House of Lords
(9 years, 8 months ago)
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Death of a Member: Baroness Platt of Writtle
(9 years, 8 months ago)
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The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Baroness, Lady Platt of Writtle, on 1 February. On behalf of the House, I extend our condolences to the noble Baroness’s family and friends.
Autism
(9 years, 8 months ago)
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Baroness Uddin
To ask Her Majesty’s Government what steps they are taking to understand the causes of autism spectrum disorders and speed up diagnosis.
Baroness Uddin (Non-Afl)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw the House’s attention to my declared interest.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, there are a number of current government-funded research projects linked to autism. These include a Medical Research Council study to identify why certain genetic mutations can cause problems during brain development. By following the National Institute for Health and Care Excellence’s guidelines and toolkits, autism diagnosis can be speeded up. NHS England also has plans to use its local audit teams to provide assurance that people’s experiences of the diagnostic process are acceptable.
Baroness Uddin
My Lords, I thank the Minister for that thoughtful reply. He and I agree completely that there have been massive improvements in diagnosis over past decades. However, according to the Government’s Think Autism document, reports by the National Autistic Society and the BME organisation Include Me TOO, the experience of many parents seems to be that there are significant disparities and underdiagnosis, particularly among the BME communities. Given the crucial importance of timely diagnosis to the future prospects of someone with autism, how does the Minister’s department intend to address this currently patchy and inconsistent assessment service for all those who are identified as needing a full diagnosis on time and according to the Government’s own standards, and how does it intend to monitor progress?
Earl Howe
My Lords, the noble Baroness is right that timely diagnosis of autism is extremely important. I am glad she recognises that progress has been made. I believe that to be true but we know that there is more to be done. The update to the autism strategy, called Think Autism, draws specific attention to the needs of BME communities, and there is a specific action point within that document. I can tell the noble Baroness that we will include that specifically in the statutory guidance that follows on from the strategy. That guidance will be issued shortly.
Baroness Gardner of Parkes (Con)
My Lords, where I live, the daughter of a very nice man in the supermarket has just been diagnosed at the age of six. The problem is not the diagnosis—that has been made—but the fact that there seem to be no facilities of any sort to help him. He has been referred to the local borough by his Member of Parliament—an opposition Member, I might add, but a very nice man—and he has taken up the matter with the council, but nothing has happened. Is this, again, a problem of treatment as between care and health services, and what can be done to bridge the gap?
Earl Howe
My Lords, the answer to my noble friend’s question lies in more professionals being trained in autism and services supporting rather better the needs of children and adults with autism, and a lot of work is going on on those fronts. We are also asking local authorities to focus, in particular, on their own performance and to report back on the progress they are making on autism diagnosis, and indeed on other issues in Public Health England’s national autism self-assessment exercise. That process will draw out the shortcomings that exist in certain parts of the country.
Lord Touhig (Lab)
My Lords, there is evidence that some 25,000 children in England with autism have not been thoroughly diagnosed. The National Autistic Society, of which I am a vice-president, found in a survey that 34% of autistic people had to wait more than three years for a diagnosis. What are the Government doing to speed up this diagnosis and to ensure that it takes place within three months of a referral, which is the NICE recommendation?
Earl Howe
My Lords, part of this depends on the system working in a joined-up way between the National Health Service, local authorities and all the services upon which they depend. A great deal more training is going on, as I have mentioned. In December the Department of Health, the Association of Directors of Adult Social Services and Public Health England issued a new national autism self-assessment exercise, as I have mentioned. Much can be achieved, as we are impressing on local authorities, through low-level preventive support, and there are duties around prevention in the Care Act that local authorities now have in this area.
Lord Addington (LD)
My Lords, what is the relationship between the Department for Education and the Department of Health, particularly in spotting those at the higher-functioning end of the spectrum, for whom it may not become apparent that they have a problem until later in life rather than in the educational system?
Earl Howe
My Lords, the new statutory framework for children and young people with special educational needs and disabilities, SEND, is designed to improve the integrated working across health, education and social care so as to deliver improved outcomes for a child and his or her family. Clinical commissioning groups and local authorities will be working together according to that statutory framework.
Baroness Howarth of Breckland (CB)
My Lords, the Minister clearly accepts that speed of diagnosis ensures that a child or young person gets into treatment faster. The faster they are in treatment, the more likely they are to make some progress in how they are able to function. However, does he accept that there is a disconnect between that diagnosis and the service delivery, particularly with under-fives, where children are waiting a considerable time for their local authorities to sponsor them into nurseries or facilities? What is happening to ensure that that improves?
Earl Howe
The noble Baroness makes a very good point. That is exactly why we have given clinical commissioning groups new duties to commission services for nought to 25 year-olds and young people to ensure that procedures are in place, to agree a plan of action, to secure provision which meets a child’s or young person’s reasonable health needs in every case, and to work with the local authority to contribute to the local offer of services for children in this position. That is now a statutory duty and I think it is a step forward.
Lord Bradley (Lab)
My Lords, the Minister referred to training. Health Education England is one of the bodies charged with delivering the new strategy for transforming care for people with learning disabilities, including autism. Is it not extraordinary, therefore, that it does not keep a record of which universities deliver courses for nurse training in learning disabilities? Will the Minister ensure that such information is available so that training courses are properly monitored, with autism being a key component of such nurse training?
Electoral Registration
(9 years, 8 months ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what plans they have to support National Voter Registration Day.
Lord Wallace of Saltaire (LD)
My Lords, the Government welcome all initiatives to promote engagement and voter registration, particularly Bite the Ballot’s National Voter Registration Day, as well as the work of others such as the British Youth Council’s Make Your Mark and vInspired’s Swing the Vote. Among other government activities ahead of National Voter Registration Day, we announced today that organisations that work with people who are underrepresented on the electoral register, including students and other young people, and people from black and ethnic minorities, will share some £2.5 million of additional funding.
Lord Roberts of Llandudno (LD)
My Lords, I cannot say how much I appreciate the Minister’s Answer and the moves we are making in this direction. We appreciate everything that is happening. I hope that this House will be enthusiastic about enrolling young people and giving support to all these voluntary organisations and to the youngsters who work day and night to try to get as many young people as possible registered. I hope that we will give them support, and with great enthusiasm. We thank those organisations—I am proud to be president of one of them—for all that they have done. They have earned their spurs at this moment.
Lord Wallace of Saltaire
My Lords, it is up to all of us involved in politics and all parties to promote maximum registration between now and May. The Deputy Prime Minister went on “The Last Leg” late last Friday night—I think not a programme that most Members of this House watch, but very popular with young people. I will be talking at an event tonight with a group of young Explorer Scouts from Tower Hamlets to show our support for Scout and Scout leader work in encouraging people to vote with the Cabinet Office’s programme, Rock Enrol!
Lord Campbell-Savours (Lab)
My Lords, we are now told that there are 7.5 million potential voters missing from the national register. That is up on 2010 yet we have a general election within a few months. Why has that happened?
Lord Wallace of Saltaire
My understanding is that the adjustment between 6 million and 7.5 million from 2010 to 2012 was in line with the census. I am told by the statisticians that it represents an actual stabilisation. As I have said at this Dispatch Box many times before, the major reason why people who are not registered say that they have not registered is because they are not interested in politics and not interested in voting. I repeat that it is up to all of us to do our utmost in the next 90 days to enthuse particularly young people and those most disengaged from politics to re-engage, to register and then to vote.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend not think that the Government are creating a very dangerous precedent by insisting, in the new powers for the Scottish Parliament, that changes in the franchise—or indeed boundaries—require a two-thirds majority?
Lord Wallace of Saltaire
My Lords, I am not entirely sure that the Government are creating a dangerous precedent. I suspect that the noble Lord and I may disagree on the age at which people might start to vote.
Lord Kennedy of Southwark (Lab)
My Lords, first, I declare an interest as the chair of the All-Party Group on Voter Registration. According to Electoral Commission research, 30% of our young people aged 18 to 24 are not on the register of electors. If this was the situation in any other country in the world 93 days before a general election, the British Government would be urging the country to pull its finger out and get people on to the register. The problem is that this is in their own backyard and entirely of their own making. What are the Government going to do to get people on the register before applications close on 20 April?
Lord Wallace of Saltaire
My Lords, the Government have engaged in a range of activities on social media and are using National Voter Registration Day as a means of raising national attention. Two of my ministerial colleagues are speaking in parallel at a barracks tomorrow to deal with the problem of underregistration among defence personnel. The Government will also, through the FCO, be attempting to raise the amazingly low level of overseas registration. We are working on this, but I repeat that the Government cannot do all of it on their own. I put something out on Liberal Democrat Voice, my own party’s site, two weeks ago encouraging all our activists to engage with local schools and other bodies. I am sure that the Labour Party is doing the same, in so far as it can.
Lord Lexden (Con)
In view of the success of the work done in schools in Northern Ireland by its chief electoral officer, will the Government encourage his counterparts throughout the country to publicise the details of the work that they are doing in schools and the results that flow from that?
Lord Wallace of Saltaire
My Lords, I have been in active conversation with electoral registration officers over the last year and more. The Government have just provided another £6.8 million for electoral registration officers, targeted on particular areas which have low registration, by and large in the cities. I also stress that the provision of online registration, which has been going now for a year and through which 3.33 million people have already registered, is very much one of the ways we get at young people. Knowing young people, including my own children, I think this is something that young people are likely to register on at the last minute.
Lord Storey (LD)
My noble friend may be aware of an electoral registration app that can be downloaded on to smartphones, which was launched in Dundee. Have the Government any plans to use smartphone technology to increase voter registration?
Lord Wallace of Saltaire
My Lords, you can register online on smartphones. The Government are also using social and other media to add links to the registration website and to remind people as they use social media that now is the time to register to vote.
Lord Cormack (Con)
My Lords, I am sure that we all wish my noble friend success in his mission to Tower Hamlets this evening. Could I ask him to reconsider the Government’s attitude on compulsory registration? It would really be very sensible, and I am glad to see noble Lords opposite nodding. I hope the Government will consider it.
Lord Wallace of Saltaire
My Lords, the Government are not convinced about compulsory voting, which raises some large questions about the relationship between the citizen and the state—
Lord Wallace of Saltaire
Excuse me, registration. It raises some large questions about the relationship between the citizen and the state, which perhaps the next Parliament will discuss.
Ebola
(9 years, 8 months ago)
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Lord Collins of Highbury
To ask Her Majesty’s Government what recent progress they have made on tackling Ebola in West Africa.
The Parliamentary Under-Secretary of State, Department for International Development (Baroness Northover) (LD)
My Lords, the United Kingdom is leading the international response to the Ebola crisis in Sierra Leone. It is clear that this strategy is working. There are signs that the infection rate is falling in Sierra Leone. This is real progress and a cause for cautious optimism that we can beat this disease. We remain focused on defeating the outbreak completely.
Lord Collins of Highbury (Lab)
My Lords, just before Christmas, Professor Chris Whitty, chief scientific adviser to DfID, said in evidence to the Public Accounts Committee in the other place:
“There is a high chance that when we look back on this epidemic more people who did not have Ebola will have died as a result of the Ebola epidemic”.
Does the Minister agree that this reinforces the case for universal healthcare systems, free at the point of access, and that we should use this language in a stand-alone health goal in the forthcoming UN negotiations to replace the MDGs?
Baroness Northover
It is clear that there have been problems with other diseases in the affected areas, as people have not come forward for treatment, so the noble Lord is absolutely right. It is extremely important that in the future we take forward the strengthening of their health provision—that is clearly necessary. It is essential when the new SDGs are agreed that health is there, underpinning what happens in terms of human development.
Lord Cameron of Dillington (CB)
My Lords, do the Government have any plans for a post-Ebola crisis in Africa? Owing to transport and communications breakdown and to movement restrictions, farmers have not been able to sell last year’s harvest and they therefore do not have the cash to buy the inputs for the following year’s harvest. Therefore, it is at the next harvest—that is, this year—when the real nutritional crises are going to start in all the countries of west Africa. I hope that the Government are making plans to deal with that inevitable crisis.
Baroness Northover
The international community is well aware of the challenge that the noble Lord has mentioned. The UNDP will complete its regional Ebola recovery assessments by the end of February. Those will be comprehensive and address those kinds of questions.
The Archbishop of Canterbury
My Lords, during a pastoral visit to Sierra Leone in mid-December, I heard affirmation of the extraordinary commitment of British forces and British work in that country. There was much expression of admiration and gratitude. There was also much concern about future outbreaks of Ebola. What thinking have the Government given to how future outbreaks might be prevented?
Baroness Northover
I am very pleased to see the most reverend Primate in his place—a number of us were extremely concerned when he came back from Sierra Leone and was not himself well, so it is great to see him here. He is absolutely right: the international community is focusing on trying to ensure that we do not find ourselves in this situation again. The WHO has looked at its own reform and other international bodies will too, but it is vital that we learn the lessons of this particular epidemic.
Lord Chidgey (LD)
My Lords, the pharmaceutical industry claims that the reason why an Ebola vaccine had not been developed was that the number of victims was likely to be small compared to, for example, malaria. Does it have nothing to do with the poverty of the people affected or their inability to pay a market price for the drug? Does my noble friend agree that, but for the heroic efforts of hundreds of mainly local health workers, the Ebola outbreak could have become a pandemic, with possibly millions of victims, all for the want of a vaccine? Are the Government pressing industry to accept, in poor countries, production costs-plus payments for the vaccine, as happens for AIDS treatments in poor countries, with significant success?
Baroness Northover
My noble friend is right that there are models for how this might be taken forward and he is right that there were real risks of a pandemic. The United Kingdom and its NHS workers have actually played a pretty key role in stemming that, so that it did not become a pandemic. Certainly, in terms of the development of vaccines, that is another area that we need to investigate.
Baroness Kinnock of Holyhead (Lab)
My Lords, we have known about Ebola for 40 years, yet we still have no vaccine and no cure. Does the Minister agree that the cost of bringing that drug forward and taking it through the necessary regulatory process means that pharmaceutical companies prefer to focus on the diseases of the rich than on poor people’s diseases in Sierra Leone?
Baroness Northover
I am quite encouraged by what is happening in terms of vaccines for Ebola. As the noble Baroness might be aware, clinical trials have already started in Liberia, and the UK and the CDC are looking at rolling out trials in Sierra Leone.
Viscount Ridley (Con)
My Lords, while congratulating the brave volunteers who have done so much to bring this epidemic under control, and while it is good news that there is light at the end of the tunnel, would my noble friend consider asking the World Health Organization to publish its internal review on why the early response to this epidemic was so bad and why it downplayed the problem when it had already become known to other agencies?
Baroness Northover
I am sure that there will be continued discussion as to the lessons we must learn. However, it was welcome that the WHO held a special session to look at some of those lessons and try to take that forward.
Baroness Hayman (CB)
My Lords, while welcoming the progress that the noble Baroness outlined and the recognition that I understand is to come of British citizens who contributed to that progress, would she agree that the next phase of the fight in Sierra Leone will be even more challenging: not to let up on the drive to zero cases in the current outbreak; to make up for the healthcare that has not been given in terms of immunisations, maternity and neonatal care, malaria and NTDs; and to provide the structures for robust responses to any outbreaks that might occur in future?
Baroness Northover
Indeed, the noble Baroness is right that we cannot be complacent. As I am sure she knows, we need 42 days of an Ebola-free situation in all the relevant countries. We then need to reconstruct. That needs to be transparent and accountable. When I met the relevant Ministers from Sierra Leone, that was certainly something I emphasised from the UK Government.
NHS: Financial Tariff for 2015-16
(9 years, 8 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what is their response to the rejection by National Health Service Trusts of the financial tariff proposals drawn up by Monitor for 2015–16.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we recognise the frustration and uncertainty this delay will cause providers and commissioners. My department is working closely with Monitor and NHS England to consider which option to pursue that provides the fairest settlement for different NHS organisations while ensuring that patients continue to receive the best possible care.
Lord Hunt of Kings Heath (Lab)
My Lords, I thank the noble Earl for that reply. Can he confirm that this is the first time that NHS trusts have rejected the tariff on the grounds that they can no longer provide safe and quality care and meet financial targets next year on the basis of the tariff laid down by Monitor? Can he also confirm that the finance director of the NHS Trust Development Authority told Monitor that he does not consider that the efficiency requirement for next year can be met without risking quality of care? When will the Government take responsibility for the financial disaster coming upon the NHS?
Earl Howe
My Lords, it should not cause us any surprise that, at a time of financial stringency in the NHS and increasing demand, it should have proved more difficult than usual to arrive at a settled position on the tariff. The process is undoubtedly complex and challenging but we will continue to work with and support Monitor and NHS England in managing this in a way that attempts to be as fair as possible to all parts of the system.
Baroness Barker (LD)
My Lords, given the historic underfunding of mental health services in this country, will the Government make representations to Monitor to ensure that mental health trusts are not required to make savings at the same rate as other trusts?
Baroness Howarth of Breckland (CB)
My Lords, a great deal of concern has been expressed by specialist providers, particularly in the heart field where there is a review ongoing at the moment, that there might well be a reduction in funding. That would be disastrous for services. Can the Minister reassure those groups that there will be a fair assessment in relation to specialist provision?
Earl Howe
It is the view of Monitor and NHS England that providers of specialised services should make every effort to deliver care that is both clinically appropriate and cost-effective in order to manage demand—where, after all, their clinicians have significant influence. NHS England considers the proposed rule to be warranted—this is about the 50:50 split in the tariff—because rapidly growing expenditure that exceeds population prevalence growth is unlikely to reflect efficient and effective services, which, when one thinks about it, are in patients’ best interests overall.
Baroness McIntosh of Hudnall (Lab)
Going back to the question asked by the noble Baroness, Lady Barker, I am sure the Minister will have seen recent reports showing that there is a serious shortage of mental health beds in the health service at the moment. Indeed, I believe that at one point in the very recent past there were no more than four or five available in the entirety of the UK—or certainly in England. Parity of esteem is a fine phrase, but is it really being played out in practice?
Earl Howe
My Lords, it would require a full-scale debate for me to lay out in full all the things that we are doing to promote parity of esteem in the health service. The noble Baroness is right that in certain parts of the country there has been acute pressure on bed numbers, but bed numbers have been increased in some of those areas, and NHS England is paying close attention to the need to ensure that those who need in-patient treatment receive it.
The Earl of Listowel (CB)
My Lords, will the Minister look carefully at the bureaucratic burden on clinicians? A number of clinicians have raised with me the fact that there is too heavy a burden, and that because of that burden, they are not being as efficient as they might be.
Earl Howe
My Lords, yes of course the bureaucratic nature of commissioning needs to be minimised and we do all we can to achieve that. However, the need to ensure that we make a careful distinction between commissioners and providers does, I am afraid, mean that rather a lot of numerical work has to go along with that and, as is right, discussion between commissioners and providers to ensure that the system works smoothly.
Baroness Manzoor (LD)
My Lords, Choose and Book has been a success story for the Government. It is a hidden gem. Will this be affected by the level of tariffs that are to be offered and will patients have a real choice?
Lord Harris of Haringey (Lab)
My Lords, given the appalling performance of ambulance services—certainly in London, and, I suspect, in the rest of the country—what steps are the Government taking to ensure that the tariff means that people will receive the emergency call-outs that they would expect on the basis of the funding that should be being made available?
Earl Howe
This is part and parcel of the discussions going on at the moment. There is a balance of interests here—above all, the interests of NHS patients, but within the system, the interests of those who hold the budget and the interests of those who provide the service. The risks relate, on the one hand, to affordability, and, on the other hand, to financial and service stability, and the need not to sacrifice quality in the process.
Baroness Farrington of Ribbleton (Lab)
My Lords, would the Minister care to comment on his former colleague in his department who views the reorganisation of the National Health Service as the biggest mistake this Government made? As we come towards the end of this coalition Government, some of us watch in horror as an increasing number of people within the coalition stand up and say, “It weren’t me, guv”, and, “I didn’t agree with it”. Does the Minister accept that his party, this coalition and the Liberal Democrats did not actually ask the people whether they should do this? They told them that they would not do it.
Earl Howe
My Lords, I remain a staunch defender of the 2012 Act. In this context, the 2012 Act did two things that were different. It gave responsibility for setting the tariff to an independent body instead of to the Department of Health and Ministers. I believe that that was a good thing. It also provided a statutory right, which did not exist before, for the NHS to be consulted on the tariff. I believe we should keep those two elements of the Act—as well as the rest of it.
Judicial Pensions Regulations 2015
(9 years, 8 months ago)
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Lord Faulks
That the draft regulations and order laid before the House on 8, 11 and 17 December 2014 be approved.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 29 January
Independent Panel Inquiry into Child Sexual Abuse
(9 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, with the leave of the House I will repeat a Statement made by my right honourable friend the Home Secretary in the House of Commons earlier this afternoon. The Statement is as follows:
“As the House will know, the Government established this inquiry so we could get to the bottom of whether important institutions—public sector bodies as well as non-state organisations—have taken seriously their duty of care to protect children from sexual abuse. In my last Statement to the House about the inquiry in November, I said that in appointing two chairmen who had failed to win the trust of survivors, we had got things wrong. I said that as we worked out how to move forward, we would listen to survivors and their representatives, and I said that if we stay patient and work together, we will have a once-in-a-generation opportunity to find out what has happened in the past and is still happening now, and stop it happening in the future.
Since my last Statement, I have held meetings with young survivors, with adult survivors and with groups that represent thousands of survivors in total. During those meetings many people shared their experiences, no matter how painful or how difficult it was to speak out. In doing so, the young survivors displayed immense courage, as did the older survivors who showed me how abuse that took place decades ago can feel as if it took place yesterday, and how they have had to live with the consequences of that abuse their whole adult lives. I am grateful to all of them.
Throughout those meetings, for every person who told their story there was one common goal—to save others from the abuse they had suffered. So let me be clear: I am now more determined than ever to expose the people behind these despicable crimes, the people and institutions that knew about the abuse but did not act or failed to help when it was their duty—sometimes their very purpose—to do so, and the people and institutions that in some cases positively covered up evidence of abuse. Other common themes emerged from those meetings and from the wider feedback that survivors have given me. While there is no single point of view from the many thousands who have suffered—and that means not every survivor will agree with everything that I announce today—there is a remarkable degree of consensus on what is needed for this inquiry as it goes about its important work.
Survivors have been clear about the type of chairman who would command their confidence. They have said that they want to see powers of compulsion to make all witnesses give evidence. They have said that we need to revise the inquiry’s terms of reference. They have raised the importance of help and support as the inquiry triggers memories that cause great pain. Finally, they have emphasised the importance of prosecuting the perpetrators of these terrible crimes where evidence emerges.
I will turn first to the matter of the chairman. After my last Statement, the Home Office received more than 150 nominations from survivors, their representatives, MPs, Peers and members of the public. In addition, the Home Office contacted Commonwealth countries, via the Foreign Office, to identify any suitable candidates. Each and every name was assessed against a set of criteria, incorporating the views of survivors on the most important factors. These included appropriate skills to carry out a complex task; experience of the subject matter; and the absence of any direct links to any individual about whom they may have concerns or any institution, or organisation, that might fall under the scope of the inquiry. A copy of these criteria will be placed today in the House Library, and published in full on GOV.UK.
Following an initial sift, due diligence checks were carried out on all the remaining names, which included academics, social workers, people from the charitable sector and a significant number of judges and members of the legal profession. This list was narrowed down to a shortlist of those who matched the set of criteria and were most suited to taking on this undoubtedly challenging role. I then took the views of a small group of survivors, who are all members of larger groups and who represent more than 100,000 individual survivors in total. As the House may recall, in responding to an Urgent Question on 22 January, I said that I would reach my decision by the end of January and update the House shortly thereafter.
Based on the clear feedback from survivors and the assessment of the nominations against the agreed criteria, I can tell the House that I plan to appoint Justice Lowell Goddard as the new chairman of the independent panel inquiry into child sexual abuse.
Justice Goddard is a judge of the High Court of New Zealand and is a highly respected member of the judiciary who has been at the forefront of criminal law and procedure. As chairman of the Independent Police Conduct Authority of New Zealand, she conducted an inquiry into the policing of child abuse in New Zealand and she is also a member of the United Nations sub-committee on the prevention of torture. She will bring a wealth of expertise to the role of chairman and, crucially, she will be as removed as possible from the organisations and institutions that might become the focus of the inquiry.
I can confirm that I have discussed Justice Goddard’s appointment with the shadow Home Secretary, and I am grateful to the right honourable lady for her constructive comments and bipartisan approach. The House will also recall that I agreed with the right honourable Member for Leicester East, Keith Vaz, that the nominated panel chairman would attend a pre-appointment hearing before the Home Affairs Select Committee. This will bring further transparency to the appointment process and I can confirm that the chairman of the committee has agreed that this confirmation hearing will take place on 11 February. I have asked the committee to publish its report as soon as possible.
I would now like to turn to the form of the inquiry. As I said at the Home Affairs Select Committee on 15 December, I am clear that the inquiry should have the power to compel witnesses to give evidence. I also said there were three ways to do this: first, by establishing a royal commission; secondly, by converting the current inquiry into a statutory inquiry under the Inquiries Act 2005, subject to consultation with the chairman once appointed; or, thirdly, to set up a new statutory inquiry under the Inquiries Act 2005.
Having taken in-depth legal advice and having discussed the option with survivors, I have concluded that a royal commission would not have the same robustness in law as a statutory inquiry. In particular, it would not have the same clarity over its powers to compel witnesses to give evidence. I have decided not to convert the current inquiry, because doing so would not address the concerns of survivors about the degree of transparency in the original appointments process. I have therefore decided on the third option of establishing a new statutory inquiry with a panel.
I want to make clear that this is by no means a criticism of the current panel members, who were selected on the basis of their expertise and commitment to getting to the truth about child abuse in this country. The fact that the panel is being dissolved has nothing to do with their ability or integrity, and I want to place on record my gratitude to them for the work that they have done so far. I have asked the panel to produce a report on their work so far, which I am sure will provide valuable assistance to the incoming chairman.
In order to make sure that the appointment of the new panel is as transparent as possible, I will publish the criteria by which each new member will be selected in the House Library and in full on GOV.UK. I hope that the original members and the expert adviser to the panel, Professor Alexis Jay, will put themselves forward to be considered against these criteria if they so wish. I can also confirm that Ben Emmerson QC will remain as counsel to the inquiry. I will discuss the make-up of the new panel with Justice Goddard, but I am clear that each member must have the right skills and expertise to do the job, satisfy the statutory requirements of impartiality and also command the confidence of survivors.
So the process is being reset and that means that I will also revisit the terms of reference. In accordance with the Inquiries Act, these will need to be discussed with Justice Goddard, but I want to assure survivors and the House that I have heard the strong call that the inquiry’s remit should go back further than the current time limit of 1970.
There are, however, good reasons for confining the inquiry’s scope to England and Wales. The Hart inquiry in Northern Ireland and the Oldham inquiry in Jersey are already underway, while the Scottish Government have announced their own inquiry into child abuse, but I shall discuss this with the new chairman. In the event that the geographical scope remains the same, I propose that a clear protocol is agreed to make sure that no information falls through the cracks, and no people or institutions escape scrutiny, censure or justice.
I wish once more to reassure the House that the Official Secrets Act will not be a bar to giving evidence to this inquiry. I am clear that the inquiry will have the full co-operation of government and access to all relevant information, including secret information where appropriate. I shall be writing to Secretaries of State to ask for their full co-operation, and will ask the Cabinet Secretary to write to all departments and agencies—and public sector organisations, including local authorities—setting out the need for full transparency and co-operation with the inquiry.
I turn to the important issue of support. Survivors have fought hard for this inquiry, knowing the intense emotional toll that it will take. Charities have already reported a huge increase in demand for their services as more and more people come forward, many for the first time. That is why in December I announced a £2 million fund available to non-statutory organisations that had seen an increase in demand as a direct result of the announcement of the child abuse inquiry. A further £2.85 million fund for non-statutory organisations providing support across England and Wales was also announced. I am pleased to announce that these funds are now available and organisations can bid for them. Going forward, further support will be needed for those who wish to give evidence to the inquiry and for the many thousands of people who may be affected by its work. It is essential that these people are given the help they need, and I expect appropriate government funding to be made available at the next spending review.
The final issue that survivors have raised with me is the need to do everything we can to ensure that the perpetrators of child sexual abuse are prosecuted wherever possible, and of course I share that aim. I confirm that there will be a co-ordinated national policing response that will link directly into the inquiry and will be able to follow up any lead that the inquiry uncovers which requires a policing response. This will be led by Simon Bailey, the national policing lead for child protection and abuse investigations, as part of Operation Hydrant, which will co-ordinate all child abuse investigations concerning people of public prominence or those offences that took place in institutional settings. The Hydrant team will be responsible for the recording of all referrals from the inquiry that relate to potentially criminal abuse and failures to act. It will also oversee the quality of responses from police forces to any requests for information from the panel. It is also important that there is a central point of contact within the Crown Prosecution Service for any referrals resulting from the inquiry. I confirm that the Director of Public Prosecutions has appointed her legal adviser, Neil Moore, to this vital role.
There is one separate but related matter on which I promised to update the House. As part of the review that the Home Office commissioned from Peter Wanless and Richard Whittam QC last July, we asked a number of other government departments, as well as the Security Service and the police, to undertake a careful search of their records. Following reports in the press last month about a Cabinet Office file title listed in the National Archives, the Cabinet Office has undertaken urgent work to establish why this file was not identified as part of the original search of the Wanless and Whittam review, and whether it was a duplicate of a file that was held by the Home Office and seen by Wanless and Whittam during their review. This work has established that it was not an exact duplicate; the two files are different, but contain much of the same material. The Cabinet Office file has additional material that the Home Office file does not, and vice versa. The additional Cabinet Office material falls within in the scope of the Wanless and Whittam review. My officials have spoken to Peter Wanless and summarised the additional information that it contains, and he has confirmed that it would not have changed the conclusions of his review.
None the less, this file should have been identified when the Home Office first asked the Cabinet Office to conduct searches in connection with the Wanless and Whittam review. My right honourable friend the Minister for the Cabinet Office will today lay a Written Ministerial Statement explaining that as a result of the discovery of this file the Cabinet Office has undertaken additional searches of its papers and files. As a result, Cabinet Office officials have identified a small number of additional files that should also have been identified and passed to Peter Wanless and Richard Whittam last summer. I have said that they must be shared with Wanless and Whittam immediately; with the Goddard inquiry and the Hart inquiry, should they wish to see them; and with the police, which my right honourable friend has agreed to. It is imperative that the whole Government co-operate fully with the independent panel inquiry into child sexual abuse and provide full access to any information that is requested. I have of course asked for these files, in common with all other relevant documents held by the Government, to be made available to the inquiry so that it leaves no stone unturned in its bid to get to the truth.
This brings me to my final point. I have said before, and I shall say again, that what we have seen so far in Rotherham, Oxford and Greater Manchester and elsewhere is only the tip of the iceberg. This afternoon, my right honourable friend the Secretary of State for Communities and Local Government will give a Statement on Louise Casey’s report into Rotherham Borough Council, which will contain further evidence of its failure to protect vulnerable children. With every passing day and every new revelation, it is clear that the sexual abuse of children has taken place, and is still taking place, on a scale that we still cannot fully comprehend.
What we do know is that the authorities have, in different ways, let down too many children and adult survivors. In many cases, people in positions of authority have abused their power. Now those of us in privileged positions of public service must show that we have listened, we have heard and we have learnt, and that we will come together not to avoid difficult questions but to expose hard truths. Most importantly, we will keep in mind the people on whose behalf we seek justice—the survivors of these appalling crimes. On that note, I would like to end by thanking survivors for their patience, their determination and their willingness to help us to get this right.
I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Smith of Basildon (Lab)
My Lords, we welcome the Home Secretary’s Statement, and I am grateful to the noble Lord for repeating it for us today. There can be few things worse for a child than to be sexually and violently abused by adults, but one of those things has to be not to be believed that it ever happened. However, the most shocking thing has to be for someone, somehow, to muster the courage to speak out, and when they are believed, to be ignored because of that belief, and for the crime to be covered up to protect the guilty. That this abuse and lack of justice has involved well known and establishment figures and institutions compounds the pain, horror and disgust.
In her Statement the Home Secretary said that,
“what we have seen so far … is only the tip of the iceberg”.
She added that it was,
“on a scale that we still cannot fully comprehend”.
She is absolutely right. What is emerging is a catalogue of serious, systematic abuse over decades and across the country by those who believed they were above the law. But however distressing, however uncomfortable and however shocking, we have to comprehend it, because only then will we be able to get to the truth, and justice, for the survivors of that abuse, and also for those who have not survived.
