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The Prevent Duty Part 2: Government Guidance and Practical Guidance

The Prevent Duty Part 2: Government Guidance and Practical Guidance

By Declan O’Dempsey

In this article I deal with the government issued guidance on the Prevent Duty under section 21 of the Counter-Terrorism and Security Act 2015 as it applies to universities.

What the guidance says

Section 29 of the 2015 Act permits the Minister to issue guidance on the Prevent Duty.  It states that authorities must have regard to this guidance when carrying out the duty to have due regard to the need to prevent persons being drawn into terrorism.

The first point of legal divergence is in the introduction.  The Guidance says that the aim of the Prevent strategy is to reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism.  It then states: “In the Act this has simply been expressed as the need to ‘prevent people from being drawn into terrorism’”.[1]  However the phrase “supporting terrorism” is a very wide concept.  It is capable of eliding swiftly into being engaged in non-violent extremism.  By contrast in the legislation the concept of “terrorism” is specifically defined and the definition requires violence.

The Guidance is clear that the duty does not confer new functions on the authority.[2]  This is a significant point.  In particular therefore the Act does not confer the function of prohibiting free speech even if it is offensive.  The Guidance explains that “due regard” means placing an appropriate amount of weight on the need to prevent people being drawn into terrorism when they consider all the other factors relevant to how they carry out their usual functions.  The Guidance purports to help authorities to decide what this means in practice.

The Guidance goes over the Prevent Strategy’s objectives.  It makes the point that terrorist groups often draw on extremist ideology.  It points out that some terrorists have previously been members of extremist organisations.  It refers[3] to the non-statutory definition of extremism contained in the Government’s Prevent Strategy as:

“Vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.  We include in our definition of extremism calls for the death of members of our armed forces”

It is important to note that this definition is not endorsed by Parliament in any way.  The Guidance merely reports the Government’s definition for the purposes of its strategy. 

It then takes one step further.  It points out that the Prevent Strategy was changed in 2011 to “deal with” “all forms of terrorism and with non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists can then exploit”.[4]  The problem with this is that the Guidance does not, and cannot provide, any definition which extends the scope of the duty beyond that set out in the Act. 

The Guidance continues in this way:  “preventing people becoming terrorists or supporting terrorism requires challenge to extremist ideas where they are used to legitimise terrorism and are shared by terrorist groups.  The strategy also means intervening to stop people moving from extremist (albeit legal) groups into terrorist-related activity”.[5]

The Guidance then states that in fulfilling the s26 duty “we expect all specified authorities to participate fully in work to prevent people from being drawn into terrorism”.  The duty is said to be relevant to fulfilling other responsibilities such as that under s149 of the Equality Act 2010.[6]

The Guidance then states that it identifies best practice.[7]  This is an important qualification because it is not clear what parts of the Guidance are supposed to be best practice and what parts of it will be considered as evidence relevant to a failure to comply with the Prevent Duty. That is a fundamental failure.  In statutory codes it is usually made clear which parts of the Code are guidance on good practice and which parts are evidence to which a court will have regard in deciding whether or not a defendant has breached the duty.

The Guidance says that sector specific guidance must be read alongside it.  So the guidance for universities is to be seen in this context.

It argues that in complying with the Duty the starting point is to demonstrate an awareness and understanding of the risk of radicalisation in the authority’s area.[8] However this is not the risk which the Act is aimed at.  The duty is to have due regard to the need to prevent people being drawn into (defined-violent) terrorism. 

It is at this point that the legality of the Guidance can be questioned.

The long title of the Act states:

An Act to make provision in relation to terrorism; to make provision about retention of communications data, about information, authority to carry and security in relation to air, sea and rail transport and about reviews by the Special Immigration Appeals Commission against refusals to issue certificates of naturalisation; and for connected purposes.

It is trite law that power is held on trust and is to be used for the purpose for which it was conferred.[9] Everything depends upon the true intent and meaning of the empowering Act.  In Credit Suisse v Allerdale Borough Council[10] the court made the point that statutory powers conferred on local authorities to be exercised for public purposes can only be validly used if they are used in the way which Parliament, when conferring the powers, is presumed to have intended.  The fact that it is a minister who receives the power makes no difference. [11]

Lord Hope in another case stated “the discretion which is vested [in the licensing authority] is not unlimited. The authority is not at liberty to use it for an ulterior object, however desirable that object may seem to it to be in the public interest”.[12]  

In the light of that principle and the purpose of the Act it is interesting to look at section 29 of the 2015 Act which provides:

“The Secretary of State may issue guidance to specified authorities about the exercise of their duty under section 26(1).

