Terrorism Prevention and Investigation Measures Bill (HL Bill 111)

Terrorism Prevention and Investigation Measures BillPage 10

Appeals and court proceedings

16 Appeals

(1) If the Secretary of State extends or revives a TPIM notice (see section 5(2) or
13(6))—

(a) 5the individual to whom the TPIM notice relates may appeal to the court
against the extension or revival; and

(b) the function of the court on such an appeal is to review the Secretary of
State’s decisions that conditions A, C and D were met and continue to
be met.

(2) 10If the Secretary of State varies measures specified in a TPIM notice (and the
variation does not consist of the relaxation or removal of measures) without the
consent of the individual to whom the TPIM notice relates (see section
12(1)(c))—

(a) the individual may appeal to the court against the variation; and

(b) 15the function of the court on such an appeal is to review the Secretary of
State’s decisions that the variation was necessary, and continues to be
necessary, for purposes connected with preventing or restricting
involvement by the individual in terrorism-related activity.

(3) If the individual to whom a TPIM notice relates makes an application to the
20Secretary of State for the variation of measures specified in the TPIM notice (see
section 12(2))—

(a) the individual may appeal to the court against any decision by the
Secretary of State on the application; and

(b) the function of the court on such an appeal is to review the Secretary of
25State’s decisions that the measures to which the application relates
were necessary, and continue to be necessary, for purposes connected
with preventing or restricting involvement by the individual in
terrorism-related activity.

(4) If the individual to whom a TPIM notice relates makes an application to the
30Secretary of State for the revocation of the TPIM notice (see section 13(3))—

(a) the individual may appeal to the court against any decision by the
Secretary of State on the application; and

(b) the function of the court on such an appeal is to review the Secretary of
State’s decisions that conditions A, C and D were met and continue to
35be met.

(5) If the individual to whom a TPIM notice relates makes an application to the
Secretary of State for permission—

(a) the individual may appeal to the court against any decision by the
Secretary of State on the application (including any decision about
40conditions to which permission is subject); and

(b) the function of the court on such an appeal is to review the decision.

(6) In determining the matters mentioned in subsections (1) to (5) the court must
apply the principles applicable on an application for judicial review.

(7) The only powers of the court on an appeal under this section are—

(a) 45power to quash the extension or revival of the TPIM notice;

(b) power to quash measures specified in the TPIM notice;

(c) power to give directions to the Secretary of State for, or in relation to,—

Terrorism Prevention and Investigation Measures BillPage 11

(i) the revocation of the TPIM notice, or

(ii) the variation of measures the TPIM notice specifies;

(d) power to give directions to the Secretary of State in relation to
permission or conditions to which permission is subject.

(8) 5If the court does not exercise any of its powers under subsection (7), it must
dismiss the appeal.

(9) In this section “permission” means permission for the purposes of measures
specified in a TPIM notice (see, in particular, paragraph 13 of Schedule 1).

17 Jurisdiction in relation to decisions under this Act

(1) 10TPIM decisions are not to be questioned in any legal proceedings other than—

(a) proceedings in the court; or

(b) proceedings on appeal from such proceedings.

(2) The court is the appropriate tribunal for the purposes of section 7 of the Human
Rights Act 1998 in relation to proceedings all or any part of which call a TPIM
15decision into question.

(3) In this Act “TPIM decision” means—

(a) a decision made by the Secretary of State in exercise or performance of
any power or duty under any of sections 2 to 15 or under Schedule 1 or
2;

(b) 20a decision made by the Secretary of State for the purposes of, or in
connection with, the exercise or performance of any such power or
duty;

(c) a decision by a constable to give a direction by virtue of paragraph 4 of
Schedule 1 (movement directions measure);

(d) 25a decision by a person to give a direction by virtue of paragraph
12(2)(d) of Schedule 1 (monitoring measure).

18 Proceedings relating to measures

(1) No appeal shall lie from any determination of the court in TPIM proceedings,
except on a question of law.

(2) 30No appeal by any person other than the Secretary of State shall lie from any
determination—

(a) on an application for permission under section 6; or

(b) on a reference under Schedule 2.

(3) Schedule 4 (proceedings relating to measures) has effect.

35Other safeguards

19 Reports on exercise of powers under Act

(1) The Secretary of State must—

(a) prepare a report about the exercise of the powers mentioned in
subsection (2) during each period of 3 months beginning with the
40month in which this Act is passed, and

(b) lay a copy of each such report before Parliament.

