4The proposed Counter-Extremism and Safeguarding Bill
Background
76.The Government first announced a Counter-Extremism Bill in the Queen’s Speech of 2015. On 27 May 2015, the Government published a briefing note on the measures contained in the Queen’s Speech. The note indicated that as part of a comprehensive new strategy to defeat all forms of extremism, the Government would legislate to strengthen powers in a number of areas, including:
- Banning Orders: a new power for the Home Secretary to ban extremist groups;
- Extremism Disruption Orders: a new power for law enforcement to stop individuals engaging in extremist behaviour;
- Closure Orders: a new power for law enforcement and local authorities to close down premises used to support extremism.65
77.The Government did not publish any consultation (or Green or White Paper) on either the definition of the extremist activity that it proposed to suppress, or the details of the proposed new orders.
78.In his Review of the Terrorism Acts in 2014,66 David Anderson QC posed a series of detailed questions on the proposed legislation. Amongst other things, he asked for “the reasons for believing that existing means of control (including the various “precursor” offences under the Terrorism Act, as well as the hate speech offences) are insufficient for the purposes that it is sought to achieve.” He also queried the standard of proof that would be required to impose a civil order and the police resources that would be required to enforce any new orders. At the same time, he observed that:
Of particular importance is the potential of the new law to affect those who are not its targets. No doubt it will be said, with perfect sincerity, that it is intended to make only a handful of individuals and organisations subject to the new orders, and that those who peddle hatred and prejudice in order to sow division deserve nobody’s sympathy. But to speak only of the intended targets does not address the dangers that are inherent in all over-broad laws and discretions: dangers which are present even in the relatively confined area of anti-terrorism law, and which become still more marked as the range of suspect behaviour is extended. If it becomes a function of the state to identify which individuals are engaged in, or exposed to, a broad range of “extremist activity”, it will become legitimate for the state to scrutinise (and the citizen to inform upon) the exercise of core democratic freedoms by large numbers of law-abiding people. The benefits claimed for the new law—assuming that they can be clearly identified—will have to be weighed with the utmost care against the potential consequences, in terms of both inhibiting those freedoms and alienating those people.67
79.We wrote to the Home Secretary on 25 October 2015, posing a series of questions about the proposed legislation.68 We took the view that the following issues were of particular concern:
- How are ‘non-violent extremism’ and ‘British values’ to be defined by the Bill?
- Will individuals come within the definition of ‘extremism’ (or be considered to be against British values) as a result of their beliefs, or as a result of materials in their possession; or will they have to be involved in a specifically defined activity (e.g. publishing material or making speeches)?
- Does the Bill ensure equality before the law, or is there a risk of a disproportionate and/or undue focus on Muslim communities?
- Will decision-making on legal rights and liability under these measures be based on well-defined law, or be the subject of wide and arguably arbitrary discretion?
- Will the Bill lead to a diminution in the law’s protection of fundamental rights and freedoms such as freedom of speech, freedom of religion and freedom to protest?
- In particular, will the legal uncertainty inherent in the foundational concepts of the counter-extremism strategy have a “chilling effect” on the exercise of those freedoms?
- To what extent are the restrictions imposed by the Bill justified by the benefit of greater security?
- Will the restrictions in the Bill create legitimate grievances which increase support for extremist ideologies?
- How will the success of the new legislation be measured?
80.Other than a holding response, which we received on 9 December, neither we (nor David Anderson QC) have received a substantive or satisfactory response to our enquiries. No Bill emerged in the 2015–16 session.
81.On 18 May a re-titled Counter-Extremism and Safeguarding Bill was included in the Queen’s Speech. The detailed list of civil orders was replaced with the promise of a “new civil order regime to restrict extremist activity, following consultation.” The Government also indicated that it would “consider the need for further legislative measures following Louise Casey’s review into integration in those communities most separated from the mainstream.”69 While we welcome the promise of ‘consultation’, the continuing absence of any detail or definitions led us to invite the Minister who was then responsible for counter-extremism policy, Karen Bradley MP, to attend the Committee on 29 June 2016.
A problem of definition?
