
that the Secretary of State may only add an offence by way of
order where it appears to her necessary to do so for the purpose
of dealing with terrorism. This is because offences under the
general criminal law which could be added may be charged in cases
other than terrorism cases - so this provision ensures that the
jurisdiction provided by this clause is only used in terrorism
cases (and thus keeps the provision within reservation/exception
of terrorism for devolution purposes).
26. As the order will be amending primary legislation
the appropriate Parliamentary procedure is the affirmative resolution
procedure as provided by clause 40(5), which will allow Parliament
the opportunity to fully debate the amendments.
Part 3: Sentencing and Forfeiture
Clause 44: Power to amend Schedule 3 to the Counter-Terrorism
Bill (offences where terrorist connection to be considered)
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
27. Suspected terrorists are often charged with
offences under the general law (for example offences under the
Explosive Substances Act 1883 or manslaughter) as opposed to offences
under the terrorism legislation. Schedule 3 to the Bill sets out
a list of offences in England and Wales or Scotland which may
have a terrorist connection. If the sentencing court in England
and Wales determines that an offence in Schedule 3 has a terrorist
connection, or in Scotland if it is proved that such an offence
has a terrorist connection, three consequences flow under the
Bill.
28. These consequences relate to:
1. Sentencing. If the offence has a terrorist
connection, this must be treated as an aggravating factor.
2. Forfeiture orders. Clause 46 inserts a new
section 23A into the Terrorism Act 2000, which extends the forfeiture
regime under that Act. New section 23A extends the court's power
to make a forfeiture order to offences in Schedule 3 to the Bill
which have a terrorist connection.
3. Notification. Where an offence has a terrorist
connection and the person is sentenced to 12 months' imprisonment
or more, the notification requirements of Part 4 of the Bill apply.
29. Clause 44(1) provides that the Secretary
of State may by order amend Schedule 3. It may be necessary to
amend this list of offences if it becomes apparent that it would
be appropriate to charge an offence that is not currently on the
list in a terrorism case or if it becomes apparent that the inclusion
of a particular offence on the list is not appropriate. The
existing list is fairly narrowly drawn and includes only the most
serious offences which might be charged in a terrorist case. Other
offences (for example offences under the Offences Against the
Person Act 1861 not currently included) could conceivably be charged
in terrorism cases. If the practice develops in future that such
offences are commonly charged in such cases, these offences should
be added to Schedule 3 so that the provisions in relation to sentencing,
forfeiture and notification apply.
30. An order adding an offence to Schedule 3
will only apply in relation to offences committed after the order
comes into force (clause 44(3)). Where an order removes an offence
from Schedule 3 and a person is subject to the notification requirements
(only) because of a conviction for such an offence which had a
terrorist connection, that person will cease to be subject to
the requirements (clause 53(3)).
31. As an order made under this provision will
be amending primary legislation the appropriate Parliamentary
procedure is the affirmative resolution procedure (as provided
in clause 44(2)), allowing for the order to be fully debated in
Parliament.
Clause 46: New section 23A of the Terrorism Act
2000: Power to amend list of terrorism offences in relation to
which forfeiture orders may be made
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
32. New section 23A, inserted by clause 46 of
the Bill, extends the court's existing power to make forfeiture
orders under the Terrorism Acts of 2000 and 2006 (other than in
relation to terrorist finance offences, which are dealt with separately
in clause 45 of the Bill). The existing powers of forfeiture in
those Acts attach to specific offences and, broadly, allow for
the forfeiture of property which is directly connected to the
offence. Given the importance of removing terrorist property from
circulation and providing the courts with adequate and appropriate
sentencing powers for terrorist offences, the powers of forfeiture
are being extended in this Bill.
33. New section 23A allows the court which convicts
a person of the offences referred to above and certain other offences
to order the forfeiture of money or other property in the possession
or under the control of the convicted person at the time of the
offence and which (a) had been used for the purposes of terrorism;
(b) was intended by that person to be used for those purposes;
or (c) the court believes would be used for those purposes unless
forfeited.
