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Max Hill QC: Reflections on my time as Independent Reviewer

This was my final week in office as Independent Reviewer of Terrorism Legislation.

I became Independent Reviewer of Terrorism Legislation on 1st March 2017. Just in time to witness the horror that unfolded on Westminster Bridge exactly three weeks later. My first annual report into the operation of the Terrorism Acts in 2016 was delivered to the Home Office in November 2017 and published in January 2018, see here. My second report, here, addressed the police investigation which followed the Westminster Bridge attack; the operation name of the investigation was Classific, and it encompassed the arrest of 12 people, who were detained for between 1 and 6 days, but then released without charge in every case.

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Review into the cases of Mr Creagh and Ms Southern

In my last week as Independent Reviewer, I am trying to conclude any unfinished business. Some aspects of my work take weeks if not months to complete, but it can be difficult to find an opportunity to publish the outcome. With that in mind, those who follow me on Twitter may have noticed messages in March this year concerning the trial of Mr Daniel Creagh. I resolved to look into the circumstances of this case, which I have done with the assistance of his solicitor. At around the same time, I also resolved to enquire into the circumstances in which Ms Lauren Southern was detained whilst attempting to enter the UK, also in March this year. There was a suggestion that Ms Southern’s temporary detention may have been a misuse of police powers under Schedule 7 to the Terrorism Act 2000. I have completed my work in both cases. In Mr Creagh’s case, my short Note is attached here. In Ms Southern’s case, my Note is here.

COUNTER -TERRORISM AND BORDER SECURITY BILL 2018

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.
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Update – 12 September

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.

IRTL update

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 to appoint the next IRTL. This is becoming urgent.

Recent activity during April and May 2017

It will not have escaped the notice of any regular visitor to this website that I have been slow to add regular updates on my activities as Independent Reviewer. I shall aim to do better. Having been in post for ten weeks since 1st March, here is my defence:

  1. The speed of my appointment, from announcement to being in post within one week, meant that existing court commitments had to be honoured until Easter. When my appointment was announced, I was engaged in defending a man charged with two Murders in Ipswich; a long trial requiring my full attention for the duration. One way of making it clear, perhaps, that my working life as a self-employed QC carries on although my predominant activity going forward is that of the Independent Reviewer.
  2. Stepping into my predecessor’s shoes is not entirely an overnight event. I have been working my way through introductory meetings throughout April and continuing this month. As you might imagine when thinking of IT hacks in the Health Service, gaining official access to systems at the Home Office and beyond is a cautious and lengthy process, still not complete.
  3. Alongside my induction to those aspects of Government, Police and intelligence services involved in counter-terrorism, I have developed ways of engaging far more widely so that I may be better informed before I come to review UK terrorism legislation. I am calling this community engagement. This has nothing to do with the Home Office, the Police or any other arm of UK plc, but relies upon non-governmental organisations, groups and individuals prepared to meet with me to talk about the impact of legislation upon citizens and communities around the country.

So much for the excuses. Since Easter, therefore during the last 4 weeks, I have been able to devote almost all of my time to meetings and travel connected with my new role. Alongside the inevitable concentration of people and places to see in London, I have been to Belfast, Birmingham, Bradford, Leicester and Oxford as Independent Reviewer, and I travel to Glasgow this week and Swansea next month. I want to express my thanks to everyone who has been prepared to come and share with me their views on our legislation as well as some of the wider policy issues and programmes, including Prevent obviously. I intend to publish my account of these community engagement events in some form as soon as possible. The delay is largely due to the General Election and therefore the suspension of Parliamentary business including the Committees of both Houses. I say this because, but for the Election I was looking forward to giving evidence to a joint sitting by the Home Affairs Committee and Joint Human Rights Committee on 3rd May, at which I could  have relayed some of the views already being expressed to me on my travels around the country. There will be such opportunities, but we must await the new Parliament.

For now, I promise to provide a summary of recent past events and meetings as soon as possible.

 

The Independent Reviewer writes …

Max Hill QC
Max Hill QC

Welcome to the website of the UK Independent Reviewer of Terrorism Legislation. I am proud to take over from my distinguished and rightly celebrated predecessor, David Anderson QC. Where he led the way in engaging with all sides in national and international discussion about terrorism and national security, so I hope to follow and to build upon David’s excellent work.

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spare

There were eight new Treasury designations in the year to September 2014 under the Terrorist Asset-Freezing &c Act 2010 – more than the total for the previous three years.  There has been an attempt to use asset-freezing legislation to respond to the threat posed by UK residents  who travel to and from Syria and Iraq for the purposes of terrorism.   But bearing in mind that over 600 Britons have travelled out there, the small number of designations indicates that asset-freezing has played only a marginal role in combating the most serious terrorist threat of the present time.

