MLA proposals prompt concern for freedom of information and expression in public libraries

Hey Minister – Leave Those Books Alone


‘Views sought on controversial stock in libraries guidance’ (1)

‘Smith seeking to close websites that promote jihad’ (2)

‘Lecturers warn against college “spy” rules’ (3)

By John Pateman

A common theme runs through these recent news headlines – the Government wants to recruit librarians, internet site providers, students and lecturers in its ‘War Against Terror’.

The Museums, Libraries and Archives Council (MLA) has launched a new consultation on managing ‘controversial stock’ in libraries. This follows from the Prime Minister’s national security statement to Parliament in November 2007. The MLA was commissioned to produce guidance for public libraries on the management of ‘extremist and inflammatory material’.

The first principles of the draft guidance are that ‘Free expression and open libraries remain essential to British democracy’; and ‘Libraries operate within the law to provide free access to a diversity of information, opinion and ideas in a neutral and hospitable environment.’

The problem is that stock selection is now subject to a range of laws, some of which are contradictory. The guidance seems to suggest that individual librarians should use their personal judgement in deciding which law to apply. One consequence of this could be that librarians become risk averse and decide not to stock books which can be regarded as ‘controversial, extremist or inflammatory’.

There is a precedent for this which the guidance does not mention, and that was the disastrous effect on stock selection of Clause 28 which made it an offense to ‘promote homosexuality’. As a result many library authorities refused to stock the Pink Paper or gay books and this policy and practice remained in place long after Clause 28 was repealed.

For many years the primary legislation relating to public libraries was the Public Libraries and Museums Act 1964 which puts a duty on local authorities ‘to meet the general requirements and any special requirements of adults and children.’ As the guidance points out, these duties may present ‘problems for libraries located in areas that contain a high proportion of residents with radical beliefs.’

However, the Public Library Act has now been qualified by the Terrorism Act 2006 which defines a ‘terrorist publication’ as one that is likely ‘to be understood by some or all of the actual or potential recipients as a direct or indirect encouragement or inducement to commit, prepare or instigate terrorist acts’. Contents that are likely to indirectly encourage terrorism include any matter ‘which glorifies the commission or preparation (whether in the past, future or generally) of acts of terrorism.’

A librarian could be found guilty of providing access to this material if it was proved that they did so as the result of both a ‘guilty act’ (such as loaning the material) and a ‘guilty mind’ (the intention to encourage or induce an act of terrorism). The sentence for this offence is imprisonment for a maximum of 7 years.

A librarian could also be found guilty of the offence of ‘encouragement to terrorism’ but this is less likely because the defence of innocent dissemination is wider. The maximum sentence for this offence is also 7 years.

Section 3 of the Terrorism Act applies to providing internet access and a librarian must comply with any section 3 ‘notice’. The notice is a ‘declaration by a police constable that the statement, article or record is unlawfully terrorism related.’ When the notice is issued the librarian must, within 2 working days, stop making the matter available to the public (for example, by blocking an offending website).

Section 58 of the Terrorism Act makes it an offence to ‘collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism’. The librarian has a defence if he can prove that he has a ‘reasonable excuse’ for his action or possession. The maximum sentence for this offence is 10 years imprisonment.

The MLA advises that ‘Librarians and library authorities should take pre-emptive precautions to ensure that information that is likely to be useful to “terrorists” is not stocked.’ This is a green light for the culling of any material which might pose a potential risk. This could include classics such a Seven Pillars of Wisdom by T.E. Lawrence and Guerrilla Warfare by Che Guevara. The MLA guidance is that ‘historical accounts that could be interpreted as glorifying terrorism may be stocked if there is little to no possibility that a current reader would try and emulate the acts described.’ However, there is evidence that the works of Lawrence and Guevara are being used by combatants in Iraq and so they could fall foul of the Terrorism Act. And presumably any novels which contain detailed descriptions of ‘terrorist’ activities should be removed from library shelves as well.

Another important piece of legislation which has been qualified by the Terrorism Act is the Race Relations Act 1976 and the Race Relations (Amendment) Act 2000. Sections of these Acts indicate that by banning certain ‘extremist’ publications from libraries, Librarians and library authorities could be behaving in a racially discriminatory manner and / or operating a racially discriminatory practice. However, there is a critical overriding ‘disclaimer’ with regard to ‘safeguarding national security.’

