23 July 2014

Security Creep in the UK?

The UK Independent Reviewer of Terrorism Legislation - a counterpart of Australia's INSLM - has released his annual report [PDF] on the operation of the Terrorism Act 2000 and Terrorism Act 2006.

The 134 page report provides a point of reference in considering Australia's national security Bill noted here. It highlights concerns regarding regulatory creep and the potential to inappropriately cover legitimate media or other activity.

The report states that
Public-facing independent review is of particular benefit where potential conflicts between state powers and civil liberties are acute, but information is tightly rationed. The function of the Independent Reviewer, as it was explained when reviews were first placed on an annual basis, is to “look at the use made of the statutory powers relating to terrorism”, and “consider whether, for example, any change in the pattern of their use needed to be drawn to the attention of Parliament”. For more than 35 years, successive Independent Reviewers have used their reports to ask whether special powers continue to be necessary for fighting terrorism, and to make recommendations for reform.
The essence of independent review lies in the combination of three concepts not often seen together: complete independence from Government; unrestricted access to classified documents and national security personnel; and a statutory obligation on Government promptly to lay the Independent Reviewer’s reports before Parliament. Successive Independent Reviewers have aimed neither to torment the Government nor to defend it. The purpose of our reports has been, rather, to inform – so far as is possible within the necessary constraints of secrecy – the public and parliamentary debate over anti-terrorism powers in the UK.
My three previous annual reports into the Terrorism Acts, shorn of their annexes, occupied more than 370 pages of text. I sought in each of them to explain the operation of the Acts from first principles and on the basis of first-hand observation. I attempted also to avoid repetition – an increasingly difficult task.
Those reports continue to serve as what I hope is a useful introduction to the scheme and current operation of the Terrorism Acts. They describe the changes – many of them in a liberalising direction – that characterised the first three years of the Parliament, and make 33 further recommendations. Because the need or otherwise for terrorism laws can only be judged against some knowledge of the threat, last year’s report also contains a thorough account of the terrorist threat to the UK and its nationals, closely informed by classified materials and with particular reference to the period 2010-2013.
As the 2010-2015 Parliament draws to a close and my second three-year mandate begins, I have opted this year for a different approach. Students seeking a comprehensive account of the Terrorism Acts and how they function are referred to my previous reports. My aim has been to bring the reader up to date with the year’s developments, to highlight two particular issues (the definition of terrorism and the role of the Independent Reviewer), and to refresh and recall some past recommendations. By taking this course I hope to discharge my statutory responsibility to review the Acts as a whole, while keeping the report to a manageable size.
Statistics on the operation of the Terrorism Acts are to be found in three principal publications:
a) The Home Office’s annual and quarterly releases, which report on the operation of police powers under TA 2000 and TA 2006 in Great Britain.
b) The bulletin produced for the same purpose by the Northern Ireland Office [NIO]; and
c) The Police Recorded Security Situation Statistics, published by the Police Service of Northern Ireland [PSNI] on an annual basis, with monthly updates.
As noted above, this year has seen a significant improvement in relation to Home Office statistics. The most comprehensive annual figures have previously been published only on a year-to-March basis, which did not mesh well with my statutory obligation to report on a calendar year basis. For the first time in 2014, the figures published in June now give the same degree of detail for the previous calendar year. In this report, a wider range of statistics has thus been given on a calendar year basis.
Work is in progress which should eventually lead to the publication of data regarding warrants for further detention and refusals of access to solicitors in Great Britain, as I have recommended.
On a less happy note, ACPO (citing significant implications in terms of training and information technology) has not yet endorsed the collection of ethnicity data based on the 2011 Census categories.
Independent Reviewer Working methods
Like my predecessors, I believe that effective review requires the perusal of secret and unrestricted material from the civil service, intelligence agencies and the police; interviews with key personnel; and time spent observing, among other things, police procedures and operational meetings concerning executive measures such as proscription. For confidential reading and interviews, I am provided with a room in the Home Office which I use for about a day a week. My diary is kept by my clerks in Chambers, which remains my principal base and from which I continue to practise at the Bar.
