The Counter Terrorism and Security Bill (“the Bill”) was introduced into the Commons on 26 November and received its Second Reading on 2 December and will now be considered by a Committee of the whole House. The Government is asking Parliament to fast track the Bill because of the increased threat posed by terrorists, in particular as the result of the involvement of Britons in the ISIL insurgency in Syria. It is expected that the Bill will receive Royal Assent in January 2015.
Most media comment to date has focused on the proposals to exclude from the UK individuals who have taken part in terrorism overseas, and to ban insurance companies from making payments when they know or suspect that a ransom has been paid to secure the release of individuals kidnapped by terrorist groups. However, local authorities and educational institutions will be most interested in Part 5 Chapters 1 and 2. This Part of the Bill extends to England, Wales and Scotland but not to Northern Ireland.
Chapter 1 – Preventing people being drawn into terrorism
The Explanatory Notes say that this part of the Bill is intended to put the existing Prevent programme on a statutory footing. The Notes say that this programme relies on the co-operation of many organisations to be effective and that currently such cooperation is not consistent across the country.
Clause 21 imposes a duty on specified authorities in the exercise of their functions to have due regard to the need to prevent people being drawn into terrorism. The duty is imposed on the governing body. Where an education institution has other functions (the Explanatory Notes mention as an example an independent school with a profit making leisure facility) the duty will only apply to its educational function.
The authorities are those specified in Schedule 3. The list includes local authorities, educational institutions, penal institutions, health bodies such as NHS trusts, and police forces. The list of educational institutions includes:
- higher education institutions eligible for public funding and universities with the power to award UK degrees, regardless of whether they are publicly funded;
- further education institutions funded by the Secretary of State (this would include sixth form colleges funded by the EFA) or by the SFA (i.e. further education colleges);
- state maintained and independent schools and academies;
- institutions preparing more than 250 students for qualifications regulated by Ofqual. This will cover most privately funded schools and colleges.
Clause 22 gives the Secretary of State the power to make regulations amending Schedule 3 or to amend Chapter 1 so as to make “consequential or supplemental provision”. Such regulations will need to be approved by both Houses of Parliament.
Clause 23 requires the Secretary of State to consult the Welsh or Scottish Ministers before amending Schedule 3 by adding or removing a Welsh or Scottish authority.
Clause 24 gives the Secretary of State power to issue guidance to specified authorities about the exercise of their cl.21 duty, separate guidance can be issued regarding different matters, and to all specified authorities, all authorities of a particular class (e.g. schools) or to a particular authority. The Secretary of State must consult the Welsh or Scottish ministers before issuing guidance about the devolved functions of a Welsh or Scottish authority. No guidance has yet been published.
Clause 25 gives the Secretary of State power to issue directions to a specified authority that she is satisfied has failed to discharge the cl.21 duty. Such a direction can be enforced by an application to the courts for a mandatory order. The Secretary of State must consult the devolved administrations before giving directions to a Welsh or Scottish authority. However, failure to perform the cl.21 duty does not give rise to a cause of action (e.g. for damages) in private law enforceable by individuals (Clause 26.)
Clause 27 provides that “terrorism” has the same meaning in the Act as in the Terrorism Act 2000.
Chapter 2 – Support for people vulnerable to being drawn into terrorism
This will be of concern to local authorities and other specified authorities who are treated as the partners of the panels established under this Part. The Explanatory Notes say that this part of the Bill is intended to put the existing voluntary Channel Programme on a statutory footing. The aim is to underpin the Programme and improve co-operation between authorities.
Clause 28 requires local authorities to establish panels of persons to assess the extent to which identified individuals are vulnerable to being drawn into terrorism. “Identified individual ” means an individual who is referred to the panel, on reasonable grounds, by a chief police officer, for an assessment of their vulnerability. Once an individual is identified as so vulnerable, the panel’s functions are to prepare a plan to support them to reduce their vulnerability, arrange that support, review the plan and revise support, or withdraw support, e.g. because the individual refuses to give or withdraws consent. If support is withdrawn the panel must consider referring the individual to a provider of health or social services. The panel must have regard to any guidance given by the Secretary of State. No guidance has yet been issued.