However, we need to do far more than just understand the truth. It was quite moving to hear the part of the Home Secretary’s Statement where she reported that the common goal, and one of the factors that motivates and drives survivors to relive the horror of their experiences, is, as she put it, to protect and save others. The challenge for the inquiry is not only to meet the expectations of the needed investigation but to make recommendations for the future.
We called for a full statutory inquiry more than two years ago. The Home Secretary announced an inquiry more than six months ago. The false starts, the confusion and the problems have been hugely damaging. There have been issues around personnel and about the remit and the purpose, and survivors have not felt fully engaged in the process. We want this inquiry to be as effective as possible and to have the confidence of survivors and the public. So we welcome that it will now be a statutory inquiry, and we welcome, as hinted in the Statement, the extension of the remit to cover pre-1970 offences. If the Minister could clarify that further, it would be helpful.
We welcome the discussions that the Home Secretary has now had with survivors prior to appointing Justice Lowell Goddard to chair the panel. We certainly welcome the agreement that the Home Affairs Select Committee should hold a pre-appointment hearing. I have just a few questions for the Minister. Clearly, the confidence of abuse survivors is absolutely essential. Will there be any consultation and engagement with survivors regarding the appointment of the new panel and the ongoing shape and work of the inquiry?
Noble Lords are well aware of the very serious and quite devastating allegations of cover-ups and conspiracies in Whitehall and Westminster regarding the most serious crimes of sexual and violent abuse. Even today, the Home Secretary has had to update Parliament and the Minister for the Cabinet Office on the continuing chaos of missing files, and possibly duplicated files, after a Cabinet Office file was accidentally found by the press in the National Archives. Can the Minister confirm that the files of all government agencies and departments, including Downing Street and the security services, will be searched, and that Justice Goddard will have all the access that she requests?
The Home Secretary was direct and robust when she was asked about a cover-up. What will be the investigative capacity of Justice Goddard’s inquiry? Will she be able to select her own advisers and counsel? I note from the Statement that Ben Emmerson has been reappointed. Was that done with the approval of the new chairman? We all want to see those who are responsible brought to justice wherever possible, but noble Lords will be aware, as it has been raised before, of those who are responsible for online sex abuse not being interviewed by the police quickly enough. I have raised this issue with the Minister before in Questions and debates. If in the past we have had the problem that the police have not acted quickly enough against those who are now abusing children or looking at online images, can he be confident that they have the resources they need fully to investigate and prosecute past crimes while still policing the present and protecting children from abuse today? Can he explain something about the relationship and co-operation with Simon Bailey’s work and that of the National Crime Agency and CEOP?
Finally, the Minister will be aware of the issues that can arise when an inquiry which, of necessity, is thorough and meticulous, takes a long time, even years, to complete its work. What monitoring and progress-reporting arrangements will be in place? Can he confirm that if evidence comes to light before the conclusion of the inquiry that could lead to a prosecution, that evidence will be acted on without delay?
We welcome the Statement, and I hope the noble Lord can clarify some of the points I have raised today.
Lord Bates
I am grateful to the noble Baroness for her characteristic bipartisan approach on this. I know from my right honourable friend the Home Secretary that one of the most important things for survivors, particularly as we approach the end of this Parliament, is confidence that we are acting in a cross-party way so that there will not be disruption thereafter. That will be welcomed by them.
I shall deal with a number of the points that the noble Baroness raised. In relation to the missing files, as I have said, my right honourable friend has been very clear that we do not know whether there was a cover-up. That is one of the things that we need to get clear. We need to focus on it and get to the bottom of it. The Home Secretary and the Cabinet Secretary have written round, and we expect early and full compliance with that inquiry, as should have been the case with the earlier Wanless and Whittam review.
The noble Baroness asked about Ben Emmerson QC as the counsel. That was discussed with Justice Goddard and she is content with that approach. The noble Baroness also asked about the important issue of timing. We have been hearing evidence lately about the Chilcot review dragging on. That is not something that we want to do. The Home Secretary has said that she is considering—but will first discuss with the chairman of the panel, of course—whether there might be a target date. However, we would certainly expect to get regular updates and for survivors to be kept updated about the progress being made. Any evidence that comes to light must be passed immediately. That is the crucial role which Chief Constable Simon Bailey will play. He will be the link, the conduit, and the link with the Director of Public Prosecution’s office, so that we ensure that any prosecutions and information are dealt with immediately.
I think those were the principal points that the noble Baroness raised. If there are other points, I will come back to them later. I am grateful for her support.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, before the clerk starts the Clock for Back-Bench contributions, and as there are many noble Lords in the Chamber today for this very important statement, I thought it might be helpful if I reminded the House that Statements are an opportunity for brief questions. We want to ensure that the maximum number of noble Lords who are interested and wish to ask my noble friend Lord Bates a question get an opportunity to do so. If we could ensure that we follow the guidance in the Companion and keep to brief questions, I would be grateful.
Lord Laming (CB)
My Lords, this is a welcome Statement which makes clear that the Home Secretary has given a great deal of thought to this important matter. We wish Justice Goddard great success. We are particularly pleased that it is going to be a statutory inquiry, which is a great achievement. I notice from the Statement that the Home Secretary intends to revisit the terms of reference. Does the Minister agree that it is very important that great precision is attached to the terms of reference for an inquiry that will perhaps cover more than 50 years? To avoid disappointment and possible legal challenge, the terms of reference are the essential component for the success of this inquiry.
Lord Bates
The noble Lord, Lord Laming, speaks with great experience in these areas, and he is absolutely right that the terms of reference are critical. The Inquiries Act 2005 stipulates that the terms of reference must be drawn up with the chairman of the panel. I know that one of the first things that the Home Secretary will turn to is what the scope of the panel should be, so that we can ensure that we get to the truth as quickly and as expeditiously as possible.
The Lord Bishop of Carlisle
My Lords, I am afraid that this is not a question but a brief statement, if I may. On behalf of the Church of England, we welcome—
The Lord Bishop of Carlisle
Thank you very much. Would the Minister agree that we in the Church of England welcome this inquiry hugely as well as the appointment of a new chair? We acknowledge our own failures as a church in the past, and assure the House that we have already instituted our own inquiries well in advance of the establishing of this panel. We will of course co-operate with the panel in absolutely every way we can.
Lord Bates
We are grateful for the right reverend Prelate the Bishop of Carlisle’s statement on that. I do not think that any of us can claim to have got it absolutely right. The important thing is that we get it right going forward for the survivors.
Baroness Walmsley (LD)
My Lords, may we commend the Home Secretary for her persistence, because I think that she has got it right this time? We, too, have been calling for a statutory inquiry and we very much welcome that. I welcome the greater transparency—for example, the confirmation hearings that we are getting now—and I particularly welcome the direct line to the police and the CPS which we have with this structure. However, I have one concern, and that is the terms of reference and the structure of the inquiry. The scope of the inquiry is absolutely enormous. Although the inquiry is not likely to take 50 years, it will go back 50 years and it will take many years. Now, justice delayed is justice denied, and what I am concerned about is whether the Government will liaise with Justice Goddard and try to come up with a structure that will allow periodic reports—of considerable substance—upon which the services across the country can act. If we have to wait until right at the very end, many opportunities for improving what we do will have been missed.
Lord Bates
My noble friend is absolutely right that we do need to get it right and the terms of reference are key. When we set up the initial independent panel, she will recall that we planned to have six-monthly statements. I thought that was a good arrangement, but one of the whole points of setting it up under the independent Inquiries Act is that the terms of reference have to be agreed with the new chairman. That will be very important, but the fact that we have a former High Court judge—a member of the judiciary with great experience of getting through complex and difficult situations and getting to the heart of the truth—should help us in that task.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, join others in congratulating the Home Secretary on this appointment. Justice Lowell Goddard is someone known to a number of us in the legal profession, and I am sure our judges know her well. She is highly respected and has a great deal of experience. New Zealand has particular experience in dealing with these very problems—indeed, another judge, Carolyn Henwood, led an inquiry into child abuse in children’s homes—so there is a wealth of experience there.
I want to ask this question, because I heard mention of whether the appointment of Ben Emmerson was something that would be agreed to. Ben Emmerson QC is a fearless counsel. Surely the Minister would agree in appointing him that there is a very important role for there to be someone who understands the British system—the British class system, the nature of the British establishment and matters which might not be as quickly understood by someone from a different jurisdiction.
My second question is about the Official Secrets Act. As I understood it, the Minister said that no one would be able to hide behind the Official Secrets Act so as not to answer questions in relation to the inquiry. I should like reassurance about that, because a number of the victims say that, in having their desire to pursue complaints dismissed, they were at times told that matters of national security or public interest meant that inquiries should not proceed. That would be a detriment to the kind of inquiry which is sought by survivors and all of us to clear these matters up.
Lord Bates
I welcome the noble Baroness’s support for Justice Goddard from her personal experience of her, and for Ben Emmerson QC. We have been very clear that the Official Secrets Act should be no bar to anyone coming forward with evidence. There are means under the Inquiries Act whereby, if need be, certain evidence can be supplied to the inquiry with restrictions around it, but the Official Secrets Act cannot be used as a screen to hide behind.
Baroness Howarth of Breckland (CB)
My Lords, the inquiry will have a start date in terms of looking back, but will it have an end date in terms of when it starts now? My concern is that abuse is happening now. I am grateful to the Minister for announcing that there will be funds to help organisations that are working in the field, but during the years when the inquiry is making its judgments, other cases will come forward. How will the inquiry deal with present abuse, because we will not stop it now unless we really make a huge effort?
Lord Bates
That is perhaps why other inquiries are there. We have seen the incredible inquiry that has been taking place in Rotherham. There is no reason why action cannot take place. Justice Goddard will appear before the Home Affairs Select Committee on 11 February. We would not want to prejudge that, but assuming that she is cleared, thereafter the terms of reference and the appointment of the panel will be a key part of her initial objectives, and then to just get on with it as quickly as possible.
Baroness Benjamin (LD)
My Lords, in the 1960s, the 1970s and up to date, many children from BAME backgrounds were placed in care and were sexually abused—that is a known fact—and many have gone on to suffer greatly with mental illness and have never spoken about it. They need to do that with someone whom they can identify with culturally. What representation will there be on the panel with whom those older people will be able to identify, so that they can finally speak out about the horrific abuse that they have had to go through? They need to have someone whom they can identify with before they can come out and say exactly what has happened to them. Will there be BAME representation on the panel?
Lord Bates
The panel’s composition has not been agreed yet; that is something on which Justice Goddard will rightly take the lead, but it is also very important that BAME community leaders and other senior figures in those communities urge people to come forward. I know that it is painful, but there is support. The greatest contribution that they can make from the experience that they have been through is to try to do everything they can to ensure that it does not happen to other people.
Baroness Scotland of Asthal (Lab)
My Lords, in commending the Government for now coming forward with a statutory inquiry, can I ask the noble Lord whether he agrees that it is a matter of great regret that it has taken so long? There are a number of lessons therefore to be learnt about the issues that any Government should take into account when considering whether to have a statutory inquiry. Particularly on issues pertaining to vulnerable children, does he further agree that now is the time to set out a proper procedure to assist any new holder of an inquiry to know how efficaciously to put in place the preparatory processes which should be in place if anyone is to undertake a job as huge as this one will undoubtedly be?
Lord Bates
The noble and learned Baroness is absolutely right, in the sense that we all learnt a huge amount through this process. The Home Secretary has apologised—she apologised in October because she felt that she had got it wrong and let down the victims. That was a key point. When it was initially set up, the model was the Hillsborough inquiry, which had been quick and effective, got to the heart of the issues, identified some issues for the police to follow up and managed to command the confidence of those people who had suffered because of those events. That was the model. It did not work on this occasion, so we now have a statutory inquiry. We are learning as we go, and the sadness is that sometimes you learn through not getting it right.
The Earl of Listowel (CB)
My Lords, I thank the Government for setting aside £2.85 million and other additional funds to meet the therapeutic needs of those touched by this inquiry. However, can the Minister make it quite clear whether the inquiry’s remit includes recommendations on what therapy should be available to adults who experienced sexual abuse and that if, for instance, the recommendation is for long-term talking therapy, either individually or in a group, there can be some expectation that resources will be found to meet those therapeutic needs?
Lord Bates
I think there is some very deep expertise among those in the charitable sector who have been working on this. My right honourable friend the Home Secretary has had conversations with the Health Secretary about what mental support can be made available to victims and survivors of these crimes. We are learning about that process, but we will provide that additional support as well as the support that we have provided to the voluntary organisations which already do tremendous work in this area.
Lord Morris of Aberavon (Lab)
My Lords, will there be updates to Parliament from time to time on target dates for reporting in order to try to avoid another Chilcot?
Lord Bates
That will be very important, and of course your Lordships can routinely hold the Executive to account through the provision of reports. Given that this inquiry is independent of government, it will also be important that systems and processes are in place by which both Houses of Parliament can be regularly informed about progress.
Lord Scriven (LD)
My Lords, the Minister mentioned the Rotherham report. The report out today finds that Rotherham Borough Council has been involved in covering up information and suppressing whistleblowers, and it concludes that those closely associated with past failures need to let others make a fresh start. Does the Minister agree that any officer or councillor who is implicated in that report, or who stood back and did nothing, should resign immediately from Rotherham Borough Council?
Lord Bates
The Statement made in the other place by the Secretary of State for Communities and Local Government was a damning critique, based on Louise Casey’s work. I understand that in fact the entire cabinet of Rotherham Borough Council today resigned en bloc, and commissioners are in the process of being appointed while the position is resolved. In doing so, cabinet members did the right thing in recognising their culpability and their failing of the children of Rotherham.
Baroness McIntosh of Hudnall (Lab)
My Lords, following the question from the noble Baroness, Lady Walmsley, and the possibility that there may be some interim reporting as this inquiry progresses, and reflecting on the disappointment that everybody feels about how the Chilcot report has evolved, can the Minister say what effect the so-called Maxwellisation process is likely to have on the progress of this inquiry? I assume—although I may be wrong—that people who give evidence and are subsequently criticised by the report will have to be consulted about how that criticism is made public.
Lord Bates
Of course, a lot of the work which will be done by the inquiry will be in the public domain. That is one of the major differences that we will see between the two inquiries. However, it is very important that it does not drag on and that we get to the heart of the issue as quickly as possible, learn the lessons and ensure that those who are responsible for the failures and for the deeds that took place are actually brought to justice.
Lord Stoddart of Swindon (Ind Lab)
My Lords, can the Minister clarify, for the avoidance of all doubt, that this inquiry will not be delayed when it is ready for publication by having to consult those who might be named critically, ensuring that they have the opportunity to see what is said about them?
Lord Bates
That was the point raised by the noble Baroness. In many ways, this highlights one of the difficulties that we have had to wrestle with. Because of the way in which the independent panel was set up before, the Home Secretary had a degree of control over it, but that was felt not to give confidence to the survivors. Then it was set up under the Inquiries Act 2005, and that degree of control was lost. There are no easy solutions to the problems that we are having. That is why the appointment of the chairman is so critical; she is somebody who is very focused on getting to the heart of the truth and doing so expeditiously.
Lord Elystan-Morgan (CB)
Is it not the case that delays such as these, particularly in the case of the Chilcot inquiry, are very much to be regretted? Nevertheless, all such inquiries are bound by the rules of natural justice, and Maxwellisation is only a crystallisation and a spelling out of those particular rules, and cannot be avoided.
Lord Bates
That natural justice element is there. Also we are very conscious that sometimes people have been wrongly accused and their lives have been destroyed as a result. So it is an onerous responsibility on all of us to make sure that we get this right and do so in a calm and focused but absolutely resolute way so that we learn the lessons of how we can protect our children in future.
Lord Laming (CB)
My Lords, does the Minister agree that people who are giving evidence to this inquiry may expose things about their earlier lives that are extremely painful for them? Reliving those experiences can be very traumatic and damaging if not handled properly. Would it be the Home Secretary’s intention to make sure that there is proper support for those who are invited to give evidence to the inquiry?
Lord Bates
The noble Lord is absolutely right. There are two elements here—one is the emotional price and the other is a financial price which people pay in coming forward. We want them to come forward; we do not want anything to be a barrier, so the Home Secretary believes that it is absolutely critical that we have in place sufficient resource to be able to meet their needs and care for them when they do the courageous thing of coming forward and reliving those horrific experiences.
Counter-Terrorism and Security Bill
(9 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I shall speak also to Amendment 13B. Clause 25 provides that “due regard” must be given—I emphasise the word “due”—to,
“the need to prevent people from being drawn into terrorism”.
I have to say, preliminary to speaking to the detail of this amendment, that the more that I have thought about it, in one sense the less concerned I am about Clause 25(1). It is not the heavy duty that in some ways it has been presented as, but probably in some ways it simply encapsulates common sense. That is in one sense. Where I find a real problem is in the elaborate infrastructure or superstructure—I am not sure which it is—that has been built around this simple proposition and the context in which the clause, and the whole of Part 5, is now being viewed: the feeling among the Muslim communities that they are being got at. That is why I am still of the view that it would be far better not to have a statutory duty with all the bureaucracy, costs and difficulties that that carries. However, my amendment is much more modest than that principle.
As I said, Clause 25(1) provides for “due regard”. Under Clause 28, the Secretary of State is to issue guidance, and under subsection (2) of that clause the authorities must “have regard” to the guidance. Therefore, is the heavier duty the duty in Clause 25? Is there significance in the difference? Is it technical perhaps that Clause 25 is about a statutory duty and that Clause 28 is about guidance, which does not have the same status as legislation and therefore less regard might be had to it? However, what was a two-faceted question became triple-faceted when the Government laid an amendment on freedom of expression in universities. I do not want to anticipate the debate on that issue but I note that the institutions are to pay “particular regard” to the freedom of speech duty in the 1986 Act. So we now have three levels. Indeed, the Secretary of State is to have “particular regard” to that duty when issuing guidance and considering directions.
It is clearly important to understand the relative weight of these terms. In respect of education, perhaps the freedom of expression duty, because it prompts particular regard, trumps the duty concerning preventing people being drawn into terrorism. On reading all this again, I have to say that, as well as being about the relative weight, it is about which duty is the one in the new clause. In other words, the hierarchy seems to be particular regard, due regard and then plain regard. I am looking for assistance from the Minister on this.
Amendment 13B provides that,
“each specified authority shall have”—
why not?—
“regard to the impact … on local communities”,
which I have put in the plural, and on people connected with the authority, and,
“of the manner of the exercise”,
of this on local communities.
Among various briefings over the past few days, I have received the response to the Prevent duty guidance consultation from the London Borough of Sutton. I should like to share with your Lordships some of the comments that have been made. It states:
“There is a further issue of risk of negative impact from the duty if it is undertaken without careful consideration of local context. There is already evidence to suggest that the delivery of interventions such as around female genital mutilation and honour based violence adding to polarisation of communities. The interventions are important but must be delivered with understanding”.
In the response, a young Muslim woman is quoted as asking,
“‘why in my class are the girls taken out and spoken to about FGM and honour based violence and everyone looks at me and the other girl in a headscarf—these things have nothing to do with my life and are not risks I’m interested in. I’d rather know more about how to stay safe walking across my park’”.
As the London Borough of Sutton response says:
“The guidance is silent on such issues”.
The phraseology of this amendment was prompted by an amendment moved by the noble Baroness, Lady Smith, towards the end of the last day in Committee on the new Privacy and Civil Liberties Board. We have quite properly spent time in our debates emphasising the importance of a positive approach to community engagement—in other words, engagement, not disengagement—and it being a continuing process. Time and again, it has been put to Members of your Lordships’ House that the Muslim communities feel that they are viewed as the problem; namely, that if you are a Muslim, if you are not a terrorist you are a potential terrorist and you need to prove that you are not. Obviously, that is the most enormous slur or slander on the vast majority of Muslims, and it is very counterproductive in that it is polarising and alienating.
My amendment refers to the impact on communities, pupils, clients, patients and so on. As has been said to me, there are questions about workability, functionality and encroachment into the private sphere by the state. I mention the manner in which the duty is exercised because attitudes show in actions and words, and we all know that it is not only what we do but the way that we do it. I beg to move.
Baroness Sharp of Guildford (LD)
We had a considerable debate in Committee on these issues. I shall speak to Amendment 13B and about the danger of making the Prevent strategy statutory rather than voluntary and the fear that it might prove to be counterproductive. It is clear, however, that the Government feel strongly that these powers need to be statutory to ensure that those authorities which to date have lagged behind in their observance of the Prevent strategy recognise their obligations.
Amendment 13B, therefore, takes a somewhat different tack, as my noble friend mentioned. We had some discussion also about the importance of community involvement and working with the grain of community culture and the mores in different areas. In other words, it is vital that the implementation of the Prevent strategy should be flexible in approach and take into account the sensibilities of different communities.
These points were stressed, in particular, by the noble Baroness, Lady Warsi, and my noble friend Lady Hussein-Ece—neither of whom is in the Chamber today—in relation to Muslim communities. Again, this point was raised in the example quoted by my noble friend Lady Hamwee of the advice given by Sutton. However, it applies just as much to other communities, where institutions and customs will vary from one to another. In some, the civic organisations—the mayor’s office and the agencies run from that office—may be the dominant players; in others, organisations such as the YMCA, third sector youth groups or faith groups may be most influential. It is a matter of recognising that one size does not fit all. Those behind the Prevent strategy must work with the grain of each community rather than trying to impose a standardised agenda on all.
Baroness Afshar (CB)
My Lords, I should like to speak in defence of the amendment, because, more and more, parliamentary legislation is identifying Muslims as “the others”, or the enemy within. The “otherisation” of an entire community through insensitive approaches which do not give them the leeway to fit in is the surest way of driving them away and towards actions that are undesirable on all sides, and which their religion forbids.
If people are defined by their religion, and if the strategy is such that they cannot find a person to whom they can comment or a position to which they can adhere, then, given the difficulty of the alienation created by these labels, I fear that violence will become an alternative. I hope that the House will take heed and offer a far more inclusive approach rather than one which is intent on labelling certain groups and faith groups as “others”.
Baroness Buscombe (Con)
My Lords, I support my noble friend the Minister as I suspect—I do not know—that he will not agree to the amendment.
First, I say to the noble Baroness who has just spoken that there is no mention of a particular community in the legislation. It is because, as we all know, it is predominantly people from the Muslim community who have been carrying out these appalling atrocities that those labels are being banded about. The Muslim community has to accept and understand why that is.
Furthermore, the other day I heard about something which I think amplifies why what the Government are seeking to achieve is incredibly difficult. I understand why they want to put this duty on a statutory basis. What I am going to say is almost more shocking to me than what happened in Paris. Somebody I know quite well was telling me the other day that his wife was shopping in a supermarket about three weeks ago in Manchester. She was scouring the shelves, as we do, when she stopped because she could not help overhearing a group of young British Asian Muslim girls talking about going to Syria.
This makes my heart jump when I talk about it and when I think about it. What does that say? It says that there are young people out there of different ages, and probably from different financial backgrounds, who have varying exposure to other faiths and so on and who, we are now hearing, find the idea of going to Syria quite cool. In other words, the importance of Prevent and of the need to try to deter these young people from thinking that somehow it is the right thing is absolutely paramount now. Therefore, we have to find every which way to send out a message, even though it may seem rather severe because it is on the face of the Bill. The threat that we face is severe.
Some of the people coming back from Syria now have carried out the most appalling atrocities. We do not want them talking to these girls, whether it is in supermarkets, in schools or in clubs—wherever it is—and encouraging them to think that it is cool. There has to be another point of view. There has to be a way that we encourage—we urge—all public authorities to do what they can to help these girls and many others like them who may be taken down the wrong path. I understand where my noble friend is coming from and the spirit of these amendments, but I do not think that we should shy away from sending a powerful message through this legislation that we have to do everything to support young people in preventing harm.
Baroness Brinton (LD)
My Lords, my name is attached to Amendments 13A and 13B. I want to comment on my noble friend Lady Buscombe’s contribution a minute ago. I am not sure that it helped the Minister. I think it explained why we need Amendments 13A and 13B, because the most important thing about implementing Prevent is to recognise that each of our communities differs and that each community, area and specified authority should have due regard to the impact in order to understand it and to pass that message back to central government to understand the change in the nature of terrorism and radicalisation.
That is why I believe that Amendment 13B is valid. It is an extra tool in the box to make sure that we are monitoring what is happening, at whatever level and in whatever specified authority, to the range of people it is going to affect—including, interestingly, pupils who are under sixth form and under student age. What is happening is not consistent across the country. There may be young girls in one area talking about going to Syria; there are young Muslim British girls in other areas who are appalled by that. As a society we need to understand the nuances of that. The briefing that we have had from the Muslim Council of Britain sets that out very clearly. The one thing that we must do is to make sure that we do not have alienation on a grand scale. We need to understand that what is happening is not the same in every single community.
Lord Scriven (LD)
My Lords, I, too, support my noble friend in Amendment 13A. I want to share my experience as a former leader of Sheffield City Council to say how difficult this is. We make a grave mistake by talking about the Muslim community as though it is a homogenous group of people. They are people with many different beliefs, different processes and different understandings of what is happening worldwide. When I was leader of Sheffield City Council, very strict central guidelines came in with Prevent. That ended up setting not just community against community but different people of the same community against each other, because we were not allowed to have leeway to make judgments or to put in place policies and practices that were relevant to our local context.
What became clear to me, and to many other council leaders across the country, was that unless we got it right from a bottom-up approach, by working with and for those different people in the community, we would alienate more people than we brought in. One of the key findings of the Audit Commission report on the last Prevent programme back in 2008 was that there should be more of a bottom-up than a top-down approach. I have no doubt that the Government’s intentions are well meaning. I have no doubt that there is a view that if you have a set of guidelines from somebody in Whitehall, it is applicable across the country. However, my personal experience tells me that it is best to be more bottom-up than top-down on these issues, otherwise we will not just set community against community but cause tension because of the people within those communities who have different opinions.
I ask the Minister to consider this amendment very seriously. Past experience of my own and the Audit Commission report of 2008 make it very clear: a top-down approach which does not take this into consideration as a major part of implementing Prevent will have unintended consequences and will mean that we have good intentions but bad implementation of something that we all support.
Lord Judd (Lab)
My Lords, I, too, commend this amendment for very serious consideration by the Government. We all have different experiences in life. As the House will know, I have spent a good deal of my life with the developing world, and have learnt a great deal from the experience. To put it as succinctly as I can, if I have learnt one overriding message above all, it is that if you are trying to strengthen communities you must not talk at them or about them but with them.
I may have mentioned this in the House before and, in that case, I do not apologise for repeating it. I remember the Bishop of San Cristobal making a brave stand for the Indians in Chiapas, in Mexico, who were being persecuted very badly. I said to him, “Have you got a message for us back in Britain?”. He said, “Yes, I have. What is important is solidarity. You speak about people, you talk to them, but how often do you really listen to them, work with them and build with them their strength and future?” We cannot overemphasise the danger and the urgency in this situation, but whatever we do, we must not inadvertently stereotype people and put them on the defensive, because that does not help. Even in the most normal times—if we can talk about normal times with all our recent experiences—successful policing always seems to me to be the policing that works with the community and not just in it. From that standpoint, this amendment touches on very important principles about building confidence and building upwards.
It strikes me, just from my experience as a citizen, like most other people in this House, that the great horror of terrorism is that it involves a very small number of people. Terrorism works most effectively when there is a climate of ambivalence around the people who do the terrible things. There are people who sometimes feel, “I could never do that, and it’s horrible, but I can understand people doing that because of how they find the reality of living in this situation”.
Lord Hussain (LD)
My Lords, as somebody who has been deputy leader of Luton Borough Council, I support my colleague’s amendment. Luton has been in the media because of its extremists, and we do have a small number of people who hold extreme views. Nevertheless, it is on record that out of the 22—or now perhaps 24—mosques in the town, none of them allows those few extremists to use its platforms to spread their messages. Some of them have worked with ex-offenders and those who might have been involved in other activities.
Might I give an example of how this is going to affect them? One of the imams of those mosques, whom I knew very well, was working on a project with ex-offenders. It was a successful, well recognised piece of work that he had been involved with for years. He had worked with internationally recognised charities in Syria. Recently, when he gave in his passport to be renewed, the passport was held. We do not know the reasons; he has approached me and said, “Can you help me?”. He has tried to speak to the Passport Office; he spoke to the crime commissioner and his local Member of Parliament, but he is not getting anywhere. He said to me, “Lord Hussain, if I have done something wrong, just tell me that I have done something wrong. If it is wrong for me to go to work with a charity in Syria, I will not go to work with those charities in Syria, much as I would like to. But I don’t think I have done anything wrong”.
We have to give proper training to our staff in order to carry out these laws. Experience shows what went on when we tried to implement stop and search, a piece of legislation that the police actually admitted that they were not sufficiently trained to carry out. My fear is that we are going to alienate communities if we do not accept the amendments, which I support.
Baroness Smith of Basildon (Lab)
My Lords, I rise briefly on this. I was reflecting on my own student days when we had serious problems with extremists in Leicester, but extremists as referred to in the Prevent draft guidance—from the extreme right-wing. We had numerous problems and things were at times quite frightening. I also recall attacks on gay bars in London by extremists who were anti-gay. We have to be very equal and balanced when we talk about extremism.
I was grateful for the comments of the noble Lord, Lord Scriven, when he talked about Muslim communities as being as broad and wide as any other communities that share a set of beliefs or religion. I can equate that with some Muslim friends of mine who do not all think the same. I was slightly disappointed by the comments of the noble Baroness, Lady Buscombe. In my experience, when there have been attacks where Muslims have been blamed or some Muslims have been responsible, the greatest condemnation has come from those who are Muslim.
Baroness Buscombe
I am grateful to the noble Baroness for giving way. I never in the least bit insinuated that that was my point of view. I was just trying to explain why people out there have applied labels to the people who have carried out these atrocities. That is nothing to do with my point of view. I would never label that community as being one. I think that various noble Lords misunderstood me and I am sorry if they have misunderstood me. That was not what I was talking about. I was talking about the fact that this legislation does not actually mention any particular community—that is nowhere in the Bill—and therefore presumption should not be made in that regard.
Baroness Smith of Basildon
That clarification is helpful and I am grateful for that. I did not know that the noble Baroness was able to intervene on Report and was unsure whether to accept the intervention, but it was a very helpful clarification.
As the noble Baroness, Lady Hamwee, said, I first raised this issue about the impact on communities when talking about the Privacy and Civil Liberties Board. On this issue the Minister and other noble Lords have in numerous contributions made it clear that the views of communities and the impact on them must be taken into account. Looking again at the guidance we are debating—I sent out for copies—it goes some way to doing that but, given the comments that have been made, it may be that the guidance could be a little clearer and more explicit on this issue. I am sure that when exercising this duty under Prevent we will all be seeking the same objective, which is to prevent people turning to or being drawn into extremism that could lead to violent behaviour. The sentiments are exactly right and what every Member of your Lordships’ House has said since the beginning of the debate, but if the noble Lord could clarify that and put it on record, and perhaps consider how the guidance could be made more explicit in that regard, that would be helpful.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, this has been a good curtain-raiser debate because we will come back to this issue in five successive groups, looking at different aspects of the Prevent strategy. I was lulled into a slightly false sense of security by my noble friend Lady Hamwee when she said that the more she read, the more she felt that the clause made sense and her amendment was perhaps not necessary. She then elaborated on it in a way that provoked a very helpful debate.
I should say two things in the context of the remarks of the noble Lord, Lord Judd, and my noble friend Lady Buscombe. When we talk about communities here, it is helpful to start from the position that everyone is equal before the law. Everyone is of equal value and they have the same vote and the same rights. Everyone is equal in our society. That is part of what a democratic society is about and what we are seeking to protect and uphold through this strategy. In a sense, to overfocus on particular groups is sometimes not helpful. All these measures are about prevention of terrorism and extremism. As the noble Baroness, Lady Smith, mentioned, there is far-right extremism, such as the murder of Mohammed Saleem, an 82 year-old, and bombs being placed nearby. Some 25% of the people on the Channel programme at present are from extreme right organisations. We have faced a lot of violent threats such as violence in Northern Ireland. We fear violence from animal rights groups and far-right groups. There are a range of people who would seek to attack that central principle that all people are equal, and are of equal value and worth in our society. That is what is really under attack.
