Butt v Secretary of State for the Home Department  EWHC (Admin) 26 July 2017 – read judgment
Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.
The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.
In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA. The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”.
The claimant challenged both the lawfulness of the Prevent Duty Guidance documents themselves, and the collection, storage and dissemination of data. He challenged the lawfulness of the Guidance documents on the following grounds:
(1) they were beyond the powers in s29 of the CTSA,
(2) they failed to comply with the duty in s31 CTSA to have particular regard to the duty to ensure free speech in higher education institutions,
(3) they breached common law and ECHR rights in relation to free speech, in their lack of clarity, legitimate need and proportionality.
He also argued that the collection, storage and dissemination of data by the Extremist Analysis Unit (EAU) had breached Article 8 of the ECHR by interfering with his policy rights with no justification or proportionality.
He sought permission to add an argument that the collection and storage of information was unauthorised “directed surveillance” for the purposes of s26 of the Regulation of Investigatory Powers Act 2000, RIPA.
Dr Butt, a practising Muslim, is the editor in chief of Islam21C, a website describing itself as “Articulating Islam in the 21 Century.” Dr Butt holds what his counsel said “might be described as orthodox conservative religious views”, not unlawful and shared by many others. He has spoken at universities at the invitation of student societies, notably Islamic Societies, chaired or participated in panel discussions, and led prayers at mosques.
The Prevent Strategy, under which this Guidance was issued, has evolved since 2003, broadening from its original focus on violent extremism so that in 2011, it aimed to tackle non-violent ideas that were part of a terrorist ideology. It aimed to stop people moving from extremism towards terrorist-related activity. (Marina Wheeler QC of these Chambers has done a fascinating podcast on the Prevent scheme and their management of radicalism in families; I will put out an alert when her podcast is ready on iTunes.)
The Government has defined extremism in the Prevent strategy as:
vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces.
As Counsel for the Home Office submitted, there was no clear dividing line between extremism and terrorism; the two were closely related. Preventing people being drawn into terrorism required the extremist ideologies used to legitimise terrorism to be challenged, and their promotion disrupted.
Ouseley J agreed with this formulation.
The whole context of the Guidance, the CTSA and the Prevent strategy is to reduce the risk of people being drawn into terrorism by extremism, violent or non-violent.
Nor could the claimant say that he was a victim of an interference with his rights. None of the issues raised by the Guidance bit on academic freedom, at least so far as Dr Butt was concerned. He was not a member of the academic staff at a university. Indeed, his freedom to speak had not been affected at all:
Dr Butt is not receiving invitations, and is refusing those he has received. He does not speak of even one example, nor is there other evidence of one, where the application of the [Guidance …] has led to an event at which he had been invited to speak, being cancelled by the RHEB…. So the actual issue he raises is quite remote from him.
In any event, there was nothing unlawful about the Guidance, since it did not oblige universities to give insufficient weight to their duties to ensure free speech. Guidance on its own could not be unlawful simply because, through misunderstanding their duties, others may act unlawfully.
With regard to his arguments under Article 10 (and his associated freedom of conscience claims under Article 9), Ouseley J observed, at the outset, that the claimant had “no Article 10 right to go on to any university premises for his own purposes; and … no right to be invited.”
For this reason, he could not claim to be a “victim” of the proposed measures. Merely because he was in a group which may be affected, he could not say that has a right to a remedy now. He was, in reality, asserting an inadmissible actio popularis. The Strasbourg case of Le Ligue de Musulmans de Suisse v Switzerland (App.No. 66274/09) was a good illustration: a Swiss constitutional change precluded the building of minarets for mosques. The Ligue alleged that this violated the religious freedom of all Muslims. The application was declared inadmissible. The change had not been implemented and had no practical effect on the applicants. As in that case, the claimant here faced no threat to his livelihood, person or family or friends, or sanction for speaking. He had simply made a choice, which was up to him.
There is no reason why he could not have made a different decision, and the consequences of his choice cannot be laid at the door of the HEPDG or asserted as a breach of Article 10.
Even though he did not consider the claimant to have been a victim of a breach of his rights, the judge went on to consider the justifications for such an interference. The guidance under attack had been issued to prevent people being drawn into terrorism through non-violent extremism, a duty set out under Section 26 of the CTSA. It was not at issue that preventing people being drawn into terrorism was a legitimate aim. The guidance pursued the legitimate aims of protecting national security, public safety, prevention of disorder and crime, protecting health or morals and the rights of others.
Nor was the claimant able to bring the scrutiny of the EAU within the ambit of the right to respect for privacy under Article 8. The evidence before the court was that the claimant had engaged in public debate about issues of political, religious and moral controversy, including issues such as homosexuality, FGM and Israel.
The views he expresses are not private views but his public views, which he wishes to promote in public. That applies to his blogs and tweets. While for certain purposes, a person’s religious or political views may be “sensitive personal information”, they are not properly so described for a person who makes them public of his own volition for the purposes of persuading others to them.
Ouseley J also accepted the Department’s argument that the judgment that there was no interference with the claimant’s Article 8 rights when the judgement was made that he was an “extremist”, whether that judgment was right or wrong. The collection, storage, retention and use of the data about the claimant were legitimate and proportionate measures to the challenges posed by extremism and therefore were justified under Article 8(2).
The challenges in relation to Equality Act duties and the regulation of surveillance under RIPA were also dismissed.