The independent review of Prevent – considerations for institutions

The independent review of Prevent – considerations for institutions

The aim of the review is to assess the effectiveness of the strategy against its objectives, which are to  “tackle the causes of radicalisation and respond to the ideological challenge of terrorism, safeguard and support those most at risk of radicalisation through early identification, early triage and intervention where appropriate, and early, proportionate and continuing support, and to enable those who have already engaged in terrorism to disengage and rehabilitate”.

There are four phases to the review: establishing the landscape; listening and engagement; synthesis and debate; and report and recommendations. The aim is to deliver a series of practical, proportionate and evidence-based actions to improve the effectiveness of the strategy.

For institutions one of the key areas that the review needs to address is the interrelationship between Prevent and their statutory duties on free speech, academic freedom and freedom of expression more broadly. In England, the statutory duty to ensure free speech is reinforced in the OfS Regulatory Framework. There has been widespread about the tensions between Prevent and these duties.

The main problem is paragraph 11 of the statutory Prevent guidance which requires institutions to “fully mitigate” the risk that speakers will express extremist views that risk drawing people into terrorism by, if necessary, banning events. In March this year,  the Court of Appeal in R (Butt) v Secretary of State for the Home Department ([2019] EWCA Civ 933) concluded that the Secretary of State had failed in his duty to promulgate guidance which was sufficiently balanced and accurate to inform institutions in of their competing obligations and assist them to a proper conclusion. As a result the court concluded that the guidance needed to be rewritten.

The 2017 report by the Joint Committee on Human Rights into freedom of speech in universities also recommended that any review of Prevent ought to consider specifically its effect on free speech and freedom of association on campus.

Therefore this should be a key area of focus for the review and institutions should submit evidence about the cost, complexity and barriers that compliance with the duty generates.

A further area that the review should be invited to consider is the risk of scope creep into unrelated areas. The OfS has begun to ask for information about non-Prevent related welfare referrals as a means of testing Prevent compliance. Its argument appears to be that the fact that universities refer students for specialist support for non-Prevent related reasons gives comfort that they would also make referrals for Prevent-related reasons. “Welfare” is defined as “the systems, policies and processes used by providers to exercise their duty of care towards their students and staff across academic and non-academic spheres and spaces, including ‘cause for concern’ and other similar procedures”. This is a far wider definition of “welfare” than that set out in the statutory Prevent guidance which refers more narrowly to chaplaincy support and prayer rooms. The risk of crossover into areas such as counselling referrals or, for example, fitness to study or fitness to practise procedures is clear. One of the conclusions of the Butt case was that the guidance had drifted too far from the central aim of the duty which was to prevent people from being drawn into terrorism, rather than non-violent extremism. Now it is being judged by references to processes that do not relate to extremism at all.

It is clear from the Prevent review that there is no prospect of the programme being abandoned, but it may present an opportunity for institutions to push back against some of its more egregious interventions in campus life.

The final area that needs exploring as part of the review is considering how Prevent works against the background of an increasingly polarised society and increasingly extreme forms of expression, especially on social media, and how universities are supposed to respond to that.  The “British values” referred to in the guidance include a belief in the rule of law, mutual respect and tolerance of different views, qualities which seem in desperately short supply in our public debate. The definition of terrorism in the UK is the use or threat of action to influence the government or the public and to advance an ideological, political or religious clause. The action must threaten harm to the public, damage to property, or interference with/disruption to electronic systems. There are many areas of our public discourse where threats of such action have become commonplace. Some of these even emanate from senior public figures. The language of betrayal, treachery and the vengeance of the public accompanied by threats to riot, increasingly common in our national discourse over Brexit, are not that different to some of the incendiary speakers that the Prevent guidance requires institutions to fully mitigate or ban. The “Extinction Rebellion” movement is regarded by some as extremist and in so far as it results in public disorder or criminal damage could also be considered a form of “terrorism” under the legal definition. Anti-abortion groups protesting in an aggressive manner outside clinics may cause individuals to fear for their safety. The list goes on.

The Prevent guidance was only written in 2015, but it already seems from a more sedate, reasonable time when “extremism” was easier, if not exactly easy, to spot and define. Is it still appropriate in the turbulent and divided UK of 2019?