I do not hold formal evidence sessions, but benefit from large numbers of informal meetings and conversations. My interlocutors range from senior judges, intelligence chiefs, civil servants, watchdogs, prosecutors and police officers of all ranks to people who have been stopped at ports, arrested on suspicion of terrorism, imprisoned, placed in immigration detention or subjected to asset freezes, control orders and similar measures. I communicate with NGOs, academics, human rights organisations and lawyers, both in person and via material that they share on twitter. I listen to mosque and community groups, forensic medical examiners and Prevent co-ordinators; and address security conferences and (in my own time) universities and schools. I attend, and contribute to, the training of police and independent custody visitors. When requested, I brief journalists by referring them to my own reports or other opensource materials, and give occasional interviews to mainstream and minority media outlets in the interests of informing the public debate. ...
 The reviewer comments that
The Independent Reviewer of Terrorism Legislation has the potential to influence the evolution of anti-terrorism law and practice, both directly by making recommendations to the authorities and more indirectly through Parliament and the courts. I have recently attempted to explain some of the ways in which this may happen in practice.
Nonetheless I believe that the time has come to look broadly at the functions of the Independent Reviewer, to see whether they could be directed in a more effective manner than the current statutory regime allows. I have shared my thoughts with the Government, which very recently made a proposal of its own.
He goes on to summarize recent developments as follows -
In 2013 (and to date) the official assessment of the threat to the UK: o from international terrorism was substantial o from Northern Ireland-related terrorism was severe in Northern Ireland and moderate in Great Britain o from far-right and domestic extremist groups was low (Chapter 2).
Two cases argued in 2013 (Gul and Miranda) highlighted the extraordinarily broad definition of terrorism under UK law, and the heavy reliance that is placed on the wise exercise of discretions by Ministers, prosecutors and police (Chapter 4).
Two new organisations were proscribed in 2013, and two namechange orders made. Procedures for deproscription remain unsatisfactory (Chapter 5).
The first authorisation was made (in Northern Ireland, and in unusual circumstances) for use of the TA 2000 section 47A suspicionless stop and search power. Fewer people were stopped under the TA 2000 section 43 reasonable suspicion power, at least in London and in Northern Ireland (Chapter 6).
The decline in the use of TA 2000 Schedule 7 port powers continued, and the conditions for its use were tightened by statute. Further aspects of the power need attention, and may receive it in cases pending before a number of senior courts (Chapter 7).
Arrests and detentions under TA 2000 were roughly in line with practice in recent years. The charging rate fell in Northern Ireland. The European Court of Human Rights is to revisit issues including the non-availability of police bail, the covert surveillance of detained persons and the procedure for extending detention (Chapter 8).
England and Wales in particular saw a high conviction rate, with a number of guilty pleas to significant plots. Apparent differences in sentencing policy, and difficulties said to be caused by UK antiterrorism law for the delivery of humanitarian and peacebuilding efforts by international NGOs, are topics worthy of further consideration.
In discussing the role of the reviewer the report states
In a healthy parliamentary democracy it is Parliament and the courts which should be primarily responsible for reviewing the operation of the law.
More is however required in the national security field, where potential conflicts between state power and civil liberties are acute, and yet information is tightly rationed. The courts are confined to issues of lawfulness and to the cases that are brought to them, while few parliamentarians will be privy to the national security information that could enable them to make a fully-informed judgement on matters of policy.
In those circumstances, there is a place for respected independent persons who see the classified information to which Ministers, police and others are privy, and report openly on the operation of the law. That place is occupied in the field of intelligence supervision by the Intelligence Commissioners, and in the field of counter-terrorism law by the Independent Reviewer of Terrorism Legislation. Successive Independent Reviewers have for over 35 years influenced policy and the operation of the laws within their remit, both directly (by formal or informal recommendations) or via parliamentary and court processes. They have also been a source of reassurance to a wary public.
Topics for debate
It is generally acknowledged that the office of Independent Reviewer is a useful one. But it does not follow that the current system, as it has rather haphazardly developed over the years, is optimal. The following topics require consideration:
a) Status of the Independent Reviewer
b) Scope and frequency of independent review
c) Powers and functions of the Independent Reviewer. My thoughts on each of those topics are set out below.
