Counter-Terrorism and Security Bill (HL Bill 92)

(3) A person guilty of an offence under this paragraph is liable on summary
conviction—

(a) to imprisonment for a term not exceeding 6 months, or

(b) to a fine, which in Scotland or Northern Ireland may not exceed level
55 on the standard scale,

or to both.

16 A qualified officer exercising a power under paragraph 2 has the same
powers of arrest without warrant as a constable in relation to an offence
under paragraph 15.

10Accredited immigration officers and customs officials

17 (1) For the purposes of this paragraph, a qualified officer is an “accredited”
immigration officer or customs official if designated as such by the Secretary
of State.

(2) Sub-paragraphs (1), (2) and (3)(a) of paragraph 2 apply to an accredited
15immigration officer or customs official as they apply to a constable.

(3) In paragraph 2(3)(b) and (4) “qualified officer” does not include an
accredited immigration officer or customs official.

(4) In paragraphs 2(9) and 3 “immigration officer or customs official” does not
include an accredited immigration officer or customs official.

(5) 20Paragraph 4(1) has effect, in relation to a travel document that is in the
possession of an accredited immigration officer or customs official as a result
of the exercise of a power under paragraph 2 by that officer or official, as if
the reference to the relevant constable were a reference to that officer or
official.

25Code of practice

18 (1) The Secretary of State must issue a code of practice with regard to the
exercise of functions under this Schedule.

(2) The code of practice must in particular deal with the following matters—

(a) the procedure for making designations under paragraphs 1(4) and
3017;

(b) training to be undertaken by persons who are to exercise powers
under this Schedule;

(c) the exercise by constables, immigration officers and customs officials
of functions conferred on them by virtue of this Schedule;

(d) 35information to be given to a person in whose case a power under this
Schedule is exercised;

(e) how and when that information is to be given;

(f) reviews under paragraph 6.

(3) A constable, immigration officer or customs official must perform functions
40conferred on him or her by virtue of this Schedule in accordance with any
relevant provision included in the code by virtue of sub-paragraph (2)(c) to
(e).

(4) The failure by a constable, immigration officer or customs official to observe
any such provision does not of itself make him or her liable to criminal or
civil proceedings.

(5) The code of practice—

(a) 5is admissible in evidence in criminal and civil proceedings;

(b) is to be taken into account by a court or tribunal in any case in which
it appears to the court or tribunal to be relevant.

19 (1) Before issuing the code of practice the Secretary of State must—

(a) publish it in draft,

(b) 10consider any representations made about the draft, and

(c) if the Secretary of State thinks it appropriate, modify the draft in the
light of any representations made.

(2) The Secretary of State must lay a draft of the code before Parliament.

(3) Anything done before the day on which this Act is passed is as valid as if
15done on or after that day for the purposes of sub-paragraphs (1) and (2).

(4) Once the code has been laid in draft before Parliament the Secretary of State
may bring it into operation by regulations made by statutory instrument.

(5) The first regulations under sub-paragraph (4) cease to have effect at the end
of the period of 40 days beginning with the day on which the Secretary of
20State makes the regulations, unless a resolution approving the regulations is
passed by each House of Parliament during that period.

(6) A statutory instrument containing any subsequent regulations under sub-
paragraph (4) may not be made unless a draft of the instrument has been laid
before each House of Parliament and approved by a resolution of each
25House.

(7) If regulations cease to have effect under sub-paragraph (5)—

(a) the code of practice to which the regulations relate also ceases to
have effect, but

(b) that does not affect anything previously done, or the power to make
30new regulations or to issue a new code.

(8) For the purposes of sub-paragraph (5), the period of 40 days is to be
computed in accordance with section 7(1) of the Statutory Instruments Act
1946.

20 (1) The Secretary of State may revise the code of practice and issue the revised
35code.

(2) Paragraph 19 has effect in relation to the issue of a revised code as it has
effect in relation to the first issue of the code.

