Challenge to the Prevent Duty Guidance fails before the High Court

On 26 July 2017 the High Court ruled on a challenge brought against the Prevent Duty Guidance in Butt v. Secretary of State for the Home Department.

The challenge was brought by Dr. Salman Butt, a British Muslim who was named in a press release issued by the Office of the Prime Minister and the Home Office which announced the coming into force of the new Prevent Duty Guidance in September 2015. Dr. Butt claimed that he was affected by being referred to as an extremist and impliedly as a hate speaker.

The claimant based his challenge on the following:

  1. That the Guidance was issued in excess of the powers granted by statute;
  2. That the Guidance does not comply with the duty of higher education institutions to ensure free speech;
  3. That the Guidance, by lacking clarity, a legitimate need and proportionality, breach the common law and human rights in relation to free speech.

He also challenged the collection, storage and dissemination of data by the Extremism Analysis Unit claiming that this amounted to an unjustified interference with his human right to respect for private and family life.

Section 29 of the Counter-Terrorism and Security Act creates the power to give guidance about the exercise of the Prevent Duty (to have due regard to the need to prevent people from being drawn into terrorism). The claimant contended that the Guidance went beyond this and was about preventing people from being drawn into extremism, including non-violent extremism.

The Court rejected this challenge and stated that although the Guidance refers to non-violence extremism it does not equate non-violent extremism with terrorism “on any reasonable reading”, and its application is limited because it does not apply to extremism which does not draw others into terrorism. The Guidance aims to reduce the risk of people being drawn into terrorism by extremism, whether violent or not.

With regard to the second ground of challenge, section 31 of the Counter-Terrorism and Security Act requires institutions carrying out their obligations under the Prevent Duty to have regard to the duty to ensure free speech and “particular regard” to the importance of academic freedom. The Court considered that academic freedom was not engaged because the claimant is not a member of academic staff, and also stated that it is unlikely that the Guidance could affect academic freedom generally.

Despite the prescriptive language used in requiring meetings in which risks related to external speakers cannot be mitigated to be cancelled, higher education intuitions are only required to have regard to the Guidance and are not bound to abide by it. Institutions should put in place systems for assessing risks with planned events in order to make decisions on whether events should proceed or if risk-mitigating measures are required, on a case-by-case basis. The Guidance therefore does not by itself amount to a breach of section 31.

The Court stated that the Guidance: “is about advising on or helping decision-making, not taking decisions for the institutions.  The guidance requires certain issues to be considered, and then, whether within or outside the guidance, the RHEBs have to  consider their other related duties. One way or another, they all do that and do it as they see best for their particular institutions.”

For the reasons set out above, that the scope of the guidance is limited to cases when there is a risk of people being drawn into terrorism and that institutions are not bound by it, the Court also concluded that there was no breach of the claimant’s rights to free speech.

On the claim that the collection, storage and dissemination of personal data by the EAU breached the claimant’s right to private and family life the Court considered domestic jurisprudence on the definition of “private life” which refers to when an individual has a reasonable expectation of privacy in the relevant respect. The claimant’s representative contended that even though the claimant had no expectation of privacy in relation his public appearances and published articles, he had a reasonable expectation of privacy in relation to the state’s collection, storage, retention and disclosure of sensitive information including his religious belief and political opinion. Consent to processing could not be inferred on the basis of the public nature of the information.

The Court considered that there was no reasonable expectation of privacy and therefore his right to private and family life was not breached. Although the EAU’s work could involve interference with the claimant’s right, it had not done so in this case because it did not involve any private information.

The decision places more responsibility on institutions which might have previously relied disproportionately on the Guidance when making decisions about whether to allow contentious meetings to proceed or not. The Court made it clear that the Guidance is only one of a multitude of considerations which institutions must take into account in their balancing exercise. It will not be enough to explain a decision simply by making reference to the Guidance and if an institution’s decision is contested it must be able to show evidence of rigorous deliberations.

Lauro Fava
Paralegal
T: 0121 631 5245
W: www.shma.co.uk

E: lauro.fava@shma.co.uk

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