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David Anderson QC, UK's Independent Reviewer of Terrorism Legislation - webcast
With access to state secrets but working independent of government, David Anderson scrutinises the UK’s counter-terrorism laws and helps inform the public debate on surveillance and civil liberties. Interviewed for the IBA by the BBC’s Sally Bundock, he unpicks the controversial new Investigatory Powers Act and considers the future of intelligence and data sharing.
SB (Sally Bundock, interviewer): Hello and a very warm welcome to this live webcast from the headquarters of the International Bar Association in London. I’m Sally Bundock and I’m joined today by David Anderson, QC, who is a lawyer with a very long and impressive CV, but for the purpose of today’s discussion we’re going to focus on his role as the independent reviewer of terrorism legislation here in the UK and we would like you to be involved in this conversation, so during our chat please do send us your questions and I will put them to David for you. So, David, if we get started with the job itself, it’s quite a big role, a very important role here in the UK. Tell us a bit more about it. How does it work?
DA (David Anderson, interviewee): Well, the job has existed for about 40 years and it was something that Parliament really required because when it was first asked to enact laws about terrorism, it said reasonably enough, we’re not security-cleared, we can’t really tell how those laws are being operated, so if you want us to keep on passing these laws and renewing them when they expire, can you please provide us with someone we trust who can look into how they operate, report to Parliament, and indeed report to the public as well?
So, what they do is… they take a completely independent… it’s a lawyer these days. They basically take him or her off the street. They clear them right up to the top level so you can read absolutely everything relevant to the job. You can talk to absolutely anybody who is concerned with anti-terrorism law both on the enforcement side and also on the other side. So, I talk quite a lot for example to terrorist suspects, to community groups…
I spend quite a bit of time in Northern Ireland and everything I observe I try and report on every year. I’ve actually got my annual report coming out tomorrow.
SB: I was going to say… because when you say, the role was created some 40 years odd, presumably it was the conflict in Northern Ireland, the threat from there that was the key element.
DA: Yes. It was when the Irish bombings came to England in the mid-seventies that it was decided we needed counter-terrorism laws in Great Britain as well as in Northern Ireland and it was at that point that somebody was appointed to look at them.
SB: So, you were approached in 2011?
SB: 2010; sorry. So, talk us through it.
DA: Well, it was a complete surprise to me. I knew nothing about the secret world or the security world. I was actually preparing my case for court the next day, sitting in chambers, minding my own business, and my clerk phoned up with the news that there were three men wanting my advice from the Home Office and I thought, well, that’s strange, I never advised the Home Office on anything, but it was said they were very insistent. There were no papers. It would only take a few minutes. And so I was intrigued. I asked them up and it turned out that they’d got there by subterfuge. They didn’t want my advice. They wanted to offer me the job which the Home Secretary had decided I would be a good person to do.
SB: And did you think long and hard about it or was it something you just thought, yes, it’s an amazing opportunity?
DA: It sounded really appealing and the reason for that is that ten or 12 years ago now I was a human rights monitor for the Council of Europe. So, I travelled to places like Russia, Ukraine, Georgia, Turkey, monitoring the freedom of the media – similar thing: talking to a very wide range of people, reporting back to the Committee of Ministers – and I thought, well, it sounds a bit like that.
SB: And presumably at the time the Home Secretary was Theresa May. Is that right?
DA: Indeed. Yes.
SB: So, she was Home Secretary from 2010 to 2016 and now Prime Minister. What has changed in that time and during that time of which you were the Independent Reviewer; in terms of terrorism, I mean, and the law?
DA: Well, the terrorism threat has increased considerably. It was beginning to look in 2010-2011 as though we were over the worst. We’d had these big plots in Madrid and in London halfway through the previous decade – 2004-2005 – but there hadn’t really been anything on that scale since about 2007.
Sadly – as we all know – that went into reverse. We had the rise of ISIS from about 2012. We’ve had unprecedented numbers of young Europeans – indeed, people from all over the world – going out there to fight and we’re beginning to see what happens when some of those people come back, but oddly, the law has gone in the other direction and I think that’s rather a good thing about the way things have been done in the UK.
The laws that I’m reviewing now are less intrusive than they were six years ago and I think they’re better attuned to the task in hand. I’d love to take the credit for that, but I think the real reason is that a government was elected in 2010 – a coalition government – which didn’t agree on everything, but one of the things they agreed on was that the terrorism laws we then had in force were too intrusive.
So, they were both committed to rolling them back and that’s what they did. So, we’ve seen much lower maximum detention times for terrorist suspects. We’ve seen executive orders being made more difficult to obtain. We’ve seen a no-suspicion stop-and-search power simply repealed, so people aren’t stopped anymore on the street without suspicion. We’ve seen much better safeguards placed on the powers exercised at ports and I could go on. I mean, there have been quite a lot of sensible changes which I don't think have left us any less safe but which have made the laws a bit more proportionate.
SB: Do you think that because of the rollback, because the law has been less intrusive, we haven’t had perhaps terrible events taking place in the UK? Do you think that the two go together; i.e. the terrorism threat has gone up, but we haven’t actually seen major events here like – for example – France has, Brussels has, Turkey has?
DA: Well, we have been lucky. I think our forces have also been quite skilful, but there’s definitely an element of luck involved.
SB: So, it’s not about… it’s not a cultural issue. It’s not how we handle the issue of terrorism here in terms of the law.
DA: I think you can point to cultural factors, but you’ve got to be careful when you do that because in 2012 we were all looking to France and saying, how wonderful, they haven’t had an Islamist attack for 16 years, how do they do it?
