Baroness Hamwee
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Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 9 months ago)
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Baroness Sharp of Guildford (LD)
Amendment 103A is the first in a series of amendments relating to Part 5 of the Bill, which relate also to the Prevent strategy and its partner, the Channel programme. Part 5 seeks to make statutory for participants in these two programmes actions and duties that have until now been voluntary. That switch from co-operation to co-option raises a whole range of issues for those involved. The universities in particular are very unhappy, about both the threat to their autonomy and the conflict that this creates with their duties under other legislation to promote debate and safeguard freedom of speech.
The provisions in the Bill and its accompanying guidance also pose problems for other educational institutions: schools, further education colleges and sixth-form colleges, which provide for the younger—and arguably more impressionable—adolescent age group. Generally, there is considerable concern that these provisions may backfire and, far from helping to improve the present position, may well serve to make matters worse. To date, all these educational institutions have co-operated voluntarily and willingly with the Prevent strategy, accepting and developing it to suit their specific circumstances within the framework of their safeguarding policies. They worry that making these duties obligatory and pushing through this legislation with relatively little consultation will not only leave teachers and administrators with a considerable bureaucratic burden, but will also alienate those on whom those burdens fall as well as those whose activities it seeks to monitor.
In this context, Amendment 103A is a probing amendment; I am not suggesting that this wording is in any way appropriate. Essentially, it seeks to draw attention to the lack of clarity in the terminology used in the Bill and, in particular, in the draft guidance, which was issued alongside the Bill. The Bill itself is very careful to use the term “terrorism” and the duty specified in Clause 21(1) is,
“to prevent people from being drawn into terrorism”.
Clause 33 states that,
“‘terrorism’ has the same meaning as in the Terrorism Act 2000”,
which is a definition that has been around for some 15 years, so presumably the courts are reasonably happy with it. The definition of “terrorism” in the Terrorism Act 2000 relates to the “threat of action”, which involves violence against people and property, endangers lives, constitutes a serious risk to health or safety, or seriously disrupts an electronic system. It is less clear, and more subjective, what “being drawn into terrorism” —the words used in the Bill—means. The difficulty arises from the draft guidance that was issued.
The guidance makes it clear that the purpose of the legislation is,
“to exclude those promoting extremist views that support or are conducive to terrorism”.
In turn, paragraph 5 of that guidance defines terrorism as,
“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.
Further, those caught by Clause 21(1) are required to assess how far their students or pupils are at risk of being drawn, not only into violent extremism, but,
“non-violent extremism, which can create an atmosphere conducive to terrorism”.
An article in Times Higher Education suggested that that could apply to those using non-violent techniques such as sitting in a road to block the passage of equipment to be used for exploring fracking. As the Joint Committee on Human Rights pointed out, the terminology is so vague as to leave much discretion in the hands of the police and other members of the local panels being set up under Chapter 2 of this part of the Bill, whose task it is to decide whether those reported as being drawn into terrorism, or vulnerable to being so drawn, should be put on a support programme. I have a great deal of sympathy with the Association of School and College Leaders, whose briefing to us pointed out that the lack of legal certainty over definitions of terms such as “extremism” will make it extremely difficult for schools and colleges to know whether they risk being in breach of this new duty. The association remarks:
“A number of members had received the Prevent training in their schools and colleges, and while some found it helpful, others found that it was so vague in respect of what to look for that they felt even less confident about the duty after going through the training”.
It seems very difficult for us to impose these duties on such a wide body of institutions if there is such uncertainty over what this duty involves. I beg to move.
Baroness Hamwee (LD)
My Lords, Amendment 103B in this group is in my name. Widespread concerns have been expressed about Prevent becoming a statutory duty, and it has been suggested that Clause 21 be left out of the Bill. My preference would be for it not to become statutory, but I recognise that the Government have thought about that carefully and come to a view. I declare an interest as one of three joint presidents of London Councils, the umbrella organisation for the London boroughs. Like others, it is concerned.
