Written evidence submitted by David Anderson Q.C. [CT 11]

Role of the Independent Reviewer

1. I am a QC in independent practice, a Visiting Professor at King’s College London and a Recorder of the Crown Court. I have no political affiliation.  I succeeded Lord Carlile CBE QC as Independent Reviewer of Terrorism Legislation in 2011: my three-year term (which is renewable) ends in February 2014.  The role has two features rarely seen in combination: complete independence from Government; and unrestricted access, based on a high degree of security clearance, to classified information and national security personnel.

2. The principal statutory responsibility of the Independent Reviewer is to report annually on the operation of certain specific Acts of Parliament concerned with terrorism.[1]  Those Acts govern significant elements of the Pursue strand of the Government’s counter-terrorism strategy CONTEST.  The most recent editions of my annual reports, each of which is relevant to the Committee’s inquiry, are:

(a)    The Terrorism Acts in 2012, July 2013 (nature of the threat; the counter-terrorism machine; definition of terrorism;  proscription; terrorist property; terrorist investigations; arrest and detention; stop and search; port and border controls; terrorist offences);[2]

(b)    Terrorism Prevention and Investigation Measures in 2012, March 2013 (TPIMs); and[3]

(c)     Second report into the operation of the Terrorist Asset Freezing &c Act 2010, December 2012 (terrorist asset freezing).[4]

Other reviews are conducted from time to time. The Reviewer’s reports are submitted to the Home Secretary or the Treasury, and must be laid before Parliament on receipt.  They are not annexed for reasons of space but are freely available, along with other material, on the Reviewer’s website.[5]

3. The original purpose of annual review – instituted in 1984 – was to inform the annual debates that were then required if terrorism laws were to be renewed.  Since the repeal of the Prevention of Terrorism Act 2005 and its replacement by the TPIM Act 2011, annual renewals of anti-terrorism laws have ceased.  The Reviewer’s central function however remains to inform the public and political debate on terrorism and civil liberties.  That function is discharged by his reports and by the evidence that he is invited to give to Parliamentary Committees.  Reports and evidence often draw on classified materials.  The Reviewer’s evidence and reports have been cited in Parliamentary debates[6] and in judgments of the courts both in the UK and in Strasbourg.[7]

4. I also post on my website, publish articles, give interviews to the media and lecture to public and professional audiences, universities and schools on counter-terrorism powers and civil liberties.   Like my predecessor I participate regularly in police training, particularly in relation to Schedule 7, and have the opportunity, in regular private meetings with Ministers, officials, senior police officers and others, to communicate any sensitive concerns in a less formal context.

5. I travel widely within the UK in order to observe and discuss the operation of the anti-terrorism laws both with those responsible for their content and enforcement (Ministers, MPs from all parties, officials, intelligence agencies, prosecutors, police and judges) and with others who come into contact with them (NGOs, lawyers, academics, journalists, port operators, religious and community groups and the subjects of TPIMs, immigration detention and port stops).  In 2012 I travelled also to the US and to various institutions of the EU and Council of Europe.  Later this year I plan to visit Israel.  My Special Adviser, Professor Clive Walker, keeps me abreast of academic writings and comparative developments.

Scope of this evidence

6. This document can give no more than an overview of some of the issues which the Committee has indicated that it wishes to consider, while referring it to the relevant passages of my recent reports.  Other issues lie outside the range of my statutory responsibilities.  The operation of anti-terrorism law in Northern Ireland features in my reports; but I have assumed that Northern Ireland-related terrorism falls outside the scope of the Committee’s inquiry.  Within the limits of my expertise, I should be happy to contribute more detail in relation to any specific issues on which it is felt that my assistance could be useful.
   

Does the UK have sufficient capability to detect, investigate and disrupt terrorist threats?

