PART THREE:
PREVENTING RIGHTS
3.1. Data and the Right to Privacy
One of the consequences of securitising safeguarding under Prevent, is that children are interacting with the criminal system despite no criminal offence having occurred, nor having been intended. The process of an individual passing from being suspected by, say, their teacher, of showing signs of extremism, to being placed on Channel if the Prevent referral follows through to completion, involves a number of data collection points. At each of these points, information about a child or young person is recorded and potentially retained, and it can be shared with the other agencies with which Prevent procedures intersect.
Integral to Prevent, then, is the collection and distribution of a significant amount of sensitive and personal information about individuals (mostly young adults and children) who come under its purview, even – crucially – when a referral is deemed unnecessary. Case studies also illustrate that the nature of the information gathered can be highly sensitive.
This all takes place in a context where those involved are encouraged to be risk averse – and, in some cases prove themselves to be complying with the duty – and so, at the very start of the process, subjective judgements are made and recorded (in the case of schools, to show due diligence for Ofsted inspections).
The character of an early stage Prevent-based decision (that is a decision made by practitioners prior to an official Prevent referral being made, or when the referral has been made but Prevent officers have yet to progress it for consideration at a Channel panel meeting), means that police officers and local Prevent officers, as well as social workers, become involved even before formal judgements are made. This happens even when it is deemed unnecessary to progress a case from an initial stage of inquiry. Because no criminal offence has occurred, the police do not have to record interviews and there is no requirement for the child to be represented, or a responsible adult to be present. Those conducting the interviews are directed at eliciting information for purposes of a possible Prevent intervention.
Sophia
When raising your children Muslim is viewed as ‘sinister’
Sophia is a Muslim mother who is raising her children according to the Islamic faith. When Prevent and social services got involved in Sophia’s life, the assessment from the social worker made a number of inaccurate allegations against Sophia that painted her in a light of being ‘extreme’ or contrary to ‘British values’.
The following excerpt is a letter from Sophia’s lawyer requesting for the assessment to be amended. This was only one of several points that the lawyer needed to address in the report, which Sophia had instructed him were an inaccurate misrepresentation. More than that, the report painted her way of raising her children as something sinister:
Meetings or interviews feature leading questions that generate responses that are often taken out of context, where the individuals involved have a professional practice of notetaking and have been trained based on the flawed ERG22+. This means that not only is the information held sensitive, but it is often misleading; this is then exacerbated by the fact that it is transferred onto databases where it is de-contextualised, and subsequent sharing further de-contextualises it. There are a number of important questions that arise from the perspective of Data Protection. These are: what data is collected? What is done with this data and with what reason? What are the impact and risks for individuals whose data may be used? How are their rights to know, to correct, to delete, or to seek an effective remedy fulfilled?
The problem of consent
We will see that Prevent is defined as a process, one where pre-criminal concerns, based on fear, are projected into the future. But it is important to recognise that there is also a process within Prevent, from initial concern through to a Prevent referral all the way through to Channel (which occurs in around 5% of cases). Individuals – children and young people – are being dismissed from Prevent, or referred to other services, at all the stages beforehand in the remaining 95% of cases. Yet, their data is being held as if they continue to be at risk of proceeding to an offence. This has unnecessarily harmful implications for their futures.
Avenues to challenge how data is being interpreted and for how long it is being retained, may seem to be legally straightforward, as is the formal relation of the Prevent duty to the laws governing data collection and retention.
Article 8 of the Human Rights Act (1998) provides a general right to respect for an individual’s private and family life, including the home, and to live free from government interference. This, of course, includes rights to personal political and religious belief. More specifically, the EU General Data Protection Regulation43 was published in 2016 (superseding the existing UK Data Protection Act 1998) and was integrated into UK law – following Brexit – through the Data Protection Act (DPA) in 2018. It continues to define the circumstances under which personal data on individuals can be held or shared, and it provides individuals with rights to know what is held and have their data deleted from records.
Section 35 of the DPA states that, “the processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either – (a) the data subject has given consent to the processing for that purpose, or (b) the processing is necessary for the performance of a task carried out for that purpose by a competent authority”.162
The exercise of rights under both Article 8 of the Human Rights Act and the DPA can be set against the interests of national security, the maintenance of public order, and the prevention of crime. This seems to create a possible ambiguity. However, once again, we need to reiterate that Prevent operates in the pre-crime space, where no offences have been committed and where the information gathered is, at best, an indication of a potential risk of an offence being committed at some considerable point in the future.
In fact, this is acknowledged in the legislation under which the Prevent Duty operates, namely the Counter Terrorism and Security Act (2015). Section 38 sets out the terms under which Prevent Panels and their ‘partners’ must operate, where 38(4) states that, “nothing in this section requires or authorises the making of — (a) a disclosure that would contravene the Data Protection Act 1998; (b) a disclosure of any sensitive information”.163
Implicitly, the legislation is allowing for the sharing of data as part of a process of travelling through the Prevent stages and being positively ‘tagged’ as a risk. It does not sanction the same for those where it comes to be determined that the tag was false.
