The Prevent Duty, free speech and privacy: Butt

In Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin), Dr Salman Butt, a British citizen and practising Muslim, challenged the lawfulness of revised Prevent Duty Guidance and the role of the Home Office Extremism Analysis Unit (EAU) in collecting and storing personal data.

S 26(1) of the Counter-Terrorism and Security Act 2015 (CTSA) imposes a duty on “specified authorities” – including “Relevant Higher Education Bodies” (RHEBs) – to have due regard when exercising their functions to the need to prevent people from being drawn into terrorism. In September 2015, the Prime Minister’s Office and the Home Office issued a press release announcing the commencement of the revised general Guidance published in July 2015 under the CTSA. Its purpose – and that of the associated Higher Education Guidance – was to explain how universities and other FE institutions should give effect to their duty under s 26(1) of the CTSA. It applied to non-violent extremism, 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”. The press release referred to 70 events on campuses featuring “hate speakers”. Dr Butt was among six named – through an oversight – as “expressing views contrary to British values” on campus. The Home Office EAU had opposed including names in the press release [1].

Dr Butt is the editor in chief of Islam21C, a website describing itself as “Articulating Islam in the 21 Century” initiated by the Muslim Research and Development Foundation. He holds orthodox conservative religious views, “not unlawful and shared by many others”. He states that he supports rather than opposes values identified in the definition of “extremism” in the revised Guidance: “democracy, the rule of law, liberty and respect and tolerance of other faiths and beliefs.” He does not regard his views as “extremist”; and articles on Islam21C have condemned ISIS, warning vulnerable people not to support it [5]. Dr Butt claimed that he had been adversely affected by being named as an “extremist” in the September 2015 press release: some invitations to speak at university Islamic Societies had ceased, others had fallen away, and he had refused yet others to avoid embarrassment to himself and to those who had invited him. His naming in the press release had been widely publicised in print and online; and the press release had also implied that he was a “hate speaker”, though not explicitly naming him as such [6].

He challenged the lawfulness of the Prevent Duty Guidance on three grounds:

  • that the Secretary of State had exceeded her powers under s 29 CTSA;
  • that the documents failed to comply with the duty in s 31 CTSA to have particular regard to the duty to ensure free speech in higher education institutions; and
  • that their lack of clarity, legitimate need and proportionality breached common law and ECHR rights of free speech.

He also challenged the collection, storage and dissemination of data by the EAU [2].

Ouseley J refrained from making any findings about Dr Butt’s views:

“Whether or not the press release named him as an ‘extremist’ or ‘hate speaker’, and whether or not he is an ‘extremist’ or ‘hate speaker’, and what the effect of the press release on him has been, are issues for the defamation and allied damages litigation” [7].

However, though he rejected the challenge to vires, he declared that

“the active opposition to fundamental British values must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it” [31: emphasis added].

As to the challenge that the Guidance failed to comply with the duty of Relevant Higher Education Bodies (RHEBS) under s 31 CTSA to have “particular regard” to the duty to ensure free speech and protect academic freedom, he accepted that the sector-specific Guidance had said that where risks in relation to an external speaker could not be mitigated so that they were eliminated, the meeting should be cancelled. However, despite its mandatory language, he held that RHEBs were not obliged to follow the Guidance but were required to give it regard as part of a balancing exercise that would include having “due regard” to the need to prevent people being drawn into terrorism and “particular regard” to freedom of speech and academic freedom. Therefore, an institution was entitled to say, in a particular case, “that the freedom of speech duties and the academic freedom duties to which they have to pay particular regard, are more important” [62]. In short:

“the Guidance needs to be read and understood for what it is. It is just that: guidance. It does not direct an outcome, let alone ‘ban’ or ‘direct’ the banning of speakers. It must be considered, but ‘following it’ in the absence of good reason can be a misleading approach … ‘Following it’ requires no particular outcome but a consideration of factors, processes and steps. The guidance leaves it to the judgment of the RHEB as to whether the event should not proceed or proceed in whatever format or with whatever organisation it chooses” [98].

As to Dr Butt’s Article 10 right to freedom of expression, the Guidance had been balanced with Article 10 rights in three ways:

  • the Guidance did not and could not alter or override the duties on RHEBs in s 26 and s 31 CTSA and s 43 Education (No. 2) Act 1986;
  • the Guidance might mean that speakers faced, at the same meeting, views contrary to and challenging their own: “This cannot be seen as an interference with the speaker’s Article 10 rights – he has no right to an invitation or to specify how, on university premises, the format of the meeting should be conducted. It would be an odd form of interference with free speech in the area of politics or religion if it could not take place on a university campus in the form of reasoned public debate”; and
  • potential speakers unable to speak on campuses “could communicate their views through all other media, and publicly at all other venues, including to students but not at RHEB premises where students should not have to find that extremist views, which may affect them, are promulgated where they seek to study in freedom. There is no sanction for the expression of such views. A risk assessment process has to be undertaken before any question of considering cancellation arises” [153].

He was not prepared to hold the Guidance unlawful in the present proceedings “by this Claimant on these facts”. A different claim might lead to an interference but, in the present case, there had been no interference with the Dr Butt’s Article 10 rights and, to the extent that there may have been, it had been justified and proportionate [155]

As to the Article 8 challenge to the collection, storage and dissemination of Dr Butt’s personal data by the EAU, though the work of the EAU could engage Article 8 it had not done so on the facts before him. Dr Butt had no reasonable expectation of privacy about material he had published while participating in a public debate: “Reading anything about a person when he is unaware of that activity does not mean that he is under surveillance” [269]. Ouseley J did not consider that what the EAU had done in Dr Butt’s case “reached the level of ‘surveillance’ at all, and certainly not directed surveillance” [271].

Claim dismissed.

Cite this article as: Frank Cranmer, "The Prevent Duty, free speech and privacy: Butt" in Law & Religion UK, 3 August 2017, http://www.lawandreligionuk.com/2017/08/03/the-prevent-duty-free-speech-and-privacy-butt/

See also Rosalind English at UKHRB: Extremists on campus

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