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6.42 pm

Mr. Robert Marshall-Andrews (Medway) (Lab): There is much in the legislative progress of the Bill for which the Government deserve and should receive congratulations. I appreciate that my saying that may cause a frisson of apprehension in the Home Secretary's breast that he has gone too far on this occasion in order to appease the dark forces of liberalism with which he struggles every day.

The plaudits that the Government deserve in respect of the Bill apply entirely to the way in which they have taken it through the pre-legislative process, which is a model of its kind. The Bill is infinitely better as a result. There are, however, aspects of the Bill that are anathema to civil liberty. If they remain unscathed as a result of the Committee process, the Bill should ultimately be opposed.

As this is a Second Reading debate, I shall reflect on the context in which the Bill is brought before Parliament, and the context in which Government ask for the greatest powers that any Government have asked the House to arrogate to them in modern history. The context of the Bill is terrorism. The Bill is not put before us for us to pass as a result of BSE, flooding or any other form of natural or environmental disaster. The basis of the Bill—the only basis on which Government could ask the House to pass it—is terrorism.

Let us consider terrorism and the appropriate ways in which we should and can deal with it. Terrorism has two weapons. The first is the wanton, atrocious infliction of

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violence, cruelty and injury indiscriminately upon the innocent—terrible crimes committed in its name. The second great weapon of terrorism is fear of such acts. The fear is often wholly disproportionate to the extent of the threat actually posed. It is that fear that is the greatest threat to liberal democracies—not the action itself, but the fear of that action.

There is no greater desire on the part of the terrorist than to instil that fear in liberal societies in order to make them react by passing legislation that attacks the very values and principles that are the basis of those democratic societies—in other words, by instilling fear, to make us do the job that the terrorists require us to do.

Guantanamo bay is an institution in which al-Qaeda must glory and rejoice every single day, for the effortless recruitment—and in many ways, the legitimate recruitment—that it brings about to the ranks of those who protest. In our own prisons, as a pale shadow, which unhappily is very often what we become, we have tens of people who have been in prison without trial and without representation for two years now. That state of affairs represents a triumph not for the Home Secretary, but for terrorism, because the terrorists have dictated to us measures that are abhorrent to the basis on which this country proceeds.

It is therefore in that manner that we must approach the Bill. If we pass into law things which, in due course, can cause us to lose those liberties, we are in effect producing precisely the result that terrorism demands. Also, terrorists rely on our own politicians and a de facto complicity. There is no shortage of politicians in democratic countries who are able to exploit that fear in order to enhance their own populist support and their own control. The House must beware of that, above all.

It is not new that politicians should use fear of outside forces to pass draconian legislation or to enjoy abuse of power. In "Animal Farm" the pigs maintained order not by brute force, but by the persistent fear of the return of the farmer. In "1984" Big Brother maintained his power not by brute force, but because of the unspecified fear of other, countervailing forces in the world—unspecified and probably non-existent.

While we are on the subject of great literature, I recommend to the Home Secretary Kafka's short stories, in particular one called "The Burrow", in which a small and terrified animal—terrified of something for which there is never any explanation—continues to burrow further and further into the ground. The more he burrows, the more terrified he becomes, because he tells himself, "I have burrowed so deep that the threat must be very great to have got me into this position in the first place." It is precisely that against which we must guard. There are many other parts of Kafka to which I could direct the Home Secretary, but I suspect that he has them well in mind.While we are on the subject of literature, I commend to the House the article by Mary Riddell on precisely this issue in The Guardian, that great bible of darkness, two weeks ago.

That is the generality in which we must approach the Bill, and it is one in which we must take great care. The powers that the Bill asks us to give to arbitrary and executive government are massive. They are greater than have ever been required in modern history. They may destroy or requisition property by Executive decree; they may ban travel by Executive decree; they

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may ban any assembly, however peaceful, by Executive decree; they may mobilise the armed forces by Executive decree; they may set up courts or tribunals hitherto unknown to our judicial system in order to enforce the regulations; and they may by regulation strike down any Act of Parliament. It is completely incomprehensible that that bald pronouncement would not enable Government to strike down the Human Rights Act 1998 itself.

I feel bound to say that the Minister's assertion that we have arrived at this constitutional position, which he can defend because of a conversation with parliamentary counsel, without the slightest reference to the reasons that parliamentary counsel gave for what would otherwise appear to be an incomprehensible view, is not something of which he should be proud in recommending the Bill on Second Reading to the House.

Mr. Kevan Jones: Does my hon. and learned Friend agree that one of the basic human rights is life, and that if we as elected politicians were not to take actions to protect the electorate from the clear threat that faces this country at the moment we would be remiss and would be letting down the citizens who elected us to this place?

