First published on the Brett Wilson Crime, Fraud and Regulatory Law Blog on 1 August 2016
Racist and religiously-motivated attacks are sharply on the rise, we hear, and so the new government is taking action.
The Solicitor General Robert Buckland QC stated, “We need to ensure that victims of hate crimes are confident that these offences will be investigated and prosecuted,” after the New Home Secretary’s announcement that the Home Office would commit an extra £2 million to tackling the issue.
Mr Buckland also said that victims needed to be confident that they would be “properly supported throughout this process“. The Crown Prosecution Service had “a robust programme of work in response to all strands of hate crime, including updating all of its legal guidance over the next year“, he said. Ministers define hate crime as “any crime that is motivated by hostility on the grounds of race, religion, sexual orientation, disability or transgender identity“.
So far, so good. This is really just cracking down on what one might call a substantive crime, which was motivated by hostility towards the victim’s personal characteristics. It can hardly be controversial.
Where the government gets into more difficulty is in tackling what it says is the root cause of this intolerance – and here we encounter the umbrella term of ‘extremism’.
Establishing just what the word ‘extremist’ means has proved problematic.
This month, a Home Office spokeswoman said: “Extremism causes terrorism and broader social harms including hate crime, honour-based violence and discrimination. That is why we published a counter-extremism strategy which confronts all forms of extremist ideology head-on, supports mainstream voices, and builds stronger and more cohesive communities”
The government’s Anti-Extremism Bill, drafted as part of raft of measures following the murder of Lee Rigby in 2013, is currently under debate from the Joint Committee of Human Rights.
The Committee stated earlier this month that there is currently no useable legal definition for what ‘extremism’ actually is. It is therefore very difficult to say which organisations should banned, and whether, to be blunt, they would all just so happen to be groups identifying with Islam.
An attempt was made to define it in the Home Office December 2013 paper, ‘Tackling Extremism in the UK ‘. Islamic extremism is explained therein as follows:
“This is a distinct ideology which should not be confused with traditional religious practice. It is based on a distorted interpretation of Islam, which betrays Islam’s peaceful principles… Islamist extremists deem Western intervention in Muslim-majority countries as a ‘war on Islam’ creating a narrative of ‘them’ and ‘us’. They seek to impose a global Islamic State governed by their interpretation of Shari’ah as state law, rejecting liberal values such as democracy, the rule of law and equality. It also includes the uncompromising belief that people cannot be Muslim and British, and insists that those who do not agree with them are not true Muslims”.
The problem with that lengthy definition is that it fuses many different concepts. If, for example, you see Islam and Muslims as one global community and therefore view so-called ‘Western’ intervention through a ‘them’ and ‘us’ prism, does that make you an extremist? What if your actions and protests are entirely peaceful? Should expressing those views/organising peacefully be banned and criminalised?
If you support and try to observe the tenets of Shari’ah law, are you an extremist? What if you want to live in a State run under Shari’ah principles, which you might even refer to as a ‘Caliphate’? Does campaigning for that, entirely peacefully, constitute extremism? Should it banned and criminalised? If you believe in those things, then quite possibly you don’t regard people who follow UK democracy as true Muslims. Should expressing that view about them be banned, and criminalised?
How would criminalising this conflict with freedom of speech, and can the principle be applied equally across all religions? In other words, if a refusal to integrate and live amongst one’s own religious doctrine make you an extremist, would other religious groups also be criminalised?
Here, the Joint Committee on Human Rights’ report said that government proposals were based on an assumption that there was an “escalator” of radicalisation which began with religious conservatism and ended with support for violent jihadism, and that extremism could therefore be tackled by imposing restrictions on religious conservatives. Harriet Harman, chairwoman of the committee, said: “Would applying counter-extremism measures to specifically Islamic religious conservatism in the cause of tackling violence be acceptable discrimination or would it give rise to justified grievance? The most precious asset in the fight against terrorism is the relationship between the authorities and the Muslim communities of this country.”
Many have pointed out that Britain has always been a tolerant country. Cracking down on ‘hate crime’ is clear enough because the substantive ‘crimes’ themselves are settled in law, and it is simply the offender’s motivation which marks them out. But in terms of criminalising modes of thought by defining them as ‘extremist’, perhaps there is now a real danger of responding to intolerance with more intolerance.