Terrorism Prevention and Investigation Measures BillPage 12

(2) The powers referred to in subsection (1) are the powers of the Secretary of State
under this Act—

(a) to impose measures on an individual by a TPIM notice under section 2;

(b) to extend a TPIM notice under section 5(2);

(c) 5to vary a TPIM notice under section 12;

(d) to revoke a TPIM notice under section 13(1);

(e) to revive a TPIM notice under section 13(6).

(3) The duty under subsection (1) in relation to the preparation and laying of a
report must be carried out as soon as reasonably practicable after the end of the
103 month period to which the report relates.

(4) Subject to subsection (5), this section does not require a report to be made in
relation to any time which falls after the Secretary of State’s TPIM powers have
expired or been repealed under section 21, except for the period of 28 days
referred to in section 22(2).

(5) 15If the Secretary of State’s TPIM powers are revived under section 21—

(a) the reference in subsection (1)(a) above to the month in which this Act
is passed is to be read as a reference to the month in which the revival
takes effect; and

(b) this section applies accordingly.

20 20Reviews of operation of Act

(1) The Secretary of State must appoint a person to review the operation of this Act
(“the independent reviewer”).

(2) The independent reviewer must carry out a review of the operation of this Act
in respect of each calendar year, starting with the first complete calendar year
25beginning after the passing of this Act.

(3) Each review must be completed as soon as reasonably practicable after the end
of the calendar year to which the review relates.

(4) The independent reviewer must send to the Secretary of State a report on the
outcome of each review carried out under subsection (2) as soon as reasonably
30practicable after completion of the review.

(5) On receiving a report under subsection (4), the Secretary of State must lay a
copy of it before Parliament.

(6) The Secretary of State may pay to the independent reviewer—

(a) expenses incurred in carrying out the functions of the reviewer under
35this section, and

(b) such allowances as the Secretary of State determines.

(7) Subject to subsection (8), this section does not require a review to be carried out
in relation to any time which falls after the Secretary of State’s TPIM powers
have expired or been repealed under section 21, except for the period of 28 days
40referred to in section 22(2).

(8) If the Secretary of State’s TPIM powers are revived under section 21, the
independent reviewer must carry out a review of the operation of this Act in
respect of—

(a) the period which—

Terrorism Prevention and Investigation Measures BillPage 13

(i) begins when the revival takes effect, and

(ii) ends with the end of the calendar year in which the revival takes
effect; and

(b) each subsequent calendar year.

(9) 5In such a case, this section and the other provisions of this Act apply as if
references to a review under subsection (2) were references to a review under
subsection (8).

21 Expiry and repeal of TPIM powers

(1) Except so far as otherwise provided under this section, the Secretary of State’s
10TPIM powers expire at the end of 5 years beginning with the day on which this
Act is passed.

(2) The Secretary of State may, by order made by statutory instrument—

(a) repeal the Secretary of State’s TPIM powers;

(b) at any time revive the Secretary of State’s TPIM powers for a period not
15exceeding 5 years;

(c) provide that the Secretary of State’s TPIM powers—

(i) are not to expire at the time when they would otherwise expire
under subsection (1) or in accordance with an order under this
subsection; but

(ii) 20are to continue in force after that time for a period not exceeding
5 years.

(3) Before making an order under this section the Secretary of State must consult—

(a) the independent reviewer appointed for the purposes of section 20;

(b) the Intelligence Services Commissioner; and

(c) 25the Director-General of the Security Service.

(4) An order under this section may not be made unless a draft of it has been laid
before Parliament and approved by a resolution of each House.

(5) Subsection (4) does not apply to an order that contains a declaration by the
Secretary of State that the order needs, by reason of urgency, to be made
30without the approval required by that subsection.

(6) An order that contains such a declaration—

(a) must be laid before Parliament after being made; and

(b) if not approved by a resolution of each House before the end of 40 days
beginning with the day on which the order was made, ceases to have
35effect at the end of that period.

(7) Where an order ceases to have effect in accordance with subsection (6), that
does not—

(a) affect anything previously done in reliance on the order; or

(b) prevent the making of a new order to the same or similar effect.

(8) 40In this section—

  • “40 days” means 40 days computed as provided for in section 7(1) of the
    Statutory Instruments Act 1946;

  • “Secretary of State’s TPIM powers” means—

    (a)

    the power to impose a TPIM notice under section 2;

    (b)

    45the power to extend a TPIM notice under section 5(2);

    Terrorism Prevention and Investigation Measures BillPage 14

    (c)

    the power to vary a TPIM notice under section 12(1)(c); and

    (d)

    the power to revive a TPIM notice under section 13(6) to (9).

