05041.8-14

House of Lords

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Prevention of Terrorism Bill
8

used for the purposes of a prosecution of the individual for an offence

relating to terrorism.”
16E
Line 10, at beginning insert “If a control order is made against the individual”
16F
Line 11, leave out “this section” and insert “subsection (3)”
16G
Line 16, leave out subsection (4) and insert—

“(4A)
In carrying out his functions by virtue of this section the chief officer must

consult the relevant prosecuting authority, but only, in the case of the

performance of his duty under subsection (3), to the extent that he

considers it appropriate to do so.

(4B)
The requirements of subsection (4A) may be satisfied by consultation that

took place wholly or partly before the passing of this Act.”
Clause 7
LORDS AMENDMENT NO. 17
17
Leave out Clause 7

COMMONS DISAGREEMENT AND AMENDMENTS

The Commons disagree with the Lords in their Amendment but propose the following

Amendments to the words so restored to the Bill—
17A
Page 8, line 33, leave out “made or”
17B
Page 8, line 36, leave out “making”
17C
Page 9, line 3, leave out subsection (4)
17D
Page 9, line 15, leave out second “the” and insert “a”
17E
Page 9, line 34, leave out “(4) to” and insert “(5) and”
17F
Page 9, line 38, leave out “the order or its renewal” and insert “the renewal of the

order”
Clause 9
LORDS AMENDMENT NO. 22
22
Page 11, line 1, leave out “Secretary of State” and insert “court”

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but

propose Amendments 37A to 37O in lieu.

LORDS AMENDMENT NO. 23
23
Page 11, line 1, leave out from “exercise” to end of line 3 and insert “or performance

of any power or duty under any of sections 1 to (Criminal investigations after making

of control order) or for the purposes of or in connection with the exercise or

performance of any such power or duty;”

Prevention of Terrorism Bill
9

COMMONS AGREEMENT WITH AMENDMENT

The Commons agree to this Amendment with the following Amendment—
23A
Line 2, after “duty” insert “of his”
Clause 11
LORDS AMENDMENT NO. 27
Page 12, line 44, leave out subsections (2) to (6)

COMMONS DISAGREEMENT AND REASON

The Commons disagree to this Amendment for the following Reason—
27A
Because adequate provision is already made for the review of the operation of the Act.

LORDS AMENDMENT NO. 28
28
Page 13, line 14, leave out “make, renew, modify and revoke” and insert “make

application to the court for the making, renewing, modification and revoking of”

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but

propose Amendments 37A to 37O in lieu.
After Clause 11
LORDS AMENDMENT NO. 31
31
Insert the following new Clause—

“Review of Act

(1)
The Secretary of State shall appoint a committee to conduct a review of the

operation of this Act.

(2)
A person may be a member of the committee only if he is a member of the

Privy Council.

(3)
There shall be five members of the committee of whom one each will be

nominated by—

(a)
the Prime Minister;

(b)
the Leader of the Opposition in the House of Commons;

(c)
the Leader of the Liberal Democrats in the House of Commons;

(d)
the Convenor of the Crossbench peers in the House of Lords;

(e)
the Lord Chief Justice of England and Wales.

(4)
The Secretary of State may not refuse any nomination made under

subsection (3).

(5)
The committee shall complete a review and send a report to the Secretary

of State—

Prevention of Terrorism Bill
10

(a)
not earlier than the end of four months beginning with the day on

which this Act is passed; and

(b)
not later than the end of eight months beginning with the day on

which this Act is passed.

(6)
The Secretary of State shall lay a copy of the report before Parliament as

soon as is reasonably practicable.

(7)
The Secretary of State may make payments to persons appointed as

members of the committee.”

COMMONS DISAGREEMENT AND REASON

The Commons disagree to this Amendment for the following Reason—
31A
Because adequate provision is already made for the review of the operation of the Act.

LORDS AMENDMENT NO. 32
32
Insert the following new Clause—

“Effect of report

(1)
A report under section (Review of Act) must consider the operation and

effectiveness of the Act as a whole and any issues arising from the

operation of individual control orders, and may make such

recommendations as the committee sees fit including recommendations for

future legislation.