However, the DPA contains a working ambiguity that can be exploited by Prevent Panel members. This is where the ‘data subject has given consent’. The fact that the Prevent process is defined as ‘voluntary’ is used to affirm that the individual, in agreeing to participate with the process, has agreed to their data being recorded and shared within the process. However, case evidence suggests that Prevent referrals often happen in a coercive manner, or children have been interviewed without their parents’ consent, or under direct coercion of their parents.
Hannah
Prevent threatens single mom of three to ‘consent’
Hannah is a 35-year-old single mother of three young children, of which two are in primary school and one is a toddler.
In 2019, Hannah was visited at home by a Prevent officer and a social worker. They told Hannah that they were concerned about her children being radicalised and although initially admitting that they did not believe the source of radicalisation was Hannah herself as their mother, they insisted that she sign a letter of consent so that they could question the children at school.
When Hannah refused to sign the consent form, the Prevent officer and social worker told her that if she did not sign it by 1pm that day, then they would escalate the matter via children’s services (by invoking a s47 assessment), and then they would get to speak to her children alone without requiring her consent anyway.
Hannah was not given any idea as to why they wanted to speak to her children, nor was she offered the option of the Prevent officer or social worker speaking to her children at home. She felt pressured and coerced into complying but refused to engage. This led to several calls and unannounced visits that Hannah avoided for approximately six weeks. Hannah says:
“It was a very scary experience and very intrusive. They were saying that they wanted consent, but what is the point of consent if you are not respectful of someone declining to consent and start threatening to escalate?”
“Every parent would feel terrified of a social worker saying we are going to escalate if you don’t comply – your first fear is ‘oh-my-goodness, they have the power to take away my children if I don’t comply’.”
Leena
Prevent officer uses social work to apply pressure on mum
Leena is the mother of a 12-year-old boy who was referred to Prevent by his school. When Leena was told by the Prevent officer that they wanted her son to go onto Channel, Leena asked for more information about it before she could make an informed decision.
However, she was contacted at least four times via messages on her phone and then via social services, who said that Prevent had made it clear to them that she did not want to engage with Channel.
When she pushed back against this pressure, the social worker admitted they could only come in a voluntary capacity, despite the initial hard threat of intervention.
However, following her refusal to engage, the Prevent officer asked for another member of the council team to intervene.
This individual had initially posed as a member of the child services, although they were actually a member of the Prevent safeguarding team and again began putting pressure on her.
After nearly three months and five calls by three different people, and her persistent refusals, the requests finally stopped.
Leena was eventually sent a generic letter with Prevent and Channel information with no reference to the exact mentoring for which her son was being recommended.
Prevent officer uses social work to apply pressure on mum
Leena spoke to her son and wider family before deciding that Channel would not be helpful to her son. She then made it clear to all agencies involved in writing that she would not be participating and to ensure they do not call or email her again about this request.
Leena says: “I can’t believe it took nearly three months to receive a generic letter and I had to ask three different people from three different agencies to stop contacting me.”
“These people contacted me one by one, and I felt under pressure; it was obvious in their emails and calls that they wanted my son to go onto Channel.”
“It was very stressful and at several points I kept thinking, maybe if we just agree, this will all go away. But I think this is what they want: for the pressure to build up and you feel like you are being pushed from all different angles to just give in and say yes.”
“It certainly did not feel voluntary; it was more like bullying my family into something they couldn’t explain properly or justify the need for.”
“They just wanted to intrude into my family life. My son did not want to do this, he didn’t feel like this was a safe and supportive place for him; and so my decision was influenced by what was best for my son. I had to consider how he was feeling.”
“I was so heartbroken to see how upset all this made him.”
Not only do many cases illustrate that consent often occurs under some duress, but that, at best, this implication of ‘consent’ by the data subject could only possibly hold for the duration of the process. It could not imply an agreement to the retention of data once the process has concluded – especially where a decision has been made that an individual does not warrant being referred to Channel even though being referred to Channel still does not mean that the individual is a risk; the underlying basis of the referral criteria and the flawed ERG22+ already places a referral on questionable footing as an ‘objective’ judgement.
Even where individuals have given ‘consent’ to engage in a process, they have not given consent for data to be shared and retained – that it may, and, more usually, will be shared is something of which few are aware. Indeed, individuals experience difficulties finding out what information is being held, in what form, where, and for how long. The data gathered through Prevent is available for storage on a variety of databases. These include those of the police and security services that exist nationally and locally (see Box 18)164.
Box 18 Extent of Data Bases
Application for disclosure about information held, and for its deletion, must be made to each body separately; even when an individual may not know all the bodies with which their data or their child’s data has been shared. In a recent case, the databases in Box 18 were shown to have held the information of a young boy referred to Prevent in what is termed a misinformed referral (that is, where the Prevent officers themselves deemed it unsuitable for Channel intervention and the basis of the referral incorrect).