22 Section 21: supplementary provision

(1) This section applies if the Secretary of State’s TPIM powers expire or are
5repealed under section 21.

(2) A TPIM notice which is in force immediately before expiry or repeal is to—

(a) continue in force for the period of 28 days beginning with expiry or
repeal; and

(b) be treated as if revoked by the Secretary of State at the end of that
10period.

(3) Subsection (2)(a) is subject to—

(a) any variation under section 12(1)(a) or (b), and

(b) any revocation or quashing.

(4) Except as provided for in subsection (5) or (6), TPIM proceedings may neither
15continue nor be begun after expiry or repeal.

(5) TPIM proceedings of a kind set out in subsection (7) may continue, or be begun,
after expiry or repeal, but only for the purpose of determining one or more of
the following matters—

(a) whether a TPIM notice should be quashed;

(b) 20whether measures imposed by a TPIM notice should be quashed;

(c) whether to make a declaration under paragraph 4(4) of Schedule 2.

(6) Proceedings for an award of damages or other relief arising out of any TPIM
proceedings of a kind set out in subsection (7)(a) to (c) may continue, or be
begun, after expiry or repeal.

(7) 25The TPIM proceedings referred to in subsections (5) and (6) are—

(a) a reference made under paragraph 3 of Schedule 2 before expiry or
repeal;

(b) a hearing in pursuance of directions under section 8(2) or (4);

(c) an appeal under section 16;

(d) 30an appeal, or further appeal, relating to a decision in any proceedings
mentioned in any of paragraphs (a) to (c).

(8) If, after expiry of the Secretary of State’s TPIM powers, the powers are revived
under section 21(2)(b)—

(a) all TPIM notices, including any which were in force before expiry, are
35to be taken into account in determining whether there is new terrorism-
related activity for the purposes of section 3(6);

(b) the expiry of those powers does not prevent them from being exercised
after revival in relation to any TPIM notice which—

(i) expired or was revoked before the expiry of the powers or
40during the relevant 28 day period, or

(ii) is, in accordance with subsection (2)(b) of this section, treated as
if revoked at the end of the relevant 28 day period;

and for this purpose “relevant 28 day period” means the period of 28
days beginning with the expiry of the powers that is mentioned in
45subsection (2)(b).

Terrorism Prevention and Investigation Measures BillPage 15

Enforcement

23 Offence

(1) An individual is guilty of an offence if—

(a) a TPIM notice is in force in relation to the individual, and

(b) 5the individual contravenes, without reasonable excuse, any measure
specified in the TPIM notice.

(2) If the individual has the permission of the Secretary of State by virtue of
Schedule 1 for an act which would, without that permission, contravene such
a measure, the individual contravenes that measure by virtue of that act if the
10act is not in accordance with the terms of the permission.

(3) An individual guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding
5 years or to a fine, or to both;

(b) on summary conviction in England and Wales, to imprisonment for a
15term not exceeding 12 months or to a fine not exceeding the statutory
maximum, or to both;

(c) on summary conviction in Northern Ireland, to imprisonment for a
term not exceeding 6 months or to a fine not exceeding the statutory
maximum, or to both;

(d) 20on summary conviction in Scotland, to imprisonment for a term not
exceeding 12 months or to a fine not exceeding the statutory maximum,
or to both.

(4) In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003, the reference in subsection (3)(b) to 12 months
25is to be read as a reference to 6 months.

(5) Where an individual is convicted by or before a court of an offence under
subsection (1), it is not open to that court to make in respect of the offence—

(a) an order under section 12(1)(b) of the Powers of Criminal Courts
(Sentencing) Act 2000 (conditional discharge);

(b) 30an order under section 227A of the Criminal Procedure (Scotland) Act
1995 (community payback orders); or

(c) an order under Article 4(1)(b) of the Criminal Justice (Northern Ireland)
Order 1996 (S.I. 1996/3160 (N.I. 24)S.I. 1996/3160 (N.I. 24)) (conditional discharge in Northern
Ireland).

24 35Powers of entry etc

Schedule 5 (powers of entry, search, seizure and retention) has effect.

25 Fingerprints and samples

Schedule 6 (fingerprints and samples) has effect.

Terrorism Prevention and Investigation Measures BillPage 16

Temporary imposition of enhanced measures

26 Temporary power for imposition of enhanced measures

(1) If the Secretary of State considers that it is necessary to do so by reason of
urgency, the Secretary of State may make a temporary enhanced TPIM order
5during any period that—

(a) begins with the dissolution of Parliament, and

(b) ends with the first Queen’s Speech of the Parliament which first meets
after that dissolution.

