The Latest from Cloisters
Part 1: the Prevent Duty for Universities
“Broad terms such as “extremist” or “radical” are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court.” (12 January 2015, the Joint Committee on Human Rights report: Legislative Scrutiny: Counter-Terrorism and Security Bill HL Paper 86 of session 2014–15, p 26.)
In this article I deal with the basics of the legal framework for the Prevent Duty. The simplest way of thinking about the Prevent Duty is visualisation. Imagining that you are the character at which Dirty Harry is pointing his gun in that film while uttering the words: “You’ve got to ask yourself one question: “do I feel lucky?”… Well do you punk?” The government has attempted to shift the publicity and legal risks from itself to the universities by use of the Prevent Duty. On the face of it universities have a dilemma: how to have due regard to the need to prevent people being drawn into terrorism, whilst taking all reasonably practicable steps to ensure free speech and academic freedom. On a scrutiny of the legislative language we conclude:
(a) the current guidance to universities overstates the duty (potentially to the point at which it goes beyond the powers of the Minister to issue the guidance);
(b) that in law there is no real dilemma. Free speech is given such primacy that the university must comply with that duty unless it is impossible to do so because such compliance will result in people being drawn into terrorism.
We conclude that the government now seeks to enlist the universities in a pre-emptive strike against ideas which undermine “human rights” in a broad sense. It seeks to have the universities play a role in stifling views which are said to be the pre-cursors of terrorism as well as stifling views which constitute hate speech and or terrorism. It is an attempt to remodel an outright ban as supposedly unassailable soft law.
The Prevent Duty
Section 26 of the Counter-Terrorism and Security Act 2015 provides that a specified authority (including a university) must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism. The Specified bodies are listed in Schedule 6.
The duty does not apply to the exercise of (a) a judicial function; (b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function; (c) a function in connection with proceedings in the House of Commons or the House of Lords; (d) a function in connection with proceedings in the Scottish Parliament; (e) a function in connection with proceedings in the National Assembly for Wales.
For the universities section 26(5) will be of significance as references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal. This will cover visitors and other regulatory appeals bodies.
If the Secretary of State is satisfied that an authority has failed to discharge the general prevention duty, directions may be given to the authority for the purposes of enforcing the performance of that duty.
The directions can then be enforced by the Secretary of State making an application for a mandatory order. In Wales there must be consultation with the Welsh Ministers before giving directions so far as relating to the devolved functions of a Welsh authority.
In considering making a direction the Secretary of State must have particular regard to the academic freedoms and freedom of expression that are to exist in universities. This will mean that it is only in the most extreme cases that a direction would be successfully issued. In most cases the purported making of a direction would be likely to fall after a judicial review.
Of course the significance of directions is in reality a mechanism whereby a university can be named and shamed. Most universities will worry about the impact of such identification on reputation and possibly student numbers.
Judicial review by others
However universities do not simply have to worry about what the government will do. Other people affected by the universities’ decisions on prevention may bring judicial reviews of their decisions. This will be either because the university has had excessive, and therefore undue, regard to the need (overreacted) or (more likely) that it has not complied with its duty to take reasonably practicable steps to ensure freedom of speech and the academic freedoms under the Education Act (No 2) 1986 and the Education Reform Act 1988 which I set out below.
In some situations it can be argued that there will be an alternative cause of action to a judicial review. For example there may be a remedy (in the county court) for a breach of section 29 of the Equality Act 2010, so that a judicial review would not be the appropriate remedy. However this will not cover all cases. There is no private law remedy created by section 26 Counter-Terrorism and Security Act 2015, hence complaints will probably be by way of a judicial review. A challenge of this nature would be particularly effective if the complainant could show that the university had not had “particular regard” to the duty to support freedom of expression under section 31 to which I now turn.
Freedom of Expression in Universities
Section 31 of the Act deals with freedom of expression in universities. In particular, when carrying out the Prevent Duty the university:
(a) must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty;
(b) must have particular regard to the importance of academic freedom, if it is the proprietor or governing body of a qualifying institution.
Equally the Minister issuing guidance under section 29 for universities:
(a) must have particular regard to the duty to ensure freedom of speech, in the case of authorities that are subject to that duty;
(b) must have particular regard to the importance of academic freedom, in the case of authorities that are proprietors or governing bodies of qualifying institutions.
Further, the universities are protected in a way that other specified authorities are not by subsection 4:
“(4) When considering whether to give directions under section 30 to a specified authority to which this section applies, the Secretary of State:
(a) must have particular regard to the duty to ensure freedom of speech, in the case of an authority that is subject to that duty;
(b) must have particular regard to the importance of academic freedom, in the case of an authority that is the proprietor or governing body of a qualifying institution.
This creates a further difficulty for the state in seeking ever to enforce a direction against a university. What is “particular regard”?
It means something different to “due regard”. Specific individual regard must be had to the duty to ensure freedom of speech and to the importance of academic freedom. The first is a duty to ensure something, i.e. a state of affairs in which there is freedom of speech. The second is a duty to place particular weight on academic freedom. The importance of that duty must be considered with particularity. This means that a specific reference needs to be made to the importance of the duty and specific (particular) reference as to how the importance of this duty features in the balance should be made clear.