Amaya
Over a year to remove her primary school son’s data from criminal database
Amaya is the mother of a young primary school child referred to Prevent. When Amaya realised that her child’s data was being retained by social services and the police despite the case being closed, it worried her.
So, she sought to find out the purpose of its retention and to ask for it to be removed. Social services said that they would be unable to remove the data. Even though Amaya’s child had not been known to social services previously, they told her they would have to retain the information with regards to the referral.
Social services assured Amaya that the information on the notes showed that the case had been closed, but Amaya was still uneasy about her child now being known to social services and institutionalised.
But Amaya was even more worried that her young child’s information could be on the police database. So, she started to ask the police for the information held, the purpose of its retention and to request that it be removed.
This process took just over a year (13 months) from the first instance of realising there was information about her son to the final letter from the police agreeing that they would remove the data.
The redacted letter she received is below.
Amaya says: “At no point were the police able to justify the retention of my son’s data. What is worse is that after telling me that they would remove the data, they then informed me that I would need to make the same request to the regional police force as my son’s data is likely to be stored there too. So now I have to start the process all over again.”
“It is a very long and very draining fight to take on. The Subject Access Requests we put in were always delayed. The time to respond to our emails asking for deletion were also delayed and this back and forth between me as an individual and the police as a much larger authority has taken its toll on my health.”
More than 50% of the Prevent referrals each year are children, who have neither committed nor intended to commit criminal offences (and in many cases are below the age of criminal responsibility). These children have their data placed alongside murderers and sex offenders, with no apparent distinction being made between a child’s data and a criminal’s data. This point was stressed by one of the lawyers in the case of a primary school age child brought against the Metropolitan Police, as reported in the Guardian.165 Leading public lawyer in civil liberties and human rights, Dan Carey (a partner at Deighton Pierce Glynn) said:
“The police’s data retention policy – the national retention assessment criteria – fails to recognise the non-criminal nature of Prevent referrals and doesn’t distinguish records relating to very young children, creating real concerns and worries for parents that these records will continue to affect them in later life.
“My client’s parents were concerned that it took a lot of legal action simply to erase Prevent records based on a clearly mistaken referral. There are obvious implications for the many other Prevent referrals made regarding schoolchildren and the effect that such enduring records may have on them in the future.” Prior to Judicial Review, the police agreed to remove the child’s data.
An indefinite risk?
The operation of Prevent as a system of surveillance is further indicated by the fact that individuals are given little if any information on how their data is being treated, and the legislation protecting such rights is blurred by potential assertion of a national security prerogative. Police guidelines on the retention of data – the National Retention Assessment Criteria166 – require regular assessment of records to consider if the information remains relevant to potential future risks of offences taking place. Generally, this review takes place after six years, albeit that the record having been made in the first place establishes a prima facie case that it was, at least initially, considered relevant. Where a record is considered necessary and proportionate to the purpose it serves, it can be retained.
Significantly, the criteria to be considered are similar to those that appear in the Prevent referral assessments: Is there evidence of a capacity to inflict serious harm? Are there any concerns in relation to children or vulnerable adults? Did the behaviour involve a breach of trust? Is there evidence of established links or associations which might increase the risk of harm? Are there concerns in relation to substance misuse? Are there concerns that an individual’s mental state might exacerbate risk? Are there any other issues that impact on the level of risk the individual presents? Could this individual be of interest to ongoing public inquiries?167
Yet for individuals subject to a Prevent Panel referral that has not been taken further to a recommendation to participate in Channel, the answers to similar questions have already been ‘no’. The response is nonetheless to retain the data used in reaching that decision, at least until the first review (and frequently after). This is because the potential offences that might be mitigated by the retention of data are those of terrorism, which come under the most serious category of ‘Group 1’ offences (these allow retention of data until the subject is 100 years old and are reviewed on a 10-yearly basis).
In a High Court case in July 2020 before the honourable Mrs Justice Steyn DBE, the Metropolitan Police unsuccessfully defended the retention of information on a 16-year-old boy going back five years to when he was 11 years old.168 What was significant was the nature of the police defence. The claim by temporary Detective Superintendent Washington was that retaining the data had been necessary under Prevent guidelines. “Radicalisation”, she stated, “is a process, not an event, and it follows that it is incumbent on all public authorities with responsibilities under Prevent to consider radicalisation over time. This will not be possible if police prematurely delete records referrals on the basis that there does not appear to be a concern at the time.”169
Mrs Justice Steyn ruled that, “the continued retention of the Claimant’s personal data is in breach of Article 8 of the ECHR and ss.35 and 39 of the DPA.” Importantly, she also ruled in relation to the Prevent process itself, making the point that it was designed to answer questions about risks of radicalisation and “the case was closed on its merits because it was assessed that there was no cause for concern that the Claimant was being radicalised or was vulnerable to radicalisation. There were sound reasons for reaching that conclusion at the time”.170
The impact on children, in particular, was of great concern to Mrs Justice Steyn: “I also consider that the Defendant has underestimated the impact of the interference with the Claimant’s privacy rights entailed in retaining data about his alleged views and statements when he was 11 years old. I accept Mr Talalay’s submission that continued retention of the Claimant’s personal data is a lesser interference than disclosure of that personal data to third parties. Nevertheless, retention alone means that the data can be accessed by MPS officers, counter-terrorism officers nationally, local authorities and Home Office colleagues, across 10 databases.”
