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Prevention Of Terrorism Bill

These notes refer to the Prevention of Terrorism Bill as introduced in the House of Commons on 22 February 2005 [Bill 61] PREVENTION OF TERRORISM BILL            EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Prevention of Terrorism Bill as introduced in the House of Commons on 22 February 2005. They have been prepared by the Home Office to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require an explanation or comment, none is given. SUMMARY 3.     The purpose of this Bill is to provide for the making of 'control orders' imposing obligations on individuals involved in terrorism-related activity. These are preventative orders which are designed to restrict or prevent the further involvement by individuals in such activity. 4.     A control order may impose any obligations necessary for purposes connected with preventing or restricting an individual's further involvement in terrorism-related activity. The intention is that each order will be tailored to the particular risk posed by the individual concerned. Obligations that may be imposed include, for example, prohibitions on the possession or use of certain items, restrictions on movement to or within certain areas, restrictions on communications and associations, and requirements as to place of abode. It will be possible to make control orders against any individuals engaged in terrorism-related activity, irrespective of nationality, or terrorist cause. [Bill 61—EN]     53/4 5.     Control orders will be made by the Secretary of State. Any individual on whom a control order is imposed will have a right of appeal to the High Court in England and Wales or Northern Ireland, or the Court of Session in Scotland, as appropriate, against the making, renewal or modification of the order. Control orders involving a deprivation of liberty ('derogating control orders') will involve additional judicial scrutiny, including a full and automatic rehearing by the High Court or its equivalent of the matters which led to their imposition. 6.     Breach of an obligation imposed by a control order, without reasonable excuse, will be a criminal offence punishable, following conviction on indictment, with a prison sentence of up to 5 years, or a fine, or both; or, following summary conviction, to a prison sentence of up to 12 months (or 6 months in Scotland or Northern Ireland), or a fine, or both. 7.     Features of the new scheme will include: Judicial scrutiny by the High Court (or Court of Session in Scotland) of the making, renewal or modification of control orders; Control order proceedings involving the hearing of evidence in open and closed session with Special Advocates representing the interests of the individuals concerned in the latter; The application of a judicial review test on appeals relating to non-derogating control orders; The automatic referral of derogating control orders to the High Court within 7 days of the making of the order for preliminary consideration; to be followed by a full rehearing of all the matters relevant to the making of the order; Independent annual review of the operation of the powers; and Regular reports by the Secretary of State to Parliament every three months on his exercise of the control order powers during that period; If a decision is made at any point to derogate in whole or in part from Article 5 ECHR, and an order is made designating such a derogation, any derogating control order based on this designation will cease to have effect 12 months after the designating order is made, unless the Secretary of State makes a separate order, approved by both Houses of Parliament, declaring that it continues to be necessary for him to have the power to impose derogating obligations. Any such order (stating that the power to impose derogating obligations is still necessary) would only have effect for 12 months, but could be remade. OVERVIEW 8.     The Bill's Parts and Schedule are as follows: Control orders 9.     Clauses 1-6 relate to the circumstances in which control orders may be made, their duration and the obligations (including penalties) attached to them. 10.     This part of the Bill describes the tests which the Secretary of State must apply in determining whether a control order may be made against an individual, and the obligations which may be imposed by the order. The Bill provides an illustrative list of the obligations to which an individual may be subject and specifies penalties for failing, without reasonable excuse, to observe any obligations so imposed and for intentionally obstructing a person delivering a notice setting out the terms of the order. 11.     The Secretary of State may revoke or modify an order at any time, either in the light of any information that comes to his notice, or in response to an application by the individual concerned. 12.     This part of the Bill also makes provision for the imposition of obligations on an individual that are incompatible with his right to liberty under ECHR Article 5, provided that the statutory tests for imposing such obligations are met and any necessary derogation from the Convention is in place at the time. It further provides that where such obligations are imposed, a special appeals procedure is automatically triggered, including a preliminary review by the High Court (or Court of Session) of the case for making such an order within seven days of the making of the order. 13.     