The MLA guidance is that ‘Librarians and library authorities should not be unduly concerned with the provisions of race relations legislation, and focus on avoidance of commission of the offences created by the Terrorism Act.’ This is a particularly worrying element of the guidance because Librarians are effectively being asked to disregard the Race Relations Act to avoid falling foul of the Terrorism Act. In this respect the guidance does not achieve its aim of helping to promote community cohesion through the provision of a balanced range of information, learning and cultural resources.

The Public Order Act 1986 creates a number of offences in relation to conduct intended to stir up racial and religious hatred. This includes the display, distribution or possession of ‘threatening, abusive or insulting’ material if ‘racial hatred would be likely to be stirred up’. The stocking of ‘extremist’ literature within a library suggests that Librarians could be susceptible to this crime although there is a defence of innocent dissemination. The maximum penalty is 7 years imprisonment.

The MLA advice is that ‘Librarians and library authorities would be wise to take pre-emptive precautions to avoid having to rely on a defence.’ Once again the MLA is advising librarians to be cautious and risk averse and to remove from their shelves any materials which could fall into this category. This seems to be contrary to the first principles of the guidance that ‘Libraries operate within the law to provide free access to a diversity of information, opinion and ideas in a neutral and hospitable environment.’ In this regard the guidance does not help libraries to fulfil their role as access points to publicly available information.

Library authorities have an obligation to carry out their duties in accordance with the provisions of the Human Rights Act 1998. Article 10 (1) of this Act states that ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information without interference by public authority and regardless of frontiers.’ Article 10 (2) qualifies this right by making it subject to a number of competing interests such as national security.

Once again, the MLA guidance urges caution and advises Librarians to comply with the Terrorism Act rather than the Human Rights Act. The guidance is that ‘A library itself is not under a duty to guarantee the expression of all ideas for all people.’ This appears to contradict the first principles of the guidance that ‘Free expression and open libraries remain essential to British democracy’.

If a publication contains references to ‘extremist’ beliefs, then excluding or banning it may be an offence under the European Convention on Human Rights which includes the right to ‘manifest’ one’s religion or belief. However, as with Article 10 this freedom is not absolute and can be qualified on a number of grounds, including compliance with the Terrorism Act.

The Local Government and Public Involvement in Health Act 2007 requires local authorities to involve ‘local persons’ in the exercise of a particular function (such as stock selection) if it ‘considers it appropriate’ to do so. If local people are involved in stock selection the MLA guidance is that ‘it will depend on the circumstances of the particular case as to whether the legislation will apply to the particular individual or organisation.’ This statement is not equivocal or clear and further guidance or clarification is needed.

Overall the MLA guidance does not achieve its aim of meeting the needs of library managers and staff in the selection, presentation and promotion of material in the context of wider stock policy. It is far too cautious and risk averse and will have the effect of controlling and restricting the selection of stock that can be interpreted as ‘controversial’, ‘extremist’ or ‘inflammatory’. It is not possible to agree a common definition of these terms in the same way that ‘Obscenity’ could not be defined within the Obscene Publications Act, which has consequently fallen into disuse.

As well as posing a threat to stock selection, this guidance also challenges the professional ethics of the librarian. Rather than becoming an agent of the state’s security apparatus librarians, of all people, should be standing up for freedom of information and freedom of expression. The response of librarians to this guidance should be the same as that of students and lecturers who have warned that new government guidelines on tackling Muslim ‘extremism’ in universities must not become a ‘snoopers’ charter.’ And instead of culling our book stocks and censuring the internet we should be supporting the views of Mark Littlewood of Progressive Vision who commented that ‘The idea that terrorism can be thwarted by seeking to shut down extremist websites is absurd and dangerous.’

References

(1) Consultation on draft guidance on the management of controversial materials in public libraries, MLA, 2008

(2) ‘Smith seeking to close websites that promote jihad’, Daily Telegraph, 18 January 2008

(3) ‘Lecturers warn against college “spy” rules’, Morning Star, 23 January 2008

John Pateman

Information for Social Change

24 January 2008

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