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Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005

Lord Grocott: My Lords, I beg to move the second Motion standing on the Order Paper in the name of the Leader of the House.

Moved, That the draft regulations be referred to a Grand Committee.—(Lord Grocott.)

On Question, Motion agreed to.
 
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Child Benefit Bill

Lord Grocott: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord McIntosh of Haringey.

Moved, That the order of commitment of 3 March last be discharged, and that the Bill be committed to a Committee of the Whole House.—(Lord Grocott.)

On Question, Motion agreed to.

Higher Education (Northern Ireland) Order 2005

Baroness Farrington of Ribbleton: My Lords, on behalf of the Lord President, I beg to move the third Motion standing in her name on the Order Paper.

Moved, That the order of 7 March referring the draft order to a Grand Committee be discharged.—(Baroness Farrington of Ribbleton.)

On Question, Motion agreed to.

Mental Capacity Bill

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That, notwithstanding the Motion agreed to by the House on 22 February 2005, the amendments for the Report stage be marshalled and considered in the following order:

Clause 58, Clauses 1 to 9, Schedule 1, Clauses 10 to 18, Schedule 2, Clauses 19 to 57, Clause 59, Schedule 3, Clauses 60 to 62, Schedules 4 and 5, Clause 63, Schedules 6 and 7, Clauses 64 and 65.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Prevention of Terrorism Bill

11.31 a.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Commons amendments and reasons be now considered.

Moved accordingly, and, on Question, Motion agreed to.
 
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COMMONS AMENDMENTS AND REASONS

[The page and line refer to HL Bill 34 as first printed for the Lords.]

LORDS AMENDMENTS

1 Clause 1, page 1, line 3, leave out from beginning to end of line 16 and insert—
"(1A) In this Act "control order" means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.
(1B) The power to make a control order against an individual shall be exercisable by the court on an application by the Secretary of State.
(1C) The obligations that may be imposed by a control order made against an individual are any obligations that the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
(1D) Those obligations are—"
The Commons agree to this amendment with the following amendments—


1A Line 6, after "exercisable" insert "—
(a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and
(b) in the case of an order imposing obligations that are or include derogating obligations,"
1B Line 8, after "that" insert "the Secretary of State or (as the case may be)"
1C Line 11, leave out "are" and insert "may include, in particular"
8 Leave out Clause 3 and insert the following new clause—
"Making of control orders
(1) The court may make a control order against an individual if it—
(a) is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity;
(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; and
(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.
(2) 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 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).
(3) 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;
 
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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.
(4) 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; and
(c) that if 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, 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.
(5) The obligations that may be imposed by a 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(3).
(6) 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.
(7) 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.
(8) 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; and
(c) if 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, 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.
(9) 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 (4)(a) or (8)(a) were satisfied."
 
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9 After Clause 3, insert the following new clause—
"Duration and renewal of control orders
(1) A non-derogating control order—
(a) has effect for a period of 12 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 may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—
(a) considers that it is necessary, for purposes connected with protecting members of the public from a 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 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) 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 section 5; or
(c) it is renewed.
(7) 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.
(8) 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."
12 Clause 5, page 6, line 14, leave out subsections (1) to (3)
15 Page 7, line 12, leave out "Secretary of State" and insert "court"
16 After Clause 5, insert the following new clause—
"Criminal investigations after making of control order
(1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—
(a) that the involvement in terrorism-related activity of which that individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence would fall to be investigated by a police force.
(2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.
(3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.
(4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.
(5) In this section—
"chief officer"—
(a) in relation to a police force maintained for a police area in England and Wales, means the chief officer of police of that force;
(b) in relation to a police force maintained under the Police (Scotland) Act 1967 (c. 77), means the chief constable of that force;
(c) in relation to the Police Service of Northern Ireland, means the Chief Constable of that Service;
(d) in relation to the Serious Organised Crime Agency, means the Director General of that Agency; and
(e) in relation to the Scottish Drug Enforcement Agency, means the Director of that Agency;


"police force" means—
(a) a police force maintained for a police area in England and Wales;
(b) a police force maintained under the Police (Scotland) Act 1967 (c. 77);
(c) the Police Service of Northern Ireland;
(d) the Serious Organised Crime Agency; or
(e) the Scottish Drug Enforcement Agency;


"relevant prosecuting authority"—
(a) in relation to offences that would be likely to be prosecuted in England and Wales, means the Director of Public Prosecutions;
(b) in relation to offences that would be likely to be prosecuted in Scotland, means the appropriate procurator fiscal;
(c) in relation to offences that would be likely to be prosecuted in Northern Ireland, means the Director of Public Prosecutions for Northern Ireland.


