Legislative Scrutiny: Counter-Terrorism and Security Bill - Human Rights Joint Committee Contents

6  Prevent

A new statutory duty

6.1 Part 5 of the Bill makes provision which is intended to address the risk of being drawn into terrorism. It puts the existing "Prevent" programme on a statutory footing, as recommended by the post-Woolwich task force, by placing a new statutory duty on specified authorities to have due regard, in the exercise of their functions, to the need to prevent people from being drawn into terrorism.[74]

6.2 The new duty applies to a range of bodies, including local authorities; certain criminal justice agencies such as prison governors and providers of probation services; educational institutions such as schools, colleges and universities; health and social care authorities; and the police.[75] Certain exceptions from the duty are made in relation to the exercise of a judicial or a legislative function.[76]

6.3 The Secretary of State has the power to issue guidance to specified authorities about the exercise of the new duty.[77] Authorities are under a duty to have regard to the Secretary of State's guidance in carrying out the duty.[78] The Secretary of State's guidance is not made subject to any parliamentary procedure. The Government intends to publish one set of guidance for all the authorities which will be subject to the duty. A draft of the guidance was published for consultation on 18 December. [79]

6.4 The Bill also gives the Secretary of State the power to give directions to a specified authority for the purpose of enforcing the performance of the duty if satisfied that the authority has failed to discharge the duty.[80] Such directions can be enforced by a mandatory court order on application by the Secretary of State.[81]

Freedom of speech and academic freedom

6.5 Universities are included in the specified authorities to which the new statutory duty will apply. The Government envisages that universities will be required to have policies on "extremist speakers", and that the Secretary of State's powers of direction would be exercisable where the Secretary of State considers that the university is failing to perform its new statutory duty.

6.6 Universities are already under a statutory duty to "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".[82] That duty includes the duty "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 the beliefs or views of that individual or any member of that body, or the policy or objectives of the body",[83] and universities are required to have a code of practice to facilitate the discharge of these duties.[84]

6.7 The Government does not appear to have considered how the proposed new duty, as it applies to universities, will relate to these existing duties concerning freedom of speech, nor the precise implications of the new duty for the codes of practice which universities are already required to have. We asked the Minister, when he gave evidence to us, a number of questions about this subject, including what evidence demonstrates the necessity for a power in the Secretary of State to direct universities about the content of their policies on extremist speakers,[85] and how the Government intends to ensure that such a power is used compatibly with the right to academic freedom in universities.[86]

6.8 Our concerns about this provision were not assuaged by the Minister's response that universities "must take steps to recognise their duty to combat terrorism",[87] nor by his assertion during the debate at Committee stage in the Commons that "the duty is not about restricting freedom of speech".[88] The Minister's statement in evidence to us that "some extremist preachers have sought to use higher education institutions as a platform for spreading their twisted messages that are linked to the underpinning of terrorism" comes close to a restatement of the "no platform" polices of some institutions in the 1980s which gave rise to Parliament's clarification in the 1986 Act about the duties of universities to promote freedom of speech. The Secretary of State's guidance will clearly be of great importance in providing the requisite legal certainty. The draft statutory guidance, however, only exacerbates our concerns.

6.9 The draft guidance states that universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism.[89] "Extremism" is defined 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." Universities will be expected to carry out a risk assessment of where and how their students might be at risk of being drawn into terrorism, which "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."[90] They will be expected to train staff to "challenge extremist ideas which can be used to legitimise terrorism and are shared by terrorist groups."[91] To comply with the duty, universities should have policies and procedures in place for the management of events on university premises which apply to all staff, students and visitors, which provide for at least 14 days' notice of booking speakers and events "to allow for checks to be made", and require "advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations, footage to be broadcast, etc." and monitoring of the event.[92] Universities will be "centrally monitored" for compliance with the duty by the Home Office, and the Government also proposes expanding the powers of the Higher Education Funding Council for England (HEFCE) to enable it to become the body which monitors for compliance with the duty.[93]

6.10 We welcome the important recognition in the draft Guidance that the terrorist threat to the UK comes from a variety of groups, including the extreme right, and that the Prevent strategy must be aimed at all kinds of terrorist threat. However, we are concerned about the implications for both freedom of expression and academic freedom as a result of the applicability of the proposed new duty to universities. The Chief Constable of Greater Manchester Police, Sir Peter Fahy, has been reported in the press as having concerns that the lack of legal certainty over terms such as "extremism" leaves too much discretion to the police to decide, in the heat of the moment, what counts as "extremism".[94] We have similar concerns. In our view, universities are precisely the places where there should be open and inclusive discussion of ideas. 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.[95] This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association, as lecturers and students worry about whether critical discussion of fundamentalist arguments, or of the circumstances in which resort to political violence might be justified, could fall foul of the new duty.

6.11 In our view, because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new "prevent" duty is not appropriate for application to universities. We recommend that the Bill be amended to remove universities from the list of specified authorities to which the new duty applies. Alternatively, we recommend that the Bill be amended to add the exercise of an academic function to the list of functions which are excepted from the application of the duty.

6.12 We also remind Parliament that is has previously given statutory recognition to academic freedom in s. 202 of the Education Reform Act 1988 which provides that University Commissioners "shall have regard to the need 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".

6.13 Finally, as the Bill is currently drafted the guidance will not be subject to any parliamentary procedure and will therefore not be scrutinised by Parliament. We therefore also recommend that the Bill be amended to require the guidance to be approved by affirmative resolution of each House.

74   Clause 21. Back

75   Schedule 3. Back

76   Clause 21(4). Back

77   Clause 24(1). Back

78   Clause 24(2). Back

79   https://www.gov.uk/government/consultations/prevent-duty Back

80   Clause 25(1). Back

81   Clause 25(2). Back

82   Section 43(1) Education (No. 2) Act 1986. Back

83   Section 43(2). Back

84   Section 43(3). Back

85   Evidence of James Brokenshire MP, 3 December 2014, Q34. Back

86   Qs 35-40. Back

87   Q34. Back

88   James Brokenshire MP, HC Deb 16 December 2014 c 1344. Back

89   Draft guidance, para. 50. Back

90   Draft guidance, para. 57. Back

91   Draft guidance, para. 60. Back

92   Draft guidance, paras 64-66. Back

93   Draft guidance, para. 74. Back

94   http://www.theguardian.com/uk-news/2014/dec/05/peter-fahy-police-state-warning  Back

95   Evidence of James Brokenshire MP, 3 December 2014, Q47. Back

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Prepared 12 January 2015