The Bill lists the offences associated with breaching an order or obstructing those exercising statutory powers in relation to an order and the relevant penalties. Challenging and appealing against control orders 14.     Clauses 7-10 make provision in relation to appeals against non-derogating control orders and in relation to certain derogating control order appeals. 15.     A person subject to a non-derogating control order may appeal against its initial imposition, any subsequent renewal or non-consensual modification of that order or a refusal by the Secretary of State to modify it. In considering an appeal against the initial making of a control order that does not involve derogation the court will determine whether any of the following decisions of the Secretary of State were flawed: his decision that there were reasonable grounds for suspecting that the person was involved in terrorism-related activity; his decision that a control order was necessary for purposes connected with protecting members of the public from the risk of terrorism; and his decisions on the imposition of each of the obligations imposed by the order. 16.     On an appeal against any subsequent variation or renewal of the order the court will not be required to consider afresh the question of involvement in terrorism-related activity, but will consider only whether either of the latter two decisions was flawed.      17.     An individual subject to a control order which imposes a derogating obligation may appeal against a non-consensual modification of that order or a refusal by the Secretary of State to modify it. Such appeals will be conducted by way of a rehearing of the Secretary of State's decision. 18.     The rest of this part of the Bill sets out the jurisdiction of the High Court (or the Court of Session) in relation to control order decisions and derogation matters and introduces the Schedule to the Bill which makes provision for the court's exercise of jurisdiction in control order proceedings and appeal proceedings. It also makes provision for those instances when a person is convicted of an offence under clause 6(1) or (2) and the court subsequently quashes the control order. Supplemental 19.     This part of the Bill makes provision for the general oversight of the operation of the Bill including independent annual review and three monthly reporting to Parliament on the exercise of his control order powers by the Secretary of State. 20.     It also contains general provisions concerning interpretation, repeals, commencement, the title of the Bill and extent. COMMENTARY Clause 1 - Power to make control orders Subsections (1) and (2) 21.     Subsections (1) and (2) set out the tests which the Secretary of State must apply when making a non-derogating control order against an individual. Subsection (1) provides that the Secretary of State may make a 'control order' against an individual if he: a)     has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and b)     considers that it is necessary, for purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on the individual. 22.     Terrorism in this context is defined as in Section 1 of the Terrorism Act 2000. 23.     Subsection (2) allows for the Secretary of State to impose any obligations on the individual he considers necessary for purposes connected with preventing or restricting his further involvement in terrorism-related activity. Subsection (3) 24.     Subsection (3) lists examples of the types of obligation which can be imposed on an individual by a control order. The list contained in the Bill is not exhaustive. Subsection (4) 25.     Subsection (4) makes it clear that any power to prohibit or restrict a person's movements may include (subject where relevant to the provisions of clause 2) power to impose a requirement on him to remain at or within a particular place or area for a period to be specified by the control order or generally. Subsections (5) and (6) 26.     Subsections (5) and (6) make further provision concerning the arrangements for electronic monitoring and the information an individual may be required to provide under a control order. Subsection (7) 27.     Subsection (7) provides that a particular obligation imposed by an order may be waived (on a single or on multiple occasions) if the individual seeks and obtains prior permission for this from a specified person. Subsection (8) 28.     Subsection (8) defines 'involvement in terrorism-related activity' for the purposes of the Bill. The definition includes: a)     the commission, preparation or instigation of acts of terrorism; b)     conduct which facilitates or is intended to facilitate such acts; c)     conduct which gives encouragement or is intended to give encouragement to such acts; d)     conduct which gives support or assistance to those known or believed to be involved in terrorism-related activity;      and applies regardless of whether these relate to specific acts or to terrorism in general. Clause 2 - Derogations from the right to liberty Subsection (1) 29.     The Secretary of State can impose a control order imposing an obligation that is incompatible with an individual's right to liberty under Article 5 of the European Convention on Human Rights, but only if: a)     he is satisfied on the balance of probabilities that the person is or has been involved in terrorism-related activities; b)     he considers that the imposition of a control order is necessary for purposes connected with protecting members of the public from risks associated with a specific public emergency; c)     there is a designated derogation relating to that emergency from all or part of Article 5; and, d)     the obligation(s) are included in a list of obligations as set out in the designation order. Subsection (2) 30.     