Intelligence and Security Committee Report: Extreme Right-Wing Terrorism/Proscription

by the Intelligence and Security Committee of Parliament

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PROSCRIPTION

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The Home Secretary's role

MI5: The Home Secretary holds ministerial responsibility for MI5, although this oversight of MI5 is limited to the service's overall strategic direction and funding since the Director General of MI5 has operational independence in terms of day-to-day decision-making.^[1] Nevertheless, the Home Secretary meets regularly with the Director General, who updates her on current priority operations, and she also authorises warrants for MI5 intrusive activity.^[2]

The Home Secretary considers a large number of warrants—currently in the region of 4,000 applications a year, with approximately 170-190 new warrant applications per month, covering the full range of national security threats (including serious and organised crime, state threats, as well as terrorism).^[3] The Home Secretary confirmed that the majority of warrant applications cover:

drugs, machine guns, just shocking, shocking things. Islamist [terrorism] is still I would say very high, worryingly high from my perspective, and Right-Wing is so blended and so mixed, it really is just in flux, because of the type of the cases that come up and the type of behaviours that people are showing.^[4]

MI5 advised that, in 2020-21, there were fewer than *** ERWT new warrants compared to *** issued with regard to Islamist terrorism (that is, approximately 1:4). However, MI5 caveat that "warrant numbers in isolation are not by themselves an accurate barometer of the scope of our investigative/operational activities against a particular threat. One would also need to take account of other relevant factors such as the number of Subjects of Interest, the number of Leads being investigated, other capabilities we might deploy and the allocation of effort by spend. Also please note that some warrants cover more than one SOI, which will show up as just one authorisation in the above numbers."^[5]

CTP: Counter Terrorism Policing (CTP) is a collaboration of UK police forces working with the UK Intelligence Community to help protect the public and UK national security by preventing, deterring and investigating terrorist activity.^[6] The Home Secretary is accountable to Parliament for the national response to the counter-terrorism threat, and is legally accountable for national security and for the role that the police service plays within the delivery of any national response. She has reserved powers and legislative tools that enable intervention and direction to all parties, if it is determined by the Home Secretary that such action is necessary to prevent or mitigate risk to the public of national security.^[7]

Homeland Security Group: Formerly known as the Office for Security and Counter-Terrorism (OSCT), Homeland Security Group has responsibility for the Government's counter-terrorism strategy (CONTEST), policy and legislation response to the threat of terrorism in the UK. That objective, as set out in the Home Office Departmental Plan,^[8] is to:

• Implement the CONTEST Strategy to stop people becoming terrorists, or supporting terrorism, by safeguarding and supporting those vulnerable to radicalisation and enabling those who have already engaged in terrorism to disengage and rehabilitate;
• Stop terrorist attacks in this country and against UK interests overseas by disrupting those who wish to engage in terrorist activity;
• Strengthen protection against a terrorist attack by improving security and resilience across the UK's public spaces, transport and infrastructure and reduce illicit access to the material needed for an attack, including at the border;
• Mitigate the impact of a terrorist attack to save lives, reduce harm and aid recovery by delivering a co-ordinated response across the emergency services and a strengthened response to evolving threats; and develop existing capabilities by further integrating across the national security community and developing wider partnerships across the public and private sector.

Homeland Security Group has no specialised resource dedicated to any ideologically specific threat. Staff, resources and tools work on counter-terrorism holistically, regardless of the ideology or group.^[9] The Director General for Homeland Security Group is also the Senior Responsible Officer for Counter-Terrorism (CT SRO).

The Home Secretary said that the decision had been taken to restructure the department as a result of the "level of siloised working and the lack of integration across the entire department". She said the new set up was already reaping benefits in terms of promoting integration across the Department, and in the case of ERWT was proving particularly helpful in the online space when it came to determining "who holds the pen in scrutiny of the online space, who will make the call effectively to a particular social media firm and then with the work of RICU [Research and Information Communications Unit of Homeland Security Group], for example, how does all that join up".^[10]

241. Under the Terrorism Act 2000, the Home Secretary may proscribe an organisation if it is believed to be concerned in terrorism^[11] and it is proportionate to do so. For the purposes of the Act, this means that the organisation:

1. commits or participates in acts of terrorism;
2. prepares for terrorism;
3. promotes or encourages terrorism (including the unlawful glorification of terrorism); or
4. is otherwise concerned in terrorism.

If the statutory test is met, the Home Secretary will consider whether to exercise her discretion to proscribe the organisation. Other factors, such as the nature and scale of an organisation's activities, the specific threat that is posed to the UK, the specific threat that is posed to British nationals overseas, the extent of the organisation's presence in the UK, and the need to support other members of the international community in the global fight against terrorism, will be considered when the Home Secretary exercises this discretion.^[12]

242. Proscription has been heralded as an effective tool available to CTP and MI5 to disrupt the terrorist threat posed by a physical, real-world (as opposed to online) group, such as National Action. The following ERWT groups have been proscribed since 2016:

• National Action was the first Extreme Right-Wing (XRW) group to be proscribed in December 2016. Since National Action's proscription, 27 individuals have been arrested on suspicion of being a member of the group, 15 of whom have been charged with terrorism offences.
• In September 2017, Scottish Dawn and NS131 identified as aliases of National Action.
• In February 2020, System Resistance Network (SRN) was identified as an alias of National Action. Sonnenkrieg Division was also proscribed in the same month.
• July 2020 saw the proscription of Feuerkrieg Division.
• In April 2021, Atomwaffen Division (and National Socialist Order as its alias) was also proscribed.
• In July 2021, The Base (a predominantly US-based 'White Supremacist' organisation) was proscribed.