We must never be drawn into a situation where, for fear of offence, we are not able to speak that truth. I do not want to link too far back, but I am afraid my mind is still full of the horrors of what we were talking about before—
Lord Lamont of Lerwick (Con)
I apologise. I have just rushed into the Chamber and caught my noble friend’s words. What interests me is the phrase used in the guidelines to which we shall come later. That phrase is “non-violent extremism”. My noble friend has talked about extremism and terrorism, but will he talk specifically about non-violent extremism? We heard the remarks of the noble Lord, Lord Macdonald, about the teaching of Plato and other people talked about classes in which they had discussed the pros and cons of authoritarianism versus democracy. I once attended a meeting at Queen Mary College where a lot of Muslim students said—very politely and while making it clear that they opposed violence and terrorism—that they did not believe in western-style democracy. That was what the discussion was about. What sort of non-violent extremism are the Government worried about? Some people might consider some forms of modern art to be non-violent extremism.
Lord Bates
The definition that we are working to—I shall put it on the record for my noble friend as we have been through this a number of times in Committee—is,
“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs”.
We also include in our definition of extremism calls for the death of members of our Armed Forces. People may want to argue with that or take issue with it, but that is the definition we are working to.
The point that I wanted to make, in referring back to the earlier Statement, relates to something that the noble Lord, Lord Scriven, asked me about. In Rotherham, one of the central findings of Louise Casey’s report was that because of “cultural sensitivities”, people had failed in their duty to protect children at risk in that area. We cannot be in that position. All that we are interested in here is protecting the liberty of the entire community of the United Kingdom. That includes people of all faiths and none, from a range of different backgrounds and traditions. I wanted, first, to put a marker down for that principle—that we need to focus above all on the values of democracy and individual liberty, which some people would seek to undermine.
The second point made was a fair one—that what we should be doing with Prevent is, at best, not something imposed from the top down. The noble Lords, Lord Hussain, Lord Scriven and Lord Judd, and my noble friend Lady Hamwee made that point. That is why, in the consultation on the guidance, we have said that we want people to come up with their own plan. We cannot not have a plan for dealing with something that is focused on trying to undermine the things that free speech, universities, schools and British values are all about. We cannot step aside from that. But if ideas come from the bottom up, so much the better. That would be entirely compliant with the spirit and the letter of the Bill.
I shall now deal with a couple of the specific points in the amendments. Amendment 13A probes the use of the word “due ” in the context of the requirement in Clause 25 to have “due regard” to the need to prevent people from being drawn into terrorism. The amendment probes why the word “due” appears here but not in Clause 28, which requires specified authorities simply to “have regard” to guidance issued relating to compliance with the Prevent duty. This is quite a technical drafting point, but I will seek to address my noble friend’s concerns. The term “due” in Clause 25 indicates that, in the exercise of their functions, specified authorities will need to have regard to a number of different factors and the intention is that by stipulating that they must have,
“due regard to the need to prevent people from being drawn into terrorism”,
they place sufficient, proportionate weight on this consideration among the many that are relevant to the performance of those functions. In complying with the Prevent duty, however, authorities should have regard to only one guidance document, so there is not the same requirement to weigh up competing guidance and “due” is therefore unnecessary here.
Baroness Hamwee
Before the Minister sits down, has he had any inspiration about the term “particular regard” which might help the House?
Lord Bates
The short answer is that that inspiration is perhaps on its way to me. Perhaps I may come back to that on a later group of amendments, if the noble Baroness would allow me.
Baroness Hamwee
My Lords, I thought that I gave notice to the Bill team, whose heads are no doubt spinning with the speed, but something may be on its way.
Lord Bates
I can tell the noble Baroness that the “particular regard” element is actually in relation to the Secretary of State’s duty. It is to say that she must have particular regard to the duties under freedoms of speech. The difference between due and particular in this context is that the latter, in all cases, elevates the freedom of speech consideration among all the considerations that must be borne in mind, whereas specifying that due regard must be had to a factor simply underscores the importance of that factor while leaving the degree to which it must be elevated by the specified authority to be determined by the circumstances of the case.
Lord Phillips of Sudbury (LD)
I cannot resist asking: how is this going to go down with schoolmasters and the rest?
Lord Bates
I will leave that to the schoolmasters. However, in this regard, my noble friend should find this reassuring because we are saying that the Secretary of State should have a particular regard. That is a higher threshold to be aware of: the importance of academic freedom of speech within universities. It is a higher test and it is appropriate to say that before she offers direction, she ought to be able to satisfy whether that test has been met. I shall hand back to the noble Baroness.
Baroness Hamwee
My Lords, as I said, there is something of a hierarchy in this. “Having regard” implies proportionality, whether it is “due regard” or simply “regard”. I am grateful for the Minister’s explanation. However, I should like regard to be had to the impact of this part of the Bill and to the manner of the exercise of the duty. I am grateful to noble Lords who have commented and who have supported that proposition. The bottom-up approach is precisely what I am seeking to articulate.
The Minister and other noble Lords have referred to far-right extremism. I have acknowledged that in previous debates as well. In response to the noble Baroness, Lady Buscombe, it is the current context that has caused so many comments from members of Muslim communities. That is why so many of us have made such reference to it. I too am shocked—but not surprised—by her report of girls talking about going to Syria. She asked, “What does that say?”. To me, it says let us look for the best way of addressing this issue. All the comments I have made about a bottom-up approach are directed to doing that. The noble Baroness, Lady Afshar, said that, and she is nodding vigorously now.
I am sorry that the Minister has not been able to suggest further ways of acknowledging this approach and these concerns. However, the guidance is not complete. Although the consultation is closed, over the last few days responses have indicated that points made by Members of your Lordships’ House will be taken into account in finalising the guidance. I hope that this approach will have at least that status, as the noble Baroness, Lady Smith, suggested. That would give a degree of comfort. I beg leave to withdraw my pedantic amendment.
Lord Hope of Craighead
“( ) The general duty under subsection (1) is subject, in England and Wales, to the duty in section 43(1) of the Education (No. 2) Act 1986 (freedom of speech in universities, polytechnics and colleges), and in Scotland, to the need to ensure that freedom of speech within the law is secured in universities and other further and higher education institutions.”
Lord Hope of Craighead (CB)
My Lords, it falls to me to move Amendment 14 which is the first of five amendments in this group. I want to make it clear that the fact that I am speaking first and that my name is listed first on the amendment has nothing to do with the relative quality of the contributions which I and the three noble Baronesses who have added their names to this amendment made in Committee. My contribution was much lighter than theirs and I am sure they will have much more to say as the debate develops.
This group also contains Amendment 15, in my name and in the names of the noble Baronesses, as well as government Amendment 15D which is a significant amendment. It has been designed to meet some of the concerns which have been expressed about freedom of speech—especially academic freedom of speech in higher education institutions and, in particular, in universities.
As became clear in Committee, there are three aspects to this problem. The first is how to reconcile what the Government are proposing in the Bill as it stands—the duty which is being imposed on universities and other higher education institutions by the provisions of Section 43(1) of the Education (No. 2) Act 1986. This is a duty to secure freedom of speech in the institutions listed in this subsection. That is the first chapter, on how to reconcile these apparently competing duties.
The second deals with how to achieve the same reconciliation in relation to Scotland, bearing in mind that Part 5 of the Bill applies to Scotland just as it does to England and Wales, and that the 1986 Act does not extend to Scotland so there is no statutory duty on the universities and other institutions in those terms. Nevertheless, one would think—having regard to Article 10 of the European Convention on Human Rights, among other things—that the right to freedom of speech was just as powerful in Scotland as it was in the other jurisdiction.
The third point relates to how to reconcile the duty to secure freedom of speech with the guidance being proposed in the consultation paper. On the first point, I pay particular tribute to the Minister and his team for the way in which they have responded to the particular problem about reconciling the two competing statutory provisions. They have done so with commendable speed, given the rate at which we have been proceeding from Committee to Report. For my part, it seems that Amendment 15D, which the Minister will speak to later in the group, deals exactly with that point and makes it clear that the two duties can live together in the way in which the amendment describes. I express gratitude for what the noble Lord is proposing, which is a step in the right direction, although a small one.
My amendment is divided into two parts. The first deals with the position in England and Wales in relation to the 1986 Act; the second deals with the position in Scotland. That matter is not addressed by Amendment 15D, nor was it mentioned in the very helpful letter that the Minister wrote on 3 February which explains the reason for Amendment 15D but does not deal with the points that I raised about Scotland. I shall briefly repeat what I said in Committee. I drew attention to a fact that we are all aware of: that education north of the border is a devolved matter. We are dealing with a statute that deals with a reserved matter, the prevention of terrorism. There is an obvious need to reconcile these two matters, which no doubt is being achieved by discussions with the Scottish Government and consideration as to how best to meld the Scottish position with that for England and Wales.
The problem to which I tried to draw attention was this: the vehicle that is being used for the Prevent system, both north and south of the border, is all built into Part 5 of the Act. One would like to think that one would find everything one needed in statute to deal with the Scottish position, as one certainly does for dealing with the position in England and Wales. It is the absence of a reference to Scotland and the need to preserve freedom of speech, and at least respect the right to it, that have caused me concern. I raised this in Committee but so far there seems to be no answer.
There is a real puzzle about what exactly the Government’s thinking is about the position in Scotland, because the Bill is silent about it. It may be that because of the shortness of time the necessary discussions with the Scottish Government have not yet been completed; indeed, I would understand the need for those discussions to proceed to a solution. If that is the reason, then my fears would be allayed to some extent. But one is still left with the problem that the Bill will leave this House—and, if nothing is done about it, will no doubt leave the House of Commons as well—without anything in it that addresses the problem. With respect, that seems to be an unsatisfactory situation, bearing in mind that one is trying to achieve exactly the same thing in Scotland as one is seeking south of the border.
So there is something missing here, and I would be very interested to hear the Minister’s explanation of what is being done to address the situation. My suggestion when we talked about this last time was that once the Bill is enacted, I imagine that the only way one can deal with the Scottish position, if it needs to be dealt with, is by fresh enactment, which is a very heavy-handed way of dealing with the problem. One would rather see the matter dealt with now before the Bill leaves Parliament and is enacted.
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 14, to which I have added my name. I am grateful to the noble and learned Lord, Lord Hope, for combining his original amendment with the amendment by the Joint Committee on Human Rights. Once again, I declare an interest as emeritus professor at Loughborough University.
In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving “from co-operation to co-option”, as the noble Baroness, Lady Sharp, put it. Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it.
Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector. However, I am a realist, and, given the Minister’s welcome commitment to reflect and bring forward an amendment, which he has done, in a spirit of compromise, I have not retabled the JCHR amendment designed to exclude HE institutions from the duty altogether, or to provide a narrower exemption for their academic functions.
We all agree on the value of academic freedom and freedom of speech. As yesterday’s letter to the Guardian, signed by 524 professors—I can tell the House that trying to organise 524 professors is like herding cats, so to get them all to sign was quite an achievement—put it:
“One of the purposes of post-compulsory education is to foster critical thinking in staff, students and society more widely. Our universities and colleges are centres for debate and open discussion, where received wisdom can be challenged and controversial ideas put forward in the spirit of academic endeavour”.
Since last week’s debate, I have received a copy of a legal opinion provided for the University and College Union—my former union—by Robert Moretto QC, who has advised government departments, including the Home Office, in the past. I pay tribute to UCU for showing leadership on this matter. The opinion states:
“It is difficult in my view to square the Prevent duty with academic freedom enshrined in, for example, the Education (No. 2) Act 1986”,
and that,
“the Prevent duty as set out in the Draft Guidance appears to envisage that decisions may be taken”,
which prevent lawful speech.
The opinion also raises questions about possible incompatibility with the Human Rights Act in particular situations. This opinion lends weight to the JCHR’s concerns that the legal uncertainty created by the new duty in relation to existing duties concerning academic freedom and freedom of speech will have a seriously inhibiting effect on bona fide academic debate.
This takes us to the nub of what we have to decide today. While I very much welcome the fact that the Minister has tabled an amendment which makes explicit reference to the freedom of speech duty in the Education (No. 2) Act, it does not provide the clarity that HE institutions need. Here I am afraid that I part company with the noble and learned Lord, Lord Hope. An obligation to have regard is a familiar device of the legislative drafter when faced with duties which might conflict in practice. We see it in Sections 12 and 13 of the Human Rights Act, for example. The problem is that it still means that the Bill says nothing about the hierarchy of duties, and it leaves it to other things to influence decisions where the duties come into conflict. In effect, this means the Home Secretary’s guidance.
I note that the amendment in the names of the noble Lords, Lord Macdonald and Lord Pannick, refers to “due regard”, as does the new Prevent duty in Clause 25(1). There was an exchange a moment ago about “particular regard” and “due regard”, and I have to admit that I did not understand the Minister’s explanation of where he saw the difference. I am not quite sure why the Government have chosen “particular regard” in this instance as opposed to “due regard”. I think that the Minister said that he regards “particular regard” as stronger than “due regard”. It would be helpful if he could confirm that later, because my understanding is that “due regard” carries greater legal clarity because of the case law interpreting the same phrase in the public sector equality duty. If he can confirm that by using “particular regard” he wants it to be stronger than “due regard”, I would be happy with that.
Amendment 14 provides the necessary clarity by making it explicit that the new Prevent duty is subject to the existing freedom of speech duty. In Committee, the Minister said there are good reasons why the freedom of speech duty should not be elevated above the Prevent duty, principally that freedom of speech is not open-ended or absolute. Of course the existing freedom of speech duty is subservient to the laws the Minister listed in Committee, including criminal law on the use of threatening words or inviting support for a proscribed terrorist organisation, and the civil law on defamation. In other words, there is already a duty to secure freedom of speech within the law.
This amendment would not change that, but it would make it clear that the Prevent duty could not be used to prevent lawful speech, and the importance of protecting lawful speech is underlined by Universities UK in its response to the draft guidance. I cannot see why the Government should resist that if they genuinely believe in protecting freedom of speech and academic freedom in our universities. Universities are looking for clarity and an explicit statement in law that in the context of higher education, freedom of speech and academic freedom within the law carry greater weight then the Prevent duty. The amendment has the support of Universities UK, UCU and million+.
We have an important decision to make today. Universities and other institutions are looking to us to provide them with the clarity they need to operate the new Prevent duty in a way that does not have a chilling effect on academic freedom. When he has heard the debate, and in light of the strength of feeling expressed in Committee, I hope that the Minister might be prevailed upon to reflect further before Third Reading, even though I accept that he has already moved some way from the original position of the Government—and once more I thank him for that.
Baroness O'Loan (CB)
My Lords, I speak to Amendment 14 in the name of the noble and learned Lord, Lord Hope of Craighead. I have put my name to this amendment, which is designed to give absolute clarity to the continued protection under the law of freedom of speech in our universities, something which the Joint Committee on Human Rights strongly recommended in its legislative scrutiny report. This amendment is very simple. The noble Baroness, Lady Lister, has spoken clearly on its effect. It locates the statutory duty to protect freedom of speech squarely in Clause 25. It gives clarity to the fact that the new statutory Prevent duty, subject to the existing obligations of universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure freedom of speech within the law, is secured for members, students and employees of the establishment and for visiting speakers.
I thank the Minister for his movement and recognition of some of what was said in Committee. However, throughout his amendment he adverts to the duty in relation to freedom of speech in universities which is imposed by Section 43(1) of the Education (No. 2) Act 1986, in terms both of the relationship between the new duty and the duties imposed under that Act on the universities, and of making the Secretary of State have “particular regard” to that duty in any guidance or directions issued. The difficulty I have is that surely universities must not only have particular regard but also comply with their obligations under Section 43. Therefore if they are trying to have due regard to a duty to prevent people being drawn into terrorism at the same time as having particular regard to something which they must do anyway, there is a conflict for them in the hierarchy, to which the noble Baroness, Lady Lister, referred.
With respect, the amendment tabled by the Minister, Amendment 15D, is not as clear or effective as Amendment 14. I urge him to think very carefully about its limitations, and to accept the very real concerns articulated by so many leading academics and university vice-chancellors and chancellors that this Bill will seriously affect freedom of speech in the country. It will also affect our international reputation as the guardians of freedom of speech. The Prevent duty, as articulated in this context, would be a very blunt instrument. It will not prevent terrorists from using our universities as breeding and grooming grounds. That is best done by using more sophisticated means to identify and infiltrate groups who seek to recruit to terrorism through coffee shops, bars and things like that. We have a real battle to fight, but we must be cautious in the processes that we use so as to secure maximum impact in the fight, not to generate further unnecessary problems.
Lord Elystan-Morgan (CB)
My Lords, there is no doubt that freedom of speech in universities is utterly essential. Without it, there can be no concept of a real university. Freedom of speech is of course a basic human right, but in a university it is the very bedrock on which its concept is founded.
A week ago, in Committee, the noble and learned Lord, Lord Scott, reminded us that if a university loses freedom of speech—the right to discuss, examine, disseminate and comment on all manner of opinions in the widest possible range—it becomes an intellectual closed shop. I do not think that it could be better put than that. It is against that template that one has to consider all these matters.
I raise a point which follows very closely that of the noble and learned Lord, Lord Hope of Craighead. It relates to Section 43 of the Education (No. 2) Act 1986. The question is whether what is proposed by the Minister in Amendment 15D goes far enough. The fact that “particular regard” has to be paid leaves an open question as to exactly how the two concepts can sit together: the concept in Section 43 of freedom of speech in a university and the concept of statutory guidance, around which the clauses of Part 5 are built. To my mind, it still leaves a dubiety. That is why I support Amendment 14.
I am not sure exactly what wording should be used to improve the situation—it is always dangerous to try to make legislation on the hoof—but I should have thought that one could look to a different precedent. In Section 1 of the Children Act 1989, a court is enjoined, in dealing with a child’s case, to consider seven or eight different situations, but it is stated that the welfare of the child shall be regarded as the “paramount consideration”. Whether the word used is paramount or prime it could so be made clear that, where the two matters—the principles of Section 43 and those set out in the statutory directive—are in conflict, Section 43 should remain paramount.
Section 43 does not stand alone. Another very relevant section is Section 202 of the Education Reform Act 1988. That protects the employment of a person who may be teaching out-of-the-way subjects. Section 202 states that university commissioners,
“shall have regard to the need … to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.
Why has Section 202 not been included in the same bounty as Section 43 of the 1986 Act in the Minister’s amendment? I am sure that he will pay close attention to that situation.
I also wish to raise a point which may or may not have relevance, which is the position of Wales. Like Scotland, Wales enjoys devolved powers in relation to higher education. Does the problem identified by the noble and learned Lord, Lord Hope, apply to Wales? I do not think so, but I would like to be totally reassured on that point. These are not simple matters, but they are well worth our best and most detailed and concentrated attention at this very moment. I have very great respect for the Minister and indeed I have some sympathy with him, because 47 years ago—hard as that is to believe—I held exactly the same position in the other place as he does now, and dealt with the same subjects. These are matters which deserve our very best concentration.
Lord Macdonald of River Glaven (LD)
In speaking to my Amendment 14A, I again declare an interest as warden of Wadham College, Oxford. Last week in Committee I put my name to the amendment tabled by the noble Lord, Lord Pannick, the purpose of which was to remove universities entirely from the ambit of the Bill. I did so because of what seemed to me to be the self-evidently paramount importance of free speech in universities, and because the obligations that the Bill placed on universities appeared to conflict with their statutory duties under the Education Act 1986 to secure freedom of speech, not only in their institutions but for visiting speakers.
It is fair to say that in debate in Committee there was overwhelming support for the proposal that universities should be removed from the ambit of the Bill. I remain firmly of the view that the definition of “non-violent extremism”, which the Minister has recently set out again, is absolutely hopeless in its application to universities. This is because one can with the greatest of ease imagine all sorts of discussions, lectures and seminars taking place on topics which would be caught by the Government’s definition, and people in those lectures and seminars expressing intellectual views which would also fall under the definition. As far as I am concerned, it is hopeless for the Government to seek to apply such a definition to universities, which are particular places of debate, discussion and intellectual inquiry.
There was overwhelming support in debates—virtually every Peer who spoke did so in favour of the removal of universities from the scope of the Bill—yet, when winding up, those on the Opposition Front Bench made clear that they would be unable to support such a proposition, so last week I tabled a further amendment. The purpose of this Amendment 14A was to secure some reassurance that any risk that the Bill would undermine academic freedom would be mitigated, by placing in the Bill an obligation on universities to approach their duties under it in the light of their pre-existing free speech obligations under the Education Act. Like the noble and learned Lord, Lord Hope, obviously I was pleased when on Monday the Government tabled their own amendment, which in effect secures the same thing.
Like the noble Baroness, Lady Lister, I should have liked much more on this, for all the reasons which she articulated so ably. I should be delighted if the Government were minded to accede to her amendment. Nevertheless, it seems to me to be important that we secure the Government’s acknowledgment—and an acknowledgment on the face of the Bill—that these provisions apply to universities only within the critical context of their statutory freedom of expression duties. This is so that in future it cannot be argued that those duties are displaced by the passage of the Bill: they are not. The Government’s amendment seems to me to make explicit that they are not. I am grateful to the Minister for securing the Government’s movement, such as it is, on this important and fundamental issue.
Baroness Kennedy of The Shaws (Lab)
Today I found a piece of satire that said:
“Top universities a ‘breeding ground’ for Tories, warn Islamic groups”.
Accompanying this, there was a photograph of the Bullingdon Club from a certain era.
In my experience—and I, too, declare an interest as being the principal of Mansfield College, Oxford—universities are more or less breeding grounds for people who want to get a job. In fact, in many universities, there is not enough debate and sharing of ideas, because the real drama is around acquiring the kind of qualifications that will do well in the job market. Universities, as has been said, should and must be places for the exchange of ideas. Yet already there are concerns that, even as it stands, there are real pressures on universities around the issue of inviting speakers. For example, there was a piece in the Guardian’s online comment pages by Dr Karma Nabulsi, an academic at Oxford who speaks regularly at other universities, saying that constraints are already felt by universities—that if, for example, someone seeks to invite in a speaker on Islam, for comparative religion, some universities become very sensitive and anxious. If there is an invitation to a speaker on Islamic studies or the history of religion, anxiety is expressed and often the support of the police is encouraged and advice is sought from external sources. So the chilling effect is very worrying for the academic world.
When I chaired the British Council in that period from 1998 to 2004, we did a lot of work in eastern Europe and the former Soviet Union. One of the great things about going to universities there, when we did various projects, was how academics talked about the iconic value of academic freedom, which they associated with Britain and of which they had been deprived for so long. That is something that we should feel proud of. In this Chamber, particularly, we often go back to this business of the pride that we take in British values and wax lyrical about the importance of freedom and liberty—yet, at the same time, here we are, when it comes to the bit, going into retreat.
I support the position taken by my noble friend Lady Lister. I feel that universities should not have been included in this legislation and that voluntarism is the way forward. We should not be creating a statutory duty because adult institutions of learning are different. They are where the great debates happen—the exchange of ideas—and they are the crucible in which people formulate ideas and in which ideas can be challenged. You could create a different set of arguments as to why you exclude universities. However, given that that is not going to be the direction of travel—and I greatly regret that my Front Bench is being required to retreat from taking that principled stand—I urge on this House to consider the amendments proposed by my noble friend Lady Lister. I welcome and pay tribute to the Minister for seeking to keep pushing this issue to a better place, and I thank the Home Office for doing that, and for the efforts of those involved. However, we are still not there. We are getting a parity as between the duties, when we should be saying that academic freedom has to be prioritised; it should be the duty which has primacy, because it is so important and something that we value so greatly when we talk about “British values”.
I know that we are getting towards the closing days of this Parliament and that there is anxiety about not spilling over in our time, but I urge the Minister to go back before Third Reading and see whether we cannot have a formulation that gives primacy to academic freedom. The complaints and anxieties of the many academics as well as others in the academic world who have expressed concern are not trivial; they are being expressed for a reason. That is one reason why our institutions of higher and further education are respected around the world. We have to be the protectors of this, and I hope that we can find a formulation that is better than the one that we currently have.
Baroness Buscombe
My Lords, I have added my name to Amendment 14. This is one of those moments when I feel, as I suspect other noble Lords also feel, quite frustrated by the procedures of this House. In a way, it is a pity that we cannot hear from my noble friend the Minister about his amendment ahead of the debate. If that were possible we could perhaps give our reasons why some of us feel that, although we are hugely grateful to him for tabling it, his amendment is still—to put it politely—a little timid. There remains a lack of clarity. But there we are; we have the situation as it stands.
Obviously, I support Amendment 14. As a fellow member of the Joint Committee on Human Rights, I will not seek to repeat everything that other JCHR members—including the noble Baronesses, Lady Lister, Lady O’Loan and Lady Kennedy of The Shaws—have said already. We looked at this subject extremely carefully when we considered the legislation as a committee.
Although we are, as I say, grateful that my noble friend has brought forward his amendment, he will not be surprised to hear that there is still a lack of clarity. I think that that was demonstrated by the letter in the Guardian yesterday. It was sent by 500 signatories who are genuinely concerned about academic freedom. I would point out one part of the letter in particular. It states:
“Ensuring colleges and universities can continue to debate difficult and unpopular issues is a vital part”—
of responding—
“to acts of terror against UK”,
citizens. It said that it is important,
“to maintain and defend an open, democratic society in which discriminatory behaviour of any kind is effectively challenged”.
We want to be sure that when this legislation leaves your Lordships’ House, there is real clarity and an acceptance and understanding among the academic community and others that we have done all that we can to ensure that the Prevent duty cannot be used to prevent lawful speech. As I said on Second Reading and again in Committee, for so many young people, university is their first opportunity away from home to be able to debate openly and freely and to hear other points of view from different cultures. Therefore, to send out a message that that possibility has been diffused in any way would be a great mistake.
I wonder why—as the noble and learned Lord, Lord Hope of Craighead, has said—my noble friend the Minister’s amendment does not deal with Scotland. Perhaps that silence is due to the Bill team’s lack of time to respond to our request for referencing Scotland. Perhaps it is to do with negotiations; perhaps it is because the Minister has a strong argument for why Scotland should not be included. We are, as I said, somewhat compromised, because although we will hear from my noble friend, we will not be able to respond.
I hope my noble friend is able to take on board the fact—I think that this feeling is shared around your Lordships’ House—that we have come an awfully long way since the meeting that took place only, probably, three weeks ago. My noble friend as well as the Minister from another place came and gave us and others in another part of your Lordships’ House the time to listen to the concerns of the academic community and others about these clauses. I should perhaps declare that I am not a member of the academic community. We very much hope that we can be more persuasive today.
Lord Morgan (Lab)
My Lords, this has been a long and fascinating debate and, like other speakers, I pay tribute to the Minister for his rationality, willingness to conciliate and awareness of the seriousness of these issues. Like my noble friends who have spoken, I wish that we were able to go further and to have a government amendment which expressed terms such as “statutory duty” and “the role of university personnel” with much greater clarity. As on previous occasions, I wish our Front Bench had not been less than wholehearted on this matter and taken a view, which many of us knew nothing about, which apparently has guaranteed academic freedom—so that is all right then. It is not a satisfactory position.
I speak not as a party person but as someone who has spent his entire career in the university world. I was a university teacher—I am a university teacher now in my retirement in King’s College—and I was a vice-chancellor for seven years. Universities are a unique marketplace for ideas—that is their ultimate purpose. They may additionally assist with creating wealth and giving local employment but their main function is to be uninhibitedly and courageously involved in ideas, particularly language. If we are talking about terms such as “terrorism” or elements which are conducive or similar to terrorism, you need extreme clarity, including the capacity to debate these matters.
I was concerned when we had a helpful meeting the other day that the reasonableness of the Minister was not paralleled by his government colleague, who talked not about terrorism but about pathways to terrorism. It seems that if you produce a concept which is in the mind of terrorists you are automatically creating a pathway. However, pathways cover many things. They can emerge in an unexpected way and can lead nowhere or everywhere. My friend, the noble Lord, Lord Elystan-Morgan, referred to the University of Wales, where he knows I had the pleasure of working with him, and how a pathway, when we were talking about the theme of nationalism, led to one or two misguided people blowing up buildings. That was not a necessary consequence of that debate. The effect of opening up the theme of what nationalism was—its different political and cultural expressions and so on—had a civilising effect and nationalism resulted not in bombs but in devolution being debated in this House and on the statute book. Pathway is a dangerous concept. Non-violent extremism has been dismissed as nonsensical by other noble Lords and I need not stress that again.
I wish to make two more points: this duty is unworkable and it is wrong. It is unworkable because I can say that as a vice-chancellor—perhaps other vice-chancellors will disagree—it would not have been possible to carry out this role, this statutory duty: we would be obliged by the nature of our professional role not to apply it. As I say, the purpose is for universities to be free to debate ideas. You would be forced to discuss with student societies who they were going to invite, whether alternative views would be presented and what the general tone would be. You would, in effect, be censoring or monitoring the interchange of ideas in a way which is not compatible with being the head of or a senior figure in a university.
The nature and the force of the statutory duty and the way in which it would be exercised are still not clear in the Bill. It appears to have satisfied our Front Bench but it has not satisfied me or people such as my noble friends who have first-hand experience of working in universities. So, first, it is completely unworkable. It would destroy the very essence of collegial collaboration within a university institution and the element of trust which is absolutely essential to the way in which a university operates.
Finally, this duty is wrong. It is trying to undermine precious, unique and special institutions in this country which are honoured all over the world. These institutions do different things: they are impressive for their intellectual standards, which are widely acknowledged and admired, and for their internationalism. The whole point of being in a university is that everyone is equal there; you do not identify or marginalise any particular minority groups. To even suggest that universities should do anything other than what they do and act as a kind of thought police is deeply damaging to something which has been a pride of the history of this country for many centuries.
I hope that the Minister, with the tolerance, rationality and courtesy that he has shown, will feel able to go further and pursue the path suggested by other noble Lords of removing universities from the Bill.
Baroness Deech (CB)
My Lords, I declare an interest as the former Independent Adjudicator for Higher Education, in which role I received complaints from students from every university. So I have that experience in addition to having spent decades at Oxford.
I take the unusual position that whether or not these amendments are passed it will make absolutely no difference to the law. They are tautologous. They say that one has to have regard to freedom of speech within the law. However, if the Bill is passed, freedom of speech within the law will mean that the law in this Bill is incorporated, so it will not take you any further.
Sadly, over the past 30 years academic freedom, which is one thing, and freedom of speech in the universities, which is another, have been savaged. I wish I could share the rosy view of academic freedom put forward by the noble Lords, Lord Morgan and Lord Elystan-Morgan. Some noble Lords may recall that in 1988 all university statutes were arbitrarily removed and new ones imposed without consent which removed academic tenure. The House must know that the selection of students is controlled, one way and another, by the state to the nth degree, as is the direction of research. I do not have the time to go into it but academic freedom has been greatly undermined.
As to freedom of speech, again, sadly, there are umpteen laws that reduce it in the university. I do not have time to go into all of them but they include protection against harassment and racial and religious hatred. Can your Lordships imagine what would happen if someone turned up as a lecturer or as a visitor to say that one race was inferior to another? They would not get to the end of their lecture, I can assure you. There are some things that ought not to be said—and, indeed, are not said—but there is no absolute freedom of speech. The Equality Act 2010 put special duties on universities to promote racial harmony between different groups on campus and the Terrorism Acts of 2000 and 2006 likewise curbed freedom of speech. I am sorry to shatter the illusion but it is not there any more, not as we would wish it to be. To say that in promoting the objects of this Act, as it will be, the universities will have to have regard to freedom of speech within the law simply means that they will have to have regard, whatever that means, to freedom of speech as already curtailed as I have described, plus as it will be curtailed, for good or ill, by this Act. So I do not mind whether or not the amendments are accepted because they do not mean much legally.
I remind the House that it is not in the academic arena where the trouble, if any, arises; it is with the visiting speakers and the societies. Under the Education Act 1986 universities already have onerous duties in regard to risk assessment, stopping speeches if necessary and checking on visiting speakers. They have codes of practice on this which, I have to say, are very often ignored. There is nothing new about this. They chafe, but it has been the law for 20 or 30 years that there have to be checks on visiting speakers.
However, this has not stopped some speakers from being howled down. Again, I have not the time to give examples, but I can assure noble Lords that visiting ambassadors sometimes get howled down; that other speakers get hassled and jostled; that there are meetings where cries go up of “Kill the Jews” and that sort of thing, when the Middle East is debated. It is not a happy situation. I wish it were better, but it is not. Basically, I am saying that this will not make much difference. We should also recall that some 30% of those convicted of offence—
Lord Butler of Brockwell (CB)
I am very grateful to the noble Baroness for giving way. Will she accept that this Bill does make a difference, even with these provisions in it? Universities will now be under a legal obligation to follow directions imposed by the Government, which goes beyond the legislation to which she has already referred.
