Final Report Summary - SECILE (Securing Europe through Counter-Terrorism—Impact, Legitimacy and Effectiveness)
Executive Summary:
The collaborative research project Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness (SECILE) is funded through the 7th Framework Programme of the European Commission. SECILE was established with the overall objective of providing an empirically-informed, multi-stakeholder understanding of how the impact, legitimacy and effectiveness of European security legislation might be best measured and understood. In the fulfillment of this objective the project placed particular emphasis on gathering and understanding practical experiences of implementing and assessing such measures gathered from and with end users. The project started in May 2013 and lasted until the end of October 2014. SECILE was implemented by a consortium of seven partners consisting two universities, an institute of technology, an SME, an NGO, a research institute, and a supreme court from four different countries with particular competence in human rights, law and societal impact. The scientific component of the project comprised four work-packages (WP2, 3, 4, 5), with one management work-package (WP1) and one dissemination work-package (WP6).
The key activities of the project were the presentation of preliminary findings at two workshops, convening of four focus groups for eliciting empirical insights from end users, a set of semi-structured interviews with policy-makers in EU counter-terrorism, and the presentation of the project findings at a major end-of-project final conference, together with a wide range of scientific desk-based research. From the aforementioned activities, one major scientific publication (an edited collection), three empirical case studies, one report on civil society perspectives, one report on policy-maker perspectives, one desk-based case study, one catalogue of measures, two best practice guides, one end-user-oriented report, one briefing paper, and seven scientific reports were produced. The SECILE project and work performed within it has been presented at 21 international and national conferences. At the end of the project, further scientific publications are in preparation for peer-reviewed outputs. No patents have been made and no Exploitable Foreground is reported.
The SECILE project has provided an empirically-informed understanding of impact, legitimacy and effectiveness in the counter-terrorist context, as well as the first comprehensive catalogue of EU counter-terrorist measures. The key findings from the research are:
1. Since 2001, the EU has been very active in counter-terrorism, having produced 239 counter-terrorism measures between Autumn 2011 and Summer 2013, 88 of which are ‘legally binding’.
2. Ex ante impact assessments in the field of counter-terrorism appear to prioritise quantifiable predicted impacts (such as economic impacts) over societal impacts.
3. The European Parliament has often been marginalised in respect of the making and oversight of EU counter-terrorism, raising concerns as to the democratic legitimacy of such measures.
4. EU counter-terrorist measures are rarely subjected to formal ex post facto review.
5. The lack of systematic, participatory, evaluative review of EU counter-terrorist measures arguably undermines their legitimacy, as well as stymying efforts to understand their impact and assess their effectiveness.
6. In some cases, measures that were introduced under the ‘counter-terrorism’ umbrella (eg European Arrest Warrant) are not perceived of as primarily ‘counter-terrorist’ by those who use and apply them, reflecting the fact that many of these measures have multiple applications and a complex provenance.
Project Context and Objectives:
More than ten years after the attacks of 11 September 2001, we have entered a ‘post war on terror’ world in which counter-terrorism law and policies are prominent and touch on many areas of everyday life. The European Union is a significant actor in contemporary counter-terrorism, including through its development of counter-terrorism laws for application within the Union. Bearing in mind the existing literature and scientific knowledge and the developing EU counter-terrorism action it is appropriate that a comprehensive, multi-level and multi-disciplinary understanding of the legitimacy, impact and effectiveness of counter-terrorism should be developed. The purpose of SECILE was to develop such an understanding, taking into account multiple operative, theoretical, doctrinal and practical perspectives and empirical evidence as to the impact and legitimacy of EU counter-terrorism measures to date.
Thus, the main goal of SECILE was to provide an empirically-informed, multi-stakeholder understanding of how the impact, legitimacy and effectiveness of European security legislation might be best measured and understood. In the fulfillment of this objective the project placed particular emphasis on gathering and understanding practical experiences of implementing and assessing these measures gathered from and with end users. SECILE determined to meet these objectives by:
1. Carrying out a comprehensive process of identifying the scope and scale of European counter-terrorism legislation and its legal impact, legitimacy and effectiveness by
a. Cataloguing counter-terrorism legislation introduced at EU level since September 2001 in order to provide a comprehensive record of the degree to which the EU is engaged in counter-terrorism, mapping the potential scope of the project and the field.
b. Producing a comparative report on the transposition of EU measures in member states in order to record the differing transposition mechanisms and assess whether, through transposition, the measures promulgated at EU-level might in fact be imposed inconsistently across the Union with a view to assessing uniformity.
c. Identifying EU mechanisms to measure impact, legitimacy and effectiveness, i.e. identifying whether there are any mechanisms within the EU laws and policies themselves that are intended to allow for impact, legitimacy and effectiveness to be measures.
2. Rigorously deriving an understanding of the state of the art in legal, societal, operational and democratic terms on measuring and conceptualising the impact, legitimacy and effectiveness of counter-terrorism measures generally and in the EU specifically.
3. Systematically considering the impact of selected measures in the EU and extracting understanding of current gaps in knowledge and perspectives by means of in-depth case studies
4. Helping to increase awareness of and new insights generated by research among the relevant actors within the EU, domestic law and policy makers, security services, industrial strategists, and a wider societal and academic debate about the impact, legitimacy and effectiveness of counter-terrorist measures.
The SECILE project was implemented by a consortium of seven partners consisting two universities, an institute of technology, an SME, an NGO, a research institute, and a supreme court from four different countries with particular competence in human rights, law and societal impact. (Table 1).
Table 1. List of Project Beneficiaries
No Beneficiary Name Short Name Country
1 Durham University UDUR United Kingdom
2 Elizabeth Ann Singleton Statewatch United Kingdom
3 Cork Institute of Technology CIT Ireland
4 Institutt for Fredsforskning Stifelse PRIO Norway
5 Centre for Irish and European Security CIES Ireland
6 King’s College London KCL United Kingdom
7 Latvijas Republika SCL Latvia
In order to provide for adequate implementation and communication within the project, reporting, and dissemination and communication of findings, management structures and procedures were implemented as follows:
• The management team comprised the lead researcher of each beneficiary and met in the formal kick-off meeting in Durham (May 2013), at the first workshop in Riga (September 2013), and after the workshop in Durham (May 2014). Communication was maintained within the management team by email, skype and telephone throughout the project lifecycle.
• Technical and scientific coordination was managed overall by UDUR with the work plan of each work package being monitored by the relevant partner representatives from the management team.
• Administrative and Financial Management was led by UDUR and regular communication was maintained with partners to ensure timeline management. In addition, two periodic reports were prepared. Where appropriate, adjustments of work plans was discussed and agreed without jeopardizing work-packages or the overall project.
• Advice was provided by an advisory group established at the start of the project and comprising eminent scholars, researchers and end users based in the United Kingdom, Spain, Australia, the United States, Canada and Austria.
The scientific component of the project comprised four work-packages (WP2, 3, 4, 5), with one management work-package (WP1) and one dissemination work-package (WP6). The work-pages are outlined in Table 2.
Table 2. Work-packages, lead beneficiaries, and timelines
WP Number WP Title Lead Beneficiary Start Month End Month
1 Project Management UDUR 1 18
2 European Counter-Terrorist Legislation Statewatch 1 4
3 Stocktaking and Analysis of Existing Perspectives SCL 1 4
4 European Anti-Terrorist Legislation in Operation KCL 5 11
5 Generating Normative Insights UDUR 11 14
6 Dissemination, Communication and Interface with Users CIES 1 18
The objectives of work package 1, managed by Durham University included the daily coordination and management for the entire project, including administrative support to all participants. Durham was to ensure financial regularity and ethics compliance (with ethics overseen by Prof Peter Burgess, PRIO) as well as risk management. As lead partner Durham was responsible for overseeing institutional negotiation and signature of the consortium agreement and has reported to the European Commission throughout the project, verifying the reports of each partner in accordance with the project tasks prior to submission.
The objectives of work package 2 were to produce a description of EU counter-terrorism legislation, a description of transposition of EU counter-terrorism legislation in member states (including identification of inter-state variations in transposition) and to identify measures built into legislation for assessment of impact, legitimacy and effect where appropriate. WP2 was undertaken by Statewatch.
Under work package 3 the main objectives were to provide a description of paradigmatic understandings of impact, legitimacy and effectiveness in legal, operational, societal and democratic terms and to identify dissonances and similarities in paradigmatic understandings across the relevant disciplines and perspectives. WP3 was overseen by SCL.
The objectives of work package 4 were to gather empirical information on the operation of a range of European security measures and to develop an empirically-informed understanding of the perceived impact, legitimacy and effect of European counter-terrorism measures across a diverse range of stakeholders with especial focus on end users. WP4 was overseen by KCL.
The objectives of work-package 5 were to synthesise the empirical findings of WP4 with the theoretical and doctrinal frameworks outlined in WP2 and WP3 in order to generate practicable, original and innovative insights on the concept and assessment of the impact, legitimacy and effectiveness of EU counter-terrorist law. WP5 was overseen by UDUR.
The main objectives of work package 6 were to ensure that the project and its progress and result were known at local, national and European level and across different sectors and actors and to coordinate partners’ efforts in disseminating WP outputs. This also included sharing all knowledge including lessons identified and best practices relevant for future analysis of the impact, legitimacy and effect of counter-terrorist measures with respective European stakeholders (industry, potential end users, public authorities and advisors, specialists, stakeholders, members of related initiatives and R&D programmes and the scientific community). WP6 was overseen by CIES.
The beneficiary contribution across work-packages is outlined in Table 3, indicating which work-packages beneficiaries were involved in.
Table 3. Beneficiary contribution across work-packages
Beneficiary WP1 WP2 WP3 WP4 WP5 W6
UDUR * * * *
Statewatch * * *
CIT * *
PRIO * * *
CIES * * * *
KCL * *
SCL * * *
The key activities of the project were the presentation of preliminary findings at two workshops (one in Riga in September 2013 and one in Durham in May 2014), convening of four focus groups for eliciting empirical insights from end users (in London in December 2013), a set of semi-structured interviews with policy-makers in EU counter-terrorism (at various locations in January/February 2014), and the presentation of the project findings at a major end-of-project final conference (in Dublin 2014), together with a wide range of scientific desk-based research. From the aforementioned activities, one major scientific publication (an edited collection), three empirical case studies, one report on civil society perspectives, one report on policy-maker perspectives, one desk-based case study, one catalogue of measures, two best practice guides, one end-user-oriented report, one briefing paper, and seven scientific reports were produced. The SECILE project and work performed within it has been presented at 21 international and national conferences. At the end of the project, further scientific publications are in preparation for peer-reviewed outputs.
Project Results:
SECILE has been a highly successful project with numerous scientific results being generated. In this section, an overview of the results from the work-packages is provided. It is important to note that the results of the project have been presented at numerous international and national conferences, that the reports from the project have been made available through the project website (www.secile.eu) where videos of oral presentations at the final conference are also available, and that the project has resulted in a major scientific publication to be published by Routledge in 2015 (de Londras & Doody (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism).
Work from SECILE has been presented at 21 national and international conferences in Europe, the United States and Africa, as outlined in Table 4. These conferences variously attracted academic, end user and policy-maker audiences, thus ensuring the wide dissemination of project results across the relevant stakeholder communities.
Table 4. Conference presentations building on SECILE research and insights
Conference Title Date and Location Presenter Title
2nd Global Conference and Exhibition on Future Developments of Automated Border Control (ABC) 10/10/2013-11/10/2013, Warsaw, Poland Sadhbh McCarthy Research and innovations in automated border control technology
NMCI Telemedicine Conference. A Safer Arctic for Small Craft Mariners 27/11/2013, Cork, Ireland Lt Cdr Erika Downing Session 1 – Maritime focus Telemedicine, presentation on Data Sharing.
Dutch Ministry of Foreign Affairs / Human Security Collective / Justitia et Pax, ‘Speak Truth To Power 09/12/2013 – 11/12/2013, The Hague, Netherlands
Ben Hayes
The impact of counter-terrorism measures on civil society
Annual Review Irish Navy (to Officer body) 20/12/2013
Cork, Ireland Lt Cdr Erika Downing SECILE – Project overview and my involvement in project
Annual workshop for judges of the Supreme Court, Prosecutor General and prosecutors 16/01/2014
Signe Zalkalne First results of the SECILE project
8th International Conference. CPDP 2014. Computers, Privacy & Data Protection. Reforming Data Protection: The Global Perspective. 22/01/2014 –24/01/2014
Brussels, Belgium.
Sadhbh McCarthy
Law Enforcement, Profiling and Social Media
Hybridity: Power, social structures and institutions beyond the liberal west (Institute of Advanced Studies, The University of Birmingham) 13/03/2014
Birmingham, UK Fiona de Londras Hybridity and Counter-Terrorism: Some Provocations
6th Biannual Surveillance and Society Network Conference 24/04/2014 26/04/2014, Barcelona, Spain Rozemarijn van der Hilst The Law of Diminishing Returns as guiding principle in interpreting Article 8 of the European Convention on Human Rights.
6th Biannual Surveillance and Society Network Conference 24-26th April 2014, Barcelona, Spain Fiona de Londras Understanding the Uneven Impact of Counter-Terrorism: An EU Case Study
SECILE Workshop May 2014 Josephine Doody Effectiveness
Around the World Conference 21/05/2014, NUI Maynooth Sadhbh McCarthy Privacy and surveillance in the digital age
European Day for Border Guards, FRONTEX conference 22/05/2014, Warsaw, Poland. Sadhbh McCarthy ‘Cost effectiveness in border control’ panel
Language Resources and Evaluation Conference 31/05/2014, Reykjavik, Iceland. Sadhbh McCarthy Trust in Social Media for Disaster Management
Law and Society Association Annual Conference 29/05/2014 – 01/06/2014, Minneapolis, US. Fiona de Londras Understanding the Uneven Impact of Counter-Terrorism: An EU Case Study
Computers, Freedom and Privacy 10/06/2014, Washington, US. Sadhbh McCarthy Police Access to Social Media
Oxford Human Rights Hub, Oxford University 05/06/2014, Oxford University, UK. Fiona de Londras Accounting for Rights in EU Counter-Terrorism
Governance and Globalization: International and European Answers 04/07/2014 – 0507/2014, University of Cambridge, UK. Fiona de Londras EU Counter-Terrorism: Some Governance Concerns
Society of Legal Scholars Conference 09/09/2014 – 12/09/2014, SLS Annual Conference, Nottingham, United Kingdom. Aldo Zammit Borda Counter-Terrorism Measures in the European Union: The Voice of End Users
Meeting of the Women Peacemakers Programme (connected to the UN Security Council Resolution on Women, Peace and Security). 01-07/2014, Cape Town, South Africa Ben Hayes Counter-terrorism
Council of Europe/City of Malaga Conference on Terrorism and Organised Crime 23-24 September 2014, Malaga City Hall Fiona de Londras Counter-Terrorism Law and Policy in the EU
ARENA/University of Oslo ‘Democratic Constitutionalism in Europe’ 4-6 November 2014, University of Oslo Fiona de Londras Constitutionalism and Legitimacy in EU Counter-Terrorism
WP2. European Counter-Terrorist Legislation
The main objectives of WP2 were to generate a description of EU counter-terrorism, its transposition across member states, the measures built into such measures for assessment of impact, legitimacy and effectiveness, and to identify inter-state variations. This was achieved by the production of four deliverables from WP2: a database of EU counter-terrorism measures (D2.1) a comparative report on transposition (D2.2) a catalogue of built-in assessment methods and report on same (D2.3) and a focused analysis of data retention for the purposes of illustration (D2.4).
D2.1 was produced to catalogue the counter-terrorism measures that had been introduced by the EU between 2001 and 2013. In this respect, an EU counter-terrorist measures was defined as follows:
“…for the purposes of this study an EU legal act or policy document is considered to be an EU
counter-terrorism measure if it meets the following criteria:
(i) it has at some point in time been part of the EU’s counter-terrorism agenda;
(ii) it has been adopted or approved by an EU institution or body or otherwise represents
the official policy of the European Union.”
The study found that 239 such measures had been introduced, 88 of which had a legally binding character. These measures are represented in summary form in Table 5. It is important to note that this represents the first comprehensive cataloguing of such measures at the EU level. The findings of D2.1 illustrate the wide breadth of instrument type that come together to form EU counter-terrorism. However, the catalogue also has three limitations. First, it is up-to-date as of August 2013 (M4), thus it can be assumed that the total number of measures that come under the category of EU counter-terrorism is now higher. Second, the catalogue does not include operational measures in respect of which no EU documentation could be found that verified or explained their implementation, such as those arising in thematic areas that attract very high levels of secrecy (for example the full list of measures contained in the EU Action Plan on Radicalisation and Recruitment). Thirdly, the catalogue does not include EU agreements with third countries that contain commitments to the countering of terrorism as, since 2005, such clauses became standard in all EU association agreements and had only limited significance to internal EU counter-terrorism policy. Furthermore, agreements between EU agencies (such as EUROPOL and EUROJUST) and their counterparts in third states with counter-terrorist dimensions are not included. That said, external policies and treaties with third states that cover specific counter-terrorism policy issues were included.
Having catalogued the range of EU counter-terrorist measures introduced since September 2001, the authors went on to engage in a short analysis from which three key analytical conclusions can here be proposed. First, it found that the EU has been responsive to emergent terrorist attacks and threats. It responded quickly to the attacks of ‘9/11’ by the development of a bespoke counter-terrorist agenda and the acceleration of some pre-existing plans for measures such as the European Arrest Warrant. The EU also responded quickly to the bombings in London and Madrid, both of which resulted in concerted action by the EU. Secondly, it found that the EU’s approach to counter-terrorism on occasion folded a significant amount of general ‘security’ activity into the counter-terrorist activities of the Union, such as cybersecurity, border control, and information management. The third analytical conclusion in the report was that EU counter-terrorism has become so extensive, and now includes so many measures, programmes and sub-programmes, that it is difficult for citizens and civil society to keep track of, which is exacerbated by the extent to which such measures have been introduced without substantive European Parliament involvement.
Table 5. EU Counter-Terrorist Measures (September 2011-August 2013)
Instrument Type Quantity
(+drafts) Purpose, impact
Action plans and strategy documents
26 Sets the EU counter-terrorism agenda through legislative and/or operational programmes that represent a political commitment on the part of EU member states, institutions and agencies to develop and implement specific policies, legal measures or frameworks for cooperation.
Regulations
25
Legal acts that apply directly without requiring national laws to implement them (though states are free to transpose as long as effect is same). All EU institutions, member states and individuals must comply with Regulations.
Directives
15
Legal acts that are binding on the member states in terms of the results to be achieved but leave to the discretion of national authorities the methods by which these results may be achieved.
Framework Decisions
11 Legally binding acts used exclusively in the fields of police and judicial co-operation in criminal justice matters between 1999 and 2009. Similar in effect to Directives insofar as they require member states to achieve particular results without dictating the means of achieving those results.
Decisions
25
Legally binding acts that may have “general application” (in which case all member states must take steps to comply) or be directed at specific addressees (meaning only those subject to the Decision must comply).
Joint Actions
1 Legally binding instruments under the Common Foreign and Security Policy that provide for the deployment of financial and/or human resources to achieve a specific objective. May also lay down basic rules on how such initiatives should be implemented.
Common Positions
3 Legally binding agreements between the member states on the position to be taken with regard to international matters such as strategic relations with third countries, negotiating positions in international fora or the domestic (EU) interpretation of international laws and conventions.
Recommendations
11 Not legally binding but representative of a political commitment on the part of EU institutions/bodies or member states toward specific conduct or outline the goals of a common policy.
Resolutions
4 Not legally binding but used to signify political agreement to act in a given area.
Conclusions
111 Not legally binding but used exclusively by the EU Council to set the policy agenda by signifying political agreement among the member states as to the type, nature or content of specific measures.
International agreements
8 Legal effect varies according to the type and nature of the agreement. In the area of counter-terrorism EU treaties have been establish framework for member state police, judicial and customs cooperation with the USA as well as to provide a legal basis for the transfer of personal data from the EU to third states.
Total
239
D2.2 provided an analysis of the transposition of the legally binding EU counter-terrorism measures across the member states. Of the 88 legally binding measures identified in D2.1 50 required formal transposition by the member states. The report found that there failure to transpose measures on time and in a satisfactory manner was widespread across the member states in relation to EU counter-terrorism. In fact, only one measure could be said to have been implemented within the requisite time and to the satisfaction of the EU institutions (i.e. without infringement proceedings, censure or complaint). The report found that the ways in which EU member states have implemented the numerous counter-terrorism measures introduced at EU level since September 2001 is extremely difficult to assess. What this research identifies in particular in respect of the implementation of the measures examined was not the varying forms that transposition has taken at national level, but rather the fact that member states have frequently been so slow to implement these measures, and in a number of cases have not implemented them at all until faced with legal action. Where they have been implemented in whole or part, the research for D2.2 found that the Commission’s assessments often noted inconsistency with the EU provisions on which national measures are based. In Section 6, D2.2 provided a full database showing the transposition status of all fifty EU counter-terrorism measures requiring transposition across all of the member states of the Union.
D2.3 provided an analysis of how the EU assesses the impact, legitimacy and effectiveness of counter-terrorism.
This analysis found that while ex ante impact assessment by the Commission is becoming more systematic, the weighting given to rights-related considerations can be unsatisfactory. It also raised a concern that such impact assessments might be read as effectively ‘selling’ a policy rather than clearly outlining the relative impact implications of a variety of policy options. Significant concern was, thus, raised about the extent to which such ex ante impact assessments undertaken by the Commission effectively take account of societal impact, particularly relating to rights. While advisory bodies’ involvement at the ex ante phase can bring rights-related issues more effectively to the fore, these reports and opinions do not bind the political and policy-making process and the research found that it is not always clear that they have a discernible effect on decision-making. Furthermore, where policies have been pursued through the introduction of legally binding counter-terrorism measures, this analysis found that the ex post facto reviews—where they happen—tend to be heavily operational in their focus, so that societal impact risks remaining under-explored. This is when these reviews take place at all: although 59 of the 88 legally binding measures identified contained review clauses, the research found that these reviews rarely took place in practice (see Table 6 below). Where they were found to have taken place—whether by the Commission, the Council or an externally contracted agent—the report suggested that they have a tendency to focus on transposition and implementation in a relatively formal sense, rather than to consider the operation and impact of the measures in the round.
Table 6. Review of the 88 Legally Binding EU Counter-Terrorist Measures Identified
Beyond these formal reviews, D2.3 noted that measures are sometimes also subjected to peer review where states engage in a system of shared review, reflection and learning as to the operation of EU counter-terrorism measures, but that this review tends to be very operational in its perspective. Similarly, although to a somewhat lesser extent, the reports of the Counter-Terrorism Coordinator were found to be substantively oriented towards assessing the ‘state of play’ and the operation of measures and not on the societal and rights-related impacts of EU counter-terrorism measures. Thus, while there are various actors and stages of impact review in the EU counter-terrorism context, the results presented in D2.2 suggested that these reviews appear to have a particular operational orientation and/or focus on technical questions of transposition and implementation so that, apart from entities established with a specific rights-relation remit, questions relating to the societal impact of counter-terrorist measures, and particularly to implications for rights, risk being marginalised and under-considered.