34. The offences to which the power applies
are offences under the Terrorism legislation and related ancillary
offences (new section 23A(2) and (3)). The power also applies
to offences in England and Wales and Scotland falling within Schedule
3 to the Bill which the court determines to have a terrorist connection
(as defined in clause 99) under clauses 42 or 43 (aggravated sentencing)
(new section 23A(4)).
35. New section 23A(5) provides an order-making
power which would allow the Secretary of State to amend the list
of offences in subsections (2) or (3). This is required so that
if it becomes apparent in future that there are other terrorist
offences in relation to which convicted persons have significant
assets which should be forfeited, those offences may be added
to this provision. Conversely if it becomes apparent that there
are offences in this clause which ought not be included, they
may be removed by order.
36. As an order made under new section 23(5)
will amend primary legislation, the appropriate Parliamentary
procedure is the affirmative resolution procedure - as provided
by the amendment to section 123 of the 2000 Act by clause 46(2).
Part 4: Notification Requirements
Background
37. Clauses 51 to 68 of the Bill establish a
notification scheme for convicted terrorists similar to that for
convicted sex offenders under Part 2 of the Sexual Offences Act
2003. The clauses provide that persons subject to the requirements
must notify various personal details to the police at least annually
and every time those details change. They must also provide advance
notification of foreign travel. Being subject to the requirements
is one of the pre-conditions that allow the police to apply to
the court for an order preventing foreign travel. It will be an
offence to fail without reasonable excuse to comply with the notification
requirements or to notify information known to be false. The purpose
of the scheme is to enable the police to monitor convicted terrorists
in the community and to help manage the risk of their re-offending.
Clause 52(3): Power to amend list of terrorism
offences in clause 52(1) or (2)
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
38. The notification requirements apply to those
convicted of (and given a relevant sentence for) an offence with
a terrorist connection or a terrorism offence listed in clause
52(1), which are various offences under the terrorism legislation,
and in clause 52(2), which are ancillary offences relating to
such terrorism offences. Clause 52(3) gives the Secretary of State
power by order to amend clause 52(1) or (2).
39. The transitional provisions in this clause
ensure that any amendment to the list of offences comprising a
terrorism offence operate to protect the offender's rights. An
order adding an offence will apply only in relation to offences
dealt with after the order comes into force - it will not operate
retrospectively to bring persons convicted and sentenced for the
new offence prior to the commencement of the order (clause 52(5)).
An order removing an offence has effect in relation to offences
whether the offender was (or is) dealt with before or after that
order comes into force, so that a person subject to the notification
requirements only in relation to an offence that has been removed
from the list will cease to be subject to the requirements when
the order comes into force (clause 52(6) and (7)).
40. The list of terrorism offences in clause
52(1) does not cover all the offences under the terrorism legislation,
for example it does not include offences under the Terrorism Act
2000 concerning failure to disclose suspicion of a terrorist finance
offence. If at any time it is considered it would be appropriate
to bring those convicted of offences not currently on the list
within the notification scheme or to remove those convicted of
offences which are on the list from the scheme, the power in clause
52(3) will allow the Secretary of State to do so without the need
for primary legislation. There is a similar power under section
130 of the Sexual Offences Act 2003, which enables the Secretary
of State to amend the list of offences which trigger the application
of the notification requirements for sex offenders.
41. As an order under clause 52(3) will amend
primary legislation the most appropriate Parliamentary procedure
is the affirmative resolution procedure (provided for in clause
52(4)).
Clause 57: Power to amend clause 56 (specified
term or period of imprisonment or detention)
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: affirmative resolution
42. The notification requirements will apply
to persons convicted of a terrorist-related offence who are sentenced
in respect of the offence to a term or period of 12 months or
more imprisonment or detention. There are a number of statutory
forms of imprisonment and detention and these are set out in clause
56 together with the reference to 12 months or more. The power
in clause 57(1) is for the Secretary of State to amend the provisions
of clause 56 referring to this term or period of imprisonment
or detention - so that the notification requirements apply to
persons sentenced to a different term or period.
