Counter-Terrorism and Security Bill
(9 years, 9 months ago)
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Lord Taylor of Holbeach (Con)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Counter-Terrorism and Security Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 1: Seizure of passports etc from persons suspected of involvement in terrorism
Amendment 1
Lord Bates
“( ) In Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) (civil legal services: excluded services), in paragraph 2(d) (proceedings in court of summary jurisdiction in relation to which funding for representation may be provided), after paragraph (xx) insert—
“(xxi) under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015;”.”
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, Amendment 1 relates to the availability of civil legal services in Northern Ireland for hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained under the power in Part 1, Chapter 1, of the Bill.
Your Lordships will recall that, in Committee on 20 January, the House agreed to an amendment that extended the availability of legal aid to those subject to the temporary passport seizure power in England and Wales, subject to individuals meeting the statutory means and merits tests. At that time, I advised the House that we were discussing the matter with the devolved Administrations and that further amendments may be required.
Accordingly, this amendment is necessary to ensure that, subject to means and merits tests, civil legal aid may be available in relation to applications to extend a temporary passport seizure to a district judge in the magistrates’ courts in Northern Ireland, as set out in paragraph 8 of Schedule 1 to the Bill. The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that Act may require some amendment and that will, of course, be taken forward through the Scottish Parliament.
Amendment 1 will amend paragraph 2(d) of Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 to bring the proceedings in Schedule 1 to the Bill within the scope of civil legal services in Northern Ireland. The amendment also ensures that advocacy before the district judge in the magistrates’ courts may be included in the civil legal aid that may be available for those proceedings. The amendment does not alter the statutory means and merits tests, nor does it make available civil legal aid for any other civil legal services in Northern Ireland. Legal aid is already available for judicial review proceedings in Northern Ireland, subject to individuals meeting the statutory means and merits test.
The Government consider that an amendment to the scope of the civil legal aid scheme in Northern Ireland is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances, and the absence of an alternative route to resolution.
The Joint Committee on Human Rights and a number of noble Lords have expressed an interest in this issue and I trust that this further amendment will also be welcomed by your Lordships’ House. I beg to move.
Lord Bates
Lord Bates
My Lords, in moving Amendment 2, I will, with the leave of the House, speak also to Amendments 3, 7 and 8. These all relatively minor and technical amendments in relation to the Prevent duty in Part 5, Chapter 1, of the Bill.
Schedule 6 specifies those authorities subject to the duty. Amendments 2, 3 and 7 increase the flexibility here to allow for the duty to apply only in relation to the performance of certain of a specified authority’s functions that we chose to refer to in the schedule. We do not have any intention of altering the current descriptions in Schedule 6 at the present time, but these amendments will allow for the possibility of such nuances to be included in the future.
Amendment 7 seeks to provide a clarification that functions caught by this duty do not include functions exercised outside Great Britain. This matches the territorial extent of this part of the Bill.
Amendment 8 follows on from the government amendment tabled on Report, which required that the Prevent guidance be subject to parliamentary scrutiny. This amendment allows for the power to issue such guidance to commence upon Royal Assent. This will ensure that the guidance can be issued and considered by Parliament at the earliest opportunity, prior to the duty itself being commenced, so that specified authorities have as much time as possible to make preparations in the light of the guidance before it takes effect. I beg to move.
Baroness Hamwee (LD)
My Lords, I welcome these government amendments, as I do all their amendments at this stage. I particularly welcome the proposal that only particular functions of authorities which are specified in the future may be caught. I wish I had thought of using the term “nuance” when I tabled a similar amendment at a previous stage about the current list of authorities.
I have a question for my noble friend on Amendment 7 and functions exercised outside Great Britain. I imagine that his notes include one or two examples of what that might comprise. I asked my noble friends sitting next to me whether they had any ideas. My noble friend Lady Ludford suggested that the measure might apply to the activities of UK Visas and Immigration. I do not know whether the Home Office would come down with a heavy fist on a Home Office body, but I am sure that it is a good principle. It seems that my noble friend may not have any examples, in which case I will let him off the hook as he has been so helpful on other matters.
Lord Bates
My Lords, I am very grateful to my noble friend for her question on these amendments. We are happy to supply further examples but one which springs to mind is that of a university which has another campus outside the United Kingdom. However, if there are other examples which would be helpful to your Lordships, I am happy to write at a later date.
