fdelondras

Discovering ‘Hybridity’; Sceptical Notes in Advance of a Workshop

This afternoon I will make my way to Birmingham for a workshop on ‘Hybridity’ at the University’s Institute of Advanced Studies there. Hybridity is a concept that seems to have a lot of purchase in peace and development studies, and to advance on theories of post-colonialism. Some–especially Rosa Freedman–are trying to explore its purchase in legal scholarship now as well.

Concerned with power, hybridity seems to me to be a theory that tries diagnostically to describe, see and structure exercises and stratagems for the (re)appropriation, shifting and reshaping of power and of hegemonic structures or concepts. I am not well read into the theory, and I think I have been invited in order to offer some provocations from the counter-terrorism perspective, but it will be interesting to see whether or not the day fleshes the theory out for me any.

At the moment, and from what I have heard and read so far, it seems to be difficult to distinguish in terms of intellectual content from much of queer theory, some of feminist theory, and quite a lot of regulatory theory (especially around participation, constitutionalism and legitimacy) and in at least some contexts a large chunk of transitional justice work.

I will go with an open mind, and I’ll share my speaking notes and slides and some reflections after the workshop, but it is interesting already to see how different disciplines seem to ‘miss’ each other and to become convinced of the novelty of their own frameworks when–seen from another perspective–they seem so close to that which exists elsewhere. The answer perhaps might be that hybridity is much more concerned with the practice of ordering power than the theory, but who can say that feminism isn’t concerned with practice? Or regulatory theory which is deeply reflexive (in fact, that is for me at the source the really compelling thing about it)?

I am sure all of these questions will be raised and discussed tomorrow, and if nothing else it proves the value of inter disciplinary conversations and workshops and of having institutions such as the IAS at Birmingham–and indeed our own Institute of Advanced Study here in Durham–to facilitate and support these conversations.

Counter-Terrorist Judicial Review Project Completed

Over the past year or so I have been working with my UNSW colleague Fergal F. Davis on a project entitled ‘Critical Debates on Counter-Terrorist Judicial Review’ which was generously funded by the BA/Leverhulme small grant scheme as well as some supplementary funding from USNW and administrative support from Durham HRC. The project has now come to an end, and a summary of the project is available here. The book of the project, which includes some of the world’s leading scholars on the issue, is now available for pre-order from CUP and includes not just this wideranging scene-setting paper from myself and Fergal but also a new paper by me outlining what I call the ‘regulatory constitutionalism’ of superior domestic courts in at least some CT judicial review decisions implicating foreign affairs powers. I look forward to the reaction (!)

Reflections on the David Miranda Case

The high-profile decision in R (Miranda) v Secretary of State for the Home Department was released earlier this week. In it, the Court affirmed the proportionality of the controversial Schedule 7 powers to stop and question individuals at ports and airports, which includes a power to seize laptops, phones etc. The use of these powers is proportionate, the Court held, even when it interferes with journalistic freedom of expression where such freedom of expression might result in the disclosure of information that could (inadvertently) aid terrorists in some way.

Although there is much to be said on the implications of the case for Schedule 7, the proportionality test, and journalistic freedom (on which see Helena Kennedy QC, Paul Daly, Colin Murray and Mark Elliot), Miranda also raises interesting questions about how we manage secrecy in the counter-terrorist context. This is the element I have been most interested in, and I wrote a short opinion on it for the Oxford Human Rights Hub, which I then republished in longer form on Human Rights in Ireland. The thrust of these posts is:

Journalism—which creates ‘public public’ transparency—may not always have the capabilities to make the kinds of security judgement necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure. While the judgment in Miranda may please the security sector by its affirmation of the former proposition, the entire affair makes it clear that the latter must be addressed as a matter of urgency.

Managing secrecy (beyond what arises in relation to closed materials in court procedures) is part of counter-terrorism that many legal scholars (including myself) have often avoided dealing with head-on. I am not sure we can do that for much longer and in my next book (which I am just finishing up) I try to tackle secrecy and transparency as matters of constitutionalism; a daunting task!

Academic lawyers, civic engagement, and human rights

I was very pleased to speak at the inaugural UCD Student Legal Convention on Thursday of last week. The Convention, sponsored by A&L Goodbody and associated with the Student Legal Service (of which I was senior treasurer when I worked in UCD) brought together an impressive range of speakers from politics, the senior civil service, the legal profession, the judiciary and the academy to discuss a broad variety of topics. I spoke on the panel on civic engagement and below are my speaking notes. The delivered remarks were considerably shorter but adhered to the general ‘gist’ of the below. Continue reading “Academic lawyers, civic engagement, and human rights”