The Prevent Strategy, devised to combat all forms of radicalisation, was first introduced in 2007. Following the change of government in 2010 the initiative was refocused, and this year has been consolidated by the enactment of the Counter Terrorism and Security Act 2015 (the Act) and associated Regulations.
Since 1 July 2015, a number of specified authorities within the education, faith, health and the criminal justice sectors have been required by section 26 of the Act (the section 26 duty) to have due regard to the need to prevent people from being drawn into terrorism. Despite the Prevent duty being given a statutory basis, it is not yet applicable to universities. It was expected that the section 26 duty would apply to Higher and Further Education institutions from 1 September 2015 but this is now likely to be delayed until later in the autumn.
Why is it becoming a statutory duty now?
Since 2014, the international terrorist threat level in the UK has been classified as “Severe”, the second highest level out of five, meaning that an attack is highly likely and could occur without warning at any time. For several years it has been clear that the source of the threat is not just from radical foreign nationals but also from individuals born in Britain who have become radicalised.
It has long been acknowledged, if not universally accepted, that higher and further education institutions can take a critical, front-line role in confronting extremist ideology and intervening to combat radicalisation within academic communities that are larger and more multicultural than ever. The difficulty for universities in particular is that their very existence and value is based on tolerance, openness and diversity. There is already a legal duty under section 202 of the Education Reform Act 1988 to safeguard academic freedom and under the Education (No.2) Act 1996 to take all reasonable steps to ensure freedom of speech for staff and visiting speakers and, after much debate and criticism, the Home Office confirmed in May 2015 that the Prevent duty would not apply to universities until there was a clearer strategy on how these conflicting priorities might be reconciled.
The eagerly awaited further guidance for Higher and Further Education institutions was published on 16 July 2015. There is separate guidance relating to higher education institutions in England and Wales (the Guidance) and further education institutions in England and Wales together with separate guidance for higher and further education institutions in Scotland (this article just deals with the duty on institutions in England and Wales). However, Further Education guidance should be considered alongside the higher education guidance by those Higher Education Institutions who have a further education offering and vice versa.
Due to the summer recess, the guidance will not now be debated by Parliament until late September at the earliest. Even so, in anticipation of Parliament approving them there are a number of steps that Higher Education Institutions should consider taking when carrying out their usual functions.
The challenge for HE
Concern about radicalisation within UK universities is not new. It was the involvement of two former UK university students in terrorist activity in the US and Sweden that led to the 2011 Carlile review of anti-radicalisation policy. There has been much debate as to the extent to which the university environment is conducive to exploitation by extremists and some universities have, understandably, questioned whether staff can or even should be made responsible for monitoring students for signs of radicalisation. Others acknowledge the risk that well-meaning concerns could degenerate into racism, religious prejudice and ‘witch hunts’, although generally there appears to be an acceptance that vigilance is an extension of the existing pastoral duty owed to students.
There is also, of course, the tension between universities’ duty in relation to ensuring academic freedom and freedom of expression and the need to police, and if necessary, constrain what is deemed extremist activity. It was this issue that led to criticism of the original March guidance for universities, which suggested that higher education providers should have 14 days’ notice of speakers on campus and be given advance warning of the content of events “including an outline of the topics to be discussed and sight of any presentations, footage to be broadcast”. In part, this is due to the belief that unless views – however extreme or offensive – can be expressed, they cannot be properly challenged. It also reflects the fact that universities must act in a manner that does not impinge on freedom of thought, conscience and religion, freedom of expression or freedom of assembly, other than to the extent necessary to protect public order, public safety, national security and the rights and freedoms of others.
Universities UK (UUK) lobbied for the removal of the 14-day speaker notice period and called for the guidance to avoid a “one-size-fits-all” approach by placing broader and less prescriptive obligations on universities that reflect the characteristics of individual institutions. The government appears to have accepted that view, removing the 14-day notice requirement from the Guidance and replacing it with an expectation that universities will show they have gone through due process when agreeing to controversial speakers coming onto campus and have taken steps to mitigate any risk to students and staff.
What does the Guidance mean for universities in England and Wales?
The Guidance is clear that the section 26 duty is not intended to place “large new burdens” on institutions; rather it is intended that it will be implemented in a “proportionate and risk-based way”. This is reassuring but it also states that compliance will only be achieved properly if thought through policies and procedures are in place which set out the general expectations outlined in the guidance. Not only must these policies and procedures be in place but they must be properly followed and applied. Universities will be monitored for compliance with the section 26 duty.
A number of areas are highlighted in the Guidance and we mention below some areas that we consider will be of particular interest:
â— Managing external speakers and events
All higher education institutions to which the duty applies are now defined as Relevant Higher Education Bodies (RHEBs), regardless of whether they are publicly or privately funded. RHEBs are expected to have policies and procedures in place to manage events on campus and for the use of all RHEB premises. These policies and procedures should apply to all staff, students and visitors and sit alongside systems for assessing and rating risks associated with any planned events. In doing this RHEBs must “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”.
