Section 16: Investigation: access to prisons, &c.

54.     This section inserts new section 69C into the Northern Ireland Act 1998. It grants the Commission the power to enter places of detention.

55.     Subsection (1) of new section 69C provides that, for the purpose of an investigation under section 69(8) of the Northern Ireland Act 1998, the Commission may authorise a person to access a place of detention in Northern Ireland. Subsection (3) lists the places of detention in Northern Ireland that are covered by this power and subsection (12) grants the Secretary of State the power to amend, by order, this list. Subsection (4) requires the Commission, before exercising the power conferred on it by subsection (1), to conclude that the matter it wishes to investigate, with regard to a specified place of detention, has not already been sufficiently investigated by another person. Subsection (6) allows for a place of detention to apply to the county court to order that the power conferred by subsection (1) may not be used to enter a place of detention; to impose restrictions on the use of this power; and to require the Commission to amend its terms of reference. Subsection (9) allows for the Commission to apply to a county court to apply for an order requiring a person to stop obstructing access to a place of detention. Subsection (10) creates a new criminal offence where a person fails, without reasonable excuse, to comply with an order made under subsection (9).

Section 17: Investigations: terms of reference

56.     This section inserts new section 69D into the Northern Ireland Act 1998 which requires the Commission to write and distribute terms of reference for any investigation during which it wishes to exercise a power conferred on it by new sections 69A(1) or 69C(1).

Section 18: Investigations: duty to report

57.     This section requires the Commission to publish a report which indicates the findings of any investigations conducted under 69(8) of the Northern Ireland Act 1998 (regardless of whether it is exercising the new powers to require the provision of information or evidence or to access places of detention).

Section 19: Recommendations

58.     This section requires the Commission, before the end of a period of two years following commencement of the new powers conferred by this Act, to make recommendations regarding the effectiveness of these powers.

Section 20: Timing

59.     Subsection (1) provides that the Commission may only use the new statutory power to require the provision of information or evidence, or to access places of detention, from 1 August 2007, and as part of investigations into matters arising or situations that exist on or after this date. Subsection (2) provides that the Commission may not require the provision of information recorded before, a document created before, or evidence relating to a time before 1 August 2007. Subsection (4) allows a county court to make an order preventing the Commission from using these new powers to compel evidence, or access places of detention, in contravention of subsection (1) or (2).

Powers

Section 21: Stop and Question

60.     This section provides a member of the armed forces on duty or a constable with the power to stop and question a person for so long as is necessary to establish their identity and movements.

61.     Additionally, members of the armed forces may stop a person to question him or her about a recent explosion or incident endangering life, or about their knowledge of a person killed or injured in a recent explosion or incident. These additional grounds are intended to assist the military to undertake explosive ordnance disposal work, where they may wish to question people about explosions to gain knowledge which will help them ensure the safety of an area. Anyone who fails to stop or answer to the best of their knowledge and ability commits an offence.

Section 22: Arrest

62.     This section allows a member of the armed forces to arrest and detain a person for up to four hours if he or she reasonably suspects they are committing, about to commit or have committed an offence. Premises where that person is or is reasonably suspected to be may be entered and searched for the purposes of an arrest.

63.     The power to detain a person for up to four hours is intended to allow sufficient time for a PSNI officer to attend in order to re-arrest the person and charge them with an offence, if appropriate.

64.     It is envisaged that members of the armed forces will be deployed increasingly rarely, so will not have recourse to these powers on a regular basis. They are not expected to know the law as intimately as a police constable, hence in exercising their powers of arrest they will not be required to provide detailed legal grounds for arrest. Subsection (2) provides that members of the armed forces comply with any laws requiring them to state grounds for arrest by saying that they are making the arrest as a member of Her Majesty's Forces. There is an exception in subsection (5) for laws that only have effect by virtue of the Human Rights Act 1998. The effect of this is that the armed forces satisfy their legal obligations if they comply with subsection (2), except any overarching requirement under the Human Rights Act 1998.

65.     A member of the armed forces can seize and detain for up to four hours anything he or she reasonably suspects is being, has been or is intended to be used in the commission of an offence under section 31 or 32 (offences related to powers of road closure and land seizure). This measure enables the retention of the articles to be used in the commission of those offences until a constable attends who will then decide whether to arrest and charge.

