Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Guidance) Regulations 2015
Lord Ashton of Hyde
That the draft Regulations laid before the House on 16 July be approved.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 7th Report from the Secondary Legislation Scrutiny Committee
Lord Ashton of Hyde (Con)
My Lords, this secondary legislation has been brought forward in respect of Part 5 of the Counter-Terrorism and Security Act 2015, which is concerned with reducing the risk of people being drawn into terrorism. It relates specifically to the provisions in Section 26 of that Act, which place a statutory duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism when exercising their functions—also referred to as the Prevent duty.
I should inform the House that the Secondary Legislation Scrutiny Committee has considered and cleared the instrument that we are debating today. I would like to place on record my appreciation of the forbearance shown by the chair and members of the committee in considering these instruments outside the normal timescales.
The Bill was debated by this House earlier this year, and the primary legislation was enacted on 12 February. During Parliament’s consideration of the legislation there was widespread recognition of the threat from terrorism and broad support for the measures contained within it. In order to help the House in its consideration of this statutory instrument, I will first briefly outline what the Government seek to achieve by it and why it is necessary for our consideration this afternoon.
In March, guidance was approved by this House for all specified authorities captured by the duty. It included guidance for higher and further education institutions, but not on the specific issue of external speakers and events. Accordingly, the Prevent duty came into force on 1 July this year, with the exception of the higher and further education sectors.
Your Lordships will recall that at the time of the duty’s parliamentary debate, it was agreed that it would not be commenced for these sectors until that remaining guidance had been published, and that it would be for the next Government to take this forward in the next Session. The purpose of the regulations contained in this statutory instrument is to do this. The guidance under consideration today sets out the detail of what the duty will mean in practice for higher and further education institutions and explains the steps that should be taken to ensure compliance. It includes the original guidance for these sectors from the document previously published in March, with an additional section on speakers and events. I can assure your Lordships that the original guidance text remains unchanged from that which was previously approved by Parliament, except that the regulations will bring into effect revisions so as to remove the text that has been superseded by this new guidance. As with the earlier guidance, there are also two versions before us: one for authorities in England and Wales, and a separate one for authorities in Scotland.
Let me turn to why these regulations are so important. To start, I should like to take this opportunity to reiterate why the Counter-Terrorism and Security Act and the Prevent duty were introduced earlier this year. The emergence of ISIL, and the number of people—including vulnerable young people—who have travelled to Syria and Iraq, present a heightened threat to our national security. The intelligence agencies tell us that the threat is now worse than at any time since 9/11. The director-general of the Security Service told us this morning that the UK is facing the largest number of terror plots in almost 40 years, and that six attempts at terrorism have been thwarted in the last 12 months. The threat is serious and it is growing. The threat has changed and so must our response.
As part of that response, we must continue to combat the underlying ideology that feeds, supports and sanctions terrorism, and prevent people being drawn on to that path. The Prevent duty is about protecting people from the poisonous and pernicious influence of extremist ideas that are used to legitimise terrorism, making sure key bodies across the country play their part and work in partnership to do this. The regulations before us today are crucial to ensuring that the duty can be implemented effectively. They will mean that higher and further education institutions play their part in tackling this important issue. Partnership working is a key theme for all specified authorities throughout the statutory guidance. The duty needs to be in force for all authorities for these partnerships to work successfully.
Universities and colleges were made subject to the duty in recognition of the very real risk of radicalisation in those institutions. Young people continue to make a disproportionately high number of those arrested in this country for terrorist-related offences. Radicalisation on campus can be facilitated through events held by extremist speakers, while radicalised students can act as a focal point for further radicalisation through personal contact with fellow students and through social media activity. It is therefore imperative that universities and colleges start to implement the duty as soon as is possible.
Finally, I take this opportunity to set out the steps that the previous Government and this Government have taken to ensure that this guidance is suitable and workable for institutions. Noble Lords will recall that during previous debates on this matter concerns were raised in both Houses as to how the duty would be implemented in higher and further education institutions, particularly where there are existing requirements on these bodies relating to freedom of speech and academic freedom.
I emphasise that the issue of how universities and colleges balance the Prevent duty with the need to secure freedom of speech and to have regard to the importance of academic freedom is, in the Government’s view, extremely important. Indeed, on account of this and the strength of the views expressed in this House, the previous Government amended the legislation to ensure that institutions pay particular regard to the importance of academic freedom and freedom of speech when complying with the Prevent duty. Since then, we have worked with the sector and across government to ensure that the guidance on speakers and events is right, including reflecting comments received as part of the formal public consultation that took place on the draft guidance during the passage of the Bill.
