Effective at What? How Effective Are Independent Reviews of Anti-Terror Laws?

Abstract

Offices of independent review have been established in the UK and Australia to oversee the two states’ anti-terrorism laws. The Independent Reviewer of Terrorism Legislation in the UK and the Australian Independent National Security Legislation Monitor share similar functions and objectives. The terms of reference for the UK’s Independent Reviewer can be found in a number of different sources, but have most recently been outlined by the Home Office: ‘the Independent Reviewer’s role is to monitor UK counterterrorism legislation for its fairness, effectiveness and proportionality.’ The office is described as providing ‘an important safeguard, informing the Parliamentary and public debate on counter-terrorism law and civil liberties.’ In Australia, the Independent Monitor’s terms of reference are laid out in statute. The Independent Monitor must review the operation, effectiveness and implications of Australia’s anti-terrorism laws in order to assist Ministers in ensuring that those laws are effective in deterring, preventing and responding to terrorism, are consistent with Australia’s international obligations, and contain appropriate safeguards for protecting the rights of individuals. Both offices must report annually and those reports must be tabled in the national parliament. The two offices have thus both been established to review the ongoing operation, effectiveness and human rights implications of the laws for the purpose of informing parliament’s anti-terrorism law-making. Analysis reveals that neither office has been particularly successful at doing so, raising questions as to the effectiveness of independent review as an accountability mechanism in the anti-terrorism context. However, this relies on the assumption that the test for ‘effectiveness’ is simply one of whether or not the two offices fulfil their terms of reference. This ignores other potential benefits that the offices may have. This paper therefore seeks to broaden the question of how effective offices of independent review are by examining alternative tests for ‘effectiveness’.

Biographical Note

Dr Jessie Blackbourn is a Research Fellow in the Centre for Socio-Legal Studies at the University of Oxford. She has previously been employed as a Lecturer in Politics and Human Rights at Kingston University, London and as a Postdoctoral Research Fellow on Professor George Williams’ Australian Research Council Laureate Fellowship project ‘Anti-Terror Laws and the Democratic Challenge’ in the Gilbert + Tobin Centre of Public Law at the University of New South Wales. Jessie’s research interest lies in the area of anti-terrorism law with a particular focus on oversight and review. Her manuscript Anti-Terrorism Laws and Normalising Northern Ireland was published by Routledge in 2014 and she has published a number of article in international peer reviewed journals, including the Modern Law Review, Statute Law Review, Parliamentary Affairs and Terrorism and Political Violence.