RUTH GREEN

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Europe’s counter-terrorism and information-sharing laws are keeping pace with today’s terrorism threat, according to the UK’s Independent Reviewer of Terrorism Legislation.

‘Europe is gradually getting its act together on national security and terrorism,’ says David Anderson QC, a silk at Brick Court Chambers who was appointed by the UK government in 2011 to review the country’s anti-terrorism laws, told Global Insight in an exclusive interview.

‘It's a slow business and we're by no means there yet, but some really useful things are coming along – databases whereby police forces can share information they have on subjects of interest; rules for example requiring airlines to provide in advance the details of people on their flights so that you know who to look out for when they land.’

David Anderson QC

Anderson also stresses the need for lawmakers across Europe to resist knee-jerk reactions to terrorist attacks in Paris, Istanbul and most recently in Brussels.

‘There’s always pressure to tighten up laws and I think it’s a great tribute to this country that in the five years after 2010 we’ve actually seen both an increasing threat but also less severe laws governing counter-terrorism,’ he says.

‘Experience has taught us the bits that are really useful and the bits that are not so useful, so we’ve seen, for example, ‘No Suspicion Stop and Search under the Terrorism Act’ being removed. A million people were stopped under that power in the ten years after 9/11. Nobody has been stopped under it since 2011 and frankly the police don’t miss it very much.

'So I think when these atrocities happen the important thing is to keep your head. Remember that what the terrorists want is an overreaction and that the best laws in the long run are those which are not only effective but seem to be fair.’

Richard Goldstone, Honorary President of the IBA Human Rights Institute and a member of the IBA’s Task Force on Terrorism, agrees that lawmakers should not pander to terrorists. ‘Perhaps the primary aim of the terrorists is to destroy democracy which is anathema to them,’ he says. ‘We should certainly not assist them.’

Julia Hall, also a member of the Task Force and an expert on counter-terrorism, criminal justice and human rights at Amnesty International, warns that, as history has shown, draconian state responses to violent attacks are often counter-productive:

‘They are often discriminatory, focusing on the Muslim community; they rely on vague definitions of what constitutes an act of terrorism or violent extremism; they put restrictions on freedom of expression, assembly and religion…they often end up creating a climate of fear and distrust… and they are also almost always divorced from foreign policy. If we have learned anything from the 9/11 attacks it is that over-responding in rights-abusive ways achieves very little and harms a lot of people.’

For Javaid Rehman, a Muslim professor specialising in Islamic Law at Brunel University in London, who also served on the Task Force, it’s vital that states do ‘not deviate from the established principles of dealing with counter-terrorism’.

However, he suggests that ISIS has presented a number of new challenges for Europe’s counter-terrorism laws:

‘ISIS-generated terrorism is sui generis in nature: the culture of radicalisation, extremism and terror-threat is intertwined and therefore must be addressed in this light,’ he says. ‘ISIS is deploying unconventional strategies and therefore there is an urgent need to counter these. Much more work needs to be done [to combat] the growing religious radicalisation.’

Although Anderson warns that the UK can’t be complacent in the face of the current terrorist threat, he highlights the country’s leading role in Europe in terms of intelligence-gathering in recent years:  

‘I do think there are two things that we do particularly well in this country – the first thing is that we integrate different forms of intelligence very well, that includes human intelligence, technical intercept and also the analysis of bulk data and so on. The other thing we do really well – and it seems to be a very difficult thing to imitate – is we have excellent relations between intelligence and police and they work very well together. That very often isn’t the case in other countries.’

Stronger together

However, Anderson believes such skills would be limited if the country were to vote to leave the European Union.

‘People say "Couldn’t the UK be a part of these things even if it was outside the EU?", to which the answer is, well, probably, but it wouldn’t necessarily be easy,’ he says.

‘For a start, the other member states would want to be assured that our standards of privacy protection were as strong as the standards they had within [the EU]. But even if we could be part of it, we could in future only be part of what the others negotiate.’

EU withdrawal would also likely reduce the UK’s legislative bargaining powers in Europe when it comes to counter-terrorism, says Anderson:  

‘One thing about British involvement over the past ten years or so is that we’ve been at the forefront – we’ve been the leaders, rather unusually, in Europe in developing the policies to deal with counter-terrorism and information exchange and so on. So we would have to take what we could get as associate members, whereas the current position is we’re actually making the policy and pushing the laws through.’

The UK’s prominent role in promoting the rule of law across Europe should also not be underestimated, he says.

‘I think we’ve been a big contributor to the Council of Europe system and to the European Court of Human Rights – we’ve provided great judges there, we’ve provided very interesting cases that have driven the case law along, and if our future in that organisation is now in doubt then in a way it’s because of the success of our own Human Rights Act,’ he says.

‘We patriated the European Convention, we gave our own judges the power to apply it directly in our own courts and of course our own judges are very familiar with conditions in these islands. Once you get to that stage, people start asking why exactly we need learned judges from Russia, Turkey, Moldova, France or wherever, to tell us where we’ve gone wrong and where we’re going right. That’s a political issue and it’s one that lawyers have a duty to address because nobody else will.

‘It seems the way you justify it is that they provide a bit of objectivity that perhaps even our own excellent judges don’t always have, but more to the point, it’s a way for us to contribute to a European rule of law which can apply right across the continent to 800 million people. And that I think is really important.’