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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