Judgement Released: Judicial Review into Prevent ~ Dr. Salman Butt, ISLAM21C, 27 July 2017.
• 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 frameworkthat 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 for 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 (notprivate 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.
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
Summary of Our Legal Case Against Prevent ~ Dr Salman Butt, ISLAM21C, 11 December, 2016.
What follows is a summary and some reflections from the four-day hearing at the High Court for the judicial review into the UK Government’s counter-terrorism strategy. It was a great educational experience for me personally, after which I am genuinely optimistic and happy—by the Grace of Allah. There were many shocking admissions that the defendant—on behalf of the Home Secretary—had made throughout the case over the last few weeks, some of which will be mentioned here and others in due course, God willing. Of course this is partly based on my own notes and recollections of what happened in court, so it should be borne in mind that there may be a degree of error in the precision of some quotes.
I would like to thank all the of brothers, sisters and friends that showed messages of support and encouragement, may Allah reward all of them and produce a favourable outcome for all.
The case was a result of a 10 Downing Street press release on the 17th September 2015, which included my name among a list of alleged ‘extremists’ and ‘hate preachers’ based on the judgement of a secretive department within the Home Office known as the ‘Extremism Analysis Unit’. The press release was ‘naming and shaming’ (according to the press coverage) universities that had given platforms to such alleged extremists, days before the Prevent Duty to universities and other higher education bodies was to come into effect. Prevent Duty Guidance (PDG) was issued to higher education bodies for them to discharge their obligations under the ‘Prevent Duty’ which was introduced by section 26 of the Counter Terrorism and Security (CTS) Act 2015:
“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism.”
Our legal claim this week centred on two different grounds. The first was a challenge to the lawfulness of the Prevent Duty Guidance (PDG) to universities, particularly the direction to prevent ‘extremist’ speakers. The second was a challenge to the process by which information and judgements about ‘extremists’ are collected, stored and used by the Extremism Analysis Unit (EAU).
The court was specifically not asked to determine on whether or not I (or anyone else) am an extremist, as that is subject to a further defamation case which will be argued next month, God willing.
First Argument: Non-Violent Extremism
Our barrister built up a very cogent argument for the PDG being incompatible with Common Law, the rule of law and European Convention of Human Rights (ECHR) principles. This is due to the problematic notion and definition of ‘non-violent extremism’ and the confusing guidance given to universities as a result. ‘Extremism’ is defined in the Prevent strategy as,
“Vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces.”
There was a considerable discussion in the trial about what the PDG actually requires of universities with respect to non-violent extremism. The PDG mentions that (my emphasis),
“Being drawn into terrorism includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit.”
There was a debate about whether or not the part in bold above was a description of non-violent extremism, or a qualification of that type of extremism which should be prevented. In other words, does the PDG tell universities to prevent only ‘extremism’ that legitimises ‘terrorism’, or all such ‘extremism’ because it happens legitimise ‘terrorism’? Our barrister argued that the PDG says the latter.
Furthermore, our barrister importantly challenged the premise in the first place that types of speech—even if called ‘extreme’—that are themselves non-violent lead to or legitimise terrorism, with reference to copious expert evidence about the empirically determined causes of terrorism, of which ‘non-violent extremism’ is not one.
Our argument was that conflating terrorism with so-called non-violent extremism is ultra vires to the CTS Act, in other words it is outside of the Government’s legal power and mandate to issue guidance to prevent ‘non-violent extremism’. The defendant argued that parliament had agreed to the Prevent strategy being put on a statutory footing and thus has the final say. However, as our barrister put it,
“What parliament actually approved, was a policy to prevent terrorism, not extremism. Being drawn into terrorism means being drawn into terrorism; not being drawn into something less than terrorism [i.e. non-violent extremism].”
He described a Venn Diagram of the relationship between terrorism (as defined in the Terrorism Act) and extremism (as defined by the Prevent strategy). The circle of ‘extremism’ is huge, with the circle of terrorism being extremely small within the circle of extremism. If there are policies put in place against extremism, “it will affect an extraordinarily large number of people who have nothing to do with terrorism.”
He then challenged the whole notion of ‘non-violent extremism’ being a very subjective tool open to abuse by the state. He referred to expert witnesses who referred to Plato and even Jesus (peace be upon him) as coming under the government’s definition of extremism!
