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and Security Act receiving Royal Assent on 12 February 2015, the Government has published for consultation draft guidance relating to the Prevent duty (see below). This draft guidance suggests specified authorities, including schools, must have due regard to the need to prevent people being drawn into terrorism (“the Prevent Duty”).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commenting that a significant number of responses were received and that appropriate changes may be made to the draft guidance as a result.
The Home Secretary has also confirmed that the draft guidance will have to be debated in, and confirmed by, both Houses of Parliament before it can take effect.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 Schools and early-years providers
The Prevent duty will apply to the following authorities which are listed, amongst others, in Schedule 3 of the Act:
- Maintained and non-maintained schools;
- Alternative provision academies;
- Independent schools;
- Pupil Referral Units;
- Maintained nursery schools;
- Registered early years and registered later years providers, including childminders;
- Childcare in schools exempt from registration;
- Holiday schemes for disabled children; and
- Providers to whom local authority functions are outsourced.
Schools already have a duty to safeguard children from the risk of harm under section 175 of the Education Act 2002. The draft guidance suggests that schools will now have to consider the Prevent duty as part of their Safeguarding programme.
The draft guidance specifically mentions the following key activity expected of schools to comply with the Prevent duty:
- Assessment by Governors and the Senior Management team of the risk of pupils being drawn into terrorism;
- Robust safeguarding policies in place to identify children at risk and clear protocols for intervening if necessary;
- Clear policies for the supervision of visiting speakers;
- Promotion of fundamental British values in both curricular and extra-curricular activities, and the general conduct of the school;
- Working in partnership with local schools and the Local Safeguarding Children Board;
- Training of staff which enables them to identify children at risk and to challenge extremist ideas, including when to refer to other authorities; and
- Establishing appropriate Internet filters to limit exposure to extremist content.
Monitoring and enforcement
The draft guidance states that the current OFSTED inspection framework already includes reference to a school’s approach to keeping pupils safe from the risk of radicalisation and extremism. It does not appear to suggest a separate criterion in relation to Prevent.
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 and the delivery of the Prevent duty, including the evaluation of complaints and whistleblowing.
Schools will be expected to maintain records which demonstrate compliance with their duties under the guidance and how Prevent is being implemented. Schools 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 Home Office will have the power to issue “compliance directions” to any school found byPrevent co-ordinators to be non-compliant with the duty.
In addition, the Act has been amended to allow the Secretary of State to seek a Court Order requiring a school to cooperate with monitoring authorities, for example by disclosing documents, if that school fails to cooperate voluntarily with investigations.
Schools 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. Schools will have to consider:
- Necessity and Proportionality – Schools 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;
- Power to share – Schools will have to ensure that they have the requisite authority to share information;
- Data Protection Act and the Duty of Confidentiality – Schools are subject to specific duties to ensure the confidentiality of personal information. Schools will have to ensure they are fully aware of their responsibilities, and the factors that must be satisfied before information can be disclosed.