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The review of the Prevent strategy must address the problem of a polarised society
At the end of September, the government published “ways of working” for its independent review of Prevent.
These lay out what will be involved in the review, which has the task of gathering and analysing information to underpin recommendations on the future of the government’s strategy for supporting people who are vulnerable to being drawn into terrorism.
The review is already mired in controversy as a result of the choice of Alex Carlile as reviewer, given his previous public support for the programme. However, as the ways of working make clear, the prospect of the Prevent strategy being shut down is not on the table, so perhaps there should be no problem with the review being led by a supporter.
Instead, the thrust of the review is to assess the effectiveness of the strategy against its objectives and to recommend improvements. Prevent’s stated objectives are to “tackle the causes of radicalisation and respond to the ideological challenge of terrorism, safeguard and support those most at risk of radicalisation through early identification, early triage and intervention where appropriate, and early, proportionate and continuing support, and to enable those who have already engaged in terrorism to disengage and rehabilitate”.
The review covers four phases: establishing the landscape; listening and engagement; synthesis and debate; and report and recommendations. The aim is to deliver a series of practical, proportionate and evidence-based actions to improve the effectiveness of the strategy.
Chilling effect
For universities, one crucial area that the review needs to address is the interrelationship between Prevent and their statutory duties to ensure, so far as is reasonably practicable, freedom of speech within the law for staff, students and visiting speakers, as well as their obligations in respect of academic freedom and freedom of expression more broadly.
In England, the duty to ensure free speech is reinforced in the Office for Students’ regulatory framework and has sufficiently exercised successive secretaries of state for it to feature in two of 2019’s three ministerial letters to the OfS. There has been concern across higher education about the tensions around these duties and the chilling effect the Prevent strategy has had on free speech, academic inquiry, and debate and discussion.
The main problem is paragraph 11 of the statutory Prevent guidance, which requires universities to “fully mitigate” the risk that speakers will express extremist views that risk drawing people into terrorism. Universities should, if necessary, do this by banning events. The effect of this guidance was considered by the Court Of Appeal in March this year, in R (Butt) v Secretary of State for the Home Department, with the court concluding that the secretary had failed in his duty to promulgate guidance that was sufficiently balanced and accurate to inform the decision-maker of their competing obligations and assist them to a proper conclusion.
As a result, the court concluded that the guidance needed to be rewritten.
The 2018 report by the joint committee on human rights into freedom of speech in universities reached a similar conclusion and also recommended that any review of Prevent ought to consider specifically its effect on free speech and association in universities. This should therefore be a main area of focus for the review, and universities should be ready to submit evidence about the cost, complexity and barriers that compliance with the duty generates.
Scope creep
Another issue that the review might usefully consider is the risk of scope creep into unrelated areas.
The OfS has begun to ask for information about non-Prevent-related welfare referrals as a means of testing Prevent compliance. The argument appears to be that the fact that universities refer students for specialist support for non-Prevent-related reasons gives comfort that they would also make referrals for Prevent-related reasons.
“Welfare” in this context is defined as “the systems, policies and processes used by providers to exercise their duty of care towards their students and staff across academic and non-academic spheres and spaces, including ‘cause for concern’ and other similar procedures”.
This is a far wider definition of “welfare” than that set out in the statutory Prevent guidance, which refers more narrowly to chaplaincy support and prayer rooms. The risk of crossover into areas such as counselling referrals or, for example, fitness to study or fitness to practise procedures is clear, but is it desirable?
Polarised society
The final area that needs to be explored as part of the review is how Prevent works against the background of an increasingly polarised society and increasingly extreme forms of expression, especially on social media, and how universities are supposed to respond to that.
The “British values” referred to in the guidance include a belief in the rule of law, mutual respect and tolerance of different views—qualities that seem in desperately short supply in our public debate. The definition of terrorism in the UK is the use or threat of action to influence government or the public and to advance an ideological, political or religious cause. The action must threaten harm to the public, damage to property or interference with electronic systems.
There are many areas of our public discourse where threats of such action have become commonplace. Some of these even emanate from senior public figures. The language of betrayal, treachery and the vengeance of the public, accompanied by threats to riot—increasingly common in our national discourse over Brexit—is not so different from that used by some of the incendiary speakers the Prevent guidance requires universities to fully mitigate or ban. The Extinction Rebellion movement is regarded by some as extremist. In so far as it results in public disorder or criminal damage, it could also be considered a form of “terrorism” under the legal definition.
The Prevent guidance was only written in 2015, but it already seems to come from a more sedate, reasonable time when “extremism” was easier, if not exactly easy, to spot and define. Is it still appropriate in the turbulent and divided UK of 2019?
Smita Jamdar is partner and head of education at the law firm Shakespeare Martineau.