March 18, 2019

Dr Salman Butt was the Chief Editor of Islam 21C, a publicly accessible website, which described itself as “articulating Islam in the 21^st Century”. Dr Butt described himself as holding conservative, but not extremist, religious views. He also said that he had spoken at a number of universities at the invitation of student Islamic societies.

A press release, entitled “PM’s Extremism Taskforce: tackling extremism in universities and colleges top of the agenda”, issued by the Government in 2015, announced the coming into force of the revised “Higher Education Prevent Duty Guidance” entitled “A new duty to stop extremists radicalising students on campuses….”.

In the “Notes to Editors” at the end of the press release, Dr Butt was listed as one of six people who had spoken at universities and who were “on record as expressing views contrary to British values”. That conclusion was based on information supplied to the Extremism Analysis Unit (a unit within the Home Office), as part of a digest detailing events taking place on university campuses that Student Rights, a body set up by the Henry Jackson Society think tank, considered to be potentially extremist.

Dr Butt issued various claims against the Secretary of State for the Home Department. This appeal concerned two matters. First, whether the collection and retention of information about Dr Butt’s views by the EAU was compatible with Article 8 of the European Convention on Human Rights. Secondly, whether the Prevent Duty Guidance was compatible with Article 10. Dr Butt’s challenge was based on five grounds, including:

1. i) the Guidance was outside the powers of Secretary of State under the Counter-Terrorism and Security Act 2015 (CTSA);
2. ii) the Secretary of State had failed to discharge his s 31 CTSA duty;

• iii) the Guidance was a violation of Article 10 and/or Dr Butt’s common law right to free speech;

1. iv) the collection and retention of his data by the EAU was contrary to Article 8; and
2. v) the EAU’s activities were unauthorised directed surveillance for the purposes of the Regulation of Investigatory Powers Act 2000.

The Article 8 challenge to the collection of Dr Butt’s data was dismissed. Article 8(1) was not engaged, as Dr Butt had no reasonable expectation of privacy due to the fact that he had deliberately made statements public and had clearly wished to communicate them to others. The Court of Appeal noted that the touchstone for engagement of Article 8(1) is a legitimate expectation of privacy, and neither the UK Supreme Court decision in Catt v Commissioner of Police of the Metropolis [2015] UKSC 9 nor the European Court of Human Rights’ decision in Catt v UK (43514/15) cast doubt on this requirement, which applies even where the State systematically collects and stores data about an individual. Further, there was no systematic collection of information about Dr Butt by the EAU, nor did the data it retained constitute a systematic record.

The Court of Appeal also said that even if Article 8(1) were engaged, the collection and retention of Dr Butt’s data was a justified interference with his right to privacy under Article 8(2).

The challenge based on RIPA was also dismissed. The Court of Appeal found that the provisions of RIPA were not engaged because there was no surveillance, and even if there had been, it was not covert.

As for Article 10 and/or the common law right to free speech, although publication of the Guidance was within the Secretary of State’s power, it was unlawful in one respect. Paragraph 11 was expressed in unconditional terms: an event must not be allowed to proceed if the Higher Education Institution is not entirely convinced that the risk, however small, of people being drawn into terrorism cannot be fully mitigated. Higher Education Institutions were, the court said, likely to read the Guidance and assume it represented a balance of their competing duties under the CTSA, which places them under a statutory duty to have regard to the need to prevent people from being drawn into terrorism and, when discharging those duties, to have particular regard to the duty to ensure freedom of speech. The unconditional phrasing of the Guidance was not sufficiently balanced or accurate so as to inform Higher Education Institutions of those competing obligations. To the extent that the Secretary of State had expressed the Guidance in this unconditional form, he had failed to discharge his s 31 CTSA duty.

Dr Butt’s challenge to the Guidance based on Article 10 ECHR failed because he could not show that the Guidance had actually been applied to prevent him speaking at universities.

Therefore, the Court of Appeal unanimously dismissed the appeal in relation to the collection of information by the EAU, but allowed the appeal in part in relation to the Guidance on the ground that Secretary of State had failed to discharge his s 31 CTSA duty in the advice given in paragraph 11 of the Guidance. The Guidance was declared unlawful to that extent and quashed. (R (Salman Butt) v The Secretary of State for the Home Department [2019] EWCA Civ 256 (8 March 2019) — to read the decision in full, click here).