Prevent Duty Guidance withstands “clamorous” criticism – Marina Wheeler QC

R (Salman Butt) v Secretary of State for the Home Department [2017] EWHC 1930 – read judgment

In the wake of the London and Manchester attacks, the government’s counter-terrorism strategy is increasingly in the news and under scrutiny.  Radicalisation is  a difficult concept to map on to a system like ours, which separates the definition of criminal behaviour and punishment from civil sanctions. In this week’s podcast, Marina Wheeler discusses some of the ways the law is trying to cope (Law Pod UK Episode 8, available free on iTunes). She and others from 1 Crown Office Row will be discussing this and related issues at a seminar on Monday 11 September. 

At the end of July 2017, Mr Justice Ouseley upheld one element of the government’s counter-terrorism strategy – the Prevent Duty Guidance to universities (and other further and higher education bodies) which aims at “stopping extremists from radicalising students on campuses”.  He also rejected a complaint that the work of the Home Office’s Extremism Analysis Unit (EAU), breached the Article 8 privacy rights of the claimant, Dr Salman Butt.

We posted a summary of this ruling last week. 1 Crown Office Row’s Oliver Sanders and Amelia Walker represented the Secretary of State. Paul Bowen QC and Zahra Al-Rikabi represented Dr Butt.

In 2011 the Strategy was revised to cover the journey from extremism towards terrorist-related activity (including by the far-right). This attracted criticism, examples of which were collated and presented to support the claimant’s challenge to the lawfulness of the measures.  But Ouseley J dismissed all heads of claim, observing that he was

not concerned with whether some oppose the CTSA, or regard the Prevent Duty as counter-productive or have made it so, deliberately or through misunderstanding it.

What was decisive in this case was the absence of evidence that the Prevent Duty Guidance had had a chilling effect on free speech or academic freedom, as claimed.  The Prevent Duty Guidance, under section 26 of the CTSA, only came into force in 2015.  As those who apply it gain experience and confidence, they will make better judgments. But there will always be some mistakes. One way to avoid these is to have constructive discussion about the process, informed by evidence, not drowned out by “clamorous” criticism.

Background

Dr Butt is a British citizen and practising Muslim, who edits and contributes to a website, Islam21C. The Extremism Analysis Unit records his views as having

equated homosexuality with paedophilia and defended gender segregation as well as claiming criticism of segregation and FGM is an attack on Islam.

He was said in online posts to have celebrated the kidnapping of Israeli soldiers and was noted to have spoken alongside CAGE and supported their position on Mohammed Emwasi (“Jihadi John”), which sought to justify Emwasi’s resort to violence. Dr Butt’s counsel described him as having “orthodox conservative religious views”.

The press release accompanying the 2015 Prevent Duty Guidance named the claimant and six others as “expressing views contrary to British values” on campus.  

The Guidance in issue explains how universities should give effect to their duty under s.26 of the Counter-Terrorism and Security Act 2015 (CTSA). Section 26 provides that

a specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism.

The arguments before the court

Dr Butt himself gave no evidence that any invitation had been withdrawn because of the Guidance, although the Court accepted his assertion that he had had fewer invitations since being named in the press release. He had turned down other invitations “to avoid embarrassment”, but that was his choice. No institution complained that it had felt compelled to refuse Dr Butt an invitation to speak.

In the light of this evidence, the Court found that Dr Butt was not a “victim” within the meaning of the Human Rights Act, as he was not directly affected by the measure. As a claimant he was  asserting an inadmissible actio popularis.  Nevertheless, it went on to consider, and reject, the substance of the claim.

Dr Butt challenged the Guidance on three grounds. First he argued that the government had no power under the Act to do what they did.  The duty under the statute was to prevent people being drawn into terrorism, whereas the Guidance was about preventing people being drawn into extremism. Extremism is defined 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.

This definition also covers calls for the death of members of the armed forces.

The Court rejected this ground. It was clear, said Ouseley J, that the point of the duty and the Guidance was to prevent people being drawn into terrorism by way of extremism whether violent or non-violent. Non-violent extremism which did not create a risk that others would be drawn into terrorism, was not caught by the Guidance.

The claimant’s second ground alleged that in issuing the Guidance, the Home Secretary failed to “have particular regard to the need to ensure free speech in higher education institutions”, as required by section 31 CTSA.