She then mentions the boy’s rightful fear of impact: “In addition, as long as the Claimant’s personal data is retained, he will continue to fear that it may be disclosed to third parties, particularly universities to which he may apply or from which he may receive offers.”
That fear is real. In July 2020, the Guardian reported (on the basis of documents uncovered by Dr Hilary Aked, (Researcher at Medact) that universities and further education colleges in Greater Manchester had an agreement to share information about students referred to Prevent.171 It was stated that the agreement was to be able to provide support services and not to cause detriment to the students. However, cases elsewhere indicate that shared information has led to offers of places being withdrawn.
Tarik
Barred from Sixth Form due to Prevent referral, despite achievements
Tarik is a 16-year-old student who was due to attend a Sixth Form College known for its higher than average proportion of students who go on to prestigious universities.
When Tarik went into the Sixth Form College at the start of the academic year for what he believed would be an enrolment, he was instead surprised to find himself being questioned about incidents that had led to a Prevent referral at his secondary school over two years previously.
The Prevent referral had occurred during his time at secondary school as a result of a combination of incidents including Tarik correcting his teacher about the definition of jihad and some inappropriate messages in a group chat that led to a fight, for which Tarik had already been sanctioned via a school suspension.
Tarik’s parents later found out that Tarik’s place had been withdrawn from the Sixth Form College on the basis of “new information” with which the Sixth Form College had been provided by his secondary school, once the offer had been confirmed.
When asked, the secondary school showed evidence that it had been the Prevent officer who had dealt with Tarik’s case, who had advised the secondary school to ensure that this information was passed on to his Sixth Form, once his place had already been confirmed.
Tarik’s parent said: ‘The safeguarding file is supposed to be used to support the child, not to impact decisions of admissions. So, the Sixth Form College has breached something here.”
“My child is still a child being only 16 years of age, yet he was questioned about his views on jihad without his parents nor the safeguarding officer present. He was misled to believe this was an enrolment meeting when in fact it was an interrogation of his religious view.”
“The impact of this has been huge, as it left us scrambling for a new place to send Tarik. It was very strange; how do you then get a clean slate for your child who has done nothing wrong and wants to progress via college, when all the new colleges you apply to will obviously ask why on earth this child has no college, despite it already being September?”
It is difficult and time-consuming to bring breaches in the retention and sharing of personal data to court and there are many other examples that have not been pursued to this stage.
The current political climate where human rights legislation is being questioned by government, means that it is likely that provisions that currently protect individuals (however difficult it is to secure that protection) in relation to data rights, will be further under challenge.
Our conclusion is: Prevent is abuse of individual rights to privacy and the protection of their data and information held about them, especially in the case of children. Information gathered under Prevent interventions does not involve criminal offences, yet data can be gathered with leading questions, then held and shared as if it involved the most serious offences.
PART THREE
Preventing Rights
3.2. Children’s Rights
Throughout this report we have drawn attention to the lack of proper oversight of the Prevent strategy. It operates in a pre-criminal space where no offences have been committed. Yet it is subject to few formal safeguards such as apply to the criminal justice system.
Since the Prevent strategy was extended in 2015, it has become less transparent, with the government failing to publish data that had previously been provided as a matter of routine. For example, it has refused to provide information about Prevent Priority Areas and their demographic characteristics and since 2016 it has not published adequate data on the race, ethnicity, or religious identity of those subject to referrals. These characteristics must be inferred from the nature of the classification of types of ‘ideology’ – whether ‘Islamist’, ‘far right’, or mixed.
This is very worrying, given that the Prevent strategy has a particular focus on young people and children, especially through its incorporation within schooling and health services (especially mental health services). This is presented as a concern with safeguarding, although, as we have seen, it is not a form of safeguarding that has the welfare of the child as its core concern, as is mandated by the professional ethics of most practitioner bodies.172
Children as the focus of Prevent
The duty of Prevent falls on the public sector workers in the first instance who are encouraged to refer a child to Prevent. However, when breaches occur and complaints are made, the public sector workers are not responsible or accountable for ensuring that the rights of the child are upheld.
It is expected that the duty guidance documents that accompany the broader approach of the Prevent duty fill the gaps to ensure that Prevent referrals are made in keeping with the other Acts governing the public sector, such as the Equalities and Human Rights Acts. However, there is no evidence to suggest that there is any understanding, let alone any actual implementation, of this requirement. Examples from the police do not lend any reassurance either; for example, police guidance on Prevent was recalled in 2020 due to the representation of aspects of normative Islamic belief as signs of extremism, a view that, as we saw, was also put forward by Amanda Spielman, HM Chief Inspector of Education, Children’s Services and Skills, who is responsible for schools.