(2) A temporary enhanced TPIM order is an order which makes provision for, or
10in connection with, giving the Secretary of State power to impose enhanced
measures by notice on individuals whom the Secretary of State is satisfied, on
the balance of probabilities, are, or have been, involved in terrorism-related
activity.

(3) An enhanced measure is a requirement, restriction or other provision which is
15of any of the following kinds—

(a) a restriction on an individual in relation to the residence in which the
individual resides, including—

(i) a requirement to reside at a specified residence in the United
Kingdom;

(ii) 20a requirement not to allow others to reside at that residence
without the permission of the Secretary of State;

(iii) a requirement, applicable between specified hours, to remain at
that residence;

(b) a restriction on an individual in relation to leaving a specified area;

(c) 25a requirement, restriction or other provision which corresponds to
provision within any of these paragraphs of Schedule 1—

(i) paragraphs 2 to 6;

(ii) paragraph 7(1) and (2) and (4) to (6);

(iii) paragraphs 9 to 12;

(d) 30a requirement, restriction or other provision which corresponds to
provision within paragraph 8(1) of Schedule 1 (as read with paragraph
8(3) of that Schedule), including—

(i) a requirement not to associate or communicate with other
persons without the permission of the Secretary of State, which
35includes provision allowing the individual (without seeking
permission) to associate and communicate with such persons or
descriptions of persons as the Secretary of State may specify;

(ii) a requirement to give notice to the Secretary of State before
associating or communicating with other persons, which
40includes provision allowing the individual (without giving
notice) to associate and communicate with such persons, or
descriptions of persons, as are specified;

(iii) a requirement of the kind referred to in sub-paragraph (c) of
paragraph 8(2) of Schedule 1, which may in particular relate to
45association or communication which is allowed by virtue of
provision of the kind referred to in sub-paragraph (i) or (ii)
above;

(e) provision which corresponds to provision within Part 2 of Schedule 1;

Terrorism Prevention and Investigation Measures BillPage 17

and for this purpose “specified” means specified by the Secretary of State in an
enhanced TPIM notice.

(4) Except as provided for in subsections (5) to (10), the provision made by a
temporary enhanced TPIM order must correspond to the relevant provisions
5of this Act.

(5) A temporary enhanced TPIM order—

(a) must secure that enhanced TPIM notices and standard TPIM notices are
separate notices;

(b) must secure that, at any particular time, an enhanced TPIM notice and
10a standard TPIM notice are not both in force in relation to a particular
individual; and

(c) may secure that the application of a temporary enhanced TPIM order
to a particular individual does not affect the application of this Act to
that individual (and vice versa).

(6) 15The provision of a temporary enhanced TPIM order which corresponds to
section 3 must include appropriate variations from the provision contained in
that section to secure—

(a) that condition A is replaced by a condition which secures that the
enhanced TPIM power may not be exercised in relation to an individual
20unless the Secretary of State is satisfied, on the balance of probabilities,
that the individual is, or has been, involved in terrorism-related
activity; and

(b) that condition D is replaced by a condition which secures both—

(i) the same result as condition D, and

(ii) 25that the enhanced TPIM power may not be exercised in relation
to an individual unless some or all of the measures imposed by
the enhanced TPIM notice are measures that may not be
imposed by a standard TPIM notice.

(7) The provision of a temporary enhanced TPIM order which corresponds to
30section 5(1) must include appropriate variations from the provision contained
in that subsection to secure that each enhanced TPIM notice ceases to be in
force at the time when the enhanced TPIM power ceases to have effect in
accordance with section 27(1) (subject to earlier revocation or quashing of the
notice).

(8) 35The provision of a temporary enhanced TPIM order which corresponds to
Schedule 1 must include appropriate variations from the provision contained
in that Schedule to secure that it is enhanced measures which the Secretary of
State has power to impose.

(9) A temporary enhanced TPIM order may make appropriate provision
40(including appropriate variations from the provision contained in the relevant
provisions of this Act) in consequence of, or in connection with, the creation, in
accordance with this section, of the enhanced TPIM power.

(10) A temporary enhanced TPIM order may make appropriate provision for the
purposes of securing that transitional and saving provision relating to a
45temporary enhanced TPIM order ceasing to have effect may be made
(including provision for enhanced TPIM notices to continue in force for a
period, which does not exceed 28 days, after the enhanced TPIM power ceases
to have effect).

