Amendments moved in the Commons 01 March 2005

AMENDMENTS

Amendments are shown in the following colours:
Labour

Conservative

Liberal Democrat

Labour + Liberal Democrat

Labour + Plaid Cymru

Plaid Cymru + Scottish National Party

Liberal Democrat + Conservative

Labour + Plaid Cymru + Scottish National Party

Labour + Liberal Democrat + Conservative

Labour + Conservative

OUTCOME OF COMMITTEE STAGE AND THIRD READING IN THE HOUSE OF COMMONS

The vast majority of the amendments set out below were either not selected for debate or not called.  The outcome for each amendment can be found at:

http://www.publications.parliament.uk/pa/cm200405/cmbills/061/cwh280205.225-231.html#top

Only two amendments – one requiring the Secretary of State to apply to the courts for control orders, and the other inserting a new clause about the power to make control orders which would also have given supremacy to the courts – were both defeated.  These two amendments have been marked [AMENDMENT NEGATED ON DEBATE] in the text below.  The Bill therefore goes forward to the House of Lords on 1^st March 2005 unamended.

Bill 61 53/4

Prevention of Terrorism Bill

CONTENTS

Control orders

1 Power to make control orders

2 Derogations from the right to liberty

3 Duration and renewal of non-derogating control orders

4 Duration of derogating control orders

5 Modification, notification and proof of orders etc.

6 Offences

Challenging and appealing against control orders

7 Appeals relating to non-derogating control orders

8 Appeals relating to derogating control orders

9 Jurisdiction and appeals in relation to control order decisions etc.

10 Effect of court’s decisions on convictions

Supplemental

11 Reporting and review

12 General interpretation

13 Other supplemental provisions

Schedule — Control order proceedings etc.

Bill 61 53/4

A

B I L L

TO

Provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings relating to such orders; and for connected purposes.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Control orders

1 Power to make control orders

(1) The Secretary of State may having consulted with, and obtained the consent of, the Intelligence and Security Committee of the House of Commons make apply to the court for [THIS AMENDMENT WAS NEGATED ON DEBATE] an order (called a “control order”) against an individual if he—

(a) has reasonable grounds for suspecting [believing] that the individual is or has been involved in terrorism-related activity; and

(a) is satisfied, on the balance of probabilities, that that person is an individual who is or has been involved in terrorism-related activity;

(b) considers that it is necessary, for the purpose of purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on the individual; and

(c) obtain the agreement of the Intelligence and Security Committee (“the Committee”).

(1A)   For the purposes of subsection (1)(c)—

(a) the Secretary or State must place before the Committee—

(i) the evidence on which he relied in deciding to apply for the making of a control order, and

(ii) a statement for the reasons for his decision, and

(b) the Committee must decide, within 5 days of receiving that evidence and that statement, whether or not to agree to the application.

(c) has been advised by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution.

(1A)   An application for a control order may be made with or without notice to the individual against whom it is proposed to be made.

(1B)   On hearing an application for a control order, the court may—

(1C)   A control order shall provide a period for further review by the court unless the court is satisfied that the individual against whom it is made has had a full opportunity to contest the making of the order.

(2) A control order may impose any an obligation in subsection (3) below on the individual against whom it is made that the court on the application of the Secretary of State court considers necessary for purposes connected with preventing or restricting further involvement by that individual in terrorism-related activity (whether or not activity by reference to which the Secretary of State was satisfied for the purposes of subsection (1)(a)).

(3) The obligations that may be imposed by a control order on the controlled person are include, in particular—

(a) a prohibition or restriction on his possession or use of specified articles or substances;

(b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities;

(c) a restriction in respect of his work or other occupation, or in respect of his business;

(d) a restriction on his association or communications with specified persons or with other persons generally;

(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;

(f) a prohibition on his being at specified places or within a specified area at specified times or on specified days;

(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom;

(h) a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person police constable and for the purpose of securing compliance with

other obligations imposed by or under the order;

(i) a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person police constable for a period not exceeding the period for which the order remains in force;

(j) a requirement on him to give access to specified persons police constables to his place of residence or to other premises to which he has power to grant access;

(k) a requirement on him to allow specified persons police constables to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;

(l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for

which the order remains in force;

(m) a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;

(n) a requirement on him to comply with a demand made in the specified manner to provide information to a specified person [police constable] in accordance with the demand;[

(o) a requirement on him to report to a specified person police constable at specified times and places.

