In our previous briefings accessible here and here we have described the new duty on governing bodies under s.26 of the Counter-Terrorism and Security Act 2015 to have regard to the need to prevent people being drawn into terrorism (the “Prevent duty”). However, the duty, although in force for schools and other public sector bodies from 1 July 2015, has not yet been commenced for colleges and universities. The duty for colleges and universities is subject to the duty under the Education (No.2) Act 1986 to take all reasonable steps to ensure freedom of speech for members of the institution and visiting speakers, and under the Education Reform Act 1988 s.202 to protect academic freedom. The coalition government before the May general election indicated to Parliament that before commencing the duty for colleges and universities additional guidance on the holding of meetings involving external speakers would be issued and approved by both Houses of Parliament. On 16 July 2015 draft revised guidance for FE and HE institutions was issued and can be accessed at https://www.gov.uk/government/publications/prevent-duty-guidance.
Status of the revised guidance
The draft revised guidance is stated to be subject to Parliamentary approval. Parliament is now in recess until 7 September and the schedule of business for the first two weeks after Parliament resumes in September does not currently mention the necessary debate. No draft guidance regulations have yet been published. It is therefore not possible to predict when the duty will be commenced, although given the importance of the issue, emphasised in the Prime Minister’s recent speech on the need to challenge the ISIL narrative and re-assert British values, it is likely that the duty will be commenced as soon as possible in the autumn.
The draft revised guidance does not address just the issues around meetings involving external speakers, but rather is intended to replace the original sections of the March guidance addressed to FE and HE institutions. Those sections have been removed from that guidance, which is being re-issued, subject to Parliamentary approval, without them. Separate draft revised guidance has also been issued for FE and HE institutions in Scotland. This briefing focuses on the draft guidance for institutions in England and Wales. The draft guidance for FE and HE is essentially similar but the comments below identify key points and areas of difference in emphasis.
External speakers and events
This section of the draft guidance, in both the HE and FE versions, will be of crucial importance to institutions. In considering the balance between the duties under the Counter-Terrorism and Security Act and those in the Education (No.2) Act and Education Reform Act, institutions should note in particular paragraphs 11 and 12 of the HE guidance. These stress the need to ensure extremist views are challenged at the event and not just at a separate event; also the need to cancel an event if there is any doubt that the risk of drawing people into terrorism cannot be fully mitigated. This would seem to indicate that the s.26 duty should take precedence. It is possible that when Parliament debates the commencement order such an interpretation may be challenged as possibly being in conflict with s.31 of the 2015 Act, which requires governing bodies to “have particular regard” to the duties to ensure freedom of speech and academic freedom.
Although paragraph 16 refers to the need for active engagement of senior managers, together with the police and Prevent co-ordinators, there is no mention of the role of governors in para 16 (unlike the FE guidance). Presumably this is implied as the s.26 duty actually falls on the governing body. Nor is there any mention of working with collaborative partner institutions (unlike the FE guidance, which mentions working with sub-contractors).
Paragraph 19 refers to the need to assess the risk of students being drawn in not just to violent extremism but also to non-violent extremism. However, there is no definition of non-violent extremism (unlike the FE guidance). Nor is there any mention of whistleblowing and complaints procedures, including the ability of students to go to OIA (unlike the FE guidance), although these procedures may be relevant in the Prevent context.
Paragraph 27 requires that these must now specifically address Prevent issues. There is also a need for clear policies for work on sensitive or extremism-related research. Unlike the FE guidance, there is no reference to the support available from JISC.
Monitoring and enforcement
Paragraph 31 states that a monitoring body will be appointed and a monitoring framework published, however, no indication of the nature of the monitoring body is given and nothing is said about enforcement of the s.26 duty (unlike the FE guidance.)
The main differences from the HE guidance, in addition to those noted above are set out below.
Paragraph 20 indicates that staff (who are likely to be working with students aged under 19) are expected to exemplify British values. These values are defined in paragraph 21 in accordance with the wording already used in other legal contexts. The definition does not appear in the HE guidance.
These are not mentioned in the draft guidance, despite being mentioned in paragraphs 29-30 of the HE guidance. Students’ unions of course exist in many colleges, albeit they are generally much smaller than those in universities and are accordingly not registered with the Charity Commission. Nevertheless, they will generally be separate legally from their parent institution and therefore not strictly bound by the s.26 duty, although they are subject to supervision by the college governing body under the Education Act 1994. It is clear that the government expects students’ unions to work closely with the parent institution on Prevent issues – see paragraph 29 of the HE guidance.
Paragraph 29 confirms that this will be done by Ofsted and paragraph 30 reminds colleges of the Secretary of State’s intervention powers that could be used if necessary to enforce the Prevent duty.
The draft revised guidance is considerably shorter than many in the post 16 sector may have been expecting. In order fully to appreciate the government’s intentions it is necessary to read the two sets of draft guidance together, especially if a college provides HE courses or a university delivers FE programmes. Governing bodies will still have to undertake the potentially complex task of balancing their duties under three different statutes, as well as other possibly relevant legislation such as the Equality Act. Where a potentially controversial event is proposed urgent legal advice may be needed.
It is of course possible that further changes to the draft guidance will be made over the coming weeks in the light of comments from the post-16 education sector and when the draft guidance regulations are considered by Parliament. However, given the importance attached by government to the role of education institutions in confronting the terrorist narrative, FE and HE institutions should be assuming that the Prevent duty will be commenced for them in autumn 2015 and should be gearing up to ensure that they can demonstrate compliance with it.