On Monday 11 March, the government announced that it had updated its definition of ‘extremism’, specifically stating that this is in response to ‘increased extremist threat since the October 7th attacks in Israel’. This definition will apply across government’s funding of and interaction with third parties under its new engagement principles.
The definition of extremism reads:
Extremism is the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to:
- negate or destroy the fundamental rights and freedoms of others; or
- 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 the results in (1) or (2).
This does not mean a change to the law and the definition is not statutory. It applies to government’s engagement with organisations (such as charities and civil society organisations) and individuals outside of government.
So what does this mean for NGOs and civil society organisations?
The government will use this updated definition as part of cross-government determinations about which organisations it should not work with or fund, in order to ‘make sure that extremist organisations and individuals are not being legitimised or given a platform through their interactions with government’.
This definition will apply to the government’s funding of and interaction with third parties under its new engagement principles. The government’s engagement principles set out the basis on which UK government (across its officials and ministerial departments) should engage with third parties outside of government. These include 3 standards which are intended to ‘provide a framework to guide officials in weighing up the benefits and risks to make a decision on whether to undertake engagement or provide funding’.
The three standards apply to the following types of engagement with individuals, organisations or groups:
- Ministerial engagement with individuals, organisations and groups outside of the UK government.
- Civil Service engagement with individuals, organisations and groups outside the UK government.
- UK government grants.
- Appointments to UK government advisory bodies and groups.
The government has indicated that it may expand the situations in which the engagement standards apply. There are a number of forms of engagement to which the standards expressly do not apply, such as trade, UK government contracts (as opposed to grants) and situations where there is a legal duty to undertake engagement.
Standard 1 is the new ‘extremism’ concept, and will be used as follows:
- The Secretary of State for Levelling up, Housing and Communities (currently Rt Hon Michael Gove) will shortly publish a list of organisations and groups which, in his opinion, meet the new definition of extremism / standard 1.
- Government departments and officials must then consult the published list for any organisation they are proposing to engage with. They must take any group’s inclusion on this list ‘into account’ when deciding whether or not to engage.
- Presently, no other checks against Standard 1 should be carried out by government departments or officials – if an organisation is not on the list then it is held not to contravene the extremism standard.
The definition is not statutory and does not amend or supplement existing criminal law relating to, e.g. terrorism and hate crimes. Alongside the new definition, the government have established within the Department for Levelling Up, Housing and Communities a new counter extremism centre of excellence.
These measures are stated to be part of the government’s tougher approach to countering extremism in the UK referring in the official press release launching the new extremism definition to the significant rise in antisemitic and Islamophobic incidents in the UK following October 7th.
A number of concerns have been raised about the new definition. These include the definition appearing to have been brought in without any of the normal consultation processes, the vagueness of its wording meaning there is a danger of it being applied unfairly, the lack of transparency over the process by which a group may be included on the list or removed from the list, and there being no appeal body, meaning that named organisations might have to resort to costly legal challenges to remove themselves.
Questions have been raised about the impact of being named on the published list, and the way in which the list may be used for political purposes, particularly in the run up to a general election. There is also apprehension within civil society about the impact on freedom of speech and the right to protest and how this definition risks disproportionately targeting Muslim communities. A number of third sector organisations have referenced potential legal action over the new approach and definition.
It is not clear to what extent the impact of being named on the list will extend to the wider public sector, the private sector or to regulatory expectations – for example, the extent to which local authorities and universities will apply the engagement principles, or whether the Charity Commission would expect a charity not to provide grant funding to an organisation named on the government’s list (in spite of its apparently limited scope to only government engagement with third parties). Key funders may well also take this approach due to the risks of association with a named organisation.
Bates Wells is uniquely placed to assist civil society organisations in understanding and navigating this space, including related considerations such as charity law restrictions on advocacy, counter-terrorism and sanctions and their impact on civil society organisations in the UK (particularly when funding projects overseas or in higher risk territories such as areas in which proscribed organisations (organisations deemed by government to be concerned in terrorism) operate, such as Gaza. We are also experienced in supporting organisations to explore potential avenues of legal challenge such as judicial review, where there are concerns in relation to the lawfulness of a government decision (such as on the basis of a failure to consult on the changes) and are able to support organisations looking to challenge potential inclusion on the list.
Please contact Augustus Della-Porta, Matthew Smith or Jess Collings to discuss how this change or related considerations may impact on your organisation.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.