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| |
| | |
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| (12) | In every other case the court must decide that the control order is to |
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| |
| (13) | If requested to do so by the controlled person, the court must discontinue |
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| any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or |
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| |
37E | Page 5, line 12, at end insert the following new Clause— |
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| | “Power of court to make derogating control orders |
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| (1) | On an application to the court by the Secretary of State for the making of a |
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| control order against an individual, it shall be the duty of the court— |
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| (a) | to hold an immediate preliminary hearing to determine whether to |
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| make a control order imposing obligations that are or include |
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| derogating obligations (called a “derogating control order”) against |
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| |
| (b) | if it does make such an order against that individual, to give |
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| directions for the holding of a full hearing to determine whether to |
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| confirm the order (with or without modifications). |
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| (2) | The preliminary hearing under subsection (1)(a) may be held— |
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| (a) | in the absence of the individual in question; |
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| (b) | without his having had notice of the application for the order; and |
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| (c) | without his having been given an opportunity (if he was aware of |
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| the application) of making any representations to the court; |
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| | but this subsection is not to be construed as limiting the matters about |
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| which rules of court may be made in relation to that hearing. |
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| (3) | At the preliminary hearing, the court may make a control order against the |
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| individual in question if it appears to the court— |
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| (a) | that there is material which (if not disproved) is capable of being |
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| relied on by the court as establishing that the individual is or has |
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| been involved in terrorism-related activity; |
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| (b) | that there are reasonable grounds for believing that the imposition |
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| of obligations on that individual is necessary for purposes |
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| connected with protecting members of the public from a risk of |
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| |
| (c) | that the risk arises out of, or is associated with, a public emergency |
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| in respect of which there is a designated derogation from the whole |
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| or a part of Article 5 of the Human Rights Convention; and |
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| (d) | that the obligations that there are reasonable grounds for believing |
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| should be imposed on the individual are or include derogating |
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| obligations of a description set out for the purposes of the |
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| designated derogation in the designation order. |
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| (4) | The obligations that may be imposed by a derogating control order in the |
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| |
| (a) | the time when the order is made, and |
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| (b) | the time when a final determination is made by the court whether |
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| |
| | include any obligations which the court has reasonable grounds for |
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| considering are necessary as mentioned in section 1(1C). |
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| (5) | At the full hearing under subsection (1)(b), the court may— |
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| (a) | confirm the control order made by the court; or |
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| |
| | |
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| |
| | and where the court revokes the order, it may (if it thinks fit) direct that this |
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| Act is to have effect as if the order had been quashed. |
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| (6) | In confirming a control order, the court— |
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| (a) | may modify the obligations imposed by the order; and |
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| (b) | where a modification made by the court removes an obligation, |
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| may (if it thinks fit) direct that this Act is to have effect as if the |
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| removed obligation had been quashed. |
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| (7) | At the full hearing, the court may confirm the control order (with or |
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| without modifications) only if— |
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| (a) | it is satisfied, on the balance of probabilities, that the controlled |
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| person is an individual who is or has been involved in terrorism- |
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| |
| (b) | it considers that the imposition of obligations on the controlled |
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| person is necessary for purposes connected with protecting |
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| members of the public from a risk of terrorism; |
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| (c) | it appears to the court that the risk is one arising out of, or is |
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| associated with, a public emergency in respect of which there is a |
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| designated derogation from the whole or a part of Article 5 of the |
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| Human Rights Convention; and |
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| (d) | the obligations to be imposed by the order or (as the case may be) |
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| by the order as modified are or include derogating obligations of a |
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| description set out for the purposes of the designated derogation in |