(3A) A control order may not prevent or restrict the controlled person from meeting with or contacting by telephone his legal representatives in connection with the control order or any other matter.

(3A)   A control order may not prevent or restrict the controlled person from voting in person in any election.

(3A)   A control order may not prevent or restrict the controlled person from standing as a candidate in any election, including attending his election count.

(3A)   A control order may not prevent or restrict the controlled person from displaying a poster in support of or opposition to any candidate or political party at an election.'.

(3A)   Where a controlled person is required to meet with or report to a specified person he shall be entitled to have his legal representative present.'

(3A)   A control order may not require a person to provide information or to answer questions.

(3A)   A control order may not require the controlled person to leave the United Kingdom.'.

(3A)   A control order may not require the controlled person to talk to any specified person or any other person who is not a British citizen or is in the employment of or under contract to any foreign government.

(3A)   A control order may not require the controlled person to submit to torture or to inhuman or degrading treatment.

'(3A)   A control order may only impose an obligation on a controlled person to meet, report to or otherwise have dealings with, or to allow on to land or buildings in his occupation, a police constable.

(3A)   A control order may only impose an obligation on a controlled person to meet. report to or otherwise have dealings with, or to allow on to land or buildings in his occupation, a specified person or any person who is a British citizen and is not in the employment of or under contract to any foreign government.

(4) Every power by or under a control order to prohibit or restrict the controlled person’s movements—

(a) includes, in particular,  [shall not be construed so as to include] power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times or generally); and

(b) is subject (where they are applicable) to the provisions of section 2.

(5) The reference in subsection (3)(m) to co-operating with specified arrangements for monitoring includes a reference to each of the following—

(a) submitting to procedures required by the arrangements;

(b) wearing or otherwise using apparatus approved by or in accordance with the arrangements;

(c) maintaining such apparatus in the specified manner;

(d) complying with directions given by persons carrying out functions for the purposes of those arrangements.

(6) The information that the controlled person may be required to provide under a control order includes, in particular, advance information about his proposed movements or other activities.

(6A)   Where the Secretary of State makes a control order—

(6B)   The court's consideration on a reference under subsection (6A)(a) must begin no more than 7 days after the day on which the control order in question was made.

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

(6D)   On a hearing by the court under subsection (6C)(c), the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State—

and the court must make its own determination on each of those matters.

(6E)   The powers of the court in making the determinations under subsection (6D) are confined to—

    (6F)   If requested to do so by the controlled person, the court must discontinue—

(7) A control order may provide for a prohibition, restriction or requirement imposed by or under the order to apply only where a specified person police constable has not given his consent or approval to what would otherwise contravene the prohibition, restriction or requirement.

(7A)   A control order may not be made against more than one individual.

(8) For the purposes of this Act involvement in terrorism-related activity is any one or more of the following—

(a) the commission, preparation or instigation of acts of terrorism related to a threat to national security or a threat to the national security of other nations;

(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c) conduct which is intended to give encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.

(9)   Before making a control order the Secretary of State must—

[NB, also a proposed amendment from Mr Win Griffiths, Mrs Jackie Lawrence, Mr Richard Burden, Mr Clive Betts, Mr Simon Thomas, Mr Alex Salmond to leave out Clause 1 entirely]

2 Derogations from the right to liberty

(1) The court on the application of the Secretary of State may make apply for [apply to the court for] a control order under section 1 imposing an obligation that is incompatible with the controlled person’s right to liberty under Article 5 of the Human Rights Convention if, but only if—

(a) he it is satisfied, on the balance of probabilities beyond reasonable doubt, that that person is an individual who is or has been involved in terrorism-related activity;

(b) he it considers that the imposition of the obligation is necessary for the purpose of purposes connected with protecting members of the public from risks arising out of, or associated with, a particular  public emergency;

(c) there is for the time being a designated derogation in respect of that emergency from the whole or a part of that Article; and

(d) the obligation is of a description of obligations which, for the purposes of that derogation, is set out in the designation order; and

 (1A)   For the purposes of subsection (1)(e)—

(2) Where the court on the application of the Secretary of State applies for makes a control order imposing a derogating obligation—

(a) he must immediately refer the order to the court and notify the controlled person that he has done so; and

(b) the court must consider whether the matters relied on by the Secretary of State to justify the making of the order were capable (if not disproved) of constituting reasonable grounds for him to make the order he did.

