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Session 2001- 02|
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|Anti-Terrorism, Crime And Security Bill|
These notes refer to the Anti-terrorism, Crime and Security Bill
ANTI-TERRORISM, CRIME AND SECURITY BILL
1. These Explanatory Notes relate to the Anti-Terrorism, Crime and Security Bill as introduced into the House of Commons on 12 November 2001. They have been prepared by the Home Office, Her Majesty's Treasury, Department of Trade and Industry, Ministry of Defence, Department for Transport, Local Government and the Regions and the Foreign and Commonwealth 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. So where a clause or part of a clause does not seem to require any explanation, none is given.
SUMMARY AND BACKGROUND
3. The purpose of this bill is to strengthen legislation in a number of areas to ensure that the Government, in the light of the new situation arising from the September 11 terrorist attacks on New York and Washington, have the necessary powers to counter the increased threat to the UK. The measures are intended to:
4. The bill is in 14 Parts.
5. Part 1 and Schedules 1 and 2 of the Bill contain provisions to prevent terrorists from gaining access to their money. They complement provisions in the new Proceeds of Crime Bill and ensure that investigative and freezing powers are available wherever funds could be used to finance terrorism.
6. The introduction of account monitoring orders will enable the police to require financial institutions to provide information on accounts for up to 90 days. The existing requirement to report knowledge or suspicion of terrorist financing will be strengthened, for the regulated sector, so that it will be an offence not to report where there were "reasonable grounds" for suspicion.
7. The Bill gives law enforcement agencies the power to seize terrorist cash anywhere in the UK, and the power to freeze assets at the start of an investigation, rather than when the person is about to be charged, reducing the risk that funds will be used or moved before they can be frozen.
8. Part 2 and Schedule 3 of the Bill contain measures to update the Emergency Laws (Re-enactments and Repeals) Act 1964 to allow the UK to take swifter, more targeted action to freeze the assets of overseas governments or residents. The Bill will widen the "trigger" so that the Government can counter threats to any part of the UK economy or threats to the life or property of a UK resident or national.
Disclosure of information
9. Part 3 and schedule 4 of the Bill create a new gateway giving HM Customs and Excise and the Inland Revenue a general power to disclose information held by them for law enforcement purposes and to the intelligence services for their purposes.
10. The Bill also clarifies and extends a number of existing gateways for disclosure of information from public authorities to agencies involved in criminal investigations and proceedings. The gateways will ensure that public authorities can disclose certain types of otherwise confidential information where this is necessary for the purposes of fighting terrorism and other crimes.
Immigration and asylum
11. Part 4, clauses 21 to 32 ("Suspected international terrorists") allow the detention of those the Secretary of State has certified as threats to national security and who are suspected of being international terrorists where their removal is not possible at the present time. Such detention would be subject to regular independent review by the Special Immigration Appeals Commission. These provisions change the current law, which allows detention with a view to removal only where removal is a realistic option within a reasonable period of time.
12. It is also intended to speed up the asylum process for suspected terrorists. The Bill will exclude substantive consideration of asylum claims where the Secretary of State certifies that their removal would be conducive to the public good. This would not be in breach of the 1951 Refugee Convention because they are excluded from the protection of that Convention.
13. It will also remove judicial review of decisions of the SIAC in relation to the above two measures. SIAC is the body that deals with suspected terrorists' appeals against immigration decisions: it has three members hearing an appeal, one of whom has held high judicial office and another of whom has been an immigration judge. There will remain an avenue of appeal from SIAC to the Court of Appeal on a point of law.
14. The Bill will also allow for the retention, for 10 years, of fingerprints taken in asylum and certain immigration cases. This will help prevent applicants who have had their case resolved from re-applying and creating multiple identities, which can be used in the perpetration of terrorism or other serious crimes.
Race and religion
15. Part 5 of the Bill extends the racially aggravated offences of assault, public order, criminal damage and harassment to cover attacks aggravated by religious hostility. They extend the provisions concerning incitement to racial hatred to cover religious hatred. They include cases where the hatred is directed against groups abroad, and increase the maximum penalty for such offences from 2 to 7 years imprisonment.
16. To be prosecuted for stirring up religious hatred, a perpetrator must use threatening, abusive or insulting words or behaviour intended or likely to stir up hatred against a group of people because of their religious belief (or lack of religious belief)
Weapons of mass destruction
17. Part 6 of the Bill will strengthen current legislation controlling chemical, nuclear and biological weapons.
Control of pathogens and toxins
18. The provisions set out in Part 7 (and schedules 5 and 6) will place an obligation on managers of laboratories and other premises holding stocks of specified disease-causing micro-organisms and toxins to notify their holdings, and to comply with any reasonable security requirements which the police may impose.
