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Mr. Heald: My hon. Friend will recall that a great raft of amendments was not considered on Report because of the guillotine. The proposal before us was among the
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amendments that were not considered at the time. Does he agree that it is a sad reflection of the present situation that the other place must do our job?

Mr. Shepherd: All that is true. In fact, the situation is worse than my hon. Friend described it, because the whole of part 2 was not considered.

Mr. Hogg: May I suggest to my hon. Friend that the inclusion of a sunset clause would allow the House to consider part 2 in detail for the first time? We were denied that opportunity under the guillotine to which my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) referred.

Mr. Shepherd: That is true. We would be able to consider the provisions after three years, although we have not yet been able to consider them for five minutes. We are considering a piece of primary legislation that will create a framework that will affect the rights for which the House has fought for centuries. We had annual Army Acts so that we could control the supply of money to the Crown to ensure that the Crown could not do that which we did not want. The same important point is relevant to the Bill. The Government should not shrug off our anxieties and complaints. They could bring forward individual pieces of legislation. They could have addressed our point. Although I think that there should be an annual review, I shall gladly support their lordships' amendments.

Mr. Cash: I agree with many of the points that hon. Members have made. The Bill, with its power to deal with enactments with such a broad brush, is Orwellian in its range and depth. The permanence of the arrangements takes us way beyond "1984" into the indefinite future. There are profound reasons why we should object to such infringement of the liberty of the people of this country and Parliament.

I said that the Terrorism Act 2000 subsumed and superseded the temporary provisions imposed on Northern Ireland under the Acts passed between 1989 and 1996. However, when my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) talked about a standing army, he might not have known—although knowing him, I am sure that he did—that his point went straight to the heart of the Bill of Rights. The Bill of Rights is regarded as a permanent safeguard, but this Bill will not cover it. No doubt we shall later consider the interaction between the Bill and the Human Rights Act 1998, which is a temporary palliative because it may be amended or repealed, and the Bill of Rights, which any person in this country would regard as the bulwark of our liberty.

Article 6 of the Bill of Rights says:

That was why we required the Army Acts to which my hon. Friend the Member for Aldridge-Brownhills referred. The provision in article 9 is fundamental to the proceedings of the House. It says:

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The Bill will override the most fundamental aspects of liberty and freedom in this country. As there is not at least a sunset clause to guarantee that the powers be reviewed regularly, I condemn the Bill's provisions for their lack of liberty and permanence and I condemn the intolerant, totalitarian thinking behind them. The Labour party is supposed to be the descendant of Tom Paine and "The Rights of Man". The Bill is a disgrace.

Ruth Kelly: We have had a passionate and interesting debate, although I think that most of the arguments expressed by Conservative Members reflected their fundamental disagreement with the Bill itself, rather than their view that a sunset clause would be the most appropriate way to deal with the situation before us.

The Bill has been drafted to enable future emergencies to be covered flexibly under it. The provisions are sufficiently flexible to ensure that specific supply systems or facilities may be covered under the definition of an emergency when serious damage to human welfare is threatened. It also allows examples about which we are not yet aware to be addressed. However, specific powers will be contained in regulations issued under the Bill, so any debate on the Bill itself would be only a rerun of our debates throughout its consideration in the House and the other place.

Mr. Allan: Does the hon. Lady appreciate that a debate on the Bill some three, six or nine years after it has come into force—after which we might know about circumstances in which it was used—would be different from today's debate, because we are currently discussing our fears due to the fact that we do not know the way in which the Bill will be used? We are asking for the opportunity to debate the Bill after we know how it has been used in practice.

Ruth Kelly: The Bill itself does not restrict individual liberty. It is the provisions made by the regulations that may infringe or restrict civil liberties. I have outlined the safeguards, which are in the Bill and include detailed parliamentary scrutiny under the regulations.

Mr. Hogg: The hon. Lady is right when she says that individual prohibitions are contained in regulations, but she is bound to concede that the powers are created in clause 22(3). Whether Ministers should be able, through regulations, to do this and that does lie on the face of the Bill. It is that which we need to review.

Ruth Kelly: The Bill, which we have debated for a while, has far more safeguards built into it than the Emergency Powers Act 1920, which it replaces. The triple lock is the cornerstone of the safeguards set out in the Bill. Three stringent tests must be met if emergency powers are to be used. First, the emergency must be serious and require immediate action. Secondly, it must be necessary to take emergency powers, such as when it is not possible to introduce a Bill in the usual way; that deals with one of the points raised by the hon. Member for Sheffield, Hallam (Mr. Allan). Thirdly, emergency regulations must be proportionate to the aspect or effect of the emergency at which they are directed.

A range of additional safeguards is on top of that triple lock—we shall debate that in other groups of amendments—as well as the automatic safeguards of
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the public test of reasonableness and the provisions of the European convention on human rights, which apply to all legislation.

Mr. Cash: The hon. Lady refers to the test of reasonableness. Hopefully she will be aware of the case of Liversidge v. Anderson in the late 1940s, in which the question of reasonableness, which had been imported into regulation 18B of the defence regulations, came into question. Where is the test of reasonableness expressly stated in respect to the application of the powers? Furthermore, does she agree that Lord Diplock and a series of other judges said that the case of Liversidge v. Anderson was bad law? I asked in Committee for that to be examined, but I do not think that it was.

Ruth Kelly: I have had no indication from business managers that there was insufficient time to discuss that in Committee. The public law test of reasonableness applied to the 1920 Act and will continue to apply. We would agree that the case the hon. Gentleman cites is bad law, but it is not necessary to provide for a test of reasonableness on the face of the Bill.

I outlined the additional safeguards on top of those that applied to the 1920 Act. We will go on to debate the need for emergency regulations to be compatible with the Human Rights Act and whether that is a sufficient safeguard. I would argue that it is, but that will be discussed in the next group of amendments.

Mr. John Bercow (Buckingham) (Con): The Bill envisages a vast and unwarranted arrogation of powers from Parliament to the Executive. Why does clause 20(3)(c) include Government Whips as the persons entitled to make regulations?

Ruth Kelly: The hon. Gentleman will find that senior Ministers are able to carry that out in some circumstances.

Mr. Bercow: I do not want to encroach on private grief, and, equally, far be it from me to settle the hon. Lady's disputes with Government Whips, but I hope she realises that reference to Government Whips includes senior Ministers and the other way around. The Government Whips would have that power under the terms of the Bill. They are rejoicing in it. It is up to her either to apologise for it or to explain it satisfactorily.

1.45 pm

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