Prevention of Terrorism Act 2005

Commentary

Section 3: Supervision by court of making of non-derogating control orders

Subsection (1)

32.Subsection (1) provides that the Secretary of State can only make a non-derogating control order if:

Subsections (2) to (4)

33.Subsection (2) provides that when the Secretary of State applies to the court for permission to make a non-derogating control order against an individual, the court must decide if the Secretary of State’s decision that there are grounds to make the order is obviously flawed. If it determines that the decision is not obviously flawed it will give its permission for the order to be made, and give directions for a full hearing to take place to consider the order as soon as reasonably practicable after it is made. Subsection (3) says that if the Secretary of State makes a control order without permission from the court, he must refer it to the court immediately. Subsection (4) states that the court must begin considering such a reference not later than seven days after the day on which the control order was made.

Subsections (5), (6) and (8)

34.Subsection (5) provides that the first hearings in connection with non-derogating control orders, in which the court will decide whether to grant permission for the order to be made or will consider the Secretary of State’s decision to impose the order without the court’s permission, may be ex parte and may take place without the knowledge of the person upon whom the control order will be made. Subsection (6) explains that, in initial hearings on control orders made without the court’s permission, the court will consider if the Secretary of State’s decision to impose the order was obviously flawed. If it determines that the decision was obviously flawed, the court will quash the order; if it determines that it was not, but that the decision to impose a particular obligation was obviously flawed, it must quash that obligation; in all other cases, it must confirm the order and give directions for a full hearing in relation to the control order to take place. Subsection (8) provides that, in initial hearings on control orders made without the court’s permission, the court may quash the certificate which the Secretary of State included in the control order stating that the urgency of the case required that the order be made without first seeking permission from the court.

Subsection (7)

35.Subsection (7) provides that when the court gives directions for a full hearing in connection with a non-derogating control order to take place, it must make arrangements for the individual in question to be given an opportunity to make representations about the directions already given or the making of further directions, within seven days of the court’s decision.

Subsections (10) and (11)

36.Subsection (10) explains that in a full hearing on a non-derogating control order, the court will determine whether any of the following decisions of the Secretary of State was flawed:

37.Subsection (11) states that in considering the matters coming before it in relation to non-derogating control orders, the court must apply the principles applicable on an application for judicial review.

Subsections (12) to (14)

38.Subsections (12) and (13) explain that, in a full hearing on a non-derogating control order, if the court decides that a decision of the Secretary of State was flawed, it may:

39.Subsection (14) provides that the court must discontinue the full hearing on a non-derogating control order if requested to do so by the controlled person.