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Prevent Duty Part 3: British Values, Human Rights and handling “due regard” duty in practice

Prevent Duty Part 3: British Values, Human Rights and handling “due regard” duty in practice

In this third article Declan O'Dempsey looks at the concept of “British Values” in the context of the Prevent Duty.  It appears in the definition of “extremism” in the Guidance.  British values are mentioned in the Guidance.  However only examples are given of what constitute British values. In a post Brexit discussion these values have taken on a more important aspect.  To what extent is tolerance a British Value?  

What are Fundamental British Values (FBV)?

No definition is given on any statutory basis, so these may vary depending on the government of the day. Other attempts to define FBV exist however.  There is a chain of case law suggesting that certain values are fundamental.  These can be obtained from consideration of:

(a) the common law;

(b) international law and treaty commitments by the UK.

A good starting point might be the statements of the courts preceding modern human rights law:

1.  Every citizen is free to carry on any activity not expressly limited or prohibited by law.

2.  Public officials may only interfere with a citizen's personal liberty and property where authorised by the common law or by statute. 

The rule of law is also cited as a fundamental British value.  However what that means needs to be drawn out explicitly in this context. In Entick v Carrington (1765) 95 ER 807 the defendants claimed authority under a warrant from the Secretary of State to break into the plaintiff’s house and take some papers which were said to be seditious. The plaintiff sued in trespass. It is the classic common law's commitment to the constitutional principle of the rule of law.

“In the case of Wilkes, a member of the Commons House, all his books and papers were seized and taken away; we were told by one of these messengers that he was obliged by his oath to sweep away all papers whatsoever; if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the Revolution,…we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.”

Another important statement of fundamental British values is found in Beatty v Gillbanks (1882) 9 QBD 308.  There the court overturned a finding by magistrates on the prosecution of persons who, with others, formed themselves into an association for religious exercises among themselves, and for a religious revival which they desired to further among certain classes of the community with no violent objective. The court commented of the proposition that “a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition…”.  Absent explicit incitement laws remains the law.

Human rights

Certain human rights will form part of fundamental values because they have the status of customary international law or because they are part of the treaty obligations of the UK which can be brought into account when considering a duty to have due regard. In Stuart Bracking & Ors v Secretary of State for Work and Pensions[1]  the Court of Appeal used an international convention to inform the content of a due regard duty.  The obligation was under the UN Convention on the Rights of Persons with Disabilities (UNCRPD).  There was no evidence that regard had been had to the specific obligations under the UNCRPD.  Elias LJ stated that these international obligations which the UK has undertaken with respect to the disabled ought to inform the scope of the public sector equality duty with respect to the disabled. So the details of the international obligation can help the court to find a sense of what “due” regard will look like in a particular case.   

In the context of the Prevent Duty therefore a number of different international human rights may be germane.  The following are recognised in international law as necessary to allow persons to enjoy a dignified existence:

-              physical integrity (embodied in international conventions such as Universal Declaration of Human Rights UDHR (art 3));

-              liberty;

-              freedoms of expression and thought.  This freedom which is important at common law in particular is relevant to the Duty. 

'Political human rights' include:

-              freedom of political participation and voting rights (UDHR (1948) Article 21).

-              International Covenant on Civil and Political Rights (1976) Article 25. 

-              Convention for the Protection of Human Rights and Fundamental Freedoms .

'Economic and social rights' include:

-              ability to work (right to work - Article 23 UNDHR. (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment); and

-              ability to participate in society   -  see the International Covenant on Civil and Political Rights (New York, 16 December 1966; TS 6 (1977); Cmnd 6702))  Article 21 UDHR and Article 25 International Covenant on Civil and Political Rights (ICCPR) both stipulate the right to vote and to be elected ‘at periodic and genuine elections, which shall be by universal and equal suffrage’ and shall be held by secret ballot or by equivalent free voting procedures, guaranteeing the free expression of the will of the electors, and that everyone has the right to equal access to public service in his or her country.

