Last Wednesday the Irish Times carried a long article by Elaine Edwards on the proposal to extend surveillance and intercept laws in Ireland to social media accounts and web-based text messages. I am quoted in the story, noting how important it is that effective safeguards and oversight would be built into any such proposed law to ensure its compliance with fundamental rights. The whole story can be accessed here.
Last autumn I went to Antwerp to give a lecture at a symposium there about responsible innovation in security technology. I am pleased that many of the papers from that symposium are being brought together in a book, including mine. I have now posted the accepted version of the essay on SSRN where it can be downloaded for free. Here is the abstract:
In spite of their proliferation at national and supra-national levels, evaluation of whether counter-terrorist measures are actually effective is worryingly inadequate or, sometimes, simply non-existent. In this short essay I argue that the expansion of counter-terrorism in the past fourteen years has had, and continues to have, serious implications for human rights (not only of suspected terrorists, but of all of us), for democracy, and for the Rule of Law. As a result, part of assessing the justifiability of maintaining (and expanding) these measures must be to establish that there are not only prospectively necessary and designed with rights concerns in mind (the arguments made in justifying introducing them), but also actually effective and proportionate. In order for us to truly assess the effectiveness of a counter-terrorist measure and the robustness of the underlying necessity claim, we must assess the extent to which they meet both meta-objectives of security measures per se and the specific objectives of these measures in as comprehensive, rigorous, and open a way possible. Current practice is, however, not to do this in a systematic manner, meaning that counter-terrorism continues to expand on the basis of prospective arguments as to its necessity and appropriateness, claims for trust on the part of governments and, ultimately, shaky evidentiary bases.
I am pleased to say that my forthcoming article, “Accounting for Rights in EU Counter-Terrorism: Towards Effective Review”, has now gone to print. The paper will appear in the Columbia Journal of European Law, the world’s top-ranked EU law journal, and builds on work undertaken as part of the SECILE project. It also sets some of the scene for the work I will be doing in the coming 12 months with the Israel Democracy Institute, tracing the role of rights and proportionality in the process of making the (imminent) EU Directive on Combating Terrorism. As the EU moves towards a European Security Union (discussed again in Brussels just yesterday), our understanding of how, where, when and whether human rights are effectively considered in both ex ante and ex post facto processes relating to EU counter-terrorism continues to be significant. My research suggests that these processes fail to take rights into adequate account, but that a change in mindset (which I propose in this paper) may help.
The full paper will soon be published, although I am happy to provide a pdf by email should anyone request it (f.delondras @ bham.ac.uk). In the meantime, the abstract is as follows:
Since 2001 the European Union (EU) has developed a rich and wide-ranging body of counter-terrorism law. However, in making and implementing that law the EU, its institutions and its member states have often failed to adequately account for fundamental rights. Thus, EU counter-terrorism has been criticized as unduly interfering with the right to privacy, for example, to the extent that the Court of Justice struck down the Data Retention Directive in 2014 on fundamental rights grounds. This Article outlines the mechanisms by which rights are accounted for in EU counter-terrorism, identifying the deficiencies in current practices. The article argues for an effective “feedback loop” in EU counter-terrorism, advocating the design and implementation of a system of regular and evaluative reviews of EU counter-terrorist laws with a view to both identifying and remedying rights-related deficiencies in those laws, and improving the governance of EU counter-terrorism in order to reduce the likelihood of such deficiencies arising in future law-making processes. Such a system, the Article argues, ought to be designed by reference to the principles of cooperation, transparency and responsiveness.
Last night I was at the University of Liverpool to act as discussant of a lecture by Judge Johannes Silvis of the European Court of Human Rights who spoke about ‘terrorism and human rights’ in the jurisprudence of the Court. In his lecture, Judge Silvis outlined some of the key challenges for the reconciliation of rights and security in the cases that come before the Court, and discussed key jurisprudence as well as flagging important forthcoming cases (e.g. on surveillance, and the revisiting of Ireland v United Kingdom).
I was very pleased to be invited to respond to and discuss Judge Silvis’ lecture. Of course, in a short period of time (20 minutes) one cannot expect to do justice to the complexity of the jurisprudence in question, or indeed to challenging context in which these cases emerge and are adjudicated. However, having outlined what we might justifiable expect of a supranational, subsidiary, human rights court such as the ECtHR in the context of counter-terrorism and human rights (e.g. challenging underpinning assumptions about rights and/or security, challenging claims of extraordinariness, maintaining a clear and effective distinction between emergency and normalcy), I argued that the Court’s record is a mixed one. The key challenge is the deference afforded by the Court to state claims of (a) exceptional insecurity, (b) the necessity of the measures impugned, and (c) the content of the rights protected by reference to (a) and (b). I also questioned whether, notwithstanding this mixed record and the persistence of deference, the Court is capable of doing more while maintaining its legitimacy, especially taking into account its particular and limited nature.
The lecture was broadcast, but is also available now on YouTube, with my response/discussion starting at around 54 minutes in.