In conversation with Max Hill QC, the Independent Reviewer of Terrorism Legislation, Michael Todd QC reports

Law Reform Committee

  • Moderator Peter Carter QC, Law Reform Committee of the Bar Council, Doughty Street Chambers
  • Speakers Max Hill QC, the Independent Reviewer of Terrorism Legislation, Red Lion Chambers

A baptism of fire? Just three weeks after Max Hill QC, on 1 March 2017, took up his role as Independent Reviewer of Terrorism Legislation, the UK suffered yet another terrorist attack. This time it was at Westminster Bridge, in London, on 22 March 1917. That was no isolated incident.

In just the last seven months, since 22 March 2017, there have been further terrorist atrocities at Manchester Arena, London Bridge, Borough Market and Finsbury Park Mosque. Those were followed by a serious attempted attack at Parsons Green in September.

Reactions to such attacks are many and varied, from extreme to mild. Theresa May’s reaction, in June 2017, was that ‘enough is enough’. Her response was more measured than that of the US President Trump’s more immediate and extreme tweets. A review of the government’s ‘counter-extremism strategy’, available legislation and the courts’ sentencing powers is in prospect. A recognition, perhaps, that life and the law are full of compromises; the compromises between rights and obligations, and between rights and restrictions.

Nowhere is that balance more sharply in focus than in the government’s response to terrorism, and nowhere must that response be more nuanced.

In the fight against terrorism, according to Max Hill QC, in his ‘Tom Sargant Memorial Lecture for JUSTICE’ given on 24 October 2017, ‘the challenge engaged is the extent to which legislation in the interests of national security impinges upon rights which we hold to be fundamental.’ The thesis of Hill’s lecture was that further legislation is not required. We have adequate, if not a surfeit of, legislation dealing with violent extremism in our existing criminal legislation. The offences are all tried and tested. The real issue is what we should do about ‘hate speech’.

The opportunity to hear Hill, further, in conversation with Peter Carter QC of the Law Reform Committee of the Bar Council was an opportunity not to be missed. He said that in the performance of his role, ‘there is no question that cannot be asked, and there is nowhere he cannot go’. Emphasising that part of his role was to consider the impact that terrorism legislation has on different communities, he explained what he saw as the need for community engagement in informing any understanding of that impact. But he was adamant; contrary to some recent press coverage, ‘engagement is not endorsement’.

He has not suggested that Parliament should sweep away the existing terrorism legislation, but says that it must constantly be reviewed to see if any parts of it are unnecessary, so as to ensure that it is fit for purpose and to avoid confusion amongst different communities.

‘Hate speech’ is just one such area. Do we need more legislation in that area to protect society from the effects of so-called ‘hate preachers’? Hill thinks not.

We have long had the benefit of s 4, Offences Against the Person Act 1861, to protect us against those who ‘solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person, to murder any other person’.

In addition, we now have s 12 of the Terrorism Act 2000, to protect society from those who invite support for a proscribed organisation, those who arrange, manage or assist in arranging or managing a meeting which they know is to support a proscribed organisation, to further the activities of a proscribed organisation, or to be addressed by a person who belongs or professes to belong to a proscribed organisation. It also criminalises the act of addressing a meeting where the purpose of that address is to encourage support for a proscribed organisation or to further its activities.

Is s 12 of the 2000 Act necessary in light of s 4 of the 1861 Act? Hill thinks it is. It plays a necessary part in criminalising the person who provides the trigger for terrorism. In so doing, it plugs the gaps left by the 1861 Act, in circumstances where solicitation to commit murder cannot be made out. It is also more nuanced. It focuses on the trigger for the terrorist act.

Necessary though such legislation is, Hill warns that we should not be looking for a legislative sledgehammer to rid us of terrorism, as that could deny us the very freedoms we enjoy. 

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Michael Todd QC

Chairman of the Counsel Editorial Board and Head of Erskine Chambers