Counter-Terrorism and Border Security Bill

Lord Morrow Excerpts

Monday 17th December 2018 Lords Chamber

The Minister mentioned to me that the guidance would have to be updated in any event within 12 months. However, given the serious implications of the confusion that I have highlighted, it would be helpful if that review could be brought forward a little. If that is not possible, a supplementary definition of when non-violent extremism is a relevant consideration under Section 36 and when it is not would be a useful temporary solution. I beg to move.

[Lord Morrow (DUP)]

My Lords, I am very pleased to speak in support of Amendment 46. I want also to put on the record my thanks to the Minister for facilitating the meeting with the noble Baroness, Lady Howe, and me.

It is not my intention to repeat what the noble Baroness has said, but I want to say clearly that I agree with all of it. The Minister asked her and me whether we could think of any examples of confusion resulting from the inconsistent approach set out in guidance as to when non-violent extremism can be addressed in responding to the Section 36 duty, which pertains narrowly to terrorism, and when it cannot. I shall set out at least two examples.

Before I do so, however, I want to say that, even if there were no examples, it would still be important that when a lack of clarity was highlighted we did not wait for a problem before recognising the need to take action. I am a great believer in recognising where there is potential for problems before they make their presence felt and intervening to address the source of the difficulty in question.

Paragraph 129 of Mr Justice Ouseley’s judgment clearly demonstrates that he has already identified a tendency for people to misconstrue the guidance as it relates to the definition of the threshold that has to be crossed for consideration of non-violent extremism to become relevant. He states: “However often that phrase”—that is, preventing people being drawn into non-violent extremism—

“is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.

In my judgment, this is no more than sufficient justification for the Government to recognise the importance of intervening in order to bring the requisite clarity. This could be done relatively easily by employing Mr Justice Ouseley’s definition of when non-violent extremism is relevant to discharging responsibilities under the terrorism Act 2015 and when it is not.

Despite this, I will now turn to two specific examples, starting with the experience of the National Union of Teachers, which has asked:

“How are schools and sixth form colleges expected to incorporate the Prevent strategy into their existing safeguarding policies? The Prevent duty guidance is again lacking in detail on this point. It says schools ‘will need to consider the level of risk to identify the most appropriate referral, which could include Channel or Children’s Social Care, for example’. It also requires these policies to ‘set out clear protocols for ensuring that any visiting speakers—whether invited by staff or by children themselves—are suitable and appropriately supervised’”.


Crucially, however, the NUT then goes on to observe that the guidance,

“does not indicate which acts/behaviours warrant a referral to Channel or Children’s Social Care”.

This clearly illustrates the problem.

The NUT is not saying that it cannot see terrorism, which is fairly easy to identify. Its difficulty pertains to the lack of clarity regarding what else is relevant, and at the heart of that challenge is knowing what non-violent extremism is engaged and what non-violent extremism is not engaged. On the basis of some parts of the guidance, one could think that all non-violent extremism is relevant. On the basis of the legal definition in his judgment, however, Mr Justice Ouseley is very clear that non-violent extremism is relevant only if it is connected to terrorism in the sense that it,

“risks drawing others into terrorism before the guidance applies to it”.

He then, of course, looks at it from the other perspective, saying:

“If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.


These are the tests that should be being applied but, as the noble Baroness, Lady Howe, has demonstrated, the current guidance does not uphold them and does not have a clear and consistent definition of when non-violent extremism is relevant for the purpose of discharging the Section 36 responsibilities and when it is not relevant. Having considered this NUT example, it is also helpful to have regard to the 2016 Joint Committee on Human Rights report on counter- extremism. Again in relation to education, it states, at paragraph 46, that:

“On 21 June 2016, the Times reported that ‘in schools 1,041 children were referred last year to Channel, the de-radicalisation programme; in 2012, the year it was extended nationally, only nine children were referred’. Evidence on the proportionality of such referrals is almost entirely anecdotal at this stage. Yet it is far from clear that it was envisaged that so many children would be referred. Tell MAMA has stated that it has ‘received a number of cases involving schools and where Muslim young people have been interviewed on the back of alleged comments that they have made within the school environment’. They argue that some of these individuals ‘believe that they have been targeted because of their faith’”.


