BY JESSIE BLACKBOURN

At the end of February 2017, David Anderson QC will step down from the position of Independent Reviewer of Terrorism Legislation in the UK after six years in the job. It is not yet known who will take up the post, or when. But it is clear that, though the central function of the role – post-enactment review of the UK’s anti-terrorism laws – remains unchanged, the office today is markedly different to the one that Anderson was appointed to in February 2011.

Anderson’s upcoming retirement offers an opportunity to look back, not only on his tenure as Independent Reviewer in the UK, but also at the comparable office of Independent National Security Legislation Monitor in Australia.

Existential crises

The Australian office has had a difficult existence since the first Independent Monitor was appointed in April 2011, a full year after Parliament passed the Act establishing the office. The first Independent Monitor, Bret Walker SC, served a full three-year term after which the Coalition government announced its decision to abolish the post altogether as part of its ‘red-tape reduction’ program. The office won a reprieve in July 2014, but lay empty until the end of the year, when Roger Gyles QC was appointed in an acting capacity pending a successful security vetting. Gyles was formally appointed to serve for two more years in August 2015, however, he resigned early for personal reasons on 31 October 2016. Despite a promise to appoint someone to replace Gyles ‘in the near future’, the office – again – lies vacant.

But it has not been all plain sailing for the Independent Reviewer either. On 16 July 2014, a few months after the start of Anderson’s second three-year term, and the same day that the Independent Monitor was reprieved in Australia, the UK government announced its intention to abolish the office of the Independent Reviewer and replace it with an Independent Privacy and Civil Liberties Board. Ultimately that did not eventuate. In February 2015, Parliament introduced a ‘Privacy and Civil Liberties Board’ to support the work of the Independent Reviewer. It was to be brought into existence by the Secretary of State at a future date, but that has not yet happened. The office of the Independent Reviewer, however, remains.

Comparing the remit and powers of UK and Australian offices

Moreover, over the course of Anderson’s tenure, the UK office has been strengthened. In fact, today, the Independent Reviewer in the UK more closely resembles the Australian Independent Monitor than it did before Anderson took up the role in 2011. Two major changes to the office, both of which were proposed by Anderson, have facilitated this. First, the number of laws subject to independent review has increased, so that the Independent Reviewer now reviews almost (but not) all of the UK’s anti-terrorism laws. Secondly, the Independent Reviewer has been granted greater discretion over what laws to review on an annual basis, whilst ensuring that the UK’s main permanent terrorism legislation continues to be reviewed.

However, the changes in the UK did not go as far as the Australian office. One aspect of independent review which the Australian regime appears to have got right, and which has not been replicated in the UK, is the enactment of a single law establishing and regulating the office of Independent Monitor. The Australian Independent National Security Legislation Monitor Act 2010 sets out, in express statutory language, the Independent Monitor’s terms of reference and duties. The UK’s Independent Reviewer has no single source of statutory authority; it is spread out in a number of different anti-terrorism laws. Furthermore, whilst the Australian office has a remit to review all of Australia’s national security and counter-terrorism laws, as well as any laws which relate to those laws, the UK Independent Reviewer is more limited; there is no general power to review the UK’s anti-terrorism laws, only those laws which Parliament has decided should be reviewed.

The Australian regime is also better at prescribing the powers available to the Independent Monitor. The Independent National Security Legislation Monitor Act 2010 lays out the various powers vested in the office. The powers to access information are unparalleled in the UK system. They include the power to hold a hearing and summon a person to attend as well as to require a witness at a hearing to take an oath or affirmation. The Independent Monitor may also issue a notice requesting a person to provide the office with any information, documents or things. Penalties, including up to six months’ imprisonment, apply for failing to produce a document or thing or for failing to provide the information requested.

In the UK, there are no such statutory powers, though according to Anderson:

There have been few practical difficulties in securing access to classified information or personnel; such problems as … I have experienced have been relatively simply resolved.

In spite of this, Anderson recommended a number of changes to the office in his report on the UK’s terrorism legislation in 2013, including that:

[C]onsideration 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.

Anderson referenced the powers available to the Independent Monitor under the Independent National Security Legislation Monitor Act 2010 in support of his proposals. Despite the other significant changes to the office of the Independent Reviewer made by the Counter-Terrorism and Security Act 2015, these recommendations have not been implemented.