D2.3 also contained an analysis of how the question of legitimacy is dealt with in the processes of making, maintaining and assessing these measures. As well as concerns as to review outlined above, a key legitimacy consideration relating to process was raised by this analysis. This research suggested that the European Parliament has not always been prominent in the process of making counter-terrorism; a finding that must be contextualised by the pre-Lisbon constitutional arrangement vis-à-vis the Parliament. Prior to the Lisbon Treaty coming into effect, many EU counter-terrorism measures were adopted under the ‘Third Pillar’ in relation to which the Parliament had a limited role. Of the 88 legally binding counter-terrorist measures identified as having been adopted between 2001 and 2013, the report finds that 70 were the subject of deliberations in European Parliament, although in 44 of these cases the deliberation took place at consultation phase only. Co-decision had taken place in relation to only 23 measures. This is further illustrated in Table 7.
Table 7. Assessment of legislation by the European Parliament by type of procedure
Thus, overall the stocktaking exercise identified a number of critical concerns relating to effectiveness. First, one third of the legally binding counter-terrorism measures introduced since 2001 did not include any provisions for review. In addition, there was a failure to produce or publish a quarter of the reviews that were mandated by the remaining legislation. This is notwithstanding the fact that transposition is carefully monitored, suggesting a concern with implementation rather than effectiveness or a conflation of implementation and effectiveness. Furthermore, throughout the evaluation processes that have been carried out, much greater weight appears to have been ascribed to the needs and assessments of law enforcement and security agencies than the views of other “stakeholders” within the EU. Finally, the “full and detailed evaluation” of EU counter-terrorism policy requested by the European Parliament in 2011 had not yet taken place. The majority of the EU’s counter-terrorism legislation has not been subjected to the kind of scrutiny that should be expected of laws that can have such a significant impact upon individuals and public and private institutions.
D2.4 was a focused desk-based case study of the EU’s Data Retention Directive, its impact, legitimacy and effectiveness. This report, which was concluded before the Court of Justice of the European Union found the Directive to be violatory of fundamental rights, concluded that the Directive had had a significant impact on fundamental rights within the EU and that this potential impact had been flagged throughout the process of devising, implementing and reviewing the Directive, as well as by numerous domestic courts in the European Union member states. Furthermore, it found that the Directive, introduced after the Madrid and London bombings, had not in fact harmonised data retention regimes because of the discretion afforded to member states as to its implementation. The study thus identified serious questions as to the societal impact, democratic legitimacy and effectiveness of the Directive.
Table 8. WP2 Deliverables
Deliverable Title Web Address
D2.1 Ben Hayes & Chris Jones, Catalogue of EU Counter-Terrorism Measures http://secile.eu/wp-content/uploads/2013/12/Catalogue-of-EU-Counter-Terrorism-Measures1.pdf
D2.2 Ben Hayes & Chris Jones, Report on the Transposition of EU Counter-Terrorism Measures http://secile.eu/wp-content/uploads/2013/11/Report-on-the-Transposition-of-EU-Counter-Terrorism-Measures.pdf
D2.3 Ben Hayes & Chris Jones, Report on How the EU Assesses the Impact, Legitimacy and Effectiveness of its Counter-Terrorism Laws http://secile.eu/wp-content/uploads/2013/12/How-does-the-EU-assess-its-counter-terrorism-law.pdf
D2.4 Ben Hayes & Chris Jones, The EU Data Retention Directive: A Case Study on the Legitimacy and Effectiveness of EU Counter-Terrorism Policy http://secile.eu/wp-content/uploads/2013/11/Data-Retention-Directive-in-Europe-A-Case-Study.pdf
WP3. Stocktaking and Analysis of Existing Perspectives
The main objectives of WP3 were to gather, describe and collate paradigmatic legal, operational, societal and democratic perspectives on the meaning of impact, legitimacy and effectiveness in counter-terrorism; and to organise a workshop with the consortium partners in order to compare the different paradigmatic understandings and identify dissonances and similarities across them, which would then be used to generate cross-disciplinary perspectives on the concepts. This was achieved by the production of six deliverables from WP3: a workshop on the state of the art (D3.1) a report on the state of the art across disciplines (D3.2) a report on legal state of the art (D3.3) a report on the operational state of the art (D3.4) a report on societal state of the art (D3.5) and a report on the democratic state of the art (D3.6).
D3.1 took place in September 2013 when the consortium members met, with a select group of invited external experts, in the Supreme Court of Latvia in Riga in order to discuss the state of the art reports and identify synergies and dissonances across disciplines. The work undertaken in this workshop led to some revision of Deliverables 3.3 3.4 3.5 and 3.6 and greatly influenced the drafting of D3.2.
D3.2 drew together the insights generated across disciplines in Deliverables 3.3 3.4 3.5 and 3.6 in order to identify and propose cross-disciplinary understandings of the concepts of impact, legitimacy and effectiveness in the counter-terrorist context. In respect of impact¸ the report argued that impact can be understood as the effect or consequence a counter terrorism measure has. Impact in this sense can be negative or positive (and the same measure can have both negative and positive impacts), and can be direct or indirect. It can also vary over time, changing in extent and nature depending on context (e.g. whether in a period of emergency or normalcy). In order for impact to be comprehensively understood, the cross-disciplinary perspective suggests that direct and indirect impacts should be measured against multiple referents, which in turn should include societal groups, institutions, societal values and principles (such as democratic principles and the Rule of Law). The report also finds that the question of who measures impact is important. Institutional design may mean that some entities—such as courts—are capable only of examining impact to a limited extent, while others—such as politico-legal reviewers or parliamentary bodies—may have broader impact analysis capacity. The report argued that legitimacy is a nebulous term that can be said to comprise of numerous different strands including input legitimacy, process legitimacy, output legitimacy, outcome legitimacy, effective legitimacy, descriptive legitimacy and normative legitimacy. In the counter-terrorist context there is a close relationship between effectiveness and legitimacy, as measures that are perceived as effective are likely to enjoy enhanced legitimacy. Procedural and substantive mechanisms (such as sunset clauses) may be employed in an attempt to enhance legitimacy, including in politico-legal processes, and processes of legitimation in the counter-terrorist context can include the deployment of narratives such as those of exceptionalism, balance and trade-off. In respect of effectiveness the report argued that effectiveness relates broadly to the extent to which a measure achieves its intended outcomes, so that assessing and understanding effectiveness requires clear identification of those intended outcomes. Measuring or assessing effectiveness from societal, legal and democratic perspectives poses particular challenges because of information deficits and/or monopolisation, a failure to take second order effects into account, the conflation of compliance with effectiveness within official monitoring mechanisms, and institutional limitations, although effectiveness may be more susceptible to measurement from an operational perspective where the intended outcomes are clearly defined. The report also finds that across the disciplines surveyed there is a clear connection between effectiveness and outcome legitimacy, inasmuch as measures that are seen to be effective are likely to be perceived as having enhanced legitimacy from an outcome perspective.
D3.3 on the legal perspective, defined impact as the negative effect of a counter-terrorism measure on the protection of legally enshrined rights. This report found that, from a legal perspective, the relevant referent in an impact assessment is law itself, which can be understood in three different dimensions: the law as it applies to suspected terrorists directly affected by the measure, the law as it applies generally, and the Rule of Law in a more general and intangible sense. Vermeulen et. al. drew a distinction between the direct and indirect impact of counter-terrorist measures, meaning the effect of the measure on the legal status of those upon whom it is applied (direct impact) and its effect beyond that (indirect impact). As regards the first dimension the report argued that counter-terrorist measures can have direct impacts on suspected terrorists by, for example, providing that they are to be subjected to a restrictive measure without what would normally be considered to be due process or an adversarial trial process. An additional indirect effect arises from what Fenwick and Phillipson deem the ‘covert derogation’ from human rights norms and de Londras terms a general ‘downward calibration’ of legal protections. This reflects a general reduction in the level of rights protection including for those not suspected of involvement in counter-terrorism as a result of the counter-terrorist malaise, which can result in courts and political actors accepting that security concerns require an adjustment in our ‘normal’ standards of legal protection. As a general matter, the report found that it is accepted that counter-terrorism measures have legal impacts, manifested in the existence of a legally defined period of emergency in which ‘normalcy’ is suspended in order for the state to take actions that would otherwise violate constitutional and/or human rights standards, the so-called ‘emergency/normalcy dichotomy’. In both cases the question asked by law is not whether there are any impacts at all, but whether those impacts are permissible in terms of what the law regards to be acceptable levels of interference with the status quo ante as measured by legal doctrines such as proportionality, the margin of appreciation and so on.
In D3.4 on the operational perspective, it was argued that impact might be understood as the effect that operationalisation of counter-terrorist measures (understood as a process by which abstract or imprecise commitments, principles, measures and policies are translated into ‘on the ground’ action) has on the operational framework. In each of these areas impacts can be uneven, positive or negative. From an operational perspective, the impact of EU counter-terrorism may be national or transnational. In both respects, impact might be understood as the effect that operationalisation has on the operational framework, on roles, and on resources. At a national level the impact of operationalisation for the operationalising institution may, then, be empirically measurable inasmuch as a cost may be calculable. Operationalisation can also create impact at the European level, which might again be understood in terms of operational frameworks, roles and resources. The operationalisation of EU counter-terrorism law and policy may require leadership from one of more EU agencies and lead to the creation of new institutions or offices. It may also bring about either harmonisation or fragmentation of frameworks and systems used for particular purposes within the EU.
In D3.5 on societal impact, Méderic Martin-Mazé defines impact in a general sense as being ‘the effect yielded by a specific measure’, emphasising that in understanding such effects one must be cognisant of the unevenness of impact across both societal groups and societal values. This general concept of impact makes it clear that a comprehensive understanding of a measure’s societal impact requires a multi-layered approach that identifies and takes into account its effects across a number of different referents. The first important referent from the perspective of societal impact, then, is who is experiencing the effect. A second referent identified from the societal perspective is that of societal values. Here, again, the impact may appear different depending on which societal value is taken as the referent. A measure might, for example, be identified as increasing security but simultaneously increasing levels of state surveillance. This emphasises that in order for a measure’s societal impact to be appreciated a second referent must be taken into account: what is being affected. Measuring societal impact is, thus, a complex matter that requires an appreciation of the effects of the counter-terrorism measure on both a range of societal groups and all relevant societal values.
In D3.6 on the democratic perspective, Yulia Chistyakova considered that the impact of counter- terrorism can be understood as its effect on democracy, understood as the democratic principles of the relevant political system, governance practice and the demos. It is clear that the democratic perspective conceptualises impact across three referents: the relevant political system, practices of governance, and the demos itself. In the case of EU counter-terrorism, the relevant political system is the European Union itself. The EU’s democratic principles are those identified in the Treaty of the European Union, namely the indivisible, universal values of human dignity, freedom, equality and solidarity based on the principles of democracy and the rule of law. The report makes it clear that understanding impact by reference to democratic principles requires an assessment of both the impact of the measures in question on the maintenance of these principles and the impact of a climate of counter-terrorism on our understanding of the content of and a commitment to these principles. In this respect, it must be recalled that recourse to the exceptionalism debate and the prioritisation of security over liberty can lead to a reframing of democracy and radical adjustment in our understanding of its core content. As well as impacting on our understanding of and adherence to core democratic principles, a further impact of counter-terrorism from the democratic perspective can manifest itself in governance practices. These include the practice by which measures are introduced, debated, justified and assessed. As noted by Sjursen, and cited in the report, the extensive use of flexibility mechanisms and the employment of secrecy and urgency procedures associated with the adoption of CT measures tend to create greater distance, or ‘remove’ policies and processes from citizens’ influence. As a result, decision-making becomes less transparent and accountable and the link between the measures and democratic authorisation less tangible. The third referent from a democratic perspective is impact on the demos itself, particularly in relation to the restrictions on civil liberties and human rights and the uneven distribution of those restrictions across societal groups and, indeed, civil society organisations.
Building on the work in WP3, D3.2 (cross-disciplinary perspectives) made a number of observations on the concepts of impact, legitimacy and effectiveness, illustrated in Table 9.
Table 9. Cross-Disciplinary Perspectives
IMPACT • Relates to the effect or consequence a counter terrorism measure has.
• Must be understood in relation to relevant referents.
• Can be positive or negative; the same measure can have both positive and negative impacts
• Should be assessed across different referents.
• Can be direct or indirect.
• Can be temporally-variable, changing in extent and nature depending on context (eg. Emergency v normalcy)
• In order for impact to be comprehensively understood, direct and indirect impacts should be measured against multiple referents, which in turn should include societal groups, institutions, societal values and principles (such as democratic principles and the Rule of Law).
• The question of who measures impact is important. Institutional design may mean that some entities—such as courts—are capable only of examining impact to a limited extent, while others—such as politico-legal reviewers or parliamentary bodies—may have broader impact analysis
capacity.
LEGITIMACY • Is a nebulous term that can be said to comprise of numerous different strands including input legitimacy, process legitimacy, output legitimacy, outcome legitimacy, effective legitimacy, descriptive legitimacy and normative legitimacy.
• Is closely related to effectiveness in the counter-terrorist context, as measures that are perceived as effective are likely to enjoy enhanced legitimacy.
• Can be distinguished from processes of legitimation, which include the deployment of narratives such as those of exceptionalism, balance and trade-off in the counter-terrorist context.
• May be enhanced through the deployment of procedural and substantive mechanisms, such as sunset clauses.
EFFECTIVENESS • Relates broadly to the extent to which a measure achieves its intended outcomes, so that assessing and understanding effectiveness requires clear identification of a measure’s intended outcomes
• Is difficult to assess from societal, legal and democratic perspectives because of information deficits and/or monopolisation, a failure to take second order effects into account, the conflation of compliance with effectiveness within official monitoring mechanisms, and institutional limitations.
• May be more susceptible to measurement from an operational perspective where the intended outcomes are clearly defined.
• Operationally, relates to the extent to which an objective has actually been achieved and is measurable through monitoring mechanisms.
• Is related to outcome legitimacy, inasmuch as measures that are seen to be effective are likely to be perceived as having enhanced legitimacy from an outcome perspective.
Table 10. WP3 Deliverables
Deliverable Title Web Address
D3.1 Workshop
D3.2 Fiona de Londras, Josephine Doody, Janis Supe & Signe Zalkalne, Cross-Disciplinary Perspectives on Impact, Legitimacy and Effectiveness in the Context of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/02/Cross-Disciplinary-Report-.pdf
D3.3 Mathias Vermeulen, Daniel Deering & Sadhbh McCarthy (with research assistance from Carolin Möller), Report on Legal Understandings of Impact, Legitimacy and Effectiveness in Counter-Terrorism http://secile.eu/wp-content/uploads/2013/12/Report-on-Legal-Understandings-in-Counter-Terrorism-.pdf
D3.4 Fiona de Londras, Josephine Doody & Lt. Cdr. Erika Downing, Report on Operational Perspectives on Impact, Legitimacy and Effectiveness in Counter-Terrorism http://secile.eu/wp-content/uploads/2013/12/Report-on-Operational-Perspectives-on-Impact-Legitimacy-and-Effectiveness.pdf
D3.5 Méderic Martin- Mazé, Report on Societal Understandings of Impact, Legitimacy and Effectiveness in the Counter-Terrorism Context http://secile.eu/wp-content/uploads/2013/12/Societal-Report.pdf
D3.6 Yulia Chistyakova, Report on Democratic Understandings of Impact, Legitimacy and Effectiveness in the Counter-Terrorism Context http://secile.eu/wp-content/uploads/2013/12/Report-on-Democratic-Perspectives-in-Counter-Terrorism-.pdf
WP. 4 European Anti-Terrorism Legislation in Operation
The objectives of WP4 were to gather empirical information on the operation of a range of European security measures and develop and empirically-informed understanding of the perceived impact, legitimacy and effectiveness of European counter-terrorism measures across a diverse range of stakeholders. This was to be achieved by producing five deliverables: a case study on border surveillance (D4.1) a case study on the disruption of terrorist financing (D4.2) a case study on the European Arrest Warrant (D4.3) holding end user focus groups (D4.4) and supplementary stakeholder engagement (D4.5).
D4.1 takes the form of the scientific report, Law Enforcement Officers’ Perspectives on Impact, Legitimacy and Effectiveness of EU Border Control Databases. This report is based on the perspectives garnered in a focus group with seven law enforcement officers from four member states who are engaged in the use of databases for border surveillance across the member states. The participants in this focus group demonstrated reluctance to speak at length or in great detail about their particular experiences. Given these limitations, D4.1 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those law enforcement officers who participated therein. A full methodological outline is provided in the deliverable.
Law enforcement officers who participated in the focus group on EU border control databases generally considered that EU border control databases made Europe more secure and aided law enforcement officers in carrying out their roles, although it was felt that they were not sufficient on their own. A number of participants raised concerns as to deployment of the correct databases, training, and the increasing complexity of databases: factors that might undermine their positive impact on European security. A number of participants represented these databases as being a corollary of the free movement within the EU. Law enforcement officers who participated in the focus group on EU border control databases considered legitimacy across the three themes of lawfulness, transparency and rights. Their discussion focused on the legitimacy of border control databases in particular, and not on border control per se. In terms of lawfulness, participants noted that legality is key to legitimacy, but went on to say that ‘mere’ lawfulness is not sufficient. In addition, some participants raised questions about the implications of the development of SIS II for lawfulness and especially compliance with human rights, given the increased sophistication of this database in terms of the data that is entered into it. Participants also noted that control over and transparency about how databases are used are important from the perspective of lawfulness and legitimacy. Transparency was an important element of the discussion of legitimacy, with some participants noting that more external controls (from the judiciary, NGOs and so on) might enhance transparency and, thus, legitimacy. Participants disagreed as to whether data protection law strikes the right balance between rights protection and law enforcement’s need to access data. Law enforcement officers who participated in the focus group on EU border control databases had differing opinions on the effectiveness of these databases. In terms of effectiveness, participants stressed the need to make clear what databases one was talking about when assessing effectiveness, as there is a wide array of public and private databases that might be accessible to law enforcement. Building on this, participants noted that the range of databases was expanding, introducing increasing complexity. Training and experience in using databases were, thus, stressed as key to their effectiveness. Although training and experience were identified as key factors in the effectiveness of such databases, a number of participants also stressed the importance of appropriate information-sharing in this respect. Without the exchange of information between national authorities databases of this kind might not contain the data required for them to be effective, however challenges of trust were raised as significant barriers to the sharing of information through databases. Not only might insufficient information-sharing undermine effectiveness but so too, some participants noted, can the sharing of ‘irrelevant’ information by national authorities. Overall, participants tended to opine that databases were more effective in countering organized crime than terrorism per se.
D4.2 takes the form of the scientific deliverable Counter-Terrorist Finance Operatives’ Perspectives on Impact, Legitimacy and Effectiveness of EU Counter-Terrorist Finance Law and Policy. This report is based on the perspectives garnered in a focus group with eleven counter-terrorist finance operatives from nine member states. These participants held, or had held, positions in national authorities that dealt with counter-terrorist finance law and policy and were knowledgeable as to the operation of the system and the dynamics that led to its implementation in EU law and policy. However, given the limitation of focus groups as a methodology, D4.2 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those who participated therein. A full methodological outline is provided in the deliverable.
Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy noted the difficulty in determining the impact of counter-terrorist finance law and policy given the absence of a means to measure the risk of terrorist financing and the complexity of the system. Participants felt counter-terrorism measures in this area were more likely to serve a disruptive function rather than ending terrorism per se. The participants were aware of the obligations on the financial service sector and acknowledged the need for a co-operative relationship between the state and financial service sector in order for such measures to be successful. A key consideration for participants was the extent of the US role in European policy. Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy generally agreed that the disruption of the financing of terrorism was legitimate because it has a ‘democratic basis’ in EU treaties and in the need for the free movement of citizens. Legitimacy for many participants was linked to the achievement of a measure’s goal, i.e. based on the measure’s ability to prevent the financing of terrorism. Participants considered a number of themes in relation to assessing legitimacy, particularly the formal legitimacy of EU treaties, the need for transparency and outcome legitimacy. Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy felt that merging anti-money laundering and counter-terrorist finance policy might hinder the effectiveness of such a policy in countering terrorism. Financial Intelligence Units played a role in the participants’ understanding of counter-terrorist finance law and policy and participants considered whether they are to be best understood as a financial intelligence service. Some participants noted the role of asset-freezing sanctions and the challenges of effectiveness, particularly in relation to a lack of political agreement as to which organisations should be blacklisted and the use of litigation to oppose such decisions. Participants disagreed on the question of whether measures should aim for prosecution or prevention.
D4.3 takes the form of scientific deliverable Prosecutors’ and Government Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant. This report is based on the perspectives garnered in a focus group with eight prosecutors and government officials from seven member states. These participants had first hand knowledge of the European Arrest Warrant (EAW) and and were knowledgeable as to its operation. Their familiarity with the relevant law and jurisprudence as said to be “remarkable”. However, given the limitation of focus groups as a methodology, D4.3 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those who participated therein. A full methodological outline is provided in the deliverable.
Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) shared the view that the EAW had a positive impact on criminal justice co-operation in general and their discussion highlighted the broader effect of the measure following the events of September 11 2001. Participants emphasised that the EAW is not primarily a counter-terrorism measure but a necessary corollary of the free movement of individuals within the European Union. Participants agreed that the European Arrest Warrant potentially had a (negative) impact in the displacement of crime. Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) identified the existence of an appropriate legal framework as the starting point to measuring legitimacy. Participants considered a number of themes in relation to assessing legitimacy, particularly legal, rational (in accordance with a rational or reasonable policy goal), and social legitimacy, whilst recognising that legality alone is not sufficient to ensure legitimacy. Participants noted the importance of considering how those who are subject to the system view the measure as a means of assessing social legitimacy. The need for proportionality in enforcement was also recognised as an important element in ensuring overall legitimacy. Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) discussed the challenges to the effectiveness of this measure, particularly safeguards for those who are subject to EAW requests and refusal to execute EAW requests on human rights grounds. Some participants demonstrated skepticism around the idea of requests being challenged in court on human rights grounds. Participants recognised that the EAW both requires mutual recognition based on mutual trust and contributes to such mutual recognition and trust. Effectiveness was considered in terms of whether a speedy surrender was possible and participants largely agreed that the EAW is an effective measure contributing to the process of bringing suspects to trial. Participants in this discussion linked effectiveness to the concept of legitimacy.
D4.4 took the form of four focus groups held in London in December 2013. Three of these were focus groups of operational end users and fed into Deliverables 4.1 4.2 and 4.3 as described above. The fourth of these was a focus group of seven representatives of civil society. Given the limitations of focus groups as a methodology no attempt is made to generalise from the perspectives presented in this focus group, however given the richness of the information generated a supplementary report was prepared based on this focus group, entitled Civil Society Perspectives on the Impact, Legitimacy and Effectiveness of European Counter-Terrorist Measures.