Clause 29 provides that panels must include the responsible local authority and the chief officer of police for the area, together with other persons the local authority consider appropriate. The panel is chaired by the responsible local authority.
Clause 30 requires that the partners of a panel must, so far as appropriate and reasonably practicable, co-operate with the panel and the police in the carrying out of their respective functions. The partners of a panel are specified in Schedule 4and include government ministers and departments, penal establishments, education and child care institutions, NHS trusts and those local authorities and police forces which are not panel members. The list of education institutions is similar to that in Schedule 3 but institutions within the further education sector (i.e. those eligible for public funding), and sixth form colleges, are expressly mentioned. Co-operation includes the giving of information, but not if disclosure would contravene the Data Protection Act or result in the disclosure of information about or obtained through or held by the intelligence services. The duty extends only so far as it is compatible with authorities’ other legal duties. Partners of a panel must have regard to guidance given by the Secretary of State. The Secretary of State must consult the Welsh and Scottish Ministers so far as the guidance relates to panels in Wales and Scotland.
Clause 31 enables the Secretary of State to make regulations amending the definition of local authority in cl.33 and the list of partners in Schedule 4. The Secretary of State must consult the devolved administrations before making regulations affecting Welsh or Scottish authorities. The regulations must be approved by resolution of both Houses of Parliament.
Clause 32 allows the Secretary of State to indemnify a support provider against any costs incurred in connection with carrying out, in good faith, functions as a provider. The Explanatory Notes say that this clause has been included because potential support providers may find it difficult to obtain appropriate insurance; without this they might not be able to provide support.
Clause 33 contains definitions of “health and social care services”, “intelligence services”, “local authority” and “responsible local authority”. It also provides that consent in relation to support plans means consent of the individual if aged 18 or over, otherwise the consent of their parent or guardian.
The published Impact Assessment relating to the new duty gives some indication of how the Government envisage the proposals being implemented.
For local authorities the Assessment focuses on the 303 Prevent non-priority areas, on the basis that the priority areas will already be fully committed to the strategy. All local authorities will be expected to assess the threat of radicalisation within their areas and take action as appropriate. DCLG have estimated the extra costs as ranging from £4,000-£40,000 per authority.
For schools and academies the Assessment assumes that five people in each institution will need training once every two years, training and advice being provided by local authorities and the police. In addition the Government intends to produce a new Prevent awareness training product for school governors and managers, to be delivered to one governor in each school.
The Assessment considers the implementation cost for publicly funded universities and colleges. Each institution will be expected to produce a response to the duties. This is assumed to take one week of a junior officer’s time, costing £573. No cost of management time is mentioned. In addition it assumes that 15 people per institution will need to receive Prevent awareness training once every two years, training being mainly provided through Government funded posts.
Further indication of the likely content of the guidance on the cl. 21 duty is contained in a note issued by BIS and accessible here. Sector bodies, including Universities UK and the Association of Colleges, are being consulted about the content of the guidance. The Home Secretary also indicated in the Second Reading debate that: “That (directing a university not to allow a controversial figure to speak at the university) is not the intention of the duty; its intention is to ensure that the university or institution has in place a policy on matters relating to extremism. For example, they might have a general policy that they apply in relation to extremist speakers coming to their institution. The purpose of the power to make a direction in the Bill is to ensure that they are doing something like that, taking their statutory duty seriously. It is for those institutions that are failing to comply with the statutory duty that that particular power has been put into the Bill.”
Although the Opposition has expressed its support for the principle of the Bill, it is likely that aspects of the Bill will be controversial and that attempts will be made to amend it. The streamlined Parliamentary timetable will, however, make this difficult. We will issue a further briefing when the final wording of the Bill and associated guidance is known.