2017 Lecture

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It is a special privilege to be asked to deliver this lecture.

It is given in the honour of Hugh Foot, Lord Caradon GCMG KCVO OBE, and it is right that we reflect briefly on his remarkable life.

His name was part of my childhood in the 1950s. My medical practitioner father was a newshound. My headmaster [Mr Pond] insisted on all children over the age of eight producing at least 10 current affairs stories each week. These were scrutinised and criticised in the last lesson each Friday afternoon. At the time, Lord Foot, Sir Hugh Foot as then he was, was the Governor of Cyprus. It was a tense period. The name of Archbishop Makarios was as familiar to the public then as that of President Assad today, and as notorious. The United Kingdom was in the teeth of the Cyprus storm, which had erupted into very serious violence. It is a sign of the difficulty of being Governor of Cyprus then that, although there is greater every day peace on the island today, the fundamental political issues remain to be resolved.

Furthermore, he came from an extraordinary political family. His brothers were all presidents of the Oxford Union, and he was president of the Cambridge Union. His most famous brother, Michael Foot, was leader of the Labour Party; and also one of the finest speakers I have ever heard. I enjoyed overlapping with him for 9 years in the House of Commons, as a fellow Welsh MP.

The title of this lecture is Safety and Security after Brexit: who needs whom? That is not in my view a difficult question.  That so far it remains unanswered or at least unresolved in the context of the Brexit negotiations is surprising, given the importance of the issue and the clear evidence.

I suggest and submit that there are three subjects which should never have been even a matter for discussion in the Brexit negotiations.

The first is the maintenance of the current peaceful situation in Northern Ireland and the island of Ireland. The idea that that issue remains yet unresolved and undeclared seems to me to be an abrogation of responsibility by the European Union. This is not the fault of the UK Government which, consistent with almost every voice in Parliament who has spoken out on the matter, has repeatedly made it clear that this is a non-negotiable.

The second is the complexities of the UK leaving the EURATOM Treaty. I shall say more about that later.

The third subject is that to which I am addressing this lecture.

I shall make my own views clear at the outset with a rhetorical question.

Can any sane person really believe that the continuation of national security cooperation, in relation to counterterrorism, between the UK and the 27 remaining members of the European Union, should be the subject of anything other than improvement, let alone continuation?

To support my conclusion, I turn unhesitatingly to an ad maiorem argument. I cite as an authoritative witness, Sir Mark Lyall Grant. He is the former and immediate past National Security Adviser. On the 15 October 2017, in an article in The Guardian, he expressed similar and extremely well-informed views, consistent with my own conclusion.

He reminded us that the UK Government’s 2015 strategic defence and security review identified four major threats and challenges to UK National Security: terrorism and extremism; state-based threats; cyber threats and the erosion of the rules-based international order.

I share his opinion that the immediacy and priority of the terrorism and extremism threat has increased.

Between 2011 and 2016 one UK National was killed in a terrorist offence within the UK. However, the stakes are rising, as so-called Islamic State suffers attrition in Syria and elsewhere.  During 2017 to date, we have seen five major terrorist attacks in London and Manchester, four of them involving fatalities.

Most involved a ‘soft’ target – ordinary people having a good time at a concert in Manchester; young people on an evening out in the vibrant Borough Market area of London. During my 9 plus years as Independent Reviewer of Terrorism Legislation I warned repeatedly of the danger to unpredicted, soft targets. This kind of attack causes the most fear to the public, and actually goes more to the heart of our freedom than even an attack on Parliament – which like other iconic sites is protected more strongly than any ‘soft’ target.

In terms of national security, it is probably true to say that the most important relationships for our continuing national security are the Five Eyes, and also NATO. There are also some important bilateral arrangements, such as the Lancaster House Treaty with France.

However, there are significant other relationships, with and/or within the European union, in which the UK is heavily involved. There are countries other than France with very capable and efficient levels of counter terrorism scrutiny. Germany is an obvious example. Nor should one underestimate the performance of countries such as the Netherlands, and Denmark.

