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Session 2004 - 05
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Prevention of Terrorism Bill

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(12)    

In every other case the court must decide that the control order is to

 

continue in force.

 

(13)    

If requested to do so by the controlled person, the court must discontinue

 

any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or

 

(c).”

37E

Page 5, line 12, at end insert the following new Clause—

 

      

“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

 

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 imposing obligations that are or include

 

derogating obligations (called a “derogating 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 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 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—

 

(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 protecting members of the public from a risk of

 

terrorism;

 

(c)    

that the risk arises 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; and

 

(d)    

that 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.

 

(4)    

The obligations that may be imposed by a derogating control order in the

 

period between—

 

(a)    

the time when the order is made, and

 

(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(1C).

 

(5)    

At the full hearing under subsection (1)(b), the court may—

 

(a)    

confirm the control order made by the court; or


 
 

Prevention of Terrorism Bill

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(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—

 

(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 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 is necessary for purposes connected with protecting

 

members of the public from a risk of terrorism;

 

(c)    

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; and

 

(d)    

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 designation order.

 

(8)    

A derogating control order ceases to have effect at the end of the period of

 

6 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 clause 4; or

 

(c)    

it is renewed.

 

(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—

 

(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 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;

 

(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 force are of a description that continues to be set out for the


 
 

Prevention of Terrorism Bill

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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.

 

(11)    

Where, on an application for the renewal of a derogating control order, it

 

appears to the court—

 

(a)    

that the proceedings on the application are unlikely to be completed

 

before the time when the order is due to cease to have effect if not

 

renewed, and

 

(b)    

that that is not attributable to an unreasonable delay on the part of

 

the Secretary of State in the making or conduct of the application,

 

    

the court may (on one or more occasions) extend the period for which the

 

order is to remain in force for the purpose of keeping it in force until the

 

conclusion of the proceedings.

 

(12)    

Where the court exercises its power under subsection (11) and

 

subsequently renews the control order in question, the period of any

 

renewal still runs from the time when the order would have ceased to have

 

effect apart from that subsection.

 

(13)    

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.”

37F

Page 6, line 14, after “a” insert “non-derogating”

37G

Page 6, line 22, after “a” insert “non-derogating”

37H

Page 6, line 30, leave out “by virtue of subsection (2)(d), make” and insert “make to

 

the obligations imposed by a control order”

37I

Page 6, line 32, leave out from “obligation” to end of line 40 and insert—

 

“(3A)    

An application may be made at any time to the court—

 

(a)    

by the Secretary of State, or

 

(b)    

by the controlled person,

 

    

for the revocation of a derogating control order or for the modification of

 

obligations imposed by such an order.

 

(3B)    

On such an application, the court may modify the obligations imposed by

 

the derogating control order only where—

 

(a)    

the modification consists in the removal or relaxation of an

 

obligation imposed by the order;

 

(b)    

the modification has been agreed to by both the controlled person

 

and the Secretary of State; or

 

(c)    

the modification is one which the court considers necessary for

 

purposes connected with preventing or restricting involvement by

 

the controlled person in terrorism-related activity.

 

(3C)    

The court may not, by any modification of the obligations imposed by a

 

derogating control order, impose any derogating obligation unless—


 
 

Prevention of Terrorism Bill

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(a)    

it considers that the modification is necessary for purposes

 

connected with protecting members of the public from a risk of

 

terrorism; and

 

(b)    

it appears to the court that the risk is one arising out of, or is

 

associated with, the public emergency in respect of which the

 

designated derogation in question has effect.

 

(3D)    

If the court at any time determines that a derogating control order needs to

 

be modified so that it no longer imposes derogating obligations, it must

 

revoke the order.”

37J

Page 6, line 44, after “(2)(d)” insert “or (3B)(c)”

37K

Page 7, line 12, after “State” insert “or the court”

37L

Page 10, line 27, at end insert—

 

“( )    

No appeal by any person other than the Secretary of State shall lie from any

 

determination—

 

(a)    

on an application for permission under (Supervision by court of

 

making of non-derogating control orders)(1)(a); or

 

(b)    

on a reference under section (Supervision by court of making of non-

 

derogating control orders)(3)(a).”

37M

Page 10, line 33, at end insert—

 

“( )    

proceedings on an application for permission under (Supervision by

 

court of making of non-derogating control orders)(1)(a);

 

( )    

proceedings on a reference under section (Supervision by court of

 

making of non-derogating control orders)(3)(a);

 

( )    

proceedings on a hearing in pursuance of directions under section

 

(Supervision by court of making of non-derogating control orders)(2)(c)

 

or (6)(b) or (c);”

37N

Page 14, line 10, leave out from second “order” to end of line 11 and insert “made

 

by the Secretary of State”

37O

Page 14, line 36, at end insert—

 

“( )    

Every power of the Secretary of State or of the court to revoke a control

 

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

 

(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

 

individual in question.”

Schedule

LORDS AMENDMENT NO. 38

38

Page 16, line 30, leave out sub-paragraphs (2) to (4) and insert—


 
 

Prevention of Terrorism Bill

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    “( )  

The relevant rules of court shall be made by the Lord Chief Justice after

 

consulting the Lord Chancellor.”

 

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.

 

LORDS AMENDMENT NO. 39

39

Page 17, line 5, leave out “by the Lord Chancellor”

 

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.

 

LORDS AMENDMENT NO. 40

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

 

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.

 

LORDS AMENDMENT NO. 42

42

Page 18, line 23, at end insert—

 

      (8)  

“Rules of court under this paragraph in relation to proceedings in

 

England and Wales—

 

(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

 

paragraph—

 

(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.


 
 

Prevention of Terrorism Bill

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      (6)  

Where rules cease to have effect in accordance with sub-paragraph

 

(5A)

 

(a)    

that does not affect anything previously done in reliance on the

 

rules;

 

(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

 

that person; and

 

(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

 

resolution procedure);

 

(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”


 
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