Section 23: Entry

66.     This section provides a power of entry to premises. Premises are defined at section 42 to include vehicles.

67.     This section allows a member of the armed forces or a constable to enter premises if he or she considers it necessary in the course of operations for the preservation of peace or the maintenance of order. Since no warrant is required, this section enables officers on the ground to respond immediately to events as they arise.

68.     A constable may not enter a building unless the conditions in subsection (2) are satisfied. First, there must be written authorisation from an officer of the rank of superintendent or above. If no such authorisation is in place and it is not reasonably practicable to obtain written authorisation, then oral authorisation may be provided by an officer of the rank of Inspector or above. If it is not reasonably practicable to obtain either written or oral authorisation then a constable may enter a building without it.

69.     An authorisation must relate to a specified area within Northern Ireland. All authorisations must be retained in written form and constables who enter premises must make a record of each entry as soon as reasonably practicable. Subsection (6) sets out the information that should be included in such records. Copies of records or authorisations must be given to the owners or occupiers of buildings which have been entered as soon as is reasonably practicable.

Section 24: Search for munitions and transmitters

70.     This gives effect to Schedule 3, detail of which is provided below.

Section 25: Search for unlawfully detained persons

71.     This section allows members of the armed forces to enter and search any premises in order to search for any person whom they reasonably believe has been unlawfully detained and whose life is endangered. No warrant is to be required because time will be critical in these situations.

72.     The section requires the power to search a dwelling to be exercised only if authorised by a commissioned officer. This recognises the special status of people's homes: 'dwelling' is defined at section 42 of the Act.

Section 26: Premises: vehicles, &c.

73.     This section provides that a power to search premises includes a power to stop a vehicle, and where necessary or expedient, cause it to be taken away for searching. References to premises (found in sections 22(3), 23, 25, 28 and 33 and Schedule 3) include vehicles by virtue of section 42. Where records must be made of a search, and that search is of a vehicle, references to the need to record an address will be taken as a reference to the location of the vehicle and its registration number. References to the occupier will be taken to refer to the owner or driver of the vehicle. An offence of failing to stop a vehicle is created.

74.     Subsection (5) enables, when searching a vehicle for munitions and transmitters, the searcher to require a person to remain with the vehicle or to go to any place the vehicle is taken where the searcher reasonably believes it necessary for carrying out the search. Reasonable force may be used to secure compliance with these requirements.

75.     Subsection (6) provides that a requirement to stay with the vehicle, or go to where it is taken, may only last as long as the search, or for four hours (extendable to eight hours in certain circumstances), whichever is shorter. A record must be made and a copy given to the owner or driver of the vehicle.

Section 27: Examination of documents

76.     This section provides that a member of the armed forces may examine documents found in a search under sections 24 to 26 in order to ascertain whether the information contained in them is likely to be useful for terrorism, and if necessary or expedient remove them to another place, for up to 48 hours. A person may not examine a document which he or she has reasonable cause to believe is subject to legal privilege.

77.     It is an offence to obstruct a member of the armed forces in exercising this power.

Section 28: Examination of documents: procedure

78.     This section provides that documents examined using the power at section 27 of the Act may not be photographed or copied. Written records of examinations must be made as soon as reasonably practicable and must include the information listed at subsections (2) and (3). A copy of the records should be supplied to the person who had custody of the document or to the occupier of the building where the document was found.

Section 29: Taking possession of land, &c.

79.     This section provides that the Secretary of State may authorise someone to take possession of land or property and carry out work on it. He may also authorise a person to place buildings and other structures in a state of defence, for instance through fortification. Property may be detained, destroyed or moved by authorised persons, and the Secretary of State may also authorise persons to take actions which interfere with public rights or private rights of property. These powers may only be exercised where it is necessary for the preservation of peace or the maintenance of order. It is intended that such powers will be used during the marching season in Northern Ireland and to allow the rapid creation of 'peace walls' at interfaces where there is community tension. These powers may be exercised at very short notice, hence they are exempt from normal planning processes.

Section 30: Road closure: immediate

80.     A member of the armed forces, or someone authorised by the Secretary of State, may close roads, divert them and restrict and prohibit the use of rights of way or waterways where it is immediately necessary for the preservation of peace or the maintenance of order. These powers are also intended for the management of the marching season in Northern Ireland. For example, roads and public rights of way may be closed at short notice in reaction to events on the ground.

