Monitoring the activities of the secret state creates a conundrum. To be effective, a monitor needs to read and to know what is secret. But why should the monitor be believed, when the monitor’s reasoning cannot be shared with the public?
That conundrum is most familiar in the context of intelligence oversight, where the Shadow Home Secretary has recently made some interesting proposals for change. But as she indicated, part of the solution may lie in an older tradition: the independent review of the operation (by police, prosecutors, Ministers and others) of the anti-terrorism laws. Such review has been a feature of the landscape in the UK since 1978, and was adopted in Australia in 2010.
Independent review of terrorism legislation is founded, perhaps quaintly, on trust: the appointment of what was described to Parliament in 1984 as “a person whose reputation would lend authority to his conclusions, because some of the information that led him to his conclusions would not be published”.
A second important feature evolved during the tenure of Lord Carlile Q.C., from 2001-2011: what the Shadow Home Secretary described as a “public-facing form of oversight”. However penetrating a review may be, it can neither inform, reassure nor raise the alarm unless its conclusions are brought, forcibly if necessary, to the attention of Parliament and the general public. This means meeting the widest possible range of people, giving evidence to Select Committees and accepting a degree of media exposure.
Neither of these qualities would be worth anything without genuine independence. The Independent Reviewer must set out neither to torment the Government nor to defend it, but to give an informed and considered view. Though not a judge, he or she must always seek to act (in the words of the judicial oath) without fear or favour, affection or ill-will. Successive Reviewers, each of whom has performed the job on a part-time basis and without hope of advancement from Government, have in my perhaps not impartial opinion been well-endowed with this quality.
As the current Independent Reviewer of Terrorism Legislation, I have sought in this working paper, delivered as a lecture to the Statute Law Society on 24 February 2014, to explain the history and functions of the post. I have also traced some of the ways in which the post may affect the decisions made by Government. Topical case studies demonstrate how it may do so both directly and in conjunction with other channels of influence including, most importantly, Parliament and the courts.