Our work on mapping and understanding counter-terrorism review is continuing, and one of the significant elements of this is to articulate what the characteristics of counter-terrorism review might be. This is more than simply listing the forms it might take (such as executive, legislative, judicial, administrative, internal, or independent/external) or the ways in which it might be triggered (statute, complaint, political initiative etc). Rather, articulating the characteristics of counter-terrorism review requires us to identify and then flesh out the roles that we consider counter-terrorism review should and can play; roles against which we can then assess the existing modes of counter-terrorism review and, indeed, the scale and nature of such review as it currently exists. Through doing this we can assess both the appropriateness and sufficiency of the status quo and develop a normative framework for counter-terrorism review of far broader application.
To that end we have identified six characteristics of counter-terrorism review (so far). These are: comprehensiveness, integration, participation, transparency, impactfulness, and rights respectfulness.
Counter-terrorism is a massive and sprawling set of laws, policies, operations and approaches that touches off of everything from criminal justice to financial regulation and the regulation of education. It consists of instruments from acts of parliament to policies generated at individual hospital, school or university level. It is difficult to map, not least to contain, but it all has the capacity to result in the exertion of the power of the state onto individual lives and liberty. Key to an effective approach to counter-terrorism review is a commitment to comprehensiveness, i.e. to ensuring that every part of counter-terrorism is susceptible to some form of review.
As already mentioned, counter-terrorism itself is immense, and within it there are often streams, policies or laws that ‘touch off of’ one another. The review mechanisms for these elements of counter-terrorism should also touch off of one another, or be integrated. A key challenge with this is that these different elements may well originate from and be governed through different instruments and policies, so that their primary review mechanisms are separated even though in reality the measures operate in an integrated fashion. Thus, it is not sufficient to ask whether an element of counter-terrorism is susceptible to review; we must also ask whether that review takes into account he integrated and embedded nature of the measure, and is itself integrated with other relevant forms of review.
Counter-terrorism reaches into all parts of life, and clearly has an intimate impact on the lives of many actors, from police officers to doctors to students. Counter-terrorism review should ideally take account of the impacts and engagements of counter-terrorism on people’s lives and work, and in order to achieve that at least some parts of counter-terrorism review should be participatory, i.e. it should be possible for people affected to feed their experiences of counter-terrorism into a review mechanism. This might happen in different ways: through direct participation by lodging a complaint, through the invited representative participation of community organisations in a thematic review, through the participation of an MP in a parliamentary review process, and so on. So, while some form of participation may be desired in every review mechanism, the nature of counter-terrorism and the varied forms of review within it may well mean that forms of participation are also varied across review mechanisms, making assessment of this characteristic challenging and nuanced.
Similarly transparency is a key characteristic of most review mechanisms. This might be understood in various different ways, such as transparency about the fact that the review is ongoing, transparency about its outcomes and inputs, and transparency as an output of the review. In the context of counter-terrorism transparency may sometimes be a challenging concept, so that it is important to develop ways of thinking about and identifying it that may go beyond a simplistic analysis. While full public disclosure of all elements of counter-terrorism might not be a characteristic of all forms of counter-terrorism review, the disclosure of details to some entity or office that can assess and review them may well be a form of transparency that has value within a broader schema of counter-terrorism review and political oversight and accountability. Forms of transparency too, then, may be varied across different review mechanisms, so that identifying and assessing this characteristic is also challenging and nuanced.
In order for counter-terrorism review to be more than the giving of account for activities that are undertaken within the broad mass of counter-terrorism, it should have some kind of impact. This again has multiple layers, and might be manifested in impacts as varied as changing the outcome in a particular case or complaint, to triggering a parliamentary debate and legislative change, to operational variations or revisions in political commitments to certain forms and pathways of counter-terrorism. Impact might also be discerned within the realm of counter-terrorism review itself, with the outcomes of one review mechanism or exercise having a discernible impact on another form or instance of counter-terrorism review.
As is well documented, counter-terrorism law, policies, measures and operations often have serious implications for rights. Rather than being ‘purely’ or ‘simply’ operational, counter-terrorism review mechanisms should also be attentive to rights, identifying and assessing the impact on rights that a measure has. In doing this, participation (to garner real life societal impact) may well be important, as in some cases is legal analysis. Rights respectfulness may be strictly and formally legal (asking whether a measure, for example, disproportionately and thus unlawfully infringes on rights) or may be more societal (identifying and asking about the lived experience of rights-impact even where the threshold of unlawfulness might not be reached). Again, different forms of review may approach the question of rights respectfulness differently; for example, a judicial review will likely be highly legalistic whereas an operational review may take a more societal approach.
In assessing any particular form of counter-terrorism review, we might seek then to identify and assess the extent to which these characteristics are present, but perhaps more challenging still is the task of considering whether and to what extent we can identify these characteristics across counter-terrorism review as a whole. That is the task with which we are now engaged.