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EU: National security and fundamental rights: new paper examines problems with definitions and the rule of law

24 April 2019

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National security and fundamental rights: new paper examines problems with definitions and the rule of law
24.04.19
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The Council of Bars & Law Societies of Europe has issued a paper examining the protection of fundamental rights in the context of national security, focusing in particular on the way "national security" is legally defined.

As the introduction to the paper notes:

"A universally accepted definition of national security does not exist. Both at international and national level the term is not adequately specified. As a result, this makes it difficult for courts effectively to review infringements of fundamental rights which are based on the claimed justification of national security..."

The paper makes four recommendations:

• that each state should introduce "a clear legal definition of the nature of national security and the prerequisites under which national security may be used as a basis upon which to justify the impairment of civil rights";
• when national security is used as a basis for state action adversely impinges upon civil rights, "the persons whose civil rights are adversely affected require to have an appropriate judicial or other equivalent remedy";
• "legal remedies must be made available to individuals and legal entities who have been subjected to unlawful measures"; and
• information protected by professional secrecy or legal professional privilege should never be subject to interception measures.

See the paper: CCBE recommendations: on the protection of fundamental rights in the context of 'national security'(pdf) and: in French (link to pdf)

CCBE summary of the paper

The core issue addressed by the CCBE in its recommendations relates to the idea of ‘national security’ and its indeterminate meaning.

At both national and international level, there is no universally accepted definition of national security. As a result, even where domestic law provides a certain degree of definitional clarity, from one country to another this leads to radically different interpretation by the courts as they assess what is, or is not, considered necessary and proportionate when invoking national security as a justification for measures which limit citizens’ fundamental rights.

This issue is of specific relevance to the protection of the confidentiality of lawyer-client communication within the context of surveillance activities. For lawyers to effectively defend their clients' rights, there must be confidence that communications between clients and their lawyers are kept confidential. If ‘national security’ remains entirely undefined in law, then there is no clear basis upon which a court might determine whether the purpose for which an intrusive surveillance power might have been exercised is, or is not, in pursuit of national security.

The protection of the State and its citizens is the primary function of any government. However, as the CCBE argues, this should not be used as a justification for arbitrary or disproportionate infringements of fundamental rights, justified by the call: “exceptional times demand exceptional measures”. The CCBE asserts that democracies are States governed by the rule of law. What the rule of law requires as a response to “exceptional times” are not exceptional measures, but measures which are balanced, proportionate and considered.

In view of the above, the CCBE makes several recommendations on how and whether national security, as a justification for surveillance measures and other intrusions upon the fundamental rights of citizens, can be better embedded in national democratic systems. The four recommendations, namely; 1) the need for legislative control 2) judicial and independent oversight 3) legal remedies and sanctions and 4) professional secrecy & legal professional privilege, are expanded upon in the CCBE’s paper.

The CCBE stresses that to guarantee a fair balance between considerations of national security and the fundamental rights of the citizen, robust procedures must be established. Through these, democratic societies can respond to the external and internal threats confronting them, whilst upholding the democratic values on which they are founded.

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