12 long-term prisoners were delisted over the same period, demonstrating that the annual review system works well.

For designated persons at liberty in the United Kingdom (of whom there were three in September 2014), the effect of an asset freeze can be “oppressive and disheartening”.  Managing the licensing &c is also labour-intensive on both sides.  Further improvements to the operation of the system, some of them prompted by previous recommendations, are under way.   But it remains important that consideration continues to be given by all concerned to the greater use of TAFA 2010 as a way of disrupting persons who cannot be prosecuted but in respect of whom financial restrictions are needed in order to protect the public from terrorism.  A collaborative effort is called for between, in particular, police and intelligence agencies, the CPS, Treasury and OSCT.  More could also be done to ensure the highest possible quality of consideration at the meetings that consider new designations, so increasing the probability that decisions will be fully defensible in legal proceedings.

Two problems of a more general nature are:

  • so-called “de-banking” or “de-risking”,  when banking facilities are withdrawn from persons or organisations falling outside a bank’s risk appetite.  The consequences are negative not only for those who lose banking facilities, but for the authorities who lose any possibility of monitoring their financial transactions.
  • the impact of terrorist financing laws on organisations which seek to distribute aid in regions of the world under the effective control of terrorist organisations.

I set out some pointers towards a possible solution in my report (echoing, in part, the recommendations of Parliament’s Draft Protection of Charities Bill Committee which reported recently under the chairmanship of Lord Hope of Craighead), and urge the Government, financial institutions and NGOs to work towards a resolution of these difficult issues.

Government Response to July 2014 Terrorism Acts report (Cm 9032)

This is a thoughtful response with new information relating to the threat and the funding of counter-terrorism.

It is noted that one of my recommendations on the definition of terrorism (a reduction in the definition of “terrorism-related activity”) has been given effect in the Counter-Terrorism and Security Act 2015.  The other recommended changes are not ruled out, but judged “premature” since the UK definition of terrorism is “the material focus of ongoing litigation” in Beghal (currently before the Supreme Court) and Miranda (currently before the Court of Appeal).

Decisions on my recommendations regarding clarification of and change to Schedule 8 (detention) are also deferred pending the outcome of litigation, this time the long-running Sher and Duffy cases in Strasbourg.  Sympathy is however expressed for the recommendation – which I consider unanswerable – that the detention clock under s41 should be stopped as it is under PACE on admission of a suspect to hospital.

Developments are noted on a number of other fronts including Schedule 7 (where my recommendations are recalled in the context of technical changes to the Counter-Terrorism and Security Act 2015), the EU opt-out and the establishment of the Privacy and Civil Liberties Board, the details of which are still under consideration by Ministers.

The Home Secretary concludes her response with the words: “I look forward to receiving your future reports.”  We shall see!

Published today: “The Terrorism Acts in 2012”

Of the three annual reports that I am required to produce, the fullest and most wide-ranging is my summer report into the operation of the Terrorism Acts.

The 130-page 2013 report was laid before Parliament this morning, and should be accessible from the “Reports” section of this site.

Featured in the report, which covers the year 2012, are:

  • my fullest assessment yet of the terrorist threat to the UK, both from al-Qaida related terrorism, Northern Ireland related terrorism and extreme right wing terrorism,
  • a sketch of the counter-terrorism machine,
  • a look back to the Olympic and Paralympic Games, successfully protected as a result of meticulous preparation, without new laws being passed or special powers being invoked,
  • a review of the application of the terrorism offences, which were used to charge 43 persons in Great Britain during the year and which resulted in sentences of up to 21 years, mostly after guilty pleas,
  • an account of the early uses of my new power to review the conditions of detention of terrorist suspects,
  • reflections on the definition of terrorism, often criticised as over-broad,
  • a review of progress on the overhaul of rules and procedures for banning terrorist groups, and
  • material to inform the current parliamentary debate on the exercise of port powers.

A full synopsis of my findings and conclusions is in the Executive Summary at the start of the report.

The United Kingdom has a full armoury of anti-terrorism laws.  The majority of those laws unfortunately remain justified by the nature of the threat.  But I commend the Government for the cautious and selective liberalisation of the past three years, which has removed or diluted some of the more intrusive powers without materially increasing the risks to public safety. 

Some further changes could safely be made.  In particular:

  • The processes for proscribing and deproscribing terrorist groups, which have resulted in the continued banning of some groups that no longer meet the statutory test, should be improved.
  • More safeguards should be provided on the use of anti-terrorism powers at ports and airports – notably the downloading of phones and laptops, and the retention of information taken from them.

I look forward to keeping the operation of all these powers under review for the remainder of my mandate as Independent Reviewer.  Please contact me if you have relevant evidence or observations.