Memorandum from Professor Emeritus Clive Walker, School of Law, University of Leeds (CEB 0002)

1              Introduction

              The thesis of this paper is that we are witnessing in the UK a policy spiral relating to ‘Prevent’ and ‘Counter Extremism’, meaning that a policy field has been embarked upon with great impetus and productivity but lacking clear direction and sometimes adopting contradictory or almost random directions which cross paths already taken. The result is contrary to linear rationalism which better offers the prospect of effectiveness and legitimacy. This paper will plot and explain the policy spiral, by asking: why it is necessary and legitimate to engage with extremism; what has been done to date; and then what future paths are being taken with reference to the policy spiral.

2              Why engage with extremism which is not contrary to criminal law?

              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. As memorably stated by Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions:

              ‘… ours is a society of many faiths and none, and of many opinions. If the public promotion of one faith or opinion is conducted in such a way as to insult or provoke others in breach of statute or common law, then the fact that it is done in the name of religious manifestation or freedom of speech will not necessarily save it. It may forfeit the protection of arts 9 and 10 by reason of the limitations permitted in both Articles (provided they are necessary and proportionate) in the interests of public order and the protection of the rights of others.

              [But] Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas.’[1]

Given the need for tolerance of the aberrant, why should the UK government bother to attempt to make sense of alien and extreme cultures or still less to attempt to change the dark hearts of an extreme minority or curtail their activities? There may be three retorts to the classical liberal stance of non-interference.

              One reason is the attraction of the notion that prevention being better than cure. Why await the dire consequences of terrorism if its potential perpetrators can somehow be dissuaded or discouraged? Therefore, a wide range of counter-terrorism interventions have been invented which seek to bypass the normal chronology of criminal process, which normally means to await the crime, and then take action. That stance risks the deaths of potential victims and the deaths of the perpetrators who may plan not to survive to face prosecution. So, it seems wise to ‘defend further up the field’.[2] The caveat to this first argument is to know how ‘remote’ should be the suspicion which allows state intervention. It is accepted on the basis of the jurisprudence of article 6 of the European Convention on Human Rights that the evidential basis for taking formal civil action such a TPIM can be less than for a criminal prosecution. However, the appropriate standard of proof for referral to social prevention measures remains unspecified even under the Counter Terrorism and Security Act 2015 (described below).

              Second, the attention to violent extremism is demanded by ‘Prevent’. ‘Prevent’ was a bold initiative within CONTEST,[3] and the policy became pressing after the events of the 7 July 2005,[4] which resulted in a more explicit acknowledgment of ‘neighbour terrorism’[5] – that the terrorist threat in the Britain was internal rather than external and required engagement with, and the energising of, affected communities at levels other than security and policing. The implication is that our would-be ‘neighbour terrorists’ must be engaged with – a dialogue must be entered. They cannot be ignored, detained for ever, or shown the exit door of deportation.

              Third, the advent of the FTF phenomenon[6] has reinforced official attention to techniques of what might be termed ‘indoctrination’ and ‘de-indoctrination’. This terminology indicates that a battle of ideologies is to be waged. Another thread implied by ‘indoctrination’ is that the adherence to terrorist ideology is not deeply embedded, which gives hope that some hope that a range of rational arguments might engineer the desired epiphany. This point leads into a further thread, which is the official belief that de-indoctrination is desired not just by government but also by other stakeholders, including by the minority Muslim-heritage communities most affected by jihadi beliefs.

              The first question posed at the outset of this paper, why should we ‘Prevent’, is now answered? ‘Prevent’ is in principle correct as an innovative element of CONTEST suitable to late modern terrorism. There are sound and supportable reasons to open an ideological front. But what has been delivered, and why has a descent into a policy spiral resulted?

What has been delivered to date?

              The official discourse on these topics commenced in public with ‘Prevent’. The initial iterations of ‘Prevent’ were marked by the non-legal and experimental nature of the programme. These have been described elsewhere.[7] The sectors which were subjected to the most scrutiny were: local communities; mosques and Islamic-related charities; prisons; and higher education institutions. Much work has been delivered, including changes to legislation such as the Charities (Protection and Social Investment) Act 2016 and the promise of stricter regulation for religious schools following the ‘Trojan Horse’ affair.[8]

              Alongside these social based initiatives was one major policing intervention, namely, ‘Channel’ whereby in 12 police force areas office-holders or responsible citizens in Muslim communities are invited to provide an early warning system for the identification of extremists or people at risk of extremism.[9] Social intervention in the forms of counselling and engagement in approved activities are then applied. Though this non-crime label is put upon the project, there arise attendant dangers of loose labelling, net-widening, and threat of sanctions (including child care proceedings), problems deepened by a lack of openness in its operation beyond bare statistics as to intakes.[10]

              All of these five themes remain key sites of ‘Prevent’ today. However, by the time of the election of the Coalition Government in 2010, accumulated criticisms triggered a full review, which emerged as the Home Office’s Prevent Strategy paper in 2011.[11] The criticisms which it rightly sustained were: uncertain boundaries with community integration, weak causal links between radicalization and terrorism, the employment of former extremists, the perception of spying on minority communities, and vague performance indicators leading to wasteful expenditure.

              The Prevent Strategy paper reformulated the policy as comprising the need to: ‘(i) Respond to the ideological challenges of terrorism and the threat we face from those who promote it; (ii) prevent people from being drawn into terrorism and ensure that they are given appropriate advice and support; and (iii) work with sectors and institutions where there are risks of radicalization which we need to address.’[12] In this way, the redesign reinforces the focus on terrorism, including the monitoring and counselling of those deemed at risk under Channel,[13] and leaves cultural and social cohesion and integration aspects to other departmental programmes. But some of its solutions added to the spiral of difficulties. For instance, the disentangling of ‘Prevent’ from community integration resulted in the latter being transferred to the Department of Communities and Local Government without sufficient direction and also, in the Age of Austerity, without sufficient money.[14] In addition, the concern about involving ex-extremists imparted an even greater distance between elements of communities deemed at risk and professional programme organisers. Several other key problems were not sufficiently addressed, as shall now be related.

              First, the attempt to develop counter-narratives was initially by reference to ‘British values’. That effort was unconvincing, and there was a partial switch to ‘extremism’ defined then as encompassing:

              ‘… 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. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas.’[15]

This formulation still leads to controversy as to the boundaries of meaning and whether, beyond violence to British armed forces, extremism is inevitably unconscionable. Certainly, that leap from terrorism linked to violence towards extremism linked to political or social policies is generally rejected as a basis for state coercion in liberal discourse.[16]

              Second, there remains the issue of transparency, such as in the crucial Channel programme. While it is increasingly used, and broad guidelines as to use have been issued, few details have appeared about working practices, still less about outcomes.

              Third, that leads into the broader problems of the audit of achievements. It remains unclear as to what should be the performance indicators and who is measuring them. ‘Prevent’ work became a requirement for all local authorities in 2008, when the Home Office and Department of Communities and Local Government issued a National Indicator, Self Assessing local performance against NI 35: Building Resilience to violent extremism.[17] It offered a checklist of issues and processes rather than levels of outcomes to be secured. Unlike for some other areas of CONTEST, there is no Independent Reviewer of Terrorism Legislation. 'Prevent as a programme is not owned by police, but policing exerts a central role. The National Police Chief’s Council National Coordinator of Prevent is a national police unit which works to support the Government’s Prevent strategy providing national coordination for the policing response to the prevention of terrorism and also non-violent extremism which creates an environment conducive to terrorism.'[18] So who polices the police? A Prevent Oversight Board, set up in 2011 and chaired by the Minister for Immigration and Security and with a Director of Prevent in the helm, may agree on further action to support implementation of the Prevent duty.[19] But this Board is essentially the government’s monitoring scheme. Who is governing the government?

              Fourth, arguably the deepest problem of all is legitimacy. No wonder it is difficult to pin down ‘Prevent’ and debates spiral around its meaning, mission, and measurement when there is not even any law on the subject. At least, there was no law until the Counter Terrorism and Security Act 2015 (CTS Act 2015) was recently put in place. It follows that Part V of the CTS Act 2015 has the potential to do much good in terms of legitimacy. The general ‘Prevent’ duties are set out in Chapter 1 of Part V. Section 26 imposes on specified authorities (unless acting in a judicial or quasi-judicial capacity) a general ‘Prevent’ duty, namely, to have due regard to the need to prevent people from being drawn into terrorism. This broad and undifferentiated duty under section 26 rides roughshod over much sensitivity, especially in the education sector. But at last this resort to legal instruments imparts the promise of greater clarity and the need to act more openly and rationally. Likewise, Chapter 2 of Part V deals with ‘Support etc for people vulnerable to being drawn into terrorism’ which essentially is a reference to the ‘Channel Programme’. The CTS Act 2015 is the start of a process rather than the finished article. The government has already issued many pages of guidelines[20] which will inevitably be tested and reviewed as time goes on. But it is a hesitant start. The guidance definitions of ‘extremism’ and so on fall short of normal standards of legal certainty.[21] The statutory ‘Prevent’ duties still lack specification as to their requirements, performance measures, and accountability and just apply to the public sector.

              It may be concluded that the period from 2006 to 2015 has witnessed a policy spiral with all its attributes of frenzied impetus and productivity, as evidenced by the dense amount of materials covered under this heading of the paper. Yet, the policy of ‘Prevent’ has woefully lacked clear direction. One attempt at correction occurred in 2011, but many of the underlying contradictions were not solved at that time.

Future paths in the policy spiral

              At the very juncture when the CTS Act 2015 has arrived with the potential to provide for a more legitimate and controlled ‘Prevent’ policy, another policy spiral has emerged in the form of the Counter-Extremism agenda. Indeed the advent of the Counter-Extremism agenda represents a further indicator that ‘Prevent’ remains immature and unstable.

              The Counter-Extremism agenda emerged out of the establishment of the ‘Tackling Radicalisation and Extremism Taskforce’ in 2013 in response to the murder of Lee Rigby in Woolwich.[22] Its report, Tackling Extremism in the UK,[23] was short on detail but promulgated a substantial agenda against ‘Islamist extremism’ which is defined in broad terms, by no means dependent on the imminence of violence.[24]

              The agenda in response comprised the following steps, some of which have now been implemented such as by the CTS Act 2015, as already described: disrupting extremists such as by support and advice to organisations about how to confront and exclude extremists, new powers to ban groups, new civil powers to target the behaviour of individual extremists, new legislation to strengthen the powers of the Charity Commission; countering extremist narratives and ideology by building the capabilities of communities and civil society organisations, working with internet companies, and encouraging public reporting of extremist content online;[25] preventing radicalisation by making the delivery of Prevent and the ‘Channel’ programme legal requirements; work on integration through the support of projects and funding; and support for vulnerable institutions such as ensuring that schools support fundamental British values and bar extremists, improving oversight of religious supplementary schools, and working with universities and prisons to ensure the control of extremist influences.

              Further steps towards implementation have involved the setting up of an Extremism Analysis Unit in the Home Office to develop and analyse policies on community engagement and the exclusion of extremists.[26] Then, a Counter-Extremism Bill was announced as part of the Queen’s Speech on 27 May 2015.[27] The main elements of the Bill were outlined as follows:

‘• 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.’[28]

The agenda was elaborated further by Prime Minister David Cameron in a keynote speech at Birmingham on 20 July 2015 as being organised under four pillars: counter-ideology measures; targeting both violent and non-violent extremism; supporting moderate Muslims; and building a more cohesive society.[29]

