Terrorism Prevention and Investigation Measures Bill

Lord Hennessy of Nympsfield Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, when an open society such as ours finds itself confronted by a vivid, immediate and largely unanticipated threat, as we experienced a decade ago in the tense days following 9/11, part of the response has to be shaped by the need to do a deal with ourselves. If we decide, as we did, to frame new and tougher counterterrorist legislation, we must, given our instincts and our traditions, set out to cast the new statutes in such a way that they are plainly an unwelcome aberration from the norms and should endure only as long as they are required. At moments of shock and attack such as the July 2005 bombings in London, we need always to emphasise the gap between ourselves and those who seek to deprive others not just of liberty but of life; to avoid narrowing the gap; and to prevent our new laws from coarsening our politics and blunting the sensitive social instincts and systems that are essential to keeping our open society worthy of its name.

Part of this involves the reopening and re-examination of the temporary deal embedded in our counterterrorist legislation at regular intervals and when circumstances allow. The Bill before us represents a welcome chance to revisit one of the most controversial ingredients of the new protective state we have constructed over the 10 years since the atrocities of September 2001. Control orders, and the apparatus of special hearings and special advocates that accompany them, cut against the grain of our traditions and instincts. Therefore, I welcome the wish of the coalition to ease previous arrangements in the manner laid out in the review of counterterrorism and security powers published last January, and given legislative shape in the Bill before us. I welcome, too, the reduction to 14 days of detention without charge, which also flowed from that review.

For those without access to the assessments of the security service MI5, or sight of the product of the Joint Terrorism Analysis Centre, it would be impossible and wrong to assert, in definitive primary colours, personal conclusions about the proportionality of the Bill in relation to the terrorist threats that currently exist in our country. On this patch of legislative terrain, as my noble friend Lord Bew expressed so well earlier, a very high level of trust is involved. We have to place our faith in the collectors and analysts of current intelligence, and in the creation of a picture for Ministers that is painted with care, detail and context. We have to trust that the Ministers with responsibility for counterterrorism, individually and collectively, will test out the judgment of the intelligence providers and security advisers, the validity of their product and what it means for the defence of our people and of the realm, as well as for the individual on whom a control order or a TPIM might be imposed.

That said, I welcome the easements and new thresholds involved in the move from control orders to TPIMs. I have no objection to the enhanced TPIM legislation that we have in draft form, and the opportunity for pre-legislative scrutiny that it affords. It is in line with the tradition of emergency legislation from the Emergency Powers Act 1920 to the Civil Contingencies Act 2004 in terms of extra, latent power for the state in circumstances where the Government of the day can persuade Parliament of the temporary need to swiftly make these powers actual. The only occasion I know of in our lifetimes when this was not possible was the inevitably draconian draft Bill giving the state breathtaking powers over people, property and life itself that would have been rushed through Parliament in the last days of peace before World War III erupted, Parliament was prorogued and the Government subsequently broken up into 12 mini-kingdoms, each presided over by a Cabinet Minister/regional commissioner as, in effect, an absolute monarch in a bunker. The draft Emergency Powers (Defence) Bill to which I refer was framed in 1962-63 in the months following the Cuban missile crisis and only reached the public domain when it arrived at the National Archives, having been declassified under the 30-year rule in the mid-1990s when the Cold War was over.

The threats we face today are not of comparable magnitude, but they are very real. The outbreak of the Third World War was a highly unlikely contingency but an utterly catastrophic prospect—“beyond the imagination”, as a mid-1950s Cabinet Office study of the impact of a Russian thermonuclear assault on the UK put it. Jihadi-inspired terrorist attacks are not beyond the imagination. They have happened and, despite the best efforts of Crown servants both in and out of uniform who place themselves between us and danger, they will very likely happen again.

The number of individuals caught in the world of the control order or the proposed TPIM is about a dozen. However, quite rightly, the questions of their treatment and the length of time a suspected terrorist can be detained without charge have been among the most important weather-makers of the rolling conversation we have had since the passage of the terrorist legislation following the Belmarsh judgment by the Law Lords in 2004.

As the noble Lord, Lord Macdonald of River Glaven, pointed out in his Review of Counter-Terrorism and Security Powers, control orders have had a seriously harmful effect, not just on the liberty of those so controlled but on their health, well-being and family life as well. The noble Lord was also eloquent on the need to nurture and sustain a bias towards evidence-gathering and prosecution of those suspected of planning terrorist acts, rather than “warehousing” them—the noble Lord’s verb—by using control orders or TPIMs if this Bill becomes law.

Terrorist emergencies do not begin with a formal declaration of hostilities, nor do they end with a surrender document, unconditional or otherwise—nor did the Cold War, which inspired that fearful draft legislation in the 1960s. I suspect that this rolling conversation will continue long into the foreseeable future. Each time Parliament decides to perpetuate legislation that carries with it restrictions and procedures that cut against our shared instinctive grain, we should do so with reluctance and an awareness of the need to time-limit. This is why I would support an annual review of the provision, and of the desirability of sustaining that “enduring political consensus”, or as close as we can get to it, of which the Home Secretary spoke in her speech in another place on 26 January this year—a consensus that must rest on the idea of that lustrous philosopher of the open society, Sir Karl Popper, when he declared in 1945:

“We must plan for freedom and not only for security, if for no other reason than that only freedom can make security secure”.