• We welcome the judgement after waiting almost eight months, but it does not go far enough in some key areas, so we will be appealing parts of it.
• Nonetheless, there are some key positive outcomes for the community.
• For the first time, we have a judge outline the limits of Prevent – and they are very different to how it has been understood and implemented for years.
• The judge ruled that any reference to “non-violent extremism” and opposition to “British values” in the Prevent Duty Guidance (PDG) only refers to such views that demonstrably risk drawing people towards terrorism, as legally defined. As for any other so-called “non-violent extremism” that does not create an actual risk for drawing people into terrorism, “the guidance does not apply to it.”
• In addition to the above, the judge ruled that the Prevent Duty Guidance is only a recommendation and, as such, no one has to actually follow it. This includes the infamous definition of “non-violent extremism” used by the government in the past (“vocal or active opposition to fundamental British values…”)—people are under no obligation to use that as a working definition for “extremism”.
• There is no such thing in reality as a “Prevent duty”. It has been reasserted that the actual legal obligation upon the public sector is to “have due regard to the need to prevent people from being drawn into terrorism” (not “extremism”). This is, in fact, a policing duty (stopping terrorism) that has been placed on the public sector, the vast majority of which has neither the training nor the resources to carry it out.
• Therefore, the confused (and confusing) nature of guidance surrounding Prevent—including its misunderstood legal basis and remit—render it unfit for purpose, even if it is “just a recommendation”.
• We also challenged the collection, storage and dissemination of private citizens’ data by a previously secretive and opaque department within the Home Office called the Extremism Analysis Unit. This unit was shown to effectively outsource what we argued was surveillance to a well known Islamophobic organisation not working within the strict legal framework that applies to authorities investigating individuals.
• We were disappointed that the judge did not regard this as a breach under Article 8 of the European Convention on Human Rights, based on the facts of this case. This will be one of the points subject to appeal.
After months a high court judge has finally interpreted the Prevent Guidance
Alhamdulillāh, we welcome the release of the judicial review judgement after waiting almost eight months. Whilst there are some very positive outcomes for the community, we feel that the judgement does not go far enough in some key areas. InshāAllāh, we will be appealing due to the ramifications on the civil rights of not just the Muslim community, but all citizens.
This is the first step in a long process of holding our government to account. 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. But this is about to change, inshāAllāh.
The judicial review was arguing two main grounds against the government. The first was that the Prevent Duty Guidance (PDG) issued to higher education bodies in particular, is against the law, as it focused on a vaguely-defined “non-violent extremism” whereas the actual legal duty (based on CTS Act 2015) was concerning “terrorism”—which has a different legal definition altogether.
For the first time we have managed to get a judge to outline the limits of Prevent
Prevent has been around for a decade, and it has taken a judge and legal experts many months to actually understand it – so what about “normal” people who are under the impression that they have to submit to it?
The Counter-Terrorism & Security (CTS) Act 2015 established a legal duty on the public sector (not private individuals or community organisations) to “have due regard to the need to prevent people from being drawn into terrorism.” The Prevent Duty Guidance, however, introduced the vague and problematic notion of “extremism” and, in particular, “non-violent extremism”, and was “clumsily” worded (according to the judge). This gave many universities the impression that they had to limit “non-violent extremism” on campus. The crux of our legal argument was that the Prevent Duty Guidance was thus ultra vires—outside the power given to the government by the CTS Act 2015, by drawing the net significantly wider than “terrorism” to include “extremism” in the radar.
The judge did not agree that it was ultra vires, but the reason for this is what is important: it is because he interpreted the guidance as significantly more watered down than the impression that the public have of Prevent and how it has been applied so far.
Firstly: As for the reference to “extremism” or “non-violent extremism”, the judge ruled that this only refers to “extremist” views that are actually linked to “terrorism”, which has its own, clear definition in law.