Section 31: Sections 29 and 30: supplementary

81.     This section creates an offence of interfering with works and equipment used to take possession of land or close or divert roads, rights of way, etc, unless there is a reasonable excuse for doing so.

82.     This section also provides that authorisations under sections 29 and 30 may authorise the exercise of all the powers, or only some of them, and that authorisations may relate to a person or to a group of people.

Section 32: Road closure: by order

83.     This section provides the Secretary of State with a power to close, partially close, or divert roads if necessary for the preservation of the peace or the maintenance of order. An offence of interfering with road closure works or equipment is created. Offences of executing bypass works within 200 metres of road closure works, having materials and tools for executing such works within 200 metres and knowingly permitting either of these to take place on land are created. There is a defence of reasonable excuse.

Powers: supplementary

Section 33: Exercise of powers

84.     This section provides that powers under sections 21 to 30 are additional to those already in common law, and should not be taken to affect the Royal prerogative. It also provides for the use of reasonable force by a constable or member of the armed forces in relation to those sections.

85.     Anything seized may be retained for as long as is necessary and a power to search premises conferred by this Act includes the power to search a container. A member of HM Forces not in uniform must produce evidence that he is a member of HM Forces, if he is requested to do so when exercising the powers in sections 21 to 30.

Section 34: Code of practice

86.     This section allows the Secretary of State to make codes of practice in relation to the seizure and retention of property by the police and in relation to the exercise of the powers conferred by the Act. The Secretary of State must publish a draft code of practice, consider any representations about the draft, and if he thinks is appropriate, modify the draft. The draft code must be laid before Parliament and may be brought into force by order. These procedures apply again where the whole or a part of the code is revised and it is re-issued.

Section 35: Code: effect

87.     Failure by a police officer or a member of the armed forces to comply with any part of a code of practice does not make them liable to civil or criminal proceedings, with the exception for armed forces personnel of proceedings under the Army Act 1955, Air Forces Act 1955 and Naval Discipline Act 1957 (but not civil offences under those Acts). A code is admissible as evidence in criminal and civil proceedings, and must be taken into account by a court or tribunal where the code appears relevant.

Section 36: Code: procedure for order

88.     This section sets out the procedure for bringing the code under section 34 into force. The order giving effect to the code must be laid in draft before Parliament and is subject to the affirmative resolution procedure before being made.

89.     An order may be made without a draft having been approved if the Secretary of State believes there is an urgent reason for the code to be brought into force. Any order doing so must contain a declaration to that effect from the Secretary of State and will only last 40 days unless a resolution approving the order is passed by both Houses of Parliament within that time. The end of an order (and the code brought into force by it) will not prejudice any actions previously taken or the making of a new order.

Section 37: Records

90.     This section places a duty on the Chief Constable of the Police Service of Northern Ireland to make arrangements for constables to make records of the exercise of the powers in sections 21 to 26. This is only necessary where it is reasonably practicable for a record to be made, and a record is not already required by legislation.

91.     These records will be used to produce statistics which will inform the independent reviews of this legislation provided for in section 40.

Section 38: Compensation

92.     This section gives effect to Schedule 4, which is described below.

Section 39: Prosecution

93.     With the exclusion of Schedule 4 (which has an offence of obtaining compensation by deception at paragraph 12), the prosecution of any offence created in sections 21 to 32 requires the consent of the DPP(NI). If it appears to the DPP(NI) that the offence is connected with the affairs of another country then the permission of the Attorney General for Northern Ireland is required. This is intended to provide a safeguard against malicious prosecution.

94.     The section contemplates the Advocate General for Northern Ireland taking over the role of the Attorney General on the devolution of policing and justice functions to the Northern Ireland Assembly. The Advocate General will be responsible for various excepted and reserved matters in Northern Ireland.

Section 40: Review

95.     This section provides for the Secretary of State to appoint a reviewer to consider the operation of sections 21 to 32 in this Act and the procedures adopted by the head of the armed forces in Northern Ireland for receiving, investigating and responding to complaints. The Secretary of State may also direct the reviewer to conduct a review into other specified matters, not necessarily related to powers in the Act or military complaints procedures.