I have two main, and rather different, points to make about the amendment. It would mean that the duty would not apply to any of the specified authorities—those listed in Schedule 3, and any more that are added,
“unless the Secretary of State has laid before Parliament a report regarding the operation of the duty”.
I shall come back to the term “operation” in a moment.
My first point is to ask whether imposing the duty is appropriate to all specified authorities, and for all the functions of those authorities. My second point is about funding, particularly in the case of local authorities. As my noble friend has said, authorities will have a statutory duty, as set out in Clause 21, to “have due regard”—and in talking about activities leading to terrorism, she has identified an important issue. My amendment would require each authority to be considered separately. The authorities are different, and they operate differently. That is why I have used the term,
“the operation of the duty”.
The scheduled authorities range from local authorities through a great variety of educational institutions, the police, prisons, health services and health service providers. Even if the duty is appropriate for a higher education institution—we will be paying a good deal of attention to that aspect today—is it appropriate for a primary school or a nursery school?
Of course, preventing people being drawn into terrorist activities is immensely important. However, I wonder whether our great arts institutions, which get a lot of public funding—although not as much as most of them would like—have more opportunity than a nursery school does to deal with this issue. A nursery school may have a responsibility, but it is a responsibility to make kids aware of the difference between violence and talking about things. That is much more important than closing off the issues.
I do not think it is enough to say, as I suspect the Minister may suggest, that there will be a proportionate light touch, because having the duty creates work and bureaucracy, and requires record-keeping. The Secretary of State will have the power to issue directions and, in the case of educational institutions, Ofsted will apply them. As has been suggested to me by some of those concerned—especially by those from the Muslim community, although my concerns are not limited to that—the records may then show that there is disproportionate criticism of schools in areas with a large Muslim population. That will give the alienating message—I believe “alienating” was the term my noble friend used—that we are concerned about.
I suspect that others will talk about the principle of applying a statutory duty to local authorities, as distinct from a function and a power, as has been the case, and would be the case. I want to ask my noble friend about services that are contracted out by local authorities, as many services are. If an authority is in the middle of a contract, it cannot change it; it certainly cannot change it unilaterally. How should it deal with that? New and renewed contracts would have to tie organisations into the new duty. That is in part why I have used the term “operations”, because I am unclear how this will work in practice.
Lord Bates
My noble friend has great legal expertise in the terms being used here. We are saying that, clearly, if you put anything on a statutory footing—even to “have due regard to” the guidance—then there must be a consequence should you fail to have due regard or are found not to have due regard; and that that must be specified in the legislation. That is all we are doing here. I am sure we are all of the view that such a measure would be used only in extreme circumstances. We fully expect that all universities will do what the best universities are doing already, which is to have their systems and procedures in place for this. As I have said, I am very conscious that we will be returning to this in further groups; but in the mean time I would be grateful if my noble friend might consider withdrawing the amendment.
Baroness Hamwee
My Lords, before my noble friend responds, I had degrouped that amendment from my, rather than from anybody else’s, amendments. In replying, my noble friend the Minister has relied a great deal on Clause 24 on guidance. However, that does not seem to me to justify the ability of Parliament to consider, authority by authority and function by function, the application of this duty, which is a much more significant duty—on that I am very much with my noble friend Lord Phillips—than the words “due regard” in everyday speech might suggest. If I were to see Hansard by the time we reach Clause 24 today I might think that my noble friend had given me quite a lot of material to press my amendments to that clause, because he has said an awful lot that supports what I am arguing should go on to the statute book. We will come to that, but I wanted to make it clear that my point is about Parliament’s role in this; it is not about consultation on guidance.
Baroness Sharp of Guildford
I thank the Minister for his response to my amendment and other noble Lords who have participated in this very interesting debate. It was supposed to be a relatively minor probing amendment to clarify the definitions and to make the point, which I think still needs to be made, that where there is not clarity in definition, it leaves a great deal to the judgment of those expected to implement these duties. That in itself poses problems, both for those in the process of implementing them and those who, perhaps further down the line or on the panel, will have to make assessments about those seen to be vulnerable to terrorism. And what does “being drawn into terrorism” mean? There are problems here for those who need to interpret the legislation.
We have had a much wider debate than just about definitions. It has been a very interesting debate about, as I said in my introduction, whether the Prevent strategy should be statutory. I am very much of the view taken by my noble friends Lord Phillips and Lady Hamwee, that in fact the subsequent clauses—24, 28 and 30—make the whole business of being statutory fairly rigorous.
The effectiveness of the Prevent programme, whether we need to review it, whether it is sensible that the programme should be statutory, or whether we should not continue to rely on the voluntary participation of the institutions are all questions that we will undoubtedly come back to, both later today and on Report. For the moment, I beg leave to withdraw my amendment.
Baroness Hamwee
My Lords, the world of local government, in its kaleidoscopic way, is changing at the moment with new groupings of authorities, such as the Association of Greater Manchester Authorities. Although the duty is expressed as a duty on each individual authority, will the Government be open to authorities seeking to find ways for neighbours to provide services to fulfil the duty? This has only just occurred to me, but it seems that one should be open to practical ways of dealing with this sort of thing.
Separately, I ask whether my noble friend is able to address my points about the contracting-out of services, which I raised in the first group of amendments. I do not know whether he has any notes on that. It is mentioned in Amendment 106 in the Minister’s name, which caused me to go on a hunt for Schedule 36A to the Education Act. That is only about education and there are many other services which are contracted out. I asked London Councils whether I was barking up the wrong tree in worrying about this. Its answer was that I was not and that this is something worth pursuing.
Lord Harris of Haringey
My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.
There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.
Lord Scriven
If it is a function across health professionals and health services, the proportion of people who come into contact with an acute trust is significantly small. Why have the health service and GPs been excluded from the duty, yet consultants who see the minority of patients have been included? What is the significant difference in order for the Government to be making that delineation of clinicians?
Baroness Hamwee
My Lords, if the Minister is going to come back to us on various points, perhaps he can include something on patient confidentiality.
Lord Bates
As I sat down to take that intervention, further inspiration came to me on this matter. We are consulting GPs on their role in this, and we will have regard to the important points relating to patient confidentiality to which the noble Baroness referred.
Finally, Amendments 119 to 122 would allow the Government to make changes, through regulations, to Schedules 3 and 4 at any time after the Bill is granted Royal Assent, and before such time as the rest of this part commences. The amendments ensure that, in the event that there are additional bodies to which the Prevent duty should apply or which should be partners to Channel panels, then those bodies can be added to the appropriate schedule with as much notice as possible before the duties on them commence. This is clearly in the best interests of those bodies because it will give them time to prepare. This has particular relevance to the addition of Scottish bodies. The Government have made clear that it is our hope and intention that Scottish bodies will become subject to the Prevent duty, and we are currently discussing this with the Scottish Government.
We still wish to make the changes to the schedules as soon as possible after Royal Assent, and to have the duty commence for all specified authorities in England, Wales and Scotland at the same time. Therefore, I invite the Committee to agree these government amendments and trust that, in the light of my earlier clarification, the noble Lord will feel able to withdraw the amendment.
Baroness Hamwee
“( ) Guidance issued under this section shall in particular deal with equalities issues.”
Baroness Hamwee
My Lords, Amendment 112BA is grouped with a number of other amendments, most of which relate to Clause 24. The amendments in this group in my name and those of my noble friends have been tabled to enable me once again to raise issues about equalities and concerns about discrimination.
It has been put to me that Prevent is regarded as a security prism through which all Muslims are seen and that Muslims are suspect until proved otherwise. The term “siege mentality” has also been used. We have discussed the dangers of alienation arising from the very activities that should be part of the solution, not part of the problem, and of alienation feeding violence. I have said to the Muslim organisations that have contacted me, and I think I have said in the Chamber, that because the current context for this legislation is the war in Syria and since most Britons, not all, who are drawn into fighting there are Muslims—I am not saying that they come from the same ethnic background; that is, of course, quite different—it is inevitable that Muslims will make up the great majority of those who are the subject of, or some might say subjected to, the provisions of this Bill.