(2) A specified authority must have regard to any such guidance in carrying out that duty.

(3) The Secretary of State—

(a) may issue separate guidance in relation to different matters;

(b) may issue guidance to all specified authorities, to particular specified authorities or to specified authorities of a particular description.

(4) Before issuing guidance under subsection (1) the Secretary of State must (whether before or after this Act is passed) consult…”

The guidance therefore must be guidance “about the exercise of their duty under section 26(1)”.  That is not a duty to prevent people being drawn into non-violent extremism even if it radicalises those becoming extremists.  The Guidance plainly tries to go beyond the concept of terrorism as defined in the Act (see below) and seeks to suggest that a breach of the section 26(1) duty could occur where an authority failed to have due regard to the need to prevent a person being drawn into non-violent extremism.  If that is the correct interpretation of what the scope of the Guidance is thought by the minister to be, then it goes outside the power conferred on the minister and outside the intention of the Act conferring the power.

There is a very big difference in terms of the impact on free speech between preventing people from engaging in unlawful speech which amounts to terrorism, or which leads to terrorism, and preventing people engaging in offensive speech of an extremist nature.  Parliament has not, as yet, created a duty to prevent people becoming radicalised.  The Guidance seeks to make section 26(1) do this work. The suggestion that all authorities need to give due consideration to the risk of radicalisation does not represent the scope of the duty accurately.

So a failure to have an awareness and understanding of the risk of radicalisation will not amount to a failure to have due regard to the need to prevent people becoming involved in terrorism. An awareness and understanding of the risk of people being drawn into terrorism by any particular activity may be necessary to avoid a charge that the authority has failed to have due regard to the relevant need.

Following on from this scoping error, those in leadership positions are told to establish or use existing mechanisms for understanding the risk of radicalisation (not being drawn into terrorism).

Next the Guidance states that to demonstrate effective compliance, the authority must demonstrate evidence of productive co-operation, in particular with local Prevent co-ordinators.[13]  For universities in particular this raises serious issues:

(a) compliance with the duty to take practicable steps to ensure freedom of speech; or

(b) compliance with data protection laws.

Frontline staff are supposed to be made to understand what radicalisation means.

If the authority goes to the definitions provided in the Guidance (but nowhere in statute) it will see this: 

Radicalisation refers to the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups.

This clearly therefore applies to a situation in which a person comes to support extremist ideologies associated with terrorist groups. The definition of extremism tells us that it is vocal or active opposition to fundamental British values (democracy, rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs).  So a vocal opponent of live animal transportation would, by this definition, be an extremist.  This is because his or her views that live transport is wrong and that those who do it should be stopped and not tolerated are shared by animal rights terrorists. The university would therefore appear to be under a duty to have due regard to the need to prevent people being drawn into supporting such an extremist ideology which is associated with one or more terrorist groups engaged in property damage to transportation or other situations in which live animals are kept.

The problem is, again, one of scope.  The Act defines terrorism by reference to another piece of legislation (see below).

The Guidance states that staff who engage with the public should understand why people may be vulnerable to being drawn in to terrorism as a result of radicalisation in this sense.[14]

In order to comply with the duty to have due regard, the Guidance argues, staff must be aware of what “we” (i.e. the Minister) mean by the term extremism.[15]  However it must be apparent that this will only be necessary for compliance with the duty in the Act in very limited circumstances.  The Guidance however says that it is necessary not only for them to be aware of this use of the term, but also “the relationship between extremism and terrorism”. 

In reality most universities (and other organisations) can comply with the requirement of the duty to have due regard in relation to training and information provision for frontline staff by making it clear that in certain situations a belief in extremist ideas (in the sense described by the Government) can lead to engagement with terrorism. 

However it is the nature of the circumstances that will be crucial, and not whether the person is vocally opposing (for example) personal liberty.  A vocal communist, for example, may be an extremist in this sense.  However although the curtailing of personal liberty might have been an ideology that was linked to, for example, the Red Brigade, is it seriously being suggested that staff will need to know about this link and have to mitigate against the risk of the collectivist communist being drawn into terrorism?

