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Mr. Beith: The hon. and learned Member for Redcar (Vera Baird) has said that the matter does not need to be dealt with in the Bill, but it is dealt with in the Bill because the schedule gives the Lord Chancellor the power to make rules that the High Court must accept. If   the Lord Chancellor were required to engage in
 
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consultation, the schedule even presumes that the consultation in which he engaged before the Bill was passed would count towards it.

Mr. Oaten: My right hon. Friend has made an excellent point. These are classic in the Bill issues and they are the bottom line on whether we will support the Bill in the future.

Mr. Grieve: The right hon. Member for Berwick-upon-Tweed (Mr. Beith) has pre-empted my point, but I shall go further: is it not the case that the novelty of the procedures that we are setting up makes it all the more important that we should have some understanding of the court? Ordinarily, when rules of courts are provided by statutory instrument, everybody knows roughly what sort of rules will be introduced, but in this case we do not know because of the complete novelty of the procedure.

Mr. Oaten: The shadow Attorney-General has made an excellent point. We are entering into uncharted territory, and because it is uncharted we should at least set down what we understand by it, rather than assuming that the norms of previous engagement will be the norms in these circumstances.

Vera Baird: I shall clarify what I mean. The schedule contains a power, which is not altogether commendable, to make rules of court, but is not that power needed? The power to make rules of court must appear in the Bill, because one cannot not conceivably legislate for every detailed arrangement of the kind that I have suggested to the hon. Gentleman.

Mr. Oaten: My position is not a million miles away from that of the hon. and learned Lady, but Liberal Democrat Members cannot support a Bill as an act of faith or on the basis of a statement from the Minister. We must understand how evidence will be heard within the mechanics of the process.

I want to discuss some other aspects of the Home Secretary's proposals, and I hope that they will be addressed in another place. On the standard of proof, the different clauses contain different standards of proof, but we cannot understand why different standards of proof are necessary throughout the process. It is possible to move towards higher standards of proof throughout the process, particularly if one is dealing with special courts in which one can achieve a standard of proof without revealing sensitive aspects of the evidence, which is difficult in an ordinary court process.

The Home Secretary took a large number of interventions on his justification for having a different set of rules for the higher and lower control orders—those that derogate and those that do not. Frankly, he was not convincing on that particular issue. I accept that there is a difference between placing someone under house arrest, tagging them, imposing a curfew, prohibiting who someone can see, or preventing someone from working, but in one way or another all those examples concern losses of liberty. If someone were to tell me with whom I can work, where I can travel and whom I can meet, I would regard it as a gross invasion of my liberty.

Mr. Garnier : European jurisprudence accepts that those examples are deprivations of liberty, but the
 
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courts in Europe sometimes allow such deprivations on the grounds of proportionality or for the protection of national security. The distinction is not in principle, and it simply concerns what the court will and will not allow.

Mr. Oaten: But that was not the Home Secretary's argument. He argued that because one punishment is worse than another, the process of managing that punishment should be different, in which case why do murder and theft both currently go before a court and a judge? The logical conclusion to draw from the Home Secretary's argument is that we should put murder in front of judges, but not bother with theft. Whatever level we are discussing, the principle should be the same whether we are discussing a higher or lower level of taking liberty away.

Malcolm Bruce (Gordon) (LD): Does my hon. Friend share my concern that the Home Secretary went further and said that the difference between non-derogation and derogation was that only he would have all the evidence for non-derogation offences, which implies that people who were less of a threat and would not be detained would go through a more serious breach of justice?

7.30 pm

Mr. Oaten: There could have been some logic to the Home Secretary's argument if he had presented it the other way round, corresponding to the degree of severity.

The right hon. Member for Livingston (Mr. Cook) was right to say that this will be a sticking point, not least on the Government Back Benches. It is a pity that before the Bill goes to another place we could not hear from the Home Secretary, who has already made helpful concessions, that he is prepared to keep the door open and consider the issue again. Had that been the case, we would have felt that the debate had served some purpose, instead of such a concession being dragged out of the Government, kicking and screaming, in the House of Lords. Even if that does not become part of the Bill, it will be challenged sooner or later on legal grounds. I hope that the Home Secretary and the Minister will indicate that they are prepared the keep the door open, so that the same system is in place for a higher and a lower control order.

Mr. Fisher: I agree with much of what the hon. Gentleman said, but is he not being too meek and modest? We are sent to the House to scrutinise Government legislation. We are not doing that today. We are discussing a statement that the Home Secretary made. The hon. Member for Winchester (Mr. Oaten) says that we may, if we are lucky, be able to chat briefly about the scrutiny of the legislation in the other House, but that is not what we are sent here for. We are sent here to scrutinise and satisfy ourselves that the judgment of the Home Secretary and the Government is correct. We are not doing that with this Bill.

Mr. Oaten: The hon. Gentleman makes an excellent point. I am a mild-mannered kind of guy and I find it hard to get worked up about these matters, but if I were worked up about the Bill, I would be extremely unhappy about taking part in a debate knowing that the points that I made would not be voted on tonight because the
 
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Committee cannot vote on the real issue. It is ridiculous that we are voting on a set of clauses that could be thrown in the bin. The issue on which we should be voting is a letter, which of course we cannot amend. That is frustrating, but all we can do is send a very strong signal to another place. If Members there do not listen, I hope that when the Bill returns to the House we are given more time and space to make our arguments at that point.

Simon Hughes : First, does my hon. Friend recognise the bizarre paradox that the Government are relying on a House that they constantly criticise for being unrepresentative to do the major scrutiny? Secondly, is not the point that my hon. Friend has made often the best reason why all sorts of control orders should be subject to the same process? If people are kept in their house, not allowed to go to certain parts of the country and so on, are not those just the people who are more likely to be martyrs to the cause if they have not had a chance to argue their case and show why they should not be subject to that decision? We are creating more and more people who are likely to be antagonistic to the Government and to the very liberties that we want to uphold.

Mr. Oaten: My hon. Friend is right. Having a good system of justice in place is important in its own right, but it has the further important benefit that it does not make people feel that the system is working against them.

In conclusion, we have reluctantly accepted the need for control orders. We have acknowledged that there is a gap—a procedural problem—and a way forward must be found. I have acknowledged that the Home Secretary has taken some steps in the right direction, but they are tiny steps, and big leaps are needed in the future for the Liberal Democrats to support the Bill. We will need clarification on whether there is to be a two-tier system of derogation and non-derogation orders. We will need to see a proper system that allows evidence to be heard along the lines that we have discussed, so that the issues of fact can be dealt with. We will need convincing that the Government are serious about considering better standards of proof. Changes are needed to the legislation on acts preparatory to terrorism so that charges can be brought against individuals. There is a long way to go and at this stage we cannot support the Bill, letter, clause or whatever we are debating this evening.

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