September marks three anniversaries: it is fifteen years since the 9/11 attacks, it is one year since the so-called ‘prevent’ duty became law, and it is seventy-two years since the University of Chicago Press published The Road to Serfdom by Friedrich August Hayek (The Collected Works of FA Hayek, vol 2, Bruce Caldwell, ed (University of Chicago Press, 2007)).
The prevention of terrorism remains an important part of government policy, as it has done for a long time, even before 9/11. But the adequacy of that policy remains questionable. Meanwhile, Hayek’s book explores, insightfully, the reasons why a totalitarian regime, like Hitler’s Germany or Stalin’s Russia, could come into existence. One of the many powerful messages it contains is that fascist states do not arise only because bad men assume power; the seeds are lain also when good men overburden the state through well-intentioned planning: the result is to supply too much arbitrary power to too few people.
Section 26 of the Counter-Terrorism and Security Act 2015 and Schedule 7 of the Terrorism Act 2000 speak to this concern. Section 26 places a duty on ‘specified authorities’, including universities, ‘to have due regard to the need to prevent people from being drawn into terrorism’. These authorities must follow the guidance issued by the Home Office on how to carry out that duty (s 29).
The Guidance sets out three strategic aims: to ‘respond’ to the ideological challenge of terrorism, to prevent people being drawn into terrorism and to work with sectors where radicalisation is a risk. Compliance is overseen by the Home Office (section 32), which may issue a mandatory order should any authority fail in its duty (section 33). This duty is said to be subject to the need, by the ‘specified authority’ to have ‘particular regard for’ freedom of speech (section 31). Schedule 7 enables border agencies, amongst other things, to detain individuals for a period of up to nine hours to determine if they are involved in terrorism.
These powers are so broad that they present issues about the extent to which the state can ensure that they are not misused in order to intrude upon individual rights. The prevent duty – and other measures like it – are not so much a slippery slope as one long descent into darkness. They are the sort of measures on which fascism is built. The problem, though, is not simply that these powers exist but that the public has been inculcated to believe that these powers are right and good.
Take a recent example of Schedule 7 in operation, reported by the Independent. A British woman travelling back from Turkey was detained by police on leaving the airport: a flight attendant had reported her for reading the award-winning book Syria Speaks: Art and Culture from the Frontline. This book is a collection of essays, short stories, poems, cartoons and photographs depicting the Syrian conflict.
My interest is less in the story itself and more in the reaction to it. The comments section for the online story reveals a surprisingly mixed reaction in which (too) many readers laud the actions of the ‘diligent’ flight attendant. For all we know, the argument goes, this woman – or someone else reading the book – could be a terrorist. Several noted that the detention was ‘only’ 15 minutes long and that, ‘being a Muslim’, the woman should just accept this sort of suspicion is ‘inevitable’. One commentator noted that he had had a similar experience when he returned from backpacking in Mexico: being ‘scruffy and bearded’ he ‘understood’ why he was under suspicion: ‘I fit a certain profile’. But ‘life went on’. Another chastised the Independent for, in effect, irresponsible journalism: by undermining this sort of vigilance, the newspaper would be to blame for the next atrocity.
What I find most bizarre about this sort of hysteria and dismissiveness is the sheer naivety it demonstrates: that the way to end radicalisation is to subject particular groups of people (those of ‘a certain profile’) to constant suspicion and to permit – and even demand – that state forces detain them to ascertain the strength of their political and religious ideology. Is it so hard to see that it is this sort of alienation that will breed hatred?
But, in these dark Brexit times of intuitionism and anti-intellectualism, this sort of ‘bleeding-heart liberalism’ will fall on fallow ground. As the reactionary comments to the Independent story shows, reasoning like this just does not resonate with people. As Hayek said in 1944, we are no longer a nation built on liberalism: collectivism at the expense of individualism is our goal (p171-180).
What I find fascinating in this perpetual ‘War on Terror’ is that the solution should be so narrowly focused on the identification of a person’s ideology. The ‘prevent’ duty is particularly concerning in this regard. That I, as an academic, should be thought capable of identifying someone vulnerable to radicalisation from their behaviour in class strikes me as bizarre. Should I report a student for his or her sympathetic attitudes toward the ultra-conservative Wahhabi interpretation of Islam? It is to find someone culpable – or worthy of state detention – for their thoughts alone.