The training requirement appears to go further.  It is suggested that in order to comply in practice with the duty to have due regard to the need to prevent people being drawn into terrorism, staff need to know what measures are available to stop them being drawn into terrorism, but also need to know how to challenge the extremist ideology which can be associated with it.[16]

This suggests that a training course on how to challenge is required in order to have due regard.  It is unclear how such challenges can be made.  There is also a very great risk of breaching other duties placed on the university.

Staff are not entitled to discriminate on various grounds.  These include age, disability, gender reassignment, sex, sexual orientation, race and religion and belief.  They are not entitled to harass a person on these grounds.  They will harass a person if they subject them to unwanted conduct related to any of these grounds which has the effect (on a reasonable person taking into account the complainant’s perception) of creating an offensive environment for that person (among other things).  Universities run a real risk of encountering claims brought under section 29 of the Equality Act 2010 for detriments suffered by service users and under the education provisions in relation to students if they fail to ensure that staff do not act intrusively, allegedly on the basis of having due regard to the need to prevent persons being drawn into terrorism.  Unwanted conduct could include, for example, a challenge to a person which is related to his or her religion or belief.

Data protection and the Guidance

The Guidance becomes positively impenetrable when it comes to information sharing. It says that the Prevent programme (which is left undefined) must not involve any covert activity against people or communities.[17]  It then states, without any support at all, that authorities may need to share personal information to ensure, for example that a person at risk of radicalisation is given appropriate support.

With respect to those who drafted this Guidance, the Minister must have known that this advice was unlawful. The Duty does not confer additional powers on authorities. It does not provide a lawful basis for sharing information which could not otherwise be shared under the Data Protection Act 1998.  The ways in which an authority can be caught by the Data Protection Act 1998 in this field has enough substance in it to form a quite separate paper.

The individual’s permission will be required for almost all the sharing that is envisaged save where there is a justification that sharing is necessary to prevent a crime.  It will be very difficult to show that such sharing was necessary to comply with the Prevent Duty.  The duty is of course a duty to have due regard to the need to prevent people being drawn into terrorism.  In the example that is given in the Guidance of sharing in order to obtain assistance for the person who is at risk of radicalisation, there is no proper basis for saying that such sharing is necessary.  First the risk is outside the scope of the legislation.  Second, if the person does not give permission for such sharing the authority would need to have due regard to the fact that its use of the information would involve an unlawful act and does not fall within any of the exceptions in the Data Protection Act 1998.

The Guidance speaks of the importance of information sharing agreements at a local level.  However these agreements, unless individuals sign up to them, will not justify sharing data (and even less in respect of sensitive personal data).

So a catholic student attends a catholic anti-abortion meeting.  Of course anti-abortion ideologies are associated with certain terrorists in the United States which target those who carry out abortions with violence or serious property damage. In order to explain why information is being shared it is likely that the person’s religious affiliation will have to be shared, as this is why he or she might be radicalised (because an anti-abortion ideology opposes the personal liberty of the woman seeking the abortion).

When the Guidance seeks to deal with the factors involved it becomes readily apparent how difficult it will be for authorities to act lawfully in this area.  It falls back on saying that the authority must ensure compliance with the Data Protection Act 1998, and the common law duty of confidentiality.

The situation is very different when a person is engaging in an illegal act.  The Guidance refers to someone being involved in illegal terrorist related activity, and says that people suspected of being involved in this way must be referred to the police.[18]

The Guidance therefore leaves the whole of the risk on the shoulders of the authorities and fails to provide any practical guidance in this regard.

Being drawn into what?

 “Terrorism” has the same meaning in Part 5 Chapter 1 of the 2015 Act as in the Terrorism Act 2000 (see section 1(1) - (4) of that Act).[19] So “Terrorism” is defined for the purposes of the 2015 Act in section 1 of the Terrorism Act 2000.  It means the use of action or the threat of action of particular types. The aim of the use of such action must be to influence the government or an international governmental organisation, or to intimidate the public or a section of the public.  The use of action or threat of it is made for the purposes of advancing a political, religious, racial, or ideological cause.

So the duty in section 26 is to have due regard to the need to prevent people from being drawn into:

“Action which is aimed at influencing the government (or intimidating the public) and is made for the purposes of advancing a political, religious, racial, or ideological cause.”

