How much counter-terrorism is reviewed, how often, and by whom?
These are just some of the questions that the counter-terrorism review project seeks to answer. But one of the challenges we have faced so far is in trying to map the various mechanisms of counter-terrorism review that we identified in our initial research against what we have described as a sprawling, multi-part, permanent system of counter-terrorism. This is no simple task.
Not all counter-terrorism is reviewed the same. Statutory counter-terrorism police powers, for example, are subjected to different types and methods of review than the prerogative power to refuse or cancel passports on the grounds of national security. In fact, even measures within the same legislation are not always reviewed by the same means or mechanisms. Take, for example, the Counter-Terrorism and Security Act 2015. Parts 1, 2, 3 and 6 of that Act are within the remit of the Independent Reviewer of Terrorism Legislation, but Parts 4 (authority to carry schemes) and 5 (the Prevent duty) are excluded from that particular reviewing body.
To obtain as full a picture as possible of what is reviewed, and by whom, we have commenced a detailed examination of every counter-terrorism measure so far identified in our research, to try to uncover what avenues for review might be available. This involves unearthing the broad spectrum of review mechanisms that may apply to the counter-terrorism measures. The next step of the analysis is to determine the extent to which these possible avenues for review have been carried out in practice.
A useful example might be TPIMs, or Terrorism Prevention and Investigation Measures. We have so far identified the various executive, legislative, judicial, independent, internal, or other avenues that exist for review of these measures. These are shown on the chart below.
There is, it seems, significant opportunities for reviews of TPIMs to take place. However, the potential for review does not necessarily always mean that measures are reviewed. If we take TPIMs again, and look at what reviews have been conducted since 1 January 2017, we see that despite the many possible avenues for review, not many reviews have – in practice – actually been conducted. There are a number of ‘gaps’ in the system of counter-terrorism review.
Those reviews that have taken place have – with the exception of the three court cases – been undertaken either within the executive branch, or internally by the police. This raises questions about the comprehensiveness of the review process in practice, but also about transparency. The Home Secretary’s Written Ministerial Statements are published in Hansard, and the court cases are available online. However, none of the other executive or internal reviews have been published. In fact, it is not even public knowledge whether these reviews have taken place This has a significant impact on the transparency of the review process in relation to TPIMs.
There are many reasons why a large number of potential avenues for review may not lead to a significant number of reviews being conducted in practice. Some of these relate to the mandate of particular review bodies, or the procedures inherent in the review process. Some reviews, for example, might be automatic, whereas others will be discretionary. The Independent Reviewer of Terrorism Legislation, for example, may review TPIMs, but is not required to do so. No review of TPIMs has been conducted by the Independent Reviewer of Terrorism Legislation since 2014. Other reviews may be periodic. The five year statutory sunset clause that required parliamentary renewal of the TPIMs legislation was, for example, conducted in 2016. It will not be undertaken again until 2021. Other reviews might be complaint based, so will only take place once a complaint has been issued, or they may be ad hoc, reacting to particular events.
By uncovering the various avenues for review of counter-terrorism, and by examining the reviews that have been conducted in practice, we can start to build a picture about the potential and scope of counter-terrorism review in the UK ,and highlight the gaps in the system. But this is just one part of the story. As we noted in our last blog post, we also need to identify how these counter-terrorism review mechanisms interact with each other, what impact they have on the UK’s counter-terrorism laws, policies and practices, and how they work to produce accountability.