Speech and conduct offences

The guidance provided by Universities UK deals with the catalogue of criminal offences which universities need to take into account in relation to issues of free speech and the Prevent Duty. Clearly there is no obligation to uphold illegal free speech which would amount to a criminal offence. 

However apart from inciting substantive offences such as terrorism, the criminal law is more specific about ‘speech and conduct’ offences. 

There is already a series of acts which (without the Prevent Duty) would be legitimate for the university not to support whilst supporting free speech. Incitement to any of the following would be illegal.

The offences are:

-              belonging, or professing to belong, to an organisation proscribed by the secretary of state;

-              inviting support (other than money or other property) for a proscribed organisation;

-              addressing a meeting (of three or more persons) with the purpose of encouraging support for a proscribed organisation or to further its activities;

-              wearing an item of clothing or wearing, carrying or displaying any article in such a way or in such circumstances as to arouse reasonable suspicion that you are a member or supporter of a proscribed organisation.

Under the Terrorism Act 2006 to:

“ publish, or cause another to publish, a statement likely to be understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism with the intent that members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism, or being reckless as to whether that effect will be caused.”

There is a strong case for saying that the Prevent Duty can never go beyond having due regard to the need to avoid these offences within a context in which all lawful free speech is to be protected.

Civil law

Defamation and malicious falsehood and the civil law rights under the Protection from Harassment Act 1997 need to be taken into account in relation to the Prevent Duty.  However these do not, in my view, create any greater burden on the universities under the Prevent Duty.

Equality and discrimination legislation – Equality Act 2010.

The guidance makes the rather extraordinary claim that “equality and discrimination legislation is a significant civil law constraint on the freedoms of speech and expression and on academic freedom”.

Academic free speech includes speech which offends.  The Equality Act 2010 concept of harassment involves the courts and tribunals in considering whether unwanted conduct relating to a protected characteristic can reasonably be seen to create an offensive atmosphere.  The university context of free speech and debate is vital in determining that question in an appropriate case. It is true to say that “if speech or conduct amounts to unlawful discrimination, it falls outside the scope of those freedoms on the grounds that it is no longer ‘within the law’”.  However it is important to note what the guidance next says:  “the rationale being that the fundamental rights of others are infringed”.

The guidance fails to note that the constraint on free speech does not arise from equality law as such.  The constraint on free speech is that the Article 10 right carries with it responsibilities and speech which is not being used responsibly is not protected.  If speech is being used to undermine the Article 8 and Article 14 rights of another person, then it is not protected under the Convention.

The provisions of the Equality Act 2010 therefore place no greater restraint on academic freedom than is already present due to the requirement to ensure the Article 8 and 14 rights of those whose rights would otherwise be infringed.  Article 8 of course also imports a duty to a state to secure the rights of persons under it.  This takes the form of a positive obligation to secure freedom from harassment by means of the abuse of free speech. Whilst the guidance in this respect flags up the need to consider the perception of the recipient of the speech, the law in reality requires you to consider all of the circumstances and to apply a judgment as to the effect.

Data protection constraints

The Data Protection Act 1998 does represent a restraint, not on free speech as such, but on the circumstances in which information can be regarded as in the public domain or requiring special permission to use.  The impact of the DPA on the Prevent Duty is potentially a serious one. Legislation will be needed to permit universities to do much of the data sharing that the guidance suggests might be done. It is otherwise likely to expose universities to claims for breach of the DPA 1998, injunctive proceedings and or claims for financial loss/damages for breaches of human rights and or distress damages under the DPA.

Freedom of speech

The European Convention on Human Rights and Fundamental Freedoms.

Article 10 – Freedom of expression:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In the context of extremism it is worth recalling that Handyside’s case was said to concern restrictions on free expression must be “prescribed by law” (para 44).  The basis of restrictions must be clear, on the other hand, and it is not by any means clear that the restrictions that the Prevent duty might place on freedom of expression are themselves clear.  This is because the basis of a restriction may simply be that this is a way of an organisation having due regard to the need to prevent persons being drawn into terrorism.   It is doubtful therefore that the Prevent duty could form a lawful basis for supressing free speech, regardless of any requirement to ensure free speech in statute.

