Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

Monday 17th December 2018 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

46: Clause 26, page 26, line 10, at end insert “, subject to subsection (3A).
(3A) Before section 19 can come into force, the Secretary of State must revise the Government’s counter-terrorism strategy and any guidance under—(a) section 29(3),(b) section 36(7), and(c) section 38(6),of the Counter-Terrorism and Security Act 2015.(3B) The revisions under subsection (3A) must ensure that—(a) there is a clear and consistent definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism, and(b) the definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism is bounded by the requirement to assess the risk of being drawn into terrorism under sections 26(1) and 36(1) of the Counter-Terrorism and Security Act 2015.”

[Baroness Howe of Idlicote (CB)]

My Lords, in introducing Amendment 46, I would like to put on the record my thanks to the Minister for the very useful meeting that the noble Lord, Lord Morrow, and I had with her at the beginning of the month. As a result of that meeting, I have decided not to re-table one of my Committee stage amendments. However, I think it is important to revisit the concerns I addressed in Committee through my Amendments 89 and 91, hence why I am speaking to Amendment 46 today. The basic problem addressed by my amendment is that the guidance documents that are likely to inform the implementation of the duties set out under Section 36 of the Counter-Terrorism and Security Act 2015, as amended by Clause 19 of the Bill before us today, uphold an inconsistent approach to the crucial question of whether—and if so, when—considerations regarding non-violent extremism are relevant.

The wording of Section 36 is very clear that it requires local authorities to assess whether people are vulnerable to being drawn into terrorism. Section 36 does not ask for an assessment to be made regarding whether people will be drawn into any other activity and, specifically, no reference is made to non-violent extremism. In this context, there must be a concern that any suggestion in the guidance that these panels should assess people for anything other than the risk of being drawn into terrorism would involve their acting beyond the parent legislation.

At this point, some might say, “So what? If a Section 36 panel assesses and sanctions interventions relating to people who engage in extremism as well as terrorism, is that such a bad thing?” To my mind, it all depends what you mean by “extremism”. If you mean violent extremism, this clearly falls within the parameters of terrorism and Section 36. Clearly, making an intervention at that point is wholly justified. However, extremism is a potentially much wider concept than violent extremism and is very much a subjective reality in the eyes of the beholder. One person’s extremism will be another’s common sense and vice versa.

Part of the genius of the British political tradition over centuries has been its capacity to make room for people with different world views, some of them more peculiar than others. In this context, it is vital that the guidance that informs the application of Section 36, as amended by Clause 19, does not encourage local authorities to stray into a general assessment of extremism in the round, because this clearly overreaches what is mandated by the legislation and because we must jealously guard our commitment to free speech.

In highlighting this concern, I am not arguing that there is an absolute divide between violent and non-violent extremism, such that it is not legitimate to consider non-violent extremism in implementing Section 36. The proper relationship between non-violent extremism and terrorism for the purposes of Section 36 has been set out very clearly by Mr Justice Ouseley in his judgment in the 2017 case of Mr Salman Butt. He says that intervention on the basis of Section 26, and thus clearly by implication Section 36, can be only in response to,

“active opposition to fundamental British values”,

which,

“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.

In other words, non-violent extremism is a relevant consideration only to the extent that it creates a risk that others will be drawn into terrorism. Non-violent extremism that does not sustain this relationship to terrorism is not engaged.

A number of counterarguments have been made in response to my highlighting these concerns. In the first instance, it has been said that the Prevent duty guidance and counterterrorism guidance are not relevant because the guidance that had been specifically developed for implementing Section 36 is the Channel duty guidance. I accept that the Channel duty guidance has been specifically drafted with Section 36 in mind. I expect that local authorities would turn to this in the first instance. What I do not think stands up to scrutiny, however, is the suggestion that local authorities will not consult other guidance documents. I will not repeat everything I said on this in Committee, but I remind the House that the Channel guidance encourages its readers to look at the Prevent duty strategy and the counterterrorism strategy under the heading “Other Useful Guidance”.

In the second instance, it has been suggested that the Channel duty guidance, the Prevent duty guidance and the counterterrorism strategy all adopt a clear and consistent approach to the relationship between terrorism and non-violent extremism, such that one can be confident that there will be no confusion about when, on the basis of Section 36, it is appropriate for a local authority to intervene. I have acknowledged that parts of these documents are clear on this question. My difficulty is that other parts are far from clear, and this is leading to confusion.

For instance, in the Prevent duty strategy, the glossary definition of extremism does not depend on any necessary connection to terrorism. It says that for the purpose of the strategy, extremism is,

“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. We also include in our definition of extremism calls for the death of members of our Armed Forces, whether in this country or overseas”.

Although there is a reference to calling for the death of members of the Armed Forces, that is not necessary to fulfil this definition of extremism, and so it does not reflect what the law says as set out by Mr Justice Ouseley.

The counterterrorism strategy, meanwhile, provides a definition of terrorism specifically for the Channel programme that is completely beyond Mr Justice Ouseley’s definition of the law. Paragraph 124 of the strategy states:

“Channel is … run in every local authority in England and Wales, and addresses all types of extremism”.


The suggestion that Channel interventions can be made with respect to all types of extremism clearly suggests that this provides a basis for intervention in relation to non-violent extremism where there is no relationship to violent extremism and terrorism.

The Channel duty guidance is also confused. Part 4 makes the necessary connection to terrorism very clear. It states:

“Preventing terrorism will mean challenging extremist and non-violent ideas that are also part of a terrorist ideology”.


In other words, content that the state deems extreme but is itself non-violent must be connected with terrorism in that it must be part of terrorist ideology to be a relevant consideration. However, paragraph 5 then uses a different definition of extremism, in which there is no necessary connection with terrorist ideology. This seems to open the door to anything the state deems extreme without needing to be part of a terrorist ideology. This confusion is further reflected in the more detailed definition of what extremism is that is provided in paragraph 51, where again we see no necessary connection to terrorism.

The lack of any consistent clarity about when consideration of non-violent extremism is appropriate in discharging Section 36 responsibilities with respect to terrorism is a real problem, because the resulting confusion is impacting on practice, as noted by Mr Justice Ouseley in paragraph 29 of his judgment. Here he is not simply saying that he thinks there is a risk of confusion. He is saying that he is encountering that confusion as people misapply a felt obligation to prevent people being drawn into non-violent extremism. The paragraph says:

“However often that phrase is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Howe, and the noble Lords, Lord Morrow and Lord Stunell, for their points. All I can say on the back of the point made by the noble Lord, Lord Stunell, is: thank God we do not live in the 17th century.

I start by making it clear that when the Government refer in the various documents mentioned by the noble Baroness to Prevent applying to “all forms of extremism”, that means that Prevent applies to far-right extremism as much as it does to Islamist extremism—and, indeed, to Sikh-related extremism, Northern Ireland-related extremism, et cetera. This is a relatively new change, as the Prevent strategy pre-2011 applied only to Islamist extremism. This was clearly inequitable and not reflective of the threat, so it was changed. What is not meant by that expression is that Prevent should apply to all degrees of extremism. All our guidance has tried to be clear that Prevent is of relevance only where the extremism is such that there is a risk of people being drawn into terrorism. That is how the duties are framed in statute, and the point is made many times throughout the two pieces of statutory guidance: the Prevent duty guidance and the Channel duty guidance. I accept that there are occasions in those documents when the full formulation is not used for the sake of brevity and style. However, we believe that, when read as a whole, and in conjunction with the 2015 Act, the true meaning is clear.

I also emphasise that we have not seen any evidence to suggest that practitioners are misinterpreting the guidance documents to try to apply them to those forms of extremism which do not risk drawing people into terrorism, but I appreciate the example provided by the noble Lord, Lord Morrow, and I would be grateful if he would forward it to me. Certainly, the rigorous assessment within the Channel process ensures that no one is likely to be offered support unless that connection to being drawn into terrorism is there. We must not forget that, in any event, Channel support is entirely voluntary.

All guidance reaches a point where it needs to be updated, and we are committed to doing so when the time is right. Since the Prevent and Channel duties were introduced, there has been much good practice and many case studies which a new version would look to contain. Noble Lords may also be aware that just last week the Court of Appeal heard a case relevant to this matter and the Government eagerly await its judgment, which may well have implications for how a future revision of the guidance is drafted. But we do not know how long it will be before the judgment is handed down and it would be a mistake to attempt to revise the guidance beforehand. In addition, the drafting process, collecting good practice and going out to public consultation is likely to take several months.