Lord Bates
Lord Bates
Lord Bates
This is the third and final group of amendments. In coming to the end of Third Reading, it is appropriate that I conclude my remarks on the subject of academic freedom.
On Report, your Lordships’ House agreed a government amendment to 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 they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech.
A number of noble Lords, in particular the noble Baroness, Lady Lister of Burtersett, argued that we should add to that provision so that particular regard must also be given to the principle of academic freedom. As I set out at the time, the Government do not believe that such a reference is strictly necessary: the description of academic freedom in Section 202 of the Education Reform Act 1988 is essentially a subset of freedom of speech as set out in Section 43 of the Education (No. 2) Act 1986.
However, your Lordships made the case that the principle of academic freedom itself should be explicitly referenced in the Bill. I committed to give this matter further consideration in order to provide reassurance. Therefore, I have tabled Amendments 5 and 6 to include “academic freedom” in Clause 31. This should provide unequivocal reassurance that the Prevent duty is not designed to undermine the principle of academic freedom. The Government have also tabled Amendment 4 to provide greater clarity as to which institutions the clause applies to. The new reference to Schedule 6 to the Education Reform Act 1988 makes it clear which higher education institutions are required to pay particular regard to freedom of speech and academic freedom when carrying out the Prevent duty. I trust that this provides greater clarity for your Lordships.
As this may be, without tempting fate, the last point I make formally on this matter—I am aware that the noble Baroness, Lady Lister, may wish to respond—I would like to place on record my deep thanks to your Lordships’ House for the consideration that they have given this very important Bill. We have spent seven days in Committee and we have had thirty-eight and a half hours of scrutiny. The Bill has been scrutinised not only by the excellent contribution of the current members of the Joint Committee on Human Rights, but by former council leaders, senior lawyers, former Law Lords, former judges, IT gurus, a former chief prosecutor, former diplomats, Cabinet Ministers, former Home Office Ministers, university vice-chancellors, academics, college heads, three former Cabinet Secretaries, two former directors of the security services and two former chiefs of the Metropolitan Police. That level of scrutiny has been reflected in some 237 amendments, which have been considered by your Lordships. People can therefore have some confidence that this important piece of legislation will leave your Lordships’ House in better shape than when it arrived.
I thank in particular Her Majesty’s Opposition—the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser—and also my noble friend Lady Hamwee and the noble Lord, Lord Paddick, for their contributions, their scrutiny and their liaison which has been ongoing throughout the course of our proceedings on the Bill.
It is appropriate that we conclude our discussions on this key issue, which is all to do with freedom of speech and academic freedom. It reminds us that while the purport of this piece of legislation is very much to keep us safe, we are ever mindful that we need to protect the very freedoms which the people who would seek to attack us want to take away. We cannot do their work for them and therefore we have refined and sharpened the Bill to make sure that it is suitable for that purpose.
As well as thanking all the Members who have taken part in your Lordships’ House, on a personal note I pay particular thanks to my noble friend Lord Ashton of Hyde for his assistance during the process, and also to the Bill team. I am sure that everyone—my noble friend Lord Ashton of Hyde, the Bill team, and all your Lordships—would want particular thanks to go to those members of the security services, the police force, and the Border Force, who give of their time and safety every day to keep us safe from these particular crimes. All they ask in return is our support and the tools to do the job. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I very much welcome Amendments 5 and 6, which write into the Bill the duty to,
“have particular regard to the importance of academic freedom”,
as defined in the 1988 Act, alongside the duty on freedom of speech, which was conceded on Report. I am really very grateful to the Minister. As a member of the Joint Committee on Human Rights, I thank him for listening and taking action so late in the day. I am sure he groaned inwardly when I burst into his office last week. No doubt he thought that everything had been sewn up. I am therefore particularly grateful that he was prepared to take action and go the last mile so late in the day.
I also thank the Bill team and the lawyers for executing the decision so neatly. I am sure that they also groaned—perhaps not quite so inwardly. I also welcome the Minister’s latest letter to noble Lords, in which he made clear that:
“‘Particular regard’ is stronger than ‘due regard’ because it elevates the consideration to the top of the list of factors to be weighed up i.e. freedom of speech is the most important other duty, rather than simply another one to be considered, such as health and safety”.