In addition the restrictions must be necessary in a democratic society for one or more of the stated purposes.

The aim of the protection of the rights of others, including their right to life (article 2 ECHR) is a legitimate aim in relation to the Prevent Duty.  In that regard the right to life is a common concept among all the signatories of the ECHR.

Accordingly in relation to the restrictions on the right to freedom of expression being curtailed by the Prevent Duty, the state has a margin of appreciation. However in Handyside the Court stated that freedom of expression is one of the principles characterising a democratic society as one of it essential foundations. It is applicable to ideas which offend, shock or disturb the state or any sector of the population.  “Such as the demands of that pluralism tolerance and broadmindedness without which there is no “democratic society””.    So every condition on it must be proportionate to the legitimate aim pursued. The individual has duties and responsibilities dependent on his situation and the technical means used. The court cannot overlook these duties and responsibilities when it asks whether restrictions or penalties were conducive to the protection of morals (for example) which made them “necessary” in a “democratic society.

Thus the Article 10 rights of a person seeking to put forward extremist views tending to draw people into terrorism can lawfully be curtailed by the Prevent Duty in general terms. 

However that does not assist the university much. This is because the restriction may be valid in one case but not in another depending on whether the expression created a greater or lesser risk of drawing people into terrorism and whether there were ways in which that risk could be mitigated.

The principles were put in the following way in the Observer v UK case arising out of the Spycatcher book publication:

(a)          Freedom of expression, as enshrined in Article 10 (art. 10), (and described above) is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

(b)          These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the "interests of national security" or for "maintaining the authority of the judiciary", it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog".

(c)           The adjective "necessary", within the meaning of Article 10 para. 2 (art. 10-2), implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10 (art. 10).

(d)          The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review.

Extremism and freedom of expression

In Perinçek v Switzerland [GC], no. 27510/08, ECHR 2015 the Grand Chamber of the ECHR  rejected the aim of “the prevention of disorder” advanced by the Government in relation to statements about the Armenian genocide. Highlighting the different meanings of the English and French text (“la défense de l’ordre”) and underlining that any restrictions on Convention rights were to be interpreted narrowly, the narrower English meaning was retained. Since it had not been shown the applicant’s statements had led, or were capable of leading, to disorder in the sense of public disturbances, the Court was not satisfied that the interference with his expression pursued the “prevention of disorder”. The interference was found to pursue the aim of the protection of the “rights of others” (the identity and dignity of the descendants of the victims of the events of 1915 and later years).

The case has significance in the context of the Prevent Duty and its interaction with freedom of expression.

It notes a number of points at which the right to free expression confronts other rights.  However it noted that the State is to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes every form of idea and opinion capable of transmission to others (e.g. political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse). It embraces even expression that may be regarded as deeply offensive. Such expression may be restricted in accordance with the provisions of article 19(3) and article 20 ICCPR.

As to the application of article 19 (3) ICCPR “respect for the rights or reputations of others” includes human rights as recognized in ICCPR and more generally in international human rights law. Freedom of expression may be limited in order to protect the right to vote under article 25.  However such restrictions must be constructed with care; while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.

The term ‘others’ relates to other persons individually or as members of a community. 

In relation to the approach to derogations from the right of free expression the case notes that as to “protection of national security or of public order (ordre public), or of public health or morals”, if a state invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.

The court also noted Article 20 ICCPR to the effect that “2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”  Propaganda for war is also to be prohibited.

Thus the Court has suggested that there are situations where the content of what is being said can amount to a reason to supress expression.  However the Prevent Duty could only lead to this result if there was a specific an individualised threat to public order arising out of the expression.  In the UK the criminal law will cover most if not all such situations. 