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| |
| (8) | A derogating control order ceases to have effect at the end of the period of |
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| 6 months beginning with the day on which it is made unless— |
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| (a) | it is previously revoked (whether at the hearing under subsection |
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| (1)(b) or otherwise under this Act); |
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| (b) | it ceases to have effect under clause 4; or |
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| |
| (9) | The court, on an application by the Secretary of State, may renew a |
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| derogating control order (with or without modifications) for a period of 6 |
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| months from whichever is the earlier of— |
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| (a) | the time when the order would otherwise have ceased to have |
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| |
| (b) | the beginning of the seventh day after the date of renewal. |
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| (10) | The power of the court to renew a derogating control order is exercisable |
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| on as many occasions as the court thinks fit; but, on each occasion, it is |
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| |
| (a) | the court considers that it is necessary, for purposes connected with |
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| protecting members of the public from a risk of terrorism, for a |
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| derogating control order to continue in force against the controlled |
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| |
| (b) | it appears to the court that the risk is one arising out of, or is |
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| associated with, a public emergency in respect of which there is a |
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| designated derogation from the whole or a part of Article 5 of the |
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| |
| (c) | the derogating obligations that the court considers should continue |
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| in force are of a description that continues to be set out for the |
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|
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| |
| | |
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| purposes of the designated derogation in the designation order; |
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| |
| (d) | the court considers that the obligations to be imposed by the |
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| renewed order are necessary for purposes connected with |
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| preventing or restricting involvement by that person in terrorism- |
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| |
| (11) | Where, on an application for the renewal of a derogating control order, it |
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| |
| (a) | that the proceedings on the application are unlikely to be completed |
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| before the time when the order is due to cease to have effect if not |
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| |
| (b) | that that is not attributable to an unreasonable delay on the part of |
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| the Secretary of State in the making or conduct of the application, |
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| | the court may (on one or more occasions) extend the period for which the |
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| order is to remain in force for the purpose of keeping it in force until the |
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| conclusion of the proceedings. |
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| (12) | Where the court exercises its power under subsection (11) and |
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| subsequently renews the control order in question, the period of any |
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| renewal still runs from the time when the order would have ceased to have |
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| effect apart from that subsection. |
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| (13) | It shall be immaterial, for the purposes of determining what obligations |
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| may be imposed by a control order made by the court, whether the |
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| involvement in terrorism-related activity to be prevented or restricted by |
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| the obligations is connected with matters in relation to which the |
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| requirements of subsection (3)(a) or (7)(a) were satisfied.” |
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37F | Page 6, line 14, after “a” insert “non-derogating” |
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37G | Page 6, line 22, after “a” insert “non-derogating” |
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37H | Page 6, line 30, leave out “by virtue of subsection (2)(d), make” and insert “make to |
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| the obligations imposed by a control order” |
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37I | Page 6, line 32, leave out from “obligation” to end of line 40 and insert— |
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| “(3A) | An application may be made at any time to the court— |
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| (a) | by the Secretary of State, or |
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| (b) | by the controlled person, |
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| | for the revocation of a derogating control order or for the modification of |
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| obligations imposed by such an order. |
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| (3B) | On such an application, the court may modify the obligations imposed by |
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| the derogating control order only where— |
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| (a) | the modification consists in the removal or relaxation of an |
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| obligation imposed by the order; |
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| (b) | the modification has been agreed to by both the controlled person |
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| and the Secretary of State; or |
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| (c) | the modification is one which the court considers necessary for |
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| purposes connected with preventing or restricting involvement by |
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| the controlled person in terrorism-related activity. |
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| (3C) | The court may not, by any modification of the obligations imposed by a |
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| derogating control order, impose any derogating obligation unless— |
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|
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| |