We have laws about equalities and they apply to this legislation as to every other piece of legislation. I doubt that much can be done in legislation to address the concerns I have just summarised but what can be done should be done: in legislation, in practice and in providing safeguards against discrimination. Transparency is a very important tool and it occurred to me today that, the more transparency there is about how these provisions are operated, the more ammunition—if that is not an indelicate word in the context—the Government can give themselves to counter those concerns.
I have mentioned the current context. The counter- terrorism strategy and policy of course are also directed to dealing with other extremism manifested in violence—for instance, right-wing extremism. I am told that freedom of information requests for basic statistics about Prevent are routinely denied on the basis of national security. It seems to me that we should be looking for ways of providing information that do not endanger security. For instance, I wondered how many individuals are in a programme because of anti-Semitic violence. Over the last day or two, I have been pondering what it would look like if one substituted “Jewish” for “Muslim” in the briefings and descriptions we have had. The issue is not just how I would see it as a Jew—not a very observant Jew but one who is aware of her background and heritage—but also whether other people, who might be resistant to some of the points I have been making, would see things differently if it were a different group interposed in that way. I think that if this were aimed at the Jewish community or communities, I might feel targeted rather than protected. I say all that by way of some introduction and can go through the specific amendments fairly quickly.
I said earlier this evening that I think—although I am going to have to read the debate to check—that the Minister in his answer on the first group implied more support, at least for the thoughts that lie behind these amendments, than I suspect he is going to articulate now and he also implied more consultation than the clause spells out. The clause deals with revised guidance as well as the first issue of guidance. If one accepts the Minister’s point about how well the Government have conducted the process so far for the purpose of the argument, nevertheless the issues I am raising will be important for the revision of guidance as well.
The first of my amendments, Amendment 112BA, states:
“Guidance … shall in particular deal with equalities issues”.
I think that that speaks for itself.
Amendment 112BB would insert that there must be consultation with,
“the specified authorities subject to the guidance”,
as well as with, as stated in the Bill, the Welsh and Scottish Governments. The clause then goes on to include the very wide catch-all—although it could be a very narrow “catch-few”—of,
“any person whom the Secretary of State considers appropriate”.
It must be right for those who are going to be the subject of this guidance to be consulted.
I then take that a stage further with Amendment 112BC by providing that, before responding to that consultation, a specified authority should,
“consult its local or other relevant communities”.
It comes pretty naturally to most local authorities to consult their own communities when they are proposing to do something, although not always. However, I do not just mean residents as a kind of amorphous bunch. There are communities within communities. We are all members of more than one community, and the specified authorities can identify their communities as they see fit under what I am proposing.
The next of my amendments, Amendment 112CB, relates to Clause 24(7), under which the Secretary of State can make minor revisions to the guidance without going to Welsh and Scottish Governments if the,
“Secretary of State considers that the proposed revisions … are insubstantial”.
I would like to see that as an objective test so that it could be challenged—in other words, I would like to change this subsection so that the consultation provisions have effect unless they are insubstantial.
Amendment 112DA is an amendment to Clause 25. It must be the case that authorities have the opportunity to make representations before directions under this clause are given—this being the clause which takes us to the sanction for failing to comply with the duty. I would hope that that would be automatic. It is perhaps a matter of general law but, again, I think that it should be spelled out.
Amendment 112F also relates to the directions clause provisions. It would insert that the Secretary of State should report to Parliament on any direction given. Giving a direction in this way is a pretty substantial action, and I think that it should be reported to Parliament with the reasons for it.
I hope that I have covered everything that is in my name. My noble friend tells me that I have, so I beg to move Amendment 112BA. As I do so, I realise that each of the amendments is on what might be thought to be a small point but, in my view, they amount to trying to find a way of addressing concerns which are clearly very real in the minds of those who have been looking at this legislation.