It is now the Government’s belief that the revisions to the guidance and the amendments to the Act address the concerns that have been raised by Parliament and the sectors about this duty. We must now get on with ensuring that our colleges and universities are as safe as possible from the risk of radicalisation.
These regulations are needed to implement effectively the Prevent duty across England, Wales and Scotland, which will ultimately help the Government and law enforcement agencies to keep the country safe from terrorism. I therefore commend the instrument to the House and beg to move that it is approved.
Lord Rosser (Lab)
I thank the Minister for explaining the purpose and objectives of these regulations, which we support in principle. I was somewhat interested to read a press story this morning stating that the Home Office was concerned that Peers could reject the regulations. I only wish that somebody had told me that. Had I known that, I would have prepared a rather different speech from the one I have. If the newspaper report is anywhere near accurate, perhaps someone might explain to the Home Office that the revolution does not normally come during last business on a Thursday afternoon before a three-week recess.
As the Minister said, the regulations were discussed in the other place last week. I shall make a few points in the light of the Government’s response to that brief debate, which ended in a ministerial crescendo, with references to Hegel and Edmund Burke. That must have had the committee on the edge of their seats at 3.45 pm on a Thursday. My first point relates to what was said in the other place and is on paragraph 19 of the guidance, which was queried by Universities UK, which felt that it needed to be changed. The Minister himself raised that point. He said that it was consistent with the Prevent duty and strategy, but that the Government would look at it closely again. If that has not already been done, will the Minister say how the outcome of that further look will be communicated?
The Government also said in that debate that if there was any significant revision to the guidance, it would, “in the spirit we have enjoyed today”, be brought back to Parliament. Does that mean that in the Government’s view there is no requirement under the Act to bring back any revision of the guidance to each House of Parliament for approval, and that doing so is dependent on the attitude and willingness of the Government of the day?
I accept that I may not be referring to the relevant section in the Act, in which case I am sure the Minister will no doubt put me right, but Section 29(5) of the Counter-Terrorism and Security Act 2015 states:
“Guidance … 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”.
Subsection (7) of that same section then confirms that subsection (5), to which I have just referred, has,
“effect in relation to any revised guidance”.
So clarification of the Government’s position on that point, in the light of the Commons Minister’s statement, would be extremely welcome so that it can be placed on the record.
The Minister in the Commons was also asked how he would monitor the use of the documents we are considering, how he would ensure that they served their purpose, and whether he would come back to Parliament to report on how they had been used. In response, the Commons Minister said that he did not think that enough work had been done on the issue of monitoring and reviewing, and that there was a need for close evaluation. He also went on to say that he thought there had been insufficient oversight of Prevent, and that he wanted to see what could be done on that score as well. When do the Government expect to conclude their consideration of these particularly important issues referred to by the Commons Minister, and how will they communicate the outcome of that further consideration?
This point about reviewing and monitoring is one on which the Independent Reviewer of Terrorism Legislation, David Anderson QC, has expressed a view because in his latest annual report, published today, he says that he has previously recommended that the Prevent programme should be reviewed by independent people with a range of expertise. Perhaps the Minister could say whether that recommendation is being considered as part as the Commons Minister’s consideration of monitoring and reviewing arrangements, which he indicated he would be undertaking.
The independent reviewer also goes on to say in his latest report that his own contacts indicate that while good work is undoubtedly done under Prevent, it is also the focus of considerably more resentment among Muslims than either the criminally focused prohibitions or the executive orders. He goes on to refer to the broad reach of Prevent in terms of both the number and age group of persons that it touches and its capacity to target the expression of non-violent views which may be associated with religious and cultural norms. David Anderson also refers to submissions made to him by the Muslim Council of Britain, on which he makes clear he cannot comment on the accuracy or otherwise of the cases raised, but does make the general comment that any state activity which seeks to monitor the expression of opinions, however well intentioned, is liable to be perceived as directed to not just the risk of terrorism but to culturally specific activities from which any possible link to future violence is indirect and even tenuous. I raise these points made by the Independent Reviewer of Terrorism Legislation because they are relevant to a discussion on the Prevent duty guidance, and indicate quite clearly that concerns about what could happen are legitimate and evidence-based.
A great deal is going to depend on how all the guidance is actually applied, and not just that which we are considering today, including what action is actually taken if a decision is reached that guidance is being ignored. The guidance on further education institutions points out that encouragement of terrorism and inviting support for a proscribed terrorist organisation are both criminal offences. It then says that institutions should not provide a platform for these offences to be committed, before saying that if views being expressed, or likely to be expressed by a particular speaker, constitute extremist views, the event should not be allowed to proceed except where institutions are entirely convinced that such risk can be fully mitigated without cancellation of the event. Inevitably, interpretation of that guidance is going to be subjective. I hope the Minister agrees that if the guidance we are considering is applied and enforced in a cack-handed way, there is a danger that it will create more problems than it is intended to resolve.
