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Baroness Scotland of Asthal: In relation to these amendments I would like to reiterate the comments I made in relation to the previous group of amendments and add to them. The Secretary of State can revoke, or apply to the court to revoke, a control order at any time if it ceases to be necessary, or he may modify, or seek modification of, any of the obligations imposed. It is open to the subject of the order to apply at any time to the Secretary of State, or to court, as the case may be, for a revocation of the order or for conditions to be varied, if he believes that circumstances have changed. Given the ongoing, active monitoring that will be involved in control orders, we do not believe that a modification to the drafting in the way suggested by the amendment is necessary. Furthermore, it would be likely to hinder optimal operational effectiveness.
I understand that Amendment No. 96 is a probing amendment. It prevents the making of a new derogating control order after the period specified for the first order expires. It also prevents the Home Secretary making a new derogating control order once the period of the first order has expired. In my earlier remarks, I made clear that we think that it is important for each control order to be for an identifiable, limited period, notwithstanding the fact that we will be reviewing the situation on a continuous basis. It would significantly undermine the effectiveness of the control order scheme if it were not possible for derogating control orders to continue, in appropriate cases, after the initial periods for which they are imposed.
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By definition, the derogating control orders would be imposed on those thought to pose the gravest threats to public safety. It is right that such severe measures should be kept under close review and the need for them should be reassessed carefully every six months. It is possibleas has been the case with some of the current detaineesthat the risk an individual poses can diminish over time. In that event, when looking at an order for which derogation has been needed, it might be appropriate to contemplate restrictions falling short of a deprivation of liberty. If nothing had changed over a six month period and yet the risk posed by the individual was the same as when the Home Secretary, or, as the case may now be, the court, had deemed it appropriate to impose such stringent controls, it would be irresponsible not to have the means to continue to assure the public that it was still safe.
This is about ensuring certainty of time span, making sure that orders are reviewed properly and giving the relevant parties an opportunity to raise additional matters for revocation in relation to those orders. The two fit together.
Baroness Williams of Crosby: In a situation where evidence emerges well before the six-month review that throws doubt on the evidence on which the control order was made, do the Government have in mind any provision that would enable a rapid review of that case to take place? Clearly, there could be indications that the original evidence was unsound.
Baroness Scotland of Asthal: That is why I said that there would be a review of the situation and that the Home Secretary could revoke the order before it expired, or application could be made to the court, now that we have passed Amendment No. 56, indicating that there had been a change of circumstances that merited such a revocation or the amendment of certain of the conditions. It may be that conditions change and indicate that some of the limitations, or restrictions imposed by way of conditions, are no longer merited. The idea is to have the certainty of an initial period of six or 12 months and then allowing flexibility for revocation because of change of circumstances.
The Duke of Montrose: I thank the Minister for that explanation. As I understand it, the provision in Clause 4(1)(c)that the derogating control order may not be renewedmeans that the order may not be rolled forward, but that a new order must be brought in. In the light of that, I beg leave to withdraw the amendment.
"( ) 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."
"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).
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(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
(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.
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(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 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) 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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