My Lords, I am grateful to all those who contributed to this debate and to the Minister for the words which indeed provide a little comfort. Perhaps my gratitude to the noble Lords, Lord Howard and Lord Tebbit, is slightly less pronounced than to others. I venture to suggest that the logic of their position would be that one should revert to the original test that the Secretary of State set for him or herself as to whether to make these orders: not one of reasonable belief but the lesser test of reasonable suspicion. The question in the present proposed Bill is simply, “Who ultimately should be satisfied on the balance of probabilities that this person is or has been involved in terrorism-related activity?”.
We are all against terrorism but we are also—I venture to believe and hope—all in favour of basic human rights and not making orders too readily against those who may well be as innocent as the day is long. In fact, Mr Anderson said in making this recommendation that it was in large part to give legitimacy to the process that we should make the court the final arbiter. He said that in fact he thought it would have made no difference to any of the earlier TPIM cases—but just think what assurance the public would have that only the right people were targeted.
As to the Minister’s point about it being invariably a matter of principle that the court’s powers did not go beyond those of judicial review, with respect—as I ventured to point out in Committee—that is not so. In the 2005 Act, Section 4(7)(a) provided in terms that the court could confirm a derogating control order only if,
“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism related activity”.
However, there it is. Given what may be thought to be the somewhat inactive—I restrain myself from saying “pusillanimous”—stance adopted by the Opposition here, clearly I will not divide the House. However, I suggest that there remains time, with a week before Third Reading, where the Minister could still come to recognise that there is much to be said in favour and, on true analysis, very little to be said against this amendment.