Section 3

SCHEDULE 2 Urgent temporary exclusion orders: reference to the court etc

40Application

1 This Schedule applies if the Secretary of State—

(a) makes the urgent case decisions in relation to an individual, and

(b) imposes a temporary exclusion order on the individual.

Statement of urgency

2 The temporary exclusion order must include a statement that the Secretary
5of State reasonably considers that the urgency of the case requires the order
to be imposed without obtaining the permission of the court under section 3.

Reference to court

3 (1) Immediately after giving notice of the imposition of the temporary exclusion
order, the Secretary of State must refer to the court the imposition of the
10order on the individual.

(2) The function of the court on the reference is to consider whether the urgent
case decisions were obviously flawed.

(3) The court‘s consideration of the reference must begin within the period of 7
days beginning with the day on which notice of the imposition of the
15temporary exclusion order is given to the individual.

(4) The court may consider the reference—

(a) in the absence of the individual,

(b) without the individual having been notified of the reference, and

(c) without the individual having been given an opportunity (if the
20individual was aware of the reference) of making any
representations to the court.

(5) But that does not limit the matters about which rules of court may be made.

Decision by court

4 (1) In a case where the court determines that any of the relevant decisions of the
25Secretary of State is obviously flawed, the court must quash the temporary
exclusion order.

(2) If sub-paragraph (1) does not apply, the court must confirm the temporary
exclusion order.

(3) If the court determines that the decision of the Secretary of State that the
30urgency condition is met is obviously flawed, the court must make a
declaration of that determination (whether it quashes or confirms the
temporary exclusion order under the preceding provisions of this
paragraph).

Procedures on reference

5 (1) 35In determining a reference under paragraph 3, the court must apply the
principles applicable on an application for judicial review.

(2) The court must ensure that the individual is notified of the court’s decision
on a reference under paragraph 3.

Interpretation

6 (1) References in this Schedule to the urgency condition being met are
references to condition E being met by virtue of section 2(7)(b) (urgency of
the case requires a temporary exclusion order to be imposed without
5obtaining the permission of the court).

(2) In this Schedule “the urgent case decisions” means the relevant decisions
and the decision that the urgency condition is met.

(3) In this Schedule “the relevant decisions” means the decisions that the
following conditions are met—

(a) 10condition A;

(b) condition B;

(c) condition C;

(d) condition D.

Section 12

SCHEDULE 3 15Temporary exclusion orders: proceedings

Introductory

1 In this Schedule—

• “appeal proceedings” means proceedings in the Court of Appeal or the
  Inner House of the Court of Session on an appeal relating to TEO
  20proceedings;

• “the relevant court” means—

  (a)

  in relation to TEO proceedings, the court;

  (b)

  in relation to appeal proceedings, the Court of Appeal or the
  Inner House of the Court of Session;

• 25“rules of court” means rules for regulating the practice and procedure
  to be followed in the court, the Court of Appeal or the Inner House
  of the Court of Session;

• “TEO proceedings” means proceedings on—

  (a)

  an application under section 3,

  (b)

  30a reference under Schedule 2,

  (c)

  a review under section 11, or

  (d)

  an application made by virtue of paragraph 6 of this Schedule
  (application for order requiring anonymity).

Rules of court: general provision

2 (1) 35A person making rules of court relating to TEO proceedings or appeal
proceedings must have regard to the need to secure the following—

(a) that the decisions that are the subject of the proceedings are properly
reviewed, and

(b) that disclosures of information are not made where they would be
40contrary to the public interest.

(2) Rules of court relating to TEO proceedings or appeal proceedings may make
provision—

(a) about the mode of proof and about evidence in the proceedings;

(b) enabling or requiring the proceedings to be determined without a
5hearing;

(c) about legal representation in the proceedings;

(d) enabling the proceedings to take place without full particulars of the
reasons for the decisions to which the proceedings relate being given
to a party to the proceedings (or to any legal representative of that
10party);

(e) enabling the relevant court to conduct proceedings in the absence of
any person, including a party to the proceedings (or any legal
representative of that party);

(f) about the functions of a person appointed as a special advocate (see
15paragraph 10);

(g) enabling the relevant court to give a party to the proceedings a
summary of evidence taken in the party’s absence.

