Balancing freedom of speech and security

Earlier this month on 8 March 2019, the Court of Appeal gave its judgment in the case of R (on the application of Salman Butt) -v- Secretary of State for the Home Department [2019] EWCA Civ 256. The claimant, Dr Butt, had brought a claim for judicial review against the Home Office challenging (1) the lawfulness of the Higher Education Prevent Duty Guidance and also (2) the collection, recording and sharing of information relating to him by the Government's Extremism Analysis Unit.

The Court of Appeal dismissed Dr Butt's challenge under Article 8 of the European Convention of Human Rights (the right to a private and family life) in respect of the information gathering and sharing activities of the Government's Extremism Analysis Unit. However the Court of Appeal did determine that the Secretary of State did not promulgate sufficiently balanced and accurate  guidance to higher education institutions on the statutory Prevent Duty setting out their competing obligations to assist institutions to reach proper conclusions. The Court of Appeal noted as follows:

"The [Higher Education Prevent Duty Guidance] in general, and paragraph 11 in particular, is expressed in trenchant terms. The HEPDG is not only intended to frame the decision of [Relevant Higher Education Bodies] on the topic in question, it is likely to do so....Even the well-educated reader called on to take a decision on behalf of a university is likely to assume that this particular focused guidance already represents a balance of the relevant statutory duties affecting the RHEB decision-maker."

The Court of Appeal declined to attempt a redraft of paragraph 11 of the HEPDG 'since that is a matter for the government'. We await a revised version of the HEPDG.

However, it is appropriate to note that the statutory obligations on relevant higher education bodies continue, notwithstanding the decision of the Court of Appeal relating to the guidance issued by the Home Office. The statutory duty in section 26 of the Counter-Terrorism and Security Act 2015 is for the specified authority "to have due regard to the need to prevent people from being drawn into terrorism." Section 31 CTSA provides that relevant higher education bodies must have "particular regard to the duty to secure freedom of speech" when complying with the statutory Prevent Duty.

"Terrorism" is defined in the Terrorism Act 2000 (as amended) and that legislation sets out a number of specific terrorist offences in addition to other offences prohibited by the criminal law. See our recent blog on the Counter-Terrorism and Border Security Act 2019 which aims to update the existing terrorism offences for the digital age and to strengthen the enforcement authorities' ability to intervene to stop terrorist activities.

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