243. The recommendation to proscribe an organisation is made by the cross-Government Proscription Review Group (PRG),^[13] which monitors and reviews any groups that may potentially meet the threshold for proscription and provides advice to the Home Secretary on issues relating to the implementation of proscription.

244. However, proscription is not without its problems. Professor Matthew Feldman has argued that proscription has the effect of making Far-Right groups assume martyr-like status online, thereby enhancing their status.^[14] There is also concern that it simply drives these movements underground. In 2019, the Joint Terrorism Analysis Centre (JTAC) assessed that, with regards to ***, "while proscription provides increased opportunities for law enforcement, much activity is driven underground and can become more difficult to detect and disrupt".^[15]

245. After National Action was proscribed in 2016, ***.^[16] Members have planned violent acts against MPs and the group has sought to recruit ***. *** while proscription has proved highly successful in deterring recruitment of new members and mitigating the threat presented by National Action as a cohesive entity, it continues to pose a risk:

***, National Action has an enduring influence in the Right-Wing Extremist community with many groups and individuals continuing to adopt their ethos and branding. A number of National Action members are scheduled for release in the coming months and years. ***.^[17]

246. Homeland Security Group has also conceded that the efficacy of proscription when it comes to ERWT does have limitations:

It is possible that the nature of ERWT online could make the application of this tool harder with few formal ERWT organisations and structures. Indeed, it is more difficult to keep up with UK constantly changing online groups and also to prove membership (if an individual is in a chatroom associated with a group of concern, does that mean that person is 'a member'?). Membership of online groups is also spread throughout the UK and beyond.^[18]

They told the Committee that they keep the issue of proscription under review, acknowledging that it might not always be the most effective lever in the case of ERWT:

Proscription is a tool geared towards groups and towards the terrorist threshold, so whether there are other tools that [are needed in] addition to [the] really powerful [tool] of . . . proscription in [the] future, we need to keep looking at that.^[19]

247. There is also a problem in that a number of groups will not meet the terrorist threshold, but nonetheless are able to create and circulate extremely harmful material, as highlighted by the Commission for Countering Extremism: "Under current proscription offences National Action is proscribed, but other neo-Nazi groups who promote the same extremist ideology such as Combat 18, Order of Nine Angles and British National Socialist Movement are not."^[20]

248. In evidence in January 2020, the Committee was told that: "CTP is currently working with the Home Office to consider whether a review of the appropriateness and effectiveness of proscription is required—given the changing nature of ERWT groups it may be necessary to consider whether proscription in its current form requires changes."^[21] However, when—as part of the process of producing this Report—we referenced this work, we were told that there was no standalone piece of work, merely ongoing work to keep the proscription regime under review as part of the "routine maintenance of the statutory framework" and that "no fundamental review of its effectiveness is planned or being undertaken".^[22]

249. Proscription can also support other disruptive activities, including:

• immigration disruptions;
• EU asset freezes; and
• messaging to deter fundraising and recruitment.

Although we note that, to date, none of the Home Office-led legal disruptive tools available to HMG in counter-terrorism (national security deportations/exclusions/deprivations, etc) has been used against XRW subjects of interest.

250. For her part, the Home Secretary was clear that proscription is a useful tool to have in her armoury, and that the proscription process in itself was a helpful exercise:

It enables the system to understand so much more, not just about motives but the MO [modus operandi], the way in which organisations come together, sometimes looking at the parts of different organisations, have they franchised out, how they build new networks, and I think that's quite helpful.^[23]

Q. Proscription has, to date, been an important disruptive tool in countering the influence and activities of bodies and organisations that seek to carry out terrorist activity. However, the ideologies driving Extreme Right-Wing Terrorism are complex, and in the case of, for example, neo-Nazi groups such as Order of Nine Angles, do not meet the terrorism threshold. We note that Counter Terrorism Policing and the Home Office are considering a possible review of the current proscription process—this is a welcome development.

