legal uncertainty
and counter-terrorism

The preceding article looked at the principle of legal certainty, which stipulates that laws should be clear and intelligible, requiring a minimum of discretion in applying in them.

Legal certainty is a key element of an ideal that, in Britain and jurisdictions influenced by the British model, such as Australia and Canada, has become known as the rule of law.

As noted, most nations have tried to identify themselves with the rule of law, or some equivalent of it. Yet when states become desperate, for political or financial reasons, there is a tendency for observance of the principle to be eroded.

In the past this has sometimes been achieved by subtly deprecating the principle in favour of other ethical ideals, such as ‘common good’ or ‘social justice’. Or alternatively, by redefining the concept to de-emphasise legal certainty in favour of other things, while maintaining it is still the same principle.

Germany, for example, has had an analogue of the rule of law since the nineteenth century: the Rechtsstaat. This encompasses very similar ideas to rule of law, including legal certainty.

Under the Nazis, legal certainty for the individual was largely surrendered in favour of the potential for exercising power on a case-by-case basis. Nevertheless, legal philosophy was not simply abandoned in Germany but was used to provide changes in the legal system with intellectual support. Some writers denigrated rule-based law in favour of invoking the instincts of the ‘Volk’. Others tried to change the meaning of Rechtsstaat so that respect for ‘the law’ could still be held out as important, but with a more flexible concept of ‘law’.

A new attitude

The major terrorist incidents experienced during the Noughties, in particular 9/11 and 7/7, led to governments around the world introducing additional legislation, ostensibly designed to assist the prevention of future attacks. This additional legislation may or may not have achieved what it was designed to do; it is difficult to judge from the data whether more attacks would have occurred without it. What is clear is that much of it violated long-standing principles protecting individuals from excessive state powers.

Legal certainty was one such principle. With the threat of terrorism as would-be justification, attitudes towards legal certainty began to shift, or perhaps to shift more rapidly. It began to be treated as just one more consideration, to be given no more weight than other competing factors. With regard to retrospective legislation, for example — perhaps the most obvious violation of legal certainty — the UK government described its position in 2002 as being to

balance the conflicting public interests, and to consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest.

“Encouraging” terrorism

The speech law contained in the Terrorism Act 2006 provides a prime example of legislation which violates legal certainty, and which generates potential confusion about what constitutes a crime:

A person commits an offence if—
(a) he publishes a statement [and]
(b) at the time he publishes it [he]
(i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or
(ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.

For the purposes of this section, the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism include every statement which—
(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and
(b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.

The above wording (emphasis mine) makes use of a number of nebulous concepts, including:
• “encouraged”
• “indirectly encouraged”
• “otherwise induced”
• “glorifying”, and
• “reasonably be expected to infer”.

Note the use of the word “include”, indicating that “glorification” is not the only possible form of criminal encouragement of terrorism, without the legislation giving any further clues.

Unless police and judges use their discretion in a sensible way, it seems a very wide range of statements — e.g. a journalist sounding over-enthusiastic about the French Revolution — could be caught by this. Laws should not have to depend on the discretion of others in that way.

“Terrorism”

The current legal meaning of terrorism, which impacts a number of provisions, including the above ‘encouragement’ legislation and a variety of police powers, is arguably fuzzy to begin with, and not confined to acts of violence. This is partly the result of a very broad definition in Section 1 of the Terrorism Act 2000, which includes as terrorism

the use or threat of action
[...] designed to influence the government
[and] made for the purpose of advancing a political, religious or ideological cause
[and which] creates a serious risk to the health or safety of the public or a section of the public

The “action” here need not necessarily involve violence.

David Anderson QC, the Independent Reviewer of Terrorism Legislation, suggested in his 2014 report that the publication of a blog post which argues (on political or religious grounds) against the vaccination of children might be classed as terrorism, if it was held to create “a serious risk to the health or safety of the public or a section of the public” and was designed to influence government policy.

The recent court cases concerning the David Miranda incident explored the interpretation of Section 1 of the Terrorism Act 2000 but certainly did not eliminate the concerns. In the Court of Appeal, Lord Dyson MR addressed the issue of whether publication could ever constitute a terrorist action, and concluded that it could, provided the relevant conditions — including potential risk to the public or a section of the public, and intent or recklessness — were present.

Lord Dyson went on to comment on the hypothetical case of the vaccination blogger (italics mine):

On the interpretation which I would adopt, such a blogger would not be a terrorist even if his blog were judged to create a serious risk to public health, unless he intends his publication to create the risk (or is reckless as to whether his blog will have that effect).

The opinion that it would not be regarded as terrorism provided neither intent nor recklessness was present is hardly reassuring. If the blogger’s mental state about the potential health risks were considered unclear, the authorities might be under an obligation to investigate the matter. We have to conclude that our hypothetical blogger is at risk of being prosecuted, even if nothing he says could be taken as incitement to violence.

Our blogger appears to be at risk but there seems little certainty here. If the law were clear, one could adjust one’s behaviour accordingly, or argue that the law needed to be changed. Uncertainty means that debate is likely to be stifled, and that the state has arbitrary powers.

