Is it Better to Review or Monitor Terror Laws?

Rory Phillips KC: Welcome to the latest in our Social Context of the Law series. Today, our topic is terrorism, or to be more precise, the legislation that states have introduced to deal with terrorism in its various manifestations. And sharpening our focus further, we’re going to concentrate on two democratic states with much in common, including shared history and values, but with distinct cultures and constitutional arrangements, namely the United Kingdom and Australia. Both states have, of course, had to confront the problem of terrorism, domestically and internationally, and both have turned to the independent Bar to undertake the scrutiny of existing or proposed legislation in this field. However, their approaches have been different, such differences extending, as we’ll hear, considerably beyond the language used to describe the two roles: Reviewer in the UK, Monitor in Australia.

This evening we’re very fortunate to have with us both a distinguished former occupant of the Australian position of Independent National Security Legislation Monitor, Professor James Renwick, and also the current Independent Reviewer of Terrorism Legislation in this country, Jonathan Hall KC.

Let me give them both the very briefest of introductions. James Renwick is on record as wanting first to be a poet. However, he took his father’s advice and turned to law. After working in government, he was called to the Bar in 1996 and developed a wide-ranging practice in constitutional, administrative, and commercial law. He became senior counsel in 2011, he has a doctorate in constitutional law from Sydney University, and since 2012 has been adjunct professor at the Australian National University in Canberra. He became Australia’s third Independent National Security Legislation Monitor in 2017, and served until 2020, issuing a number of reports on a wide range of topics during his tenure. I should add that he is a long-time naval reservist, and in 2019, was awarded the Conspicuous Service Cross.

Jonathan Hall was called to the Bar in 1994, took silk in 2014 and is a member of 6KBW College Hill. And like many able criminal practitioners, he has expanded his practice into the fields of public, and specifically national security, law. He was first appointed as the UK’s Independent Reviewer in 2019 and was reappointed earlier this year. He has published reports, articles, and responses on a wide variety of issues in addition to his annual reports – his most recent response being to the public consultation on the vexed topic of non-jury trials in Northern Ireland.

Jonathan Hall KC: I’m bound to say I approached this topic with neuralgic sensitivity, because as James Renwick will no doubt quickly and very justly point out, perhaps by reference to the unlawful prorogation of parliament under Boris Johnson, or the quick turnover of recent governments, that relying on convention and practice is rarely enough. And what he would be referring to is the difference between our roles, and certainly a difference that is important to lawyers. When he was the Reviewer, James not only had staff and premises, but he had a whole statute, the Independent National Security Legislation Monitor Act 2010, which defines his job and gave him powers to carry it out. The position here is very different.

A single section of the Terrorism Act 2006 requires the government to appoint a person who must deliver an annual report for eventual submission to parliament, and that’s it. So, the effectiveness of the Reviewer in the UK depends upon past practice and convention, and the relationship that each Reviewer has with the government, the police, parliament, the public, the media, and so on. The truth is that if I asked for secret information relevant to my job, and the government or the police refused to let me see it, I could not invoke a statutory power to compel them to do that. That is something that James could have done – I don’t know whether he ever had to do it, but he certainly had that arrow in his quiver.

The effectiveness of the Reviewer in the UK depends upon past practice and convention, and the relationship that each Reviewer has with the government, the police, parliament, the public, the media, and so on.

By contrast, I could only invoke the role itself, as it has become defined by Reviewers of the stature of Lord Carlile, who took the role on after 2000, Lord Anderson, and Max Hill, now the Director of Public Prosecutions (DPP). And I could say to the government: “Has it come to this? And how do you think parliament, or the media would respond if they found out that you were keeping things back from the terrorism Reviewer?” I haven’t had any problems, but that would be what I would have to fall back on.

I’ve mentioned the media twice now, and deliberately so. Having less formality, the UK Reviewer has been free to develop his/her role. When the first terrorism attack took place after my appointment in 2019, I remember requests for radio interviews coming in from the Radio 4 Today programme, and David Anderson texting me to say, “Over to you.” And it has become an outward-facing role. Very different from Australia. When I was appointed, I picked up the 3,000 or so Twitter followers that Max Hill had attracted since he took over from David, and like them I tweet about terrorism. That’s how Rory, I suspect, knows about what I said last week about non-jury trials. Very different from Australia.

