R (on the application of Salman Butt) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lady Justice Sharp,Lord Justice Irwin |
| Judgment Date | 08 March 2019 |
| Neutral Citation | [2019] EWCA Civ 256 |
| Docket Number | Case No: T3/2017/3487 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 2019 |
[2019] EWCA Civ 256
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ouseley J
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice Sharp
and
Lord Justice Irwin
Case No: T3/2017/3487
Paul Bowen QC and Zahra Al-Rikabi (instructed by Bindmans LLP) for the Appellant
Oliver Sanders QC and Amelia Walker (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 11 & 12 December 2018
Approved Judgment
Sir Terence Etherton MR, Lady Justice Sharp and
Introduction
This is an appeal against the order dated 26 July 2017 of Ouseley J, by which he dismissed the claim of the appellant, Dr Salman Butt, for judicial review of the Home Office's revised Prevent Duty Guidance (“the PDG”) and the associated Higher Education Prevent Duty Guidance (“the HEPDG”) (together “the Guidance”), and the collection, recording and sharing of information relating to Dr Butt by the Extremism Analysis Unit (“the EAU”) of the Home Office.
Broadly, Dr Butt maintains that the Guidance and, in particular the HEPDG, is unlawful as ultra vires, and in contravention of the statutory duty of the Secretary of State to ensure freedom of speech in universities and other further education institutions, and contrary to the right of free speech both under common law and Article 10 of the European Convention on Human Rights (“the Convention”); and that the collection, recording and sharing of information relating to Dr Butt by the EAU is in breach of his privacy rights under Article 8 of the Convention.
The Government's Prevent strategy
The Prevent strategy is a part of the Government's wider counter-terrorism strategy, CONTEST. The aim of the Prevent strategy is to reduce the threat of terrorism to the UK by preventing people from being drawn into terrorism or supporting terrorist ideologies. The strategy is implemented by way of a statutory duty on universities and other higher education institutions to “have due regard to the need to prevent people from being drawn into terrorism” imposed by section 26 of the Counter-Terrorism and Security Act 2015 (“CTSA”).
On 17 September 2015 the respondent, the Secretary of State for the Home Department, announced the coming into force of the PDG and the HEPDG on the following day. They were brought into force on 18 September 2015 by statutory instrument dated 17 September 2015, following debate and approval by affirmative resolution of each House of Parliament. They are complementary and are intended to be read together.
The PDG sets out generally the steps that specified authorities, which include universities and other higher education institutions (together “RHEBs”), are expected to take to comply with their duty under section 26(1) of the CTSA. The PDG recommends a “risk-based approach” to discharging the duty, which means monitoring and understanding the risk of radicalisation in their institution (PDG [14]). The guidance describes itself as “best practice” for the specified authorities (PDG [13]), and it is expressly contemplated that compliance with it is expected and will be monitored by the Home Office (PDG [23]–[28]).
The HEPDG is specific to RHEBs. Of particular relevance is paragraph 5, which states as follows:
“Compliance with the Prevent duty requires that properly thought through procedures and policies are in place. Having procedures and policies in place which match the general expectations set out in this guidance will mean that institutions are well placed to comply with the Prevent duty. Compliance will only be achieved if these procedures and policies are properly followed and applied. This guidance does not prescribe what appropriate decisions would be — this will be up to institutions to determine, having considered all the factors of the case.”
Paragraph 11 of the HEPDG is at the heart of the challenge to the lawfulness of the Guidance. It is in the section dealing with external speakers, and is as follows:
“… when deciding whether or not to host a particular speaker, RHEBs should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.”
“Extremism” is defined in the PDG glossary 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. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas.”
The EAU
The EAU is a unit within the Home Office established in December 2014. It assists all government departments and the public sector with understanding and responding to extremism in the UK and abroad. The EAU conducts “all source” research into individuals, as well as identifying extremist networks and trends. By “all source” is meant drawing information from both publicly available and private sources of information.
The EAU's research allows the Home Office to flag events taking place in RHEBs as events of concern. Where a speaker identified as extremist is known to be giving a talk, the Home Office will contact local “ Prevent Duty Coordinators”, who will then liaise with their counterparts at RHEBs so that a risk assessment can be carried out.
One source on which the EAU relies is information gathered by external bodies. One such body is Student Rights, an organisation set up by a British-based think tank called the Henry Jackson Society. Student Rights was established with the aim of researching and understanding extremism on university campuses. Student Rights kept track of the occurrence and content of various events taking place on university campuses in the UK. These included talks given by Dr Butt, who was named in a Student Rights digest of October 2014 which was provided to the Home Office.
The EAU processed information relating to Dr Butt on three occasions. They are described in more detail in the Discussion section of this judgment.
Dr Butt
Since 2005 Dr Butt has been the editor in chief of “Islam21C”, a publicly accessible website describing itself as articulating Islamic beliefs in the 21st century. He has spoken at various universities at the invitation of student societies, as well as at schools and at conferences, on issues relating to Islamic beliefs.
The announcement on 17 September 2015 of the coming into force of the PDG on the following day was made in a press release of the Prime Minister's Office and the Home Office jointly (“the press release”), in which Dr Butt was identified as an extremist “hate speaker”. The press release stated that he had been identified as an extremist on the basis of research carried out by the EAU.
Dr Butt denies that his views are extremist, that he opposes fundamental British values, and that he supports the activities of any extremist or terrorist groups.
Dr Butt claims that he has suffered as a result of the press release and the Guidance. He says that he has received far fewer invitations to speak than he would have expected based on past trends, and that he has declined others in order to spare the inviting institutions the embarrassment of being associated with a “hate speaker”.
The legal framework
CTSA, the Terrorism Act 2000 (“TA”) and the Education (No.2) Act 1986 (“E2A”)
CTSA Part 5 Chapter 1 contains provisions to prevent people from being drawn into terrorism.
As stated above, section 26(1) imposes a duty on specified authorities to “have due regard to the need to prevent people from being drawn into terrorism”.
By section 35(3), “terrorism” has the meaning given by TA section 1. TA section 1(1) provides that the use or threat of action constitutes “terrorism” if:
“(b) … designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.”
TA section 1(2) provides that terrorism is the use or threat of action that
“(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.”
Section 27 CTSA gives the Secretary of State the power to specify the authorities to which the duty in section 26 applies. These are the “specified authorities”. As described in Schedule 6 to the CTSA, they include RHEBs.
By section 29 CTSA the Secretary of State may also issue guidance to specified authorities “about the exercise of their duty under section 26(1)”. By section 29(2) CTSA specified authorities “must have regard to any such guidance in carrying out that [s.26(1)] duty.”
The power to issue guidance is complemented by a...
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