Hart Studies in Security and Justice – serie

The invasion of Iraq in 2003, and the Coalition Government’s failure to win parliamentary approval for armed intervention in Syria in 2013, mark a period of increased scrutiny of the process by which the UK engages in armed conflict. For much of the media and civil society there now exists a constitutional convention which mandates that the Government consults Parliament before commencing hostilities. This is celebrated as representing a redistribution of power from the executive towards a more legitimate, democratic institution. This book offers a critical inquiry into Parliament’s role in the war prerogative since the beginning of the twentieth century, evaluating whether the UK’s decisions to engage in conflict meet the recognised standards of good governance: accountability, transparency and participation. The analysis reveals a number of persistent problems in the decision-making process, including Parliament’s lack of access to relevant information, government ‘legalisation’ of parliamentary debates which frustrates broader discussions of political legitimacy, and the skewing of debates via the partial public disclosure of information based upon secret intelligence. The book offers solutions to these problems to reinvigorate parliamentary discourse and to address government withholding of classified information. It is essential reading for anyone interested in war powers, the relationship between international law and domestic politics, and the role of the Westminster Parliament in questions of national security.

Recent revelations, by Edward Snowden and others, of the vast network of government spying enabled by modern technology have raised major concerns both in the European Union and the United States on how to protect privacy in the face of increasing governmental surveillance. This book brings together some of the leading experts in the fields of constitutional law, criminal law and human rights from the US and the EU to examine the protection of privacy in the digital era, as well as the challenges that counter-terrorism cooperation between governments pose to human rights. It examines the state of privacy protections on both sides of the Atlantic, the best mechanisms for preserving privacy, and whether the EU and the US should develop joint transnational mechanisms to protect privacy on a reciprocal basis. As technology enables governments to know more and more about their citizens, and about the citizens of other nations, this volume offers critical perspectives on how best to respond to one of the most challenging developments of the twenty-first century.

Permanent States of Emergency and the Rule of Law explores the impact that oxymoronic ‘permanent’ states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power. It challenges the idea that many constitutional orders are facing permanent states of emergency due to the ‘objective nature’ of threats facing modern states today, arguing instead that the nature of a threat depends upon the subjective assessment of the decision-maker. In light of this, it further argues that robust judicial scrutiny and review of these decisions is required to ensure that the temporariness of the emergency is a legal question and that the validity of constitutional norms is not undermined by their perpetual suspension. It does this by way of a narrower conception of the rule of law than standard accounts in favour of judicial review of emergency powers in the literature, which tend to be based on the normative value of human rights. In so doing it seeks to refute the fundamental constitutional challenge posed by Carl Schmitt: that all state power cannot be constrained by law.

This book explores the implications of freedom as a non-domination-oriented view for understanding EU security regulation and its constitutional implications. At a time when the European borders are under pressure and with the refugee and migration crisis, which escalated in 2015, the idea of exploring a constitutional theory for the ‘Area of Freedom, Security and Justice’ (AFSJ) might seem to be a utopian project. This appears especially true in the light of the increased threat of terrorism in Europe (and on a global scale) and where the expanding EU security agenda is often advanced through the administrative law path, in contrast to the constitutional trajectory. Add to this the prolonged financial crisis, which continues to cast a long shadow on the future development of EU integration, and which suggests that Europe needs to ‘re-invent itself’ beyond the sphere of economics. Therefore, it is precisely because of the current uncertainties regarding the progress of the EU and the constitutional law project that a constitutional take on the AFSJ is of particular importance. The book investigates the meaning of non-domination and the idea of justice and justification in the area of EU security regulation. In doing so, it focuses on the development of an AFSJ, what it means, and why it represents a fascinating example of contemporary constitutional law with interacting layers of security regulation, human rights law and transnational legal theory at its core.

