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Still too much discretion when it comes to that 'terrorism' stuff, repeats David Anderson QC

2015 legislation review is laid before Parliament

By Alexander J Martin, 1 Dec 2016

There is still too much discretion in what the State is talking about when discussing terrorism, according to the outgoing independent reviewer of terrorism legislation.

Seeking to limit the growth of public suspicion regarding the State's increasing investigatory powers, it is still necessary to establish a proper definition of terrorism, said David Anderson, whose last annual report into the effects of terrorism legislation in 2015 [PDF] was presented to Parliament today.

Anderson noted that the legal definition of terrorism "remains over-broad". Section 1.1 of the Terrorism Act 2000 defines it as the use or threat of action "designed to influence the government..." which Anderson has repeatedly recommended be changed to "designed to compel, coerce or undermine the government..." with little progress.

Published mere days after the Investigatory Powers Bill was made Act by royal assent, though completed some time prior, Anderson's report describes the overall picture as being of "appropriately strong laws, responsibly implemented, less intrusive than six years ago and with a good recent record of surviving challenge against European human rights standards".

Anderson rejects "the false narrative of power-hungry security services, police insensitivity to community concerns, and laws constantly being ratcheted up to new levels of oppression". But, he acknowledges, "trust needs to be continually earned. Threats to our liberties can come at any time, and continued vigilance will be needed in the future".

The absence of recent fatal incidents in the UK reflects well on the security and intelligence agencies, on counter-terrorism policing, and on a criminal justice system which has shown itself equal to the task of prosecuting terrorists. It deserves to be well-publicised, if only as an antidote to the fear and division which it is the terrorist's principal aim to provoke.

Continued success "cannot be assured" however, warned Anderson. The use "by terrorist sympathisers of internet-based communications, including social media, is presenting major challenges for intelligence and law enforcement".

To penetrate a suspect's online life can offer ever-greater insight into their activities; but the spread of encryption, a long-standing trend accelerated since 2013 in reaction to Edward Snowden, means that access is often patchy.

Internet companies which may once have seen themselves as neutral carriers of content are coming to understand that it is incumbent on them also to edit that content: but it is a role with which not all are comfortable, and the process is fraught with difficulty.

To this end, greater resources are being given to the UK's security and intelligence agencies, and more spending promised on cyber security. As of 31 March 2015, Anderson reported that there were just over 12,000 staff at Blighty's security and intelligence agencies, with the most – 5,564 – being employed by GCHQ. The lion's share of the promised 1,900 additional personnel are expected to also head to the signals intelligence agency, though The Register has reported on the difficulties that the agency is having in recruiting suitable candidates.

Brexitisms

It should not be assumed that "Brexit will relieve the UK from the need for compliance with standards of privacy and data protection set out in EU legislation," wrote Anderson, who noted that "the tendency of EU jurisprudence to impose strong privacy-based limits on the use of data has been seen by UK courts as overkill, especially where public security is an issue".

Where privacy campaigners have stated their concerns about an excess of information flowing between EU member states and the UK, security agencies have warned about Brexit's disruptive effects on counter-terrorism collaborations between the UK and EU.

Earlier this year – a solid month before the story was picked up by the nationals – we reported how Europol's acting head of strategy warned that the UK would "certainly be cut off from the full intelligence picture" after Brexit.

Anderson reported that although "Brexit seems likely to end UK leadership in the formulation of EU security policy and laws, there are strong operational reasons for maintaining access to EU mechanisms that others may devise and develop".

On a legislative level the UK has driven through EU initiatives, including the controversial Passenger Name Records Directive. Rob Wainwright, formerly in charge of international operations for the UK's Serious and Organised Crime Agency, was described as being "an influential Director of Europol", but Anderson warned that "the UK's ability to lead European policy and promote European laws in the counter-terrorism field (as in other areas) will presumably diminish or disappear should Brexit become a reality".

But there are strong operational reasons for maintaining access to EU mechanisms that others may devise. Brexit will not alter the fact that as crime (including terrorist crime) crosses borders with increasing ease, the same must be true of the information and resources that are needed by those who fight it.

Keep calm and carry on

The UK "escaped largely unscathed in 2015 from, by recent standards, a particularly bad year for terrorism in Western Europe" wrote Anderson, adding that "the threat remains severe: attack plots continue to be disrupted, and (in Northern Ireland) to get through".

The threat level to the UK has been "severe" since 29 August 2014, and since the use of the alert states began, the country has officially never been considered at a normal state according to MI5's history of threat levels.

Despite this, outside Northern Ireland, there have only been two deaths in the UK from terrorist attacks in the last 11 years, since the 52 people (not including the bombers) killed in the 7/7 London attacks of 2005. This record is "impressive", said Anderson, noting how the former presence in London of proselytisers such as Abu Hamza, Abu Qatada and Omar Bakri Mohammed had earned it a reputation as "the heart of the jihadi sub-culture in Europe".

Despite this relative domestic quiet, with six terrorist attacks in the UK disrupted during 2015, 34 Britons were killed in terrorist attacks abroad during the year, including 30 at the beach resort of Sousse in Tunisia in June of that year, and four others in both Afghanistan and France.

Exeunt

Anderson has in total completed five annual reports into the UK's terrorism legislation, which extend now to almost 600 pages of text. He made 47 recommendations, some of which were accepted by Government and some of which were not. Those he again repeated, "not in the expectation that they will be adopted in the short term, but as a marker of my position after six years of independent review".

Anderson finished: "It has been an honour to exercise the responsibilities of the Independent Reviewer. I look forward to passing them on to a successor who will bring fresh qualities and insights to the role."®

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