Rumours of Far-right groups being “proscribed” by the Home Secretary

For the last few weeks there had been rumours circulating that the current Home Secretary intends to ban a small neo-Nazi group called “National Action”. This is the same repellent Amber Rudd of the spiteful personal attacks on Boris Johnson (when she was losing in the EU referendum debates).

Ms Rudd is said to be particularly anxious to ban a “Far-right” group or party, probably mainly out of the multi-culturalist, tokenist urge not to “profile” Islamists, but instead to balance proscriptions against their organisations with a diversity of political opinion and racial stereo-types!

Here is the Home Office Press announcement:-

National Action has today become the first extreme right-wing group to be proscribed as a terrorist organisation.

An order laid in Parliament on Monday (12 December) to proscribe National Action under the Terrorism Act 2000 has now come into effect following debates in the Houses of Parliament. As a result, being a member – or inviting support for – the organisation will be a criminal offence, carrying a sentence of up to 10 years’ imprisonment.

National Action is a neo-Nazi group that was established in 2013 and has branches across the UK. It has been proscribed following an assessment that it is ‘concerned in terrorism’. The group’s online propaganda material, disseminated via social media, frequently features extremely violent imagery and language. National Action also promoted and encouraged acts of terrorism after Jo Cox’s murder.

Home Secretary Amber Rudd said:

As Home Secretary, I am clear that the safety and security of our families, communities and country comes first.

National Action is a racist, antisemitic and homophobic organisation which stirs up hatred, glorifies violence and promotes a vile ideology. It has absolutely no place in a Britain that works for everyone.

Proscribing it will prevent its membership from growing, stop the spread of poisonous propaganda and protect vulnerable young people at risk of radicalisation from its toxic views.

Decisions about whether to proscribe a particular organisation are taken after extensive consideration and in light of a full assessment of available information. 

The Home Secretary took the decision to proscribe National Action prior to the trial of Thomas Mair, who was convicted and sentenced for the murder of Jo Cox MP. 

National Action becomes the 71st organisation to be proscribed, alongside 14 organisations connected to Northern Ireland. 
(All the rest of the proscribed groups look as if they are Islamists).

Here is a link 
https://www.gov.uk/government/news/national-action-becomes-first-extreme-right-wing-group-to-be-banned-in-uk

Now that such a ban has been ordered against “National Action”, the question might be what from a lawyer’s perspective could they do about it?

The ironic thing is that probably the main thing that they could do about it is take the case to the European Court of Human Rights. This is the Court which deals with the European Convention of Human Rights (and is not the EU Court, which is the European Court of Justice).

However the start point for any lawyer is of course the legislation which applies to the legal jurisdiction of England and Wales. The relevant legislation would appear to be the Terrorism Act 2000 (as amended).

Bearing in mind that terrorism was robustly and successfully dealt with relating to the IRA you might have thought (and be right) that there were more than sufficient crimes on the statute book to enable Islamist terrorists to be dealt with.

That of course is not the thought process of the current British Political Establishment which is often very much more concerned with appearance than the substance. So there has been constant tinkering with often trifling amendments to the legislation and Home Secretaries regularly conceal total failure to do anything useful by introducing a new bit of legislation, in the probably successful hope that that will enable them to bamboozle their Party colleagues and ill-informed journalists that something is being done!

In this case the Terrorism Act, even though only on the statute book in 2000, has already been tinkered with. But the current version of the relevant clauses are as follows:-

Terrorism Act 2000

2000 c. 11Part II Procedure Section 3

Proscription.

(1)For the purposes of this Act an organisation is proscribed if—

(a)it is listed in Schedule 2, or

(b)it operates under the same name as an organisation listed in that Schedule.

(2)Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.

(3)The Secretary of State may by order—

(a)add an organisation to Schedule 2;

(b)remove an organisation from that Schedule;

(c)amend that Schedule in some other way.

(4)The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.

(5)For the purposes of subsection (4) an organisation is concerned in terrorism if it—

(a)commits or participates in acts of terrorism,

(b)prepares for terrorism,

(c)promotes or encourages terrorism, or

(d)is otherwise concerned in terrorism.

[F1(5A)The cases in which an organisation promotes or encourages terrorism for the purposes of subsection (5)(c) include any case in which activities of the organisation—

(a)include the unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism; or

(b)are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification.

(5B)The glorification of any conduct is unlawful for the purposes of subsection (5A) if there are persons who may become aware of it who could reasonably be expected to infer that what is being glorified, is being glorified as—

(a)conduct that should be emulated in existing circumstances, or

(b)conduct that is illustrative of a type of conduct that should be so emulated.