In 2020, the government started to promote a series of counterterrorism Bills on terrorist offenders in prison and on release. And I was being asked for my views behind the scenes, but I thought: “If I have got views on legislation going through parliament, why not publish some of those views?” So, I’ve started the practice of publishing notes on counterterrorism legislation on my website, advertised via Twitter, and these are very frequently picked up and cited in parliamentary debates. Again, very different, I think, from Australia. Indeed, there’s no piece of counterterrorism legislation on the statute books, or counterterrorism Bill that’s currently presented to parliament, where an MP, or a Peer, or a parliamentary committee, or a journalist, or an NGO, or a member of the public, cannot in principle contact me and get, hopefully, an informed and certainly independent view. Of course, I’m not saying the UK system is perfect, and it wouldn’t be for everyone. Fundamentally, in the UK, it comes down to a simple duty to do an annual review of the terrorism Acts. This brings a sort of completeness in having to compile a 200-page document every year on how terrorism laws operate.

By contrast, I’ve noticed that the first Australian Monitor, Brett Walker SC, did lay down a comprehensive analysis of some of the more contentious Australian counterterrorism powers in his first annual report, and believe me, there were a lot. In 2019, researchers calculated that between 2002 and 2007 in Australia, a new counterterrorism law was passed every six or seven weeks. But since then, the annual reports of the Australian Monitor have shrunk to about 20 to 30 pages, not including annexes, setting out more or less what the Monitor has done in that year. In fact, over the last few years, it seems to me that the real function of the Australian Monitor is to produce reviews that are focused on particular topics. And I think that observation is consistent with the analysis by the academic Jessie Blackburn, who has written extensively about our respective roles.

So, the glory of James’s very distinguished three-year term was his review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. This was an Act that underpins their ability to do the spookier end of telecommunications spy work. It was an Act that, even when it was passed by the Australian Parliament, was known to be unsatisfactory because of a lack of parliamentary scrutiny, and it was passed to James to review after its enactment by this powerful intelligence committee. It’s a brilliant report, and I could also point out James’ fantastic review of sentencing of child terrorist offenders, or of citizenship loss, but there was, on his watch, no review of the whole landscape of terrorism legislation. So, I’ll end my remarks with a general comment and a mischievous comment.

The general comment is that the UK Reviewer, my role, is able to speak publicly and independently about terrorism generally, to inform the debate generally, and to inform debate specifically when bills are before parliament, whereas the Australian Monitor has more formal powers, but a narrower output. The mischievous comment, and this is where I’ll end, is that the Australian Monitor role may even have an adverse effect on Australian counterterrorism legislation, because the Australian Parliament knows that, after it is enacted, un-thought-through legislation, it could in principle, ask the Australian Monitor to pick up the pieces.

Dr James Renwick SC: Let me answer the question posed in the debate immediately. It is better to monitor than it is to review. It’s good to review, but it’s important to do both, not least because of the support each role gives to the other. So, may I immediately acknowledge with thanks the remarkable quartet of Reviewers, three of whom are here tonight, that you’ve had since 2001. Before coming to four key differences between the roles, all where I think we might have the edge, can I give you a couple of bits of context you may not be aware of, and one of them is that in Australia, it’s almost a pastime to see a problem and pass a law.

It is better to monitor than it is to review. It’s good to review, but it’s important to do both, not least because of the support each role gives to the other.

Since 9/11, we have passed over 130 counterterrorism and national security laws. I read with wry amusement what Lord Justice Haddon-Cave said last year that English law has become increasingly complex, unclear, and inaccessible. And then I looked at the figures: 50 to 70 statutes a year, admittedly some quite long, enacted in Britain. In Australia, we last passed about 70 laws in 1955. In recent years, we generally present over 200, sometimes up to 250 bills, and enact more than 150. So that’s one important difference, and it’s relevant to the question of whether you comment on bills.

