By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).*
Earlier this year, the Government fulfilled one of its General Election Manifesto commitments by appointing Sara Khan as the first chair of a new Commission for Countering Extremism. The Commission’s task is not an enviable one, since if not exactly an admission of failure, its establishment represents at least a significant pause for thought. Its job will be to support society in countering extremism and to advise the Government on new policies and powers. We have some idea of what it aspires to achieve, and how it will work, but as yet no concrete proposals have emerged.
The creation of the Commission is the latest stage in a fairly rapid process of policy development. In its current guise, the idea of countering extremism first emerged in the 2011 version of Prevent, the counter-terrorism strategy. Extremism was defined there 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 was identified as a problem because, it was claimed, extremist ideologies can lead to terrorism – the use or threat of serious violence or other damaging attacks on the public to advance a political, religious, racial or ideological cause. However, at that point the only thing the Government suggested should be done about it was ‘challenge’ – in other words the use of informal social and political pressure to reinforce liberal values in the face of illiberal ones.
In October 2015 – after the ending of the Conservative/Liberal Democrat Coalition – the Government’s counter-terrorism policy took another turn. A new counter-extremism strategy identified extremism as a harm in its own right, requiring new legal responses and new Government powers. Ever since, the Government has been trying to work out what these should be.
It started with a flurry of promises. The Queen’s Speeches of 2015 and 2016 promised a range of new legal powers to ban extremist organizations and disrupt the activities of extremist individuals, but nothing came of these ideas. Rumours circulated for some time that Home Office lawyers were struggling to develop a legally-workable definition of extremism. One of the most developed proposals came from the Department for Education. Responding to concerns about the dangers of unregistered Islamic schools it proposed a registration and inspection regime for all education in out-of-school settings, defining this as any work with children or young people lasting for more than six to eight hours in any given week. It would have amounted to an enormous increase of state regulatory oversight of social activity, the vast majority of which has never been suspected of anything resembling ‘extremist teaching’. In April this year, over two years after the public Consultation closed, the Department finally conceded that it was not going to pursue that idea any further.
The 2015 counter-extremism strategy also promised a review of the ‘misuse’ of Shari’a in the context of Shari’a Councils. Most of their work deals with the breakdown of marriages of Muslims married only according to Islamic custom and not under English law. That review was chaired by Professor Mona Siddiqui, and it reported in February this year. It proposed legislative changes to require a civil marriage ceremony alongside any religious one as well as a system of self-regulation for Shari’a Councils. But the response from both Government and other academic experts has been lukewarm at best.
So, at the last General Election, the Conservative Party Manifesto showed a more cautious approach, admitting that the Government ‘needed to learn from how civil society and the state had tackled racism’. Facilitating that learning process is the job of the new Commission.
Clearly, countering extremism is not as easy as it looks. However, the problem is not a new one. In the 1970s, Germany struggled with a similar phenomenon of left-wing radicalism, which likewise had a terrorist element. The particularly controversial policy response of the time was the attempt to screen potential civil servants (a category which in Germany includes teachers and university lecturers) for evidence of radical views. The question of how the state tackles the underlying ideology which motivates such action was the subject of much thought by the leading constitutional theorist and judge Ernst-Wolfgang Böckenförde. In a recent article in the German Law Journal I seek to recover some of his ideas and apply them to the current British situation. My task was made considerably easier by the fact that a volume of translations of Böckenförde’s writings has recently been published by Oxford University Press under the editorship of Tine Stein and Mirjam Künkler, with a second volume due shortly.
Böckenförde made a number of observations which could equally have been drawn from the current British situation. Above all, he observed a tendency to reinterpret human rights as values, in the German context as ‘constitutional values’. Similarly, the language of ‘fundamental British values’ is an attempt to find a common ethical basis in the absence of a written constitution. The content of those values could well be expressed in terms of ‘equality and human rights’, and indeed in some contexts such as education law they are. It seems intuitively plausible that in the face of threats to the liberal democratic political order we should reassert the values on which it rests.
However, when rights get reinterpreted as values all sorts of things can go wrong. For example, there is a danger that we focus more on expressions of political heterodoxy than on the legality of people’s actions. The references to the ‘rule of law’ in recent Government policy are along the right lines, so long as we remember that the main threat to the rule of law comes from those who break it, not from those who criticise it. Realistic assessments of the risks of illegality are more important than the mere inconsistency of ideas. A casual link between saying and doing cannot be taken for granted; it must be demonstrated.
Of course, speech itself can be dangerous. There are legal limits to acceptable speech. The European Court of Human Rights has a fairly well-developed case-law on the point at which the use of human rights becomes abuse. Article 17 of the European Convention deals specifically with this problem. It is directed at those who take practical steps towards promoting a totalitarian political agenda. In the context of other articles, freedom of expression, for example, includes the right to ‘offend, shock or disturb’, but meets its limits in the concept of ‘clearly unlawful speech’ such as defamation, hate speech and incitement to violence. As recent convictions have shown, the law is already able to deal with such phenomena, although the practical problems of regulating on-line material are substantial. But such exceptions aside, rights are there to protect unpopular minorities, not to create standards for the legitimate use of their freedom.
Another problem with reinterpreting human rights as values is that it distorts the content of rights. The point is not simply that a robust political system can withstand a certain level of critique. It is that human rights are designed to impose obligations primarily on governments, not on individuals and civil society groups. The Government is under obligation to protect freedom of thought, religion and conscience precisely so that individuals can commit to living by particular ideologies, beliefs and moral codes. Churches and other religious organisations exist to be discriminating on grounds of religion. Governments exist to hold the ring. So ‘mutual tolerance and respect of different faiths and beliefs’ must mean something very different for public bodies than it does for private individuals and groups. The use of ‘values’ informing soft law regulation of such groups, as for example by the Charity Commission, can easily blur this distinction at the cost of both legal clarity and civil liberty.
Böckenförde concluded that in seeking to address extremism the liberal democratic state faces a particular vulnerability and temptation. Modern liberal democracies grew out of the rejection of the idea of a confessional state, that is, a state self-consciously directed towards using the means at its disposal to maintain popular commitment to a single religious or secular ideology. Rejecting the confessional state means refusing to use law or other forms of official coercion to promote the values on which it is based. Therein lies its characteristic vulnerability. Yet whenever we come face to face with that vulnerability, we are tempted to slip back into confessionalism – that is, into turning the values of liberal democracy into a new creed and using law to enforce it. It is in this context revealing that Dame Louise Casey should propose – and at least one senior Government minister support – the idea of a new oath of loyalty for public office-holders. Oath-taking was a principal tool by which the British confessional state sought to enforce Anglican Christian hegemony from the 16th to the 19th centuries. It is about as close as a state can get to ‘making windows into people’s souls’.
All this does not make the Government completely powerless. But the focus has to be on supporting social processes which reinforce the virtues that make liberal democracy possible – virtues of loyalty, civility and liberality. These are what make it possible for us to disagree vigorously but well. The state can promote and encourage these virtues, not least in its oversight of education, but there is no legal ‘quick fix’ by which they can be guaranteed. Building them into our daily patterns of behaviour and mutual expectation is the responsibility of us all.
* This post is based on the recent paper J Rivers, ‘Counter-Extremism, Fundamental Values and the Betrayal of Liberal Democratic Constitutionalism’ (2018) 19(2) German Law Journal 267-299.