(5C)In this section—
“glorification” includes any form of praise or celebration, and cognate expressions are to be construed accordingly;
“statement” includes a communication without words consisting of sounds or images or both.]

[F2(6)Where the Secretary of State believes—

(a)that an organisation listed in Schedule 2 is operating wholly or partly under a name that is not specified in that Schedule (whether as well as or instead of under the specified name), or

(b)that an organisation that is operating under a name that is not so specified is otherwise for all practical purposes the same as an organisation so listed,

he may, by order, provide that the name that is not specified in that Schedule is to be treated as another name for the listed organisation.

(7)Where an order under subsection (6) provides for a name to be treated as another name for an organisation, this Act shall have effect in relation to acts occurring while—

(a)the order is in force, and

(b)the organisation continues to be listed in Schedule 2,

as if the organisation were listed in that Schedule under the other name, as well as under the name specified in the Schedule.

(8)The Secretary of State may at any time by order revoke an order under subsection (6) or otherwise provide for a name specified in such an order to cease to be treated as a name for a particular organisation.

(9)Nothing in subsections (6) to (8) prevents any liability from being established in any proceedings by proof that an organisation is the same as an organisation listed in Schedule 2, even though it is or was operating under a name specified neither in Schedule 2 nor in an order under subsection (6).]

(Click here for the original >>> 
http://www.legislation.gov.uk/ukpga/2000/11/section/3)

This wording is worth studying. As is in particular this section:-

“(a)commits or participates in acts of terrorism,

(b)prepares for terrorism,

(c)promotes or encourages terrorism, or

(d)is otherwise concerned in terrorism.

[F1(5A)The cases in which an organisation promotes or encourages terrorism for the purposes of subsection (5)(c) include any case in which activities of the organisation—

(a)include the unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism; or

(b)are carried out in a manner that ensures that the organisation is associated with statements containing any such glorification.

(5B)The glorification of any conduct is unlawful for the purposes of subsection (5A) if there are persons who may become aware of it who could reasonably be expected to infer that what is being glorified, is being glorified as—

(a)conduct that should be emulated in existing circumstances, or

(b)conduct that is illustrative of a type of conduct that should be so emulated”

These words show that the behaviour of the group that Ms Rudd has proscribed would have to have fallen into these categories. If the group has not behaved in that way then she will not have the legal power even in English Law to ban the group and the group I would say should apply to the High Court for Permission to Judicially Review.

The Permission stage of Judicial Review is relatively cheap but they should use a member of their group as the spearhead of the Judicial Review who has no assets or income, save for Welfare Benefits, so that if there is a Costs Order it cannot be enforced. Such person should first be given a prominent sounding office within the organisation.

If the challenge is being mounted, as I said on the basis that the group’s behaviour does not properly qualify for a ban to be proscribed under the Terrorism Act, then it will be worth raising the European Convention of Human Rights position which is directly applicable to English Law through the Human Rights Act 1998. In any case it might also be worth making a direct application straightaway to the European Court of Humans Rights for breach of the group’s human rights as set out in the Convention. This should be done anyway if the Judicial Review Application is rejected because even if the proscription is legal under the Act that will not necessarily make it so under the Convention.

Let us therefore turn to the relevant articles of the European Convention of Human Rights whose full title is:-

The European Convention on Human Rights 

(signed in ROME on 4 November 1950)

The relevant Articles are:-

“ARTICLE 9

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”

“ARTICLE 10

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

“ARTICLE 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others, this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
(Here is a link to a source setting out the full Convention >>> http://www.hri.org/docs/ECHR50.html)

The way that Convention rights under the European Convention are interpreted by the European Court of Human Rights is that the general right at the beginning of each Article is subject only to the limited number of specified exceptions, as set out in the second part of the Article. 

So if Ms Rudd cannot bring the reason for her proscription within those exceptions then her action must be in breach of the European Convention of Human Rights and so illegal.

As you can see from the text that is likely to be difficult for her unless the “National Action” group has actually done something that would amount in common sense terms to terrorism, rather than the overly openly sweeping authoritarian and all-embracing provisions of the Terrorism Act 2000 (as amended)!

All in all and speaking not only as somebody who is interested in politics, but also as a lawyer with direct experience of Human Rights cases, I would say that the prospects of a successful challenge to any proscription of any group that has not really been terrorist would be very good. There is also no reason why bringing the challenge should be expensive for any such group.

If on the other hand the group in question has been involved in actions which are within the normal meaning of the words terrorist, then of course the chances of a successful case against the Home Secretary would be minimal, provided she has followed the correct procedure as laid down in the legislation.