When is Counter-Terrorism Reviewed?

In addition to the questions of who reviews counter-terrorism, what aspect of counter-terrorism do they review, and how do they review it, is also the question of timing: when do reviews of counter-terrorism take place, and why do they take place at that particular time?

In some instances, the timing might appear obvious and necessary. For example, a number of counter-terrorism reviews took place in the aftermath of the terrorist attacks in London and Manchester in 2017. This included reviews established by the Mayors of London and Manchester into the preparedness and response of their respective cities to terrorist attacks. It also included an internal operational review by MI5 and Counter-Terrorism Policing and an Independent Assessment of those internal reviews conducted by David Anderson QC, a former Independent Reviewer of Terrorism Legislation. The Independent Office of Police Conduct also carried out various investigations relating to the police use of force during the terrorist attacks, and the Independent Reviewer of Terrorism Legislation conducted a review of the police use of terrorism legislation in relation to the Westminster Bridge attack and included an overview of the counter-terrorism investigations into the various terrorist attacks in 2017 in the annual report for 2017.

It might seem obvious that reviews would take place in the aftermath of large-scale terrorist events or counter-terrorist actions. It is also not new. In Northern Ireland in the 1970s for example, an inquiry was established into allegations that the British Army used enhanced interrogation procedures (torture) during the internment of suspected terrorists under counter-terrorism legislation. Another inquiry (the 1972 Widgery Inquiry) was carried out into the aftermath of the events known known as ‘Bloody Sunday’, in which 14 unarmed civilians were shot and killed by the British Army during an anti-internment march in Derry. Although this inquiry was later criticised and a much later inquiry superseded the account (the Saville Inquiry), which reminds us of the importance of looking at timing in concert with content. Reviews have also been instigated after more recent terrorist attacks, including the London bombings in 2005.

Unlike these reviews, which are triggered by a particular event, other reviews take place according to particular schedules. Some reviews are periodic and provided for by statute. For example, the Independent Reviewer of Terrorism Legislation is required to provide an annual report on the operation of the Terrorism Act 2000, and the Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 is required to produce an annual report on the operation of sections 21-32 of that Act in Northern Ireland. Other periodic reviews have non-statutory foundations, such as the TPIM Review Group, which is comprised of the Home Secretary and members of departments and agencies involved in making, maintaining and monitoring TPIMs and meets quarterly to keep every TPIM notice under regular and formal review.

Other reviews are mandated by some particular course of action; that is, they are automatically required in certain circumstances. Parliamentary review of legislation subject to a sunset clause falls into this category. This is because it is the Secretary of State who triggers the review process, by laying a statutory instrument in Parliament to the effect that the legislation should be continued in force for a specific period of time. Without that statutory instrument, the sunset clause would mean the legislation would lapse, without any review by parliament. The opportunity for Parliament to review the legislation only arises because the parent statute requires a resolution in both Houses to approve the statutory instrument. In the absence of executive action, Parliament would not have this particular opportunity to review the legislation in question. There are a number of other examples in which reviews by a variety of review mechanisms, including in the legislature, the judiciary, and independent bodies, only take place following executive action. This raises concerns as to who is in control not just of the timing of reviews, but of whether reviews take place at all.

One type of review which is not subject to prior executive action those which are conducted following an application from an individual for a review to take place. For example, a person who is subject to a Temporary Exclusion Order who is in the United Kingdom may apply to the Court to review the Secretary of State’s decisions in making the Temporary Exclusion Order. Other examples include the opportunity to make a complaint to the Investigatory Powers Tribunal.

The final formal category of review is one which does not have any particular timing aspect at all. All reviews conducted on an ad hoc basis fall into this category, either because a review mechanism has discretion to review a particular aspect of counter-terrorism (and chooses to do so) or because review mechanisms consider it important, timely, and necessary to conduct such a review. The former would encompass reviews such as of the Terrorism Prevention and Investigation Measures Act 2011 by the Independent Reviewer of Terrorism Legislation. The latter would compass reviews by civil society organisations and the post-event reviews described above. A considerable number of ad hoc reviews have taken place over the past few years, and they raise particular challenges in trying to understand the extent to which counter-terrorism is reviewed, and how comprehensive that review is.

Finally, a special mention should, perhaps, be reserved for those review mechanisms which have never conducted a review. The most obvious example here is the Privacy and Civil Liberties Board which has not conducted a review because it has yet to actually come into existence. The Counter-Terrorism and Security Act 2015 provided for the Secretary to establish, by statutory instrument, a Privacy and Civil Liberties body that would ‘provide advice and assistance’ to the Independent Reviewer of Terrorism Legislation. Since 2015, no Home Secretary has considered it necessary to establish the Board in practice, but it remains on the statute books as a potential review mechanism.

What is revealed by this brief picture of the different timings of counter-terrorism reviews is the complex and fragmented nature of the assemblage of counter-terrorism review that exists in the UK. Reviews are conducted at different times, according to different schedules and frequencies, or not conducted according to any timetable but simply undertaken on an ad hoc basis, they are sometimes triggered by events without which a review would not take place at all, or are triggered by the actions of another individual, most often the Secretary of State. How the timing of reviews affects their operation and impact is just one aspect of our current work on counter-terrorism review.

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