43. The transitional provisions in this clause
ensure that any amendment to the term or period operate to protect
the offender's rights. Where an order reduces the specified term
or period, this has effect only in relation to persons dealt with
(sentenced) after the order comes into force (clause 57(2)). Where
an order increases a specified term or period, it has effect in
relation to persons dealt with at any time and a person who would
not have been subject to the notification requirements if the
increased term or period had been in force when the person was
sentenced, will cease to be subject to the notification requirements
from the date the order comes into force (clause 57(3)).
44. When the notification provisions are in
force, if it is considered at any time that the 12 month threshold
is inappropriate, covering offences at either too high or too
low a level of seriousness for the notification provisions to
properly apply, the order-making power in clause 57 will allow
the Secretary of State to change the specified term or period
without the need for primary legislation.
45. As an order under clause 57(1) will amend
primary legislation the appropriate Parliamentary procedure (provided
in clause 57(4)) is the affirmative resolution procedure, allowing
Parliament the opportunity to fully debate the change to be made
to the sentence threshold.
Clause 58(3): Power to prescribe further information
to be notified
Power conferred on: Secretary of State
Power exercisable by: regulations made
by statutory instrument
Parliamentary procedure: affirmative resolution
46. Clause 58 sets out the information that
is to be notified to the police by a person subject to the notification
requirements. These are date of birth, National Insurance number,
name(s) and home address at time of sentence and notification,
address of any other premises in the UK at which the person regularly
resides or stays and any other prescribed information.
47. A regulation-making power is required to
prescribe additional information that it may be considered appropriate
for a person subject to the notification requirements to notify
to the police. This is because the Department considers that a
person should notify their passport details, but that the details
that are to be notified may change if, for example, the passport
regime changes. It may also be considered appropriate for ID card
details to be notified but it is not known at this stage what
those details will be. Further, after the regime is in force it
may become apparent that it would be appropriate to require further
information from a person subject to the regime, for example the
email addresses he uses. Each of these requirements will be for
the purpose of making the notification regime more effective in
its aims of monitoring the whereabouts of convicted terrorists
and preventing re-offending. Provision for a similar regulation-making
power (and for a power corresponding to that described below)
in relation to the sex offender notification scheme is contained
in the amendments made to that scheme by section 142 of the Criminal
Justice and Immigration Act 2008..
48. As the regulations made under this clause
will be imposing additional requirements on persons subject to
the notification scheme, the appropriate Parliamentary procedure
is the affirmative resolution procedure (provided by clause 58(3))
which allows Parliament to fully debate the requirements.
Clause 59(6): Power to prescribe details of prescribed
changes to notified details to be notified to the police
Power conferred on: Secretary of State
Power exercisable by: regulations made
by statutory instrument
Parliamentary procedure: affirmative resolution
49. Clause 59 makes provision that a person
subject to the notification requirements must notify the police
of any changes to his notified details within 4 days of such a
change. Clause 59(5) provides that where a person is required
to notify prescribed information under regulations made under
clause 58 (described above), prescribed details of prescribed
changes relating to any such information must be notified to the
police. Clause 59(6) provides that 'prescribed' means prescribed
by regulations (made by the Secretary of State).
50. This regulation-making power is needed in
consequence of the power to prescribe additional information to
be notified to the police (described above). The purpose of clause
59 is to ensure that the information notified to the police under
the notification scheme is kept accurate and up-to-date. If the
regulation-making power under clause 58 provides for example that
a person's passport details are to be notified, there is clearly
a need for further regulations under clause 59 to make provision
that any (prescribed) changes to those details are to be notified
so that the police have an up-to-date record of that person's
passport(s).
