No new terror laws are now needed, the government’s independent reviewer of terrorism legislation believes. In the opening paragraphs of a paper he published nearly two weeks ago, Jonathan Hall KC got straight to the point:
My overall conclusion is that there is no need to legislate for any amendments to terrorism legislation now and good reason for caution.
It is difficult to identify any real situations where a gap in terrorism legislation means that terrorist mischief cannot currently be addressed by arrest and prosecution.
That was perhaps not the advice that James Cleverly, the home secretary, wanted to hear. Ministers had said they wanted to tighten the law on glorifying terrorism following the series of pro-Palestinian marches in London that began after Hamas terrorists massacred at least 1,200 people in Israel on 7 October.
Why, then, did Hall advise against it? That was what he was asked by two other specialist KCs — Tim Owen and Lord Macdonald of River Glaven — in episode 45 of their well regarded podcast, Double Jeopardy. It’s well worth a listen, either on Apple Podcasts or Spotify.
“There have been lots of marchers — and lots of marches,” said Hall. “And so there have been plenty of opportunities for gaps in the legislation to appear. And, actually, it’s quite hard to think of some real examples.”
What about marchers calling for jihad, Macdonald wanted to know. The police had said that demonstrators could not be arrested for using the word because it could mean spiritual journey as well as violent struggle.
“My view was that that use of jihad, in those circumstances, could only refer to violent conduct,” Hall replied. “And I couldn't understand for myself why the police appeared to take off the table the possibility of carrying out an arrest and investigation.”
Owen thought that shouting out the word jihad might not be covered by existing terrorism offences. But Hall suggested that, in certain circumstances, it could come within the definition of two existing crimes:
What about marchers who had chanted the slogan “from the river to the sea, Palestine will be free”? In the context of Hamas and its founding charter, Macdonald asked, wasn’t that a call for genocide? He thought it resonated with events in Eastern Europe during the Second World War, when he said Jews were sometimes pushed into marshes and left to drown.
On the other hand, the former director of public prosecutions had spoken to marchers who said they had not been talking about pushing Jews into the sea at all. They just wanted a single, free country containing Jews and Palestinians living together peacefully.
Hall said he was against criminalising a chant:
It’s not a tradition in this country to make it an offence to use certain forms of words. If it was, they’d soon find other ways of saying it.
There’s also a huge amount of ignorance. We know that people saying this phrase sometimes don't know what river they’re referring to. And I’d be very worried about people being criminalised, for serious offences, on the basis of ignorance.
But two things needed to be done, Hall concluded:
One is to make sure that the current law is being used effectively because, frankly, it takes quite a long time for legislation to get on the statute books and there is this terrible risk of unintended consequences.
And, secondly, that the public understand what law is actually at present so that you don’t have a sort of bidding war, where politicians might be tempted to say what we need is more law rather than just better use of the existing law.
More details of why Hall sees no nee for new laws can be found in his report.
SO sorry: a senior moment; in my earlier posting I slid out of public order into immigration issues- not that I take back a syllable on either count. Nonetheless, I apologise for my clumsiness.
Many thanks for this, Joshua.
If it cannot fight back, then make a new law about it. For all the turmoil involved in crashing illiberal provisions through Parliament, legislative flourishes are always cheaper and more headline catching than freeing up adequate resources to enable fairness and humanity to prevail. That would require the abandonment of the cynical and uncaring “philosophy” based on the avoidance of the “pull factor”.