Baroness Brinton
My Lords, I should like to speak to Amendments 112C and 112E, which are in my name. I start by apologising to the Minister. I am sorry that I could not manage to get to his meeting last week. I know that my noble friend Lady Hamwee expressed my concerns and I am grateful for the Minister’s letter on some issues which has been referred to considerably since we started today’s session.
These two amendments are important and my noble friend Lady Hamwee ended on that point. After going to war, the right to curtail freedoms is one of the most important decisions that a Government have to take. The one thing that is missing at the moment on some of the key directions, particularly on guidance and on where the Secretary of State gives a direction to an authority, is any sense of accountability and transparency.
I shall take the amendments in order. Amendment 112C says that if guidance is issued,
“the Secretary of State must lay before Parliament … the proposed guidance or proposed revisions”,
and it should be done by an affirmative instrument of both Houses. As I have said on earlier amendments, guidance also needs to be combined into one document with any other parallel guidance that will ease matters for those having to use it. The duty in the Education Act 1986 is absolutely clear and I believe that the guidance has been brought forward in haste. The Commons has not managed to see the draft guidance and the consultation does not end until tomorrow. I am grateful to my noble friend for some of the changes that he has made but I see nothing in his letter that relates to this issue of transparency and accountability to Parliament. It is important on such a sensitive issue that goes to the heart of the freedom of people in this country that Parliament at the very least should have the right to examine any changes that the Secretary of State wishes to lay.
Amendment 112E asks for the same scrutiny for the Secretary of State should she or he direct under the terms of this provision. It is important that we as Parliament understand how and why an appropriate authority has failed, partly so that we can amass the evidence that my noble friend talked about earlier, but also because we as Parliament need to know exactly what is happening. Amendment 112E also provides that:
“A copy of any such report must be sent to—
(a) the Chair of the Joint Committee on Human Rights;
(b) the Independent Reviewer of Terrorism Legislation; and
(c) any other person whom the Secretary of State deems appropriate”.
It is also important that the relevant sector sees what is going on so as to understand the issues, a point made by the noble Baroness, Lady Hamwee. The three bodies mentioned also deal with some of the wider issues around terrorism, freedom and liberties. It would be inappropriate for them not to comment before such matters were discussed in Parliament.
Lord Harris of Haringey
Before the noble Baroness, Lady Hamwee, makes that decision, I revert to the question of what it is that is being required and one of the reasons why that might imply that it is better to have more consultation about it. One of the reasons why some of the previous Prevent programmes failed, and fell into disrepute with the communities concerned, was that they were not seen as about preventing people from going down the road to become dangerous, violent extremists. Rather, they were seen as being programmes that put a series of spies in the camp and were about reporting individuals to the authorities for action to be taken against them. Speaking personally, I am all for mechanisms that identify people who are a danger to the rest of us and make sure that appropriate steps are taken, but this was perceived as being the authorities intervening and getting the data. We are going to come to this subject in a minute, but when I questioned the Channel panels as to why the intelligence services were not specifically listed as an agency involved in that, the argument given at that stage was that it was because it would make it look as if the Channel panel process was part of a process of ratting on individuals to the authorities.
It is important to get this guidance in a form where the communities understand that it is not about pointing the finger at individuals in a way that might lead them into trouble with the authorities, but is a way of supporting individuals and preventing them going down that road. That is why this distinction of whether this is about “prevent” or “pursue” is so important, as is getting public and community buy-in to the way in which this is enforced.
Baroness Hamwee
My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.
Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—
Lord Carlile of Berriew (LD)
I am grateful to my noble friend for allowing me to interrupt her. The Minister, during the course of his speech a few moments ago, mentioned the Prevent oversight board on a number of occasions and kindly referred to my involvement. Does he agree with me that, if the Prevent oversight board is to have a realistic oversight role, it should meet reasonably often; it should be able to choose what it reviews from time to time; and it should be heavily involved in the quality control of Prevent schemes around the country rather than, as at present, meeting very rarely and not really carrying out a great deal of detailed scrutiny?