Civil society focus group participants identified three key elements of impact in respect of border control databases: focus, political agendas and fundamental rights. Some participants felt that in order to measure the impact of border control databases it was necessary to determine the focus of the measurement rather than looking at border control as a whole. Thus, for example, impact might be considered in relation to activities such as the exchange of data or how it is used in this context. Some participants noted that instead of looking at particular measures, impact could be considered by looking at the different aims of border control as a general matter. Participants also suggested that impact could be measured by reference to privacy. The participants stressed that when considering impact attention ought to be given to whether the databases are being used for functions beyond their original rationale, which might be positive or negative from an impact perspective. Interestingly, civil society participants generally felt that effectiveness is of limited relevance in the context of border control: it was felt that such measures would consider to be applied whether effective or not, largely for political reasons. Civil society focus group participants considered the procedure used to change databases and expressed concern about the legitimacy and impact implications of such apparently ‘technical’ amendments. Participants of the civil society focus group discussed effectiveness in relation to counter-terrorist finance law and policy as an indicator of a positive impact but participants also identified the negative impact of such systems on NGOs and their ability to do their work due to financial regulations emanating from this system. The dangers of discrimination in the application of the system for disruption of terrorist financing were explored and one participant noted the need to rely on ‘hard intelligence’ only in subjecting people to such measures. Civil society focus group participants viewed the effectiveness of counter-terrorist finance law and policy as relating to whether the measures perform their intended function, although participants regarded this as being extremely difficult to establish. Civil society focus group participants considered legitimacy to be closely connected with proportionality and the degree ‘democratic control’ over the measure. The motivation for introducing the measures was also considered important in relation to effectiveness by the focus group participants. Civil society participants were generally less enthusiastic about the EAW than were operational end users. The civil society participants discussed the need for more quantitative data on the application of the European Arrest Warrant in order to understand its practical impact but noted that relying only on ‘figures’ in measuring impact would exclude important societal elements of an impact assessment. Participants explored positive impact in the context of the measure facilitating states in arresting an individual who has crossed an EU border. Civil society focus group participants felt the effectiveness of this measure might also be considered in light of the practical harmonisation of rules and legislation across member states. Participants also discussed the need to consider a cost-benefit analysis of the measure to determine whether it is effective, which assessment should be undertaken in a manner that includes discussions with stakeholders. Participants identified timing, procedure and motivation as important issues when assessing the legitimacy of the EAW. In this respect, participants raised concerns as to the timing of the measure’s final introduction following events such as 11 September 2001, which gave rise to the perception that it was motivated by the attacks, even though the proposal for the EAW predated ‘9/11’. Thus, the process by which the measure was introduced and an understanding of driving forces behind it were recognised as being important to legitimacy. It was also noted that the ways in which a measure is used, and transparency in relation to it usage, might influence perceptions of its legitimacy.
D4.5 took the form of ten semi-structured interviews with policy-makers in and beyond EU agencies and institutions which were undertaken in January and February of 2015. Given the limitations of interviews as a methodology, no attempt was made to generalise from these interviews. However, the richness of the interviews resulted in a report being prepared entitled Policy-Maker Perspectives on Impact, Legitimacy and Effectiveness in EU Counter-Terrorism. Interviewees were asked their views on impact, legitimacy and effectiveness in EU counter-terrorism generally, and on border surveillance, counter-terrorist finance and the EAW.
Of the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, a small number directly addressed the Schengen Information System (SIS) in relation to its policy implications, particularly ameliorating risks arising from the Schengen travel area and providing a supplementary tool to domestic systems. Interviewees noted that the SIS is not perceived as a counter-terrorist measure. One interviewee noted that it is relatively easy to determine the effectiveness of the SIS due to the practical structure of the system but a number of policy-makers and operational actors felt the discretionary nature of entering information in the system raised questions of effectiveness. Of the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, a small number made reference to the EU’s counter-terrorist financial disruption system in relation to the implications of listing from a criminal law perspective and policy implications of allowing a suspected terrorist to be represented in the listing decision. One interviewee noted the complicated nature of investigations relating to terrorist financing. From the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, the impression of the European Arrest Warrant was largely positive in relation to the measure’s original policy objectives. It was recognised that the measure has succeeded in speeding up extradition between Member States, thus addressing delays in extradition which had previously been a cause for concern. The European Arrest Warrant was also recognised as contributing to the development of a European judicial space and better coordination between member states. One interviewee noted that figures on the use of European Arrest Warrant system made a quantitative analysis of the effectiveness of the measure relatively straightforward although a cautionary note was sounded by another interviewee as to the usefulness of statistical analysis when measuring effectiveness. Whilst policy-makers and operational actors recognised the contribution of the European Arrest Warrant to cross-state joint exercises it was noted that a review of the measure’s operation may be timely.
Moving beyond these specific areas, the interviewees provided a rich seam of perspectives on the concepts of impact, legitimacy and effectiveness within the context of EU counter-terrorism generally.
Interviewees emphasised the importance of understanding the referent when we consider impact. A number of interviewees approached impact from the perspective of the individual. This entailed a consideration of the impact of counter-terrorist measures on the enjoyment of individual human rights and an appreciation of the extent to which a human right has been infringed. There was a recognition that individuals do not exist in a vacuum but rather come together to form communities and societies and therefore impact can be approached from this broader societal level. Considering impact at the societal level entails exploring how counter terrorist measures affect our democratic values, practices and principles. Interviewees considered impact across five categories: economic impact, operational/practical impact, impact on level of security, impact on operational actors, and political/diplomatic impact. All participants noted that one challenge of understanding impact is that some impacts are quantifiable and ‘measurable’ (for example economic impacts) while others are more qualitative and thus more difficult to assess and take account of. The assessment of impact can take place both ex ante and ex post facto. While the ex ante assessment is intended to give a rigorous evidence base for political decisions as to which counter-terrorist measures to introduce, ex post facto assessments ideally have an evaluative function. Some interviewees raised concerns about the utility of considering impact in a pan-European way as impact will vary depending on one’s starting point: on the existing legal framework, history and experience of each individual country. A further concern about understanding impact that was raised related to poor communication within the policy-making process which can lead to a disconnect between the strategic and the operational level and between the European and the local level.
Interviewees identified three core components of legitimacy: legality, process and something that extends beyond the law into the area of morals and ethics. Firstly, legality (i.e. compatibility with primary and secondary law) was identified as a sine qua non of legitimacy. In this respect the concept of proportionality as a mechanism of considering lawfulness was raised on a number of occasions. In respect of process, interviewees opined that how a law was adopted, who by, and under which processes were significant considerations. In this respect, attention was drawn to participation, deliberation, contestation, reviewability, and learnability in the development, implementation and review phases. In terms of development, interviewees considered necessity, proportionality and fairness to be related to legitimacy, while levels of domestic implementation were considered indicators of perceived legitimacy. Some participants raised questions of legitimacy in respect of very technical implementation and development modalities, which may not be exposed to the same public debate or rigour as the broader political policy being pursued. Some interviewees also identified the output from use of a measure (e.g. a successful prosecution) as an indictor of legitimacy. Going beyond legality and due process, there is a question of legitimacy in terms of moral and ethical considerations, such as the tension that exists between transparency and secrecy. Assessing the balance between these values was considered to have legitimacy implications. This reflects the fact that interviewees identified accountability, transparency, participation and democracy as core values that are implicated in a discussion of legitimacy, although they acknowledged that particular challenges might arise in the context of security. In this respect, things like classification of documents in the EU, the role of courts, and the role of independent review were raised as ways of potentially addressing these challenges. A key question that arose in the interviews related to how legitimacy can be measured. It was generally felt that legitimacy can be measured in a legal sense by reference to the concepts of necessity and proportionality. In this respect, courts may ultimately make the decision as to actual legitimacy considered from a legal perspective, however even in this respect there are a number of important stages involved in ensuring the legitimacy of a legislative measure including proposal, consultation with stakeholders, impact assessment and engagement of lots of different bodies. Furthermore, as legitimacy was generally considered to be ‘legality +’ understanding each of these layers are being part of the process of ensuring legitimacy is important. What came across clearly in the interviews, however, is that regardless of the process, ultimately what determines the outcome of any process relating to counter-terrorism is political will: in the absence of a definitive legal decision as to ‘legitimacy’ (i.e. a court case), political judgment determines proportionality, necessity and ultimately legitimacy.
Objectives and purpose played a central role in the interviewees’ conceptualisation of effectiveness, with interviewees generally equating ‘achievement of objectives’ with effectiveness. However, some interviewees recognised that objectives may shift and that a measure might not achieve its original objective but prove to be quite useful in achieving another. In this context it was considered that a measure might still be considered effective when considered against ‘broader’ security-oriented and counter-terrorist objectives, although this may have implications for the legitimacy of a particular measure. Interviewees agreed that linking effectiveness with objective and purpose may be quite a simplified way of approaching the concept and that, when so conceptualised, effectiveness may be complicated with the introduction of other issues such as weaknesses in the policy-making process, a deeper excavation of the actual purpose and the possibility of unanticipated consequences. Interviewees agreed that assessing the effectiveness of a counter-terrorism measure can be challenging as, in some cases at least, effectiveness may be indicated by a lack of terrorist incidents, which may also be explicable by a range of other elements. In such circumstances, interviewees considered that it might be helpful to consider other components of effectiveness and to differentiate between perspectives (legal, operational, etc). From a legal perspective we might consider effectiveness by reference to the comprehensiveness of the governing legal framework relating to terrorism and counter-terrorism and the role that a particular measure plays within that system. Effectiveness within the operational framework might be considered by reference to the ease and speed with which a measure can be deployed in practice. From a societal perspective we might consider the effectiveness of a measure in terms of the wider impact that it has on society and on particular communities within society. Making wider societal links suggests that a measure can be effective in one way, but disruptive or harmful in others. Added to this complexity is the fact that effectiveness may change over time. As one measure is effective, terrorists innovate and identify new routes, opportunities and means. The effectiveness of counter-terrorism measures thus requires constant re-evaluation. From a law enforcement perspective, statistics might be used to assess effectiveness. However, interviewees raised a number of concerns in relation to the use of statistics to indicate effectiveness most particularly the manipulability of statistics, the limited nature of statistics, and the impossibility of capturing some disruptive successes in statistical form. One interviewee suggested that the most approach might be to instigate broader process of evaluation including but going beyond statistical and quantitative enquiry.
Table 11. WP4 Deliverables
Deliverable Title Web Address
D4.1 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Law Enforcement Officers Perspectives on Impact, Legitimacy and Effectiveness of EU Border Control Databases http://secile.eu/wp-content/uploads/2014/07/BOR_Report_Public.pdf
D4.2 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Counter-Terrorist Finance Operatives Perspectives on Impact, Legitimacy and Effectiveness of EU Counter-Terrorist Finance Law and Policy http://secile.eu/wp-content/uploads/2014/07/CTF_Report_Public.pdf
D4.3 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Prosecutor and Government Official Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant http://secile.eu/wp-content/uploads/2014/07/EAW_Report_Public.pdf
D4.4 End User Focus Groups
D4.5 Fiona de Londras and Josephine Doody, Policy-Maker Perspectives on Impact, Legitimacy and Effectiveness in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/07/Policymaker-Perspectives-on-Impact-Legitimacy-and-Effectiveness-in-EU-Counter-Terrorism-.pdf
D4.6 Rozemarijn van der Hilst, Civil Society Perspective on the Impact, Legitimacy and Effectiveness of European Counter Terrorism Measures http://secile.eu/wp-content/uploads/2014/07/Civil-Society-Perspective-on-the-Impact-Legitimacy-and-Effectiveness-of-European-Counter-Terrorism-Measures.pdf
WP5. Generating Normative Insights
The objectives of work-package five were to synthesise the findings of WP4, 3 and 2 in order to generate practicable, original and innovative insights on impact, legitimacy and effectiveness in EU counter-terrorism, and to support the production and publication of cutting edge scientific publications emanating from SECILE. These objectives were to be met through four deliverables: identification of best practice (drafting and reviewing) (D5.1) identification of best practice (transposing and reviewing) (D5.2) production of an end-user oriented report on key concepts (D5.3) and a scientific publication (D5.4).
D5.1 and 5.2 were undertaken based on careful analysis of all outcomes from WP2, 3 and 4. The final best practice guides made the following proposals as to best practice:
In order to better understand the impact of counter-terrorism measures, assess their effectiveness, and enhance their legitimacy the following best practice guidelines ought to be born in mind when drafting and reviewing measures:
1. Systems for taking rights and societal impacts into greater account in making counterterrorism law and policy should be introduced. These might include (a) consultation with a wide range of stakeholders, including NGOs and offices established for the protection of rights within the EU, (b) giving appropriate weight to the views and evidence offered in respect of rights and societal impact, recognising the expertise of human rights professionals, and (c) systematically involving the European Parliament and its committees in debating proposed counter-terrorism measures, testing the rigour of the evidence base underlying them.
2. Review of the operation of EU counter-terrorism should be systematic, regular, as public as possible, and evaluative. It should also be capable of bringing about change to counter-terrorism law and policy where questions of legitimacy, ineffectiveness, or disproportionate societal impact arise. This could be achieved by (i) regular Parliamentary review in the European Parliament, (ii) establishing an EU Counter-Terrorism Reviewer as an independent EU-wide office, (iii) collaborative review with national oversight bodies, or (iv) a combination of all three. The results of these reviews should be public, and relevant EU institutions should be required to respond to the outcomes within six months of completion of the review.
3. In making and reviewing EU counter-terrorism the principle of participation should be honoured, so that a wide base of stakeholders are formally involved. The extent of participation may differ between ex ante and ex post facto procedures, but in each case key stakeholders must extend beyond industry and security experts to include civil society and specialist agencies with rights-related ambits.
4. In order to achieve greater democratic accountability steps ought to be taken to ensure greater transparency while bearing in mind the genuine concerns that exist in relation to security and secrecy. Transparency about processes of policy-making, political decision making, the extent and cost of EU counterterrorism, its practical operation and its implications for individual and societal rights and values is central to enhancing the legitimacy of the EU’s counter-terrorism. Bearing in mind the tensions between secrecy and security, approaches to transparency ought to be both innovative and appropriate. These may include reforming the system of classification of information in the EU, and establishing a security-cleared committee of the European Parliament to hear evidence where absolutely necessary.
In order to better understand the implementation of EU counter-terrorism measures in member states, the following best practice guidelines were generated for the transposition and review of EU counter-terrorist measures:
1. Each measure requiring transposition in national law should include a provision for review. The review ought to encompass both the transposition of measures and assessment of their implementation and operation.
2. Review of the transposition and implementation of EU counter-terrorism measures in national law ought to be complemented by an overall analysis of these trends across the member states in order to identify underlying factors for failure to implement. Such an assessment may flag the legal, cultural and political reasons for inconsistency in transposition across member states and, in turn, identify issues that ought to be taken into account in the design of EU measures in future. Such review would complement and/or replace infringement proceedings.
3. Following implementation, consideration should turn to how the measure works in practice, which should be evaluated through a robust programme of monitoring and evaluation. Such reviews require productive engagement with national authorities, agencies, and oversight mechanisms. These reviews ought to feed into wider, institutional EU reviews of counterterrorism which might take place by means of (i) regular Parliamentary review in the European Parliament, (ii) establishment of an EU Counter-Terrorism Reviewer as an independent EU-wide office, (iii) collaborative review with national oversight bodies, or (iv) a combination of all three. The results of national and EU-wide reviews should be as public as possible, and require response from relevant national and EU institutions within six months of completion of the review.
D5.3 was completed in September 2014 and presented the key findings from the project in accessible and end user oriented language. The report, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism is available online, was distributed to all those who attended the final conference, and has also been distributed in hard copy to Members of European Parliament, Chairs of European Parliament Committees, Ministers of Justice and Foreign Affairs, SECILE advisory board members and SECILE workshop attendees.
D5.4 takes the form of an edited collection, co-edited by Fiona de Londras and Josephine Doody, entitled The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism. It will be published by internationally recognised publishing house Routledge in early 2015 and is available for pre-order. The collection brings together the results of the research with some further normative and scientific perspectives. It has been peer reviewed, and the reviewers’ comments included the following: “SECILE represents an important development in this area and I see much value in having its main findings contained in one single volume” (Reviewer 1), “The main strength of the project is that it brings together scholars from three different areas (law, sociology and politics) to explore different aspects of EU Counter-terrorism” (Reviewer 1), “The proposal is an important contribution in that it brings together contributions from different disciplines to examine in detail counter-terrorism law and policy in the EU” (Reviewer 2). The manuscript has been delivered to the publisher and the table of contents is as follows:
1. Introduction: The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism
Fiona de Londras & Josephine Doody
2. Taking stock: the evolution, adoption, implementation and evaluation of EU counter-terrorism policy
Ben Hayes and Chris Jones
3. The Institutional Framework Of EU Counter-Terrorism
Josephine Doody
4. Assessing Counter-Terrorism as a Matter of Human Rights: Perspectives from the European Court of Human Rights
Mathias Vermeulen
5. The societal impact of European counterterrorism
Médéric Martin-Mazé and J. Peter Burgess
6. Democratic legitimacy, effectiveness and impact of EU counter-terrorism measures
Yulia Chistyakova
7. Social appropriateness in EU’s counter-terrorism law and policy
Bruno Oliveira Martins
8. The Perspectives of Counter-terrorism Operatives on EU Counter-terrorism Law and Policy
Cian C. Murphy, Aldo Zammit Borda & Lucy Hoyte
9. Civil Society and Policy Maker Perspectives on EU Counter-Terrorism
Josephine Doody and Rosemarijn van der Hilst
10. Governance Gaps and EU Counter-Terrorism: The Importance of ‘Closing the Loop’
Fiona de Londras
In addition to the formal deliverables in WP5, a 4-page briefing document was prepared by Durham Law School to illustrate the key findings of the project. This briefing document, which was distributed to all those who attended the final conference and is available on the Durham Law School and SECILE web-pages presents key messages and findings in an accessible format, oriented towards politicians, media, researchers and interested members of the public. The Durham Law School briefing paper series is designed to give the reader a flavour of major research projects within the department, and the briefing papers are widely disseminated through the website and the Durham Law School social media accounts, as well as in hard copy.
Table 12. WP5 Deliverables
Deliverable Title Web Address
D5.1 SECILE Consortium, Identification of Best Practice (Drafting & Reviewing)
Produced as Best Practice in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_Best-Practice_4.pdf
D5.2 SECILE Consortium, Identification of Best Practice (Transposing & Reviewing)
Produced as Best Practice in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_Best-Practice_4.pdf
D5.3 SECILE Consortium, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_doc_amended.pdf
D5.4 Scientific Publication
Briefing Paper. The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/10/TheImpactLegitimacyAndEffectivenessOfEUCounter-TerrorismFindingsandProposals.pdf
Table 13. Full List of Deliverables
Work Package Deliverable Number Deliverable Title
Work Package 1 D1.1
D1.2
D1.3
D1.6
D1.7
D1.8
D1.9 Consortium management, financial oversight and final report
Report 1 including financial report
Report 2 including financial report
Ethics Report 1
Ethics Report 2
Final Report
Ethical Approvals from Relevant Bodies
Work Package 2 D2.1
D2.2
D2.3
D2.4 Database of EU Counter-Terrorism Laws since 2001
Comparative report on Transposition
Catalogue of ‘Built-In’ Assessment Methods
Analysis of Data Retention Laws
Work Package 3 D3.1
D3.2
D3.3
D3.4
D3.5
D3.6 Workshop on State of the Art
Report on State of the Art across Disciplines
Report on Legal State of the Art
Report on Operational State of the Art
Report on Societal State of the Art
Report on Democratic State of the Art
Work Package 4 D4.1
D4.2
D4.3
D4.4
D4.5
D4.6 Case Study on Border Surveillance
Case Study on Disruption of Terrorist Financing
Case Study on European Arrest Warrant
End User Focus Groups
Stakeholder Engagement
Civil Society Perspective on the Impact, Legitimacy and Effectiveness of European Counter Terrorism Measures
Work Package 5 D5.1
D5.2
D5.3
D5.4 Identification of Best Practice (Drafting & Reviewing)
Identification of Best Practice (Transposing and Reviewing)
End-User Oriented Report on Key Concepts
Scientific Publication
Work Package 6 D6.1
D6.2
D6.4
D6.5
D6.6 Website: Establishment
Website: Maintenance
Dissemination Report
Production of Best Practice Guides
Final Conference
Key Findings/ Recommendations
The SECILE project has resulted in the following findings and recommendations as to the impact, legitimacy and effectiveness of EU counter-terrorism.
Understanding Impact
Bringing together all of the research undertaken within the research project, a number of key observations about understanding and measuring impact within the context of EU counter-terrorism can be drawn out.
First, impact can only be understood in relation to a referent: who or what does the measure have an impact on? In order to have a comprehensive analysis of the predicted or actual impact of a measure, a range of referents is required. These include (i) societal groups, (ii) operational actors in the counter-terrorist field, (iii) national and transnational economies, (iv) politics including international diplomacy, (v) law and legal systems (including legal procedure), (vi) overall security, and (vii) the security concern that the measure is designed to address. In respect of each of these referents consideration should be given to direct, indirect, national, transnational, positive and negative impacts.
Impact analysis takes place at different stages of the lifecycle of a measure, and it may not always be appropriate to apply the same analytical approaches at the ex ante stage as at the ex post facto stage. Furthermore, it may be appropriate to consult a more diverse set of stakeholders when assessing actual impact than was the case when assessing predicted impact. At the ex ante stage it may be that certain experts and independent office holders are consulted as proxies for societal groups and interests, for example, that might then be capable of participating in a retrospective impact analysis, thus ensuring a diverse range of views and perspectives. In addition, impact assessment ought to be undertaken with a critical appreciation of the strategic viewpoints and interests at play, including political and industry interests.
In the context of counter-terrorism in the EU, concerns are raised in the research about the processes of impact assessment in respect, specifically, of (a) the ex ante impact assessment which appears at times to over privilege economic and operational perspectives over societal and rights-related ones; (b) the lack of systematic ex post facto review and evaluation to consider the ‘real’ impact of measures; (c) the somewhat limited nature of ‘legal’ analyses of impact when broader societal, political and security concerns are taken into account.
Understanding Legitimacy
Bringing together all of the research undertaken within SECILE, a number of key observations about understanding and measuring legitimacy within the context of EU counter-terrorism can be drawn out.
First, legitimacy can be understood across a number of different dimensions relating to process, content and practice. A comprehensive legitimacy analysis would take all of these elements into account, spanning the processes of making, applying and reviewing counter-terrorism. Furthermore, any such legitimacy analysis would recognise that output and outcome are not synonymous in EU counter-terrorism, i.e. that the ‘effectiveness’ of a measure (considered further below) is not proxy for the legitimacy of the output of a process (i.e. the measure itself).
