The Prevention of Terrorism Act 2005, i.e. the control orders legislation, is available online here.
This is the version of the legislation that has become law. This article summarises the key features of the Act.
Sections 1 to 4 set out the powers to create control orders. The main points are:
- Control orders have two forms: derogating control orders are those incompatible with the right to liberty set out in article 5 of the ECHR and thus require a derogation from that article, non-derogating control orders are those which do not derogate from article 5.
- Control orders can be imposed on a person by a court on application by the Home Secretary, except for non-derogating control orders where the Home Secretary can impose an order without first going through the courts if, in his opion, it is urgent.
- Control orders can impose any obligation that the Home Secretary (or court where appropriate) believes is necessary for “purposes connected with” preventing or restricting the involvement of the person in “terrorism-related activity”.
- Possible obligations include prohibitions or restrictions on a person’s possession of specified articles and substances; their use of specified facilities; who they can communicate or associate with; their work, occupation, business or other specified activities; their movements and their place of residence.
- Other possible obligations include requirements on the person to surrender specified possessions for the duration of the order; to allow access to and searches of their place of residence or any other premisses they have access to; to allow items to be removed from their residence/premisses for testing and to remain in a particular place for specified times or periods or generally.
- Terrorism-related activity is defined as activity one or more of the following: the commission, preparation or instigation of acts of terrorism; conduct which facilitates the commission, preparation or instigation of acts of terrorism; conduct which encourages the commission, preparation or instigation of acts of terrorism; or conduct which gives support or assistance to individuals known or believed to be involved in terrorism-related activity.
- Terrorism is defined as it is under Section 1 of the Terrorism Act 2000.
- The Home Secretary can impose a non-derogating control order on a person if he has “reasonable grounds for suspecting” someone is or has been involved in terrorism related activity, and if he considers it necessary to do so for to protect members of the public from “a risk of terrorism”.
- Non-derogating control orders last for 12 months but can be renewed by the Home Secretary.
- Courts must give permission for the Home Secretary’s application for a non-derogating control order unless they find that the decision to make such a control order is “obviously flawed”. They can also quash specific obligations if they believe the decision to impose them is “obviously flawed”.
- For a derogating control order to be imposed, there must be a public emergency resulting in derogation from article 5 of the ECHR in force.
- A court can impose a derogating control order if it is satisfied, on balance of probabilities, that the person concerned is involved in terrorism-related activity and if it considers the control order necessary for purposes connected to protecting the public from a risk of terrorism. Note that my earlier article on control orders was thus mistaken about the burden of proof for derogating control orders — house arrest would use the balance of probabilities, but non-derogating orders would not.
- Derogating control orders expire after 6 months unless renewed.
Section 5 enables a person to be arrested and detained by the police as soon as the Home Secretary makes an application for a derogating control order. This detention can last for upto 48 hours, or with court approval, a further 48 hours.
Section 6 stipulates that derogating control orders can only have effect if a derogation from article 5 of the ECHR is in force. Such a derogation is made by the Home Secretary making an order and putting it before both Houses of Parliament. The order to derogate ceases to have effect 40 days after it has been made, unless both Houses approve of the order. If approved an order lasts for 12 months, but can be renewed by Parliament.
Section 7 sets out various matters on modifying and proving control orders including giving the police the power to enter any premisses, by force if necessary, to search for someone who is to be subjected to a control order, where they suspect the person to be on those premisses.
Section 9 creates various offences. It is an offence to contravene an obligation imposed by a control order, punishable by upto 5 yrs in prison. Obstructing officials who try to enter premisses to search for someone subject to a control order is an offence carrying upto 1 yr (6 months in Scotland) in prison.
Section 13 stipulates that Sections 1 to 9 expire after 12 months, but allows them to be renewed for a year at a time by Parliament.
Section 14 requires the Home Secretary to make 3 monthly reports on the use of control orders, to appoint someone to review the legislation, for that person to review the legislation after 9 months and then every 12 months thereafter (if the legislation is renewed).