(2)
Any recommendation made under subsection (1) shall not affect the

operation of section (Limitation).”

COMMONS DISAGREEMENT AND REASON

The Commons disagree to this Amendment for the following Reason—
32A
Because adequate provision is already made for the review of the operation of the Act.

LORDS AMENDMENT NO. 33
33
Insert the following new Clause—

“Limitation

This Act and any order made under it shall by virtue of this section cease

to have effect on 30th November 2005.”

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

The Commons disagree with the Lords in their Amendment but propose the following

Amendments in lieu—
33A
Page 12, line 37, at end insert the following new Clause—

Prevention of Terrorism Bill
11


“Duration of ss. 1 to 6

(1)
Except so far as otherwise provided under this section, sections 1 to 6

expire at the end of the period of 12 months beginning with the day on

which this Act is passed.

(2)
The Secretary of State may, by order made by statutory instrument—

(a)
repeal sections 1 to 6;

(b)
at any time revive those sections for a period not exceeding one

year; or

(c)
provide that those sections—

(i)
are not to expire at the time when they would otherwise

expire under subsection (1) or in accordance with an order

under this subsection; but

(ii)
are to continue in force after that time for a period not

exceeding one year.

(3)
No order may be made by the Secretary of State under this section unless a

draft of it has been laid before Parliament and approved by a resolution of

each House.

(4)
Subsection (3) does not apply to an order that contains a declaration by the

Secretary of State that the order needs, by reason of urgency, to be made

without the approval required by that subsection.

(5)
An order under this section that contains such a declaration—

(a)
must be laid before Parliament after being made; and

(b)
if not approved by a resolution of each House before the end of 40

days beginning with the day on which the order was made, ceases

to have effect at the end of that period.

(6)
Where an order ceases to have effect in accordance with subsection (5), that

does not—

(a)
affect anything previously done in reliance on the order; or

(b)
prevent the making of a new order to the same or similar effect.

(7)
Where sections 1 to 6 expire or are repealed at any time by virtue of this

section, that does not prevent or otherwise affect—

(a)
the court’s consideration of a reference made before that time under

subsection (3)(a) of section (Supervision by court of making of non-

derogating control orders);

(b)
the holding or continuation after that time of any hearing in

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

that section;

(c)
the holding or continuation after that time of a hearing to determine

whether to confirm a derogating control order (with or without

modifications); or

(d)
the bringing or continuation after that time of any appeal, or further

appeal, relating to a decision in any proceedings mentioned in

paragraphs (a) to (c) of this subsection;


but proceedings may be begun or continued by virtue of this subsection so

far only as they are for the purpose of determining whether a certificate of

the Secretary of State, a control order or an obligation imposed by such an

order should be quashed or treated as quashed.

Prevention of Terrorism Bill
12

(8)
Nothing in this Act about the period for which a control order is to have

effect or is renewed enables such an order to continue in force after the

provision under which it was made or last renewed has expired or been

repealed by virtue of this section.

(9)
In subsection (5) “40 days” means 40 days computed as provided for in

section 7(1) of the Statutory Instruments Act 1946 (c. 36).”
33B
Page 13, line 1, leave out “every relevant 12 month period” and insert—

“( )
the period of 12 months beginning with the day on which this Act

is passed, or

( )
every period specified in an order under section (Duration of ss. 1 to

6) as a period for which those sections are revived or continued in

force,”
33C
Page 13, leave out lines 16 to 18 and insert—

“( )
the period of 3 months beginning with the passing of this

Act;

( )
a period of 3 months beginning with a time which—

(i)
is the beginning of a period for which sections 1 to 6

are revived by an order under section (Duration of ss.

1 to 6); and

(ii)
falls more than 3 months after the time when those

sections were last in force before being revived;

( )
a 3 month period which begins with the end of a previous

relevant 3 month period and is a period during the whole or

a part of which those sections are in force.”
Clause 12
LORDS AMENDMENT NO. 37
37
Page 14, line 37, leave out subsection (3)

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but

propose the following Amendments in lieu—
37A
Page 4, line 36, at beginning insert—

“(A1)
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 a risk of terrorism, to make

a control order imposing obligations on that individual.

