Kris Robbetts, Senior Associate, Veale Wasbrough Vizards

The Prevent Strategy, devised to combat all forms of radicalisation, was first introduced in 2007. Following the change of government in 2010 the initiative was refocused, and this year has been consolidated by the enactment of the Counter Terrorism and Security Act 2015 (the Act) and associated Regulations.

Since 1 July 2015, a number of specified authorities within the education, faith, health and the criminal justice sectors have been required by section 26 of the Act (the section 26 duty) to have due regard to the need to prevent people from being drawn into terrorism. Despite the Prevent duty being given a statutory basis, and it being expected to apply to FE institutions from 1 September 2015, it is not yet applicable pending the parliamentary approval of new statutory Prevent Duty guidance for England and Wales (which applies to all authorities listed in Schedule 6 of the Counter-Terrorism and Security Act 2015). With the Summer recess this looks unlikely to happen until later in the Autumn.

Additional FE specific guidance

FE institutions have been allocated their own guidance documents: Prevent Duty Guidance for further education institutions in England and Wales (the Guidance). FE institutions that offer HE courses should also have regard to the guidance for HE institutions. In anticipation of Parliamentary approval being given, there are a number of steps that FE institutions should consider taking when carrying out their usual functions.

Which FE institutions will be bound by the section 26 duty?

  • FE institutions on the Skills Funding Agency (SFA) register of training organisations (ROTO), including sub-contractors which receive more than £100,000 of SFA funding via lead providers;
  • FE institutions in Wales funded by the Welsh Government; and
  • Private FE institutions who are not in receipt of public funding who may be on the UK Register of Learning Providers and have similar characteristics to those on the register. These are institutions who have at least 250 students who are undertaking courses in preparation for examinations which either receive public funding or are regulated by the Office of Qualification and Examination Regulation or the Welsh Government.

What does the Guidance mean for FE in England and Wales?

The Guidance is clear that the section 26 duty is not intended to place "large new burdens" on institutions; rather it is intended that it will be implemented in a "proportionate and risk based way". This is reassuring but it also states that compliance will only be achieved properly if the duty is delivered in the ways specified. FE institutions that receive public funds will be monitored for compliance with the section 26 duty, by Ofsted (or Estyn in the case of institutions in Wales) through its Common Inspection Framework (or the equivalent in Wales). Inspections are risk based and the frequency of inspection will depend on this risk.

How can FE institutions comply?

A number of areas are highlighted in the Guidance and we mention below those that we consider will be of particular interest:

  • Managing external speakers and events
  • FE institutions are expected to have policies and procedures in place to manage events on their premises. These policies and procedures should apply to all staff, students and visitors and should "clearly set out what is required for an event to proceed." Reference is also made to the need to balance freedom of speech and the need to protect student and staff welfare.
  • Risk assessments must contain evidence of how the decision to allow the event to proceed, be cancelled or the decision to put in place mitigation strategies to mitigate risk were made. Such risk assessments must also provide for college-affiliated, funded or branded events which take place off the premises. When an event is allowed to proceed, organisers must be sure that speakers with extremist views, that potentially could draw people into terrorism, will be challenged with opposing views at the same event.
  • If there is any doubt about whether or not the risk can be mitigated, then such events should not be permitted to go ahead. Such a cautious approach is likely to be hard to reconcile in practice with the duty FE institutions have to promote freedom of speech.


Working in partnership

Governors, boards, principals, managers and leaders must actively engage with other partners involved in Prevent including the police, BIS regional Higher and Further Education Prevent co-ordinators. It is expected that FE institutions will be in regular contact with relevant Prevent co-ordinators so they can seek advice on how to comply with the duty and guidance on risk and response. The contact details of Prevent co-ordinators can be found at www.safecampuscommunities.ac.uk.

Sharing information

FE institutions must work in partnership with students, by engaging and consulting them in relation to their plans for implementing the duty. They must also make use of internal structures to share information about Prevent across the relevant curriculum areas - where the size of an institution warrants it. A single point of contact for the delivery of delivery of Prevent related activity is also expected.

Institutions must have robust policies and procedures in place for sharing information about vulnerable individuals and information sharing agreements should be used where possible.

This area will need very careful consideration to ensure compliance with all data protection and confidentiality obligations.

Assessing risk

Risk assessments are expected to consider "where" and "how" their students may be at risk of being drawn into terrorism. There is no mention of whether this relates to both violent and non-violent extremism.

Risk assessment should look at institutional policies regarding the campus and student welfare and should include equality and diversity, the safety and welfare of students and staff as well as assessing the physical management of the institution's estate. Policies and procedures for events held by staff, students or visitors and relationships with external bodies and community groups who may use premises or work in partnership with the institution should also be in place.

Recognition of chaplaincy as an important source of pastoral support is recommended, and institutions are expected to review their policies and procedures relating to the use of IT.

Once the risk assessment has been carried out, and a risk is identified, institutions should advise the relevant BIS Prevent co-ordinator and others as necessary (such as the SFA, Education Funding Agency (EFA), Welsh Government and the police) and develop a Prevent action plan to record the actions they will take to mitigate the risk.

Training, teaching and development

FE Institutions must be able to demonstrate that principals, governors, leaders and staff receive appropriate training and development on Prevent. By training these individuals it is expected that teachers and others supporting the delivery of the curriculum will make opportunity to educate and challenge. The further education curriculum must also allow leaders and teachers to exemplify British values in their teaching, management and through general behaviours.

Students must be encouraged to respect others particularly in relation to the protected characteristics set out in the Equality Act 2010.

Appropriate members of staff must be trained on how to identify students vulnerable to being drawn into terrorism and should have an understanding of when to make referrals to Channel (a local programme set up to provide support for people vulnerable to being drawn into terrorism) and how to get additional advice and support.

Policies

Institutions must have clear and visible policies in place do deal with whistle blowing and complaints. If an individual feels their complaint has not been taken seriously by the college or provider they can raise it with the SFA (for FE and Private Providers) or the EFA (for sixth form colleges or private providers funded by it).

When the delivery of courses has been contracted to other providers, robust procedures must be in place to ensure sub-contractors are aware of Prevent and are not funding extremist organisations.

Institutions are expected to have clear policies for the use of prayer rooms and other faith related facilities which outline management practices for the use of faith facilities. One suggested method of achieving this is to have an oversight committee to manage any issues as they arise.
The Guidance makes it clear that institutions must make reference to Prevent in IT use policies. Filtering mechanisms must be used as a means for preventing people accessing harmful content and be used as a way of preventing people from being drawn into terrorism. Reference must be made to those students and staff who access terrorist related information for research purposes and mechanisms must be in place to protect them.

The Joint Information Systems Committee (JISC) can provide specialist advice and support to FE providers to ensure the correct safeguards are in place. JISC also has a Computer Security Incident Response Team who can assist if the need arises.

Conclusion

The Guidance has provided some welcome clarity on what will be expected of FE institutions once the Prevent duty applies to them, but for now ambiguities remain. Balancing potentially conflicting statutory obligations from several pieces of legislation will be challenging but much can be done now to make the changes necessary to demonstrate compliance with what will become a mandatory regime.

Kris Robbetts (pictured) is a senior associate and Charlie Heffernan a solcitor at education law firm Veale Wasbrough Vizards - they can be contacted on 0117 314 5427 and 0117 314 5453, respectively

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