              The subsequent Counter-Extremism Strategy paper (‘CES Paper’) in October 2015[30] embellishes these four pillars as well as some of the ideas proposed for legislation signalled in the Queen’s speech. Yet, no draft Bill is appended, and the inclination seems to favour softer forms of implementation or to delay pending further inquiries. In fact, a substantial part of the agenda either does not require legislation or is already the subject of legislation. One stumbling block concerns the core definition of ‘extremism’ which remains as foggy as ever.[31] Where the line should be drawn, beyond which opposition loses its domestic legitimacy, is when extremism is pursued by violent means. The evident inability to deliver a definition of ‘extremism’ which can withstand political and legal challenge should at least curtail the emergence of more repressive legal measures to be applied to individuals.

              A brief summary of measures to be pursued include, in chapter 2 (‘Our strategic response’), a review of the uses of Sharia law,[32] an issue peripheral to extremism, and a review of extremists in public services,[33] a potential McCarthyist purge in the making which should keep lawyers busy if ever implemented. Chapter 2 also tasks the Extremism Analysis Unit in the Home Office to build understanding of extremism,[34] but an external, more independent body would have been more suitable, while auditing and measuring the ‘answers’ and their translation into counter-narratives will be challenging.

              Chapter 3, ‘Countering Extremist Ideology’, offers the realistic finding that no single model of extremist ideology prevails,[35] suggesting that the Extremist Analysis Unit has been set an impossible puzzle. Nevertheless, one definite response is to augment the Channel Programme with ‘a particularly intensive type of support’ which could be compulsory.[36] Alarming aspects of this proposal include the selection of candidates (are these people worse than ‘moderate extremists’?), the measures to be applied (even somehow more earnest than Channel?), and the expectations which, if not met, result in crimes (thought crimes for the unrepentant?).

              A new network is promised in chapter 4, ‘linking individuals and groups around Britain who are already standing up to extremists in their communities’.[37] Sensible though this sounds, questions will inevitably arise about who is invited (former extremists still need not apply),[38] what funding is to be made available, and what objectives are set beyond the act of meeting together.

              Most alarming of all is chapter 5, ‘Disrupting Extremists’. Proposed minor changes to statistical practices relating to hate crimes data and new powers for Ofcom to suspend radio stations are sensible.[39] But new legal proposals to ‘protect the public’ by banning organisations[40] or to encourage public intolerance to the point of public denunciation through an Extremism Community Trigger,[41] could easily amount to platforms for intolerance. Presumably, Hizb ut Tahrir or the Muslim Brotherhood, already reviewed by Sir John Jenkins,[42] are prime targets, despite the absence of evidence of links to terrorism sufficient for a proscription order. Bans based on the intolerance of opposing factions or even a substantial faction in a given locality will breed resentment and will end up in court.

              As for chapter 6, ‘Building Cohesive Communities’, it is unclear how this initiative differs from the set of cohesion policies which were swept aside by the Prevent Review of 2011. Another review (by Louise Casey alone) is promised to supply the details.[43] This strand also raises questions as to the provision of resources for the Cohesive Communities Programme and how it relates to existing programmes (or is it the same money under a new title?).

              Overall, this CES Strategy represents a spiral away from ‘Prevent’-type approaches, but one effect is that legitimacy and effectiveness have become even more acutely wanting. As for legitimacy, the 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. As for effectiveness in reducing ‘extremism’, Baroness Sayeeda Warsi, former Minister of State for Faith and Communities, has commented that:

‘… the plans felt like an attack on the very values we were professing to promote. … We’re told that our protection and our freedoms can only be secured by the curtailment of freedoms. And the battle of ideas is not fought and won by bigger and better ideas but by banning, silencing through legislation and securitising communities.

