Core issue
The CCBE says the core issue is that the idea of ‘national security’ has an indeterminate meaning. Its document examines the concept of ‘national security’ across various states.
“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.,” the document says.
Confidentiality
This issue is of specific relevance in protecting 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 an intrusive surveillance power can be exercised in pursuit of national security.
The protection of the State and its citizens is the primary function of any government.
Infringements
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”.
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.
Surveillance
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.
These are:
- the need for legislative control,
- judicial and independent oversight,
- legal remedies and sanctions,
- professional secrecy and legal professional privilege.
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.