This article from Dr Teresa Dumasy, Research, Advisory and Policy Department Director at Conciliation Resources, outlines the complex area of law that is counter-terrorism, and introduces a new guide to help charities understand when they need to seek legal advice, and what questions to ask if they do.
Many charities and non-government organisations (NGOs) operate in places shaped by conflict or political repression, where counter-terrorism (CT) and sanctions laws apply.
Navigating this complex area of law is difficult. Charities may need to comply with UK law, as well as laws in the country where the activity is happening, and those of the European Union and the United States. Decisions may require complex risk assessments in insecure and volatile places.
For example, a charity planning to deliver programmes in an area where a proscribed ‘terrorist’ group operates will need to consider whether activities could be seen as directly or indirectly benefitting that group under counter-terrorism law.
And a registered UK charity that needs to send funds to a country subject to UK sanctions will need to assess whether any individual or entity they intend to engage with are subject to sanctions.
These judgments are difficult not only because the law is complex, but because guidance is often vague and legal advice can be hard to access.
‘Seek independent legal advice’
The guidance on Charities and Terrorism, issued by the Charity Commission for England and Wales, recommends seven times that charities should ‘seek independent legal advice’ if they are unsure about their compliance with terrorism laws. The General Guidance on Financial Sanctions issued by the Office of Financial Sanctions Implementation contains the same suggestion nine times.
This presents a few problems. One is knowing where to start – who and what to ask in order that the advice received is helpful. A second is cost – only some organisations can afford to pay for external legal advice, or are able to receive free – ‘pro-bono’ – legal support from a specialist lawyer.
A third is that the law is often genuinely unclear, even to lawyers. Sanctions and CT legislation uses broad language like ‘reasonable suspicion’ or ‘funds made available for the benefit of’ – terms which don’t have precise legal definitions.
A guide to getting legal advice
To help organisations feel more confident in understanding when legal advice is needed, where to access it, the questions to ask and how to ask them, Conciliation Resources and Sistren Legal Collective have produced a step-by-step guide for charities, NGOs, community organisations and campaigning groups, called JUST ADVICE.
The guide is based on the legal position under UK law and is designed for organisations operating under English & Welsh law, whether their activities are domestic or international.
The guide starts from the basics: what legal advice is – and what constitutes good legal advice; when to seek it; and questions of confidentiality. It describes where to go for advice: types of legal advisers; legal rankings, and tips on law firms with charity or not-for-profit expertise, and those with practices on sanctions, CT and export controls.
It also includes a range of scenarios when organisations might need legal advice and explains why and what lawyers could provide.
For instance, you may be unsure whether someone appears on a sanctions or terrorist list – law firms often have access to specialist screening tools to help with this. If you are undertaking academic or journalistic research, and unsure of the implications of collecting information relating to terrorist activities, lawyers can help you understand whether specific legal defences apply to you. You may be unsure whether your due diligence policies are sufficient – lawyers can provide advice on this from a legal perspective, and check that you are asking the right due diligence questions.
The guide also helps charities to anticipate and manage costs of getting legal advice, by giving indicative hourly rates and questions to ask about fees, as well as tips on how to manage the process and ask the right questions, with examples of how to frame communication.
Practical clarity and reassurance
While the guide doesn’t provide or constitute legal advice, it should help to demystify the terminology and process of engaging with lawyers, whether doing so for the first time or as a refresher.