Now of course the boot’s on the other foot and I think we, you know… we have done well over the last few years. During the time I’ve been Independent Reviewer, in the United Kingdom we’ve seen only one person killed by Islamist terrorists and we’ve seen two killed by far-right terrorists; most recently the MP Jo Cox who was killed last June.
We have seen a lot of plots, but they have not come to fruition and I think one reason for that is, we’ve got excellent intelligence. Another reason is, we have very good relations between intelligence and police and that’s something which most other countries find it very difficult to emulate.
SB: Well, I was going to say, both France and Belgium were criticised after the terrorism attacks that they endured this year about their intelligence systems and services and also how they work together, police force, intelligence services, etc. Was that fair, do you think?
DA: I’m sure it was fair and the US was criticised in much the same way after 9/11. I mean, maybe this is not because Brits are inherently better at these things. It may be because we had our wakeup call earlier than the French and the Belgians. We had it on the 7th of July 2005 when 52 people were killed by bombs on public transport in London and that really was the signal for an overhaul of the way we do these things and the way we arrange our counter-terrorism policing and intelligence and indeed the content of our laws.
SB: Now, social media, the Internet, what’s happening online is playing a huge role, isn’t it, in terms of terrorism today. In the time that you’ve been in this role since 2010-11, you know, how important has digital intelligence become, say, compared to human intelligence?
DA: Human intelligence is in a way always the best and it’s still very useful. You’ve only got to look at the way the Islamic State so-called are behaving. The number of spies or suspected spies that they are executing, to see how worried they are about infiltration by human spies… and we saw very much the same thing in Northern Ireland and I think a major reason why republican terrorism collapsed in the nineties was because they were all so worried about human infiltration that they began simply not to trust each other, but inevitably – particularly when you’re looking at a theatre a long way from home and a place that could be very difficult for human agents to penetrate or very dangerous for human agents to penetrate – digital intelligence is hugely important and I did a report this summer in which I looked at some of these bulk techniques for collecting people’s metadata in particular in bulk and I set out some very concrete ways in which that was useful; for example, for cyber-defence, in support of armed forces in warfare, and also for fighting child exploitation, terrorism, and so on.
SB: But where is the law in the debate about people’s privacy and the gathering of information and data? For example, of course it was a huge story, wasn’t it, when Apple was in a battle with the FBI. The FBI wanted details from the San Bernardino killer’s Apple devices. Apple was saying, no, we’re not handing it over.
DA: Well, this is where the debate has been in the last two or three years and it was kicked off of course by Edward Snowden. Now, I don’t condone what Edward Snowden did, but I think one has to credit the theft of those documents and the publication of those documents for really kick-starting the debate not just on privacy versus security but more fundamentally than that. Are we the people able to see and to know the nature of the powers that are liable to be used against us? And what we’ve seen in this country partly as a consequence of a report I was asked to write for the Prime Minister is a huge new Act of Parliament. It actually was finally enacted only yesterday when it got royal assent – which discloses for the first time the sort of powers that police and intelligence agencies have actually been using for years. It safeguards them much better and it also introduces one new power which was quite controversial but which in the end Parliament decided to enact.
SB: So, this is the Investigatory Powers Act, isn’t it, that you’re referring to?
SB: So, what’s that new power, then?
DA: Well, the new power is a power which is greeted with incredulity in North America and which no one in Europe has tried before except the Danes. They tried it in Denmark a few years ago but don’t do it anymore and that is the power to require – for example – broadband providers to keep a log of everybody’s Internet activity for up to a year. Now, you don’t log anything that they’re actually saying on the Internet. You’re not logging what they’re actually buying or anything of that kind nor are you even logging the pages that they’re on, but you are looking at all the websites they’ve been on and you’re storing that for 12 months so that if there is a serious crime – and it has to be a serious crime being investigated – then authorisations can be sought by the police to access that information. What the police say is, they’re simply updating the retention of telephone logs, which is something that has been a part of the landscape for a long time. They say, because people nowadays don’t just speak on the phone – they communicate by Internet services – we need to update the powers as well. Opponents of the power say, well, we do a lot more on the Internet than we ever used to do on the phone and this is simply too intrusive and shouldn’t be tolerated. Parliament looked at all that, weighed it all up, and decided to go with it. What about the issue of virtual private networks? Does the act address that issue or not? I think anyone who knows anything about this subject appreciates that you can get round some of these measures by various techniques and a very simple one… you don’t have to be an expert in the dark web, but a very simple one that probably a lot of us lawyers use in our everyday life is the virtual private network. You could easily make the objection that a sophisticated criminal is liable to do that. Or an organisation… Or an organisation… one answer to that is, well, sophisticated burglars wear gloves, but it’s surprising how useful fingerprint databases still are. Most criminals are not perfect criminals. A lot of people do leave traces of that kind. They don’t remember to use a VPN every time and the assessment of law enforcement is that this would be a useful tool to have. Whether it’s worth the expense and the risk of data breaches we’ll have to see. But how – across all of this – do you believe is the business community in terms of, you know, providers of broadband, providers of all these services, digital services in terms of their exposure and their responsibility as far as the law is concerned? Well, I spoke to a lot of them of course when I was doing my big report on this, A Question of Trust, and they were very concerned about two things. Of course they were concerned about money – who was going to pay for all this – to which the answer is, it’ll be the taxpayer, but they were also concerned about privacy. They saw a lot of the fallout of Snowden when it was suggested that they had been collaborating particularly with the US government in things that their customers didn’t know about. That made them very keen to ensure that in any new regime there were proper