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8.49 pm

Mr. William Cash (Stone) (Con): This has been a fascinating debate. Many of the remarks made outside the House before it took place misunderstood the role of Parliament in achieving a more measured approach to the difficult and significant matters in the Bill.

I remain unhappy with the Bill's title, because it is not about civil contingencies but about peace and war, if terrorism is categorised as a form of war. That creates muddle, so I would be happier if two Bills were introduced, perhaps in parallel. One would deal with planning and the other with the much more significant constitutional implications, which several hon. Members have spoken about. Indeed, my good friend, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said that the Bill has profound constitutional implications. I shall deal with some of them, setting them in the context of the way in which similar legislation has been interpreted in the past. It is important to do so, as the Bill has not grown in a vacuum.

Times and circumstances may have changed since 1920, but questions of liberty and justice are still fundamental and include, for example, the determination that there should not be detention without trial. The Bill allows for carte blanche amendment and adaptation of existing legislation. Some provisions, including clause 18, give rise to serious problems. Under clause 18(5) the Secretary of State would have the power by order to

"provide that a specified event or situation, or class of event or situation, is to be treated as falling, or not as falling"

within certain definitions of emergency, which apply to human welfare, the environment and the security of the United Kingdom. In other words, the Secretary of State decides whether or not an event is to be treated as a "specified event". He also has the power to amend clause 18(2), which specifies various categories of human welfare, and would have the power to determine whether an event

"is to be treated as threatening damage to human welfare",

or is no longer to be treated in that way.

An extraordinary range of options is therefore made available to the Minister under the Bill. One wonders what could not be done under the Bill, and we need to bear that in mind when the Bill goes into Committee. As I said in an intervention, the Secretary of State could do almost anything he thinks would be appropriate in the circumstances. Descartes famously said:

"I think, therefore I am."

In the Bill, the Secretary of State is saying, "I think, therefore it shall be." There are therefore serious problems in relation to the issue of civil liberty, and I am

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not satisfied that the limitations of emergency regulations in clause 22 are adequate. They are lifted from the Emergency Powers Act 1920 and may not, according to the clause,

"require a person . . . to provide military service"

or prohibit participation in industrial action. But that is only part of the activity that should be prohibited. The situation requires much more stringent consideration. The Bill has deservedly been criticised, and a good deal of work is needed to make the necessary improvements.

Parliamentary scrutiny reveals some inconsistency between the duration of the regulations and the conditions under which they lapse. Clause 25 states that they lapse

"at the end of the period of 30 days".

As my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, that would not prevent a new set of regulations from being made. However, clause 26 states that

"the regulations shall lapse at the end of the period of seven days . . . unless during that period each House of Parliament passes a resolution approving them."

Some cleaning up needs to be done there.

Another important point should be borne in mind. As hon. Members have said, there is always a tendency for Governments to use the powers that they have, and to use them to maximum effect and to the greatest extent. The hon. and learned Member for Medway (Mr. Marshall-Andrews) referred to George Orwell's "1984". I, too, dug out a reference that I found interesting in the present context. In chapter 9, Orwell writes that the High—that is, the people who have the highest degree of authority—learned how to keep their position permanently. Part of this strategy included the maintenance of a state of continual warfare, which Goldstein discussed in the third chapter. The three major powers were not fighting this perpetual war for victory. They were fighting to keep a state of emergency always present, as the surest guarantee of authoritarianism.

I would not want to exaggerate the applicability of that proposition to the present situation, but there is a serious problem that we should address. We should not grant too much power to Government, particularly power with relatively light parliamentary scrutiny restraints and with such extensive scope which in the wrong hands could be misused.

Emergency powers are justified entirely in terms of the first duty of a Government to protect the security of the people in times of grave national emergency. The role of the Attorney-General, which has not been mentioned yet, is part and parcel of that. He is personally, not collectively, responsible for the security of the nation, hence the importance of the opinions he gave in relation to the recent war.

In an important case in 1968, Conway v. Rimmer, Lord Pearce stated that

"the flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings".

When he made that statement, he was referring to a matter of fact. He was not talking about something that might be expected to happen. The Bill, however, grants blanket powers to deal with anticipated events. One must distinguish, as Lord Pearce did, between the

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"dramatic light of bombed buildings",

which is a done deal—a fact—and anticipated circumstances for which one is taking extensive powers that affect civil liberties, although that has not yet proved to be necessary.

I refer here to the important case of Liversidge v. Anderson in the 1940s, in which the question of reasonableness was imported into regulation 18B of the defence regulations. Even in those defence regulations, where we are dealing with a situation that is clearly one of war, the test of reasonableness was part and parcel of those regulations. There is no test of reasonableness that I have been able to observe in relation to any of the powers conferred on Ministers, including the Prime Minister and Secretaries of State; they merely have to think that something should be done, not that they have reasonable cause to do so. When Liversidge v. Anderson was taken to the House of Lords, even with the word "reasonable" in the legislation, the House of Lords, with one important dissenting judgment by Lord Atkin, decided that, as in this Bill, there should be no test of reasonableness. That is a retrograde step and I criticise the Bill gravely and seriously for that omission. Lords Scarman, Diplock and Reid, in subsequent important cases, have said that the law in Liversidge v. Anderson is bad law. That is a matter that will need to be carefully examined in Committee.

I conclude by making one other reference to the legal precedents, and that is that even as recently as 2000, Bradley and Ewing, in their textbook "Constitutional and Administrative Law", which gives an important analysis of the legal precedents and principles that underpin these questions, say:

"But concern about the unenviable role in which they have been cast"—

that is the courts—

"is hardly eased by Lord Hoffmann's postscript in the Rehman case where he said that the events of 11 September . . . were a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these maters. It is also that such decisions . . . require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process."