In respect of making counter-terrorism law and policy, participation (including consultation) and accountability were identified as key elements of legitimacy. In this respect, participation involves not only the potential for affected stakeholders and communities to engage with practices of law- and policy-making directly, but also through the involvement of democratic representatives such as members of the European Parliament. Serious concerns about the marginalisation of the Parliament before the implementation of the Lisbon Treaty emerged in the research. Furthermore, concerns about information sharing in order to ensure meaningful participation and accountability were raised. Some particular legitimacy concerns arose in respect of highly technical stages of the development or implementation of policy, which may not be subjected to same levels of scrutiny or oversight as earlier, more policy-level stages in development, although this concern was not shared equally across research participants.
The research identified a lack of systematic review of the operation of EU counter-terrorism measures, which raised concerns as to legitimacy. This reflects the finding that legitimacy may be temporally contingent, reflecting the fact that a measure might be considered to be necessary and proportionate at one time but, as circumstances change, either the negative impact of the measure might be greater than anticipated thus suggesting disproportionality or the broader context may change in a manner that otherwise calls the appropriateness of the measure into question. Furthermore, measures designed to address one security concern may be applied in other contexts, without an appropriate assessment of impact and effect having been undertaken ex ante. The lack of systematic processes of review to identify any such adjustments or trends calls the legitimacy of these measures’ continuing application into question.
At all levels of assessing legitimacy a tension between transparency and security may arise, relating to classified documents, information and intelligence held by national authorities alone, and political concerns. Enhancing the legitimacy of EU counter-terrorism requires the design and implementation of mechanisms of managing these tensions in line with the principles of participation and accountability (including parliamentary oversight at European and, arguably, national level of the implementation of EU counter-terrorism measures).
Understanding Effectiveness
Bringing together all of the research undertaken within SECILE, a number of key observations about understanding and measuring effectiveness within the context of EU counter-terrorism can be drawn out.
At its most basic effectiveness can be understood as the extent to which objectives for the measures in question have been achieved. In the context of counter-terrorism this simple conceptualisation is complicated by three factors: (i) the fact that discrete measures are part of a broader system of counter-terrorism and may have both meta objectives (relating to security generally) and specific objectives (relating to the measure in particular), (ii) the fact that meta- and specific objectives may not be clearly identified in some cases, and (iii) the possibility of measures designed for one purpose being applied to other issues or having unanticipated impacts in relation to other areas. Furthermore, the perceived effectiveness of a measure is likely to bear some relationship to the perspective, priorities and broader purposes or aims of the person or entity making the assessment.
Given the temporally contingent nature of much of counter-terrorism, bearing in mind shifting threats, opportunities and (geo) political realities, effectiveness ought to be reviewed and assessed on a relatively regular basis. In this respect, the limitations of a purely statistical or quantitative evaluation need to be borne in mind: statistics are neither exhaustive indicators of effectiveness nor necessarily objective. Furthermore, while a measure might be effective in one sense (for example by disrupting apparent routes of terrorist financing), it might be ineffective in others (for example by introducing inefficiencies in financial governance, incentivising adaptation and innovation by terrorist organisations, undermining social cohesion, or undermining fundamental rights).
The research undertaken within SECILE suggests that regular, systematic and evaluative assessments of the effectiveness of EU counter-terrorism are frequently lacking suggesting, as a result, that there is insufficient understanding of the extent to which the many and diverse measures introduced since 2011 achieve the meta-objective of a more secure Europe when considered in concert or the specific objectives for which they were introduced.
Proposals for reform
Based on the insights gleaned from the research in SECILE the following reforms for the better understanding, measurement and analysis of impact, legitimacy and effectiveness of EU counter-terrorism are made.
Proposal 1: Enhance the Assessment of Rights-Related Impact
The practice of the EU institutions at present suggests that while societal impact, including rights-related impact, is recognised as part of the impact assessment both ex ante and ex post facto it is under-analysed and the process by which an assessment of proportionality of proposed measures is reached is unclear. While it is extremely difficult to predict rights-related impact with certainty in advance of introducing a measure, more attention should be given to the views and estimations of specialist actors with responsibility for rights assessments such as the EUDPS and FRA in preparing ex ante impact assessments. Where there is an ex post facto assessment the practical operation of the measure, assessed from a number of different perspectives (including those of affected communities), should be taken into account in order to revisit, enrich and complicate the necessarily speculative ex ante assessment.
This relates to the importance of ensuring appropriate participation in impact assessment. It is acknowledged that, in preparing ex ante impact assessments the European Commission does involve a range of stakeholders, including civil society actors. In addition, when proposals are being considered in the European Parliament and its committees, external stakeholders such as community groups, NGOs and academics may be called upon to participate. In this respect it is essential that any ex post facto review in particular would be designed in a manner that first reviews whether the original stakeholders ought to be invited to contribute again and, furthermore, whether practice relating to the measure in question suggests that a broader consultation ought to be engaged with (either by invitation or public consultation or both).
Participation is widely recognised as a key legitimacy-indictor, however the particular nature of counter-terrorist decision-making is such that maximum participation may not be appropriate or possible. This relates to transparency concerns considered below. However, even bearing this in mind a greater degree of meaningful consultation with key stakeholders is likely to increase the perceived legitimacy of EU counter-terrorism. In this respect, key stakeholders must extend beyond industry and security experts but also include civil society and specialist agencies with rights-related ambits, although participation need not necessarily be the same at different levels of the decision-making process.
Proposal 2: Enhance Democratic Oversight
A number of concerns about democratic oversight of EU counter-terrorism arose in the research and, while changes introduced by the Lisbon Treaty will enhance parliamentary engagement with counter-terrorism, the European Parliament ought to be empowered to engage in more effective and closer oversight in this field. This is especially so as a large amount of EU counter-terrorism takes place by means of non-legally-binding measures and initiatives in relation to which greater and more meaningful participation would be welcomed in line with the EU’s general commitment to openness in decision-making. In addition, the oversight capacity of the European Parliament would be enhanced through the use of closed sessions in limited circumstances in order for committees to engage with national and European authorities in respect of security-sensitive and classified information, where such a committee would work in accordance with international standards for intelligence and security oversight as well as for classification of information.
Proposal 3: Enhance Transparency
In order to achieve greater democratic accountability steps ought to be taken to ensure greater transparency while bearing in mind the genuine concerns that exist in relation to security and secrecy. Transparency about processes of policy-making, political decision-making, the extent and cost of EU counter-terrorism, its practical operation and its implications for individual and societal rights and values is central to enhancing the legitimacy of the EU’s counter-terrorism. However, transparency cannot be pursued to the extent that security-sensitive information becomes publically available thus jeopardising collective security. Thus, approaches to transparency ought to be both innovative and appropriate.
As well as reforming the system of classification within the EU, consideration ought to be given to means of enhancing the transparency of policy-making in EU counter-terrorism. Although some elements of the decision-making process in EU counter-terrorism may need to remain largely undisclosed to the general public, in both these and other fields a layered approach to transparency might be devised that enhances legitimacy. First, general policy-making ought to participatory and subject to as open a method of decision-making as possible. Second, decisions as to the degree of publicity that can safely be attributed to a particular process of devising a measure, protocol, legislative proposal etc ought to be made by reference to objective criteria relating to security risk of disclosure. Third, where a closed process is appropriate and required by reference to objectively assessed security concerns, alternative mechanisms of ensuring participation and transparency (such as briefing security-cleared committees of the European Parliament) ought to be embraced. Fourth, highly technical and technocratic stages of development should be preceded by a general policy-making process that embraces the principle of transparency. In all cases, and especially where publicity has been limited, a transparent process of ex post facto review ought to be engaged in, albeit subject to necessary security limitations in terms of information disclosed to the general public
Proposal 4: ‘Close the Loop’ by Systemising Review
Ensuring systematic and evaluative review of the operation, making and impact of counter-terrorism is key to understanding its impact, enhancing its legitimacy, and assessing its effectiveness. Thus, it is vital that the European Union would ‘close the loop’ by ensuring review of EU counter-terrorism. This necessitates compliance with review clauses that are already contained in many such measures, but also the instigation of systematic review across the EU in respect of the impact of these measures. This might be undertaken through the establishment of an independent reviewer of EU counter-terrorism, or review by committees of the European Parliament with appropriate levels of clearance where appropriate, or enhanced engagement by national oversight authorities with EU-level reviews, for example. In addition, it is essential that there would be a full, systematic albeit one-off review of EU counter-terrorism as called for by the European Parliament in 2011 in order to assess the current state of EU counter-terrorism as applied within and across the member states of the European Union.
Any review of EU counter-terrorism ought to critically assess both the impact and effectiveness of these measures in order to enhance the legitimacy of their continuing operation. If necessity and proportionality are key elements of legitimacy, and if legitimacy can be temporally bounded inasmuch as changing socio-political conditions may result in adjustments in necessity and proportionality analyses, then rigorous review of the operation of these measures is required. Such a review would, furthermore, allow for a factual assessment of impact to be undertaken so that a more concrete and less speculative proportionality analysis can be undertaken than is possible at the ex ante stage.
In order to be meaningful, such reviews ought to be regular, participatory, public (to the extent possible and bearing in mind the challenges of transparency in the security context considered in relation to legitimacy), and capable of bringing about policy, legal, practical and political reorientation by providing a rigorous evidence base for policy (re)evaluation.
How the project objectives were met
The objectives of SECILE were met through both the processes adopted in the undertaking of the project and work of the consortium and the deliverables produced from the consortium’s work. The chart below illustrates how the objectives were met in detail.
Table 14. Objectives and Measures to Meet Objectives
General Objective Specific Objective Mechanism(s) WP(s) & D(s)
Conceptual Advancement Identify legal understanding of impact, legitimacy and effectiveness Review prevailing legal understandings WP3.1
D3.3
Identify societal understanding of impact, legitimacy and effectiveness Review prevailing societal understandings WP3.2
D3.5
Identify democratic understanding of impact, legitimacy and effectiveness Review prevailing democratic understandings WP3.3
D3.6
Identify operational understanding of impact, legitimacy and effectiveness Review prevailing operational understandings WP3.4
D3.4
Identify dissonances and parallelism across these fields Bring partners and perspectives incl. outside experts and end users together to review findings; produce overarching report WP3.5
D3.2
Empirical Analysis Map current EU CT laws Create database of EUCT law since 2001 WP2.1
D2.1
Map current transposition mechanisms Categorise transposition mechanisms in EUCT law WP2.2; WP2.4
D2.2
Identify existing impact, legitimacy and effectiveness measures in EU CT law Identify ‘built in’ assessment measures in EUCT law WP2.3
D2.3
Produce accurate understanding of operation of select EU CT regimes, identifying practical understandings of impact, legitimacy and effectiveness Undertake rigorous empirical studies into selected EUCT regimes WP2.1 4.2 4.3 4.4 4.5 4.6
D2.1; D2.4; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6
Generation of rigorous & usable understanding of key concepts To synthesise the doctrinal, theoretical and empirical work Hold a workshop bringing together case study authors, end user groups, theoreticians and scientific experts in relevant fields; Generate and produce theoretically sound, empirically informed conceptualisations; Generate benchmarks; Generate top-flight scientific publications WP5.1; 5.2; 5.5
D5.1; D5.2; D5.3; D5.4;
To produce clear and comprehensive multi- and inter-disciplinary descriptions of key concepts Hold a workshop bringing together case study authors, end user groups, theoreticians and scientific experts in relevant fields; Generate and produce theoretically sound, empirically informed conceptualisations; Generate benchmarks; Generate top-flight scientific publications WP5.1; 5.2; 5.5; 6.4
D5.1; D5.2; D5.3;
Increase awareness Bring actors from different disciplines together to generate effective understanding and findings Hold workshops, end user group sessions, final conference WP3.5 4.5 4.6 5.1 6.3 6.6
Include stakeholders incl. end users and policy-makers in SECILE Hold workshops, end user sessions, final conference; maintain communication with stakeholders and include their perspectives where relevant WP3.5 4.5 4.6 5.1 6.2 6.3 6.5 6.7
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D6.1; D6.2; D6.4; D6.6
Disseminate SECILE widely at multiple levels Produce and publish scientific output and tools for policy makers, hold workshops, disseminate online and in traditional media, hold focus groups, maintain communication with end users, hold final conference WP3.5 4.5 4.6 5.1 5.5 6
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D5.4; D6.1; D.6.2; D6.4; D6.5; D6.6
Create broad impact for SECILE Develop useable tools Generate information conceptualisations; translate findings into best practice guides and benchmarks; produce end-user oriented output WP5.2 5.3 5.4 6.6
D5.1; D5.2; D5.3; D6.5
Develop original theoretical understanding to constitute baseline for future funded research at European and international level Hold workshop bringing researchers, external experts, end users together; generate and produce theoretically sound and empirically informed conceptualisations; generate benchmarks; produce top-flight scientific publications WP3, 4, 5, 6
D3.1; D3.2; D3.3; D3.4; D3.5; D3.6; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6;
D5.1; D5.2; D5.3; D5.4;
D6.5; D6.6
Develop original theoretical understanding to advance and significantly impact on the scientific state of the art Hold workshop bringing researchers, external experts, end users together; generate and produce theoretically sound and empirically informed conceptualisations; generate benchmarks; produce top-flight scientific publications WP3, 4, 5, 6
D3.1; D3.2; D3.3; D3.4; D3.5; D3.6; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6;
D5.1; D5.2; D5.3; D5.4;
D6.5; D6.6
Develop awareness of outputs among end users and policy makers Create diverse outputs; devise and implement ambitious communications plan; publish findings in scientific, trade, end-user oriented, traditional and online media; involve end users in SECILE throughout; final conference WP3.5 4.5 4.6 5, 6
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D5.1; D5.2; D5.3; D5.4; D6.1; D6.2; D6.4; D6.5; D6.6
Potential Impact:
SECILE has provided a range of materials designed to help decision-makers and end users to better conceptualise, identify and measure the impact, legitimacy and effectiveness of European counter-terrorist measures. These include a best practice guide (drafting and reviewing) for EU law and policy makers, a best practice guide (transposing and reviewing) for national law and policy makers, and an end-user oriented report on the concepts and assessment of impact, legitimacy and effectiveness. In having to hand these guides, produced from a base of state of the art cross and interdisciplinary desk research and methodologically sound empirical research, decision-makers will be better equipped to foresee and manage any potential difficulties with impact, legitimacy and effectiveness in designing new measures, implementing existing measures, and reviewing European security measures. The research will thus bring about a significant impact for European citizens and those living, working and transacting within the European Union by advancing our conceptual, operational and functional understandings of the impact and effect of counter-terrorist measures and attendant degrees of legitimacy or illegitimacy.
Furthermore, the design and use of end user groups within the empirical case studies in WP4, and the bringing together of stakeholders in the closing conference, should stimulate cooperation and networking between those who design, implement and develop modalities and technologies of operationalising European counter-terrorist measures and their domestic transposition. This will enable the identification of technology gaps that might exist, while ensuring that laws, regulations and technologies that may be devised to fill those gaps are designed and implemented in a manner that is fully cognisant of individual liberties and the societal impact of such measures and modalities. Thus, SECILE aimed to develop a comprehensive framework to inform the understanding and assessment of the impact, legitimacy and effectiveness of current and future European security measures.
– Impacts on Competitiveness
SECILE has the potential to impact on competitiveness in two main ways. The first is through creating and disseminating empirically-informed ‘thick’ multi-perspective mechanisms by which effectiveness can be understood that have the capacity to aid in the production of ultimately more efficient instruments, measures and operationalising technologies in the future. Furthermore, their application to current approaches and instruments in the case studies identified some inefficiencies and lack of effectiveness that can be addressed. The second way in which SECILE has a potentially positive competitive impact is by informing ‘better’ design in European security measures so that future costs in litigation terms are potentially minimised. By identifying best practice in the incorporation of human rights concerns in designing and implementing European security measures, SECILE can help to ensure that future measures are not in contravention of human rights standards. Such contravention, as well as carrying a general societal cost, also carries real economic costs when identified by a court or other juridical body as a result of which measures, implementation regimes, structures and technologies have to be revised, reimagined, amended and implemented with all of the attendant costs in time, resources and training as well as potential costs in security in the transitional period. Although conducted on a European level, the technologies and modalities developed to implement European counter-terrorist legislation are likely to have application beyond Europe for a number of reasons including the globalised nature of terrorist threats and security solutions, the development of legislative imperatives at UN level, and the global application of new technologies such as UAVs. Thus, SECILE may aid in increasing competitiveness of Europe as a security innovator in theoretical, operational and technological term
– Steps to achieve these impacts
The first step in achieving these impacts was to identify operational end users to engage in the case studies undertaken in WP4. In addition, civil society was represented in its own focus group, and institutional stakeholders were invited to participate in the semi-structured interviews with representatives of the European Commission, FRONTEX, Europol, Eurojust, the office of the European Counter-Terrorist Coordinator and the European Data Protection Supervisor all participating. Operational end users, civil society, and institutional actors also participated in the workshop in Durham in May 2014 at which preliminary recommendations and insights were discussed. Thus, stakeholder engagement was prioritized in the design and implementation of SECILE in order to maximize the likelihood of successful impact generation.
The second technique deployed was to ensure the productive of useful, readable and effective deliverables on the state of the art in WP2 and 3, to generate original insights through WP3, 4 and 5, an to engage stakeholders with those deliverables through the website, focus groups, interviews, workshop and final conference in order to build an an appropriate policy-making and operational constituency for our outputs and research. Given the high level of stakeholder engagement, reflected for example in the list of those who attended the final conference, we appear to have been successful in this respect.
SECILE placed a heavy emphasis on effective dissemination, using the website, twitter, conferences, and all other networking opportunities to raise awareness of the project and its outputs. As reflected in the dissemination report (D6.4) dissemination in the project has been of a high quality and the reach of the findings has been wide.
The key objectives of the SECILE dissemination strategy were to engage with and elicit feedback from stakeholders on the project’s deliverables; stimulate discussion among stakeholders of the project’s findings and recommendations; facilitate and enable close collaboration between different categories of stakeholders and relevant security programmes; strengthen the research and knowledge base of both researchers and stakeholders. The dissemination activities were viewed as a set of tasks to be integrated across all WPs. Leadership of these activities was divided between the consortium according to consortium partners areas of expertise, such that: the scientific dissemination element was coordinated by Durham; the civil society dissemination was coordinated by Statewatch; the legal practitioner (including) courts-oriented dissemination was coordinated by SCL; and dissemination targeted at security services was coordinated by CIES.
The target audience of the SECILE dissemination plan included:
• Academia (including journals, conferences, workshops and universities) in order to promote the output of the project, encourage their input and recommendations and facilitate future research collaboration opportunities.
• Civil Society Organisations/ NGOs to inform them of our work, encourage engagement and dissemination and identify opportunities for inclusion in SECILE in both established or prospective tasks.
• Government (National, Local, EU Commission and International) to understand the political landscape in which politicians and policymakers operate, to design strategies and priorities for SECILE and establish long-term network capacities.
• Institutions/ Agencies (such as Frontex, LEAs, Eurojust, Irish Naval Services, Banks and Judiciary) to engage industry in the identification of threats and appropriate responses as well as understand the environment in which they operate and the policy environment within which they must meet demands.
• Media (print media, social media, tv and radio) to educate the media about SECILE and leverage media outlets to promote the project to the public.
• Other bodies (research institutes) to create mutually cooperative network and resource sharing relationships.
Dissemination was achieved throughout a number of work packages:
• WP3 workshop in Riga attended by project partners and a number of external participants
• WP4 end user focus groups attended by stakeholder in the fields of border surveillance, counter terrorist financing and the European Arrest Warrant as well as civil society actors
• WP5 workshop in Durham attended by project partners, advisory board members, European policy makers and academics
• WP6 final conference in Dublin attended by end users, advisory group members and consortium partners as well as additional stakeholders – policymakers, other scientific experts and the media.
The main dissemination outputs from the project include an edited collection (D5.4) end user oriented report (D5.3) and best practice guides (D6.5) the SECILE website, mailing list and social media.
SECILE Website
The project website went live in May 2014. As lead of WP6 (Dissemination, Communication and Interface with Users) CIES team took a novel approach, rarely seen in other FP7 security research projects, to commission a local Irish director to create a short (2.25 minute) video of the overview of the counterterrorism themes the SECILE team was setting out to explore. This video was the primary piece of content on the holding page before the full launch of the project website, which took place on 25th September 2013. Website viewers during the holding page period were offered the option of adding their name to a mailing list that would inform when the full website went live; this measure and the creation of the video were strategies designed to capture and retain the attention of an audience in the critical early stages of the research.
The project website has served to perform a number of functions including acting as a platform for publication of all SECILE reports, external reports, articles and resources related to SECILE, holding a calendar of all SECILE events and external events of interest, housing the project twitter page and offering visitors to the websites contact information. CIES have maintained the content of the website, ensuring periodic output delivery and mitigating against the risk of a stagnant website interface by regularly publishing events, reports and posts.
Mailing list
An initial list of contacts was created based on CIES’s expertise and contacts in the opening weeks of the project. These contacts were created based on predetermined lists in line with the categories defined by the Description of Work and the stakeholders. Considerable effort was made by CIES in the creation and maintenance of these targeted communication lists throughout out the project. These included but were not limited to: consortium partners, MEPs, policy makers, legislators, industry users, Surveillance Society Networks, international university law departments, main stream and industry specific media. These mailing lists were used to communicate SECILE’s output, news, events and tasks. Throughout the lifetime of the project these were continuously researched and updated.
Social media
The SECILE twitter account, @EuSECILE, was set-up mid-way through month 3. The twitter account was also used to promote the findings of SECILE, and to relate them to ongoing issues in the broader field of counter-terrorism and security studies.
Promotional material
Throughout the project CIES developed a number of promotional items including the project logo, leaflets, bookmarks, videos and banners. These materials were distributed at conferences attended by the consortium.
SECILE Publications
All SECILE reports have been published on the project website. In addition, the draft End User report (D5.3) was distributed at the COE Conference on Terrorism and Organised Crime, Malaga City Hall in September 2013, to which Professor de Londras was invited to speak. At that conference every delegate received a copy of the report with their conference registration materials. Best practice guides (D5.1 and D5.2) and End User Report (D5.3) were also distributed to all those who attended the SECILE Final Conference at the Royal Irish Academy in October 2013.
Dissemination of the research results will continue with the preparation and publication of scientific outputs by researchers engaged with the project, through the dissemination of the End User Report and Best Practice Guide to law- and policy-makers, through the planned presentation of SECILE results to the LIBE Committee (proposal currently with the Secretariat), through the maintenance of the project website (supported by Durham Law School), and through the distribution of a briefing paper outlining key findings from the project and prepared and distributed by Durham Law School (https://www.dur.ac.uk/resources/law/research/TheImpactLegitimacyAndEffectivenessOfEUCounter-TerrorismFindingsandProposals.pdf). Furthermore, as events and consultations to which the SECILE research may be relevant might arise, Professor de Londras will adopt a responsive approach, engaging with such processes and through the media as appropriate.
