Conflating terrorism with extremism: Legal clarity on Prevent duty

The conflation between “terrorism” and “extremism” is a common theme in the discourse surrounding national security, which is resulting in a confused understanding of the Prevent duty, writes Jahangir Mohammed.

The announcement by Manchester Mayor, Andy Burnham, that he will review and replace the Prevent programme for a “bottom up” community strategy has been welcomed by some, but what does that actually mean and how could it work?  Could we instead have local authorities get rid of Prevent altogether?

In this article, I will attempt to clarify and explore some legal issues and possibilities in the future.

Section 26 Legal Duty  

The UK Government and its agencies have created a conflation between terrorism and “extremism” in their publications, official guidance, and training.

“Extremism” is basically being equated with terrorism through the constant interchange of both words in official discourse. The Prevent industry, corporate media, and public bodies all further reinforce this conflation. The result is confusion amongst the public, and increased confusion in the implementation of policies by public authorities.

The two terms in fact have distinct and separate meanings.

Terrorism

Terrorism is a criminal act which is defined in the Terrorism Act 2000, as amended. It can be summarised as an act or threat which involves serious violence, for a political, religious, racial or ideological cause, designed to influence governments.

The Government has also designated a list of those groups it considers terrorist groups.

Extremism

Prevent specifically focuses on “extremism” and is the government’s flagship strategy. It is guidance not law. “Extremism“ currently has no legal definition, and there are various theories about what constitutes as “extremism”. Some ardent advocates of Prevent argue that it can lead to terrorism.

Prevent advocates

The Prevent strategy defines “extremism” as:

“A 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. Extremism also includes calls for death of members of the armed forces.”

Apart from the “calls for the death of members of the armed forces,“ there is no link between the definition of “extremism” and the legal definition of terrorism.

A Terrorism duty, not “Prevent duty”

Section 26 (1) of the Counter -Terrorism and security Act 2015  is often incorrectly referred to as the “Prevent Duty”. In fact, it is a Terrorism Duty.  The law states that:

A specified authority must, in the exercise of its functions, have due regard to the need to “prevent people from being drawn into terrorism”.

Misuse of the Section 26 Duty

Although the phrase “being drawn into terrorism” is vague and problematic, it is clearly linked to the threat or use of violence. However, it is the job of the security services and police to stop people from engaging in terrorism. Public sector workers are not equipped, nor are they paid to perform that role.

But Section 26 has effectively placed a policing duty onto the public sector, which has led to widespread confusion. The result of this confusion is that the Section 26 Duty has been misapplied and misused by extending it to “extremism”.

Instead of focussing specifically on stopping people from being “drawn into terrorism” the Prevent policy has been applied beyond its remit to identifying people engaged in or attracted to non-violent religious/political ideas, beliefs, and practices.

The result of this is, “thought policing” and the outlawing of legitimate non-criminal activities, with public bodies going as far as policing events and speakers, words and comments, children’s innocuous behaviour, and non-terrorist groups, who pose no terror threat whatsoever.

Prevent has drawn links between “extremism” and terrorism where no tangible link exists, where no crime has been committed, and no threat of serious harm exists. Since 2007, nearly 15,000 people, many of them children, have been referred to the Prevent de-radicalisation scheme known as Channel.

Most referrals resulted in no further action. In 2016, some 7,500 people were referred to the Prevent Channel scheme. Of these, 90% resulted in no further action.

This is clearly going way beyond the intended remit of the Section 26 Terrorism Duty. These figures do not include everyday Prevent related incidents that have not been recorded; such as referrals under normal safeguarding duties, family court cases, or contact with venues to stop them hosting speakers and events, where Prevent theory has been applied and Prevent involved.

Safeguarding or discrimination?

Over 500,000 public sector workers have been trained on the Section 26 duty as if it was a “Prevent Duty”. Prevent theories are presented as a predictive science which can inform us who is likely to be drawn into terrorism. The predictive indicators (known as ERG 22+) are also being misused to identify people at risk of “extremism” not “drawn to terrorism”.

Of the 22 “indicators” invented by psychologists to identify people drawn into extremism, 17 are general behaviours and attitudes that can be widely applied to most people in society.  Only five can be considered as focused on harm or violent end goals.

It is argued that Prevent is mere safeguarding. However, as someone who writes safeguarding policies for clients, it is clear to me that Prevent goes beyond safeguarding.

The Children’s Act, and most safeguarding policies include much clearer signs of abuse.

These tend to be evidence based on physical signs – not social, political or religious “indicators”. In fact, protection from discrimination and victimisation is also defined as abuse in most safeguarding policies.

By going beyond the Section 26 Duty, many public bodies may well have been guilty of institutionalised discrimination, victimisation and harassment against the Muslim community and their religious and political beliefs, and therefore in breach of their own Equality Duty and safeguarding policies.

The Equality Duty

Section 149 (1a-c) of the Equality Act 2010 places an “Equality Duty” on public authorities like Terrorism Duty, but it directs public sector employees to “eliminate discrimination, harassment and victimisation” in exercising their function.

Both Section 26 and Section 149 (1) duty requires public authorities to take measures to ensure that something that is unlawful does not take place i.e. terrorism and discrimination.  How that can be done is really a matter for public authorities to decide, although the government issues guidance, which they should consider.

The Equality Duty is very clear; it relates to the act defined in the law. The Prevent guidance goes beyond the law and relates to something different: “extremism”. This confused thinking can be seen in many public documents and statements of heads of bodies such as OFSTED and Universities. They start by talking about terrorism and end up talking about “extremism” and “British values”. The result is a lack of clarity about what public servants are trying to prevent people being “drawn into” and how to identify it.

The way forward

Public authorities are not obliged to adopt recommended guidance on equality, for example Equality Impact Assessments, provided they can demonstrate that they are complying with the law.

Nor are they obliged to adopt the guidance around Prevent if they “must have regard” to the guidance (S29). Especially if the guidance goes beyond the law itself and is defective and discriminatory.

Therefore, any public authority could abandon the controversial Prevent policy and adopt an approach to fulfilling the Section 26 Terrorism Duty, which deals with identifiable risks of harm. This would also mean re-focussing the duty clearly around “serious violence” and the crime itself, not “extremism”.

If the notion of ‘prevention’ is enshrined in general policing and safeguarding; as well as there being a general duty on every citizen to report a suspected crime to the police.

In that case, what need is there for a separate Prevent policy that is focused on non-crime?

Where there is genuine risk of people associating with terrorist groups and harm, these can be dealt under community policing and general prevention, as it happens in Northern Ireland where the CTS Act Terrorism Duty does not apply.

In identifying genuine risks, authorities should apply the prevention and safeguarding principles they apply to non-Prevent cases, around “evidence base”, “clarity of signs”, “non- discrimination”, “proportionality”, “risk analysis” and “limited intrusion”.

Any approach must be based on the fundamental moral and legal principle of “Nullum crimen, nulla poena sine lege,” (“no crime without law”) that a person cannot or should not face criminal or other sanction except for an act that is criminal in law.  Where people face sanctions, they must accord with due process and rule of law.

With so many claims of the Prevent policy being discriminatory it would be a failure of Equality responsibilities for public authorities not to review the impact and failings of the Prevent policy, and to review if it has discriminated against, and victimised the Muslim community.

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