| | |
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| (a) | it considers that the modification is necessary for purposes |
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| connected with protecting members of the public from a risk of |
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| |
| (b) | it appears to the court that the risk is one arising out of, or is |
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| associated with, the public emergency in respect of which the |
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| designated derogation in question has effect. |
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| (3D) | If the court at any time determines that a derogating control order needs to |
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| be modified so that it no longer imposes derogating obligations, it must |
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| |
37J | Page 6, line 44, after “(2)(d)” insert “or (3B)(c)” |
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37K | Page 7, line 12, after “State” insert “or the court” |
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37L | Page 10, line 27, at end insert— |
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| “( ) | No appeal by any person other than the Secretary of State shall lie from any |
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| |
| (a) | on an application for permission under (Supervision by court of |
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| making of non-derogating control orders)(1)(a); or |
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| (b) | on a reference under section (Supervision by court of making of non- |
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| derogating control orders)(3)(a).” |
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37M | Page 10, line 33, at end insert— |
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| “( ) | proceedings on an application for permission under (Supervision by |
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| court of making of non-derogating control orders)(1)(a); |
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| ( ) | proceedings on a reference under section (Supervision by court of |
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| making of non-derogating control orders)(3)(a); |
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| ( ) | proceedings on a hearing in pursuance of directions under section |
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| (Supervision by court of making of non-derogating control orders)(2)(c) |
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| |
37N | Page 14, line 10, leave out from second “order” to end of line 11 and insert “made |
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| by the Secretary of State” |
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37O | Page 14, line 36, at end insert— |
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| “( ) | Every power of the Secretary of State or of the court to revoke a control |
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| order or to modify the obligations imposed by such an order— |
|
| (a) | includes power to provide for the revocation or modification to take |
|
| effect from such time as the Secretary of State or (as the case may be) |
|
| the court may determine; and |
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| (b) | in the case of a revocation by the court (including a revocation in |
|
| pursuance of section 5(3D)) includes power to postpone the effect |
|
| of the revocation either pending an appeal or for the purpose of |
|
| giving the Secretary of State an opportunity to decide whether to |
|
| exercise his own powers to make a control order against the |
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| |
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|
38 | Page 16, line 30, leave out sub-paragraphs (2) to (4) and insert— |
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|
|
| |
| | |
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| “( ) | The relevant rules of court shall be made by the Lord Chief Justice after |
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| consulting the Lord Chancellor.” |
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| COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU |
|
| The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose |
|
| Amendments 42A to 42C in lieu. |
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| |
39 | Page 17, line 5, leave out “by the Lord Chancellor” |
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| COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU |
|
| The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose |
|
| Amendments 42A to 42C in lieu. |
|
| |
40 | Page 17, line 11, leave out from beginning to end of line 3 on page 18 and insert— |
|
| “( ) | The rules of court must comply with the United Kingdom’s obligations |
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| under Article 6 of the European Convention on Human Rights.” |
|
| COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU |
|
| The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose |
|
| Amendments 42A to 42C in lieu. |
|
| |
42 | Page 18, line 23, at end insert— |
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| (8) | “Rules of court under this paragraph in relation to proceedings in |
|
| |
| (a) | must be laid before Parliament after being made; and |
|
| (b) | if not approved by a resolution of each House of Parliament |
|
| before the end of 40 days beginning with the day on which the |
|
| order was made, cease to have effect at the end of that period.” |
|
| COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU |
|
| The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose the |
|
| following Amendments in lieu— |
|
42A | Page 17, line 5, leave out sub-paragraph (5) and insert— |
|
| “(5A) | Rules of court made by the Lord Chancellor by virtue of this |
|
| |
| (a) | must be laid before Parliament; and |
|
| (b) | if 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) | Where rules cease to have effect in accordance with sub-paragraph |
|
| |
| (a) | that does not affect anything previously done in reliance on the |
|
| |
| (b) | the Lord Chancellor is to have power again to exercise the |
|
| relevant powers, in relation to the proceedings in question, |
|
| instead of the person by whom they are otherwise exercisable; |
|
| (c) | he may exercise them on that occasion without undertaking any |
|
| consultation that would be required in the case of rules made by |
|
| |
| (d) | the rules made by the Lord Chancellor on that occasion may |
|
| include rules to the same or similar effect. |
|
| (7) | The following provisions do not apply to rules made by the Lord |
|
| Chancellor by virtue of this paragraph— |
|
| (a) | section 3(2) of the Civil Procedure Act 1997 (c. 12) (negative |
|
| |
| (b) | section 56 of the Judicature (Northern Ireland) Act 1978 (c. 23) |
|
| (statutory rules procedure). |
|
| (8) | In sub-paragraph (5A) “40 days” means 40 days computed as provided |
|
| for in section 7(1) of the Statutory Instruments Act 1946 (c. 36).” |
|
42B | Page 17, line 12, leave out “and burden” |
|
42C | Page 17, line 42, leave out from “required” to “in” in line 45 and insert “to comply |
|
| with any provision of rules of court, or order of the relevant court, for the |
|
| disclosure to a person other than the court or a person appointed under paragraph |
|
| 7 of any matter in respect of which the Secretary of State has made such an |
|
| application but on which he does not then rely” |
|
|