Terrorism Prevention and Investigation Measures Bill

My Lords, in moving Amendment 24 I shall speak also to Amendments 28, 30 and 31 to 35 in my name. Amendment 24 would amend Clause 5(3), which provides that a TPIM notice, "““may be extended … only if conditions A, C and D are met””." I am not sure whether my amendment is one of drafting or principle. It certainly does not go to the major principle of the structure of the periods or their limits. However, as Clause 5(3) is drawn, the conditions are to be met and that would allow for an extension of the notice. My amendment concerns when those conditions are met, saying that they should be met, "““at the date from which””—" the notice ““is extended””. It is not likely that the Secretary of State would decide in the second week of a notice that it should, in effect, be a two-year notice. However, again, looking to a less sensible or benign Secretary of State, that should not be possible. That is why I have tabled this amendment. My other amendments all deal with the term ““obviously flawed””, although I realise that I have missed at least one instance of it somewhere in the Bill. As my noble friend Lord Goodhart said in speaking to the first group of amendments, what ““obviously flawed”” means is far from obvious. My amendments, which would take out ““obviously””, probe the meaning of the term. The context, in every case, would in effect be an ex parte application. Does ““obviously flawed”” mean prima facie? When these questions were asking during the Public Bill Committee stage in the Commons, the Minister said: "““An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination … because it is … an ex parte process””.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 212.]" I understand that but I am still not entirely clear about the term as distinct from the context; they may be inseparable. The Minister’s answer was that it reduced the hurdle that the Secretary of State must meet. I hope that the Minister will today give us some further sense of where in the hierarchy this comes. In its 16th report—the earlier report on the Bill—the Joint Committee on Human Rights, in referring to the term ““obviously flawed”” and the principles of an application for judicial review, said at paragraph 1.31: "““That is not usually the approach when a court's prior permission is required to authorise the taking of an intrusive step by the police or the executive: when considering whether to grant a warrant to enter or search property, for example, the court's function is usually to determine whether the necessary conditions for the granting of the warrant are satisfied””." It went on: "““In our view, the court's function at the permission stage should be to determine whether the conditions for imposing TPIMs appear to be met, which would be more in keeping with a requirement of prior judicial authorisation of an intrusive criminal justice measure””." I hope that the Minister can help us and possibly tell us whether this term is used elsewhere. The fact that I have not come across it is by no means conclusive. It might help the Committee to assess it if it has been used in other legislation. I beg to move.