2001 Chapter 24

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ANTI-TERRORISM, CRIME AND SECURITY ACT 2001

EXPLANATORY NOTES

1.     These Explanatory Notes relate to the Anti-terrorism, Crime and Security Act 2001 which received Royal Assent on 14 December 2001. They have been prepared by the Home Office, Her Majesty's Treasury, the Department of Trade and Industry, the Ministry of Defence, the Department for Transport, Local Government and the Regions and the Foreign and Commonwealth Office, in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation, none is given.

SUMMARY AND BACKGROUND

3.     The purpose of this Act is to build on 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 threat to the UK. The measures are intended to:

• Cut off terrorist funding

• Ensure that government departments and agencies can collect and share information required for countering the terrorist threat

• Streamline relevant immigration procedures

• Ensure the security of the nuclear and aviation industries

• Improve the security of dangerous substances that may be targeted or used by terrorists

• Extend police powers available to relevant forces

• Ensure that we can meet our European obligations in the area of police and judicial co-operation and our international obligations to counter bribery and corruption

• Update parts of the UK's anti-terrorist powers

OVERVIEW

4.     The Act is in 14 Parts.

Terrorist property

5.     Part 1 and Schedules 1 and 2 of the Act 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 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 has been strengthened, for the regulated sector, so that it is an offence not to report where there were "reasonable grounds" for suspicion.

7.     The Act 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

Freezing orders

8.     Part 2 creates a new power which enables the Treasury to freeze the assets of overseas governments or residents who have taken, or are likely to take, action to the detriment of the UK's economy or action constituting a threat to the life or property of a national or resident of the UK. The Treasury's previous power to freeze assets, contained in the 1964 Act, is repealed.

Disclosure of information

9.     Part 3 and Schedule 4 of the Act deal with information disclosure provisions for public authorities.

10.     Section 17 clarifies and extends a number of existing provisions for disclosure of information from public authorities to agencies involved in criminal investigations and proceedings. The gateways ensure that public authorities can disclose information which is subject to a statutory restriction on disclosure for the purposes of a criminal investigation or criminal proceedings.

11.     Section 19 creates 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.

Immigration and asylum

12.     Part 4, sections 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 (SIAC). 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. The detention powers will cease to have effect on 10 November 2006.

13.     It is also intended to speed up the asylum process for suspected terrorists. The Act excludes 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.

14.     It also prevents judicial review of decisions of the SIAC, which is the body that deals with suspected terrorists' appeals against immigration decisions: it has three members hearing an appeal, one of whom holds or has held high judicial office and another of whom is or has been an immigration judge. The Act makes SIAC a superior court of record. There remains an avenue of appeal from SIAC to the Court of Appeal on a point of law.

15.     The Act allows for the retention, for 10 years, of fingerprints taken in asylum and certain immigration cases. This helps 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

16.     Part 5 of the Act extends the racially aggravated offences conatinined in the Crime and Disorder Act 1998 to cover offences aggravated by religious hostility. It amends the provisions in the Public Order Act 1986 concerning incitement to racial hatred to include cases where the hatred is directed against groups abroad, and increases the maximum penalty for such offences from 2 to 7 years imprisonment.

Weapons of mass destruction

17.     Part 6 of the Act strengthens 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) places 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 also requires 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.

Nuclear Security

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 are now 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.

Aviation security

23.     Part 9 improves enforcement of aviation security requirements and the ability of the police, Government Inspectors, and the aviation industry, to handle potentially dangerous situations at airports and on board aircraft. It includes provisions in respect of dealing with unauthorised persons in airports and on aircraft; enables the detention of aircraft if there are serious security concerns; introduces enabling legislation for the Secretary of State for Transport, Local Government & the Regions to "list" providers of aviation security services; and introduces a new offence of falsely claiming to be a security approved air cargo agent.

24.     Part 9 amends existing legislation, in particular the Aviation Security Act 1982, the Civil Aviation Act 1982 and the Police and Criminal Evidence Act 1984.

Police powers

25.     In a small group of cases detainees in police custody will refuse to co-operate with the police as to their identity. Part 10 contains powers which give the police the authority to search for identifying marks, to take fingerprints of suspects solely for the purpose of identifying them and to photograph suspects and where necessary to demand the removal of facial coverings or face paint in order to take a positive photograph. It also strengthens police powers to require the removal of face coverings worn for the purpose of concealing identity and to seize any such items.

26.     Sections 98 to 101 and Schedule 7 allow the British Transport Police ("BTP") to act outside their railways jurisdiction when asked to assist with a specific incident by a constable from the local police force, the UKAEA constabulary or a Ministry of Defence Police ("MDP") officer, and in an emergency. The changes 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, the MDP is now able to act outside Ministry of Defence land when asked to assist with a specific incident by a constable from the local police force, the BTP or the UKAEA constabulary, and in an emergency. The changes 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 facilitating the retention by communications providers of data about their customers' communications for national security purposes so that they can be accessed by the security, intelligence and law enforcement agencies by means of a statutory code of practice to be drawn up in consultation with industry and the Information Commissioner and approved by Parliament by affirmative resolution procedure.

