The United Kingdom’s counterterrorism legislation is often the subject of public debate and criticism. What has not received enough attention is a structural flaw in the counterterrorism architecture: the lack of a mechanism for keeping the list of proscribed (banned) organizations up to date. Compounding this flaw are the obstacles for organizations that seek their own deproscription (removal from the list). The result is that, according to an independent review, at least 14 organizations currently on the list do not currently meet the legal criteria for listing.
Proscription has far-reaching consequences for fundamental rights, including impacts beyond the proscribed organization. In particular, U.K. legislation criminalizes many activities that would otherwise be legal solely on the basis that they relate to a proscribed organization. Maintaining an up-to-date list of proscribed organizations is accordingly not only a matter of national security but also a matter of protecting human rights.
Proscribed Terrorist Organizations in the U.K. and Northern Ireland
The list of proscribed organizations currently includes 75 organizations that are proscribed under the Terrorism Act 2000 and 14 organizations that are proscribed under earlier legislation related to Northern Ireland. Examples of the former are al-Qaeda, al-Shabaab, and the neo-Nazi group National Action. Examples of the latter are the Irish Republican Army, the Ulster Defence Association, and the Red Hand Commando.
The Home Secretary, a government minister, decides which organizations are added to the list. The central criterion is that the organization is considered to be “concerned in terrorism.” Specifically, “this means that the organisation: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism (including the unlawful glorification of terrorism); or is otherwise concerned in terrorism.” If this test is met, the Home Secretary must determine whether proscription would be proportionate considering, among other things, “the nature and scale of an organisation’s activities; the specific threat that it poses to the UK; the specific threat that it poses to British nationals overseas; the extent of the organisation’s presence in the UK; and the need to support other members of the international community in the global fight against terrorism.”
Once an organization has been added to the list, it is very difficult to be removed. An organization that wants to be removed must apply to the Home Secretary for deproscription. In theory this can be done by a simple letter from the organization or from a person affected by its proscription, which sets out the grounds for why the organization should be deproscribed. In the case of a refusal the applicant can appeal to the Proscribed Organisations Appeals Commission, which may allow an appeal if the original decision was flawed. The process is generally opaque and can be lengthy and complex.
Only four organizations have been deproscribed so far: the Peoples’ Mujaheddin of Iran in 2008; the International Sikh Youth Federation in 2016; Hezb-e Islami Gulbuddin in 2017; and the Libyan Islamic Fighting Group in 2019. The Red Hand Commando, a Northern Irish loyalist group, is known to have applied for deproscription in 2017, but failed in its attempt, apparently for procedural reasons that made the application invalid.
The Criminalizing Consequences of Proscription
Proscription has many consequences, which affect a wide range of basic human rights.
Activities that are criminal if they relate to a proscribed organization include: membership in the organization (or claiming to have membership); inviting support for the organization or expressing supportive opinions in certain circumstances; arranging a meeting with a speaker who belongs to a proscribed organization; wearing clothes or carrying for example a flag in circumstances that arouse reasonable suspicion that the person is a member or supporter of a proscribed organization; and publishing images of clothes or images of an article, such as a flag or logo, that arouse reasonable suspicion that the person is a member or supporter of the organization. The last category of publishing images includes posting a picture that has been taken in a private home on social media.
Training that benefits a proscribed organization, dissemination of publications relating to a proscribed organization, or acts such as arranging transportation for a proscribed organization are crimes. It is a crime to receive money or arrange funding for a proscribed organization, or to cover insurance losses for a proscribed organization.
Most of these crimes are punishable even when they take place outside the U.K. and can carry lengthy prison sentences. A foreign citizen who urges people to support a U.K.-proscribed organization that is not banned in the foreign citizen’s country can be tried and punished in the U.K.
Criminalization thus clearly impacts fundamental human rights, including freedom of expression.
Proscription Combined with Other Weaknesses in U.K. Legislation
The rights-related risks of keeping organizations that should not be proscribed on the government’s terrorist list are increased by other weaknesses in U.K. legislation.
For example, in 2019 the Counter-Terrorism and Border Security Act newly criminalized further activities related to proscribed organizations. During the legislative process, the proposed act drew strong criticisms from human rights advocates and international experts, who argued that it “[fell] short of the United Kingdom’s obligations under international human rights law.” This resulted in some improvements from a rights-protection perspective, such as clarifying that work as a journalist or undertaking academic research is a reasonable excuse for accessing information online that can be useful for terrorism.
However, problems remain. For example, the act criminalized the expression of an opinion or belief that is supportive of a proscribed organization if it is expressed in a way that is “reckless” as to whether it encourages another person to support a proscribed organization. Parliament’s own human rights committee found that this could arguably include an academic debate where participants speak in favor of removing organizations from the proscription list. In other words, by arguing against the government’s decision to place an organization on the proscribed list you could risk a lengthy prison sentence.
Proposals for Change
During parliamentary debates on the oft-criticized Counter-Terrorism and Border Security Act 2019, Lord Anderson, a former independent reviewer of terrorism legislation, proposed an amendment that would have required an annual review of the proscribed organizations. While acting as the government’s independent reviewer, Lord Anderson had found that at least 14 U.K. organizations did not meet the criteria for proscription and he was highly critical of continued proscription of such organizations. The government did not accept the proposed amendment, referring in particular to concerns about how an annual review could affect the situation in Northern Ireland, where the level of paramilitary activity is high and there is a need to take operational and other factors into account.
It is not clear how many of the organizations proscribed under the legislation relating to Northern Ireland fail to meet the criteria for proscription, but Lord Anderson has highlighted the case of Cumann na mBan, an Irish women’s organization, which is proscribed despite no evidence of it being concerned with terrorism for many years.
The current independent reviewer of terrorism legislation, Jonathan Hall QC, published his first annual report in March this year. In the report Hall considers what he calls the “footprint” of proscription, stating that it extends well beyond criminal liability and beyond the proscribed group, and finds that there is little excuse for not keeping the proscription list up to date. He responds to the government’s concerns about the potential impacts of deproscription on the peace process in Northern Ireland. Noting that “the rule of law applies as much in Northern Ireland as elsewhere,” Hall suggests that if the historic involvement of proscribed groups in terrorist activity means that deproscription can never be countenanced the wording “is concerned in terrorism,” the basis for proscription, could be changed to “is or has been concerned in terrorism.” Hall also considers other challenges related to Northern Ireland, such as the blurring of boundaries between terrorism and other criminal activity, and the frequent display of flags of currently proscribed organizations without any legal consequences.
Hall’s main recommendation is that proscription of organizations should automatically lapse after a set period, such as three years, unless extended. He makes a strong case. He does not believe that the possibility of applying for deproscription is an adequate response, he finds that the risk of outcomes that could have a negative impact on the peace process in Northern Ireland is not a sufficient reason to maintain the status quo, and he finds that the need for additional operational resources to review proscribed groups should not be overstated.
Especially given the concerns for fundamental human rights that proscription raises, it is time to take up Hall’s recommendation and stop banning organizations in the U.K. that do not meet the legal requirements for proscription.
Image: Michael D. Beckwith