19. It will also require managers of laboratories and other premises, on request, to furnish the police with details of people with access to the dangerous substances held there. The Secretary of State is given power to direct that a named individual must not be allowed access to such disease strains or the premises in which they are held.
20. The provisions in Part 8 reinforce and update the regulatory regime for security in the nuclear industry.
21. They also extend the jurisdiction for the United Kingdom Atomic Energy Authority Constabulary (AEAC) so that their constables can protect nuclear sites and nuclear material more effectively. They will be able to be deployed in all civil licensed nuclear sites, rather than at present only on premises of specified nuclear operators, and within five kilometres of such sites.
22. They also strengthen sanctions against the unauthorised disclosure of sensitive information on the security of nuclear sites, nuclear material and proliferation-sensitive nuclear technology.
23. Part 9 improves enforcement of aviation security requirements and the ability of the police to deal with potentially dangerous situations at airports and on board aircraft. It includes provisions in respect of the removal of Unauthorised Persons from Airport Restricted Zones and from Aircraft.
24. At present the Aviation Security Act 1982 makes it an offence for an unauthorised person to enter an airport's Restricted Zone, or an aircraft, and to remain there after being asked to leave. However, there is no specific power to remove someone who refuses to leave. The Bill gives this power of removal. It will also bring the aviation industry into line with the maritime and Channel Tunnel industries, where equivalent powers exist under the Aviation and Maritime Security Act 1990 (Section 39, as amended by the Merchant Shipping and Maritime Security Act 1997) and under the Channel Tunnel Security Order (Article 31(4)) respectively.
25. In a small group of cases detainees can fail to co-operate with police identification procedures (e.g. fingerprinting). Part 10 contains powers to give the police and customs services the authority to demand the removal of any item which they believe is being worn wholly or mainly for the purpose of concealing identity, such as facial covering or gloves.
26. Clauses 97 to 100 and Schedule 7 will allow the British Transport Police (BTP) to act outside their railways jurisdiction when asked to assist by a constable from the local police force, the MDP or the UKAEA constabulary or Ministry of Defence Police officer, and in an emergency. The changes will also give BTP officers certain powers available to local police officers, including powers under the Terrorism Act 2000 and powers to enter into mutual aid agreements with other forces.
27. Similarly, changes proposed for the Ministry of Defence Police (MDP) will allow them to act outside MoD land when asked by a constable from the local police force, the BTP or the UKAEA constabulary or in relation to a specific incident, and in an emergency. The changes will also allow MDP to provide assistance, on request, to other forces, and extend to them certain powers in the Terrorism Act 2000
Retention of communications data
28. Part 11 contains provisions to allow communications service providers to retain data about their customers' communications for access by law enforcement agencies and for national security purposes and to enable a code of practice to be drawn up in consultation with industry.
29. The code of practice will allow communications service providers to retain data about their customers' communications for access by law enforcement agencies. Currently communications service providers are obliged to erase this data when they no longer need it for billing purposes.
30. These provisions fall within the Regulation of Investigatory Powers Act 2000 which sets out the limits on the purposes for which the law enforcement, security and intelligence agencies may request access to data relating to specific communications.
31. There is also a reserve power to review the arrangements and issue directions if necessary. If still needed, it must be reviewed by an affirmative order every two years. As soon as the power is exercised, there is no need for further review.
Bribery and corruption
32. Part 12 brings in provisions to strengthen the law on international corruption. The clauses put beyond doubt that the law of bribery applies to acts involving foreign public officials, Ministers, MPs and judges. They give courts jurisdiction over crimes of bribery committed by UK nationals and UK companies overseas. There is also a technical provision, to ensure that the existing presumption of corruption in the 1916 Act, which it is intended to abolish, does not apply any more widely as a result of these new provisions
33. Measures on police and criminal judicial co-operation agreed by the JHA Council of the EU (third pillar) can currently only be implemented in the UK by primary legislation. This clause would enable them to be implemented by secondary legislation by the affirmative resolution procedure. Measures agreed on European Community matters (for example the environment or the internal market) can already be implemented by secondary legislation.
34. Part 13 also contains measures relating to the use or threatened use of noxious substances, (including biological agents or toxins, toxic chemicals or radioactive material) for terrorist and other similar purposes.
35. It also introduces a new offence of hoaxing involving apparently noxious substances
36. The proposals, amending the Intelligence Services Act 1994, introduce greater flexibility for intelligence gathering outside the British Islands and adapt the scope and definition of serious crime. They achieve this through extending the powers of GCHQ.
37. The Bill reintroduces the offence of a general failure to disclose information about terrorism. It was previously contained within in the Prevention of Terrorism Act (PTA) in relation to Northern Ireland. The new provision will extend the provision to domestic and international terrorism. The Bill will also introduce a definition of a radioactive weapon.