Baroness Deech
It is the amendments which I do not think will make any difference. Whether the noble Lord’s dire predictions will be the case remains to be seen but I am very worried about the situation that already exists with interference. I have a list—again I will not trouble your Lordships with it. There are lists of convicted terrorists who sadly went through our universities—the underpants bomber on the plane, the man who drove his car into Glasgow airport, and so on. I only wish it were as some noble Lords remember in their youth, but it is not. Because of the umpteen laws that we already have about circumscribing freedom of speech, whether or not we pass these amendments will not, in my view, make any difference, sadly.
Lord Deben (Con)
My Lords, we ought to realise that we are talking not just about the problems of terrorism but about something which has been much wider than that. I am very concerned about the situation in which we now find ourselves.
It is 55 years since my right honourable friend Kenneth Clarke and I debated with Sir Oswald Mosley in front of 2,000 students at Cambridge University. There were many who wanted him banned, but we said that if there was to be a new generation of students who understood the threat of fascism, they had to hear the arguments and we had to respond to them. We had the response because the Jewish Society went to huge trouble to give us all the evidence from Sir Oswald Mosley’s activities before the war. Noble Lords may remember that that would have been a time when we were a generation who knew nothing of this, but I venture to say that a whole group of people went away from university knowing how to argue the case and understanding what this very emollient, brilliant speaker was really like. It was from that moment that I became an even more enthusiastic supporter of the concept of the freedom of speech as a mechanism against extremism.
I want to say to my noble friend that we are at this moment in a very dangerous position. A close friend of mine, an Anglican priest—a man whom I would vouch for in any circumstances—has just been sacked as the episcopal chaplain to Yale because he dared to write a letter in response to others in the New York Times. It was a very moderate and reasonable letter in which he talked about the activities in Gaza of Prime Minister Netanyahu. No one in this House would have thought that an unsuitable letter to write, but he was sacked.
In the past few years, there have been many occasions in universities when people who hold unpopular views have been unplatformed in one way or another—for example, people who want to argue the case against abortion. I think that is an argument that it is proper to have on whatever side you stand. However, there are universities where it is almost impossible to have that debate.
One of the problems that we are faced with is that my noble friend has a real difficulty. We have a terrorist threat which is greater than we have had certainly in our lifetimes. It is a threat which is particularly difficult because it is associated not only in the popular mind but, because of certain facts, with a section of the community. Therefore, those of us who seek racial integration have to be extremely careful in the way in which we handle this threat, but we also have to recognise that it is a threat. It is not acceptable just to say, “Well, you know, we will just have to put up with it”. That is not where we are today.
I understand my noble friend’s problem, but I remind him that down the ages the threat of terrorism has been used to restrict the freedoms which the terrorists wish to remove. That is the fundamental problem. I worry immediately when we ask universities to inform upon and to investigate, and to assess what is a proper debate and what is not a proper debate, because I happen to believe that there are no improper debates in universities. There are improper actions as a result of debates; there are improper actions during debates; but to put a case and to argue the case is an essential part of university education.
I thank my noble friend for his amendment. If he had not tabled this amendment, I think I would have found myself very hard put to support any of this part of the Bill. However, I hope that he will have listened carefully to what others have said. I do not want universities to be able to use this as an excuse for interfering not only in these subjects but in others. That is my worry. It is not the worry as put forward in the excellent speech of the introducer of the lead amendment. My worry is that, by analogy, people will say, “Just as we have to think about terrorism in this way, so we have to think about this or that unpopular view”, whether it is an issue of left or right, an issue of morality or an issue of politics. I hope that my noble friend will give me an assurance that, if he feels that he cannot say that his amendment covers that, he will go away and think again to ensure that the narrowness which he hoped to apply to this matter is sufficiently safeguarded. I do not want to have a world in which today’s version of those students cannot have that debate with today’s Sir Oswald Mosley—with today’s fascists, communists, or extremists of any kind. If that were true, we would have sold out on a central British value.
Baroness Sharp of Guildford
My Lords, my noble friend Lord Deben may remember that the subsection in the 1986 Act was embedded in that Act precisely to combat the no-platform developments that had taken place in the 1980s. Like others, I hope that the Minister will have listened to this debate and may be able to give us greater clarification than there is in the amendment he has brought forward. We had a debate in the first group about the hierarchy of regard—due regard and particular regard—which perhaps has relevance to this. It would be good if one could feel that that was embedded.
Amendment 14C is in my name and those of my noble friends Lady Hamwee, Lady Brinton and Lady Williams of Crosby. So far in this debate, as we did very largely in the debate in Committee, we have talked about universities, and I was very pleased to see that the Minister’s amendment makes express reference to further education colleges. Many noble Lords may not realise that there are some 850,000 young people, aged 16 to 18 studying in further education colleges compared to 441,000 in schools. A very large number of young people in further education colleges—something like 100,000—are studying for higher education qualifications. So further education colleges are a very important part of the hierarchy.
I have a specific question for the Minister: where do sixth form colleges fall? There is explicit mention of further education colleges but there is no mention of sixth form colleges, which were in fact, under recent legislation, made into a separate category of college. Perhaps I can leave that thought with the Minister, and he and his Bill team can ponder on it and see whether it is perhaps necessary to make some minor further amendment.
Amendment 14C, which I want to speak to, is a very different amendment from the ones to date. It is a fairly straightforward amendment, which asks that the guidance, when issued,
“shall recognise the respective duties of specified authorities in the education sector … to secure freedom of speech … to promote tolerance and encourage respect for democracy and … participation in it … to offer a broad and balanced curriculum promoting spiritual, moral and cultural development”.
As I say, it is less specific, but in some ways a lot broader, than the other amendments that are being considered in this group.
Schools are already subject to a fair number of statutory duties which embody these issues. The Education and Skills Act 2008 requires schools to promote British values and respect for the civil and criminal law, to further tolerance and harmony between different cultural traditions, and to encourage respect for democracy and support for participation in it. The Education Act 2002, which is referred to in the Academies Act 2010, requires schools to offer,
“a balanced and broadly based curriculum which … promotes the spiritual, moral, cultural, mental and physical development of … the school and of society, and … prepares pupils at the school for the opportunities, responsibilities and experiences of later life”.
The Education Act 1996 includes duties not to express,
“partisan political views in the teaching of any subject”,
or to allow pupils to pursue “partisan political activities”.
We have rather deliberately widened the framework in the amendment we have put forward. It is important to recognise that very many young people of the ages of 15, 16 and 17 who are in schools or colleges are very susceptible to the propaganda of extremism. They are active users of Facebook and other social media and, as adolescents, are keen to challenge authority. Throughout their lives, they have often lived, through television, with violence and horror. Our education institutions, as a whole, have a very important role to balance these influences and, as we say in this amendment,
“to promote tolerance and … respect for democracy”.
We talk about British values, but surely at the heart of British values is freedom of speech.
Lord Judd
My Lords, not for the first time in my political life, I applauded every word of the noble Lord, Lord Deben. I hope that that does not embarrass him. Thank God for what he said, and I hope his noble friend the Minister listened, because it was a very powerful argument. In talking about his noble friend listening, I want to put on the record that I believe that the Minister we have leading for the Government on this debate does listen. What he has put forward today is an indication of how he listens and how he is prepared to argue in government for what he has heard. I beg him to accept that those of us who want to encourage him to persuade his friends to go still further are not doing this with any sense of hostility but are trying to support him in the pathway he has now chosen to take towards the position that the rest of us find ourselves in.
I hope that I will be forgiven if, just for a moment, I introduce an international perspective of a different kind in this debate. I am sure that I was not alone this morning as I heard and studied the reports of the latest depravity by ISIS. I almost despaired—if humankind is capable of this, what can happen? But then I found myself turning back very strongly to the conviction which I have had, probably tentatively, from a young age that peace, understanding, stability and decency are built in the minds of men and women. It is not therefore a cliché to say that we are in a battle for hearts and minds—we are. Central to that battle for hearts and minds—the powerhouse of it—is higher education and the universities. That is why the arguments that we have been hearing from all sides today have been so important.
I sometimes allow a little element of cynicism to creep into my mind and think that some of the proposals that come forward, not least what originally came forward from the Government here, might almost have been scripted by the highly intelligent, ruthless leaders of movements such as ISIS. This was almost beginning to do exactly what they want us to do in beginning to undermine and limit those things which are central to the fabric of everything that we say we believe in.
From that standpoint, I hope that the Government will see the profound dangers of a gigantic own goal and of a victory for the ruthless extremists. This is the time when we have to make absolutely clear that we stand for something totally different. The central powerhouse of that is thought, analysis and creative intelligence, and the workplace for that is the universities of our society. It is not just what course should be done, what is acceptable or what lecture is not acceptable; it is the whole atmosphere and ethos of the place. Anything that undermines that destroys something that is an absolute lodestar of the things we say we believe in.
Lord Pannick (CB)
My Lords, I added my name to Amendment 14A, to which the noble Lord, Lord Macdonald of River Glaven, spoke. I very much welcome Amendment 15D, tabled by the Minister, which goes a very long way to addressing the concerns that were expressed around the House in Committee and have been expressed again here today. It puts on the face of the Bill that these new Prevent duties for universities are to be read and understood alongside their duties to protect freedom of speech—and, indeed, that particular regard must be given to free speech.
Some noble Lords have expressed concern today about a lack of clarity, but free speech is not absolute, even in universities. It has to be balanced against other considerations; the balance must depend on the particular circumstances, and the guidance will be of particular importance in this regard. All the more welcome, therefore, is the amendment that we will discuss in a later group that ensures that the guidance must be approved by a positive resolution of both Houses.
I most respectfully do not agree with my former tutor, the noble Baroness, Lady Deech, that Amendment 15D will make no difference to the law of the land. I would expect the courts to say, reading the new clause as part of the Bill, that the Part 5 duties must not unreasonably or unnecessarily restrict or impede the performance of the universities’ core function, which is and remains to promote academic inquiry.
I have two questions for the Minister concerning his Amendment 15D. The first arises out of the fact that the amendment tabled by the noble Lord, Lord Macdonald, and me refers both to freedom of expression and academic freedom. The Minister’s amendment does not mention academic freedom. Can the Minister confirm—I hope he can give a positive response to this—that it is unnecessary expressly to mention academic freedom in his amendment, because in the context of a university, academic freedom is implicit in the very notion of securing freedom of expression? That would be my understanding, but I would very much welcome his reassurance on that.
Secondly, there are limits to the scope of the Minister’s Amendment 15D, because it incorporates the duty of freedom of expression in relation to three aspects of Part 5 of the Bill. New subsection (2) applies freedom of expression to the duty of universities under Clause 25(1). New subsection (3) applies this freedom of expression duty to the role of the Secretary of the State in issuing guidance under Clause 28 and the role of the Secretary of State when considering whether to issue directions under Clause 29.
However, there are two important aspects of the Part 5 scheme to which this new clause on freedom of expression does not appear to apply. One is the duty of universities under Clause 28(2) to “have regard” to the guidance, and the other concerns the duties of monitoring authorities under Clause 30. The freedom of expression duty applies to neither of those important matters, and I am concerned about that. So this is my second question. Will the Minister tell us—he might be unable or unwilling to answer today, but I would very much welcome an answer before Third Reading on Monday—whether there is a reason why his new freedom of expression clause, which I welcome, does not apply to Clause 28(2), the duty of universities to have regard to the guidance, or Clause 30, the duty of monitoring authorities? Would he please look at the matter before Third Reading to consider whether it might be better to include those matters also within this new provision?
Baroness Brinton
I have attached my name to Amendment 14C, and rather than repeat the points made by my noble friend Lady Sharp of Guildford, I will say just that I endorse them. I will make a comment and then ask my noble friend the Minister a question on his Amendment 15D—which, as many other noble Lords have said this evening, takes us some way forward. I am grateful to the Minister and his civil servants for coming back with a proposal that means that we can actually discuss some of the boundaries—and therein lies my question. This relates to guidance: in particular, we discussed in Committee the revisions of the guidance to some of the very specific duties about checking presentations and making sure that people had been trained in specified authorities.
I have a more fundamental question about paragraph 50 in the current guidance, which I do not believe was proposed to be amended. It says that,
“universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism”.
It is the phrase, “their responsibility to exclude”, that I want to focus on.
I am not sure that the qualifying statement,
“that support or are conducive to terrorism”,
is sufficiently clear as to provide reassurance. It is already illegal to directly or indirectly encourage others to commit terrorist acts, and universities are obliged to exclude those who do so. Beyond this, it is not clear which views should be understood to be conducive to terrorism. Non-violent extremism is not generally unlawful, and the Prevent strategy defines extremism as,
“vocal or active opposition to fundamental British values”.
These values and concepts include those that are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.
In a letter to the Times on Monday, my right honourable friend the Secretary of State for Business, Innovation and Skills stated that the Bill,
“addresses terrorism and not extremism”,
which he described as, “a highly subjective concept”. I hope that the Minister will be able to confirm that the Secretary of State’s comments will be fully reflected in future versions of the guidance; and that universities will not be required to exclude from campuses those who, while acting within the law, advocate views that are classed as extreme.
Lord Phillips of Sudbury
My Lords, I will briefly remark on the labyrinthine complexity of the law in relation to education and universities as it is already. I have a terrible anxiety that this Bill—well intentioned as it may be—along with the guidance, will add a dimension of further complexity that will be counterproductive to a quite significant degree. It is going to make the task of the authorities in schools and universities—and I should declare an interest as a former chancellor of the University of Essex—burdensome to a remarkable degree. I support this group of amendments, but very much hope that the Minister, who has a gargantuan task in shepherding through this Bill, will tell us whether there is any prospect at all that this side of the finalisation of our deliberations, anything could be done to cast light and clarity on what I believe is a forest fit only for lawyers.
Finally, I echo what many others have said, most recently the noble Lord, Lord Deben: that it is so easy to contrive a situation in legislation that is counterproductive. I have a fear bordering on a certainty that the good intentions of the Bill will prove to be just that: because what I believe the Government have not taken nearly enough into account is that universities are engines of enlightenment, truth, fact and tolerance. However, what is being imposed upon them will have a chilling and bureaucratic effect, particularly—I repeat—via the guidance that, we must not forget, as the Joint Committee on Human Rights put it, will expose universities to being found,
“in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.
I fear that it will end up undermining the unique virtues of the university sector. Of course, that would be the ultimate farce because the Bill is designed to uphold the values of which universities are exemplars.
Baroness Afshar
My Lords, I speak as a teacher of courses on Islam and the Middle East, in both the UK and Strasbourg. I support the statement of the noble Lord, Lord Phillips, as I am beginning to feel that it will be impossible to teach a course that explains what Muslims think, what their ideas are or the way they think without at one point or another being accused of promoting terrorism. My courses are controversial. Particularly, Muslims object to what I say. Parents of Muslim women object to what I say, as do many British people. I would like to feel that universities remain places where people such as myself can teach courses that are controversial but can be enlightening and prevent future terrorists from finding that they have no refuge anywhere.
Baroness Williams of Crosby (LD)
My Lords, my noble friend Lord Bates has done an amazing job in inching this legislation slowly towards becoming a bearable and acceptable piece of law. However, we are not there yet. I put on record my thanks for my noble friend’s two amendments. One of them still awaits greater clarification. I am still not clear what the hierarchy is of, in particular, “due” and other kinds of regard. It is important that that is made clear. In doing so, I hope that my noble friend will recognise—as I am sure he will—that the heart of university education lies in academic freedom. Therefore, it is not one of a number of considerations but at the very centre of what it is to have a free system of tertiary education. My noble friend can get there but we need another little heave before he does.
The second thing I thank my noble friend for is the movement towards making sure that the so-called guidance is subjected to parliamentary consideration. We all appreciate that very much, not just because it helps to make the guidance itself clearer and reflect the experience of Parliament but because it is essential in dealing with terrorism that we bring into the pattern the greatest possible commitment by Parliament and all parts of university, not least including students. I will talk a little further about that later. At this point, I simply contribute the thought that it is critical that Parliament should be a significant part of the whole of this legislation so that it can exercise its wisdom, experience and commitment. Secondly, as we discussed, I hope my noble friend, for whom I have a great deal of respect, will recognise that academic freedom is not one of a number of priorities but the central one.
Baroness O'Neill of Bengarve (CB)
My Lords, I add my voice to these questions about the guidance that may be issued. I very much welcome the fact that such guidance would have to be approved by both Houses before it came into force but we have heard about one sort of guidance which raises particular fears for anybody who cares about freedom of speech or academic freedom.
I must declare an interest. Yesterday evening, I was a visiting lecturer at Canterbury Christ Church University, speaking on an extremely dangerous topic: freedom of expression. I distinguished different conceptions of freedom of expression and had a very engaged audience who had a great deal to say and came from many directions. Now, I said the other day in our debate that I am not one of those lecturers who always has her full text available in advance. I give too many visiting lectures in the course of a year—probably about 40—for that. At that rate, as this is an ancillary, unpaid activity, I cannot be held responsible for producing text at some defined moment such as a fortnight ahead. I would simply have to give it up. I hope the Minister realises how much of the intellectual life of our country flows through visiting occasions—seminars, lectures, panel discussions and the like—in and also beyond universities for which providing prior texts is just not feasible.
I have a definite point to make here. The first arguments about freedom of expression—which we then called freedom of speech or freedom of the press in this country—opposed the idea of prior restraint. The former Member of Parliament for Hull, Mr John Milton, put this argument admirably in the mid-17th century in his great work, Areopagitica. Prior restraint is what he called “licensing” and “misdoubt”. Can the Minister give the House an undertaking that we will not get into prior restraint, thereby taking British values back to where they were in the middle of the 17th century, if not further? Without prior restraint, some things can go on. It is not enough but I think the House would probably welcome an undertaking from the Minister when he winds up that prior restraint will not be one of the methods by which guidance is imposed.
Lord Lamont of Lerwick
My Lords, I will be extremely brief but I support the very powerful speech made by my noble friend Lord Deben. I was actually in the audience when he and Kenneth Clarke debated with Sir Oswald Mosley. I remember shouting out some rather abrasive heckles at Sir Oswald Mosley and getting a rather rude reply. My noble friend was absolutely right in what he said: the meeting demonstrated very much the shortcomings of the arguments put forward by Sir Oswald Mosley, and the British movement before the war as well.
I have one or two points about the guidelines. I know we will come to an amendment on them later, but given the way that this House works I suspect a lot of future debates will get collapsed into this particular amendment. As I said earlier when I intervened rather rudely on the Minister, what particularly bothers me is this whole concept of non-violent extremism. I listened to his answer but, to be honest, did not really feel that it really met the point—I will study it very carefully in the Official Report tomorrow in case I missed something.
The point I addressed particularly was about this meeting where I spoke, along with the editor of the Sunday Telegraph, at Queen Mary college in London. The meeting consisted entirely of Muslim students, a large number of whom made it very clear that they did not support terrorism or violence but wished to dispute the basis of western democracy and elections. They preferred a more consultative process—shura—rather than western democracy, and I and the editor of the Sunday Telegraph argued with them. I believe that it was a good thing to hold that meeting openly, on the campus, and have that thoroughly aired. At the end of the meeting, some expressed some sympathy with what was said and some did not. However, I do not believe for one minute that it would have been right to ban such a meeting. That seems to be an example of exactly this phrase, “non-violent extremism”. We should be careful here. As the noble Baroness, Lady Deech, said, so many things restrict freedom of speech in this country already.
There are many things in the guidelines that I think are open to argument. The noble Lord, Lord Morgan, highlighted the talk of “pathways”. That struck a chord with me, because there is a sentence about,
“intervening to stop people moving from extremist (albeit legal) groups into terrorist-related activity”.
How, precisely, is one to stop people moving from a legal group into something that is illegal? There is also the sentence:
“Islamic extremists specifically attack the principles of civic participation”.
That relates directly to the meeting that I attended at Queen Mary college in London—and I would say it was a very good thing that we discussed whether to participate or not to participate.
Various people have commented on the guidance for speakers at universities, and stressed the point—I shall not make it again—that it is most unlikely that speakers will have a full text. I gave a lecture at a university last week, and I shall not disclose, for fear of offending the university, how late I left the preparation of my remarks.
The guidance also mentions:
“A system for assessing and rating risks”.
If ever I heard of a box-ticking exercise, it is “rating risks”. Are people going to give someone seven out of 10 because he is more dangerous than someone who only gets five out of 10? This, I am afraid, reminds me of the FSA—or the FCA, as it now is—which thinks that it will somehow prevent a financial disaster if risks are rated on a scale of one to 10.
Lastly, there is the point that my noble friend Lord Renfrew raised last week in an intervention on the Minister, when he asked, “What about societies at universities, as opposed to universities themselves?”. If my recollection is right, and if I heard the Minister correctly, I think he said that there would be no problem with societies. However, the guidance document contains a whole section on “Student unions and societies”, in which we are told that they must have regard to who comes to speak to them, what the speaker’s platform is, what supervision there is to see that people can be allowed to challenge them, and so on. There are even phrases about “managing prayer … facilities”. Why should prayers be managed by some sort of authority? This all seems to me far too intrusive, and I would be grateful if the Minister gave the assurance that a lot of these things will be looked at—and, I hope, dropped.
Baroness Warsi (Con)
My Lords, I support the comments made by my noble friends Lord Deben and Lord Lamont. It may give my noble friends some comfort—or perhaps some concern—when I say that I have many a grey hair from having held these very conversations over a period of four years. Conversations have gone on within government over and over again about what the definitions of “extremism” and “non-violent extremism” are and about where legitimate debate ends and concerns about terrorism and extremism start. Fortunately, the Government did move to a position of providing further definition, but that now has consequences that affect what we are trying to do with the Bill.
I want to raise two specific practical issues in relation to the amendments. The first is about Islamic societies. There is no doubt that there is a battle of ideas within Islam. Certainly there are conversations going on among British Muslims about the flexibility within Islam and the parameters of how Islam should be interpreted, especially within a state where it exists in a minority form, as opposed to a country where Islam is in the majority. These are very real discussions, which need to be had. They will determine what Islam looks like in Britain in a decade’s time and how Britain can feel at ease with a religion that is more comfortable within that environment.
Those debates need to be had, and they are being had, and one of the places where they need to take place is within universities. Specifically, they need to take place in Islamic societies within universities. We have all heard of individual incidents of Islamic societies in universities having had speakers, or having said something, or having configured their meeting, in a way that could be considered unacceptable. Many British Muslim parents who send their children to universities have, in the past, sat down and had “the talk”. That talk does not relate to drugs, sex or anything else that may be more freely available at university. It relates to Islamic societies, and it goes something like this: “When you go there, you need to be careful about some of the ideas you’ll hear. You may want to stay away from those ideas, because you could get in with a group who may have very extreme ideas, and those are not the people we want you to get involved with”.
However, the talk in my household goes further. It says, “Yes, you will meet people who don’t have great ideas, and have ideas you may not agree with. That’s why you’re going to university, because part of your job is to challenge those ideas. So make sure you turn up at Islamic societies. Don’t let people with extreme views take over those societies just because the majority of you want to stay away because they have views you don’t agree with”. But if the provisions in the Bill are enacted without these amendments, the talk from parents like me will become, “Stay away completely, because you could be caught up in something that would label you as an extremist”. That would not be encouraging debate—that very real debate that needs to happen within Islam about the battle of ideas and about what British Islam will look like in a decade. We must not stifle that debate.
Lord Armstrong of Ilminster (CB)
My Lords, I declare an interest as a former Permanent Under-Secretary of State at the Home Office and as a former chancellor of the University of Hull. I have therefore listened to this debate with great interest and concern. I find myself in a situation that was described in Committee by the noble Lord, Lord Pannick. I agreed with everything he said then, although I shall not repeat it.
The debate has swayed around the issue, and it seems very difficult for us to try to assign primacy between the duties under the Bill and the duties towards freedom of speech. The duty of preserving freedom of speech is, as so many speakers have said, of fundamental importance. However, we have seen that it is possible for people who wish to do so to be rather successful in radicalisation within the restrictions on freedom of speech within the law, so I have sympathy with what the Government are trying to achieve.
The merit of Amendment 14A proposed by the noble Lords, Lord Macdonald and Lord Pannick, and Amendment 15D proposed by the Government is that while the duties obviously conflict, the ultimate choice of what to do is left to the universities. No primacy on one or the other duty is expressed. The decision is left, presumably case by case, to the universities. That seems to be almost the only position possible if we are to retain some kind of inhibition on radicalisation in places of higher education.
Lord Scott of Foscote (CB)
My Lords, there have been some memorable speeches this evening. I want to add just a word or two. I have an interest: I have four children, two of whom are Muslims, and 12 grandchildren, seven of whom are Muslims. They are as indignant as anybody else about the outrages that are committed from time to time by members of their religion. They would be wholly supportive of everything that has been said in this debate.
Amendment 15D, as proposed by the Minister, seems to deal satisfactorily—with some exceptions which I propose to mention—with the main issue in this debate; that is, to reconcile the conflict between, on the one hand, the duty on universities to encourage and allow freedom of expression, and, on the other, the Clause 25(1) duty to protect people from being influenced into terrorism. Amendment 15D seems to deal with that, subject to some grammatical points on its second subsection where it refers to the two relevant duties.
One of the duties, imposed by Clause 25(1), is to protect people against terrorism; the other, under the Education Act (No. 2) 1986, is to allow and encourage freedom of speech. Those two duties are often in conflict, and the reconciliation between them is sought to be done with subsection (2) of the proposed new clause in Amendment 15D. It says:
“When carrying out the duty imposed by section 25(1)”—
which is the protection against terrorism, “a specified authority”, such as a university,
“to which this section applies must, if subject to the duty imposed by section 43(1) of”,
the Education Act,
“have particular regard to it”.
I read that several times as I was quite uncertain which of the two duties the “it” referred to. I hope it was referring to the freedom of speech duty but, as a reading of the subsection shows, it is grammatically perfectly capable of referring to the Clause 25(1) duty. That really ought to be sorted out before this amendment becomes final. It could be dealt with perfectly easily by ending subsection (2) with the words: “having particular regard to the freedom of speech duty”.
In subsection (3) of the proposed new clause, there is again this ambiguity as to what “that duty” refers to. There are two duties and it might be referring to either. I think that the duty being referred to in subsection (3) is probably the Clause 25(1) duty. These might be described as pedantic points, but they are the sorts of points that a chancery barrister, as I was when I began my legal career, would love to make in taking up the time of a judge in court. Goodness knows what answer the judge would give: different judges might give different answers, and that would mean that the legislation had a flaw in it. It is an ambiguity that needs to be corrected.
Lord Wilson of Dinton (CB)
My Lords, I apologise that I have not intervened before on any stages of the Bill. I come from Cambridge, where the Government have succeeded in something that, in my experience, has never happened before in my 12 years there: they have united the Cambridge colleges, in deep concern about the impact of this provision on the universities. I declare an interest in that I am a fellow of Emmanuel College. I was a master for 10 years and still deliver a couple of lectures for the university and interview for admission.
I was also, for a period, Permanent Secretary at the Home Office. As such, I cannot speak to the Minister in private, so I will have to do it in public. I have a real concern. I understand absolutely the awful nature of the problem that he has. I have some experience of terrorism; I know what it is like from the inside. I know how—if it is not too bad a word—frightening it can be when you have a problem like this. However, if I were speaking truth unto power, I would say that I do not think that this is going to work. That is my real worry, Minister.
There are a number of reasons why it will not work. One of them is that the Government need the universities and their challenge, analysis and intellect—the Minister has heard that said eloquently around the Chamber. But the Government are setting themselves up against that. In fact, in a parody, they are almost protecting radicalism from challenge. This needs the fresh air of challenge. Perversely, the Minister is protecting terrorism and radicalism by protecting them from debate and from challenge. Young people—students—are most open to debate and to understanding new ideas when they are young adults of 18, 19 and 20. It is extraordinary, but I am the third Member who was at the Oswald Mosley debate. This is becoming a declaration made round the Chamber. As a good civil servant, however, I was observing my future masters—and I was not heckling.
It is absolutely fundamental to the success of the Government’s policies that they have the universities on side. They should be working with them rather than doing what this legislation will do, which is to generate huge amounts of paper—just like the FCA and the FSA—and laboured analysis to no good purpose. It will generate heat. It may generate conscientious objection. It will lose the universities. The Minister should read the protest that Cambridge colleges have sent him. He needs them on side and working for him—preventing. He is discouraging them from preventing. He is moving the focus from his task to the Government and their obstruction of academic freedom and freedom of speech. That is not the way to have a successful policy. So what I would say to you as a Minister is, “Minister, think again”.
The Minister has got so far with the Bill that Amendment 15D might be the best he can do. But when it comes to the guidance and the guidelines, please think again. Unless the Minister gets that right and works with the universities, he will have a failed policy that will not look after the national interest. It will protect radicalism and non-violent extremism. That is not what this House or the nation wants.
Baroness Smith of Basildon
My Lords, this is the second long debate that we have held on a similar amendment, and there have been some reflections of the debate that we had last week. I agree with the noble Baroness, Lady Buscombe, who said that it was a shame that the Minister was not able to speak beforehand. Some of our debate—with notable exceptions, of course—has been on what was in the coalition Government’s original Bill and not the amendment that the Minister has brought forward to us this evening.
The comments made tonight about freedom of speech and academic freedom were well made at Second Reading. The importance of both those aspects has been well expressed this evening. The Minister deserves enormous credit for the way he listened to the debate on Second Reading and again last week. Taking into account the comments made today, he responded not just with Amendment 15D but by saying last week that parts of the Prevent guidance would be removed. Perhaps noble Lords were not aware of this, but the Minister said last week that paragraph 66—the part which refers to having to give an outline of topics and discussions—would not be in the guidance. We have had some discussion around that, which makes it, in a sense, superfluous. I must admit, at the time, to feeling relieved that your Lordships’ House was not a specified body. I do not think that any of us would have had 14 days’ notice of the comments we were going to make today. Perhaps it is just as well that we are exempt and that he is going to withdraw paragraph 66 in the Prevent guidance.
Lord Bates
My Lords, this has been an excellent debate. I often say that it has been a good debate when I stand up at the end of a group of amendments, but this has been a truly outstanding discussion. We have been talking in an academic context; I think this debate should almost be required reading in many institutions, although I would not wish to encroach on academic freedom by suggesting it so blatantly.
It has evoked such strong passions because there are so many Members of your Lordships’ House who have held and hold positions in our great British universities and who have benefited from the freedoms of speech and academic research which exist there. These are strengths and the envy of the world. We have all had the opportunity and privilege of benefitting from them. When I look at the warden of Wadham College I always have particular regard to what he has to say—whether it is telling me about legislation or taking the short cut across the quad. It evokes a deep passion in us all and we are right to feel very proud of our institutions and the freedom of speech which takes place within them.
I want to put how we arrived at this situation into some sort of context. The Prevent strategy was introduced in 2007. As the noble Baroness will recall, in 2005 we had the outrage of the terrorist attack on the London Underground; 54 people were killed and several hundred people were injured. There were two Terrorism Acts—one in 2000, when the noble Lord, Lord Wilson, was Cabinet Secretary, and a subsequent one in 2006. I want to echo the points made by my noble friend Lady Warsi. There was a view which said, “Listen, there is something more afoot here. We need not just to tighten the law, to tighten the surveillance and prosecution element of it. We need somehow to prevent and to get ahead of the poisonous ideology which is pervading these people’s minds to actually think that they would consider blowing themselves up on a crowded subway train. We need somehow to engage with that”. So the previous Government, to their credit, came up with the concept of Prevent. Right from the outset the Prevent programme went across all bodies and organisations. All public bodies were encouraged to think about how they could prevent people from being drawn into terrorist activities.
One of the dangers of listening to my noble friend Lord Deben is that I get so carried away by his arguments and powers of persuasion that sometimes I forget that I am not sitting on the Back Benches and I nod vigorously towards him. Then I remember that I have a responsibility on the Front Bench and am jolted to focus on Clause 25, which says that the general duty to which we ask people to have due regard is that:
“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism”.
That is what it says. We can get drawn into its implications, but that is the principle that is on the face on the Bill.
So we had the Prevent strategy, which applied across all organisations and which was reviewed and refreshed in 2011. After the horrific murder of Drummer Lee Rigby on the streets of Woolwich, there was an assessment of the Prevent strategy and the conclusion went something like this. “Listen, there are some wonderful things going on. We have regional co-ordinators. They are working very well with the universities in looking at who is on campus, making sure that they have preparations in place and that views which are potentially dangerous and leading people into extremism and terrorism are noted. However, it is very patchy. There are some universities that are extremely good and there are some which, to be honest, just do not want to play ball. Invariably, as is often the case, the ones that are very good are in the low-risk areas and the ones that are very poor are in the high-risk areas”. The extremism task force which was considering this came forward and said, “We need to put this on a statutory footing, so that we get some consistency of delivery across the piece—across all organisations—and we bring the ones which are not taking their responsibility seriously up to the standard of what the others are doing already”. So we arrived more or less at where we are.