Perhaps the ultimate safeguard in law is the protection afforded by human rights. The UK is a signatory to the European Convention on Human Rights (ECHR). It has also declared its adherence to the UN Universal Declaration of Human Rights, including the Convention of the Rights of the Child. These are incorporated in UK legislation in the Human Rights Act (1998) and the Equalities Act (2010).
Children around the world have recognised rights specific to them as well as enjoying protection under human rights agreements, because they are identified as particularly vulnerable, including to arbitrary state action. Children and young people under the age of 20 (the cut-off age in Home Office data) make up approximately half of all Prevent referrals, although children under 18 account for only 21% of the UK’s population.173 Even where a formal referral is not made, children can be directly impacted by the programme, because Prevent duty holders are in greater contact with children. In all cases where Prevent impacts children, the UK has the obligation to uphold children’s rights under the law. These rights include general human rights (enjoyed by both children and adults), as well as the specific rights children enjoy on account of their particular status. The rights are protected in national law (Human Rights Act 1998, Equality Act 2010), as well as in international treaties which the UK has ratified (the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the European Convention on Human Rights). It is doubtful whether the UK is meeting its commitments to children’s rights through Prevent.
Regarding general human rights standards, concerns have been raised around children’s right to non-discrimination174, including on grounds such as race, religion and political or other opinion. For example, the UN Committee on the Rights of the Child, the independent body of experts that monitors states’ implementation of the Convention on the Rights of the Child, has chosen to focus on the “potential discriminatory, racial or stigmatising impact” of the UK’s counter-terrorism and counter-extremism policy.175
The UK government does not publish data on race, ethnicity and religious identity of children who are subject to Prevent referrals, but data from 2014 to 2016 showed that 39 percent of children referred under Prevent were recorded as Muslim and 38 percent were ethnically Asian.176 This is vastly disproportionate to these groups’ representation in the UK population; five and six percent respectively.177
Whose best interests?
There are also concerns regarding respect for children’s rights to freedom of expression,178 thought, conscience
and religion.179 In its review of the UK, the CRC Committee will also be focusing on the steps the UK has taken to “ensure that counter-terrorism measures, including the Prevent Strategy, do not undermine [these children’s rights]”.180
As regards child-specific provisions, there are questions regarding Prevent’s compliance with children’s best interests. The best interests of the child must be “a primary consideration (…) in all actions concerning children”.181 This includes the application of Prevent to individual children, as well as decisions made about children as part of the broader issue of the Prevent policy.182
Box 19: Children’s best interests183
1. A substantive right – “The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general.”
2. An interpretive legal principle – “If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen.”
3. A rule of procedure – “Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.”
Many case studies show that an individual child’s best interests are not being actively considered when a decision is made about them under Prevent. More broadly, there seems to be a tendency to treat national security as the top concern in Prevent cases involving children, to the detriment of their best interests.184 For example, children’s rights standards recognise that their best interests are served by keeping them out of contact with the criminal justice system wherever possible.185 By bringing children who are not suspected of an offence into contact with the police and security services, the Prevent policy prioritises intelligence-gathering over children’s welfare.
Under Prevent, it is also questionable whether the UK fully upholds children’s right to be heard in all matters affecting them and to have their views be given due weight in accordance with their age and maturity.186
Again, case studies show that a child’s views about whether and to what extent to engage with the Prevent programme are not sought as a matter of course. Where children contest the relevance of Prevent to their case, they are often ignored.
Yunus
A teenager does not consent to Prevent and is put on a Child Protection Plan
Yunus is a straight A secondary school boy who is well-liked by his peers and teachers.
Yunus was on a Child in Need plan which included a recommendation for Yunus to be seen by an intervention provider who would assess Yunus’s views and see if he was vulnerable to radicalisation from one of his parents.
Yunus did not want to take part, and the parent with whom Yunus lives was also uncomfortable taking part in anything Prevent-related, however had complied with all of the other social care recommendations without hesitation.
The case was however escalated to a Child Protection Plan, and Yunus and his family believe that the reason for this is because they failed to engage with Prevent.
Once the matter had escalated to a Child Protection Plan, Yunus was asked about his views as to whether he would like to engage with an intervention provider under Prevent.
He made it very clear that he did not want to. Yunus does not have any issues that would deem him incompetent, and yet his views were not taken into consideration.The assessment was still deemed necessary and incorporated as part of his plan.
The Prevent programme also threatens the legal “responsibilities, rights and duties of parents (…) to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of their rights”.187
Numerous case studies show a lack of respect for the role of the family in raising, teaching and guiding children to exercise their rights. For example, the application of Prevent can lead to the undermining of Muslim parents’ role in guiding children in the exercise of their children’s freedom of religion. Prevent fails to adequately uphold children’s rights which the UK has committed to respect.
