By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School )
Many, including the government, are convinced that ‘extremism’ is implicated in the current terrorist threat and in some of the challenges which arise in the promotion of integration and the maintenance of social cohesion in a society as diverse as the UK. It is, of course, undeniable that terrorism involves ‘violent extremism’. But it is less clear that there is a problem with ‘non-violent extremism’, or at least that it is of such significance that the state and society should be mobilizing to address it. Yet, it is also difficult to deny that the profile of ideas and behaviour hostile to humane values, tolerance and mutual respect has increased in recent years, particularly as a result of the internet and social media. It is against these backgrounds that an independent Commission for Countering Extremism was established by the government in March 2018. At the core of its mission lie three questions: what precisely is ‘extremism’? What kind of threats and risks does it pose? And what, if anything, should state and society do about it? This brief contribution considers the role that human rights might play in finding some answers.
WHAT ARE HUMAN RIGHTS AND WHY DO THEY MATTER?
We need to begin by considering what human rights are and why they matter. The human rights ideal expresses the notion that everyone possesses a set of individual entitlements linked to the most fundamental aspects of our well-being. These recognise and give substance to our equal intrinsic worth, and we possess them independently of any other badge of demarcation, be it gender, race, age, religious or other belief, sexual orientation, etc. Amongst the many reasons for taking human rights seriously is that without them, we have little hope, in our increasingly integrated but diverse world, of making coherent moral sense of ourselves, our relationships with each other, and with the national and international institutions and systems which exercise power over us. We are, in particular, unlikely ever to meet two needs which are both self-evident and universal. First, every human being wants to be free from suffering, particularly when it is caused by the avoidable and indefensible conduct of others. Second, we each want to live our lives in ways we ourselves find fulfilling. Although different people will have different conceptions of what constitutes a fulfilling life, it is difficult to imagine how any properly developed person could seriously deny either of these propositions for themselves. Both are also universal and equally open to all because there is no self-evident reason why any particular human being should have a greater claim to their realisation than anybody else. While there is no right to avoid all forms of suffering, and no right to every possible kind of self-fulfilment, these two needs provide the basis of the human rights ideal which, in its various guises, has, nevertheless, been controversial for almost half a millennium.
Indeed, it would not be an exaggeration to claim that, since the birth of modernity in the late 16th and early 17th centuries, the history of the west, and to a lesser extent the wider world, has been characterised by a series of philosophical, legal, political and military conflicts over how, if at all, national and international systems should integrate fundamental individual rights with other interests. However, the human rights ideal has prevailed against the odds, not least because the post-Second World War world has formally committed itself to them. Every state which belongs to the UN – and nearly all states in the world do – are formally bound by the many human rights related affirmations in its founding Charter of 1945, fleshed out by the UN General Assembly’s Declaration of Human Rights a few years later. It is also estimated that about 80 per cent of states in the world have signed up to at least four other core international human rights treaties. There are also several regional regimes, including of most relevance for the UK, that provided by the European Convention on Human Rights, the rights in which were incorporated into UK law by the Human Rights Act 1998. However, sadly, these developments do not mean that human rights are effectively protected globally. As the terrible tragedies afflicting such places as Syria, Yemen and Burma, to name but a few indicate, violations are frequent and widespread, and sanctions chronically weak both as deterrent and punishment. There are no easy solutions to these challenges. But the international human rights regime is nevertheless a significant and worthy achievement because it constitutes the closest thing there is to a repository of global standards.
WHAT CONTRIBUTION MIGHT HUMAN RIGHTS MAKE TO THE COUNTER EXTREMISM DEBATE?
The main contribution human rights could make to the counter-extremism debate is to provide a set of standards and evidence-based, law-governed procedures enabling those forms of expression which should be tolerated in a free society to be distinguished from those which should not. The bedrock principle is that the expression of any idea or belief should be protected unless a good reason can be found to ban or restrict it. Or to put it another way, there is a non-absolute human right to freedom of expression. However, many ideas and beliefs, which are not banned or restricted may, nevertheless, invite vigorous contestation, itself an exercise in free expression.
The right to freedom of expression is found in every credible list of civil and political rights. The European Court of Human Rights has also affirmed that this right, provided by Article 10 of the European Convention on Human Rights, is vital for the kind of ideas, views, opinions, and outlooks – including those which ‘offend, shock and disturb’ – upon which a pluralistic, tolerant, broadminded, progressive and democratic society depends. Three core questions, the last two of which cannot be clearly demarcated from each other, therefore arise: what counts as ‘expression’, what kinds of expression are protected, and what kinds of restriction may legitimately be imposed under what circumstances? Regarding the first, ‘expression’, for the purpose of Article 10, includes the spoken and written word, drama, art, graphics, dress, nudity, symbols and symbolic acts, which convey opinions and ideas of a political, social, cultural, artistic, or commercial kind, through, amongst other means, publications, meetings, broadcasting, theatre, cinema, the internet, and advertising. While the right to free expression can conflict with other human rights, not least the right to privacy, it can also reinforce them. For example, any given form of expression, eg dress, music or dance, may also be part of private life protected by the right to respect for private and family life, home and correspondence. Similarly, a sacred ritual may be considered both a form of expression and a manifestation of religious belief. The rights to freedom of assembly and association would also be largely redundant unless they too were supported by a right to free expression.