Then, because the guidance to be put out was going to be specific—and noble Lords have had some great fun at its expense—this was something that we put out to consultation. The noble and learned Lord, Lord Hope, referred to differences with the Scottish consultation. I think I said in Committee that in relation to the particular, narrow elements, 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, which also talks about:
“Briefing the chair in advance of the event, making clear that they have a responsibility to ensure that no speaker or other person present at the event infringes the law; this briefing could highlight the circumstances under which they must stop the event, issue warnings to participants on their conduct or request the withdrawal or removal by stewards (or the police if necessary) of the person(s) concerned”.
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; people just kind of said, “Listen”—
Baroness Kennedy of The Shaws
The reason why there was no hue and cry from the colleges and universities is that they just ignore it. It is a shame on Universities UK that it produced guidelines that are so ridiculous that people cast them to one side. I am afraid that this has led to a diminution of respect for the organisation, and that has been a problem across the board.
Baroness Brinton
Does my noble friend not agree that the difference between the UUK guidance and the Bill is that the Bill gives the Secretary of State powers to act against the university whereas at the moment the UUK guidance merely advises universities to think about something? I hope that the Minister will recognise that.
Lord Bates
I am grateful for both those interventions. However, I think they make my point: the fact that the guidance is there to put in place in universities for speakers but it is just brushed aside and ignored seems to give some veracity to the arguments put forward by the extremism task force, which reviewed our counterterrorism strategy and arrived at the conclusion that there is something to be said for having a more statutory footing.
Lord Phillips of Sudbury
I am sorry to interrupt the Minister. Could it not be that the universities simply thought that the guidance was—I will not use too strong a word—hopeless and misguided?
Lord Bates
It could be. I do not know what was in their minds.
The pressure and stipulation that are contained even in the consultation document issued in December, which we went out to consultation on—sadly, I have then gone and pre-empted the consultation by assuring your Lordships that certain sections of it would not apply—are a much lighter touch. There is no question, none at all, of the Government telling people who to have on their campus, in their university or in their college to speak. All we ask is that they have systems and procedures in place by which they ensure that the people who come on to their campus—
Baroness O'Loan
I thank the Minister for giving way. Surely it is not the case that all the Government are asking is that they have some procedures; surely it is the case that under the Bill the Secretary of State will have the power to direct universities as to what they do, and therefore it is that power that makes a difference.
Lord Bates
On that element, the noble Baroness is correct; there is a power there. If you make it a statutory duty, there needs to be some element of saying, “Well, so what if they brush aside their statutory duty?”. What if they brushed aside their statutory duty on a whole range of things? We have talked about that: the Public Order Act 1986; the Protection from Harassment Act 1997; the Terrorism Act 2006, which talks about inviting support for a proscribed organisation or punishing statements encouraging terrorism or disseminating terrorist material; and the Public Order Act 1988, or “breach of the peace” law—these are all Acts that contain a duty. What if organisations fail to observe the health and safety Act, and an inspector comes and says—I realise that I have tested the House.
Lord Hannay of Chiswick (CB)
I am most grateful to the Minister for giving way, but I think that he really is fighting the last war. It is perfectly clear that the Bill is going to enter into force and that it is going to make certain new statutory obligations. Many of us have argued the case against that and for a voluntary approach, and I still believe that that would have been better, but it is not what is going to happen. So although he can have a lot of fun at the expense of UUK, there are other lessons that could be drawn from it—one of which, as the noble Baroness, Lady Kennedy, said, is that no one actually paid any attention to it. So if really unwise guidance is given, as was given then, that is what will happen.
We are talking now about a statutory obligation, though, and that is something completely different. Let us simply work on the basis that something like Amendment 14D is going to come into force. I ask the Minister to address in his winding-up speech one or two modest ways, which have been suggested around the Chamber, in which it could be improved before Third Reading, drawing on some of the excellent language in Amendments 14 and 14A. That is what would enable the Home Secretary of the day. In the next lot but one of amendments we will get on to the guidance, but that is the heart of the whole matter. I do not think that we should dilly-dally much longer on whether or not there is going to be a statutory obligation.
Lord Bates
I certainly take the noble Lord’s point but perhaps I may address some of the key points in the amendments that have been put forward.
I just want to put this in some kind of context. I admit to having had a bit of fun at Universities UK’s expense, but I think that quite a few noble Lords have had a bit of fun at the expense of the consultation document. Given that my noble friend Lord Deben has exhorted us to be in favour of all debate, one should not necessarily try to close off one part of it. However, I accept that perhaps I have pushed far enough, and the noble Lord, Lord Hannay, has got me on track. I shall address some of the particular points that have arisen.
I shall turn to the amendments themselves, but I think it would be helpful to address first the general principle that many noble Lords have spoken about, today and in Committee: the inclusion of universities and further education institutions within the scope of the Prevent duty in Clause 25. In Committee I outlined specific case studies, as did the noble Baroness, Lady Deech, of students and graduates who had gone on to commit terrorist atrocities. For the avoidance of doubt, in all the case studies I mentioned, including the 2010 Stockholm attack and the 2009 Detroit aircraft attack, the perpetrators had studied in UK institutions.
Young people accounted for around 31% of terrorist-related convictions between 2001 and June 2014. Within that date, the figure for at least two years is even higher, at 35%. The Prevent duty is designed to apply to sectors that can most effectively protect vulnerable people from radicalisation and from being drawn into terrorism.
In answer to the noble Lord, Lord Phillips, and the noble Baroness, Lady Lister, who have previously asked for evidence—I went back and said, “What evidence do we have from the regional co-ordinators at BIS that there is a level of non-compliance?”, and I have already referred to part of it—in the year up to 25 January 2015, at least 62 events were held on campuses that featured an extremist speaker or speakers. We know of another eight events that were publicised but later cancelled. Speakers at these events have, for example, called for apostates of Islam to be beheaded and have stated that a man who beats his wife should not be questioned as it is solely a matter between them.
I do not mention all this to suggest that these speakers should necessarily be banned—that is not what our guidance says is required under the Clause 25 duty—but to demonstrate the point that extremist views are propagated on campuses, that students are at risk of being drawn into terrorism and that a disproportionately high number of young people go on to become involved in it.
Since we last debated these issues, the consultation on the draft guidance has finished. Officials are still working through the responses, but an early indication shows that 42 higher education institutions emailed a response to the Home Office and, out of those, only eight stated that universities should not be subject to the duty. Furthermore, Universities UK—I qualify, of course, praying that organisation in aid of my position—which represents 133 vice-chancellors and principals, has not called for universities to be excluded from the Prevent duty. It reiterated its support for the duty when it met my honourable friend the Minister for Immigration and Security and my right honourable friend the Minister for Universities and Science earlier this week.
All this is not to say that universities have not raised issues with the current draft guidance. Almost all of them have done so, in a constructive fashion, and we thank them for their responses. That is the point of this form of public consultation and we will be making a number of changes to the guidance before it is published in its final form. I have already mentioned in Committee two changes that we propose to make: amending the reference to all speakers having to give prior sight of presentations; and making clear that not all staff need to receive Prevent training. We will be working through other changes and of course, as has been said, all that guidance, which will be issued to chancellors, will now be the subject, in a later group of amendments, of an affirmative resolution in both Houses of Parliament.
I now turn to the issue of freedom of speech, which has been heavily focused upon. It was mentioned that placing the duty on universities could have a chilling effect on freedom of speech and academic freedom, which would be contrary to the core function of our universities—a function which, as I have already said, makes universities one of our most important arenas for challenging extremist views and ideologies. As my noble friends Lord Deben and Lady Warsi said, I drew your Lordships’ attention in Committee to existing guidance referring to how speakers are treated. That is why I have tabled Amendment 15D.
This amendment would require further and higher education institutions, when carrying out the Prevent duty, to have particular regard to the duty to secure freedom of speech contained in the Education (No. 2) Act 1986. This will require higher and further education institutions, when considering all the factors that they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech. I am sorry that I caused my noble friend Lady Hamwee so much confusion earlier with the difference between having due regard and having particular regard. The reason we put that in is that we want to have a higher test to differentiate between having due regard to the guidance and having particular regard to freedom of speech under the 1986 Act. That was not accidental; it was absolutely intentional and, had I been a little sharper, I might have mentioned that to noble Lords earlier.
The noble Lords, Lord Pannick and Lord Macdonald, have tabled an amendment along similar lines, Amendment 14A, although we would argue that the Government’s amendment goes further. The noble and learned Lord, Lord Hope, has tabled Amendments 14 and 15 with a view to ensuring that, to the extent that Scottish higher and further education institutions are subject to the Prevent duty, their compliance with that duty is also subject to their need to ensure freedom of speech. This is quite clearly a logical approach, given that those bodies are not covered by the duty in the 1986 Act, and we are not in disagreement with the general principle of the noble and learned Lord’s amendments.
Given, however, that no Scottish bodies are currently listed in Schedule 6, these amendments are unnecessary. If and when Scottish institutions are added to Schedule 6 by order, the Government can use the power in Clause 26(3) to make consequential amendments to this chapter. We would at that point seek to ensure that Scottish institutions had the same requirement as those in England and Wales to pay particular regard to the need to secure freedom of speech, as contemplated by Article 10 of the European Convention on Human Rights. I hope that that goes some way to reassure the noble and learned Lord on this point.
My noble friend Lady Hamwee spoke to her Amendment 14C, which would require that guidance to the education sector must recognise the duties of that sector to secure freedom of speech, to promote tolerance and respect for democracy and to offer a broad and balanced curriculum. The guidance already makes these points in the relevant sections. I refer my noble friend to paragraph 105 of the draft guidance in particular. There were a number of points, but I am conscious of the time I have taken to respond.
Baroness Lister of Burtersett
The Minister, in talking about Amendment 14, seemed to imply that it related only to Scotland. He said that he agreed with this amendment, but Amendment 14 incorporates an amendment from the Joint Committee on Human Rights which makes very clear that the Prevent duty should be subject to the duty in Section 43(1) of the Education (No. 2) Act 1986. Is he now saying that he agrees with that?
Lord Bates
I take that point and will come to it as I go through my notes. I will go through them in no particular order but will start with my noble friend Lady Brinton, who asked about paragraph 50 in the guidance. We will reflect on my noble friend’s points about the language in the paragraph and look to clarify this in future. We will also reflect on the point made by the noble Baroness, Lady O’Neill, about prior restraint. I hope that I have reassured the noble Baroness that there is nothing here which would take us back to the times of prior restraint.
The noble Lord, Lord Pannick, asked why academic freedom is not specifically covered. He is quite right in his interpretation that freedom of expression, as secured by the duty in Section 43(1) of the 1986 Act, includes academic freedom, which is articulated in Section 202 of the 1988 Act, as was said by the noble Lord, Lord Elystan-Morgan. The freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions is therefore legislated for.
Lord Elystan-Morgan
There is no specific reference, of course, in the new clause, Clause 29, to Section 202 of the 1988 Act. The Minister is, no doubt, well aware that the Joint Committee’s report speaks of the necessity for a specific reference to Section 43 and Section 202 in the very same breath. In other words, my submission is that one is the obverse of the other. Section 43 of the 1986 Act guarantees freedom of speech and academic freedom, as it refers to students, employees and so on. Section 202 of the 1988 Act is the obverse of that in that it refers to the freedom of a person to do those things and yet retain employment. The two are inseparable, in my respectful submission.
Lord Bates
I will reflect again on the point about Section 202 of the 1988 Act and will see whether it is there, or whether it is, as the noble Lord, Lord Pannick, suggested, implicit in our wording.
My noble friend Lord Deben talked about the importance of debate. I hope that I have gone some way to reassure him that that is entirely consistent with our view. The guidance stipulates that and it is now stipulated in the Bill. The noble Lord, Lord Butler, asked about the Home Secretary. The Home Secretary can issue directions to universities and this makes a real difference. The power to issue directions will be subject to multiple layers of protection, including judicial oversight and that of the Prevent oversight board, on which my noble friend Lord Carlile provides independent representation. We agreed, following a discussion in Committee, to look again at this, and a direction will be issued only as a last resort.
Lord Hannay of Chiswick
My Lords, before the Minister sits down, he has not really addressed the issue of whether between now and Third Reading he will have another look at his draft of Amendment 15D. It has been broadly welcomed across the House, but imperfections in it have been noted, mostly notably by my noble and learned friend Lord Scott, which the Minister has not addressed. It would be helpful if he would now reflect a little on whether the new clause inserted by Amendment 15D could be improved by some very modest clarification. At the moment, it reads like a piece of parliamentary draftsmanship: that is, totally incomprehensible to most members of the human race.
Some of the amendments, such as Amendments 14 and 14A, are much clearer to a normal reader in their meaning. This clarity is rather important because the concerns that have been expressed about freedom of speech and academic freedom are not going to be settled simply by cross-references to some article in some other piece of legislation. I hope that the Minister will look at that between now and Third Reading. I believe that it will not change one iota the thrust of what he is trying to achieve, which I am sure he will succeed in doing by this article.
Lord Mackay of Clashfern (Con)
My Lords, I have a fairly simple question. I have various connections with universities, but I shall not bother with that just now in order to save time. Subsection (2) in the new clause inserted by Amendment 15D refers to,
“carrying out the duty imposed by section 25(1)”,
and goes on to state that “it” must have particular regard to the freedom of speech. “It” definitely refers to the freedom of speech part. I have no difficulty with that. I do not share the difficulty of my noble and learned friend Lord Scott, which is obviously a Chancery difficulty, but my difficulty is fundamental. When carrying out the duty imposed by Section 25(1) may lead you in one direction, the freedom of speech duty may lead you in the opposite direction. In that case, which wins? That is why it is so important that the amendment states that we should,
“have particular regard to it”.
The noble Lord, Lord Elystan-Morgan, suggested that it should be the top priority where there is a conflict. I do not know what quite what the intention is in that respect, but it is quite obvious that there can be a conflict, and if there is a conflict, what is to happen? With great respect, the Government’s new clause does not so far conclusively answer that question.
Lord Bates
I am grateful to my noble and learned friend for that intervention. He hit upon a real issue, and we are going to have to write on that point. When exploring how to indicate that the commitment to free speech is to be taken seriously and nothing should take away from that, we did not want effectively to phrase the amendment in such a way as to say, a bit like Universities UK, “You can now just disregard it because you can claim everything is free speech and therefore do not need all the rest of it”. This is a serious thing that the Government are saying. We believe that there is a particular risk and that universities ought to have due regard to it. We would like that to be done consistently. That was the reason that we landed upon to,
“have particular regard to it”.
This answers the noble Lord, Lord Hannay, and with this I will sit down. You cannot have a debate of this quality, with such incredibly perceptive points being raised, and not be open to it. As I hope I have demonstrated throughout this process since we began our journey at Second Reading, I have tried to listen and have due regard to the views expressed in your Lordships’ House—and nothing will change on that. We will reflect very carefully on the particular points raised. Of course, if there are ways in which we can tighten the language that we use and points to take on board, we still have time to do that, but we feel that in putting forward Amendment 15D, we have something that can give real reassurance to universities in this regard.
Lord Hope of Craighead
My Lords, in view of the hour which we have reached, I am sure that all noble Lords would like me to bring this debate to an end as soon as possible. First, I thank all noble Lords who have spoken. This has been a debate of very high quality, and many interesting points have been raised. I am most grateful for the answer the Minister gave on Scotland, which satisfies me. We can no doubt return to that by order, if necessary.
As for the rest, I think that it is a search for clarity. I ask the Minister to bear in mind the contribution of the noble and learned Lord, Lord Mackay of Clashfern, and the point made by the noble Baroness, Lady Williams of Crosby, when she was complimenting the Minister on Amendment 15D. I think she said, “We are not there yet”. In a way, that sums up the essence of the debate. Many points have been made in various ways and many questions have been asked which the Minister clearly has not been able to answer. I think we are reassured by the open mind which he expressed in his concluding words. In view of that, the proper thing for me to do is to beg leave to withdraw the amendment.
Universal Credit
(9 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord German
To ask Her Majesty’s Government what are the results of the review into the setting of universal credit conditionality when children are in distress.
Lord German (LD)
My Lords, I thank all noble Lords who are going to speak in this debate, as this is an issue of great importance to the well-being of many children in our country, and I am grateful for the interest shown. This matter came to its head in your Lordships’ House during the passage of the Pensions Act 2014. The issue being debated then was the universal credit regime covering those who are bereaved. Changes to the benefits system for widowed parents means that those with ongoing income support needs, with the conditionality requirements it brings, would claim universal credit.
On Report, my noble friend the Minister announced that he was to conduct a wider review of the impact of universal credit in circumstances where children could be in considerable distress. I am most grateful for the time my noble friend has spent in undertaking the review, and for the way in which he has engaged with myself and other noble Lords in progressing the terms of reference and in discussing the outcome.
Since the debate in your Lordships’ House on 24 February 2014, the review has concluded and the relevant regulations were laid before the House in November 2014. This review came about because of the concerns of Members of your Lordships’ House. It was a review made in the House of Lords and delivered in the House of Lords. It was personally entrusted to my noble friend the Minister, and I am sure that noble Lords on all Benches recognise his efforts in bringing this to a conclusion.
I put down this Question for Short Debate because it provides a first opportunity for this House to deliberate on the findings of the review and its implementation. While I have some concerns, which I will come to later, there is much in the structure of the outcome of the review which is to be welcomed. Claiming universal credit brings work-related conditionality requirements. Following the review the Government have created a carve-out from these requirements for a group of circumstances all related to children in distress. The Government intend to switch off these conditionality requirements for up to six months in circumstances where a child is in distress because of bereavement or domestic violence and abuse. This switch-off is mandatory, not discretionary. After that period, those caring for a child affected by distress can ask for the conditions attached to universal credit to be suspended for a further three occasions, one month at a time, but only once in every six-month period. For other circumstances of distress—witnessing violence and abuse—the setting aside of conditionality is for one month in every six for up to two years.
I turn to the matters which I welcome in these Government actions. First, there is the recognition of a need for exemptions and a different approach for those who care for children in distress. The scope of the exemptions currently applies to children in distress as a result of bereavement, fleeing from violence, or experiencing or witnessing violence and abuse. I hope that my noble friend would also consider adding to that list children who are made homeless. There may be others to be added at a later date, but it is particularly important and welcome that there is no required definition of distress, simply the circumstances in which distress can occur.
Secondly, the solution provides a light-touch requirement on the evidence to establish distress. I understand that a wide range of acceptable evidence of the impact on the child is acceptable. It could be as straightforward as a description by a carer or a parent, a note from the child’s school or a local charity.
Thirdly the focus on the needs of the child is at the heart of this solution. The issue of the needs of the parent or carer is an obvious concern but this new structure is rightly focused on the absolute concerns of the child. But the distress or unavailability of the parent or carer can be transmitted to the child and become a source of distress for them. The new structure is wide in the evidence it requires of distress, but clearly understanding the complexity of the relationship between the carer or parent and their distress, and distress transmitted and experienced by the child, requires a sensitive understanding by work coaches who conduct the interviews. I would be grateful if my noble friend could explain that relationship between these easements in conditionality and easements for the parent or carer under the already existing domestic emergency or temporary circumstances provisions.
I also welcome having a structure which can grow to accommodate additional circumstances. Encompassing two additional areas which can lead to distress is welcome, but there may be more, and as I said earlier the obvious one which comes to mind is that of a child being made homeless.
The key question, therefore, which I wish to ask my noble friend is this: is the six-month easement sufficient for children in bereavement circumstances? Perhaps more importantly, are the one month every six months easements of the correct length or timing? We need to understand the evidence behind the policy to be able to establish whether it covers the widest possible range of circumstances, to ensure that there is adequate protection for children whose needs possibly still require close parental or carer engagement, and this may go beyond the seven-month maximum consecutive time period allowed. Research evidence in this area appears to be somewhat incomplete, and some of the main sources were published some considerable time ago. But common experience will tell you that the way in which children respond to bereavement will vary from child to child.
In the current regime—pre-universal credit—York University research showed that most bereaved partners retain work or enter work within 18 months of bereavement. Is it appropriate to try and compress what is already happening as a normal state of affairs? So the question remains: are the six-month and then the three one-month easements adequate and proportional? A secondary question is that of the revolving-door nature of the requests. Despite the light touch on evidence the continual requirement for producing evidence each time a request is made for an easement can be a tough challenge for a parent caring for a distressed child.
It will come as no surprise to my noble friend if I ask him about the interaction between widowed parents allowance and universal credit for those who would claim both. For the purposes of universal credit, widowed parents allowance will be treated as “income other than earnings”. This means that it will be deducted at a pound-for-pound rate from the claimant’s universal credit entitlement. That means, in turn, that the actual value for a widowed parent with no other income will be £0 per week. However, widowed parents allowance will also continue to be treated as taxable income. For this reason, working claimants may not only have their WPA deducted in full from their universal credit entitlement, but also pay tax on it. The outcome is that working widowed parents in receipt of both universal credit and the widowed parents allowance could end up overall paying £7.90 per week on account of their receipt of the widowed parents allowance.
I understand that those who are moved on to universal credit will get transitional protection, but this will only be until the first change in their circumstances. Will an application for a further one-month easement under the new regime be classified as a change in circumstances? If that is the case, as soon as the new system is applied, the parent could end up paying an extra £7.90 a week.
I appreciate that this is a complex issue but I wonder if my noble friend could give consideration to four possible solutions: first, removing widowed parents allowance from the list of benefits treated as income other than earnings; secondly, partially disregarding WPA for the purposes of UC entitlement; thirdly, treating WPA as earnings rather than income for the purposes of universal credit; or fourthly, continuing to treat WPA as income other than earnings, but introduce a “widowed parents element” as an additional component within universal credit. A similar approach is seen in the interaction of carers’ allowance and the carer element in universal credit.
In conclusion, there is much to be welcomed in the outcome of this review, but there are also some large questions, and beyond that, the experience of the system in action. I would be grateful if my noble friend could give us an assurance to give us confidence that the Government are monitoring this carve-out as it happens, and are willing to make changes as appropriate in the light of experience.
I am grateful for the Minister’s close interest and commitment to these matters, and I very much look forward to his response.
The Lord Bishop of Portsmouth
My Lords, I am grateful to the noble Lord, Lord German, for prompting this debate about the review of universal credit when children are in distress. I speak this evening particularly about the distressing and challenging circumstances of the death of a parent, carer or sibling. I speak not only because I have experience as a priest alongside parents in such situations, as do so many of my clergy colleagues, and because I now support clergy in my diocese of Portsmouth ministering to those facing such deaths, but because of personal experience in my family.
The Minister’s departmental review shows welcome easing of existing regulations, but I suggest that that easing does not truly take account of the depth and extent of the challenge facing a parent or carer bereaved of a partner or child. Bluntly, she or he must support their grieving child while coping with their own grief. The grief of each family member is hugely affected by how others in the family are doing. That challenge is exacerbated if the demand of work-related requirements is added.
In my case, the death of my wife Julia left me the sole parent of two teenaged children. I had the advantage of being in a secure post, an officeholder with understanding colleagues—not even an employee—and under no pressure to fulfil specific requirements to maintain my income. Nevertheless, your Lordships will understand the range of everyday reactions—sadness, guilt, sleep difficulties and anger, for instance—which may sound modest or even trivial but have significant consequences in combination between you and dependent children.
To those, we might add the clinical range of emotional and behavioural difficulties that arise in children, particularly in the two or three years following the death. Those are potentially debilitating in themselves and inhibit development. I also raise the likelihood, as various studies show, of depression, clinical anxiety, post-traumatic stress disorder, learning underachievement and even suicide—all with significant costs to society.
I know how quickly a surviving parent must try to adjust to a new role. Even for those of us in fortunate and supportive circumstances, this is a big ask. I say that not with the flippancy of a sports commentator but from personal experience. The surviving parent must be able to respond flexibly and quickly, which often includes being physically present.
I recognise, of course, that every situation is different, but I doubt if the proposal to be relieved of obligations for only six months and then for intermittent periods of one month in, at best, every six months for two years is realistic. I welcome the implicit understanding that the impact of bereavement on a parent, carer or sibling may unpredictably arise over a two-year period or longer. That is a helpful acknowledgement for which I thank the Minister. I suggest, however, that the six-month respite may be an impediment to a bereaved family’s recovery and healing. It could hang like a threat for the parent, particularly if he or she is home-based, non-earning for some time, or had withdrawn from work to care for a sick or dying partner or child. I recognise that in many—perhaps most—instances, parents will seek to return to work and to “normality”, as it is sometimes unhelpfully put.
I hope that the Minister will at the very least consider more generosity in the initial suspension of conditionality and flexibility in the ad hoc easements proposed. To monitor that and offer support—and I hope that it is not too much in those circumstances to expect a pastoral touch rather than a rigorous adherence to rules—I suggest that periodic interviews giving advice, supportive rather than coercing, would be entirely right. To expect that every widower or widow will be ready after six months to return to work or to an active monitored search for work with up to four further months, one by one, might suggest a punitive approach to those who have suffered through no action of their own.
I know the sadness and disorientation of bereavement, and I hope that the Government will acknowledge that more generously. In this of all circumstances, surely encouragement is more appropriate than compulsion. I enjoyed that, and benefited from it with my children, and I believe that others should as well.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I support my noble friend Lord German this evening not because I am at all qualified in the intricacies of the working of the current benefit system or any of the proposals. I speak because I know a little bit about children’s grief and the distress following the death of a family member. In my case, one daughter was killed and her younger sister and I lived through the ensuing years and the aftershocks of extreme grief. I was lucky to be married to an extremely supportive second husband, who had himself suffered the death of his beloved elder brother at a similar age to my surviving daughter, so he was able to empathise more than most people.
During earlier debates on this issue, I note that noble Lords who are speaking today, including the Minister, referred to the many effects of extreme grief, and I do not need to reiterate them now. However, one thing that I would add to this evening’s debate is that a child in distress may learn very adequately to disguise that distress because they want to make the burden less on the surviving parent. That is a danger: if one of the measures is whether the child is in distress, the answer may be apparently no. My noble friend said:
“The point I am trying to make is that it is far better to recognise that individual responses to grief vary. As a number of noble Lords have said, grief often does not manifest in behavioural and emotional challenges until months or even years down the line”.—[Official Report, 27/2/14; col. 744.]
I appreciate his deep understanding of the issue.
This evening, I want to share a few points about the causes of bereavement and what effect they can have on the grieving process. Those come not as a direct result of my personal experience but because I was, as a result, asked to become patron of the Compassionate Friends, which is an international bereavement support network. Through that organisation, I have learnt of the many and varied circumstances in which parents can find themselves. The death could be suicide, accident, murder or illness. It can be sudden, shocking and numbing or it can be lengthy and drawn out, so that by the actual death the survivors are already exhausted.
This is particularly pertinent to this evening’s discussion because in the case of suicide or murder there would of course have to be an inquest, which might well not begin for over six months. I am glad to see that the noble Baroness, Lady Finlay of Llandaff, is in her place, because she and I debated the issue of timeliness at length during the passage of the Coroners Act. This has improved, but the inquest could still not take place for several months, and might then continue for several weeks. This is likely to be at a time which is at least as stressful as the actual death and often more so, given the forensic examination of details. In the case of a death resulting from a crime there would be a court case. Again, this may continue for some time and be very stressful. In those cases it would be impossible to apply the formula which my noble friend raised this evening, because periods of one month every so often would not cover those sorts of scenarios.
I will briefly make a point that has been raised by the organisation I mentioned, the Compassionate Friends. Of course family and friends generally rally round at first to help. However, as time passes they might not be able to continue that support, or they may feel that it is time someone got over it, and so the situation may become more stressful after six months.
Returning to work is often welcome, because a return to any sort of normality is helpful. I must say that in my own case, while I would not say that returning to the House of Lords was life-saving, it brought me back to a state of normality. Even when someone is back at work, there will of course be the dreaded Christmas or other festive occasions such as birthdays, and there will be anniversaries of the death. In addition, for the child or children there will be things that trigger an enormous need for extra support from their surviving parent—for example, very predictable things such as exams or parents’ evenings. Holidays can be very stressful. There might be things that are not even foreseen. A teenage child might suffer from the break-up of their first or second relationship, which would also trigger all sorts of unforeseen issues.
As the Compassionate Friends say, individuals grieve differently and there is no timetable for grief. I hope that, within the constraints of needing some guidance, the discretion given to the easement months can be considerably more flexible. I am very grateful to my noble friend for raising this issue.
Baroness Finlay of Llandaff (CB)
I am most grateful to the noble Lord, Lord German, for having secured this very important debate. About a year ago we debated at length the difficulties of children who are in distress. I give credit to the Minister for having listened and taken seriously the issues that were raised, and for having consulted widely and tried hard to come up with a solution. Of course, everybody knows that no solution will ever be perfect, but in the last year we have become better than we were a year ago. That is a tribute to all noble Lords in this House who have argued long and hard.
The right reverend Prelate the Bishop of Portsmouth and the noble Baroness, Lady Miller of Chilthorne Domer, have laid out very clearly how incredibly difficult it is to be bereaved. There is no formula and no straightforward way ahead. Indeed, life will never be the same again. Nothing will ever feel normal again. It is a different life, and you carry that with you always, as do the children. Of course, the children’s grief will manifest itself in all sorts of different ways. As has already been said, children who are very distressed often appear at first to behave very well, and their grief explodes at different times and in different ways, because they really do not want to cause more distress to others. I have even come across family members who have said, “How can you go out and play? Your mum’s just died”. That child is trying desperately to find something normal left in their life—and that is going out to play with other kids in the playground at school and so on, and not feeling as excluded as they usually do.
I also pay tribute briefly to the organisation The Compassionate Friends, with which many years ago I carried out a study of bereaved parents with a bereaved mum. It was published in the British Medical Journal, and we called it “Your Child is Dead”. That was how people had been told that their child was dead. It is the only paper I have ever published that was translated into French and published in a French journal. We managed to raise awareness in medicine at that time, when people were really not taking much notice of children’s needs facing bereavement.
There are of course voluntary sector bodies which now provide guidance to organisations. Employers receive guidance; ACAS has produced some very good guidance on dealing with a bereaved employee. The National Council for Palliative Care has produced a range of booklets and support materials for people supporting others in bereavement. Hopefully, the world is slightly better than it was those years ago when we actually had to flag up the fact that there were bereaved children and bereaved parents out there, and people should not run away from that.
The issue of timing is of course difficult. From having meetings with the Minister I know that the timing and the right cut-off point have been difficult to determine. I appreciate the time the Minister has given to those of us who have really wanted to bend his ear on this issue. I do not have the anxieties that some others have about the fixed time of one month. This is because I am glad that it is non-negotiable, so that whoever is bereaved does not have to justify that they need a few more days or another week. They get their block of a month, with no questions asked.
I hope that the Minister will be able to reassure us that the work coaches will be appropriately trained to have a light touch. They should be instructed that the first time round their request for evidence should be very, very light. Possibly the second time they can prompt someone and say, “Look, I will need something to justify this—a little bit more than you provided last time.” But it should not be punitive. The bereaved person should not have difficulty making appointments. Work coaches should know that bereaved parents should be able to jump the queue to get an appointment if they need it. They should not have to wait and go through some slow process, as others might have to.
I also hope that the voluntary sector organisations will wake up to the need to be rapidly responsive. I fear that some of them have waiting lists for bereavement support or children’s bereavement support, and they need to speed up as well. When you are distressed you cannot wait, and you need somebody to acknowledge that distress there and then and provide you with the support that you need. So it behoves those of us who work with voluntary sector organisations to be aware of this.
I declare that I work with these organisations—and there are a lot of them—which help people who are facing death and bereavement. I have also carried out work with the Childhood Bereavement Network, which provided information to the Minister. All of these organisations need to step up to the plate and become rapidly responsive, because if they do not and there is no joined-up system, people’s distress will be greater. We have to provide support within society and not have people locked away in aliquots of grief. That is a danger whenever you put down something with timeframes around it.
There have also been concerns that for a bereaved parent, getting the evidence that they need for the work coach might feel difficult and stigmatising. Again, I hope that the work coaches will be specifically instructed that they must not ask questions that the person is embarrassed to answer. They might appear to be embarrassed, but it may be that it is just too painful for them to utter what is going on—or perhaps they have not yet come to terms themselves with the behavioural difficulties and internal turmoil of the child that they are left supporting.
I also hope that the work coaches will be taught—because they may need to have it spelt out to them—that the bereaved parent may have never worked previously. They may have been a stay-at-home parent or somebody who has left work to provide care for their relative during the dying phase or because their employer was unhelpful in supporting them and they took a decision to do that. Then they suddenly feel that they have nothing left, and they have lost their job and career opportunities.