Baroness Hamwee
I am not sure whether that was a question for me; I assume it was, although it seems to be beyond the amendments that we are dealing with here. In making that point, though, I think my noble friend is pointing to the breadth, depth and complexity of this issue and to the need to keep everything under review and to be open to making changes as it becomes apparent that they are needed. This sort of guidance needs time for those who are affected to trickle down consultations, sweep up the responses and reflect back—perhaps this goes to my noble friend’s point as well—experience on the ground.
Like the noble Baroness, I mentioned nurseries in the first group and said rather more about the bureaucracy involved, which would be inappropriate for small organisations such as the nurseries, pre-schools and primary schools that we are talking about. It is about the substance as well as the bureaucracy. I was reminded by her anecdote of the six year-old son of a friend who was being visited by a German family. The child came downstairs going—I do not know how Hansard can reproduce this—“Rat-a-tat-tat”. He was asked, “What are you doing?”, and replied, “I’m killing dirty Germans”. That is exactly the same sort of experience, but how should one react to that?
On the individual amendments rather than the generality, I am glad to hear that the Government will consider equalities issues. What the Minister was given to read was that the Government will, “consider any equalities issues that have arisen since we published the draft for consultation”. There will be issues, I think. I will not get into a discussion at this time of night on the philosophy of consulting the population of prisons, although I think there is quite an interesting debate to be had about that.
Under my Amendment 112CB, the Secretary of State would have to take the decision about whether or not proposed revisions to the guidance were substantial, but that should be by an objective test, not a subjective one.
In summary, I come back to two words: transparency and safeguards. I will of course consider the detail of what my noble friend said, but it is quite clear to me that, with perception being so important as well as reality, we have to reduce the opportunity for incorrect perceptions as well as everything else.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 115AA takes us back into Chapter 2 and the Channel programme. Clause 28 deals with local panels for assessment and support. The Bill provides that a chief officer of police can refer an individual to a panel. I was requested to raise the first of my amendments in this group by London Councils to allow local authorities as well as the police to make direct referrals in order to access specialist support for individuals who are identified as vulnerable to being drawn into terrorism. London Councils is concerned that the provisions might have the effect of limiting the access of public bodies other than the police to a key source of support. It gives as an example a teacher who may spot a pupil who has been accessing extremist materials and refer that pupil to the local authority under the school safeguarding policy. The local authority might conduct an assessment under safeguarding and child protection legislation, agree that the pupil is vulnerable to radicalisation and decide that the sensible next step would be for the case to be considered by the panel in order to access appropriate support.
London Councils is also concerned that, as drafted, an unbalanced relationship between the police and local authority would be created. The local authority of course would chair the panel. Another concern is that cases that come up before a panel are “deconflicted” by the police to ensure that the person concerned is not subject to an active investigation before a support plan can be put in place. I would be grateful if my noble friend could respond to that offer from local authorities to be even more active.
Amendment 115AB takes us to what the support plan would include. It returns to points that I have already made about discrimination, grassroots, bottom-up and perceptions. I suggest a reference to people,
“who will be consulted in keeping the plan under review”,
in order to ask about the role of the local community, religious leaders, the family and so forth and how they will be recognised.
Amendment 115AC is about the support that the panel may put into place. We are told that it must consider reference to a provider of health or social care services. Those are not the only services. I seek to add the words “or other”; for instance, housing. I know that Ministers have referred to Jobcentre Plus and so on. There are a number of other services which might be appropriate for an individual. I do not whether counselling would come within local care, but certainly that is also one which should be considered.
The last of my amendments in this group is Amendment 118ZA. It would amend Clause 32, which is about indemnification. We are told that the Secretary of State may agree to indemnify a support provider against reasonable expenses. I think that that should be “shall”. We have already more than touched on necessary expense and good investment but nevertheless there is concern about the expense of the sorts of programmes we have been discussing today. The authorities that will be required to undertake these various duties and activities will be very stretched to find the money for them and questions of prioritisation will arise. If I can be told that “may agree to indemnify” actually means “shall” in the odd way we sometimes seem to go about drafting legislation, that is fine, but I am certainly looking for some sort of reassurance. I beg to move.
