THE IMPACT, LEGITIMACY AND EFFECTIVENESS OF EU COUNTER . - WordPress

The findings of those focus groups and theirbroader implications are outlined in three reportsco-authored by Cian C. Murphy, Aldo ZammitBorda, and Lucy Hoyte. In addition, the PeaceResearch Institute Oslo, assisted by DurhamUniversity, held a focus group with a small sampleof civil society actors from across Europe to discussthese same measures. The results of this focusgroup and their broader implications are outlinedin a report by Rozemarijn Van der Hilst. Finally inthis phase, the research team at Durham Universityundertook ten semi-structured interviews with keypolicy-makers on these counter-terrorismmeasures as well as on EU counter-terrorism in abroader sense. The results of these interviews andtheir broader implications are outlined in a reportby Fiona de Londras & Josephine Doody.Bringing these reports together, Fiona deLondras and Josephine Doody of DurhamUniversity and Janis Supe and Signe Zalkalne of theSupreme Court of Latvia identified the crossdisciplinary perspectives of impact, legitimacy andeffectiveness building on the insights of theoperational, legal, democratic and societalperspective reports.Phase 2 was an empirical phase. This comprised,firstly, of three case studies undertaken primarilyby the research team at King’s College London: theEuropean Arrest Warrant, EU border controldatabases, and counter-terrorist financing. Thisincluded three focus groups with law enforcementofficers and other end users involved in theimplementation of these measures across Europe.Cian C. Murphy, Aldo Zammit Borda, LucaHoyteCounter-Terrorism Finance Operatives’Perspectives on Impact, Legitimacy andEffectiveness of EU Counter-Terrorism FinanceLaw and PolicyRozemarijn Van der HilstCivil Society Perspectives on the Impact,Legitimacy and Effectiveness of EuropeanCounter Terrorism MeasuresCian C. Murphy, Aldo Zammit Borda, LucaHoyteLaw Enforcement Officers’ Perspectives onImpact, Legitimacy and Effectiveness of EUBorder Control DatabasesCian C. Murphy, Aldo Zammit Borda, LucaHoyteProsecutors' and Government Officials'Perspectives on the Impact, Legitimacy andEffectiveness of the European Arrest WarrantFiona de Londras & Josephine DoodyPolicy-Maker Perspective on Impact,Legitimacy and Effectiveness in EU CounterTerrorismThe final stage, a synthesis stage, brought theresults of the stock-taking and empirical phasestogether to identify broader lessons, implicationsfor EU counter-terrorism, conceptualisations of thekey concepts, and proposals for reform. Theseproposals are outlined in this report, and this phaseof the work will also lead to the publication of anedited collection (Fiona de Londras & JosephineDoody (eds), The Impact, Legitimacy andEffectiveness of EU Counter-Terrorism (2015;Routledge), forthcoming).7

4. Key Findings from the Stocktaking Exercise:Scale of EU Counter-TerrorismA core element of SECILE’s work was to undertake acomprehensive stocktaking exercise in respect of EUcounter-terrorism. This work, undertaken by BenINSTRUMENTQUANTITYPURPOSE, IMPACT( DRAFTS)Action plansand strategydocuments26Sets the EU counter-terrorism agenda through legislativeand/or operational programmes that represent a politicalcommitment on the part of EU member states, institutionsand agencies to develop and implement specific policies,legal measures or frameworks for cooperation.Regulations25Legal acts that apply directly without requiring nationallaws to implement them (though states are free totranspose as long as effect is same). All EU institutions,member states and individuals must comply withRegulations.( 13)Directives15( 8)FrameworkDecisionsDecisionsJoint ActionsLegal acts that are binding on the member states in termsof the results to be achieved but leave to the discretion ofnational authorities the methods by which these resultsmay be achieved.11Legally binding acts used exclusively in the fields of policeand judicial co-operation in criminal justice mattersbetween 1999 and 2009. Similar in effect to Directivesinsofar as they require member states to achieve particularresults without dictating the means of achieving thoseresults.25Legally binding acts that may have “general application” (inwhich case all member states must take steps to comply) orbe directed at specific addressees (meaning only thosesubject to the Decision must comply).( 4)1.Hayes and Chris Jones, found that between 2001 and2013 the EU had introduced 239 counter-terrorismmeasures, 88 of which were ‘binding law’. 1.1Legally binding instruments under the Common Foreign andSecurity Policy that provide for the deployment of financialand/or human resources to achieve a specific objective. Mayalso lay down basic rules on how such initiatives should beimplemented.Ben Hayes & Chris Jones, Catalogue of EU Counter-Terrorism Measures (SECILE Consortium, 2013)8

