With the Counter-Terrorism and Security Act receiving Royal Assent on 12 February 2015, the Government has published for consultation draft guidance relating to the Prevent duty (see below). This draft guidance suggests specified authorities, including Higher Education institutions, must have due regard to the need to prevent people being drawn into terrorism (“the Prevent Duty”). No date has yet been confirmed for the Prevent duty to come into force.
The consultation regarding the Prevent Duty ran until the 30 January 2015, with the Home Secretary commenting that a significant number of responses were received and that appropriate changes may be made to the draft guidance as a result.
The Home Secretary has also confirmed that the draft guidance will have to be debated in, and confirmed by, both Houses of Parliament before it can take effect. Updated guidance will have to be published shortly if it is to be approved before Parliament is dissolved on 30 March in advance of the General Election.
Please refer to Eversheds’ previous briefing for a more detailed explanation of the Act itself, which can be found here
Application to Higher Education Sector
It is proposed that the Prevent duty and guidance will apply to all Higher Education Funding Council for England (“HEFCE”) registered institutions; and all private HE providers who have a physical building, at least 250 students, and teach people in a group in preparation for examinations relating to Higher Education courses, listed in Schedule 6 of the Education Reform Act 1988.
We set out below a list of some of the key responsibilities expected of institutions under the draft guidance:
- Specific reference to Prevent duty in policies and procedures
- Active engagement from Senior Management teams with Police, Local Authorities and Prevent co-ordinators;
- Establishment of internal, cross-department group with a single point of contact for delivery of Prevent;
- Risk assessments of where and how students may be at risk of being drawn into terrorism, and of policies and procedures for managing external events;
- Establishment of a Prevent action plan;
- The training of staff on, amongst other things:
- Prevent awareness;
- Factors that make people support terrorist ideologies;
- Recognising vulnerability to being drawn into terrorism; and
- Development of internal and external procedures relating to information sharing;
- Exclusion of those promoting extremist views or views that are conducive to terrorism. However there is an express requirement to have particular regard to the duty to secure freedom of speech; and
- Management of prayer and faith facilities.
Monitoring and enforcement
The current system of local and regional Prevent co-ordinators will be placed on a statutory footing, and will be tasked with assessing the suitability of the delivery of the Prevent duty, including the evaluation of complaints and whistleblowing.
HE institutions will be expected to maintain records which demonstrate compliance with their duties under the guidance and how Prevent is being implemented. HE institutions will also be expected to produce Prevent compliance reports on request, and there will be a legal duty to cooperate with monitoring authorities and to provide them with any documents they may require.
The Act will permit the Secretary of State to nominate appropriate monitoring authorities. The draft guidance proposes to expand the current remit of HEFCE to include the monitoring of compliance with the Prevent duty.
If an institution is found to be non-compliant with the duty, the Home Office will have the power to issue “compliance directions” to any institution.
In addition, the Act has been amended to allow the Secretary of State to seek a Court Order requiring an HE institution to cooperate with monitoring authorities, for example by disclosing documents, if that institution fails to cooperate voluntarily with investigations.
HE institutions will have to consider a number of factors when determining the best strategy for the implementation of Prevent. Perhaps the most important, and difficult, aspect will be the need to share information between institutions and authorities when an individual is deemed to be at risk. HE institutions will have to consider:
- Necessity and Proportionality – HE institutions will have to use their professional judgement to determine if it is necessary and proportionate to share information relating to an individual who they deem to be at risk of being drawn into terrorism;
- Consent - the consent of a person deemed to be at risk should be obtained wherever possible, although it is not clear how this will work in practice if consent is refused;
- Power to share – HE institutions will have to ensure that they have the requisite authority to share information;
- Data Protection Act and the Duty of Confidentiality – HE institutions are subject to specific duties to ensure the confidentiality of personal information. HE institutions will have to ensure they are fully aware of their responsibilities, and the factors that must be satisfied before information can be disclosed.