“Action” is also defined.  It must be of a particular type: 

(i) it involves serious violence against a person;

(ii) it involves serious damage to property;[20]

(iii) it endangers a person’s life other than that of the person committing the action;

(iv) it creates a serious risk to the health or safety of the public or a section of the public, or (v) is designed seriously to interfere with or seriously disrupt an electronic system.

The categories that are likely to cause most difficulty of interpretation are therefore those relating to property and those that relate to serious interference with or serious disruption of an electronic system. Hunger strikes and suicides are fine apparently.  The Buddhist monk burning himself to death may not constitute an example of terrorism.  However if the monk tries to persuade anyone else to take the same self-destructive course, this could.

So the terms used in the Guidance does not even mirror the term which the statute does use (“terrorism”).  There is no duty to prevent people being drawn into non-violent extremism which undermines fundamental British values under the 2015 Act.

Monitoring and Compliance

The general guidance states that all authorities must comply with the Prevent Duty and will be expected to maintain appropriate records to show compliance with their responsibilities and provide reports when requested.[21]

However, in the same way that it was never a requirement that a public authority carry out an Equality Impact Assessment in order to comply with the duty under section 149 Equality Act 2010, it is not a requirement to keep records.  It is, though, extremely good practice and the Guidance can be forgiven for emphasising this requirement.  However it is the duty to have due regard (a single obligation) which must be evidenced.  The Guidance gives the impression that all of the additional matters it suggests are necessary (rather than simply good practice) and are obligations.

The Guidance says that directions will only be used to ensure that the Duty is being implemented and delivered.  They will only be used where other options for engagement and improvement had been exhausted.

The Guidance for RHEBs

Specific guidance has been issued for relevant higher education bodies (RHEBs).  This states that their “…commitment to freedom of speech and the rationality underpinning the advancement of knowledge means that they represent one of our most important arenas for challenging extremist views and ideologies.”[22]

We do not envisage the new duty creating large new burdens on institutions and intend it to be implemented in a proportionate and risk-based way.[23]

In line with the quite prescriptive tone of the general guidance the sector specific guidance claims: “Compliance will only be achieved if these procedures and policies are properly followed and applied”.[24]  The Guidance appears to contradict itself over the status of these procedures at this point.

The Guidance has an interesting and colloquial tone at times.  Apparently the Government is expecting RHEBs to be “delivering” in certain areas.  Yet they are also told that the Prevent Duty is not about outcomes.  At most the Government can expect compliance with the Prevent Duty.

External Speakers and Events

The Guidance side steps the question of the interrelationship between the main Prevent Duty and the duty on universities to promote free speech.  It states that there should be event management policies.[25]

The guidance given by Universities UK[26] concerning external speakers is mentioned.  This is interesting because it clearly sets out the legal considerations that must be taken into account.  It is clear from that that the banning of external speakers where no unlawful behaviour is identified is going to be a rare event.  It also points to ways in which universities are entitled to rely on civil law rights against speakers (e.g. will the speaker contract to abide by the university’s statement of values?).  The difficulty with that approach is that the statutory duty to ensure free speech will override anything short of unlawful behaviour on the part of the speaker.

The Guidance is clear that support for Terrorist organisations can constitute a criminal offence.[27]  Universities will have little difficulty in appreciating that they are not to support or give an opportunity for a crime to be committed.

However the Guidance continues[28]:

“11.       Furthermore, when deciding whether or not to host a particular speaker, RHEBs should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups.”

The Guidance elides the concept of preventing a person being drawn into terrorism with the concept of preventing them being drawn into extremist views which are shared by terrorists (whether or not they are thereby drawn into terrorism).

The Guidance then overstates the nature of the Prevent Duty in the following way:

“In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed”.[29]

The Guidance sets a very high standard for compliance which is well beyond having “due regard” in the light of the need to ensure free speech.  It is simply an inaccurate statement of the “due regard” duty to say that if there is any doubt that the risk cannot be fully mitigated the event should not be permitted to proceed.

In fact the Guidance appears to be so overstated that it appears impossible to achieve.  Suppose for example that the RHEB has brought in someone in the audience to challenge the extremist views.  There is still a risk that the person putting those views forward might be more plausible and might be received more favourably than the person challenging.  The idea that the risk should be “fully mitigated” is also incompatible with the duty to ensure free speech.  This includes speech which is offensive but which does not constitute unlawful speech (e.g. hate speech).