INSTRUMENTQUANTITYPURPOSE, IMPACT( DRAFTS)CommonPositions3Legally binding agreements between the member states onthe position to be taken with regard to internationalmatters such as strategic relations with third countries,negotiating positions in international fora or the domestic(EU) interpretation of international laws and conventions.Recommendations11Not legally binding but representative of a politicalcommitment on the part of EU institutions/bodies ormember states toward specific conduct or outline the goalsof a common policy.Resolutions4Not legally binding but used to signify political agreementto act in a given area.Conclusions111Not legally binding but used exclusively by the EU Councilto set the policy agenda by signifying political agreementamong the member states as to the type, nature or contentof specific measures.InternationalAgreements8Legal effect varies according to the type and nature of theagreement. In the area of counter-terrorism EU treatieshave been establish framework for member state police,judicial and customs cooperation with the USA as well as toprovide a legal basis for the transfer of personal data fromthe EU to third states.TOTAL239( 25)An analysis of how the question of impact isfolded into the process of making, maintaining andassessing these measures then followed.2. Thisanalysis found that while ex ante impactassessment by the Commission is becoming moresystematic, the concentration given to rightsrelated considerations can be unsatisfactory. It alsoraised a concern that such impact assessmentsmight be read as effectively ‘selling’ a policy ratherthan clearly outlining the relative impactimplications of a variety of policy options.Significant concern was, thus, raised about theextent to which such ex ante impact assessmentsundertaken by the Commission effectively takeaccount of societal impact, particularly relating torights. While advisory bodies’ involvement at theex ante phase can bring rights-related issues moreeffectively to the fore, their reports and opinionsdo not bind the political and policy-making processand the research found that it is not always clearthat they have a discernible effect on decisionmaking.Furthermore, where policies have been pursuedthrough the introduction of legally bindingcounter-terrorism measures, this analysis foundthat the ex post facto reviews - where they happen- tend to be heavily operational in their focus, so2.Ben Hayes & Chris Jones, Report on How the EU Assesses the Impact, Legitimacy and Effectiveness of its Counter-TerrorismLaws (SECILE Consortium, 2013).9

that societal impact remains under-explored. Thisis when these reviews take place at all: although 59of the 88 legally binding measures contain reviewclauses, these reviews rarely take place in practice.Where they do - whether by the Commission, theCouncil or an externally contracted agent - theytend to focus on transposition and implementationin a relatively formal sense, rather than to considerthe operation and impact of the measures in theround.POST-LEGISLATIVE ASSESMENT CouncilReviewBeyond these formal reviews, measures aresometimes also subjected to peer review wherestates engage in a system of shared review,reflection and learning as to the operation of EUcounter-terrorism measures, but this review is alsoheavily operational in its perspective. Similarly,although to a somewhat lesser extent, the reportsof the Counter-Terrorism Coordinator were foundto be substantively oriented towards assessing the‘state of play’ and the operation of measures andnot on the societal and rights-related impacts ofEU counter-terrorism measures.Expert/ContractorReviewquestions of transposition and implementation sothat, apart from analyses by entities establishedwith a specific rights-relation remit, questionsrelating to the societal impact of counter-terroristmeasures, and particularly to implications forrights, risk being marginalised and underconsidered.Hayes and Jones also undertook an analysis ofhow the question of legitimacy is dealt with in theprocesses of making, maintaining and assessingthese measures.3. As well as concerns as to reviewoutlined above, a key legitimacy consideration raisedrelates to process. This stocktaking exercise foundthat the involvement of the European Parliamenthas not always been substantive in respect of EUcounter-terrorism measures; a finding that must becontextualised by the pre-Lisbon constitutionalThus, while there are various actors and stagesof impact review in the EU counter-terrorismcontext, this stocktaking exercise suggested thatthese reviews appear to have a particularoperational orientation and/or focus on technical3. Ben Hayes & Chris Jones, Report on How the EU Assesses the Impact, Legitimacy and Effectiveness of its Counter-TerrorismLaws (SECILE Consortium, 2013).).10