There are also those who feel forced to not carry on with their job because of problems with childcare, and because what has happened to the child has meant that they feel mistrustful of others and of strangers, so they make the choice that they have to stop working to provide support to the distressed child. The work coaches may well not have the life experiences that others have had. I hope that the Minister will be able to provide us with that reassurance.
In closing, I thank the Minister, who has shown humanity, compassion and the ability to listen. He has really tried to make the review better and to understand the difficulties for children in distress and for the bereaved parent—or the guardian who is left trying to support them, if both parents have died.
Baroness Sherlock (Lab)
My Lords, I, too, am grateful to the noble Lord, Lord German, for giving us the opportunity to debate this issue again and to all noble Lords who have contributed tonight. I am particularly grateful to the right reverend Prelate the Bishop of Portsmouth for sharing his experience. It was a brave thing to do, and we benefited greatly from it—and to the noble Baroness, Lady Miller, for the same thing. To come to the House and share things from one’s knowledge is one thing, but to share it from one’s experience is quite another. I really appreciate that.
I, too, have some experience, but from rather longer ago. My mother died when I was eight, and my father had to cope. He did go out to work, but that had consequences as well. It may have been unrelated—and I did not realise it until some time later—but I went on to run a charity that worked with single parents, so I met a number of single parents who had become so involuntarily, because their partner or spouse had died. I am very conscious of the consequences of that, so I am grateful to have the opportunity to talk about this today.
We heard evidence during previous stages of the Bill, when many of us were assembled—and particularly from the noble Lord, Lord German, who talked about the longitudinal study, to which he referred again tonight, and about the importance of the capacity and availability of the other parent. So we know quite a lot about what it is that makes a difference. I absolutely take the point made by the noble Baroness, Lady Finlay, that the impact on the children is often hard to detect from their initial behaviour. They can be told to be brave because mummy or daddy is struggling—so they can often end up behaving in ways that may seem not to be distressed when, actually, they are.
I am very grateful to the Minister for having agreed during the passage of the Pensions Bill to take this issue away. When he comes to reply, I would be very grateful if he could take the House through what happened in the review, as the noble Lord, Lord German, suggested. What advice was he given and what brought him to make the decisions that he or the Government did in its wake?
As I understand it, the Government’s intention is that bereaved parents should not have conditionality applied for the first six months of universal credit after bereavement. I confess that, when I was trying to go through all the repeatedly amended regulations, I struggled to find the section where that is set out. I would be grateful for my own ease in my future work if the Minister would share that with us. The Government then brought forward the Universal Credit and Miscellaneous Amendments (No. 2) Regulations 2014, which amended the universal credit regulations. Regulation 8 seems to have the effect that work search or availability requirements may not be imposed on a parent or responsible carer claiming universal credit in the event of the death of the child’s other parent or carer or a sibling or another adult living in the family, or if the child has suffered or witnessed violence or abuse.
The bit that I am not clear about is that, from my reading of the regulations, the suspension of conditionality seems to be available not if the parent can demonstrate the distress of the child but if they can show that their childcare arrangements have been significantly disrupted as a result of the events that have happened. Could the Minister clarify that? When the Minister for Employment, Esther McVey, made a ministerial Statement in another place on 23 October 2014, she said:
“We do not intend to seek evidence of the child’s distress, but rather on how the situation has impacted the day-to-day functioning of the parent/family”.—[Official Report, Commons, 23/11/14; col. 82WS.]
She gave the example of having to go to statutory appointments. Is that the intention, and could the Minister elaborate on that?
I would like also to understand a few other questions. First, is anyone currently affected by these provisions? The answer may not be known because of timing, but perhaps the Minister could advise us on that. Could he give us a sense of how many parents he thinks might be eligible when it is rolled out fully, and what sort of take-up he expects? Furthermore, what steps have the Government taken or will they take to make sure that any parent who is eligible is aware of these provisions, particularly the extra one-month provisions?
When we debated the Pensions Bill in Committee, my noble friend Lady Hollis expressed a lot of concern about the level of discretion being awarded to young staff. The question of the training of work coaches has been raised by various noble Lords. In addition, what work has been done with decision-makers? He may be able to explain this to us, but my understanding is that, if a bereaved parent does not fulfil the work requirements because, for example, they have not been able to demonstrate what is needed to get the extra month, or maybe they need more than a month, presumably the work coach would refer them to a decision-maker in the department, who would sanction their benefit—in other words, stop or reduce their universal credit. Is that the case? Could the Minister confirm that? If so, what steps have been taken to train the decision-makers to understand the consequences of these provisions? If that is the case, if the person then wished to challenge a decision, would they have to go through the process as with other benefits of first seeking mandatory reconsideration from the department before being allowed to appeal a decision? If so, how long could that take? We are getting reports of delays of many months with regard to other benefits—but I hope that that will not apply here.
The Childhood Bereavement Network was mentioned by the noble Baroness, Lady Finlay. I am sure that we have all had briefings from that organisation, and the Minister will be aware that it remains very concerned about the provisions. What plans do the Government have for evaluating those provisions, and at what stage? Would the Minister be willing to commit to sitting down again with key stakeholders at a certain period, perhaps after a year or two, to discuss with them the evidence and see whether it has worked as they hoped it would?
On the childcare point, if it is the case that the parent would have to demonstrate that their childcare arrangements had been significantly disrupted, what would happen in the case raised by the noble Baroness, Lady Finlay, of a teenager who manifests some behaviour—for example, by developing an eating disorder or getting into trouble at school? A teenager would not necessarily have childcare and a parent of a teenager would be expected to go to work full-time. So there may be no disruption to childcare in that case, but the parent might then feel that the right thing would be to be at home every day when that teenager came home from school to make sure that the new problems that had manifested themselves were dealt with. How would that work?
Finally, how will in-work conditionality be applied for this group? If a bereaved parent of a teenager takes a job below the target for a single earner—in other words, less than the equivalent of a full-time job at the minimum wage—as I understand it, the in-work conditionality rules for universal credit would mean that they would be called and then required to go out and increase their hours. What steps will be taken to make sure that they may need to work only school hours or fewer hours in that circumstance? Could the Minister explain that?
I want to say how much I appreciate the fact that he has taken the issue away and taken the time and trouble, as with so many aspects of universal credit, to supervise it personally. I know that he cares very much about how it works in practice. Therefore, I look forward to what he has to say.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I am grateful to my noble friend Lord German for bringing this Question to the House. As noble Lords have said, I promised to come back with the findings of the review that I committed to undertake as we went through the Pensions Act 2014. Noble Lords have referred to my Written Statement on 23 October. The regulations for the measures were brought into force last November.
Let me remind noble Lords of the context. Concerns were raised by Peers, particularly by the noble Baroness, Lady Finlay, and my noble friend Lord German about the universal credit requirements placed on the parents of bereaved children. I have to say that the noble Baroness’s speech during the Committee stage of the Pensions Bill really resonated with me personally. She highlighted the fact that difficult circumstances can cause a substantial and varying amount of distress for children, and that parents and carers need time to provide them with additional care, support and stability. We have built a clearer, more demanding welfare system which places robust requirements on claimants. But placing robust expectations also means recognising that we should suspend these requirements at certain times, providing temporary relief from conditionality to deal with the situation without moving claimants too far away from the world of work.
I should like to mention that I have been ably supported in my considerations of the review findings by two external expert advisers—which is one up from the number recommended by my noble friend Lord German. They are Dr Jane Callaghan from the British Psychological Society and Karina Dancza from the College of Occupational Therapists. I am very grateful to them for their invaluable support. I should add that I also gained enormously from the insights from our own people on the front line, in particular Colin Cottingham and Graham Sandilands, who know what it is to help parents in this situation.
The review concluded that there are particular situations—bereavement or a child witnessing or being a victim of violence or abuse—where there is compelling evidence that children were very likely to experience a period of acute distress following such an event and where additional support would be required from the parent. These situations cover a wide range of circumstances where child distress can occur. There will be other circumstances that are not covered where we would expect our work coaches to use the current tailoring and discretion available in exactly the same way.
I decided to make these policy changes through regulations, as recommended by the review, as opposed to doing so purely in guidance. These regulations establish a clear and consistent framework for work coaches, which is so important when exploring such sensitive topics. More circumstances, such as homelessness, as my noble friend mentioned, could be included in regulations at a future time if evidence suggests that that is appropriate.
The review found that a six-month suspension of requirements for parents of children in cases of bereavement and domestic violence would normally be appropriate. We have therefore extended, from the previous three months to the current six months, the suspension of conditionality requirements for victims fleeing domestic violence where they are responsible for caring for their child. As the noble Baroness, Lady Finlay, noted, child distress is not a linear process and families may experience late effects of dealing with grief. To help support their children in these circumstances the parent will be able to access a new one-month suspension of requirements once in every six-month period for a period of up to two years following the death or incident of violence or abuse.
I want to be clear: we will not seek to assess the child’s distress. Instead, we will look to identify the situation that has occurred and the impact it is having on the family unit. In terms of evidence, I do not want to introduce an overly bureaucratic system. When a claimant first accesses the one-month easement for the reasons set out in the regulations, if the work coach is satisfied that the situation is having an impact on the claimant’s ability to fulfil their conditionality requirements they will allow the easement. The work coach will at the same time ask the claimant to provide appropriate evidence. But unless work coaches think that it is necessary, we will not delay this first one-month easement because of waiting for evidence.
The form of that evidence is not set in stone. We do not expect evidence to detail the child’s distress but it should provide work coaches with information on the additional caring responsibilities that the claimant is undertaking. The types of acceptable evidence are varied and could include appointments at the child’s school, social services, healthcare professionals in connection with the child, additional childcare responsibilities or support arrangements. To help provide subsequent and ongoing support to families where longer than a month is needed to get them back on track, work coaches will make use of the discretionary tailoring available to personalise requirements in the light of individual circumstances. This helps to ensure that claimants can move on in a way that is appropriate to those circumstances.
When a parent has had a previous easement, this makes it easier for work coaches to identify the need for ongoing support and, as a result, to apply discretionary conditionality easements. I hope that that will provide the flexibility that the right reverend Prelate the Bishop of Portsmouth and my noble friend Lady Miller were looking for. I echo the words of admiration of the noble Baroness, Lady Sherlock, for those deeply personal contributions and experience in this area.
We have strong evidence that shows that work has a positive impact on individuals and their families. Focusing on bereavement, the review found that the existing six-month conditionality easement is appropriate. It did not find evidence that extending the six-month period would benefit the majority of those who have been bereaved. My experts advised me that this, combined with very clear and supportive tailored conditionality, should help parents to cope. I am not saying, by any means, that the grieving process is over by six months. But the evidence shows that usually by this time, a person’s grief is no longer a barrier to their continued life, although it may not be normality as they used to experience it. Many parents facing difficult circumstances want to return to work, for themselves and for their children.
I recognise the concerns that noble Lords have expressed about the level of work coach capability in this whole area, which is why, as part of this review, my officials worked with experts in the field to develop guidance for jobcentre staff. The stakeholders we worked with include the Childhood Bereavement Network, WAY, Gingerbread, Child Poverty Action Group, Grandparents Plus and Refuge, to name but a few.
The universal credit learning programme ensures that work coaches have up-to-date skills to deal with any claimant interaction and support them in making relevant and appropriate decisions on an individual basis. The training focuses on providing a personalised, flexible service to claimants and treating them as individuals, building strong relationships with them. To ensure that work coaches adhere to standards, we have put in place a quality assurance framework which managers use to monitor the service and to ensure a high-quality level of support. I hope that that gives some reassurance to the noble Baroness, Lady Finlay, in this area.
Let me now pick up on a few of the questions that have been asked in the short time we have had for this debate. In response to the noble Baroness, Lady Sherlock, the six-month bereavement provisions can be found in regulation 99(3)(d). As to my noble friend’s concern about transitional protection in UC, this would be not affected by invoking this particular relief. In numbers terms, we expect that no more than 10,000 claimants a year will take up the easement when universal credit is fully rolled out. We do not have information on the numbers currently affected but they are likely to be extremely small. People subject to in-work conditionality will be able to access the same conditionality easements. However, I emphasise that in-work conditionality is at the beginning of its exploratory phase for getting it right. It is therefore currently not a policy with hard edges.
I think that I have dealt with all of the issues. I shall look through the debate and if there are one or two questions that I have not had time to deal with, I shall write to noble Lords.
We are building a new welfare system at the moment, which is a major endeavour. We cannot do so without talking and listening to people. I am extraordinarily grateful for all the help that I have had in this House over the past few years to get to a positive result in this and other areas. In this particular case, I thank again the noble Baroness, Lady Finlay—she made her point so effectively that it convinced me that action was needed—and I thank my noble friend for showing such tenacity in pushing for the process to be taken forward at speed. It has meant that the changes were introduced at the same time as we are now rolling out universal credit to families in the north-west. We are now up to 26 jobcentres where families are part of the process.
I am grateful to the House for trusting me to do this exercise without all the normal paraphernalia. It has meant that we have been able to do it quickly and I hope that noble Lords are satisfied with the outcome.
Counter-Terrorism and Security Bill
(9 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Phillips of Sudbury
“( ) The Secretary of State shall not issue guidance to specified authorities which are qualifying institutions within the meaning given in section 11 of the Higher Education Act 2004 (qualifying institutions) until at least one calendar month after laying a report before both House of Parliament which includes estimates of the potential direct and indirect impact of implementation of such guidance with regard to—
(a) the culture of such authorities, particularly as regards academic freedom and mutual trust within the same, and(b) the cost and bureaucracy arising within the same pursuant to this Part.”
Lord Phillips of Sudbury (LD)
My Lords, I shall speak to Amendment 14B, and my learned—not my learned—
Lord Phillips of Sudbury
My—admirable and brilliant—noble friend Lady Williams is a co-signatory to that amendment and is going to speak to Amendment 14D. My noble friend Lord Norton of Louth, who unfortunately cannot be here, and the noble Viscount, Lord Hanworth, who is indeed here, also have their names to these amendments.
First, I thank the Minister again for the way in which he has tried to deal with the very many comments and complaints about the Bill. Major advances have been made. The most important, on which this amendment touches but does not major, is the agreement that there must be an affirmative resolution by both Houses before the guidance can take effect. That is a very important concession.
Amendment 14B deals with the preparatory work for the debate which will ensue when the resolution is put to this House and to the other House to bring the guidance into effect. What we say and what Amendment 14B provides is that there cannot be the debate on the affirmative resolution to bring the guidance into effect until at least 28 days after the Government have laid a report before both Houses containing what we would say is essential information in order for both Houses to be fully prepared to debate to best effect the guidance and whether to bring it into effect. We call this a common-sense measure.
The first thing to say is that it is abundantly clear that Part 5 has had very little coverage beyond this place. We heard earlier from the noble Lord, Lord Wilson, that the Cambridge colleges have only just woken up to Part 5 and the potential impact on them, and how they are all now riding very high horses, but very late in the day. Indeed, I have discovered exactly the same position in other parts of the university fraternity. There has been extraordinarily little media coverage of this extraordinarily important set of provisions. As a result, there is not, as one would have expected, the head of steam behind the reforms proposed from all round the House and intended to impact on the effect of Part 5 of the Bill.
Viscount Hanworth (Lab)
My Lords, I had an opportunity earlier this afternoon to read the letter from the noble Lord, Lord Bates, to those who intended to participate in today’s Report stage. I express my appreciation of his consideration in writing, but I must observe that the fast-track schedule of the Bill is severely impeding its proper parliamentary scrutiny. The Government have not given themselves enough time to think.
The letter points to the Government’s amendments of Monday that represented their response to the widely expressed anxieties about the way in which the statutory Prevent strategy was liable to conflict with the duty of freedom of speech enjoined by the Act of 1986. The Government also tabled an amendment two days ago that is ostensibly intended to ensure that the guidance issued in connection with the Prevent strategy will be subject to parliamentary scrutiny. In the judgment of the proposers of the current amendments, the Government’s concessions are inadequate. They are therefore calling for something more extensive and secure.
The letter of the noble Lord, Lord Bates, observes that, between 1999 and 2009, a full 30% of persons convicted of terrorist offences associated with al-Qaeda had attended a higher education institution. It is difficult to place this figure in an appropriate context, but given the extent of participation in higher education of the relevant age group, this seems a strikingly low figure. It might be interpreted as an indication of the efficacy of higher education institutions in diminishing the threat of terrorism.
The effect of higher education is typically to stimulate individualistic freedom of thought—the very antithesis of the dogmatic nostrums of the radical Islamists, which differ so markedly from the religious injunctions of Islam. A liberal higher education is undoubtedly a most effective means of combating ideological extremism. The success of British institutions of higher education as effective agents of counterterrorism ought to be widely recognised. Instead, the Government’s statutory Prevent strategy, which promises to be clumsy and intrusive, threatens to subvert the role of higher education in countering Islamic radicalisation.
Another aspect of the statutory Prevent strategy disturbs me. It concerns the cost and bureaucracy that will be imposed on the designated institutions. As I observed in a previous debate, there has been a hypertrophy of bureaucracy in British universities for which the interventions of central government have been largely responsible. Nowadays, in almost every institution, the numbers of administrative staff exceed those of teaching staff—and by a significant margin in many cases. The Prevent strategy, with its specially appointed officers, mandated staff training courses, obligation to report compliance with its nostrums and duty to inform the police and others of any suspicions and anxieties, is a bureaucratic nightmare. Finally, I have to wonder whose opinions have been elicited by the consultation on the draft guidance. If, as I strongly suspect, those few opinions have come predominantly from the administrative faculties of universities, then I suggest they should be treated with due caution.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank my noble friend for moving this amendment and giving the opportunity to put one or two additional points on record. This amendment would not permit guidance to be issued to universities until a report had been laid before Parliament setting out the impact of—
Baroness Williams of Crosby
I apologise to the Minister but I was not aware that he was going to respond to the amendment now, which would rule out Amendment 14D to which I wished to speak. I turn to that amendment briefly to explain the point of it. It looks a very small amendment but it is a rather serious one.
Amendment 14D relates to those with whom the Secretary of State would consult in advance of putting out the various kinds of guidance, which has already been dealt with to some extent by the Minister in his very helpful amendment requiring an affirmative procedure by Parliament. That meets one of my major concerns, which is the involvement of Parliament in every way and at every stage of the Bill. That is absolutely crucial, especially given the scale of the challenge that the Minister on more than one occasion told us we must meet. The solidarity of Parliament in dealing with these issues is crucial.
Let me explain why I put down this amendment. It was for the very simple reason that absolutely nowhere in the Bill that I can find is there any requirement of any kind to consult the age group that we are most concerned about. There is absolutely none. There are no references to student organisations, youth organisations or for that matter young people at all. Yet I think many of us recognise—I will in just a moment give an example of this—that the most effective force to persuade young people to abandon any thoughts of terrorism is other young people. Statements by senior officials, however senior they may be, cut nothing like the ice and have nothing like the persuasive power as other young people who see the devastating effects of terrorism and bring those to the attention of their friends and colleagues.
One of the things I regret is that the statutory requirement that students should be represented on university bodies which we brought in with the Education (No. 2) Act 1968 was abandoned by the then Government in 1987, so there is no requirement of that kind any more in law. One of the great advantages of requiring that students be represented on, for example, university courts and academic panels was precisely that they were then brought into the operation of the university itself, and into its responsibilities and its authority. That became an important and significant factor in dealing with what one might call young extremism.
Baroness Smith of Newnham (LD)
My Lords, perhaps I may briefly follow my noble friend Lady Williams. I declare an interest as a Cambridge academic and a fellow of Robinson College, where I am a graduate tutor and director of studies. I am also, across the university, senior treasurer of the European Society. We do not really expect a great deal of extremism in that society; it is probably a relatively straightforward society to be involved with. However, the person who was key to setting it up was a visiting French student. She was 22, dynamic and really wanted to get something going. She had far more bright ideas than I had at twice her age. I still think that I am young; as an academic, I am probably seen as middle-aged by my students and as relatively young by some of my colleagues. But this young woman came with a set of bright ideas and established an organisation. To impose duties on that organisation without any consultation is not necessarily helpful.
As the noble Baroness, Lady Warsi, said earlier, we need to engage in discussion and debate. If it is about Europe, it may be in some ways uncontroversial and not lead to extremism—but in a whole range of other societies, the debates might be controversial or difficult. However, the people who will best be able to say how they can deal with that are not academics, far less administrators, telling students what to do. It will be the students themselves coming up with ideas as to how to engage. I ask that we think through how to engage young people.
The noble Viscount, Lord Hanworth, asked who responded to the guidance consultation. Of the 160 people who responded, probably none was young. If we can bring those people in and engage them, partly through university structures but partly directly, we will get better decisions and ideas—and, ideally, a better way of implementing the Prevent duty in a way that engages young people and takes them with us, rather than a top-down approach which preaches to them in an unhelpful way.
Lord Bates
My Lords, I am grateful to all noble Lords who have spoken in this brief debate. There have been some excellent contributions. First, I want to clarify something I said earlier which might have sent people down the wrong track. I talked about 42 responses which my noble friend Lord Phillips rightly pulled me up on as being a paltry number. That was the number of academic institutions which responded. In fact, the consultation produced 1,792 responses. Five consultation events were held—in Manchester, Cardiff, Birmingham, London and Edinburgh—that reached a further 300 delegates from specified authorities, including representatives of higher education. So there have been some additional responses. Of course, it would be excellent to see more contributions.
The point that was made eloquently by the noble Baronesses, Lady Williams and Lady Smith of Newnham, on the importance of engaging young people is absolutely right. It would seem perfectly within the spirit and letter of both the guidance and of what we are putting forward here for academic institutions to engage with student bodies and societies; in fact, they should. They should ask, “What is the best way of implementing this within our institution?”. This would be entirely in keeping with the type of approach that we want. We are not talking about the European Society at Cambridge—unless there are instances there in which people could possibly be drawn into acts of terrorism. That would be unexpected and a surprise. We are talking about how to prevent people being drawn into terrorism—so a wider debate, crucially one involving young people, is very important.
Another element, which relates to what my noble friend Lord Phillips of Sudbury had to say in moving his amendment, is the impact of this. We have produced an impact statement on the Bill. My noble friend said that he does not accept what it says on page 7, but it does make some estimates as to the cost of implementing this across 2,000 higher and further education institutions in the UK. This is standard practice. For illustrative purposes, we assume that each institution requires one week of a junior officer’s time—a BIS liaison officer, working with the university—at a cost of £573. Also, it is not—
Lord Scriven (LD)
The Minister has given those figures, but it also says clearly in the impact assessment that there are some areas where the risk has not been assessed for Prevent requirement purposes. It is not possible to estimate accurately how much will be required for additional Prevent activities. So the figures in the impact assessment are completely irrelevant because, in many areas, the assessment as to what Prevent activity will be needed has not been done.
Lord Bates
That is a fair observation. We are in unknown territory, but in order to have an impact assessment, some basic assumptions have to be made. Those are the assumptions we are using to understand how this guidance would be implemented on the ground. Academic institutions might be able to undertake particular research about its effect.
Lord Phillips of Sudbury
The concern we have is that an assessment of their costs has not been made. As I said in moving the amendment, the more that the universities and colleges have thought about this—and many of them have still not got the draft guidance—the more they realise that this is imposing a very considerable bureaucratic burden which they will have to pay for.
Lord Bates
I am conscious that we are rehearsing arguments from the previous debate. Our argument, in fairness, is that they have not seen the guidance because people have not actually seen the guidance, which has not been published following the consultation. It will be informed by the debate that we have had.
Our hope and desire, though, is that this is very light-touch. It deals with what most, or many, academic institutions are already doing; it links in with their existing programmes for how computers are used on campus or in the library. It builds on that rather than trying to build some new bureaucratic edifice, which in our view is not necessary.
Baroness Williams of Crosby
I am a little worried because the argument is moving towards the costs of bureaucratic reviews and so forth, and away from the central point that I believe to be critical for any chance of success in what the Government are trying to do: the formal involvement of young people. At the moment, and I hope my noble friend will forgive me for putting it this way, there is nothing in the Bill requiring universities to formally discuss with their own students how they handle the requests and guidance from the Government.
Lord Bates
Of course there is nothing in the Bill to say, stipulate or prescribe that, but there is nothing to stop it. I would have expected, although I am happy to reflect further on this—perhaps we should reflect further on these comments in the guidance when it comes forward—most higher and further education institutions to engage with the student body, particularly student associations, about how this should be implemented on their campuses in order for it to be effective, and not to be onerous but to be very targeted. That would be a very good thing to do.
I am conscious also that I was drifting in the direction of Amendment 14B from the noble Lord, Lord Phillips, rather than the noble Baroness’s Amendment 14D. Still, this has been a helpful debate to have; it has elucidated some important principles about the engagement of young people, and about ensuring that the costs and the impact of the duty and the guidance—when it is produced—should be evaluated and should be in the spirit of what is intended, which is to be light-touch, not onerous, and to be focused on what Clause 25(1) says about avoiding people being drawn into terrorism specifically. With that, I ask my noble friend to consider withdrawing his amendment at this stage.
Lord Phillips of Sudbury
I thank the Minister. I have to be honest with him and say that he has not addressed at all the nub of Amendment 14B, which requires the report first of all to concentrate on the cultural impact on universities, particularly the academic freedom and mutual trust within them between staff, students and so on. He did not say a single word about that, which leaves me concerned, because either he thinks it is insignificant or he has no answer to our request for a report. Since everyone tonight—
Lord Bates
My noble friend rightly chides us to say that we do not want to be overly bureaucratic or impose too many costs. To undertake qualitative and quantitative research on the scale that he proposes in the amendment would add a huge cost, if not to the Government then to the institutions themselves. We are simply saying here that we will set out some guidance and then leave it to the institutions for it to be evaluated. There will be a process—through HEFCE, should that be something that the consultation decides—for progress and how it is implemented to be evaluated. I would have thought that that would be more in keeping with the light-touch, focused approach that we are talking about, rather than avoiding getting drawn into a very bureaucratic approach, which he would rightly reprimand us for.
Lord Phillips of Sudbury
I have to disagree with the Minister. It seems to me extraordinary to argue that we cannot afford to do our homework, so let us just make this law and see what happens. Because that is what he is saying. Also, it is no good talking about guidance without realising that, once it is brought into force, it has the effect of law; it becomes enforceable, even unto the point—the Joint Committee made this point—of somebody going to prison. A vice-chancellor could end up in prison if he or she flagrantly refused to comply with what he or she thought was a serious incursion on academic freedom.
I remain confused as to how the Government can say, “Well, it will all come out in the wash”; we do not know what the academic consequences are, whether cultural or in any other way, but you can make a complaint later if it does not work. That is not good enough. This House should not be imposing a regime of this nature without the facts and without due research having been undertaken. We may be the only country in the developed world that will have a statutory regime of this nature. That alone should give serious pause for thought.
Lord Bates
I want to clarify a remark that I made earlier. The impact assessment, referring to the higher education sector itself, higher and further education co-ordinators, actually refers to our assessment of the burden on university staff, rather than on the BIS co-ordinators, as I may have led my noble friend to believe.
Lord Phillips of Sudbury
I am grateful for that, but I want to say a word on the second amendment. Most of the debate has been around the need to inquire of the students themselves how they view the consequences of the guidance becoming law. The Minister did not make reference to that. Does he agree in principle that universities, including the students, should be consultees prior to the guidance being finalised and brought into effect? This extends the duty of the consultation to universities under the provisions of Clause 28. I am bound to say that I cannot see, in view of all that the Minister has said, why the universities should not be consulted, along with the other two bodies named in the Bill. They are the people most affected and surely, therefore, the Government could at least say that they will be consulted before the guidance is finalised.
I hope that the Minister will respond to that and then I will consider withdrawing the amendment.
Lord Bates
I am not sure that I can add a great deal more to what I have already said on this point, but I am happy to reflect further on my noble friend’s last point and I shall write to him ahead of Third Reading to clarify the position.
Lord Phillips of Sudbury
That is a very fair way of wrapping this up, but just to make this clear, the Minister did not refer, in responding to the amendment, to the universities as such. All that he said was concentrated on the young people at the university. However, on the basis that he will have an open mind when looking at this—because it will cost the Government nothing to make the universities consultees, and I believe that it will go some considerable way towards assuaging the concerns that are behind both these amendments—I beg leave to withdraw the amendment.
“(ba) qualifying institutions within the meaning given in section 11 of the Higher Education Act 2004 (qualifying institutions) and their student bodies;”
Baroness Williams of Crosby
I have a very simple and totally inexpensive proposal, which is that in issuing the guidance the Secretary of State will make plain that he or she expects a university to consult its students before deciding to agree to accept the guidance that is then issued.
Lord Bates
My Lords, I am happy to put this point on the record without further reflection. I believe that best practice should be that academic institutions should engage properly with students on how this Prevent guidance to have due regard to the guidance is going to be implemented. As we will discover in the next group, the guidance will come through an affirmative procedure in both Houses. I will reflect further on the noble Baroness’s comments ahead of that and make sure that her remarks are considered by the Secretary of State.
Baroness Williams of Crosby
In the light of that helpful response, I beg leave to withdraw the amendment.
Lord Bates
“(4A) Guidance issued under subsection (1) takes effect on whatever day the Secretary of State appoints by regulations made by statutory instrument.
A statutory instrument containing regulations under this subsection may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.”
Lord Bates
My Lords, I shall speak to government Amendments 14E, 14G and 15E. This group also includes Amendment 14F in the name of my noble friends Lady Hamwee, Lady Brinton, Lady Sharp and Lady Williams.
During our debates here and in those in another place there have been calls for the guidance that can be issued by the Secretary of State to specified authorities, which are required to have regard to it when exercising the Prevent duty, to be subject to further parliamentary scrutiny. The Government have argued that such scrutiny is not common in these circumstances. It has also been our position that, in any case, the full public consultation which has been ongoing would suffice to ensure that the resulting document was fit for purpose. As I remarked in Committee, the Delegated Powers and Regulatory Reform Committee, the experts in such matters, appears to have drawn the same conclusion.
However, I have been clear throughout your Lordships’ consideration of the Bill that we are keen to listen to the House. We recognise the strength of feeling that has been expressed on this issue, as well as the various comments which have been made about the draft guidance document that was put out for consultation. The noble Baroness, Lady Smith, has been particularly passionate in her calls for further scrutiny, and I pay credit to her determination on this matter.
The Government have therefore tabled two amendments which provide for parliamentary scrutiny of the draft guidance. Amendment 14E provides that guidance issued by the Secretary of State under Clause 28 will take effect on the day mentioned in regulations and that those regulations must be approved under the affirmative procedure. Amendment 14G provides that any subsequent revision of the guidance will also need to be approved in the same way by both Houses.
My noble friends have tabled Amendment 14F, which would have an effect similar to that of the Government’s amendments. I trust that the government amendments have provided them with the necessary comfort and reassurance and that they will feel inclined not to move their amendment.
Finally, I turn to Amendment 15E. This is a minor drafting change to remove the word “Assembly” from the term “Welsh Assembly Government”, to produce the correct term for that body, which is “Welsh Government”. This anticipates a change to be made by the Wales Act 2014, which will come into force on 17 February.
I would also like to take this opportunity to inform the House that it is likely that we will table some minor and technical amendments of this type for Third Reading, and possibly one in relation to commencement with the effect that Clause 28 would come into force on Royal Assent. This would enable Parliament to scrutinise the guidance as soon as possible. If required, we will table these further amendments as soon as possible, and I will keep noble Lords informed. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, on behalf of the Joint Committee on Human Rights I would like to say how much I welcome the government amendment. It is nice to be able to welcome Government amendments unequivocally on this occasion. The Government have accepted just the one recommendation in our report, and we are very pleased that they have.
Baroness Brinton (LD)
My Lords, my name is on Amendment 14F and I also want to thank the Minister for his Amendment 14E. As I said in Committee, after going to war, curtailment of freedom is one of the most important things that a Government must consider doing. Given the seriousness of that, it seemed extraordinary that there was no scrutiny by Parliament, so I am grateful for that. On a slightly lighter note, and not strictly to do with this amendment, the fact that 33% of terrorists have been to university was repeated this evening. I wonder whether we need much more draconian measures for schools, given that 100% of terrorists will have attended school.
Lord Hannay of Chiswick (CB)
My Lords, this is a very welcome amendment that the Minister has moved, and I would like to thank him and his colleagues in the Government for having inserted these necessary provisions. The more you look at the Bill, as far as universities and colleges are concerned—I am not talking about passports and TPIMs and so on—the heart of it is the guidance and the threat hanging over universities of directives from the Secretary of State. That is what is really going to determine whether this is workable, and whether it is or is not counterproductive.