Another substantive difference is that when you have a terrorist act which results in death, you punish it or you prosecute it as murder, whereas we prosecute it as terrorism. On the threat of terrorism, I agree there’s a risk of overstating it, but I think one thing we have in common is neither the Reviewer nor Monitor have ever been guilty of that. Whether you take radical Islamist terrorism, or the strange collection of people who make up extreme right-wing terrorist groups, they are not an existential threat to either nation. Whereas espionage and foreign interference are increasing threats to our nations. Of course, I’m not downplaying the horror of terrorism.

Coming then to the strengths of the Monitor role over that of the Reviewer. And I call in aid here the view of the French philosopher who once said, “Yes, yes, I know it works in practice, but the question is, does it work in principle?” It seems to me there are four advantages the Monitors have over the Reviewers.

The first, and critically, is: Monitors have public hearings and Reviewers don’t. And so, very simply, the format was you would announce an inquiry, you would invite submissions, and then you would quiz the agencies in a confidential session. The other thing, for those of you here who are interested in persuasion, and public policy, is the language of criticism. When I did a public hearing, I would set out my tentative views and say something like: “I’m inclined to think that the law does or doesn’t pass muster by reference to the statutory tests of proportionality, necessity, and proper protection of human rights.” And by using that not-so-confrontational language, I felt that was more effective.

The second advantage is not commenting on bills. You can see by the number of bills that if I and my predecessors had spent our time commenting on bills, we would have got nothing else done. And that’s just a function of how many are passed. The second point of practicality is the time between when a bill was introduced, and when it became law, has ever decreased over time. The Bali bombing in 2002: 88 Australians killed out of 200. It took six to nine months to pass through the legislative process. After the Christchurch attacks in more recent years – an Australian terrorist attacking people in mosques – we passed a law within a week, outlawing live streaming of terrorist attacks. And so, as a practical matter, even if the Monitor wanted to get involved in commenting on bills, you’d simply be run over.

Two other points: the power to obtain relevant material. I do think this is important, and it’s not just a matter of convention. Now, it is true I only once had a problem with an agency head who I thought was getting a little bit over-enthusiastic and suggesting he wouldn’t give me what I was entitled to. So, I said to him, “If what you’re saying is you want the comfort of a subpoena, I’m happy to give you one. Is that what you would like?” And he said, “Oh, we always comply with the law!” And I said, “Of course!”

So, it is actually useful to have those powers, and a good test is what the Republic of Ireland are looking at the minute. They’re proposing to set up an Examiner. I put in a submission saying I thought it was really important they had statutory powers. I think the current version of the Bill suggests the intelligence agencies in the Republic of Ireland could refuse to give the Examiner material. I think that’s a fundamental flaw, if that were to go forward. And it just seems to me that – and this is the point about convention – conventions sometimes do break down when you most need them.

And the fourth and final point is this: under the Monitor Act, the government had an obligation to publish, or to table in parliament, the public report. I could also do a secret report, which I did on a couple of occasions. But the public report had to be tabled within 14 days. A report was done. It was in the public debate. It got things moving. Here, as I understand the practice, the government tends to withhold the tabling of the report until it has also come up with its response. And it just seems to me there is a risk that that involves pulling the teeth out of the report. So, it seems to me, that as David
(Lord Anderson of Ipswich KC) said, respected independent regulators continue to play a vital and distinguished role, that in an age where trust depends on verification rather than reputation, trust by proxy isn’t enough. Hence the importance of clear law, fair procedures, rights compliance, and transparency. Exactly, I would say, and at least until that is done, it is better to monitor than review.

Respected independent regulators continue to play a vital and distinguished role, that in an age where trust depends on verification rather than reputation, trust by proxy isn’t enough. Hence the importance of clear law, fair procedures, rights compliance, and transparency.

For the full video recording: innertemple.org.uk/terrorlaws

Jonathan Hall KC 6KBW

Independent Reviewer of Terrorism Legislation

Dr James Renwick AM CSC SC

Former Independent National Security Legislation Monitor of Australia, Honorary Professor of Law at the Australian National University

Rory Phillips KC 3VB

Master of the Bench