On Monday 24 November Theresa May announced the Government would publish a new Counter-Terrorism and Security Bill. It was not until the Wednesday that the full text of the Bill was published but the speech itself was enough to raise a few eyebrows. The Home Secretary announced the Government would introduce:
“…a statutory duty on…universities… to help prevent people from being drawn into terrorism. So for example universities will have to put in place extremist speaker policies.”
Although the “statutory duty” was new, the sentence that raised alarm bells in the sector was:
“The organisations subject to the duty will have to take into account guidance issued by the Home Secretary. Where organisations consistently fail, ministers will be able to issue directions to them – which will be enforceable by court order.”
Disobeying a court order is, of course, Contempt of Court – a maximum of two years in prison.
No-one is seriously suggesting that vice chancellors or chairs of council are likely to be imprisoned any time soon but this Bill is surely one of the toughest penalties ever aimed at the higher education sector. Worth taking seriously then.
Taking into account… what guidance?
It is worth taking especially seriously because, as it stands, the power to draft and issue this guidance sits entirely with the Home Secretary – no Parliamentary oversight and no judicial scrutiny. The judgement as to whether a university is “failing” would sit with one person. This Bill gives the Secretary of State sweeping new powers, including the possibility of direct intervention in the governance of universities. This is why million+ has called for Members of Parliament and Peers to ensure that the Bill is amended to provide for Parliamentary scrutiny of any guidance that would apply to universities.
Parliamentary debate so far
The first reading took place in the House of Commons on Wednesday 26 November. In the same week the Intelligence and Security Committee of Parliament (ISC) published a report into the circumstances on the intelligence relating to the murder of Fusilier Lee Rigby. Read together these indicate a new approach from Government: an expectation of a new responsibility on organisations to proactively monitor for and prevent terrorist activity, as well as to report and cooperate.
The Labour front bench has given broad support to the Bill providing cover for the Immigration and Security Minister James Brokenshire to conclude the debate at Second Reading by commenting that:
“almost without exception, the right hon. and hon. Members who have spoken have recognised and understood the importance of the powers in the Bill and broadly supported them, even if some would like to see further focus and reflection on specific aspects of them”.
There were, however, notable contributions on the impact on universities from Yasmin Qureshi (Lab, Bolton South East, Home Affairs Committee) and Sir Menzies Campbell (LD, North East Fife). A number of MPs voiced support for the Prevent programme, though mainly from the perspective of securing future funding and Government support.
Broad concern has been raised that the Government has yet to publish the statutory guidance that would provide the detail of how new powers relating to universities would be interpreted. Both the Labour Shadow Home Office frontbench team and a number of backbenchers on all sides of the House of Commons have asked for clarity on that guidance to be presented urgently, in time for consideration by the Committee of the Whole House on 16 December. It now seems that Ministers will be unable to meet this deadline.
Universities co-opted?
The proposed duties move the role of universities from one of co-operation with appropriate authorities to one of co-option. Co-opting organisations to “prevent” criminal activity raises issues of principle. And questions about how effective such a statutory duty is likely to be in preventing terrorism have been compounded by the language of Clause 21. This requires that:
“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism”.
By relying on the extremely broad definition of terrorism in the Terrorism Act, 2000 and by including the phrase “being drawn into”, universities will face enormous challenges in defining “terrorism” and the activities that they must seek to prevent individuals being drawn into it.
For these reasons it may be preferable if Ministers clearly define organisations and individuals within the scope of Clause 21, by using Proscribed Terrorist Organisations as provided for under the Terrorism Act 2000. Either way, as Liberty has stated, these provisions will:
“create a bureaucratic nightmare for hundreds of public bodies now presumably required to have counter-terrorism prevention policies regardless of their suitability or relevance to law enforcement.”
In spite of the Government’s dash to publish legislation, as yet the Home Office has failed to outline how and who will monitor these duties and which part of the Department will be responsible for enforcement.
Nor have Ministers outlined how the Bill as currently proposed, aligns with the 1986 Education Act.
Universities’ legal obligation to ensure freedom of speech
While it is accepted there is no ‘absolute’ freedom of speech, universities seek to create safe and inclusive environments for their staff, students and guests. Higher education in the United Kingdom has a long and proud history of providing space for debate but institutions also have a legal duty to provide that space as enshrined in Education (No. 2) Act 1986 c61 Part IV Section 43. Meeting this legal duty is not always easy but unless the statutory guidance is clear, there is a strong possibility that third parties will take legal action, challenging decisions made by universities’ balancing obligations to both Education Act (1986) and the Counter-Terrorism and Security Bill.
Where next?
