The Joint Committee on Human Rights has published its Second Report of the Session, on Counter-Extremism. There is much in the Report that is of interest to faith-communities, not least because the Joint Committee is critical of the Government’s proposal that education in “out-of-school settings” when instruction takes place for six hours a week or more should be subject to inspection by Ofsted. As we first noted in January (and we have returned to the issue subsequently) the proposal has raised concerns about possible inspection of such activities as intensive choir-practices and Nativity play rehearsals.
The Joint Committee does not support a regime of routine inspections of out-of-school education. Moreover, it is fairly critical of current policies generally, pointing out that “The Government gave us no impression of having a coherent or sufficiently precise definition of either ‘non-violent extremism’ or ‘British values’.”
Following are the Joint Committee’s recommendations:
“Right-wing extremism and xenophobia
1. Following the EU referendum there appears to have been a deeply worrying rise in the expression of xenophobia and racism. We note that the Government is drawing up a Hate Crime Action Plan. Given that the Counter-Extremism Strategy refers to right-wing, as well as religious, extremism these issues should be seen as part of that strategy and will have to be considered if any legislation is forthcoming. (Paragraph 34).
2. Unfortunate and deplorable incidents involving racism and xenophobia persist. The criminal law already contains offences which make such expressions of hatred unlawful. The Government and police should monitor the situation carefully and ensure that these incidents are dealt with vigorously and swiftly under the existing law so that no further harm is done to community relations. It must also seek to repair the harm that has undoubtedly already been sustained. (Paragraph 35).
An independent review of the Prevent Strategy?
3. Any new Bill on countering extremism should draw on all the available evidence. Those preparing the Bill should consider the experience of the Prevent Strategy and the operation of the Prevent Duty. An independent review of the Prevent Strategy and Duty should be published as part of the consultation on the Bill. The current oversight arrangements for Prevent are too opaque and do not engender confidence. It is not clear to us why the Government does not currently regard the Prevent Strategy as being part of the background to its proposed Bill. (Paragraph 42).
The operation of the Prevent Duty in Schools
4. It is too early to reach any definitive conclusions on the success of the Prevent Duty in schools. Anecdotal evidence suggests that there may be some cause for concern about the impact of the Duty and the Government would be well-advised to ensure that referrals are made in a sensible and proportionate fashion. However, we also accept that it is very easy for dangerous myths to be spread about Prevent. The only way for these to be dispelled is for there to be rigorous and transparent reporting about the operation of the Prevent Duty. (Paragraph 50).
The operation of the Prevent Duty in universities
5. Any proposed legislation will have to tread carefully in an area where there is already considerable uncertainty. For example, in the university context, it is arguable whether the expression of certain views constitutes putting forward new ideas in the form of controversial and unpopular opinions, or whether it amounts to vocal and active opposition to the UK’s fundamental values. The potentially conflicting duties on universities to promote free speech, whilst precluding the expression of extremist views, is likely to continue to cause confusion. (Paragraph 62).
6. We believe that free speech is precious, particularly in universities, and should not be undermined. (Paragraph 63).
7. If the Government wish to take further action in this area, it will have to ensure that there is legal certainty in what is proposed. (Paragraph 64).
Out of school settings
8. The need to safeguard children from neglect, physical harm and sexual abuse is well understood. But it is rather less clear how one can draw a line between religious freedom and requirements for safeguarding that genuinely protect children. While there may be some argument for safeguarding measures to be introduced in out-of-school settings, these should not be specifically aimed at religious activities, nor are we convinced that existing safeguarding measures are inadequate in this regard. Any new measures should be proportionate, focused, and should only apply where identifiable concerns about the safety or wellbeing of children and young persons have been raised within a particular institution. We do not support a regime of routine inspections of out-of-school settings. We are aware of the very grave concerns around Government proposals for a regime of compulsory registration. We reserve the right to return to this issue if and when we see detailed proposals from the Government. (Paragraph 74).
9. Moreover, the Government should listen with particular attention to those who would be expected to apply for and enforce these orders, such as the police, educational establishments and councils, and Muslim or other faith communities. (Paragraph 75).
Combating extremism by the way of civil orders
10. It appears that the Government has retreated from its original proposals for Banning Orders, Closure Orders and Extremism Disruption Orders. It is now making reference to what is described as a new “civil order regime”. The Government should not use civil orders (breach of which is a criminal offence) as a means to avoid having to make a criminal case to the requisite criminal standard of proof. This is particularly important in circumstances where the relevant behaviour which is prohibited is not a clear-cut criminal offence in its own right. (Paragraph 105).
11. The Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework. The Government has not been able to demonstrate that such a gap exists. We therefore take the view that the Government has not demonstrated a need for new legislation. The current counter-terrorism, public order and equality legislation form a comprehensive framework which deals appropriately with those who promote violence. There is a danger that any new legislation may prove counter-productive. (Paragraph 106).
12. The Government’s approach, set out in its Counter-Extremism Strategy, appears to be based on the assumption that there is an escalator that starts with religious conservatism and ends with support for jihadism; and that combating religious conservatism is therefore the starting point in the quest to tackle violence. However, it is by no means proven or agreed that conservative religious views are, in and of themselves, an indicator of, or even correlated with, support for jihadism.
13. The Government gave us no impression of having a coherent or sufficiently precise definition of either ‘non-violent extremism’ or ‘British values’. There needs to be certainty in the law so that those who are asked to comply with and enforce the law know what behaviour is and is not lawful. We are concerned that any legislation is likely either: (a) to focus on Muslim communities in a discriminatory fashion (which could actually increase suspicion and even opposition to the Prevent agenda); or (b) could be used indiscriminately against groups who espouse conservative religious views (including evangelical Christians, Orthodox Jews and others), who do not encourage any form of violence. (Paragraph 108).
14. The legal problems that we have considered are so fundamental that it will serve no purpose to have a further general consultation. If the Government wishes to take forward these proposals a draft Bill is required. A consultation which does not provide a clear legal definition of what is meant by extremism would be futile. Moreover, the different implications for different communities make this a particularly sensitive issue which requires a longer consultation than the standard 12 week period. [emphasis added] (Paragraph 109).”