… The Counter-Extremism policy development has been much more piecemeal, mainly because of well-documented differences of opinions between Conservative colleagues and others about whether the aim of policy should be to tackle violent extremism alone, or also include non-violent extremism. I’ve always believed we should focus on the former through the Prevent programme, and tackle the latter as part of a broader programme, which for years I have called Promote.’[44]

The application of ‘Promote’ in response to extremism remains a beguiling prospect. But the positive promotion of liberal democracy will not be secured by the repression of divisive, intolerant, offensive, or virulent opponents who belong to minority communities which will become dismayed by intense scrutiny for signs of ‘extremism’ and their portrayal in such terms. Organisational changes are also needed before these policy changes can hope to succeed, especially firmer oversight structures.

              The implied criticism in the CES Paper is that, despite a decade of twists and turns within the policy spiral, ‘Prevent’ remains inadequate and cannot alone handle the burdens being placed on it. Instead, further interventions are required not just for those considered vulnerable to being drawn into terrorism or those who espouse violent extremist views, but also for non-violent extremists. Rather than repairing ‘Prevent’, especially through the CTS Act 2015, the politicians seem repeatedly to prefer eye-catching new initiatives which re-energise the spiral of doubts about meaning, mission, and measurement.

              This criticism does not betoken that a policy of counter extremism is illegitimate in all circumstances. Old ideas around militant democracy[45] suggest that timely response can help to avert constitutional collapse, as befell Weimar Germany and others in the 1930s. Today, almost all countries are ‘militant’ when it comes to terrorism, though more because of the demands of the United Nations Security Council Resolutions and other international legal requirements than because of this baleful history. For instance, various countries within Europe have recently banned organisations such as Hizb ut Tahrir,[46] have restricted the wearing of the scarf and veil,[47] have curtailed the building of mosques,[48] and have outlawed sharia law.[49] All these restrictions have been heartily endorsed by the European Court of Human Rights which has even adduced a new principle of ‘living together’[50] by which pluralism can trump liberal tolerance. Thus, a state can properly proclaim and defend its own values, so long as consistent with the relatively indulgent standards of international law. But in the realms of extreme speech rather than violent action, and having regard to the need for proportionality in issues affecting fundamental rights, engagement in education and speech acts through regulation rather than coercion and by providing platforms for ideal speech situations are approaches more consistent with the values of a liberal democracy and perhaps even Britishness. By contrast the current thrust of counter extremism reinforces counter-intolerance rather than counter-arguments.

Conclusion

              There are two important values in the improvement of this broadest aspect of counter-terrorism strategy which need to be secured.

              One is constitutionalism[51] which is a precept for the state and which can be understood according to three parameters. There is first a need for a ‘rights audit’ and respect for individual rights. The second aspect of constitutionalism demands ‘accountability’ which includes attributes such as information provision, open and independent debate and review, and an ability to participate in decision-making. The third and broadest aspect of constitutionalism demands ‘constitutional governance’. This aspect includes the subjection of governmental action to a lawfulness requirement that laws ‘indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities’.[52] Next, the ‘constitutional’ mode of governance demands respect for meta-norms—tenets of national constitutional law and also international law. As well as these three principled concerns, ‘policy relevance and impact’ must be considered. Legislation should meet demands of efficacy and efficiency, and these attributes should be judged in the light of the CONTEST strategy. The dangers of spiral should be addressed by the greater transparency and accountability which would result from constitutionalism.

              The second basic value is trust, which is an attribute to be secured for the community respondents whose aid is being sought by the state. Trust might be better engendered if these policies were less top-down in design. There is a greater need for involvement at community level in devising projects and ideas. The dangers of spiral should be addressed by the greater stability and embeddedness which would result from greater community engagement engendered by trust.

              On the basis of those two values, ‘Prevent’ could be refined for the common good and could reinforce the raising and deployment of social capital in counter terrorism. But it remains doubtful whether counter-extremism is necessary as a distinct programme of counter terrorism or could ever be delivered as a constitutionalised or trustworthy addition to ‘Prevent’. Extremism and counter-extremism should be addressed but primarily as social and political issues rather than counter-terrorism issues.

May 2016