List of Websites:
www.secile.eu
The collaborative research project Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness (SECILE) is funded through the 7th Framework Programme of the European Commission. SECILE was established with the overall objective of providing an empirically-informed, multi-stakeholder understanding of how the impact, legitimacy and effectiveness of European security legislation might be best measured and understood. In the fulfillment of this objective the project placed particular emphasis on gathering and understanding practical experiences of implementing and assessing such measures gathered from and with end users. The project started in May 2013 and lasted until the end of October 2014. SECILE was implemented by a consortium of seven partners consisting two universities, an institute of technology, an SME, an NGO, a research institute, and a supreme court from four different countries with particular competence in human rights, law and societal impact. The scientific component of the project comprised four work-packages (WP2, 3, 4, 5), with one management work-package (WP1) and one dissemination work-package (WP6).
The key activities of the project were the presentation of preliminary findings at two workshops, convening of four focus groups for eliciting empirical insights from end users, a set of semi-structured interviews with policy-makers in EU counter-terrorism, and the presentation of the project findings at a major end-of-project final conference, together with a wide range of scientific desk-based research. From the aforementioned activities, one major scientific publication (an edited collection), three empirical case studies, one report on civil society perspectives, one report on policy-maker perspectives, one desk-based case study, one catalogue of measures, two best practice guides, one end-user-oriented report, one briefing paper, and seven scientific reports were produced. The SECILE project and work performed within it has been presented at 21 international and national conferences. At the end of the project, further scientific publications are in preparation for peer-reviewed outputs. No patents have been made and no Exploitable Foreground is reported.
The SECILE project has provided an empirically-informed understanding of impact, legitimacy and effectiveness in the counter-terrorist context, as well as the first comprehensive catalogue of EU counter-terrorist measures. The key findings from the research are:
1. Since 2001, the EU has been very active in counter-terrorism, having produced 239 counter-terrorism measures between Autumn 2011 and Summer 2013, 88 of which are ‘legally binding’.
2. Ex ante impact assessments in the field of counter-terrorism appear to prioritise quantifiable predicted impacts (such as economic impacts) over societal impacts.
3. The European Parliament has often been marginalised in respect of the making and oversight of EU counter-terrorism, raising concerns as to the democratic legitimacy of such measures.
4. EU counter-terrorist measures are rarely subjected to formal ex post facto review.
5. The lack of systematic, participatory, evaluative review of EU counter-terrorist measures arguably undermines their legitimacy, as well as stymying efforts to understand their impact and assess their effectiveness.
6. In some cases, measures that were introduced under the ‘counter-terrorism’ umbrella (eg European Arrest Warrant) are not perceived of as primarily ‘counter-terrorist’ by those who use and apply them, reflecting the fact that many of these measures have multiple applications and a complex provenance.
Project Context and Objectives:
More than ten years after the attacks of 11 September 2001, we have entered a ‘post war on terror’ world in which counter-terrorism law and policies are prominent and touch on many areas of everyday life. The European Union is a significant actor in contemporary counter-terrorism, including through its development of counter-terrorism laws for application within the Union. Bearing in mind the existing literature and scientific knowledge and the developing EU counter-terrorism action it is appropriate that a comprehensive, multi-level and multi-disciplinary understanding of the legitimacy, impact and effectiveness of counter-terrorism should be developed. The purpose of SECILE was to develop such an understanding, taking into account multiple operative, theoretical, doctrinal and practical perspectives and empirical evidence as to the impact and legitimacy of EU counter-terrorism measures to date.
Thus, the main goal of SECILE was to provide an empirically-informed, multi-stakeholder understanding of how the impact, legitimacy and effectiveness of European security legislation might be best measured and understood. In the fulfillment of this objective the project placed particular emphasis on gathering and understanding practical experiences of implementing and assessing these measures gathered from and with end users. SECILE determined to meet these objectives by:
1. Carrying out a comprehensive process of identifying the scope and scale of European counter-terrorism legislation and its legal impact, legitimacy and effectiveness by
a. Cataloguing counter-terrorism legislation introduced at EU level since September 2001 in order to provide a comprehensive record of the degree to which the EU is engaged in counter-terrorism, mapping the potential scope of the project and the field.
b. Producing a comparative report on the transposition of EU measures in member states in order to record the differing transposition mechanisms and assess whether, through transposition, the measures promulgated at EU-level might in fact be imposed inconsistently across the Union with a view to assessing uniformity.
c. Identifying EU mechanisms to measure impact, legitimacy and effectiveness, i.e. identifying whether there are any mechanisms within the EU laws and policies themselves that are intended to allow for impact, legitimacy and effectiveness to be measures.
2. Rigorously deriving an understanding of the state of the art in legal, societal, operational and democratic terms on measuring and conceptualising the impact, legitimacy and effectiveness of counter-terrorism measures generally and in the EU specifically.
3. Systematically considering the impact of selected measures in the EU and extracting understanding of current gaps in knowledge and perspectives by means of in-depth case studies
4. Helping to increase awareness of and new insights generated by research among the relevant actors within the EU, domestic law and policy makers, security services, industrial strategists, and a wider societal and academic debate about the impact, legitimacy and effectiveness of counter-terrorist measures.
The SECILE project was implemented by a consortium of seven partners consisting two universities, an institute of technology, an SME, an NGO, a research institute, and a supreme court from four different countries with particular competence in human rights, law and societal impact. (Table 1).
Table 1. List of Project Beneficiaries
No Beneficiary Name Short Name Country
1 Durham University UDUR United Kingdom
2 Elizabeth Ann Singleton Statewatch United Kingdom
3 Cork Institute of Technology CIT Ireland
4 Institutt for Fredsforskning Stifelse PRIO Norway
5 Centre for Irish and European Security CIES Ireland
6 King’s College London KCL United Kingdom
7 Latvijas Republika SCL Latvia
In order to provide for adequate implementation and communication within the project, reporting, and dissemination and communication of findings, management structures and procedures were implemented as follows:
• The management team comprised the lead researcher of each beneficiary and met in the formal kick-off meeting in Durham (May 2013), at the first workshop in Riga (September 2013), and after the workshop in Durham (May 2014). Communication was maintained within the management team by email, skype and telephone throughout the project lifecycle.
• Technical and scientific coordination was managed overall by UDUR with the work plan of each work package being monitored by the relevant partner representatives from the management team.
• Administrative and Financial Management was led by UDUR and regular communication was maintained with partners to ensure timeline management. In addition, two periodic reports were prepared. Where appropriate, adjustments of work plans was discussed and agreed without jeopardizing work-packages or the overall project.
• Advice was provided by an advisory group established at the start of the project and comprising eminent scholars, researchers and end users based in the United Kingdom, Spain, Australia, the United States, Canada and Austria.
The scientific component of the project comprised four work-packages (WP2, 3, 4, 5), with one management work-package (WP1) and one dissemination work-package (WP6). The work-pages are outlined in Table 2.
Table 2. Work-packages, lead beneficiaries, and timelines
WP Number WP Title Lead Beneficiary Start Month End Month
1 Project Management UDUR 1 18
2 European Counter-Terrorist Legislation Statewatch 1 4
3 Stocktaking and Analysis of Existing Perspectives SCL 1 4
4 European Anti-Terrorist Legislation in Operation KCL 5 11
5 Generating Normative Insights UDUR 11 14
6 Dissemination, Communication and Interface with Users CIES 1 18
The objectives of work package 1, managed by Durham University included the daily coordination and management for the entire project, including administrative support to all participants. Durham was to ensure financial regularity and ethics compliance (with ethics overseen by Prof Peter Burgess, PRIO) as well as risk management. As lead partner Durham was responsible for overseeing institutional negotiation and signature of the consortium agreement and has reported to the European Commission throughout the project, verifying the reports of each partner in accordance with the project tasks prior to submission.
The objectives of work package 2 were to produce a description of EU counter-terrorism legislation, a description of transposition of EU counter-terrorism legislation in member states (including identification of inter-state variations in transposition) and to identify measures built into legislation for assessment of impact, legitimacy and effect where appropriate. WP2 was undertaken by Statewatch.
Under work package 3 the main objectives were to provide a description of paradigmatic understandings of impact, legitimacy and effectiveness in legal, operational, societal and democratic terms and to identify dissonances and similarities in paradigmatic understandings across the relevant disciplines and perspectives. WP3 was overseen by SCL.
The objectives of work package 4 were to gather empirical information on the operation of a range of European security measures and to develop an empirically-informed understanding of the perceived impact, legitimacy and effect of European counter-terrorism measures across a diverse range of stakeholders with especial focus on end users. WP4 was overseen by KCL.
The objectives of work-package 5 were to synthesise the empirical findings of WP4 with the theoretical and doctrinal frameworks outlined in WP2 and WP3 in order to generate practicable, original and innovative insights on the concept and assessment of the impact, legitimacy and effectiveness of EU counter-terrorist law. WP5 was overseen by UDUR.
The main objectives of work package 6 were to ensure that the project and its progress and result were known at local, national and European level and across different sectors and actors and to coordinate partners’ efforts in disseminating WP outputs. This also included sharing all knowledge including lessons identified and best practices relevant for future analysis of the impact, legitimacy and effect of counter-terrorist measures with respective European stakeholders (industry, potential end users, public authorities and advisors, specialists, stakeholders, members of related initiatives and R&D programmes and the scientific community). WP6 was overseen by CIES.
The beneficiary contribution across work-packages is outlined in Table 3, indicating which work-packages beneficiaries were involved in.
Table 3. Beneficiary contribution across work-packages
Beneficiary WP1 WP2 WP3 WP4 WP5 W6
UDUR * * * *
Statewatch * * *
CIT * *
PRIO * * *
CIES * * * *
KCL * *
SCL * * *
The key activities of the project were the presentation of preliminary findings at two workshops (one in Riga in September 2013 and one in Durham in May 2014), convening of four focus groups for eliciting empirical insights from end users (in London in December 2013), a set of semi-structured interviews with policy-makers in EU counter-terrorism (at various locations in January/February 2014), and the presentation of the project findings at a major end-of-project final conference (in Dublin 2014), together with a wide range of scientific desk-based research. From the aforementioned activities, one major scientific publication (an edited collection), three empirical case studies, one report on civil society perspectives, one report on policy-maker perspectives, one desk-based case study, one catalogue of measures, two best practice guides, one end-user-oriented report, one briefing paper, and seven scientific reports were produced. The SECILE project and work performed within it has been presented at 21 international and national conferences. At the end of the project, further scientific publications are in preparation for peer-reviewed outputs.
Project Results:
SECILE has been a highly successful project with numerous scientific results being generated. In this section, an overview of the results from the work-packages is provided. It is important to note that the results of the project have been presented at numerous international and national conferences, that the reports from the project have been made available through the project website (www.secile.eu) where videos of oral presentations at the final conference are also available, and that the project has resulted in a major scientific publication to be published by Routledge in 2015 (de Londras & Doody (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism).
Work from SECILE has been presented at 21 national and international conferences in Europe, the United States and Africa, as outlined in Table 4. These conferences variously attracted academic, end user and policy-maker audiences, thus ensuring the wide dissemination of project results across the relevant stakeholder communities.
Table 4. Conference presentations building on SECILE research and insights
Conference Title Date and Location Presenter Title
2nd Global Conference and Exhibition on Future Developments of Automated Border Control (ABC) 10/10/2013-11/10/2013, Warsaw, Poland Sadhbh McCarthy Research and innovations in automated border control technology
NMCI Telemedicine Conference. A Safer Arctic for Small Craft Mariners 27/11/2013, Cork, Ireland Lt Cdr Erika Downing Session 1 – Maritime focus Telemedicine, presentation on Data Sharing.
Dutch Ministry of Foreign Affairs / Human Security Collective / Justitia et Pax, ‘Speak Truth To Power 09/12/2013 – 11/12/2013, The Hague, Netherlands
Ben Hayes
The impact of counter-terrorism measures on civil society
Annual Review Irish Navy (to Officer body) 20/12/2013
Cork, Ireland Lt Cdr Erika Downing SECILE – Project overview and my involvement in project
Annual workshop for judges of the Supreme Court, Prosecutor General and prosecutors 16/01/2014
Signe Zalkalne First results of the SECILE project
8th International Conference. CPDP 2014. Computers, Privacy & Data Protection. Reforming Data Protection: The Global Perspective. 22/01/2014 –24/01/2014
Brussels, Belgium.
Sadhbh McCarthy
Law Enforcement, Profiling and Social Media
Hybridity: Power, social structures and institutions beyond the liberal west (Institute of Advanced Studies, The University of Birmingham) 13/03/2014
Birmingham, UK Fiona de Londras Hybridity and Counter-Terrorism: Some Provocations
6th Biannual Surveillance and Society Network Conference 24/04/2014 26/04/2014, Barcelona, Spain Rozemarijn van der Hilst The Law of Diminishing Returns as guiding principle in interpreting Article 8 of the European Convention on Human Rights.
6th Biannual Surveillance and Society Network Conference 24-26th April 2014, Barcelona, Spain Fiona de Londras Understanding the Uneven Impact of Counter-Terrorism: An EU Case Study
SECILE Workshop May 2014 Josephine Doody Effectiveness
Around the World Conference 21/05/2014, NUI Maynooth Sadhbh McCarthy Privacy and surveillance in the digital age
European Day for Border Guards, FRONTEX conference 22/05/2014, Warsaw, Poland. Sadhbh McCarthy ‘Cost effectiveness in border control’ panel
Language Resources and Evaluation Conference 31/05/2014, Reykjavik, Iceland. Sadhbh McCarthy Trust in Social Media for Disaster Management
Law and Society Association Annual Conference 29/05/2014 – 01/06/2014, Minneapolis, US. Fiona de Londras Understanding the Uneven Impact of Counter-Terrorism: An EU Case Study
Computers, Freedom and Privacy 10/06/2014, Washington, US. Sadhbh McCarthy Police Access to Social Media
Oxford Human Rights Hub, Oxford University 05/06/2014, Oxford University, UK. Fiona de Londras Accounting for Rights in EU Counter-Terrorism
Governance and Globalization: International and European Answers 04/07/2014 – 0507/2014, University of Cambridge, UK. Fiona de Londras EU Counter-Terrorism: Some Governance Concerns
Society of Legal Scholars Conference 09/09/2014 – 12/09/2014, SLS Annual Conference, Nottingham, United Kingdom. Aldo Zammit Borda Counter-Terrorism Measures in the European Union: The Voice of End Users
Meeting of the Women Peacemakers Programme (connected to the UN Security Council Resolution on Women, Peace and Security). 01-07/2014, Cape Town, South Africa Ben Hayes Counter-terrorism
Council of Europe/City of Malaga Conference on Terrorism and Organised Crime 23-24 September 2014, Malaga City Hall Fiona de Londras Counter-Terrorism Law and Policy in the EU
ARENA/University of Oslo ‘Democratic Constitutionalism in Europe’ 4-6 November 2014, University of Oslo Fiona de Londras Constitutionalism and Legitimacy in EU Counter-Terrorism
WP2. European Counter-Terrorist Legislation
The main objectives of WP2 were to generate a description of EU counter-terrorism, its transposition across member states, the measures built into such measures for assessment of impact, legitimacy and effectiveness, and to identify inter-state variations. This was achieved by the production of four deliverables from WP2: a database of EU counter-terrorism measures (D2.1) a comparative report on transposition (D2.2) a catalogue of built-in assessment methods and report on same (D2.3) and a focused analysis of data retention for the purposes of illustration (D2.4).
D2.1 was produced to catalogue the counter-terrorism measures that had been introduced by the EU between 2001 and 2013. In this respect, an EU counter-terrorist measures was defined as follows:
“…for the purposes of this study an EU legal act or policy document is considered to be an EU
counter-terrorism measure if it meets the following criteria:
(i) it has at some point in time been part of the EU’s counter-terrorism agenda;
(ii) it has been adopted or approved by an EU institution or body or otherwise represents
the official policy of the European Union.”
The study found that 239 such measures had been introduced, 88 of which had a legally binding character. These measures are represented in summary form in Table 5. It is important to note that this represents the first comprehensive cataloguing of such measures at the EU level. The findings of D2.1 illustrate the wide breadth of instrument type that come together to form EU counter-terrorism. However, the catalogue also has three limitations. First, it is up-to-date as of August 2013 (M4), thus it can be assumed that the total number of measures that come under the category of EU counter-terrorism is now higher. Second, the catalogue does not include operational measures in respect of which no EU documentation could be found that verified or explained their implementation, such as those arising in thematic areas that attract very high levels of secrecy (for example the full list of measures contained in the EU Action Plan on Radicalisation and Recruitment). Thirdly, the catalogue does not include EU agreements with third countries that contain commitments to the countering of terrorism as, since 2005, such clauses became standard in all EU association agreements and had only limited significance to internal EU counter-terrorism policy. Furthermore, agreements between EU agencies (such as EUROPOL and EUROJUST) and their counterparts in third states with counter-terrorist dimensions are not included. That said, external policies and treaties with third states that cover specific counter-terrorism policy issues were included.
Having catalogued the range of EU counter-terrorist measures introduced since September 2001, the authors went on to engage in a short analysis from which three key analytical conclusions can here be proposed. First, it found that the EU has been responsive to emergent terrorist attacks and threats. It responded quickly to the attacks of ‘9/11’ by the development of a bespoke counter-terrorist agenda and the acceleration of some pre-existing plans for measures such as the European Arrest Warrant. The EU also responded quickly to the bombings in London and Madrid, both of which resulted in concerted action by the EU. Secondly, it found that the EU’s approach to counter-terrorism on occasion folded a significant amount of general ‘security’ activity into the counter-terrorist activities of the Union, such as cybersecurity, border control, and information management. The third analytical conclusion in the report was that EU counter-terrorism has become so extensive, and now includes so many measures, programmes and sub-programmes, that it is difficult for citizens and civil society to keep track of, which is exacerbated by the extent to which such measures have been introduced without substantive European Parliament involvement.
Table 5. EU Counter-Terrorist Measures (September 2011-August 2013)
Instrument Type Quantity
(+drafts) Purpose, impact
Action plans and strategy documents
26 Sets the EU counter-terrorism agenda through legislative and/or operational programmes that represent a political commitment on the part of EU member states, institutions and agencies to develop and implement specific policies, legal measures or frameworks for cooperation.
Regulations
25
Legal acts that apply directly without requiring national laws to implement them (though states are free to transpose as long as effect is same). All EU institutions, member states and individuals must comply with Regulations.
Directives
15
Legal acts that are binding on the member states in terms of the results to be achieved but leave to the discretion of national authorities the methods by which these results may be achieved.
Framework Decisions
11 Legally binding acts used exclusively in the fields of police and judicial co-operation in criminal justice matters between 1999 and 2009. Similar in effect to Directives insofar as they require member states to achieve particular results without dictating the means of achieving those results.
Decisions
25
Legally binding acts that may have “general application” (in which case all member states must take steps to comply) or be directed at specific addressees (meaning only those subject to the Decision must comply).
Joint Actions
1 Legally binding instruments under the Common Foreign and Security Policy that provide for the deployment of financial and/or human resources to achieve a specific objective. May also lay down basic rules on how such initiatives should be implemented.
Common Positions
3 Legally binding agreements between the member states on the position to be taken with regard to international matters such as strategic relations with third countries, negotiating positions in international fora or the domestic (EU) interpretation of international laws and conventions.
Recommendations
11 Not legally binding but representative of a political commitment on the part of EU institutions/bodies or member states toward specific conduct or outline the goals of a common policy.
Resolutions
4 Not legally binding but used to signify political agreement to act in a given area.
Conclusions
111 Not legally binding but used exclusively by the EU Council to set the policy agenda by signifying political agreement among the member states as to the type, nature or content of specific measures.
International agreements
8 Legal effect varies according to the type and nature of the agreement. In the area of counter-terrorism EU treaties have been establish framework for member state police, judicial and customs cooperation with the USA as well as to provide a legal basis for the transfer of personal data from the EU to third states.
Total
239
D2.2 provided an analysis of the transposition of the legally binding EU counter-terrorism measures across the member states. Of the 88 legally binding measures identified in D2.1 50 required formal transposition by the member states. The report found that there failure to transpose measures on time and in a satisfactory manner was widespread across the member states in relation to EU counter-terrorism. In fact, only one measure could be said to have been implemented within the requisite time and to the satisfaction of the EU institutions (i.e. without infringement proceedings, censure or complaint). The report found that the ways in which EU member states have implemented the numerous counter-terrorism measures introduced at EU level since September 2001 is extremely difficult to assess. What this research identifies in particular in respect of the implementation of the measures examined was not the varying forms that transposition has taken at national level, but rather the fact that member states have frequently been so slow to implement these measures, and in a number of cases have not implemented them at all until faced with legal action. Where they have been implemented in whole or part, the research for D2.2 found that the Commission’s assessments often noted inconsistency with the EU provisions on which national measures are based. In Section 6, D2.2 provided a full database showing the transposition status of all fifty EU counter-terrorism measures requiring transposition across all of the member states of the Union.
D2.3 provided an analysis of how the EU assesses the impact, legitimacy and effectiveness of counter-terrorism.
This analysis found that while ex ante impact assessment by the Commission is becoming more systematic, the weighting given to rights-related considerations can be unsatisfactory. It also raised a concern that such impact assessments might be read as effectively ‘selling’ a policy rather than clearly outlining the relative impact implications of a variety of policy options. Significant concern was, thus, raised about the extent to which such ex ante impact assessments undertaken by the Commission effectively take account of societal impact, particularly relating to rights. While advisory bodies’ involvement at the ex ante phase can bring rights-related issues more effectively to the fore, these reports and opinions do not bind the political and policy-making process and the research found that it is not always clear that they have a discernible effect on decision-making. Furthermore, where policies have been pursued through the introduction of legally binding counter-terrorism measures, this analysis found that the ex post facto reviews—where they happen—tend to be heavily operational in their focus, so that societal impact risks remaining under-explored. This is when these reviews take place at all: although 59 of the 88 legally binding measures identified contained review clauses, the research found that these reviews rarely took place in practice (see Table 6 below). Where they were found to have taken place—whether by the Commission, the Council or an externally contracted agent—the report suggested that they have a tendency to focus on transposition and implementation in a relatively formal sense, rather than to consider the operation and impact of the measures in the round.
Table 6. Review of the 88 Legally Binding EU Counter-Terrorist Measures Identified
Beyond these formal reviews, D2.3 noted that measures are sometimes also subjected to peer review where states engage in a system of shared review, reflection and learning as to the operation of EU counter-terrorism measures, but that this review tends to be very operational in its perspective. Similarly, although to a somewhat lesser extent, the reports of the Counter-Terrorism Coordinator were found to be substantively oriented towards assessing the ‘state of play’ and the operation of measures and not on the societal and rights-related impacts of EU counter-terrorism measures. Thus, while there are various actors and stages of impact review in the EU counter-terrorism context, the results presented in D2.2 suggested that these reviews appear to have a particular operational orientation and/or focus on technical questions of transposition and implementation so that, apart from entities established with a specific rights-relation remit, questions relating to the societal impact of counter-terrorist measures, and particularly to implications for rights, risk being marginalised and under-considered.