‘This “err on the side of caution” approach is likely to be hard to reconcile in practice with the duties of universities in relation to freedom of speech and academic freedom.’
The Guidance continues: “In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such a risk can be fully mitigated without cancellation of the event”. Risk assessments must contain evidence of how the decision to allow the event to proceed, be cancelled or the decision to put in place mitigation strategies to mitigate risk were made. Such risk assessments must also provide for RHEBs’ affiliated, funded or branded events which take place off campus. When an event is allowed to proceed, organisers must be sure that speakers with extremist views, that could draw people into terrorism, will be challenged with opposing views at the same event. Some may argue that it is unrealistic in practice to expect universities to be able to achieve such balance in all cases but that is what will be expected.
The Guidance further states that if RHEBs are in any doubt about whether or not the risk can be mitigated, then such events should not be permitted to go ahead. This “err on the side of caution” approach is likely to be hard to reconcile in practice with the duties of universities in relation to freedom of speech and academic freedom.
RHEBs will still need to take account of the UUK guidance issued in 2013 to support institutions to make decisions about hosting events and having proper safeguards in place in this area and also to their existing Equality Act obligations, as outlined in the 2014 guidance produced by the Equality and Human Rights Commission regarding gender segregation.
â— Working in partnership
Senior management of universities must actively engage with other partners involved in Prevent including the police, BIS regional Higher and Further Education Prevent co-ordinators. It is expected that RHEBs will be in regular contact with relevant Prevent co-ordinators so they can seek advice on how to comply with the duty and guidance on risk and response. The contact details of Prevent co-ordinators can be found at
â— Sharing information
The Guidance states that RHEBs must work in partnership with students, by engaging and consulting them in relations to their plans for implementing the duty. RHEBs must also make use of internal structures to share information about Prevent across faculties and it is suggested it may be helpful to have a designated person to deliver Prevent-related activity. In relation to sharing information about vulnerable individuals both internal mechanisms and external information sharing agreements should be in place, where possible. RHEBs should also have procedures in place for sharing information about speakers with other institutions, where it is legal to do so. This area will need very careful consideration to ensure compliance with all data protection and confidentiality obligations.
â— Assessing risk
The Coalition government advocated the omission of non-violent extremism from the Prevent duty; a view the new Conservative government has now confirmed it does not share. RHEBs are therefore expected to carry out a risk assessment which considers “where” and “how” their students may be at risk of being drawn into terrorism through both violent and non-violent extremism.
The Guidance makes it clear that the risk assessment should look at institutional policies regarding the campus and student welfare, including equality and diversity and the safety and welfare of students and staff as well as assessing the physical management of the university estate including policies and procedures for events held by staff, students or visitors and relationships with external bodies and community groups who may use premises or work in partnership with the institution.
‘The Coalition government advocated the omission of non-violent extremism from the Prevent duty; a view the new Conservative government has now confirmed it does not share.’
Recognition of chaplaincy as an important source of pastoral support is recommended, and universities are expected to review their policies and procedures relating to the use of IT. Usage policies must make specific reference to the duty and policies and procedures should be in place for students and staff working on sensitive or extremism related research.Policies should also be in place to help universities deal with those who have accessed such materials for illegitimate purposes.
Once the risk assessment has been carried out, RHEBs are expected to develop a Prevent action plan to set out the actions they will take to mitigate the risks identified. Training will be a key element. RHEBs should therefore be reviewing their risk assessment and evaluation processes including their corporate risk register.
â— Working with student unions and societies
Student unions and their societies have an important role to play and RHEBs will need to work closely with them in devising, implementing and monitoring policies. In addition, student unions, as charitable bodies, are subject to charity laws and regulations and must comply with those that relate to the prevention of terrorism. The Guidance includes reference to student unions needing to consider whether staff or elected officers would benefit from Prevent awareness training or other related training offered by the Charity Commission.
Clear policies must be in place as to which type of student union and society activities are and are not permitted to take place on campus. Similarly policies must be in place to manage their online activity when it is directly related to the RHEB. The policies must make it clear what is expected from student unions and societies in relation to Prevent – they must be prepared to challenge extremist ideas which risk people being drawn into terrorism.
The Guidance has provided some welcome clarity on what will be expected of HE and FE institutions once the Prevent duty applies to them, even if for the moment ambiguities remain. Balancing potentially conflicting statutory obligations from several pieces of legislation will be challenging but much can be done now to make the changes necessary to demonstrate compliance with what will become a mandatory regime.
Kris Robbetts (left) is a Senior Associate and Charlie Heffernan a Solicitor at leading education law firm Veale Wasbrough Vizards. For further information please contact Kris on 0117 314 5427, or Charlie on 0117 314 5453.