Status of the Independent Reviewer
It has been suggested at various times since 1984 that the Independent Reviewer should be either a committee of persons with different expertise or at least an individual working full-time. As his workload rose after the 7/7 attacks, Lord Carlile was offered (and declined) the opportunity to do the job on a full-time basis.
My own preference is that the Independent Reviewer should continue to be an individual operating on a part-time basis, albeit with additional support. I would make the following points:
a) All four holders of the post since 1986 have been QCs, and whilst that could not be described as an essential requirement, it is an indicator of the core qualities that have (I would say rightly) been sought in the past. Selfemployed lawyers of the best quality may be attracted by a part-time post; but they are most unlikely to leave their profession for a full-time appointment of several years’ duration. Some might be tempted by a place on a committee or quango; but without sole responsibility for its output, there is a strong risk that they will focus their efforts elsewhere and leave much of the work to be done by the secretariat or by others.
b) A single occupant of the post has the chance to build personal relations with parliamentarians, media and others; and is accountable for every word written or spoken. This drives up the quality of the work, and lends immediacy and recognition to a post which could be faceless if performed by a committee.
c) The particular value of the Reviewer’s post comes from the remarkable degree of access that trusted individuals have since 1978 been given to secret Government papers and discussions. If the work were to be done by a committee, the same access would have to be given to each of its members, backed by watertight statutory guarantees and full institutional cooperation of agencies. Should either of these not be forthcoming, the effectiveness of review could be severely diminished.
d) Continued participation in professional life is the surest guarantee of independence. A Reviewer whose livelihood depended on re-appointment (or on appointment to another post within the gift of Ministers) would be difficult to describe as fully independent.
I therefore recommend no change to the status of the Independent Reviewer. If further capacity is required, it should be provided by the services of a security cleared assistant or junior, rather than by making the post full-time or replacing it by a committee.
I must record however that on 15 July 2014, after this Report had been submitted and very shortly before it went to press, the Government proposed that the Independent Reviewer be replaced by a committee, to be known as the Independent Privacy and Civil Liberties Board [IPCLB]. My rather equivocal thoughts on that proposal were published the following day on my website. In short, such a Board if properly constituted could bring advantages: but the wrong decisions could substantially diminish the value that is offered by the current arrangements, particularly if there were any reluctance to share classified information with a larger and more varied group. If the proposal is progressed, I would suggest that it requires the most careful scrutiny.
I recommend that the Government’s proposal to replace the Independent Reviewer of Terrorism Legislation by an Independent Privacy and Civil Liberties Board be subject to the widest possible consultation, including with the parliamentary Committees which are among the principal users of the Independent Reviewer’s reports.
Scope and frequency of independent review - Current functions
The three principal statutory functions of the Independent Reviewer are to review the operation on an annual basis of TPIMA 2011, the Terrorism Acts and TAFA 2010. Those three annual reports are substantial documents, time-consuming to produce and normally published in March, July and December. The assetfreezing function was new in 2011;  and the power to visit TA 2000 detainees nationwide with a view to considering whether relevant requirements had been complied with came into force in August 2012.
One-off reports may also be commissioned by the Home Secretary. Some of these have been major undertakings, notably Lord Carlile’s 2007 report on the definition of terrorism and my own pending report on deportation with assurances, due by the end of 2014.
It is well established that the Independent Reviewer may conduct reviews of his own initiative. Generally these have been snapshot reports into specific police operations (Operation Pathway 2009; Operation Gird 2011). It is conceivable that the Independent Reviewer might choose to review distinct policy areas, but the limits of this own-initiative power have not so far been tested.
The Independent Reviewer also needs from time to time to be acquainted with other topical subjects. For example, significant time in 2011-12 was occupied by the “secret evidence” proposals which led to the Justice and Security Act 2013, a debate to which I contributed at the invitation first of the Cabinet Office and then in repeated written and oral evidence to the JCHR. Appearances before parliamentary committees and media interviews tend to range widely, making it prudent to acquire at least basic knowledge of subjects not directly with the Independent Reviewer’s remit, such as the Prevent programme and issues relating to surveillance.