safeguards for people’s privacy and actually of all the people I spoke to apart from the human rights groups it was the service providers who were the strongest in relation to privacy. Now, you can be cynical. You can say it’s motivated by commercial factors. Mark Zuckerberg was saying in 2010, privacy is dead. Facebook have definitely now changed their tune on that, but certainly they were one of the factors pushing strongly for proper human rights-compliant safeguards on these powers of the state. It’s a very interesting area and I would imagine for companies… it could be a legal minefield for them in a way, especially for small and medium-size companies who don’t necessarily have, you know, the legal teams to sort of wade through it all really. Yes, and I spoke to some very small Internet start-ups particularly on the west coast of the US and there you have a legal culture which is very much anti-state. It’s a privacy culture. It’s a freedom culture and there are people there who really don’t understand why it should be their duty to cooperate with law enforcement. You mentioned the Apple FBI case. I think an interesting contrast is when you look at the banks. Now, banks of course are also very jealous guardians of their customers’ privacy and absolutely right that they should be, but certainly in my experience, if law enforcement comes to a bank and says, we really need to know what was going through this account because we think there was trafficking going on or there was terrorism being funded, the banks will comply without hesitation. The same is not true of all the communications service providers. It’s quite a tricky area. That’s for sure. It’s quite interesting that obviously we refer to Theresa May being Home Secretary when you were appointed as it were. She’s now Prime Minister, but one of the huge frustrations for her during her tenure as Home Secretary was two cases: the extradition of the cleric Abu Hamza and the other one Abu Qatada; Abu Qatada to Jordan, Abu Hamza to the United States. It took a heck of a long time. Very controversial at the time in the media, a lot of uproar about why these two individuals could not be sent to wherever… just talk us through what was at stake there because it’s complicated cases. In the case of Abu Qatada, issues of perhaps, you know, persecution if he went to Jordan… Yes. I mean, at the root of it was the right that we all have as human beings not to be tortured, not to be subject to inhuman and degrading treatment, and that’s what both these men said was going to happen to them. Abu Qatada in particular said he was going to be tortured in Jordan. He also said that if he was put on trial in Jordan – as eventually he was – there was a risk that he would be convicted on the basis of evidence obtained from other people by torture and first the English Court of Appeal and then Following that – the European Court of Human Rights said, well, we’re not saying you can’t send him back, but you need to make sure you have credible assurances from the King of Jordan and the government of Jordan that this torture evidence is not going to be used in this way and that Abu Qatada is not going to be tortured. Theresa May went out to Jordan and she made an agreement with the king. That agreement was good enough for the courts and Abu Qatada was in the end sent back to Jordan and put on trial where he was acquitted. So, she got rid of them both and she did so in compliance with the rule of law. I’m afraid it did take a long time. It took years and years and it cost a fortune as well. It did take years and it cost a fortune and these things are often in England blamed on Europe and on the European Convention of Human Rights and the European Court of Human Rights. All I would say about that is, well, yes, some of these cases do take a long time. They take too long. It’s a great shame that that court… Is it an example of the law not working? Well, I think it’s an example actually of the contracting states not funding the court better. It’s also a function of the fact that – as all lawyers know – any test case is going to take a long time and you hope the subsequent cases will be shorter. I mean, on the subject of Europe and the European Court of Human Rights, of course that’s an area of your, you know, expertise. You worked extensively there. What does Brexit mean from the point of view of terrorism, working with Europe, and also with the European Court of Human Rights, do you think? Well, it won’t strictly affect the European Court of Human Rights because of course that’s not an organ of the EU and there’s a separate question of whether the UK stays part of that and at the moment the understanding is that it will. So far as the EU is concerned, the EU has really been getting its act together on terrorism. I’m afraid it tends to take something dramatic happening. So, after 9/11 we got the European Arrest Warrant, which is a sort of instant extradition within Europe. After Madrid in 2004 and London a year later we got rules requiring certain basic telecoms data to be retained for the purposes of investigation. And then most recently after Paris in November of last year we got a very useful power to see the passenger name records that allow you to see who is on an incoming flight and not only who they are but how they bought their ticket, who they’re travelling with, how much luggage they’ve got, which helps you decide who – if anyone – you might want to stop and question at the port. Now, those are all good things. They’ve been quite hard-won over the years and actually the UK has been in the lead on most of them. We’ve been the country pushing hardest for them and I think a lot of our partners are a bit mystified that we want at this stage to be pulling out. I think what pretty much everyone in the UK agrees with – whatever they think about Europe in general – is that these are valuable arrangements and that we should try and stay part of them as closely as we can in the future just as some other non-EU member states are associate members – for example – of Europol. That or something better than that is something that we’ll be aiming for in the negotiation. So, in terms of intelligence-gathering, data-sharing across the continent, that should probably continue. Yes. At the highest level, the GCHQ, MI6-type intelligence… that is – generally speaking – shared on a bilateral basis with trusted partners. That’s not going to change, but police intelligence, knowing exactly which European jihadis are on their way to Syria or on their way back irrespective of which country they come from, obviously a very useful thing… that does depend on European mechanisms and I think it’s in everyone’s interest that those should remain and continue to be developed. It’s unclear, though, whether the UK will choose to remain a part of Europol after it leaves the EU. It has just opted into a new intelligence-sharing programme as you were discussing. From a security perspective, what impact would leaving the agency have – if we were to do that – on the exchange of information? Well, Europol doesn’t arrest anybody, but it coordinates intelligence and it coordinates action. Now, if it’s something, say, across the Irish-Northern Irish border, that might be something you just choose to do bilaterally with the Irish government, but if it’s more