COUNTER -TERRORISM AND BORDER SECURITY BILL 2018
REPORT AMENDMENTS TABLED BY THE GOVERNMENT IN SEPTEMBER 2018
ADDITIONAL COMMENTS BY MAX HILL Q.C. INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, OCTOBER 2018
I gave evidence to the JCHR on 20th June 2018, here. I also gave evidence to the Bill Committee on 26th June 2018, here. Subsequently, together with my Senior Special Advisor Professor Clive Walker QC (Hon), written submissions were provided to the Bill Committee, here. I maintain my previous commentary on the Bill clauses, and restrict these additional comments to matters prompted by the Report Amendments subsequently tabled by the Government.
I have been waiting for the Government to respond to my formal written reports; it has been eight months since publication of my Annual Report for 2016, and over five months since publication of my Report into the Westminster Bridge attack investigation. I was informed yesterday afternoon that the Government intends to publish both responses tomorrow, Thursday 13th September, and I welcome this.
I have also been told today that I may not see either report, or be told anything about the content, until publication. It is of course a feature of the role of Independent Reviewer of Terrorism Legislation that s/he holds the highest security classification and is afforded unfettered access to the most sensitive information and intelligence. This is why whenever the Government intends to publish draft legislation – including the Counter Terrorism and Border Security Bill in June, and the amendments tabled last week – they call me in for confidential meetings to discuss the content. I have never breached confidentiality, and everyone knows that my own reports are provided to the Home Office months in advance of publication so that they may be scrutinised for factual accuracy and to ensure that sensitive information is not released. This makes their decision not to share the responses with me odd, but I shall have to read and react to the Government responses to my own reports after they are released to the public.
All of this leads me to reinforce my call for the Government to get on with the urgent task of appointing the next Independent Reviewer. After all that we have been through during 2017, there has never been a more important time for robust and entirely independent scrutiny of our legislation, and for a national conversation about where we go next in maintaining the twin imperatives of national security and fundamental rights. Whatever you may think of my work since March 2017, I have been proud to follow in the footsteps of my predecessors who have served in an unbroken line over four decades. It is vital that a new and independent lawyer is found to carry on my work. I am willing to play any part in encouraging the right candidates to come forward, and I am in no doubt that there are independent self-employed barristers who are eminently suited to this work. The sooner this process is started, the better. The passage of the Counter Terrorism and Border security Bill 2018 through Parliament requires the assistance of an experienced lawyer who is entirely free from the machinery of Government.
Following the announcement in July that I am to become the DPP later this year, I was in early discussion with the Home Office about the need to appoint the next IRTL. With the Counter Terrorism and Border Security Bill 2018 making its way through Parliament, I am concerned lest there is a gap between Reviewers, particularly at this time. My concerns about many of the provisions in the new Bill have been clearly documented. Last week, the Government tabled some amendments to the Bill. I welcome some of the changes, but have serious and principled concerns about others. I shall write on this subject as soon as possible. Meanwhile, I attach my formal resignation letter to the Home Secretary here, but am sorry to note that there remains little sign of any competition toÂ appoint the next IRTL. This is becoming urgent.
I have been appointed as the next Director of Public Prosecutions, to take up office later this year. This will mean I have to step down as Independent Reviewer of Terrorism Legislation.
It has been a privilege to continue the work of my illustrious predecessors, conducting scrutiny and oversight of our terrorism legislation. From my background and long history in prosecuting terrorism trials, I have been lucky to enjoy the support and assistance of so many who have engaged with me since March 2017. I give special thanks to my Special Advisors Professor Clive Walker QC (Hon), Hashi Mohamed and Alyson Kilpatrick.
As I approach the end of Â my work as Independent Reviewer later this year, Â I will finalise my Annual Report on the operation of the four statutes. The Report is being provided to the Home Office this month, July, to enable the necessary checks to be carried out over the summer.
Any requests relating to my DPP appointment should be directed to the Crown Prosecution Service Press Office.
COUNTER TERRORISM AND BORDER SECURITY BILL:Â SUBMISSION IN RELATION TO CLAUSE 3
BY MAX HILL QC AND PROFESSOR CLIVE WALKER
This paper follows evidence given to the Bill Scrutiny Committee on 26th June 2018 by Max Hill QC, Independent Reviewer of Terrorism Legislation. Together with Professor Clive Walker QC (Hon), Senior Special Adviser to the Independent Reviewer, Â the premise of this paper is to ask the question, if a new variant of section 58 is needed at all, what might that look like ?
 This paper should be read in conjunction with the analysis already given in Professor Walkerâ€™s written submission to the Joint Committee on Human Rights.
The CT Bill 2018 was introduced in Parliament by the Home Secretary on 6th June.
I offer a cautious welcome.
The Bill offers several Chapters, of which only Chapter 1 is entitled â€˜Terrorist Offencesâ€™. There are six sections, of which one extends extra-territorial jurisdiction to a number of existing offences, and the other five propose some amendments to existing offences.
In other words, the CT Bill does not contain a single new terrorist offence. This despite the announcement of a CT strategy review by the Prime Minister on 4th June 2017, and the commitment in the Queenâ€™s Speech later that month to create a new Bill.
Therefore, the Government has scoured the statute book as part of the CT strategy, inspecting all of the existing terrorist offences, and has not come up with a single new terrorist offence despite the atrocities in London and Manchester last year.
This is a good thing. Moreover, I am pleased to say that it makes good my declaration ever since appointment as IRTL in March last year, namely we have sufficient offences and do not need any more.
