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Independent Reviewer of Terrorism Legislation

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The Independent Reviewer of Terrorism Legislation is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the UK. The last three Reviewers were Lord Carlile of Berriew CBE QC (2001-2011), a barrister, former Liberal Democrat MP and member of the House of Lords, David Anderson QC (2011-2017), a barrister in private practice who later became a cross-bench peer, and Max Hill QC (2017-2018), a criminal advocate well known for his experience as a prosecutor in terrorism cases.[1] Appointments to the part-time role are now made under the public appointments procedure.[2]

Functions

The Independent Reviewer must report annually to Parliament on the operation of the Terrorism Act 2000. He or she may also report (after notifying the government) on parts of the Anti-terrorism, Crime and Security Act 2001, Part I of the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorist Asset-Freezing etc. Act 2010, the Terrorism Prevention and Investigation Measures (TPIMs) Act 2011 and Part 1 of the Counter-Terrorism and Security Act 2015.[3]

Further reports may be produced, at the request of the government or on the Independent Reviewer's own initiative. Past examples are the reports into the definition of terrorism (2007), Operation Pathway (2009) and Operation Gird (2011), and reports commissioned into investigatory powers (2015), the collection of bulk data by intelligence agencies (2016), the deprivation of citizenship (2016) and the practice of deportation with assurances (2017). All reports published since 2001 are available on the Independent Reviewer's website.

A recent Independent Reviewer has written that "anyone who assumes that the Reviewer's function is to torment the government, or conversely to defend it, will be disappointed'", adding that he has sought, like his predecessors, "only to give an informed, considered and independent view".[4]

The Independent Reviewer has no permanent staff but has a budget for the assistance of part-time Special Advisers, and administrative help provided or paid for by the Home Office. The Senior Special Adviser has since 2011 been Emeritus Professor Clive Walker of the University of Leeds. The power to set up a Privacy and Civil Liberties Board under the direction and control of the Independent Reviewer was passed into law under the Coalition Government[5] but has not been brought into force.

History

When IRA terrorism spread to England in the mid-1970s, it was closely followed by UK-wide anti-terrorism laws and by a demand from Parliament that those laws be independently reviewed by a trusted and security-cleared person. Reviews of the Prevention of Terrorism (Temporary Provisions) Acts and the Northern Ireland (Emergency Provisions) Acts were carried out at various times between 1978 and 1984 by Lord Shackleton, Earl Jellicoe and Sir George Baker.

In 1984 an annual review was instituted, in order better to inform the annual renewal debates that were then required. As explained to the House of Lords by Home Office Minister Lord Elton, the reviewer's function was to look at the use made of the statutory powers relating to terrorism and to consider, for example, whether any change in the pattern of their use needed to be drawn to the attention of Parliament. The reviewer was to have access to all relevant papers, including sensitive security information and ministerial correspondence. He or she would not be a judge, but "a person whose reputation would lend authority to his conclusions, because some of the information which led him to his conclusions would not be published".[6]

Between 1984 and 2001, annual reports were produced by Sir Cyril Phillips, Viscount Colville and J.J. Rowe QC. On 11 September 2001, a few hours before the attacks on the World Trade Center, Lord Carlile of Berriew CBE QC was appointed as the Independent Reviewer of Terrorism Legislation. The role was first put on a statutory basis in relation to control orders under the Prevention of Terrorism Act 2005. Lord Carlile was influential on Government thinking both before and after the 7/7 London attacks of 2005. He held the position for more than nine years, until he was replaced by David Anderson QC on 21 February 2011.

Max Hill QC took over the post from 1 March 2017. He continued until 12 October 2018, after which he took up appointment as Director of Public Prosecutions. At the time of his resignation, no appointment process had been launched to find a successor. As of May 2019, Jonathan Hall QC was appointed by the Home Secretary as the new Independent Reviewer of Terrorism Legislation.

Influence

The distinctiveness of the Independent Reviewer's role has been said to lie in a combination of two factors: complete independence from Government, coupled with unrestricted access to classified material.[7] These factors in themselves are no guarantee of influence. Past recommendations of the Independent Reviewer have however often been accepted by Government,[8] as may be seen from the academic literature[9] and from the responses to the Independent Reviewer's reports that are published on the Reviewer's website.[10] Other recommendations have been taken up by the courts[11] or by parliamentary committees.[12]

A role similar to that of the Independent Reviewer has been created in Australia, where an Independent National Security Legislation Monitor is provided for by a 2010 statute. In September 2018, the creation of a similar post was recommended by the Commission on the Future of Policing in Ireland.