The fact is that the amendment of the noble Lord basically shoots our fox by saying that they are not going to tell us what they are going to do now, but they are going to come before both Houses with the guidance. This is welcome, even if it is perhaps not too ungracious to point out that I am aware that affirmative resolutions in both Houses will no doubt be whipped, and that we will have no possibility of amending them. Having said that, the debates we have had at Second Reading, in Committee and now on Report, will have shown Ministers that the guidance on which they consulted universities and others, ending last week, was really upsetting to everyone, and would have had appalling results both in practicality and in the chilling effect, and so on. I hope we shall never again be told that because UUK produced some guidance like that, it must be okay. It is not okay to make a statutory guidance that tells people that if they are going to go to a university—as I am to Oxford tomorrow—to address a seminar, they have to produce a script two weeks in advance. It just is not going to work. I hasten to say I have not got a script yet.
The point I am trying make, which I hope the Minister will take on board, is that I had rather hoped that he would give us a list of the things in the guidance on which they consulted which they already know they are going to drop. He did some of that in an earlier debate, and if he could bring himself to repeat some of those things it would be good to do so now. But the lesson to be learnt is that huge care must be taken with the guidance, because that will determine whether the Act provides the kind of strengthened Prevent which we would all like to see, or whether it will have what is known as blowback. That must be avoided. So I hope that the Minister will take away from this experience, painful though it may have been, the feeling that the guidance is the heart of it, and that an awful lot of care needs to be taken, because things were not very well done in the guidance which was consulted on.
As for our discussion a few minutes ago, I can see that the noble Lord is pretty desperate not to concede that there should be another formal consultation, and he has avoided doing that, but I honestly think that when Ministers have cleared their minds about what they want to put in the guidance, they will be extremely well advised to contact universities—not necessarily every one of them—to see whether they have got it about right in terms of both practicality and freedom of expression and academic freedom. If they do not do that, the risks of blowback are considerable.
I hope that the noble Lord will draw from this experience first, the feeling that we are grateful to him for tabling the amendment but, secondly, that it is still all to play for as to whether this works.
Baroness Hamwee (LD)
My Lords, several groupings of amendments today and previously have called for quite a tour de force from my noble friend to respond. The House is very well aware of that and grateful to him for that, and for his openness to discussing the measures in the Bill. If I may say so, in the Modern Slavery Bill, too, he has set an extraordinarily high standard at the very end of the Parliament.
I follow the noble Lord, Lord Hannay, in my first point. My noble friend can take this as a comment or a question, as he feels most comfortable. My point is about further consultation. Such a strength of feeling has been shown in the debate on guidance that clearly the best outcome would be another round of consultation with the organisations concerned. The second best would be informal discussions between my noble friend and those who have expressed particular concern.
That takes me to my second point. I am well aware of the Government’s wish to move this along very quickly. My noble friend mentioned the commencement of Clause 28. I take that to mean that the guidance will follow shortly. People will be reading this debate in Hansard. They may have given up by this point, but some will have stuck it and will want to know when the guidance will be issued so that there will be a debate about it. If the Minister can say any more about the timing, that will be very useful to people outside the House.
Lord Phillips of Sudbury
My Lords, I have one more technical question to ask the Minister; I have given him notice of it. His Amendment 14E starts by saying:
“Guidance issued under subsection (1) takes effect on whatever day the Secretary of State appoints”—
so it appears to start by saying that this is solely about the timing of when the guidance should be brought into effect. But the second part of the amendment is technical, stating:
“A statutory instrument containing regulations … may not be made unless”,
it is approved by both Houses.
That seems a very odd way to put the fact that the guidance is to be approved as to content as well as the timing of its coming into effect. It would have been much happier if the provision had said at the start explicitly that not only is the guidance taking effect on the day set out in the regulations, but that the content will be laid before Parliament.
One can erect a technical, logical argument that the content must be included within the timing, so to speak, but as this is so important, I would be most grateful if the Minister can confirm that Amendment 14E as drafted is intended to mean that both Houses of Parliament must affirmatively approve the content as well as the timing of the guidance.
Lord Rosser (Lab)
My Lords, I will be brief. We thank the Minister for the meetings we have had with him on the Prevent guidance, and also for his words about the important contribution of my noble friend Lady Smith of Basildon. We also thank the Government for responding positively to the arguments we and other noble Lords have made for the Prevent guidance and any future revisions to be subject to the affirmative procedure. Clearly the guidance will be crucial, and hopefully in drawing up that guidance following the conclusion of the consultation the Government will take full note of the views that have been expressed.
In Committee my noble friend Lady Smith of Basildon asked what action was proposed to counter radicalism, recruitment and grooming online, and said that this did not seem to be catered for in the guidance which at that time was out for consultation. I ask the Minister if this issue of online radicalisation will be covered in the guidance.
Finally, the Government wish to extend the duty to have due regard to the need to prevent people from being drawn into terrorism so that it covers three and four year-olds in nurseries nationwide. Will the Government respond to another question put in Committee by my noble friend Lady Smith of Basildon, by at some stage providing information on how many nurseries, preschool providers and childminders had access to the Prevent guidance consultation document and were aware that they could respond? How many in this group did respond, and in what vein?
Lord Bates
My Lords, I am grateful for the wide welcome which the amendments have received from your Lordships. I can well understand that noble Lords want to hear more about the consultation that we had. The consultation finished on Friday, and we are now three working days in. I am blessed not only with a first-class colleague on the Front Bench in my noble friend Lord Ashton, but also with an outstanding Bill team behind me. However, even they might struggle to evaluate the 1,700 responses that have been received thus far in such a short period of time. I also know that there is a slight uneasiness—and quite rightly so—about my pre-empting the consultation outcome, as I did in Committee in relation to the provisions on advance notice of speakers. I probably should not go too much further down that route. However, this again is part of the process and part of the consultation. We will take this debate into account.
The noble Lord, Lord Rosser, asked about online safety. In paragraphs 68 and 69 on page 20 of the consultation document there is a provision which asks people to look at safety online. I also agree that the guidance will be absolutely critical in making sure that we get the right message across. We need to avoid a situation in which people see this as something which they have to fear as clamping down on freedom. They need to see it as good practice in ensuring not only the safety of their campus, but also the safety and security of our wider society. With that, I am happy to move my amendment, and I invite my noble friends not to move Amendment 14F.
Lord Bates
“( ) When issuing guidance under this section in relation to universities and other higher education institutions, the Secretary of State shall have due regard to the principle of academic freedom and to the matters specified in section 202(2) of the Education Reform Act 1988 (the university commissioners).”
Baroness Lister of Burtersett
My Lords, in moving Amendment 15A, I shall speak also to Amendment 15C in my name and that of other members of the Joint Committee on Human Rights, two of whom apologised that they had to leave. Amendments 15A and 15C together would require the Secretary of State to have due regard to the principle of academic freedom, as already recognised by Parliament in Section 202(2) of the Education Reform Act 1988, when issuing guidance or directions under this section. It was quoted earlier, but I remind noble Lords that it includes a duty,
“to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.
I believe that it was inserted by your Lordships' House and it would be appropriate if we were to do the same now.
I would argue that Amendments 15A and 15C are perfectly compatible with the Government’s own Amendment 15D. They would simply add to it by making explicit reference to the important duty to uphold academic freedom in the 1988 Act, which is currently missing. This is a duty that is very important to academics, as it puts flesh and bones in the context of higher education on to the more abstract duty of freedom of speech contained in the 1986 Act and referred to in the Government’s own amendment.
I think that we have all been guilty at times of conflating the two principles of freedom of speech and academic freedom. If I may say so, the Minister does so in his letter of 3 February to me and other noble Lords—and here I thank him for finding a few minutes yesterday to discuss the amendments with me. The letter refers to the impact that the Prevent duty might have on academic freedom of speech. Although the two principles overlap, there is also a clear distinction, which it is important to understand because it is at the heart of why the amendments matter. Here, I have to part company with the noble Lord, Lord Pannick, who is not in his place, when he suggested that one necessarily implies the other.
While I have always counselled my students against relying on Wikipedia, on the principle of “do as I say” rather than “do as I do”, I turn to it now because it provides a helpful working definition of academic freedom. It says that it is,
“the belief that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts (including those that are inconvenient to external political groups or to authorities)”.
It spells out:
“Academic freedom and free speech rights are not coextensive … Academic freedom involves more than speech rights; for example, it includes the right to determine what is taught in the classroom”.
In Committee, I illustrated my worries by citing a discussion of the Charlie Hebdo attack that colleagues instigated, open to all staff and students in my school at Loughborough University. What was at issue here was not so much the freedom of speech of staff and students as the academic freedom to feel safe to instigate such a discussion that might be interpreted as potentially drawing some students towards ideas that conceivably might lead them towards violent terrorism. If the duty to uphold academic freedom as well as freedom of speech was written into the Bill itself, it would, I hope, give some assurance to both lecturers and students that it is still safe to have such controversial discussions. If it is not written in, I fear a chilling effect on both—lecturers playing safe and not instigating debate on such controversial topics related to terrorism, or something like it, because of feeling pressure from university management not to take risks of this kind, and/or students feeling afraid to engage honestly and openly. This would then have the counterproductive effect, which was discussed quite a lot in Committee, of pushing extremist views underground rather than allowing staff and students to discuss them critically. Indeed, a Hansard Society student on placement with me put it very well. He said, “You prevent the peers of the extremists from engaging with them and you cripple their ability to persuade them to abandon extremist views”. Earlier, that point was made very eloquently by the noble Baroness, Lady Warsi, and the noble Lord, Lord Wilson of Dinton, who are not in their places.
I will also illustrate the point with reference to the draft guidance. Paragraph 57, for example, makes it clear that the Home Office expects universities to carry out a risk assessment of where and how their students might be at risk of being drawn into not just violent extremism but non-violent extremism, which, as Universities UK has consistently pointed out, is not generally unlawful. The noble Lord, Lord Macdonald, earlier referred to this bit of the guidance as hopeless. It is easy to see how in a university with risk-averse management—which is probably true of much of university management these days—this could translate into pressure on individual academics not to offer certain courses or lectures or to pursue certain research grant applications, or to discourage certain topics of inquiry by doctoral students.
The Government’s free speech amendment is helpful in relation to the draft guidance in so far as it refers to visiting speakers and events but it does not address the academic freedom issues that are the stuff of everyday academic life as lived and breathed by academics and students. Robert Moretto’s legal advice, to which I referred in our earlier debate, suggests that, as currently drafted, the guidance “seeks to avoid” the kinds of issues raised by the tension between the Prevent duty and existing freedom of speech and academic freedom duties of such concern to noble Lords. It therefore gives the individual academic little clarity. The Government’s amendment goes some way towards providing that clarity but I suggest that if the Minister could go away and come back at Third Reading with something that incorporated these amendments too, it would do the job even better.
Because of the tight timescale with fast-tracking, it has not been possible to have the kind of more in-depth informal discussion that would have been normal between the stages of the Bill. My noble friend Lady Smith of Basildon has already referred to the problems that this has created. I think that the problems have been as much for the Minister and his team as for anyone else. It would be such a shame if, for this practical reason, we lost the opportunity to strengthen the Bill in a way that I believe is totally compatible with the Government’s aims.
If the Minister felt able to go a bit further—again, I appreciate how far he has already moved on this part of the Bill—it would give some reassurance to the academic community who are so anxious about this Bill and who I fear will have been very disappointed at the outcome of the debate on the second group of amendments. I beseech the Minister to be as flexible as possible, but if it really is impossible will he at least commit to ensuring that the guidance states that due regard must be had to the principle of academic freedom as recognised in the Education Reform Act 1988, although this does not address the question of directives, as these amendments do. I beg to move.
Baroness O'Loan (CB)
My Lords, I support the noble Baroness, Lady Lister, on Amendments 15A and 15C, to which I have added my name. I thank the Minister for listening and for giving effect through his new amendments to at least part of the arguments which we raised on freedom of speech in the context of the Prevent duty in Part 5. But as the noble Baroness, Lady Lister, has said, there remains the issue of academic freedom, which was discussed in the debate on the earlier group.
Academic freedom was given statutory protection under Section 202 of the Education Reform Act. It imposes a duty on university commissioners to,
“have regard to the need … to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.
This protection is vitally important to academics. There can be no doubt that policies, opinions and even moral values change, and with those changes come the need to challenge existing wisdom and to seek new ways and new processes within the law.
We see that particularly in university teaching and research, where the good academic enthuses his or her students through proper exposure to their research, often in ground-breaking areas where the conventional wisdoms no longer provide the necessary answers. Academics need the freedom to bring into their lecture theatres voices and ideas which may even offend received wisdom and the necessary challenge can then take place. Above all, they need to be sure that in pushing the boundaries for the common good they do not place in peril their livelihoods and their careers.
These amendments are of the utmost importance. Some 540 of the UK’s most senior academics signed a letter in Tuesday’s Guardian warning that the Bill would place an unlawful and unenforceable duty on universities. They call for the Government to take steps to ensure that academic freedom remains uncompromised by efforts to tackle extremism in the UK. I hope that the Minister will accept that Amendments 15A and 15C would enhance the proposed arrangements in respect of the Secretary of State’s guidance and directions to universities in the context of the Prevent duty and would protect academic freedom while not hindering the very proper fight against terrorism.
The amendments would give assurance to academics, young and old, in the work they must do, which can be both brave and challenging, and I would like noble Lords to look at some of that work. It is not easy to challenge what may be received wisdom in communities which have been radicalised, but equally it is not easy to challenge received wisdom in communities where there is an illusion but not the reality of democracy. I am sure noble Lords know where I am going: I am going to Northern Ireland.
In the late 1960s, 1970s and 1980s, the Northern Ireland civil rights movement, and ultimately the universities, played a profoundly important role in challenging the status quo in Northern Ireland using non-violent methods. I wish to refer noble Lords to a description of non-violent methods for this purpose. It states that,
“non-violent extremism … can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.
For decades there were those in the universities and colleges who said that Bloody Sunday was a tragedy and an outrage and that the Government of the United Kingdom, in the publication of the report on the atrocities of Bloody Sunday, had done a terribly wrong thing. That was, if you like, a challenge to democracy as it stood at the time, and those academics were sometimes in a difficult place. There is no doubt that the articulation of the fact that the Bloody Sunday shootings were unlawful may well have been used as a justification for violence by those who subsequently went to violence and extremism of the most violent kind, but that does not mean that the efforts by academics to bring these matters to the attention of society and to have the truth told should have been condemned and prevented because they might have drawn people into terrorism. There is something more fundamental at stake here.
Noble Lords also know of the allegations of wrongdoing on Iraq and our entry into the war in Iraq. You could argue that the identification of what happened that led us into the Iraq conflict and brought us out of it, leaving a serious state of disarray and a huge tragedy behind it, was wrong—we await the report of the Chilcot inquiry—but you could also argue that the challenge of going into the war in Iraq, which many noble Lords opposed, and what happened in Iraq was a justified challenge, and yet it may well have given rise to a justification for extremism even in this country.
The essence of freedom of speech and freedom of expression and academic freedom is that the truth will be protected and cherished, and that people will have the right to say things which even Governments find very difficult to take and which ultimately may be proved to be true.
Baroness Sharp of Guildford (LD)
My Lords, I rise to speak to Amendment 15B in my name and that of my noble friends Lady Brinton, Lady Williams and Lady Hamwee. Before speaking to that amendment I would like to say that I have a great deal of sympathy with the arguments that have been put forward by the noble Baronesses, Lady Lister and Lady O’Loan. If the Minister is going to think again about his amendment, I hope that he can find some way of incorporating these thoughts into that amendment. I realise that, as it stands, it covers guidance. The issue that we are coming on to, which is the issuing of directions, carries that forward and has a much more direct challenge to the autonomy of universities than the issuing of guidance.
The other amendment is directed entirely to Clause 29, which gives the Home Secretary the power to direct any authority, including universities and other educational institutions, to issue a direction if she is not satisfied that the authority has been discharging its duty under Clause 25(1).
We discussed this at considerable length in Committee and I do not want to repeat the arguments that we rehearsed at that stage. The Minister in reply to that discussion stressed that this was in every way a last resort power which it was hoped would hardly, if ever, be used. He suggested that perhaps it was just there in the background to try to make sure that people took the guidance seriously. Nevertheless, considerable disquiet remains about its possible usage. This probing amendment seeks to clarify the procedures which might be used. It seeks to ensure that the Government inform the authority of any direction that they are minded to make, and that the authority concerned should have the opportunity to make representations before any final decisions are made to issue such a direction. It also seeks to ensure that the Secretary of State will consider those representations before making the final decision. It seems natural justice that, where such a last resort power is used, the institutions concerned should have a chance to know why the power is being used and to make their own case against it.
Lord Thomas of Gresford (LD)
My Lords, if the Minister is not prepared to accept Amendment 15B, can he assure the House that a direction that has been issued would be subject to judicial review and, in the consideration of the judicial review, that the court would bear very much in mind whether a proper opportunity had been given to the university concerned to consider the complaint and to make representations about it? If that were an assurance from the Dispatch Box, I think that the amendment would no longer be necessary.
Baroness Williams of Crosby
My Lords, I have one short point, which has not been raised before, to add to this part of the debate. We now have in this country approaching 100,000 overseas students, a high proportion of whom—about one-third—come from China. A directive from a Minister to a university, as perceived by an overseas student from China, would be very close to being a government censure on that university. The amendment moved by my noble friend at least gives an opportunity for a university to set out why it has refused to take the action that the Secretary of State has enjoined it to, and to explain whether this is a relatively minor aberration or a serious defiance of the directions that the university has been given. That really could be quite important in terms of the attraction to students coming from overseas countries, especially those that have—shall we put it like this?—rather coercive Governments.
Baroness Smith of Basildon (Lab)
My Lords, it has been an interesting debate. I particularly want to look at Amendments 15A and 15C in the names of the noble Baronesses, Lady Lister, Lady O’Loan, Lady Buscombe and Lady Kennedy. This seems to be very similar to the debate we had earlier, and to the ones we had last week and at Second Reading, about how we define academic freedom and freedom of speech. My impression from listening to what the Minister has had to say in responding and from what I think he intended by his amendment—my noble friend Lady Lister made this point—is that this is about looking at those things together, as a whole. The noble Lord, Lord Pannick, I think, made the point that he took the Minister’s amendment—Amendment 15D—to incorporate academic freedom as well as freedom of speech. So our discussion here, in some ways, is not about the principle—I think the Minister has made clear his view on the principle of this—but about making sure that the detailed legislation is correct.
I must say that I do not agree with the noble Baroness, Lady O’Loan, about what the consequences of that could be. I do not think it would prevent a discussion of the origins of the Troubles in Northern Ireland or that it would have those dire consequences. However, the perception among some academics that it may do is quite worrying.
Baroness O'Loan
If a university has a group of people who want to hold a meeting, or if an academic wants to bring a speaker in, and the purpose is to challenge vociferously something which the Government have done, could that not conceivably constitute non-violent extremism? Could the university not, under the directions to be issued by the Secretary of State, find itself in a position where it has to determine whether or not it allowed that meeting to take place? That is all I was saying.
Baroness Smith of Basildon
It is quite a leap to say that a challenge to the Government automatically becomes something extreme. We are challenging the Government here today in terms of the debate we are having but, from what the Minister has been saying during this debate, that challenge to the Government is not being seen as extremism at any point. However, my noble friend Lady Lister made the point about the perception among academics of their freedom being curtailed. My noble friend was very clear in her comments about what she was seeking: to be absolutely clear in the Bill, or if need be in guidance, about that academic freedom and about the need, as quoted in the Education Reform Act 1988,
“to ensure that academic staff have freedom within the law”—
as was said earlier, all freedom of speech is qualified within the law—
“to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.
I do not think, from what the Minister is saying, that he wants in any way to curtail that. This seems to be largely a technical point and one that, I hope, can be easily resolved. I hope he will address it in comments that he makes today. Perhaps he will be able to take it away and reflect on it or, indeed, ensure that it will be in guidance. However, some reflection on this point, which seems to me to be entirely compatible with his Amendment 15D, would be very helpful.
Lord Bates
My Lords, I will just deal with a few points from this debate. This group of amendments deals with Clauses 28 and 29. I will refer first to Clause 28, particularly the now amended subsection (4A). The point was raised by the noble Lord, Lord Phillips of Sudbury, who asked whether it would be possible for the affirmative resolution, which is coming forward on the guidance, to cover more than just the date when it will be brought in, which was one reading of the amendment. I confirm, of course, that it will cover both the date and the content of the guidance. We recognise that that is a very important part. It is not clever wording trying to curtail debate. We recognise that that is the intent and I wanted to take the opportunity before we leave Clause 28 to put that on the record.
The noble Baroness, Lady Lister, in moving her amendment, asked that the Secretary of State,
“have due regard to the principle of academic freedom”,
when issuing guidance or giving direction. We have already amended the Bill to ensure that particular regard is paid by the Secretary of State to the duty to secure freedom of speech in higher and further education, as set out in Section 43 of the Education (No. 2) Act 1986. The interplay between the duty in that Act and the principle of academic freedom set out in Section 202(2) of the Education Reform Act 1988 is an interesting one.
The Education Reform Act defines academic freedom as, in particular, the ability for academic staff to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or the privileges they may have at their institutions. I well acknowledge the remarks made by the noble Baroness, Lady O’Loan, who told us very powerfully in earlier stages of the Bill about the rigours of actually teaching constitutional government—I think it was—in Northern Ireland during the time of the Troubles. We accept that what is described here is effectively a subset of freedom of speech which higher and further education institutions have a duty to secure through Section 43 of the 1986 Act.
Furthermore, I note that the 1986 Act extends the duty to secure freedom of speech not only to academic staff but also to employees, students—to whom the noble Baroness, Lady Williams, referred—and visitors. It covers both higher and further education institutions, whereas the matters referred to in Section 202 of the 1988 Act are only pertinent to the academic staff of universities.
Without going any further at this stage, I would like to reflect on what the noble Baroness said, without saying anything binding. I certainly understand where she is coming from, if it is a matter of interpretation. We just need to check that with lawyers. If she is willing not to press that amendment, I will certainly give an undertaking to look at it again and perhaps come back with some comments at Third Reading.
I turn now to Amendment 15B in the name of my noble friend Lady Sharp, which would require the Secretary of State, prior to making a direction, to inform the authority of that intention and to give the authority the opportunity to make representations before the direction is made. Any decision made by the Secretary of State must be reasonable and proportionate. In most circumstances, this would require only the steps outlined; so in that sense, we believe that this amendment is not necessary. I can also assure the House once again that it is the Secretary of State’s intention, as a matter of policy, to use this power only as a last resort, when other means of securing compliance through discussions with the authorities—who will be at liberty to make representations at that stage—have been exhausted. I should also reiterate that both the Prevent oversight board, on which our noble friend Lord Carlile sits, and the courts—to answer the point made by the noble Lord, Lord Thomas of Gresford—will play a role in the process of giving and enforcing such a direction.
To clarify, we do not want, as it were, to run to the bottom line on this point of the direction. It is a necessary consequence of making statutory the requirement to have due regard that there must be some legal doorstop. If people refuse to abide by the law then, just as with any other law, ultimately it trickles down to the court and might end up in contempt of court. We recognise that we are treading on very sensitive ground here. I am sure that all Secretaries of State will weigh that very carefully. Also, they must have particular regard when issuing that direction to the freedoms outlined in the 1986 Act.
With that reassurance to my noble friend and the promise to reflect on the amendment moved by the noble Baroness, Lady Lister, I ask noble Lords to consider not pressing their amendments at this stage.
Baroness Lister of Burtersett
My Lords, I thank all noble Lords who spoke in support of Amendments 15A and 15C, in particular the noble Baroness, Lady O’Loan. Her experience in Northern Ireland is very relevant to our discussions and throws real light on what is at issue here. I am also grateful to my noble friend Lady Smith, although I do not think that anyone is saying that this would necessarily cause that effect. This is the whole concept of the chilling effect: it is about perception and what people fear. I will not go into the phenomenology and so forth, but perceptions become reality because that is how people think. The chilling effect is very real.
I am most grateful to the Minister. I could not, because of the breakneck speed at which we must go through this, really ask for more than that he is prepared to go away and reflect. I accept that it is not binding. However, I trust that he will look very seriously to see what might be possible to come back with at Third Reading. I am very grateful to him. On that basis, I beg leave to withdraw the amendment.
Lord Bates
“Freedom of expression in universities etc
(1) This section applies to a specified authority if it is the proprietor or governing body of—
(a) an institution that provides further education (within the meaning given by section 2(3) of the Education Act 1996), or(b) an institution that provides courses of higher education (within the meaning given by section 579(1) of that Act).(2) When carrying out the duty imposed by section 25(1), a specified authority to which this section applies must, if subject to the duty imposed by section 43(1) of the Education (No. 2) Act 1986 (freedom of speech in universities etc), have particular regard to it.
(3) In relation to specified authorities that are subject to that duty, the Secretary of State must have particular regard to it—
(a) when issuing guidance under section 28;(b) when considering whether to give directions under section 29.”
Lord Bates
Baroness Hamwee
Baroness Hamwee
My Lords, I will also speak to Amendments 15G, 15H and 15J. I referred at the start of this afternoon to the infrastructure which goes along with the statutory duty created by this Bill—the bureaucracy, cost and so on. I do not underestimate or undervalue the negative impact to which I also referred earlier. I read then a part of the response to the consultation on the draft guidance from the London Borough of Sutton. It also referred to descriptions of working across borough boundaries. That made me realise that the legislation may not reflect the current realities of the way local government works.
Sutton talks about sharing,
“a great deal of information and planning with neighbouring boroughs around risk and consequent Channel planning ... This cross border risk identification and consequent planning is not considered in the guidance”.
It goes on to talk about training, and about,
“‘borrowing’ a Police Prevent Engagement Officer (PEO) from the Police in a neighbouring Borough. There is no PEO allocated to Sutton”.
It continues:
“It would clearly be impossible to provide the frontline training for staff in local authorities and education institutions and organisations suggested in the guidance without significant additional funding”.
I shall come to that on the next group of amendments, when I will talk about collaboration in training.
That is a response to the guidance, but should there be something in the Bill? Local authorities are increasingly sharing back office functions, and indeed some front office functions as well. Children’s services and adoption services may be shared, as may any number of services. So should a local authority have “a panel … in place”, as Clause 34(1) requires? I suggest that a panel should be “available” instead. An authority should have access to a panel. It would still have the duty; it would not be avoiding responsibility. But as the clause is worded, would each authority be required to have its own panel? I hope that the Minister will be able to reassure us that local authorities can share functions as I have described.
Clause 34 is about Channel, whereas the previous chapter dealt with Prevent. The point comes up here, so can the Minister confirm that guidance will allow for cross-border as well as multi-agency working? I suppose the bottom line is that the Bill should not actually make cross-border arrangements of this sort ultra vires. If that can be dealt with in guidance, fine. But as the Minister is going to be reflecting so much over the next two or three days, perhaps he could get somebody else to reflect on that point—because if we lose the opportunity to make it clear in the Bill, we shall be in trouble.
In relation to Amendment 15G, my noble friend Lord Carlile drew attention to the need to recognise that when we talk about housing providers, we do not usually mean local authorities. He mentioned the Peabody trust, I think, as probably having the most social housing in London. He mentioned a point that had not previously occurred to me, about recognising the knowledge that housing providers have of their tenants, and the important role that they can therefore play. Understandably, having heard those comments, the Minister answered in terms of the panel. But I am not so concerned about that, because Clause 35(4) provides for co-option. It does not use that term, but that is what it amounts to: there can be appointed,
“such … persons as the … local authority considers appropriate”.
It could therefore appoint a representative of the housing providers.
The amendment, which is the same as the one to which I spoke in Committee, is about the support to be provided to, or required by, an individual. Clause 34 deals with the support that the panel can provide or facilitate, and subsection (5) deals in general terms with the support plan. There is no mention of specific services in it, so housing could be read as being included in those arrangements. However, subsection (6) applies when,
“a panel determines that support should not be given”,
and is considering,
“whether the individual ought to be referred to a provider of any health or social care services”.
Why is that reference so narrow? There must be other relevant services, and I would have thought that housing was pretty obviously one of those. Stable accommodation plays an important role in stabilising someone who has a chaotic or difficult life. I have referred to “other” services because there seems to be no reason to limit the clause, as drafted. The clause does not require the provision of any services; what it requires is the consideration of whether an individual should be referred, and the arrangements to refer him. If there is no positive reason to limit the clause, I am bothered that the Government may be quite unnecessarily depriving the local authority of a tool that it could use.
I hope that, at the very least, the Minister can take this on board. Earlier today, somebody said, “I hope the Minister will go away”, and then there was a pause; let me put it as hoping that he will take away the possibility of guidance covering this issue. Similarly with my earlier point, the point here is that the Bill should contain an assurance that other referrals are within the powers of the panel. I do not read it that way, but I am happy to defer to those who are more skilled in interpreting what legislation actually means. This is another vires point, and I beg to move.
Lord Bates
My Lords, I am grateful to my noble friends for tabling these amendments and allowing us to return to the measures in Chapter 2 of Part 5, relating to programmes to support individuals at risk of being drawn into terrorism. Of course in England and Wales, these provisions relate to the existing Channel programme, which we are putting on a statutory basis. My noble friends’ contributions have benefited from great experience of local government and I will seek to address the issues raised by their amendments.
Amendment 15F relates to the duty requiring each local authority to ensure that a panel is “in place” for its area to provide support to people identified as being vulnerable to being drawn into terrorism. The amendment would substitute “available” for the current term “in place”, aiming to ensure that there is flexibility to allow for panels to be in place for combined local authority areas. I hope that I can reassure my noble friend that this amendment is, in reality, unnecessary because Clause 39(3) already provides for one panel in a local authority area to serve multiple local authorities. Local authorities have the flexibility to determine whether to run their own panel or conduct panels with one or more other local authorities.
Amendments 15H and 15J would add to the list of members of a panel any other local authority which was “served by the panel”. I assure my noble friend that the intention here is that some authorities may wish to co-operate by having one panel serving a number of areas and, in those circumstances, would want to ensure attendance by all the local authorities concerned. In certain areas this may be the most suitable approach, and the Government would support this. As I have said, Clause 39(3) already ensures that the panel must include a member from each local authority and each police force where a panel serves more than one area. In addition, the proposed legislation already anticipates other local authorities sitting on a panel by listing them in Schedule 7 as partners to the panel. This means that they are subject to the duty to co-operate with the panels under Clause 36. These additional local authorities would most certainly be invited to attend if a person from their area was under discussion.
Amendment 15G would add “housing” to the list of additional services to which a panel should consider making an onward referral if it was considered that support from the panel was inappropriate. This follows up on a point made by my noble friend Lord Carlile when we debated these clauses in Committee. There are of course many types of support which a panel could consider in these circumstances. I reassure noble Lords that the guidance which will be produced specifically mentions housing as one of these.
My noble friend asked, “Do housing providers attend Channel panels?”. The answer is yes. In Westminster local authority housing advisers have attended Channel panels where appropriate. This is particularly important where vulnerable individuals have already been allocated social housing. For matters concerning new allocations it is the responsibility of the local authority to take this forward. In relation to the Bill, it seems more appropriate to confine the list to those types of support most essential to safeguard health and immediate welfare.
I hope that my noble friend is satisfied with the explanation that has been put on the record and that I will not have to take the amendment away to think again. Perhaps she can reflect on this and withdraw her amendment.
Baroness Hamwee
Before my noble friend sits down, I should say that he referred to Clause 39, where the reference is to the “combined area”. I intended my questions to be rather broader than the combined area—where authorities collaborate to provide particular services and activities. As I understand the term—and I may be wrong in this—that does not amount to a combined area. More current experience in local government indicates that I may be right. I took my examples from the response of the London Borough of Sutton. I did not name it, but it was talking about working in collaboration with Croydon. I think both Croydon and Sutton would be pretty surprised if they were thought to be a combined area. I am prepared to reflect, but I am trying to give my noble friend an opportunity to respond, since he has not sat down yet—in the House of Lords parlance.
Lord Bates
Of course we will look again at any suggestions, particular one coming from the borough of Sutton. We are saying that, where the duty applies, and the Channel panel covers a number of local authority areas, they would be deemed combined for the purposes of the Channel programme. I am happy to look at that and perhaps it is something about which I can write to my noble friend, though I may not need to do so. Co-operation between local authority officers would be permissible, not just in combined areas. Local authorities could co-operate; “combined” is a specific term and it would cover those areas too.
Baroness Hamwee
“Costs of prevention and of local panels
As soon as practicable after the end of each financial year the Secretary of State shall report to Parliament the costs incurred by local authorities and other specified authorities attributable to compliance with the duties under sections 25 and 34, and what specific grant has been made by the Secretary of State to meet those costs.”
