Opinion | Monday, 29th October 2018

Britain’s new counter-terrorism legislation will undermine the rule of law even further

Laws are not uniform when applied selectively and at police discretion, says Dr Philip Edwards

Originally published on The Conversation

by Dr Philip Edwards, Senior Lecturer in Criminology at Manchester Metropolitan University

When he first unveiled the British government’s latest package of counter-terror legislation in June 2018, Home Secretary Sajid Javid justified it as a way of ensuring that “the police have the powers they need to protect us”.

If approved by parliament, the Counter-Terrorism and Border Security Bill would make it a crime to express views favourable to terrorist groups, or to view terrorist material online. Javid argues that the threat of terrorism requires this kind of innovation, and that current laws need extending so that the police can keep citizens safe without breaking the law themselves.

Others are less enthusiastic. Max Hill, the independent reviewer of terrorism legislation, warned that: “A principled boundary line as to the legitimate usage of criminal law is being crossed.” The new laws don’t so much extend the law as stretch it, perhaps to breaking point.

As the bill now moves to its committee stages in the House of Lords, it seems likely to ignite debate about counter-terrorist legislation – not only about how appropriate it is to criminalise “precursor” activities such as watching a video, but about what can and can’t be done with the law more generally.

The rule of law is one of the “fundamental British values” prescribed by the Prevent counter-terrorism programme. So it is ironic – and alarming – that counter-terrorist legislation threatens to undermine it.

The rule of law

Many lawyers would argue that the rule of law is simply the situation in which the same laws apply and are enforced equally throughout society, irrespective of whether those laws themselves are good or bad. However, a stronger case for the rule of law can be made if we follow a school of thought associated with the American legal philosopher Lon Fuller. In his 1964 work, The Morality of Law, Fuller argued that the coherence of the law as a system is valuable in itself – something he called the “internal morality” of law.

The sheer breadth of such laws means that they are bound to be applied selectively and with extensive use of police discretion – which means that they are not, in practice, applied uniformly.

This internal morality can be summed up in three requirements. The law must be uniform, applying the same rules throughout society; it must be knowable, so that citizens can understand what it requires of them; and it must be followable. The rule of law therefore means that not only should the law apply to all alike, but also that everyone is able to understand what it requires and to choose to follow it, or break it.

Since 2000, new terrorist offences have multiplied, with successive governments insisting that they are needed in order to keep people safe. So how do these offences – and the new bill – measure up to this model of the rule of law?

Criminalising the future

In a recent paper, I looked at successful prosecutions under counter-terrorist legislation between 2006 and 2016. In that ten-year period, 155 counter-terrorist prosecutions were successfully brought, involving 391 separate charges. Every one of the terrorist offences of which suspects in these trials were found guilty was a “precursor” offence, criminalising actions prior to a terrorist act being committed – more precisely, actions which could have led to a terrorist act being committed at some time in future.

Hassan Tabbakh, for example, received a seven-year sentence for preparing acts of terrorism, on the grounds of possessing chemicals with the intention of making bombs – although Tabbakh did not have a detonator, and the chemicals would not have ignited in any case. Others received prison sentences for uploading videos of combat in Afghanistan, and for making notes on bomb-making in an attempt to “wind up” the staff at a young offenders’ institution.

Precursor offences like these criminalise actions and situations not on their own merits, but on the basis of the further actions that they might eventually have led to, or facilitated, or encouraged. The sheer breadth of such laws means that they are bound to be applied selectively and with extensive use of police discretion – which means that they are not, in practice, applied uniformly.

There is inevitably a tendency to use counter-terror legislation to prosecute the kind of people who “look like” terrorists – at present, predominantly British Muslims. The case of Ryan McGee illustrates this. He was a serving soldier and English Defence League supporter who kept a home-made bomb in his bedroom, for which he received a two-year sentence on an explosives charge. (Unlike Tabbakh’s bomb, McGee’s was fully constructed and viable.)

Permanent zone of suspicion

Contemporary counter-terrorist legislation is a systematic deviation from the values of the rule of law, which the new bill threatens to entrench. In a nasty irony, one of the shortfalls identified here – the lack of uniformity – masks the others: put simply, most of the British population is never going to have to worry about falling foul of counter-terrorist law and policing.

For the minority who do, the effect of these shortfalls is menacing. In principle, the law leaves all citizens free to act how they please, as long as other people’s rights are not infringed. But anyone who falls, or believes that they might fall, under suspicion of terrorist sympathies also knows that it would be advisable for them to avoid doing anything, possessing any item or making any statement that might later be presented as being related to terrorism in some way. Members of that group – British Muslims now, Irish in Britain in the 1970s, perhaps another group in the future – live in a permanent zone of suspicion.

The new laws would extend that zone still further. In the words of Corey Stoughton of the campaign group Liberty, the new provisions take a “dramatic step in the wrong direction”. Ironically, legislation passed to protect the rule of law – along with freedom, democracy and Prevent’s other “British values” – are creating the conditions for the rule of law to be dangerously undermined.