The butt end of Prevent – the challenge to statutory Prevent guidance
The Prevent duty has by now become an integral part of the way institutions conduct themselves. Nevertheless, we all recall the discomfort generated by the Secretary of State’s (SoS’s) guidance to the sector on how it should discharge that duty, particularly in relation to visiting speakers. The use of terms in the guidance such as “entirely convinced” and “fully mitigate risk” seemed to impose an impossible task on institutions. That discomfort was well founded, according to the Court of Appeal, which recently considered a challenge to the lawfulness of the SoS’s guidance by Dr Salman Butt.*
Dr Butt was the editor of “Islam21C”, a publicly accessible website, who before the publication of the guidance had spoken on Islamic beliefs at various universities at the behest of student societies. He submitted three challenges to the SoS’s Prevent duty guidance. They were made to both the general Prevent duty guidance (PDG) and the higher education Prevent duty guidance (HEPDG). One challenge was successful and related specifically to the text in the HEPDG concerning visiting speakers, in particular paragraph 11 relating to risk assessment. The second relating to freedom of speech was partially successful. The details are as follows:
1. Non-violent extremism/British values – unsuccessful challenge
Dr Butt claimed that the SoS exceeded his powers under the Counter Terrorism and Security Act 2015 (CTSA) s29 to promulgate guidance on the duty to prevent people being drawn into terrorism (CTSA s26). The SoS did so by requiring institutions to take steps to prevent people being drawn into “non-violent extremism”, where “extremism” is defined as “opposition to fundamental British values”. Dr Butt claimed that not all extremism was unlawful (an obvious and accurate point) and that the SoS could not lawfully promulgate guidance which applied to extremist views that did not risk drawing others into terrorism.
He was unsuccessful for the following reasons:
• The PDG guidance recognises explicitly that “extremism” as defined may be lawful (para 8)
• It is also true that extremists may draw people into terrorism by radicalising them, creating an atmosphere conducive to terrorism (PDG paras 7/8, HEPDG paras 11, 19, 22 and 29)
• The PDG and HEPDG are linked to the duty under the CTSA s26 and are directed at preventing people from being drawn into terrorism through non-violent extremism
Provided therefore that the “extremism” in question is understood as subject to the additional requirement that it the kind of extremism that risks drawing people into terrorism, then the aim is legitimate and the PDG and HEPDG are within the SoS’s powers.
2. Successful challenge to HEPDG
The HEPDG para 11 relates to visiting speakers and requires that when deciding whether or not to host a particular speaker, institutions should consider carefully whether “the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed”.
The essence of Dr Butt’s challenge was that the sentences in bold above went too far and ignored the statutory duties regarding freedom of speech imposed on the SoS under CTSA s31(3) and on institutions under CTSA s31(2) in relation to discharging the duty to prevent people from being drawn into terrorism. It also ignored institutions’ free-standing duty under the Education (No2) Act 1986 regarding freedom of speech.
The Court of Appeal concluded that the SoS failed to draft guidance that was sufficiently balanced and accurate so as to inform institutions of their competing obligations regarding freedom of speech and preventing people from being drawn into terrorism. As drafted, the guidance did not help institutions to reach a proper conclusion and needed to be re-drafted by the SoS.
3. Partially successful challenge – the PDG and HEPDG breach the right to freedom of expression
This challenge related to Dr Butt’s claim that the PDG/HEPDG breached his right to freedom of expression under Article 10 of the European Convention on Human Rights. The judge against whose decision Dr Butt was appealing had concluded that Dr Butt had no standing to bring such a claim. His reasoning was that the PDG/HEPDG were a proportionate means of achieving a legitimate aim and were in accordance with the law.
The Court of Appeal’s view as set out in (2) above was that the guidance was imbalanced, a conclusion that was clearly at variance with the earlier decision. The Court of Appeal however also concluded that though he had standing to bring the claim, Dr Butt did not demonstrate that his right to freedom of expression was in fact breached at any time in the past. There was no evidence therefore that he had been prevented from speaking because of the guidance.
What are the lessons to be drawn from this case? It sadly offers no solace to staff who are obliged by Ofsted and other regulators to promote British values to students whose responses are less than warm. That element of the Prevent guidance appears to remain intact.
Institutions may, on the other hand, disregard the guidance on visiting speakers, though they will continue to be bound by the duty in the CTSA to have due regard to the need to prevent people from being drawn into terrorism. Until the new statutory text is drafted, institutions will have to rely on their own judgment to decide how to discharge that duty in relation to visiting speakers. In my experience, that is often a sounder basis on which to proceed than vapid government guidance.
*R (on the application of Butt) v Secretary of State for the Home Department ( EWCA Civ 256)