I am grateful to the Minister for that considered response. I am perhaps even more grateful to all those who spoke in support of this amendment. I say to the noble Baroness, Lady Hamwee, that I will, of course, look afresh at the correct matching of my wording with that of the amended paragraph 1 of Schedule 1 to the 2011 Act when we come back to that.
The noble Baroness, Lady Smith of Basildon, asked whether there is a higher test involved in balance of probabilities than that in reasonable belief. This runs parallel to a point made by the Minister just now. When we come back to that, I would be very grateful if the Minister could give us an illustration of where, on the facts, you could reach a different conclusion on reasonable belief from that on the balance of probabilities. I maintain that there is no distinction.
However, that is, frankly, almost an irrelevance. Regarding my amendment, I do not in the least mind—I am completely agnostic on this—whether one leaves in Clause 16(1) as it stands and adds the wording suggested in my amendment after it, or, as the amendment proposes, leaves out the subsection and inserts my wording in its place. I do not mind whether the Secretary of State makes a decision—as initially she is bound to do—by way of reasonable belief or as a conclusion on the balance of probabilities. What matters is that the decision of hers should then be subject to review or appeal by the court, not on the basis of judicial review but on the different basis of her having to establish to the satisfaction of the court, on the balance of probabilities, that the person concerned has been engaged in terrorism-related activity. That is a real difference, and I will say, with the greatest respect to the Minister, that if he looks back at Mr Anderson’s 2013 and 2014 reports on TPIMs he will see that that was the position that was going to be arrived at regarding enhanced TPIMs; it was going to be for the court—whatever the Minister decided—then to reach its own conclusion on the balance of probabilities.
The noble Lord, Lord Carlile, who brings huge expertise, having been a distinguished independent reviewer, suggested that actually there is not all that much distinction between the judicial review standard that a court is presently required to adopt and an appeal by which the court would have to be persuaded on this issue and reach its own decision. The court does its best by way of judicial review and, in an area as sensitive and relevant to human rights as this, the court will of course go out of its way to adopt as intrusive a standard of judicial review as it feels it can. However, it simply cannot—it would be disobeying the statute if it tried to—substitute its own decision for that of the Secretary of State.
I hope that that meets most of the points that were raised. Of course I am prepared—and am grateful for the offer—to talk to the Minister. We have only a week between now and Report on this part of the Bill. Of course I am not going to press the amendment today, but it may well become necessary to do so a week today, unless the Minister sees the light—if I may put
it that way—and is prepared to shift the Government’s position. In the mean time, I beg leave to withdraw the amendment.