My Lords, the noble Lord, Lord Anderson, has given your Lordships a very clear and succinct history of control orders and TPIMs—as one would expect, given his experience. He pointed out very fairly that control orders had the very same test that it is now proposed in the Bill should be used to decide whether a TPIM is appropriate. It is also worth pointing out that control orders were
highly controversial and subject to a considerable number of challenges in the courts to see whether they survived a proper challenge based on the European Court of Human Rights and the convention. They survived that, which will reassure your Lordships.
I accept that the amendment put forward by the noble Lord, Lord Anderson, which is supported by the noble and learned Lord, Lord Thomas, is relatively modest, and I understand the reasoning for it, whereas the amendment put forward by the noble and learned Lord, Lord Falconer, goes rather further and seems to involve a degree of subjectivity—although I will listen with interest to what he says—and that subjectivity might be difficult to satisfy.
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As I understand it, these TPIMs are very much a last resort. Before they are sought, a decision has to be made about whether the criteria are satisfied, and then a court will review them, subject to the limitations pointed out by the noble Lord, Lord Anderson, and the subject of a TPIM has a chance to challenge that review. The fact that, as the noble Baroness, Lady Hamwee, pointed out, only three people are subject to TPIMs at the moment shows how sparingly they are used. As I understand it, they are very resource-heavy, and they are clearly suboptimal. What is plainly much more desirable is that there should be a prosecution, which is why control orders and their successors TPIMs have been so controversial but, subject to all those reservations, they clearly have their uses.
However, I ask myself why there is a change in the standard of proof. Has there been real difficulty in obtaining these TPIMs in the relatively rare circumstances in which they are considered appropriate? I, too, read what the Minister in the House of Commons said about the lack of difficulty in obtaining TPIMs, so I asked myself in what circumstances this change in the standard of proof would help. Are there circumstances in which a TPIM might be obtained with the new provisions which would not have been under the existing provisions? I ask that question genuinely not knowing the answer. Is it, perhaps, because there may be real fears about what those who return from war in Syria might do, but just not quite enough to satisfy the old test and so would satisfy only the new test? I do not know. It may be that there is a suggestion of radicalisation with very serious consequences—and we know what they might be—but it does not quite get over this hurdle. I do not know. It is clearly very important that there should be this provision. It is subject to very considerable safeguards, but at the moment I am rather neutral on the question.
I do not share the hostility of the noble Baroness, Lady Hamwee, to TPIMs as a whole, but I say they should be used sparingly. Of course, she will remember that TPIMs were brought in when the Liberal Democrats and the Conservatives were in coalition, so there may not have been much enthusiasm on their part, but TPIMs were part of government policy. They were actually a modification of the Labour Party’s control orders so long ago. This is a difficult area. I look forward to the Minister’s clarification of the thinking behind this change.