January 8 2015

Imagine this. You’re teaching a course on current affairs and decide to have your class debate the merits and demerits of fracking. The debate is passionate and gets out of hand, with students on both sides getting personal. You calm them down and the session ends. But you’ve noticed that one of your students, who you know to be a passionate environmentalist, is sullen and withdrawn, not engaging with others in the class, and obviously anxious. You are under a standing instruction from your Dean to report all such symptoms to the Faculty Administrator. Next week, the student is absent. You find out that, based on your report, she is now under the supervision of your university’s local authority, with a support plan to help correct her radical tendencies.

Now consider this. The Counter-Terrorism and Security Bill, under consideration by Britain’s parliament, proposes that all university governing bodies have a statutory duty to implement measures that prevent radicalization that could lead to acts of terrorism. In addition to preventing radical advocates from speaking on campuses, the proposed Act of Parliament will require every local authority to set up a panel to which the police can refer “identified individuals” who are considered to be vulnerable to radicalization. All universities are identified as “partners” with their local authorities in this process of referral.

The government’s focus is, of course, on the present and real threat posed by the desperate conflicts in Syria, Iraq, Pakistan and Afghanistan. No one can disagree with this. But, as W. J. T. Mitchell anticipated four years ago, as the beheadings were starting, one of the objectives of extreme and unpredictable violence is to create a syndrome of responses that, in themselves, promote ever more violent reactions. Will this new Act achieve its immediate aim of preventing Islamic radicalization? Or will these new statutory duties of referral push those who are singled out down a path they may otherwise not have followed?

Further, emergency measures that are perpetuated through legislation always run the risk of unintended consequences. Appropriately, the Counter-Terrorism and Security Bill is directed not just at Muslims, but at anyone with radical views, including views that are non-violent but that might open up a road to violence. Could these new statutory obligations on universities be used against opponents of fracking, or animal rights activists, or anti-nuclear movements, or any radical opposition to the status quo? And where would that leave the principles of academic freedom and freedom of speech in universities, and elsewhere?

Parliamentary Bills are dry and difficult documents to read. Here, though, a clear and often eloquent introduction to the key issues is the verbatim evidence given to Parliament’s Human Rights Committee by Minister for Security and Immigration James Brokenshire. The first part of this interrogation is concerned with the rights of police and immigration officials to seize travel documents – and detain – people suspected of travelling in order to take part in terrorist activities. The Committee was particularly concerned with “gisting” – the process by which an official establishes the essence of the case for detention. Since the Bill proposes to deny or limit the rights of people so detained, the process of “gisting” is pretty significant. After this, the Committee turned its attention to universities and their proposed statutory obligations. The Committee’s transcript is worth reading in full. Here, I’ve “gisted” the essence of the debate, retaining the original words.

Two parts of this committee session are particularly interesting. The first is Helena Kennedy’s eloquent defence of the role of universities and her identification of the issue and her question to the Minister:

“The nature of the university is to develop the mind. It is about the whole business of freedom of speech. Freedom of exchange of ideas is at the heart of the university. By challenging orthodoxies people grow in ideas. Inevitably, some of those ideas will be bad ones, but the best way to deal with them is in debate and by challenging them in the process of learning. No university has created a fundamentalist who has gone to Syria to take part in what is going on there. Yes, people may have been influenced, probably more by other students. That can happen in a café in Birmingham as much as in any university. You are introducing a chilling effect on the whole thing that universities are about, which you and I benefited from, as did most people who went to university—and 40% of our young now go to university. You are doing this when we know that universities up and down the land are already considering these issues and thinking about how they might deal with them and how they might create the debate, without having a statutory duty to do so. That is what concerns people: the statutory duty with a power to give directions from the state. The state will be able to tell universities what they ought to do, and they will be punished in some way if they do not fulfil the requirement set by the state and Government. I want you to explain to us why it needs to be a statutory duty”.

The second is James Brokenshire’s confirmation, under persistent and insistent questioning, that academic and administrative staff who refuse to follow the new statutory duty may be imprisoned for contempt of court:

“Baroness Kennedy of The Shaws: And if the institution says no?

James Brokenshire: Then the Secretary of State would have to issue a direction. If the institution then failed to comply with that direction, the Secretary of State would have to go to court in those circumstances to effectively seek a mechanism that would make the institution comply with that order.

Baroness Kennedy of The Shaws: And what is the sanction?

James Brokenshire: Ultimately, it will be a contempt of court sanction.”

As both the Minister made clear in his evidence to the Human Rights Committee, and as the Government’s current consultation document on the proposed Act confirms, most (and probably all) universities have in place carefully considered policies for dealing with situations where a speaker advocates, or may advocate, terrorism or other illegal actions. Further, universities work extensively with the police in the context of the existing Home Office policy for countering radicalization, known as “Prevent”. This requires briefing sessions for students considered at risk of radicalization.