complicated than that – and a lot of things are – then Europol is extremely useful. It has been run extremely well by a British director for the last several years. I would very much assume that the UK wants to stay part of that to the extent that it can. Let’s bring in some questions now from people who are watching us at the moment on the webcast. So, from the UK: why don’t you think politicians share the concerns of privacy campaigners, Internet service providers in the tech industry about the act? This being the Investigatory Powers Act… Okay. Well, what I’d say about the act and Parliament is that it had the most careful scrutiny that anyone in Parliament can remember any act receiving; certainly for the last 20 or 30 years. Now, that included reports by seven Committees of Parliament and there is a view out there and there is some truth in it that a lot of MPs don’t have much technical knowledge and don’t really understand the full ramifications of this, but nonetheless you had seven committees reporting. Only one of them… just one of them had more than 2,300 pages of written and oral evidence before it and a lot of that came from tech companies, a lot of it came from privacy NGOs, and so on. So, I think one has to accept there has been a democratic process. Some politicians at least have understood at least in our clime [? 00:22:14] what is going on and – as politicians are supposed to do – they have responded not only to NGOs who have very strong views but also to the mood of the electorate more generally and I would say that that’s what they’ve done in enacting this bill. All right. And on the same act, the Investigatory Powers Act… from France: does it introduce any new offences to punish those who misuse surveillance powers? Yes. It does tighten up that position. One thing we already do very well in this country is review of the way surveillance powers were used after the event. We have very senior former judges with teams of technical inspectors who go into the systems, analyse what happened, and bring errors to public attention, but certainly the penalties have been toughened and the other thing we’ve seen is a much stronger warranting regime. So, in advance, no warrant now is going to enter into force without the approval of a judge, which is something of course they’ve done for a while in the US, in Canada, in some European countries. We’ve now gone in that direction as well. Okay. And this one you have answered in part actually. From the United States, this particular viewer is saying, do you think MPs reviewing the bill have the sufficient technological understanding and understood how intrusive this act is? You kind of touched on that to a degree already. Well, of course they didn’t all understand all the techniques that were being used, but I think the privacy groups and the human rights groups had every conceivable opportunity to put their views across and indeed in my report, which was one of the blueprints for the bill, my very first chapter was privacy and I wanted to get that upfront and make sure that people understood the importance of the principle and the ways in which it could be infringed, but the reality is… different people will want to strike this balance in a different way. Most people in this country have a degree of trust in our intelligence agencies. Now, there may be historical reasons for that. We didn’t have a Gestapo. We didn’t have a Stasi. We had Bletchley Park and we have the fictional James Bond. Now, whatever the rights and wrongs of that, there is – I think – a degree of trust in what they do and if you can support that with really strong safeguards and particularly judicial safeguards and you know that if they step out of line, they’re going to be hauled into court… and we’re seeing that a lot. We’re seeing a lot of cases… people are now bringing against intelligence agencies, which was something that was unheard of a few years ago. Well, that is a deal that most people are prepared to accept. Some would argue, a healthier system… a much healthier system… Well, it’s certainly healthier that it’s transparent. It’s all out in the open and it’s healthy that there are better safeguards and I think where the privacy people maybe weren’t able to convince MPs to their way of looking at the world was that it was quite difficult actually to point to someone whose life has been ruined by this kind of, you know… it was referred to as mass surveillance. I don't think that’s accurate at all because there is no question of the whole population being under surveillance, but certainly there are algorithms looking for patterns in our communications, trying to work out where the cyber-threat is coming from, where there might be a cell of terrorists in some sort of closed network, and most people are prepared to accept that that’s quite a good thing. They don’t see it as a huge intrusion into their privacy. They don’t see lives being ruined by it, but they do see the benefits at the end of the day. We saw… earlier this week you might have seen Abrini, the man in the hat, who was a Belgian terror suspect who was photographed in Brussels Airport just before the attacks there. He was being questioned before an English court. Were they planning an attack in England? No, he said, your surveillance is too good. Well, whether he was right or wrong about that and whether he was sincere or not about what he said, I think people do pick up on that and they understand that if you have strong surveillance, not only do you stand a better chance of keeping us safe, but you may also be able to avoid some of the other intrusive measures that are an alternative. When we look at France, the terrible attacks they’ve had there, and we look at the state of emergency… we have warrantless searches. We have curfew. We have house arrest been going on in France now for a year and I think a lot of people would say, well, we would rather do what we can to head this sort of thing off at the source. And it’s not just about terrorism. It’s about paedophile rings, it’s about organised crime, and it’s very much about the cyber-threat from state actors. Well, interesting, because this is the next question from here in the UK: is there any evidence that the bulk data sweeps have actually thwarted a terrorist attack? Well, thanks for the question. I did a report in August of this year. It's on my website. If you just Google, Independent Reviewer of Terrorism, you’ll find that among the reports is a report called Bulk Powers Review. I spent three months basically this summer with a team of experts – a technological expert, a police investigator – looking at how they had actually used the bulk powers and we came up with 60 or 70 case studies in which we demonstrated how use of them was productive. Now, we looked not just at the examples presented to us. We also got to interrogate the analysts, the desk officers… we got into the systems to observe what they’d actually been doing online. We checked that with the contemporaneous intelligence reports to check they really were getting these results from these techniques and then we also looked – at my insistence – on the internal documents circulating within GCHQ and MI6 and MI5; documents they never thought anyone outside those institutions was going to read, from which it was obvious that they did discern utility