(6) In relation to times before the Serious Organised Crime Agency begins to carry out its functions, this section is to have effect as if—
(a) the National Crime Squad were a police force; and
(b) references, in relation to that Squad, to its chief officer were references to its Director General.
(7) In subsection (5)—
(a) "the Scottish Drug Enforcement Agency" means the organisation known by that name and established under section 36(1)(a)(ii) of the Police (Scotland) Act 1967 (c. 77); and
 
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(b) "the Director" of that Agency means the person engaged on central service (as defined by section 38(5) of that Act) and for the time being appointed by the Scottish Ministers to exercise control in relation to the activities carried out in the exercise of the Agency's functions."
The Commons agree to this amendment with the following amendments—
16A Line 3, leave out from "where" to "it" in line 4
16B Line 5, leave out second "that" and insert "an"
16C Line 8, after "offence" insert "is being or"
16D Line 9, at end insert—
"( ) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be 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."
17 Leave out Clause 7
The Commons disagree with the Lords in its 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"
22 Clause 9, page 11, line 1, leave out "Secretary of State" and insert "court"
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 (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;"
The Commons agree to this amendment with the following amendment—
23A Line 2, after "duty" insert "of his"
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"
37 Clause 12, page 14, line 37, leave out subsection (3)
The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but propose Amendments Nos. 37A to 37O 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
 
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(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
(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.
(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
 
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(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 (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.
(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).
 
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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 (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
(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) 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.
 
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(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—
(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 (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."

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, the usual channels have proposed that, for the convenience of the House, the amendments should be grouped by topic and that a single Motion should be moved on each group of amendments. Therefore, I beg
 
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to move Motion A, which will be found on page 15 of the Marshalled List and covers Lords Amendments Nos. 1, 8, 9, 12, 13, 15, 16, 17, 22, 23, 28 and 37. The Motion is that this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 37O in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.

I think it would be wearisome for the House to go through all the issues at the same length as we have debated them over the past few days. Perhaps I may make three preliminary points. First, we proposed this Bill on the advice of the security services and the police to provide protection for the nation against the threat of terrorism. I hope that everyone in the House will accept our good faith in doing that, and I would expect any other government in power, having received that advice, almost certainly to have acted on the same advice.

Secondly, I hope that we can debate calmly the issues relating to the steps that we have taken. I heard one noble Lord say on the radio this morning that this was being done by the Government only so that, if there were an atrocity during any election campaign, there would be someone else to blame. I deprecate such remarks. They are inappropriate and they bring this House into disrepute.

Thirdly, I very much hope that people will recognise that we have made significant changes to the Bill in relation to representations made both here and in another place.

I shall deal, first, with Motion A and identify the three significant changes or issues effected by this group of amendments. The first is judicial involvement in non-derogating orders. The Government listened very carefully to your Lordships on that matter. They very much understand the concerns expressed about ensuring that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate.

Therefore, amendments introduced by the Government provide that the Secretary of State must apply to the High Court for leave to make a non-derogating order, save only where urgent action is required or any person is covered by the Part 4 provisions of the current 2001 Act. I shall return to those two categories in a moment.

The procedure will therefore be that the Secretary of State will consider whether there are reasonable grounds for believing that a person is involved in terrorism-related activity on an assessment of all the intelligence material provided. If he considers that there are, he will apply to the High Court for leave to make the order. If the court refuses leave, the order will
 
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not be made. There is therefore an important judicial assessment of the Secretary of State's judgment in each case before any order is made, subject to the two exceptions—urgency and Part 4—to which I referred a moment ago.

If the court agrees that there is a case, it will give permission to the Secretary of State to make the order. Once made, the order will then be referred automatically to the court, which will arrange for a full hearing to take place as soon as possible thereafter. At the full hearing, the court will consider all the relevant material. It can decide what procedure it adopts. It will be able to hear the case in both open and closed sessions.

As with derogating control orders, the subject will have access to the open material and his interests will be represented both by the lawyer of his choice in open sessions and by a special advocate in closed sessions. Again, the subject of the order will have access to the open judgment.

The test to be exercised by the court in its full consideration will be one of judicial review. I make it clear again, as I did before, that that will include consideration of the proportionality issues and the legitimate aim issues in the European Convention on Human Rights.


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