The fact that overly broad and ill-defined anti-terrorist legislation seems so far not to have generated obvious injustices, and that the implied discretionary powers appear so far not to have been significantly abused, provides relatively little comfort. Under a different set of socio-economic conditions, or with a different political party in power, we could quickly discover that the potential for abuse is not merely academic.

“Extremism”

The overall effect of the Blair era on legal certainty — and hence on the rule of law — appears to have been negative. The trend in favour of violating safeguards against state power has not been notably reversed under subsequent governments. Loosely worded terrorism legislation brought in under Labour has not been repealed, though some of the more onerous provisions were removed in 2012.

We could be in for more legal uncertainty, if the current administration produces its threatened Counter-Extremism Bill, intended to ban “political and religious extremism that leads to harmful activity or behaviour”.

This policy was launched under the premiership of David Cameron, whose speech to the National Security Council in May 2015 does not make comfortable reading for fans of the rule of law.

For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone [...]

This government will conclusively turn the page on this failed approach.

In another speech two months later, Cameron attacked “non-violent extremists”, saying the government would stop them “peddling their hatred”. This objective seems absurdly broad and vague. Would government-appointed officers have to decide what constitutes hatred? Would it include the contempt and disgust evinced by some journalists towards people who voted for Brexit? If not, how would it be determined what is acceptable hatred and what not?

The would-be Bill may be aimed primarily at obvious incitements to commit violent acts. The government’s associated strategy document gives the example of a website proclaiming:

If you fancy smashing Antifascist vermin with bricks, join the white gang and contact us.

as one of the things it wants to stop. But incitement to violence is already a crime under existing non-terrorist legislation.

The document is somewhat coy about defining what other kinds of extremism are to be targeted. Some of its paragraphs hint at correlations between deviating from societal norms and possible “harmful behaviour”, without going into specifics.

Across the country there is evidence of extremists, driven by ideology, promoting or justifying actions which run directly contrary to our shared values. This causes harm to society in general [...]

Extremist ideologies can also encourage individuals and groups to live separate lives, to distance themselves from society, institutions and shared values. This isolation can cause alternative values, structures and authorities to gain prominence, which permits a range of harmful behaviour to occur.

There seems to be a suggestion that unusual behaviour — other than the currently protected forms of it — should be restricted, because it correlates with eventual criminality. Even if there were such a correlation, once we start attempting to curtail behaviour because of a correlation we are engaging in pre-crime punishment.

In trying to prohibit more and more activities with a supposed link to violence, we are moving further away from what is to be prevented, and closer to simply banning certain viewpoints, or at least shutting down unbiased debate and analysis. Apart from the question of whether it is ever acceptable for the state to prohibit speech, limiting legislation to particular kinds of speech is notoriously difficult.

How would extremism be defined, to cover only speech that is intended to lead to violence? The strategy document says extremism is “the vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs” (my italics). According to Karen Bradley, the former Minister for Preventing Abuse, Exploitation and Crime (an office that also covered extremism), the “public promotion of an ideology that can lead to greater harms is what I see as extremism.” This all sounds extremely fuzzy.

However the impending Bill is worded, it seems unlikely that expressions of controversial views that are clearly not intended to lead to violent behaviour would be unequivocally in the clear. It therefore seems probable that any such legislation would have a stifling effect on debate, for topics that are already suffering under the weight of over-politicisation. The less clear the legislation, the more likely that is.

Uncertainty as an objective

Legal certainty is likely to be one of the victims of any Counter-Extremism Act that gets onto the statute books. It will be ironic if legislation that criminalises opposition to the rule of law itself falls foul of it.

It may of course be that legal uncertainty is not merely an accidental by-product, but an objective for the state. It appears that tax legislation, for example, is now being drafted with this point in mind. In 2012, the head of business tax at Revenue & Customs said about an incoming anti-avoidance law — a rather opaquely worded piece of legislation — that it will “create an additional level of uncertainty for the promoters and users of [anti-avoidance] schemes. I believe that will be a deterrent”.

Using legal uncertainty as a tool may seem an attractive way of discouraging unwanted behaviour, for legislators who are prepared to break with the rule of law.

Eroding the rule of law

Wikipedia tells us that in the UK and other European countries, legal certainty is “a fundamental quality of the legal system and a guiding requirement for the rule of law”. A cynic might argue that this requirement is increasingly being honoured in its breach rather than in its observance. France, for example, now has a law against “apologising” for terrorism which was inserted into the penal code in 2014, and which appears to be open to loose interpretation.

Clearly, some European nations are having to deal with an escalation of organised ideology-inspired violence. Some of this violence is implicitly opposed to free speech. Introducing yet more speech legislation is surely not the way to tackle it.

Views that are considered extreme at one time may become mainstream a generation or two later, and vice versa. Are we arrogant enough to believe that the current mainstream viewpoint is so obviously correct that it should be preserved against alternatives which deviate too far from it?

We should think long and hard before permitting government to go beyond direct protection from violence, into the realm of deciding which viewpoints and lifestyles are conducive to generating social harmony. If we go down that road, the difficulties of ensuring legal certainty will mean the state has arbitrary powers. Since one can never be certain such powers will not be abused, this would restrict liberty in general, and free speech in particular, still further.

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© Fabian Tassano

published 3 February 2017

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