“Today’s ‘extremists’ are yesterday’s dissidents, communists, heretics…”
The defence argued that the government does not subscribe to the conveyor-belt theory—which is an admission that many of us will now welcome. In fact they stated that the government’s position is that “it does not consider that extremism is either a necessary or sufficient condition for terrorism.” Anyone aware of the history of policy and rhetoric surrounding ‘extremism’ would notice a significant move in the right direction.
The above seems, to me at least, somewhat paradoxical, since on the one hand the government (finally) admits that ‘extremism’ is not necessary nor sufficient for terrorism, but on the other hand it still focuses so much on extremism under the pretext of preventing terrorism. In response to the above, our barrister gave the example of Thomas Mair. Not everyone who hangs a St George’s cross outside their window, reads The Sun and supports EDL or UKIP goes around murdering MPs. However, due to Thomas Mair’s actions, is it fair for the government to prevent people reading The Sun, hanging England flags outside their windows and joining nationalist organisations?
PDG is advisory, not obligatory
Part of the defendant’s argument has been that the PDG does not restrict people’s ability to speak, but merely gives advice to institutions to ‘have regard’ about people being drawn into ‘extremism’ and ‘terrorism’. If an institution bans an alleged ‘extremist’ from speaking, it was argued, then the PDG cannot be held responsible because it is only advisory and does not demand a particular outcome.
This would be another welcome admission for those aware of the history of events and meetings being cancelled under the pretext of ‘preventing extremism’ by local Prevent practitioners.
This also formed part of their defence that the PDG and indeed the press release did not affect me personally, and therefore I had insufficient standing as a victim to bring forth some of the claims in this judicial review in the first place. This is because, as the argument goes, the ‘advisory’ guidance issued by the government is several steps removed from a particular university’s decision not to invite or to ban a speaker—which would be a case between the speaker and the university, not Prevent.
This was countered by our barrister by reference to paragraph 11 of the Government’s own Prevent guidance to universities (emphasis added):
“Furthermore, when deciding whether or not to host a particular speaker, RHEBs [relevant higher education bodies] should 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. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.”
It was also argued that the result of the press release in the first place was to ‘name and shame’ universities for hosting particular speakers.
“In the context of that [press] coverage, it would be a brave—possibly foolhardy—university that would extend an invitation to Dr Butt, having been named as a hate speaker, [for them to risk] being named and shamed as a university. So, it’s a reasonable expectation that universities that might have invited him in the past would decide not to [now as a result].”
Our barrister also challenged the notion of preventing views that are “are shared by terrorist groups” as mentioned in the PDG:
“Isis [purportedly] believes in a state based on Sharia Law. Does that mean any belief of a state based on Sharia Law [comes under those that must be prevented]? You and I may disagree [with that belief]. Voltaire might have disagreed. But that’s a view he would have died defending the right to say.”
“What are these views [that are shared by terrorists]? You will not find an answer in this [PDG] document; nor in any other document.”
Our barrister submitted that if there is a law or guidance that potentially restricts fundamental rights it should be clear, transparent and easy to understand so as not to apply to more people than it need be—especially if it is to be applied by those who are not legally trained. The very least that can be said about the way in which the Government has presented universities’ obligations regarding ‘extremism’ and ‘terrorism’ is that it is confusing and potentially conflicting with universities’ obligations to protect free speech. As the judge put it, a university administrator who would be expected to read all of these different guidance documents would have a ‘thundering headache’.
Our barrister argued with reference to the variety of conflicting ways in which different universities implemented Prevent, that the law and guidance lacks the necessary clarity and certainty. Furthermore, those universities that did well to protect free speech in their guidance documents did not follow the PDG closely, and did not even mention anything about preventing ‘extremism’, only terrorism; whilst those who seemed to fall short in their ensuring of free speech were the ones that followed the PDG more faithfully and literally!
Second Argument: Extremism Analysis Unit (EAU)
There were many admissions made and secrets revealed with regards to the enigmatic EAU that has been apparently conducting ‘research’ on some people and labelling them as ‘extremists’. One of the main challenges to the legality of their actions was their apparent lack of transparency and oversight as a department making judgements on individual citizens without their knowledge and recourse to challenge. It was stated that there was no independent oversight of the EAU by the Information Commissioner, nor by the Independent Reviewer of Counter-Terrorism.