A contentious section of the Guidance stated that where it was judged that views expressed, or likely to be expressed at an event were extremist views which risked drawing people into terrorism, the event should only proceed where the risk could be “fully mitigated”.  Mitigation might include challenging the speakers with opposing views.  Where the risks could not be mitigated, the event should not proceed.

The judge dismissed this argument. Despite being provided with a “welter of material critical of the Guidance”, Ouseley J observed that no education establishment had challenged the Guidance or provided evidence that it had created difficulties in practice for freedom of speech or academic freedom.

He made a similar point when dismissing Ground 3, which alleged the Guidance breached common law and ECHR rights to free speech, by reason of its lack of clarity, legitimate need and proportionality. The claim that anyone’s freedom of speech had been interfered with by the Guidance was, he said, “entirely unsupported by evidence”.  The criticisms of Prevent relied on by the Claimant were “clamorous” but most did not address the impact on freedom of speech, if any, or did so with no specific evidence to support the fears they expressed.

Reasoning behind the Court’s decision

The balancing act was for the education establishment to undertake. This would be context-specific, taking account of the individual institution, speaker, topic, mitigation and audience. While there was room for significant judgment and debate between the establishment and a Prevent duty coordinator, the scope of discretionary power was sufficiently delineated. Having examined universities’ policies under the s.26 duty, Ouseley J observed that, despite differing approaches, a common thread was that each took a considered and careful approach to the duty and the risks faced by students.

The claimant had argued that restrictions on external speakers were only necessary and proportionate if they were likely to condone or encourage violent extremism, other unlawful acts, or use criminal language.  Preventing people being drawn into non-violent extremism was not sufficient justification for placing restrictions on them. He also challenged, as lacking any evidential basis, the position that those exposed to non-violent extremist views were drawn into terrorism.

The starting point, ruled the Court, was that the CTSA and Parliamentary approval of the Guidance showed that the Government and Parliament considered that link to be established.  Further examination of Parliamentary materials – so far as was permissible – on balance supported that link. The Guidance did not assume that all terrorism began with non-violent extremism or that non-violent extremism necessarily led to terrorism.  In practice, it might mean that an extremist speaker faces at the same meeting, views contrary to and challenging of his own, in the form of a reasoned public debate.

The Court also dismissed the complaint that the collection, storage, use and disclosure of information on “extremists” by the EAU breached Article 8.

The EAU analyses extremism, (drawing on publicly available material, direct interviews and commissioned research) to inform government policy and ensure it doesn’t unknowingly fund or provide a platform to those who promote extremism. It does not draw up lists or designate individuals as “extremists”.

Research involving the claimant took place on three occasions. The first two sought to estimate how many events on university campuses in 2014 involved individuals who expressed extremist views. After the press release had named Dr Butt, further research was undertaken to respond to a question asked on his behalf by his Member of Parliament.

The Court did not consider this an interference with Dr Butt’s Article 8 rights or not to such a degree as to engage Article 8.

Distinguishing R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9, [2015] AC 1065, Ouseley J observed:

Here, the Claimant seeks to engage in public debate about issues of political, religious and moral controversy. He edits a website which seeks to do just that, and he contributes to it. He wants to go to RHEBs [Relevant Higher Education Bodies] so as to make his views known, and to stimulate debate or advance agreement with his views. 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. Indeed, as Mr Sanders rightly pointed out, the previous ground concerns his rights under Article 10 to do just that. I find it very difficult to reconcile arguments which say that he is entitled to make his views known, but also entitled to treat collection of data and research into those views as disrespecting his private life.

Although he found no interference with the claimant’s Article 8 rights, Ouseley J held – importantly -that had there been any, the provisions of the Data Protection Act 1998 provided an adequate regulatory regime to ensure that this was in accordance with the law for the purposes of Article 8(2).  Personal information can be collected, and used, for reasons including prevention of crime, disorder and anti-social behaviour and to keep the country safe from terrorism. If legitimately collected there was no reason why, in this case, it should have been deleted.

The judge heard an additional argument that the collection and storage of information was “directed surveillance” under RIPA, but dismissed it, ruling that it was neither surveillance nor directed.

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On 11 September 2017 One Crown Office Row is hosting a seminar on ‘Life, Liberty, and Security’ which will include debate on the issues raised in this post.  Marina Wheeler QC is one of the speakers.  If you are interested in attending the seminar, for which places are limited and which is strictly by invitation only, please contact Rebecca King (rebecca.king@1cor.com).