arrangement vis-à-vis the Parliament. Prior to theLisbon Treaty coming into effect, many EU counterterrorism measures were adopted under the ‘ThirdPillar’ in relation to which the Parliament had alimited role. Of the 88 legally binding counterterrorist measures identified as having been adoptedbetween 2001 and 2013, the report finds that 70were the subject of deliberations in EuropeanParliament, although in 44 of these cases thedeliberation took place at consultation phase only.Co-decision had taken place in relation to only 23measures. This lack of involvement of the EuropeanParliament is exacerbated by the relatively closednature of much counter-terrorist decision-making,notwithstanding the EU’s general commitment tomore open policy-making processes.ASSESSMENT OF LEGISLATION BY THE EUROPEAN PARLIAMENTBY TYPE OF PROCEDURE2520151050Agreements CommonPositionsTotal NumberDecisions Directives FrameworkDecisionsConsultationCo-decisionThus, overall the stocktaking exercise identifieda number of critical concerns relating toeffectiveness. First, one third of the legally bindingcounter-terrorism measures introduced since 2001did not include any provisions for review. Inaddition, there was a failure to produce or publisha quarter of the reviews that were mandated bythe remaining legislation. This is notwithstandingthe fact that transposition is carefully monitored,suggesting a concern with implementation ratherthan effectiveness or a conflation ofimplementation and effectiveness. Furthermore,throughout the evaluation processes that lative Resolution onenactmenttopical subjectbeen carried out, much greater weight appears tohave been ascribed to the needs and assessmentsof law enforcement and security agencies than theviews of other “stakeholders” within the EU. Finally,the “full and detailed evaluation” of EU counterterrorism policy requested by the EuropeanParliament in 2011 is long overdue. The majority ofthe EU’s counter-terrorism legislation has not beensubjected to the kind of scrutiny that should beexpected of laws that can have such a significantimpact upon individuals and public and privateinstitutions.11