51. As the regulations made under this clause
will be imposing additional requirements on persons subject to
the notification scheme, the appropriate Parliamentary procedure
is the affirmative resolution procedure (provided by clause 59(6))
which allows Parliament to fully debate the requirements.
Clause 61: Power to direct form of acknowledgement
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary procedure: none
52. Clause 61 provides for the manner in which
an initial notification, a notification of change of details or
a periodic notification must be given - that is by attending at
a police station in the person's local police area and making
an oral notification to a police officer or authorised person.
Clause 61(4) provides that the notification must be acknowledged
and clause 61(5) provides that the acknowledgement must be in
writing and in such form as the Secretary of State may direct.
53. The acknowledgement provides protection
to the person notifying and it is appropriate for the notification
to be in a standard format, recording specified information. It
is an administrative procedure however and so there is no need
for any parliamentary procedure to apply. There is similar provision
in section 87(3) of the Sexual Offences Act 2003.
Clause 63: Power to make regulations concerning
foreign travel notification
Power conferred on: Secretary of State
Power exercisable by: Regulations made
by statutory instrument
Parliamentary procedure: affirmative resolution
54. Clause 63(1) provides the Secretary of State
with a regulation-making power to make provision requiring persons
subject to the notification requirements to notify the police
of information concerning their foreign travel plans before they
leave the United Kingdom and of information on their return. Clause
63(2) sets out specific information which a notification made
before departure must include - the intended date of departure,
the country of destination, the point of arrival (to be determined
in accordance with the regulations) and any other information
required. Clause 63(3) provides that notification given to the
police after their return to the UK must disclose such information
as is required by the regulations about the person's return. The
regulations will make provision for the manner in which the notification
is to be given (clause 63(4)).
55. It is intended to make regulations under
this power requiring persons subject to the notification requirements
notify the police of any intended foreign travel for 3 days or
more. The requirement is likely to be to notify (in person at
a police station) as many of the following details as the person
holds, at least 7 days in advance of travel and to update these
details if necessary at least 24 hours in advance. The details
are likely to be the countries to which the person intends to
travel, the carrier(s) he intends to use, details of his first
night's accommodation and intended return date and port of arrival.
Similar regulations have been made under section 86 of the Sexual
Offences Act 2003 (the Sexual Offences Act 2003 (Travel Notification
Requirements) Regulations 2004 (S.I. 2004/1220) and the Sexual
Offences Act 2003 (Travel Notification Requirements) (Scotland)
Regulations 2004 (S.S.I 2004/205)).
56. It is appropriate to take a regulation-making
power in relation to the foreign notification requirements because
of the level of detail attaching to them and because it may be
appropriate to make different provision over time (for example
amending the number of days' intended travel that trigger the
requirements) or different provision for different cases (for
example persons convicted of different offences).
57. As the regulations made under this clause
will be imposing additional requirements on persons subject to
the notification scheme, the appropriate Parliamentary procedure
is the affirmative resolution procedure (provided by clause 63(5))
which allows Parliament to fully debate the requirements.
Part 5: Asset Freezing Proceedings
Background
58. Various resolutions of the Security Council
of the United Nations require States to take action to impose
financial restrictions in relation to those with an involvement
in terrorism or associated with Usama bin Laden, Al Qa'ida or
the Taliban. See, amongst others, Resolutions 1267, 1373, 1390,
and 1452. Effect is given to those resolutions in the UK by way
of the Terrorism (United Nations Measures) Order 2006 and the
Al-Qaida and Taliban (United Nations Measures) Order 2006 and
their predecessors passed in 2001 and 2002 (collectively these
Orders are referred to in this memorandum as "the UN terrorism
orders"). The European Community gives effect to the UN Security
Council resolutions throughout the EC (see Regulations (EC) Nos
2580/2001 and 881/2002). The UN terrorism orders are consistent
with and provide for the enforcement of these EC Regulations.