Recent revelations, by Edward Snowden and others, of the vast network of government spying enabled by modern technology have raised major concerns both in the European Union and the United States on how to protect privacy in the face of increasing governmental surveillance. This book brings together some of the leading experts in the fields of constitutional law, criminal law and human rights from the US and the EU to examine the protection of privacy in the digital era, as well as the challenges that counter-terrorism cooperation between governments pose to human rights. It examines the state of privacy protections on both sides of the Atlantic, the best mechanisms for preserving privacy, and whether the EU and the US should develop joint transnational mechanisms to protect privacy on a reciprocal basis. As technology enables governments to know more and more about their citizens, and about the citizens of other nations, this volume offers critical perspectives on how best to respond to one of the most challenging developments of the twenty-first century.

This timely edited collection brings together experts in the fields of legal history, criminal justice, human rights and counter-terrorism law to appraise Ireland’s Offences Against the State Act on the eightieth anniversary of its enactment. The origins, development, invocation and extension of the powers contained in the legislation are analysed and critiqued using a broad range of methodologies. The book engages fully with the 1939 Act’s scope and complexity including consideration of the impact of the Act on issues as diverse as trial by jury, paramilitary organisations, organised crime, disclosure, the rules of evidence, freedom of expression and association, parliamentary oversight of legislation and adherence to international human rights norms. In addition, the interplay of the Act with the universal themes of normalcy, exceptionalism, contagion and due process are explored throughout. This book will appeal to an audience beyond those with a particular interest in the Act itself. It combines historical and contemporary insights with theoretical and practical perspectives that will enrich the reader’s understanding of emergency law, wherever it arises.

Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). The collection explores four interlocking themes surrounding the issue of coercive human rights: First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection.Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. Thirdly, the most pressing challenges for the ECtHR’s coercive duties doctrine, including:- how it relates to theories and rationales of criminalisation and criminal punishment; - its implications for the fundamental tenets of human rights law itself;- its relationship to transitional justice objectives; and - how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations.Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.

The invasion of Iraq in 2003, and the Coalition Government’s failure to win parliamentary approval for armed intervention in Syria in 2013, mark a period of increased scrutiny of the process by which the UK engages in armed conflict. For much of the media and civil society there now exists a constitutional convention which mandates that the Government consults Parliament before commencing hostilities. This is celebrated as representing a redistribution of power from the executive towards a more legitimate, democratic institution. This book offers a critical inquiry into Parliament’s role in the war prerogative since the beginning of the twentieth century, evaluating whether the UK’s decisions to engage in conflict meet the recognised standards of good governance: accountability, transparency and participation. The analysis reveals a number of persistent problems in the decision-making process, including Parliament’s lack of access to relevant information, government ‘legalisation’ of parliamentary debates which frustrates broader discussions of political legitimacy, and the skewing of debates via the partial public disclosure of information based upon secret intelligence. The book offers solutions to these problems to reinvigorate parliamentary discourse and to address government withholding of classified information. It is essential reading for anyone interested in war powers, the relationship between international law and domestic politics, and the role of the Westminster Parliament in questions of national security.

Permanent States of Emergency and the Rule of Law explores the impact that oxymoronic ‘permanent’ states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power. It challenges the idea that many constitutional orders are facing permanent states of emergency due to the ‘objective nature’ of threats facing modern states today, arguing instead that the nature of a threat depends upon the subjective assessment of the decision-maker. In light of this, it further argues that robust judicial scrutiny and review of these decisions is required to ensure that the temporariness of the emergency is a legal question and that the validity of constitutional norms is not undermined by their perpetual suspension. It does this by way of a narrower conception of the rule of law than standard accounts in favour of judicial review of emergency powers in the literature, which tend to be based on the normative value of human rights. In so doing it seeks to refute the fundamental constitutional challenge posed by Carl Schmitt: that all state power cannot be constrained by law.

This book addresses the various ways in which modern approaches to the protection of national security have impacted upon the constitutional order of the United Kingdom. It outlines and assesses the constitutional significance of the three primary elements of the United Kingdom’s response to the possibility of terrorism and other phenomena that threaten the security of the state: the body of counter-terrorism legislation that has grown up in the last decade and a half; the evolving law of investigatory powers; and, to the extent relevant to the domestic constitution, the law and practice governing international military action and co-operation. Following on from this, the author demonstrates that considerations of national security – as a good to be protected and promoted in contemporary Britain – are reflected not merely in the existence of discrete bodies of law by which it is protected at home and abroad, but simultaneously and increasingly leaked into other areas of public law. Elements of the constitution which are not directly and inherently linked to national security nevertheless become (by both accident and design) implicated in the state’s national security endeavours, with significant and at times far-reaching consequences for the constitutional order generally. A renewed and strengthened concern for national security since September 2001 has, it is argued, dragged into its orbit a variety of constitutional phenomena and altered them in its image, giving rise to what we might call a national security constitution.

Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). The collection explores four interlocking themes surrounding the issue of coercive human rights: First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection.Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. Thirdly, the most pressing challenges for the ECtHR’s coercive duties doctrine, including:- how it relates to theories and rationales of criminalisation and criminal punishment; - its implications for the fundamental tenets of human rights law itself;- its relationship to transitional justice objectives; and - how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations.Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.

This book explores the implications of freedom as a non-domination-oriented view for understanding EU security regulation and its constitutional implications. At a time when the European borders are under pressure and with the refugee and migration crisis, which escalated in 2015, the idea of exploring a constitutional theory for the ‘Area of Freedom, Security and Justice’ (AFSJ) might seem to be a utopian project. This appears especially true in the light of the increased threat of terrorism in Europe (and on a global scale) and where the expanding EU security agenda is often advanced through the administrative law path, in contrast to the constitutional trajectory. Add to this the prolonged financial crisis, which continues to cast a long shadow on the future development of EU integration, and which suggests that Europe needs to ‘re-invent itself’ beyond the sphere of economics. Therefore, it is precisely because of the current uncertainties regarding the progress of the EU and the constitutional law project that a constitutional take on the AFSJ is of particular importance. The book investigates the meaning of non-domination and the idea of justice and justification in the area of EU security regulation. In doing so, it focuses on the development of an AFSJ, what it means, and why it represents a fascinating example of contemporary constitutional law with interacting layers of security regulation, human rights law and transnational legal theory at its core.

This timely edited collection brings together experts in the fields of legal history, criminal justice, human rights and counter-terrorism law to appraise Ireland’s Offences Against the State Act on the eightieth anniversary of its enactment. The origins, development, invocation and extension of the powers contained in the legislation are analysed and critiqued using a broad range of methodologies. The book engages fully with the 1939 Act’s scope and complexity including consideration of the impact of the Act on issues as diverse as trial by jury, paramilitary organisations, organised crime, disclosure, the rules of evidence, freedom of expression and association, parliamentary oversight of legislation and adherence to international human rights norms. In addition, the interplay of the Act with the universal themes of normalcy, exceptionalism, contagion and due process are explored throughout. This book will appeal to an audience beyond those with a particular interest in the Act itself. It combines historical and contemporary insights with theoretical and practical perspectives that will enrich the reader’s understanding of emergency law, wherever it arises.

This book examines the constitutional treatment of national security in the UK, Canada, Australia and New Zealand. These four states share their Commonwealth heritage and are members, alongside the USA, of the Five Eyes intelligence-sharing alliance. The book takes a comparative approach to the institutions through which, and tools with which, these four states seek to protect their national security against the threats of both terrorism and hostile state activity and how they have evolved over time. It identifies and examines the various specialised institutions, inside and outside of legislatures, which have grown up to oversee the exercise of public power for national security purposes while maintaining the required secrecy. It argues that the extent of the borrowing and sharing between these jurisdictions in the domain of national security, now and in the past, permits us to talk about a Commonwealth model of national security constitutionalism.

This book examines the constitutional treatment of national security in the UK, Canada, Australia and New Zealand. These four states share their Commonwealth heritage and are members, alongside the USA, of the Five Eyes intelligence-sharing alliance. The book takes a comparative approach to the institutions through which, and tools with which, these four states seek to protect their national security against the threats of both terrorism and hostile state activity and how they have evolved over time. It identifies and examines the various specialised institutions, inside and outside of legislatures, which have grown up to oversee the exercise of public power for national security purposes while maintaining the required secrecy. It argues that the extent of the borrowing and sharing between these jurisdictions in the domain of national security, now and in the past, permits us to talk about a Commonwealth model of national security constitutionalism.