Lord Ashton of Hyde
There is a reason why we want to put the local authorities’ duties on a statutory footing. If the Secretary of State is doing everything that the noble Lord wants her to do, I do not see any particular benefit in putting that on a statutory footing. However, rather than going backwards and forwards on this, I am prepared to take this matter back. If there is more information that I can provide to the noble Lord, I will do so.
All providers are bound by a service level agreement with the Home Office that sets out the terms and conditions of their appointment, including conduct. In addition, as part of their co-ordination role, the police regularly review progress made against any interventions commissioned. Any misconduct will be treated seriously, with the option of terminating an agreement with a provider. It would be unusual—and we think unnecessary—to provide for these matters in the Bill.
Finally, I would like to address my noble friend’s Amendment 118ZA, which seeks to ensure that the Secretary of State must indemnify a support provider against any costs and expenses incurred in carrying out functions as a provider. I would like to reassure noble Lords that the costs for each case would be considered and, where the case was deemed appropriate, those reasonable costs would be indemnified. However, there might be some cases where it would not be appropriate to indemnify costs. One of the key reasons for resisting making the indemnification clause a blanket duty, required in all cases, is that it is included in the Bill to plug a gap that might not arise in all cases. The gap is the absence of reasonably priced insurance in the open market for risks that might arise for intervention providers. Depending on the precise nature of the support the provider is giving, there may or may not be sufficient availability of cover in the market. The intention behind Clause 32 is to allow the Secretary of State, only where a provider cannot get adequate cover, to step in with an indemnity. We do not want the Secretary of State to have to indemnify if a product is available on the market. The Secretary of State should therefore have discretion to decide which costs or expenses would be indemnified, but, as I have said, it is the intention that reasonable costs would be indemnified.
I hope that my responses have addressed the concerns raised by these amendments during this debate, and on that basis, I invite noble Lords not to press the amendments.
Baroness Hamwee
My Lords, the reference to insurance leaves me—I have to confess—rather bemused. That was not at all what I thought this clause could be about. However, I will not take time expressing my bemusement. The Minister started his response by using the terms “practical” and “effective”. Those are criteria for me as well. Unfortunately, as it happens, I am not wholly convinced that we identified the same ways of arriving at that conclusion.
I am particularly grateful to my noble friend Lord Carlile for expanding the point about housing. Of course, he is absolutely right: local authority housing supply is minuscule, almost disappearing. However, the role of housing providers in this area can be very significant. I will think about the detail of the Minister’s response and perhaps come back to it. For now, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Guidance issued under this section shall in particular deal with equalities issues.”
Baroness Hamwee
I will try to move this amendment in under one minute, and not only because the Chief Whip is here. The amendments in this group more or less replicate, word for word, amendments made in respect of the Prevent programme. This part of the Bill is about the Channel programme. The Minister has been stressing the importance of guidance—which makes me think that my amendments are important. I simply invite him at this point to make any further or different comments or responses to those which he gave when I moved and spoke to similar amendments earlier this evening. I was just under a minute, I think. I beg to move.
Baroness Brinton
The noble Baroness has set a racing example, and I, too, will try to be extremely brief. My name is on Amendment 115B, which repeats the request found in two earlier clauses in the Bill through my amendments that when the Secretary of State issues or revises guidance she should make sure that Parliament has sight of an affirmative instrument in both Houses. I repeat, for the third time, I think, today, that where guidance is in parallel with other guidance, it should be issued as a single document.
The principal reason for this amendment is exactly the same as that for the other amendments: the Secretary of State has taken to herself and her successors a right to take decisions on guidance on sensitive issues. It is extremely difficult to assess which people are vulnerable to being drawn into terrorism. I am sure Parliament would want to have sight of this guidance and be able to review in future. As with my other comments, I hope that the Minister will be able to provide some reassurance that Parliament will be able to assess the guidance before it is given.