29.     The Act ensures that data which communications service providers would otherwise be obliged to erase when it is no longer needed for billing purposes may be retained if it is necessary to safeguard national security or to prevent, detect or prosecute crimes related to national security.

30.     The Regulation of Investigatory Powers Act 2000 (Part 1, Chapter 2) sets out limits on the purposes for which the security, intelligence and law enforcement agencies may request access to data relating to specific communications. These provisions complement the 2000 Act by clarifying the lawful basis for the retention of data by communications service providers. They do not affect the access framework and safeguards set out in RIPA.

31.     There is also a reserve power to review the voluntary arrangements under the code of practice and issue directions if necessary. If still needed, it must be renewed by an affirmative order every two years, unless the power is exercised.

Bribery and corruption

32.     Part 12 brings in provisions to strengthen the law on international corruption. The sections put beyond doubt that the law of bribery applies to acts involving officials of foreign public bodies, Ministers, MPs and judges; and to 'agents' (within the meaning of the 1906 Act) of foreign 'principals'. They give courts jurisdiction over crimes of bribery committed by UK nationals and UK incorporated bodies overseas. There is also a technical provision, to ensure that the existing presumption of corruption in the Prevention of Corruption Act 1916, which it is intended to abolish, does not apply any more widely as a result of these new provisions.

Miscellaneous

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 section will enable specified measures, that are closely related to the EU's anti-terrorism action plan, 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 introduces a new offence of hoaxing involving apparently noxious substances

36.     Provisions 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 Act reintroduces the offence of a general failure to disclose information about terrorism. Such an offence in relation to Northern Ireland was previously contained in the Prevention of Terrorism (Temporary Provisions) Act 1989. The new provision will extend the provision to domestic and international terrorism.

38.     The Act amends Schedule 7 to the Terrorism Act 2000 to include internal journeys. It equalises provisions to stop, detain and search people who journey internally with those travelling to and from the UK and Common Travel Area.

39.     It gives 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.

Supplemental

40.     Part 14 includes provision for review of the Act, for consequential and supplementary provision to be made by secondary legislation, and for the commencement and extent of the Act.

COMMENTARY ON SECTIONS

PART 1: TERRORIST PROPERTY

Section 1 Forfeiture of Terrorist cash

41.     Section 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 section 2 to the Act) provides for a code of practice to be made in relation to the operation of powers under Schedule 1 to this Act. The code is subject to a consultation process and to the affirmative resolution procedure. Subsection (5) of section 1 provides that, in this instance, the modifications to the existing code may be made in the order commencing Schedule 1.

Section 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 Act.

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.

Section 3 Terrorist property: amendments

48.     Section 3 introduces Schedule 2 to this Act.

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 nationals or residents.

50.      These provisions 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.

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 this Act, the Treasury is able to freeze the assets of overseas governments or residents, including of groups or individuals, when there is a threat to the United Kingdom economy or to the life or property of United Kingdom nationals or residents.

Orders

Section 4 Power to make order

51.     This section 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.

Section 5 Contents of order

52.     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 section 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.

Section 6 Contents: further provisions

This section introduces Schedule 3, which makes further provision about the contents of freezing orders.

Section 7 Review of order

53.     This section requires the Treasury to keep under review whether any freezing order should be kept in force or amended.

Section 8 Duration of order

54.     This section specifies that a freezing order lapses two years after it was made.

Interpretation

Section 9 Nationals and residents

55.     This section 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.

Section 10 Procedure for making freezing orders

56.     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.

Section 11 Procedure for making certain amending orders

57.     This section 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.

Section 12 Procedure for revoking orders

58.     This section provides that an order revoking a freezing order (without-re-enacting it) is subject to the negative resolution procedure.

Section 13 De-hybridisation

59.     This section 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.

Section 14 Orders: supplementary

60.     This section 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, saving or transitional provisions. Nothing in this Part affects the generality of this power.

Miscellaneous

Section 15 The Crown

61.     Freezing orders bind the Crown and Crown servants, but the Crown is not criminally liable for breaches of freezing orders. The orders do not bind the Queen in Her personal capacity.

Section 16 Repeals

62.     This section 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

Section 17 Extension of existing disclosure powers

63.     This section clarifies and extends a number of information disclosure provisions available to 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 determinations of whether or not such investigations or proceedings should begin or end. The section does not limit any power to disclose that exists apart from this section. In determining whether they may disclose information, public authorities must ensure that their disclosure is proportionate to that which is intended by disclosing.

Section 18 Restriction on disclosure of information for overseas purposes

64.     This section 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 section 17 or without section 17 by the provisions modified by that section. 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.

65.     Any person who knowingly makes a disclosure prohibited by the Secretary of State pursuant to section 18 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).

Section 19 Disclosure of information held by revenue departments

66.     This section applies to information held by or for the Commissioners of the Inland Revenue and Customs and Excise Departments. The section 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 section 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.

67.     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 the purposes of criminal investigations or proceedings. The section does not limit any power to disclose that exists apart from this section. In determining whether they may disclose information, public authorities must ensure that their disclosure is proportionate to that which is intended by disclosing.