To review or monitor terror laws?

Look carefully at the statute book, and you will find very little about the role of the UK’s Independent Reviewer of Terrorism Legislation. It was in 2005, shortly after the 7/7 London bombings, that the first statutory appointment was made. The Reviewer’s duty – to report to Parliament on control orders against terrorist suspects who could not be prosecuted or deported – was soon expanded by statute to cover almost all counter-terrorism legislation.

In fact, the role dates back decades. Lord Shackleton was appointed in 1978 to review emergency terror laws in Northern Ireland, and was succeeded by a line of non-statutory reviewers, most notably Lord Lloyd whose report underpinned the Terrorism Act 2000, the UK’s first permanent terrorism legislation.

I am the fourth reviewer of the statutory era, following Lord Carlile KC, Lord Anderson KC and Max Hill KC (now the Director of Public Prosecutions). Like them, I have roamed widely across the counter-terrorism landscape and published independent reports on the law and practice of managing released terrorist offenders (following the Fishmongers’ Hall attack), terrorism in prisons, counter-terrorism sanctions and online terrorism.

By a single section in the Terrorism Act 2006 the Secretary of State is required to appoint a person to carry out annual reviews of the operation of the Terrorism Acts and other terror laws, and must lay the resulting reports before Parliament, and that is it. No powers, no staff or premises, operating from chambers, a gadfly on the hide of the beast, and beholden to no one.

Australia took a different path. Its first counter-terrorism laws were enacted in 2002, in the wake of 9/11. While the Federal government had appointed ad hoc reviewers in the past, at the end of the decade it dedicated a whole statute, the Independent National Security Legislation Monitor Act 2010, to its version of the Reviewer.

This compendious statute sets out the Monitor’s appointment process, mandate, terms of reference, reporting requirements and powers in a manner that holds attractions to the modern UK lawyer: exhaustive, express, and containing back up powers of compulsion as safeguards, in case the national security authorities were ever to prove truculent in handing over information.

My respect for the role of Monitor and its occupants (like the UK, all practising barristers) leads me to dodge any direct comparison between the British and Australian terror watchdogs. The Monitor has produced brilliant reports on national security telecommunications powers, sentencing or child terrorists, and citizenship deprivation.

However, during a head-to-head public debate at the Inner Temple in 2022 the former Monitor, James Renwick SC, emphasised several points to me which, he contended, favoured the Australian model. Most notably, he referred to his statutory powers and the duty of the Australian government to publish the Monitor’s reports within 14 days of delivery.

It is indeed true that the UK Reviewer has no statutory powers, and government publication of annual reports often takes several months. But I am convinced that the UK review model is preferable, at least in this jurisdiction, where through custom and practice, and owing in great part to the stature and effectiveness of my predecessors, the role is embedded.

Better for the government to know that Parliament, the media and alert members of the public would react strongly if the established practice of providing sensitive information to the Reviewer was inhibited in any way. On the other hand, express powers require delineation and can tempt governments to propose legislation imposing careful remits or terms of reference. I also suspect that statutory powers risk ossifying the exchange of information because officials could in principle decline to provide information in the absence of a formal requirement.

Lest this sounds like Burkean fantasy, consider the position of the Intelligence and Security Committee. Despite its statutory powers under the Justice and Security Act 2013, their latest annual report complains of poor cooperation from the Intelligence Agencies.

It is interesting, and I think not unrelated to the minimal statutory underpinnings in the UK compared to Australia, that the Reviewer’s role has evolved considerably. By the time of my appointment in 2019, the Reviewer had a website, well-established Twitter profile (@terrorwatchdog) and media presence. This is different from Australia. I was initially surprised by the amount of media engagement, but see it as an important aspect of the job, and journalists in this subject area tend to be excellent.

During my tenure I have started the practice of publishing Notes on terrorism-related Bills before Parliament, most recently on the National Security Bill. Admittedly this is not reviewing legislation in the strict sense (and for that reason falls outside the Monitor’s statutory remit) but is consistent with the Reviewer’s role of seeking to inform debate. Owing to reasons of operational sensitivity, counter-terrorism is not familiar to Parliamentarians, with some notable exceptions; but they are frequently called on to debate new powers or restrictions on terrorist convicts or suspects, sometimes (especially after a terrorist attack) at pace.

Here the Reviewer’s statutory duty to review the operation of terrorism legislation is key. Some powers, such as the ports examination power under Schedule 7 of the Terrorism Act 2000, are virtually impossible to understand let alone to review without immersion, by trudging ports, sitting with counter-terrorism police, observing computer screens and asking questions. The nimbleness of the Reviewer comes into its own. More generally, acting personally rather than delegating tasks to others means that the Reviewer can get alongside and establish trusted and unique relationships with officials, members of the public, the media, NGOs and so on.

The statutory obligation in Australia to publish the Monitor’s report within a matter of days is harder to answer from a UK perspective. All Reviewers have felt some frustration that, even allowing for the process of security-checking, it takes three to four months from delivery of the annual report to the Home Secretary to laying the report before Parliament and publication on the government website. My latest report was delivered to the Home Secretary at the start of November 2022, and was laid before Parliament in early March 2023.

The only consolation is small-p political: there may be some advantage in the government and counter-terrorism police having a little more time to habituate themselves to the Reviewer’s recommendations before publication. This could in principle make the authorities more receptive to proposals for change by the time of publication, than if they had to react to proposals at speed on first publication.

The relationship between the Reviewer and Monitor is a strong one, improved by the fact that all occupants have remained practising barristers throughout their terms. For the barrister appointee, the tonic of courtroom debate engenders humility and scepticism; while the status of barrister in independent practice acts as a reminder that, however privy to government secrets and personnel, the Reviewer and the Monitor are both, and must remain, independent outsiders.