So what do the â€˜terrorist offencesâ€™ in Chapter 1 of the new Bill entail? When the Home Secretary re-launched CONTEST with his speech on 4th June, he indicated that the new Bill amounted to â€˜digital fixesâ€™ to existing law. If I may say so, that is good shorthand for what Chapter 1 of the Bill contains. The headline offence is â€˜obtaining or viewing material over the internetâ€™ (clause 2 of Chapter 1). Not a new offence, but a clarification of the existing offence under section 58 of the Terrorism Act 2000. We have known that it was the Governmentâ€™s intention to attempt this clarification since the former Home Secretaryâ€™s Party Conference speech last autumn, to which I have responded in previous writings and lectures including the Tom Sargant Memorial lecture for JUSTICE, available here. This new clarification of the section 58 offence is difficult, in my view. Well intentioned, but difficult.
I look forward to saying more about this and the other terrorist offence provisions within Chapter 1 when the Parliamentary Bill Committee sits down to scrutinise the new Bill, probably later this month.
I congratulate Sajid Javid on his appointment as Home Secretary and wish him luck as he embarks on his many important tasks. Giving credit where it is due, Amber Rudd should be remembered for her calmness and strength in the face of the terror attacks in London and Manchester during 2017 – supported by the Security Minister Ben Wallace –Â and for resisting the immediate urge to create new terrorism offences. In her resignation letter, she rightly referred to her own championing of the Global Internet Forum for Counter Terrorism, one of the initiatives that will help in ridding the internet of terrorist propaganda, without curtailing the ability of citizens here and worldwide to exercise free speech.
UNIVERSITY OF HERTFORSHIRE
SIR CHRISTOPHER STAUGHTON MEMORIAL LECTURE
14TH MARCH 2018.
MAX HILL Q.C.
INDEPENDENT REVIEWER OF TERRORISM LEGISLATION
REFLECTIONS ON MY FIRST YEAR AS INDEPENDENT REVIEWER
On Wednesday 22 March 2017, 52-year old British-born Khalid Masood drove a hired vehicle across Westminster Bridge in the direction of the Palace of Westminster. He mounted the pavement twice colliding with pedestrians and then a third time crashing into the east perimeter gates of the Palace of Westminster. Masood then exited the car and ran into the vehicle entrance gateway of the Palace of Westminster, Carriage Gates, where he attacked and fatally injured PC Keith Palmer using a knife. Masood was shot at the scene by armed police protection officers who were in Parliament at the time of the attack. The whole incident lasted approximately 82 seconds. The attack resulted in 29 people injured and 6 fatalities.
My Report into Operation Classific, the police investigation into the terrorist attack on Westminster Bridge on 22nd March 2017, has been presented to Parliament by the Home Secretary today,Â 28 March 2018. It can be accessed here.
As everyone knows,Â it is my responsibility to monitor the use of the terrorism legislation (the Terrorism Acts 2000 and 2006, together with the Terrorist Asset Freezing Act 2010 and the Terrorism Prevention and Investigation Measures Act 2010) and to report annually to Parliament. I additionally focus on individual major investigations from time to time. My Report on Operation Classific is the first example by me of an investigation report.
It is important to remember that my report is limited to the use of the terrorism legislation by the police in the course of their criminal investigation. Therefore, I have not inquired into the circumstances of the tragic deaths or injuries caused by the terrorist Masood. Indeed, that is the responsibility of the Chief Coroner HHJ Lucraft QC, with whom I have liaised in order to ensure that my report does not trespass into the inquests which are yet to be completed. Finally it has been necessary to redact from my report the identities of the twelve individuals who were arrested by the police, because none of them were charged with any criminal offence.
My overall conclusion (found at page 41) is that there was a reasoned and proportionate use of the relevant terrorism legislation in this case. I have made some practical recommendations, found at page 42; they are that:
- Greater thought and clarity be given to the question whether and when it is necessary to transport a detainee sometimes hundreds of miles from their place of arrest.
- The introduction of a bail provision for TACT arrests be reconsidered.
- Learning outcomes should be identified to ensure that every detainee is given their rights at the earliest moment after arrival at the relevant police custody suite.
- Questioning detainees about religion or any other matter occurs with careful thought and planning. Reviewing high-profile investigations can only add to the learning and training for the future. Therefore, in the interest of clarity, Â the police should take this opportunity to review training on the circumstances and extent to which detailed questions on religion and other matters will be necessary in future interviews.
My first Annual Report on the operation of the Terrorism Acts 2000 and 2006 has been presented to Parliament today. It can be accessed here.
This Report deals with the operation of the legislation during the year 2016. It is a feature of the timing of my appointment that my first Report deals with the period before I became Independent Reviewer of Terrorism Legislation on 1st March 2017. There was much to consider and review, though I recognise that many readers and commentators will be awaiting my review of the use of our legislation during 2017, in the aftermath of the atrocities commencing with the Westminster Bridge attack on 22nd March last year. With that in mind, I can confirm that I am in the final stages of completing a separate Report into Operation Classific, which was the Police investigation into the Westminster Bridge attack. I hope to present that Report to the Home Office next month.
Meanwhile, the first Annual Report follows a format made familiar by my predecessor, and it addresses the following:
Proscribed organisations and executive orders
Stop and search
Port and border controls
Arrest and detention
As a further echo of my predecessorâ€™s reports, I have asked my Senior Special Advisor, Professor Emeritus Clive Walker QC (Hon) to provide a Guest Chapter, this year entitled:
Executive legal measures and terrorism: proscription and financial sanctions
In this way, I hope that my Report and the Annexes (which include the Guest Chapter) provide useful information on the operation of all four of the statutes which I review, namely the two Terrorism Acts together with the Terrorism Prevention and Investigation Measures Act 2011 (which I address in the â€˜executive ordersâ€™ chapter) and the Terrorist Asset Freezing Act 2010 (which is addressed by Professor Walker).
The Annual Report also includes an Executive Summary at the outset and Conclusions and Recommendations at the end.