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(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)Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and—
(a)the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
(b)the court may give that permission unless it determines that the 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
(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)The directions given under subsection (2)(c) or (6)(b) or (c) must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about—
(a)the directions already given; and
(b)the making of further directions.
(8)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.
(9)The court must ensure that the controlled person is notified of its decision on a reference under subsection (3)(a).
(10)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 2(1)(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.
(a)what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or
(b)the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review.
(12)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.
(13)In every other case the court must decide that the control order is to continue in force.
(14)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).
Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.
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