82.Other than the Minister, all of the witnesses who gave oral evidence to the Committee expressed, at the very least, disquiet about proposals for new legislation in this area. Many witnesses expressed outright opposition. The principal focus of the concerns was on the fact that it would be difficult to define ‘non-violent extremism’ and British values and that as a result of this any legislation could be unworkable and/or counterproductive.
83.The Counter-Extremism Strategy states that:
[E]xtremism is 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. We also regard calls for the death of members of our armed forces as extremist.70
84.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].”71
85.There is no legal definition of these terms. The Minister was clear that “[o]ne should not take the strategy definition and assume that that is the definition that would be in the legislation”.72 But the nearest the Minister came to defining the term in oral evidence was to say that the target was the promotion of ideology which leads to harmful activity. She said: “What we are looking at is the preaching of ideology that leads to harmful behaviour.”73
86.A dictionary definition does not take one much further. The Oxford English Dictionary defines an extremist as “a person who holds extreme political or religious views” and in that context defines extreme as “not moderate”.
87.This is particularly problematic because the Government’s definition does not involve any legal certainty. Professor Clive Walker has argued that:
[T]he attempts to date to define ‘extremism’ with legal precision have so far failed, going well beyond existing misgivings about the indistinction of ‘terrorism’. This progression from suppressing violent extremism to suppressing political extremism increases the dangers of repressive state action based on an unproven causal connection.74
88.Sara Khan told us that she had interviewed lots of Muslims about what they defined as “extremism”. She said:
I do not think I have met two Muslims who hold the same definition. Again, that just shows how problematic the whole definition and understanding of extremism is. 75
89.She went on to say that the extremists themselves like to “promote this view that they are being oppressed by British society as a whole” and suggested that in one sense new legislation “will fuel their cause.”76
90.The definitional concerns were also shared by Professor Rivers, who stated:
One of the problems that we have with the term “extremism” is that unlike terrorism it is not at all understood. […] If you ask anyone what extremism is, they come up with a whole range of suggestions. That is a problem for the rule of law. If people do not have an instinctive understanding of what we are getting at in our law, it is very difficult to get the law to work. People know instinctively what terrorism is and what it looks like, but that is not at all the case for extremism.77
91.Sir Peter Fahy was worried that the police would be pressurised into acting against those who expressed unpopular opinions. He said:
The danger comes when you are talking about how you are going to define this legally without contravening human rights, and without leading to individual police officers being put into a difficult position in trying to define what is or is not extreme and potentially getting caught in the middle. I saw one version of draft legislation that tried to define extremism around the protected characteristics that are often in diversity legislation, which I thought was problematic. 78
92.He went on to say that:
What was also problematic was extending the definition of “personal safety” to include alarm, harassment or distress, because again that is a very wide term for covering people being upset by particular types of activity. For me, it is about that distinction. When you are trying to put these things into law, the danger is that you are drawing the police in particular into the policing of thought, which is a very dangerous area for the police in this country to be drawn into.79
93. Following the Minister’s oral evidence, the News Media Association (a trade body representing national, regional and local news media organisations in the UK) wrote to the Committee to argue that it was “essential that any consultation on a Bill contains the intended definition of extremism and granular detail about the content, scope and operation of any new criminal or civil powers. If not, stakeholders responding to the consultation simply will not know what they are being asked to agree to.” The News Media Association said “[i]f ever there was legislation that merited the enhanced scrutiny afforded to a draft bill this is it.”80
94.Attempting to define ‘British values’ may prove equally challenging. If the values are those on which all reasonable people could agree, it is not clear why they would be particularly ‘British’ (as opposed to universal) values. Efforts to root ‘British values’ in concepts like democracy may initially sound appealing, but may also prove problematic. The nature, and even the notion, of democracy may itself be subject to legitimate political and philosophical debate by students and others. As Professor Louise Richardson told us “if our university were to refer everyone, we would have to burn all our books by Plato and refer half our philosophy department who question these matters.”81
95.The alternative to having a precise legal definition of these terms is to allow the authorities a wide discretion to prohibit loosely defined speech which they find unacceptable. The risks inherent in such an approach are obvious.
How necessary are new laws on extremism?