It would be reasonable to conclude from events that Belgium has suffered from under reporting and needs as much shared information as is possible: I believe that this has been addressed, and the cohesive work against terrorism from the Eastern borders of the EU to Ireland on the West has become as effective and important as resources permit.

This has to be considered alongside Europol, dealing as it does with cyber security and organised crime; and with the Schengen and Prum databases, which store forensics materials including DNA. To remind you, the Prum Convention, sometimes known as the Schengen III Agreement, is a Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration.

Such agreements and systems, whether bilateral, multilateral or owned and run by the EU, are crucial to shared international security intelligence and evidence. They receive a significant contribution of British capability and wisdom, and vice-versa.

I could take you through a litany of organisations and, more importantly, through a catalogue of cases tried and plots interdicted in various countries.

Taking this evidence as broadly correct, it would be beyond logical imagination for anyone to regard these arrangements as dispensable, as a potential victim of the negotiations for the UK to leave the EU.

This is possibly the paramount starting point of the negotiations, and should be especially so to the European Union itself. To be fair to the UK government – and I speak as a Remainer – we have made it clear that we regard these instruments of cooperation as an indispensable part of the difficult, asymmetrical challenge presented by both violent Islamism and the growing threat of right-wing extremism.

There are other operations which stand as analogous examples of material cooperation in related areas, and have made a signal contribution to peace. For example, one could cite the work in promoting stability in Bosnia; and the newly developed relationship between NATO and Montenegro.

The UK Government has suggested a special security treaty, which would reflect arrangements for these aspects. The purpose of such a treaty would be for the current successful arrangements to continue after Brexit. The UK’s proposal, however, whilst reflecting existing arrangements, at present insists on the removal of any role for the European Court of Justice [ECJ].

The most obvious, correct and necessarily repeated platitude in this context is that, if the UK leaves the EU, the UK will no longer be subject to the ECJ unless special treaty arrangements are made to preserve the formal, legal relationship. Such a treaty seems unlikely if the negotiations continue at their present timbre and slow pace.

However, the related shibboleth of removal of ECJ influence seems to me, as a lawyer, to be both entirely unrealistic and undesirable.

Even if ECJ decisions have no compulsory applicability in English law, where they impact upon issues that have to be decided in the English courts, those courts from the highest to lowest will take account of such decisions as being persuasive, even if not binding. This is exactly what UK court do with decisions from the Commonwealth’s senior courts, for example the High Court of Australia, where there is useful wisdom to be derived from their decisions. Fairly often I have cited Commonwealth and Irish decisions as persuasive in English courts.

Why should it be different for the ECJ? If I can give an example from my experience as a former Chair of the Competition Appeal Tribunal, given that UK competition law is heavily drawn from EU treaty and ECJ cases, naturally the courts will derive guidance to interpretation from pre- and post-Brexit decisions.

In many areas, and especially in relation to national security, our current EU partners have as great an interest in continuing to benefit from cooperation with the UK, as the UK in cooperating with them. That said, the current reverberations from the negotiations for Brexit do not fill one with confidence.

It was the British people who decided that Brexit should happen. Their task was not over with the referendum. Led by their Parliamentary representatives, there are key questions which British people should ask. One is: Will we be safer, less safe, or in a broadly unchanged level of safety after Brexit?

One has to put this into a realistic context given those serious events in Manchester, Westminster, Borough Market and on the London District Line.  They are plainly concerning, and tragic, crimes of the highest seriousness.

However, you should know that, realistically, they fall far short of the ‘nightmare scenario’ that police have been rehearsing for years. This is something known as Marauding Terrorist Firearms Attack (MTFA) in which machine guns are used to kill pedestrians in a crowded public place.

It does not take me to tell you in a lecture that that MTFA is an objective for so-called Islamic state. Its likelihood is increased by the risk of determined men and women crossing the Channel, perhaps on one single occasion, perhaps through multiple entries, with lethal weaponry in their vehicles. This is not fanciful. There is a proliferation of violent jihadists across Europe, present in almost every country. Access to some parts of Europe is easier than to other parts. There is a huge coastline on which boats are various sizes can land with small, lethal cargoes. The history of importation of drugs by sea demonstrates that risky, criminal, desperate actions of that kind are undertaken, and can succeed. Indeed, Irish terrorists brought weapons into Northern Ireland by sea during The Troubles. The Canary Wharf bomb arrived on a regular car ferry.