The RHEBs are expected to put in place a system for assessing the risk (presumably the risk of people being drawn into terrorism) arising from any particular external speaker.

At best the RHEBs can only be expected to have due regard to the need to mitigate the risk that someone would be drawn into terrorism by attending an event. Due regard would include consideration of all the resources available to challenge terrorism-propensity-inducing speech which exist in the university.  What weight should be placed on those factors will, however, be a matter for the university.  It does not follow from the fact that someone took up extremism or even was drawn into terrorism that the university failed in its duty. 

Hence when the Guidance suggests that an event should be cancelled if the university cannot mitigate the risk fully, or else it fails in its duty to have due regard, it is simply misstating the nature of the duty.

The Guidance then moves on to deal with the risk of “radicalisation” by other students.[30]  The idea of radicalisation again presents itself as supporting extremism and supporting terrorism. The Guidance suggests that there should be staff training to be able to spot someone at risk of radicalisation.  Again, as above, the difficulty is that there is no basis for saying that there is a duty to have due regard to the need to prevent persons being drawn into radicalism.

Partnership

The Guidance says that the Government would expect “active” co-operation with other partners including police, BIS regional higher and further education Prevent co-ordinators”.  The difficulties of definition created by the legislation and the Guidance may prove important in this area.  The universities will have to reconcile whether it can be a practicable step to ensure freedom of speech to supply information about non-violent extremism or personal data relating to an individual to the partners.

Risk assessment

“RHEBs will be expected to carry out a risk assessment for their institution which assesses where and how their students might be at risk of being drawn into terrorism”.[31] 

That is an unexceptionable statement of the Duty.  However the Guidance immediately goes on to state “This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit.”[32]

If the Guidance is suggesting that there is a duty to make an assessment of how students might be at risk of being drawn into terrorism via non-violent extremism, then it is not going beyond the Prevent Duty in the Act.  However if it is suggesting that there is a duty to make a risk assessment of the risk of students being drawn into non-violent extremism, it is going beyond what is lawful. 

What needs to be assessed, it is suggested, is the risk not of being drawn into non-violent extremism but the risk of that non-violent extremism creating an atmosphere which may draw a person into terrorism defined in the Act. 

The duty to have due regard leaves it open to the university how much weight to give this guidance and it may be that the university will conduct a risk assessment having regard to the need to promote academic freedom and free speech.  The decision maker has the tricky job of determining what non-violent extremism is.  Is the “extremism” such as “can create an atmosphere conducive to terrorism”?

An example may show how difficult this will be.  Suppose an evangelical Christian group wishes to talk about biblical passages on sexuality.  They do this in a manner which complies with being respectful of those who disagree with them, but promote the idea that homosexual practices are morally wrong.   They do not suggest that any adverse action should be taken against lesbian and gay people.  They simply put forward the idea that the sexual practices of same sex couples are against nature.  However the university knows that there is a risk that someone attending such a meeting may decide to take matters into their own hands and take action against LG people.  Does this mean that the group is engaged in non-violent extremism?  Is the “extremism” such as “can create an atmosphere conducive to terrorism”?  Plainly putting forward ideas condemning their sexual practices may motivate people to take unfavourable or event violent action against LG people. 

Does that mean that the group’s meeting must be attended by someone to put the opposite view point? 

What is the difference between this and the situation in which the same Christian group wishes to have a meeting at which they put forward the proposition that they should be free to express their view in public that homosexuality is a morally wrong state?  If they are not to be permitted to do this because there is a risk that it may promote extremism, then what of the meeting of a group of lesbian and gay people  the following week who wish to put forward the proposition that the Christian group’s point of view is morally wrong?  Plainly the risk of politically motivated violence is present, albeit not high.

It would be excessive to say that no group could put forward the idea that any behaviour is morally wrong because there is a risk that those hearing it might be moved to take matters into their own hands and act outside the law in relation to people exhibiting the behaviour which is said to be morally wrong.  There has to be, therefore an assessment of the degree of risk of connection between the speech of the group and the unlawful conduct in question.

How does one consider when the risk becomes unacceptable with a view to preventing people being drawn in to terrorism?