The terrorist threat

7. The nature and extent of the terrorist threat to the UK and its citizens, as it stood at mid-2013, is fully summarised in chapter 2 of my July 2013 Terrorism Acts report.  That account bears no official endorsement but is informed by my briefings from JTAC and MI5 as well as by my own reading and enquiries.   Jonathan Evans, then Director General of MI5, was not exaggerating when he said in 2012 that “Britain has experienced a credible terrorist attack about once a year since 9/11.”  Though the ability of al-Qaida core to direct complex plots from the FATA has declined in recent years, foreign influences remain important and self-organised plots are not limited to the activities of so-called “lone wolves”.  Indeed the will and capacity to commit 7/7 style atrocities in the United Kingdom may well still exist, as demonstrated by the Birmingham rucksack bomb plot of 2011.  Significant numbers of British citizens have lost their lives abroad this year to terrorism, notably in the Algerian gas plant and Nairobi shopping mall attacks.  In Great Britain, 43 persons were charged with terrorism-related offences during 2012 – a figure precisely in line with the average since 2001.[8]

8. The threat needs to be kept in perspective, however.  MI5’s coverage of would-be Islamist terrorists has markedly improved since 2005; and since July 2011 the threat level set by JTAC, though still judged “substantial” (i.e. that an attack is a strong possibility), has been consistently lower than it was for three years after August 2006, when threat levels were introduced.   There have been no recent al-Qaida related atrocities in Europe on the scale of the Madrid or London bombings of 2004-05.  Thankfully and due in no small part to the activities of police and intelligence agencies, not a single person was killed by terrorists in Great Britain between summer 2005 and spring 2013.[9]

Counter-terrorism capability

9. The UK’s capability (via Pursue) to detect, investigate and disrupt terrorist threats is grounded in the laws whose operation is the main subject of my reports .  The organisational effort is summarised at chapter 3 of my July 2013 report.  The increase in the UK’s counter-terrorism capacity since 2005 has been substantial.  Its principal components, as I record at 3.8-3.9 of my report, are counter-terrorism policing (for which Government funding was £573m in 2012/13) and a significant share of the £2.1 billion Security and Intelligence Agencies budget.  The Counter-Terrorism and Special Cases Division of the Crown Prosecution Service has a strong record of prosecutions and an impressive concentration of expertise.

Is the capability sufficient?

10. The UK’s capabilities seem to me broadly appropriate to the threat as it currently stands.  In general, our anti-terrorism laws are formidably strong.  The Terrorism Act 2000, which had considerable international influence after 9/11, was conceived at the end of a 30-year period which saw some 3500 killed in the Troubles as well as numerous hijackings, hostage-takings, suicide bombings and terrorist attacks worldwide.  Yet it has been repeatedly supplemented since 9/11 – most notably by the introduction of various models of executive detention and restraint[10] and by the characterisation as “precursor crimes” of much previously lawful behaviour.[11]

11. It will always be possible (subject to the UK’s international obligations and the tolerance of the courts) to provide for more crimes, more intrusive powers of search, longer periods of detention, more surveillance and more aggressive enforcement.   But such measures can address only the symptoms and not the causes of terrorism.  Worse, they may promote damage to everyday freedoms, the victimisation of affected communities and the diversion of scarce public funds into the vain pursuit of zero risk.[12]  It has been heartening to observe, during my time in post, that the great majority of those entrusted with the formulation and enforcement of our anti-terrorism laws – including civil servants, security officials and police – well understand how laws that are over-extended or misapplied can become counter-productive.  This does not remove the risk of abuse in individual cases, or diminish the need for careful independent scrutiny: but it does mean that enforcement takes place against what I have observed to be a positive institutional background.

12. Over the past few years, the anti-terrorism laws and their operation have been cautiously liberalised in areas ranging from stop and search and retention of biometric data to detention periods and control orders.[13]  In successive reports I have found the liberalisation – but also the caution – to be justified.   I have pointed to gaps in protection,[14] though it is often difficult to do so publicly.  I have also made recommendations for further change.   A few such recommendations (for example the possibility of bail for those arrested under the Terrorism Act 2000)[15] have been rejected, at least for now.  Others have been  partially adopted or are currently in train: in particular, the review and amendment of Schedule 7 port powers[16] and the revocation of outdated and potentially unlawful proscription orders.[17]

