Interview: David Anderson—post-Brexit we could end up with less security than we need

When a reshuffled minister hands in their departmental pass, or a retired civil servant’s email address is switched off, they abruptly become an outsider looking in. David Anderson, the outgoing Independent Reviewer of Terrorism Legislation, will soon be in a similar position when his access to state secrets on the terror threat facing the UK ends. On Monday, it was announced that Max Hill QC will be his successor. “When I read a story and the realisation dawns that I cannot ask to see the document that will tell me what was really going on, I’m sure it will be a shock.”

But he has never been, as his website makes clear, “part of the government machine,” and Anderson has won praise for a willingness to speak to politicians, campaigners, lawyers and individuals affected by government laws and strategies, and for standing up to power when required.

“What impressed me about Theresa May was her thoroughness,” Anderson cautiously replies when asked about his dealings with the former Home Secretary. “I would go to see her and discuss my reports and notice that there were notes and marginal comments on nearly every page—no doubt sometimes disobliging ones. But that, I suspect, is not a quality reserved to home secretaries. How it is transferable into the office of prime minister is for others to judge.”

Upwards of 10 major terrorist attacks have been foiled since 52 people lost their lives in the 7/7 attacks on London in 2005, with just one person—Fusilier Lee Rigby—killed in an act of Islamist terrorism. In the same period, Anderson points out, far-right acts of terror have claimed the lives of the pensioner Mohammed Saleem in 2013 and Labour MP Jo Cox last summer.

The balance between security and defending civil liberties is, he says, healthier than when he began the role in 2011, with Anderson crediting “the British public, which decided to vote in two parties which stood for the cautious rolling back of the laws we had at that time.” The Conservative-Lib Dem coalition ended no suspicion stop-and-search, reduced pre-charge retention to a maximum of 14 days, and put a time limit on the use of control orders. And while Anderson warns that recent terror attacks across Europe show that “you need skill and good luck to avoid mass casualty attacks,” he takes comfort from the UK’s “three big advantages… excellent intelligence, unusually good co-operation between intelligence agencies and the police, and fewer firearms in circulation.”

But Anderson can nonetheless spot trouble on the horizon. In December, the Court of Justice of the European Union ruled, following a challenge brought by the then Conservative backbencher David Davis—who withdrew his name from the case after joining the government—and Labour Deputy Leader Tom Watson, that “general and indiscriminate retention of data” is against EU law. This affects the vast “metadata”—exhaustive lists of who calls who, and many details of individual’s internet use—which came to light when the former CIA employee Edward Snowden leaked reams of classified papers, and exposed the ubiquitous prying of western intelligence agencies.

In a stark assessment of the ruling, Anderson, who has appeared frequently before the court, says: “I’m not sure I can remember one that looks likely to cause as many problems for the UK government.” Anticipating a “very bumpy ride,” he predicts that “we’re in for much more litigation as the courts try to establish what is permissible and what is not,” and warns that if police and security agencies are restricted in their ability to access metadata, it will “impact on their ability to investigate serious crime, child sexual abuse and terrorism.”

“The pattern analysis of bulk metadata is of particular utility,” Anderson says, “in thwarting cyber-attacks on companies, governments or the electoral process.” Following charges of Russian meddling in last year’s US elections, his point has added salience, and in his Bulk Powers Review, published in August 2016, Anderson gave the example of bulk interception powers being used by GCHQ to protect the UK from attacks similar to the one, attributed to Russian-based hackers, which took French station TV5 off air in April 2015.

In contrast, he has previously said that an early draft of the counter-extremism bill, which seeks to restrict “extremist” activity without any satisfactory or specific definition of what constitutes this, is “the single document that has alarmed me most.” The bill was announced in consecutive Queen’s Speeches but has since vanished from view. Does Anderson, who has also flagged up concerns with the government’s counter-terrorism Prevent strategy, expect it to reappear? “If the government is going to introduce coercive laws where non-violent extremism is concerned, it has to work a great deal harder than it is working at the moment to engage with a wide range of Muslim opinion and to explain what it is trying to achieve,” he warns.

The consequences of Brexit are also a major concern. Anderson, who specialises in EU law, hopes that “after we have left there will be ways for us to continue to participate in such things as Europol and, of crucial importance, the European Arrest Warrant,” but he is fearful of reduced influence. Praising the UK’s role in shaping EU-wide security policy, he notes that he “can’t see how we can be making the headway in this field any more: we shall have to take what others have negotiated.”

So does the risk of a terrorist attack on the EU increase after Brexit? Anderson pauses, before choosing his words with care. “The peoples of the European Union account for something like 7 per cent of the population of the world, and it is a dangerous and uncertain world,” he replies. “I would have thought that, as a matter of principle, we are safer to the extent that we can stand together. My concern would be, given the toxicity of other aspects of the negotiation, whether the terms of the divorce or free movement, that the necessary political focus is not directed to the security elements and we end up with something less than we need.”

It looks as though Anderson’s successor may face a harder task. Mindful of the suggestion that Brexit may be followed by withdrawal from the European Convention on Human Rights, Anderson notes that he “had the advantage of knowing that the human rights standards by which I have assessed our counter-terrorism laws are, broadly speaking, accepted,” but his successor cannot be completely sure. “Were that to change, the ability of governments to take us in unfortunate and even unpleasant directions could only increase.”

So as he prepares to hand in the keys to the secrets, knowing what he now knows, will David Anderson sleep easier? This time the pause is even longer.

“The government is entirely justified in stating that there is a severe threat from terrorism,” comes the eventual response. “But the chances of any individual being caught up in a terrorist act are miniscule. Crime must be suppressed, but ideas need to be challenged. Thomas Jefferson had it right when he said we have nothing to fear from the demoralising reasoning of some, if others are left free to demonstrate their errors.”