The Guidance states:“We would expect the risk assessment to look at institutional policies regarding the campus and student welfare, including equality and diversity and the safety and welfare of students and staff. We would also expect the risk assessment to assess the physical management of the university estate including policies and procedures for events held by staff, students or visitors and relationships with external bodies and community groups who may use premises, or work in partnership with the institution.”[33]

The university is supposed then, once a risk has been identified, to draw up an action plan in respect of that risk: “any institution that identifies a risk should develop a Prevent action plan to set out the actions they will take to mitigate this risk”.

Looking at the above Evangelical example, suppose that other parts of the teaching of the Evangelical religion the group attaches itself to emphasize the importance of non-violence. Would it be enough if the organisation included in its literature reference to this non-violent aspect and stress that members of the group must never take such action?  What if it did not have this explicitly?  Would it be enough if the university knew that this was the teaching of the founder of the religion or sect?  What would the plan look like to mitigate the risk of the behaviour that belief in the morality of sexuality might provoke? 

Suppose then that there is a group which advocates a far right political philosophy.  It does this at the same time as emphasizing non-violent means of achieving its aims.  It has similarities to national socialism in that it puts forth a theory of racial superiority.  Many people believe that some of its followers have resorted to violence and intimidation, but the leadership of the group has always disavowed such acts.  The organisation has members within the student body and they wish to hold meetings and distribute literature at the first years’ fair at the start of the academic year.

The action plan in both of these cases would include reference to the need to promote good relations between people of different groups under the s149 Equality Act 2010 duty.  Thus the degree of actual risk that this group would say or do things which would result in people being drawn into terrorism would depend on:

1. How far does the group’s actions or words undermine the equality objectives of the university’s equality plan?

2. What evidence is there that adherence to these beliefs promotes violent behaviour towards those who do not share those views, belong to the “wrong group” or engage in the “wrong behaviour”?  Does the type of violence satisfy the definition of “terrorism”?

3. If there is evidence that there is a risk, what other information can be put to those receiving information from the group to counteract the tendency to draw people into terrorism?  Does the draw arise from information or does it arise from other aspects of the practices of the group?

4. If there is a link between the beliefs of the group and the conduct of adherents which offends against the duty to promote good relations, then should the group be banned? 

5. Do any of the steps proposed mitigate the risk or do they rather have any of the following effects:

- Glamourising adherence to the group’s beliefs as an act against the authorities?

- Driving the group out of the spotlight of disputation and criticism into a more risky area in which members regard themselves as a persecuted group (which therefore has a need to take more extreme measures)?

6. Given that everyone at the university has access to the internet, will banning activities on campus have any effect other than ensuring that the activities take place off campus?

Action Plan

Once a risk of persons being drawn into terrorism is identified the Guidance suggests that with the organisers the university should develop a Prevent Action Plan, setting out actions they intend to take to mitigate the risk.[34] 

Presumably the risk assessment will have identified:

1.  The nature of the activity.

2. The basis on which it suggests that there is any risk of persons being drawn into terrorism (so defined).

3. The chance of such induction:

               Points at which induction might be pre-empted:

               (a) Promotion of “Fundamental British Values”, so defined and in particular the rule of law, tolerance, and the other values list above.

4. The points at which, in the opinion of the assessor, there is a chance to break that induction:

               (a) Counter arguments:

                              (i) to the use of violence(?)

                              (ii) to the underlying ideological basis of the extremism(?)

               (b) Disruption of provision of further information which might induce.

The Action plan based on the assessed risk will need to be specific in relation to the identified risks. Clearly something of this nature is being envisaged as the next Guidance suggestion shows.

Staff training

The Guidance suggests that staff should be trained on preventing people being drawn into terrorism. The Guidance envisages that compliance requires “…training that could help the relevant staff prevent people from being drawn into terrorism and challenge extremist ideas which risk drawing people into terrorism. We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity.”[35]

Paragraph 23 of the Guidance once again fails to deal with the relationship between sharing information in order to comply with the duty, and the Data Protection Act 1998.  It states that “robust” information sharing systems are expected. In most situations in which vulnerability to induction to terrorism is a risk, this will mean sharing personal, probably sensitive personal data.  In those circumstances a university may need to consider obtaining advance consent from all its students to sharing data about them with the Prevent related organisations in the absence of the commission of a criminal offence by the student or another person.

The Guidance considers that the provision of welfare facilities, and chaplaincy facilities may form part of the materials available for compliance.[36]  There must be a policy relating to the use and oversight of prayer rooms.