Worryingly, it is known that there is also a proliferation of automatic weapons available on the criminal black market in continental Europe. The most diligent intelligence, and thorough intelligence cooperation uninhibited by diplomatic obstacles, including access to encrypted internet sites and monitoring of the dark web where available, is essential to counter MTFA and comparable threats.

A recent study by the Rand Corporation concluded:

”Both sides [the UK and EU] risk becoming weaker and less secure if the Brexit talks provoke a zero-sum approach to security and a messy divorce.”

The Director-General of Europol, Rob Wainwright, has said:

“To help keep Britain safe from these threats, its law enforcement community has become dependent on the unique operational benefits offered by key EU instruments: over 3000 cross-border investigations of organised crime and terrorism were initiated in 2016 at Europol by  UK agencies, a rate 25% up on the year before”.

Another informed commentator, Richard Walton, who was Commander of the Metropolitan Police SO 15 Counterterrorism Command from 2011-16, has said: “the UK could leave both the EU and Europe [with] little, if any, impact on its own national security or counterterrorism capabilities.”

Whilst I do not agree with his apparent implicit belief that non-UK agencies can supply no added value to our own counter-terrorism efforts and success, correctly he emphasises the high quality of our achievements in this area. However, it is vital not to overlook that even a small piece in this 3D, fast moving jigsaw may save lives in the UK and of UK citizens abroad.

His main point was that Britain’s undoubted and extensive expertise in this area is much too valuable for EU countries to ignore, and that they must keep lines open and two-way information flowing.

Six months after the referendum, the current Home Secretary Amber Rudd stated that the threats and challenges to UK national security have not fundamentally changed as a result of the decision to leave.

She is right that the challenges have not changed. However, if she means by that that it is optional for the UK’s effectiveness to remain in the European security arrangements, I would disagree with her.

There can be no real doubt that it is imperative for there to be continuing, largely unchanged, sustainable solutions in the area of national security. This cannot be done without genuine unstinting cooperation internationally, especially within Europe.

Compromise and continued, and post-Brexit continuing, engagement between the UK and EU on defence and security are a vital component of negotiations to leave the EU.

There is a danger of short-cuts and superficiality, much of which may be lost on a Parliament (especially House of Commons) largely devoid of scientists and technicians, and therefore deprived of a full or instinctive understanding of the techniques deployed in national security and many other important areas.

For example, the legislation currently before Parliament to deal with the UK’s departure from the 60 years old Euratom Treaty has focused on nuclear power and weapons issues, but has yet to address a broad range of important issues such as the manufacture and exchange of medical isotopes essential for research into the treatment of cancers, and matters such as the exchange of materials and information. If those issues are not addressed, the UK runs the risk of relying on France and Germany for essential scientific knowledge and research material. The repeals legislation in this context is worryingly short on detail. We cannot afford similar shortage of detail in the matters forming the main subject-matter of this lecture.

I turn now briefly to the political space, and how politics influences the desirable merits-based approach to national security issues and the sharing of information.

I know that in this University there has been considerable study of security concerns. In an article dated the 1 February 2017 Dr Harry Bennett described the relationship between politicians and the military, and the military and the Ministry of Defence, as being not fit for purpose. He urged a greater degree of separation between the military and politicians, with the former having sufficient authority to stand up to undue political pressure from the latter.

I agree with him that those are aspects of our national life which require revision and reform, though there are few countries in which there is a perfect balance between the military, parliament, the government and the judiciary. Indeed, I believe that there is no developed country where that balance is maintained in a perfect way, except possibly a heavily managed country like China where Authority is vested in very few and which many of us would not wish to replicate in structural terms.

