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Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I follow in the train of thought of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and of the hon. and learned Member for Medway (Mr. Marshall-Andrews). They spoke about the values, freedoms and liberties that are still the hallmark of our democracy, central to which is our concept of freedom. They spoke for the generation that I come from, and for the past. My concern is that the Government have set in train in the Bill a constitutional process that is a response to the darker forces. It is as if we try to argue our case by almost romantic reference to "1984" and "Animal Farm", because we see there the dangers of what the state can be. It looks as if the Government, sitting there one Christmas evening, saw the Hollywood blockbuster "Independence Day", and felt that this country was being assailed by threats that they could not quite specify, but that they knew needed a massive response.
The point must be made again. Clause 21(3) says that regulations may
(c) provide for or enable the destruction of property, animal life or plant life (with or without compensation);
(d) prohibit, or enable the prohibition of, movement to or from a specified place;
(e) require, or enable the requirement of, movement to or from a specified place;
(f) prohibit, or enable the prohibition of, assemblies of specified kinds, at specified places or at specified times;
(g) prohibit, or enable the prohibition of, travel at specified times;
(h) prohibit, or enable the prohibition of, other specified activities".
Subsection (3) then says that the regulations may
The argument is extraordinary that somehow, clause 21(3) does not mean what it says, and the introduction of the concept of parliamentary counsel's opinion is a departure from established points. Reference has also been made to the identification of constitutional legislation, which means that somehow the Human Rights Act 1998, as a constitutional measure, is protected. However, I suggest that the clause whereby the state seeks to take unto itself powers by regulation is itself a constitutional measure.
Let us consider that. My right hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. and learned Member for Medway are lawyers, and profoundly good ones, but I, as a layman, shall try to put my view of this forest. The opening words of clause 21(3) appear to allow regulations to amend primary legislation, including Acts of Parliament. Section 21(1) of the Human Rights Act 1998 defines primary legislation, for the purposes of the Act, as including
That is my legal advice. I cannot trade with parliamentary counsel, but there is no guarantee that the provision in clause 21 of the Bill
Mr. Hogg: To reinforce my hon. Friend's point, clause 22(3), which provides that the emergency regulations may not provide for call-up or prohibit industrial action, shows that there is a real anxiety that the regulating power may be an infringement of human rights as defined in domestic legislation.
Mr. Shepherd: I am grateful for the additional weight that my right hon. and learned Friend gives to the
All my life I have lived, as have most people in this Chamber, under the threat of nuclear warfare. That is a genuine threat, not a mirage in the desert, and all my life it has dominated the political and geopolitical balance of the world. At any time people could have assembled nuclear devices, under the aegis of diplomatic bags or otherwise. I have always assumed that the vigilance of our security services, the law enforcement agencies of our country and the intent of the Government have protected us in that balance of power. However, we are now told that the danger, and the order of the danger, is so great that it cannot be specified or anticipated, and that the Government must therefore take unto themselves powers whereby Whips, no less, can make regulations. It can be no comfort to this country to think that Whips can make regulations that have the force of law, and which could place us in criminal jeopardy. That is the suggestion. It would be risible if it did not come from this Government, whose paranoia has gone so far that they now say that under the Bill, Whips, no less, shall make regulations. That should be laughed out of the House.
As my right hon. and learned Friend the Member for Sleaford and North Hykeham said, we must also turn to the parliamentary processes and parliamentary scrutiny. We do have clause 26(1), which says that the affirmative procedure shall be used to make regulations. Hooray. As my right hon. and learned Friend pointed out, we have good reason to remember just what the affirmative resolution procedure entitles us to90 minutes of debate on what is listed in the Bill.
We know that for the Foreign Secretary, 90 minutes is but a second gone as he explains his measures, and the Home Secretary is not very terse either. By the time my Front Benchers get to grips with these matters, what will we have left? Members of Parliament, sent here to represent the freedoms of this country, will not even get a look in. We are also told at subsection (3) that
As my right hon. and learned Friend the Member for Sleaford and North Hykeham asked, who is to do the amending? If I were a pretty nifty Government, I would get my amendment in first and Mr. Speaker would select it. In any event, how can amended regulations be subject to proper debate on the nature of the amendment if we have only 90 minutes?
It may be that the Whips are as apprised as me as to the vulnerability of our free society to the regulations that they are toiling over, probably even as I am making
I may have made too much, too lightly, of the role that the Whips play here, but it beggars belief that a Government could say in the Bill that the people to make regulations shall be Whips. That is the apotheosis of a Whips Office dream, and a nightmare for the rest of us.