The process of revising guidance is not a quick one if we are to get it right. The Government accept that it will become necessary to do so at some point in the not too distant future, but it would be damaging to what we are trying to achieve with Clause 19 should implementation of that clause be delayed while new guidance is drafted. The almost inevitable outcome, should such an amendment become law, is that the production of new guidance would be rushed so as to limit that damage, resulting in an inferior product, with much-reduced consultation and input from practitioners. Given that the guidance must be approved by Parliament before being issued, your Lordships’ House would be required to debate an inferior product that I would not wish to lay before it.

While I would not wish to commit the Government to a specific timeframe for producing new guidance, I can say that in any event the guidance will need to be reviewed as part of the post-legislative review process that takes place five years after enactment. The fact that the Act in question received Royal Assent in 2015 means that a review and revision of the guidance will happen no later than 2020. When we revise the guidance, we will be sure to take on board the comments that the noble Baroness has made and make it clear exactly what kind of extremism is covered by the Prevent duty and the guidance, and what is not. Prevent is not and never has been any form of thought police, nor has it been about suppressing dissent. It is of course, as I said earlier, about safeguarding vulnerable people.

I hope I have been able to allay the noble Baroness’s concerns and that she will feel happy to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for what she has said. I thought when I was speaking that I got an indication that there would be some action within 12 months, but as she spoke I became rather more worried by the time that everything is going to take.

[Baroness Williams of Trafford]

I thank the noble Baroness for allowing me to intervene. Twelve months from now brings us virtually into 2020.

[Baroness Howe of Idlicote]

All right. That is reassuring—to everyone, I hope.

I thank everyone who has taken part in the debate, and I thank the Minister herself for what she has said to us all. I certainly hope that the nature of the problems that we have highlighted during this debate is such that rather more detailed consideration might be given to bringing the whole timetable forward. That would certainly be a great help. The sooner it is done, the better, even if the timetable is really around the 12-month timing. On that basis, I beg leave to withdraw my amendment.

Amendment 46 withdrawn.

Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

89: Clause 26, page 25, line 30, at beginning insert “Subject to subsection (2A), ”

[Baroness Howe of Idlicote (CB)]

My Lords, I rise to speak to Amendments 89 and 91 in my name and, in doing so, I thank the Minister for the letter that she sent to noble Lords before Committee stage began, which responded to a number of different concerns, including the points that I made at Second Reading. I am grateful for that response and will use it as my starting point in moving these amendments today. By way of introduction, it would probably help if I recapitulated my central concern, which I expressed at Second Reading and is the reason that I move these amendments.

It is absolutely right that the Government should do everything in their power to tackle the great evil that is terrorism. The events of last year must cause them to apply themselves, with even greater determination than before, to the development of really effective policy and legislation to deal with the threat that terrorism poses. Part of our response to terrorism is to say that it has no place here and to defend the British commitment to liberty and all the attendant constitutional safeguards that uphold it. In this context, it seems to me that when we cross from terrorism to extremism which is not related to terrorism, we enter very difficult territory. While I have no problem with the state intervening when someone’s values cause them either to commit a terrorist act, to glorify a terrorist act or to encourage others to engage in a terrorist act, I have the greatest difficulty with the idea of censuring extremism without a connection to terrorism.

When we start to engage extremism with no connection to terrorism, it seems to me that we enter entirely different territory. It is all so very subjective. One person’s “extreme views” could be another’s common sense, just as their common sense could seem extreme to another person. Part of the challenge of living in a free society is accommodating differences of opinion, including those that we may find, for want of a better phrase, “nutty and extreme”. I feel uncomfortable about the idea that we should start policing these thoughts.

Having reminded noble Lords of this backdrop, I turn to detailed consideration of my amendments and the Minister’s letter. As things stand, Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015, which requires local government to seek to identify those at risk of being drawn into terrorism. Clause 19 broadens the scope of Section 36 and the point that I made at Second Reading is that Clause 19 should not be implemented until such a time as the accompanying guidance is updated to prevent policing people’s views which the state describes as extreme but which do not espouse and celebrate acts of violence. There is no basis for that reach beyond terrorism in the primary legislation.

In her response, the Minister has suggested that the Channel guidance is very clear that the point at which an intervention is made is the point at which the person concerned is indeed deemed at risk of either espousing, celebrating or committing acts of violence. There are, however, two problems. First, while the Channel guidance is clear about the point of intervention to bring someone in, it in fact ranges rather more widely. This is reflected in the references to extremism in that guidance, where there is no need for any reference to terrorism. Paragraph 51, for example, encourages the consideration of,

“indicators that an individual is engaged with an extremist group, cause or ideology”.

It goes on to say that these indicators include things such as,

“spending increasing time in the company of other suspected extremists”,

and

“day-to-day behaviour becoming increasingly centred around an extremist ideology, group or cause”.

It seems to me that, as currently defined, the Channel guidance mandates two forms of intervention: an intervention where there is a perceived risk that someone is in danger of being drawn into terrorism—with which I have no difficulty—and a prior intervention for the purpose of monitoring because the state does not like the views espoused, even though they have nothing to do with espousing, celebrating or committing acts of terrorism. Of course I have no difficulty with the idea of monitoring to identify when someone is at risk of being drawn into terrorism, but that must be because they are coming under the influence of those who are in some sense connected to terrorism, and not simply because they come into contact with those whose views the state deems extreme. That is a key distinction, but it is one that I am not convinced the Channel guidance currently respects.

In expressing this concern, I highlight once again the judgment in the case of Salman Butt. In her letter, the Minister suggested that Mr Justice Ouseley’s judgment in that case merely underlines and indicates the current approach of the Government in being clear that the point of intervention is when there is a risk that the person will be drawn into violence. With respect, however, Mr Justice Ouseley was underlining this distinction in response to a concern that, while on some occasions it is being respected by guidance, on other occasions it is not. Of course I fully understand that Mr Justice Ouseley’s judgment refers specifically to the Prevent guidance, but I think the same principle should be applied with respect to the Channel guidance.

This takes me to the second difficulty with the Government’s response. In her letter, the Minister suggested that the only relevant guidance at this point is the Channel guidance, inferring that other forms of guidance such as the Prevent guidance and the Counter-Extremism Strategy are simply not relevant. I do not find that argument in any way convincing. Quite apart from anything else, paragraphs 6 and 7 of section 1 of the Channel guidance relate it to Prevent and the Prevent guidance. In this context, it seems entirely possible that those discharging their duties under Section 36 of the 2015 Act will feel it entirely appropriate to allow their conduct to be impacted by the broad approaches set out in that document.

Moreover, it seems entirely reasonable to me that someone discharging their duties under Section 36 and wanting a better handle on extremism should turn to the Counter-Extremism Strategy or counterterrorism strategy for additional guidance. However, these documents completely fail to respect the crucial distinction that Mr Justice Ouseley sets out in his judgment. For example, paragraph 74 of the latest version of the counterterrorism strategy states:

“We protect the values of our society – the rule of law, individual liberty, democracy, mutual respect, tolerance and understanding of different faiths and beliefs – by tackling extremism in all its forms”.


Paragraph 124, meanwhile, references the Channel guidance and says:

“Channel is run in every local authority in England and Wales and addresses all types of extremism”.


The Counter-Extremism Strategy, meanwhile, states at paragraph 8:

“We are clear that this strategy will tackle all forms of extremism: violent and non-violent”.


These are just a few of the examples. This means that the guidance that feeds into thinking about the application of the duty to prevent people from being drawn into terrorism, or assessing the extent to which identified individuals are vulnerable to being drawn into terrorism, is broadened to cover a very broad concept of extremism where there is not always a connection to terrorism. I believe that this is simply not acceptable, and the Government need to rein in their focus away from extremism in all its forms to focus very specifically on those who espouse, celebrate or commits acts of violence or who are in danger of doing so. In making that point—and in moving this amendment—that would require the Channel guidance, the Prevent duty guidance, the counterterrorism strategy and Counter-Extremism Strategy to be updated, so that they do not transgress beyond the narrow focus on a necessary connection to violence to extremism in all its forms.

--- Later in debate ---

We keep the Channel guidance under review and from time to time it will need updating. But it would be quite wrong to make the revision of this guidance, or the separate Prevent guidance, a precondition of the commencement of the much-needed provisions in the Bill. As I said, I am very happy to meet the two noble Lords and, in the meantime, I ask the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for her reply although it was obviously not the one I would have hoped for. I will have to think about it in quite a lot of detail before coming to a conclusion about what should happen on Report. I also thank the noble Lord, Lord Morrow, for his contribution and for backing what I still consider to be a very important range of thoughts. As there is a need for a bit of talk before we come to any full conclusions about this, a look at diaries before Report would be good to fix a convenient time for all concerned. I beg leave to withdraw the amendment.

Amendment 89 withdrawn.

Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

54: Clause 19, page 21, line 19, at end insert—
“(4A) Section 37 (membership and proceedings of panel) is amended in accordance with subsections (4B) and (4C).(4B) At the end of subsection (1)(b) insert “, unless they are the person who referred the particular identified individual for an assessment under section 36, in which case they must appoint an alternative person to represent them on the panel in accordance with subsections (2) and (2A).”(4C) After subsection (2) insert—“(2A) The representative appointed under subsection (2) must not be the person who referred the particular identified individual for an assessment under section 36.””

[Baroness Howe of Idlicote (CB)]

My Lords, my amendment proposes that those who refer an individual for assessment under the Channel programme are different from those who assess the individuals once they have been referred. For reasons that I will set out, the amendment constitutes a crucial safeguard to protect the integrity of the programme. Amendment 54 addresses the issue concerning Clause 19 that was identified by myself, the noble Lords, Lord Stunell and Lord McInnes of Kilwinning, and the noble Baroness, Lady Barran, during Second Reading: namely, granting local authorities the additional powers to refer individuals for assessment under the Channel programme, an assessment that they themselves would undertake if Clause 19 were accepted with its current wording.

It is important, moreover, that this concern about Clause 19 is seen in the broader context of the concerns raised by the Joint Committee on Human Rights in commenting on the Counter-Terrorism and Border Security Bill. In relation to Clause 19, the report says that the committee is,

“concerned that any additional responsibility placed on local authorities must be accompanied by adequate training and resources to ensure that the authorities are equipped to identify individuals vulnerable to being drawn into terrorism”.

However, these recommendations cannot address the challenge flowing from the imposition of the extra duty arising from Clause 19, which, for reasons that I will explain, is likely to lead to the creation of perverse incentives.

Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a duty on local authorities to play an additional role to assess individuals vulnerable to being drawn into terrorism. This is a function that under the current wording of Section 36(3) of the 2015 Act rests with a chief officer of police. In accordance with Clause 19, apart from assessing—by way of a self-established panel—the extent to which identified individuals are vulnerable to being drawn to terrorism, local authorities will also have an extra power to refer individuals to its panel.

Ultimately, the safeguard that currently arises from splitting the responsibilities between a chief officer of police, responsible for referring individuals, and the panel, responsible for assessment, will no longer obtain. While the local authorities should be more involved in countering terrorism, the amendment of Section 36 of the 2015 Act through Clause 19 of this Bill introduces a dangerous model that may be abused where the referral and assessment are conducted by the same person.

My concern about Clause 19 in its current form is that if a person refers an individual for assessment and then sits on the panel assessing that individual, there is a risk that the person, even if unintentionally, may steer the assessment panel in a direction that would help to justify their prior decision to refer the person for the assessment. If an individual is wrongly referred and then wrongly assessed, that could significantly jeopardise the process and lead to its abuse.

--- Later in debate ---

I hope that, with those explanations, the noble Baroness will feel it appropriate to withdraw the amendment.

[Baroness Howe of Idlicote]

My Lords, I am most grateful to the Minister, and to all noble Lords who have taken part in this short debate. The assessment that has been made will lead one to consider all the comments carefully. As for withdrawing the amendment, I am pretty certain that I will return to this at a later stage, when the issue is looked at in more detail. In the meantime, there is a lot to think about. In particular, the comments of the noble Lord, Lord Carlile of Berriew, set the tone for the debate. I beg leave to withdraw the amendment, at least temporarily.

Amendment 54 withdrawn.

Counter-Terrorism and Border Security Bill

Baroness Howe of Idlicote Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I warmly congratulate the noble and learned Lord, Lord Garnier, on his excellent maiden speech, and I look forward with equal enthusiasm to hearing that of the noble Lord, Lord Tyrie, which I am sure will be of equal quality.

Clearly, as other noble Lords have said, it is only right, after the terrorist attacks of last year, that the Government should work hard to make sure that our anti-terrorism legislation is fit for purpose, so I welcome the fact that through the Bill they are seeking to discharge this important responsibility. The challenge that they face in doing so is a difficult one. On one hand, we must do all we can to keep our citizens safe. On the other hand, we do not want to introduce changes that fundamentally change the nature of our society. It would be the supreme irony if, in seeking to preserve our society, we end up changing what it means to be British. In particular, it is very important that, in developing legislation and attendant guidance, great care is taken to ensure that it does not jeopardise the enjoyment of human rights.

In July 2018 the Joint Committee on Human Rights published a report highlighting serious concerns over the new powers in the Bill. Among other things, the report raised concerns about the Prevent programme, which is engaged by Clause 19, on which I shall concentrate. Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015 to impose a new duty on local authorities. In addition to being responsible for assessing individuals vulnerable to being drawn into terrorism, through panels mandated by Section 36, Clause 19 also gives local authorities the power to refer people to the panel. The discharging of this new duty will be informed by the relevant guidance pertaining to the Prevent duty, namely the Prevent duty guidance of 2015, the Counter-terrorism Strategy, the newest version of which was published in June 2018, and the Counter-Extremism Strategy of 2015. My difficulty with this arrangement is that while the statute is narrowly focused on terrorism, the Prevent duty guidance, the Counter-terrorism Strategy and the Counter-Extremism Strategy engage with extremism in all its forms, including non-violent extremism, which has no statutory definition.

The lack of a definition of non-violent extremism in law, and the lack of any sanction against non-violent extremism in law, is a very good thing. If someone espouses violence, they cross a very clear threshold. I find it hard to imagine that any Member of your Lordships’ House would have any difficulty in having very robust laws against such practice. The idea, however, that we should target people espousing non-violent views seems deeply problematic to me. The only content we are left with is that the view is “extreme”, but in whose opinion? What is extreme to one person is sensible to another. Unless we are to fundamentally change the nature of the society in which we live and start policing speech in a way that would be deeply inimical to the British tradition. I do not think that we should introduce sanctions against opinions that do not espouse violence.

I appreciate that the Bill does not ask us to endorse directly the Prevent duty guidance and the Counter-Extremism Strategy. We are, however, being asked to indirectly endorse these documents because they provide the guidance according to which local authorities will be required to take on the new responsibilities that we will ask them to assume in sanctioning Clause 19.

The difficulty that this presents is compounded further by a critical development in the courts. In July 2017, in his judgment in Salman Butt v Secretary of State for the Home Department, Mr Justice Ouseley stated very clearly that the Prevent duty does not refer to all forms of extremism as defined in the Prevent duty guidance of 2015 and the Counter-Extremism Strategy of 2015. Mr Justice Ouseley rightly said that extremism is,

“the active opposition to fundamental British values”,

which,

“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.

Thus the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism.

However, that is not what the Prevent duty guidance, the Counter-Extremism Strategy or the Counter-terrorism- Strategy say. Mindful of this, I very much hope that the Government will introduce an amendment in Committee to the effect that Clause 19 will not be implemented until the Prevent duty guidance, the Counter-Extremism Strategy and the Counter-terrorism Strategy have first been subjected to a review and updated in light of the judgment of Mr Justice Ouseley. Let us uphold the right to non-violent free speech and fight terrorism by preserving rather than compromising our own heritage.

Bishops and Priests (Consecration and Ordination of Women) Measure

Baroness Howe of Idlicote Excerpts

Tuesday 14th October 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, first, I declare my interest as a vice-president of WATCH, or Women and the Church. Naturally, WATCH warmly welcomes this Measure. We also especially congratulate the most reverend Primate and the Synod on achieving a solution to what seemed an intractable problem, as we have heard from others, and for doing it in such a short time.

However, I still wonder whether there might be some problems for senior women who might be considered for episcopal appointments. One is that they may have served many years in more junior positions despite their gifts and experience, and therefore be older than the usual run of candidates. Further, while some have already achieved high office, others might not have had the opportunity to follow the path which has previously been the norm for candidates to high office. As we have already heard, there have been some examples of why that may well have benefited many other parts of the world. It is therefore not altogether something to be totally sad about.

The second issue relates to the arrangements for the appointment of Lords spiritual. New diocesan bishops normally have to wait their turn, which can take five years or more. Members of both Houses have expressed concerns on this point in relation to newly appointed women bishops and would be interested to know of any arrangements to appoint women to this House as early as possible. That point has also begun to surface, I think.

We have before us a very short Measure on which this House needs to decide. However, the substance of it lies in the declaration of the House of Bishops and supporting documents. This declaration sets out the arrangements by which clergy and laity who dissent from the Measure can still continue to worship and function as members of the Church of England. WATCH fully accepts that declaration and recognises its importance in achieving the goal of seeing women appointed as bishops. Naturally we shall rejoice, as will virtually the whole church, when that occurs. Nevertheless, inevitably, these arrangements incorporate some measures of discrimination against women and give rise to questions which may not have been tackled in the very short time allowed for framing this legislation.

I have four specific questions which I hope the most reverend Primate will be able to answer, and I think that he has already hinted at the direction in some of his comments. First, can the Archbishops confirm that they will continue to observe the long-standing tradition of consecrating each new bishop? The document was silent on this point, but the most reverend Primate will appreciate how important it is for the validation of the episcopal orders of women and of those male bishops who ordain women.

Secondly, how can congregations in favour of the ordained ministry of women request the episcopal ministry of a non-discriminating bishop? As I understand it, the bishops’ declaration allows for parochial church councils—PCCs—on behalf of their congregations, to request the episcopal ministry of a male bishop. However, there are already parishes that have a woman priest but whose bishop does not recognise that priest’s orders. The declaration is silent on the question of whether such a PCC can request a non-discriminating bishop under the new arrangements. It is also silent on whether such PCCs have access to the newly created independent reviewer of disputes, who is to pronounce on,

“any aspect of the operation of the House of Bishops’ Declaration”.

Thirdly, can the most reverend Primate confirm that any newly appointed conservative evangelical headship bishop will minister only to parishes that request his ministry? There appear to be two possible models for the appointment of a headship bishop. One would be the “flying bishop” model instituted by the Act of Synod of 1993. In this model such a bishop would minister only to those parishes that specifically requested his oversight. The other—and, one has to say, much less acceptable—model would be to make a suffragan appointment to a specific see. In this case the majority of parishes under his oversight would not wish to receive the oversight of a bishop wedded to the concept of the subordination of women.

Fourthly, and finally, can the most reverend Primate confirm that Clause 2 of the Measure will have the effect of allowing the church to discriminate exclusively on grounds of gender and will not facilitate discrimination on grounds of sexuality and remarriage after divorce?

Clause 2 of the Measure declares that the office of bishop is not a public office—and we have had that confirmed by the most reverend Primate—and therefore is not bound by Section 50 of the Equality Act 2010. This clause is crucial to the regime for women bishops set out in the House of Bishops’ declaration, because that regime depends in part upon arrangements that discriminate against women. Reluctantly, women and supporters of women bishops have accepted it on this basis. However, the effect of this clause is finally and irrevocably to exempt the bishops from the anti-discrimination requirements of the Equalities Act 2010, not only in relation to gender but also in relation to other protected characteristics under that Act, including, most importantly for the church, sexuality and remarriage after divorce. Verbal assurances have been given that the bishops will not avail themselves of that exception, and I think that that is also what the most reverend Primate was telling us, but to have that assurance recorded in Hansard would really be a great help. I very much look forward to the most reverend Primate’s reply.

[Lord Cormack (Con)]

My Lords, I thank the most reverend Primate for the most generous way in which he introduced this Measure. I also pay tribute to the noble and learned Lord, Lord Lloyd, who is the chairman of the Ecclesiastical Committee—a committee on which I had the honour to sit for some 40 years—for the understanding way in which he spoke.

I do not wish to enter a jarring note in this debate, nor do I wish that anything I should say should diminish the delight and joy of those who have an unreserved welcome for this Measure. However, this is a debating Chamber, and where there are diversities of views it is important that those views should be voiced, if only briefly. I happen to belong to what Archbishop Hope—now the noble and right reverend Lord, Lord Hope—referred to very memorably in earlier debates on the ordination of women as the traditional integrity within the Church of England. I have the great good fortune of being able to worship every Sunday in the cathedral of the Blessed Virgin Mary of Lincoln. Before I moved from Staffordshire, I was churchwarden of the church of St Mary in Enville in the diocese of Lichfield.

For me, this is not a matter of equality in the secular sense to which the noble Baroness, Lady Howe, alluded in her speech. I honour the position of women in all walks of life. I revere the Blessed Virgin Mary, second only to our Lord himself. I have had the great privilege of being associated with some very fine women leaders in various walks of life, including the noble Baroness, Lady Howe; I have worked in a secular capacity with her for several years on matters of equality. So this is not a matter of gender discrimination. However, I happen to believe—this matter was referred to with great understanding by the noble and learned Lord, Lord Lloyd—that the majority of Christendom cannot be just lightly brushed aside. I talk of the Roman Catholic Church, and the Orthodox Church in particular. The majority of Christians in our world belong to one or other of those churches. I worked in the ecumenical field as a lay man, and I always longed for the day when there would be a unity among the catholic churches, of which the Anglican Church is one. The noble and learned Lord, Lord Lloyd, was right when he said that what we are doing this evening—I shall certainly not oppose it—will not exactly accelerate ecumenism. Let us not put it any more strongly than that.

Women: Board Membership

Baroness Howe of Idlicote Excerpts

Monday 10th March 2014 Lords Chamber

[Baroness Northover]

My noble friend is absolutely right. I do not think that there is a dearth of talent; it is a matter of making sure that those people end up on boards. There is a lot that we ourselves can do. As I did in the debate on International Women’s Day last Thursday, I should like to mention the two companies in the FTSE 100 that have not yet appointed women. Last year, there were five; significantly, two dropped out of the FTSE 100 and one of them—the one that I mentioned—has now appointed a woman. There are two left: Glencore Xstrata and Antofagasta. Perhaps I may point out that Glencore was speedy enough to seek help from the United Kingdom Government when it was trying to finalise a deal overseas. I quote from it:

“We seek to apply best practice, ensuring that our approach is up-to-date and relevant”.

Hmm. I come to Antofagasta, which is Chilean based. Tomorrow, Chile swears in as its new president Michelle Bachelet, the formidable former head of UN Women, so I think that we have a pincer movement here.

[Baroness Howe of Idlicote (CB)]

My Lords, can the Minister tell us to what extent she and the Government believe that it is the yearly reports that are required on progress from each of the companies involved in this scheme that have had a major effect in getting the continuous stream of improvements, although I thoroughly agree with her that there is still a long way to go?

[Baroness Northover]

The noble Baroness is right that transparency and reporting are absolutely key. She will know that Charlotte Sweeney has just reported on the voluntary code among those who are recruiting for those positions. She notes that only 25% of those headhunting firms even mentioned this on their websites, so they themselves have a long way to go.

Women: Contribution to Economic Life

Baroness Howe of Idlicote Excerpts

Thursday 6th March 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I begin by thanking everyone who has spoken for a fascinating and invigorating debate. We also listened to an excellent maiden speech by the noble Lord, Lord Palumbo of Southwark.

While other noble Lords were listening to the interesting speech to Parliament of Angela Merkel—another of our icons—I was at a reception at Clarence House given for WOW by the Duchess of Cornwall at the start of the 2014 Women of the World festival, being held this year at London’s South Bank. One of those present was Nimco Ali, an FGM victim, and many noble Lords will have seen her conversation with the Duchess reported in last Friday’s press. The Duchess has herself been appalled by this horrendous practice taking place in this country. Apparently, over time, some 66,000 girls have already been forced to have this illegal operation performed on them.

The good news is that, when combined with the strong views already expressed by your Lordships in today’s Question on FMG, the recent promise by Michael Gove to ensure that in future, schools, teachers and governors—all those responsible—will ensure that preventing FGM taking place on their pupils becomes a top priority. This should mean that this illegal practice will, at the very least, decrease considerably over the next few years.

I began begun my comments in this International Women’s Day debate with the example of FGM because if Britain can set an example here, after many years of brushing the issue under the carpet, it may indeed be a vital lead that other countries, too, may wish to follow—albeit perhaps not immediately in some cases. That is why I particularly want to congratulate the Minister, the noble Baroness, Lady Northover, not just on securing this important debate today but on her success in broadening its title to include women’s contribution to economic life not just in the UK but worldwide.

Without doubt, one of the best initiatives was the Davies report, Women on Boards, published in February 2011. In 2010, when the noble Lord, Lord Davies, was asked to lead this strategy, women made up just 10.5% of board members on FTSE 100 companies, and 6.7% of those in FTSE 250 companies. Although, as the noble Lord himself says, there is obviously still a long way to go—not least, as other noble Lords have mentioned, because the vast majority of appointments were non-executive board members—by 2013, women accounted for 17.3% of board members at FTSE 100 companies, and 13.2% of board members of FTSE 250 companies. That represented an overall increase of 50%. The important route whereby this success is being achieved is for companies involved in this project to recruit and nurture female as well as male executive talent and ensure that they have adequate mentoring support en route to top-level jobs. The added requirement is that companies report yearly on the success of their policies, which then forms the basis of the yearly published progress report from the noble Lord, Lord Davies. It is that yearly basis that is so important. Thus everyone can see exactly what success is being achieved. My hope is that success here may well prove to be an incentive to other countries to follow—not necessarily by following an identical path but in ways that suit their particular circumstances.

Of course, earlier action in Britain is also needed to achieve our own targets, which again may prove to be a useful example for others to follow, not least during our children’s education. One such area is crucial—careers advice, which has been mentioned by many noble Lords. Sadly, a recent Ofsted report has indicated that considerable improvement is indeed needed here. Some time ago, in 1975, in my role as the first deputy chairman of the Equal Opportunities Commission, one of my major concerns was the advice that girls were getting, which was limited to, for example, hairdressing and secretarial careers—the noble Baroness, Lady Prosser, mentioned this area—rather than the wider careers advice that boys would get. I suspect that there is still more than an element of that attitude in the advice that girls are getting today. Certainly, for both sexes, careers advice should be based on the individual child’s abilities and aptitude. Equally, other aspects are important, too, such as what local job opportunities exist and the range of better-paid jobs that are needed in today’s environment. Within a school’s structure itself, one definite improvement would be to have more local employers appointed as school governors. Also, given that not all teachers are necessarily well informed about local job opportunities, visits to different kinds of businesses and employers should be part of every school’s curriculum.

The third and last issue that I want to address is flexible working, which has already been mentioned by other noble Lords. I emphasise that what is still needed here is for these opportunities to be available equally—I stress, equally—for men as for women. Again, this may be useful for other countries to consider. A much more active campaign is now needed for two important reasons. The first is because men are taking and enjoying a far more active role as fathers, which of course also means that mothers have greater freedom to return to work. The second reason is the new opportunities created by the amazing technological changes in communications, which has also been touched on in this debate. Nearly all jobs can now be organised flexibly. To illustrate the situation, if we need to get in touch with, say, a plumber, we all know that the person answering our phone call will almost certainly be living on another continent and using a mobile phone.

So if UK employers, large and small—and I suspect that the small employers are already among the most pioneering here—were to accept this changed situation, decide which were the very few roles that could not be worked flexibly and reorganise the rest on a flexible basis, not only would this better suit modern family lives but it would cut employers’ costs, as less office space would be needed, with much of the business done at home or on the move using mobile phones. It would be interesting to hear whether the Government have any plans to encourage this.

Again, I thank the Minister for introducing this debate. I very much look forward to listening to the remaining speeches and to hearing what gems we can expect from the Government in the future.

Children and Families Bill

Baroness Howe of Idlicote Excerpts

Monday 18th November 2013 Grand Committee

I advise everyone to look at the Trust for London report because it is the most recent piece of work, it was externally evaluated and the cases were externally collected. All the organisations together came to the conclusion that with proper implementation at a local authority level of understanding—which is what we say every time we come to these issues: it is about training, application and action—the present law would catch the worst cases that we hear about. In the examples we heard today, certainly there should have been intervention by the local authority to protect the child.

[Baroness Howe of Idlicote (CB)]

My Lords, I support Amendment 243 because it throws into the ring just how absurd this situation is.

Alas, we all know that this sort of action and reaction exists in this country. Female genital mutilation is exactly the same thing; it is happening, it has been happening. We turn a blind eye. We do not want to offend certain organisations and people. We are all against it, of course. The very first Minister I heard who actually understood what was going on completely denounced it, but even that led to no action being taken—you see what we are facing.

What we have heard today should make us stand up and decide in favour of some real action. The amendment has put us on the spot: we should have done so. It certainly should put the Government on the spot, if I may say so, because it is now time for some much more positive action in this respect—and I hope that they will rise to the challenge.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak very briefly in support of Amendment 246.

I cannot see any justification for excluding part-time educational institutions. Corporal punishment is corporal punishment; the impact on the child is the same, whether it takes place in a full-time or a part-time educational institution. Therefore, I hope the Minister will support the amendment—or, if not, will explain why.

--- Later in debate ---

[Baroness Walmsley]

My Lords, I will not speak in detail about the amendments but I should like to express my general support for anything that strengthens the independence of the Children’s Commissioner. The commissioner is not completely independent. He or she will have their powers very much diluted, which would be a pity because the Bill considerably improves the powers and duties of the commissioner. I very much welcome that.

Of course, it is also important that the commissioner has appropriate resources with which to carry out those improved powers and duties. The noble Baroness, Lady Lister, has clearly shown the link between independence and money. If the Government are controlling exactly how the commissioner spends his or her money, where is the independence? Her amendment should therefore be carefully considered.

[Baroness Howe of Idlicote]

My Lords, I will be reasonably brief on the three amendments to which I have added my name, although all the amendments in the group are admirable. I also very much thank the Minister for his helpful letter and proposed amendment. There has been little time to take it in and I look forward even more to what he will say at the end of the debate.

As my noble friend Lady Massey said—and the noble Baroness, Lady Lister, expanded forcefully on—the UN Committee on the Rights of the Child has made it clear that national human rights institutions for children, including children’s commissioners, should be established in compliance with the Paris principles, which were adopted more than 20 years ago by the UN General Assembly. These minimum standards provide guidance for the establishment, competence, responsibilities and composition—including pluralism, independence, methods of operation and quasi-judicial activities—of such national bodies. These recommendations underpin the amendments that I am supporting. The Committee on the Rights of the Child has said:

“It is essential that institutions remain entirely free to set their own agenda and determine their own activities”.

It has also stated:

“The appointment process for ombudspersons for children should be open, transparent and appropriate”.

With regards to the commissioner’s funding, the Bill currently affords the Secretary of State absolute discretion in deciding the amount, timing and conditions. Currently, too, this has the potential significantly to undermine the commissioner’s independence. The Committee on the Rights of the Child is clear:

“In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding … staff, premises, and freedom from forms of financial control that might affect their independence”.

Also, as Amendment 257 states, the appointment of a commissioner has to be seriously considered from all sorts of perspectives. I have met the commissioner whom we appointed and, if I may say so, it is an extremely good appointment.

However, what is said in Amendment 257 is equally important:

“The Secretary of State shall appoint an individual only if the Secretary of State reasonably considers the individual”—

and this is the bit that I want to stress—

“has adequate experience and knowledge relating to children’s rights, including the involvement of children in decision-making; and … is able and willing to act independently of Government”.

The active involvement of children in decision-making is the area that I want to stress, because that is essential in today’s world and I hope that the Minister will be able to reassure me on that point, quite apart from any others.

[Baroness Butler-Sloss (CB)]

My Lords, I have also put my name to three amendments and support the others in this group. It is absolutely crucial that the appointment of the Children’s Commissioner is taken very seriously, particularly that it should be somebody who can be genuinely independent of Government. May I suggest—perhaps unpopularly to any Government —that it requires someone who is prepared to be a thorn in the flesh. We do not want anyone who would be a yes-man or a yes-woman. Splendidly, the present Children’s Commissioner is certainly not that. I know her well and I have huge respect for her, but she does not have enough funding to do what she has to do and she certainly cannot do anything else.

