I am on my way to Barcelona where I will be presenting a paper drawing on our work in SECILE on the impact of EU counter-terrorism at the 2014 Surveillance Society Network conference. The paper outlines the ways in which ‘impact’ is factored into EU counter-terrorist law-making and critiques this using the recently struck-down EU Data Retention Directive as a case study.
When making new law, the EU takes the prospective impact of this law into account. This is now done by means of an ex ante impact assessment overseen by the Commission in which economic, social and environmental impacts of potential proposals are outlined and considered. These impact assessments first identify the problem to be addessed and then propose and assess a number of potential solutions, all of which are generated with the input of ‘key stakeholders’. In addition, in at least some cases, a further ex ante stage arises in public consultation or consideration by Euroean Parliament committee(s). Once operational there is sometimes–but not often–a formal ex post facto review, which often refers back to the ex ante impact assessment for its reference points. Finally, there is incidental impact assessment by means of litigation.
In all of these stages key questions that appear to be addressed in whether or not the solution proposed is necessary and proportionate to address the identified challenge. However, in both the ex ante and ex post facto Commission-led assessments the proportionality assessment in particular appears to place more weight on economic and operational factors–which are considered at length–than on rights-based assessments, which seem to get a lighter treatment. Although incidental impact assessment is highly legalistic (and therefore arguably ‘misses’ non legal factors to some extent) it appears to place more weight on rights-related factors. These impressions are borne out in the example of the EU Data Retention Directive.
I look forward to presenting this in more detail and depth tomorrow (14:45 ‘Terrorism’ session). I will also be presenting a further, longer and more detailed version of the paper at the LSA in Minneapolis at the end of May.