Downing Street’s plan to ban the glorification of terrorism risks criminalising “supporters of the suffragettes, Nelson Mandela or even the crowd at Murrayfield singing Flower of Scotland”, a former independent reviewer of terror legislation has warned.
A series of proposals have been put forward by No 10 in the wake of the Armistice Day protests, in which members of far-right organisations attacked police officers and some pro-Palestinian marchers carried anti-Semitic placards.
Law changes being considered by the government in response to Saturday’s scenes will reportedly include tightening the law on glorifying terrorists such as the Hamas gunmen who killed 1,200 people in Israel and took more than 200 hostage on 7 October.
A ban on glorifying terrorism was introduced after suicide bombers killed 52 people in London in 2005, but it was narrowly defined as statements that “indirectly encourage the commission or preparation of terrorist acts”.
David Anderson KC, who was the independent reviewer of terrorism legislation between 2011 and 2017, said efforts to widen the scope of the law could have unintended consequences because terrorism is defined on the statute books without historical or geographical boundaries.
Lord Anderson said: “Some of the proposed changes will undoubtedly be controversial, particularly in the House of Lords – but the Commons is likely to have the final say.
“The ban on glorifying terrorism was introduced after the 7/7 attacks in London, but was watered down during parliamentary debates so that it only applies where people could reasonably infer that there is an encouragement to emulate the behaviour being glorified.
“Because terrorism is defined without geographical or historical limits, it was pointed out that a straightforward prohibition on glorification could have criminalised supporters of the suffragettes, Nelson Mandela or even the crowd at Murrayfield [rugby stadium, Edinburgh] singing [the anthem] Flower of Scotland.
“While no one is suggesting that these people would actually be prosecuted, it is dangerous in principle to legislate for offences that are far broader than the conduct they are actually aimed at. We will have to see if the government can find the solution that eluded Tony Blair.
Lord Carlile, who was the independent reviewer of terrorism legislation at the time of the 2006 Terrorism Act, said the current police powers relating to hate speech and glorification of terrorism were sufficient and that the government in its “parlous state” would struggle to get changes through the House of Lords.
He said: “I think a change in the law would be done on the basis of ‘something has to be done’ to try to meet a perceived need.”
He added that it was up to the police to know the law. “There are a number of things on these marches that may well require a response,” he said. “For example, if people are singing ‘from the river to the sea’. I would be surprised if they did not know, having decided to go on the march, that what they were singing was an old trope, which is about driving the Jews out of Israel from the river to the sea, the Mediterranean. And so in certain circumstances, depending on the level of aggression, I think people should be prosecuted for hate speech”.
The current independent reviewer of terrorism legislation is understood to share Anderson’s concerns. Ministers are likely to be lobbied to maintain a narrow definition when it comes to prohibiting the glorification of terrorism.
One solution would be to amend Section 13 of the Terrorism Act 2006, which prohibits wearing clothing or carrying or displaying objects “in public in such a way or in such circumstances as to give rise to reasonable suspicion that a person is a member or supporter of the proscribed organisation”.
Ministers would widen the definition of “supporter” to include those who glorify a specific act of terrorism by a proscribed group. The solution is unlikely to satisfy some on the government backbenches, including former home secretary Suella Braverman, and raises the potential for a major row within the Conservative party as well as with rights campaigners.
Other government proposals include amending Section 13 of the Public Order Act, which was used by Sir Mark Rowley, the Metropolitan Police Commissioner, to urge him to ban Saturday’s pro-Palestinian march.
Under Section 13 of the Public Order Act 1986, a chief constable can apply to the Home Secretary to ban a public procession to prevent serious public disorder if the imposition of conditions on the procession is not sufficient.
John Woodcock, a former Labour MP who will be ennobled as Lord Walney in 2020, has been reviewing the law in his role as the government’s independent adviser on political violence and disorder.
He has been looking at the threshold for banning marches and is expected to support an amendment that takes into account the wider impact that marches can have on ‘public safety’, although there will be concerns that a broad definition will overly restrict the right to free speech.