It remains to be seen whether Ministers will address these key issues at Committee Stage. If, as seems likely, they fail to rise to the challenge, it will be left to the House of Lords to improve the Bill. One can only hope that Peers return after the parliamentary recess with a New Year’s resolution to sort out a great deal of unfinished business.
million+ has published a couple of briefings on the detail of the bill, one prior to second reading and one for committee stage, with further detailed comments on the proposals.
I hope that the Government has explained why it needs to take on these powers. One of the complaints of the parties currently in government is that the UK tends to legislate when its not strictly necessary, so we’d expect to see reasons why the Government needs these powers to force universities to comply with Prevent – which universities haven’t?
One very pedantic point. Having got alternative providers on the mind, I looked up the schedule that defined the educational establishments that had to comply. APs aren’t in the first section:
“The governing body of an institution within the higher education sector within the meaning of section 91(5) of the Further and Higher Education Act 1992.”
Which is:
“91 (5) References to institutions within the higher education sector are to—
(a) universities receiving financial support under section 65 of this Act,
(b) institutions conducted by higher education corporations, and
(c) designated institutions for the purposes of Part II of this Act (defined in section 72(3) of this Act), [which leads to the Education Reform Act 1988 the clause being about Polytechnics and higher Education Corporations – but which I think is the basis for course designation]”
Or in this part
“The governing body of a qualifying institution within the meaning given by section 11 of the Higher Education Act 2004.” [which is about a student complaints body – which we know APs aren’t in]
“11Qualifying institutions
In this Part “qualifying institution” means any of the following institutions in England or Wales—
(a)a university (whether or not receiving financial support under section 65 of the 1992 Act) whose entitlement to grant awards is conferred or confirmed by—
(i)an Act of Parliament,
(ii)a Royal Charter, or
(iii)an order under section 76 of the 1992 Act;
(b)a constituent college, school or hall or other institution of a university falling within paragraph (a);
(c)an institution conducted by a higher education corporation;
(d)a designated institution, as defined by section 72(3) of the 1992 Act.”
Only leaving, I think, this section to act as a catch-all
“The governing body or proprietor of an institution (not otherwise listed) at which more than 250 students, excluding students undertaking distance learning courses, are undertaking courses in preparation for examinations related to qualifications regulated by the Office of Qualifications and Examinations Regulation or the Welsh Assembly Government.”
But does that really catch all Alternative HE Providers? Ofqual regulate Pearsons (as it were) and so that should extend to places offering HNDs, and I think the 1992 Act is the basis of course designation (?) but what if you’re not offering HNDs or have designated courses? Probably just a vanishingly small group.
But surely we don’t have a bill that will require nursery schools to comply with the Prevent strategy, but not the New College of the Humanities? I must have missed something…
Helpfully Government have come up with an answer to my question about whether all HE is covered. They issued the draft guidelines for consultation just after the committee stage in the Commons (which seems a bit unhelpful). They explain how they want ths to work:
Universities’ commitment to freedom of speech and the rationality underpinning the advancement of knowledge means that they represent one of our most important arenas for challenging extremist views and ideologies. However, there is also a risk that some people may use higher education institutions as a platform for drawing people into terrorism. Universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism.
Higher education specified authorities
The higher education institutions specified in Schedule 3 to the Act fall into two categories.
• All higher education organisations on the Higher Education Funding Council for England (HEFCE) register. This includes institutions which fall under one or more of the following categories:
– Providers which receive direct public grants for higher education;
– Those providing courses that have been specifically designated by government
as eligible for the purposes of English student support funding; and
– Higher education institutions with the right to award one or more types of UK degree.
• Private higher education institutions that are not in receipt of public funding from HEFCE but who have similar characteristics to those on the register. We define these as institutions that:
– Have a physical building;
– Have at least 250 students; and
– Teach people in a group setting in preparation for examinations which either receive public funding or are regulated by the Office of Qualifications and Examinations Regulation.
Most of these institutions already have a clear understanding of their Prevent-related responsibilities, including the need to ensure and promote freedom of speech whilst having due regard for the welfare of their students, staff and visitors. Institutions already demonstrate some good practice in these areas. We do not envisage the new duty creating large new burdens on institutions and intend it to be implemented in a proportionate and risk-based way.
To comply with the duty we would expect universities and higher education institutions to be delivering in the following areas.
Question for consultation
8. Are there other institutions, not listed here, which ought to be covered by the duty? Please explain why.
Interesting that possiblt the Home Office don’t think alternative providers with course designaton are definately covered by the 1992 Act and so have that extra catch-all. It’s also odd that they are, in effect, asking what else should go in legislation that will have its third reading before the consultation closes, but they can use the Lords later.
Again, no examples of universties not engaging with Prevent, but the consultation suggests inserting HEFCE between the Regional Prevent Coordinators and the Home Secretary as regulator (even of alternative providers) and the duties include having an action plan, staff training etc.