Challenge to ‘Prevent duty’ in universities rejected in judicial review proceedings

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).

On 3rd August 2017 it was announced that, a week before, the High Court had rejected a claim, brought in judicial review proceedings by Dr Salman Butt, that the inclusion of his name in an official press release about tackling extremism in universities and colleges was unlawful and in breach of his human rights (Salman Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin)). Relying on information provided by the Home Office Extremism Analysis Unit (EAU), which had opposed the publication of any names, the press release referred to 70 events on university premises in 2014 featuring ‘hate speakers’. However, as the result of an ‘oversight’, six people including Dr Butt, were also identified as ‘expressing views contrary to British values’ on campus. The judgment in this case is the first significant judicial contribution to the debate about the ‘Prevent duty’ created by s.26 of the Counter-Terrorism and Security Act 2015 (CTSA) which requires schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’.

The claimant, a practising Muslim with a PhD in biochemistry, is editor in chief of Islam21C, a publicly available website which describes itself as ‘articulating Islam in the 21 Century’. He is also an occasional speaker, chair, and panel participant at university student, particularly Islamic, society events. Dr Butt maintains that he rejects terrorism and denies he is an ‘extremist’. He also claims to hold lawful ‘orthodox conservative religious views’, shared by many others, and to support the core British values of ‘democracy, the rule of law, liberty and respect and tolerance of other faiths and beliefs’. The judgment cites information, compiled by the EAU, that he had, amongst other things, ‘equated homosexuality with paedophilia … defended gender segregation’, claimed ‘criticism of segregation and FGM is an attack on Islam … celebrated the kidnapping of Israeli soldiers and referred to Israelis as “pigs”’. But the judge, Mr Justice Ouseley, explicitly avoided expressing an opinion about these views. Dr Butt also alleged that the press release implied he was a ‘hate speaker’ and that it had resulted, not only in a decrease in invitations to address tertiary sector audiences, but also in his own decision to decline those he received in order not to embarrass his prospective hosts. A claim for damages – for defamation, for breach of the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR), and for breach of the Data Protection Act 1998 – was held to be beyond the scope of judicial review but may be pursued in separate proceedings.

Mr Justice Ouseley’s thorough, robust, and at times strongly-worded 68-page judgment uncompromisingly rejects each of the arguments relied upon by the claimant. The court held that, properly construed, the Prevent Duty Guidance and Higher Education Prevent Duty Guidance (‘the guidance’) are not beyond the scope of the Prevent duty, as Dr Butt alleged, because, rather than equating ‘non-violent extremism’ with ‘terrorism’, they merely recognise that the former could potentially, though not invariably, be an element in the process of ‘being drawn into’ the latter. Mr Justice Ouseley acknowledged that, while this distinction is not easy to draw, and there may be forms of non-violent extremism which do not risk drawing others into terrorism, this does not mean that the inclusion of non-violent extremism is beyond what the Prevent duty lawfully permits. Nor does the guidance fail to comply with the duty under s. 31 CTSA which requires, when the Prevent duty is exercised, that ‘particular regard’ (a stronger obligation than ‘due regard’) be paid to ensuring freedom of expression and to the importance of academic freedom.

The judge also rejected the claim that the guidance violated Dr Butt’s right to freedom of expression under Article 10 of the ECHR on the grounds that he was not a victim of the alleged breach as the Convention requires. He had no legal right to express his views on university campuses and there was no evidence that any event at a university involving the claimant or anyone else had been cancelled in exercise of the Prevent duty. At best, therefore, Dr Butt’s complaint concerned possible future, rather than actual, violations. Moreover, the Prevent duty could not be said to have had a ‘chilling effect’ upon his freedom of expression because he remained free to express his views in numerous other ways. However, Mr Justice Ouseley also held that, even if Dr Butt had been a victim of an interference with his Article 10 rights, the guidance fulfilled the ECHR ‘legality test’ because, although it permitted discretion in how certain identifiable factors were taken into consideration and did not mandate any particular result, it was sufficiently accessible and its effects were reasonably foreseeable. Since it also pursued the legitimate aim of preventing people from being drawn into terrorism, and was proportionate, it therefore also complied with the ECHR ‘democratic necessity test’. However, the judge expressly recognised that different circumstances might give rise to an Article 10 violation.

It was also held that, because the information collected by the EAU concerned views Dr Butt had expressed in public, and which he wished publicly to promote, there was no interference with his right to respect for his private life under Article 8 ECHR. In any case, the legality and democratic necessity tests had also been fulfilled with respect to this provision for substantially the same reasons as for Article 10. Finally, Mr Justice Ouseley also found, largely for the reasons supporting his rejection of the claimant’s other arguments, that the activities of the EAU did not amount to surveillance under the Regulation of Investigatory Powers Act 2000.

The Prevent duty in universities has been vehemently denounced by the anti-Prevent movement as a thinly-disguised form of spying and intelligence-gathering, driven by official Islamophobia and racism, which legitimises Islamophobia in society at large, criminalises harmless, law-abiding Muslim communities, violates the rights to privacy, freedom of expression and non-discrimination, seriously threatens academic freedom, stifles campus activism, requires staff to engage in racial profiling, has a chilling effect on public debate, and jeopardises safe and supportive learning environments. While the Butt case was not a particularly strong one and did not raise or ventilate all the controversial issues – there was, for example, no claim that the Prevent duty itself violates the ECHR and both sides accepted that there was no evidence that the guidance led to unlawful indirect discrimination against Muslims – the judgment, nevertheless, authoritatively addresses concerns about guest speakers on campus. It also confirms that ‘non-violent extremism’ may lawfully and legitimately be taken into account when the Prevent duty is exercised, but only where it is deemed to contribute to the risk of people being drawn into terrorism. Some forms of ‘non-violent extremism’ will, in other words, be implicated but others will not. And, while this distinction may not be easy to draw, it is not for this or other reasons untenable.


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