Freedom of expression: rights groups voice unease as UK lawmakers target extremism and SLAPPs

Ruth Green, IBA Multimedia JournalistTuesday 16 April 2024

Freedom of expression is among the most important hallmarks of a democratic society. Yet, there’s growing unease in the UK that recent and proposed amendments by Parliament risk undermining free speech, exacerbating divisions in society, and generating hefty legal costs.

One such change came in March when Communities Secretary Michael Gove unveiled the government’s new definition of extremism in response to a surge in threats in the UK following the 7 October attack on Israel by Hamas.

The definition provoked widespread criticism from human rights groups, who warned it could have several adverse consequences. Akiko Hart, director of Liberty, said the ‘completely unworkable’ definition risked ‘sweeping up legitimate debates and differences of opinion’.

The Communities Secretary told the House of Commons the new definition would block funding to groups that ‘undermine democracy’. However, Jonathan Hall KC, the government's own independent reviewer of terrorism legislation and state threat legislation, also said the definition ‘could undermine the UK's reputation because it would not be seen as democratic’.

The government insists the new wording will strengthen its approach to counterterrorism, but not everyone agrees. ‘The government has described it as more precise, but it’s not precise to me’, says Dr Chris Allen, Associate Professor in Hate Studies at the School of Criminology, University of Leicester, who has spent more than two decades studying extremism in the UK.

It’s the identification of people as extremist by ministerial decree – that’s the most damaging part

Dr Chris Allen
Associate Professor, School of Criminology, University of Leicester

The updated wording defines extremism as ‘the promotion or advancement of an ideology based on violence, hatred or intolerance’, which either ‘aims to negate or destroy the fundamental rights and freedoms of others’, ‘undermine, overturn or replace the UK’s system of liberal parliamentary democracy and democratic rights’, or ‘intentionally create a permissive environment for others’ to achieve those results.

However, Allen is concerned the new definition is so broad it could be applied to anyone whose actions or beliefs don’t align with the government’s position. ‘It’s the identification of people as extremist by ministerial decree – that’s the most damaging part’, he says.

Michael Gove told the House of Commons the definition would not affect gender critical campaigners, trans activists or environmental protest groups, but did use parliamentary privilege to highlight the government’s concerns about a handful of organisations of an ‘Islamic orientation’ and two promoting a ‘Neo-Nazi ideology’.

The definition is not statutory and cannot be legally enforced, but groups that fall foul of it will be labelled as ‘extremist’ and prevented from meeting government officials and accessing government funding.

Allen says this means Gove’s naming of certain groups in Parliament could effectively designate them as extremist ‘by association’ even if they do not meet the definition’s criteria. There’s also the risk that organisations whose activities fall outside the definition could erroneously claim they have been ‘cleared’ by the government.

These concerns and the absence of any reference to Prevent – the government’s anti-radicalisation strategy – have created confusion around how the new definition will be adopted and applied, he says. ‘We don't really know what this definition is for. We don't know where it sits. What we do know is that the government's going to use it. For me, the evidence is there that it will be entirely weaponised. That's its sole purpose.’

Several Muslim groups identified by Gove in Parliament have already challenged him to name them publicly. Legal experts say the broadness of the new definition could leave it open to legal challenges, although these would likely prove prohibitively expensive.

There has been similar disquiet brewing over potential unintended consequences, including legal costs, of a private member’s bill that’s working its way through Parliament. The bill aims to expand legislation to tackle all types of Strategic Lawsuits Against Public Participation (SLAPPs) which are frequently used as an intimidation tool to silence public interest reporting.

Earlier this month a group of 60 editors, writers, publishers, lawyers and academics penned a letter to Justice Secretary Alex Chalk to stop the draft legislation from becoming ‘ineffective, inaccessible, and ultimately redundant’.

The letter, coordinated by the UK Anti-SLAPP Coalition and whose signatories include Baroness Helena Kennedy KC, Director of the International Bar Association’s Human Rights Institute, says the bill fails to address any deficiencies identified in the UK’s Economic Crime and Corporate Transparency Act 2023, on which the latest legislation is modelled.

The signatories propose to alter how the court determines if the legal action can be identified as a SLAPP from a subjective to an objective test. They argue this ‘small, but important amendment’ will ‘ensure courts and judges are able to make timely, consistent and evidence-based determinations of SLAPP cases before legal costs have accrued’.

Elizabeth Morley, Diversity and Inclusion Officer on the IBA Media Law Committee and a partner at Howard Kennedy, agrees the bill’s current onus on the courts to decide a claimant’s intention could create unnecessary legal costs, confusion for both parties and pose risks for free speech.

‘On the face of it, it might seem like a positive step in that the defendant wouldn't have to pay any of the costs of the claimant, but the court still has to reach the conclusion that the claim is a SLAPP’, says Morley. ‘Up until that point, the defendant doesn't yet know whether it'll be liable or not for the claimant’s costs because the claim hasn't yet been determined as a SLAPP. That in itself might be restrictive of free speech. The costs elements of the bill perhaps don't go far enough in favour of the protection of free speech.’

As the bill approaches the committee stage, Morley stresses how significant it is that legislation to tackle SLAPPs is finally being considered in England and Wales. The move follows the European Commission passing its own expansive anti-SLAPP Directive in February following widespread concern over the use of SLAPPs across Europe since the murder of Daphne Caruana Galizia in 2017.

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