Evidence has been provided which suggests that Prevent infringes children’s rights to non-discrimination, to freedom of expression, thought, conscience and religion, to have their best interests taken as a primary consideration, and to be heard. The right of parents to provide their children with direction and guidance, in accordance with the children’s evolving capacities, has also been found to have been infringed.
Our conclusion is: Prevent is overwhelmingly directed at children and young people where it represents an abuse of their rights and the obligation to put their needs first. There is no national security justification for its policies and practices.
PART THREE
Preventing Rights
3.3 Considering key principles of human rights
Prevent is primarily directed at children and young people. It also draws a smaller proportion of adults directly into its remit, especially through their involvement in higher education and health. However, the rights of children and young people are also intimately bound up with the rights of their parents and carers, and rights to family and private life.
As set out by the EHRC, Article 8 of the Human Rights Act (1998) provides rights to family and private life where parents have the right to have their children educated according to their religious and philosophical convictions, and a right not to be discriminated against when exercising these (and their other) rights.188
Article 9 states further that, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.”189
Raheel
Father threatened with social care intervention because of his friends
Raheel is a Muslim father who is raising his children according to the Islamic faith. Raheel has never been convicted of any crime but Prevent officers have tried to engage him several times for a ‘chat’. Raheel has always refused to engage.
This has led to at least two attempted social care interventions initiated by the police. The social services have stated that the police have informed them that Raheel is friends with people who have ‘extremist views’. Consequently, the child assessment recommended that Raheel stop being friends with these people as they may be a bad influence on his children.
Raheel says: “I cannot believe that I work hard to raise my children in the best way possible, and yet social services waste their time telling me who I should be friends with because the police have put pressure on them.’
“How many parents have friends who have gone to prison? My friends haven’t even been charged or convicted, yet not only am I being harassed – my children are being implicated too.”
“Since when are we told who we can and can’t be friends with, and since when did that decision become a deciding factor in social care interventions?”
Ignoring concerns
The long list of individuals, organisations and bodies who have expressed concerns about the impact of Prevent, also includes various UN bodies. For example, concerns were expressed by the Committee on the Elimination of Racial Discrimination in 2016 immediately following the publication of the Counter Terrorism and Security Act in 2015 (see Box 20).
The Prevent strategy has featured as a concern within at least two other recent UN Special Reports from independent experts mandated by the UN to investigate human rights issues (see Box 21). None of these reported concerns about Prevent were investigated by the UK Government (or its designated independent body, the Equalities and Human Rights Commission); instead, Prevent continues to be promoted by the government as a model of preventing terrorism across the globe.193
Box 20: UN Committee on the Elimination of Racial Discrimination
“The Committee expresses concern that the new counter-terrorism measures adopted by the State party, including the Counter-Extremism Strategy and the creation under the Counter-Terrorism and Security Act 2015 of a statutory duty for public authorities in a broad range of fields to have due regard to prevent individuals from being drawn into terrorism (the ‘Prevent duty’) have created an atmosphere of suspicion towards members of Muslim communities. In particular, the Committee is concerned at:
(a) the ambiguity of terms such as terrorism and extremism, creating a wide scope of interpretation and leading to increased profiling of individuals based on ethnicity and/or religion; (b) the negative impact on the rights to freedom of expression, education and freedom of religion, given the uncertainty as to what can be legitimately discussed and worn in academic settings; (c) the collection, retention and sharing of information on individuals, particularly children, without their consent or the consent of their parents/guardians (arts. 2 and 5).”190
Box 21: UN Rapporteurs’ statements about Prevent
The UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association wrote in June 2017:
“One of the biggest concerns brought to the Special Rapporteur’s attention during his mission was the Government’s focus on countering non-violent extremism without a narrow and explicit definition, at the expense of basic human rights and fundamental freedoms.” (Paragraph 6)
“The Special Rapporteur concurs with civil society that the Prevent strategy is inherently flawed… unclear guidelines give excessive discretion to decision makers, which subsequently makes the overall application of Prevent unpredictable and potentially arbitrary, hence rendering it inconsistent with the principle of the rule of law.” (Paragraph 10)
“The Prevent strategy appears to draw a nearly automatic link between extremism and terrorism. However, British law makes a clear distinction between the two. The Terrorism Act 2000 defines terrorism as the ‘use or threat of action … designed to influence the government … or to intimidate the public or a section of the public … for the purpose of advancing a political, religious or ideological cause’.