Challenges of workload and resourcing

However, it is of little use for the Australian office of Independent Monitor to have a single legislative remit to review all of Australia’s national security and counter-terrorism laws, and strong coercive information-gathering powers to conduct that review, if it is left to sit vacant for lengthy periods of time. The UK’s office has shown greater stability and resilience to political manoeuvrings in this regard.

The absence of an Independent Monitor for lengthy periods of time has had a detrimental effect on the already heavy workload of the office. Since late 2014, when Gyles was first appointed, the Australian government has used its power to refer a number of matters (including control orders and the controversial whistleblowing provisions in section 35P of the ASIO Act 1979) to the Independent Monitor for review. Parliament has also incorporated future reviews by the Independent Monitor into a number of new laws, including the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016, which was enacted while the office lay vacant. At current standing, as well as providing this year’s annual report on the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws to the Prime Minister, by 7 September 2017 the Independent Monitor is also required to conduct reviews of the control order regime, preventative detention orders, ASIO’s questioning and detention warrant powers, the declared area procedure and offences, and the police’s powers of stop, search and seizure. This is a lot of work to complete in seven months. For an office that currently lies vacant, it may be impossible to achieve.

The increase in the Independent Monitor’s workload is matched by a similar experience in the UK; in the past few years, the Independent Reviewer there has been tasked to provide a range of reports outside of the normal reporting requirements of the office, including on mass surveillance, citizenship stripping powers, and the policy of deportation with assurances.

Both offices have faced resource burdens because of this increased workload. In his report on the Terrorism Acts in 2013, Anderson stated that he was ‘currently operating at the limit of his capacity’, and requested additional support. The ill-fated Privacy and Civil Liberties Board was the government’s response to Anderson’s request, though he has now been allowed to appoint three special advisors instead.

In Australia, the office of Independent Monitor was, under Gyles, beset by staffing issues. His first report, on section 35P, was delayed for months when his only advisor left the office for personal reasons part way through the inquiry. But by February 2016, those staffing issues had been resolved; the Independent Monitor’s office employed the equivalent of four full-time members of staff. However, the quality of reporting appears to have suffered from the Independent Monitor’s heavy workload and staffing shortages. Gyles appears to have focused his attention on the reports he produced on reference to the Prime Minister, providing some detailed evaluation of the relevant measures. However, the two annual reports that Gyles produced during his time as Independent Monitor contained no such thorough analysis. At eleven and twenty-four pages respectively (including appendices), neither actually fulfilled the core function of the office: evaluating the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws. Both reports simply outlined the terrorist threat to Australia, detailed any changes to Australia’s anti-terrorism laws, described the Independent Monitor’s activities during the reporting period, and laid out a future work plan. Compared to the UK’s Independent Reviewer, who averaged three major reports a year over the past six years of a consistently high quality, or to the inaugural Independent Monitor, Walker, who produced four rigorous and highly detailed annual reports, Gyles’ tenure in the office of Independent Monitor oversaw a deterioration in the quality of post-enactment review of Australia’s national security and counter-terrorism laws. That this coincided with a period of hyper-legislating against terrorism is troubling. That there is currently no Independent Monitor in office to review the newly enacted laws is of even greater concern.

The Future

2017 will be an important year for the future of post-enactment review, both in Australia and the UK. In the UK, Anderson leaves the office of Independent Reviewer in a stronger position than he entered it, and the next Independent Reviewer has big shoes to fill. In Australia, on the other hand, the next Independent Monitor enters an office that has been vacant since 1 November 2016 and which has been weakened, both by the inadequacies of the most recent reviews and by the total absence of any real government support or enthusiasm for the role. If the office of the Independent Monitor is to survive as an effective oversight mechanism in 2017 and beyond, the next Independent Monitor must be appointed with enough time to conduct the required reviews by 7 September in a rigorous and meaningful manner. Anything less will fail the core functions of the office: evaluating the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws.

 

This post also appeared on the Australian National Security Blog on 15 February 2017.

Dr Jessie Blackbourn is a Research Fellow in the Centre for Socio-Legal Studies at the University of Oxford and an Honorary Fellow at the Faculty of Law, University of Western Australia.

Suggested citation:  Jessie Blackbourn  ‘The UK’s Independent Reviewer of Terrorism: A Comparative Retrospective‘ on AUSPUBLAW  (15 February 2017) <https://auspublaw.org/2017/02/the-uks-independent-reviewer/>