38. The bill also amends schedule 7 of the Terrorism Act 2000 to include internal journeys. It will equalise provisions to stop, detain and search people who journey internally with those travelling to and from the UK and Common Travel Area (CTA).
39. It will also give a power to require carriers to supply information about passengers and freight to enforcement agencies and allow sharing between the agencies. Details of the information that carriers will be required to provide is to be decided in secondary legislation.
40. Part 14 provides for consequential and supplementary provision to be made by secondary legislation, and makes provision for commencement and for the extent and short title of the bill.
COMMENTARY ON CLAUSES
PART 1: TERRORIST PROPERTY
Clause 1 Forfeiture of Terrorist cash
41. Clause 1 introduces Schedule 1, which expands and replaces the current provisions in the Terrorism Act 2000 for the seizure and forfeiture of terrorist cash at the borders in civil proceedings.
42. Terrorist cash is cash which is intended to be used for the purposes of terrorism, cash which consists of the resources of a proscribed organisation or cash which is or represents property obtained through terrorism. "Terrorism" and "proscribed organisation" are defined in paragraph 19 of Schedule 1. Property obtained through terrorism is defined as property obtained by or in return for acts of terrorism or by or in return for acts carried out for the purposes of terrorism (paragraph 11(1) of Schedule 1).
43. Subsection (2) makes it clear that the powers of seizure and forfeiture are exercisable whether or not any criminal proceedings have been brought for an offence in connection with the cash.
44. Schedule 14 to the Terrorism Act 2000 (as amended by clause 2 to the Bill) provides for a code of practice to be made in relation to the operation of powers under Schedule 1 to this Bill. The code is subject to a consultation process and to the affirmative resolution procedure. Subsection (5) of clause 1 provides that, in this instance, the modifications to the existing code may be made in the order commencing Schedule 1.
Clause 2 Amendments relating to section 1
45. Subsections (1) to (3) amend the Access to Justice Act 1999 so that Community Legal Service funding is available for proceedings under Schedule 1.
46. Subsections(4) to (7) amend Schedule 14 to the Terrorism Act 2000 so that it applies to Schedule 1 to this Bill.
47. Subsection (8) amends the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 so that legal aid is available for proceedings under Schedule 1.
Clause 3 Terrorist property: amendments
48. Clause 3 introduces Schedule 2 to this Bill.
PART 2: FREEZING ORDERS
49. Part 2 contains measures to allow the United Kingdom to take action to freeze the assets of overseas persons or governments who are threatening the economic interests of the United Kingdom or the life or property of United Kingdom residents.
50. These provisions will allow the United Kingdom to impose sanctions in cases of urgency, where neither the United Nations nor the European Union has yet agreed a course of action, or in cases where it is appropriate for the United Kingdom to impose sanctions unilaterally.
51. The provisions replace section 2 of the Emergency Laws (Re-enactments and Repeals) Act 1964. Under that section, the United Kingdom can freeze the assets of an overseas government and overseas residents if the country or the persons in question is (or are) acting to the detriment of the United Kingdom economy. Under the provisions in the Bill, the Treasury will be able to freeze the assets of overseas governments or residents when there is a threat to the United Kingdom economy or to the life or property of United Kingdom nationals or residents.
Clause 4 Power to make order
52. This clause allows the Treasury to make a freezing order if two conditions are satisfied. First, the Treasury must reasonably believe that action threatening the United Kingdom's economy (or part of it) or the life or property of United Kingdom nationals or residents has taken place or is likely to take place. Secondly, the persons involved in the action must be resident outside the United Kingdom or be an overseas government.
Clause 5 Contents of order
53. A freezing order prohibits all persons in the United Kingdom, and all persons elsewhere who are United Kingdom nationals, bodies incorporated in the United Kingdom or Scottish partnerships from making funds available to or for the benefit of a person or persons specified in the order. The order may specify the persons taking the action referred to in clause 4 and any person who has provided or is likely to provide assistance (directly or indirectly) to those persons. The specification may be by name or by description of persons set out in the order. Where a person is specified by description, the description must be such that a reasonable person would know whether he fell within it.
Clause 6 Contents: further provisions
54. This clause introduces Schedule 3, which makes further provision about the contents of freezing orders.
Clause 7 Review of order
55. This clause requires the Treasury to keep under review whether any freezing order should be kept in force or amended.
Clause 8 Duration of order
56. This clause specifies that a freezing order lapses two years after it was made.
Clause 9 Nationals and residents
57. This clause sets out the persons who are nationals or residents of the United Kingdom for the purposes of this Part. It also sets out who is a resident of a country outside the United Kingdom for the purposes of this Part.
Orders: procedure etc.