The view of the National Union of Students (NUS) is that the duties relating to freedoms are duties to achieve an end rather than simply to have due regard to the need to do something. So freedom of speech should prevail over the due regard duty. However it is my view that the duty to have particular regard signifies that these freedoms are to be given particular importance. As Sir Stephen Sedley LJ said in another context (section 12 Human Rights Act 1998) that such a provision requires [courts] to have "particular regard"; it does not say "overriding regard". The provision makes clear the fundamental importance of freedom of expression. From Cream Holdings Ltd and Others v Banerjee and Another  1 A.C. 253 it is possible to draw the conclusion that the aim of the legislator in including “particular regard” was to entrench or buttress the importance of freedom of expression precisely in the context of the duty to have due regard. It is therefore to be given special (although not overwhelming) weight. The duty to ensure freedom of expression is, however entrenched in another way, to the extent that the NUS view is probably correct in its conclusion, if not it’s reasoning.
What are the duties in relation to freedom of speech in universities to which particular regard is to be had? The universities have a duty to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured to various people.
(i) The Education (No. 2) Act 1986
Section 43 of the Education Act (No. 2) 1986 provides that every individual and body of persons concerned in the government of any relevant establishment must take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
This requires them to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with:
(a) the beliefs or views of that individual or of any member of that body; or
(b) the policy or objectives of that body.
The duty under section 31 of the 2015 Act is to have particular regard to the duty to take reasonably practicable steps to ensure this state of affairs. The university therefore must have particular regard to a duty which requires them to take reasonably practicable steps.
The nature of a reasonably practicable duty
The obligation is not merely to refrain from limiting or infringing freedom of speech, but rather to do all that is reasonably practicable to ensure that freedom of speech is secured. Normally where the standard of “reasonably practicable” is present in a statute, this indicates a very high standard (see for example the discussion of this concept in Palmer v Southend on Sea BC  ICR 372 ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done. See also its construction in the context of the legislation relating to factories – e.g. Marshall v Gotham Co Ltd  AC 360, HL).
In the context of a defence the duty is to take anticipatory steps which are practicable to take to ensure that the objectionable state of affairs is avoided (see e.g. Fox v Ocean City Recruitment Ltd UKEAT/0035/11/JOJ or Mahood v Irish Centre Housing Ltd  EqLR 586). The question will be whether the steps it is said ought to have been taken in advance were feasible to take.
Thus the duty to ensure that freedom of speech is secured is a high one. It is a higher duty than a duty to have “due regard” to any need (e.g. equality or Prevent). The academic institutions must therefore secure freedom of speech by all reasonably practicable steps whilst having due regard to the need to prevent persons being drawn into terrorism.
They must then, under the Counter-Terrorism and Security Act 2015 have particular regard to that duty when dealing with the Prevent Duty.
One way in which particular regard to that duty may be had is by having particular regard to the code of practice which section 43 of the Education Act (No. 2) 1986 requires institutions to issue. Universities are required to issue and maintain a code of practice on the organisation of meetings and other activities on the university’s premises. This must set out the conduct required of members, students and employees in connection with any such meeting or activity and the procedures they must follow.
Thus in determining whether the holding of a meeting should occur the university has to have due regard to the need to prevent people being drawn into terrorism but also must have particular regard to the duty it has to take reasonably practicable steps to ensure free speech within the law. That phrase “within the law” does not indicate that free speech which might have the effect of drawing people into terrorism but which is within the law relating to incitement, hate speech or other recognised exceptions to freedom of expression can be prohibited whether by the state or inhibited by universities.
In summary the duty to have due regard under section 21 can never outweigh the duty to take all reasonably practicable steps to ensure lawful free speech. The fact that there is a risk that complying with the duty to ensure free speech may permit speech which might draw persons into terrorism does not absolve the university from complying with the duty in relation to free speech. Having due regard to the need to prevent persons being drawn into terrorism can never change the character of the speech which is otherwise lawful free speech so as to render it unlawful free speech. If that is the case then the duty to ensure free speech will always outweigh the duty to have due regard to the need to prevent persons being drawn into terrorism. The risk of a person being drawn into terrorism must be met in some way other than preventing the exercise of that lawful free speech.
There is a freedom to question and test received wisdom without an academic placing him or herself in jeopardy of losing their jobs or privileges.
Section 202 of the Education Reform Act 1988
Section 202 of the Education Reform Act 1988 states that the University Commissioners shall have regard to the need:
(a) to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.
These needs are frequently in statutes or articles of association of an institution despite the cessation of the role of the Commissioners. Until the 2015 Act, the universities were not responsible for achieving these aims. Now academic staff may pray this in aid if the reason they are being dismissed or losing a privilege is to do with the Prevent Duty.
In the next article I will look at the guidance the Government has issued, and suggest ways in which it goes beyond what the law currently permits.
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.
 With thanks to John Stewart Director of Legal Services, University of London for his extremely valuable input. This paper formed the basis for a presentation to the Association of University Legal Practitioners in April 2016. The views expressed in it, along with any errors, are mine alone
 “The duty to ensure freedom of speech” means the duty imposed by section 43(1) of the Education (No. 2) Act 1986
 “Academic freedom” means the freedom referred to in section 202(2)(a) of the Education Reform Act 1988.