Engagement with rights in the making of counterterrorism legislation—Perspectives from three case studies: An introduction

Recent years have seen an emerging consensus on the important role non-judicial actors can play in protecting rights, and the potential benefits of integrating the compliance with constitutional standards into the legislative process. However, the study of actual practices of pre-enactment rights scrutiny has highlighted the need for deeper analysis of the factors that ultimately determine the extent to which rights considerations are effectively taken into account in policy design. The three case studies in this symposium contribute to the growing empirical literature on non-judicial constitutional review. Each article follows a particular counterterrorism legislation process and analyzes the ways in which consideration of rights effected or failed to effect policy design. These nuanced and empirically grounded perspectives on what rights review in the policymaking process actually entails help point out mechanisms that positively affect the ability to create proportionate policy, while documenting barriers at both the individual and organizational levels that can prevent rights from being afforded their optimal weight in the process. This introduction presents the main comparative insights arising from the three case studies in the symposium. The first point relates to the identity of and dynamic between the actors who engage with rights in the process, particularly the interaction between political and bureaucratic actors and its effect on the nature of the rights discourse and its impact. The second point characterizes three types of stages in the policy process—stages of deliberation, evaluation, and justification—and demonstrates how the nature of engagement with rights differs at each stage in terms of substance, scope, and influence. The third and final point relates to the ramifications of the layered nature of policymaking for the possibility of truly engaging with considerations of rights.