Prevent and the Law

Inauguration of the Court of Session, 1532

The Government's Prevent strategy has been widely criticised, but public bodies like universities, colleges, schools and the NHS usually say that the Counter Terrorism and Security Act (CTSA) 2015 leaves them no choice but to implement it.

They say Prevent is "the law". But is it really?

The CTSA doesn't put public bodies under a statutory obligation to impose any particular measures on members of staff or service users in connection with the Prevent strategy. Its requirements are more general, and more subject to interpretation than that (summary below).

The CTSA doesn't create any criminal offences connected with Prevent. It isn't a criminal offence to refuse to cooperate with Prevent. However, the CTSA makes provision for the Home Secretary to seek a civil court order against authorities specified in the Act (eg university governing bodies) if their implementation of Prevent is unsatisfactory.

The duty set out in the CTSA is so vague that SACC believes that there is no meaningful legal requirement to apply specific Prevent measures to staff or service users unless a court order has been granted.

Public bodies claiming to have no choice but to implement Prevent shouldn't be taken seriously unless they can produce a court order.

Section 26(1) of the Counter Terrorism and Security Act 2015 states:

"A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism."

The term "specified authority" means authorities specified in Schedule 6 of the Act. Schedule 6, as amended by Schedules 1 and 2 of The Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015, specifies that Scottish local councils, prison governors and directors, the Scottish Police Authority, the proprietor or governing body of higher and further education bodies in Scotland and the proprietor or governing body of  independent and grant-aided schools are included. Responsibility for state schools lies with local councils.

Section 26(1) is a very general requirement and potentially open to wide interpretion. Nothing in the Act sets out how this requirement should be met.

However, Section 29 of the Act allows the Home Secretary to issue guidance about the duty set out in Section 26(1). The guidance must be given effect through a statutory instrument approved by both Houses of Parliament.

Guidance for public bodies in Scotland is provided by the Prevent Duty Guidance for Scotland plus a sector-specific document for higher education institutions in Scotland and a separate sector-specific document for further education institutions in Scotland. The general duty guidance needs to be read together with the applicable sector-specific guidance in order to understand what the duty involves.

The Prevent Duty Guidance for Scotland states (paragraph 2):

"The duty does not confer new functions on any specified authority. The term 'due regard' as used in the Act means that the authorities should place 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. This purpose of this guidance is to assist authorities to decide what this means in practice."

The guidance provides background information and some more specific and detailed points about what the duty means in practice, generally expressed in terms of expectation. For example, paragraph 41 of the Prevent Duty Guidance for Scotland states:

"Local authorities will be expected to ensure frontline staff have a good understanding of Prevent and are aware of available programmes to deal with any individual who is vulnerable to being drawn into terrorism."

The phrase "will be expected", coupled with the explanation of the phrase "due regard" given in paragraph 2 of the guidance, falls well short of creating a legal requirement. In this particular example, the expectation is in any case only of a "good understanding of Prevent", which might be subject to very wide interpretation. For example, it could include an understanding that Prevent is Islamophobic and threatens the proper functioning of civil society.

In applying paragraph (2) of the guidance ("due regard"), authorities would be well entitled to take into account the risk that the Prevent strategy could push people toward terrorism and therefore be counter to the duty created under Section 26(1) of the CTSA. They are in any case obliged to take into account their obligations under the Human Rights Act (HRA). Under Section 6 of the HRA "It is unlawful for a public authority to act in a way which is incompatible with a Convention right" (ie a right under the European Convention on Human Rights" unless:

"(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Because of the very general nature of the requirement set out in Section 26(1) of the CTSA, these exceptions are unlikely to apply. Public bodies are not entitled to hide behind the CTSA to shirk their human rights obligations.

The wide scope for interpretation means that a great deal depends on the inspection, monitoring and enforcement mechanisms for Prevent.

Section 32 of the Counter Terrorism and Security Act 2015 states that further and higher education bodies "must give to the monitoring authority any information that the monitoring authority may require for the purposes of monitoring that body’s performance in discharging the duty imposed by section 26(1)." Monitoring of performance by bodies in other sectors is not covered by the Act, but is covered in the applicable duty guidance. For example, the Prevent Duty Guidance for Scotland states (paragraph 56): "In order to ensure that schools are complying with this duty, the Independent School inspection team will have a role."