96.Throughout the inquiry, given the extensive legislation in place to both combat terrorism and maintain public order, taken together with equality laws (described in detail at Chapter 2), it was never entirely clear to us what problem the new legislation was designed to combat. The promotion of extremist views is already the subject of a comprehensive list of criminal offences.
97. In a statement on hate crime on 29 June 2016, the Minister, Karen Bradley MP, said that: “in this country, we have some of the strongest legislation in the world to protect communities from hostility, violence, and bigotry. This includes specific offences for racially and religiously aggravated activity and offences of stirring up hatred on the grounds of race, religion, and sexual orientation.”82
98.The only example provided by the Minister of a potential loophole or gap in the law was the circumstances where someone sought to actively promote harmful behaviour. She gave as an example the issue of female genital mutilation (FGM), saying:
I use FGM as an example because it is quite tangible and we can understand it. We are not talking about the person committing the FGM—that is already a criminal activity; we are talking about somebody who might promote FGM but is not committing a criminal activity themselves. The counter-extremism strategy has been seen through the prism of Islamic extremism leading to terrorism, but I want to be clear that it is much wider than that. It is about the promotion of ideology that leads to criminal behaviour, which might be hate crime, violence against women or girls or terrorist activity—the crime itself. That is the difference between the strategy and the crimes it may lead to.83
99.It is far from clear that the explicit promotion of FGM would not already be caught by the current criminal law—either as the incitement of criminal behaviour or as a public order offence. And in any event such an offence does not cause the definitional difficulties that can occur when seeking to determine what amounts to extremism. Moreover, it was clear that the Minister wished to go further than simply banning incitement, as she acknowledged that:
It is already criminal to incite. What we are looking at is a civil order that would allow an intervention on a civil basis, prior to reaching that criminal level of activity. That is the important distinction.84
Combating extremism by way of civil orders
100.By contrast to the incitement of clear-cut criminal offences, it would be deeply concerning to allow any Government the power to effectively ban speech which merely has the potential to lead to harmful activity, by way of a civil order. Such orders could be used in a profoundly illiberal way. The obvious concern is that such orders could be used as a means to avoid having to make a criminal case to the requisite standard of proof. In evidence, Professor Rivers argued that:
There again, there are quite considerable human rights concerns about using civil standards of proof in contexts that are quasi-criminal. You might have quite a serious impact on a person’s life by subjecting them to a disruption order or a banning order against civil standards, which is very similar to a criminal conviction. All that would need very careful investigation and thought to ensure that that was appropriate, so a draft Bill would be helpful, because some of these issues are incredibly complex and need very careful thought.85
101.This is particularly relevant in circumstances where the relevant behaviour which could be prohibited is not a clear-cut criminal offence in its own right. As Professor Clive Walker observed to us in written evidence:
It is a sign of a liberal society that it must tolerate minority views, some of which may be patently mistaken and even offensive, shocking or disturbing. The touchstone for state repression should be a palpable link to harm (which, in the context of terrorism, means politically motivated violence), rather than arguments based on the strength of distaste engendered by the speech or even the proficiency or authority of the speaker.86
102.In terms of the proposed civil orders to be contained in the Bill, initially in 2015, the Government proposed Banning Orders, Extremism Disruption Orders and Closure Orders. From the briefing provided after the 2016 Queen’s Speech and the oral evidence from the Minister, it appeared that the Government may have rowed back from the orders it had initially proposed.
103.Unfortunately, the Minister was unwilling to provide any detail or specificity as to the nature of the orders, the timetable for delivery, the definitions that would be used, the criminal penalties that might be imposed for breach of a civil order or the standard of proof that would be required for the imposition of a civil order. Yet it is plain that any such measures are likely to prove controversial and will potentially interfere with a number of human rights including freedom of religion, expression and association. Taken with these other rights, they may also be seen as discriminatory (contrary to Article 14 of the ECHR).
