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.
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.
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.