Mr. Marshall-Andrews: Of course that is right, and I am grateful because I may now use that helpful intervention as a crutch in order to move forward to the next part of what I hope will be a short summing-up.

The real problem, and it has been identified, is not necessarily the extent of the powers that are being demanded, but the basis upon which those powers can be exercised. That is the point. The gateway through which the Executive must pass in order to give vent to those powers must be narrow indeed and tightly drawn, and it is not. These powers are far too wide. They are subjective, by definition. It is for the Minister to decide what is serious and what is not at any given time, not for anybody else. As I have said, the Bill may very well have struck down the power of the courts to intervene. The extent of its powers is extraordinary. They are not simply, as the old statutes that it rephrases say, a response to events that will deprive us of "the essentials of life". That was understandable. For instance, it would be sufficient to perceive a serious danger to human welfare caused by the disruption of transport facilities. I do not want to be facetious in this debate, but given that subjective test, many of my constituents would consider that we have a state of emergency on every single working day in Chatham, Rochester and Strood railway stations, and sometimes at the weekends too, but that is how widely this is drawn.

Mr. Cash: Following that line of argument, would the hon. and learned Gentleman also agree that part 2 of the Bill effectively says that the Minister—it could be the Prime Minister—may say, "If I think that there is a grave and serious threat, it is a grave and serious threat"?

Mr. Marshall-Andrews: Yes, precisely. There is an obvious Lewis Carroll aspect to this—it is, because I perceive it to be. There is no test, check or limitation upon these powers. If I may take up the hon. Gentleman's use of language, in fact he has prescribed

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the power much more narrowly than it is. The threat does not have to be immediate and the threat itself does not have to be serious; it is only the effect of the threat that needs to be serious.

What is serious in this context is the degree and the nature of the powers that the House is being asked to hand to the Executive. If we do so in the present terms, it will be a subjugation of the House to the very forces of terrorism that we are hoping to combat. In those circumstances, while even if we have the opportunity I would not vote against the Bill at this stage, I for one will most certainly combat the Bill when it returns if it remains in its present form.

6.55 pm

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): As is so often the case, it is a great pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews). I share all the views that he has just expressed. We begin with the self-evident proposition that the Bill grants great powers to the Executive—the hon. and learned Gentleman has identified them and I shall repeat them briefly—and it imposes on the citizen draconian burdens and obligations. It is therefore right that the House should subject the Bill to vigorous and rigorous scrutiny.

I begin by making two acknowledgements, if I may. The first is that I, too, am inclined to think that a Bill of this general kind is probably necessary. I also wish to acknowledge that the Government have listened to the responses to their consultation exercise and they deserve credit for that. But the fact that the Government have responded positively to many of the criticisms, and the fact that some of the lobby groups, the consultees, have expressed themselves satisfied as to the Bill broadly defined, does not relieve us of the obligation carefully to scrutinise the Bill, especially in Committee.

The first point that I want to make—I make it as a person who served on the Front Bench for a long time—is that I distrust all Governments, and I distrust all those who wield Executive power. I would not give to the Front Bench of any party more power than is absolutely necessary because, in the end, it will be abused. That is the nature of political power.

I reinforce that general observation by referring briefly to the war in Iraq. Britain was committed to war against Iraq on the assumption, oft stated by the Government, that Saddam Hussein possessed weapons of mass destruction and that they constituted a threat to this country's security and to the world at large. I did not share that view and I voted against the war, but he did not possess such weapons and we were misled. The charitable interpretation is that we were misled because of a failure of "intelligence" on the Government side. The less charitable interpretation is that the Government had a private agenda—namely, their support of the United States—that they knew they could not sell to Parliament, or, more expressly, to their Back Benchers, so we went to war on a false prospectus.

That is the view that I hold. It is one of the reasons why I voted against the war. But it does not really matter for these purposes which is true, because the circumstances that caused us to go to war on a false prospectus—failure of intelligence or misrepresentation of the facts—are quite capable of arising in a case such

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as this when a Government seek emergency powers. So, as I say, I view with very great caution the giving of draconian powers to any Government.

The hon. and learned Member for Medway identified some of the powers that the Bill gives the Government, and did so very comprehensively, but I hope that hon. Members will forgive me if I reiterate one or two, because they are pretty draconian. They include: a power to give any citizen an order or direction; a power, without compensation, to confiscate or to destroy property; a power to limit freedom of movement by excluding individuals from stated areas, such as their homes; a power to prohibit assemblies or activities, such as a right to protest at what the Government are doing; and, perhaps most dangerous of all, a power to modify or disapply an existing statute.

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