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Line 34, at end insert "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"
Line 67, at end insert "that 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"
"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 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.
(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 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
(b) the court has dismissed the application.
(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 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 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 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 examining officers);
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(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 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 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.
(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 (c. 11) as a place at which persons may be detained under section 41 of that Act."
The noble Baroness said: The preliminary hearing of a derogating control order will take place within a few days, if not hours, of the application by the Secretary of State. Because of thisand because the initial hearing will be on an ex parte basisthere will normally be no need for any additional provision.
However, in some cases it may be believed that an individual who is the subject of the control order application may disappear before such time as the order, if made, can be served on him. In derogating control order cases we need to be satisfied that the imposition of the most stringent condition is necessary to protect the public. An inability to act to prevent such an occurrence would leave a significant gap in the derogating control order system.
We have therefore provided that there should be a new power of police arrest and detention pending the preliminary hearing before the court for the necessary order. The new clause provides that the period of detention should be for a maximum of 48 hours in the first instance and the power arises only after the Secretary of State has made the application and provided that it is necessary to ensure that the suspect is available for service of the order if made. This may be extended under subsection (4) for a further 48 hours by the judge considering the ex parte application.
The remaining provisions relate to the status of the individual while detained under this provision, including applying many of the powers as safeguards provided in respect of Section 41 of the Terrorism Act detention provisions such as access to lawyers, the ability to notify someone of his arrest and similar matters. Such powers of arrest will in themselves require a derogation for Article 5 of the ECHR. Subsection (5) therefore provides for this.
Amendment No. 148 ensures that any proceedings questioning the arrest and detention of a person under the new powers fall within the definition of proceedings that may be considered by the court.
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