According to the Prevent Duty Guidance for Scotland, these sector-specific inspection regimes support oversight by local multi-agency CONTEST groups (CONTEST is the UK Government's overall counter-terrorism strategy). The local groups report to the Prevent sub-group of the Multi-Agency Strategic CONTEST Board (MASCB) for Scotland. The Scottish Government draws together information on the implementation of Prevent and provides it to the Home Office. The Prevent Oversight Board, chaired by the Minister for Immigration and Security, may then agree on further action. If Scottish authorities are to be discussed at the Prevent Oversight Board, Scottish Ministers will be consulted and will attend in order to provide further advice.

The Prevent Oversight Board may then recommend (paragraph 30 of Prevent Duty Guidance for Scotland ) that the Home Secretary uses the power of direction under Section 30 of the CTSA.

Section 30 of the CTSA, as amended by The Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015, states that a direction under this section may be enforced "in Scotland, on an application made on behalf of the Secretary of State to the Court of Session, by an order of specific implement." The Court of Session is Scotland's supreme civil court and sits in Edinburgh.

Directions under Section 30 apply to "specified authorities" ie the individuals and bodies listed under Schedule 6 of the CTSA. The Act does not give the Home Secretary any power of direction over individual members of staff of a public body, trade unions etc. The Act requires Scottish Ministers to be consulted before giving directions relating to the devolved Scottish functions of a Scottish authority.

Any attempt to use the power of direction against an authority in Scotland would be likely to be politically awkward because of the involvement of Scottish Ministers. It would also face serious legal obstacles. The authority might contest an application for an order of specific implement on human rights grounds. And the very general character of the requirement under the CTSA would in any case probably make it difficult to formulate a legally viable order.

If an order were to be granted, an authority that failed to act upon it would potentially be in contempt of court, punishable by imprisonment.

But even if an order were to be granted, there would be no statutory obligation on staff or service users to cooperate with measures implemented under the order.

If an authority's implemention of Prevent is considered unsatisfactory by the applicable inspection or monitoring regime,  an attempt might be made to penalise it without using the power of direction, for example by withholding funding. This would amount to an attempt to circumvent the checks and balances that Parliament has built into the CTSA. It is in any case a separate matter from the claim made by public bodies that they are legally required to implement Prevent measures under the CTSA.

SACC wrote to Edinburgh University in April highlighting some concerns raised by students and outlining our view of the legal position.  In June we issued a statement in June calling for universities to stand against Prevent. In July we called for a moratorium on Prevent training in Scottish schools.

Prevent is oppressive. It's wrong to accept or collude in oppression, even if the agents of oppression claim to be between a rock and a hard place.

Summary

  • The Counter Terrorism and Security Act (CTSA) requires public bodies to "have due regard to the need to prevent people from being drawn into terrorism". This is a very general requirement and subject to wide interpretation. It does not in itself require implementation of any of the measures set out in the Prevent strategy. Nor does it require acceptance of the concepts of "radicalisation" and "extremism" that are embedded in the strategy.
  • Public bodies are required under UK law to respect the European Convention on Human Rights. This requirement takes precedence over non-specific legal requirements like those set out in the CTSA.
  • Clarification provided by "duty guidance" issued by the government is only to "assist" public bodies in deciding what the duty means. They are required only to give "appropriate weight" to it, and to consider all the other factors.
  • Failure to implement, comply with or cooperate with Prevent is not a criminal offence.
  • The Home Secretary can seek a civil court order against individuals and bodies ("specified authorities") listed in the CTSA, requiring them to carry out specific actions to implement Prevent.
  • The Home Secretary has no power to seek a civil court order in connection with Prevent against staff members, trade unions, student organisations etc.
  • Public bodies in Scotland are not under meaningful legal compulsion to impose any measures promoted by Prevent unless an order of specific implement requires them to do so.
  • Prevent is Islamophobic and abusive. Everyone should as far as possible avoid cooperating with it.

Nothing in this article should be taken as legal advice. If in doubt, consult a lawyer.