Butt v Secretary of State for the Home Department

Guidance issued under section 29 of the Counter-Terrorism and Security Act 2015 may address non-violent extremism where it risks drawing people into terrorism. It must be read as guidance, not as a direction requiring a particular outcome.

Higher education institutions must consider the guidance alongside their duties to have due regard to preventing terrorism and particular regard to freedom of speech and academic freedom. Those duties may justify departing from the guidance in an individual case. A general challenge under Article 10 requires evidence of a concrete interference; a potential or generalised risk is insufficient. The collection and analysis of a person’s deliberately public political and religious statements did not, on the facts, engage Article 8 at the requisite level.

The claimant, a British Muslim who edited a publicly accessible website and had spoken at universities, challenged the Prevent Duty Guidance and Higher Education Prevent Duty Guidance issued under the Counter-Terrorism and Security Act 2015. He alleged that the guidance exceeded section 29, failed to comply with section 31, and unlawfully interfered with freedom of expression.

He also challenged the Extremism Analysis Unit’s collection, storage and dissemination of information about him under Articles 8 and 10 ECHR, sought permission to argue that the activity amounted to directed surveillance under RIPA, and raised an equality claim. The central issues were the legal effect of the guidance, the interaction between the Prevent duty and free-speech duties, and whether the claimant had suffered a legally relevant interference with Convention rights.

1. Guidance and statutory powers. The PDG and HEPDG were within section 29 of the Counter-Terrorism and Security Act 2015. They did not equate terrorism with extremism. They addressed non-violent extremism only where it created a risk that people would be drawn into terrorism. The guidance was to be read as a whole and in its statutory context.

2. Freedom of speech and academic freedom. Section 31 required the Secretary of State to have particular regard to the relevant free-speech and academic-freedom duties when issuing guidance. It did not empower her to alter the duties imposed on institutions. Institutions had to consider the guidance, but also had to comply with sections 26 and 31 of the CTSA and section 43 of the Education (No. 2) Act 1986. The duty to have regard to guidance was less weighty than the duties to have due or particular regard to those interests.

3. The HEPDG’s reference to cancellation where risk could not be fully mitigated meant what it said. Nevertheless, the guidance was not law or a direction. An institution could decide to proceed after considering mitigation, residual risk, freedom of speech and academic freedom. The guidance was not unlawful merely because an institution might misunderstand its duties.

4. Article 10. The claimant was not a victim of an interference with Article 10. He had no right to be invited onto university premises, and produced no evidence that an invitation had been withdrawn or an event cancelled because of the guidance. General assertions of a chilling effect did not establish a concrete or reasonably foreseeable interference. If an interference arose in a particular case, its justification and proportionality would depend on the facts.

5. The guidance pursued legitimate aims connected with national security, public safety, prevention of disorder and crime, and protection of the rights of others. The proportionality assessment involved the legitimate aim, rational connection, necessity and fair balance. The guidance imposed only a limited restriction on external speaking on university premises and did not prevent communication elsewhere. The Article 10 challenge therefore failed on the facts, and any interference was justified and proportionate.

6. Article 8 and EAU data. The EAU’s limited research into the claimant’s public speeches, publications and social-media material did not amount to systematic collection of private information at the level required to engage Article 8. Deliberately public political and religious views carried no reasonable expectation that they would not be collected and analysed. Even if Article 8 had been engaged, the processing was lawful, pursued legitimate aims and was proportionate under the Data Protection Act 1998.

7. RIPA and other matters. The EAU activity was not surveillance, and in any event was not directed surveillance within section 26 of the Regulation of Investigatory Powers Act 2000. Permission to amend was granted, but relief was refused. The equality claim was not stayed, and the section 149 claim was withdrawn.

8. Disposition. The claim was dismissed.

First-instance judicial review proceedings in the Administrative Court. The claim was dismissed.