Credit: Joe Gratz, Flickr

The ‘Super-PREVENT’ Agenda Goes Far Beyond the Law

There are many good reasons to oppose the Prevent agenda – a regime created in 2003 under New Labour and bulked up by the Tories in 2011 that enlists universities, schools, hospitals and others in a so-called counter-terrorism strategy.

Prevent has turned doctors, nurses, teachers, and lecturers into amateur police by requiring them to ‘play their part’ in preventing people from being drawn into terrorism.  An independent review by the Open Society Justice Initiative castigated the regime for undermining privacy and free speech.  The UN Special Rapporteur on the Right to Freedom of Assembly criticised it for alienating certain groups, particularly Muslims.  Rights Watch UK has explained that the Prevent model was based on flawed assumptions.

But there’s another reason to be concerned about Prevent – to do with how the law’s being applied.  Institutions, in particular universities, are going far beyond what they need to do to follow the law. This overzealous application, a product of pressure from the Government and the prevailing political culture, is a further threat to basic democratic rights and freedoms.

We need to be clear about what the law actually says.  Under the Counter-Terrorism and Security Act 2015, there’s a duty on “specified authorities” – which include universities, hospitals, and schools – to “have due regard to the need to prevent people from being drawn into terrorism.” But that same Act says that those specified authorities “must have particular regard to the duty to ensure freedom of speech” and “must have particular regard to the importance of academic freedom”.  As always, this legislation must be read against the backdrop of the general law, including duties to respect equality (Equality Act 2010), human rights (Human Rights Act 1998), and academic freedom (Education Act 1993).

That’s a lot of legal jargon.  What does it mean?

It means universities, hospitals, schools and others should give appropriate consideration to the importance of people not being drawn into terrorism.  But only consideration: they don’t have to spring into action.  And this must be balanced against the “particular regard” they must have to ensure freedom of speech.  Notice that it is particular regard to ensuring freedom of speech (not just respect for freedom of speech), and due regard to the need to prevent people from being drawn into terrorism.

Universities have gone far beyond what they need to do to follow the law.  King’s College London warned students it had the right to “monitor access” to emails to prevent access to “offensive” or “threatening” material, as if this was required by Prevent.  The University of Cambridge insisted an independent chair be appointed for an event on Palestinian rights, apparently thinking that this was needed to respect the law.  Even campuses that have claimed to adopt pro-free speech approach to Prevent, such as Oxford, have required departments and colleges to fill out extensive Prevent action plans and risk assessments.

Universities – and other institutions – are overreaching, partly because of a lack of legal expertise and training.  They do not need to go this far, as Alison Scott-Baumann and Hugh Tomlinson QC said in an article as early as 2016.  Universities are, sometimes unwittingly, supporting a souped-up ‘super-Prevent’ agenda that amplifies Islamophobia and intrudes even more insidiously into our basic freedoms.

On its website, the Higher Education Funding Council for England (HEFCE) has a list of things “institutions must” do, including ensuring “internal mechanisms” are in place “for sharing information about vulnerable individuals” and “implement[ing] an IT usage policy.” But this is misleading.  None of this is the law.  It’s up to institutions to decide how to implement their general duties.

What, though, about the guidance HEFCE has released? That has more specifics, and says HEFCE (soon to be replaced by the controversial Office for Students) “would expect” universities to have external speaker policies, policies “for the use of prayer rooms”, and IT policies.  But the guidance doesn’t address how free speech and academic freedom are balanced against the Prevent duty.  And the guidance isn’t law.

This was backed up in a decision of the High Court in July last year called Butt. If the guidance suggests a university meeting should be cancelled, Mr Justice Ouseley said: “institutions are … entitled to say, having had regard to the application of the [guidance], that the freedom of speech duties and the academic freedom duties to which they have to pay particular regard, are more important.” He noted: “the Guidance needs to be read and understood for what it is.  It is just that: guidance.” He added: an “institution … can reach a decision contrary to the guidance if it considers that it should, having considered mitigation and degree of risk.”

Legalese aside, where does this leave universities and all of us?

Jeremy Corbyn has said Prevent must be reviewed and must change – and he’s right.  Campaigners such as the National Union of Teachers and National Union of Students should continue their good work fighting to repeal it.

In the meantime, universities must end their overzealous application of the law.  They could collectively decide to follow a similar approach to Prevent.  They could state publicly – as a bloc – that they’ve considered the risks of people being drawn into terrorism, but that they’ve decided their duties to uphold academic freedom and freedom of speech mean they should take no action different to pre-Prevent years.  If universities don’t shift tack, students shouldn’t accept ‘the law’ as a reason for universities’ overreach.  Lawyers should offer their support if it’s needed.

What we are seeing is a common trend through history: the executive (basically the government, the civil service, the police, and other entities), and associated agencies, acting aggressively in a way that creates a significant gap between the law itself and how it is applied.  It’s a reminder of the need for more public understanding of the reach and limits of executive power.  And it’s a reminder of why the Left needs a principled position on executive power, as Glenn Greenwald has urged, to resist the notion that executive power is good as long as executives do things that we like.

But amorphous ideas of ‘the law’ – sometimes inadvertently, sometimes intentionally – can be used as an excuse by institutions to advance distinctly ideological agendas.  We need to see through that in the case of Prevent.

Max Harris is a writer and campaigner. He is author of the book, The New Zealand Project, and is completing a PhD in constitutional law on executive power.

Published 23rd February 2018

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