He goes on to make the point that the decisions

"must be made by persons whom the people have elected and whom they can remove."

In other words, even as recently as all that, Lord Hoffmann, a prime advocate of civil liberties, argues the case that it is Ministers who should decide—therefore we must trust those Ministers.

In conclusion, I just make the point that these measures should not be enacted against the background of any authority other than that of Parliament. We will have to make those decisions. Those decisions will have to be made in Committee.

9.3 pm

Mr. Desmond Swayne (New Forest, West) (Con): Like my hon. Friend the Member for Stone (Mr. Cash), I have found this a powerful and fascinating debate, and certainly in view of the speeches that we have heard

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tonight, no self-respecting legislature would provide the Executive with powers such as are in the Bill. I certainly hope that they will be expunged from the Bill in Committee, but if they are not, that in itself is an argument fatal to the Bill's progress.

I draw the attention of the House to my entry in the Register of Member's Interests, particularly in respect of my commitment to the Territorial Army.

The debate has been fascinating, but in one respect alone, frustrating—that is, the failure of the hon. Member for Sheffield, Hallam (Mr. Allan) to finish his story about the killer bees. Although it was a fascinating vignette for those of us who do not watch disaster movies of that sort, he left us hanging, and I want to know what became of the killer bees.

The most irritating feature of the debate was the series of sedentary comments by the hon. Member for North Durham (Mr. Jones), who, following his proper intervention, continued to carp, "What about the miners?" His point appeared to be that the wicked Tories had used powers such as those in the Bill, but without any legislative basis, to victimise the miners. Even if we were to accept that analysis, it is nonsensical to argue that because a wicked Government perpetrated terrible things against the miners, they should be placed on a legal basis so that they can be used against any group of citizens. If the hon. Gentleman believes that, he is a fool.

In the mid-1980s, the most likely scenario appeared to be some sort of Soviet attack across the central European plains. It was believed that that would be preceded by some six months of growing tension during which Russian special forces would carry out a number of activities to destabilise the UK home base, principally involving assassinations and terrorist acts to disrupt key points such as communications centres and the transport network, especially the M4 corridor. We used to train against those possibilities: every two years, we would run an exercise called Brave Defender to co-ordinate the military, the ambulance services, the police and so on. That scenario is not wholly dissimilar from the one we are considering today. We should therefore think more about reactivating that civil defence capability and investing in such exercises than about new laws. I am not wholly persuaded of the case for a whole raft of new powers. I do not believe that anyone's immediate reaction to September 11 was, "Gosh, this is awful: we need a new law"—it was much more that we needed to take practical steps to deal with such eventualities.

In July 2002, in response to September 11, the Government published an additional chapter to the strategic defence review containing the big idea that the reserves should be used for the civil contingency reaction forces. The Secretary of State told us that

"500 reservists from . . . units of all three services in each of the 11 areas of the country—some 5,000 to 6,000 reservists in all"

would help in

"handling major incidents, with individuals committing themselves to turn out at short notice for a range of duties, including site search and clearance, transport and communications, control and co-ordination."—[Official Report, 18 July 2002; Vol. 389, c. 463.]

In the weeks and months that followed, that was fleshed out by the Minister of State and the Under-Secretary, who told us that 700 new posts were to be

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created purely to co-ordinate command and control so that the handling of such incidents could be run on a 24-hour, seven-days-a-week basis. We were told that 130,000 man training days were to be made available and that 2 Signals Brigade would be central to the co-ordination and communication efforts involved. How much of that is really in place? The Minister will not be able to tell us, because it is not his specific responsibility, but that prompts the question of whose it is.

When my hon. Friend the Member for Newark (Patrick Mercer) tabled questions to the Ministry of Defence asking precisely how much had been done, he got a fairly dusty response.

He asked:

"what training has been conducted in the last 12 months in each of the armed forces in dealing with a terrorist attack involving chemical or biological agents."

He was told:

"The armed forces are not responsible for dealing with chemical or biological attack in the United Kingdom. The Home Office, Department for Environment, Food and Rural Affairs and the Department of Health would take the lead and could, if appropriate, call upon the limited skills of the armed forces."—[Official Report, 7 January 2003; Vol. 397, c. 52W.]

That may, strictly speaking, be true, but it is a hundred miles from the announcement and the enthusiasm for the subject in the additional chapter to the strategic defence review. I wonder why we seem to be backing away from that commitment. I suspect that my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) put his finger on the point by saying that the forces simply are not there. Many of them have been called up on Operation Telic. My estimate is that, rather than the 7,000 who are supposed to be dedicated to these matters, we probably have between 2,000 and 5,000.

The recent defence White Paper spelled out how reserves would be used in future, saying:

"This policy sees the Reserves providing an integrated, ready and capable component of Defence, capable of being mobilised for any type and scale of operation."

That concerns me. In the past, we have considered the reserves for use in an emergency. If they are to be used for "any scale and type" of operation, the question arises of whether the high-tempo use of reserves that is currently under way in Iraq will continue to apply. I suspect that it will, because the White Paper says precisely that.

The danger will be that only unemployed people will be able to serve in the reserves. People with careers will not be able to keep a commitment that continually places a reserve liability on them. It is fine to be called up when "Your Country Needs You" in the event of an emergency. If that is to be a continuous process, however, the reserves will quickly disappear. When the Government come to need them, they will find that the reserves are not there. The Minister has offered a Bill creating all sorts of powers for himself, but when Ministers come to pull the levers and try to make the system operate, they may well find that there are no reserves to carry out some of the vital purposes for which that Bill is designed.

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