New Government Approach To ‘Extremism’ – Government Contracts, Procurement & PPP

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:

1. negate or destroy the fundamental rights and freedoms of
   others; or




2. undermine, overturn or replace the UK’s system of
   liberal parliamentary democracy and democratic rights; or




3. 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.