Butt, R (On the Application Of) v The Secretary of State for the Home Department

The Court of Appeal reviewed challenges to the Home Office's Prevent Duty Guidance (PDG) and Higher Education Prevent Duty Guidance (HEPDG) and to the Extremism Analysis Unit's (EAU) collection, recording and sharing of information about Dr Salman Butt. The court held that the EAU's limited collection of publicly available material did not engage Article 8 because there was no reasonable expectation of privacy and there was no systematic collection or covert directed surveillance for the purposes of RIPA. It further held that most challenges to the Guidance failed: guidance directed to preventing people being drawn into terrorism is within the Secretary of State's power under section 29 CTSA and the Guidance need not itself perform the balancing exercise required of universities under section 31 CTSA and section 43 Education (No. 2) Act 1986. However, the Court allowed the appeal in part in relation to paragraph 11 of the HEPDG, concluding that the Secretary of State should have ensured that that paragraph was more balanced and better reflected the statutory duty to ensure freedom of speech.

This was an appeal from Ouseley J's dismissal of judicial review proceedings brought by Dr Salman Butt. He attacked the lawfulness of the revised Prevent Duty Guidance and the Higher Education Prevent Duty Guidance (together, the Guidance), and challenged the EAU's collection, recording and sharing of information about him following a Home Office press release. Dr Butt sought multiple remedies including declarations that the Guidance was unlawful and that Home Office processing of his personal data was unlawful.

Procedural history: The claim was heard in the High Court (Administrative Court) before Ouseley J who dismissed it ([2017] EWHC 1930 (Admin)). The matter was then appealed to the Court of Appeal ([2019] EWCA Civ 256).

Issues for determination:

• whether the Guidance was ultra vires section 29 CTSA by applying to "non-violent extremism";
• whether the Secretary of State failed to have particular regard to the duty to ensure freedom of speech under section 31 CTSA (and section 43 Education (No.2) Act 1986) when issuing the Guidance, in particular paragraph 11 of the HEPDG;
• whether the Guidance and paragraph 11 breached common law and Article 10 rights;
• whether the EAU's collection, storage and sharing of publicly available material about Dr Butt engaged Article 8 and, if so, whether the interference was justified under Article 8(2); and
• whether the EAU's activity amounted to covert directed surveillance under RIPA 2000.

Court's reasoning and findings:

• Article 8 engagement: the court applied the "reasonable expectation of privacy" test and Supreme Court authorities (R (Catt) and Re JR38), concluding that public expression intended for dissemination and limited, non-systematic compilation of publicly available material did not create a legitimate expectation of privacy here. The EAU's activity occurred on three discrete occasions, relied on public sources and did not amount to the "systematic" collection of retrievable personal files required to engage Article 8 on these facts.
• Justification under Article 8(2): the Court considered the DPA 1998 framework and the limited nature of the processing, concluding that, had Article 8 been engaged, retention and use were nonetheless in accordance with the law and proportionate given available safeguards and the legitimate Prevent aim.
• RIPA: the activity did not amount to covert directed surveillance because it was not covert in the RIPA sense, nor was there focused, systematic monitoring of Butt's private life; RIPA did not render otherwise lawful conduct unlawful.
• Ultra vires challenge under section 29 CTSA: the Guidance was directed to preventing people being drawn into terrorism. The court accepted that preventing non-violent extremism qua non-violent extremism that bears no risk of drawing people into terrorism is not within section 26; but the Guidance, properly read, targeted extremism that risked drawing people into terrorism and was thus within power.
• Section 31/section 43 duty and paragraph 11 HEPDG: the court accepted that the HEPDG is guidance and that decisions and the statutory balancing between Prevent and freedom of speech fall to universities. Nonetheless paragraph 11 was expressed in trenchant terms that risked skewing RHEB decision-making; the Secretary of State should have produced a more balanced formulation which better reflected the statutory duty to ensure freedom of speech. For that limited reason the appeal succeeded.
• Article 10 and common law free speech: the claimant was not shown to be a "victim" for the purposes of section 7 HRA as there was no concrete evidence the Guidance had been applied to bar him; accordingly no successful Article 10 claim was made on the facts.

Practical implication: the Guidance is largely lawful and intra vires, the EAU's limited processing of publicly available material was lawful on these facts, and RIPA did not apply; but the Home Office should revise HEPDG paragraph 11 to give a clearer, more balanced statement that properly reflects duties to protect freedom of speech in higher education.

Appeal allowed in part. The Court of Appeal upheld the High Court's dismissal of most challenges: the EAU's limited collection of publicly available material did not engage Article 8 and did not amount to covert directed surveillance under RIPA; the Guidance was within the scope of section 29 CTSA as directed at extremism that risks drawing people into terrorism; and no successful Article 10 or common-law free speech claim was established because Dr Butt was not shown to be a victim. The court nevertheless found that paragraph 11 of the HEPDG was expressed in unbalanced, trenchant terms and should have been drafted to better reflect the statutory duty to ensure freedom of speech, so the appeal succeeded to that limited extent.

Appeal from the High Court (Administrative Court) (Ouseley J) [2017] EWHC 1930 (Admin) to the Court of Appeal ([2019] EWCA Civ 256).