Banning organisations like Combat 18 and the White Wolves.

By Dr Peter Jepson ñ 5th May 1999.

Email: law@peterjepson.com

Over recent weeks we have heard many commentators arguing that racist organisations like Combat 18, the White Wolves and even the British National Party should be proscribed. The Home Secretary, Jack Straw, has responded to these calls by saying that such a ban was not in his power and there was no evidence it would be effective.(e1) This article seeks to discuss the response of the Home Secretary, while examining international obligations under the United Nations CERD Convention.

Certainly the Home Secretary has a strong argument when he says that he does not have powers to proscribe extreme racist organisations. This applies because of the limitations of the Prevention of Terrorism Act 1989, which only enables an organisation to be added to the Schedule of proscribed organisations if it appears to the Secretary of State that they are concerned in, or in promoting or encouraging, terrorism occurring in the United Kingdom and connected with the affairs of Northern Ireland. Since the London terrorist nail-bombs were not connected with the affairs of Northern Ireland, it follows that he cannot use the PTA 1989 to clamp down on domestic terrorist racist organisations like Combat 18 or the White Wolves.

A re-definition of terrorism.

The governmentís consultation paper(e2) ëLegislating Against Terrorismí, makes clear that the government is considering re-defining terrorism, while also seeking views on extending the law so that proscription, or comparable powers, could also cover domestic and international terrorist groups.

The proposals suggest that terrorism is likely to be re-defined as "The use of serious violence against persons or property, or the threat of such violence, to intimidate or coerce a government, the public or any section of the public for political, for religious or ideological ends." On the basis of recent weeks, and the horrific nail-bomb campaigns in London, there can be little doubt that the White Wolves - by their alleged self-claimed nail-bombing activity - would fit the description of an organisation that threatens serious violence for ideological ends. Even if it turns out that the person(s) charged have no direct connection with the White Wolves, the very fact that the Wolves may have claimed and threatened terrorism could be sufficient to warrant proscription(e3). The same could also be argued with regards to Combat 18, with reports suggesting that the White Wolves are a group derived from, and indirectly connected with, Combat 18(e4).

Existing International obligations to proscribe racist groups.

Indeed, additional arguments for proscribing such extreme racist groups can also be made on the basis of existing obligations under international law. The United Nationís CERD Convention (the International Convention on the Elimination of All Forms of Racial Discrimination) requires governments to tackle such extreme racist groups. Article 4(b) of the CERD convention proposes that State parties should declare as illegal and prohibit organisations that promote and incite racial discrimination, making participation in such organisations an offence punishable by law.

The UK government in 1969 ratified the CERD Convention "with due regard to freedom of expression and association", thereby refusing to proscribe racist organisations such as the BNP or Combat 18. However, this UK government approach has come under some strong criticism in academic circles, with Oyediran arguing(e5):

"By proscribing terrorist organisations, but not racist groups, the British Government are sending out a message that it will adopt draconian powers against organisations which oppose the state, but will not place the same restrictions upon groups which campaign against the presence in the UK of black people, Jews and other minorities who often have the least power to protect themselves."

Disappointing response of the Home Secretary.

Obviously decisions to proscribe any organisation should not be taken lightly and it may be that now is not the time to make rash decisions. Assuming such an approach makes sense, it seems disappointing that the Home Secretary, while making make clear that he was in the process of consulting on the issue of proscribing terrorist groups, should openly express in relation to banning domestic terrorist groups like C18 that he had "doubts whether such bans could do more harm than good"(e1). Indeed, his scepticism can be challenged on two grounds. Firstly, it is inconsistent with his own arguments - presented in the Home Office consultation paper ëLegislating Against Terrorismí ñ when he emphasises that "In Northern Ireland proscription has come to symbolise the communityís abhorrence of the kind of violence that has blighted society, with indications that proscription provisions have made life significantly more difficult for the organisations to which they have applied." Secondly, his scepticism is arguably at odds with his comments on the Stephen Lawrence Inquiry, when he said: "We have a commitment to build an anti-racist society(e6)."

Problems associated with proscription.

Certainly there are problems associated with proscription. For example, proving that an individual belongs to, or professes to belong to, a proscribed organisation has often been a difficult task. However, this problem may have been overcome by the provisions in the Criminal Justice (Terrorism and Conspiracy Act) 1998 which enable the admission, as evidence, of a statement of opinion by a senior police officer (of or above the rank of Superintendent) that the accused is a member of a proscribed organisation. In addition, the legislation enables the Courts to draw inferences from the silence of the accused, when being questioned or charged (this is subject to the safeguard that the accused is permitted to consult a solicitor before being questioned).

Another difficulty of banning organisations is that they may re-appear under a different name ñ e.g. White Fighters or Grey Wolves ñ a few weeks later. While this may be a legislative problem, in reality it should be welcomed, since it helps undermine support for the group since they would not have a readily identifiable image, thus making contact (support and recruitment), via the Internet or any other means, more problematic for them.

Distinguishing the BNP from Combat 18.

While there may be a justification for taking action to proscribe racist groups like Combat 18 and the White Wolves, a ban on the British National Party could be considered as harsh and possibly anti-democratic. This is because the BNP is essentially a political party that has racist views, which may be entitled to call upon Article 11 of the European Convention of Human Rights to claim freedom of association. Indeed, they may claim that they are not a party committed to serious violence, with a clearly different agenda from Combat 18. They may even seek to draw a comparison with Northern Ireland, pointing out that in that situation the IRA are banned, but the political wing of Sinn Fein are not. To this extent, while it may be appropriate to take action to proscribe violent racist groups like C18 and the White Wolves, this should not be extended to cover the BNP.

In conclusion

While the government is prepared to see proscription for activities related to Northern Ireland and International Terrorism, the Home Secretary seems reluctant to include Domestic Terrorist Groups. The London nail-bombings have shown us that domestic terrorism can also have horrific consequences and accordingly thoughts should now be given to extending proscription to all forms of terrorist activity ñ whether Irish, International or Domestic. Indeed, such technical descriptive distinctions must seem nonsensical to those suffering the consequences of terrorism.

As the Home Secretary has said, there is a commitment to building an anti-racist society. In doing so, it may be necessary to proscribe racist organisations that threaten serious violence against any section of the public.

Endnotes.

1 See the Home Secretaryís comments in ëThe Mail on Sundayí, 2 May 1999.

2 Command Paper 4178, available from HMSO.

3 Under the governmentís proposed definition of terrorism, it is not necessary to light the fuse - it is sufficient to threaten serious violence to be classified as a terrorist.

4 See comments of Gerry Gable of Searchlight, in the ITV programme ëTonightí, 29 April 1999.

5 Joanna Oyediran - ëThe United Kingdomís Compliance with Article 4 of the International Convention on the Elimination of All Forms of Racial Discriminationí (re-produced in ëStriking a Balanceí - edited by Sandra Coliver - published by Article 19 of the Human Rights Centre of the University of Essex, 1992).

6 Para 5, ëStephen Lawrence Inquiry: Home Secretaryís Action Planí.