The report concludes that while there is agreement that tackling terrorism is a priority, there is no agreement about how to combat extremism, particularly since the Government is also under a duty to uphold the democratic and human rights which terrorists so often aim to extinguish.
Over the past year progress on a forthcoming Counter Extremism Bill appears to have stalled or even gone backwards, with the Government retreating from providing any level of detail. The Committee recommends that if any new legislation is brought forward it must be informed by evidence as to what works and what simply drives wedges between communities, and that the Prevent strategy (PDF 697KB) must be reviewed.
The report identifies six specific problems which the Government will need to address:
The "escalator" approach
The Government’s proposals rest on the assumption that there is an escalator which starts with religious conservatism and ends with support for violent jihadism, and that violence is therefore best tackled by curtailing or placing restrictions on religious conservatism. However, it is by no means proven or agreed that religious conservatism in itself correlates with support for violent jihadism. The aim should be to tackle extremism that leads to violence, not suppress views with which the Government disagrees.
No clear definition of extremism
If extremism is to be tackled through legal mechanisms then clarity of definition is essential. Currently the Government defines extremism as "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."
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."
The difference in wording suggests a degree of confusion and, in either event, these definitions are couched in such general terms that they are likely to prove unworkable as a legislative definition. In particular, the extent to which lack of “mutual respect and tolerance of different faiths and beliefs” could or should be deemed unlawful is likely to prove deeply contentious. The report concludes that many people would argue, for example, that it is right to be intolerant of religious belief that promulgates homophobia or that we should have no respect for religious beliefs that women are inferior, and that this raises the question: what is extremism? The homophobic and misogynistic beliefs, or others' intolerance of them?
Committee Chair Harriet Harman said:
"Providing a clear definition of extremism is a difficult task and the Government has yet to succeed in doing it."
Discrimination and religious freedom
New legislation which would impact on those expressing conservative religious views poses two problems: either it will focus on Muslims, be seen as discriminatory and drive a wedge between communities, or it would operate indiscriminately and could be used against any groups who espouse conservative religious views.
Harriet Harman said:
"Would applying counter extremism measures to specifically Islamic religious conservatism in the cause of tackling violence be acceptable discrimination or would it give rise to justified grievance? The most precious asset in the fight against terrorism is the relationship between the authorities and the Muslim communities of this country. We must guard against any undermining of the relationship between the authorities and Muslim communities, which would make the fight against terrorism even harder."
The report argues that the Government has not so far supplied any explanation of how they will go about this and how the proposals will avoid either unjustifiable discrimination or unjustifiable interference with freedom of religion or expression.
It concludes that the legal issues in the Government’s plan are so central that a further general consultation which does not provide a clear legal definition of extremism would serve no purpose, and that if the Government wishes to take forward these proposals it should publish a draft Bill: this should be subject to extensive consultation, with enough time to develop a consensus.
Conflicting duties on universities
The duty to promote free speech, whilst at the same time preventing the expression of extremist views, is likely to cause uncertainty, particularly for university administrators.
It is not clear how a university is to know whether conduct is unlawful extremism which amounts to "vocal or active opposition to our fundamental values" or whether it falls within section 202 of the Education Reform Act 1988 which provides that University Commissioners have a duty 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."
Civil order regime
In its October 2015 strategy the Government initially proposed a series of three civil orders: Banning Orders (for the Home Secretary to ban extremist groups), Extremism Disruption Orders (for law enforcement to stop individuals engaging in extremist behaviour) and Closure Orders (to close down premises used to support extremism). But they are now only able to talk in general terms of a "new civil order regime" (Queen's Speech 2016) subject to some form of consultation that will fall short of a draft Bill. It is not clear whether the original proposals are still on the table or whether they have been superseded.
JCHR Chair Harriet Harman said:
"We are concerned that the Government should not use ill-defined civil orders, breach of which is a criminal offence, as a means to avoid having to make a criminal case to the requisite standard of proof. The Government has drawn attention to the precedent of other civil orders. But here the prohibited behaviour – 'extremism' – is not properly legally defined and is not a clear cut criminal offence in its own right like domestic violence or FGM."
The safeguarding context
The Government now proposes to put its counter extremism proposals in the context of ‘safeguarding’ and has changed the title accordingly. However, without an agreed definition of ‘extremism’ it is not clear what children would be safeguarded from.
The report concludes that while there may be some argument for additional inspection measures aimed at neglect and physical abuse to be introduced in out of school settings, these should not be aimed specifically at religious organisations. It recommends that even if the Government is able to clarify its definition, any new measures should be proportionate, focused, and should only apply where concerns have been raised.
Harriet Harman said:
"The difficulty around these issues should lead the Government to tread with great care, for fear of making the situation worse, not better. The Government should listen with particular care to those who would be expected to apply for and enforce these civil orders, such as the police, educational establishments and councils, and Muslim and other faith communities."