Andreas Whittam Smith: More than ever, eternal vigilance is the price of freedom

'What use might be made of the anti-terrorism law by a government of a different stripe?'

Now that the Government has published its Anti-Terrorism, Crime and Security Bill, we citizens can exercise the "eternal vigilance" which we are often reminded is the price of freedom.

The Irish judge who originally gave the warning in the 1790s put it in strong terms: "The condition upon which God hath given liberty to man is eternal vigilance: which condition if he break, servitude is at once the consequence of his crime, and the punishment of his guilt." And he was merely discussing the election of the Lord Mayor of Dublin.

Eternal vigilance makes difficult demands. It requires an imaginative leap. It is no use, for instance, testing the new measures against their consequences for one's everyday, normal life. Telephone and internet service providers would have to furnish the authorities with details of their customers' itemised billings but not the contents of telephone calls or e-mails. As I am not in the habit of communicating with people whom the police would be the remotest bit interested in watching, why should I mind?

To be eternally vigilant, therefore, means thinking ourselves into a situation where, without wishing to break the law, the new powers might have an impact – if not on oneself but on a family member or a friend. Let us say that I object, on safety grounds, to the transportation of nuclear materials on roads or railways running through towns and villages. I wish to stand with a banner along the routes of such convoys in order to alert local people to the danger I believe they are in.

Under this new bill, however, it would be an offence to publish details of the transport of nuclear materials. Either I shouldn't know, or if I did, I couldn't tell. Nonetheless, the word has got about that a train load of the stuff is to pass through Crewe station on a given day. I phone and e-mail people whom I think might like to join me in protesting. Unfortunately, one of them is well known because of earlier incidents. The police have checked my friend's telephone and internet billing records and learnt that I am one of the people he has been in touch with quite often recently.

As a result there comes a knock on the door. A policeman asks to speak to me. He wants to know if I am planning something involving a nuclear shipment. Still thinking that my civil liberties are intact, I politely refuse to answer. Ha, says my uniformed visitor, we have reason to believe that a terrorist attack on a nuclear convoy is being planned and I must warn you that under the Anti-Terrorism Act 2001, it is a criminal offence to fail to disclose information to the authorities that could help to prevent attacks. I wonder whether the policeman's fears of possible terrorist activity are precise or vague, or only a guess or even a fib, but how am I to know. I begin to feel trapped – as a law abiding citizen, in my own home and in my own country.

And a second imaginative leap is necessary if eternal vigilance is to be effective. We must ask ourselves what use might be made of the new legislation by members of a government of a different stripe sometime in the future.

To take a relatively harmless example, it was a Conservative government that 30 years ago introduced dividend and price controls which, later on, Mr Wilson's Labour Government was able to use in ways unthought of by the Tory ministers who put the legislation on the statute book. What, then, would a very left-wing or very right-wing government do with the Anti-Terrorism Act 2001?

I think it would look hard at the new powers which it is proposed be given to the Ministry of Defence police. Normally, one doesn't see much of these officers, unless one is in the habit of visiting nuclear submarine bases or similar installations. But now it is planned to give the Ministry of Defence police force exactly the same scope as regional forces.

Rather than being confined to defence bases, they would be able to roam more widely. They are always armed; they are not subject to the Police Complaints Authority and they are not accountable to any police authority. They are precisely a state police force and could easily be turned into something nasty by an unscrupulous government.

The third requirement of eternal vigilance is speed. The Anti-Terrorism, Crime and Security Bill is a large measure. It contains 125 clauses. The second reading takes place today. So interested parties will have had little time in which to absorb the full meaning of the Bill and make representations to MPs in time. As ministers want to see the bill become law by the end of the year, there is an obvious risk they will use their big majority to force it along.

Eternal vigilance needs time if it is to play its necessary role. Parliament would earn respect by giving every clause a full review. It is no use attacking a law supposedly made by the judges one day on the footing that parliament is supreme and the next day making bad law by pushing through an important Bill in a hurry.

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