There is also a strong counter-argument, that must be taken seriously, which is that Prevent in itself angers and radicalizes students. This is because of the implication that, simply by virtue of holding Muslim beliefs, a person is more likely to become a terrorist. The same assumption is not made about, for example, Catholics. Given that the 2011 census recorded 2.8 million Muslims living in Britain and that the Home Office is currently concerned about approximately 500 individuals (a small fraction of one percent), there is clearly a question of effectiveness and proportionality for the Prevent strategy as it is, let alone for the draconian expansion of powers contemplated for the new Act.

In addition to questions of freedom of speech and the positive value of open debate – the case made by Helena Kennedy – there are also the processes and consequences of referral that will become a statutory responsibility for all who teach. As the Minister’s testimony to the Human Rights Committee and the Government’s current consultation document make clear, universities will be required to train all staff who have contact with students to recognize what James Brokenshire called being “withdrawn and reserved, and perhaps showing other personality traits”. Where these traits are identified, the university must refer the student to a panel set up by the police and the local authority for the area in which the university is located. This panel will oversee and administer a safeguarding programme, which may include referral to the health services. There is no right for universities to be represented on the panel. The Government proposes to make HEFCE (and presumably the university funding councils for Wales, Scotland and Northern Ireland as well) responsible for overseeing and reporting universities’ compliance with their statutory duties under the Act.

This aspect of the Bill has already alarmed Sir Peter Fahy, Chief Constable for Greater Manchester and the national lead for Prevent. Sir Peter has said: “if these issues [defining extremism] are left to securocrats then there is a danger of a drift to a police state. I am a securocrat, it’s people like me, in the security services, people with a narrow responsibility for counter-terrorism. It is better for that to be defined by wider society and not securocrats. There is a danger of us being turned into a thought police. This securocrat says we do not want to be in the space of policing thought or police defining what is extremism” (Guardian 5 December 2014).

These concerns, then, are that these new measures will not address – and may make worse – the immediate and pressing problem of recruitment to terrorist activities in Syria, Afghanistan and other current flashpoints. There are also wider implications that must be of concern to many who understand what a university is, and should be. Both the Bill and the current Government consultation make it clear that these measures will apply to any form of violent extremism and, in the words of the consultation document, to “non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”. This means that the statutory responsibilities to be introduced in the Act could be used by police and local authorities in circumstances recently faced by Canterbury Christ Church University, which was asked for a list of those attending a debate and discussion on fracking. The Kent Police justified this request in terms of the need to assess “the threat and risk for significant public events in the county to allow it to maintain public safety”. If the proposed Counter-Terrorism and Security Act had been in force, the police could have used its statutory measures to enforce their request, and could have charged staff at the university for contempt of court had they refused.

The proposed measures are still under consideration in Parliament and are open for public comment. There are serious and long-term principles that are worth fighting for, of the kind recently re-affirmed by Thomas Docherty, who has more reason than many to understand what the loss of the freedoms central to a university can mean:

“The concept of academic freedom is a product of the modern era. Its exercise is usually considered in terms of the questioning of received wisdom within a discipline; and most nonacademics might wonder why we get so concerned about it, thinking that we arrogantly consider ourselves deserving of special attention or privilege. However, the exercise of academic freedom is instrumental in determining political authority in societies. Through reasoned dialogue in which views are freely and honestly expressed, societies can establish informed democratic legitimacy. The scope of academic freedom reaches well beyond seminar rooms and laboratories. In that sense, it extends beyond discipline; and its value is diminished if it is circumscribed as merely a matter of academic procedures or protocols. It should be extended as widely as possible; yet, today, it is “managed” – managed, in fact, almost to death. The power of unconstrained knowledgeable dialogue is marginalised; and, potentially, democracy itself – based on authority given by free and open debate – is thereby weakened”.

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1. J. T. Mitchell, Cloning Terror: The War of Images, 9/11 to the Present 

Chicago, University of Chicago Press, 2011

Times Higher Education: “Academics label proposed Counter Terrorism and Security Bill ‘censorship’”. 4 December 2014

Guardian: “Chief constable warns against ‘drift towards police state’”. 5 December 2014

Guardian: “Police asked university for list of attendees at fracking debate”. 15 December 2014

Counter-terrorism and Security Bill, 2014-2015: http://services.parliament.uk/bills/2014-15/counterterrorismandsecurity.html

Joint Committee on Human Rights. Uncorrected transcript of oral evidence (to be published as HC859). Legislative scrutiny, Counter-terrorism and Security Bill, 3 December 2014. http://www.parliament.uk/documents/joint-committees/human-rights/Counter-Terrorism-Bill-ev-031214.pdf

UK Government: Open Consultation: Prevent Duty. https://www.gov.uk/government/consultations/prevent-duty

Times Higher Education: “Thomas Docherty on Academic Freedom”. 4 December 2014