High Court rejects legal challenge against counter-radicalisation strategy at UK universities

July 30, 2017

The High Court has rejected a legal challenge against the government’s counter-radicalisation strategy, Prevent, and its delivery at higher education institutions. The test case was brought against the Home Secretary by British Muslim Dr Salman Butt after he was identified as “on record as expressing views contrary to British values” in a press release from the Prime Minister’s office on tackling extremism in universities and colleges in September 2015.

Last week, the claims against the Home Secretary were dismissed on all counts. Mr Justice Ouseley found that the Home Office’s guidance that sought to assist universities in having due regard to the need to prevent people from being drawn into terrorism, i.e. the Prevent Duty, was lawful. Contrary to Dr Butt’s argument, the guidance did not exceed the government’s powers in seeking to challenge non-violent extremism nor does it conflict with the right to free speech.

The judge also rejected Dr Butt’s claim that the handling of his personal data by Extremism Analysis Unit (EAU) – a research department within the Home Office –interfered with his right to a private life under Article 8 of the European Convention on Human Rights. Mr Justice Ouseley held that Butt could have no expectation of privacy given that the material relied upon had been published in the context of public debate. Dr Butt has indicated he will appeal the decision, while a separate, but related, civil case for damages for defamation is on-going.

Setting aside the issues of personal data and, as the judge did, the question of whether Dr Butt is an “extremist” or “hate speaker”, the ruling highlights issues that are central not only to tackling terrorism in the UK, but also to challenging the extremist ideologies used to legitimise terrorism. Nowhere are the inherent difficulties in reconciling free expression with security more acute than in the higher education sector – and it is in this sector, arguably, that critics of the duty have had most success. Extremist groups such as CAGE have led a concerted on-campus campaign that characterises Prevent as an attack on both normative Islam and free speech. They have secured support from within the sector, with members of the University and College Union (UCU), the largest professional body for post-school educationalists, and the National Union of Students (NUS) both committed to undermining the strategy.

Dr Butt’s legal challenge echoed these anti-Prevent claims. His lawyers argued that in seeking to challenge non-violent extremism, Prevent, and specifically the Prevent duty guidance, goes beyond the need to prevent people from being drawn into terrorism. In the judge’s rejection of this argument, two points emerge. On the legitimacy of preventative counter-terrorism measures more broadly, Mr Justice Ouseley reflected that, “understanding why people are drawn into terrorist-related activity, and seeking to prevent them from being drawn into that activity, is a proper and necessary activity of the state”. On the relationship between non-violent extremism and terrorism, he clarified that extremism “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”.

Inevitably, this raise the question of how universities – as well as other bodies on whom the duty applies such as schools, prisons and local authorities – are to distinguish between different types of non-violent extremism, and whether such distinction can ever be an objective decision. Dr Butt’s lawyer raised the oft-repeated criticism that Prevent restricts, or even criminalises, normative Islamic beliefs and political dissent – specifically, he alleged it was unclear “whether characterising homosexuality as a sin or opposing UK foreign policy in the Middle East would amount to non-violent extremism”. It is worth quoting the judge’s response in full:

Analysing the point is useful because it illustrates what the guidance says. Homosexuality could be characterised as a sin and opposition expressed to UK foreign policy in the Middle East in language which was extreme, non-violent, and which, depending on the words used could or could not risk drawing people into terrorism. Taking an example other than those, and not one on which it is said that the Claimant has expressed views, adultery is characterised as a sin in at least three religions I can think of: holding that view cannot be of itself a non-violent extremist position. Arguing that adulterers should be stoned to death is violent extremism. Arguing that the law should be changed through non-violent democratic Parliamentary means, so that adulterers can be stoned to death in fulfilment of a divinely given law, could be non-violent extremism, and could be seen to create a risk of drawing people into terrorism. The argument might lead others, persuaded by it of the merit of the aim, to reject the means, as an impious impediment to God’s rule on earth.

The judge clearly distinguishes between the holding of views – however distasteful many may find them – and the promotion of either violence or any other action that restricts the democratic rights and legal protections of others in order to enforce said views within society. Furthermore, Mr Justice Ouseley acknowledges the radicalising impact of a perceived divine mandate – particularly with regards to subverting democratic processes.

This is not an academic point by the judge. Dr Butt’s lawyers acknowledge that he is the chief editor of Islam21c, a publicly accessible website which describes itself as “articulating Islam in the 21st Century”. Islam21c was initiated by the Muslim Research and Development Foundation (MRDF) think tank, whose founding member and Islam21c contributor, Dr Haitham al-Haddad, has expressed intolerant views – including justifying the death penalty for apostates. Furthermore, the website states: “Islam21c seeks to show that Islam is a comprehensive world view incorporating a way of life, a system of belief, a 1400 year old history and an extensive and divine system of law”, an Islamist position that understands religion as a holistic political and legal project – and as an alternative to democracy.

While ultimately rejected, Dr Butt’s challenge to Prevent on free speech grounds raised significant points – and will hopefully go some way to allaying one of the most commonly heard criticisms of Prevent in higher education, that it has a “chilling effect” on universities. The judgment clarified that the requirement to have “due regard” to preventing people from being drawn into terrorism “does not override” the requirement on higher education institutions to “particular regard” to the duty to ensure freedom of speech and the importance of academic freedom. As such, it is a “balancing act” – and universities can, in certain circumstances, decide “that the freedom of speech duties and the academic freedom duties to which they have to pay particular regard, are more important”.

This aspect of the ruling has been celebrated by groups like CAGE on the grounds that it “demonstrates that PREVENT infringes on freedom of speech and echoes concerns that it’s having a chilling effect”. In fact, the due regard/particular regard distinction exists exactly to ensure, where possible, the precedence of free speech – risk management has always been the objective and, contrary to accusations of stifling debate, inviting additional speakers and generating debate is encouraged, for example, as a preferred route to mitigating risk. As the Security Minister said shortly before the duty came into force, it is “not a de facto ban on speakers with non-violent extremist views from speaking on campus”. On Dr Butt’s claims, Mr Justice Ouseley said: “I am quite unable to accept that this evidences some general chilling effect”.

Finally, Dr Butt can be identified as part of the broader anti-Prevent campaign – aside from his legal challenge, articles on Islam21c both openly refer to Prevent as “discriminatory” and campaign against the Prevent duty and he has hosted debates on whether radicalisation “is real” with both CAGE and Dr al-Haddad. Writing for Islam21c, Dr Butt asserted that: “For a long time, the (mis)application of Prevent has seen countless people and organisations have their civil liberties curtailed unnecessarily without recourse to due process”. It is worth considering the judge’s findings in this regard. Mr Justice Ouseley highlighted that no higher education institution “has challenged or provided, as an institution, evidence that it has created difficulties in practice for the values of freedom of speech and academic freedom”. Moreover, of Dr Butt, he went on: “not one has complained that they have had to refuse to invite the Claimant to speak, or to prevent others doing so or to cancel a meeting arranged for him to speak at. Indeed, they have not said that about anybody”.

Ultimately, the judge found that while much of the evidence put forward both by Dr Butt’s lawyers and by witnesses for the claimant expressed views that were critical of Prevent or the duty guidance, “most do not address the impact on freedom of speech or do so with no specific evidence to support such fear as they express”. Mr Justice Ouseley reiterated the rights of academics and activists to dislike the duty and to “campaign against it” – but rightly reminded them that while the “merits” of Prevent could be “debated endlessly but not in court”, their evidence “did not advance this case”.

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