Butt, R (On the Application Of) v The 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 only where it creates a risk of drawing people into terrorism. It must also present a sufficiently balanced and accurate account of higher education providers’ competing statutory obligations, including the duty to secure lawful freedom of speech.

Publicly expressed views, collected only to a limited and non-systematic extent, do not engage article 8 where the individual has no objectively reasonable expectation of privacy in them. Internet searches are not covert surveillance merely because their subject is unaware of them; secrecy must be intended.

Dr Salman Butt appealed from the dismissal of his judicial-review claim by Ouseley J in the Administrative Court, [2017] EWHC 1930 (Admin).

He challenged the Prevent Duty Guidance and the Higher Education Prevent Duty Guidance issued by the Secretary of State. He contended that the guidance was ultra vires, gave insufficient protection to university free speech, and infringed common-law and Convention expression rights. He also challenged the Home Office Extremism Analysis Unit’s collection, retention and use of publicly available information about his views and speaking engagements under articles 8 and 10 of the Convention and the Regulation of Investigatory Powers Act 2000.

The central issue on the successful ground was whether paragraph 11 of the higher-education guidance properly reflected institutions’ competing Prevent and freedom-of-speech obligations.

1. Appeal allowed in part. The challenge to paragraph 11 of the Higher Education Prevent Duty Guidance succeeded. Although the Guidance was not ultra vires merely because it addressed non-violent extremism, it had to be read as confined to extremism creating a risk of drawing people into terrorism. On that construction it fell within sections 26 and 29 of the Counter-Terrorism and Security Act 2015.

2. The Secretary of State nevertheless had a duty, when issuing guidance for higher education providers, to ensure that it was sufficiently balanced and accurate to inform them of their competing obligations. Paragraph 11 used trenchant language requiring cancellation unless risk was fully mitigated and left a reader likely to regard it as the decisive, tailored guidance. It insufficiently represented the statutory duty to secure freedom of speech. The guidance could readily be redrafted, but the court did not prescribe its wording.

3. The duty in section 43(1) of the Education (No.2) Act 1986 protects not only speakers already invited, but persons who would otherwise be invited to speak. A contrary distinction would be arbitrary. The court applied the approach in R v University of Liverpool, ex parte Caesar-Gordon [1991] 1 QB 124.

4. Article 8 was not engaged. The governing inquiry is whether there is, objectively and in context, a reasonable or legitimate expectation of privacy. For public material, systematic collection and storage is additionally required. Dr Butt deliberately publicised and promoted the views and appearances recorded by the EAU, and the limited material obtained on three occasions did not comprise a systematic record. Alternatively, any interference was justified under article 8(2), given its modest character, the legitimate aim, and the safeguards available under the Data Protection Act 1998.

5. The EAU’s activity was neither surveillance nor covert directed surveillance under the Regulation of Investigatory Powers Act 2000. Covert conduct requires an intention that the activity remain unknown to its subject. The remaining Article 10 claim failed because Dr Butt had not shown a concrete impact sufficient to make him a Convention victim, although he had common-law standing. No historic common-law infringement was established.

• Court of Appeal (Civil Division): Allowed the appeal to the limited extent that the higher-education guidance insufficiently reflected the competing freedom-of-speech duty; dismissed the remaining grounds.

• High Court, Administrative Court: Ouseley J dismissed the judicial-review claim: [2017] EWHC 1930 (Admin) .