5. Key Findings from the Stocktaking Exercise:Disciplinary Perspectivesterrorism measure on the protection of legallyenshrined rights.5 The relevant referent in an impactassessment is law itself, which can be understoodin three different dimensions: the law as it appliesto suspected terrorists directly affected by themeasure, the law as it applies to all others, and theRule of Law in a more general and intangible sense.Vermeulen et. al. draw a distinction between thedirect and indirect impact of counter-terroristmeasures, meaning the effect of the measure on thelegal status of those upon whom it is applied (directimpact) and its effect beyond that (indirect impact).As regards the first dimension it is clear thatcounter-terrorist measures can have direct impactson suspected terrorists by, for example, providingthat they are to be subjected to a restrictivemeasure without what would normally beconsidered to be due process or an adversarial trialprocess. An additional indirect effect arises fromwhat Fenwick and Phillipson6 deem the ‘covertderogation’ from human rights norms and deLondras7 terms a general ‘downward calibration’ oflegal protections. This reflects a general reduction inthe level of rights protection including for those notsuspected of involvement in counter-terrorism as aresult of the counter-terrorist malaise, which canresult in courts and political actors accepting thatsecurity concerns require an adjustment in our‘normal’ standards of legal protection. As a generalmatter, it is accepted that counter-terrorismmeasures have legal impacts, manifested in theexistence of a legally defined period of emergencyin which ‘normalcy’ is suspended in order for the5.1 Understanding ImpactIn his report on societal impact, Méderic MartinMazé defines impact in a general sense as being ‘theeffect yielded by a specific measure’,4 emphasisingthat in understanding such effects one must becognisant of the unevenness of impact across bothsocietal groups and societal values. This generalconcept of impact makes it clear that acomprehensive understanding of a measure’ssocietal impact requires a multi-layered approachthat identifies and takes into account its effectsacross a number of different referents. The firstimportant referent from the perspective of societalimpact, then, is who is experiencing the effect. Asecond referent identified from the societalperspective is that of societal values. Here, again,the impact may appear different depending onwhich societal value is taken as the referent. Ameasure might, for example, be identified asincreasing security but simultaneously increasinglevels of state surveillance. This emphasises that inorder for a measure’s societal impact to beappreciated a second referent must be taken intoaccount: what is being affected. Measuring societalimpact is, thus, a complex matter that requires anappreciation of the effects of the counter-terrorismmeasure on both a range of societal groups and allrelevant societal values.In their report on the legal perspective, MathiasVermeulen, Daniel Deering and Sadhbh McCarthydefine impact as the negative effect of a counter4.Méderic Martin- Mazé, Report on Societal Understandings of Impact, Legitimacy and Effectiveness in the Counter-TerrorismContext (SECILE Consortium, 2013), pg.5 http://secile.eu/societal-perspectives5.Mathias Vermeulen, Daniel Deering & Sadhbh McCarthy(with research assistance from Carolin Möller), Report on LegalUnderstandings of Impact, Legitimacy and Effectiveness in Counter-Terrorism (SECILE Consortium, 2013)http://secile.eu/report- legal-understandings6.Helen Fenwick and Gavin Phillipson (2011) 'Covert derogations and judicial deference: redefining liberty and due processrights in counterterrorism law and beyond', McGill law journal, 56 (4), pp. 863-918.7.Fiona de Londras (2011) Detention in the 'War on Terror': Can Human Rights Fight Back? (Cambridge: Cambridge UniversityPress).8.Fionnuala Ni Aolain and Oren Gross (2006) Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge:Cambridge University Press). See chapters 1 and 5.12

state to take actions that would otherwise violateconstitutional and/or human rights standards,8 theso-called ‘emergency/normalcy dichotomy’. In bothcases the question asked by law is not whetherthere are any impacts at all, but whether thoseimpacts are permissible in terms of what the lawregards to be acceptable levels of interference withthe status quo ante as measured by legal doctrinessuch as proportionality, the margin of appreciationand so on.impacting on our understanding of and adherenceto core democratic principles, a further impact ofcounter-terrorism from the democratic perspectivecan manifest itself in governance practices. Theseinclude the practice by which measures areintroduced, debated, justified and assessed. As notedby Sjursen,11 and cited in the report,12 the extensiveuse of flexibility mechanisms and the employmentof secrecy and urgency procedures associated withthe adoption of CT measures tend to create greaterdistance, or ‘remove’ policies and processes fromcitizens’ influence. As a result, decision-makingbecomes less transparent and accountable and thelink between the measures and democraticauthorisation less tangible. The third referent froma democratic perspective is impact on the demositself, particularly in relation to the restrictions oncivil liberties and human rights and the unevendistribution of those restrictions across societalgroups and, indeed, civil society organisations.In her report on the democratic perspective, YuliaChistyakova considers that the impact of counterterrorism can be understood as its effect ondemocracy, understood as the democratic principlesof the relevant political system, governance practiceand the demos.9 It is clear that the democraticperspective conceptualises impact across threereferents: the relevant political system, practices ofgovernance, and the demos itself. In the case of EUcounter-terrorism, the relevant political system isthe European Union itself. The EU’s democraticprinciples are those identified in the Treaty of theEuropean Union, namely the indivisible, universalvalues of human dignity, freedom, equality andsolidarity based on the principles of democracy andthe rule o

Legitimacy of Counter-Terrorist Finance Law and Policy Civil Society Perspectives Policy-Maker Perspectives 7. Insights from Policy-Makers 7.1 Impact 7.2 Legitimacy 7.3 Effectiveness 8. Impact, Legitimacy and Effectiveness: Conclusions 8.1 Understanding Impact 8.2 Understanding Legitimacy 8.3 Understanding Effectiveness 9. Proposals for reform