This project has now been completed and the primary output is a modestly-priced book entitled Accountability and Review in the Counter-Terrorist State, published by Bristol University Press in December 2019. A short, policy-facing report can be accessed online here.
Key Findings
1. Counter-terrorism review actors conceptualise review as an accountability mechanism. Across the counter-terrorism review assemblage there is broad agreement that counter-terrorism review has the following purposes:
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- assessing levels of terrorism threat and the adequacy of any response;
- scrutinising the justification, necessity, and proportionality of counter-terrorism law and policy;
- analysing the lawfulness of individual counter-terrorism decisions and actions;
- identifying and challenging flaws, discrimination, and procedural unfairness in practice;
- evaluating effectiveness, identifying areas for improvement, and informing Parliament.
2. Counter-terrorism review is undertaken by an assemblage of actors among which there is at times an informal division of labour. This creates competition as well as cooperation, with competition often driven by government recognition or engagement with some actors to the exclusion of others. Actors that are favoured by government often have access to sensitive security material and are thus considered to better understand the challenges of counter-terrorism. In some cases, those privileged
reviewers including the Independent Reviewer of Terrorism Legislation, act deliberately to pluralise their evidence by engaging with both communities and other counter-terrorism review actors. In this way, more dominant counter-terrorism review actors can amplify marginalised voices and forms evidence, but whether this happens largely depends on the mindset and decisions of the reviewer in question.
3. However, counter-terrorism review is not comprehensive. Many areas of the UK’s counter-terrorism law, policy and practices remain under- or un-reviewed by the counter-terrorism review assemblage. Furthermore, whilst the various counter-terrorism review mechanisms within the assemblage can (or are mandated to) evaluate counter-terrorism against a variety of legal, political, social or economic standards, in practice reviews tend to evaluate counter-terrorism against a relatively narrow range of standards relating primarily to lawfulness and operational effectiveness. For most counter-terrorism review mechanisms, there is far less focus on qualitative questions of societal impact and unforeseen consequences.
4. The impact of a review can depend on a variety of factors. The perceived status and modes of operation of a review mechanism are important with mechanisms that government particularly values being most impactful. The form of review is also important: a judgment from a court is particularly strong as it must be complied with, for example, and may have broader policy and systemic impacts. Time and timing are important. If a review takes place too quickly after the introduction of a measure there may not be sufficient evidence for rigorous evaluation, whereas if the review takes place too long after a measure has been introduced, it may have become so embedded that the practical challenges of revising or changing it seem almost insurmountable. Finally, pragmatism and pitch are important. Government tends to ignore reviews that call for wholesale change or challenge fundamental propositions of the counter-terrorist state.
5. Counter-terrorism review is susceptible to cynical deployment by government, with terms of reference, mandates, offices, and reviews being framed, established, accepted, ignored, published (or not), and acted upon (or not) largely only if and when the government considers it desirable to do so.
Structural Challenges to Counter-Terrorism Review
Although counter-terrorism review is quite effective as an accountability mechanism, it is constrained by structural challenges of state disposition towards counter-terrorism and security. Maximising accountability through counter-terrorism requires a dispositional shift in the counter-terrorist state. Four structural challenges are particularly pertinent. First, the secret state endures. Counter-terrorism review takes place in a context of information asymmetry in which the state has the monopoly on much key information. Thus, counter-terrorism review is partly dependent on state willingness to make information and actors available to review mechanisms. Second, the executive maintains controlover the triggering, mandate, appointment, reception and implementation of many review mechanisms and, through its disposition towards reviewers, can create impactful hierarchies within the counter-terrorism review assemblage. Third, Parliament does not maximise its accountability-enhancing role in the counter-terrorist state. For example, parliament tends not to push back when reporting is statistical rather than evaluative, there is a notable hegemonic consensus across Parliament on the fundamental propositions of the counter-terrorist state, and opportunities for meaningful parliamentary review are often poorly attended, insufficiently rigorous, and lacking in evaluative content. Finally, there is an absence of trust between the state and much of the counter-terrorism review assemblage, so that meaningful evaluation may be received as subversive and threatening rather than a critical component of accountability in the counter-terrorist state.
Conclusions
Optimising accountability in the counter-terrorist state requires more than the stabilisation, or in some cases reform, of counter-terrorism review mechanisms. It requires a fundamental shift in how we think about counter-terrorism in the contemporary state. The state must be willing to revisit core propositions about counter-terrorism. Review actors must be mandated to ask fundamental questions about counter-terrorism and, where they do ask them, their conclusions must be listened to, even if reform is ultimately not pursued. The value of pluralism within the counter-terrorism review assemblage must be recognised. Government must be willing to hear more voices and more perspectives, to recognise the importance of qualitative evidence to understanding the impact and potential effectiveness of counter-terrorism, and to acknowledge the expertise of civil society actors whose evidence base emanates from engagement in the everyday cultural and social life of counter-terrorism in our communities. For this to be possible, the politics of counter-terrorism must also change. The hegemonic consensus that underpins the counter-terrorist state must be disrupted so that the political costs of long-term thinking in counter-terrorism, of changing tack, and of demonstrating reflexivity are reduced.
Reviews of the Book
”Democracy requires intrusive state powers, used on the basis of secret intelligence, to be subject to strong independent review. This book helps define what that review should look like.” Lord Anderson of Ipswich, former Independent Reviewer of Terrorism Legislation
“This fine treatise fills a gap in national security scholarship. The authors benchmark UK experience with national security accountability review comprehensively and in a manner that allows lessons to be learned by others.” Craig Forcese, University of Ottawa
”When does review of the permanent and sprawling structures of the counter-terrorist state become a tool of legitimation rather than a tool of accountability? This important work grapples with this key question.” John Ip, University of Auckland
”A succinct and detailed analysis of our new counter-terrorism laws, one that gets under their skin in a highly readable way – a spirited account of a dispiriting story about how difficult it is to halt this anti-extremism juggernaut.” Conor Gearty, London School of Economics
”This book breaks ground by comprehensively analysing various modes of scrutinizing counter-terrorism law, policy and practice, including judicial, governmental, legislative and civil society mechanisms. The capacious understanding and fair-minded, actionable critique of ‘counter-terrorism review’ that the authors develop will prove useful to governments, researchers and NGOs in the UK and internationally.” Surabhi Chopra, Chinese University of Hong Kong