The Independent Reviewer‚Äôs role is to inform the public and political debate on anti-terrorism law in the United Kingdom, in particular through regular reports which are prepared for the Home Secretary or Treasury and then laid before Parliament.
The uniqueness of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information.
In performing the role I read extensively and speak to the widest possible range of people with experience of how anti-terrorism law operates in Great Britain, Northern Ireland and elsewhere.
A speech (February 2014) on the role of the Independent Reviewer¬†was published first¬†as a working paper¬†and then adapted into¬†articles for the¬†July 2014 edition of¬†the journal Public Law and the December 2014 edition of the New Journal of European Criminal Law.¬†It describes the nature of the Independent Reviewer’s influence, both directly on Government and in conjunction with other channels including, notably,¬†Parliament and the courts.
- Statutory functions
- Non-statutory functions
- Working arrangements
- Special adviser
- What the reviewer does not do
1.The current reviewer
I am a Queen‚Äôs Counsel (senior barrister) practising from chambers in London, a Visiting Professor at King‚Äôs College London and a Bencher of the Middle Temple.¬† In addition to appearing at all levels of the English court system, I¬†am an experienced advocate¬†in the EU courts and European Court of Human Rights.¬† From 2004 to 2013 I served as a Recorder (part-time criminal judge) in the Crown Court.¬† In 2015 I was appointed as a part-time judge of the Courts of Appeal of Guernsey and Jersey.
I grew up in Scotland and England and have worked for short periods in¬†five other countries, including as a lawyer in¬†Washington DC and¬†in the private office of an EU¬†Commissioner in¬†Brussels.¬† While at the Bar I have conducted human rights monitoring for the Council of Europe (Russia, Ukraine, Georgia, Turkey), written and lectured¬†extensively¬†on legal topics and served as Trustee or on the¬†Board¬†of a number of charitable, educational and professional organisations including the British Association for Central and Eastern Europe, the School for Slavonic and East European Studies, the King’s College¬†Centre of European Law, the Slynn Foundation, the Constitutional and Administrative Law Bar Association¬†and the British Institute for International and Comparative Law.¬† I am General Editor of the Oxford EU Law Series and a member of the Editorial Board of the European Human Rights Law Review.
Further details may be found¬†on the website of¬†Brick Court Chambers, where I continue to practise law in fields unrelated to terrorism.
2. Statutory functions
Annual review of the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 is required by section 36 of the 2006 Act. My reviews cover the calendar year and¬†have been¬†published in July 2011, June 2012, July 2013 and¬†July¬†2014.¬† My reports to date are here.
The Terrorism¬†Acts¬†review covers:
- definition of terrorism
- proscribed organisations
- terrorist property
- terrorist investigations
- arrest and detention
- stop and search
- port and border controls
- terrorist offences
Since August 2012, it has included a specific power to monitor the conditions of detention of persons detained for more than 48 hours under section 1 of the Terrorism Act 2000.
Annual review of the operation of the Terrorism Prevention and Investigation Measures Act 2011 was required by section 20 of that Act. The Act replaced the system of control orders in the Prevention of Terrorism Act 2005. It allows a series of constraints, reviewable in the courts, to be placed in the interests of public protection on persons whom the Home Secretary believes to have been involved in terrorism-related activity.
Reviews covered the calendar year and¬†were ¬†published in March of 2012, 2013, 2014 and 2015.¬†¬†They can be found¬†here.¬† The Counter-Terrorism and Security Act 2015 gave me more¬†flexibility over the timing and content of reports.
Annual review of the Terrorist Asset-Freezing etc. Act 2010 (Part 1) was required by section 31 of that Act. The Act, which implements UN Security Council Resolution 1373, gives the Treasury power to freeze the assets of individuals and groups believed to have been involved in terrorism, and to deprive them of access to financial resources.
Reviews cover the year to 17 September and¬†were published in December 2011, 2012 and 2013 and March 2015.¬† My reports on terrorist asset-freezing are here.¬† ¬†The Counter-Terrorism and Security Act 2015 gave me more¬†flexibility over the timing and content of reports.
ATCSA 2001, CTA 2008, CTSA 2015
By section section 44¬†of the Counter-Terrorism and Security Act 2015, my functions were enlarged so as to allow me to report on the operation of three other statutes, in whole or in part: the Anti-Terrorism Crime and Security Act 2001, the Counter-Terrorism Act 2008 and the Counter-Terrorism and Security Act 2008.¬† To assist with my enlarged task, a Privacy and Civil Liberties Board was created by the same Act, which I am to chair and which is to work under my direction and control.