(3) The court’s consideration on a reference under subsection (2)(a) must begin no more than 7 days after the day on which the control order in question was made.

[alternative Conservative amendment:

(3A) The controlled person has a right to be heard on a reference under subsection (2)(a)]

(4) On a reference under subsection (2)(a), the court—

(a) if not satisfied that the matters relied on by the Secretary of State were capable of constituting reasonable grounds for him to make a control order against the controlled person, must quash the order;

(b) if satisfied that they were capable of constituting reasonable grounds for the making of a control order against that person but not for the making of one imposing a derogating obligation, must quash the derogating obligation imposed by the order; and

[alternative Conservative amendment:

(c) in any other case, must give directions for the carrying out of a hearing by the court relating to the order.

(5) On a hearing by the court under subsection (4)(c), the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State—

(a) in making his decision to make the order; and

(b) in making his decisions to impose the obligations imposed by the order;

and the court must make its own determination on each of those matters.

(6) The powers of the court in making the determinations under subsection (5) are confined to—

(a) power to confirm the order as made;

(b) power to quash the order;

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

(d) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

[alternative Conservative amendments:

(e) power to award damages to the controlled person.

(e) power to award to the controlled person their costs of proceedings.]

(7) If requested to do so by the controlled person, the court must discontinue—

(a) a reference under subsection (2)(a); or

(b) a hearing under subsection (4)(c).

(2) Where the Secretary of State applies for a control order imposing a derogating obligation—

(2) Where the court on the application of the Secretary of State makes a control order imposing a derogating obligation—

[alternative proposed amendment by Conservatives:

(2) (b) the court must consider whether the Secretary of State has shown on the balance of probabilities—

(5) On a hearing of the appeal under subsection (4)(c), the court must conduct its own hearing of each of the matters that fell to be determined by the court on the application of the Secretary of State—

(a) in making his decision to make the order; and

(b) in making his decisions to impose the obligations imposed by the order;

and the court must make its own determination on each of those matters.

(6) The powers of the court in making the determinations under subsection (5) are confined to—

(a) power to confirm the order as made;

(b) power to quash the order;

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

(d) power to give directions to the court of first instance Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(8) In this Act—

“derogating obligation” means an obligation of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order; and

“designated derogation” has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act).

(9) In this section “designation order”, in relation to a designated derogation, means the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated.

[NB, proposal to omit clause 2 entirely]

3 Duration and renewal of non-derogating control orders

(1) A non-derogating control order—

(a) has effect for a period of specified in the order and not exceeding12 months beginning with the day on which it is made; but

(b) may be renewed on one or more occasions in accordance with this section.

(2) A non-derogating control order must specify when the period for which it is to have effect will end.

(3) The [court] court on the application of the Secretary of State The court may renew a non-derogating control order (with or without modifications) for a period of not exceeding 12 months if it he—

(a) considers that it is necessary, for purposes connected with the purpose of protecting members of the public from the risk of terrorism, for an order imposing obligations on the controlled person to  continue in force; and

(b) 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.

(4) Where the court on the application of the Secretary of State court renews a non-derogating control order, the 12 month period of the renewal begins to run from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; or

(b) the beginning of the seventh day after the date of renewal.

(5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.

(6)   Before renewing a non-derogating control order the Secretary of State must—

[alternative Labour amendment:

 (6)   An order under this section—

(7)   Where an order ceases to have effect in accordance with subsection (6), that does not—

[NB there is also a Conservative proposal to omit clause 3 in its entirety]

4 Duration of derogating control orders

(1) A derogating control order—

(a) has effect (subject to subsection (3)) for a period of specified in the order and not exceeding 6 months beginning with the day on which it is made;

(b) must specify when that period will end; and

(c) may not be renewed.

(2) Subsection (1)(c) does not prevent the court on the application of the Secretary of State, whenever a derogating control order ceases to have effect—

(a) from exercising any power of his to make apply to the court for a new control order to the same or similar effect for a further 6 month period period specified in the order and not exceeding 6 months; or

(b) from relying, in whole or in part, on the same matters for the purpose of making that new order.

