| Prevention Of Terrorism Bill - continued | House of Commons |
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Subsection (7) 60. Subsection (7) - The court must apply the principles applicable on an application for judicial review when determining matters mentioned in subsections (4) to (6). Subsection (8) 61. Subsection (8) - If a court upholds an appeal against a decision of the Secretary of State in an appeal under this clause, it can:
Subsection (9) 62. Subsection (9) - In every other case, the court must dismiss the appeal. Clause 8 - Appeals relating to derogating control orders Subsections (1) and (2) 63. Subsections (1) and (2) - A controlled person may appeal against any decision made by the Secretary of State to modify a control order imposing a derogating obligation, or against a refusal by the Secretary of State to revoke or modify such an order on application. Subsection (3) 64. Subsection (3) - provides that on an appeal under this clause, the court must conduct its own hearing of each of the matters which fell to be determined by the Secretary of State in making his decision. Subsection (4) 65. Subsection (4) - When a court hears an appeal under this clause it has the following powers:
Clause 9 - Jurisdiction and appeals in relation to control order decisions Subsection (1) 66. Subsection (1) - Control order decisions and derogation matters are not to be questioned in any legal proceedings other than proceedings in the court or on appeal from such proceedings. The court is defined in clause 12(1) to mean the High Court or Court of Session as appropriate. Subsection (2) 67. Subsection (2) - For the purposes of section 7 of the Human Rights Act 1998 (c. 42), the court is the appropriate tribunal to hear proceedings which call a control order decision or derogation matter into question. Subsection (3) 68. Subsection (3) - Appeals from any determination of the court in control order proceedings can only be on a question of law. Subsection (4) 69. Subsection (4) - Only the Secretary of State can appeal against a determination under 2(2)(a) (when the Secretary of State imposes a derogating obligation as part of a control order and there is a reference to the court). Subsection (5) 70. Subsection (5) - Introduces the Schedule which makes provisions relating to and for the court's exercise of jurisdiction in control order proceedings and appeals from such proceedings. Clause 10 - Effect of court's decision on convictions 71. This clause provides for the circumstances in which a conviction may be quashed where a control order or obligation in a control order is quashed. Subsections (1) and (2) 72. Subsections (1) and (2) - provide that a person convicted of an offence under clause 6(1) or (2) may appeal against their conviction if the control order or obligation which they breached is quashed in control order proceedings (or on appeal from such proceedings). Subsection (3) 73. Subsection (3) - provides that when an appeal is brought under this clause, the relevant court must allow the appeal and quash the conviction. Subsections (4) to (7) 74. Subsections (4) - (7) make it clear that an appeal may be brought notwithstanding the fact that an earlier appeal may already have been brought and set out other matters in relation to such an appeal. Subsection (8) 75. Subsection (8) - This subsection amends section 133 of the Criminal Justice Act 1988 (c. 33) (compensation for miscarriages of justice) to permit compensation to be awarded on an application under that section. Clause 11 - Reporting and review Subsection (1) 76. Subsection (1) - provides that the Secretary of State must report to Parliament on a 3 monthly basis on the exercise of his powers to make, renew, modify and revoke control orders during that period. A copy of each report must be laid before Parliament. Subsection (2) 77. Subsection (2) - provides that the Secretary of State must appoint a person to review the operation of clauses 1 to 6 of the Act. Subsection (3) 78. Subsection (3) - provides that the appointed reviewer must carry out yearly reviews of the operation of clauses 1 to 6. Subsection (4) 79. Subsection (4) - requires the appointed reviewer to send the Secretary of State the report as soon as is practicably possible after completing the review. Subsection (5) 80. Subsection (5) - requires the Secretary of State in turn to lay a copy of the report before Parliament. Subsection (6) 81. Subsection (6) - allows the Secretary of State to pay expenses incurred by the reviewer in the course of researching and providing a report. Clause 12 - General interpretation Subsection (1) 82. Subsection (1) -sets out definitions of a number of terms contained in the Act. Subsection (2) 83. Subsection (2) - provides that a court with power to quash a control order, a control order renewal or an obligation under a control order can stay the quashing pending a decision on appeal. Subsection (3) 84. Subsection (3) - provides that a failure of the Secretary of State to consider an application for a revocation or modification of the order by an individual then this shall be treated as a decision not to modify or revoke the order. Clause 13 - Other supplemental provisions 85. Clause 13 contains supplemental provisions including those relating to repeals, coming into force and extent of the Act. Subsection (2) 86. Subsection (2) provides for repeals, including