59. A Sanctions Committee of the Security Council
maintains a list of persons associated with Usama bin Laden, Al-Qaida
or the Taliban. In relation to terrorism, the Council of the European
Union maintains a list of terrorist suspects. Domestically, HM
Treasury may make a direction designating (for the purpose of
the financial restrictions) a person it has reasonable grounds
for suspecting is or may be a person who commits, attempts, participates
in or facilitates terrorist acts.
60. Also, once a person is added to the lists
maintained by the UN or EC or has been designated at UK level,
they are a "designated person" for the purpose of the
appropriate UN terrorism order. The UN terrorism orders provide
that the assets of a designated person are to be frozen, which
means that no one may deal with that person's funds and economic
resources, nor make funds or economic resources available to them.
In relation to terrorism, the provision of financial services
to the designated person is also prohibited.
61. The UN terrorism orders provide (consistently
with UN requirements and EC provisions) that the financial restrictions
on a designated person's assets may be disapplied. These are disapplied
to the extent that those assets are necessary for the basic expenses,
legal expenses or extraordinary expenses of the designated person
or his/her dependant family. HM Treasury can disapply the financial
restrictions by way of a licence.
62. Each of the UN terrorism orders provides
that a direction to designate a person may be set aside by the
High Court or (in Scotland) the Court of Sessions on application
by a person affected by it.
63. The asset freezing provisions in this Bill
relate to any challenge which a designated person, or other affected
person, may bring against HM Treasury's decision to designate
a person, to refuse to grant a licence, to vary or revoke a licence
or against the terms of a licence.
64. The provisions in the Bill provide a framework
for the way in which challenges to asset freezing decisions will
be dealt with at court. There are provisions: (i) for the creation
of rules of court to govern the detailed procedure for such challenges,
(ii) for the use of Special Advocates where HM Treasury needs
to rely on closed source evidence in support of its decision to
designate, and (iii) for allowing intercept evidence to be adduced,
where necessary, in the proceedings.
Clauses 69 (4) and 69 (5): Power to amend the
list of UN terrorism orders in Clause 69 (3) and to make consequential
amendments to Clause 69 (2):
Power conferred on: HM Treasury
Power exercised by: Statutory Instrument
Parliamentary procedure: Negative procedure
65. The Bill provides for the list of UN terrorism
orders in Clause 69 (3) to be amended by the Treasury. If new
UN terrorism orders are made, it is envisaged that it may be appropriate
to include decisions made under them within the scope of "asset
freezing decisions", for reasons similar to those in the
case of the current terrorism orders. This would have the effect
of bringing them within the scope of the Rules of Court. It is
envisaged that such a step would be taken only after consultation
with the Home Office, the Foreign Office and the Security Services.
If a new order is made in relation to a new UN Security Council
Resolution, and there were no scope to add it to the list of terrorism
orders in Clause 69 (3), it would not be subject to the same rules,
which may generate confusion and inconsistency. The provision
also enables the amendment or removal of terrorism orders from
the list; it is anticipated that this power will be exercised
only to correspond with the amendment or repeal of the orders
cited.
66. If a new order is made, and it is added
to the list in Clause 69(3) by HM Treasury in exercise of the
power under Clause 69(4), this may necessitate certain changes
to the definition of "asset freezing decision" in Clause
69(2). A power is therefore given in clause 69(5) that the order
may make consequential amendments to clause 69(2).
67. As the power to add further orders to the
list in Clause 69(3) extends only to orders made under section
1 of the United Nations Act 1946, it is considered that the negative
procedure under the Civil Procedure Act 1977 is appropriate.