(3) A derogating control order has effect at a time only if—

(a) the relevant derogation remains in force at that time; and

(b) that time is not more than 12 months after—

(i) the making of the order under section 14(1) of the Human Rights Act 1998 (c. 42)  designating that derogation; or

(ii) the making by the court on the application of the Secretary of State of an order declaring that it continues to be necessary for him to have power to impose apply for derogating obligations by reference to that derogation.

(4) The power of the court on the application of the Secretary of State to make an order containing a declaration for the purposes of subsection (3)(b)(ii) is exercisable by statutory instrument.

(5) No order may be made by the Secretary of State containing such a declaration unless a draft of it has been laid before Parliament and approved by a resolution of each House.

(6) Subsection (5) does not apply to an order that contains a statement by the Secretary of State that the order needs, by reason of urgency, to be made without the approval required by that subsection.

(7) An order under this section that contains such a statement—

(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. [NB there is a second proposal to omit subsection 7]

(8) Where an order ceases to have effect in accordance with subsection (7), that does not—

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

(b) prevent the [court on the application of the] Secretary of State from exercising any power of his to make a new order for the purposes of subsection (3)(b)(ii) to the same or similar effect.

(9) In this section—

“40 days” means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36);

“the relevant derogation”, in relation to a derogating control order, means the designated derogation by reference to which the derogating obligations imposed by that order were imposed.

(10)   Before making a new control order pursuant to subsection (2)(a) the Secretary of State must—

[NB there is also a proposal to omit clause 4 entirely]

5 Modification, notification and proof of orders etc.

(1) If while a control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make apply for an application to the Secretary of State court for—

(a) the revocation of the order; or

(b) the modification of an obligation imposed by the order;

and it shall be the duty of the Secretary of State to consider the application.

and it shall be the duty of the Secretary of State court to consider the application.

(2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person)—

(a) revoke a control order;

(b) relax or remove an obligation imposed by such an order;

(c) with the consent of the controlled person, modify the obligations imposed by such an order; or

(d) make to the obligations imposed by such an order any modification which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

(3) The Secretary of State may not, by virtue of subsection (2)(d), make any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation; but this does not prevent the Secretary of State—

(a) from exercising any power of his to make a new control order imposing such an obligation on the same individual; or

(b) from relying, in whole or in part, on the same matters for the purpose of making that new order.

(2)   The Secretary of State may make an application to the court at any time to—

(2) The court on the application of the Secretary of State may, at any time (whether or not in response to an application by the controlled person)—

(2) The court may on application by the Secretary of State Secretary of State may, at any time (whether or not in response to an application by the controlled person)—

(a) revoke a control order;

(b) relax or remove an obligation imposed by such an order;

(c) with the consent of the controlled person, modify the obligations imposed by such an order; or

(d) make to the obligations imposed by such an order any modification which he it considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

(3) The Secretary of State may not, by virtue of subsection (2)(d), make any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation; but this does not prevent the Secretary of State—

(a) from exercising any power of his to make a new control order imposing such an obligation on the same individual; or

(b) from relying, in whole or in part, on the same matters for the purpose of making that new order.

(3) The court on the application of the Secretary of State or the court may not, by virtue of subsection (2)(d), make any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation; but this does not prevent the court Secretary of State—

(a) from exercising any power of his to make a new control order imposing such an obligation on the same individual; or

(b) from relying, in whole or in part, on the same matters for the purpose of making that new order.

(4) Where a revocation or modification of a control order is not to take effect immediately, the instrument of revocation or modification must specify the time from which it is to take effect.

(5) The controlled person is bound by—

(a) a control order,

(b) the renewal of a control order, or

(c) a modification by virtue of subsection (2)(d),

only if a notice setting out the terms of the order, renewal or modification and the reasons for the making of the order, renewal or modification has been delivered to him in person in a form intelligible to him.

(5A)   The Secretary of State shall serve on the controlled person or his legal representative a copy of the full evidence considered by the Secretary of State when making the order, renewal or modification and file two copies of such evidence with the Court within two days of delivering the order, renewal or modification to the controlled person.

(6) For the purpose of delivering a notice under subsection (5) to the controlled person a constable or a person authorised for the purpose by the Secretary of State may (if necessary by force)—

(a) enter any premises where he has reasonable grounds for believing that person to be; and

(b) search those premises for him.

