Court of Appeal declares Prevent Duty Guidance to be unlawful

08/03/19

The ‘Prevent Duty’ is the duty imposed on all public authorities, including universities and other higher education bodies (‘RHEBs’), to “have due regard to the need to prevent people from being drawn into terrorism” imposed by section 26 of the Counter Terrorism and Security Act 2015 (“CTSA”). 

On 17 September 2015, a press release was issued from the Prime Minister's Office and the Home Office entitled "PM's Extremism taskforce: tackling extremism in universities and colleges top of the agenda" (the Press Release).  It announced the coming into force on 18 September 2015 of the "revised Prevent Duty Guidance" (PDG) issued under the CTSA and entitled "A new duty to stop extremists radicalising students on campuses...." The purpose of the PDG and associated Higher Education Guidance (HEPDG) was to explain how RHEBs should give effect to their duty under s 26 CTSA. The press release referred to 70 events on university campuses featuring "hate speakers". Dr Butt was among six individuals named as ‘extremists’, defined as someone who had expressed views “contrary to British values", and who had spoken to students on campus.  The HEPDG required RHEBs, among other things, to consider preventing ‘extremist’ speakers from attending to speak to students on campus.

The source of the assessment that Dr. Butt was an ‘extremist’ was the Extremism Analysis Unit (EAU) which is a unit within the Home Office that supports public authorities in the exercise of the Prevent Duty. The EAU conducts “all source” research into individuals, as well as identifying extremist networks and trends. The EAU had gathered and stored publicly available information concerning Dr. Butt from the internet from which it had created a profile of him and assessed he was an ‘extremist’ and then shared that assessment with the Prime Minister’s office.   

Dr Butt, a Muslim writer and regular speaker at universities, challenged two decisions before the Administrative Court: (1) the lawfulness of the PDG and HEPDG because of the risk that it interfered with the rights of speakers and students to impart and receive information, in breach of their rights of free speech; and (2) the collection, storage, use and dissemination of his personal data by the EAU which breached his rights of private life and data protection.  He also issued proceedings for defamation in relation to the Press Release.  The defamation claim was dismissed in a separate hearing in the High Court and is currently the subject of a separate appeal.

On 26 July 2017 the High Court (Mr Justice Ouseley) dismissed Dr. Butt’s challenge to the PDG and HEPDG.  The Court of Appeal has today overturned that decision.  The Court of Appeal found that the Secretary of State breached his duty to promulgate guidance that was sufficiently balanced and accurate to inform the  decision-maker in an RHEB of their competing obligations both to ensure free speech and to prevent people being drawn into terrorism and to assist them to a proper conclusion.  This guidance must now be redrafted by the government in the light of the judgment; the redrafted guidance will need to be approved by Parliament.

Dr. Butt also argued that the activities of the EAU had breached his rights to private life under Article 8 of the Convention.  The EAU had collected, stored and used information about Dr. Butt in developing a profile and forming an assessment that he was an ‘extremist’ which Dr. Butt argued had interfered with his right to private life under Article 8(1).  Dr. Butt also argued that the absence of any publicly available legal framework for the activities of the EAU meant that the interference was not ‘in accordance with the law’ or proportionate under Article 8(2); moreover, that it amounted to ‘directed surveillance’ which required an authorisation under the Regulation of Investigatory Powers Act 2000 (“RIPA”).  The High Court and, now, the Court of Appeal have rejected this part of his claim but Dr. Butt is seeking permission to appeal this aspect of his case to the Supreme Court.

A link to the judgment can be found here; links to press releases from the Court and Bindmans LLP are here and here.