Clauses 70, 71 and 75: Power to make Rules of
Court for regulating the practice and procedure to be followed
in any asset freezing proceedings
Power conferred on: Initial exercise
of powers only in England, Wales and Northern Ireland: Lord Chancellor;
Civil Procedure Rule Committee (England and Wales) Lord President
(Scotland) Northern Ireland Supreme Court Rule Committee (Northern
Ireland)
Power exercised by: Initial exercise:
Statutory Instrument Thereafter: Statutory Instrument
Parliamentary Procedure: Initial exercise:
affirmative resolution with 40 day time limit. Thereafter: negative
resolution
68. These provisions provide power to make rules
of court in relation to asset freezing proceedings. Rules may
make provision for matters at a level of detail not appropriate
to be included on the face of the legislation. Additionally, Clause
70 provides, by way of illustration rather than exhaustive list,
that the rules of court may make provision about the mode and
burden of proof, the requirement that proceedings are determined
at a hearing, legal representation at the hearing, and matters
relating to the special advocate procedure. Clause 71 provides
for some provisions which it is required that the rules contain
and to this extent the scope of the rules of court is limited.
It is recognised that there may be some debate about the operation
of this procedure, hence the provision for the initial exercise
to be subject to an affirmative resolution before both Houses
of Parliament. Once the procedure is established, and in light
of the more specific provisions of Clauses 71 and 75 of the Bill,
it is considered that the usual negative procedure under the Civil
Procedure Act 1977 is appropriate for subsequent amendments to
those rules.
Part 6: Inquests and inquiries
Clause 79(1): specially appointed coroners
Power conferred on: Secretary of State
Power exercised by: regulations made
by statutory instrument
Parliamentary procedure: negative resolution
procedure
69. Part 6 of the Bill amends the Coroners Act
1988 to make provision for inquests to be held without a jury
if the Secretary of State has certified that the inquest will
involve the consideration of material that should not be made
public in the interests of national security, the relationship
between the United Kingdom and another country or otherwise in
the public interest. In cases where a certificate is issued, the
Secretary of State may appoint (with the agreement of the Lord
Chief Justice of England and Wales) a person known as a "specially
appointed coroner" to hold the inquest.
70. New sections 18A to 18C of the Coroners
Act 1988, inserted by clause 79(1), make provision for the appointment,
effect of appointment and revocation of appointment of specially
appointed coroners. New section 18B(4) permits the Secretary of
State, by regulations, to provide for the Coroners Act 1988 and
the law relating to coroners and coroners inquests to have effect
in relation to specially appointed coroners with such modifications
as may be specified in the regulations. The power in section 18B(4)
will be used to make detailed provision regarding the application
of coronial law to specifically appointed coroners. Detailed provisions
of this nature are best left to delegated legislation. The negative
resolution procedure affords an appropriate level of parliamentary
scrutiny.
Part 7: Miscellaneous
Background on costs of extra policing at gas facilities
71. These clauses make provision for the payment
of costs incurred in providing extra police services at key gas
sites. Costs incurred by the Ministry of Defence or by a police
authority on or after 16 January 2007 in policing, at the Secretary
of State's request, key gas sites with a view to their protection
against terrorist attack will be funded, with effect from the
commencement of these provisions, by gas consumers in accordance
with arrangements made by the Secretary of State under an enabling
power ("the Enabling Power") and not from general taxation.
72. The scope of the Enabling Power is limited.
Arrangements made by the Secretary of State in pursuance of the
Enabling Power are confined to gas transporter licence holders
under section 7 of the Gas Act 1986.
73. National Grid Gas (National Transmission
System) (NTS) operates the national gas transmission system, sometimes
referred to as the "primary system". The primary system
extends throughout Great Britain. NTS's activities as GB system
operator are governed by its transporter licence, granted under
section 7 of the Gas Act 1986 and by various industry codes.
74. The primary system transports gas through
pipelines to the regional distribution networks, which form part
of what is sometimes referred to as the "secondary system.
The distribution network operators, in turn, transport gas by
pipeline to the suppliers, who sell gas to the consumer. The distribution
network operators are also holders of transport licences granted
under section 7 of the 1986 Act.
75. Transmission charges are imposed by NTS
upon all those who make use of the primary system and are capped
by The Gas and Electricity Markets Authority (GEMA / (OFGEM),
the industry regulator. Ultimately, the charges are passed on
to the gas consumer by the gas suppliers.