(6) For the purpose of delivering a notice under subsection (5) to the controlled person a constable or a person authorised for the purpose by the court on the application of the Secretary of State may (if necessary by force)—

(a) enter any premises where he has reasonable grounds for believing that person to be; and

(b) search those premises for him.

(7) Where the Secretary of State revokes a control order or modifies it by virtue of subsection (2)(b) or (c), he must give notice of the revocation or modification to the controlled person.

(7) Where the court on the application of the Secretary of State court revokes a control order or modifies it by virtue of subsection (2)(b) or (c), he it [the Secretary of State] must give notice of the revocation or modification to the controlled person.

(8) A control order, or the renewal, revocation or modification of such an order, may be proved by the production of a document purporting to be certified by the Secretary of State as a true copy of—

(a) the order; or

(b) the instrument of renewal, revocation or modification;

but this does not prevent the proof of a control order, or of the renewal, revocation or modification of such an order, in other ways.

(8) A control order, or the renewal, revocation or modification of such an order, may be proved by the production of a document purporting to be certified by the court Secretary of State as a true copy of—

(a) the order; or

(b) the instrument of renewal, revocation or modification;

but this does not prevent the proof of a control order, or of the renewal, revocation or modification of such an order, in other ways.

(9)   Before making any modification to any control order (other than a modification made pursuant to subsection (2) (c) the Secretary of State must—

6 Offences

(1) A person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence.

(2) A person is guilty of an offence if—

(a) a control order by which he is bound at a time when he leaves the United Kingdom requires him, whenever he enters the United Kingdom, to report to a specified person police constable that he is or has been the subject of such an order;

(b) he re-enters the United Kingdom after the order has ceased to have effect;

(c) the occasion on which he re-enters the United Kingdom is the first occasion on which he does so after leaving while the order was in force; and

(d) on that occasion he fails, without reasonable excuse, to report to the specified person in the manner that was required by the order.

(3) A person is guilty of an offence if he intentionally obstructs the exercise by any person of a power conferred by section 5(6).

(4) A person guilty of an offence under subsection (1) or (2) shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both;

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;

(c) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both.

(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (4)(b) to 12 months is to be read as a reference to 6 months.

(6) Where a person is convicted by or before any court of an offence under subsection (1) or (2), it is not to be open to the court, in respect of that offence—

(a) to make an order under section 12(1)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (conditional discharge);

(b) to make an order under section 228(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (probation orders); or

(c) to make an order under Article 4(1)(b) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conditional discharge in Northern Ireland).

(7) A person guilty of an offence under subsection (3) shall be liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale, or to both;

(b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.

(8) In relation to an offence committed before the commencement of section 281(5)

of the Criminal Justice Act 2003 (c. 44), the reference in subsection (7)(a) to 51 weeks is to be read as a reference to 6 months.

(9) In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (arrestable offences), at the end insert—

“Prevention of Terrorism Act 2005

27A An offence under section 6(3) of the Prevention of Terrorism Act 2005.”

(10) In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (offences for which an arrest may be made without a warrant in Northern Ireland), at the end insert—

“(o) An offence under section 6(3) of the Prevention of Terrorism Act 2005.”

Challenging and appealing against control orders

7 Appeals relating to non-derogating control orders

(1) Where—

(a) a non-derogating control order has been made or renewed, or

(b) an obligation imposed by such an order has been modified without the consent of the controlled person,

the controlled person may appeal to the court against the making, renewal or modification.

(2) In the case of an appeal against a renewal with modifications, the appeal may include an appeal against some or all of the modifications.

(3) Where an application is made by the controlled person to the court Secretary of State for—

(a) the revocation of a non-derogating control order, or

(b) the modification of an obligation imposed by such an order,

that person may appeal to the court against any decision by the Secretary of State court of first instance on the application.

(4) The function of the court on an appeal against the making of a non-derogating control order is to determine whether any of the following decisions of the Secretary of State was flawed—

(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order;

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

(5) The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the court of first instance Secretary of State was flawed—

(a) his decision that it is necessary, for purposes connected with protecting members of the public from the risk of terrorism, for an order imposing obligations on the controlled person to continue in force;

(b) his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity.

(6) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise), or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the court of first instance Secretary of State was flawed—

(a) in the case of an appeal against a modification, his decision the decision of the court of first instance that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity; and

(b) in the case of an appeal against a decision on an application for the modification of an obligation, his decision the decision of the court of first instance that the obligation continues to be necessary for that purpose.

