The Government has a duty to protect the public and this is a responsibility that any and every Government take with the utmost seriousness. That is self-evidently uncontroversial. But when it comes to how to combat terrorism, specifically the task of countering ISIL/Daesh-inspired terrorism, there is no consensus; particularly since the Government is also under a duty to uphold the democratic and human rights which terrorists so often aim to extinguish. These include the right to freedom of speech, association and religion.
The Government has indicated its intention to combat political and religious extremism that it believes leads to harmful activity or behaviour - going beyond its Prevent programme that was initially aimed at preventing violent extremism. It originally announced a Counter-Extremism Bill in May 2015. It published a separate Counter-Extremism Strategy in October 2015. While no Bill emerged in the 2015-16 Parliamentary session, a Counter-Extremism and Safeguarding Bill was again included in the Queen’s Speech in May 2016. Despite having featured in two Queen’s Speeches, and despite publication of a formal strategy, the Government is still not able to say what the timetable or contents of its counter-extremism legislation will be. Progress on this Bill therefore appears to have stalled, or even gone backwards, and the Government has retreated from providing any level of detail.
The Government’s proposals rest on the assumption that there is an escalator that starts with religious conservatism and ends with support for violent jihadism, and that violence is therefore best tackled by curtailing or placing restrictions on religious conservatism. However, it is by no means proven or agreed that religious conservatism, in itself, correlates with support for violent jihadism. The aim should be to tackle extremism that leads to violence, not to suppress views with which the Government disagrees.
The Government initially proposed a series of three civil orders: Banning Orders (a power for the Home Secretary to ban extremist groups), Extremism Disruption Orders (a power for law enforcement to stop individuals engaging in extremist behaviour), and Closure Orders (a power for law enforcement and local authorities to close down premises used to support extremism). But now they are only able to talk in general terms of “a new civil order regime” subject to some form of consultation that will fall short of a draft bill. It is not clear whether their original proposal of three separate types of order is still on the table, or whether this has been superseded.
If extremism is to be combated through legal mechanisms, such as civil orders, clarity as to the definition of extremism will be essential. Currently, the Government defines extremism as “the vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs.” Alternative (and differently focused) advice from the Department for Education to independent schools and academies uses the phrase “mutual respect and tolerance of those with different faiths and beliefs” [our italics]. The difference in wording suggests a degree of confusion and, in either event, these definitions are couched in such general terms that they would be likely to prove unworkable as a legislative definition. In particular, the extent to which lack of “mutual respect and tolerance of different faiths and beliefs” could or should be deemed unlawful is likely to prove deeply contentious. Many people would argue that it is right to be intolerant of certain aspects of religious belief, for instance where religious belief is used to justify homophobia or the subservience of women. The question then arises, what is extremist: the homophobic and misogynist beliefs, or others’ intolerance of those beliefs? If someone denounces the judiciary for being Islamophobic, is that undermining the rule of law or is it the exercise of free speech? It is difficult to arrive at a more focused definition of extremism and it does not appear that the Government so far has been successful in arriving at one. It is far from clear that there is an accepted definition of what constitutes extremism, let alone what legal powers there should be, if any, to combat it.
Any new legislation which would impact on those expressing conservative religious views faces a twin challenge: either it will focus on Muslims, in which case it will be seen to discriminate against Muslims (if the same beliefs in evangelical Christianity or Orthodox Judaism would not be seen as prompting the need for any action), or the legislation would operate indiscriminately and could be used against any groups who espouse conservative religious views. If the Government were to apply counter-extremism measures to specifically Islamic religious conservatism in the cause of tackling violence, is that acceptable discrimination, or will it serve merely to give rise to justified grievance? Any undermining of the relationship between the authorities and Muslim communities would make the fight against terrorism even harder. The Government has not so far supplied any explanation of how they will go about this and how the proposals will avoid either unjustifiable discrimination or unjustifiable interference with freedom of religion or expression.
The legal issues that we have examined are so problematic that we consider that it would serve no purpose to have a further general consultation. If the Government wishes to take forward these proposals it must bring forward a draft Bill. It is plain that a consultation which does not provide a clear legal definition of what is meant by extremism would be futile.
If the Government’s proposals are to proceed, it is important for there to be extensive consultation with enough time provided so that a consensus can be developed. Otherwise legislation could undermine relations between the authorities and Muslim communities—the most precious asset in the fight against ISIL/Daesh inspired terrorism—and make it harder for the authorities and law enforcement agencies to work with community organisations. There is a real danger that trust in the Government by civic society could be damaged, as well as between the authorities and other faith communities.
The proposed legislation may well leave people and organisations with conflicting obligations. For example, the potentially conflicting duties on universities to promote free speech, whilst preventing the expression of extremist views, is likely to cause uncertainty for university administrators. How is a university to know whether conduct is unlawful extremism which amounts to “vocal or active opposition to our fundamental values” or whether it falls within section 202 of the Education Reform Act 1988 which provides that University Commissioners should have regard to the need to ensure that academic staff have “freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions”?
We are concerned that the Government should not use ill-defined civil orders (breach of which is a criminal offence) as a means to avoid having to make a criminal case to the requisite criminal standard of proof. The Government have sought to pray in aid the precedent of other civil orders (such as those against domestic violence or Female Genital Mutilation (FGM)). But in this instance, the relevant behaviour which is prohibited—‘extremism’—is not a clear-cut criminal offence in its own right like domestic violence or FGM.
The Government’s counter-extremism strategy refers to right-wing extremism. Regrettable incidents involving the expression of racism and xenophobia have escalated since the EU referendum on 23 June and have damaged community relations. If the Government brings forward a Hate Crime Action Plan, and if that plan requires legislative action, any such action should be included in the proposed Counter-Extremism and Safeguarding Bill.
Any new Bill on countering extremism should be evidence-based. The experience of the Prevent Strategy should inform any new legislation. There should be an independent review of the Prevent Strategy to provide evidence as to what works and what simply drives wedges between the authorities and communities. The conclusions of the review should be fed through into the preparations for that legislation.
The Government now proposes to put its counter-extremism proposals in the context of ‘safeguarding’. Everyone can understand the definition of safeguarding when it comes to child neglect, physical abuse and sexual abuse. In relation to extremism, however, there is no shared consensus or definition as to what children would be safeguarded from. The difficulty around these issues should lead the Government to tread with great care, for fear of making the situation worse, not better. The Government should listen with particular attention to those who would be expected to apply for and enforce these orders, such as the police, educational establishments and councils, and Muslim or other faith communities.
While there may be some argument for safeguarding measures aimed at physical and sexual abuse to be introduced in out-of-school settings, we believe that these should not be aimed specifically at religious activities. Even if the Government is able to clarify its definition of safeguarding, any new measures should be proportionate, focused, and most importantly should only apply where identifiable concerns have been raised about a particular institution. We are not persuaded there should be a regime of routine inspections of out-of-school settings. Any intervention should be complaint-based. It is far from clear that Ofsted would be best placed to do this work.
The Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework. The current counter-terrorism, public order and equality legislation, including the Public Order Act 1986 and the Terrorism Act 2000, form an extensive legal framework for dealing with people who promote violence. So far, the Government has not been able to demonstrate that a significant gap in this framework exists.
21 July 2016