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Mr. Cash : The hon. Gentleman may be falling into a trap if he thinks that the Human Rights Act cannot be amended or repealed by subsequent legislation. In a leading case in 2000, Lord Hoffman made it crystal clear that it can. Moreover, there are serious worries about whether or not there can be proper challenges and judicial reviews of part of the Bill.
Mr. Allan: I accept that the Human Rights Act can be amended, but I am seeking to make the distinction between parliamentary legislation, where Parliament remains sovereign, and measures introduced by the Executive. Parliament can pass whatever legislation it likes, and in theory can pass legislation that is incompatible with human rights measures. However, the Executive have no power under secondary legislation to do that without it being struck down. I look forward to the contribution of the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on a key test on which we need to seek answers both today and in Committee. We need to know whether or not powers in the Bill, as opposed to those in the draft Bill, still allow the Government, under their order-making powers in secondary legislation, to introduce things that have the effect of being primary legislation and that cannot be struck down under human rights legislation. That key test must be applied. In their response, the Government say that they have conceded the point, but clearly we must continue to test that in Committee.
The Bill in its current form maintains the fundamental constitutional distinction between Parliament's sovereign powers and those that it delegates to the Executive. It may not quite have the historic appeal of the signing of Magna Carta, but it deals with the constitutional event that would have arisen had the Government sought to breach the distinction that was deliberately made by Parliament.
The most significant open question remains when these powers might be used, and we hope to explore that as the Bill proceeds through Parliament. It is the area of greatest danger in the legislation. There is a risk that, having produced new legislation, the Government may be tempted to use it. The success of many pieces of legislation is measured by how often they are put into effect by the Government, but the test of part 2 is how little it will be used. The Bill is designed not to be used on a daily basis but to sit on a shelfgathering dust, it
There is some confusion because the range of emergencies that have to be planned for in part 1 and those that may trigger emergency powers in part 2 are described in similar terms. However, the circumstances under which emergency powers may be taken by the Government in part 2 are quite different from and much more limited than those in part 1, for which local authorities will plan. The Government's regulatory impact assessment sets out the situations that require the planning function of part 1. It cites "wide area disruptive challenges" and says:
The Government might be tempted to be seen to respond robustly in certain circumstances, such as a serious attack on a UK target, and that may lead them to consider using the emergency powers. I hope that the Minister will confirm that any such temptation would be resisted most firmly. We need to bear it in mind that throughout most of the last 30 years we have experienced terrorist attacks of the most severe nature in the UK, from the IRA and others, without Governments resorting to the use of existing emergency powers.
Patrick Mercer (Newark) (Con): The hon. Gentleman is missing the point. He is right that there have been terrorist attacks for the past 30 years and longer on this country, but there have also been conventional attacks from our conventional enemies. However, there have never been more than a few dozen casualties. The Bill deals with multiple casualtieshundreds or even thousands of casualtiesso it is another necessary measure.
Mr. Allan: The hon. Gentleman is correct that the scale of previous attacks is different. However, the principle of part 2 is that, wherever existing legislation deals with the relevant circumstances, it should be used. However, where it does not, the first port of call is the introduction of primary legislation in the House. Only when those options have failed should the Government seek powers under part 2 to introduce emergency regulations. There may be a perception that terrorist attacks, whatever their seriousness and grossness, could
There are many reasons why such powers should be in place, but it is worth making the point that there is a high threshold, including circumstances that have arisen over the past 30 years, including an attack on the Cabinet by terrorists in the Brighton bombing and attacks on London's financial centres. Those situations did not require the use of emergency powers, and the correct response was made to introduce anti-terrorism legislation in the normal way. I hope that that will continue to be the case. If the Bill is put on the statute book, it should be the last, rather than the first, recourse. However, I am concerned about the way in which it has been portrayed, with its powers being taken off the shelf when there is a terrorist attack. That need not necessarily be the case.
Simon Hughes: Following my hon. Friend's last point, is not the lesson of the past few years that, while we may under-react there is a danger that we may overreact in the heat of the moment? The Privy Councillors who reported on the Anti-terrorism, Crime and Security Act were unanimous that the decision to derogate from human rights provisionswe were the only European country to do sowas inappropriate, unnecessary and went a step too far.
Mr. Allan: My hon. Friend is entirely right. In a media-driven world, the hue and cry is for action to be taken, but such action may not be appropriate or necessary because statutory powers are already in existence.
In closing, I shall describe certain scenarios in which we should be clear that we do not want any emergency powers to be taken. I call those the poll tax riot scenario, the Reichstag fire scenario and the killer bees scenario, to try to describe situations in which the legislation should not apply. The poll tax riots are an example of a situation in which there is serious disorder as a result of the Government pursuing a deeply unpopular policy. There is law available to deal with any criminal action that arises from politically motivated protests, such as the law on criminal damage and assault. Political protest, however destabilising, should never be grounds for Government to invoke emergency powers. It is therefore helpful that the provisions in the draft Bill for political instability to be included in the definition of an emergency have been removed.
The Reichstag fire scenario is perhaps the hardest to deal with and the most fanciful in the current stable political climate, but it should never be discounted. It assumes that an anti-democratic party is on the rise in the UK. The party might be extreme right, extreme left, or even extreme centre, if there is such a thing. Such a political grouping might seek to cause an emergency precisely so that it could govern using emergency powers, rather than normal democratic procedures.
Nobody is suggesting that that is at all likely in the present climate, but the rise of the far right in some surprising places over recent years means that we cannot
The killer bees scenario is the one that I fear is most likely to occur. This is the situation in which there is hype in the media about a perceived new threat and a loud demand for Government action. We all know the scene from disaster movies: "Mr. President, there is a swarm of killer bees. You must do something now." If killer bees are a little far-fetched, think back a few years. Would we have imagined anthrax in the postal system or terrorists planning to dump poison in the water supply? Both are recent scenarios that were put forward in the US media and received a huge amount of coverage in this country.
The urge for a Minister to "do something" when confronted by such a call and to reach for the emergency powers may be great, but it would be an abuse of them if it happened when not strictly necessary. We have an Executive in Parliament, not a separately elected Executive, and delegate executive powers only in extreme circumstances, not to satisfy the political needs of Ministers facing a crisis.
We will seek to test the safeguards on part 2 during the progress of the Bill to satisfy ourselves whether a democratic party should support the Bill. We will also test the Government's commitment to resource the responsibilities created in part 1. We intend to do that in a constructive spirit and hope that the Government will respond in a similar fashion, as they have done to date.