The Independent Reviewer‚Äôs role is to inform the public and political debate on anti-terrorism law in the United Kingdom.¬† I do¬†this¬†in the regular reports¬†that are prepared for the Home Secretary or Treasury and then laid before Parliament, in evidence to parliamentary committees,¬†in articles and speeches, in media interviews and debates,¬†in posts on this website and via twitter (@terrorwatchdog).
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 and personnel.
In performing the role I read extensively and speak to the widest possible range of people with experience of how anti-terrorism law operates, ranging from Ministers, security and intelligence chiefs and police to those who are stopped, arrested and detained.¬† I travel around the country, including in particular to Northern Ireland, and take evidence abroad where this can assist my reviews.
A speech (February 2014) on the role of the Independent Reviewer¬†was¬†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 Independent 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 my functions as Independent Reviewer.
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¬†are dated¬†July 2011, June 2012, July 2013, July¬†2014 and September 2015.¬† 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.¬† In recognition of this duty, it was announced on 12 January 2017 that the Independent Reviewer had been added to the National Preventive Mechanism which¬†states party to the Optional Protocol to the¬†Convention¬†Against Torture (OPCAT) are obliged to establish¬†for the purpose of carrying out visits to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
Since the entry into force of the¬†Counter-Terrorism and Security Act 2015, I have been relieved of the obligation to review the Terrorism Act 2006 on an annual basis.¬† I have no plans however to alter the existing arrangement, under which the two Terrorism Acts are reviewed¬†together every year.
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, and would allow me for example to review executive orders on a broader, thematic basis.
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 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 2015.¬† To assist with my enlarged task, a Privacy and Civil Liberties Board was created by the same Act, which I¬†was to¬†chair and which¬†would have worked under my direction and control.¬†¬†But the¬†Regualtions that would be necessary to establish that body have not been made, and the current Government has¬†no plans to do so.
Immigration Act 2014
I have been asked to produce the¬†report required by statute into the operation (in the year to July 2015) of the exercise of the Home Secretary‚Äôs¬†power¬†under the¬†Immigration Act 2014 section 66 to deprive naturalised British citizens who are not dual nationals of their citizenship.¬† That report was submitted to Government in March 2016.
Other statutory functions
Other statutory functions that may in the future have to be performed by the Independent Reviewer are:
- 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 (should it be introduced): Draft Enhanced Terrorism Prevention and Investigation Measures Bill, clause 9
- 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
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:
- the Definition of Terrorism (Lord Carlile: June 2007)
- Operation Pathway (Lord Carlile: October 2009)
- Operation GIRD (David Anderson: May 2011)
My own thoughts on the definition of terrorism were¬†expressed in my Terrorism Acts reports of July 2013 and July 2014.
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: my report A Question of Trust was published in June 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¬†and held an invitation-only seminar.¬† The work was interrupted by the unscheduled intervention of A Question of Trust, but I¬†expect to¬†report in the first half of 2016.
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, Prevent)
- European Affairs Committee (EU criminal justice opt-out)
- Joint Committee on Human Rights (justice and security, TPIMs, my functions generally, countering extremism)
- Joint Bill Committee (detention of terrorist suspects)
- Joint Bill Committee (enhanced TPIMs)
- Joint Bill Committee (protection of charities)
- Joint Bill Committee (draft Investigatory Powers Bill)
- Public Bill Committee (Investigatory Powers Bill)
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, handouts¬†and interviews is¬†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.¬† Applicants for the post will be invited¬†in 2016, prior to the expiry of my second term as Independent Reviewer in early 2017.
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 currently have no staff or assistants, though I receive considerable administrative support from my clerk in Chambers and (where meetings and trips arranged with Government are concerned) from the Home Office.¬†¬†The functions of my¬†Special Advisers¬†are referred to below.
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 observe and discuss issues relevant to my reviews.¬† 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.¬† In 2015 I¬†was invited in my capacity as Independent Reviewer to speak to officials and others in China and in New Zealand.¬† In 2016 I addressed judges in Canada and¬†taught¬†counter-terrorism officials from 56 countries in Germany.
5. Special Advisers
Since 2011 Clive Walker,¬†Emeritus 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¬†Terrorism and the Law (Oxford University Press, 2011), Blackstone’s Guide to the Anti-Terrorism Legislation (Blackstone, 2014) and Routledge Handbook of Law and Terrorism (Routledge, 2015), to which I contributed a short Preface.
In 2016 I was given the opportunity to¬†select two further part-time special advisers: Alyson Kilpatrick (Barrister in Northern Ireland¬†and Human Rights Adviser to the Northern Ireland Policing Board) and Hashi Mohamed (Barrister in London and occasional broadcaster).¬† The announcement, and some further details about them, is here.
6. What the Independent 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, to review their proposals¬†or to press their case for access to confidential material or access, though I hope they may find material of value on this site.
The Independent Reviewer is not subject to the Freedom of Information Act, and does not¬†engage in public tendering for goods or services.
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 2014 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 Stanley Burnton) 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.¬†¬† My own 2015 proposals for reform of surveillance and intelligence supervision are in A Question of Trust.