in these powers; some more than others. They certainly made some wrong turnings in terms of trying techniques that perhaps weren’t as productive as they thought, but we concluded overall that regardless of whether you think these powers are a good thing or not when you look at them in the round, they are most certainly useful including against terrorism. And what’s the response like, you know, at GCHQ and MI5 when you knock on the door and say, we want to look at all your internal documents and gather information and data on to what extent these bulk sweeps are working? Well, I’d been asked to do it by the Prime Minister. The circumstances are very high-profile and I wrote to the director of each agency right at the start and said, I’ve been told to do this to an ambitious timescale. As far as I’m concerned, the burden of proof is on you and you are going to have to persuade me that these powers are useful. If you mess around by withholding documents from me or by giving me a partial account of things, then you are going to be the losers of that because you will have failed to convince me that these powers are useful. They felt – I suspect – that on this issue they had a very strong story to tell and so their cooperation was exemplary. [Overtalking] But of course you can’t take that for granted. There was another report into the activities of the agencies recently in relation to a man called Adebolajo, who was one of the killers of drummer Lee Rigby in 2013, and the judge who was conducting that report said that he didn’t get the cooperation that he would have hoped for right across the range of what he was doing, so you have to keep a constant eye on them, but on this particular subject they plainly had a strong story to tell. It was in their interest to cooperate fully and I believe they did. Do they… we all assume they want more powers than they are given by the law. You know, I certainly would have assumed that. I mean, I came into this world will probably the same prejudices as anybody else. What made me think again about that was the 2012 Olympics which we had in London and I would have thought that that would be a heaven-sent opportunity for any spy or any police force that wanted new powers because all they would need to say is, you know, all the world’s head of states are coming to London. The Americans are going to insist on this. The Israelis are going to insist on that. We absolutely must have that power. It’s a remarkable thing that we got through the Olympic Games without any new powers at all apart from a no-fly zone over the Olympic Park and – more than that – without any new powers even being requested and – more than that – in the year before the Olympics we got rid of the no-suspicion stop-and-search power and we ended a power of relocation which meant that some very dangerous suspected terrorists were actually brought back to London from other parts of England where they’d been living. So, I thought that was quite impressive. Now, of course, these agencies, you know… one has to keep an eye on them and a very careful eye on them and there may well be people within them who are hungry for more, but in my experience at least they are acutely conscious not least on costs grounds. You know, if you get a new power that isn’t actually that useful, you’ve wasted an awful lot of time building the hardware, writing the software, training people to use it, and if at the end of the day it’s not going to pay dividends, you’ve wasted budget that you might more usefully spend somewhere else. So, I think that as well acts as an inhibiting factor though it in no way takes away from the responsibility of Parliament and indeed of people like me to keep a close eye on them and make sure that they’re not pulling a fast one. Right. We have more questions, so that’s great. Thank you so much. They’re coming in thick and fast. This one from Germany: with various legal challenges relating to data retention and hacking going through the UK courts, will the act need to be amended soon? We’re talking about the same one. The Investigatory Powers Act is getting a lot of questions. Well, hello, Germany. I will be giving evidence in the Bundestag on this subject tomorrow and I think the answer to your question will be known on the 21st of December when we get the judgment of the European Court of Justice in the case that was brought by Tom Watson and David Davis, now a government minister, although he withdrew from the case when that happened. That – I think – will decide whether the act goes far enough in terms of providing for independent authorisation of requests for data and also in terms of the seriousness of the crime that there needs to be before you can use some of these powers. So, I think we’ll have to wait until then before we know the answer. Okay. And do you think the Investigatory Powers Act – again from the UK – is proof against future legal challenge? No. As a nation we are very keen on legal challenge. Every coercive power… [Unclear] We do and some of us literally – me not so much for the last five or six years – but every coercive power is tested in court. I have no doubt at all that an NGO will bring a legal challenge to aspects of the Investigatory Powers Act. That will be… Well, they’re bound to, aren’t they? Yes, and it will be – if necessary – referred to the European Court of Justice and if all else fails in the UK, then it will be taken to Strasbourg and that is absolutely how things are in this country and I would say it’s how things should be, but then I am a European lawyer myself. Now, another one from the United States: given the need for a transactional… sorry; transnational cooperation and data-sharing as well as the implications of international human rights obligations, what difficulties or benefits do you predict with a Trump presidency in the United States – we’re going to get onto him – and how will that impact UK-EU counterterrorism efforts? A lot in there… There is a lot in there. Despite the good cooperation we have with EU partners, undoubtedly the strongest and most important intelligence-sharing relationship in the world is the Five Eyes relationship between the US, the UK, Australia, New Zealand, and Canada and I’m sure that will continue to be the case, but where the sharing of data is concerned or indeed any other kind of intelligence cooperation where the US is concerned, it’s going to be very important for our new, massively strengthened regulator to keep an eye on what assurances are being given by our partners and whether those assurances are being given effect and I think there’s nobody who is going to be keener on this being done properly than our intelligence agencies. They are at the moment and have been for several years defending themselves in British courts against suggestions that they went too far in the last decade when they were cooperating – for example – with Libya, with, you know, North African states, and with the US in the war against terror. The reaction to that was to draft a document you can find online. It’s called the Consolidated Guidance. That sets out the principles that are supposed to be applied in intelligence cooperation and – if only out of a sense of self-preservation on the part of the agencies – they need to make sure that they are complied with and regulators in this country need