96.     Reviews will cover the period of a year, with the first report to be published as soon as is practical after 31 July 2008. The report of each review shall be laid before Parliament by the Secretary of State once he has received it from the reviewer. Provision is made for paying expenses and allowances to the reviewer.

Section 41: Duration

97.     This section allows the Secretary of State to repeal sections 21 to 40 of the Act so that powers may be taken out of force as they become unnecessary. It is envisaged that this would be due to alternative powers becoming available or changes in operational need. Such orders would be subject to the affirmative resolution procedure.

Section 42: Interpretation

98.     The section defines some of the terms used in sections 21 to 38 (and Schedules 3 and 4).

Miscellaneous

Section 43: Accredited community-based restorative justice schemes

99.     Section 43 requires the Secretary of State to maintain a public register of schemes in Northern Ireland that appear to him to be community-based restorative justice schemes and to meet requirements determined and published by him. The requirements must include a requirement about cooperation with the Chief Inspector of Criminal Justice in Northern Ireland. The section also provides that the Chief Inspector may inspect the schemes and shall from time to time make a report to the Secretary of State on inspections carried out by him under the section. The Secretary of State must lay the report before Parliament and arrange for it to be published in accordance with section 49(2) to (4) of the Justice (Northern Ireland) Act 2002. The Secretary of State may remove a scheme from the register if (having considered any report made by the Chief Inspector) he considers that the scheme is not a community-based restorative justice scheme or that it does not meet the requirements.

Section 44: Northern Ireland department with policing and justice functions

100.     Subsections (1) to (4) of section 44 amend section 21A of the Northern Ireland Act 1998 to provide a further model for a department with policing and justice functions, adding to the Assembly's choice. A department set up under this model would be in the charge of a Northern Ireland Minister elected by the Assembly who would be supported by a similarly elected deputy Minister.

101.     Subsection (5) inserts new section 21A(7A) to (7D), which provide for a new Northern Ireland department with policing and justice functions to be established under this model by Order in Council. This power may only be exercised, however, if the Secretary of State believes that there is no reasonable prospect that the Assembly will pass an Act establishing a department with policing and justice functions. The power may only be used once.

102.     Subsection (6) of section 44 inserts new section 21B into the Northern Ireland Act 1998. New section 21B is an enabling power relating to this new model for a policing and justice department. It is available whether the new department is established by Act of the Assembly, or by Order in Council. It is designed to allow Ministers designate to be elected in advance of their taking up office on the devolution of policing and justice. If it was used, the Minister designate and deputy Minister designate would take up office after devolution of policing and justice, provided they took the pledge of office. If one or the other failed to do so, there would be a new election for one or both posts. The intention is to facilitate preparations for the new department, by enabling the new Ministerial team to begin operating in "shadow" form through these transitional arrangements.

103.     Subsection (7) inserts new section 21C into the Northern Ireland Act 1998. It requires an Assembly committee to review the operation of the new Ministerial arrangements provided for by this model, and to report to the Assembly and Executive Committee no later than two years and ten months after devolved policing and justice functions are transferred to the department. The report must include a recommendation as to whether the deputy Ministerial office should be retained.

104.     New section 21C also contains provision about the abolition of the deputy Ministerial office. If the Assembly resolve that the post should be abolished within the first three years of devolution, the Secretary of State must make an order to abolish the post on, or as soon as reasonably practicable after, the date specified by the Assembly. However if the Assembly resolve before the end of those three years that the deputy Ministerial office should be retained for a further period, the Secretary of State will not make an order to abolish the post unless and until that period, and any extension specified by the Assembly, have expired. If the Assembly does not resolve within the three years following devolution that the deputy Ministerial office should be abolished or retained, the Secretary of State must make an order abolishing the office as soon as reasonably practicable after the end of the three years. An order abolishing the deputy Ministerial office must be made by statutory instrument, but is not subject to any Parliamentary procedure.

105.     An Assembly resolution to abolish or retain the deputy Ministerial office requires cross community support on a 50:50:50 basis (i.e. with the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting).

