We all, when we think about repressive state action done in the name of national security, wonder about how such activity can be successfully restrained. There are, of course, a number of divergent views on this. For some resisting such repressive action is not a desirable course of action; we should simply let the Executive branch of government ‘get on with’ countering the threat (especially terrorist threats) and remember that such activity is the job of the Executive which has particular expertise to allow it to do this job successfully. In a recent paper entitled “Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight” myself and a colleague and friend, Dr. Fergal Davis (left) of Lancaster University, reject this view for well-rehearsed reasons around excessively repressive and rights-restricting activity that executive action is prone to. There, however, our agreement ends and we both express—as the title suggests—competing perspectives on appropriate oversight.
For Fergal the extra-constitutionalist thesis is very attractive. In his view popular oversight mechanisms (parliament and the people) are to be trusted. While he acknowledges that parliamentary or legislative oversight has not always been forthcoming or effective, Fergal posits an interesting and to my mind very innovative argument about the capacity for popular oversight by ‘the people’ once they have become alive to their constitutional obligation to engage. One of the main bases for Fergal’s argument that we ought to trust judges or courts is, therefore, that relying on courts allows popular mechanisms including the people to abrogate their responsibility for oversight.My perspective, on the other hand, is that popular oversight mechanisms not only fail to work but can not be expected to work. They are, in fact, fundamentally structured in a way that prevents effective oversight of national security activity (especially where party political systems dominate parliamentary structures) and, in any case, genuine fear, trauma and panic together with the well-trodden path of identifying the terrorist as ‘the other’ makes any kind of rights-based oversight unpopular and politically dangerous for the vast majority of political actors.
I argue that we should trust judges because courts, simply, are more steeped in the pillars of liberal constitutionalism and liberal legalism than are the political branches and, in recent years at least, courts are pushing back against repressive executive and/or legislative action done in the name of national security.Which of us is right (if either of us is) is not something that we try to decide on in the paper. Rather, the paper is focused on trying to move the debate away from so-called ‘institutional competences’ (i.e. identifying what is or is not the ‘proper job’ of different state institutions) and rather towards effectiveness. We define effective oversight by reference to the idea of a balanced and proportionate approach to counter-terrorism. One that ensures that the state can act to repress a threat but that such action must be objectively justified, proportionate and—to the extent possible—compliant with the requirements of individual rights (both domestically and internationally).
The paper forms part of the UCD Working Paper Series in Law, Criminology and Socio-Legal Studies, a new initiative from the UCD School of Law. We welcome any comments on its content.