The Earl of Erroll (CB)
My Lords, I want to say a few things about these regulations because of the opportunity they give me, as the revised Prevent duty guidance is also being reissued in general. I rise because my wife is the chair of governors of a moderate learning difficulty academy in Bedford. She was finance governor for a long time and then took it to academy status as chairman. She has worked very hard for it for many years but the burden on the governors now of all these sorts of things is becoming unbearable, to the extent that all the good people will probably be lost. She has been told several times by the local authority that she has a strong board of governors but they are reaching the end of their tether because of the weight of things that come up under inspections, criticism and provisions such as these. Your Lordships should realise that the academy is not a large establishment.
When the school’s member of staff who was the child safeguarding officer, and who was therefore Prevent-trained, happened to leave they suddenly realised, because something had changed, that the person they thought was properly trained was no longer properly qualified. So suddenly, overnight, they were threatened with closure—the advice given from outside was that they should not open over the weekend—because they would not have a member of staff who had the right training in position on the day. They got around it because over the weekend one of the governors went through online training, which was held to be adequate. However, there is the weight of trying to get through this sort of stuff for a person who is trying to do another full-time job. People are well qualified in other areas but they all now have to know about it. It is not just this but all the other stuff that goes with it for the school.
In those governors’ case, because they are dealing with children with difficulties they also have to understand all the different monitoring systems for achieving targets. They have to monitor whether statements are being upheld while maintaining privacy and anonymity, because they are not allowed to know who the children are—only certain members of staff can. At the same time, they also have to make sure that these systems all work. If they fail, the governors are held responsible now, as there is a legal requirement for them to do that.
I am saying this only because the regulations are very well meaning. We do not want this sort of stuff going on in our schools: we do not want what is now called radicalism preached or people’s minds being warped. I entirely agree with that. But the Government must just be careful when they introduce these regulations that they do not lose all the good people who are currently, voluntarily, running schools and such like. Otherwise, who will run these things? The Government will have a big and expensive problem, because they will have to pay people to do it properly. They will not find enough people, because the other thing we have noticed is that when these schools need to hire new people, the staff are not available—there is huge competition for people in this area. The Government will suddenly find that they have to close schools because of the regulations, as they cannot get the people. That will be a problem, and children will just not be educated. I do not know what the Government are going to do about that. It is a government problem, so it goes back over to them. This is only a general point, so I do not particularly need a reply, but I would like the Minister to take this back to the Department for Education and to all the other bodies that these things come out of and just ask them to look at the compound effect of all these things.
Baroness Sharp of Guildford (LD)
My Lords, I thank the Minister for introducing these regulations and for reminding us of the lengthy debates that we had last January, particularly on the issue of freedom of speech in universities and the tension that is created between the Prevent duties that were then being proposed and the right of freedom of speech. Picking that up, we on these Benches very much welcome the new guidance that is being issued on external speakers and events. Gone is the prescription of the draft regulations that were presented to us in January—Members may remember that it was suggested, for example, that all external speakers should be required to provide a summary of what they were going to say 14 days in advance. Those of us who come from a university background knew quite well that it would be practically impossible to persuade people to do that sort of thing.
We very much welcome the much more down-to-earth and, I think, reasonable and sensible advice. Most further education colleges and universities are already co-operating fully with the authorities on the Prevent duty. Recent events, such as young people and families disappearing off to Syria to fight for ISIS and some of the events here at home, make everybody well aware of the dangers that we face these days from young people being drawn into terrorism in one form or another. There is also the power of the internet and social media in this respect. The main difference now between what was being proposed and what is now being proposed is that the Prevent duty is, as we stressed when we discussed the Bill, going to be compulsory: it is now statutory, and no longer a voluntary activity. In that case, it requires a different set of guidelines.
Some of the issues I want to raise with the Minister overlap with those already mentioned by the noble Lord, Lord Rosser, and therefore I will not go into detail about them. First, as the Minister explained, various sets of guidance are being issued here. Not only is there the separate guidance for Scotland from that for England and Wales but there is the older guidance, which has already been issued, relating to schools, the health service, prisons and so forth. This really picks up the points made by the noble Earl, Lord Erroll, because this guidance was discussed at some length in March. I think he is right. The issue of the burden placed on schools, for example, and many authorities in terms of implementing this guidance, and their ability to do that, was raised. I would also question the degree to which the collaboration that is written into the guidance is feasible.
