fdelondras

Latest Publication: On privatisation and counter-terrorist surveillance

Last December I attended and spoke at the IACL Working Group on Constitutional Respones to Terrorism conference on surveillance at UNSW Law School. The edited book arising from that conference has now been published by Routledge and is edited by Fergal Davis, Nicola McGarrity and George Williams and is entitled Surveillance, Counter-Terrorism and Comparative Constitutionalism. In it I publish a chapter entitled “Privatized Counter-Terrorist Surveillance: Constitutionalism Undermined”. I describe the chapter thus in the introduction:

This chapter is concerned with the constitutionalist challenges posed by privatized counter-terrorist surveillance (PCTS). PCTS is defined here as surveillance done for the purposes or in the course of a broader counter-terrorist regime and in which private (by which is meant non-state) actors are involved. This chapter characterizes PCTS as one illustration of a broader trend of privatization in counter-terrorism and problematizes it as a phenomenon that severely undermines the core constitutionalist commitment to limited, transparent and accountable power.

The entire collection–which is very comparative in its approach–is an insightful and intersting one. It can be ordered here.

Introduction to New Book on Counter-Terrorist Judicial Review

For the past year my colleague at UNSW, Fergal Davis, and I have been working on a project funded by the British Academy & Leverhulme entitled Critical Debates on Counter-Terrorist Judicial Review. The project brought world-leading scholars to Durham for a major international workshop last June, and also funded a further small event in Sydney (at the NSW Bar Association) on November 20th. The product of the project is an edited collection to be published by CUP next year, the introduction to which (Davis & de Londras, “Counter-Terrorist Judicial Review: Beyond Dichotomies) you can now download for free here. The abstract for the introduction is:

Contemporary debates about terrorism and counter-terrorism have become dominated by dichotomous thinking, in which complicated questions can become reduced to simplistic analyses of terrorist v. freedom fighter, terrorism v. counter-terrorism, vengeance v. protection, fundamentalism v. necessity, security v. liberty. Such an approach, however, masks much of the ‘murkiness’ of the debates; a murkiness that must be grappled with because, in practice, it has contributed to some extent to the design, appropriation, implementation and exercise of extensive powers of counter-terrorism, often without even a legislative basis. The extent of counter-terrorism is of clear concern to lawyers, although how counter-terrorism might be controlled is something upon which many — including us — can disagree. Thus, there is an on-going debate across legal systems and continents, about mechanisms of such control and, in particular, about the role of courts in this respect. In this chapter, which is the introduction to Critical Debates on Counter-Terrorist Judicial Review (2014, CUP), we reflect on why this debate has generated so much attention and is of significance. In particular, we argue that the debate on the appropriateness and capacity of counter-terrorist judicial review has raged because of the fundamental values that counter-terrorism puts at stake: distortion of democratic debates and mechanisms, the functioning and content of deeply entrenched constitutionalist values of limited power, and people’s faith in the law and in its legitimacy. At its very heart, we argue, what is at stake when we debate whether and how counter-terrorism can be limited and especially the possible role of judicial review in such limiting exercises is a commitment to constitutionalism even in a situation of crisis.

New Article on Declarations of Incompatibility

My new article, “Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?” will be published in the Statute Law Review in 2014, but is alead available on advance access. Here is the abstract:

Ireland’s European Convention on Human Rights (ECHR) Act 2003 has not had a very significant impact on domestic rights-related jurisprudence. This is, perhaps, not entirely surprising given that the Irish Constitution—Bunreacht na hÉireann—protects fundamental rights and that incompatibility with constitutional rights is fatal to legislation, with superior courts being constitutionally empowered to strike such law down. Thus, rather than a political constitution, Ireland has a ‘legal’ constitution in which courts play an important role in rights protection. In spite of that, the Declaration of Incompatibility—designed to maintain constitutional structures while protecting rights within a political constitution—was transplanted from the Human Rights Act 1998 into the ECHR Act in Ireland. This paper examines the workability of that transplantation. It concludes that the Irish Declaration of Incompatibility fits awkwardly into the Irish politico-legal culture of rights, so that it really must be a remedy of last resort given its patent inferiority compared with constitutional remedies for rights infringements and, further, that if it is going to be at all effective even in cases of last resort, a fundamental shift in political cultures and structures relative to rights is required.

Newstalk Interview on the ECHR

On Sunday September 8th Newstalk’s ‘World in Motion’ featured a long interview with me on the European Convention on Human Rights and the European Court of Human Rights, reflecting on its 60 years of operation. The interview, which ranged from the institutional architecture of the Court, to Ireland’s engagement with it, and its current challeges vis-a-vis Russia and the UK, is about 30 minutes in duration and has been captured by Anya Palmer on soundcloud here.