The UK government has announced plans to bring in a new extremism bill in yet another attempt to strengthen its counter-terrorism powers. If enacted, the bill will join dozens of other pieces of legislation aimed in the same direction.
This latest addition to the already swollen terrorism statute book takes the UK further down a dangerous path, giving the government power to punish citizens even before they commit a crime.
It is hard to imagine that just 15 years ago, the UK did not have a single permanent piece of terrorism legislation. The threat of the IRA was handled with temporary provisions that were renewed each year, rather than with permanent measures.
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The government powers that have accumulated since then have a direct effect on the presumption of innocence – a fundamental legal principle. Most terrorism powers now essentially distribute punishment before someone has even been charged – let alone convicted of a terrorism offence.
The new extremism bill seems to be made up primarily of such administrative measures. It includes banning orders and employment checks aimed at enabling companies to look into whether a potential employee is considered an extremist. The UK does not currently have a working definition of extremism so there is no consensus on what activities, attitudes and beliefs could lead to someone to be labelled an extremist.
Significantly, the new bill includes the creation of extremism disruption orders. These would give the police powers to apply to the high court to limit the “harmful activities” of an extremist individual. Those activities might include the risk of public disorder, harassment, alarm, distress or creating “a threat to the functioning of democracy”.
This is particularly concerning due to its vagueness. What exactly is a threat to the functioning of democracy? Not voting, or encouraging people not to vote, as comedian Russell Brand did in the run up to the 2015 election undermine the democratic process – is that enough for Brand to be subject to such measures?
These powers, dubbed extremism ASBOs by some, were first proposed last March, but were vetoed by the Liberal Democrats. The idea is to “stop extremists promoting views and behaviour that undermine British values” but by criminalising belief and behaviour without the need for a trial, these powers mark another step towards making the UK a pre-crime society.
The age of pre-crime
More and more national security is concerned with prevention, and controlling behaviour that might lead to crime. Pre-crime is a term used by writer Philip K Dick in his 1956 short story The Minority Report. In this science-fiction classic, the police arrest people for crimes before they commit them with the help of psychic mutants capable of seeing the future.
In the real world, it refers to the calculation of risk and attempts to prevent future harm in the name of security. Most terrorist offences are examples of pre-crime as they have moved further away from the act of terrorism itself and include such things as facilitating, assisting and glorifying terrorism. The sheer number of government measures that affect the presumption of innocence in this area are a clear indication that we are living in a pre-crime society.
Temporary Prevention and Investigative Measures (TPIMs) are a good example. Punitive measures are applied to individuals before they stray into the realms of attempting to commit a crime. If a person is suspected of involvement with terrorism, they can be subjected to curfews, have their internet and phone use curtailed and even be forcibly moved to another city, away from their family and friends. The presumption of innocence is bypassed. They do not have the right to a trial or the right to silence. They are punished without having committed a crime.
Counter-extremism measures can also be used to exile suspects and even strip them of their citizenship through Temporary Exclusion Orders (TEOs). The proposed bill would enable the Home Secretary to take these measures when she has reasonable suspicion that someone outside the UK is involved in activities related to terrorism. The orders prevent these people from returning to the UK unless they are deported and can be imposed on anyone with right of abode in the UK, including British citizens. They effectively invalidate British passports – essentially banishing people from the UK.
These powers were brought specifically to deal with British citizens leaving for Syria. But banishing people to countries with a history of terrorism is likely to further exacerbate the problem of extremism.
TEOs leave British citizens stranded abroad in a period of enforced statelessness, with their own state washing its hands of any responsibility for their welfare. They are vulnerable to human rights abuses abroad, without any state protection.
So exile, one of the harshest punishment’s a state can inflict on a person, can be meted out without any presumption of innocence.
So long citizenship
All this fundamentally alters the relationship between the individual and the state. The state has a duty to protect its citizens. The duty to protect includes protection against the state’s own arbitrary power. That is why the rule of law is a key tenant of the relationship between states and citizens.
And the rule of law depends on the presumption of innocence. It is based on the maxim that no one can be punished or be made to suffer unless they have been convicted of breaking the law by a court of their peers.
By removing citizens from society, the state is ending its duties towards them. As counter-terrorism continues to rely on pre-crime measures that take place virtually outside the criminal justice system, it will result in an inversion of the rule of law, where guilt is presumed before innocence.