Judges keep out: off-the-bench influence on the UK’s anti-terror regime


The UK’s anti-terror regime has evolved rapidly over the past 15 years with the Investigatory Powers Bill the latest landmark. Much has been written about how the judiciary’s court decisions have influenced the anti-terror regime, but less attention has been paid to judges’ potential influence beyond their decisions in court. In a new report Anisa Kassamali examines off-the-bench judicial influence on the UK’s anti-terror regime, concluding that fears of judicial over-reach are unfounded. The report’s findings are summarised here.

anisa-report-coverTheresa May first published the Draft Investigatory Powers Bill as Home Secretary in November 2015, citing concerns around terrorism as one of its key drivers. State surveillance is a major feature of the UK’s anti-terror activities, and amongst other changes, the bill reconstructs the framework for the oversight of this system. As the bill now begins its report stage in the House of Lords, it is therefore apt to consider the role of the different branches of the state in tackling terrorism.

The Constitution Unit’s latest report focuses on the role of the judiciary. It is entitled Judges Keep Out: Off-the-bench Influence on the UK’s Anti-terror Regime and examines the state’s approach to terrorist threats from a constitutional angle. Have judges been overstepping their constitutional boundaries?

This question has previously been addressed only in relation to the judiciary’s court decisions. Kate Malleson is one of a number who argue that whilst ‘judges are not politicians in wigs’, the advent of procedures such as judicial review means that they ‘are increasingly required to reach decisions … which cannot be resolved without reference to policy questions’.

There has been much less focus on the judiciary’s activities outside of the courtroom – this report is the first systematic review of judicial impact on the UK’s anti-terrorism policies off-the-bench. Its findings are less controversial – it concludes that fears of judicial overreach, at least in this arena, are unfounded. It examines the question from two distinct angles – the impact of extra-judicial comments on anti-terrorism policies, and judicial involvement in the administration of the anti-terror regime.

Extra-judicial comments

Extra-judicial contributions are, by definition, difficult to pin down. Only some of these are on the public record and it would be invasive, perhaps even impossible, to seek out all private interactions on the topic. The report is therefore based on an analysis of parliamentary debates, evidence to committees and judicial speeches on the topic of anti-terrorism since 2000, supplemented by interviews with ten senior judges, politicians, civil servants and academics.

Unsurprisingly, judges are mainly interested in discussing those elements of the anti-terror regime which directly intersect with their own areas of expertise. Indeed, 50 per cent of all extra-judicial comments on anti-terrorism are concerned with either the role of the judiciary or the administration of justice in the courtroom during anti-terrorism cases.

The judiciary are not a monolithic body in their views on these topics – as one senior judge said, ‘there is no common view about legislation – we are all of us men and women with our own private views’. That being said, the report finds that judges are much more likely to be critical than supportive of government policy on anti-terrorism. 20 per cent of judicial contributions (in evidence to select committees, and debates in the House of Lords) have been positive whilst 60 per cent have been negative, and similar divisions are apparent in judicial speeches and lectures outside parliament.

Even where the judges have been vocal, however, they have had limited impact on anti-terror policy. Most of the amendments proposed by judges or ex-judges in the House of Lords have failed.  Successful judicial amendments to anti-terror legislation do not relate to broad policy principles, but smaller concerns about the judiciary’s exact role in relation to the executive. Even within this area of expertise the judiciary have often been unable to gain enough support to bring about their desired legislative changes.

Judicial administration of the anti-terror regime

The judiciary administer the anti-terror regime through two avenues – as judicial commissioners overseeing the state’s surveillance activities and as judges in closed material procedures. These are colloquially known as ‘secret courts’, and allow the court to sit in closed hearings to consider information which would be damaging to national security if it were made public.

Despite direct involvement in these arenas, the judiciary has had limited extra-judicial import. This is not for lack of attention – closed material procedures are the subject of 12 per cent of all judicial contributions in parliamentary debates and the passage of the Investigatory Powers Bill is providing a number of opportunities for judicial commentary on the surveillance system. However, these responses have been limited. It is not that judges have tried and failed to effect change, it is that they have not felt strongly enough as a professional body to attempt to do so.

The commissioner role also highlights the constitutional distinction between retired and serving judges. There are currently three Commissioners: the Interception of Communications Commissioner, the Intelligence Services Commissioner, and the Chief Surveillance Commissioner. The statutory requirement is that a prospective commissioner must be or must have been a judge. This therefore incorporates both retired and serving judges, but so far only retired judges have taken up these roles. Although no longer bound by the institutional separation of powers, they have been restrained in their extra-judicial commentary. One retired judge who currently sits in the House of Lords told me that ‘we don’t have much inhibition about intervening and expressing our views’, but the retired judges who serve as Commissioners have been more circumspect.

Next steps?

What next for the UK’s anti-terror regime? As terrorism expert Clive Walker puts it, the state perceives itself ‘to live in an extraordinarily and increasingly threatening epoch, terrorism laws can anticipate a long and active life’. It is also clear that the judiciary have a wealth of expertise which might be put to good use in what is a challenging, controversial and constantly developing area of the law. Whilst serving judges are right to be wary of their constitutional limitations when discussing topics off-the-bench, there is scope to better organise the efforts of their retired counterparts. Instead of retired judges making ad hoc contributions, they might come together in an advisory body. The new Investigatory Powers Bill introduces an Investigatory Powers Commission, and this has the potential to fulfil such a role.

Anisa Kassamali’s report, Judges Keep Out: Off-the-bench Influence on the UK’s Anti-terror Regime, is available to download at this link.

About the author

Anisa Kassamali worked as a Civil Service Fast Streamer in the Home Office and HMRC, following degrees at Oxford and SOAS. She took time out to do this research at the Constitution Unit, working with Professor Robert Hazell. Next year she joins Herbert Smith Freehills as a trainee solicitor.

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