Subsection (2) states that if the Secretary of State makes such a control order, he must immediately refer the order to the court and tell the controlled person that he has done so. The court must examine the matters which led the Secretary of State to impose the order and determine whether they could have constituted reasonable grounds to justify his decision. Subsection (3) 31.     Subsection (3) provides that the court's consideration under subsection 2 must begin no more than seven days after the control order was made. Subsection (4) 32.     Subsection (4) provides that the court must proceed in one of three ways on a preliminary reference under subsection (2): a)     if it is not satisfied that the matters which led the Secretary of State to impose the derogating order could have constituted reasonable grounds for making a control order against a controlled person, it must quash the order; b)     if it is satisfied that the factors could have constituted reasonable grounds for making a control order, but not one with a derogating obligation, it must quash the derogating obligation; c)     if it is satisfied that the matters relied on by the Secretary of State could have constituted reasonable grounds for making a derogating order, it must give directions for the court to carry out a full review of the order. Subsection (5) 33.     Subsection (5) provides that when the court carries out a full review of a derogating control order, it must conduct a rehearing of each of the matters which fell to be determined by the Secretary of State in making his decisions to make the order and impose the obligations contained in the order. The intention is that, when conducting a review under clause 2(4)(c), the court will look afresh at the matters in clause 1(1) and (2) and clause 2(1), consider those matters on the merits and make its own decision on the making of the order. Subsection (6) 34.     Subsection (6) sets out the powers of the court on a review under subsection 4(c). It provides that the court may: a)     confirm the order as made; b)     quash the order; c)     quash one or more of the obligations imposed by the order; d)     give directions to the Secretary of State to revoke the order or modify the obligations it imposes. Subsection (7) 35.     Subsection (7) provides that if the controlled person asks the court to discontinue either the initial review (under subsection (2)(a)) or the full review (under subsection (4)(c)), the court must do so. Subsections (8) and (9) 36.     Subsections (8) and (9) define the terms 'derogating obligation' (an obligation which is described in any designation of a derogation), 'designated derogation' (by reference to the Human Rights Act 1998) and 'designation order'(the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated). Clause 3 - Duration and renewal of non-derogating control orders Subsections (1) and (2) 37.     Subsections (1) and (2) provide that a non-derogating control order will be of 12 months duration, may be renewed on one or more occasions and must stipulate its expiry date. Subsection (3) 38.     Subsection (3) provides that a non-derogating control order may be renewed for 12 months where the Secretary of State considers that a further order is necessary, for purposes connected with protecting members of the public from the risk of terrorism, and that any obligations imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. Subsections (4) and (5) 39.     Subsection (4) makes further provision about the time from which the 12 month renewal period will begin to run and subsection (5) states that the instrument renewing a non-derogating order must specify the expiry date of the renewed order. Clause 4 - Duration of derogating control orders Subsections (1) and (2) 40.     Subsection (1) states that a derogating control order will be valid for six months and may not be renewed. Subsection (2) makes it clear, however, that when a derogating control order expires a new derogating control order to the same or similar effect may be made in reliance on the same matters, provided that the necessary conditions are met. Subsections (3) to (5) 41.     Subsections (3) to (5) provide that a derogating control order can only be made while any necessary derogation is in force and will cease to have effect at any given time (after an initial 12 month period) if, within the 12 months prior to that time, the Secretary of State has not made an order approved by an affirmative resolution of each House, declaring that it continues to be necessary for him to have the power to impose derogating obligations. Subsections (6) to (8) provide a special procedure for cases where the order needs, by reason of urgency, to be made without the approval of both Houses of Parliament. No order making such a derogation is being made at this time. Clause 5 - Modification, notification and proof of orders Subsection (1) 42.     Subsection (1) provides that an individual subject to a control order may apply to the Secretary of State for the revocation or modification of the control order if he considers that there has been a change of circumstances affecting the order. Subsection (2) 43.     