Baroness Hamwee
My Lords, I have referred previously to the cost of the statutory duties—in relation not just to the substance, but to the infrastructure built by the Bill. This amendment refers both to,
“local authorities and other specified authorities”,
but I particularly had in mind local authorities. I am not sure that I have yet done so, but I declare an interest in that I am joint president of London Councils.
I have previously mentioned the “new burdens” principle, which might be expected to apply to these activities, and I have previously referred to some of the costs which have been estimated by the Government. London Councils is unconvinced by these.
My noble friend Lord Scriven will speak to this amendment, so I shall simply explain that, as a way of drawing attention to the costs, the amendment proposes an annual report to Parliament by the Secretary of State. The matter could be included in a report dealing with other matters. Maybe there should be some prospective reporting of the costs anticipated to be incurred.
On the first day of Report, I think it was, the noble Lord, Lord Harris of Haringey, referred to the refusals to disclose money allocated to the Metropolitan Police for counterterrorism for security reasons, though, as he observed, some detail of that budget eventually comes into the public domain as it is scrutinised by the London Assembly. I used to chair the Assembly’s budget committee, so I remember all that.
There should be as much transparency in this area as possible. There is a lot of concern about the costs and, in any event, what money is spent on what is a matter of public interest. I beg to move.
Lord Scriven
My Lords, I thank my noble friend Lady Hamwee, and I thank the Minister for guiding the Bill so ably and patiently through the House. I am aware of the time, so I will try not to keep the House too long.
Until now, the debate has been about putting on to a statutory footing the powers that some specified organisations will have and some that they will not. The Minister, along with others who support this going on to a statutory footing, has indicated that this is to bring the rest up to the standard of the best. I know, as I am sure do many people who have had responsibility for public service and budgets, that bringing things up to the best does not necessarily mean being able to do it on the cheap; there is a cost associated with it.
Evidence has come from a number of organisations. In my former life as leader of a council, I was not one who participated in the Oliver Twist-type approach to budgeting by always asking for “more, please”; that is not the approach. However, when new burdens or new statutory responsibilities are being put on an organisation, it is only fair that it is adequately funded for those. As I say, evidence has come from a number of sources in the past couple of months about putting this on to a statutory footing—for example, from the Quilliam Foundation, the Local Government Association and a number of local authorities. More revealingly, the Audit Commission, when it did a report on Prevent in 2008-09, made it clear that resources were needed if this was going to be done effectively and efficiently. I assume that the Minister and the Government want to see this being done in that way.
It would be worth looking at the fact that historically something in the region of £140 million per year, or even more, was previously allocated to Prevent, and large cities were getting somewhere in the region of £600,000 per annum to deal with Prevent issues. I always go to impact assessments because they are very revealing, and I notice that in this one the Department for Communities and Local Government indicates that authorities will need somewhere between £4,000 and £40,000. Past evidence suggests that to do this to the best, large authorities need somewhere in the region of £600,000. It is telling that the impact assessment says that we do not have complete data on all the specified authorities that will be affected, and that is why there may be a discrepancy.
Manchester City Council, in a report that went to its cabinet only a few months ago, highlights specifically the financial burden that this is now having on a city such as Manchester, and says clearly that it cannot be sustained at its present level. So there is evidence historically; there are people who are not providers, or not public statutory bodies, such as the Quilliam Foundation, and existing providers of Prevent, who are saying that resources will be needed.
The London Borough of Sutton has done some work on the consultation and says that for such a borough, somewhere between £50,000 and £60,000 would be required for a Prevent co-ordinator—looking at local government, that is about the rate that such people are paid. Somewhere in the region of £250,000 would be required for new interventions, based on best practice from Wandsworth. Sutton also anticipates somewhere in the region of a £150,000 per annum increase in capacity for core safeguarding work, child protection and early work interventions.
This is not cheap. This is not work, if we are going to do it effectively, that can be done with existing resources; that is becoming very clear. The cost from Sutton does not include some of the extra work needed for administration and, as my noble friend Lady Hamwee suggested, some of the extra work needed for looking cross-border at a larger area.
Staff training is a full duty within the guidance. I quote from paragraph 37, which states:
“Local authorities will be expected to ensure that frontline staff have a good understanding of Prevent, are trained to recognise vulnerability to being drawn into terrorism and are aware of available programmes to deal with this issue”.
Staff training in itself will run into many hundreds of thousands of pounds for large authorities. Some of them have between 8,000 and 10,000 staff. The impact assessment states that it will cost £62 for 20 members of staff trained. For a local authority with between 8,000 and 10,000 front-line staff, as some of our large metropolitan authorities have, it will mean £31,000 to carry out just one section of the guidance. That is a significant cost.
I suggest that the duties placed on the public sector will be far more than the anticipated £10 million to £14 million per annum that the impact assessment suggests. I will give one example of why the figures are completely inadequate. Staff training is anticipated in the impact assessment to require an allocation by government of £300,000 per annum. There are 254,000 staff employed by the public sector in the north-east region. Assuming that only 50% of those are front-line staff, that is more than £300,000 per annum. Yet £300,000 per annum is being given for the whole country for staff training.
The amendment tries to get a commitment that, if we are going to go down the route of putting this onto a statutory footing and we want to make sure that local public bodies carry out best practice, adequate funding is provided. If not, the Government’s target of meeting best practice will not be achieved. Resources will not be available, particularly in the present climate in terms of public sector resources. So I ask the Minister the questions asked by my noble friend Lady Hamwee: will new burdens apply to the new duties that are to be put on the public sector, and will money be put forward annually, as the amendment says, before Parliament, so that local authorities and other public bodies locally will be compensated for the duties they will have under a statutory footing?
Baroness Smith of Basildon
I have a very brief comment. I listened with great interest to the noble Lord’s comments. I think he was right to ask those questions, and I am sure he shares my concern that the coalition Government cut substantial funding from Prevent, so fewer local authorities have benefited in the past couple of years. There are questions to be asked of the Minister because Prevent is very important. We recognise that by making it statutory, but I regret the cuts the coalition Government have made to the Prevent programme.
Lord Bates
My Lords, in considering these amendments, I defer to the extensive and detailed local government expertise of my noble friends Lady Hamwee and Lord Scriven. Before I respond to the specifics of the amendment, I repeat that in relation to the Channel guidance, we are consulting local authorities and specifically Channel panel chairs. We would be very happy to consult London Councils—Sutton was mentioned in particular—to take account of their views and concerns and to address them in any guidance that is issued. If other local authorities feel the same, that would be welcomed.
Amendment 15K concerns the costs of implementing the duties in Chapters 1 and 2 of Part 5. The amendment would require the Secretary of State to report to Parliament on the costs incurred by specified authorities and on the grant made to meet those costs. My right honourable friend the Prime Minister has already announced £130 million of extra resource over this year and next to meet the increased terrorist threat from Syria and Iraq. Some of this funding has been earmarked for the implementation of the duty in the chapter. I am not trying to suggest that it is all going there. The vast majority, I think, is heading towards the security services for technology capability.
Channel panels already exist in all areas of England and Wales. Under existing arrangements, which should not change in practice as a result of this legislation, the Home Office provides funding for Channel police practitioners who co-ordinate activity in organising cases and supporting panels. Each of the nine police regions receives funding to support the Channel programme. For national security reasons, we do not publicly provide a breakdown of police counterterrorism spend by individual projects, capabilities, work streams or police force areas. Disclosure could identify areas where the threat to the national security of the UK is greatest and where there are vulnerabilities in different regions and capabilities. I hope that that helps in some way to explain the reasons behind this.
The Home Office also funds theological and ideological interventions—so that which is not provided by the local authorities is provided by the Home Office. We therefore do not consider that local authorities should incur extra costs as a result of the implementation of this chapter. Any statutory services provided would be met through existing funding.
Lord Scriven
The impact assessment states that extra work will happen because of the statutory duty, so the Government have made very clear that extra costs, not just to local authorities but to other statutory bodies within local areas, will be brought about by the new statutory duties. I am not clear what to follow as the specific guidance: the answer that the Minister is helpfully trying to give or the Government’s impact assessment, which is very clear about extra costs being associated with these new statutory duties—not just for local authorities but for other statutory bodies as well.
Lord Bates
I am happy to look at that. We are consulting on this. A little bit like the discussion we had on universities and higher education earlier on, it might be the case that there is some misunderstanding about the level of the duty which will be required as a result of this new law. That is the reason why the consultation will be very helpful. It is something that I will take away and reflect back on, and also feed back to colleagues in the Department for Communities and Local Government in relation to this, with whom we work closely. I will also perhaps write to the noble Lord with a little more information if I can. In the mean time, if the noble Baroness would be willing to withdraw her amendment, I would be grateful.
Baroness Hamwee
My Lords, I, too, am bemused about whether this is a new burden or whether the cost will be nil. I do not have the impact assessment with me, but looking back at the costs that I quoted in Committee on 28 January, I see that I referred to the impact assessment estimating that the total cost of the measures for England and Wales would be around £40 million, although within that, the cost of placing Channel panels on a statutory footing has been estimated at nil. Perhaps everybody is right. I am also bemused at the figure of £62 to train 10 staff. That seems remarkably little. I presume that it covers the trainer and the time of the staff being trained. My noble friend and I have both been quoting Sutton because we have had the material to help us. It is certainly right to say that in terms of London boroughs, Sutton is a small borough.
I am grateful to my noble friend for agreeing to make sure that at least the information that has been put out is correct and that there are no queries hanging over that, and particularly for his offer to consult with the umbrella organisation London Councils. I have no doubt that this topic is one which will be raised repeatedly in conversations between local authorities and DCLG, as well as with the Home Office, but I am glad to have had the opportunity to air this, and it is important that the points made by my noble friend have got out into the open. I am sorry, I am not suggesting that there has been any attempt not to reveal anything. I beg leave to withdraw the amendment.
Lord Ashton of Hyde
“Reviews of operation of Part 1 etc
(1) The person appointed under section 36(1) of the Terrorism Act 2006 (“the independent reviewer”) is also responsible for reviewing the operation of the provisions listed in subsection (2).
(2) The provisions are—
(a) Part 1 of the Anti-Terrorism, Crime and Security Act 2001;(b) Part 2 of that Act as it applies in cases where a use or threat of the action referred to in section 4(2) of that Act would constitute terrorism;(c) the Counter-Terrorism Act 2008;(d) Part 1 of this Act.(3) In each calendar year the independent reviewer must, by 31 January, inform the Secretary of State and the Treasury what (if any) reviews under this section the reviewer intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.(4) The independent reviewer must send to the Secretary of State a report on the outcome of each review as soon as reasonably practicable after the review is completed.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) The expenses and allowances that may be paid under section 36(6) of the Terrorism Act 2006 include expenses and allowances in respect of functions under this section.
(7) In this section “terrorism” has the same meaning as in the Terrorism Act 2000 (see section 1(1) to (4) of that Act).”
Lord Ashton of Hyde (Con)
My Lords, I am pleased to have the opportunity to return to Part 7 of the Bill today, and particularly matters relating to the Privacy and Civil Liberties Board, which I know is a topic which has generated much interest and thoughtful debate among your Lordships at earlier stages of this Bill.
Your Lordships’ House is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, the current incumbent, who has occupied this role since February 2011, and who my right honourable friend the Home Secretary holds in the highest regard, already does an excellent job reviewing key pieces of UK counterterrorism statutes. His recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism, which has been acknowledged across all sides of the House.
This office, which has existed in various forms over 35 years, has traditionally been occupied by individuals of judgment, independence and legal expertise. A number of previous incumbents are esteemed Members of this House and have contributed to vital public debate about our counterterrorism powers. It is with this in mind that the Government have given very careful consideration to the weight of views expressed by this House, the other place and David Anderson himself during the debate on this Bill, and it is why, in part, I am bringing forward Amendments 16 to 21 for your Lordships to consider today. These amendments make important changes to the role of the independent reviewer and, separately, are intended more clearly to define his relationship with the proposed Privacy and Civil Liberties Board already provided for in the Bill.
Of the six amendments proposed by the Government, the first—Amendment 16—recognises that unsatisfactory gaps have developed over time in respect of the independent oversight of key pieces of counterterrorism legislation which in turn make it more challenging for the independent reviewer, and indeed the Government, to provide full assurance to the public that all of our counterterrorism powers operate as intended.
Amendment 16 therefore inserts a new clause which will extend the remit of the Independent Reviewer of Terrorism Legislation to include other counterterrorism legislation to ensure that those Acts are the subject of independent scrutiny and, in turn, that the Privacy and Civil Liberties Board, to which I will turn later, can support him in reviewing the operation of these laws.
In practice, that will mean that in addition to those Acts currently subject to review—the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011—the independent reviewer will also be able to review Part 1 of the Anti-terrorism, Crime and Security Act 2001, and Part 2 of that Act in so far as the power is used in cases relating to terrorism; the Counter-Terrorism Act 2008; and Part 1 of this Bill, containing the new temporary passport seizure and temporary exclusion order powers, when enacted.
It is right and proper, however, that we do not risk the important role of the independent reviewer becoming diluted by expanding its remit to a much wider and less well defined list of statutes. This change to the independent reviewer’s remit will be limited to true counterterrorism provisions and will ensure that its scope does not stray into other areas which might properly fall—or at the very least stray—within the remit of other independent oversight bodies.
I will deal with the other government amendments in a moment but, before doing so, I would like to touch on Amendment 16A, tabled by my noble friend Lady Hamwee. This amendment would extend the independent reviewer’s remit further still by adding to it the statutory responsibility to review Part 2 of the Justice and Security Act, covering closed material procedures, and the power of the Secretary of State to deprive citizenship, in certain circumstances, under Section 66 of the Immigration Act 2014.
I recognise that my noble friend has a long-standing interest in those specific issues, and I appreciate that she has tabled the amendment intending to ensure that important areas of the law have sufficient oversight. However, I hope that I can reassure her that, in the Government’s view, that change is unnecessary.
The closed material provisions contained within Part 2 of the Justice and Security Act 2013 are already by their very nature subject to robust oversight. Each application for a closed material procedure is scrutinised in detail by a judge. The judge then keeps that application under review as necessary throughout the proceedings, to ensure that there is no detriment or unfairness to any party. The Ministry of Justice also publishes annual statistics on the overall use of closed material procedures.
In addition to that judicial oversight inherent in any individual use of CMP provisions, Parliament has already provided for review of the power as a whole. Section 13 of the 2013 Act requires that the Secretary of State must—I repeat “must”—appoint a person to review the operation of Sections 6 to 11 of the Act, the closed material procedure provisions, at the five-year mark from commencement.
I hope that your Lordships will appreciate that bringing the provisions within scope of the review by the independent reviewer could result in unnecessary duplication and may unnecessarily encroach into the territory of the appropriate reviewer, to be appointed by the Secretary of State in future.
Similarly, Parliament has already provided that the use of immigration powers is overseen by the Independent Chief Inspector of Borders and Immigration. The Immigration Act 2014 contains the power to deprive an individual of British citizenship where their conduct is seriously prejudicial to the United Kingdom. Section 66 of the Act provides that within one year of that provision’s commencement, which is July this year, the Secretary of State must—and again the word is “must”—appoint a person to review its operation. That person’s report will be laid before Parliament. That person could be David Anderson, as we have previously said, but we also need to be mindful of the many competing demands on his time. The important point here is that the provision already exists in statute, and we think that it would be inappropriate to seek to duplicate it in this legislation.
Baroness Hamwee
“(e) Part 2 of the Justice and Security Act 2013;(f) any provision of immigration and nationality law to the extent it is used for counter-terrorism purposes”
Baroness Hamwee
I welcome the government amendments. In my clumsy way, I tried to deal with the issues raised by the independent reviewer about his remit and the new board at the last stage. The Minister referred to two of the five issues that the independent reviewer sought to cover, which I tried to cover at that last stage. I am flattered that he suggested that my Amendment 16A comes from my own interest and concerns about the Justice and Security Act and the disclosure of sensitive material, closed material proceedings, special advocates and all the rest of it, as well as my concerns about immigration and nationality law. I indeed have those concerns but I cannot say that this is a self-started amendment. I was asked to pursue the subject. The independent reviewer has made clear that he wants this. He does not seek to go beyond the counterterrorism area. I hope that the amendment is clear on that. His blog has already been quoted and I shall quote from it too. He wrote:
“It is however a shame that the Reviewer was not also given the opportunity to review the operation of other powers, including immigration powers, to the extent that they are used for counter-terrorism purposes. I have no evidence whatsoever that any of those powers is used in an improper manner. But in such a sensitive and secret area, it is as well to have the assurance that only independent review can provide”.
He continues by quoting from his report of last July, which said:
“More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s ‘dirty work’”.
I suggest my amendment because the independent reviewer has a holistic approach to this whole area. Individual case oversight and different reviewers, to which my noble friend has referred, while reassuring, do not meet the points that the reviewer has in his mind. He clearly looks at how the whole of counterterrorism legislation is operating and has ranged beyond the relatively narrow legislative remit that he has had in the past. Previously, I have heard him say that he is not seeking a turf war with other reviewers but, equally, he does not see these things in silos, which is why this amendment has come forward. I beg to move.
Baroness O'Loan
My Lords, I support the noble Baroness, Lady Hamwee. This amendment derives from the work of the Joint Committee on Human Rights in scrutinising the Bill. We took evidence from a number of people, including the independent reviewer. It was his recommendation about the major gaps in his function which should be filled which led to the creation of this amendment. I did not put my name to it to lead it because, in my innocence, I thought that there was a possibility that we might get to it earlier in the evening when I would be engaged in a committee. I have much to learn about your Lordships’ House.
As the noble Lord, Lord Ashton, rightly says, the independent reviewer had identified these major gaps. The Government have also accepted and recognised those gaps. I think that the independent reviewer has been looking at the whole architecture of counterterrorist legislation and has tried to ensure that there is—I do not like to use the word holistic—a complete, effective and standard-based approach to the review, which I do not think is provided by individual case-by-case judicial proceedings.
The opportunity here is simple and it would not add a great deal to the work of the independent reviewer were the Government to consider again this amendment. As the Minister has said, the office of the Independent Reviewer of Terrorism Legislation is very highly respected in the country. I have worked very closely with some of the predecessors of David Anderson QC and I know how very significant that work is.
We are just asking for two issues to be moved into the remit of the independent reviewer under this amendment. As the noble Baroness, Lady Hamwee, has said, the first concerns Part 2 of the Justice and Security Act 2013, which deals with closed material procedures. Those procedures apply in litigation, which very often is litigation that is seeking compensation in claims against the Government and other authorities, and where there is a problem that there is material the disclosure of which will be damaging to the interests of national security.
Lord Thomas of Gresford
My Lords, I will not follow my noble friend Lady Hamwee and the noble Baroness, Lady O’Loan, on Amendment 16A but will turn to Amendments 18 and 19 in this group.
The Minister may recall that in Committee I asked what the Privacy and Civil Liberties Oversight Board was for and I think that Amendment 19, particularly in paragraph (b), is a rather elegant solution to the question I posed in that, obviously, the board will be chaired by the independent reviewer and he can decide in which direction he wishes to take the board and to what degree it should cover the ground that he feels to be necessary. I welcome Amendments 18 and 19 and thank the Government for thinking again on these issues.
There is only one outstanding issue—the degree to which the board would have access to sensitive material. That will have to await another day when, no doubt, the independent reviewer will be able to transfer to the Minister concerned at the appropriate time the degree to which he feels the board requires access and is inhibited by the fact that it does not see the same papers as he will see. The board would clearly be much more efficient if it was cleared for security purposes to the same degree as the independent reviewer.
The issue in Committee was whether the board was for oversight or support. That question has been soundly answered. Clearly the board is there to support the independent reviewer and I am grateful to the Minister for making that clear.
Lord Butler of Brockwell (CB)
My Lords, I too am grateful for the consideration that the Government have given to this matter and, in particular, to the powers of the independent reviewer. I am also grateful to the Minister for the frankness of his speech and for the way he has reported the reactions of the independent reviewer, which are obviously not an absolutely wholehearted welcome. I think it is excellent that the powers have been extended in the way that they have been.
I have an open mind on the amendment of the noble Baronesses, Lady Hamwee, Lady O’Loan and Lady Ludford. I think that it would be good if the independent reviewer had the power—not the sole responsibility—to look at any provision of immigration and nationality law to the extent that it is used for counterterrorism purposes. That is clearly within his remit. The Minister himself said that it might very well be that Mr Anderson will be asked to be the person to report on the operation of the closed procedures in Part 2 of the Justice and Security Act. Therefore, I am rather sympathetic to those amendments and I do not think it would be very difficult for the Government to accept them.
However, I am sympathetic to the Government’s wish not to have too much duplication in this area. As a member of the Intelligence and Security Committee, which also roams over this area, I would like to say that we, too, have no problem with Mr Anderson. His co-operation with us is very good. We have no difficulty with the fact that we are looking at things which he is also looking at.
On his reservation about access to secret material, I am afraid that this intensifies my concerns about the very existence of the Privacy and Civil Liberties Board. I think it is an improvement that Mr Anderson is to be consulted on and will have influence over the appointment of the members of the board and that it is there to support him. He has asked that he should have a written assurance that he should have access to all the secret material that he wants. I am sure that the Government would not have the slightest difficulty in giving Mr Anderson that assurance. But it complicates his relationship with the board, because, as the noble Lord has just said, the Government might well have reservations about that very secret material—the freedom to have the most secret material there is extended to the members of the board. I think that may be unnecessary. Clearly it would be difficult for Mr Anderson if he has access to material and the board has not.
All this leaves me with doubts about the utility of the board. I am glad that it is there to support Mr Anderson. I know that he needs more support. In responding to this, can the Minister say whether it is intended that the secretariat of the board should be the extra support that Mr Anderson needs? I do think that he needs extra support, but I would like to see the support there without the existence of the board, the utility of which I greatly doubt.
Baroness Ludford (LD)
My Lords, very briefly, given the hour, I think we can all agree that the independent reviewer is not only a formidable lawyer but a master of modern communication with his blogs and tweets.
I welcome the broad support for Amendment 16A given by the noble Lord, Lord Butler. I want to press the Minister a little on some of his replies: first, on the potential clash with the Independent Chief Inspector of Borders and Immigration. I have just tried to flick through his last annual report but I do not think that he touches on anything to do with national security or powers linked to counterterrorism. As the noble Lord, Lord Butler, has just said, there is a way of dovetailing to make sure that there is no clash. What Amendment 16A proposes is very much to the extent that immigration and nationality law is used for counterterrorism purposes, which is not broadly the focus of the borders and immigration inspector.
Then there was a reference to a one-off review of Section 66, on deprivation of citizenship. However, a one-off review is not the same thing as continuous review and monitoring, so that is really apples and pears.
I join the noble Lord, Lord Butler, in wondering about the Secretary of State at some point, possibly several years hence, appointing an overseer of Part 2 of the Justice and Security Act. The Minister said that that person could be the independent reviewer. Why wait? Why risk setting up two separate posts, which would be inefficient and potentially add some costs? Why not short-circuit the exercise by deciding now to give that function to the independent reviewer? As my noble friend Lady Hamwee said, the case-by-case judicial oversight of the court is not what is meant here by the independent reviewer’s role in having that overview of the way that Part 2 of the Justice and Security Act, on closed material proceedings, has been employed in a whole string of cases. It is rather different. I would press the Minister to give a little more justification as to why Amendment 16A is not feasible.
Lastly, I may not have heard the Minister correctly—it may, again, be the lateness of the hour—but I am not sure that he gave an in-principle explanation of why it is not possible to have a statutory basis for the access to secret material. Of course, I accept what he and the independent reviewer have said—that in practice there has not been a problem and that if the Government tried to be obstructive, we would all know about it pretty soon. However, I do not think that he explained what the policy, or legal or other difficulty, is.
Baroness Smith of Basildon
My Lords, as we glide through the final hour of the day, it is appropriate that we also glide through the final amendment. I congratulate the Government on the fact that the consultation on the Privacy and Civil Liberties Board ended on 30 January and we have new amendments to debate on 4 February. That is quite an achievement.
I am grateful to the Minister, as we are significantly better placed than we were when the Government first announced this back in July, when the noble Lord, Lord Taylor, and I were debating the DRIPA legislation. This was announced with no detail, although the detail then emerged that this was going to replace the independent reviewer. The Government wisely listened to those who said that this was a dreadful idea and could not see the logic behind it—but we then moved into an area where there was a lack of clarity and confusion. The Minister will be aware that we put down significant amendments in Committee on this, and I greatly welcome the amendments today.
I am also grateful to the Minister for meeting me to discuss this issue. He knows it was of enormous concern to us. Although I share some of the reservations of the noble Lord, Lord Butler, we are in a much better place. From what we are seeing here and from what the independent reviewer, David Anderson, is saying, he will find a way to make the board work effectively and be useful to him. The noble Lord made the point about him asking for a junior counsel or barrister to work with him. It seems to me that he has the opportunity here, if the board is acting under his direction and control, for somebody who is on the board to fulfil that role for him. I would not envisage a secretariat of the board—I am not sure how much of a secretariat the board will need—but certainly a board acting under his direction and control will provide an opportunity for him.
The other issue that we raised in our amendments was that the remit of the board should deal specifically with the impact of counterterrorist legislation on communities. I know that the independent reviewer already sees that as part of his role, but it is not explicitly in the amendments before us today. I do not think it necessarily matters, as long as it is made clear that he continues to see that as he does at the moment.
Lord Butler of Brockwell
The way the noble Baroness talked about the relationship between the independent reviewer and the board underlines the importance of the point made by the noble Lord, Lord Thomas, about clarifying whether the board is to be supportive or consultative. She talked as if the board was going to be part of the support staff for the reviewer, which would be excellent—but in that case, it is rather funny to call it a board. Why not just call it his staff?
Baroness Smith of Basildon
I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,
“direction and control of the Independent Reviewer”.
So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.
Lord Ashton of Hyde
My Lords, I thank all noble Lords who have spoken. They were broadly in support—although I fear that we may not be able to persuade the noble Lord, Lord Butler, that this is a good idea. However, I will come to what the independent reviewer thinks of it later.
One thing that is important to say right at the beginning will answer, to a certain extent, the points made by my noble friend Lord Thomas, the noble Lord, Lord Butler, and some other noble Lords as well, about the information that the board itself will be able to see. We think that it is important that any individuals appointed to the board are provided with an appropriate level of security clearance; so the independent reviewer is cleared to see classified information—and, if necessary, the same will apply to members of the board. Of course, the independent reviewer has a great deal of influence on who is appointed to the board. The Home Secretary will work on his recommendation, although of course it is ultimately the Home Secretary’s decision. I think that covers most of the points made by my noble friend Lord Thomas. I am grateful for his support on that.
The noble Baroness, Lady Smith, mentioned what she said at Third Reading about communities—sorry, I meant what she said in Committee. Third Reading is on Monday; we go from week to week in no time at all. The present reviewer sees that issue. On the point about the board working under his direction and control, I do not see any reason why that should change. He will be able to use the benefits of the members of the board to continue with those areas that he wants to focus on. One reason we have removed the annual necessity for reviews, with the exception of the Terrorism Act, is that the independent reviewer will now be able to conduct thematic reviews instead of just purely linking them to individual bits of legislation. Again, I take the point about the relationships that he has built up over the years—including with foreign countries. As to him being chairman of the board and using board members as support, I do not see any reason why that should change, either.
There was talk about whether the secretariat would supply support and whether the members of the board will be there to provide advice or work for him. I think that both are the case. They will work under his direction and control, and he will also be able to appoint people who have particular skills in different areas that he can draw on. For example, he might be able to appoint someone who is—this was nearer to his original idea—a junior barrister who is appropriately security cleared. However, I take the point that one might not describe that in common parlance as a board, but the name is what we have. Several noble Lords talked about the label on the tin representing what is inside. On that subject, privacy and civil liberties are obviously important in connection with terrorism legislation. If you open the tin which is so labelled and see inside, “Chaired by and under the direction and control of the Independent Reviewer of Terrorism Legislation”, you would get a pretty good idea of what the board is about.
Moving on to my noble friends Lady Hamwee and Lady Ludford, I fear we will not be able to go as far as they want. We extended the remit of the independent reviewer and think that it is right to draw limits on that. I agree that a one-off review is not the same as a review by the Independent Reviewer of Terrorism Legislation. Equally, judicial oversight is not the same, but it is oversight and reassurance for each individual case on those closed material proceedings. It has value. At the moment, we have drawn the line where we have, for the reasons I said: mainly because of overlap and duplication. We think that the way we have done it at the moment concentrates on those—
Baroness O'Loan
How can there be duplication if the Government were to include Part 2 of the Act and appoint the independent reviewer to review it? There is nobody currently reviewing that legislation and there will not be for five years, so how can that be duplication? It will not avoid duplication but simply prevent review.
Lord Ashton of Hyde
The review that the noble Baroness referred to was what Parliament laid down in the Act. That was what Parliament required as the oversight for that Act. We will have to stay with the extended remit as we have put it. At the moment, I am afraid that I cannot make any guarantees that we will extend it to the Acts that my noble friend Lady Hamwee asked for.
Finally, on the Privacy and Civil Liberties Board, whether or not it is what the independent reviewer wanted, he may be making the best of a bad job, but he has stated that,
“if skilled and practical people are appointed to the Board, content to work under the Reviewer’s direction, the capacity for independent review will be improved … the Government has listened to what I have been saying, and put forward changes which should significantly improve the ability of the Independent Reviewer to do an effective job”.
I am therefore confident that the changes we are proposing will further enhance his ability to provide robust oversight of the full range of counterterrorism legislation on the statute book, including this Bill, once enacted. I again ask my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, it is late, but it has been a worthwhile discussion and I am glad to have had support, although maybe slightly qualified support in some cases, for the principle of my amendment to Amendment 16. I say to the noble Baroness, Lady O’Loan, that if her name had been the lead name on the amendment, we would probably have reached it at about 5.15 pm, because that is the way it always goes.
The noble Baroness, Lady Smith of Basildon, used the terms “extent” and “impact”. I do not think that there is really anything between us on the substance, but she reminded me of the amendment that I tabled at a previous stage, referring to any other law relating to counterterrorism and national security legislation, and then adding something about considering whether such legislation contains appropriate safeguards, is proportionate and necessary.
I think that the Minister made my point for me, because in describing the changes to the timetable that the independent reviewer must observe, he said that now he would have more opportunity to make thematic reviews. That is precisely why I would like to see the provisions in the amendment included in the Bill. I can see that that is not going to happen, but this will not be the last time that the point is made. I beg leave to withdraw the amendment.
Lord Ashton of Hyde
“Reviews of operation of other terrorism legislation
(1) In section 36 of the Terrorism Act 2006 (review of terrorism legislation)—
(a) in subsection (2), for “carry out a review of those provisions and,” substitute “carry out—(a) a review of the provisions of the Terrorism Act 2000, and(b) a review of the provisions of Part 1 of this Act,and,”;(b) in subsection (4), for “subsection (2)” substitute “subsection (2)(a)”;(c) after subsection (4B) insert—“(4C) In each calendar year the person appointed under subsection (1) must, by 31 January, inform the Secretary of State what (if any) reviews under subsection (2)(b) the person intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”(2) In section 31 of the Terrorist Asset-Freezing etc. Act 2010 (independent review of operation of Part 1 of that Act), for subsection (2) substitute—
“(2) In each calendar year the person appointed under subsection (1) must, by 31 January, inform the Treasury what (if any) reviews under this section the person intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”(3) In section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (reviews of the operation of that Act)—
(a) for subsections (2) and (3) substitute—“(2) In each calendar year the independent reviewer must, by 31 January, inform the Secretary of State what (if any) reviews under this section the reviewer intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”;(b) omit subsections (7) to (9).”
Lord Ashton of Hyde
“( ) Regulations under this section must—
(a) provide for the Secretary of State to appoint members of the board after considering any recommendations made by the person appointed under section 36(1) of the Terrorism Act 2006;(b) provide for the board to be chaired by that person and to be subject to his or her direction and control.”
Lord Ashton of Hyde
“( ) A reference to a calendar year in the following subsections does not include a year before 2016—
(a) subsection (3) of section (Reviews of operation of Part 1 etc);(b) subsection (4C) of section 36 of the Terrorism Act 2006 (inserted by section (Reviews of operation of other terrorism legislation)(1) above); (c) subsection (2) of section 31 of the Terrorist Asset-Freezing etc. Act 2010 (substituted by section (Reviews of operation of other terrorism legislation)(2) above);(d) subsection (2) of section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (substituted by section (Reviews of operation of other terrorism legislation)(3) above).”
Lord Ashton of Hyde
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