Prevention of Terrorism Bill

House of Lords

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Prevention of Terrorism Bill

Prevention of Terrorism Bill
1

A
Bill
[AS AMENDED IN COMMITTEE]
To
provide for the making against individuals involved in terrorism-related
activity of orders imposing obligations on them for purposes connected with
preventing or restricting their further involvement in such activity; to make
provision about appeals and other proceedings relating to such orders; and for
connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Control orders
1
Power to make control orders
(1)
In this Act “control order” means an order against an individual that imposes
obligations on him for purposes connected with protecting members of the
public from a risk of terrorism.
5
(2)
The power to make a control order against an individual shall be exercisable—
(a)
except in the case of an order imposing obligations that are
incompatible with the individual’s right to liberty under Article 5 of the
Human Rights Convention, by the Secretary of State; and
(b)
in the case of an order imposing obligations that are or include
10
derogating obligations, by the court on an application by the Secretary
of State.
(3)
The obligations that may be imposed by a control order made against an
individual are any obligations that the Secretary of State or (as the case may be)
the court considers necessary for purposes connected with preventing or
15
restricting involvement by that individual in terrorism-related activity.
(4)
Those obligations may include, in particular—

HL Bill 37 53/4

Prevention of Terrorism Bill
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(a)
a prohibition or restriction on his possession or use of specified articles
or substances;
(b)
a prohibition or restriction on his use of specified services or specified
facilities, or on his carrying on specified activities;
(c)
a restriction in respect of his work or other occupation, or in respect of
5
his business;
(d)
a restriction on his association or communications with specified
persons or with other persons generally;
(e)
a restriction in respect of his place of residence or on the persons to
whom he gives access to his place of residence;
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(f)
a prohibition on his being at specified places or within a specified area
at specified times or on specified days;
(g)
a prohibition or restriction on his movements to, from or within the
United Kingdom, a specified part of the United Kingdom or a specified
place or area within the United Kingdom;
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(h)
a requirement on him to comply with such other prohibitions or
restrictions on his movements as may be imposed, for a period not
exceeding 24 hours, by directions given to him in the specified manner,
by a specified person and for the purpose of securing compliance with
other obligations imposed by or under the order;
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(i)
a requirement on him to surrender his passport, or anything in his
possession to which a prohibition or restriction imposed by the order
relates, to a specified person for a period not exceeding the period for
which the order remains in force;
(j)
a requirement on him to give access to specified persons to his place of
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residence or to other premises to which he has power to grant access;
(k)
a requirement on him to allow specified persons to search that place or
any such premises for the purpose of ascertaining whether obligations
imposed by or under the order have been, are being or are about to be
contravened;
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(l)
a requirement on him to allow specified persons, either for that purpose
or for the purpose of securing that the order is complied with, to
remove anything found in that place or on any such premises and to
subject it to tests or to retain it for a period not exceeding the period for
which the order remains in force;
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(m)
a requirement on him to co-operate with specified arrangements for
enabling his movements, communications or other activities to be
monitored by electronic or other means;
(n)
a requirement on him to comply with a demand made in the specified
manner to provide information to a specified person in accordance
40
with the demand;
(o)
a requirement on him to report to a specified person at specified times
and places.
(5)
Power by or under a control order to prohibit or restrict the controlled person’s
movements includes, in particular, power to impose a requirement on him to
45
remain at or within a particular place or area (whether for a particular period
or at particular times or generally).
(6)
The reference in subsection (4)(m) to co-operating with specified arrangements
for monitoring includes a reference to each of the following—
(a)
submitting to procedures required by the arrangements;
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(b)
wearing or otherwise using apparatus approved by or in accordance
with the arrangements;
(c)
maintaining such apparatus in the specified manner;
(d)
complying with directions given by persons carrying out functions for
the purposes of those arrangements.
5
(7)
The information that the controlled person may be required to provide under
a control order includes, in particular, advance information about his proposed
movements or other activities.
(8)
A control order may provide for a prohibition, restriction or requirement
imposed by or under the order to apply only where a specified person has not
10
given his consent or approval to what would otherwise contravene the
prohibition, restriction or requirement.
(9)
For the purposes of this Act involvement in terrorism-related activity is any
one or more of the following—
(a)
the commission, preparation or instigation of acts of terrorism;
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(b)
conduct which facilitates the commission, preparation or instigation of
such acts, or which is intended to do so;
(c)
conduct which gives encouragement to the commission, preparation or
instigation of such acts, or which is intended to do so;
(d)
conduct which gives support or assistance to individuals who are
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known or believed to be involved in terrorism-related activity;

