University regulation and autonomy: ‘Prevent’ as a case study

We are, I think, still waiting to see the guidelines on external speakers which should be presented to both houses of parliament before the Prevent Guidance comes into effect on 1 July.  Meanwhile, I was reflecting on the discussions on this in parliament.

The House of Lords can normally be relied upon to give a particularly close examination to legislation that applies to higher education. This was the case with the Counter-Terrorism and Security Act which, although it was been fast-tracked, had a lengthy examination at both committee and report stages in the Lords. In contrast, the Commons did not use all their alloted time for examination.

I want to highlight one exchange as a case study in the way that Britain’s famously autonomous universities are regulated. The Bill specifies bodies that will have a duty to give ‘due regard to the need to prevent people from being drawn into terrorism’ and gives power to the Home Secretary to ‘issue guidance to specified authorities about the exercise of their duty’ and then, if ‘satisfied that a specified authority has failed to discharge the duty’, ‘directions’ may be given. These can be enforced by a court order. A lot of attention has been given to how the Bill affects Freedom of Speech and Academic Freedom, but the Lords also looked at the way that the guidance had statutory force.

We saw the draft guidance for consultation in 2014. The guidance said ‘To comply with the duty we would expect universities and higher education institutions to be delivering in the following areas’. What follows are a series of exhortations, framed in slightly different ways. Sometimes it is clear that ‘Compliance with the duty will also require the institution to demonstrate…’, sometimes that ‘In order to comply with the duty all universities should…’ but the most common formulation is ‘we would expect…’ (emphasis added).

Lord Bates enjoying the 'fun' their Lordships were having at the expense of the Prevent guidance

Lord Bates enjoying the ‘fun’ their Lordships were having at the expense of the Prevent guidance

The Lords had, what the Home Office minister Lord Bates described as, ‘fun’ with the guidance. A particular example was the way that universities had to assure themselves about external speakers. The draft guidance said:

‘Universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism. We would expect the policies and procedures on speakers and events to include at least the following:

  • Sufficient notice of booking (generally at least 14 days) to allow for checks to be made and cancellation to take place if necessary;

  • Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations, footage to be broadcast etc; …’ (Prevent duty guidance: a consultation)

At Committee stage, Lord Bates had accepted that the guidance wouldn’t actually require the text of an external speakers’ talk to be vetted by the university. However, in responding to the criticism of the guidance in the Report stage, he was exasperated enough to note:

The requirements such as giving advance notice on speeches are very limited compared with the much more extensive Universities UK guidance for external speakers, which requests,

a script or précis from the speaker outlining what they intend to say and requiring them to sign an undertaking acknowledging that their speech will be terminated if they deviate from it”.

This is from Universities UK’s current guidelines on having speakers on campus …

I do not recall a hue and cry from the collective colleges of our great universities to say that this was outrageous and should not be happening…” (HL Hansard 4 Feb 2015 col 706)

This brought a host of comments – all from peers with extensive higher education experience – to explain the difference between UUK guidance, which might be considered, but not complied with, and statutory guidance of the kind he was proposing. This might be particularly the case if it thought the guidance was ‘hopeless and misguided’ If, Lord Bates argued, they could ‘brush off’ UUK guidance, then there was good reason to make the Prevent guidance statutory.

Here is the tension at the heart of higher education regulation. There is advice and guidance, codes of practice, good practice guides etc which universities can draw on in framing their policies. Then there are regulations which must be adhered to. Understanding this landscape is crucial, and the decisions about navigating external rules can have major impacts. Areas such as issuing visas, calculating non-completion rates, implementing benchmark statements, managing complaints or writing terms and conditions on fee increases have all gained increased specificity over time.

There is an interesting question posed in the Prevent guidance consultation: ‘Which inspection bodies are best placed to monitor compliance with this duty?’ Higher Education in the UK has done very well so far to avoid having an ‘inspection body’, and it was noticeable that the version of the guidance produced in March 2015 removed any reference to who the government thought might be that ‘inspection body’ and deferred the section about external speakers until after the election.  However, it does need to come back otherwise the section on higher education will not come into force on 1 July – and surely that would be a major embarrassment? 

UPDATE

The Guardian carried a story on 30 June that the Home Office had indeed conceded that the Prevent guidelines for universities would not come into force on 1 July as they had not brought back the external speaker rules.  This does seem extraordinary: presumably there have been ongoing discussions since March when they conceded that the parts of the guidelines were not going to work.  But where have they got to? The Parliamentary recess is coming, if this is important to preventing terrorism, then how can this be acceptable?  The Prevent Guidelines were considered under a guillotine because they were deemed urgent.

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