104.Other issues that were raised before us included fears that any new legislation would either focus predominantly on Muslims (thus undermining community relations)87 or have unintended consequences—for example placing restrictions on other religious groups (e.g. evangelical Christians or Orthodox Jews) or others who had no intention of inciting violence, which, it was argued, could take us into the dangerous area of “thought-policing.”88
105.It appears that the Government has retreated from its original proposals for Banning Orders, Closure Orders and Extremism Disruption Orders. It is now making reference to what is described as a new “civil order regime”. The Government should not use 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. This is particularly important in circumstances where the relevant behaviour which is prohibited is not a clear-cut criminal offence in its own right.
106.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 Government has not been able to demonstrate that such a gap exists. We therefore take the view that the Government has not demonstrated a need for new legislation. The current counter-terrorism, public order and equality legislation form a comprehensive framework which deals appropriately with those who promote violence. There is a danger that any new legislation may prove counter-productive.
107.The Government’s approach, set out in its Counter-Extremism Strategy, appears to be based on the assumption that there is an escalator that starts with religious conservatism and ends with support for jihadism; and that combating religious conservatism is therefore the starting point in the quest to tackle violence. However, it is by no means proven or agreed that conservative religious views are, in and of themselves, an indicator of, or even correlated with, support for jihadism.
108.The Government gave us no impression of having a coherent or sufficiently precise definition of either ‘non-violent extremism’ or ‘British values’. There needs to be certainty in the law so that those who are asked to comply with and enforce the law know what behaviour is and is not lawful. We are concerned that any legislation is likely either: (a) to focus on Muslim communities in a discriminatory fashion (which could actually increase suspicion and even opposition to the Prevent agenda); or (b) could be used indiscriminately against groups who espouse conservative religious views (including evangelical Christians, Orthodox Jews and others), who do not encourage any form of violence.
109.The legal problems that we have considered are so fundamental that it will serve no purpose to have a further general consultation. If the Government wishes to take forward these proposals a draft Bill is required. A consultation which does not provide a clear legal definition of what is meant by extremism would be futile. Moreover, the different implications for different communities make this a particularly sensitive issue which requires a longer consultation than the standard 12 week period.
65 Prime Minister’s Office, The Queen’s Speech, May 2015
66 Independent Reviewer of Terrorism Legislation, Review of the Terrorism Acts in 2014, September 2015
67 Independent Reviewer of Terrorism Legislation, Review of the Terrorism Acts in 2014, September 2015, para 9.31
68 Letter from Rt Hon Harriet Harman MP, Chair of the Joint Committee on Human Rights, to Rt Hon Theresa May MP, Secretary of State for the Home Department, regarding the proposed new legislation, 25 November 2015
69 In answer to a Parliamentary Question in February 2016, asking for the terms of reference of this review, the Government responded: “The Prime Minister commissioned Louise Casey CB to carry out a review of how to boost opportunity and integration in isolated and vulnerable communities in July 2015. She is considering issues including: how we can ensure people learn English; how we can improve academic and employment outcomes, especially for women; and how state agencies can work more effectively with these communities to promote integration and community cohesion” PQ HL5838 [Community Relations], 3 February 2016. See also: The Queen’s Speech 2016
70 The same definition is also used in the Prevent Duty guidance.
71 Department for Education, Improving the spiritual, moral, social and cultural (SMSC) development of pupils: supplementary information - Departmental advice for independent schools, academies and free schools, November 2014, para 2
77 Oral evidence taken on 16 March 2016, HC (2015-16) 647, Q24 [Professor Julian Rivers, Professor of Jurisprudence, Bristol University]
78 Oral evidence taken on 16 March 2016, HC (2015-16) 647, Q24 [Sir Peter Fahy QPM, Former Chief Constable of Greater Manchester Police]
79 Oral evidence taken on 16 March 2016, HC (2015–16) 647, Q24 [Sir Peter Fahy QPM, Former Chief Constable of Greater Manchester Police]
81 Oral evidence taken on 4 May 2016, HC (2015–16) 647, Q34 [Professor Louise Richardson, Vice Chancellor of the University of Oxford]
82 HC Deb, 29 June 2016 [Hate Crime]
85 Oral evidence taken on 16 March 2016, HC (2015–16) 647, Q24 [Professor Julian Rivers, Professor of Jurisprudence, Bristol University]
© Parliamentary copyright 2015
21 July 2016