Further legislation: Counter-Terrorism and Sentencing Act

251. The Home Secretary advised the Committee that the introduction of this new legislation had been prompted by attacks at Fishmongers' Hall^[24] and Streatham,^[25] following which "we literally put the floodlights on a system and we sort of looked underneath and we could see lots of holes . . . I'm not just speaking about the intelligence agencies and security agencies . . . I'm speaking about the end to end process now in terms of sentencing, courts, probation."^[26] She noted that it had been clear that there were a number of shortcomings when it came to sentencing:

so we saw individuals being released from prison, not necessarily after receiving long firm sentences. Gaps in sentencing, I think they are well and truly acknowledged now, but also just the assessment process, the risk assessment process around individuals which, to speak candidly, was not as diligent or vigorous as it could have been, should have been, at that time.^[27]

252. The Act received Royal Assent on 29 April 2021. It will ensure that serious and dangerous terrorism offenders spend longer in custody and will improve the government's ability to monitor and manage the risk posed by terrorist offenders and individuals of terrorist concern outside of custody. Measures under the Counter-Terrorism and Sentencing Act:

• ensure that serious and dangerous terrorist offenders spend longer in custody, by introducing the Serious Terrorism Sentence for the most serious and dangerous terrorist offenders (with a minimum sentence of 14 years);
• remove the possibility of any early release from custody for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence;
• increase the maximum sentence that the court can impose for three terrorism offences (membership of a proscribed organisation, supporting a proscribed organisation and attending a place used for terrorist training) by offenders aged from 10 to 14 years; and
• improve the ability to manage and monitor terrorist offenders when they are released. Central to this will be extending the scope of the sentencing for offenders of particular concern by expanding the list of terrorist and terror-related offences that attract the sentence, and creating an equivalent sentence for offenders aged under 18.^[28]

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1. In this respect, MI5 is similar to the police. Unlike SIS and GCHQ, whose activities against overseas targets will more often carry political and diplomatic risk, the domestic operations of MI5 are usually less contentious—hence the lower level of 'political' approval.
2. There are strict limitations on what MI5 is allowed to do when investigating an individual, and MI5 must abide by legal constraints when considering any action. All action MI5 takes must be considered necessary and proportionate in light of what it knows at the time. For example, MI5 can only use 'intrusive techniques' (such as intercepting telephone communications, surveillance in a private space, or interference with property) against an individual if there is sufficient justification on national security grounds. In addition, a warrant must be obtained that authorises precisely what action will be taken. Such warrants are issued by the Secretary of State.
3. Written evidence - Home Office, 8 June 2021.
4. Oral evidence - Home Secretary, 20 May 2021.
5. Written evidence - MI5, 26 May 2021.
6. www.counterterrorism.police.uk
7. The relationship with Counter Terrorism Policing (CTP) is overseen by the Security Minister through the quarterly chaired Ministerial Oversight Group. This is attended by the National Policing Lead for Counter-Terrorism (Assistant Commissioner Neil Basu) and senior officials and officers and covers the strategic risks and issues facing CTP. The Assistant Commissioner briefs the Home Secretary at the Weekly Security Meeting on operational matters. The Home Office is also responsible for the CTP budget, which is provided by direct grant, subject to negotiation at Spending Review and annual agreement on final budget.
8. Home Office, Home Office Single Departmental Plan, 27 June 2019; www.gov.uk/government/publications/home-office-single-departmental-plan/home-office-singel-departmental-plan-3
9. On 1 April 2021, the Home Office restructured its Directorates based around missions and capabilities, with the new structure forming three vertical Director General-led "missions". These are Homeland Security Group, Public Safety, and Migration and Borders. The Homeland Security Group mission is made up of Economic Crime, Cyber Policy, and Serious and Organised Crime it also includes a new State Threats Directorate.
10. Oral evidence - Home Secretary, 20 May 2021.
11. "Terrorism" as defined in the Act means use or threat of action which: involves serious violence against a person; involves serious damage to property; endangers a person's life (other than that of the person committing the act); creates a serious risk to the health or safety of the public or section of the public, or; is designed seriously to interfere with or seriously to disrupt an electronic system - www.gov.uk/government/publications/proscribed-terror-groups-or-organsiations--2
12. Proscription decisions in relation to Northern Ireland are a matter for the Secretary of State for Northern Ireland.
13. The Government Proscription Review Group is managed by Homeland Security Group with a number of partners. The group meets routinely twice a year, but will meet more frequently if required.
14. Evidence given to the Home Affairs Select Committee - January 2017.
15. JTAC paper, 1 July 2019.
16. ***
17. Written evidence - MI5, 13 December 2019.
18. Written evidence - Homeland Security Group, 31 January 2020.
19. Oral evidence - Home Office, 29 April 2021.
20. Written evidence - Commission for Countering Extremism, 17 December 2020.
21. Written evidence - Homeland Security Group, 31 January 2020.
22. Written evidence - Homeland Security Group, 22 October 2021.
23. Oral evidence - Home Secretary, 20 May 2021.
24. On 29 November 2019, Usman Khan stabbed five people, two fatally, at Fishmongers' Hall in London. Khan had been released from prison on licence in 2018 after serving a sentence for terrorist offences.
25. On 2 February 2020, Sudesh Ammam stabbed three people in the street in Streatham, South London. He had been released from prison the previous month after serving half his sentence of three years and four months for terror offences.
26. Oral evidence - Home Secretary, 20 May 2021.
27. Oral evidence - Home Secretary, 20 May 2021.
28. Written evidence - Home Office, 8 June 2021.