A shocking admission on the part of the defendant in the case was that the EAU has been accepting—sometimes without confirming—information and allegations of extremism from private organisations and thinktanks including the neoconservative Henry Jackson Society (HJS). This previously hidden relationship is something that many people suspected, which has now been thrust into the light of day.
Our barrister said “We submit that there is something deeply problematic in the EAU effectively subcontracting surveillance to a private company [HJS].” I would add that it does not require a legal expert to explain the significance and breach of natural justice of an organisation whose Associate Director has said “Conditions for Muslims in Europe must be made harder across the board,”advising the government on which Muslims should have their rights restricted!
The Data Protection Act [DPA] confirms people’s rights over their personal data, and individuals need to know who is processing their data and what it is being used for. Furthermore there are explicit directives to avoid being secretive or misleading when collecting personal data. If an organ of the state wishes to engage in activities that go against this then there are strict rules and procedures in the Regulation of Investigatory Powers Act (RIPA), which have to be adhered to.
It was argued that the way in which the EAU has handled my information and no doubt the information of others, is in breach of these strict regulations. The defendant argued that this was nonsense because the information collected and shared by the EAU was originally in the public domain—articles, Facebook posts, tweets, public speeches, and so on.
Our barrister then proceeded to refute this with eight or nine cogent points, with legal precedents, as to why this is not the case, including the fact that the criterion for these laws is a ‘reasonable expectation of privacy’, and how public information does indeed become private information in the eyes of the law.
“The most significant reason is the purpose for which [Dr Butt’s] information was collected. This is in fact the quintessential reason for why privacy laws exist in the first place: [to protect citizens from] the state to determine who is an extremist, or dissident, or communist, or whatever pejorative label… If someone shares public information that is fine, but once the state startsharvesting this information to label someone an extremist, that public information is converted into private information.”
We argued that it could not have been a reasonable expectation for anyone that the state would be collecting their information to build a profile against them—certainly not based on allegations from right-wing ideological thinktanks. Therefore, the Home Office would have been obligated to inform each individual that they were processing their information for that purpose.
One of the highlights of the whole trial was on the last day where our barrister sought explicit clarification that all documents referred to throughout the hearing would now become public information that we would wish to share to help inform the public. This included many documents and statements regarding the EAU that were previously hidden from public scrutiny, transparency and accountability. The defence conceded that they had been given ample opportunity to apply for orders to prevent documents being referred to in the hearing to become publicly available, and agreed that those documents referred to in the court could be shared publicly.
Our barrister then took a few minutes to “refer to in court” explicitly, one by one, every single EAU document that had previously been marked as ‘confidential’ or ‘secret’, for the avoidance of doubt!
Overall in my opinion the hearing was an excellent experience for me and those attending. If we were to judge it as a matter of public debate, the audience would have gone away with a clear disparity between the strengths of the two sides’ arguments, al-Hamdu lillah. However, it is important for us to be realistic in our expectations and realise that it was not a public debate but a very specific set of legal arguments, and the judge will be pouring over the evidence and arguments with a set of very specific determinations to make. Furthermore he will be acutely aware of the ramifications of his words on future cases and even Government policy.
It is not likely that due to one case the entirety of the Government’s counter-terrorism strategy will be overhauled and replaced with something functioning overnight. However, what we are hopeful for, is a door to be opened for further debate and improvement of policy to bring it in line with facts, sound academic research and natural justice. We hope that this is a useful first step for everyone.
I am very glad and thank Allah first and foremost that all of this information and argument has now started to become public, so that we can all be involved as a society to critique, hold to account and improve the regulations we are all subject to. It must be reiterated that Muslims have largely the same interests as the wider population when it comes to our desire to live without arbitrary restrictions without due process and recourse to challenge. We are not against genuine policies to actually protect innocent people from violence, what we are against is using that as a pretext to—whether consciously or accidentally—restrict the God-given rights of people.
The judgement is likely to come out early next year, God willing.
And there is no tawfiq, no success, except from Allah.