“The active opposition to fundamental British values 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.” [Paragraph 31 of the judgement]
Secondly: He judged that the Prevent Duty Guidance is only a recommendation, and as such no one has to actually follow it. What is required of public bodies, is to “have due regard to the need to prevent people from being drawn into terrorism,” nothing to do with Prevent per se. This includes the popular definition of “extremism” given by the government in the guidance (“vocal or active opposition to fundamental British values…”)—people are under no obligation to take that as a definition of “extremism” that needs preventing. In other words, public bodies can take the Prevent Duty Guidance into account, and then completely ignore it.
There is no such thing as Prevent “duty”
Calling it the Prevent duty is therefore a misnomer. It is confusing guidance given to the public sector to carry out what is a “terrorism duty” according to the CTS Act 2015, which is in fact a policing duty (stopping terrorism) placed on the public sector, the vast majority of which has neither the training nor resources to carry it out properly.
All of the above means that a great deal of public bodies will be able to revise their policies on dealing with Prevent in a way that should limit much of the harm it has been causing, alhamdulillah. Indeed, I have been informed that the Prevent Duty Guidance to universities has already been changed to reflect the problems that came to light in the case. However, it is not enough.
The great confusion, contradictions and ambiguity that characterise Prevent has meant that, over the years, thousands of innocent people have been affected by it—with the vast majority having absolutely nothing to do with “terrorism”. The widespread interpretation (or misinterpretation) of Prevent guidance has led to much discrimination, alienation and resentment within the Muslim community, which has been increasingly viewed through a structurally racist lens of suspicion and national security.
These are in fact far more likely to create an atmosphere conducive to a (disproportionately) tiny minority being led down a path towards “terrorism”; rather than so-called “opposition to fundamental British values”. This is why those familiar with the peer reviewed science behind the empirically-determined causes of terrorism and political violence have been complaining profusely that Prevent itself is toxic and counterproductive.
The Government was caught outsourcing “surveillance” to shady third parties
Today it is Muslim activists and scholars, but tomorrow it could be anyone else; anti-austerity activists, animal rights campaigners, anti-fracking demonstrators…
Another main ground for our challenge against the government was its lack of due process and rule of law when investigating and labelling private citizens due to their political or religious views. In particular, we challenged the activities of the previously secretive department within the Home Office named “Extremism Analysis Unit” (EAU). The EAU admitted mining data and information on private citizens which were taken from third party organisations not working within the strict legal framework that applies to authorities investigating individuals.
Many ordinary citizens will be shocked that there is a department within the UK Home Office that is effectively monitoring “un-British views” (those contrary to “British values” according to their own definition). This is an uncanny throwback to the committees monitoring “Un-American Activities” in the McCarthyite era in the Unites States, or a kind of precursor to a Stasi state. An unimaginable amount of data is being collected on countless ordinary citizens, harvested and stored by the government without their knowledge, consent, or right to challenge the judgements being made about them.
What is perhaps more damning is that a golden thread was uncovered linking a well known, clearly Islamophobic organisation (Henry Jackson Society), through the EAU—who admitted to uncritically taking information and judgements on myself and other activists—to the Home Office through to 10 Downing Street itself. We had been eagerly awaiting the judgement to release detailed information about the EAU that came to light, and these will be published shortly, inshāAllāh.
The widespread ramifications of this not being critically challenged by the judiciary are worrying, as it could be applied to anyone with views that are disliked by members of the Home Office or even those shady organisations that are giving them “intelligence”, without due process and accountability. As a result we will be seeking to appeal this, inshāAllāh.
All struggles to overturn such policies targeting certain minorities historically have been long ones. Other minorities have been through the same struggle. In earlier cases, judges tend to rule on the side of the state, but such legal battles are nonetheless important to create a more just society for everyone.
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Judgement available for download here: http://www.brickcourt.co.uk/news-attachments/CO-6361-2015_-_Butt_v_Secretary_of_State_for_the_Home_Department_-_Final_Judgment.doc
The views expressed on Islam21c and its connected channels do not necessarily represent the views of the organisation.