76. Consequently, these clauses make provision
for the Secretary of State to require the costs of the extra policing
to be paid by a gas transporter designated for that purpose and
to determine the amount of the costs of the extra policing to
be paid by the gas transporter, the manner and the time of the
payment to be made and the person to whom the costs are to be
paid. Likewise, provision is made for the gas transporter to be
able to take into account in determining its charges any payments
it has made towards the cost of extra policing.
77. To ensure that the policy intention is fulfilled
provision is made for the Secretary of State to be able to direct
GEMA to allow for (a) policing costs incurred by or at the instigation
of the Secretary of State to be treated, in effect, as operational
costs of the gas transporter and/or (b) for the recovery of payments
made or costs incurred in relation to a specified period. Prior
to issuing such a direction the Secretary of State must consult
the relevant gas transporter and GEMA.
Clause 93 - Designated gas transporters
Power conferred on: Secretary of State
Power exercisable by: Order made by
Statutory Instrument
Parliamentary Procedure: Negative resolution
78. Clause 93 provides that the Secretary of
State may by order designate a person who is the holder of a licence
under section 7 of the Gas Act 1986 as a designated gas transporter
for the purposes of these provisions. Subsection (2) provides
that the order may specify the capacity in which a person is to
be designated as a gas transporter. This provision is required
to cover instances where one legal entity has two section 7 licences
e.g. one in its capacity as operator of the primary system and
a separate licence as operator of parts of the secondary system.
The current policy intention is to designate NTS as a gas transporter.
79. The Secretary of State may require a designated
gas transporter who has an interest in a gas facility to pay all
or part of the costs incurred by the Secretary of State in respect
of the provision of extra police services in or around the facility
- Clause 91(3) and Clause 92(3).
80. In Scotland a gas transporter may also be
required by the Secretary of State to pay the costs of an occupier
of a gas facility who has entered into an agreement under section
13 of the Police Scotland Act 1967 for the guarding, patrolling
and watching of the facility - Clause 92(2)(b).
81. In determining its charges for the transmission
of gas, a gas transporter can then take into account any payments
it has made under clause 91 or 92 and any costs it has incurred
as a party to a section 13 agreement.
82. Conferring the Secretary of State with the
power to designate who is to constitute a gas transporter for
the purposes of these provisions ensures that the Secretary of
State has optimum flexibility to respond to changing policy positions
e.g. to designate more transporters or different transporters
in the future.
83. The negative resolution procedure affords
an appropriate level of parliamentary scrutiny.
Clause 94 - Recovery of Costs
Power conferred on: Secretary of State
Power exercisable by: Direction
Parliamentary Procedure: None
84. Subsection (4) of this clause confers a
power upon the Secretary of State to direct GEMA to allow the
gas transporter to take into account any payments it has made
or costs it has incurred towards the provision of extra policing,
in determining the transporters charges for that specified period.
Before issuing such a direction the Secretary of State must consult
GEMA and the designated gas transporter.
85. The power to issue directions after consultation
with GEMA and the designated gas transporter, affords the Secretary
of State the requisite flexibility to frame directions that meet
the needs of the particular circumstances to ensure that the gas
transporter is able to recover their costs.
Part 8: Supplementary provisions
Clause 104: Power to bring provisions of the Act
into force by order
Power conferred on: Secretary of State
Power exercisable by: Order made by
statutory instrument
Parliamentary procedure: None
86. Clause 104(5) is a standard power to bring
the provisions of the Bill (other than those in relation to which
specific provision on commencement is made in clause 104(1) to
(4)) into force by commencement order on such day as the Secretary
of State may appoint. Clause 104(6) provides that the Secretary
of State may make transitional and savings provisions in connection
with commencement.
87. As is usual with commencement orders, they
will not be subject to any parliamentary procedure.
Home Office
June 2008
| 