13. The replacement of control orders by TPIMs –a decision not prompted by the courts – has proved particularly controversial.  TPIMs are significantly less invasive of personal liberty than were control orders.   But the former practice of requiring controlled persons to be relocated away from their home cities could be effective in disrupting networks and preventing absconds, and was found by the courts to be proportionate in most though not all cases.  I have said only that dropping relocation was a proper course for Parliament to take on civil liberties grounds.[18]   More significantly still, TPIM notices – unlike control orders – are limited to two years, unless new terrorism-related activity takes place.  The practical effect of this may prove to be the removal of all constraints, with effect from early 2014, on a number of TPIM subjects – men who are believed by the Home Secretary, with the approval of the courts, to be dangerous terrorists .[19]  But persons who can neither be put on trial nor deported cannot in a civilised society be constrained indefinitely; additional money for covert investigative techniques has been provided to police and MI5, leading to an assessment of no substantial increase in overall risk; and even the two years now permitted is a very strong power by international or indeed by historic British standards.  For these and other reasons, following my predecessor Lord Carlile, who suggested the change, I have described it as an acceptable compromise.[20]

The effectiveness of the Government in working with foreign Governments and multilateral organisations to counter terrorist threats at home and abroad

14. The closeness of the intelligence relationship with the United States is well-known.  I am not best placed to evaluate its overall effectiveness, though after a fact-finding trip to Washington DC in 2012 I did give evidence in connection with the Justice and Security Bill on the extent to which intelligence-sharing was liable to be damaged by US fears that the control principle would not be fully respected in the UK.[21]

15. The counter-terrorism relationship with our EU partners was the subject of my written evidence in December 2012 to the House of Lords European Union Committee, following discussions in London, Brussels and The Hague.[22]  I observed how influential the UK approach to counter-terrorism has been in Europe.  My evidence was written before the Government released detailed plans for the proposed  Protocol 36 opt-out.  Assuming  that the UK is able to opt back into the measures that it wishes to be part of, I have no basis at present for questioning the Government’s view that co-operation in tackling terrorism will not be unduly affected, though I intend to keep this under review.

Whether the UK supports allies in building capacity to investigate and prosecute terrorists based overseas

16. Capacity-building is important not only to strengthen the ability of other countries to deal with terrorism, but to protect the UK’s intelligence agencies against accusations that by co-operating with other countries, they have been complicit in torture or other illegal acts.

17. I have been asked to speak to visiting delegations from a number of other countries about counter-terrorism law and practice in the UK, and the importance of independent review.  I do not though have an overall picture of the effectiveness of the Government’s capacity-building efforts.

How effective TPIMs are as an investigatory measure

18. I reported earlier this year that TPIMs can be effective in preventing terrorism-related activity, but that like their predecessors, control orders, they have not been effective as investigatory measures.[23]  It is indeed difficult to see how (despite their name) TPIMs could succeed on both fronts.  If a TPIM prevents terrorism-related activity, it must follow that there is no terrorism-related activity to investigate.

19. Controlled persons and TPIM subjects have been prosecuted (with mixed success) for breach of the restrictions placed upon them.[24]  But such breaches do not generally amount to engagement in terrorism-related activity.  These prosecutions serve to enforce the obligations in a TPIM, but cannot in themselves serve as a justification for the TPIM.

The possible implications of moving responsibility for counter-terrorism from the MPS to the NCA

20. I visit both the MPS and the regional police counter-terrorism units, each of which is run by the force in whose area it sits.  All are part of the police Counter-Terrorism Network.  The Network, which works in full and active partnership with counter-terrorism policing structures in Scotland and Northern Ireland, is generally accepted to be an effective way of moving assets around the country in support of the highest priority operations, as directed by the Senior National Co-ordinator, an officer of the MPS.

21. Given the existence of a functioning system and the importance of what it does, it was wise in my view to postpone a decision on counter-terrorism and the NCA until the NCA is fully operational.  I express no view on the underlying issue, other than to emphasise, on the basis of my own observation:

(a)    the need for efficient allocation of counter-terrorism resources, geographically and in terms of the potential for officers trained in counter-terrorism to be deployed where necessary to other policing activities; and

(b)    the importance of police officers involved in public-facing counter-terrorism work (whether a house raid or a port stop) understanding the implications of their actions for the communities most affected.

David Anderson Q.C.

Independent Reviewer of Terrorism Legislation

September 2013

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