Category: Europe

Data Retention and Counter-Terrorism

Since April 2014 data retention has been a high-profile topic in counter-terrorism. This is because the decision by the CJEU to strike down the Data Retention Directive (summary) brought to the fore a tension between (some) states’ desire for wide-reaching data retention powers, and concerns about the implications of such an approach for privacy and other civil liberties. In the meantime some non-EU states–notably the US and Australia–have been exploring ways of having telecommunications companies or other entities retain ‘metadata’ that the state could then access for investigatory reasons in particular situations. Data retention was one of the early ‘desk’ case studies in the SECILE project, and the report is available here. Since April, I have also written a number of blog commentaries on data retention for The Conversation and Oxford Human Rights Hub:

Will Australia Learn from the EU’s Mistakes on Data Retention?

Theresa May says the UK is not a surveillance state, but her proposed law might create one

Europe got phone spying wrong, now Obama should take heed

Data retention means you are on the record, like it or not

As the surge for data retention powers seems to continue, and to be presented as a core counter-terrorism power, it is apposite to bear in mind the Court of Justice’s warning on metadata. The Court note that such data retention constitutes a prima facie interference with fundamental rights, not least because so-called ‘metadata’ “may allow very precise conclusions to be drawn concerning…private lives”. The question facing policy makers now is how to limit collection of and access to data effectively in order to ensure that countering terrorism does not gives states the power to intrude on the privacy of all.

The ‘Impact’ of EU Counter-Terrorism

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.

Submission on Longer Term Future of the ECHR and ECtHR

Below is the text of my submission to the public consultation on the longer term future of the ECHR and ECtHR. It focuses on the Court and argues for the prioritisation of constitutionalism over adjudication in the workload of the Court.

Future Challenges to the Convention System

The European Court of Human Rights (ECtHR) faces three particular challenges in the future: the possible breakdown of the relationship between the Court and (some) member states, rights-based implications of social conservatism in some member states, and a persistently high volume of complaints to the Court. Continue reading “Submission on Longer Term Future of the ECHR and ECtHR”

AJCL article extracted in ‘Constitutions, Security and the Rule of Law’

An article that I co-authored with Suzanne Kingston and published in the American Journal of Comparative Law ((2010) 58(2) AJCL 359-413) has been extracted in a collected edited by Sudha Setty, entitled Constitutions, Security and the Rule of Law (2014, iDebate). The full version of the article, entitled “Rights, Security and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dialogues in Europe”, can be downloaded for free here or read on Durham’s online repository here. The book, which features a range of international perspectives, can be ordered here.