and for the purposes of this subsection it is immaterial whether the acts of
terrorism in question are specific acts of terrorism or acts of terrorism
generally.
(10)
In this Act—
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“derogating obligation” means an obligation on an individual which—
(a)
is incompatible with his right to liberty under Article 5 of the
Human Rights Convention; but
(b)
is of a description of obligations which, for the purposes of the
designation of a designated derogation, is set out in the
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designation order;
“designated derogation” has the same meaning as in the Human Rights
Act 1998 (c. 42) (see section 14(1) of that Act);
“designation order”, in relation to a designated derogation, means the
order under section 14(1) of the Human Rights Act 1998 by which the
35
derogation is designated.
2
Power of court to make non-derogating control orders
(1)
The court may make a control order against an individual if it—
(a)
is satisfied on the balance of probabilities that the individual is or has
been involved in terrorism-related activity;
40
(b)
considers that it is necessary, for purposes connected with protecting
members of the public from a risk of terrorism, to make a control order
imposing obligations on that individual; and
(c)
has been informed by the Director of Public Prosecutions that there is
no reasonable prospect of a successful prosecution of the individual for
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the terrorism-related activity.

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(2)
A control order made by the Secretary of State is called a non-derogating
control order.
(3)
A non-derogating control order—
(a)
has effect for a period of 12 months beginning with the day on which it
is made; but
5
(b)
may be renewed on one or more occasions in accordance with this
section.
(4)
A non-derogating control order must specify when the period for which it is to
have effect will end.
(5)
The court may renew a non-derogating control order (with or without
10
modifications) for a period of 12 months if it—
(a)
considers that it is necessary, for purposes connected with protecting
members of the public from a risk of terrorism, for an order imposing
obligations on the controlled person to continue in force; and
(b)
considers that the obligations to be imposed by the renewed order are
15
necessary for purposes connected with preventing or restricting
involvement by that person in terrorism-related activity.
(6)
Where the court renews a non-derogating control order, the 12 month period
of the renewal begins to run from whichever is the earlier of—
(a)
the time when the order would otherwise have ceased to have effect; or
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(b)
the beginning of the seventh day after the date of renewal.
(7)
The instrument renewing a non-derogating control order must specify when
the period for which it is renewed will end.
3
Power of court to make derogating control orders
(1)
On an application to the court by the Secretary of State for the making of a
25
control order against an individual, it shall be the duty of the court—
(a)
to hold an immediate preliminary hearing to determine whether to
make a control order against that individual; and
(b)
if it does make such an order against that individual, to give directions
for the holding of a full hearing to determine whether to confirm the
30
order (with or without modifications).
(2)
The preliminary hearing under subsection (1)(a) may be held—
(a)
in the absence of the individual in question;
(b)
without his having had notice of the application for the order; and
(c)
without his having been given an opportunity (if he was aware of the
35
application) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which
rules of court may be made in relation to that hearing.
(3)
At the preliminary hearing, the court may make a control order against the
individual in question if it appears to the court—
40
(a)
that there is material which (if not disproved) is capable of being relied
on by the court as establishing that the individual is or has been
involved in terrorism-related activity;
(b)
that there are reasonable grounds for believing that the imposition of
obligations on that individual is necessary for purposes connected with
45
protecting members of the public from a risk of terrorism; and

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(c)
that if the obligations that there are reasonable grounds for believing
should be imposed on the individual are or include derogating
obligations of a description set out for the purposes of the designated
derogation in the designation order, the risk arises out of, or is
associated with, a public emergency in respect of which there is a
5
designated derogation from the whole or a part of Article 5 of the
Human Rights Convention.
(4)
The obligations that may be imposed by a control order in the period
between—
(a)
the time when the order is made, and
10
(b)
the time when a final determination is made by the court whether to
confirm it,

include any obligations which the court has reasonable grounds for
considering are necessary as mentioned in section 1(3).
(5)
At the full hearing under subsection (1)(b), the court may—
15
(a)
confirm the control order made by the court; or
(b)
revoke the order;

and where the court revokes the order, it may (if it thinks fit) direct that this Act
is to have effect as if the order had been quashed.
(6)
In confirming a control order, the court—
20
(a)
may modify the obligations imposed by the order; and
(b)
where a modification made by the court removes an obligation, may (if
it thinks fit) direct that this Act is to have effect as if the removed
obligation had been quashed.
(7)
At the full hearing, the court may confirm the control order (with or without
25
modifications) only if—
(a)
it is satisfied, on the balance of probabilities, that the controlled person
is an individual who is or has been involved in terrorism-related
activity;
(b)
it considers that the imposition of obligations on the controlled person
30
is necessary for purposes connected with protecting members of the
public from a risk of terrorism; and
(c)
if the obligations to be imposed by the order or (as the case may be) by
the order as modified are or include derogating obligations of a
description set out for the purposes of the designated derogation in the
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designation order, it appears to the court that the risk is one arising out
of, or is associated with, a public emergency in respect of which there is
a designated derogation from the whole or a part of Article 5 of the
Human Rights Convention.
(8)
A derogating control order ceases to have effect at the end of the period of 6
40
months beginning with the day on which it is made unless—
(a)
it is previously revoked (whether at the hearing under subsection (1)(b)
or otherwise under this Act);
(b)
it ceases to have effect under section 5; or
(c)
it is renewed.
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(9)
The court, on an application by the Secretary of State, may renew a derogating
control order (with or without modifications) for a period of 6 months from
whichever is the earlier of—