In other words, the JCHR is questioning whether the scale of referrals is appropriate.

If teachers are overreferring, this is not because they are seeing lots of terrorism in our schools. It is almost certainly because they are seeing what they perceive to be non-violent extremism and think that it provides a basis for a referral. Clearly, if non-violent extremism as a whole is in play, it provides a very broad basis for making referrals that would be consistent with these numbers. This misreading is, of course, entirely consistent with Mr Justice Ouseley’s observation that preventing people being drawn into non-violent extremism arises out of,

“a fundamental misreading of the guidance”.

He is very clear that, legally, the relevant Section 26 duty—and we may add by extension the relevant Section 36 duty, since both are confined to terrorism—engages non-violent extremism only to the extent that it can be shown to be connected to terrorism by playing a part in drawing people into it.

When we are confronted by a general tendency for people to misread the guidance, we can safely assume that the guidance is not clear. That is precisely what the noble Baroness, Lady Howe, has shown, by looking at the relevant texts. The Minister told the noble Baroness and me that these concerns could be addressed within 12 months because the guidance documents would be up for review by then. However, given that there is evidence suggesting that non-violent extremism is being applied generally, without regard for the appropriate legal constraints, reviewing the guidance is now a matter of considerable urgency.

It was your Lordships’ House that set the legislative framework providing the foundations for the Prevent and Channel duty guidance when we scrutinised and passed the 2015 Act. The evidence highlighting that the guidance is not clear and that it is being misread, to allow it to be applied to non-violent extremism not licensed anywhere in the legislation that we signed off, should be a real concern to every Member of your Lordships’ House.

In this context, while I appreciate that in the normal course of events there will be an opportunity to review the guidance documents in 12 months, I am not persuaded that it is appropriate to leave the many public servants who are expected to discharge this duty with guidance that we know is vulnerable to being misread for possibly as long as another 18 months, depending how long the review lasts. Mindful of this, I ask the Minister to take this matter away between now and Third Reading to see whether, mindful of the practical implications arising out of the lack of clarity, it might be possible to bring forward a review.

As the noble Baroness, Lady Howe, said, I do not think there is necessarily a need to rewrite the entire guidance documents. What is required is a clear statement at the start of the documents and in the glossary that says words to the effect of, “Any reference to extremism in this document must be read as engaging only non-violent extremism, to the extent that it is connected to terrorism, in the sense that it can be shown to play a part in drawing people into terrorism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist poses such a risk, the guidance applies. It is not an issue that preventing people being drawn into terrorism is a legitimate aim”. I believe this would bring much-needed clarity. I look forward with great interest to what the Minister has to say in response.

[Lord Stunell (LD)]

My Lords, I cannot in any way match the forensic and destructive analysis of the present situation provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow. I thank them for that. I think that the Minister has some serious answering to do on those very technical points—the case was argued in much detail.

I want to very briefly make a much broader point. When we make weapons of law in this place, who will wield them in the future? The very compelling point by the noble Baroness, Lady Howe, that one person’s non-violent extremism is somebody else’s common sense, is one that we ought to have very much in our minds. We should regard that as being precious and part of our heritage as citizens of this country.

It is also something that changes over time. I want to confess to the House that, on one reading of history, I am a non-violent extremist. I am a supporter of the views of Thomas Helwys, who fled this country in 1605 because of the tract that he published which stated that every man should be free to worship his own God, in his own way, whether Catholic, Jew or Muslim. He very sensibly fled to the Netherlands for four years after publishing that tract. He subsequently returned to this country, was arrested and was imprisoned for life in the Tower of London. That is an example of the fact that fashions change and things change in our own country. They also change geographically. In the European Union, 10 years ago it was perfectly safe and proper to be a lecturer at George Soros’s university. Now you are an enemy of the state.

Who holds the weapons concerning what is extreme and what is common sense? I hope the Minister will consider that point as well as the forensic and detailed critique provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow.