The conduct of covert or otherwise secretive national security activities by government entails an apparent, and often real, disconnection between those activities and the operation of generally applicable rules of public law: such activities are, necessarily, not public and, it has been suggested, cannot or should not be subject to conventional public law rules. Through such practices as judicial deference or non-disclosure, broad or opaque legislation and other constraints on generally applicable public law institutions, the governing law has tended to be interpreted, applied and developed in private, without the contestation or the wider engagement provided through courts, legislatures and other public law institutions.
Looking across jurisdictions, including but not limited to the five “Five Eyes” common law legal systems, the inherent risk is that the law governing such activities, interpreted or applied in private and in light of perceived national security imperatives, will diverge from general public law, leading to excess or other error. Such errors may go unacknowledged or may, from time to time, be subject to intermittent and sometimes sudden or dramatic correction by public law institutions, whether in the form of judicial intervention, legislative reform or other measures.
In this seminar, Ben Keith will propose that the relationship is evolving away from such disconnection and intermittent correction towards more stable and more effective engagement. He will address current developments that drive greater engagement of public law to national security activities and argue that while changes do not occur only in one direction, the substantive prospect is that the content of governing law is becoming more contested with the potential for national security actions and decisions to become more reliably connected to general public law principles and with the rights and interests that those principles serve to protect.