to be particularly careful and if there is to be any question of torture being reintroduced or practiced – for example, by the CIA; and I read that most CIA officials are very strongly opposed to that – then the British government has to be extremely careful in terms of how it allows its data and the product of that data to be used. And just to say on that Five Eyes alliance that you’ve mentioned… I mean, to date the UK has been quite unique, hasn’t it, in the sense that… I understand it’s the only one of the countries that hasn’t required judges to authorise interception warrants. Yes. Now, this looks set to change, though. Yes. It will change. Has it changed under this act? It changed yesterday when the act was given royal assent. Right. And how significant is that, then; that change? I think to see how significant it is you could go back to North America where they didn’t used to have judicial authorisation and in the seventies you had the CIA interfering with Martin Luther King’s marriage, spying on the women’s liberation movement, and when these things were reported on by the Church Committee, the consequence and the public reaction was such that they decided to introduce a court by which all these things should be authorised. Canada, same thing… you had the RCMP, which was then the internal security service equivalent – for example – trying to obtain the membership list of the Parti Quebecois, a separatist party. This was said to be in the interests of national security and after all they were trying to break up the country. This again was the sort of issue that it was felt politicians should not be taking alone. It was too tempting for them. So, in Canada as well they introduced judicial authorisation. Now, we’ve managed the same thing in the UK without an equivalent scandal. Despite all the things that Snowden showed the world, there wasn’t anything in that league happening in the UK, but it seems to me it’s no good just preparing for the best case. You have to prepare for the worst case and you are simply expecting too much of politicians if you give this power to them without at least the guarantee that none of these warrants will enter into force without the approval of the court and that’s what we’ve now got. All right. So, that is a shift. Let’s look at the President-elect Donald Trump as has been mentioned by our viewer in the United States. During his election campaign he had an awful lot to say about the threat of terrorism. In fact it was one of his big elements of his campaign; i.e. we’re going to make the US safe again. What does his presidency mean, do you think, for counterterrorism in the United States and what does that mean for it globally? Well, I have no idea what President Trump – any more than anybody else – is going to do about this. But your thoughts given what you’ve heard in the last year or what have you… Well, my thoughts… well, I don't want to get… I think the trick to fighting terrorism… in my… what I think anyway after the last six years… you have to bear down hard on the relatively few people who really mean us harm and that means strong intelligence, strong laws, strongly enforced, but you have to do it in a way that does not alienate the many millions of completely law-abiding members of the communities from which the terrorists seek their support; whether that’s Muslims or whether in Northern Ireland it’s republican sympathisers. You know, these are decent people. And also you need them on-board, don’t you, to get your human intelligence? That’s very important, isn’t it? Well, you need them for intelligence, but you also need them for what in this country we call policing by consent and this goes right back to Robert Peele in 1829 when he founded the Metropolitan Police Service. It doesn’t of course mean you have to consent to be arrested. What it means is that the community must consent to the laws that are being applied on their behalf. There was a chilling quote in Financial Times from one of the terrorists that they found… not from him but about one of the terrorists they found hiding in Molenbeek in Brussels after the attacks in France. They found him hiding out there and one of the neighbours was interviewed by the Financial Times and said the whole community knew he was there. Now, we’re not at this stage in England where the community would consider it more important to protect a terrorist than they would to tell the authorities. In fact we’re seeing much better communication and assistance than we’ve ever had before between Muslims and the police, but we’ve got to keep it that way. And do you think that that is partly because of what you said at the very beginning of this discussion; the fact that the way we enforce trying to find out information and that kind of thing is just… the law has been rolled back. Do you think that’s why we’re getting more cooperation? We’ve got more trust. Do you see what I mean? Well, that has certainly helped. When I started doing the job the big complaint was about stop-and-search; no-suspicion stop-and-search. That is gone. Then it was about the way powers are used at the ports. Well, I still get a bit of that, but when I explain that the power is used 70% less than it was six years ago and when you explain that it’s used more and more outbound on unaccompanied adolescents, just checking, you know… aren’t you pleased they’re checking to see your children haven’t slipped away to go to Turkey? Then people immediately see the point, but that’s not to say we’re getting everything right. The complaints that I hear most about actually from Muslims in this country are about the Prevent Strategy and that’s supposed to be the easy bit. That’s how we all get together to combat extremism in our communities, but either because it is being applied sometimes in a heavy-handed way or because there are people… not people of goodwill who are exaggerating the difficulties and trying to foment grievance, I’m afraid the Prevent Strategy is not trusted as much as it should be in some communities and the government needs to have another look at that. From Canada… this is the first one from Canada: how can intelligence agencies worldwide be more transparent to boost public confidence in what they’re doing? I think that’s a great question and I never understood how important transparency was until I went through the process that became the Investigatory Powers Act. Now, the government say it’s a world-leading act. Not everyone would agree with that, but I’m quite sure that it is world-leading in terms of transparency. So, for example, it divulges exactly the powers that the UK intelligence agencies use to do their own hacking of people’s mobile phones, their computer terminals, routers, and so on. You will not find similar transparency in Canada. You won’t find similar transparency in Germany. Does that mean their intelligence agencies are not indulging in this so-called equipment interference? I’m doubtful, let’s just say, but as soon as you’re transparent about it, then the nature of the debate changes. Two and a half years ago in this country you talked to the privacy advocates and it was all about, you’ve deceived us, you’re doing stuff we never knew about, you’ve gone behind Parliament’s back, the agencies are acting like rogue elephants, and on the other hand you had security people