D2.3 also contained an analysis of how the question of legitimacy is dealt with in the processes of making, maintaining and assessing these measures. As well as concerns as to review outlined above, a key legitimacy consideration relating to process was raised by this analysis. This research suggested that the European Parliament has not always been prominent in the process of making counter-terrorism; a finding that must be contextualised by the pre-Lisbon constitutional arrangement vis-à-vis the Parliament. Prior to the Lisbon Treaty coming into effect, many EU counter-terrorism measures were adopted under the ‘Third Pillar’ in relation to which the Parliament had a limited role. Of the 88 legally binding counter-terrorist measures identified as having been adopted between 2001 and 2013, the report finds that 70 were the subject of deliberations in European Parliament, although in 44 of these cases the deliberation took place at consultation phase only. Co-decision had taken place in relation to only 23 measures. This is further illustrated in Table 7.
Table 7. Assessment of legislation by the European Parliament by type of procedure
Thus, overall the stocktaking exercise identified a number of critical concerns relating to effectiveness. First, one third of the legally binding counter-terrorism measures introduced since 2001 did not include any provisions for review. In addition, there was a failure to produce or publish a quarter of the reviews that were mandated by the remaining legislation. This is notwithstanding the fact that transposition is carefully monitored, suggesting a concern with implementation rather than effectiveness or a conflation of implementation and effectiveness. Furthermore, throughout the evaluation processes that have been carried out, much greater weight appears to have been ascribed to the needs and assessments of law enforcement and security agencies than the views of other “stakeholders” within the EU. Finally, the “full and detailed evaluation” of EU counter-terrorism policy requested by the European Parliament in 2011 had not yet taken place. The majority of the EU’s counter-terrorism legislation has not been subjected to the kind of scrutiny that should be expected of laws that can have such a significant impact upon individuals and public and private institutions.
D2.4 was a focused desk-based case study of the EU’s Data Retention Directive, its impact, legitimacy and effectiveness. This report, which was concluded before the Court of Justice of the European Union found the Directive to be violatory of fundamental rights, concluded that the Directive had had a significant impact on fundamental rights within the EU and that this potential impact had been flagged throughout the process of devising, implementing and reviewing the Directive, as well as by numerous domestic courts in the European Union member states. Furthermore, it found that the Directive, introduced after the Madrid and London bombings, had not in fact harmonised data retention regimes because of the discretion afforded to member states as to its implementation. The study thus identified serious questions as to the societal impact, democratic legitimacy and effectiveness of the Directive.
Table 8. WP2 Deliverables
Deliverable Title Web Address
D2.1 Ben Hayes & Chris Jones, Catalogue of EU Counter-Terrorism Measures http://secile.eu/wp-content/uploads/2013/12/Catalogue-of-EU-Counter-Terrorism-Measures1.pdf
D2.2 Ben Hayes & Chris Jones, Report on the Transposition of EU Counter-Terrorism Measures http://secile.eu/wp-content/uploads/2013/11/Report-on-the-Transposition-of-EU-Counter-Terrorism-Measures.pdf
D2.3 Ben Hayes & Chris Jones, Report on How the EU Assesses the Impact, Legitimacy and Effectiveness of its Counter-Terrorism Laws http://secile.eu/wp-content/uploads/2013/12/How-does-the-EU-assess-its-counter-terrorism-law.pdf
D2.4 Ben Hayes & Chris Jones, The EU Data Retention Directive: A Case Study on the Legitimacy and Effectiveness of EU Counter-Terrorism Policy http://secile.eu/wp-content/uploads/2013/11/Data-Retention-Directive-in-Europe-A-Case-Study.pdf
WP3. Stocktaking and Analysis of Existing Perspectives
The main objectives of WP3 were to gather, describe and collate paradigmatic legal, operational, societal and democratic perspectives on the meaning of impact, legitimacy and effectiveness in counter-terrorism; and to organise a workshop with the consortium partners in order to compare the different paradigmatic understandings and identify dissonances and similarities across them, which would then be used to generate cross-disciplinary perspectives on the concepts. This was achieved by the production of six deliverables from WP3: a workshop on the state of the art (D3.1) a report on the state of the art across disciplines (D3.2) a report on legal state of the art (D3.3) a report on the operational state of the art (D3.4) a report on societal state of the art (D3.5) and a report on the democratic state of the art (D3.6).
D3.1 took place in September 2013 when the consortium members met, with a select group of invited external experts, in the Supreme Court of Latvia in Riga in order to discuss the state of the art reports and identify synergies and dissonances across disciplines. The work undertaken in this workshop led to some revision of Deliverables 3.3 3.4 3.5 and 3.6 and greatly influenced the drafting of D3.2.
D3.2 drew together the insights generated across disciplines in Deliverables 3.3 3.4 3.5 and 3.6 in order to identify and propose cross-disciplinary understandings of the concepts of impact, legitimacy and effectiveness in the counter-terrorist context. In respect of impact¸ the report argued that impact can be understood as the effect or consequence a counter terrorism measure has. Impact in this sense can be negative or positive (and the same measure can have both negative and positive impacts), and can be direct or indirect. It can also vary over time, changing in extent and nature depending on context (e.g. whether in a period of emergency or normalcy). In order for impact to be comprehensively understood, the cross-disciplinary perspective suggests that direct and indirect impacts should be measured against multiple referents, which in turn should include societal groups, institutions, societal values and principles (such as democratic principles and the Rule of Law). The report also finds that the question of who measures impact is important. Institutional design may mean that some entities—such as courts—are capable only of examining impact to a limited extent, while others—such as politico-legal reviewers or parliamentary bodies—may have broader impact analysis capacity. The report argued that legitimacy is a nebulous term that can be said to comprise of numerous different strands including input legitimacy, process legitimacy, output legitimacy, outcome legitimacy, effective legitimacy, descriptive legitimacy and normative legitimacy. In the counter-terrorist context there is a close relationship between effectiveness and legitimacy, as measures that are perceived as effective are likely to enjoy enhanced legitimacy. Procedural and substantive mechanisms (such as sunset clauses) may be employed in an attempt to enhance legitimacy, including in politico-legal processes, and processes of legitimation in the counter-terrorist context can include the deployment of narratives such as those of exceptionalism, balance and trade-off. In respect of effectiveness the report argued that effectiveness relates broadly to the extent to which a measure achieves its intended outcomes, so that assessing and understanding effectiveness requires clear identification of those intended outcomes. Measuring or assessing effectiveness from societal, legal and democratic perspectives poses particular challenges because of information deficits and/or monopolisation, a failure to take second order effects into account, the conflation of compliance with effectiveness within official monitoring mechanisms, and institutional limitations, although effectiveness may be more susceptible to measurement from an operational perspective where the intended outcomes are clearly defined. The report also finds that across the disciplines surveyed there is a clear connection between effectiveness and outcome legitimacy, inasmuch as measures that are seen to be effective are likely to be perceived as having enhanced legitimacy from an outcome perspective.
D3.3 on the legal perspective, defined impact as the negative effect of a counter-terrorism measure on the protection of legally enshrined rights. This report found that, from a legal perspective, the relevant referent in an impact assessment is law itself, which can be understood in three different dimensions: the law as it applies to suspected terrorists directly affected by the measure, the law as it applies generally, and the Rule of Law in a more general and intangible sense. Vermeulen et. al. drew a distinction between the direct and indirect impact of counter-terrorist measures, meaning the effect of the measure on the legal status of those upon whom it is applied (direct impact) and its effect beyond that (indirect impact). As regards the first dimension the report argued that counter-terrorist measures can have direct impacts on suspected terrorists by, for example, providing that they are to be subjected to a restrictive measure without what would normally be considered to be due process or an adversarial trial process. An additional indirect effect arises from what Fenwick and Phillipson deem the ‘covert derogation’ from human rights norms and de Londras terms a general ‘downward calibration’ of legal protections. This reflects a general reduction in the level of rights protection including for those not suspected of involvement in counter-terrorism as a result of the counter-terrorist malaise, which can result in courts and political actors accepting that security concerns require an adjustment in our ‘normal’ standards of legal protection. As a general matter, the report found that it is accepted that counter-terrorism measures have legal impacts, manifested in the existence of a legally defined period of emergency in which ‘normalcy’ is suspended in order for the state to take actions that would otherwise violate constitutional and/or human rights standards, the so-called ‘emergency/normalcy dichotomy’. In both cases the question asked by law is not whether there are any impacts at all, but whether those impacts are permissible in terms of what the law regards to be acceptable levels of interference with the status quo ante as measured by legal doctrines such as proportionality, the margin of appreciation and so on.
In D3.4 on the operational perspective, it was argued that impact might be understood as the effect that operationalisation of counter-terrorist measures (understood as a process by which abstract or imprecise commitments, principles, measures and policies are translated into ‘on the ground’ action) has on the operational framework. In each of these areas impacts can be uneven, positive or negative. From an operational perspective, the impact of EU counter-terrorism may be national or transnational. In both respects, impact might be understood as the effect that operationalisation has on the operational framework, on roles, and on resources. At a national level the impact of operationalisation for the operationalising institution may, then, be empirically measurable inasmuch as a cost may be calculable. Operationalisation can also create impact at the European level, which might again be understood in terms of operational frameworks, roles and resources. The operationalisation of EU counter-terrorism law and policy may require leadership from one of more EU agencies and lead to the creation of new institutions or offices. It may also bring about either harmonisation or fragmentation of frameworks and systems used for particular purposes within the EU.
In D3.5 on societal impact, Méderic Martin-Mazé defines impact in a general sense as being ‘the effect yielded by a specific measure’, emphasising that in understanding such effects one must be cognisant of the unevenness of impact across both societal groups and societal values. This general concept of impact makes it clear that a comprehensive understanding of a measure’s societal impact requires a multi-layered approach that identifies and takes into account its effects across a number of different referents. The first important referent from the perspective of societal impact, then, is who is experiencing the effect. A second referent identified from the societal perspective is that of societal values. Here, again, the impact may appear different depending on which societal value is taken as the referent. A measure might, for example, be identified as increasing security but simultaneously increasing levels of state surveillance. This emphasises that in order for a measure’s societal impact to be appreciated a second referent must be taken into account: what is being affected. Measuring societal impact is, thus, a complex matter that requires an appreciation of the effects of the counter-terrorism measure on both a range of societal groups and all relevant societal values.
In D3.6 on the democratic perspective, Yulia Chistyakova considered that the impact of counter- terrorism can be understood as its effect on democracy, understood as the democratic principles of the relevant political system, governance practice and the demos. It is clear that the democratic perspective conceptualises impact across three referents: the relevant political system, practices of governance, and the demos itself. In the case of EU counter-terrorism, the relevant political system is the European Union itself. The EU’s democratic principles are those identified in the Treaty of the European Union, namely the indivisible, universal values of human dignity, freedom, equality and solidarity based on the principles of democracy and the rule of law. The report makes it clear that understanding impact by reference to democratic principles requires an assessment of both the impact of the measures in question on the maintenance of these principles and the impact of a climate of counter-terrorism on our understanding of the content of and a commitment to these principles. In this respect, it must be recalled that recourse to the exceptionalism debate and the prioritisation of security over liberty can lead to a reframing of democracy and radical adjustment in our understanding of its core content. As well as impacting on our understanding of and adherence to core democratic principles, a further impact of counter-terrorism from the democratic perspective can manifest itself in governance practices. These include the practice by which measures are introduced, debated, justified and assessed. As noted by Sjursen, and cited in the report, the extensive use of flexibility mechanisms and the employment of secrecy and urgency procedures associated with the adoption of CT measures tend to create greater distance, or ‘remove’ policies and processes from citizens’ influence. As a result, decision-making becomes less transparent and accountable and the link between the measures and democratic authorisation less tangible. The third referent from a democratic perspective is impact on the demos itself, particularly in relation to the restrictions on civil liberties and human rights and the uneven distribution of those restrictions across societal groups and, indeed, civil society organisations.
Building on the work in WP3, D3.2 (cross-disciplinary perspectives) made a number of observations on the concepts of impact, legitimacy and effectiveness, illustrated in Table 9.
Table 9. Cross-Disciplinary Perspectives
IMPACT • Relates to the effect or consequence a counter terrorism measure has.
• Must be understood in relation to relevant referents.
• Can be positive or negative; the same measure can have both positive and negative impacts
• Should be assessed across different referents.
• Can be direct or indirect.
• Can be temporally-variable, changing in extent and nature depending on context (eg. Emergency v normalcy)
• In order for impact to be comprehensively understood, direct and indirect impacts should be measured against multiple referents, which in turn should include societal groups, institutions, societal values and principles (such as democratic principles and the Rule of Law).
• The question of who measures impact is important. Institutional design may mean that some entities—such as courts—are capable only of examining impact to a limited extent, while others—such as politico-legal reviewers or parliamentary bodies—may have broader impact analysis
capacity.
LEGITIMACY • Is a nebulous term that can be said to comprise of numerous different strands including input legitimacy, process legitimacy, output legitimacy, outcome legitimacy, effective legitimacy, descriptive legitimacy and normative legitimacy.
• Is closely related to effectiveness in the counter-terrorist context, as measures that are perceived as effective are likely to enjoy enhanced legitimacy.
• Can be distinguished from processes of legitimation, which include the deployment of narratives such as those of exceptionalism, balance and trade-off in the counter-terrorist context.
• May be enhanced through the deployment of procedural and substantive mechanisms, such as sunset clauses.
EFFECTIVENESS • Relates broadly to the extent to which a measure achieves its intended outcomes, so that assessing and understanding effectiveness requires clear identification of a measure’s intended outcomes
• Is difficult to assess from societal, legal and democratic perspectives because of information deficits and/or monopolisation, a failure to take second order effects into account, the conflation of compliance with effectiveness within official monitoring mechanisms, and institutional limitations.
• May be more susceptible to measurement from an operational perspective where the intended outcomes are clearly defined.
• Operationally, relates to the extent to which an objective has actually been achieved and is measurable through monitoring mechanisms.
• Is related to outcome legitimacy, inasmuch as measures that are seen to be effective are likely to be perceived as having enhanced legitimacy from an outcome perspective.
Table 10. WP3 Deliverables
Deliverable Title Web Address
D3.1 Workshop
D3.2 Fiona de Londras, Josephine Doody, Janis Supe & Signe Zalkalne, Cross-Disciplinary Perspectives on Impact, Legitimacy and Effectiveness in the Context of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/02/Cross-Disciplinary-Report-.pdf
D3.3 Mathias Vermeulen, Daniel Deering & Sadhbh McCarthy (with research assistance from Carolin Möller), Report on Legal Understandings of Impact, Legitimacy and Effectiveness in Counter-Terrorism http://secile.eu/wp-content/uploads/2013/12/Report-on-Legal-Understandings-in-Counter-Terrorism-.pdf
D3.4 Fiona de Londras, Josephine Doody & Lt. Cdr. Erika Downing, Report on Operational Perspectives on Impact, Legitimacy and Effectiveness in Counter-Terrorism http://secile.eu/wp-content/uploads/2013/12/Report-on-Operational-Perspectives-on-Impact-Legitimacy-and-Effectiveness.pdf
D3.5 Méderic Martin- Mazé, Report on Societal Understandings of Impact, Legitimacy and Effectiveness in the Counter-Terrorism Context http://secile.eu/wp-content/uploads/2013/12/Societal-Report.pdf
D3.6 Yulia Chistyakova, Report on Democratic Understandings of Impact, Legitimacy and Effectiveness in the Counter-Terrorism Context http://secile.eu/wp-content/uploads/2013/12/Report-on-Democratic-Perspectives-in-Counter-Terrorism-.pdf
WP. 4 European Anti-Terrorism Legislation in Operation
The objectives of WP4 were to gather empirical information on the operation of a range of European security measures and develop and empirically-informed understanding of the perceived impact, legitimacy and effectiveness of European counter-terrorism measures across a diverse range of stakeholders. This was to be achieved by producing five deliverables: a case study on border surveillance (D4.1) a case study on the disruption of terrorist financing (D4.2) a case study on the European Arrest Warrant (D4.3) holding end user focus groups (D4.4) and supplementary stakeholder engagement (D4.5).
D4.1 takes the form of the scientific report, Law Enforcement Officers’ Perspectives on Impact, Legitimacy and Effectiveness of EU Border Control Databases. This report is based on the perspectives garnered in a focus group with seven law enforcement officers from four member states who are engaged in the use of databases for border surveillance across the member states. The participants in this focus group demonstrated reluctance to speak at length or in great detail about their particular experiences. Given these limitations, D4.1 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those law enforcement officers who participated therein. A full methodological outline is provided in the deliverable.
Law enforcement officers who participated in the focus group on EU border control databases generally considered that EU border control databases made Europe more secure and aided law enforcement officers in carrying out their roles, although it was felt that they were not sufficient on their own. A number of participants raised concerns as to deployment of the correct databases, training, and the increasing complexity of databases: factors that might undermine their positive impact on European security. A number of participants represented these databases as being a corollary of the free movement within the EU. Law enforcement officers who participated in the focus group on EU border control databases considered legitimacy across the three themes of lawfulness, transparency and rights. Their discussion focused on the legitimacy of border control databases in particular, and not on border control per se. In terms of lawfulness, participants noted that legality is key to legitimacy, but went on to say that ‘mere’ lawfulness is not sufficient. In addition, some participants raised questions about the implications of the development of SIS II for lawfulness and especially compliance with human rights, given the increased sophistication of this database in terms of the data that is entered into it. Participants also noted that control over and transparency about how databases are used are important from the perspective of lawfulness and legitimacy. Transparency was an important element of the discussion of legitimacy, with some participants noting that more external controls (from the judiciary, NGOs and so on) might enhance transparency and, thus, legitimacy. Participants disagreed as to whether data protection law strikes the right balance between rights protection and law enforcement’s need to access data. Law enforcement officers who participated in the focus group on EU border control databases had differing opinions on the effectiveness of these databases. In terms of effectiveness, participants stressed the need to make clear what databases one was talking about when assessing effectiveness, as there is a wide array of public and private databases that might be accessible to law enforcement. Building on this, participants noted that the range of databases was expanding, introducing increasing complexity. Training and experience in using databases were, thus, stressed as key to their effectiveness. Although training and experience were identified as key factors in the effectiveness of such databases, a number of participants also stressed the importance of appropriate information-sharing in this respect. Without the exchange of information between national authorities databases of this kind might not contain the data required for them to be effective, however challenges of trust were raised as significant barriers to the sharing of information through databases. Not only might insufficient information-sharing undermine effectiveness but so too, some participants noted, can the sharing of ‘irrelevant’ information by national authorities. Overall, participants tended to opine that databases were more effective in countering organized crime than terrorism per se.
D4.2 takes the form of the scientific deliverable Counter-Terrorist Finance Operatives’ Perspectives on Impact, Legitimacy and Effectiveness of EU Counter-Terrorist Finance Law and Policy. This report is based on the perspectives garnered in a focus group with eleven counter-terrorist finance operatives from nine member states. These participants held, or had held, positions in national authorities that dealt with counter-terrorist finance law and policy and were knowledgeable as to the operation of the system and the dynamics that led to its implementation in EU law and policy. However, given the limitation of focus groups as a methodology, D4.2 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those who participated therein. A full methodological outline is provided in the deliverable.
Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy noted the difficulty in determining the impact of counter-terrorist finance law and policy given the absence of a means to measure the risk of terrorist financing and the complexity of the system. Participants felt counter-terrorism measures in this area were more likely to serve a disruptive function rather than ending terrorism per se. The participants were aware of the obligations on the financial service sector and acknowledged the need for a co-operative relationship between the state and financial service sector in order for such measures to be successful. A key consideration for participants was the extent of the US role in European policy. Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy generally agreed that the disruption of the financing of terrorism was legitimate because it has a ‘democratic basis’ in EU treaties and in the need for the free movement of citizens. Legitimacy for many participants was linked to the achievement of a measure’s goal, i.e. based on the measure’s ability to prevent the financing of terrorism. Participants considered a number of themes in relation to assessing legitimacy, particularly the formal legitimacy of EU treaties, the need for transparency and outcome legitimacy. Counter-terrorist finance operatives who participated in the focus group on counter-terrorist finance law and policy felt that merging anti-money laundering and counter-terrorist finance policy might hinder the effectiveness of such a policy in countering terrorism. Financial Intelligence Units played a role in the participants’ understanding of counter-terrorist finance law and policy and participants considered whether they are to be best understood as a financial intelligence service. Some participants noted the role of asset-freezing sanctions and the challenges of effectiveness, particularly in relation to a lack of political agreement as to which organisations should be blacklisted and the use of litigation to oppose such decisions. Participants disagreed on the question of whether measures should aim for prosecution or prevention.
D4.3 takes the form of scientific deliverable Prosecutors’ and Government Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant. This report is based on the perspectives garnered in a focus group with eight prosecutors and government officials from seven member states. These participants had first hand knowledge of the European Arrest Warrant (EAW) and and were knowledgeable as to its operation. Their familiarity with the relevant law and jurisprudence as said to be “remarkable”. However, given the limitation of focus groups as a methodology, D4.3 does not seek to generalise on the basis of the focus group results, but rather presents the findings from the focus groups as the perspectives of those who participated therein. A full methodological outline is provided in the deliverable.
Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) shared the view that the EAW had a positive impact on criminal justice co-operation in general and their discussion highlighted the broader effect of the measure following the events of September 11 2001. Participants emphasised that the EAW is not primarily a counter-terrorism measure but a necessary corollary of the free movement of individuals within the European Union. Participants agreed that the European Arrest Warrant potentially had a (negative) impact in the displacement of crime. Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) identified the existence of an appropriate legal framework as the starting point to measuring legitimacy. Participants considered a number of themes in relation to assessing legitimacy, particularly legal, rational (in accordance with a rational or reasonable policy goal), and social legitimacy, whilst recognising that legality alone is not sufficient to ensure legitimacy. Participants noted the importance of considering how those who are subject to the system view the measure as a means of assessing social legitimacy. The need for proportionality in enforcement was also recognised as an important element in ensuring overall legitimacy. Prosecutors and government officials who participated in the focus group on the European Arrest Warrant (EAW) discussed the challenges to the effectiveness of this measure, particularly safeguards for those who are subject to EAW requests and refusal to execute EAW requests on human rights grounds. Some participants demonstrated skepticism around the idea of requests being challenged in court on human rights grounds. Participants recognised that the EAW both requires mutual recognition based on mutual trust and contributes to such mutual recognition and trust. Effectiveness was considered in terms of whether a speedy surrender was possible and participants largely agreed that the EAW is an effective measure contributing to the process of bringing suspects to trial. Participants in this discussion linked effectiveness to the concept of legitimacy.
D4.4 took the form of four focus groups held in London in December 2013. Three of these were focus groups of operational end users and fed into Deliverables 4.1 4.2 and 4.3 as described above. The fourth of these was a focus group of seven representatives of civil society. Given the limitations of focus groups as a methodology no attempt is made to generalise from the perspectives presented in this focus group, however given the richness of the information generated a supplementary report was prepared based on this focus group, entitled Civil Society Perspectives on the Impact, Legitimacy and Effectiveness of European Counter-Terrorist Measures.