If I may relay a short anecdote: the noble Lord, Lord McColl of Dulwich, and I managed to be persuaded by the Government not to pursue an amendment in an earlier Bill on getting a children’s legal advocate for trafficked children, on the basis that the Children’s Commissioner would investigate what happened to a child who was identified as trafficked from the moment of identification to the point at which the child would be able to be settled, one way or another. That promise was made outside the Chamber. The Children’s Commissioner then said, “I cannot do this job. I do not have the money”. The noble Lord, Lord McColl, and I went to see her and discussed it with her. There was, with the Children’s Society and the Refugee Council, a shortened, abbreviated and, despite all their efforts, inadequate investigation, because it did not do what the Children’s Commissioner would have done, which was to take it from day one of identification through to the moment when the child would be settled. They did their best with very limited funding.

This was absolutely the sort of thing that should have been done by the Children’s Commissioner and the Children’s Commissioner would like to have done it, but the resources were not there. This is just one example. I know we lack money and that this is difficult, but children matter—they absolutely matter—and the Children’s Commissioner matters. He or she must be independent and properly appointed as somebody who really knows what he or she is doing. As the noble Baroness, Lady Howe, has just said, the Children’s Commissioner must be able to consult the children and bring their voice into decision-making—as this commissioner has done in an excellent way. For those reasons, I strongly support these amendments.

Children and Families Bill

Baroness Howe of Idlicote Excerpts

Wednesday 30th October 2013 Grand Committee

Both amendments are important because they are about elaborating on what should be in the local offer. I am also interested in the other amendments in this group but, for now, I beg to move.

[Baroness Howe of Idlicote (CB)]

My Lords, we have heard a lot about the local offer and I suspect that we will hear a lot more. The local offer sets out in one place information about provisions that a local authority expects to be available for children and young people in their area with special educational needs, including those who do not have an education, health and care plan.

The two amendments that I have tabled are about ensuring that the local offer includes information about how schools and local authorities cater for disabled children in their area. This should include how schools and local authorities are satisfying their statutory obligations under the Equality Act 2010 to disabled pupils. That duty has already been mentioned by the noble Baroness, Lady Hughes, so she will understand how important it is to ensure that this duty is fully taken on and included in the Bill. If adopted, my amendments would ensure that duties owed to disabled pupils by the Equality Act were recognised and carried out by schools.

Amendment 106A proposes to insert at the end of line 6 on page 24,

“a summary of relevant information from the SEN information reports for schools in the local authority, as under section 65”.

This first amendment will ensure that the local offer includes the information required by Clause 65. Clause 65(3) is particularly relevant for disabled pupils, as it provides a requirement that the special educational needs information report, which has to be produced by all mainstream schools, includes information on,

“the arrangements for the admission of disabled persons as pupils”,

and,

“the steps taken to prevent disabled pupils from being treated less favourably than other pupils”.

“Mainstream schools” includes schools maintained by the local authority, academies and free schools. The report must also include the facilities provided to assist access to the school by disabled pupils and information about the accessibility plan that the school is required to publish.

The accessibility plan demonstrates how the school is increasing the access of disabled pupils to the school curriculum, improving the physical environment and improving information about the school for disabled pupils and their parents. The requirement to develop accessibility plans applies to all schools and Ofsted can look at the performance of these duties by schools.

Amendment 106B, the second of these amendments, proposes the insertion in Clause 30, at the end of line 36 on page 24, of the words,

“the strategy prepared by the local authority under paragraphs 1 and 2 of Schedule 10 to the Equality Act 2010 (accessibility strategy)”.

This amendment will ensure that the accessibility strategy prepared by the local authority will be included in the local offer. The accessibility strategy is a written document that specifies how maintained schools in the local authority area will increase disabled pupils’ access to the school curriculum, improve the physical environment for disabled pupils and improve information for them. Strategies must take into account the preferences expressed by pupils and their parents and should be reviewed regularly. Local authorities must have regard to the need to allocate adequate resources for the implementation of the strategy.

I very much hope that the Minister will understand and accept the importance of making clear to everyone just how vital the Equality Act is in ensuring that all the things that we want, and the Government want, are actually carried through. I hope that, under those circumstances, the Minister will feel able to accept these amendments, no doubt with a little refinement on their own part, and make them part of the Bill.

[Baroness Brinton]

My Lords, my noble friend Lady Sharp is not able to be in her place at the moment so, in her absence, I am speaking to the amendment in her name, Amendment 106. This is a probing amendment intended to obtain reassurances from Ministers that the entitlements of children and young people with SEN and their families will not be weakened by the passage of the Bill or by the revision of the statutory SEN code of practice.

The local offer, as currently described in Clause 30, imposes a significantly weaker and more narrowly defined duty on local authorities than the equivalent provision in the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001, which remain in force. These regulations set out what information a local authority must provide, including, among other things, requirements to provide information about the action that the local authority is taking to promote high standards of education for children with SEN, and what action the local authority is taking to encourage schools in their area to share best practice in making provision for children with SEN. There must also be information about the general arrangements, including any plans, objectives and timescales for: monitoring the admission of children with SEN—whether or not they have a statement—to schools in their area; providing support to schools in the area with regard to making special educational provision for children with SEN; auditing, planning, monitoring and reviewing provision for children with SEN in their area; securing training, advice and support for staff working in their area with children with SEN; and securing training, advice and support for staff working in their area for children with SEN.

The information that I have just listed is important for parents, but it also incorporates a set of important principles in relation to education for pupils with SEN: the recognition that pupils with SEN need high standards of provision; that these standards should be regularly monitored and reviewed; that teachers need training, advice and support; and that schools should collaborate to share good practice.

Clause 30 merely provides that regulations may make provision about the information to be included in an authority’s local offer. It is important that the information listed in the 2001 regulations is collected and publicised by local authorities. The local offer should carry this forward into the new framework. It is not clear that this will be the case with the loose wording of the Bill. As far as I can see, there is nothing proposed in the code of conduct which would impose these duties on local authorities. Are the 2001 regulations going to be carried forward? What is the position? I would be grateful if the Minister could clarify the situation.

--- Later in debate ---

[Baroness Jones of Whitchurch]

My Lords, I shall speak to our Amendment 124 in this group and support the arguments which the noble Lord, Lord Low, has put forward in support of his amendment.

We began this debate about inclusion and access to mainstream education in Committee last week, but I am very pleased to have the opportunity to return to some of those issues. During that debate, the Minister sought to reassure us that duties were already in existence, including under the Equality Act 2010, to prevent discrimination against disabled people and that that addressed some of the issues about which we were concerned. However, I support the amendments that have been tabled by the noble Baroness, Lady Howe, because she has identified some of the remaining contradictions between the Equality Act and some of the duties that this Bill is spelling out. It is important that those issues are bottomed out, and I support her amendments.

We remain concerned that, by agreeing to this wording unamended, we will be introducing a get-out clause which would allow schools to duck out of their responsibilities to provide mainstream education when requested. As the noble Lord, Lord Low, pointed out, Clause 33 places a duty on local authorities to ensure that children and young people with an EHC plan are placed in mainstream education. There are two important caveats. The first is if a place is incompatible with the wishes of the child’s parents or the young person. Obviously we support that caveat. As we have said before, parental choice and the views of young people are crucial in identifying the best educational provision for a particular child.

It seems to us that the second caveat goes against the whole spirit and intent of the Bill. Clause 33(2)(b) provides that local authorities can opt out of providing mainstream education if it is incompatible with,

“the provision of efficient education for others”.

We feel that we should have moved on from that wording at this stage.

The wording raises questions about who defines what level of disruption is incompatible with efficient education. For example, could it be argued that any child with health issues in a school environment could potentially interfere with the efficient education of others? Or could any child whose educational needs required additional attention from a teacher arguably be taking the teacher’s time away from others, thereby affecting their education? How far are we going to apply this wording?

The Minister said that the Equality Act protects against discrimination, but is there not something rather worrying about defining disabled children’s rights by the level of inconvenience that they might cause? Therefore, our amendment would remove that reference and replace it with a much more positive commitment to meet the specific needs of children and young people.