Using Article 17 of the ECHR

What is the best way of considering whether free expression is being used responsibly so as to attract the protection of the ECHR?  Whilst instruments such as the ICCPR are useful for seeing how the right of free expression is to be treated, I suggest, in that context a more widely useful and better talisman for the decision maker is probably Article 17 of the ECHR. 

Although this was not incorporated directly in the UK law, it states that rights under the ECHR may not be manipulated to undermine the aims of the Convention. It is a very useful interpretive tool.  Article 17 was included because a person or a group of persons might attempt to rely on the rights enshrined in the Convention to derive the right to conduct activities intended to destroy these rights (Ždanoka v Latvia ([GC], no. 58278/00, § 99, ECHR 2006-IV)).

Article 17 is only applicable on an exceptional basis and in extreme cases (Paksas v Lithuania [GC], no. 34932/04, § 87). Its effect is to negate the exercise of the Convention right that the applicant seeks to vindicate in the proceedings before the Court.

In cases concerning Article 10 of the Convention, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention.

Article 17’s aim is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated in the Convention (see W.P. and Others v Poland (dec.), no. 42264/98, ECHR 2004-VII, and Norwood v the United Kingdom, no. 23131/03, ECHR 2004-XI).

A “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see Lehideux and Isorni v France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy v France (dec.), no. 65831/01, ECHR 2003-IX). 

The logic of this is clear.  This is what gives substance to the idea of responsible free expression and prevents that concept from becoming a general brake on the right of free expression in cases where what is expressed is not liked by the state. 

Examples of the application of this principle in relation to extremist expression can be found in Hizb ut-Tahrir and Others v Germany (dec.), no. 31098/08, §§ 73-74 and 78, 12 June 2012, and Kasymakhunov and Saybatalov v Russia, nos. 26261/05 and 26377/06, §§ 106-13, 14 March 2013.

How to use the Article 17 approach

In looking at whether Article 17 can operate, the authority can look at the general tenor and content of the body of expression being restricted: 

-        Do they run counter to the fundamental values of the Convention and of democracy, namely justice and peace, tolerance etc? 

-        It is permissible to consider whether freedom of expression is being used for ends which are contrary to the text and spirit of the Convention (Witzsch v Germany (dec.), no. 4785/03, 13 December 2005, Norwood above and Pavel Ivanov v Russia ((dec.), no. 35222/04, 20 February 2007).

Statements pursuing the unequivocal aim of justifying war crimes such as torture or summary executions are likely to amount to deflecting Article 10 from its real purpose (Orban and Others v France (no. 20985/05, § 35, 15 January 2005)).

Computer speech

The Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (European Treaty Series No. 189, 2466 UNTS 205), is a relevant Council of Europe document which would permit derogation from the principle of free expression in the case of denial, gross minimisation, approval or justification of genocide or crimes against humanity, but it has not been ratified by the UK.

Hate speech

On 30 October 1997 the Committee of Ministers of the Council of Europe adopted Recommendation 97/20 on “hate speech”.  This laid down guidelines for the governments of the member states on how to address hate speech. It defines “hate speech” as “covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”.  Principle 2 requires legal systems to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.  In principle 3 the Council was also clear that in its legal framework “interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.”  By principle 4 courts should be permitted to bear in mind “that specific instances of hate speech may be so  insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.”

There is generally a clear line as to what will constitute speech or conduct which carries with it a risk of drawing people into terrorism. It is also clear that interference with free speech falling short of the advocacy of violence will be difficult to justify.

In the next article I look at the practical operation of a due regard duty.  Universities which support free speech which is lawful should have little difficulty in taking the mitigating steps a due regard duty can require of them.

 

See earlier articles on Prevent Duty:

Part 1: Prevent Duty for Universities

Part 2: Prevent Duty- Government Guidance and Practical Guidance


[1] [2013] EWCA Civ 1345 (06 November 2013)  and AH v West London Mental Health Trust [2011] UKUT 74 (AAC) (at [16] [17] in AH))

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