This article argues that mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.

DOI: 10.1080/1369118X.2011.630403

Through a historical examination of the UK case over the past 40 years, this article argues that, although not drafted with such activities specifically in mind, the growth of legal initiatives protecting personal information have exerted a powerful and under-recognized impact on how social science is ‘ethically’ regulated. This impact has been both direct and indirect. At an indirect level, data protection law has encouraged the development of ‘self-regulation’ by learned societies, research institutions and funding bodies including, most importantly, the recent expansion of the remit of Research Ethics Committees within UK universities. Additionally, interpretations of the 1984 and, even more so, 1998 Data Protection Acts have resulted in the direct imposition by Universities as data controllers of key limitations on research projects. Thus, the infiltration into social science of governance models developed in medical research does not constitute the only important factor in explaining the increase, and shape, of regulation in this area. Legal changes have also been critical. In sum, data protection has helped fuel a radical shift away from a liberal regime based on a high valuation of individual academic autonomy to a much more constrained one where academics are often placed in a formally subordinated position vis-à-vis their institutions and subject to a labyrinth of restrictions and controls.

DOI: 10.1093/pa/gsr040

Australia remains the only Western democratic country to lack a national bill of rights. In April 2010, the Labor Government rejected the suggestion of the Brennan Committee—which it itself had set up in 2008—that Australia adopt a statutory bill of rights. This outcome resulted from the limitations of catalysing political trigger coupled with the potent barrier of Australia's fragmented institutional structure. Although the Brennan process was prompted by an ‘aversive’ reaction against the policy outlook of the Howard era, this was much weaker than that which prompted the bill of rights reform in the other ‘Westminster’ cases of New Zealand (1990) or the UK (1998). Additionally, the reform efforts faced the potential opposition of a powerful Senate and even possible separation of powers challenges under the Australian Constitution. These negative factors are consistent with Australia's failed initiatives of the 1970s and 1980s. Despite this, factors favouring the bill of rights genesis remain. Given appropriate circumstances, the possibility of Australia acquiring a bill of rights in the longer term should not be discounted.

Through a systematic analysis of the UK's Data Protection Act's first data protection principle, this article demonstrates that the EU data protection regime seriously threatens research into social (including political and historical) affairs. The rules for registering processing with the data protection authority, providing the data subject with information notification and the severe limitations on the processing of sensitive personal data are all in serious tension with certain types of important social research including that which is covert, deceptive, identifiable or critical. Additionally, the complexity of the law inevitably leads ‘risk-averse’ universities to further restrict research activity. This not only curtails academic freedom but also suppresses knowledge production in ways which damage society generally. The article concludes by contrasting the onerous regulation of ‘research’ with the significantly more liberal regime for ‘journalism literature and art’. It argues that data protection authorities and others should consider whether social research might benefit from this more liberal regime. Even if that proves unachievable, these issues should be addressed in the review of the law now underway.

Through a careful analysis of the UK's Data Protection Act 1998, this article demonstrates that the EU regime for personal data processing seriously threatens research into social (including political and historical) affairs. The core values of data protection - certainty, transparency, notice, informational self-determination, data minimization and secrecy - are in clear tension with the often fluid, norm-challenging, sometimes covert, individual and even identifiable nature of much social research. Three of its key provisions, the 'fair and lawful processing' requirement (principle one), the right of subject access (principle six) and the general ban on extra-EEA data export (principle eight), are in serious conflict with key research methodologies. Moreover, especially given the broad definition of 'personal data' under this regime, the labyrinthine nature of the law as a whole has led to universities implementing research governance policies and procedures that further restrict investigative activity. This curtails academic freedom leaving key forms of knowledge production systematically handicapped, thereby damaging society's long term interests. The article argues that consideration should be given to whether social research could benefit from the more liberal data protection arrangements for 'journalism literature and art'. In addition, the effects of this regime on academia must be fully addressed in the review of the law now underway.

DOI: 10.1111/j.1467-923X.2010.02091.x

This article systematically explores the political context behind Labour and the Conservatives' new commitment to a British Bill of Rights. This is linked to conflicting incentives to resist the current trajectory towards rights constitutionalism (‘Constitutional Freeze’), to further encourage further rights constitutionalism (‘Constitutional Fire’) and to engage in largely cosmetic change (‘Constitutional Smoke’). Ultimately, the latter has proved dominant for both parties. This demonstrates the difficulty of building political momentum behind significant revision of institutional responsibility for protecting human rights in stable, democratic settings. It specifically illustrates the strong barriers which both a hegemonic policy preserving and an ‘aversive’ constitutionalising dynamic must overcome to succee

Delegating Rights Protection explores bill-of-rights outcomes in four "Westminster" countries - Australia, Canada, New Zealand, and the United Kingdom - whose development exhibit an interesting combination of both commonality and difference. Comparative analysis of some thirty-six democracies demonstrates that the historic absence of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, their strong British constitutional heritage. Detailed chapters then explore recent and much more diversified developments. In all the countries, postmaterialist socio-economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (1960), New Zealand Bill of Rights Act (1990), and the Human Rights Act (UK) (1998) were prompted politically by a relatively weak and backward-looking 'aversive' reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self-interested and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).