One difficulty that one faces when bodies—schools, health authorities, youth services, police, and so forth—are required to collaborate is that it requires setting up meetings, which is often extremely difficult. Time is very pressured for those people. The aspiration that there should be collaboration all round is sometimes honoured as much in the breach as in the—what is the word? What is required is aspirational more than anything else.
I was somewhat intrigued to see that the reissued guidance points up the fact that it has been revised. The Minister today and the Minister in the House of Commons last week stressed that there were no substantive differences in the guidance, and I take it that that is the case. I assume that they are purely drafting changes, because if there are any substantive differences it would be helpful to know about them.
In relation to the genuinely new guidance about how to handle speakers and events at universities and further education colleges, I very much welcome the degree to which the new regulations leave decisions to the relevant authorities and have dropped the prescriptiveness of the draft regulations that we saw in January. In particular, I welcome the recognition that the authorities need to balance the risk of exposure to extremism with the legal duty to ensure freedom of speech.
I echo the query raised by the noble Lord, Lord Rosser, on whether the authorities—the universities and colleges—should be entirely convinced that any risks that they incur through having speakers on the premises who might be regarded as extreme can be fully mitigated. As Universities UK says, there will always be some level of uncertainty involved. The double requirement of being entirely convinced that the risks are fully mitigated is practically impossible to fulfil, and could be interpreted as providing a de facto ban on such speakers. In his response to the Commons, the Minister made it clear that that did not constitute a blanket ban on such speakers. I ask the Minister today whether it would therefore be fair to interpret that instruction as meaning that the authorities can go ahead with inviting a “risky” speaker if they are satisfied that, as far as they can be, the risks are mitigated and that they have taken all reasonable action to ensure that.
I also assume—again, perhaps the Minister would clarify this—that in such circumstances it is vital that there should be an audit trail if these issues are to be monitored. In other words, if anything should go wrong, it is vital for the university or college to have the evidence to show that it took all reasonable action to mitigate the occurrence.
I also pick up the point about paragraph 19 and the comma. The Minister offered to look at the issue of the comma again, and I wondered whether he had done so. As was pointed out, in grammatical terms, there is a different interpretation if the comma is there.
Finally, I pick up the point at the end of the guidance to universities. The Minister made it clear that the authority that will monitor this will be the Higher Education Funding Council for England, for England and Wales. What sanctions will it be able to impose on universities? The regulations just state that the Minister will appoint an appropriate body and that a separate monitoring framework will be published. The Minister announced in the Commons debate that HEFCE is to be the body for higher education institutions. Are we likely to get any more detail about that?
For example, in relation to the further education institutions, it is made quite clear that Ofsted is the monitoring body and that if that institution does not come up to scratch, various sanctions can be imposed: withdrawal of funding through the Skills Funding Agency, reconstitution of the governing board and even dissolution of the college as a whole by the Secretary of State. HEFCE does not have quite the same clout as the Skills Funding Agency since universities now receive much of their funding through fees and separately. Nor does the Secretary of State have the right to dissolve any university. Are we likely to see more detail on how HEFCE will exercise these responsibilities? In general, from these Benches we welcome these new regulations and regard them as a very great improvement, certainly on the draft regulations as we saw them in January.
Lord Ashton of Hyde
My Lords, I thank noble Lords who replied to this debate. They did so in a very constructive way—as when the original Bill went through the House and we received close attention but in a most constructive way. I particularly pay tribute to the noble Lord, Lord Rosser, for his support during the passage of the Bill, and other noble Lords who managed to stay here for the last business before the Recess. Let me deal with some of the points made by noble Lords during this brief debate.
The noble Lord, Lord Rosser, brought up the exciting speech of my right honourable friend the Minister in the other place. I am afraid that there will be no crescendo or diminuendo from me. I will just continue in my normal monotone and I hope we will get through this quickly without any histrionics so that we can all go home.
The noble Lord mentioned the speech and some of the commitments made by my right honourable friend. One that was referred to was the way that any changes would be brought back here. When my right honourable friend referred to the spirit enjoyed in the Committee meeting in the other place, I think that he was referring to the constructive approach of all parties. Of course, he is fully aware that, however constructive that approach, he would have to bring back any revisions to be approved by both Houses. It is quite clear in Section 29(7) of the Act that subsection (5) will,
“have effect in relation to any revised guidance”.
Subsection (5) clearly says that any changes or instruments will be,
“laid before each House … and approved by a resolution of each House”.
