Counter-extremism Contents

2The Legal Framework

Relevant offences

8.The Government already has access to significant powers where individuals are alleged to be involved in terrorism-related activities. This Report will not provide a comprehensive list of every offence, but will note the most relevant of them, to provide the context for our conclusions.

9.Section 3 of the Terrorism Act 2000, as amended, already allows the Home Secretary to proscribe an organisation if she believes it is concerned in terrorism, and it is proportionate to do so.5 This includes circumstances where a group prepares for terrorism, or promotes or encourages terrorism (including the unlawful glorification of terrorism).6

10.Other relevant offences include: incitement to commit acts of terrorism overseas (Terrorism Act 2000, section 59); inviting support for a proscribed organisation (Terrorism Act 2000, section 12); the encouragement of terrorism (Terrorism Act 2006, section 1); the dissemination of terrorist publications (Terrorism Act 2006, section 2)7; and the encouragement and dissemination via the internet (Terrorism Act 2006, section 3).

11.In addition, the Public Order Act 1986 contains provisions which criminalise, amongst other things, behaviour including: the use of threatening or abusive words or behaviour, or disorderly behaviour (or the display of any writing, sign or other visible representation which is threatening or abusive) where those activities are within the hearing or sight of a person likely to be caused harassment, alarm or distress (section 5).

12.These public order provisions have previously been used to prosecute an individual involved in burning poppies on Armistice Day and a man who displayed posters saying “Islam out of Britain” after 9/11.8 Sections 4 and 4A of the Public Order Act 1986 are also relevant.9 The Act was amended by the Racial and Religious Hatred Act 2006 which criminalised stirring up hatred against persons on religious grounds.

Applicable human rights standards

13.The main human rights standards that are relevant to the Committee’s work in this area are Articles 9, 10 and 11 of the European Convention on Human Rights (ECHR)—freedom of religion, expression and association respectively. Whilst these rights can be qualified to some extent, and thus can legitimately be subject to some restrictions, these have to be proportionate and would need to have a legitimate aim and be necessary in a democratic society to justify any interference. Taken together with these other Articles, Article 14 (the right not to be discriminated against in the enjoyment of Convention rights) may also be relevant.

14.In addition, public authorities subject to the Equality Act 2010 are required to abide by the Public Sector Equality Duty which (amongst other things) requires authorities to have regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act and foster good relations between persons who share a relevant protected characteristic and persons who do not share it.10

15.The press unit of the European Court of Human Rights has recently published a useful guide to the Court’s case law on hate speech.11 It highlights the cases of Handyside v United Kingdom12 and Erkaban v Turkey which set out two distinct approaches depending on the nature of the speech in question. In the case of Handyside, the Court observed that:

Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.

16.But in the case of Erkaban that Court took a slightly different approach, stating that:

[T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance […], provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.

17.When dealing with cases concerning incitement to hatred and freedom of expression, the European Court of Human Rights uses two approaches which are provided for by the ECHR:

Additional legal considerations in the education sphere

18.Finally, it is worth noting two additional legal provisions which apply in the educational sphere. Section 43 of the Education (No. 2) Act 1986 contains a duty to ensure freedom of speech in universities and colleges.

19.Furthermore, Section 202 of the Education Reform Act 1988 also contains provisions on academic freedom and 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, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.”

5 Once a group is proscribed, proscription makes it a criminal offence to belong, or profess to belong, to a proscribed organisation in the UK or overseas; invite support for a proscribed organisation; arrange, manage or assist in arranging or managing a meeting in the knowledge that the meeting is to support or further the activities of a proscribed organisation, or is to be addressed by a person who belongs or professes to belong to a proscribed organisation; wear clothing or carry or display articles in public in such a way or in such circumstances as arouse reasonable suspicion that an individual is a member or supporter of the proscribed organisation. Sixty seven international terrorist organisations are proscribed under the Terrorism Act 2000 and 14 organisations in Northern Ireland were proscribed under previous counter-terrorism legislation. See: Home Office, Proscribed Terrorist Organisations, 18 March 2016

6 Under section 5A of the 2000 Act, cases in which an organisation promotes or encourages terrorism include any case in which activities of the organisation include (a) the unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism; or (b) are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification. Anjem Choudary, who David Anderson QC has noted was sometimes cited as an example of the sort of person who the new law would be needed to catch, was charged in August 2015 with encouraging support for ISIL/Daesh contrary to section 12 of the 2000 Act. A trial was expected to commence in June 2016. See: “Date set for radical preacher Anjem Choudary’s trial”, BBC Online News, 24 March 2016

7 For the purposes of this section, a publication is a ‘terrorist publication’ if “it is likely to be understood, by some or all of the persons to whom it is or may become available […] as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism”.

8 See for example, “Man guilty of burning poppies at Armistice Day protest”, BBC Online News, 7 March 2011, and Norwood v United Kingdom, European Court of Human Rights 16 November 2004 (decision on the admissibility). The European Court of Human Rights declared an application by the defendant following his conviction inadmissible. It found that such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, was incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination. The Court therefore held that the applicant’s display of the poster in his window had constituted an act within the meaning of Article 17 (prohibition of abuse of rights) of the Convention, and that the applicant could thus not claim the protection of Article 10 (freedom of expression) of the Convention. (For more on Art 17, see below).

9 They provide for offences relating to the “Fear or provocation of violence”, and “Intentional harassment, alarm or distress” respectively.

10 Equality Act 2010, Section 149

11 European Court of Human Rights, Hate Speech, November 2015

12 [1990] ECHR 32 (although judgment was given in the case in December 1976)

13 This provision is aimed at preventing persons from inferring from the Convention any right to engage in activities or perform acts aimed at the destruction of any of the rights and freedoms set forth in the Convention.

14 Restrictions deemed necessary in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.

© Parliamentary copyright 2015

21 July 2016