But here is the problem with the prevent duty: it affords too much arbitrary power to institutions and individuals ill-equipped to know how to use it (regardless of how much ‘training’ they receive). It champions over-cautious and zealous attitudes. Better safe than sorry! Clearly, these measures are thought necessary because the state cannot identify likely terrorists sufficiently well to avert death and destruction. The strategy is, therefore, over-inclusive in to prevent disaster at the expense of inconvenience and offence.
But let us be clear, whereas these sorts of measures might be acceptable in a state of emergency, the ‘War on Terror’ has been operative for so long that there are now adults who cannot recall anything but such a state. The deleterious effect this has on attitudes toward individualism is obvious. Hayek again: ‘it is sensible temporarily to sacrifice freedom in order to make it more secure in the future; but the same cannot be said for a system proposed to be a permanent arrangement’(p 213
The prevent duty exposes, at least to my mind, a particular difficulty with the definition of terrorism which is defined, in the Terrorism Act 2000, through some unhelpful prolixity, in more or less the same terms as the Oxford English Dictionary: the unlawful use of violence or intimidation, especially against civilians, in the pursuit of political aims.
Now consider these statements: ‘time to start killing these people till Article 50 is invoked, perhaps Remainers will get the message then’ and ‘Not threatening anyone, no need for threats just a bullet’. These threats were sent by UKIP counsellor, Terence Nathan, who later dismissed his comments as ‘obviously’ just a joke: ‘I thought it was so extreme as to be obviously daft’. Following the murder of pro-Remain MP, Jo Cox, at the hands of a far-right devotee, it is the sort of joke that perhaps only Hitler, Stalin and Pol Pot would have appreciated.
But, according to the Terrorism Act, Terence Nathan is advocating terrorism. He is proselytising radicalism. If universities are to take their prevent duties seriously, he should not be welcome to speak on campus. But surely this would be a terrible interference with freedom of speech. Nathan deserves to be pilloried but he must not be martyred.
The threat to freedom of thought and freedom of speech may not be thought too serious. It is a right that many seem to think easily expendable when the spectre of national security is raised. The argument might go that I should value life more than books and learning or the right to express an offence opinion. Or it might be thought that freedom of speech and freedom of thought suffers no losses because all that is outlawed is hate.
I find all of this troubling because the object of the prevent duty is not on identifying the right sort of qualities that identifies would-be committers of death and destruction. By attributing political and religious motive to the crime, the state dignifies the act of terrorism as something more worthy of attention and more noble than what it is. Political and religious ideologies are an excuse. Those that commit such atrocities, especially those in the name of Daesh, are not freedom-fighters: they do not want to revolutionise; they do not want to overcome tyranny or corruption; they do not want to liberate: they simply want to destroy. They are mass-murderers and serial killers who lack empathy.
I doubt that universities – or any other public sector authority – are capable of identifying psychopaths before they strike. This is what is most distressing about the prevent duty – and other arbitrary powers like it: that, for all we know about the human condition, we should think this is the best solution to the phenomena of psychopathic behaviour.
It is not simply that the prevent duty is too high a price to pay for safety, although undoubtedly it is a high price, it is that it is not a solution. Unless permanent incarceration follows (and habeas corpus dispensed with), if an individual has been radicalised, or is on the path to being so, then state intervention, through monitoring, police interview, etc, is not going to prevent anything. If an individual desires to achieve their ends (mass murder) then they will. But, importantly, at the point of intervention, the scheme assumes that the individual has not yet decided but is on their way to doing so. How then is the coercive force of state intervention, or, just as insidious, communal suspicion, help dissuade the would-be extremist from the logical progression of their thoughts? Does it not strengthen their feeling of isolation to isolate them further?
The prevent duty is naked fascism. That it is not more readily perceived as such must be the sheer arrogance of the British people to assume the power will be reserved only for the right sort of people, ie, not us but them. It is a sad indictment of the toxicity that Brexit has produced, and which Donald Trump’s presidential candidacy has excited over here as well as America, that this sort of anti-liberalism raises not complaint but cheer.
Dr Paul Wragg, Associate Professor of Law, University of Leeds, Associate Fellow, Inner Temple, Editor-in-Chief of Communications Law (Bloomsbury Press)
This post will be published in the September edition of Communications Law. Article submissions (of 7,000 to 10,000 words) are welcomed for the December edition. Copy deadline, 17 September. Contact Paul Wragg, email@example.com, for further details.