The noble Lord, Lord Rosser, also asked if there was any obligation in the Act to keep guidance under review. We will keep the guidance under review. Again, my right honourable friend made that promise. There is no statutory obligation to do that. Section 29 of the Act requires that any revisions must be brought back—as I said. On how the revision will be monitored, we will have a monitoring process. It will be looked at over the next year or so. Then, if need be, it will go before the Prevent oversight board. If it is deemed necessary, any revisions will indeed come back.
In talking about oversight and evaluation, I can tell the noble Lord that the Prevent duty guidance sets out clear responsibilities for the oversight of Prevent, including evaluation and monitoring of the duties of the Prevent oversight board. He mentioned independent representation; at that moment, that is the presence of the noble Lord, Lord Carlile, the former independent reviewer of terrorism, who is an independent member of that board.
The noble Lord, Lord Rosser, made a very good point about common sense. I assure him and the House that common sense is exactly what we want applied in this matter. As the guidance makes clear, the duty should be implemented in a risk-based and proportionate way. We do not expect—and this addresses the point made by the noble Baroness—all events with external speakers, even if they might have extremist views, necessarily to be cancelled. What we do expect is that institutions put in place a system for assessing risk and taking appropriate action, which might include a challenge to those views. We talked about the 70 hate speakers who have addressed universities in the past year; it does not necessarily mean that 70 of those hate speakers would not be able to speak at those universities, but there has to be a risk assessment, and the risks have to be borne in mind—and appropriate mitigation, which would include challenge, should be put in place. As for interpreting the measure, higher and further education Prevent co-ordinators are available to provide support and guidance to institutions in implementing the duty.
The noble Lord mentioned some recommendations today from the Anderson report—the independent reviewer of terrorism’s annual report—which came out today. I am afraid that I have not read it yet, so I cannot comment on it. He mentioned that the interpretation was subjective and could, if handled in a cack-handed way, create more problems than already exist. I completely agree with that. We absolutely expect it to be implemented in a common-sense way, and the Government have no reason to go steaming in prescribing these things. We have left a lot of interpretation to the universities and further education colleges and, as the noble Lord, Lord Rosser, said, common sense will prevail.
The noble Earl, Lord Erroll, talked about special schools and young schools in particular. That was part of the conversation and the debate in March, and he very kindly said that he did not expect any answers. Although the statutory instrument refers only to higher education and further education, I take his point—it will be monitored. He also, usefully, said that I should take his points back to the Department for Education, which as the Home Office Whip I will be delighted to do.
I thank the noble Baroness, Lady Sharp, for the acknowledgement that the measure has significantly improved. She mentioned, for example, the original requirement in the Bill that all speakers should notify of the content of their speeches 14 days in advance. Of course, the Government have agreed to amend that. Politicians around Parliament acknowledged that and realised that it was impossible. Most politicians only make up their speeches on the train on their way to events, so they realised that that was not actually a practical proposition. The noble Baroness also made the point that there is a problem in collaboration if it is too burdensome. Again, that is a general point for the guidance to which we referred in March, but the Prevent oversight board will take that into account and will review how this is working in practice. We do not believe that if it is interpreted sensibly it will be too burdensome.
The noble Baroness said that if you have to be entirely convinced that there is full mitigation, this might end up as a de facto ban. We think that, with sensible interpretation and a decent risk assessment with challenge and mitigation, it is not a de facto ban. It is certainly not intended to be one. The Minister made that clear in the other place.
As the noble Baroness said, the Higher Education Funding Council for England is the body that will do the monitoring. When we talk of sanctions, that body will monitor them. The idea is that if there are difficulties—and we do not expect them, because many, if not most, universities are doing most of this already—the sanction would be that, having discussed them with the university or further education college, there is the possibility that the Secretary of State can give direction, but only after that has been agreed by the Prevent oversight board. Ultimately, in theory, there could be a court order if the university did not abide by that. That is certainly not anticipated, but it could happen if the worst came to the worst.
I think that that covers most of the points. The noble Baroness also mentioned partnership working. It is quite right that a number of institutions are already delivering on requirements for the Prevent duty. The guidance makes it clear that there should be a risk assessment. The partnership working will flow from that assessment. As I said, a number of institutions are working well in partnership with other agencies. The Higher Education Funding Council for England will consult shortly on the monitoring framework and any sanctions will flow from the Secretary of State.
This secondary legislation is needed effectively to implement the Prevent duty across England, Wales and Scotland. It will ultimately help the Government and law enforcement agencies to keep the country safe from terrorism. Universities and colleges remain subject to the duty in recognition of the very real risk of radicalisation in those institutions.
I am most grateful to all noble Lords who have remained for this last business before the Recess. I wish all noble Lords a peaceful and relaxing three weeks, although for some it may be less relaxing than for others. I commend the instrument to the House.