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7.30 pm

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.

Clause 21(3) states:

"Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative".

That is very serious. I cannot think of any statement quite like that in my lifetime, except in the context of war, direct and explicit, and in legislation for the defence of the realm. What do the provisions confer? As my right hon. and learned Friend and the hon. and learned Gentleman pointed out, they confer a power to enable.

The point must be made again. Clause 21(3) says that regulations may

"(b) provide for or enable the requisition of confiscation of property (with or without compensation);


(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".

Paragraph (i) contains a list of offences that are created.

Subsection (3) then says that the regulations may

"(k) require a person or body to act in performance of a function (whether the function is conferred by the regulations or otherwise and whether or not the regulations also make provision for remuneration or compensation)",

but it does not end there. It says that the regulations may

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"(m) make provisions (which may include conferring powers in relation to property) for facilitating any deployment of Her Majesty's armed forces"

and

(n) confer jurisdiction on a court or tribunal (which may include a tribunal established by the regulations)".

There is no question at all but that those measures engage human rights provisions.

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

"an order or other instrument made under primary legislation . . . to the extent to which it . . . amends any primary legislation".

Section 3(2)(b) provides that an incompatibility with a convention right

"does not affect the validity, continuing operation or enforcement of any incompatible primary legislation"

as defined in section 21. If a piece of primary legislation in that extended sense is incompatible with a convention right, the only legal remedy is a declaration of incompatibility, under section 4(6)(a) of the Act, which

"does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given".

It therefore seems that a regulation that amends primary legislation is itself primary legislation to that extent. Such a regulation cannot be quashed or set aside in legal proceedings on the ground that it violates a convention right.

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—

"Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative"—

is locked in some way if such a regulation is in contravention of the Human Rights Act 1998.

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

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argument that some of us are advancing. We are trying to demonstrate that the powers in the Bill are not inconsiderable, that they are unusual in our constitutional context and that they go far beyond anything that any previous generation has sought. This is essentially enabling legislation—that is all. We have no idea what regulations will follow from it, although we have the illustrative ones here, and all the locks do not convince me that we are safeguarding essential liberty. The hon. and learned Member for Medway reminded us what that liberty is, saying that it is our fear that enables a Government to come to the House and make provision in these terms.

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 to—90 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

"the regulations shall have effect as amended".

That means that there is an understanding that there is a possibility of amendment—but of course, that is not in our Standing Orders; amendment would have to be consequential on the Bill.

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

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this speech. It may be that those Whips are not very literate. We have heard about prison populations with a high level of illiteracy; some of us feel sometimes that we too are confined. So, as they toil over the regulations that they are to introduce in the name of some security device, I ask when we will get the opportunity to consider them properly.

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.

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