It might be helpful if he could confirm that, so that it is on the record.
I have one final question: what is the timetable is for finalising the guidelines and bringing regulations before both Houses?
Lord Phillips of Sudbury (LD)
For the sake of absolute clarity— because there has been a great deal of confusion about these aspects of the Bill—can my noble friend say whether it is correct that his Amendments 4, 5 and 6 make no difference whatever to the purport of the Bill, are merely clarifying and have no substance?
Baroness Kennedy of The Shaws (Lab)
I join in thanking the Minister for what he has done in reaching the right conclusion, particularly with regard to academic freedom. Balancing security with liberty and freedom is a very difficult business, and he has brought to this issue sensitivity, intellectual rigour and great listening skills. He has performed his function as a Minister in the most exemplary way, and I hope that others will follow suit. I wanted to thank him formally.
Baroness Sharp of Guildford (LD)
My Lords, as another of those who argued in favour of the amendments on academic freedom that were put before the House, I thank the Minister very much for his co-operation. Like others, I am pleased with the overall result, even though some of us would have liked implementation of the Prevent duty to be postponed for some time for a review of it to take place. However, we are very grateful to him for what he has achieved.
One of the issues that I raised with the Minister was whether the duty under the 1986 and 1988 Acts, which extend to further education colleges, included sixth-form colleges. I have had confirmation from the Bill team that the provision indeed includes those colleges. That results in a slightly anomalous situation in which sixth-formers in schools are not included within the general duty to promote freedom of speech in the same way. It is possible that there will be some follow-through from the Association of School and College Leaders, for example, to obtain further clarification from him.
Baroness Brinton (LD)
My Lords, I, too, add my thanks to the Minister and the Bill team for the amendments. As I said at earlier stages of the Bill, as someone who has had to deal with different codes of practice and work out which takes predominance over the other, the critical thing that came fairly early on in your Lordships’ House was the clear importance of the responsibility to hold on to the duty of freedom of speech. It was during that debate that academic freedom came up and I am very grateful that these amendments have been laid. Contrary to the question that my noble friend asked about whether this changed anything, I think that for people working in the academic world it is an important clarification. I received a number of questions from people in the academic community wondering exactly where these academic freedoms stood. Therefore, I am very grateful to the Minister.
Lord Elystan-Morgan (CB)
My Lords, as one who pecked away as rather a nuisance in relation to Section 202 of the Education Reform Act 1988, I give special thanks to the Minister for his courtesy and understanding in this matter. There might well have been a technical argument that the wording of Section 43 of the 1986 Act already covered the point, because it refers to employees in the context of freedom of speech, but it would have been churlish to do so. I am very grateful to the Minister for his chivalry, courtesy, sensitivity and, indeed, his bounty and generosity in this matter.
Baroness Williams of Crosby (LD)
My Lords, I, too, wish to echo the thanks to the Minister for his persistence and patience. I am also grateful to him for letting me know that he and his officials are discussing consultation with universities and students with regard to the guidance offered by the Minister. As it happens, I spent Friday with a group of young sixth-formers from, I suppose, every kind of ethnic and religious background, a substantial proportion of whom were Islamic. They all strongly took the view that it was very important to enable discussion and debate to take place at their age level. They suggested, very sensibly, that the Government could help by, for example, encouraging political parties and Cross-Benchers to suggest the names of people who might be willing to speak to sixth forms of that kind and to respond if a school asks for a speaker without itself having one in mind. That was a very good suggestion by these young men and women. I hope very much that the Minister will persist with his discussions with the officials. It is crucial that young people feel themselves involved and part of the whole effort to try to deal with terrorism in this country.
Lord Hannay of Chiswick (CB)
My Lords, I add my thanks to the Minister for the latest amendments that he has tabled, which met very clearly points made by me and others in the debate on Report. I hope that he will not feel the need to answer too clearly the question put to him. In the professional field in which I practised for many years, clarifications were what you called changes of substance that you did not wish the Opposition to be able to say was a change of substance.
Lord Lamont of Lerwick (Con)
My Lords, the Minister has been absolutely showered with garlands and bouquets. I am sure they are extremely well deserved and I am very reluctant to strike a discordant note—and I will not. However, I wish to follow the point made by the noble Baroness, Lady Williams, on the guidance notes. Everyone is talking about academic freedom but in the Bill it is not just about academic freedom; it is also about freedom of speech on campuses and meetings held in universities. I am concerned about this because recently a degree of intolerance has sometimes been shown, with people trying to ban meetings in universities. Therefore, I have been a little worried about some of the things in the guidance notes.