(3) In this paragraph—

(a) references to a party to the proceedings do not include the Secretary
20of State;

(b) references to a party’s legal representative do not include a person
appointed as a special advocate.

Rules of court: disclosure

3 (1) Rules of court relating to TEO proceedings or appeal proceedings must
25secure that the Secretary of State is required to disclose—

(a) material on which the Secretary of State relies,

(b) material which adversely affects the Secretary of State’s case, and

(c) material which supports the case of another party to the proceedings.

(2) This paragraph is subject to paragraph 4.

4 (1) 30Rules of court relating to TEO proceedings or appeal proceedings must
secure—

(a) that the Secretary of State has the opportunity to make an application
to the relevant court for permission not to disclose material
otherwise than to the relevant court and any person appointed as a
35special advocate;

(b) that such an application is always considered in the absence of every
party to the proceedings (and every party’s legal representative);

(c) that the relevant court is required to give permission for material not
to be disclosed if it considers that the disclosure of the material
40would be contrary to the public interest;

(d) that, if permission is given by the relevant court not to disclose
material, it must consider requiring the Secretary of State to provide
a summary of the material to every party to the proceedings (and
every party’s legal representative);

(e) 45that the relevant court is required to ensure that such a summary
does not contain material the disclosure of which would be contrary
to the public interest.

(2) Rules of court relating to TEO proceedings or appeal proceedings must
secure that provision to the effect mentioned in sub-paragraph (3) applies in
cases where the Secretary of State—

(a) does not receive the permission of the relevant court to withhold
5material, but elects not to disclose it, or

(b) is required to provide a party to the proceedings with a summary of
material that is withheld, but elects not to provide the summary.

(3) The relevant court must be authorised—

(a) if it considers that the material or anything that is required to be
10summarised might adversely affect the Secretary of State’s case or
support the case of a party to the proceedings, to direct that the
Secretary of State—

(i) is not to rely on such points in the Secretary of State’s case, or

(ii) is to make such concessions or take such other steps as the
15court may specify, or

(b) in any other case, to ensure that the Secretary of State does not rely
on the material or (as the case may be) on that which is required to
be summarised.

(4) In this paragraph—

(a) 20references to a party to the proceedings do not include the Secretary
of State;

(b) references to a party’s legal representative do not include a person
appointed as a special advocate.

Article 6 rights

5 (1) 25Nothing in paragraphs 2 to 4, or in rules of court made under any of those
paragraphs, is to be read as requiring the relevant court to act in a manner
inconsistent with Article 6 of the Human Rights Convention.

(2) The “Human Rights Convention” means the Convention within the
meaning of the Human Rights Act 1998 (see section 21(1) of that Act).

30Rules of court: anonymity

6 (1) Rules of court relating to TEO proceedings may make provision for—

(a) the making by the Secretary of State or the relevant individual of an
application to the court for an order requiring anonymity for that
individual, and

(b) 35the making by the court, on such an application, of an order
requiring such anonymity;

and the provision made by the rules may allow the application and the order
to be made irrespective of whether any other TEO proceedings have been
begun in the court.

(2) 40Rules of court may provide for the Court of Appeal or the Inner House of the
Court of Session to make an order in connection with any appeal
proceedings requiring anonymity for the relevant individual.

(3) In sub-paragraphs (1) and (2) the references, in relation to a court, to an order
requiring anonymity for the relevant individual are references to an order by
45that court which imposes such prohibition or restriction as it thinks fit on the
disclosure—

(a) by such persons as the court specifies or describes, or

(b) by persons generally,

of the identity of the relevant individual or of any information that would
tend to identify the relevant individual.

(4) 5In this paragraph “relevant individual” means an individual on whom the
Secretary of State is proposing to impose, or has imposed, a temporary
exclusion order.