Other statutory functions
Other statutory functions that may in the future have to be performed by the Independent Reviewer are:
- reporting or commissioning a report on any detention prior to charge in excess of 14 days (should the law be changed so as to permit such detentions): section 36 of the Terrorism Act 2006
- advising whether the system of TPIMs should continue beyond 2016: Terrorism Prevention and Investigation Measures Act 2011, section 21
- advising whether the system of Enhanced TPIMs should continue more than two years after its introduction: Draft Enhanced Terrorism Prevention and Investigation Measures Bill, clause 9
3. Non-statutory functions
The Independent Reviewer may at the request of Ministers or on his own initiative conduct reviews and produce reports on specific issues. ‚ÄúSnapshot‚ÄĚ reports, presented to Ministers and laid before Parliament, have included:
I was appointed under section 7 of the Data Retention and Investigatory Powers Act¬†2014 to conduct a review of investigatory powers by May 2015.
I¬†have also been¬†asked¬†to produce a one-off review of the Government‚Äôs Deportation with Assurances Policy,¬†on which I¬†issued a call for evidence.¬† I envisage reporting later in 2015.
Evidence to Parliament
The Independent Reviewer is frequently called upon to give written and/or oral evidence to Parliamentary Committees. Since 2011 these have included:
- Home Affairs Select Committee (prevention of violent radicalisation, Pursue, TPIMs, Schedule 7)
- European Affairs Committee (EU criminal justice opt-out)
- Joint Committee on Human Rights (justice and security, TPIMs)
- Joint Bill Committee (detention of terrorist suspects)
- Joint Bill Committee (enhanced TPIMs)
- Joint Bill Committee (protection of charities)
The evidence I have given to¬†Parliamentary Committees¬†is collected¬†here.
Articles and speeches
When time permits, the Independent Reviewer seeks to inform the debate on anti-terrorism law and civil liberties by talking to the media, participating in the training of police and independent custody visitors, speaking at security and academic conferences and (in his own time) writing articles and speaking at universities and schools.
A selection¬†of¬†my papers, lectures and handouts can be accessed from here.
4. Working arrangements
My initial appointment as Independent Reviewer was for a three-year term, ending¬†on 21¬†February 2014.¬† That appointment was renewed¬†until 21 February 2017. The post is part-time and not pensionable. The Reviewer is paid for his time at a standard daily rate by the Home Office or, in relation to his asset-freezing work, the Treasury.¬† In 2013, the post was classified as a Public Appointment, for which applicants will be invited¬†as my tenure of the post¬†approaches its¬†end.
A room and administrative assistance is provided for the Independent Reviewer within the Office of Security and Counter-Terrorism, part of the Home Office. The room is used on an occasional basis for meetings and for the review and storage of secret material. However as a member of the independent Bar, I remain based in my own Chambers in central London.
I have no staff or assistants.¬† However provision has been made in the Counter-Terrorism and Security Act 2015 for the formation of a Privacy and Civil Liberties Board to advise and assist the Independent Reviewer under his¬†chairmanship, direction and control.¬† The Regulations setting up the Board¬†will not be issued before¬†the May 2015 General Election.
I travel widely within the United Kingdom, including regularly to Northern Ireland, to observe the operation of the anti-terrorism laws and to meet those enforcing them or affected by them. I have travelled to the US,¬† Denmark,¬† the Netherlands, Brussels, Strasbourg, Israel, and the¬†Occupied Palestinian Territories¬†to deepen my comparative knowledge of anti-terrorism law and practice.¬† Further trips¬†were made ¬†to Jordan and Algeria in connection with my report on deportation with assurances, and to the US, Canada and Germany in connection with my review of investigatory powers.
5. Special adviser
Since 2011 Clive Walker,¬†former Professor of Criminal Justice Studies at the School of Law, University of Leeds, has served as Special Adviser to the Independent Reviewer. In that capacity, he produces regular bulletins of reading matter relevant to the Independent Reviewer‚Äôs functions, and may also assist on specific projects. Professor Walker is one of the foremost experts on anti-terrorism law. His current books include The Anti-Terrorism Legislation (Oxford University Press, 2009) and Terrorism and the Law (Oxford University Press, 2011).
6. What the reviewer does not do
Though I am always grateful for contact with members of the public who have something to say that is relevant to my tasks, I cannot investigate or provide redress in respect of particular incidents.
Time does not permit me to assist students with their dissertations, though I hope they may find material of value on this site.
The Independent Reviewer is not subject to the Freedom of Information Act.¬† Please do not direct FoI requests to me, therefore.
The Independent Reviewer‚Äôs responsibilities in relation to terrorism extend to Northern Ireland: but public order matters under the Justice and Security (Northern Ireland) Act 2007 are the responsibility of a separate Northern Ireland Reviewer.¬†¬†Robert¬†Whalley CB performed that¬†role until January 2014, and¬†was succeeded from 1 February by David Seymour CB.
The functions of the Independent Reviewer are distinct from (though occasionally confused with) those of the Interception of Communications Commissioner (Rt. Hon. Sir Anthony May) and the Intelligence Services Commissioner (Rt. Hon. Sir Mark Waller), retired judges of the Court of Appeal who are appointed under sections 57 and 59 respectively of the Regulation of Investigative Powers Act 2000. Further details of their roles, together with open versions of their reports,¬†may be found on the Intelligence Commissioner website.