The Minister will recall that I was puzzled, as was the noble Lord, Lord Macdonald, by his concept of non-violent extremism. I was not altogether convinced by the Minister’s reply as to what that meant. However, what really alarmed me was the substance of the guidance notes. I come to this very fresh, compared to people who have been looking at this for a long time. I drew attention to this business of having to give advance notice of what your speech was going to be about, and rating speakers from seven to 10—or one to 10—on how much risk there was of them causing a disturbance on campus. How do we rate David Irving or Marine Le Pen? These are very difficult judgments to make.
I went through a number of the provisions. In reply, the Minister just said, “Some people made a lot of fun of the guidance notes”. He did not answer any of the points. As the noble Lord, Lord Butler, said, a lot of this is pretty unworkable. It reminds me, as I think it reminded the noble Lord, a little of some regulation put forward by the FSA and the FCA. There is a lot of box-ticking in this.
I am sure that the concessions the Minister has made on academic freedom are very important. I am sure that they have satisfied a lot of people. That is thoroughly to be welcomed, but I very much hope that the points made about the guidance notes will be taken into account in any reconsideration of them.
Baroness Buscombe (Con)
My Lords, I also congratulate my noble friend the Minister on putting the Bill into far better shape than it was in when it left the Commons, as is so often the case in your Lordships’ House. It shows your Lordships working brilliantly together, as we do.
I agree with everything that my colleagues on the Joint Committee on Human Rights, the noble Baronesses, Lady Kennedy of The Shaws and Lady Lister, said about the clauses we are looking at now. I also say to my noble friend Lord Lamont that if he had been with us at Second Reading and in Committee, he would have been rather more assured that some of the aspects that concerned him about the guidance have already been debated at great length. I am sure that my noble friend the Minister will have taken those issues on board.
On substance, I also say to the noble Lord, Lord Phillips of Sudbury, that this is about clarification, which will make all the difference to perception. Perception is hugely important; I think of the 500 signatories who attached their names to a letter in the Guardian only last week. The Minister has responded with clarity, which is exactly what we all asked for. I thank him for that.
Finally, and with respect to my noble friend, I remind all noble Lords of the need to put pressure on whoever is in government after the forthcoming election to bring back to the House debate and legislation regarding data retention. This is an aspect that remains in the forefront of many noble Lords’ minds. It needs to be addressed further and as quickly as possible.
Baroness Hamwee
My Lords, an acknowledgement of the Minister’s hard work, openness, patience and availability in numerous meetings applies not just to these clauses but to the whole of the Bill. He has been so helpful, as other noble Lords have said.
Having said that, I think it is right to say—noise from behind me suggests that I might be about to criticise the Minister; I am not—that there is a lot of work for the Government and local government, at all levels and in all sectors, to do. I will not be the only Member of your Lordships’ House who has had a number of emails this morning saying that the writer is very concerned about the Bill, or making points about the need for tackling radicalisation to be done from the bottom up. Such emails also mention issues around discrimination and all the things that many of us have voiced at some length during proceedings on the Bill. At this point, while giving ourselves a pat on the back for having got to here, it is only right to remember that the work done outside the legislation is probably more difficult than the legislation itself.
I gave very brief notice to the Bill team of one question. If the Minister is not able to answer it, since it arises from his most recent letter, which is not on the record in Hansard, I will of course understand if he would prefer to answer it by letter. The noble Baroness, Lady Lister, asked about due regard, particular regard and so on. The letter says, in terms, that the particular freedom of speech awareness and the principle of academic freedom are not elevated above the Prevent duty. On the last day of Report, I think, we heard a very helpful explanation of what “due regard” meant. Having said that, the letter goes on a couple of pages later to say that particular regard is stronger than due regard. I found it a little difficult to reconcile the two parts of the letter. The Bill team started to explain it to me, but I needed to get into the Chamber for the start of these proceedings. If that is better dealt with by letter, to have the same status as the letter that gives rise to the questions, perhaps that would be the way to do it.
