"Thought Police": The Counter Extremism and Safeguards Bill

The political landscape in Britain is at an impasse. Upheaval may sit just around the corner in the form of the European Union referendum and the proposed repeal of the Human Rights Act 1998, possibly with the repercussions of a second Scottish referendum. Amidst these tides of change, however, sits an element of continuity. Extremism, the perpetual political hot potato, has seen another development in the United Kingdom (UK) marking an extension of the Government’s hard line approach to the threat of terrorism.

The Counter Extremism and Safeguards Bill (the Bill) was announced in the Queen’s Speech on 18 May this year, laying out Britain’s next strategy for combatting domestic terrorism. The proposed legislation outlines a variety of new powers at the local and national level which broadly aim to ban and suppress ‘extremist’ ideas. These powers include banning ‘extremist’ organisations, allowing local councils to close down spaces being used to promote ‘extremist’ views, gagging individuals, allowing media watchdog Ofcom to block broadcasts of ‘unacceptable material’ and forbid radical preachers from posting online. The Bill sits very uncomfortably with both human rights and democratic principles, particularly the right to freedom of expression.

Freedom of Expression

The UK already has criminal legislation which prohibits terrorism, including speech that incites violence and promotes hatred. The proposed Bill seeks to extend this prohibition to non-violent ‘extremist’ ideas, a controversial and highly problematic move. Individuals or groups who espouse such views would be liable to gagging, both in person and online. What the Government seeks is to ban ideas which sit allegedly at odds with the norms of British society, which may depart from the European Court of Human Rights’ statement in Handyside that “freedom of expression 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.”

Article 10 of the European Convention on Human Rights (ECHR) enshrines freedom of expression, noting that it can be limited in accordance with other State obligations under international law. Such limitations must be provided for by law, be necessary in a democratic society and proportionate to their aim according to UK’s obligations under the ECHR and the International Covenant on Civil and Political Rights. A list of legitimate aims can be found paragraph 2 of the ECHR right itself, including preventing threats to national security which the Bill clearly sets out to do. Prescription in law and necessity are therefore satisfied, but question marks are left over the envisioned powers’ proportionality.

The Human Rights Committee in its General Comment 34 on freedom of expression noted that for limitations on expression to be legitimate they must be the least intrusive measure to achieve the purported goal – in this case the prevention of national security threats. The effectiveness of counter-extremism measures is central to its proportionality: if they are ineffective, they cannot be proportionate as they do not achieve their purported goal.

"Thought Police"

On 22 May a joint statement from an extraordinarily wide coalition of parties was published regarding the Bill. The multi-faith alliance who signed the statement include the Muslim Council of Britain, the Jewish Council for Racial Equality, The National Union of Students, the Runnymede Trust and Liberty to name but a few. Signatories also included individuals from both sides of the political spectrum as well as decorated persons speaking in official capacity. Notably this included the former Chief Constable of Greater Manchester Police Peter Fahy, who used to run the Government’s counter-radicalisation programme PREVENT. Fahy was joined by Chief Constable of Leicestershire Police and current PREVENT leader Simon Cole in his criticism of the Bill on 24 May, claiming it risked creating a ‘thought police’ and questioning its enforceability.

The joint statement claims that the Bill’s envisioned powers would be counter-productive in the fight against ‘extremism’. Non-violent ‘extremist’ views are not illegal, and as such should be challenged openly and assertively. In a democratic society, potentially dangerous ideology must be contested in a healthy and robust way, presenting a convincing alternative to divisive narratives of hate. Banning ‘extremist’ ideas takes this opportunity away, forbidding us to engage with and ultimately dispute views which we disagree with. Many who hold ‘extremist’ views may simply be angry and isolated, and prohibiting us from talking with them may exacerbate their discontent. Suppressing debate lets dangerous views fester instead of being aired in public, and such tactics run the risk of individuals seeking answers from the murky underbelly of the internet where violent extremism is easier to come by. In the words of counter-extremism think-tank Quilliam, “we cannot legislate away ideas, but we can challenge them.” Similar sentiments were expressed in another collaborative open letter on the Government's counter-terrorist strategy more broadly, signed by 49 people including MPs, community leaders and public officials.

The solution to all problems is not banning. It is not a panacea, and in this case may aggravate ‘extremism’ rather than soothe it. Banning viewpoints creates an ‘us and them’ mentality, creating divided communities in which ‘extremism’ thrives. In the context of Islamist ‘extremism’, banning reinforces the message that Islam is incompatible with British democracy, a message constantly espoused by terrorist groups themselves. It seems illogical that the Government’s proposed counter-extremism strategy engages with everyone except those who hold ‘extremist’ views, the very people it seeks to deal with. The lack of faith of the coalition who signed the statement is damning, particularly given that they represent a sizable and varied cross-section of British society. The strategy’s counter-productivity points to its overall ineffectiveness, and if measures which limit freedom of expression do not achieve their purported goal then they cannot be considered proportionate.

The Devil is in the Detail

The incessant use of inverted commas when discussing ‘extremism’ in this article does not stem solely from my own discontent with the approach we have taken to countering terrorism, though that certainly plays a part. The Bill, like so much counter-terrorist legislation, fails to define what it aims to stop. The absence of a definition of 'extremism' leaves the Bill’s powers open to interpretation by local and national authorities, affording too much discretion to the State and its entities.

The prescription in law condition when limiting freedom of expression goes beyond merely enacting legislation. The law must be clear and precise, following international legal principles of accessibility, specificity and foreseeability. Failure to adhere to these principles may render legislation arbitrary. The UK has failed to provide a working and consensual definition of what constitutes ‘extremism’, which gives the authorities the opportunity to clamp down on dissent should they choose to take it. This is at odds with international human rights law, and is perhaps the most dangerous aspect of the Bill’s envisioned powers.

Counter-extremism and human rights are ceaselessly described as clashing - divergent goals which cannot coexist in their entirety. Human rights are always sacrificed in the name of national security. This narrative, however, is incorrect. Human rights and national security are, to borrow from the Secretary-General of the United Nations, ‘complementary and mutually reinforcing’. Violations of human rights have been said to be the ideal breeding ground for ‘extremism’, sowing anger and discontent which can putrefy if not challenged. Our resolve as a nation is not tested in times of peace and harmony but in times of strained relations and discord. The final sentiment of the multi-faith coalition’s joint statement serves as a fitting summary:

“When ideas are not violent or do not incite violence we do not ban or censor them, however insulting they might be to our norms as a society. We believe that our universal values, which have developed through generations, can withstand the challenges we face today.

Let us create open spaces for debate and let it be through freedom that we defeat those who wish to divide us. We call for an evidence-based counter-terrorism strategy that proudly promotes our values, and offers a strong and principled alternative to the narrative of intolerance and fear.”