Even without the additional functions mooted below, the commitment of time is currently running at some 15 days per month: close to the limit of what can be managed within the constraints even of a much slimmed-down legal practice.
Suggested additional functions
Some additional functions are contingent on future developments. For example, the Independent Reviewer will have to report (or commission a report) on any person who is detained for more than 14 days, should the draft Bill permitting this ever be passed into law.
Further functions are suggested from time to time. In recent months:
a) Provision has been made in the Immigration Act 2014 for the periodic review of the new power to deprive naturalised British citizens of their citizenship, even when to do so would render them stateless. The Security Minister stated that “it may be appropriate to appoint the Independent Reviewer to take on this task”, so long as it was “not detrimental to his capacity to meet his existing important statutory reviews”.
b) The HASC recommended, also in May 2014, that the Independent Reviewer should conduct two further reviews, of: a. the policy of withdrawing passport facilities pursuant to the royal prerogative; and of b. the abuse of charitable status to support terrorist actions. The Independent Reviewer has also been suggested, including by members of the JCHR, as an appropriate person to conduct the 5-year review of closed material procedures that is provided for by the Justice and Security Act 2013.
c) The Home Secretary announced in Parliament on 10 July 2014 that the Independent Reviewer had been asked to conduct, by May 2015, a report into the interception and communications data powers that are needed, and the way in which those powers and capabilities are regulated. She undertook that he would have the necessary resources and support for this task.
Omissions from the scope of independent review
The intention of independent review was always that it should extend to all antiterrorism laws. That was the case from the beginning in 1977 until 2001.
As laws have proliferated since that date, significant omissions from the statutory remit have arisen. These include, in particular, the Anti-Terrorism Crime and Security Act 2001 and the Counter-Terrorism Act 2008, now largely in force. There is no regular review of the Prevent programme, though Lord Carlile was invited to review it in 2010. Nor (save when invited to do so, as in the case of deportation with assurances) does the Independent Reviewer look at immigration law as an aspect of counter-terrorism policy.
Somewhat patchy coverage has resulted. Thus, for example:
a) Terrorist asset-freezing and sanctions must be reviewed annually, to the extent that they fall within TAFA 2010: but there is no coverage of the regimes in Part II of ATCSA 2001, the Regulations which implement UNSCR 1267 or part 5 and Schedule 7 of the Counter-Terrorism Act 2008. An overall appraisal of the Government’s approach to terrorist financing is therefore not possible, at least within the constraints of the Independent Reviewer’s statutory powers, let alone a broader review such as that recommended by the HASC concerning the misuse of charitable status.
b) TPIMs are subject to annual review, whereas measures liable to have some similar effects – notably, the use of the royal prerogative to withdraw passport facilities – are not.
c) There is no review at all of such important matters as post-charge questioning, notification requirements and the use of Diplock courts. I do not suggest that matters which are currently unreviewed would require review on an annual basis. It is anomalous however that they are not reviewed at all.
The Home Secretary stated in March 2013, responding to my report of June 2012, that “the scope of the Independent Reviewer’s responsibilities should keep pace with changes to primary legislation”, and accepted in principle my recommendation that the 2001 and 2008 Acts “should be examined with a view to extending your statutory functions to include the review of relevant sections of those Acts”. This was to be considered as part of the post-legislative scrutiny of the 2008 Act, which is now complete.
This principle was given effect when the Government announced its intention of establishing an IPCLB, as noted below.
The problem
The problem, in summary, is threefold.
First, significant parts of the law as it relates to counter-terrorism are going unreviewed. This is unsatisfactory, not least because it makes it difficult for the Independent Reviewer to assure Parliament or the public that all is as it should be. More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s “dirty work”.
Secondly, the remaining powers must be reviewed to an inflexible annual schedule. This is the legacy of the days, now gone, when anti-terrorism legislation was subject to annual parliamentary renewal, and a report was called for to inform the renewal debate. In some cases (for example the initial two years of the TPIM regime), annual review may be entirely appropriate. In others, it might be considered unnecessary and excessive, or at any rate a relatively low priority.
