On 26 July 2017 the High Court gave judgment in a judicial review claim brought by Dr Butt concerning the lawfulness of guidance issued by the Secretary of State for the Home Department (SSHD) on the statutory Prevent duty. The revised Prevent Duty Guidance (PDG) and associated Higher Education Prevent Duty Guidance (HEPDG) (together the Guidance) were issued by the SSHD under a power in s.29 of the Counter Terrorism and Security Act 2015 (CTSA). The legal challenge focused primarily on the interplay between:
- Section 26 CTSA (the duty on public authorities to have “due regard” to prevent people from being drawn into terrorism);
- Section 29 CTSA (the power on the SSHD to issue guidance about the exercise of the s.26 duty);
- Section 31 CTSA (the duty on relevant public authorities and on the SSHD in issuing guidance under s.29 to have “particular regard” to ensuring freedom of speech within the law and to the importance of academic freedom, as required in other legislation); and
- the common law / the right to freedom of expression contained the European Convention on Human Rights.
The judicial review claim also challenged the legality of the collection, storage and dissemination of data by the Government’s Extremism Analysis Unit.
Whilst ultimately the claims were dismissed, Mr. Justice Ouseley considered the Guidance and the issues in the claim in depth in a lengthy judgment (277 paragraphs).
Particular scrutiny was given to paragraph 11 of the HEPDG. 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 [institutions] are entirely convinced that such risk can be fully mitigated without cancellation the event.”
The judge explained that the “issue in my judgment is one of the proper construction of the guidance”, noting that the “s26 duty relates to the need to prevent a process occurring, the process of being drawn into terrorism”.
A number of points were drawn out in the judgment, including that:
- the HEPDG confirmed that the s.26 Prevent duty is intended “to be implemented in a proportionate and risk based way”;
- the HEPDG requires “properly thought through procedures and policies” to be in place, “properly followed and applied” - this includes an institution’s code of practice on freedom of speech.
- the Guidance is not applicable if “opposition to fundamental British values” or “non-violent extremism” is identified but the behaviour (“however undesirable”) does not create a risk that others will be drawn into terrorism.
The judge confirmed that the status of the Guidance as just that, guidance:
“The HEPDG and PDG are guidance and not direction, let alone free-standing ones; the obligation on [Relevant Higher Education Bodies] is to have regard to them. Institutions are responsible for their own decisions, including those related to external speakers on campus. But the duty of an institution, considering the application of the guidance in a concrete case, is to consider it along with its duties in relation to academic freedom and freedom of speech, for which purpose it should have established a code of practice, under s43 EA 1986. What the guidance says is that where risks cannot be mitigated so that they are eliminated, the meeting should be cancelled. The institutions are then entitled to say, having regard to the application of the HEPDG, that the freedom of speech duties and the academic freedom duties to which they have to pay particular regard, are more important. They have to consider the degree to which they have mitigated the risks as fully as they realistically can, and the nature and degree of the risks that they cannot remove. But that done, they are not in breach of their duties under s29 or s26 or s31 if they decide to proceed. Their actions may not comply with the terms of the HEPDG, but the HEPDG is not law, and the duty in s29 has to be reconciled with other particular duties.” (paragraph 61)
The judgment of the High Court provides helpful confirmation of a number of important issues in a complex area.