(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.