the repeal of certain sections in Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA). This subsection will come into force on 14 March 2005. The remainder of the Act will come into force on Royal Assent. Subsection (4) 87. Subsection (4) provides a transitional saving in relation to appeals under section 25 ATCSA. It enables outstanding appeals under section 25 ATCSA to be completed. It also enables outstanding appeals further to any decisions by SIAC on appeals under section 25 ATCSA to be completed. Any proceedings that result from appeals against determinations by Special Immigration Appeals Commission under section 25 ATCSA can likewise be completed. However, no other proceedings before SIAC under Part 4 ATCSA can be commenced or continued after the time at which sections 21 to 32 ATCSA are repealed. Schedule 88. The Schedule makes provision relating to and for the purposes of control order proceedings in the High Court and Court of Session and proceedings on appeal from such proceedings. Paragraph 1 89. This paragraph provides a definition of 'relevant powers' and 'relevant appeal proceedings'. 90. The relevant powers are the existing powers to make rules of court for the High Court, the Court of Appeal and the Court of Session, so far as those powers are exercisable in relation to control order proceedings and relevant appeal proceedings. Paragraph 2 91. This paragraph imposes a general duty on persons exercising the relevant powers to have regard (a) the need to secure that control orders are properly reviewed and (b) the need to secure that disclosures of information are not made where they would be contrary to the public interest. Paragraph 3 92. This paragraph makes special provision for the initial exercise of the relevant powers in relation to England and Wales and Northern Ireland. The Lord Chancellor may exercise those relevant powers to make rules for control order proceedings and relevant appeal proceedings on the first occasion that those powers are exercised after the passing of the Act (instead of the Civil Procedure Rule Committee and the Northern Ireland Supreme Court Rule Committee). 93. Sub-paragraph (3) provides that the Lord Chancellor must consult the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, before making any rules in relation to those jurisdictions. Paragraph 4 94. This paragraph makes further provision for rules of court made in exercise of the relevant powers. 95. Sub-paragraphs (1), (2) and (5) set out the matters for which such rules may make provision. Rules may provide, for example, that proceedings are to be conducted in the absence of the controlled person, and his legal representative, when the court hears sensitive evidence in closed session. Rules may also allow the court to give the controlled person a summary of the evidence taken in his absence. Rules may also allow the controlled person, or the Secretary of State, to apply for an order requiring the anonymity of the controlled person, even before court proceedings have begun. 96. Sub-paragraph (3) sets out the procedures that must be secured by such rules. Rules must make provision:
Paragraph 5 97. This paragraph provides for the court to call on advisers, appointed for the purpose by the Lord Chancellor, and to hear and dispose of proceedings with the assistance of those advisers. Paragraph 6 98. This paragraph provides that a party to control order proceedings or relevant appeal proceedings is entitled to legal representation except where rules of court provide otherwise. Paragraph 7 99. This paragraph makes provision for the appointment of qualified lawyers (to be known as "special advocates") to represent the interests of a relevant party to control order proceedings and relevant appeal proceedings where that party and his legal representative are excluded from the proceedings. The special advocate is not responsible to the party whom he represents. Paragraph 8 100. This paragraph provides that, for the purposes of section 6(1) and (2), where a court quashes a control order or an obligation imposed by it, that order or obligation shall be treated as though it had never been made or imposed. But the quashing of a control order or obligation does not prevent the Secretary of State from exercising his power to make a new order to the same or similar effect or from relying on the same matters in doing so. Paragraph 9 101. This paragraph amends section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) to allow for the admission of interception evidence in control order proceedings or any proceedings arising from such proceedings. Paragraph 10 102. This paragraph amends paragraph 2 of Schedule 1 to the Supreme Court Act 1981 (c. 54) to allocate control order proceedings to the Queen's Bench Division of the High Court. EUROPEAN CONVENTION ON HUMAN RIGHTS 1.1. 103. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by Section 1 of that Act). The Secretary of State for the Home Department has made the following statement:
104. Obligations imposed under control orders (clause 1) potentially interfere with the right to respect to private and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10), and freedom of assembly and association (Article 11). However, the obligations may only be imposed if the Secretary of State considers that they are necessary for purposes connected with preventing or restricting further involvement of the individual in terrorism related activity. Each of the convention rights referred to is a qualified right. Interference is permissible to the extent that it is justified by a legitimate aim and proportionate. In deciding whether to impose a control order, and if so, what obligations to impose, the Secretary of State will have to consider carefully the interference with the Convention right in question and the legitimate aim which he is seeking to pursue in making the order. He will be obliged to exercise his powers in a manner compatible with the Convention rights. 105. The power to make control orders imposing derogating obligations (clause 2) raises additional issues under Article 5 (right to liberty and security). There will be no power to make an order which would otherwise infringe Article 5 unless the relevant obligation is set out in a designated derogation. If a designation order is made, then the obligations contained in Article 5 must be read subject to that derogation and accordingly any lawful exercise of the power would not be incompatible with the Convention rights as read subject to the designated derogation. No order making a derogation is being made at this time, though the Human Rights Act 1998 provides a mechanism for such an order to be made in the light of the nature of the threat posed by particular individuals or groups. 106. The power to require an individual to comply with restrictions on movement for a period of up to 24 hours for the purpose of ensuring compliance with obligations imposed by a control order also raises issues under Article 5. In so far as this may amount to a deprivation of liberty it is permitted under paragraph (1)(b) as 'in order to secure the fulfilment of any obligation prescribed by law'. 107. The procedures for making and challenging control orders (clauses 1-2 and 6-9 and Schedule) raise issues under Article 6 (right to a fair trial) given the possibility for 'closed hearings' from which the subject to the control order would be excluded. In so far as it may be necessary, the proceedings satisfy the procedural requirements contained in Article 6 ECHR. SUMMARY OF REGULATORY APPRAISAL 108. There will be costs associated with administering the provisions of the control orders scheme. Some of these costs are nugatory in the sense that they are associated:
109. However, it is anticipated that some new costs will arise in connection with new procedures necessary under the provisions. Total expenditure will depend on the number of control orders made, and the respective complexity of any cases arising from them. Accordingly, where relevant an estimated range of potential costs is provided. Making control orders 110. It is not anticipated that there will be significant new costs to the Security Service in providing the assessment that a control order is required. The Service is already providing similar information in relation to cases considered under the Part 4 powers of the Anti-Terrorism, Crime and Security Act 2001. Appeal mechanisms 111. New costs will arise in connection with the establishment of a new system for considering appeals against control orders, although there will be some offsetting savings in terms of the reduction in the number of cases going to the Special Immigration Appeals Commission under Part 4 of the Anti-Terrorism, Crime and Security Act 2001. It is proposed that appeals against control orders will be considered by the High Court (Court of Session in Scotland). The costs incurred will include:
112. The costs arising from the new appeals mechanisms are together estimated to be in the region of £1.5- £1.7m per annum depending on the number and complexity of the cases heard. Monitoring the orders 113. The Bill provides for the Secretary of State to enter into contracts with private contractors for the purposes of monitoring those subject to control orders, for example through electronic tagging or other means. In fact there are already existing contracts in place and it is anticipated that these would be drawn on where appropriate for the purposes of ensuring compliance with control orders. However, it may be necessary at some future stage to enter into new contractual arrangements. It is anticipated that the costs to the police of employing various monitoring procedures would be between £200,000 and £250,000 per annum depending on the number of cases and types of monitoring used. Review of the legislation 114. There is provision for the Secretary of State to pay the expenses of a person appointed to review the working of the legislation. It is anticipated that these duties will be broadly equivalent to the duties currently imposed on an independent reviewer in respect of Part 4 of the Anti-Terrorism, Crime and Security Act 2001 which will cease to be required when that part of the Act lapses or is repealed. The cost is likely therefore to be nugatory. Compensation 115. The Bill provides that proceedings under this legislation may fall within the compensation provisions of the Criminal Justice Act 1988. It is not possible to estimate likely costs arising from such provisions. COMMENCEMENT 116. The Act will come into force on royal assent, except Clause 13(2) which will come into force on 14 March 2005. |
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| © Parliamentary copyright 2005 | Prepared: 22 February 2005 |