Initial exercise of rule-making powers by Lord Chancellor

7 (1) The first time after the passing of this Act that rules of court are made in
10exercise of the powers conferred by this Schedule in relation to proceedings
in England and Wales or in Northern Ireland, the rules may be made by the
Lord Chancellor instead of by the person who would otherwise make them.

(2) Before making rules of court under sub-paragraph (1), the Lord Chancellor
must consult—

(a) 15in relation to rules applicable to proceedings in England and Wales,
the Lord Chief Justice of England and Wales;

(b) in relation to rules applicable to proceedings in Northern Ireland, the
Lord Chief Justice of Northern Ireland.

(3) But the Lord Chancellor is not required to undertake any other consultation
20before making the rules.

(4) A requirement to consult under sub-paragraph (2) may be satisfied by
consultation that took place wholly or partly before the passing of this Act.

(5) Rules of court made by the Lord Chancellor under sub-paragraph (1)—

(a) must be laid before Parliament, and

(b) 25if not approved by a resolution of each House before the end of 40
days beginning with the day on which they were made, cease to have
effect at the end of that period.

(6) In determining that period of 40 days no account is to be taken of any time
during which Parliament is dissolved or prorogued or during which both
30Houses are adjourned for more than 4 days.

(7) If rules cease to have effect in accordance with sub-paragraph (5)—

(a) that does not affect anything done in previous reliance on the rules,
and

(b) sub-paragraph (1) applies again as if the rules had not been made.

(8) 35The following provisions do not apply to rules of court made by the Lord
Chancellor under this paragraph—

(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary
procedure for civil procedure rules);

(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978
40(statutory rules procedure).

(9) Until the coming into force of section 85 of the Courts Act 2003, the reference
in sub-paragraph (8)(a) to section 3(6) of the Civil Procedure Act 1997 is to
be read as a reference to section 3(2) of that Act.

Use of advisers

8 (1) In any TEO proceedings or appeal proceedings the relevant court may if it
thinks fit—

(a) call in aid one or more advisers appointed for the purposes of this
5paragraph by the Lord Chancellor, and

(b) hear and dispose of the proceedings with the assistance of the
adviser or advisers.

(2) The Lord Chancellor may appoint advisers for the purposes of this
paragraph only with the approval of—

(a) 10the Lord President of the Court of Session, in relation to an adviser
who may be called in aid wholly or mainly in Scotland;

(b) the Lord Chief Justice of Northern Ireland, in relation to an adviser
who may be called in aid wholly or mainly in Northern Ireland;

(c) the Lord Chief Justice of England and Wales, in any other case.

(3) 15Rules of court may regulate the use of advisers in proceedings who are
called in aid under sub-paragraph (1).

(4) The Lord Chancellor may pay such remuneration, expenses and allowances
to advisers appointed for the purposes of this paragraph as the Lord
Chancellor may determine.

9 (1) 20The Lord President of the Court of Session may nominate a judge of the
Court of Session who is a member of the First or Second Division of the Inner
House of that Court to exercise the function under paragraph 8(2)(a).

(2) The Lord Chief Justice of Northern Ireland may nominate any of the
following to exercise the function under paragraph 8(2)(b)—

(a) 25the holder of one of the offices listed in Schedule 1 to the Justice
(Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).

(3) The Lord Chief Justice of England and Wales may nominate a judicial office
holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to
30exercise the function under paragraph 8(2)(c).

Appointment of special advocate

10 (1) The appropriate law officer may appoint a person to represent the interests
of a party in any TEO proceedings or appeal proceedings from which the
party (and any legal representative of the party) is excluded.

(2) 35A person appointed under sub-paragraph (1) is referred to in this Schedule
as appointed as a “special advocate”.

(3) The “appropriate law officer” is—

(a) in relation to proceedings in England and Wales, the Attorney
General;

(b) 40in relation to proceedings in Scotland, the Advocate General for
Scotland;

(c) in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.

