Rights Watch (UK) launches its challenge to Government's independent review of Prevent

Leigh Day, on behalf of Rights Watch (UK), has sent three successive pre-action protocol letters to the government raising RW(UK)’s concerns regarding the independent review of Prevent.

As no satisfactory response has been received to their letters before action, Rights Watch (UK) has now issued judicial review proceedings in the High Court to challenge the Secretary of State for the Home Department’s appointment of Lord Carlile and the issuing of overly confined Terms of Reference. 

On 12 August 2019 the Government announced its decision to appoint Lord Carlile of Berriew as the Independent Reviewer of Prevent. Rights Watch (UK) raised its concerns with his appointment, arguing that Lord Carlile cannot be truly independent, having overseen the Government's first review of Prevent in 2011, and having even sat on the Prevent Oversight Board in recent years. He has consistently expressed strong and public support for the strategy, dismissed criticism from those who oppose it, to the extent of even vocally speaking out against the need for an independent review of Prevent.

On 16 September 2019, the Government published its terms of reference for the independent review of the Prevent strategy. Rights Watch (UK) has expressed its concerns with the Terms of Reference. 

As Rights Watch (UK) has noted to the Government, the Terms of Reference limit the review to present and future delivery of Prevent, removing any investigation into the past delivery of the strategy and its impacts on human rights, which have been criticised for a number of years. The Terms of Reference simply focus on the “efficacy” of the Prevent strategy measured against its own terms, rather than engaging with the real concerns raised by affected communities and individuals about the strategy as a whole. Rights Watch (UK) argues that the Terms of Reference limit the scope of the Independent Reviewer’s inquiry in a way that is unlawful; rather than achieving the kind of review Parliament intended, the Terms of Reference appear to thwart the achievement of that review. 

Rights Watch (UK) is fundraising for the case through CrowdJustice.  

Bringing this case is a crucial and final step available in preserving the integrity of the Prevent Independent review, says Yasmine Ahmed, the director of Rights Watch (UK). She added:

“This is the last step available to us to try and ensure this review is genuinely robust and delivers on what Parliament wanted – an independent and impartial review. Rights Watch (UK) along with a chorus of others from impacted communities, civil society, Parliament and the UN have been consistently calling for an independent Review of Prevent given the harms that it gives rise to and its counter-productive effect.

"Unfortunately but not unsurprisingly, the Review that the Government has established is nothing short of a white wash. How can it possibly have any integrity when the Chair of the Review has been so publicly outspoken in support for Prevent, and intimately involved in the policy. Rights Watch (UK) and others have repeatedly called on the Government to reconsider Lord Carlile's appointment, and like the concerns we have raised about the impact of the strategy, these have had no effect. The Government has made clear that it does not intend to comply with the statutory purpose of the review.

"To add insult to injury Lord Carlile has set a terms of reference that are heavily focused on efficacy to the exclusion of the impact of the strategy and its theoretical underpinning which has been roundly discredited.

"The only reasonable conclusion to reach is that the Government have stacked the cards in their favour as to ensure that the Review will not only provide a rubber stamp to the current policy but like the last Review, which was also overseen by Lord Carlile, will provide the basis to expand i's remit and reach. This litigation is the last means to try and challenge that approach and to ensure this review is more than just a rubber-stamping exercise.

"Rights Watch (UK) is committed to making sure the Government delivers on its legal obligations to conduct this review in good faith and integrity. This judicial review challenge will seek to do just that.”

Tom Short from Leigh Day, who together with Carolin Ott, represents Rights Watch (UK) said: 

“Our client has serious concerns about the independent review of Prevent which it has repeatedly tried to raise with the Government. In particular Rights Watch (UK) believes its impartiality has been wholly compromised by the appointment of Lord Carlile as head of the review, and that the narrow scope of the Terms of Reference is an obstacle to a meaningful review of the Prevent strategy. Our client had hoped that the Government would listen to its concerns and revise its approach to this review.  Given the absence of a satisfactory response, our client has issued proceedings in the High Court.”
 

Background

The Counter-Terrorism and Border Security Act 2019 required the Secretary of State to conduct an “independent” review of the Prevent strategy. It did so because of concerns raised, over a number of years, by Parliamentarians, community groups and NGOs (including Rights Watch (UK)) regarding significant human rights harms arising from the Prevent strategy, including the discriminatory nature of the policy and its adverse impacts on freedom of speech and religion. Given the nature of the debate about Prevent, a key element of that review was that it be “independent”. 

Leigh Day has sent on behalf of Rights Watch (UK) three letters before action to the Government regarding the Prevent review:

1. Sent on 26 July 2019. Rights Watch (UK) challenged the Government’s failure to publicly consult on the appointment or even advertise the role of Independent Reviewer of Prevent. It argued that the appointment process was flawed, in that it failed to provide information about the selection criteria and process, publicly advertise the job, and consult with key stakeholders—including the NGOs directly involved with calling for an independent review.  In addition, Rights Watch (UK) also argued that the Secretary of State for the Home Department acted in breach of her public sector equality duty under the Equality Act 2010. The Secretary of State responded to the first Letter before Action rejecting the arguments put forward by Rights Watch (UK). She then announced the appointment of Lord Carlile on 12 August 2019.
2. Sent on 20 August 2019. Rights Watch (UK) argued that Lord Carlile cannot be considered independent or capable of conducting a truly rigorous assessment of Prevent, as he is on public record expressing his clear support for the Prevent strategy and criticising those who oppose it. It is also argued that Lord Carlile’s own decisions, acts, omissions or conduct are potentially matters which an independent review of the Prevent strategy may, directly or indirectly, call into question.
3. Sent on 23 September 2019. Rights Watch (UK) challenged the Terms of Reference. 

Since its inception in 2003, there have been several iterations of the Prevent strategy, including an update in 2011 which broadened the scope of the policy and laid the foundation for the most controversial aspect of Prevent: the 2015 statutory duty on specified authorities. This statutory duty places an onus on those working in schools, health, and social services to report any signs of “extremism” in patients or students in their charge, and to make referrals to the Government’s counter-radicalisation programme, Channel.

This duty has led to a massive increase in Prevent referrals. In 2017/18, over 7,000 individuals, including children, were referred to the Prevent programme, the vast majority of which (95%) did not require action under the Channel programme.