(7) In determining the matters mentioned in subsections (4) to (6) the court may look at all aspects of fact and law and may hear evidence must apply the principles applicable on an application for judicial review.

(7) In determining the matters mentioned in subsections (4) to (6) the court must conduct its own hearing of each of the matters and make its own determination on each of those matters apply the principles applicable on an application for judicial review.

(8) If the court determines on an appeal under this section that a decision of the court of first instance Secretary of State was flawed, its only powers are—

(a) power to quash the order or its renewal;

(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.

(d) power to award damages to the controlled person.

(d) power to award to the controlled person their costs of the proceedings.

(9) In every other case, the court must dismiss the appeal.

(10)   An appeal under this section shall be made—

[NB there is also a proposal to leave out Clause 7 entirely]

8 Appeals relating to derogating control orders

(1) Where an obligation imposed by a derogating control order has been modified without the consent of the controlled person, that person may appeal to the court against the modification.

(2) Where an application is made by the controlled person to the court of first instance Secretary of State

for—

(a) the revocation of a derogating control order, or

(b) the modification of an obligation imposed by such an order,

that person may appeal to the court against any decision by the court of first instance Secretary of State on the application.

(3) On an appeal under this section, the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State court of first instance in making his decision to modify or (as the case may be) his decision on the application; and the court must make its own determination on each of those matters.

(4) The powers of the court on an appeal under this section are confined to—

(a) power to confirm the Secretary of State’s decision of the court of first instance;

(b) power to quash the order;

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

(d) power to give directions to the Secretary of State court of first instance for the revocation of the order or for the modification of the obligations it imposes.

(5)   An appeal under this section shall be made—

[NB there is also a proposal to omit clause 8 in its entirety.]

9 Jurisdiction and appeals in relation to control order decisions etc.

(1) Control order decisions and derogation matters are not to be questioned in any legal proceedings other than—

(a) proceedings in the court; or

(b) proceedings on appeal from such proceedings.

(1) Control order decisions and derogation matters are not to be questioned in any legal proceedings other than—

(a) proceedings in the court; or

(b) proceedings on appeal from such proceedings.

(2) The court the Court of Appeal in England and Wales or in Northern Ireland or the Inner House of the Court of Session in Scotland is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a control order decision or derogation matter into question.

(2A)   The burden of proof in control order proceedings shall be on the Secretary of State and proof shall be required to the criminal standard.

[N.B. Alternative Conservative amendment:

 (2A)   The burden of proof in control order proceedings shall be on the Secretary of State and proof shall be required on the balance of probabilities.]

(3) No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.

( )   In any appeal in respect of control order proceedings the court may consider any aspect of fact or law.

(3) No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.

(4) No appeal by any person other than the Secretary of State shall lie from any determination on a reference under section 2(2)(a).

(5) The Schedule to this Act (which makes provision relating to and for the purposes of control order proceedings and proceedings on appeal from such proceedings) has effect.

(6) In this Act “control order proceedings” means—

(a) proceedings on a reference under section 2(2)(a);

(b) proceedings on a hearing under section 2(4)(c);

(c) proceedings on an appeal under section 7 or 8;

(d) proceedings in the court by virtue of subsection (2);

(e) any other proceedings in the court for questioning a control order decision or derogation matter;

(f) proceedings on an application made by virtue of rules of court under paragraph 4(5) of the Schedule to this Act (application for order requiring anonymity for the controlled person).

any proceedings in court for the making, renewing, modification, revocation or questioning of a control order.

(a) proceedings on a reference under section 2(2)(a);

(b) proceedings on a hearing under section 2(4)(c);

(a) proceedings on a reference under section 2(2)(a);

(b) proceedings on a hearing under section 2(4)(c);

(c) proceedings on an appeal under section 7 or 8;

[N.B. Alternative Conservative amendment:

(c) proceedings on an appeal under section 7 or 8;]

(7) In this section “control order decision” means—

(a) a decision made by the court on the application of the the Secretary of State court in exercise of a power conferred by any of sections 1 to 5 of this Act or for the purposes of or in connection with the exercise of any such power;

(b) a decision by any other person to give a direction, consent or approval, or to issue a demand, for the purposes of any obligation imposed by a control order; or

(c) a decision by any person that is made for the purposes of or in connection with the exercise of his power to give such a direction, consent or approval or to issue such a demand.

