My Lords, annually the Government are required to come before Parliament to ask that Sections 1 to 9 of the Prevention of Terrorism Act 2005 remain on the statute book. This should be far more than a rubber-stamping exercise. This debate should be undertaken to ensure that the exceptional measures, taken to deal with an exceptional threat, are continued only if necessary. The parliamentary debate should prevent a drift into acceptance of these exceptional measures because the danger is that they will become the normal default position. Sadly, the downgrading of the order in this year's business to a one-hour debate in the dinner break from last year's two-hour afternoon debate shows that the Government already regard this as a rubber-stamping exercise. On these Benches we regard this as a very regrettable move; we are concerned to keep the necessity for these orders in proper review and to ensure that Parliament is given due opportunity to do so.
The Prevention of Terrorism Act should be reviewed to see which provisions should be retained, which updated in the light of experience and which dispensed with. I shall explain briefly why we on the Liberal Democrat Benches feel that we should review and substantially amend rather than simply rubber-stamp, which is really all that the Government are offering Parliament by this order. Liberal Democrats have consistently had deep concerns about two issues on these orders: first, that the standard of proof required for the imposition of an order should be raised from the Home Secretary's reasonable suspicions to a balance of probabilities; and, secondly, that non-derogating control orders should be granted through the judicial system by a judge and not through the political system by a politician. Neither of those points are mere niceties.
I believe that on all sides of the House we agree that we must take measures to minimise the threat of terrorism. However, we on these Benches, believe that the Government are making some bad mistakes in those efforts. In its 10threport, the Joint Committee on Human Rights makes the point powerfully when it says,
"Counter-terrorism measures which breach human rights are ultimately counter-productive and therefore worse than ineffective in countering terrorism".
The same point was made very eloquently last year by the noble Lord, Lord Judd, when he said:
"Protecting the public involves protecting liberty and those principles which, by being essential to the rule of law—habeas corpus, due process, the presumption of innocence and standards of proof—are the cornerstones of liberty. To erode them ourselves is to score a goal for the extremists, who seek their destruction".—[Hansard, 5/5/07; col. 18.]
How right he was.
As regards prosecution, the figures in front of me vary slightly from those of the Minister. I put it to the Minister that, although the points he makes are valid, the Government are still not pursuing prosecution as strongly as they might. But I would concede that, after considerable pressure, including from these Benches, we are pleased that the Government are to include provisions for post-charge questioning in the Counter-Terrorism Bill and that they are finally accepting that there is merit in using intercept evidence, given the necessary safeguards for national security.
There are three substantial reasons that have occurred in the past year, since this House last debated this order, for the Government to amend this legislation substantially. Those reasons are: the experience of another year in how the regime works; the Law Lords' judgments; and the fact that there is now the opportunity in the forthcoming Counter-Terrorism Bill to look at amendments.
The opportunity presented in the Counter-Terrorism Bill has been taken by the Government in some small degree. They propose to narrow the definition of involvement in terrorist-related activity; they propose to define the seven days allowed for representations in favour of the controlled person; and they propose to enable the anonymity of controlees to be protected from the start. However, I agree with the Joint Committee on Human Rights, which calls these minor, tidying up amendments. In fact, the Counter-Terrorism Bill as it stands fails to address the most significant defects of the control orders regime. These are brought to light by the recent House of Lords' judgments. I hear what the Minister says about these being widely misreported, but I turn his attention to paragraphs 43 to 47 of the report of the Joint Committee on Human Rights, where it details the concerns. In light of the time available tonight I shall not list them, but I urge the Minister to look at them. Although I am no lawyer, even I can see that it cannot be right that what constitutes a fair hearing should be decided on a case-by-case basis. Surely this must be laid down in statute, together with some reference to proof and the ability to rebut such evidence.
The Law Lords' judgment should have been sufficient to persuade the Government that the statutory framework needs amending. They have the opportunity to do so with their forthcoming Bill and I urge the Minister to look at those issues again. Furthermore, the Joint Committee on Human Rights points to a measure of disagreement with how well the special advocate scheme is working. It also recommends that the Secretary of State should be required by statutory obligation to give reasons for making a control order.
I turn briefly to the practical experience of what has been learnt over the past year. I would be grateful if the Minister could comment a little further on the efficacy of the orders. The point behind the orders, of course, is to prevent acts of terrorism and to prevent individuals likely to plan or incite such acts from progressing their plans. As opposition Members not privy to intelligence, it is impossible to know how successful any of the orders have been in that regard. The fact that two individuals have absconded while subject to two orders—the Minister has said tonight that he has no idea where they are or what they are doing—means that the orders are by no means completely reliable. Two out of a fairly small number is a pretty high failure rate.
Will the Minister also comment on the fact that although the Government stated in their response to my noble friend Lord Carlile's 2007 recommendation that orders should not continue indefinitely, there is not so much evidence before us that the Government have been implementing exit strategies? The Minister gave us further figures but that criticism still stands. I would be interested to know the cost of control orders versus the cost of covert surveillance. Similarly, can the Minister comment on the efficacy of control orders versus covert surveillance, on the assumption that they are not mutually exclusive?
There is no evidence that the Government intend to further use the Counter-Terrorism Bill to amend this legislation. It is quite likely that this time next year we will be faced with rubber-stamping these orders yet again. I warn the Minister that if this is the case—we shall certainly seek strenuously to amend the forthcoming Bill if the Government do not bring forward their own amendments—it will be a missed opportunity and make us more vulnerable in several ways. I encourage the Minister to rethink in the mean time because we have the benefit of a couple of months before the Bill comes to the House. I beg to move.
Moved, as an amendment to the Motion, at end to insert "but this House regrets that Her Majesty's Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005".—(Baroness Miller of Chilthorne Domer.)