Reference has been made to the draft code of conduct. It appears to me that it adds a further reason why a request for mainstream education could be refused, and that is the incompatibility with the efficient use of resources. As I understand it, this used to be a factor that schools could fall back on, basically arguing that it was too costly to educate children with SEN in mainstream schools. However, it was removed by the previous Government in 2001, so it now appears that we are going backwards, making it more difficult to access mainstream education.

We believe that ensuring that the needs and wishes of children, young people and their families ought to be the only justifiable basis on which they should be placed in a non-mainstream setting. We acknowledge that many mainstream schools still lack the capacity to provide a good education to children with certain learning difficulties and disabilities, but surely the solution is to address those failings in a structured and positive way within a given timetable, not to give those schools an opt-out. However, we have to accept that some schools are reluctant to admit children with special educational needs or to take the steps necessary to modify their facilities, particularly with the pressure of league tables uppermost in their minds. There is no doubt that some academies and free schools are seeking to operate more stringent admissions policies. This comes back to the issues raised by the Equality and Human Rights Commission about the alignment of the reasonable adjustment duty with the duties in the Bill. We need to make sure that they are properly aligned. Our concern is that the provisions in the Bill and the draft code of conduct give schools an excuse not to make any changes.

At Second Reading, this issue was addressed with some passion by several noble Lords, including the noble Baroness, Lady Grey-Thompson. We feel there is a need to address the failings in the Bill and the code in this respect. The Green Paper referred to creating a bias towards inclusion. If we are serious about that, we should remove Clause 33(2)(b). In his letter to Peers after Second Reading, the Minister referred to the fact that the Bill already provides for the wishes of children, young people and their parents to be taken into account and, of course, it does, but that misses the point if their wishes can be overridden by the needs of so-called efficient education for others or the efficient use of resources. I hope the Minister will take these issues seriously and look again at what we believe is increasingly backward-looking wording which goes so far against the spirit and intent of the Bill and that we can come back with a more positive form of words.

[Baroness Howe of Idlicote]

My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.

Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.

Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.

If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.

I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?

There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?

This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.

I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

Amendment 126A seeks to insert a new subsection in Clause 34 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.

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[Baroness Sharp of Guildford (LD)]

My Lords, my name is attached to Amendment 125. I was slightly surprised by this amendment and spent some time puzzling as to what the noble Baroness, Lady Howe, meant by it. I am not totally sure when my name got attached to it but it did and I therefore briefed myself accordingly. I think I am right that the noble Baroness previously argued for the deletion of Clause 34(9) rather than subsection (3). She argued against special academies and so forth. Subsection (3) says:

“The child or young person may be educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State”.

As I understand it, the noble Baroness did not argue about that subsection at all.

Nevertheless, I have a question about this area. I really saw this as a probing amendment because I cannot quite see how it is compatible with Clause 59, which deals with the local authority paying fees for special educational provision and makes it quite clear. My reading of Clause 34 is that it effectively says that no child may go to a special school except in very special circumstances and when everybody else agrees. Then Clause 59 makes it clear that a child without an EHC plan may be at a special school and paid for by a local authority. Yet it may be that that child, without an EHC plan and paid for by a local authority, needs to be assessed and sent to a special school. It strikes me that there is an incompatibility between those two.

[Baroness Howe of Idlicote]

To make it clear, I suggested that it was a probing amendment. As it had been tabled, I felt it was my duty to put the case given to me. I am sorry that the noble Baroness and I did not have time to discuss it.

[Baroness Sharp of Guildford]

I am sorry about that, too. While I am on my feet, I should say that I have a great deal of sympathy with the other amendments in this group. In particular, I sympathise with the arguments put forward by the noble Lord, Lord Low. In some ways, my preference would be for Amendment 124 because it seems to me that there are occasions when perhaps a special school is appropriate. The wording of Amendment 124 makes it absolutely clear that, when it is in the interests of,

“the specific needs of the child or young person”,

this might be the case. That is why I think that that amendment has some merit. I also very much support the amendments put forward by the noble Baroness, Lady Howe, concerning the Equality Act. I think that it is very important that we make it quite clear that this Bill in no sense overrides the responsibilities of local authorities under the Equality Act.

Children and Families Bill

Baroness Howe of Idlicote Excerpts

Monday 28th October 2013 Grand Committee

It is time that schools were required to make their environment safer for those severely bullied children and to acknowledge when a child is so badly bullied that they need to go elsewhere. It is time that Ofsted asked specific questions about children on the roll who are out of school: no more secret deals, please, between schools and parents about keeping them on the books but not present. It is time that the Government issued a new code of tactics and guidance, all in one place, that not only helps to tackle the bullies—which is equally important—but helps the children who are so badly bullied that they cannot go to school but desperately want to continue their learning. I beg to move.

[Baroness Howe of Idlicote (CB)]

My Lords, I have put my name to the two excellently researched amendments of the noble Baroness, Lady Brinton.

Bullying is absolutely rampant throughout all stages of people’s lives. If we can find a way to eradicate bullying from the earlier stages of children’s lives, that would be a hugely important first step. I very much like the thought that the noble Baroness expressed of having champions in schools to carry that through.

Bullying can have such severe consequences on children that they cannot attend school. As we have heard, there are 16,000 self-excluding children in England between the ages of 11 and 15. They are very ordinary children. Many develop temporary mental health issues, resulting in self-harm, depression, anxiety, panic attacks and even suicidal tendencies. Those children want to be able to go to school and to have friends, and may well have aspirations to go to sixth-form colleges and then on to university.

In some schools, children who are being badly bullied and do not want to go to school are offered places in the schools’ own exclusion units, but those units are largely for disruptive and difficult children or children with learning difficulties, and the children we are talking about just do not fall into that category. Of course, once there, if they go, they are further bullied or find the work too easy. If children self-exclude from schools for reasons of bullying, there is no alternative provision other than the pupil referral unit, which is for challenging, aggressive children—the bullies themselves, as we have heard. Those children are eminently recoverable with a short stay—I think that, for the majority, it is approximately one year—in an intensive care unit for such bullied children.

These children are often absent from school for months—in some cases, at least a year—before something happens about their situation. Some parents are threatened with prosecution for their child’s absence. The school then advises the parents to remove their children from the school roll to avoid prosecution. Once the child has been taken off the roll by the parent, of course, the local authority and the school have no responsibility for that child’s education.

We have heard that it is the experience of Red Balloon Learner Centres over 17 years that more than 85% of the children who have been to one have a learning difficulty when they first arrive. This manifests itself in behaviour such as an inability to think, concentrate, think logically, conduct lucid conversation, play, work with others or be a team player—all these sorts of things are reflected in their behaviour. Many children who are severely bullied do not have special educational needs prior to this; there is no doubt about that. Most of the children who fall into this category are intelligent, well behaved, co-operative and looking for self-improvement, and most are eminently recoverable, given that appropriate environment. Thus the SEN provisions should be regarded as being temporary and short-lived but intensive. If it were accepted that severely bullied self-excluded children who were out of school were children with SEN, then they could be statemented swiftly and efficiently within less than a school term and referred to a specialist intensive care unit for a short-term placement on a combined academic and therapeutic programme. The vast majority of these children would recover and be able to return to mainstream education.

It is particularly interesting to look at some of the case studies that have been supplied by Red Balloon. In case one, according to the child and adolescent mental health service, a girl now in year 11 had, at the end of year 9, requested a referral into Red Balloon because of the severe bullying and subsequent trauma that she had experienced. The local authority argued that the student was on roll at an academy and so the decision whether or not to refer remained with that academy. The academy was perfectly clear that it would not consider any referral into alternative provision, for cost reasons. The academy has its own provision for vulnerable students, and argued that the student’s needs could be met by its on-site unit. The student is now approaching the end of year 11. She has not attended at all since February. There were multiple issues prior to that date, and she has no chance of attaining any qualification this year. In a recent review, the representatives of CAMHS argued that without a therapeutic element to the programme, it was doomed to failure from the outset.

