Salman Butt v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Ouseley |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] EWHC 1930 (Admin) |
| Docket Number | Case No: CO/6361/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2017 |
[2017] EWHC 1930 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Ouseley
Case No: CO/6361/2015
Mr Paul Bowen QC and Ms Zahra Al-Rikabi (instructed by Bindmans LLP) for the Claimant
Mr Oliver Sanders and Ms Amelia Walker (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 6–9 December 2016
Approved Judgment
On 17 September 2015, a press release was issued from the Prime Minister's Office and the Home Office entitled "PM's Extremism taskforce: tackling extremism in universities and colleges top of the agenda." It announced the coming into force on 18 September 2015 of the "revised Prevent Duty Guidance" issued in July 2015 under the Counter-Terrorism and Security Act 2015, CTSA, and entitled "A new duty to stop extremists radicalising students on campuses…." The purpose of this general Guidance and associated Higher Education Guidance was to explain how universities and other further educational institutions should give effect to their duty under s26(1) of the CTSA. The press release referred to 70 events on campuses featuring "hate speakers". Dr Butt was among six named, through oversight, as "expressing views contrary to British values" on campus. The Extremism Analysis Unit, EAU, within the Home Office had opposed the inclusion of names within the press release.
Mr Bowen QC for Dr Butt challenges two decisions or actions: (1) the lawfulness of the Prevent Duty Guidance documents themselves, and (2) the collection, storage and dissemination of data by the EAU. He challenges the lawfulness of the Guidance documents on the grounds that (1) they were beyond the powers in s29 of the CTSA, (2) they failed to comply with the duty in s31 CTSA to have particular regard to the duty to ensure free speech in higher education institutions, and (3) they breached common law and ECHR rights in relation to free speech, in their lack of clarity, legitimate need and proportionality. He reserved the right to argue that common law Wednesbury rationality should be replaced by the more structured concept of proportionality.
Mr Bowen contended that the collection, storage and dissemination of data by the EAU breached ECHR Article 8, interfering with the Claimant's privacy rights, unjustified by an accessible and foreseeable law, lacking a legitimate aim or pressing social need, and being disproportionate to any legitimate aim which it might have. He raised but did not develop an argument that, even if Article 8 were not breached, the actions of the EAU breached Articles 7 and 8 of the European Union Charter of Fundamental Rights, CFR; he wanted to reserve his position so as to argue elsewhere (1) that the CFR went further than the ECHR, in not requiring a reasonable expectation of privacy, and (2) that the common law with the Royal Prerogative were an insufficient legal basis for the collection, storage and dissemination of data. Mr Bowen sought permission to amend his grounds to raise an argument that the collection and storage of information about Dr Butt constituted unauthorised "directed surveillance" for the purposes of s26 of the Regulation of Investigatory Powers Act 2000, RIPA.
Dr Butt sought to stay a claim of unlawful indirect discrimination until after the SSHD's intended Equality Impact Assessment, and in the light of that intention, did not pursue the claim that issuing the Guidance breached s149 of the Equality Act 2010, the public sector equality duty. Dr Butt has also brought a claim for damages for defamation, breach of his ECHR Article 8 rights and for breach of the Data Protection Act 1998, DPA. I am not concerned with these damages claims.
Dr Butt
Dr Butt, a British citizen and practising Muslim, has a background in biochemistry, including a PhD. He is the editor in chief of Islam21C, a publicly accessible website describing itself as "Articulating Islam in the 21 Century." Islam21C was initiated by the Muslim Research and Development Foundation, and became separate in September 2015. Dr Butt holds what Mr Bowen said "might be described as orthodox conservative religious views", not unlawful and shared by many others. He has spoken at universities at the invitation of student societies, notably Islamic Societies, chaired or participated in panel discussions, and led prayers at mosques. He states that he supports rather than opposes values identified in the definition of "extremism" in the revised Prevent Duty Guidance: "democracy, the rule of law, liberty and respect and tolerance of other faiths and beliefs." He did not regard his views as "extremist" and did not support ISIS or any other extremist group or terrorism. Articles on Islam 21C condemned ISIS, warning vulnerable people not to support it.
Dr Butt states that he has been affected by being named as an "extremist" in the September 2015 press release, as he reads the press release, leading to invitations to speak at university Islamic Societies ceasing and to others falling away, and to his refusing some he did receive so as to avoid embarrassment to himself and those who invited him. The naming of him in the press release had been given wide publicity in the press and online. He states that the press release also implied that he was a "hate speaker", though not explicitly naming him as such.
I make no findings one way or the other about any of 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.
Part 5 of the CTSA, entitled "Risk of being drawn into terrorism", Chapter 1 "Preventing people being drawn into terrorism", states in s26 (1): "A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism." "Terrorism" has the meaning given in the Terrorism Act 2000, s1(1)-(4). This is a broad definition.
It means the use or threat of "action", (defined in subsection (2)) where:
"(1)(b) the use or threat is 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."
By subsection (2) "action":
"(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.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section-
(a) "action" includes outside the United Kingdom,…
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
The "specified authorities" for the purposes of the CTSA are listed in its Schedule 6. The Schedule lists local authorities, custodial institutions and probation services, police forces, health and social care providers, educational and child care bodies and, pertinently for this case, by cross-reference to s11 of the Higher Education Act 2004, universities and other further and higher education institutions. They all have roles in the protection of the young, vulnerable and disadvantaged.
S29 deals with guidance. By subsection (1), the SSHD "may issue guidance to specified authorities about the exercise of their duty under section 26(1)." By subsection (2), authorities to whom the guidance is issued "must have regard to any such guidance in carrying out that duty." This, unlike s26, is not an obligation to have "due" regard. There may be separate guidance for different matters and authorities. Before issuing it, the SSHD must consult the Ministers of the two devolved governments and "any person" she considers appropriate. Guidance takes effect on the day appointed by regulations approved by positive resolution of each House of Parliament.
Enforcement of the s26 duty is dealt with in s30. Where the SSHD is satisfied that a specified authority has failed to discharge the s26 duty, she may give directions to it "for the purpose of enforcing the performance of that duty." A direction, in turn, may be enforced by an application, impliedly to court, for a mandatory order. No directions have been made; the PDG treats them as a last resort. S26 does not provide for enforcement of guidance.
S31 is important to Mr Bowen's submissions about free speech and academic freedom. I deal with it later.
There are also monitoring provisions in s32. The specified authorities for the purpose of s26, which are higher and further education institutions, must give to the monitoring authority, here the SSHD or her delegate, "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)." That information includes information which specifies the steps which the body in question will take to ensure it discharges the s26 duty. The Higher Education Funding Council for England, HEFCE, is the monitoring delegate in relation to...
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