Terrorism Prevention and Investigation Measures BillPage 18

(11) The provision that may be made by a temporary enhanced TPIM order
includes—

(a) provision applying (with or without modifications) any enactment
(including an enactment contained in this Act);

(b) 5provision conferring functions on the Secretary of State or any other
person (including, in the case of the Secretary of State or any other
Minister of the Crown, functions of a legislative nature).

(12) The Secretary of State must obtain the consent of the Scottish Ministers to the
inclusion in a temporary enhanced TPIM order of any provision—

(a) 10which would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament, or

(b) which otherwise confers functions on the Scottish Ministers.

(13) But subsection (12) does not apply to any provision of an enhanced TPIM order
which—

(a) 15applies (with or without modifications) an enactment contained in, or
amended by, this Act, or

(b) otherwise corresponds to such an enactment.

27 Section 26: supplementary provision

(1) A temporary enhanced TPIM order, except for designated transitional and
20saving provision, ceases to have effect—

(a) at the end of the period of 90 days beginning with the day on which the
Secretary of State makes the order, or

(b) at such earlier time (if any) as is specified in the order.

(2) The Secretary of State may by order revoke some or all of a temporary
25enhanced TPIM order if the Secretary of State considers it appropriate to do so
(whether or not the Secretary of State would have power to make a temporary
enhanced TPIM order by virtue of section 26(1)).

(3) As soon as practicable after making—

(a) a temporary enhanced TPIM order, or

(b) 30an order revoking any provision of a temporary enhanced TPIM order,

the Secretary of State must lay before each House of Parliament a copy of the
order that has been made.

(4) Anything which has been done by virtue of a temporary enhanced TPIM order
is not affected by the temporary enhanced TPIM order ceasing to have effect.

(5) 35In section 26 and this section—

  • “appropriate”, in relation to variations, or other provision, means such
    variations, or such other provision, as the Secretary of State considers
    appropriate;

  • “designated transitional and saving provision” means provision of a
    40temporary enhanced TPIM order which is designated, in a temporary
    enhanced TPIM order, as transitional and saving provision for the
    purposes of this section;

  • “enactment” includes—

    (a)

    an enactment contained in subordinate legislation within the
    45meaning of the Interpretation Act 1978,

    Terrorism Prevention and Investigation Measures BillPage 19

    (b)

    an enactment contained in, or in an instrument made under, an
    Act of the Scottish Parliament,

    (c)

    an enactment contained in, or in an instrument made under,
    Northern Ireland legislation, and

    (d)

    5an enactment contained in, or in an instrument made under, a
    Measure or Act of the National Assembly for Wales;

  • “enhanced measure” has the meaning given in section 26(3);

  • “enhanced TPIM notice” means a notice by which the enhanced TPIM
    power is exercised;

  • 10“enhanced TPIM power” means the power to impose enhanced measures
    that is referred to in section 26(2);

  • “relevant provisions of this Act” mean all the provisions of this Act, apart
    from—

    (a)

    section 1 (abolition of control orders),

    (b)

    15section 5(2) and (3) (extension of TPIM notices),

    (c)

    section 13(6)(a) (revival of TPIM notice after expiry),

    (d)

    sections 21 (expiry and repeal of TPIM powers) and 22 (section
    21: supplementary provision),

    (e)

    section 26 and this section,

    (f)

    20section 29 (financial and supplemental provision),

    (g)

    section 31(1) and (2) (short title and commencement), and

    (h)

    Schedules 7 (minor and consequential amendments) and 8
    (transitional and saving provision);

  • “standard TPIM notice” means a notice under section 2;

  • 25“temporary enhanced TPIM order” has the meaning given in section
    26(2).

Final provisions

28 Notices

(1) In a case where the Secretary of State serves a TPIM notice, a revival notice or
30an extension notice on an individual, the Secretary of State must, by a further
notice, give the following information to the individual—

(a) the period for which the TPIM notice will be in force;

(b) the day on which the TPIM notice comes, or came, into force; and

(c) the day on which the TPIM notice will expire;

35and, in the case of a revival or extension notice, “TPIM notice” means the TPIM
notice which is revived or extended by that notice.

(2) An individual is not bound by—

(a) a TPIM notice,

(b) a revival notice, or

(c) 40a variation notice insofar as it gives notice of a variation that is neither
a relaxation or removal of measures, nor a variation with the
individual’s consent,

unless the notice is served personally on the individual.

(3) An individual is not bound by an extension notice unless the notice is—

(a) 45served personally on the individual, and