Under the Equality Act 2010 s149 religion and belief were not to be treated as no go areas.  The above guidance appears to be a reaction to the way in which some organisations treat matters of religion in particular.

IT policies

One of the most difficult areas for universities is the Guidance relating to IT policies.  “To enable the university to identify and address issues where online materials are accessed for non-research purposes, we would expect to see clear policies and procedures for students and staff working on sensitive or extremism-related research.”[37]

The Universities UK guidance on sensitive material suggested:

“Security-sensitive research in UK universities requires the expansion of existing research ethics approval processes. This might involve new online questionnaires for researchers at universities. Security-sensitive research material that can be interpreted as engaging Terrorism Act (2006) provisions should be kept off personal computers and on specially designated university servers supervised by university ethics officers (or their counterparts) at one remove from university authorities. This material could be accessed easily and securely by researchers, but would not be transmitted or exchanged. Ethics officers (or their counterparts) should be a first, or early, point of contact for both internal university enquiries and police enquiries about suspect security-sensitive material associated with a university or a university member. Such material should be treated as having a legitimate research purpose unless ethics officers (or their counterparts) cannot identify it or the relevant researcher responsible for it. The mechanism for storing security-sensitive material described above needs to be operated alongside comprehensive advice from universities to all university-based internet users highlighting the legal risks of accessing and downloading from sites that might be subject to provisions of counter-terrorism legislation. Reading this advice should be a condition of getting a university email account. A training scheme should be started for ethics officers (or their counterparts) and IT officers in universities in implementing the ethics review process and secure storage of sensitive material.”

Monitoring

The Guidance mentions that there will be monitoring.  The monitoring framework was published on 30 November 2015 and there was a circular letter to all vice chancellors and principals on 7 December 2015.  The RHEBs were required to submit, by 22 January 2016, a preliminary self-assessment of their state of preparedness.  They were to indicate the period of time within which they expected to have finalised policies’ processes or arrangements.  By 1 April 2016 through to 1 August 2016 they were to submit detailed material demonstrating compliance. 

There will then be “Ongoing monitoring”.  This requires the governing body or proprietor to give an annual report and a detailed assessment of institutional arrangements every five years. The Framework for monitoring states that “serious incidents” must be reported.

In the next article I will look at the values and human rights which impact on the application of the Prevent Duty by universities.

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] Guidance para 5
[2] Para 4
[3] Para 7
[4] Para 8
[5] Para 8

[6] Para 12

[7] Para 13
[8] Para 14
[9] R v Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd [1988] AC 858, 872B-F
[10] [1997] QB 306, 333G-H
[11] R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 398C-D “statutory powers, however permissive, must be used with scrupulous attention to their true purposes and for reasons which are relevant and proper”; and see R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 756F and R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 381B-C, 404D, 412H

[12] Stewart v Perth and Kinross Council [2004] UKHL 16 at [28]

[13] Para 17
[14] Para 18
[15] Para 18
[16] Para 19
[17] Para 21
[18] Para 22
[19] Section 35, interpretation provision
[20] What is property in this context?  If a human rights approach to the concept of property under Article 1 of Protocol 1 to the ECHR is adopted, a person’s business constitutes his property. If you were a salt producer in India at the time of Gandhi’s march to the sea to make salt could you have complained that this incitement to unlicensed salt production would seriously damage your property (in your business)?
[21] Para 23 Guidance
[22] Prevent Duty Guidance: for higher education institutions in England, para 1
[23] Para 4
[24] Para 5:  this is a reference to the procedures suggested in the Guidance:  “properly thought through procedures and policies are in place. Having procedures and policies in place which match the general expectations set out in this guidance will mean that institutions are well placed to comply with the Prevent Duty.”  However it is difficult to see why in the following sentence the Guidance suggests that compliance is only possible if these are followed.

[25] Para 7 

[26] External Speakers in Higher Education Institutions (revised edition March 2014)

[27] Para 10
[28] Para 11
[29] Para 11 (emphasis added)
[30] Para 15 – see above for the “definition” of radicalisation
[31]  Para 19

[32] Para 20 then goes on to explain what the risk assessment should include in terms of areas covered

[33] Para 20

[34] Para 21
[35] Para 22
[36] Para 25
[37] Para 28
Prevent Duty Part 3: British Values, Human Rights ...
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