Baroness Smith of Basildon (Lab)
My Lords, the Minister’s characteristically generous comments when he introduced these amendments illustrate his attitude to the whole Bill. I hope that the well-deserved praise that he has received so far does not damage his promotion prospects in the future, given where it is coming from. He said that the debate had lasted thirty-eight and a half hours. There were times when it flew by and there were times it did not, but it is a testament to your Lordships’ House—and I think noble Lords across the House, other than the noble Lord, Lord Phillips, have recognised this—that we have a substantially improved Bill from the one that we received, and with no votes, which is an interesting comment on the way we have proceeded in our discussions and debates both inside the Chamber and, as the noble Baroness, Lady Lister, referred to, outside the Chamber as well.
I thank the Minister for the number of occasions on which he has been willing to engage. We have all engaged with Ministers across parties in the past where we have engaged but have felt that they perhaps have not engaged in the same way. He has not been guilty of that on any occasion. He did engage properly. Even last Wednesday, I caught him at around midnight as he was leaving the Chamber, and he was willing to discuss the issue of academic freedom further. I think that says a lot about how we got to this substantially improved Bill.
My only question is to ask whether the Minister can place on the record the points that he made in his extremely helpful letter in that regard, as outlined by the noble Baroness, Lady Lister. I think that would be very important. I thank him and his Bill team, who have been available at all times for discussions and debate. I think that is what has led to the improvements.
Can I make one plea? I have also received emails and letters about this. There is some misunderstanding of the purpose of the Bill and how these measures will work. That is going to be very important. Legislation is one thing, but hearts and minds and understanding to make it work in practice in the way that it is supposed to—doing no less and no more than is intended—will be extremely important.
As well as the clarity that the Minister has given to the Bill as a whole, particularly on freedom of speech and academic freedom in Parts 1 and 2 of the Bill, the issues will now receive judicial review. That is extremely important. We pushed it to a vote in the Commons. We did not succeed, but we have succeeded in agreement across your Lordships’ House on that point during our debates.
On the issues of guidance, the fact that we have now increased parliamentary scrutiny by affirmative order is extremely important. I also recognise that during Committee, as the noble Baroness, Lady Buscombe, said, several changes were made to that guidance. She recognised that it would have to be changed before it was presented to your Lordships’ House through an SI.
We support these amendments. We are grateful to the Minister for putting them forward. We also welcome the spirit in which this Bill has been debated and discussed and the changes that have been made. It is a significant testament to your Lordships’ House that, as I said at the beginning, we have a much improved Bill in comparison to the one we received, and with no votes, by negotiation and discussion.
Lord Bates
My Lords, I am very grateful for the comments that have been made from around the House. There is no need for the noble Baroness to worry about damaging my career prospects. As I am reliably informed, I do not have many, having already exceeded my mother’s expectations for my career some years ago.
The noble Baroness made a very important point about the fact that we have considered 237 amendments and there has been no Division, but that is not to say that there has been no difference, change or argument, or really passionate debate. I think of some of the debates that we have had, particularly on academic freedom and communications data, to which my noble friend Lady Buscombe referred. We have had passionate debate all the way through, and as a result of that 40 amendments have been made to the Bill, which will now go on its journey to another place.
Lord Bates
(a) must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty;(b) must have particular regard to the importance of academic freedom, if it is the proprietor or governing body of a qualifying institution.”
“(3) When issuing guidance under section 29 to specified authorities to which this section applies, the Secretary of State—
(a) must have particular regard to the duty to ensure freedom of speech, in the case of authorities that are subject to that duty;“(b) must have particular regard to the importance of academic freedom, in the case of authorities that are proprietors or governing bodies of qualifying institutions.(4) When considering whether to give directions under section 30 to a specified authority to which this section applies, the Secretary of State—
(a) must have particular regard to the duty to ensure freedom of speech, in the case of an authority that is subject to that duty;“(b) must have particular regard to the importance of academic freedom, in the case of an authority that is the proprietor or governing body of a qualifying institution.(5) In this section—
“the duty to ensure freedom of speech” means the duty imposed by section 43(1) of the Education (No. 2) Act 1986;
“academic freedom” means the freedom referred to in section 202(2)(a) of the Education Reform Act 1988;
“qualifying institution” has the meaning given by section 202(3) of that Act.”
Lord Bates
“( ) “Function” does not include a function so far as it is exercised outside Great Britain.”
Lord Bates