Our online editor caught up with barrister and author, Eoin O'Connor BL, whose new book, National Security Law in Ireland, hits shelves on January 31. We picked Eoin's brain on some of the most pressing contemporary issues affecting national security law and policy in Ireland. Pre-order your copy here.
Q. What did you find most challenging about writing this book?
A. When writing about any national security related issues, it can be very difficult to get access to information. Obviously, much of the information is protected by evidentiary privileges for very good reasons. However, the need to keep intelligence secret has perhaps restricted the debate that is needed on some of these issues. All too often discussion of national security related issues has been shut down because of the purported risk to ongoing operations or the risk to life of informers, and that discussion must be stifled in principle, including even at the level of generic policy debate. The experience in other common law countries shows that oversight and debate can take place within, for example, the context of surveillance, the use of Covert Human Intelligence Sources and the Witness Protection Programme, without placing those same resources at risk by the mere fact of discussing them.
Q. Do you believe that national security is an under-studied area of Irish law, especially given our turbulent past?
A. The topic of national security in Ireland touches on a number of different areas of law, including the Constitution, the European Convention on Human Rights and the European Union. It also arises in different contexts, from the criminal law to immigration. National security as a topic involves consideration of various different issues, including a state's right to expel those it believes pose a threat to its security, the right to a fair trial for those accused of terrorist related offences, the balancing of security versus liberty, and the right to disclosure versus the obligation to keep matters confidential.
Q. On that point, do you believe that a careful balance needs to be struck between safety and liberty?
A. It is clear that there is a strong link between safety and liberty - without safety it is very difficult to enjoy liberty. The risk is that concerns about the threats posed by terrorism could be used to justify increased restrictions on liberty. It seems that in the wake of a terrorist attack it is common for there to be a call for increased surveillance or strengthened legal powers for intelligence agencies. For example, in the United States, the Privacy and Civil Liberties Oversight Board examined the national security and legal justifications for the bulk collection of its citizens' telephone records by the National Security Agency. The Oversight Board concluded that it saw 'little evidence that the unique capabilities provided by the NSA's bulk collection of telephone records actually have yielded material counter-terrorism results that could not have been achieved without the NSA's Section 215 program.' The example from the USA shows how important it is that informed debate takes place before policy decisions are taken to ensure that the measures are effective.
Q. In your opinion, will Brexit affect national security law in Ireland?
A. At this point it is difficult to say. It depends on whether Brexit will go ahead and/or on what form Brexit may take. The Garda Commissioner has suggested that Brexit and complications over the Irish border could act as a 'rallying call' for terrorism. The Chief Constable of the PSNI has been given approval by the UK to launch recruitment to increase the strength of its force by 300 new officers and staff. Retired Irish Defence Forces Brigadier-General, Ger Aherne, has said that 'the State is woefully unprepared to secure the border with Northern Ireland if the United Kingdom leaves the European Union without a deal'. More broadly, the exit of the UK from the EU will mean that it is no longer part of the European Arrest Warrant system, the Schengen Information System and will also stop its data sharing, including counter-terrorist data within Europol, which will have clear implications for Ireland.
Q. And finally, would you support an EU army to deal with the international nature of national security threats which we now face?
A. At this point, it is more important to ensure that the men and women of the Defence Forces are properly paid and resourced. Ireland has the lowest spend on its military within the EU, at 0.3% of GDP. Within the EU context, there is perhaps scope for savings with regards to standardised equipment procurement across Member States. Ireland has joined the Permanent Structured Cooperation on Security and Defence, which is an EU body which aims to further enhance cooperation between Member States. In August 2015, then Minister for Defence, Simon Coveney, announced that the government would double the size of the Defence Forces special operations force, the Army Ranger Wing, as a key counter-terrorism measure. It is not clear if the size of the ARW has been doubled as was promised back in 2015. Reports in the media suggest that the strength of the ARW remains the same as it was back when Minister Coveney made his announcement.
Note: This article is not intended to be relied upon as legal advice.