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(a)
the time when the order would otherwise have ceased to have effect;
and
(b)
the beginning of the seventh day after the date of renewal.
(10)
The power of the court to renew a derogating control order is exercisable on as
many occasions as the court thinks fit; but, on each occasion, it is exercisable
5
only if—
(a)
the court considers that it is necessary, for purposes connected with
protecting members of the public from a risk of terrorism, for a
derogating control order to continue in force against the controlled
person;
10
(b)
it appears to the court that the risk is one arising out of, or is associated
with, a public emergency in respect of which there is a designated
derogation from the whole or a part of Article 5 of the Human Rights
Convention;
(c)
the derogating obligations that the court considers should continue in
15
force are of a description that continues to be set out for the purposes of
the designated derogation in the designation order; and
(d)
the court considers that the obligations to be imposed by the renewed
order are necessary for purposes connected with preventing or
restricting involvement by that person in terrorism-related activity.
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(11)
It shall be immaterial, for the purposes of determining what obligations may
be imposed by a control order made by the court, whether the involvement in
terrorism-related activity to be prevented or restricted by the obligations is
connected with matters in relation to which the requirements of subsection
(3)(a) or (7)(a) were satisfied.
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4
Arrest and detention pending derogating control order
(1)
A constable may arrest and detain an individual if—
(a)
the Secretary of State has made an application to the court for a
derogating control order to be made against that individual; and
(b)
the constable considers that the individual’s arrest and detention is
30
necessary to ensure that he is available to be given notice of the order if
it is made.
(2)
A constable who has arrested an individual under this section must take him
to the designated place that the constable considers most appropriate as soon
as practicable after the arrest.
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(3)
An individual taken to a designated place under this section may be detained
there until the end of 48 hours from the time of his arrest.
(4)
If the court considers that it is necessary to do so to ensure that the individual
in question is available to be given notice of any derogating control order that
is made against him, it may, during the 48 hours following his arrest, extend
40
the period for which the individual may be detained under this section by a
period of no more than 48 hours.
(5)
An individual may not be detained under this section at any time after—
(a)
he has become bound by a derogating control order made against him
on the Secretary of State’s application; or
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(b)
the court has dismissed the application.

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(6)
A person who has the powers of a constable in one part of the United Kingdom
may exercise the power of arrest under this section in that part of the United
Kingdom or in any other part of the United Kingdom.
(7)
An individual detained under this section—
(a)
shall be deemed to be in legal custody throughout the period of his
5
detention; and
(b)
after having been taken to a designated place shall be deemed—
(i)
in England and Wales, to be in police detention for the purposes
of the Police and Criminal Evidence Act 1984 (c. 60); and
(ii)
in Northern Ireland, to be in police detention for the purposes
10
of the Police and Criminal Evidence (Northern Ireland) Order
1989 (S.I. 1989/1341 (N.I. 12));

but paragraph (b) has effect subject to subsection (8).
(8)
Paragraphs 1(6), 2, 6 to 9 and 16 to 19 of Schedule 8 to the Terrorism Act 2000
(c. 11) (powers and safeguards in the case of persons detained under section 41
15
of that Act) apply to an individual detained under this section as they apply to
a person detained under section 41 of that Act, but with the following
modifications—
(a)
the omission of paragraph 2(2)(b) to (d) (which confers powers on
persons specified by the Secretary of State, prison officers and
20
examining officers);
(b)
the omission of paragraph 8(2), (5) and (5A) (which relates to the
postponement of a person’s rights in England and Wales or Northern
Ireland); and
(c)
the omission of paragraphs 16(9) and 17(4) and (4A) (which make
25
similar provision for Scotland).
(9)
The power to detain an individual under this section includes power to detain
him in a manner that is incompatible with his right to liberty under Article 5 of
the Human Rights Convention if, and only if—
(a)
there is a designated derogation in respect of the detention of
30
individuals under this section in connection with the making of
applications for derogating control orders; and
(b)
that derogation and the designated derogation relating to the power to
make the orders applied for are designated in respect of the same
public emergency.
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(10)
In this section “designated place” means any place which the Secretary of State
has designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000
as a place at which persons may be detained under section 41 of that Act.
5
Duration of derogating control orders
(1)
A derogating control order has effect at a time only if—
40
(a)
the relevant derogation remains in force at that time; and
(b)
that time is not more than 12 months after—
(i)
the making of the order under section 14(1) of the Human
Rights Act 1998 (c. 42) designating that derogation; or
(ii)
the making by the Secretary of State of an order declaring that it
45
continues to be necessary for him to have power to impose
derogating obligations by reference to that derogation.