As Independent Reviewer, David Anderson QC was credited by both Government and opposition front benches with significantly influencing their positions on the legislation that became the Justice and Security Act 2013.[13] His reports and evidence to Parliament also influenced the law governing TPIMs, which was reformulated following his confidential report of September 2014 to the Prime Minister and Deputy Prime Minister,[14] the scope of the power to stop and detain travellers under Schedule 7 to the Terrorism Act 2000,[15][16] and the practice of asset-freezing.[17][18] "A Question of Trust", his June 2015 report on the future of surveillance laws,[19] had a major influence on the Government's draft Investigatory Powers Bill of November 2015, and has been described as "the turning point that policymakers have looked for and missed ever since 9/11".[20] It was followed in August 2016 by the report of the Independent Reviewer's Bulk Powers Review,[21] which with the help of 60 case studies examined the operational case for the bulk retention of data by MI5, MI6 and GCHQ.

References

  1. ^ editor, Alan Travis Home affairs (2017-02-20). "Leading terror trial QC to be counter-terror laws watchdog". The Guardian. ISSN 0261-3077. Retrieved 2017-07-06. {{cite news}}: |last= has generic name (help)
  2. ^ Public Appointments Order in Council, April 2013.
  3. ^ Terrorism Act 2006, section 36; Counter-Terrorism and Security Act 2015, sections 44-45.
  4. ^ "D. Anderson, "The independent review of UK terrorism law", (2014) 5 New European Journal of Criminal Law, 432-446 at 434".
  5. ^ "Counter-Terrorism and Security Act 2015". www.legislation.gov.uk.
  6. ^ Hansard HL Deb 8 March 1984 vol 449 col 405
  7. ^ D.Anderson, "The independent review of terrorism laws" [2014] Public Law 403-420.
  8. ^ "Shades of Independent Review - David Anderson QC Lawyer London UK". www.daqc.co.uk. Retrieved 2017-12-22.
  9. ^ See, e.g., C.P. Walker, Terrorism and the Law, Oxford University Press 2011; J. Blackbourn, “Independent Reviewers as Alternative; an Empirical Study from Australia and the UK” in Fergal F. Davis and Fiona de Londras (eds), Critical Debates on Counter-Terrorism Judicial Review (Cambridge University Press 2014).
  10. ^ "Independent Reviewer of Terrorism Legislation".
  11. ^ E.g. Gillan and Quinton v UK [2010] ECHR 28; Elosta v MPC [2013] EWHC 3397; R v Gul [2013] UKSC 64; Beghal v DPP [2015] UKSC 49.
  12. ^ Joint Committee on Human Rights, Post-legislative scrutiny: TPIMs Act 2011 (January 2014); Home Affairs Select Committee, Counter-Terrorism (April 2014).
  13. ^ Sadiq Khan MP, Hansard HC Deb 4 March 2013, col 687; Lord Wallace, Hansard HL Deb 26 March 2013 col 1061.
  14. ^ "Counter-Terrorism and Security Act 2015". www.legislation.gov.uk.
  15. ^ "Anti-social Behaviour, Crime and Policing Act 2014". www.legislation.gov.uk.
  16. ^ Beghal v DPP [2015] UKSC 49.
  17. ^ "Terrorism and terrorist financing: first independent reviewer report - GOV.UK". www.gov.uk.
  18. ^ "D. Anderson, The independent review of UK terrorism law", (2014) 5 New European Journal of Criminal Law, 432-446".
  19. ^ "A question of trust: report of the investigatory powers review - GOV.UK". www.gov.uk. Retrieved 2017-07-06.
  20. ^ Kettle, Martin (11 June 2015). "Security v privacy: Anderson offers the balance we've been seeking since 9/11 - Martin Kettle" – via www.theguardian.com.
  21. ^ "Bulk Powers Review – Report (August 2016) « Independent Reviewer of Terrorism Legislation". terrorismlegislationreviewer.independent.gov.uk. Retrieved 2017-06-28.
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