Butt v Secretary of State for the Home Department

The court rejected challenges to the revised Prevent Duty Guidance (PDG and HEPDG) and to the Extremism Analysis Unit’s (EAU) collection and use of material about the claimant. The judge held that the guidance fell within the power in section 29 of the Counter-Terrorism and Security Act 2015 (CTSA) and was not ultra vires; that the Secretary of State had had particular regard to freedom of speech and academic freedom as required by section 31 CTSA; and that the guidance must be applied by higher education bodies in conjunction with their separate duties under s26 and s31, so institutions remain able to decide to proceed with events where justified.

The claimant was not held to be a victim for Article 10 purposes and no interference with his Article 10 rights was established on these facts. The EAU’s searches of publicly available material did not amount to an Article 8 interference of the kind that was unjustified, nor did the facts establish unauthorised "directed surveillance" under RIPA. The claimant’s equality duty claim was not pursued further and was withdrawn.

Background and parties: The claimant, Dr Salman Butt, a public commentator and editor of Islam21C, was named (by oversight) in a 17 September 2015 press release about extremist speakers after publication of revised Prevent Duty Guidance (PDG) and complementary Higher Education Prevent Duty Guidance (HEPDG) issued under the Counter-Terrorism and Security Act 2015. He brought judicial review challenging (i) the lawfulness of the Guidance documents, and (ii) the EAU’s collection, retention and sharing of information about him.

Relief sought and procedural posture: The claimant sought declarations and relief that the Guidance were unlawful (ultra vires, incompatible with free speech duties in s31 and with common law/ECHR rights), and that the EAU’s processing breached Article 8 ECHR and data protection law. He also sought permission to amend to raise a RIPA directed-surveillance argument. The claim was heard at first instance before Ouseley J in the Administrative Court.

Issues framed by the court:

• Whether the PDG/HEPDG exceeded the Secretary of State’s power under s29 CTSA (ultra vires);
• Whether the Secretary of State failed to have "particular regard" to freedom of speech and academic freedom as required by s31 CTSA when issuing guidance;
• Whether either guidance interfered with Article 10 (freedom of expression) and, if so, whether any interference was in accordance with law and proportionate;
• Whether the EAU’s collection, storage and dissemination of material about the claimant interfered with Article 8 (privacy), and if so whether it was in accordance with law and proportionate (including whether domestic safeguards were adequate);
• Whether the EAU’s activity constituted unauthorised "directed surveillance" under RIPA;
• Ancillary claims including data protection and a public-sector equality duty argument were raised but not pursued or were withdrawn.

Court’s reasoning (concise): The judge construed the Guidance in context and held they did not equate non-violent extremism with terrorism; rather the Guidance address extremism insofar as it risks drawing people into terrorism, which falls within the s26 duty. The Guidance therefore was within the s29 power and not ultra vires. On s31 the court accepted that the Secretary of State had to have particular regard to freedom of speech and academic freedom when issuing guidance; the Guidance sufficiently recognised those duties and did not displace the institutions’ statutory responsibilities under s26 and s31. Paragraph 11 of the HEPDG (on external speakers) was read straightforwardly but the judge emphasised that the ultimate balancing and decision-making rests with the institution which must take account of its s31 duties and may lawfully depart from guidance where justifiable.

On Article 10 the court found the claimant had not established victim status or a concrete interference caused by the Guidance: his alleged reduction in invitations was attributable to a press release and general publicity rather than application of the Guidance by a relevant higher education body; evidence of a chilling effect was insufficiently direct or concrete. Concerning Article 8, the EAU’s work was largely based on open-source material and material the claimant had placed in the public domain; it was not shown to be the sort of systematic covert profiling amounting to a private-life interference that would engage Article 8 in this context. The domestic data protection framework and the EAU’s policies provided a lawful framework for processing and the processing was for legitimate aims (prevention of terrorism/public safety) and proportionate on these facts. The RIPA directed-surveillance argument was permitted to be raised but failed on the facts because the EAU’s activity did not amount to covert directed surveillance as defined by RIPA. Parliamentary materials were considered carefully but the judge avoided using them in a way that would conflict with Article 9 privilege. Ultimately the claim was dismissed.

Subsidiary and practical findings: the court distinguished Catt (systematic retention of public demonstration data) and found the factual intensity and public character of the claimant’s activity made the Article 8 point unsustainable on these facts. The court left open that different facts might yield a different result in a future, concrete case.

The claim is dismissed. The court held that (i) the Prevent Duty Guidance documents were within the s29 power of the CTSA and were not ultra vires, (ii) the Secretary of State had had particular regard to freedom of speech and academic freedom under s31 when issuing guidance and the Guidance must be applied alongside and balanced with institutions’ s26/s31 duties, (iii) the claimant was not a victim for Article 10 purposes and no unjustified interference with his Article 10 rights was established on these facts, (iv) the EAU’s collection and use of publicly available material about the claimant did not amount to an unjustified Article 8 interference, and (v) the evidence did not establish unauthorised directed surveillance under RIPA.