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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
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:
Parliamentary scrutiny reveals some inconsistency between the duration of the regulations and the conditions under which they lapse. Clause 25 states that they lapse
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 Highthat is, the people who have the highest degree of authoritylearned 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
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:
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.
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
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, frustratingthat 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
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.
The recent defence White Paper spelled out how reserves would be used in future, saying:
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.