Civil society focus group participants identified three key elements of impact in respect of border control databases: focus, political agendas and fundamental rights. Some participants felt that in order to measure the impact of border control databases it was necessary to determine the focus of the measurement rather than looking at border control as a whole. Thus, for example, impact might be considered in relation to activities such as the exchange of data or how it is used in this context. Some participants noted that instead of looking at particular measures, impact could be considered by looking at the different aims of border control as a general matter. Participants also suggested that impact could be measured by reference to privacy. The participants stressed that when considering impact attention ought to be given to whether the databases are being used for functions beyond their original rationale, which might be positive or negative from an impact perspective. Interestingly, civil society participants generally felt that effectiveness is of limited relevance in the context of border control: it was felt that such measures would consider to be applied whether effective or not, largely for political reasons. Civil society focus group participants considered the procedure used to change databases and expressed concern about the legitimacy and impact implications of such apparently ‘technical’ amendments. Participants of the civil society focus group discussed effectiveness in relation to counter-terrorist finance law and policy as an indicator of a positive impact but participants also identified the negative impact of such systems on NGOs and their ability to do their work due to financial regulations emanating from this system. The dangers of discrimination in the application of the system for disruption of terrorist financing were explored and one participant noted the need to rely on ‘hard intelligence’ only in subjecting people to such measures. Civil society focus group participants viewed the effectiveness of counter-terrorist finance law and policy as relating to whether the measures perform their intended function, although participants regarded this as being extremely difficult to establish. Civil society focus group participants considered legitimacy to be closely connected with proportionality and the degree ‘democratic control’ over the measure. The motivation for introducing the measures was also considered important in relation to effectiveness by the focus group participants. Civil society participants were generally less enthusiastic about the EAW than were operational end users. The civil society participants discussed the need for more quantitative data on the application of the European Arrest Warrant in order to understand its practical impact but noted that relying only on ‘figures’ in measuring impact would exclude important societal elements of an impact assessment. Participants explored positive impact in the context of the measure facilitating states in arresting an individual who has crossed an EU border. Civil society focus group participants felt the effectiveness of this measure might also be considered in light of the practical harmonisation of rules and legislation across member states. Participants also discussed the need to consider a cost-benefit analysis of the measure to determine whether it is effective, which assessment should be undertaken in a manner that includes discussions with stakeholders. Participants identified timing, procedure and motivation as important issues when assessing the legitimacy of the EAW. In this respect, participants raised concerns as to the timing of the measure’s final introduction following events such as 11 September 2001, which gave rise to the perception that it was motivated by the attacks, even though the proposal for the EAW predated ‘9/11’. Thus, the process by which the measure was introduced and an understanding of driving forces behind it were recognised as being important to legitimacy. It was also noted that the ways in which a measure is used, and transparency in relation to it usage, might influence perceptions of its legitimacy.
D4.5 took the form of ten semi-structured interviews with policy-makers in and beyond EU agencies and institutions which were undertaken in January and February of 2015. Given the limitations of interviews as a methodology, no attempt was made to generalise from these interviews. However, the richness of the interviews resulted in a report being prepared entitled Policy-Maker Perspectives on Impact, Legitimacy and Effectiveness in EU Counter-Terrorism. Interviewees were asked their views on impact, legitimacy and effectiveness in EU counter-terrorism generally, and on border surveillance, counter-terrorist finance and the EAW.
Of the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, a small number directly addressed the Schengen Information System (SIS) in relation to its policy implications, particularly ameliorating risks arising from the Schengen travel area and providing a supplementary tool to domestic systems. Interviewees noted that the SIS is not perceived as a counter-terrorist measure. One interviewee noted that it is relatively easy to determine the effectiveness of the SIS due to the practical structure of the system but a number of policy-makers and operational actors felt the discretionary nature of entering information in the system raised questions of effectiveness. Of the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, a small number made reference to the EU’s counter-terrorist financial disruption system in relation to the implications of listing from a criminal law perspective and policy implications of allowing a suspected terrorist to be represented in the listing decision. One interviewee noted the complicated nature of investigations relating to terrorist financing. From the ten policy-makers and high-level operational actors in European institutions interviewed for SECILE, the impression of the European Arrest Warrant was largely positive in relation to the measure’s original policy objectives. It was recognised that the measure has succeeded in speeding up extradition between Member States, thus addressing delays in extradition which had previously been a cause for concern. The European Arrest Warrant was also recognised as contributing to the development of a European judicial space and better coordination between member states. One interviewee noted that figures on the use of European Arrest Warrant system made a quantitative analysis of the effectiveness of the measure relatively straightforward although a cautionary note was sounded by another interviewee as to the usefulness of statistical analysis when measuring effectiveness. Whilst policy-makers and operational actors recognised the contribution of the European Arrest Warrant to cross-state joint exercises it was noted that a review of the measure’s operation may be timely.
Moving beyond these specific areas, the interviewees provided a rich seam of perspectives on the concepts of impact, legitimacy and effectiveness within the context of EU counter-terrorism generally.
Interviewees emphasised the importance of understanding the referent when we consider impact. A number of interviewees approached impact from the perspective of the individual. This entailed a consideration of the impact of counter-terrorist measures on the enjoyment of individual human rights and an appreciation of the extent to which a human right has been infringed. There was a recognition that individuals do not exist in a vacuum but rather come together to form communities and societies and therefore impact can be approached from this broader societal level. Considering impact at the societal level entails exploring how counter terrorist measures affect our democratic values, practices and principles. Interviewees considered impact across five categories: economic impact, operational/practical impact, impact on level of security, impact on operational actors, and political/diplomatic impact. All participants noted that one challenge of understanding impact is that some impacts are quantifiable and ‘measurable’ (for example economic impacts) while others are more qualitative and thus more difficult to assess and take account of. The assessment of impact can take place both ex ante and ex post facto. While the ex ante assessment is intended to give a rigorous evidence base for political decisions as to which counter-terrorist measures to introduce, ex post facto assessments ideally have an evaluative function. Some interviewees raised concerns about the utility of considering impact in a pan-European way as impact will vary depending on one’s starting point: on the existing legal framework, history and experience of each individual country. A further concern about understanding impact that was raised related to poor communication within the policy-making process which can lead to a disconnect between the strategic and the operational level and between the European and the local level.
Interviewees identified three core components of legitimacy: legality, process and something that extends beyond the law into the area of morals and ethics. Firstly, legality (i.e. compatibility with primary and secondary law) was identified as a sine qua non of legitimacy. In this respect the concept of proportionality as a mechanism of considering lawfulness was raised on a number of occasions. In respect of process, interviewees opined that how a law was adopted, who by, and under which processes were significant considerations. In this respect, attention was drawn to participation, deliberation, contestation, reviewability, and learnability in the development, implementation and review phases. In terms of development, interviewees considered necessity, proportionality and fairness to be related to legitimacy, while levels of domestic implementation were considered indicators of perceived legitimacy. Some participants raised questions of legitimacy in respect of very technical implementation and development modalities, which may not be exposed to the same public debate or rigour as the broader political policy being pursued. Some interviewees also identified the output from use of a measure (e.g. a successful prosecution) as an indictor of legitimacy. Going beyond legality and due process, there is a question of legitimacy in terms of moral and ethical considerations, such as the tension that exists between transparency and secrecy. Assessing the balance between these values was considered to have legitimacy implications. This reflects the fact that interviewees identified accountability, transparency, participation and democracy as core values that are implicated in a discussion of legitimacy, although they acknowledged that particular challenges might arise in the context of security. In this respect, things like classification of documents in the EU, the role of courts, and the role of independent review were raised as ways of potentially addressing these challenges. A key question that arose in the interviews related to how legitimacy can be measured. It was generally felt that legitimacy can be measured in a legal sense by reference to the concepts of necessity and proportionality. In this respect, courts may ultimately make the decision as to actual legitimacy considered from a legal perspective, however even in this respect there are a number of important stages involved in ensuring the legitimacy of a legislative measure including proposal, consultation with stakeholders, impact assessment and engagement of lots of different bodies. Furthermore, as legitimacy was generally considered to be ‘legality +’ understanding each of these layers are being part of the process of ensuring legitimacy is important. What came across clearly in the interviews, however, is that regardless of the process, ultimately what determines the outcome of any process relating to counter-terrorism is political will: in the absence of a definitive legal decision as to ‘legitimacy’ (i.e. a court case), political judgment determines proportionality, necessity and ultimately legitimacy.
Objectives and purpose played a central role in the interviewees’ conceptualisation of effectiveness, with interviewees generally equating ‘achievement of objectives’ with effectiveness. However, some interviewees recognised that objectives may shift and that a measure might not achieve its original objective but prove to be quite useful in achieving another. In this context it was considered that a measure might still be considered effective when considered against ‘broader’ security-oriented and counter-terrorist objectives, although this may have implications for the legitimacy of a particular measure. Interviewees agreed that linking effectiveness with objective and purpose may be quite a simplified way of approaching the concept and that, when so conceptualised, effectiveness may be complicated with the introduction of other issues such as weaknesses in the policy-making process, a deeper excavation of the actual purpose and the possibility of unanticipated consequences. Interviewees agreed that assessing the effectiveness of a counter-terrorism measure can be challenging as, in some cases at least, effectiveness may be indicated by a lack of terrorist incidents, which may also be explicable by a range of other elements. In such circumstances, interviewees considered that it might be helpful to consider other components of effectiveness and to differentiate between perspectives (legal, operational, etc). From a legal perspective we might consider effectiveness by reference to the comprehensiveness of the governing legal framework relating to terrorism and counter-terrorism and the role that a particular measure plays within that system. Effectiveness within the operational framework might be considered by reference to the ease and speed with which a measure can be deployed in practice. From a societal perspective we might consider the effectiveness of a measure in terms of the wider impact that it has on society and on particular communities within society. Making wider societal links suggests that a measure can be effective in one way, but disruptive or harmful in others. Added to this complexity is the fact that effectiveness may change over time. As one measure is effective, terrorists innovate and identify new routes, opportunities and means. The effectiveness of counter-terrorism measures thus requires constant re-evaluation. From a law enforcement perspective, statistics might be used to assess effectiveness. However, interviewees raised a number of concerns in relation to the use of statistics to indicate effectiveness most particularly the manipulability of statistics, the limited nature of statistics, and the impossibility of capturing some disruptive successes in statistical form. One interviewee suggested that the most approach might be to instigate broader process of evaluation including but going beyond statistical and quantitative enquiry.
Table 11. WP4 Deliverables
Deliverable Title Web Address
D4.1 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Law Enforcement Officers Perspectives on Impact, Legitimacy and Effectiveness of EU Border Control Databases http://secile.eu/wp-content/uploads/2014/07/BOR_Report_Public.pdf
D4.2 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Counter-Terrorist Finance Operatives Perspectives on Impact, Legitimacy and Effectiveness of EU Counter-Terrorist Finance Law and Policy http://secile.eu/wp-content/uploads/2014/07/CTF_Report_Public.pdf
D4.3 Cian Murphy, Aldo Zammit Borda & Lucy Hoyte, Prosecutor and Government Official Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant http://secile.eu/wp-content/uploads/2014/07/EAW_Report_Public.pdf
D4.4 End User Focus Groups
D4.5 Fiona de Londras and Josephine Doody, Policy-Maker Perspectives on Impact, Legitimacy and Effectiveness in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/07/Policymaker-Perspectives-on-Impact-Legitimacy-and-Effectiveness-in-EU-Counter-Terrorism-.pdf
D4.6 Rozemarijn van der Hilst, Civil Society Perspective on the Impact, Legitimacy and Effectiveness of European Counter Terrorism Measures http://secile.eu/wp-content/uploads/2014/07/Civil-Society-Perspective-on-the-Impact-Legitimacy-and-Effectiveness-of-European-Counter-Terrorism-Measures.pdf
WP5. Generating Normative Insights
The objectives of work-package five were to synthesise the findings of WP4, 3 and 2 in order to generate practicable, original and innovative insights on impact, legitimacy and effectiveness in EU counter-terrorism, and to support the production and publication of cutting edge scientific publications emanating from SECILE. These objectives were to be met through four deliverables: identification of best practice (drafting and reviewing) (D5.1) identification of best practice (transposing and reviewing) (D5.2) production of an end-user oriented report on key concepts (D5.3) and a scientific publication (D5.4).
D5.1 and 5.2 were undertaken based on careful analysis of all outcomes from WP2, 3 and 4. The final best practice guides made the following proposals as to best practice:
In order to better understand the impact of counter-terrorism measures, assess their effectiveness, and enhance their legitimacy the following best practice guidelines ought to be born in mind when drafting and reviewing measures:
1. Systems for taking rights and societal impacts into greater account in making counterterrorism law and policy should be introduced. These might include (a) consultation with a wide range of stakeholders, including NGOs and offices established for the protection of rights within the EU, (b) giving appropriate weight to the views and evidence offered in respect of rights and societal impact, recognising the expertise of human rights professionals, and (c) systematically involving the European Parliament and its committees in debating proposed counter-terrorism measures, testing the rigour of the evidence base underlying them.
2. Review of the operation of EU counter-terrorism should be systematic, regular, as public as possible, and evaluative. It should also be capable of bringing about change to counter-terrorism law and policy where questions of legitimacy, ineffectiveness, or disproportionate societal impact arise. This could be achieved by (i) regular Parliamentary review in the European Parliament, (ii) establishing an EU Counter-Terrorism Reviewer as an independent EU-wide office, (iii) collaborative review with national oversight bodies, or (iv) a combination of all three. The results of these reviews should be public, and relevant EU institutions should be required to respond to the outcomes within six months of completion of the review.
3. In making and reviewing EU counter-terrorism the principle of participation should be honoured, so that a wide base of stakeholders are formally involved. The extent of participation may differ between ex ante and ex post facto procedures, but in each case key stakeholders must extend beyond industry and security experts to include civil society and specialist agencies with rights-related ambits.
4. In order to achieve greater democratic accountability steps ought to be taken to ensure greater transparency while bearing in mind the genuine concerns that exist in relation to security and secrecy. Transparency about processes of policy-making, political decision making, the extent and cost of EU counterterrorism, its practical operation and its implications for individual and societal rights and values is central to enhancing the legitimacy of the EU’s counter-terrorism. Bearing in mind the tensions between secrecy and security, approaches to transparency ought to be both innovative and appropriate. These may include reforming the system of classification of information in the EU, and establishing a security-cleared committee of the European Parliament to hear evidence where absolutely necessary.
In order to better understand the implementation of EU counter-terrorism measures in member states, the following best practice guidelines were generated for the transposition and review of EU counter-terrorist measures:
1. Each measure requiring transposition in national law should include a provision for review. The review ought to encompass both the transposition of measures and assessment of their implementation and operation.
2. Review of the transposition and implementation of EU counter-terrorism measures in national law ought to be complemented by an overall analysis of these trends across the member states in order to identify underlying factors for failure to implement. Such an assessment may flag the legal, cultural and political reasons for inconsistency in transposition across member states and, in turn, identify issues that ought to be taken into account in the design of EU measures in future. Such review would complement and/or replace infringement proceedings.
3. Following implementation, consideration should turn to how the measure works in practice, which should be evaluated through a robust programme of monitoring and evaluation. Such reviews require productive engagement with national authorities, agencies, and oversight mechanisms. These reviews ought to feed into wider, institutional EU reviews of counterterrorism which might take place by means of (i) regular Parliamentary review in the European Parliament, (ii) establishment of an EU Counter-Terrorism Reviewer as an independent EU-wide office, (iii) collaborative review with national oversight bodies, or (iv) a combination of all three. The results of national and EU-wide reviews should be as public as possible, and require response from relevant national and EU institutions within six months of completion of the review.
D5.3 was completed in September 2014 and presented the key findings from the project in accessible and end user oriented language. The report, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism is available online, was distributed to all those who attended the final conference, and has also been distributed in hard copy to Members of European Parliament, Chairs of European Parliament Committees, Ministers of Justice and Foreign Affairs, SECILE advisory board members and SECILE workshop attendees.
D5.4 takes the form of an edited collection, co-edited by Fiona de Londras and Josephine Doody, entitled The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism. It will be published by internationally recognised publishing house Routledge in early 2015 and is available for pre-order. The collection brings together the results of the research with some further normative and scientific perspectives. It has been peer reviewed, and the reviewers’ comments included the following: “SECILE represents an important development in this area and I see much value in having its main findings contained in one single volume” (Reviewer 1), “The main strength of the project is that it brings together scholars from three different areas (law, sociology and politics) to explore different aspects of EU Counter-terrorism” (Reviewer 1), “The proposal is an important contribution in that it brings together contributions from different disciplines to examine in detail counter-terrorism law and policy in the EU” (Reviewer 2). The manuscript has been delivered to the publisher and the table of contents is as follows:
1. Introduction: The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism
Fiona de Londras & Josephine Doody
2. Taking stock: the evolution, adoption, implementation and evaluation of EU counter-terrorism policy
Ben Hayes and Chris Jones
3. The Institutional Framework Of EU Counter-Terrorism
Josephine Doody
4. Assessing Counter-Terrorism as a Matter of Human Rights: Perspectives from the European Court of Human Rights
Mathias Vermeulen
5. The societal impact of European counterterrorism
Médéric Martin-Mazé and J. Peter Burgess
6. Democratic legitimacy, effectiveness and impact of EU counter-terrorism measures
Yulia Chistyakova
7. Social appropriateness in EU’s counter-terrorism law and policy
Bruno Oliveira Martins
8. The Perspectives of Counter-terrorism Operatives on EU Counter-terrorism Law and Policy
Cian C. Murphy, Aldo Zammit Borda & Lucy Hoyte
9. Civil Society and Policy Maker Perspectives on EU Counter-Terrorism
Josephine Doody and Rosemarijn van der Hilst
10. Governance Gaps and EU Counter-Terrorism: The Importance of ‘Closing the Loop’
Fiona de Londras
In addition to the formal deliverables in WP5, a 4-page briefing document was prepared by Durham Law School to illustrate the key findings of the project. This briefing document, which was distributed to all those who attended the final conference and is available on the Durham Law School and SECILE web-pages presents key messages and findings in an accessible format, oriented towards politicians, media, researchers and interested members of the public. The Durham Law School briefing paper series is designed to give the reader a flavour of major research projects within the department, and the briefing papers are widely disseminated through the website and the Durham Law School social media accounts, as well as in hard copy.
Table 12. WP5 Deliverables
Deliverable Title Web Address
D5.1 SECILE Consortium, Identification of Best Practice (Drafting & Reviewing)
Produced as Best Practice in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_Best-Practice_4.pdf
D5.2 SECILE Consortium, Identification of Best Practice (Transposing & Reviewing)
Produced as Best Practice in EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_Best-Practice_4.pdf
D5.3 SECILE Consortium, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/11/SECILE_doc_amended.pdf
D5.4 Scientific Publication
Briefing Paper. The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism http://secile.eu/wp-content/uploads/2014/10/TheImpactLegitimacyAndEffectivenessOfEUCounter-TerrorismFindingsandProposals.pdf
Table 13. Full List of Deliverables
Work Package Deliverable Number Deliverable Title
Work Package 1 D1.1
D1.2
D1.3
D1.6
D1.7
D1.8
D1.9 Consortium management, financial oversight and final report
Report 1 including financial report
Report 2 including financial report
Ethics Report 1
Ethics Report 2
Final Report
Ethical Approvals from Relevant Bodies
Work Package 2 D2.1
D2.2
D2.3
D2.4 Database of EU Counter-Terrorism Laws since 2001
Comparative report on Transposition
Catalogue of ‘Built-In’ Assessment Methods
Analysis of Data Retention Laws
Work Package 3 D3.1
D3.2
D3.3
D3.4
D3.5
D3.6 Workshop on State of the Art
Report on State of the Art across Disciplines
Report on Legal State of the Art
Report on Operational State of the Art
Report on Societal State of the Art
Report on Democratic State of the Art
Work Package 4 D4.1
D4.2
D4.3
D4.4
D4.5
D4.6 Case Study on Border Surveillance
Case Study on Disruption of Terrorist Financing
Case Study on European Arrest Warrant
End User Focus Groups
Stakeholder Engagement
Civil Society Perspective on the Impact, Legitimacy and Effectiveness of European Counter Terrorism Measures
Work Package 5 D5.1
D5.2
D5.3
D5.4 Identification of Best Practice (Drafting & Reviewing)
Identification of Best Practice (Transposing and Reviewing)
End-User Oriented Report on Key Concepts
Scientific Publication
Work Package 6 D6.1
D6.2
D6.4
D6.5
D6.6 Website: Establishment
Website: Maintenance
Dissemination Report
Production of Best Practice Guides
Final Conference
Key Findings/ Recommendations
The SECILE project has resulted in the following findings and recommendations as to the impact, legitimacy and effectiveness of EU counter-terrorism.
Understanding Impact
Bringing together all of the research undertaken within the research project, a number of key observations about understanding and measuring impact within the context of EU counter-terrorism can be drawn out.
First, impact can only be understood in relation to a referent: who or what does the measure have an impact on? In order to have a comprehensive analysis of the predicted or actual impact of a measure, a range of referents is required. These include (i) societal groups, (ii) operational actors in the counter-terrorist field, (iii) national and transnational economies, (iv) politics including international diplomacy, (v) law and legal systems (including legal procedure), (vi) overall security, and (vii) the security concern that the measure is designed to address. In respect of each of these referents consideration should be given to direct, indirect, national, transnational, positive and negative impacts.
Impact analysis takes place at different stages of the lifecycle of a measure, and it may not always be appropriate to apply the same analytical approaches at the ex ante stage as at the ex post facto stage. Furthermore, it may be appropriate to consult a more diverse set of stakeholders when assessing actual impact than was the case when assessing predicted impact. At the ex ante stage it may be that certain experts and independent office holders are consulted as proxies for societal groups and interests, for example, that might then be capable of participating in a retrospective impact analysis, thus ensuring a diverse range of views and perspectives. In addition, impact assessment ought to be undertaken with a critical appreciation of the strategic viewpoints and interests at play, including political and industry interests.
In the context of counter-terrorism in the EU, concerns are raised in the research about the processes of impact assessment in respect, specifically, of (a) the ex ante impact assessment which appears at times to over privilege economic and operational perspectives over societal and rights-related ones; (b) the lack of systematic ex post facto review and evaluation to consider the ‘real’ impact of measures; (c) the somewhat limited nature of ‘legal’ analyses of impact when broader societal, political and security concerns are taken into account.
Understanding Legitimacy
Bringing together all of the research undertaken within SECILE, a number of key observations about understanding and measuring legitimacy within the context of EU counter-terrorism can be drawn out.
First, legitimacy can be understood across a number of different dimensions relating to process, content and practice. A comprehensive legitimacy analysis would take all of these elements into account, spanning the processes of making, applying and reviewing counter-terrorism. Furthermore, any such legitimacy analysis would recognise that output and outcome are not synonymous in EU counter-terrorism, i.e. that the ‘effectiveness’ of a measure (considered further below) is not proxy for the legitimacy of the output of a process (i.e. the measure itself).
