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Prevent Duty Part 4: Practical operation of a “due regard” duty: lessons from the Equality Act 2010 for the application of the Prevent Duty by universities

Prevent Duty Part 4:  Practical operation of a “due regard” duty:  lessons from the Equality Act 2010 for the application of the Prevent Duty by universities

In his fourth article on Prevent Duty Declan O'Dempsey looks at the similarities between the Prevent Duty to have due regard and consider what the practical application of that duty to have due regard will look like in the light of the existing body of case law on the analogous s 149 of the Equality Act 2010.

The duty under section 149 Equality Act 2010 is a duty to have due regard to the need to achieve certain equality aims.  It is a duty which is non-delegable. The university cannot therefore be told what the requirement of due regard is in any particular case.  A direction issued because of the view of the Secretary of State as to what the content of due regard was in a particular case would be unlikely to be lawful unless the university in question had acted in a Wednesbury unreasonable manner in assessing due regard.

One of the leading cases on “due regard” duties of this nature is Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2008] EWCA Civ 141. Dyson LJ said such a duty is “not a duty to achieve a result”, but a duty “to have due regard to the need” to achieve the goal (see para 30-31 Baker).  It is a duty which applies to specific single decisions and not just policy development (see by analogy Michael Pieretti v London Borough of Enfield [2010] EWCA Civ 1104). 

Another useful case for guidance in this area is Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, approved (as currently advised) by the SC in Hotak v Southwark LBC [2015] UKSC 30).  The EWCA stated the following propositions.  I have included some notes on how this approach can be adapted for the Prevent Duty.

(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [1] equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

The Prevent Duties can equally be said to be integral to the mechanisms of anti-terrorism legislation.

(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2] (Stanley Burnton J (as he then was)).

Universities should keep a record of the steps that they have taken in order to show how they have had “due regard” to the prevent need.

(3) The relevant duty is upon …[the].. decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the … decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[3].

The importance of ensuring that the decision making body is fully aware of this aspect of its Prevent duty cannot be over emphasised.  In the context of Prevent it must mean that the decision maker is fully aware that the Secretary of State cannot require any particular step, such as cancellation of a meeting, if the decision maker has had due regard in the context in which the function is being exercised (e.g. academic free speech).

(4) A [decision maker] must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing.[4]

This aspect of “due regard” duties singles them out from other types of administrative law duties in which it is possible to argue that there was no breach because the “breach” made “no difference”.  The duty is not merely a procedural duty.

(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[5], and I set them out here in so far as they expand on what I have already set out:

i) The duty must be fulfilled before and at the time when a particular policy is being considered.

iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument.

In the Prevent context the guidance issued by the Secretary of State tends to suggest that the mind should not be open but should be very risk averse.  It is not clear that this position would be sustainable in the light of the counter pressures from those affected by the university’s action taken pursuant to the duty.

(6) “[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (per Davis J (as he then was) in R (Meany) v Harlow DC[6].)

In the Prevent context this means that universities need to consider individual situations for their risks.  It would not necessarily be enough to say that the risk is fully mitigated because there is a person who can speak at the same event as the risky speaker, if the person brought in to speak against the extremist view is not of the same standing, has less respect, or is seen as less independent than the “risky speaker”.  A speaker who lacks credibility with a putative audience will be unlikely to be sufficient mitigation of the risk of persons being drawn into terrorism by a well known charismatic speaker.

(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”: R (Domb) v Hammersmith & Fulham LBC[7].

In respect of Prevent duties those advising universities will need to undertake, perhaps substantial, research into the risks and ways of mitigating the risks and in showing the factors which are relevant to due regard.

The next passage is, however, perhaps the most important one in the context of the government’s guidance:  

(8) Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [8]stated that it is “not for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.”

He went on to say @[78] that “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

@ [89] Elias LJ stated that the duty involves a duty of inquiry. It requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Elias LJ agreed with Aikens LJ in Brown (@ para [85]):

‘….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.’

Box:  Due regard guidelines for the Prevent Duty

(1) the public authority exercising functions that might involve a risk of persons being drawn into terrorism must be made aware of the duty to have ‘due regard’ to the identified goal of avoiding persons being drawn into terrorism.  An incomplete or erroneous appreciation of the duty will mean that ‘due regard’ has not been given to it; this will include a proper appreciation of the duties under section 31 of the 2015 Act.

(2) the ‘due regard’ duty must be fulfilled before and at the time that a particular policy that will or might affect these issues is being considered; it involves a conscious approach and state of mind;

(3) the duty must be exercised in substance, with rigour and an open mind; it must be integrated within the discharge of the functions; it is not a question of ‘ticking boxes’;

- the fact, however, that the authority has not mentioned section 26 CTA 2015 specifically in carrying out a particular function is not determinative of whether or not the duty has been performed, but it is good practice for the policy or decision maker to make reference to the provision and any code or other non-statutory guidance in all cases where section 26 is in play;

(4) the duty is a non-delegable duty, so that the advisers to the decision maker must make sure that the relevant information on the basis of which a proper decision can be made is put before the decision maker;

(5) it is a continuing duty; this means that the decision maker should be flexible as to the demands of what is required to have “due regard” in the particular situation; and

(6) it is good practice for those exercising the affected functions in universities to keep a record showing that they had actually considered their prevent duty, and pondered relevant questions; this will encourage transparency and will discipline those carrying out the functions to undertake their prevent duties conscientiously.

(see Brown v Secretary of State for Work and Pensions (above)).

Thus the universities have a discretion as to how much weight to place on any particular factor when considering the duty to have due regard to the need to prevent persons being drawn into terrorism.  Aside from the need to take reasonably practicable steps to ensure lawful free speech, the courts are unlikely to interfere with a university’s evaluation of the weight to be placed on any particular factor provided all relevant factor have been considered.

Conclusion

As presently drawn, the Prevent Duty does not affect the duty of the universities to take practicable steps to ensure free speech.  However it requires them to concentrate their focus on what is permissible free speech.  In that regard a proper understanding of how Article 10 interacts with Article 17 ECHR is crucial.

Parts of the Duty may be difficult for the universities to implement as the government wishes without committing unlawful acts under the Data Protection Act 1998. Universities will need to consider getting the permission of the students before they start to share information to secure compliance with the Prevent Duty where the conduct involves no breach of the criminal law and may not obviously involve being drawn into terrorism.

Finally the Guidance may well be unlawful in so far as it suggests that there is any duty on the universities to prevent persons being drawn into non-violent extremism, where there is only a tenuous link with such extremism and violent extremism.

Directions will be hard for the Secretary of State to make.  Universities will have to balance the risk of such directions with the risk that individuals and groups judicially review their attempted compliance with the Prevent Duty criticising them for failure to take the steps which were practicable to ensure free speech.

Cloisters has significant expertise in advising and representing organisations and individuals in all aspects of human rights, equality and discrimination as well as employment law.


[1] [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274]
[2] [2007] EWHC 199 (QB)
[3] [2005] EWCA Civ 154 at [26 – 27] per Sedley LJ
[4] [2008] EWHC 2062 (Admin) at [23 – 24]
[5] [2008] EWHC 3158 (Admin)
[6] [2009] EWHC 559 (Admin) at [84], approved in EWCA in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75]

[7] [2009] EWCA Civ 941 at [79] per Sedley LJ

[8] [2012] EWHC 201 (Admin) (Divisional Court)

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