Terrorism Prevention and Investigation Measures Bill

I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities. I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right. I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be ““on the merits”” and would delete the subsection of that clause which specifies that, "““the court must apply the principles applicable on an application for judicial review””." As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue. The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB. We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—