106.     Subsection (8) of section 44 gives effect to Schedule 5 to the Act.

Section 45: Chief Inspector of Criminal Justice

107.     This section inserts the Northern Ireland Court Service, the Northern Ireland Legal Services Commission and the Life Sentence Review Commissioners into the list of organisations which the Chief Inspector of Criminal Justice in Northern Ireland shall inspect under his powers which are contained in Part 3 of the Justice (Northern Ireland) Act 2002. Subsection (6) inserts new subsection (6A) into section 47 of that Act and will exclude from inspection any judge or other person making judicial decisions or exercising judicial discretion, so that the Court Service is only subject to inspection in respect of court administration. The section also provides that the Lord Chancellor is included in the process of consultation on the Chief Inspector's work programme (subsection (4)) and in receiving any completed reports in respect of the Court Service and the Legal Services Commission (subsection (7)).

Section 46: Free legal aid in magistrates' courts

108.     This section enables the magistrates' court to make a restricted certificate for legal aid that covers only specified proceedings or aspects of proceedings. At the moment, the magistrates' court can only make a certificate that covers the whole of proceedings, even if legal aid is only required for one stage (e.g. a bail hearing).

Section 47: Altering title of resident magistrate

109.     The Report of the Northern Ireland Criminal Justice Review recommended restyling Northern Ireland resident magistrates as district judges (magistrates' courts) in order to demonstrate publicly that the magistracy is an integral part of the judiciary.

110.     Section 102 of the Courts Act 2003 provides the Lord Chancellor with a general power to alter, by order, existing judicial titles in relation to the Supreme Court and the county courts in Northern Ireland following consultation with the Lord Chief Justice of Northern Ireland. Section 47 amends section 102 of the 2003 Act so as to enable the Lord Chancellor to use this power to alter the titles of resident magistrate, presiding resident magistrate and deputy resident magistrate.

Section 48: Private Security Industry

111.     This section sets out the pattern of transitional arrangements between the repeal of Schedule 13 of the Terrorism Act 2000, the introduction of Schedule 6 (interim arrangements) and the eventual regulation by the SIA as established by the 2001 Act. This section also modifies the 2001 Act and gives it UK-wide effect by making it extend to Northern Ireland as well as England, Wales and Scotland.

112.     Following the repeal of Schedule 13 on 31 July 2007, Schedule 6 of this Act will have effect on 1 August 2007. Because the SIA cannot commence licensing in Northern Ireland immediately, Schedule 6 establishes a form of regulation for the transitional period. Once the SIA are ready to commence licensing in Northern Ireland, the relevant provisions of the 2001 Act will be brought into effect in Northern Ireland by statutory instrument in accordance with subsection (4). That order will repeal Schedule 6, thereby ending the interim scheme of regulation.

113.     The 2001 Act sets up a scheme of statutory regulation of the private security industry. It establishes the SIA and defines its functions. These are:

• to licence individuals and to approve companies;

• to keep under general review the private security industry and the operation of the legislative framework;

• to monitor the activities and effectiveness of those working in the industry;

• to conduct inspections;

• to set and approve standards of conduct, training and supervision within the industry; and

• to make recommendations to improve standards.

114.     The 2001 Act regime also specifies a range of activities which are licensable by the SIA, and details offences of providing unlicensed security services. It defines the various licensing functions of the SIA such as licensing criteria, licence conditions and appeals in licensing matters.

115.     The current designated sectors or activities that must be covered by a licence are as follows:

• Door supervisors - both in house and supplied under a contract for service;

• Vehicle immobilisers on private land - both in house and supplied under a contract for service;

• Security guards supplied under a contract for services;

• Key holders supplied under a contract for services;

• Close protection operatives supplied under a contract for services;

• Cash and valuables in transit operatives supplied under a contract for services; and

• Public space surveillance CCTV operatives supplied under a contract for services.

116.     This Act enables all of these sectors and activities to be regulated in Northern Ireland by the SIA.

117.     The SIA take various criteria into account when deciding whether to grant a licence or not. They ensure that applicants are properly trained in relevant areas, as well as checking for criminal convictions. The suitability of the applicant to work in the private security industry is assessed and they are granted or refused a licence according to the defined criteria.

118.     A full explanation of the operation of the SIA and the 2001 Act is available in the Explanatory Notes prepared by the Home Office to be read in conjunction with the 2001 Act.