Subsection (2) allows the Secretary of State, at any time during the operation of a control order, to revoke the order, or to relax or remove an obligation imposed by the order. The Secretary of State may make any modifications to the obligations imposed by the order that he considers necessary for further preventing and restricting involvement by the controlled person in terrorism-related activity. Subsection (2) also allows for a modification of the control order by mutual consent. Subsection (3) 44.     Subsection (3) provides that the Secretary of State may not make any modifications which turn a non-derogating control order into a derogating order. However the Secretary of State may make a new order imposing a derogating obligation on the same individual and may, in doing so, rely on the same matters. Subsections (5) and (6)      45.     Subsection (5) provides that an individual is only bound by the terms of a control order (new, renewed or modified) if a notice of the conditions has been delivered to him in person. Subsection (6) makes further provision concerning the means by which a notice setting out the terms of the order, renewal or modification must be delivered to the individual concerned. Subsection (8) 46.     Subsection (8) specifies the methods by which a control order or the renewal, revocation or modification of such an order, may be proved. Clause 6 - Offences Subsection (1) 47.     Subsection (1) provides that an individual is guilty of an offence if he breaches, without reasonable excuse, an obligation imposed on him by a control order. Subsection (2) 48.     Subsection (2) creates an offence in connection with a failure, without reasonable excuse, to report to a specified person when returning to the UK as required by the terms of a control order, even if the order has ceased to have effect. Subsection (3) 49.     Subsection (3) provides that any individual is guilty of an offence if he intentionally obstructs a person delivering a notice setting out the terms of the control order in accordance with clause 5(6). Subsections (4) and (5)      50.     Subsection (4) provides that a person who is guilty of an offence under clause 6(1) or 6(2) will be liable on conviction on indictment to a prison sentence of up to 5 years or a fine and on summary conviction to a prison sentence of up to 12 months or a fine. On summary conviction in Scotland and Northern Ireland a person is liable to a prison sentence of up to 6 months or a fine. Subsection (5) contains transitional provisions relating to subsection (4). Subsection (6) 51.     Subsection (6) provides that where an individual is convicted of an offence under clause 6(1) or (2) it is not to be open to the court in England and Wales to make a conditional discharge order. It also makes similar provisions for the other jurisdictions. Subsections (7) and (8) 52.     Subsection (7) provides that a person who is guilty of an offence under clause 5(3) shall be liable upon summary conviction to a prison sentence of up to 51 weeks or a fine. In Scotland and Northern Ireland summary conviction will lead to a prison sentence of up to 6 months or a fine. Subsection (8) contains transitional provisions relating to subsection (7). Subsections (9) and (10) 53.     Subsections (9) and (10) provides that the new offence of obstructing the service of a control order is an arrestable offence (not requiring a warrant). Clause 7 - Appeals relating to non-derogating control orders Subsections (1) and (2) 54.     Subsection (1) provides that a person may appeal against the making, renewal or non-consensual modification of a non-derogating control order. When a control order is renewed with modifications, subsection (2) makes it clear that the individual concerned may appeal against any or all of the modifications. Subsection (3) 55.     Subsection (3) provides that if a person applies to the Secretary of State for the modification or revocation of a control order, he may appeal against any decision by the Secretary of State on the application. Subsection (4) 56.     Subsection (4) - When the court hears an appeal against the making of a non-derogating control order it must determine whether or not the Secretary of State's decision to impose the control order was flawed, on the basis of the tests in clause 1(1)(a) and 1(1)(b). It must also determine whether or not the Secretary of State's decision was flawed with regard to any of the particular obligations attached to the control order in question, on the basis of the test in clause 1(2). Subsection (5) 57.     Subsection (5) - When the court hears an appeal against the renewal of a non-derogating control order or against a decision not to modify or revoke a control order, it must determine whether either or both of the following decisions of the Secretary of State was flawed: a)     his decision that it was necessary to renew or continue the control order for purposes connected with protecting members of the public from the risk of terrorism; and b)     his decision that it was necessary to renew or continue each of the particular obligations in the control order in question. Subsection (6) 58.     Subsection (6) - When the court hears an appeal against the modification of a non-derogating control order (whether on renewal or otherwise), it must determine whether or not the Secretary of State's decision that the modification was necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity was flawed. 59.     When the court hears an appeal against a decision not to modify a non-derogating control order, it must determine whether or not the Secretary of State's decision that the obligation was still necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity was flawed.

© Parliamentary copyright 2005

Prepared: 22 February 2005