Sajid Javid’s reported objections to the Government’s pre-election proposals on countering extremist ideas uncover just how controversial the new laws will be. He had objected, it seems, to a mooted expansion of Ofcom’s powers to take pre-emptive action to prevent the broadcast of programmes with ‘extremist content’ before they are transmitted.
That specific proposal may no longer be part of the proposed laws, but Ofcom is likely to be given powers to move against broadcasters after transmission. And there will be plenty else to discuss when the legislation is likely announced in the Queen’s Speech next week.
The main points have already been revealed when last week the Prime Minister and the Home Secretary announced that new laws will be introduced ‘to make it much harder for people to promote dangerous extremist views in our communities.’ As always in counter-terrorism laws, the relationship between freedom and security will be brought into sharp focus when the proposals are debated. In this piece we set down some of the questions which we think warrant attention.
By a timely coincidence, the day after the government’s announcement, a workshop was convened to examine precisely the issues that these laws address. The workshop, titled ‘Thoughtcrimes?’, brought together around 20 legal practitioners and academics to look at how the latest law and security research might inform practice, to test those academic ideas and practitioner experience, and to consider the issues that arise in the proposals forecast by the government.
We do not speak for any or all in that group. However, the fortuitous opportunity to gather expert insights into immediate concerns is self-evidently valuable.
The government tells us that new legislation is expected to include:
- Banning Orders for extremist organisations who seek to undermine democracy or use hate speech in public places
- new Extremism Disruption Orders to restrict people who seek to radicalise young people
- powers to close premises where extremists seek to influence others
- strengthening the powers of the Charity Commission to root out charities who misappropriate funds towards extremism and terrorism
- further immigration restrictions on extremists
- a strengthened role for Ofcom to take action against channels which broadcast extremist content
These follow on closely from the findings of the Prime Minister’s Extremism Taskforce reported in December 2013, and much of the above has already been mapped out. It seems likely a Bill will appear before the summer. The discussions at the ‘Thoughtcrimes?’ workshop raised some fundamental questions that will need to be addressed in the Bill’s drafting.
What is ‘extremism’?
The Prevent strategy defines extremism as ‘vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.’ It includes ‘calls for the death of members of our armed forces, whether in this country or overseas.’
‘Non-violent extremism’ is defined as extremism (in those same terms) ‘which is not accompanied by violence.’
Some questions about laws
First, central to the debate around the new legislation will be whether it is justified to curtail the speech and activities of so-called ‘non-violent extremists’ as a counter-terrorism measure. Importantly, it appears that the proposed measures will limit speech and actions which are not at present illegal and which, even after the enactment of the proposed legislation, would still not be punishable by the criminal law nor give rise to any civil liability.
Secondly, Banning Orders and Extremism Disruption Orders will, it seems, use civil measures and a civil standard of proof and so do not criminalise speech. However, the breach of an order would be a criminal offence and, as such, continues the now-familiar blurring of civil and criminal lines. The proposals will move substantially into areas of speech that have traditionally been protected as core commitments of liberalism.
There are contradictions in the removal of such protections, and in the very rationale behind the proposals. The Prime Minister’s announcement says on the one hand that ‘we have been a passively tolerant society for too long’ and that the new government ‘will conclusively turn the page on this failed approach.’ At the same time, the Prime Minister says that the change ‘means actively promoting certain values [including] freedom of speech.’
That contradiction cannot be dismissed by simply saying that free speech is not an absolute. It has never been absolute and few claim there should be no limits. However, as the Prime Minister’s words indicate, these laws will seek to tread on ground where liberal democracies have – for good reasons – long allowed speech to prevail.
We are likely to see a revisiting of concerns raised in debates around the Counter-Terrorism Act 2015, and especially those raised by the Joint Committee on Human Rights (JCHR) in relation to academic freedom and free speech, but this time the application is much wider.
Thirdly, there will be rule of law challenges. Not least among these will be concerns about whether there is sufficient certainty and clarity in the ways that ‘British values’ and ‘extremism’ are defined. As the law encroaches further into the freedom of expression and belief, the question is not only what is it that we cannot do, but one might also ask, ‘What is it that we can be sure we can say or do without being at risk of legal action?’ Drawing on Lord Bingham’s explanation of the rule of law, we must be able to know what it is we can and cannot do without falling foul of the law, and we must be able to ascertain what our obligations are in fulfilling our duties. The latter is a matter that regulators might be alert to.
Fourthly, there are questions of evidence. Given the number of unknown factors in the radicalisation process, how is the risk to public security to be weighed up against the suppression of personal freedoms?
Fifthly, there are questions of practicality and, in turn, whether the application of these laws may have unintended or divisive consequences. In particular, what issues would these laws raise for law enforcement and community relations?
Some questions about limits
There are obviously significant free speech issues which will fall for debate. However, it is worth asking whether the challenges go further than this. Are we moving into the Orwellian realm of thoughtcrimes, where certain types of belief commitments, rather than any illegal actions, are regulated, restricted and may result in imprisonment?
We are not saying that this is what such laws will do, nor that it is the best way to characterise the laws, but we are saying that it is almost certain that the laws will be challenged in those terms. Three short observations illustrate how this is so.
First, the contradictions and vagueness in the definition of extremism, and not least the co-existence of tolerance and intolerance of faith commitments that it contains, seem to inescapably require in application the delineation of what are ‘acceptable’ and ‘unacceptable’ beliefs.
Secondly, that delineation will trouble many people. The Chief Constable of Greater Manchester Police observed last year that regulation of extremism was a concern for police. There is a danger, he said, ‘of us being turned into a thought police.’
Thirdly, even if one were to accept that all of what is proposed should be enacted, will we then be at the limit of what is restricted? Or might the legislature go further still? If so, how much further?
Each new round of counter-terrorism legislation rightly receives close and critical attention. In this coming round there are some profoundly important questions to be asked. What, exactly, will the law regulate? And where, exactly, do we stop?
Robert Gleave is Professor of Arabic Studies at the Institute of Islamic and Arabic Studies at the University of Exeter. Lawrence McNamara is Deputy Director at the Bingham Centre for the Rule of Law.