Thirdly, and partly as a consequence of the second point, the Independent Reviewer is currently operating at the limit of his capacity. Yet it has been acknowledged that his statutory functions should in principle be extended to the 2001 and/or 2008 Acts; other provisions are deserving of review; further reports are from time to time requested by Ministers or parliamentary committees; and a measure of flexibility is needed to deal with one-off requests, own-initiative reviews and the unexpected.
The solution
Something needs to change. For the reasons given above, I suggest that to make the job full-time, or to replace it by a committee, is not the best answer.
I do however make two recommendations, the first of which (like the Government’s alternative proposal for an IPCLB) would require statutory change.
First, I recommend that the current system (fixed annual review of four statutes, with the remainder left unreviewed save in the event of a one-off request) be replaced by a more flexible arrangement whereby the Reviewer or reviewing body, having consulted the relevant Ministers and Parliamentary committees, sets out an annual work programme which will allow him to cover those aspects of the law relating to terrorism that he considers most in need of review.
Analogies for this way of working are:
a) the Independent Chief Inspector of Borders and Immigration (UK Borders Act 2007, section 51); and
b) the INSLM in Australia, a post modelled on that of the Independent Reviewer, who has worked methodically through the entirety of his statutory remit in his four reports of 2011-2014.
It is for consideration how the category of reviewable laws and the nature of review should be expressed. A useful starting point would be the statutory remit of the INSLM, which requires the Monitor to review the operation, effectiveness and implications of counter-terrorism and national security legislation, and any other law to the extent that it relates to counter-terrorism and national security legislation; and to consider whether such legislation contains appropriate safeguards, is proportionate and remains necessary.
The proposed terms of reference of the IPCLB make some progress in this direction, in that they specify a wider range of anti-terrorism statutes for review. The flexibility conferred by the Australian statute still seems to me preferable, however. If mirrored in the UK, it would be clear that the power of review extended for example to immigration law or the royal prerogative, when used for the purposes of countering terrorism.
Secondly, if the office of Independent Reviewer is retained, I recommend that the Reviewer be enabled to appoint an assistant or junior. This would be in addition to the invaluable research and advice work that since 2011 has been performed by my special adviser, Professor Clive Walker. I would expect to take the decision as to who should be appointed, on the basis of an open competition. Possible candidates might be a lawyer already cleared as a special advocate, an academic or a civil servant, though I would not wish to appoint anyone who was associated with the machine that it is my duty to review. An additional skilled pair of hands (even if only on a part-time basis) would increase the range and flexibility of the Independent Reviewer and could even pay for itself if a trusted assistant were able substantially to reduce the time spent on the job by the Independent Reviewer.
Powers and functions of the Independent Reviewer
There have been few practical difficulties in securing access to classified information or personnel; such problems as Lord Carlile and I have experienced have been relatively simply resolved. The excision of national security sensitive information from our respective reports, where that is really necessary, has been achieved by sensible negotiation between the Independent Reviewer and departments or agencies. Reports have also been laid before Parliament, as a rule, with reasonable promptness; though on one occasion it was necessary to refer to an undertaking given in Parliament for this result to be achieved. All that said, there would be advantages in an express delineation of the powers as well as the duties of the Independent Reviewer, and of the duties of the Secretary of State particularly as regards the prompt publication of his reports.
I recommend that consideration should be given to making express statutory provision for:
a) access to classified information; b) information gathering powers; c) the exclusion of sensitive information from reports; and d) the time limit within which the report must be laid before Parliament.
Statutory guarantees will be of particular importance if plans go forward to replace the Independent Reviewer by an IPCLB.
I have floated these ideas in summary form on my website (attracting some supportive comments), and on a fuller basis with the Home Office and also with the HASC, JCHR, the Security Minister and other parliamentarians. The recommendations are aimed at improving the usefulness and cost-effectiveness of the Independent Reviewer’s work, and for that reason I attach great importance to them.
Some of my ideas are reflected in the proposal for the replacement of the Independent Reviewer by an IPCLB. Should that proposal go ahead, others will assume even greater importance, as reflected in my recommendations.