Practical Law

The government’s counter-terrorism strategy, CONTEST, is based on four areas of work:

• Pursue: to stop terrorist attacks.
• Prevent: to stop people becoming terrorists or supporting terrorism.
• Protect: to strengthen our protection against a terrorist attack.
• Prepare: to mitigate the impact of a terrorist attack.

This post looks at the new duty on public bodies, specifically local authorities and schools, to have due regard to the need to prevent people from being drawn into terrorism, and considers what actions a local authority lawyer might be involved in to help discharge the duty.

The government’s Prevent strategy, published in June 2011, has three objectives, to:

• Respond to the ideological challenge of terrorism and the threat we face from those who promote it.
• Prevent people from being drawn into terrorism and ensure that they are given appropriate advice and support.
• Work with a wide range of sectors and institutions (including education, faith, health and criminal justice) where there are risks of radicalisation which we need to address.

(Paragraph 7.2, Prevent Strategy 2011.)

Background to the Prevent duty

Section 26 of the Counter-Terrorism and Security Act 2015 (Act) places a duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism (the Prevent duty). Specified authorities include local authorities, NHS trusts, schools and also providers of certain services to those authorities. The Prevent duty came into force on 1 July 2015.

In March 2015, the government published Prevent duty guidance for England and Wales, and separate guidance for Scotland. On 16 July 2015, the government issued guidance specific to the further and education sectors, together with revised versions of the March 2015 (which are subject to Parliamentary approval) (Guidance). Specific authorities have a statutory duty under section 29 of the Act to have regard to Guidance in carrying out their duty.

What does the general duty consist of?

The Guidance interprets the term “due regard” as meaning that authorities should place an appropriate amount of weight on the need to prevent people being drawn into terrorism when they consider all the other factors relevant to how they carry out their usual functions.

Specified authorities should:

• Demonstrate an awareness and understanding of the risk of radicalisation in their area, institution or body.
• Demonstrate evidence of active co-operation, in particular with local Prevent co-ordinators, the police and local authorities and co-ordinate through existing multi-agency forums.
• Ensure staff who engage with the public are trained to ensure they understand what radicalisation means, why people may be vulnerable to it, know what measures are available to prevent people from being drawn into terrorism, how to challenge extremism and access support for people who may be exploited by radicalising influences.
• Ensure information sharing agreements are in place at a local level, for example, to enable a person at risk of radicalisation to be given appropriate support.
• Maintain appropriate records to show compliance with their responsibilities and provide reports when requested.

How does the duty apply to local authorities and schools?

The Guidance explains how the duty applies to different sectors. The duty applies to local authorities and schools in the following key ways:

• Partnership. Local authorities should establish or make use of an existing local multi-agency group to agree risk and co-ordinate Prevent activity, such as their Community Safety Partnership. Local or regional Prevent co-ordinators must have access to senior local authority leadership to give advice and support. The partnership arrangements must include private and voluntary organisations that provide services or exercise functions in relation to children.
• Risk assessment. Local authorities should use the existing counter-terrorism local profiles (CTLPs) produced for every region by the police to assess the risk of individuals being drawn into terrorism. However, the Local Government Association has (LGA) raised concerns, in response to the government’s consultation on the duty, about the currency and reliability of the information provided, and that a partnership approach to assessing risk is more appropriate. The duty should be incorporated into existing policies and procedures, such as safeguarding policies to identify children at risk.
• Action plan. Local authorities should develop an action plan to deal with any identified risks through the delivery of projects, activities or specific interventions to reduce the risk of people being drawn into terrorism.
• Staff training. The extent of staff training is not clear. However, staff who directly work with members of the public should receive appropriate training, as described above. This includes staff employed by contractors delivering local authority services.
• Use of local authority resources. Local authorities should ensure that publicly owned venues and resources do not provide a platform for extremists and are not used to disseminate extremist views. Computers made available to the public, such as in libraries, should use filtering systems that limit access to terrorist and extremist material.
• Collaboration between areas. In two-tier areas, county and district councils must agree proportionate arrangements for sharing the assessment of risk and for agreeing local Prevent action plans.
• Prevent priority areas. Prevent priority areas, as set out in the Prevent Strategy, will be funded to employ a local Prevent coordinator.
• Other agencies and organisations supporting children. The duty applies to a number of other private and voluntary sector organisations supporting children, such as children’s homes and fostering agencies. These organisations must ensure they are part of their local authority’s safeguarding arrangements and that their staff are appropriately trained.
• Out of school settings supporting children. Out of school settings, other than childcare, such as clubs and tuition centres are not regulated by education law. Local authorities should map this provision and take steps to ensure children attending these settings and activities are properly safeguarded, and consider taking appropriate action, for example, under planning and health and safety laws where safeguarding concerns arise.