However, Dr Bennett’s gentle, academic despondency (if he is here, I hope he will forgive me for that description) in my view does not apply to national security issues. In 2016 Parliament passed the Investigatory Powers Act. That statute gives considerable power to the authorities, for example for the collection of bulk data. It is very carefully controlled under the scheme of the Act. An extremely senior serving judge has been appointed to head the relevant and purpose-designed Commission of scrutiny. It is my belief, based in part on my 9 ½ years as Independent Reviewer of Terrorism Legislation, that the balance we have achieved is about right.

In saying this, it is worth reflecting on the extent to which our privacy is breached by the State.

Casual assumptions abound, for example that the security service and GCHQ are staffed by bored officers who have nothing better to do than look at the Internet traffic of their friends and neighbours, or possibly more interestingly  Members of the House of Commons and the House of Lords, vice chancellors of universities earning their huge salaries, footballers and the like. These casual assumptions are as far from reality as is possible. The work of the agencies concerned is very strictly controlled by managerial protocols, with instant dismissal for gross must misconduct.

The use of bulk data requires some explanation, not least because it calls for cooperation across national borders, perhaps especially within Europe.

Bulk data can be required in many different kinds of situations. For example, if there is a genuine suspicion that mobile phones on a particular network are being used in particular city to plan a terrorist attack, in order to identify which phones are in such use it may be necessary to look at a much greater group, and thereby exclude the innocent and target the guilty. I believe that there are real examples of good work being done under those provisions, of which that is a simple example.

Although it is not strictly germane to the published subject of my lecture, I would also like to say a few words about extremism, as it is an extremely topical subject.

The government has announced that there will be an Extremism Commission. They have advertised for what is described as the Lead Commissioner, and shortlisted candidates will soon be interviewed. One can reasonably suppose that this will be quality shortlist, and that the person appointed to lead the Commission will be well informed and supported on the issues central to its tasks.

The role of the Commission will be very sensitive. If it does not take the steps expected by many, robustly to discourage and tackle violent extremism, whether Islamism or from the right-wing, it will be criticised as being soft on extremism, and not delivering on the government’s promises to clampdown on extremist action and speech. On the other hand, if the Commission seeks to stifle reasonable academic research, or debate in schools and universities in which the critical faculty of the students and staff is engaged to deal with the challenges of extremism, the Commission will be accused of Islamophobia.

Efforts in other EU countries effectively to challenge extremism have met with mixed success, and I have no doubt that some of the new political leaders in Europe, for example President Macron, will be watching the Extremism Commission with great interest. The Commission’s work has to be considered alongside the completely separate Prevent strand of counterterrorism policy – which is much admired by other countries. The distinction is important. The Extremism Commission is part of a counter extremism strategy, whereas Prevent is an integral and important part of counter terrorism policy. Although subtle, that distinction remains very important.

I regret that the accusation of Islamophobia is very easily made, and has become part of the narrative of opposition to both Prevent and the creation of the Extremism Commission. Of course, we must guard against Islamophobia, and I share as high a determination as anyone to do so. That said, the accusation is all too often a cacophonous refrain by those who are determined to use bogus arguments, founded on their view of the meaning of freedom of speech, to liberate the activities of some who are opposed to the very essence of our democratic way of life and the broadly secular nature of our country.

One of the disadvantages of Brexit that I fear is that the secularism of countries such as France and the Netherlands may be a greater beneficial influence than we recognise upon our own approach to these issues; and that Brexit may actually increase the danger of religious extremes becoming more influential in the UK than is desirable.

In saying that I have in mind the dangers of religiosity (as opposed to religion), wherever it comes from, effectively fuelling demands for greater freedom to be given to the expression of extremist opinions, in the name of freedom of religion. I do want to warn this audience, and anyone else interested, that a great many thoughtful, sensible, middle-of-the-road, loyal and democratic people in the United Kingdom Real regard religious faith as an important private matter of choice, but excessive religious fervour as potentially menacing.

Our connections with other countries in the EU on security matters, including their diversity in religious and secular terms, bring important strength and rationality to sound judgement.

I hope that this attentive audience has gained something from the comments I have made, even if it is only to be provoked. I look forward now to your questions.

Alex Carlile

Lord Carlile of Berriew CBE QC