“‘Extremism’, meanwhile, is vaguely defined in Prevent as ‘opposition to British values’. These flaws, combined with the encouragement of people to report suspicious activity, have created unease and uncertainty regarding what can legitimately be discussed in public.” (Paragraphs 12 and 13)
Overall, it appears that Prevent is having the opposite of its intended effect: by dividing, stigmatizing and alienating segments of the population, Prevent could end up promoting extremism, rather than countering it” (Paragraph 12)191
The Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism wrote in February 2020:
“The Special Rapporteur is particularly concerned by the so-called ‘whole of society’ approach, in which responsibilities to detect ‘signs of radicalisation’ fall upon various actors in society, including teachers, social workers, medical staff and other health-care professionals, prison staff, neighbours and family members, community leaders and members of faith-based groups. She views the securitisation of care professions, including medical professions and social work, as impinging on the unique ethical obligations of professionals in those fields to those they serve.” (Paragraph 32)
“It is increasingly clear that human rights defenders are targeted in the strategies aimed at preventing and countering violent extremism pursued by Governments that recognise the value of the new nomenclature to be directed against those who disagree with them. Less worrisome, but equally true, is that Governments see civil society actors as a vehicle for advancing policy aimed at countering violent extremism and have co-opted the efforts of civil society into a top-down agenda for preventing and countering violent extremism for a political or security objective.” (Paragraphs 43 and 44)192
The most recent of the Special Rapporteur reports – that on contemporary forms of racism, racial discrimination, xenophobia and related intolerance – gave special attention to the racial – that is discriminatory – impact of laws and policies on counter-terrorism and counter-extremism. The Rapporteur’s conclusions are stark: “No government review of, or findings regarding, the impact of the Prevent Strategy on human rights and racial equality has been made public. This state of affairs is untenable given the widespread evidence that enforcement of the ‘Prevent duty’ disproportionately targets groups on the basis of religious and ethnic belonging, in violation of their human rights.”194
The United Nations’ treaty bodies have repeatedly emphasised that signing and ratifying treaties or even legislating them is not enough to ensure an improvement in the general application of universal human rights principles in individual countries and more broadly. Administrative, judicial, and other measures must be put in place to ensure those human rights are real; rights must be implemented. In so far as Prevent policy advocates have stressed ‘human rights’, they have done so as an instrument for challenging ‘extremist’ ideologies as being opposed to human rights.195 They have conspicuously failed to address the implementation of Prevent as itself potentially in breach of human rights.
Failing to review Prevent
International human rights organisations, as well as domestic organisations and commentators, have also consistently expressed their concerns about the failure to provide a proper, independent review of Prevent, and to do so in the context of human rights. Recently, there was approval that the government would address systematic racial and ethnic inequalities through the Race Disparities Unit.196 That expectation was dashed by the way in which the Unit – in the recent Sewell Report – disavowed the very idea of systematic inequalities.197 Similarly, there was approval that an Independent Review of Prevent would take place.198 That expectation has also been dashed.
With the appointment of William Shawcross in January 2021 to lead the review came narrow terms of reference to focus only on the effectiveness of the strategy for supporting people vulnerable to being drawn into terrorism. However, the effectiveness of Prevent cannot be so easily separated from the question of human rights. Once again highlighting the contradictions within Prevent, the latter are integral to the ‘British values’ that schools, for example, have a duty to promote.
For example, the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance concluded that the Prevent strategy had, “transformed public institutions such as hospitals, schools, universities and even the police – institutions through which the work of national integration should otherwise be achieved – into sites of exclusion, discrimination and national anxiety. Formal integration policies risk being no match for the ‘dis-integration’ and political and social exclusion currently being achieved, at the behest of the government, through the robust and pervasive Prevent Strategy and its accompanying ‘Prevent duty’”.199
We should not have had to wait for an Independent Review for this conclusion to be confirmed, even as we expect that the Shawcross Review will fail to properly address issues of human rights. The Equalities and Human Rights Commission (EHRC) was established to promote and uphold the rights and equalities expressed in the Human Rights Act and the Equalities Act. It is obliged to report to the UN, which accredits national human rights institutions under the Paris Principles of 1992, and where the EHRC enjoys an A-rating.
But it has failed to take any significant action regarding concerns about Prevent.200 In 2016 two parliamentary committees, the Committee on Women and Equalities and the Joint Parliamentary Committee on Human Rights, called for a review of Prevent over concerns it was discriminatory against Muslims.201
The EHRC did not respond. Instead it tracked the government’s own idea that there was a potential problem in schools, declaring that one of its priorities over the three years from 2019 would be to ensure “the education system promotes good relations with others and respect for equality and human rights”202, as if this might be in doubt in some publicly funded schools, when its own earlier reports found no evidence that it was.203 There is no expressed concern that the Prevent policy in schools might itself be in breach of equality and human rights.