(4) A person appointed as a special advocate is not responsible to the party to
the proceedings whose interests the person is appointed to represent.

(5) A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person
5has a general qualification for the purposes of section 71 of the
Courts and Legal Services Act 1990;

(b) in the case of an appointment by the Advocate General for Scotland,
the person is an advocate or a solicitor who has rights of audience in
the Court of Session or the High Court of Justiciary by virtue of
10section 25A of the Solicitors (Scotland) Act 1980;

(c) in the case of an appointment by the Advocate General for Northern
Ireland, the person is a member of the Bar of Northern Ireland.

Relationship with other powers to make rules of court and other proceedings

11 Nothing in this Schedule is to be read as restricting—

(a) 15the power to make rules of court or the matters to be taken into
account when doing so, or

(b) the application of sections 6 to 14 of the Justice and Security Act 2013
(closed material proceedings).

Section 12

SCHEDULE 4 20Temporary exclusion orders: appeals against convictions

Right of appeal

1 (1) An individual who has been convicted of an offence under section 10(1) or
(3) may appeal against the conviction if—

(a) a temporary exclusion order is quashed, and

(b) 25the individual could not have been convicted had the quashing
occurred before the proceedings for the offence were brought.

(2) An individual who has been convicted of an offence under section 10(3) may
appeal against the conviction if—

(a) a notice under section 9, or a permitted obligation imposed by such
30a notice, is quashed, and

(b) the individual could not have been convicted had the quashing
occurred before the proceedings for the offence were brought.

Court in which appeal to be made

2 An appeal under this Schedule is to be made—

(a) 35in the case of a conviction on indictment in England and Wales or
Northern Ireland, to the Court of Appeal;

(b) in the case of a conviction on indictment or summary conviction in
Scotland, to the High Court of Justiciary;

(c) in the case of a summary conviction in England and Wales, to the
40Crown Court; or

(d) in the case of a summary conviction in Northern Ireland, to the
county court.

When the right of appeal arises

3 (1) The right of appeal under this Schedule does not arise until there is no
further possibility of an appeal against—

(a) the decision to quash the temporary exclusion order, notice or
5permitted obligation (as the case may be), or

(b) any decision on an appeal made against that decision.

(2) In determining whether there is no further possibility of an appeal against a
decision of the kind mentioned in sub-paragraph (1), any power to extend
the time for giving notice of application for leave to appeal, or for applying
10for leave to appeal, must be ignored.

The appeal

4 (1) On an appeal under this Schedule to any court, that court must allow the
appeal and quash the conviction.

(2) An appeal under this Schedule to the Court of Appeal against a conviction
15on indictment—

(a) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(b) may not be brought after the end of the period of 28 days beginning
with the day on which the right of appeal arises by virtue of
20paragraph 3; and

(c) is to be treated as an appeal under section 1 of the Criminal Appeal
Act 1968 or, in Northern Ireland, under section 1 of the Criminal
Appeal (Northern Ireland) Act 1980, but does not require leave in
either case.

(3) 25An appeal under this Schedule to the High Court of Justiciary against a
conviction on indictment—

(a) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(b) may not be brought after the end of the period of 28 days beginning
30with the day on which the right of appeal arises by virtue of
paragraph 3; and

(c) is to be treated as an appeal under section 106 of the Criminal
Procedure (Scotland) Act 1995 for which leave has been granted.

(4) An appeal under this Schedule to the High Court of Justiciary against a
35summary conviction—

(a) may be brought irrespective of whether the appellant pleaded guilty;

(b) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(c) may not be brought after the end of the period of two weeks
40beginning with the day on which the right of appeal arises by virtue
of paragraph 3;

(d) is to be by note of appeal, which shall state the ground of appeal;

(e) is to be treated as an appeal for which leave has been granted under
Part 10 of the Criminal Procedure (Scotland) Act 1995; and

(f) 45must be in accordance with such procedure as the High Court of
Justiciary may, by Act of Adjournal, determine.