Schools are subject to the same duty. The guidance recognises that schools should be safe spaces in which children and young people can understand and discuss sensitive topics, including terrorism and extremist ideas, and learn how to challenge these ideas. However, schools should be mindful of their existing duties to forbid political indoctrination and secure a balanced presentation of political issues under sections 406 and 40 of the Education Act 1996. The same duties apply to independent schools, including academies, through the Independent Schools Standards.

In addition to the guidance on the Prevent duty, the following DfE guidance applies:

• Working together to safeguard children.
• Keeping children safe in education.
• Information sharing advice for safeguarding practitioners.

In Wales, the applicable guidance is, Keeping learners safe.

Monitoring and enforcement

The Home Office is responsible for monitoring compliance with the Prevent duty. When an authority has failed to discharge the duty, the Secretary of State has the power under section 30 of the Act to make directions to enforce performance of the duty.

Central support and monitoring will be supported by existing inspection regimes, including Ofsted and its Welsh equivalent, Estyn.

In the local government context, the government may also use existing mechanisms to enforce performance, such as sections 10 and 15 of the Local Government Act 1999 which empower the Secretary of State to appoint an inspector to assess the authority’s compliance with its best value duty, and to directly intervene in the running of the authority, for example by appointing commissioner to take on some of the authority’s functions. (These powers were recently exercised in relation to the London Borough of Tower Hamlets, though not in connection with the Prevent strategy, see Legal update,  DCLG issues directions to Tower Hamlets to comply with best value duty under LGA 1999.)

The Welsh Ministers have similar powers of intervention in the Local Government (Wales) Measure 2009.

If the failure to discharge the duty relates to education, childcare or children’s social care, the Secretary of State may use his powers under section 497A of the Education Act 1996. The Welsh Ministers have powers to intervene under the School Standards and Organisation (Wales) Act 2013.

Privately funded independent schools in England and Wales who fail to meet the Independent School Standards, and fail to remedy the problem, may be subject to regulatory action by the Department of Education or the Welsh Government, which could include deregistration.

Early education settings risk having their funding for the early years entitlement from local authorities cut if they fail to promote the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance for those with different faiths and beliefs.

How is the Prevent duty relevant to the local authority lawyer?

The local authority lawyer has a key role to play in helping their authority comply with the Prevent duty. Specific activities that may involve the in-house legal team include revising:

• Safeguarding policies in relation to children and young people to recognise the duty and refer to training requirements and escalation procedures, as well as sources of support, such as the Channel programme.
• Employment procedures to address extremism as an issue in recruitment, disciplinary and whistle-blowing practices.
• Standard contracts to include provisions on, for example, training on the Prevent duty for contractor employees, escalation routes through which contractors must raise concerns, and sanctions for failing to adequately support the authority in discharging its duty. The wording of such clauses will need careful consideration and various scenarios should be discussed before agreeing a standard approach. An example cited in the LGA consultation response was where an employee of a commissioned organisation frequently expressed extremist views. What should the local authority expect that organisation to do? With this in mind, the authority might want to ensure its contracts require the contractor to refer the individual to the Prevent lead, and/or require the contractor to remove the employee from the contract.
• Standard leases or premises licences to prevent the authority’s premises and other resources being used to disseminate extremist views, for example, people invited to speak at private events hosted in local authority premises, and mandating the use of appropriate filters on local authority IT systems to limit access to extremist material.
• Information sharing protocols and agreements, which will underpin the discharge of the authority’s duty while remaining compliant with existing legislation, including the Data Protection Act 1998, the Human Rights Act 1998 and the common law duty of confidence.