Legal expert Smita Jamdar reflects on legal issues with the implementation of the new Prevent duty, and how this could affect the FE sector.
In parliament last week, the prime minister described the reported decision of an unnamed college to ban Christian Union meetings because of the Prevent framework as “clearly ludicrous”.
People, he went on to say, needed to exercise common sense in making these judgments.
This will be cold comfort for management teams up and down the country trying to navigate the government’s guidance.
This doesn’t list the types of extremism to which it should apply (although it does give examples, including Islamic radicalisation and far-right groups), but instead is based on the idea of views that are contrary to “British values”.
The guidance is based on the much broader definition of extremism as vocal or active opposition to fundamental British values
Hence, the government has chosen a very flexible definition of extremism — so flexible in fact that attempting to enshrine it in statute through the Counter-Extremism Bill is now foundering on the grounds that it is not sufficiently legally robust.
It was chosen deliberately because it can then be adapted to differing environments and changing trends.
While such a broad definition may be a laudably pragmatic attempt at “future-proofing” the legislation, it does leave it open for such vastly different judgments to be reached that even identifying what a “common” sense response looks like may be tricky.
It is important to remember that the statutory duty is to have due regard to the need to prevent people from being drawn into terrorism, while having particular regard to colleges’ statutory duty to ensure so far as is reasonably practicable for staff, students and visitors.
Terrorism is defined as particular action or the threat of particular action (such as serious violence and damage to property) designed to influence the government or intimidate the public in order to advance a political, religious or ideological cause.
This, most people would agree, is a relatively clear threshold to identify.
The guidance however is based on the much broader definition of extremism as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and a mutual respect and tolerance of different faiths and beliefs.
So much broader is this definition that some legal commentators have questioned whether it is close to being an unlawfully broad exercise of the power to issue guidance conferred by the Counter-Terrorism and Security Act 2015.
Whether or not that is correct, colleges have to apply the definition as it stands.
If there is a religious group (or indeed any other group not necessarily aligned to a religion) expressing views that were contrary to this broad definition of British values, then technically they fall within the Prevent guidance.
Consideration needs to be given, therefore, as to whether or not those exposed to these views could be drawn into taking or threatening action to intimidate the public or a section of the public as a result.
Some religions promote beliefs that raise questions about, for example, individual liberty: sexuality and abortion are issues in relation to which elsewhere in the world terrorist acts have been carried out by religious groups.
If there is a risk that the group’s views could lead to that result, then intervention by an institution is not only justified, but also arguably required in order to discharge the statutory duty.
Having identified a risk, colleges are expected to eliminate it.
In the case of open events, such as visiting speakers, that may be achieved by making sure contrary views are expressed at the event.
But what can be done about private gatherings, other than perhaps ban them?
This may not have been what the government had in mind when it introduced the latest version of the Prevent duty.
But it is perfectly predictable response to a duty drawn so widely that it will capture views that are regarded as mainstream by some groups.
If that is not what the David Cameron wants, then he should ensure his government revisits its definition, not berate colleges for reaching decisions he personally disagrees with.