(A2)
The Secretary of State may make a control order against an individual who

is for the time being bound by a control order made by the court only if he

does so—

(a)
after the court has determined that its order should be revoked; but

Prevention of Terrorism Bill
13

(b)
while the effect of the revocation has been postponed 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.

(A3)
A control order made by the Secretary of State is called a non-derogating

control order.”
37B
Page 5, line 2, leave out second “the” and insert “a”
37C
Page 5, line 12, at end insert—

“( )
It shall be immaterial, for the purposes of determining what obligations

may be imposed by a control order made by the Secretary of State, whether

the involvement in terrorism-related activity to be prevented or restricted

by the obligations is connected with matters to which the Secretary of

State’s grounds for suspicion relate.”
37D
Page 5, line 12, at end insert the following new Clause—


“Supervision by court of making of non-derogating control orders

(1)
The Secretary of State must not make a non-derogating control order

against an individual except where—

(a)
having decided that there are grounds to make such an order

against that individual, he has applied to the court for permission

to make the order and has been granted that permission;

(b)
the order contains a statement by the Secretary of State that, in his

opinion, the urgency of the case requires the order to be made

without such permission; or

(c)
the order is made before 14th March 2005 against an individual

who, at the time it is made, is an individual in respect of whom a

certificate under section 21(1) of the Anti-terrorism, Crime and

Security Act 2001 (c. 24) is in force.

(2)
On an application for permission to make a non-derogating control order

against an individual—

(a)
the function of the court is to consider whether the Secretary of

State’s decision that there are grounds to make the order in

question against that individual is obviously flawed;

(b)
the court may give that permission unless it determines that that

decision is obviously flawed; and

(c)
if it gives permission, the court must give directions for a hearing in

relation to the order as soon as reasonably practicable after it is

made.

(3)
Where the Secretary of State makes a non-derogating control order against

an individual without the permission of the court—

(a)
he must immediately refer the order to the court; and

(b)
the function of the court on the reference is to consider whether the

decision of the Secretary of State to make the order he did was

obviously flawed.

(4)
The court’s consideration on a reference under subsection (3)(a) must begin

no more than 7 days after the day on which the control order in question

was made.

Prevention of Terrorism Bill
14

(5)
The court may consider an application for permission under subsection

(1)(a) or a reference under subsection (3)(a)—

(a)
in the absence of the individual in question;

(b)
without his having been notified of the application or reference;

and

(c)
without his having been given an opportunity (if he was aware of

the application or reference) 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 the consideration of such

an application or reference.

(6)
On a reference under subsection (3)(a), the court—

(a)
if it determines that the decision of the Secretary of State to make a

non-derogating control order against the controlled person was

obviously flawed, must quash the order;

(b)
if it determines that that decision was not obviously flawed but that

a decision of the Secretary of State to impose a particular obligation

by that order was obviously flawed, must quash that obligation and

(subject to that) confirm the order and give directions for a hearing

in relation to the confirmed order; and

(c)
in any other case, must confirm the order and give directions for a

hearing in relation to the confirmed order.

(7)
On a reference under subsection (3)(a), the court may quash a certificate

contained in the order for the purposes of subsection (1)(b) if it determines

that the Secretary of State’s decision that the certificate should be contained

in the order was flawed.

(8)
The court must ensure that the controlled person is notified of its decision

on a reference under subsection (3)(a).

(9)
On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or

(c), the function of the court is to determine whether any of the following

decisions of the Secretary of State was flawed—

(a)
his decision that the requirements of section 3(A1)(a) and (b) were

satisfied for the making of the order; and

(b)
his decisions on the imposition of each of the obligations imposed

by the order.

(10)
In determining—

(a)
what constitutes a flawed decision for the purposes of subsection

(2), (6) or (7), or

(b)
the matters mentioned in subsection (9),


the court must apply the principles applicable on an application for judicial

review.

(11)
If the court determines, on a hearing in pursuance of directions under

subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was

flawed, its only powers are—

(a)
power to quash the order;

(b)
power to quash one or more obligations imposed by the order; and

(c)
power to give directions to the Secretary of State for the revocation

of the order or for the modification of the obligations it imposes.