In respect of making counter-terrorism law and policy, participation (including consultation) and accountability were identified as key elements of legitimacy. In this respect, participation involves not only the potential for affected stakeholders and communities to engage with practices of law- and policy-making directly, but also through the involvement of democratic representatives such as members of the European Parliament. Serious concerns about the marginalisation of the Parliament before the implementation of the Lisbon Treaty emerged in the research. Furthermore, concerns about information sharing in order to ensure meaningful participation and accountability were raised. Some particular legitimacy concerns arose in respect of highly technical stages of the development or implementation of policy, which may not be subjected to same levels of scrutiny or oversight as earlier, more policy-level stages in development, although this concern was not shared equally across research participants.
The research identified a lack of systematic review of the operation of EU counter-terrorism measures, which raised concerns as to legitimacy. This reflects the finding that legitimacy may be temporally contingent, reflecting the fact that a measure might be considered to be necessary and proportionate at one time but, as circumstances change, either the negative impact of the measure might be greater than anticipated thus suggesting disproportionality or the broader context may change in a manner that otherwise calls the appropriateness of the measure into question. Furthermore, measures designed to address one security concern may be applied in other contexts, without an appropriate assessment of impact and effect having been undertaken ex ante. The lack of systematic processes of review to identify any such adjustments or trends calls the legitimacy of these measures’ continuing application into question.
At all levels of assessing legitimacy a tension between transparency and security may arise, relating to classified documents, information and intelligence held by national authorities alone, and political concerns. Enhancing the legitimacy of EU counter-terrorism requires the design and implementation of mechanisms of managing these tensions in line with the principles of participation and accountability (including parliamentary oversight at European and, arguably, national level of the implementation of EU counter-terrorism measures).
Understanding Effectiveness
Bringing together all of the research undertaken within SECILE, a number of key observations about understanding and measuring effectiveness within the context of EU counter-terrorism can be drawn out.
At its most basic effectiveness can be understood as the extent to which objectives for the measures in question have been achieved. In the context of counter-terrorism this simple conceptualisation is complicated by three factors: (i) the fact that discrete measures are part of a broader system of counter-terrorism and may have both meta objectives (relating to security generally) and specific objectives (relating to the measure in particular), (ii) the fact that meta- and specific objectives may not be clearly identified in some cases, and (iii) the possibility of measures designed for one purpose being applied to other issues or having unanticipated impacts in relation to other areas. Furthermore, the perceived effectiveness of a measure is likely to bear some relationship to the perspective, priorities and broader purposes or aims of the person or entity making the assessment.
Given the temporally contingent nature of much of counter-terrorism, bearing in mind shifting threats, opportunities and (geo) political realities, effectiveness ought to be reviewed and assessed on a relatively regular basis. In this respect, the limitations of a purely statistical or quantitative evaluation need to be borne in mind: statistics are neither exhaustive indicators of effectiveness nor necessarily objective. Furthermore, while a measure might be effective in one sense (for example by disrupting apparent routes of terrorist financing), it might be ineffective in others (for example by introducing inefficiencies in financial governance, incentivising adaptation and innovation by terrorist organisations, undermining social cohesion, or undermining fundamental rights).
The research undertaken within SECILE suggests that regular, systematic and evaluative assessments of the effectiveness of EU counter-terrorism are frequently lacking suggesting, as a result, that there is insufficient understanding of the extent to which the many and diverse measures introduced since 2011 achieve the meta-objective of a more secure Europe when considered in concert or the specific objectives for which they were introduced.
Proposals for reform
Based on the insights gleaned from the research in SECILE the following reforms for the better understanding, measurement and analysis of impact, legitimacy and effectiveness of EU counter-terrorism are made.
Proposal 1: Enhance the Assessment of Rights-Related Impact
The practice of the EU institutions at present suggests that while societal impact, including rights-related impact, is recognised as part of the impact assessment both ex ante and ex post facto it is under-analysed and the process by which an assessment of proportionality of proposed measures is reached is unclear. While it is extremely difficult to predict rights-related impact with certainty in advance of introducing a measure, more attention should be given to the views and estimations of specialist actors with responsibility for rights assessments such as the EUDPS and FRA in preparing ex ante impact assessments. Where there is an ex post facto assessment the practical operation of the measure, assessed from a number of different perspectives (including those of affected communities), should be taken into account in order to revisit, enrich and complicate the necessarily speculative ex ante assessment.
This relates to the importance of ensuring appropriate participation in impact assessment. It is acknowledged that, in preparing ex ante impact assessments the European Commission does involve a range of stakeholders, including civil society actors. In addition, when proposals are being considered in the European Parliament and its committees, external stakeholders such as community groups, NGOs and academics may be called upon to participate. In this respect it is essential that any ex post facto review in particular would be designed in a manner that first reviews whether the original stakeholders ought to be invited to contribute again and, furthermore, whether practice relating to the measure in question suggests that a broader consultation ought to be engaged with (either by invitation or public consultation or both).
Participation is widely recognised as a key legitimacy-indictor, however the particular nature of counter-terrorist decision-making is such that maximum participation may not be appropriate or possible. This relates to transparency concerns considered below. However, even bearing this in mind a greater degree of meaningful consultation with key stakeholders is likely to increase the perceived legitimacy of EU counter-terrorism. In this respect, key stakeholders must extend beyond industry and security experts but also include civil society and specialist agencies with rights-related ambits, although participation need not necessarily be the same at different levels of the decision-making process.
Proposal 2: Enhance Democratic Oversight
A number of concerns about democratic oversight of EU counter-terrorism arose in the research and, while changes introduced by the Lisbon Treaty will enhance parliamentary engagement with counter-terrorism, the European Parliament ought to be empowered to engage in more effective and closer oversight in this field. This is especially so as a large amount of EU counter-terrorism takes place by means of non-legally-binding measures and initiatives in relation to which greater and more meaningful participation would be welcomed in line with the EU’s general commitment to openness in decision-making. In addition, the oversight capacity of the European Parliament would be enhanced through the use of closed sessions in limited circumstances in order for committees to engage with national and European authorities in respect of security-sensitive and classified information, where such a committee would work in accordance with international standards for intelligence and security oversight as well as for classification of information.
Proposal 3: Enhance Transparency
In order to achieve greater democratic accountability steps ought to be taken to ensure greater transparency while bearing in mind the genuine concerns that exist in relation to security and secrecy. Transparency about processes of policy-making, political decision-making, the extent and cost of EU counter-terrorism, its practical operation and its implications for individual and societal rights and values is central to enhancing the legitimacy of the EU’s counter-terrorism. However, transparency cannot be pursued to the extent that security-sensitive information becomes publically available thus jeopardising collective security. Thus, approaches to transparency ought to be both innovative and appropriate.
As well as reforming the system of classification within the EU, consideration ought to be given to means of enhancing the transparency of policy-making in EU counter-terrorism. Although some elements of the decision-making process in EU counter-terrorism may need to remain largely undisclosed to the general public, in both these and other fields a layered approach to transparency might be devised that enhances legitimacy. First, general policy-making ought to participatory and subject to as open a method of decision-making as possible. Second, decisions as to the degree of publicity that can safely be attributed to a particular process of devising a measure, protocol, legislative proposal etc ought to be made by reference to objective criteria relating to security risk of disclosure. Third, where a closed process is appropriate and required by reference to objectively assessed security concerns, alternative mechanisms of ensuring participation and transparency (such as briefing security-cleared committees of the European Parliament) ought to be embraced. Fourth, highly technical and technocratic stages of development should be preceded by a general policy-making process that embraces the principle of transparency. In all cases, and especially where publicity has been limited, a transparent process of ex post facto review ought to be engaged in, albeit subject to necessary security limitations in terms of information disclosed to the general public
Proposal 4: ‘Close the Loop’ by Systemising Review
Ensuring systematic and evaluative review of the operation, making and impact of counter-terrorism is key to understanding its impact, enhancing its legitimacy, and assessing its effectiveness. Thus, it is vital that the European Union would ‘close the loop’ by ensuring review of EU counter-terrorism. This necessitates compliance with review clauses that are already contained in many such measures, but also the instigation of systematic review across the EU in respect of the impact of these measures. This might be undertaken through the establishment of an independent reviewer of EU counter-terrorism, or review by committees of the European Parliament with appropriate levels of clearance where appropriate, or enhanced engagement by national oversight authorities with EU-level reviews, for example. In addition, it is essential that there would be a full, systematic albeit one-off review of EU counter-terrorism as called for by the European Parliament in 2011 in order to assess the current state of EU counter-terrorism as applied within and across the member states of the European Union.
Any review of EU counter-terrorism ought to critically assess both the impact and effectiveness of these measures in order to enhance the legitimacy of their continuing operation. If necessity and proportionality are key elements of legitimacy, and if legitimacy can be temporally bounded inasmuch as changing socio-political conditions may result in adjustments in necessity and proportionality analyses, then rigorous review of the operation of these measures is required. Such a review would, furthermore, allow for a factual assessment of impact to be undertaken so that a more concrete and less speculative proportionality analysis can be undertaken than is possible at the ex ante stage.
In order to be meaningful, such reviews ought to be regular, participatory, public (to the extent possible and bearing in mind the challenges of transparency in the security context considered in relation to legitimacy), and capable of bringing about policy, legal, practical and political reorientation by providing a rigorous evidence base for policy (re)evaluation.
How the project objectives were met
The objectives of SECILE were met through both the processes adopted in the undertaking of the project and work of the consortium and the deliverables produced from the consortium’s work. The chart below illustrates how the objectives were met in detail.
Table 14. Objectives and Measures to Meet Objectives
General Objective Specific Objective Mechanism(s) WP(s) & D(s)
Conceptual Advancement Identify legal understanding of impact, legitimacy and effectiveness Review prevailing legal understandings WP3.1
D3.3
Identify societal understanding of impact, legitimacy and effectiveness Review prevailing societal understandings WP3.2
D3.5
Identify democratic understanding of impact, legitimacy and effectiveness Review prevailing democratic understandings WP3.3
D3.6
Identify operational understanding of impact, legitimacy and effectiveness Review prevailing operational understandings WP3.4
D3.4
Identify dissonances and parallelism across these fields Bring partners and perspectives incl. outside experts and end users together to review findings; produce overarching report WP3.5
D3.2
Empirical Analysis Map current EU CT laws Create database of EUCT law since 2001 WP2.1
D2.1
Map current transposition mechanisms Categorise transposition mechanisms in EUCT law WP2.2; WP2.4
D2.2
Identify existing impact, legitimacy and effectiveness measures in EU CT law Identify ‘built in’ assessment measures in EUCT law WP2.3
D2.3
Produce accurate understanding of operation of select EU CT regimes, identifying practical understandings of impact, legitimacy and effectiveness Undertake rigorous empirical studies into selected EUCT regimes WP2.1 4.2 4.3 4.4 4.5 4.6
D2.1; D2.4; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6
Generation of rigorous & usable understanding of key concepts To synthesise the doctrinal, theoretical and empirical work Hold a workshop bringing together case study authors, end user groups, theoreticians and scientific experts in relevant fields; Generate and produce theoretically sound, empirically informed conceptualisations; Generate benchmarks; Generate top-flight scientific publications WP5.1; 5.2; 5.5
D5.1; D5.2; D5.3; D5.4;
To produce clear and comprehensive multi- and inter-disciplinary descriptions of key concepts Hold a workshop bringing together case study authors, end user groups, theoreticians and scientific experts in relevant fields; Generate and produce theoretically sound, empirically informed conceptualisations; Generate benchmarks; Generate top-flight scientific publications WP5.1; 5.2; 5.5; 6.4
D5.1; D5.2; D5.3;
Increase awareness Bring actors from different disciplines together to generate effective understanding and findings Hold workshops, end user group sessions, final conference WP3.5 4.5 4.6 5.1 6.3 6.6
Include stakeholders incl. end users and policy-makers in SECILE Hold workshops, end user sessions, final conference; maintain communication with stakeholders and include their perspectives where relevant WP3.5 4.5 4.6 5.1 6.2 6.3 6.5 6.7
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D6.1; D6.2; D6.4; D6.6
Disseminate SECILE widely at multiple levels Produce and publish scientific output and tools for policy makers, hold workshops, disseminate online and in traditional media, hold focus groups, maintain communication with end users, hold final conference WP3.5 4.5 4.6 5.1 5.5 6
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D5.4; D6.1; D.6.2; D6.4; D6.5; D6.6
Create broad impact for SECILE Develop useable tools Generate information conceptualisations; translate findings into best practice guides and benchmarks; produce end-user oriented output WP5.2 5.3 5.4 6.6
D5.1; D5.2; D5.3; D6.5
Develop original theoretical understanding to constitute baseline for future funded research at European and international level Hold workshop bringing researchers, external experts, end users together; generate and produce theoretically sound and empirically informed conceptualisations; generate benchmarks; produce top-flight scientific publications WP3, 4, 5, 6
D3.1; D3.2; D3.3; D3.4; D3.5; D3.6; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6;
D5.1; D5.2; D5.3; D5.4;
D6.5; D6.6
Develop original theoretical understanding to advance and significantly impact on the scientific state of the art Hold workshop bringing researchers, external experts, end users together; generate and produce theoretically sound and empirically informed conceptualisations; generate benchmarks; produce top-flight scientific publications WP3, 4, 5, 6
D3.1; D3.2; D3.3; D3.4; D3.5; D3.6; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6;
D5.1; D5.2; D5.3; D5.4;
D6.5; D6.6
Develop awareness of outputs among end users and policy makers Create diverse outputs; devise and implement ambitious communications plan; publish findings in scientific, trade, end-user oriented, traditional and online media; involve end users in SECILE throughout; final conference WP3.5 4.5 4.6 5, 6
D3.1; D4.1; D4.2; D4.3; D4.4; D4.5; D4.6; D5.1; D5.2; D5.3; D5.4; D6.1; D6.2; D6.4; D6.5; D6.6
Potential Impact:
SECILE has provided a range of materials designed to help decision-makers and end users to better conceptualise, identify and measure the impact, legitimacy and effectiveness of European counter-terrorist measures. These include a best practice guide (drafting and reviewing) for EU law and policy makers, a best practice guide (transposing and reviewing) for national law and policy makers, and an end-user oriented report on the concepts and assessment of impact, legitimacy and effectiveness. In having to hand these guides, produced from a base of state of the art cross and interdisciplinary desk research and methodologically sound empirical research, decision-makers will be better equipped to foresee and manage any potential difficulties with impact, legitimacy and effectiveness in designing new measures, implementing existing measures, and reviewing European security measures. The research will thus bring about a significant impact for European citizens and those living, working and transacting within the European Union by advancing our conceptual, operational and functional understandings of the impact and effect of counter-terrorist measures and attendant degrees of legitimacy or illegitimacy.
Furthermore, the design and use of end user groups within the empirical case studies in WP4, and the bringing together of stakeholders in the closing conference, should stimulate cooperation and networking between those who design, implement and develop modalities and technologies of operationalising European counter-terrorist measures and their domestic transposition. This will enable the identification of technology gaps that might exist, while ensuring that laws, regulations and technologies that may be devised to fill those gaps are designed and implemented in a manner that is fully cognisant of individual liberties and the societal impact of such measures and modalities. Thus, SECILE aimed to develop a comprehensive framework to inform the understanding and assessment of the impact, legitimacy and effectiveness of current and future European security measures.
– Impacts on Competitiveness
SECILE has the potential to impact on competitiveness in two main ways. The first is through creating and disseminating empirically-informed ‘thick’ multi-perspective mechanisms by which effectiveness can be understood that have the capacity to aid in the production of ultimately more efficient instruments, measures and operationalising technologies in the future. Furthermore, their application to current approaches and instruments in the case studies identified some inefficiencies and lack of effectiveness that can be addressed. The second way in which SECILE has a potentially positive competitive impact is by informing ‘better’ design in European security measures so that future costs in litigation terms are potentially minimised. By identifying best practice in the incorporation of human rights concerns in designing and implementing European security measures, SECILE can help to ensure that future measures are not in contravention of human rights standards. Such contravention, as well as carrying a general societal cost, also carries real economic costs when identified by a court or other juridical body as a result of which measures, implementation regimes, structures and technologies have to be revised, reimagined, amended and implemented with all of the attendant costs in time, resources and training as well as potential costs in security in the transitional period. Although conducted on a European level, the technologies and modalities developed to implement European counter-terrorist legislation are likely to have application beyond Europe for a number of reasons including the globalised nature of terrorist threats and security solutions, the development of legislative imperatives at UN level, and the global application of new technologies such as UAVs. Thus, SECILE may aid in increasing competitiveness of Europe as a security innovator in theoretical, operational and technological term
– Steps to achieve these impacts
The first step in achieving these impacts was to identify operational end users to engage in the case studies undertaken in WP4. In addition, civil society was represented in its own focus group, and institutional stakeholders were invited to participate in the semi-structured interviews with representatives of the European Commission, FRONTEX, Europol, Eurojust, the office of the European Counter-Terrorist Coordinator and the European Data Protection Supervisor all participating. Operational end users, civil society, and institutional actors also participated in the workshop in Durham in May 2014 at which preliminary recommendations and insights were discussed. Thus, stakeholder engagement was prioritized in the design and implementation of SECILE in order to maximize the likelihood of successful impact generation.
The second technique deployed was to ensure the productive of useful, readable and effective deliverables on the state of the art in WP2 and 3, to generate original insights through WP3, 4 and 5, an to engage stakeholders with those deliverables through the website, focus groups, interviews, workshop and final conference in order to build an an appropriate policy-making and operational constituency for our outputs and research. Given the high level of stakeholder engagement, reflected for example in the list of those who attended the final conference, we appear to have been successful in this respect.
SECILE placed a heavy emphasis on effective dissemination, using the website, twitter, conferences, and all other networking opportunities to raise awareness of the project and its outputs. As reflected in the dissemination report (D6.4) dissemination in the project has been of a high quality and the reach of the findings has been wide.
The key objectives of the SECILE dissemination strategy were to engage with and elicit feedback from stakeholders on the project’s deliverables; stimulate discussion among stakeholders of the project’s findings and recommendations; facilitate and enable close collaboration between different categories of stakeholders and relevant security programmes; strengthen the research and knowledge base of both researchers and stakeholders. The dissemination activities were viewed as a set of tasks to be integrated across all WPs. Leadership of these activities was divided between the consortium according to consortium partners areas of expertise, such that: the scientific dissemination element was coordinated by Durham; the civil society dissemination was coordinated by Statewatch; the legal practitioner (including) courts-oriented dissemination was coordinated by SCL; and dissemination targeted at security services was coordinated by CIES.
The target audience of the SECILE dissemination plan included:
• Academia (including journals, conferences, workshops and universities) in order to promote the output of the project, encourage their input and recommendations and facilitate future research collaboration opportunities.
• Civil Society Organisations/ NGOs to inform them of our work, encourage engagement and dissemination and identify opportunities for inclusion in SECILE in both established or prospective tasks.
• Government (National, Local, EU Commission and International) to understand the political landscape in which politicians and policymakers operate, to design strategies and priorities for SECILE and establish long-term network capacities.
• Institutions/ Agencies (such as Frontex, LEAs, Eurojust, Irish Naval Services, Banks and Judiciary) to engage industry in the identification of threats and appropriate responses as well as understand the environment in which they operate and the policy environment within which they must meet demands.
• Media (print media, social media, tv and radio) to educate the media about SECILE and leverage media outlets to promote the project to the public.
• Other bodies (research institutes) to create mutually cooperative network and resource sharing relationships.
Dissemination was achieved throughout a number of work packages:
• WP3 workshop in Riga attended by project partners and a number of external participants
• WP4 end user focus groups attended by stakeholder in the fields of border surveillance, counter terrorist financing and the European Arrest Warrant as well as civil society actors
• WP5 workshop in Durham attended by project partners, advisory board members, European policy makers and academics
• WP6 final conference in Dublin attended by end users, advisory group members and consortium partners as well as additional stakeholders – policymakers, other scientific experts and the media.
The main dissemination outputs from the project include an edited collection (D5.4) end user oriented report (D5.3) and best practice guides (D6.5) the SECILE website, mailing list and social media.
SECILE Website
The project website went live in May 2014. As lead of WP6 (Dissemination, Communication and Interface with Users) CIES team took a novel approach, rarely seen in other FP7 security research projects, to commission a local Irish director to create a short (2.25 minute) video of the overview of the counterterrorism themes the SECILE team was setting out to explore. This video was the primary piece of content on the holding page before the full launch of the project website, which took place on 25th September 2013. Website viewers during the holding page period were offered the option of adding their name to a mailing list that would inform when the full website went live; this measure and the creation of the video were strategies designed to capture and retain the attention of an audience in the critical early stages of the research.
The project website has served to perform a number of functions including acting as a platform for publication of all SECILE reports, external reports, articles and resources related to SECILE, holding a calendar of all SECILE events and external events of interest, housing the project twitter page and offering visitors to the websites contact information. CIES have maintained the content of the website, ensuring periodic output delivery and mitigating against the risk of a stagnant website interface by regularly publishing events, reports and posts.
Mailing list
An initial list of contacts was created based on CIES’s expertise and contacts in the opening weeks of the project. These contacts were created based on predetermined lists in line with the categories defined by the Description of Work and the stakeholders. Considerable effort was made by CIES in the creation and maintenance of these targeted communication lists throughout out the project. These included but were not limited to: consortium partners, MEPs, policy makers, legislators, industry users, Surveillance Society Networks, international university law departments, main stream and industry specific media. These mailing lists were used to communicate SECILE’s output, news, events and tasks. Throughout the lifetime of the project these were continuously researched and updated.
Social media
The SECILE twitter account, @EuSECILE, was set-up mid-way through month 3. The twitter account was also used to promote the findings of SECILE, and to relate them to ongoing issues in the broader field of counter-terrorism and security studies.
Promotional material
Throughout the project CIES developed a number of promotional items including the project logo, leaflets, bookmarks, videos and banners. These materials were distributed at conferences attended by the consortium.
SECILE Publications
All SECILE reports have been published on the project website. In addition, the draft End User report (D5.3) was distributed at the COE Conference on Terrorism and Organised Crime, Malaga City Hall in September 2013, to which Professor de Londras was invited to speak. At that conference every delegate received a copy of the report with their conference registration materials. Best practice guides (D5.1 and D5.2) and End User Report (D5.3) were also distributed to all those who attended the SECILE Final Conference at the Royal Irish Academy in October 2013.
Dissemination of the research results will continue with the preparation and publication of scientific outputs by researchers engaged with the project, through the dissemination of the End User Report and Best Practice Guide to law- and policy-makers, through the planned presentation of SECILE results to the LIBE Committee (proposal currently with the Secretariat), through the maintenance of the project website (supported by Durham Law School), and through the distribution of a briefing paper outlining key findings from the project and prepared and distributed by Durham Law School (https://www.dur.ac.uk/resources/law/research/TheImpactLegitimacyAndEffectivenessOfEUCounter-TerrorismFindingsandProposals.pdf). Furthermore, as events and consultations to which the SECILE research may be relevant might arise, Professor de Londras will adopt a responsive approach, engaging with such processes and through the media as appropriate.
List of Websites:
www.secile.eu