However, as a matter of principle, certain forms of expression are not protected by Article 10. These include views which are inherently hostile to core Convention values, those which seek to deny, belittle or defend the Holocaust (and possibly other clearly established crimes against humanity), and those which incite violence or hatred. According to Article 10(2), the exercise of the right to freedom of expression also ‘carries with it duties and responsibilities’ which may be ‘subject to such formalities, conditions, restrictions or penalties’, provided these are prescribed by law and are necessary in a democratic society in pursuit of specific ‘legitimate aims’ listed as follows: national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary. However, any limits imposed upon expression for any of these reasons must be proportionate. The European Court of Human Rights also permits some latitude to states in determining where relevant lines should be drawn. Freedom of expression can be restricted in much more varied ways than the interests protected by most other Convention rights. This may, include, for example, withholding licenses for broadcasting, TV and cinema, refusal of permission to publish, confiscation, and/or compulsory withdrawal of offending items from sale. And, in cases where an official interference is admitted but a justification pleaded, the severity of the penalty will often be the deciding factor in determining whether or not there has been a violation.
The European Court of Human Rights also requires bans and/or restrictions on the right to freedom of expression to be regulated by laws which are clear, provide adequate safeguards against arbitrary abuse, and which enable adverse official responses to be reasonably foreseen. In most circumstances, content, form, tone, context and consequences – including the applicant’s status, the addressees, the likely public impact, the extent of any restriction and the possibility of alternative outlets for the views in question – will often be critical in determining whether any particular expression is compatible with Article 10 or not. On account of its importance for the proper functioning of democracy, the Court permits, for example, greater scope for social and political debate, particularly by politicians and journalists, than for artistic and commercial expression. It also recognises that audio-visual media have greater immediacy and impact than print. In considering whether, in any given circumstances, the right to freedom of expression should prevail over any legitimate exception, or vice versa, the Court is not only concerned with the particular dispute before it, but also with the possible ‘chilling effect’ upon freedom of expression generally if the restriction were to be upheld.
The legitimate grounds for curtailing freedom of expression are not always easy to distinguish from each other and the European Court of Human Right does not always indicate clearly which may have justified the particular limitation in question. In cases involving terrorism, for example, criminalizing the expression of certain views may be permitted in the interests of national security, public safety, and/or the prevention of disorder or crime. But the Court is generally unsympathetic to blanket bans and is typically most concerned about the proportionality of restrictions and sanctions, and with the provision of adequate procedural safeguards against abuse. As already intimated, incitement to religious hatred is not protected by Article 10. But the legitimate limits upon the right to express critical, satirical or ‘obscene’ views about a given faith have proven difficult to specify with precision. As a result gratuitous insult and/or abusive attack may or may not be tolerated according to the circumstances.
A REPLY TO HUMAN RIGHTS SCEPTICS
Not everyone in the UK is wholly convinced about the value of human rights. Three of the most common objections are that they are un-British, they disproportionately benefit wrongdoers at the expense of the law-abiding silent majority, and they inhibit the pursuit of other desirable social and political goals. Let’s consider each in turn.
Human rights are, in fact, as British as wet bank holidays, orderly queues, and not displaying strong emotions in public and, therefore, lie at the heart of any appropriate conception of ‘British values’. English philosophers Thomas Hobbes and John Locke, together with French Enlightenment thinker Jean-Jacques Rousseau, constitute the three seminal contributors to the early modern theory of natural rights, an enduring cornerstone of the contemporary ‘human’ rights movement. Indeed, Locke’s theories, popularised in the late 18th century by Norfolk-born Tom Paine, were amongst the most influential in the liberal revolutions of the 17th-19th centuries which have still not fully matured anywhere. Furthermore, the leading light in the post-Second World War international campaign for human rights was none other than quintessential British statesman, Winston Churchill, who argued tirelessly for what became the European Convention on Human Rights, eventually drafted by British officials who took the rights at the core of English law as their model.
It is also a misconception to think that human rights systematically favour wrongdoers over those who play by the rules. It is, for example, exceptional for foreign criminals or suspected criminals to evade deportation on the grounds that this would interfere with their human rights. Invoking the right to respect for family life succeeds only in rare circumstances and the risk of ill treatment by the authorities in countries of origin is likely to be addressed by memoranda of understanding that this will not happen once the deportee returns.
Finally, the claim that human rights inhibit the pursuit of other desirable social goals is not true either because human rights are routinely balanced against competing public interests – such as the prevention of disorder and crime and the rights and freedoms of others – ultimately a task for experienced, professional judges taking all relevant factors into account. For this and other reasons the recent proposal to replace the Human Rights Act with a British Bill of Rights – which would contain the same rights as those found in the European Convention on Human Rights but with weaker mechanisms of judicial enforcement – has, quite properly, been shelved by the current government.
The human rights ideal can, therefore, make the following contribution to the counter-extremism debate. First, resting on the assumption that all forms of expression should be permitted unless a good reason can be found for not doing so, it provides a set of standards and law-governed procedures to distinguish which is which, based upon concrete evidence of public and/or private harm. This is primarily a responsibility – shared by government, parliament and the courts – already mapped out in terms of human rights-related principles, rules and permissible official discretion. But this is not to say that every outrageous, shocking or distasteful point of view or opinion which is not officially banned or restricted should go uncontested. This is the primary challenge for society at large. Finding ways of rising to it effectively will be one of the core responsibilities the new Commission should discharge.