Because of its obligation to report to the UN, it has raised its concerns about Prevent externally, even where it has taken no action internally. Indeed, its last report in March 2020 highlighted concerns “that Prevent is discriminatory and risks undermining freedom of speech, the right to private life and the right to manifest a religion”.204
It went on to state that, “in January 2019, the UK government announced an independent review of the Prevent strategy. However, the scope and independence of the review have been criticised. In particular, civil society organisations are concerned that the review does not consider the past delivery and impact of Prevent”.205
The deadline for submission to that review was December 9th 2019 (just before it was temporarily suspended after Lord Carlile stepped down). The EHRC did not make a submission.206 We might expect that the government would reject UN Special Rapporteur reports, but it is a serious matter when they are ignored by a body like the EHRC. Indeed, its response to the report made no reference to the criticisms of Prevent.207
In 2013, the then Independent Reviewer of Terrorism Legislation, David Anderson QC, expressed his scepticism about the need for a special category of legislation associated with terrorism. Such legislation had not been necessary to combat IRA terrorism – just as Prevent has not been applied in Northern Ireland – and ordinary legislation against violence would be sufficient (together with political motivation as, perhaps, an aggravating factor).208
In 2013, the then Independent Reviewer of Terrorism Legislation, David Anderson QC, expressed his scepticism about the need for a special category of legislation associated with terrorism. Such legislation had not been necessary to combat IRA terrorism – just as Prevent has not been applied in Northern Ireland – and ordinary legislation against violence would be sufficient (together with political motivation as, perhaps, an aggravating factor).208
More serious was the risk that the label could be used by authoritarian regimes in actions against domestic opposition. It constituted “an international obligation, no less, to prevent terrorist acts, coupled with a liberty to define terrorist acts in whatever way they wanted. And to attack not only those who take up arms, but those who promote ideas”.209
David Anderson QC, former Independent Reviewer of Terrorism Legislation, cited Conor Gearty’s discussion of state action in Russia and China.210
How much more serious is the consequence of extending concerns with terrorism to non-violent extremism, as occurs with Prevent? At times, this has been actively encouraged by the British government as they have offered training in counter-extremism to other governments that have then gone on to commit atrocities against their Muslim populations. This can be seen in both India211 and in China.212 The problem is not simply that criticism of authoritarian state actions is undermined, the very ‘technologies’ of counter-extremism are transferred as part of an ‘export-oriented’ Prevent industry (see Box 22).
Box 22: Prevent in China
News of China’s ‘re-education’ camps for its Muslim Uyghur people were officially documented by the UN, Amnesty International and Human Rights Watch in 2018.213 The incarceration and ‘re-education’ of Muslim Uyghur people began in May 2014, driven by China’s ‘Strike Hard against Violent Terrorism Campaign’.
It recently emerged that the Royal United Services Institute, together with the Foreign Commonwealth and Development Office in March 2016 offered its advice on ‘Countering the root causes of violent extremism undermining growth and stability in China’s Xinjiang Region by sharing UK best practice’.214
In July 2017, director of international security studies at the Royal United Services Institute in London, Raffaello Pantucci, penned an article for the South China Morning Post.215 This set out arguments for greater cooperation with China on the international terrorist threat.
It identified, “China’s ongoing problems in Xinjiang and an angry Uygur minority who are finding more active support in the international jihadist milieu… But what can China do about this? In the first instance, Beijing needs to find some way to resolve its problems in Xinjiang – letting the
situation fester there is not going to improve China’s standing in the eyes of the international jihadist community. Looking abroad, Beijing still officially stands behind its sacred principle of non-interference, but it is clearly starting to build a legislative framework to provide a mandate for its forces to go out into the world and protect its national interests…”
“China continues to be a hesitant player in international cooperation. This is in part the product of a lack of trust and different views on the root causes of terrorist problems, but there are a number of places around the world where China and the West share a common threat….”
“International terrorism is a common problem facing the world. While there are always going to be disagreements and difficulties in countering these threats, there are some things which can be done together…”
“China can no longer hide in the shade of terrorist groups’ desire to strike primarily at the West. As it expands its international footprint, it is going to be increasingly exposed and will need to build relations with friends around the world to manage this growing menace effectively…”
The efficacy of international standards of human rights are diminished in their critical purchase on authoritarian regimes elsewhere, but they are undermined domestically, too. We have seen that the UK government has resisted the application of such standards in the operation of its Prevent strategy. This has been associated with more general authoritarian tendencies.
The Shawcross Review is expected to recommend extending the scope of Prevent and putting it more directly under the direction of the security services. At the same time, the government is proposing changes to weaken judicial review, a crucial process that gives the courts oversight of parliament and ensures that public bodies act properly within the law.216
It has inserted amendments to the Crime, Sentencing and Courts Bill after the committee stage which criminalise ‘disruptive’ demonstrations and include stop and search powers and Serious Disruption Prevention Orders.217 It has also proposed mandatory voter-ID, which is widely believed will suppress the legitimate votes of poor and ethnic minority citizens.218 It is also planning an overhaul of the Human Rights Act itself, to the alarm of the Parliamentary Joint Committee on Human Rights.219
Our conclusion is: Prevent is an abuse of fundamental human rights and protected equalities, especially involving discrimination on the grounds of race and ethnicity, and religion. The government proposes that terrorist activities threaten human rights and yet it breaches them in its own Prevent policies and evades scrutiny. Furthermore, Prevent ‘expertise’ is being shared with oppressive regimes, including those who terrorise their Muslim populations, and it is part of a broader drift towards authoritarianism and efforts to reduce long-established human rights principles.