saying, you’re unpatriotic, you know, and that has all changed. As soon as the bill was published and all these powers were put out there, there was an initial gasp and then people started arguing again but this time in a much more productive way. The questions were the sort of questions you’re putting to me. Where’s the operational case for this one? Don’t we need more safeguards on that one? And it seems to me in a democracy that is where the argument really needs to be. One from the Middle East now: is stronger oversight of intelligence agencies still needed? It’s a similar-ish question. Yes. Well, it depends which agency you’re talking about. I mean, to my mind, strong intelligence oversight is absolutely key. It’s all about trust. You’re never going to make everyone trust what intelligence agencies do, but you need them to command the trust of the population as a whole and the best way to do that is having a regulator which is not only assiduous in what it does but is also visible and reports to Parliament, accounts for itself to the public, and that’s vital. I think it’s also vital if we’re going to avoid future Edward Snowdens. Now, as I’ve indicated, Snowden – I think – has led to some great steps forward in terms of transparency and safeguards, but we shouldn’t really have to rely on a system in which whistle-blowers – if that’s what you want to call them – steal information, make it public, possibly endanger people’s security, and that is not a sustainable model for intelligence oversight. That’s why you need a really strong regulator with a culture of challenge and you see this… if there’s anyone listening from New Zealand, you know, Cheryl Gwyn, the Inspector-General of intelligence services in New Zealand… she has what I would call a culture of challenge and that’s what you need to give us trust in what’s going on but also to mean that we don’t need Snowdens in the future. This is another question from the US and it’s all about the line drawn between security and humanitarian considerations and he’s… he or she – sorry – is highlighting the issue of the migrant scenario and of course the questions that has thrown up. Certainly in Europe I know with the migrant crisis this summer and the previous summer it has become very politicised. We’ve had Brexit, etc. We’ve got elections across Europe next year and there’s a real sort of public mood about this issue; and in the United States, this particular viewer points out. So, his question is… there’s a few in here. Is there any move in the UK toward restrictions on immigration of refugees from countries like Syria or Somalia? And then he or she is sort of transferring that to the United States, but first of all answer that part about the UK. Yes. Well, we are not taking a lot of refugees from Syria or from Somalia. Per head we’re taking far less than they are – for example – in Sweden and in Germany and I think that is partly because quite a lot of people have an interest in conflating the issues of immigration and terrorism. You see on the extreme right there’s a desire to do that – to portray immigrants as linked to terrorists – but you also see it on the part of the Islamic State. They’ve been very keen to let us know that people who have been involved in jihadi plots in Europe mingled with refugees as they came over the border. Now, whether that’s true or not, it is very effective in turning European opinion against migrants. If you want my view on this – and I’m going in [unclear 00:45:18] as the terrorism reviewer – I think there was good sense in the approach of this country’s government to the Syrian refugee crisis, which is, don’t encourage them to make this perilous journey across Europe where a lot of them are going to die or come to… drown or come to harm of some kind, but do what you can to take people from camps in the region. Whether it’s from Jordan or Lebanon or whether it takes constructing other camps in the region, give yourself some chance to vet who you’re taking before they arrive and remove that incentive to make that dangerous journey. So, this question moves on. It says, this is an intense area of debate in the United States at present with the President-elect calling for at least a moratorium on such immigration in light of a few terrorist attacks by immigrants. What do you think the line should be between security and humanitarian considerations? It’s a very difficult one, isn’t it? Well, I mean, you obviously can’t do anything as crass as say, you can’t come in because of your religion. That is just utterly idiotic because, you know, you’ll find terrorists of all religions and none and the vast majority of all religions are not terrorists and not dangerous, but I think what you do need to do in order to give people confidence in who you’re accepting into your country is do the best security checks that you can because if you do start taking people in who then turn bad and start plotting against us, you really poison public opinion completely. I think we also have to acknowledge that we are not going to solve the problems of Syria by moving its population to Sweden or to Germany or to the UK. There is simply not the capacity to do that. There is not the public will to do that and I’m afraid I think that is a fact of life and it’s a position that we need to start with. It’s a very difficult scenario, isn’t it, to sort of sort out and, I mean, politicians across Europe have been discussing it for the last couple of years. How do we discourage? How do we solve? How do we integrate into our own country and society these people who are trying to flee Syria or wherever it is and how do we make sure we do not import terrorists? I mean, it’s an extremely tricky one to sort of try and sort out, isn’t it? Yes. It is. I mean, most people who come here… and I’m sure it’s the same right across the west. You know, they want to integrate. They want to belong and most of them succeed, but of course it’s becoming much easier if you don’t want to integrate. You can continue to watch television in your own language and surround yourself by a social media bubble or even a real-world bubble of people very like you and I think, you know, part of the challenge that we all face as host countries is not only the challenge of knowing what to tolerate and when to tolerate it but also knowing what not to tolerate and making it very clear that there are some customs maybe imported from other parts of the world and probably nothing to do with religion which we simply can’t accept. Do you think the so-called Schengen Area in Europe – i.e. the area where people can move freely across borders – has enabled terrorists to move freely and easily or not or are borders between various countries in Europe… have strong… Yes. It has. It has enabled terrorists in very much the same way as the invention of the motorcar has enabled terrorists to move freely across borders. Does that mean the motorcar is a bad thing? Probably not because those people are far outnumbered by the people who use cars for good purposes. So, I think it’s a mistake always to look at the way that these rights and freedoms are abused and the think the moral for the Schengen Area, of which the United Kingdom is not part, is that if they’re not going to have internal frontiers, my goodness, they need a strong external frontier. Right. Sweden… here’s