(8) In this section “derogation matter” means—

(a) a derogation by the United Kingdom from the Human Rights Convention which relates to infringement of a person’s right to liberty under Article 5 in consequence of obligations imposed on him by a control order; or

(b) the designation of such a derogation under section 14(1) of the Human Rights Act 1998 (c. 42).

[NB. The Conservatives wish to leave out the whole of Clause 9.]

10 Effect of court’s decisions on convictions

(1) This section applies where—

(a) a control order, a renewal of a control order or an obligation imposed by a control order is quashed by the court in control order proceedings, or on an appeal from a determination in such proceedings; and

(b) before it was quashed a person had been convicted by virtue of section 6(1) or (2) of an offence of which he could not have been convicted had the order, renewal or (as the case may be) obligation been quashed before the proceedings for the offence were brought.

(2) The person convicted may appeal against the conviction—

(a) in the case of a conviction on indictment in England and Wales or Northern Ireland, to the Court of Appeal;

(b) in the case of a conviction on indictment or summary conviction in Scotland, to the High Court of Justiciary;

(c) in the case of a summary conviction in England and Wales, to the Crown Court; and

(d) in the case of a summary conviction in Northern Ireland, to the county court.

(3) On an appeal under this section to any court, that court must allow the appeal and quash the conviction.

(4) An appeal under this section to the Court of Appeal against a conviction on indictment—

(a) may be brought irrespective of whether the appellant has previously appealed against his conviction;

(b) may not be brought more than 28 days after the date of the quashing of the order, renewal or obligation; and

(c) is to be treated as an appeal under section 1 of the Criminal Appeal Act 1968 (c. 19) or, in Northern Ireland, under section 1 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47), but does not require leave in either case.

(5) An appeal under this section to the High Court of Justiciary against a conviction on indictment—

(a) may be brought irrespective of whether the appellant has previously appealed against his conviction;

(b) may not be brought more than two weeks after the date of the quashing of the order, renewal or obligation; and

(c) is to be treated as an appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 (c. 46), but does not require leave.

(6) An appeal under this section to the High Court of Justiciary against a summary

conviction —

(a) may be brought irrespective of whether the appellant pleaded guilty;

(b) may be brought irrespective of whether the appellant has previously appealed against his conviction;

(c) may not be brought more than two weeks after the date of the quashing of the order, renewal or obligation;

(d) is to be by note of appeal, which shall state the ground of appeal;

(e) does not require leave under any provision of Part 10 of the Criminal Procedure (Scotland) Act 1995; and

(f) must be in accordance with such procedure as the High Court of Justiciary may, by Act of Adjournal, determine.

(7) An appeal under this section to the Crown Court or to the county court in Northern Ireland against a summary conviction—

(a) may be brought irrespective of whether the appellant pleaded guilty;

(b) may be brought irrespective of whether he has previously appealed against his conviction or made an application in respect of the conviction under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981

(S.I. 1981/1675 (N.I. 26)) (case stated);

(c) may not be brought more than 21 days after the date of the quashing of the order, renewal or obligation; and

(d) is to be treated as an appeal under section 108(1)(b) of that Act or, in

Northern Ireland, under Article 140(1)(b) of that Order.

(8) In section 133(5) of the Criminal Justice Act 1988 (c. 33) (compensation for miscarriages of justice), at the end of paragraph (c) insert “or (d) on an appeal under section 10 of the  Prevention of Terrorism Act 2005.”

Supplemental

11 Reporting and review

(1) As soon as reasonably practicable after the end of every relevant 3 month period, the Secretary of State must—

(a) prepare a report about his exercise of the control order powers the use of control orders during that period; and

(b) lay a copy of that report before Parliament.

(2) The Secretary of State must also appoint a person to review the operation of sections 1 to 6. this Act.

(3) As soon as reasonably practicable after the end of every relevant 12 month period the person so appointed must carry out a review of the operation of those sections this Act during that period.

(4) The person who conducts a review under this section must send the Secretary of State a report on its outcome as soon as reasonably practicable after completing the review.

(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.

(6) The Secretary of State may pay the expenses of a person appointed to carry out a review

and may also pay him such allowances as the Secretary of State determines.

(7) In this section—

“control order powers” means the powers of the Secre