Clause 10 Procedure for making freezing orders
58. A freezing order must be made by statutory instrument. The order must be laid before Parliament and ceases to have effect after 28 days unless it is approved by each House of Parliament.
Clause11 Procedure for making certain amending orders
59. This clause applies where a freezing order has already been made. Where a further order specifies additional persons of the same description as those specified in the original order, or amends the order to specify fewer persons, it is instead subject to the negative resolution procedure.
Clause 12 Procedure for revoking orders
60. This clause provides that an order revoking a freezing order (without-re-enacting it) is subject to the negative resolution procedure.
Clause 13 De-hybridisation
61. This clause provides that an order that would otherwise be treated as hybrid under Parliament's standing orders is not to be subject to the special procedure for hybrid instruments.
Clause 14 Orders: supplementary
62. This clause provides that a power under the Part to make a freezing order or an order amending or revoking a freezing order may be exercised so as to make different provision for different purposes. A freezing order or an order amending or revoking one may also include supplementary, incidental, savings or transitional provisions. Nothing in this Part affects the generality of this power.
Clause 15 The Crown
63. Freezing orders bind the Crown and Crown servants, but the Crown is not criminally liable for breaches of freezing orders. The orders will not bind the Queen in Her personal capacity.
Clause 16 Repeals
64. This clause repeals the Treasury's existing power to freeze assets under section 2 of the Emergency Laws (Re-enactments and Repeals) Act 1964. The repeal of section 2 does not affect any references to that provision in other subordinate legislation.
PART 3: DISCLOSURE OF INFORMATION
Clause 17 Extension of existing disclosure powers
65. This clause clarifies and extends a number of information disclosure provisions available to individuals working in public authorities. The powers are listed in schedule 4. It permits disclosure to assist any criminal investigation or criminal proceedings being carried out in the UK or abroad or to facilitate whether or not such investigations or proceedings should begin or end. The clause does not limit any power to disclose that exists apart from this clause.
Clause 18 Restriction on disclosure of information for overseas purposes
66. This clause enables the Secretary of State to prohibit the disclosure of information for the purposes of overseas criminal investigations or criminal proceedings that would otherwise be permitted by clause 11 or without clause 11 by the provisions modified by that clause. This power may be exercised where it appears to him that the overseas investigation or proceeding relates to a matter in respect of which it would be more appropriate for any jurisdiction or investigation to be exercised or carried out by the authorities of the United Kingdom or a third country.
67. Any person who knowingly makes a disclosure prohibited by the Secretary of State pursuant to clause 12 will be guilty of an offence. The person will be liable on conviction on indictment to imprisonment for a term of up to two years or a fine or to both, and on summary conviction to imprisonment for a term of up to three months or a fine of up to the statutory maximum (which is currently set at £5000).
Clause 19 Disclosure of information held by revenue departments
68. This clause applies to information held by or for the Commissioners of the Inland Revenue and Customs and Excise Departments. The clause provides that no obligation of secrecy, excepting the Data Protection Act 1998 requirements, prevents the voluntary disclosure of information on the authority of the relevant Commissioners made for the following purposes: to assist any criminal investigation or criminal proceedings being carried out in the UK or abroad or to facilitate whether or not such investigations or proceedings should begin or end. In addition, the clause allows for disclosure to the intelligence services (the Security Service, the Secret Intelligence Service and GCHQ) in support of their functions these functions include the protection of national security and the prevention and detection of serious crime.
69. Disclosed information cannot be further disclosed by the recipient except for the purposes permitted for original disclosures and with the consent of the relevant Commissioners. Bodies who receive information from Customs and the Inland Revenue may not further disclose that information to the intelligence services except for criminal investigations or proceedings. The clause does not limit any power to disclose that exists apart from this clause.
PART 4: IMMIGRATION AND ASYLUM
70. This Part contains measures concerned with the capacity of the UK's immigration and asylum procedures to deal with people whose presence in the UK is not conducive to the public good.
71. The first two measures - extended powers to detain foreign nationals who are suspected international terrorists (clauses 21 to 32) and non-consideration of the substance of an asylum claim made by certain people whose removal from the UK is conducive to the public good (clauses 33 and 34) - are fairly narrow in their focus. They apply only to those cases where any appeal against a decision taken by the Secretary of State lies with the Special Immigration Appeals Commission (SIAC). SIAC is an independent judicial body set up by the Special Immigration Appeals Commission Act 1997 to hear appeals which involve a public interest provision. A "public interest provision" is a provision by which a person's presence in the UK is considered not to be conducive to the public good for reasons of national security, or the relations between the UK and any other country, or for other reasons of a political nature.
72. The third measure allows the Secretary of State to retain fingerprints taken in asylum and certain immigration cases which were previously destroyed once the case was decided.
|© Parliamentary copyright 2001||Prepared: 13 November 2001|