one from Sweden. What’s it like forming opinions for the public as the Independent Reviewer versus working in a private law practice? Wow. That’s a great question. It’s really different because as a lawyer – and I was a very traditional lawyer – you’re just not used to saying what you think. You’re used to taking instructions from your client. In our courts you follow precedent of higher courts. You make submissions to the court. You never say, I think. You say, I submit. Then all of a sudden you start doing this amazing job and someone asks you a question on the radio, what do you think of this, and… And you’re allowed to answer it. You think, I’m allowed to answer this? And it took me time definitely to get to that position. I remember I gave an interview when I was starting off in the job from my kitchen at home on the radio. My wife was listening and they said, what do you think about this, and I said, well, there are two views, you know, some people think this, some people think that. My wife said when I put the phone down, they don’t want to know what other people think, they want to know what you think, and I found that – as a lawyer – quite frightening. I’m surprised the journalist didn’t pursue you again for your view or your opinion and got you off the fence. Yes. Well, they were probably bored, but that took getting used to. But in terms of the actual role, it’s supposed to be a part-time role, isn’t it, but it’s just not part-time at all, I assume. Well, it has been about 80% the last couple of years. I have to keep a few cases going so that I have something to go back to when I leave the job next February. Now, here’s another one from the UK. What is your view on the UK’s proposed counter-extremism bill? And we’re running out of time unfortunately. This is a big one. Okay. If you’re interested, on my website, report of September 2015, chapter nine is about countering extremism. I have described this bill as the most worrying document that I have read in my six years in the job. Why? And I’ve read a lot of the surveillance stuff. I’ve read a lot of the terrorism stuff. Because if this bill were to be introduced in Parliament and if it were to go through, it would basically entitle the executive – possibly with the help of the civil courts – to take out orders on people because of extremist activity, which need not be violent. It could simply be expressing sympathy for a viewpoint that did not accord with British values or with diversity or with tolerance. I think it’s unworkable. I think it would be extremely damaging to the police who were asked to enforce it and if they are going to introduce this bill, I hope they have a thorough consultation first not only on the terms of the bill but on whether we need that bill at all. Because there’s the issue of, how do you define extremism? What is extremism? I mean, that is a huge debate in itself, isn’t it? Well, I’m not saying there isn’t a role. I’m all for, you know, teaching schoolchildren to be good citizens and teaching them the importance of diversity and tolerance and trying to open minds that maybe sometimes closed at home – that’s all very important – but I think when you get into the law and the realm of coercive powers, we as lawyers all know they are blunt instruments and it’s very difficult to do it with a concept as nebulous and as undefinable as extremism. My advice to them would be, think very carefully before you go down that road. This issue of extremism, terrorism, movement of people, the migration crisis, the haves and the have-nots… with the results in the United States election, with the Brexit result, with possible results we get next year in Europe, to what extent do you think that has played a part in people’s decision-making in their… what box they ticked here in June and in November in the US? Well, I mean, it’s a big question. I’m sure people are influenced by everything they read and hear. Certainly in this country we have a press which I think can be very unfair to minority groups. It can stereotype groups and because it’s a free press there is no real discipline that is exerted on them. I think it’s all the more important therefore for us as lawyers and as judges to stand firm, you know, to stand for universal principles of human rights, to stand up for the rule of law, and to deal dispassionately with these cases when they come before us. I think our role is always important, but when the political culture begins to turn sour, then it’s all the more important. And when the political culture turns sour, some in politics may view it as a prime time to get through bills that they perhaps wouldn’t get through in another environment. Well, maybe. I think in this country we’re going to spend so much Parliamentary time trying to disengage ourselves from the EU that I rather wonder whether there’s going to be time to do anything else at all, but of course that risk is there and countries have checks and balances. They need checks and balances, but at the end of the day the best one is the good sense of the people. So, looking ahead, obviously your term… when does it come to an end? February. Next year? Yes. So, you will then be doing… I shall be going back to the law with a great sigh of relief. I shall appreciate the precision of thought, the regularity with which hearings are scheduled, and the principles of logic with which – on the whole – cases are resolved. That will be a very nice change from the slightly political environment that I’ve been operating in. But the fact that you have had insight and access to highly classified information… I mean, are you someone that is staying awake at night now knowing what you know or… what’s your thoughts? I never wanted to be one of these people that said, if you’d read what I’ve read, because actually although I have read it, I don't find any of it particularly surprising. Of course I knew there would be things that I didn’t know about from reading the newspapers, but the nature of those things and the extent of those things is not very surprising. Somebody once said, there are no secrets; only lazy journalists. I don't wish to be rude to journalists, but I think it’s certainly true that, you know, 90% of [unclear 00:54:43] stuff is in the public domain and the rest is not as surprising as you might think. So, what are your top tips for the person who is taking over from you? Do it your own way. I think the independence of this job is absolutely priceless. There’s only really one in Europe – that’s me – and there’s one in Australia where they have a very similar situation. We need one in the US, don’t we? Well, they had a thing called the PCLOB – Privacy and Civil Liberties Oversight Board – which has to some extent similar attributes, but I think if my successor can pass on the job unimpaired and not fall off the tightrope while they’re doing it, then they’ll have done a great job. All right. Well, that brings to an end a very fascinating discussion. David Anderson, thank you so much for your time today and thank you for being so frank and open about what has been a really interesting subject and that will bring this webcast to an end, but don’t forget it is available on the International Bar Association’s website for you to view again and to pick apart. So, do take a look as and when you can. Thanks very much.