New Book: China’s National Security: Endangering Hong Kong’s Rule of Law?

More than two years ago now, my friend and colleague Cora Chan (HKU) and I sat down to discuss something we might be able to do together. We have a shared interest in security and constitutionalism, and of course being one of the foremost public lawyers in Hong Kong Cora has an interest in the various dynamics of the Basic Law and ‘one country, two systems’.

Combining these interests we decided to apply to the British Academy/Leverhulme small grants scheme to support a project on national security, the rule of law, and the specific constitutional position of Hong Kong. We were successful with that application which meant that, combined with generous support from the HKU Centre for Comparative and Public Law, we had sufficient funds for two major workshops in Hong Kong.

The product of these workshops and of the subsequent work of authors and editors was a new book, just released from Hart Publishing, entitled China’s National Security: Endangering Hong Kong’s Rule of Law? (2020). Here is the book description:

All states are challenged by the need to protect national security while maintaining the rule of law, but the issue is particularly complex in the China–Hong Kong context. This book explores how China conceives of its national security and the position of Hong Kong. It considers the risks of introducing national security legislation in Hong Kong, and Hong Kong’s sources of resilience against encroachments on its rule of law that may come under the guise of national security. It points to what may be needed to maintain Hong Kong’s rule of law once China’s 50-year commitment to its autonomy ends in 2047.

The contributors to this book include world-renowned scholars in comparative public law and national security law. The collection covers a variety of disciplines and jurisdictions, and both scholarly and practical perspectives to present a forward-looking analysis on the rule of law in Hong Kong. It illustrates how Hong Kong may succeed in resisting pressure to advance China’s security interests through repressive law. Given China’s growing international stature, the collection’s reflections on China’s approach to security have much to tell us about its potential impact on the global political, security, and economic order.

When we undertook this project we had no idea that the book would be so timely. As has been widely reported the Beijing government has announced its intention to impose a national security law on Hong Kong. This is in spite of Article 23 of the Basic Law which makes it clear that such a law is for the Legislative Council of Hong Kong to pass. Previous attempts to do so gave rise to significant protests in Hong Kong; the only place in the People’s Republic of China where such protests are realistically imaginable. Since then there have been other instances of the Hong Kong people standing up for their autonomy and for the integrity of the ‘one country, two systems’ pledge, most recently against a proposed extradition law in the law year. It may well be that Beijing’s patience with this is coming to an end.

Our collection contextualises the present moment, whether by explaining the constitutional terrain within which Hong Kong and its national security are located or the ways in which China conceptualises and pursues its national security (quite different to what one might be used to from a liberal constitutionalist perspective). It also considers the sources of resilience that might be available to Hong Kong people: the common law, civil society, international human rights law and so on. Whether any of these sources of resilient will be sufficient to resist the most recent manoeuvres from Beijing or, indeed, to maintain autonomy in its face is a different question, but what our collection does offer is a range of expert perspectives from lawyers, sociologists, politicians and practitioners in and beyond Hong Kong.

The collection is currently available for the reduced price of £59.50 on the Hart website.

The introduction is available for free online here.

New Book: Accountability and Review in the Counter-Terrorist State

9781529206241-605456-290x400Thanks to generous funding from the Joseph Rowntree Charitable Trust, a team of us–me, Jessie Blackbourn, and Lydia Morgan–spent 18 months mapping, conceptualising, and investigating the operation of the counter-terrorism review assemblage in the United Kingdom. Throughout the project we maintained a website about the project and its animating ideas, and the project’s main output has now been published. This is a book entitled Accountability and Review in the Counter-Terrorist State published by Bristol University Press. The book goes on sale officially on 4 December 2019 but can be preordered here at the pre-publication price of £27.99.

New Publication: The Transnational Counter-Terrorism Order

m_clp_71_1coverLast November I was delighted to present a Current Legal Problems lecture at UCL. The article that emerged from that lecture has now been published in advance access format by the CLP and will appear in this year’s hardcopy. It is available here, and the abstract is  as follows:

We live our lives in an often-unseen transnational counter-terrorism order. For almost two decades now, counter-terrorist hegemons have been acting on multiple transnational levels, using a mixture of legal, institutional, technical and political manoeuvres to develop laws, policies and practices of counter-terrorism that undervalue rights, exclude civil society, limit dissent and disagreement, and expand greatly the reach of national and transnational security. The assemblage of laws, institutions, forums, processes, bureaucracies, and cooperative networks that have emerged from these machinations should be understood as a transnational counter-terrorism order that is intended to instantiate on a global level ‘an arrangement of social life…[that]…promotes certain goals or values’ (Bull), whether or not they conflict with rights, whether or not they emerge from legitimate and participatory processes. This paper brings together various seemingly-technical or esoteric strands of law, institutions, policy and politics to show their connections, interdependencies and interactions and, thereby, to illustrate the emergence of this transnational counter-terrorism order. It argues that unless we recognise the connections between and multi-scalar implications of the seemingly disparate, sometimes opaque, and often bureaucratic elements that make up the transnational counter-terrorism order, its scale and implications will remain hidden in plain sight and we may find ourselves unable effectively to insist on fidelity to the constitutionalist values of rights, accountability, and democratic legitimacy.

New Report: Embedding human rights in countering extremism

Together with my Birmingham colleague Katherine Brown and her PhD student Jessica White, I was commissioned by the Commission on Countering Extremism to undertake research on human rights and countering extremism. The result of this work is a report entitled “Embedding human rights in countering extremism: reflections from the field and proposals for change”, which was published by the Commission early in August 2019. The abstract summarises our findings:

Countering Extremism (CE) programmes and policies have been criticised for infringing on human rights because they are state-centric and security orientated in design, and because they can have unintended disproportionate impacts on rights such as those to freedom of expression, assembly, family life, and non-discrimination. The expanding remit of CE (and counter-terrorism) since 2001, but particularly since 2005 in the UK, means that state and security agendas now infuse many more areas of ‘ordinary living’ than would previously been countenanced, with disproportionate impact on socio-economically disadvantaged parts of society. As a consequence CE can be ineffective: extremist beliefs regarding state excess and victimisation of populations can inadvertently be affirmed, extremist behaviours strengthened as the state loses trust as the provider of human security or wellbeing, and extremist modes of belonging and identity normalised. As a result, there are vocal demands for alternative approaches to CE in the United Kingdom.

There are two main challenges to unpacking these critiques and responding to calls for change. The first is recognising ‘how’ CE produces outcomes of this kind, and the second is identifying alternatives that may mitigate such impacts and produce better outcomes. This paper begins to address these two knowledge gaps. It does so through utilising expert and practitioner testimony via a small number of interviews (18) and an expert workshop, as well as a review of existing research on countering extremism. It proceeds by (a) outlining our participants’ general understanding and critiques of CE in the UK, (b) drawing out specific critiques requiring attention, and (c) proposing the instigation of a rights-based approach to CE and of independent review of CE activities so that the effectiveness and outcomes (including negative societal impact) of CE initiatives can be identified through systematic and robust independent processes.

The report is available from the Government website here.