Lord Ashton of Hyde
My Lords, we have had a very brief debate on this part of the Bill. I am grateful to my noble friends for tabling this amendment. I fear that I may not be able to satisfy them. Amendment 115B seeks to make the guidance under the duty in Chapter 2 subject to approval under the affirmative procedure. Noble Lords should be aware that Channel is already an established programme across England and Wales and those who participate in the programme follow existing non-statutory guidance. The Channel programme has been in place since April 2012.
The current guidance for local authorities’ panels is being amended, in consultation with those involved in the programme, and will be reissued on a statutory basis. Guidance of this sort is not routinely made subject to parliamentary scrutiny, and the Delegated Powers and Regulatory Reform Committee has not recommended that it should be in this instance.
Amendment 115AF seeks to ensure that local authorities are consulted on any guidance issued for panels. Amendment 115E aims to ensure that partners of panels, or their representatives, are consulted before any guidance is issued. I can assure noble Lords that local authority panel chairs, panel members and police practitioners are being consulted about the revised guidance. Panel members invited to a meeting are likely to be those panel partners who have shared relevant information in relation to a referred individual and therefore will also be consulted at a local level. The consultation process will ensure that the views of all relevant stakeholders are taken account of and that the guidance is meaningful for those to whom it is issued. Their experience and expertise is invaluable in achieving this.
I hope that reassures my noble friend and that she will withdraw her amendment.
Baroness Hamwee
My Lords, I suspect that as with the equivalent group on the previous provisions, we may want to come back to these issues. I beg leave to withdraw the amendment.
Lord Pannick
I am very grateful to the noble Lord. That is extremely helpful. Of course I have no intention of pressing the amendment. I look forward to hearing what he says next week on Report. I ask him to reflect not only on the recommendation of the Joint Committee that the remit of the independent reviewer should be expanded but also, as the Minister mentioned, the other part of the Joint Committee recommendation—paragraph 7.8 of their report—that the Government should make available to the independent reviewer resources necessary to perform his task effectively. In particular, David Anderson has explained that it would help considerably if he were assisted by a security-cleared junior counsel. That seems a very good idea to me. I do not think that the provision of such assistance would need statutory authority, but I hope that the Minister can reflect on that. Other noble Lords may wish to intervene in relation to this debate.
Baroness Hamwee
My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.
Lord Carlile of Berriew
My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.
Baroness Hamwee
My Lords, I have Amendments 118G and 118K in this group but I want to say on Amendment 118J that I take the noble Baroness’s point about the impact on communities. The point has been raised with me as well and rightly so.
The first of my amendments in fact builds on the consultation paper. Under the section headed “What would the … Board do?”, it sets out in bullet-point form a number of core objectives. In most of the cases it uses the terminology that the subject of the consideration is,
“sufficient to meet the threat and adequately take account of privacy and civil liberties concerns”.
I think that I would prefer to see the word “properly” rather than “adequately” take account of privacy and civil liberties concerns. It is essential that that aspect is set out in the consultation paper, and I would hope to see it spelled out in the remit for the board in the statute as well. If it is not there, it is not there, and it will be difficult for the board to pursue that. My amendment is quite mild in that it seeks to provide advice to Ministers on that aspect of legislation. I have used the word “adequately” to reflect the consultation paper, although, as I said, I would prefer proper account to be taken of those concerns by that clear purpose being put on the face of the Bill.
My other amendment is about the chairmanship of the board, to which the noble Baroness referred. My amendment would give flexibility around whether the independent reviewer should chair the board. Mr Anderson has made his views clear about this being a possible diversion of his time and energy. I have a lot of sympathy with that, and the JCHR also took the point. The independent reviewer could still have an extremely central role in determining membership and the work programme without being the chair. I am not saying in this amendment that he—or, in future, she—should not chair the board; I am leaving it open for further consideration.
Lord Thomas of Gresford (LD)
I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.
Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,
“particular things that the board may or must do”.
This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.
I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.