Case two concerns a year 9 student who was form captain, captain of hockey and netball, predicted straight As at GCSE and extremely popular with her year. She shared indiscreet photos of herself with her boyfriend, and when they broke up he posted those photos over the internet. Subsequently she was so severely bullied by other students in the school that she tried to take her own life three times in one night. In desperation, her mother drove her to the A&E department of the local hospital, and a paediatric specialist on duty recommended that this girl be educated for a temporary period in a small centre such as Red Balloon. The parent contacted the centre, which in turn contacted the school and the local authority, but the school refused to contemplate this referral and suggested that the girl could go to its inclusion unit. This required her walking through the school where the bullies jeered at and humiliated her and made crude comments. Inside the unit were children who knew of the cyberbullying and continually bullied her. Other children had special learning needs. There was no one like her in this unit. She refused to go and, unsurprisingly, was out of school for seven months. Eventually, despite all efforts to get her referred to Red Balloon and to find funding, her health deteriorated to such an extent that her mother sent her to live in Israel with her grandparents. Four years on, this girl, now 19, has completed no external exam, has not gone to sixth form and has no prospect of a university career, even though that was clearly predicted at 14. We are likely to face that kind of situation more and more frequently given the position we are in and all the possibilities that the internet provides us with, many of them, sadly, not desirable.

I hope that the Minister will take notice of the importance of severe bullying because I am not certain at this stage that the Government are taking it as seriously as they ought. That is one of the reasons we have all spent a great deal of time on working through this programme.

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[Baroness Howe of Idlicote]

My Lords, perhaps the Minister could speak a little further about what I mentioned at the beginning—bullying being relevant not only to children; it goes on into adult life in all forms of employment. Perhaps that should encourage everyone to spend rather more time thinking about how important it is to eradicate bullying earlier on.

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[The Countess of Mar]

Perhaps I can point the noble Baroness to my Amendment 218, which has a definition of blended learning.

[Baroness Howe of Idlicote]

My Lords, I support the amendments. When I first received the briefing about blended learning, I was slightly puzzled by it all. However, the deeper you get into it, the more appropriate it seems for many of the circumstances that we are facing, particularly with SEN children. I very much hope that the Minister will be able to find a way of supporting it, or of allowing it to be used in a number of different ways with the children for whom it is appropriate. I fear that, all too often, I am less than enthusiastic about the advantages of the internet and all the things that enable us to access all sorts of things online. However, if this can be a real plus for children with needs, I hope very much that it will be given a useful role and will be supported by the Government.

--- Later in debate ---

[Baroness Jones of Whitchurch]

To recap, I was talking about the support that was given to the families of children with special educational needs. I have referred to the fact that the Minister in the Commons referred people to the Children Act 2004. In summary, our point is that if we are going to have a Bill like this that aims to be transformative, it really should put all the responsibilities in one place. Just saying, “Well, this is already covered in bits of other Bills and guidance here and there”, is not the point at issue. If we think that support for families is important, and I know from other meetings with the Minister that he believes that, they should all be covered in the Bill. That is why we tabled these amendments, because we would like to see all these provisions brought together so that it is clear in the Bill exactly what people’s rights are, including the extension of support to the families of children with special educational needs. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I shall speak to my Amendment 100. Its purpose is to provide encouragement to local authorities to work together to commission services for children and young people with low-incidence needs. For very low-incidence conditions, such as sensory impairment, it may not be appropriate to expect that specialist provision is made available in every local authority area. For that reason, there should be regional support services co-funded by a number of local authorities across the geographical area. The department’s Green Paper on special educational needs and disability stated:

“We know that greater collaboration between local areas can also help local professionals to plan, commission and deliver the best services for children and young people with SEN or who are disabled and their families, as well as helping to secure best value for money … we will explore how we can encourage greater collaboration between local areas”.

The Bill creates new duties on health and education services to work together and collaborate. However, it says little about the importance of joint working across local authority boundaries, despite the obvious potential benefits to services to children with special educational needs. Children with sensory impairments have a low-incidence special educational need and disability, or LISEND. The National Sensory Impairment Partnership, NatSIP, has defined a LISEND as,

“A need which has the potential to have an adverse impact on learning and development unless additional measures are taken to support the child/young person … The prevalence rate is so low that a mainstream setting is unlikely to have sufficient knowledge and experience to meet these requirements. Settings will need to obtain specialist support and advice on how to ensure equitable access and progression (against national standards) … The prevalence rate is so low that any formula for allocating specialist resources for additional needs, which is based on proxy indicators of need, will not reflect the true distribution of children and young people identified as having low incidence SEND”.

Children with a LISEND are a diverse group in terms of their needs and the nature of the support they require. There is often a lack of expertise in those needs in local authorities and/or insufficient capacity. Indeed, although local authorities are required by Section 7 of the 2006 Department of Health deafblind guidance to identify and provide specialist assessments for deafblind children, the identification rate is only three MSI children per 100,000, but Sense figures suggest that the rate should be 31 per 100,000. These figures indicate that local authorities do not have sufficiently qualified assessors, and that deafblind children and young people are receiving generic assessments that fail to address their specific needs. Deafblind children are also not receiving adequate specialist support in many areas. The Consortium for Research into Deaf Education—CRIDE—found that 18% of services employed two or fewer teachers of the deaf, and 8% employed one or fewer teachers of the deaf. Fifteen per cent of services reported that each visiting teacher of the deaf was supporting, on average, 80 or more deaf children, and 7% had a ratio in excess of one to a hundred.

--- Later in debate ---

[Baroness Howarth of Breckland]

My Lords, I find the speeches of the noble Baroness, Lady Wilkins, a breath of fresh air. Often, sitting in these debates, I feel that I am in a time warp bubble where we have high hopes and expectations for the future. The word “hope” was used earlier by the noble Baroness, Lady Sharp, and I think I muttered to the noble Baroness, Lady Howe, “Is hope enough to achieve what we want?”. I ask the Minister to be realistic in her response. We are raising the expectations and hopes of hundreds of families. Day in and day out, I see families struggling to get services that they simply cannot access or which do not exist, and being persuaded to accept something else because what they feel they need is not available.

I welcome the Bill enormously. As I have said before, I think that at its heart is a real care for that group of families, but I am immensely concerned about what happens when it goes through. I speak also as a vice-president of the Local Government Association and work often with local authorities and their leaders. I know the struggle that they are having with government finances to make those services work. I ask the noble Baroness how we move towards achieving those services, and that level of services, while keeping a realistic picture, so that families do not expect more than they can hope for, but somehow ease the system so that, as the noble Lord, Lord Low, said, they are not engaged in a huge antagonistic battle day in and day out to move just a step forward. If only we could make some of it easier and clearer so that they knew what they could expect, that would be of huge benefit.

I am sorry if I sound slightly sour in saying all of that, but the noble Baroness, Lady Wilkins, presented us with the reality as it is, and as many of us see it on the ground, day by day. I think that I have said enough to make my point. I care about the families; I care that they do not have unrealistic hopes. I just want them to be able to get what is intended by the Bill.

[Baroness Howe of Idlicote]

My Lords, I am happy to support the amendment of my noble friend Lord Low to strengthen the accountability measures around the local offer. I hope that all the comments that have been made will strengthen the arm of the Government in making certain that they are delivered.

For far too many families the process of accessing support for their disabled child or child with special educational needs involves them navigating their way around a complex, inflexible system which is still steeped in bureaucracy. All too often parents feel that they have to be persistent and tireless if they are to get the services they need, with only articulate families or those who shout the loudest—in essence, probably, more middle-class families—being listened to. Therefore, accountability around the local offer for services, on which almost 1.4 million children will be reliant, must be as robust as possible so that families can ensure that the services they need are available in their local area.

This is something that the Education Select Committee emphasised in its pre-legislative scrutiny of the SEN reforms, stating:

“The importance of getting the Local Offer right cannot be overstated”,

and recommending that the Bill must contain improved accountability measures by which offers can be evaluated. The amendment of my noble friend Lord Low would create a situation where local authorities would have to work closely together with families, as well as with school governors, children’s centres and nurseries, with the common aim of making local support for disabled children and children with SEN the best that it can be.

In these difficult financial times, when every penny counts, ensuring that children with SEN are given timely and effective support in their local communities will certainly prevent families reaching crisis point, where they need more expensive support further down the line as a result. We should not underestimate the importance of this partnership working. Too often parents feel powerless and that their needs are not being listened to. As a consequence they are forced to fight for a statement of special educational needs or to go to a tribunal to get the right support for their child. This is, and remains an unacceptable situation. It wastes time, money, resources and can be emotionally draining for parents who already face immense challenges on a day-to-day basis. Indeed, I echo the chair of the Education Select Committee, the Member for Beverley and Holderness, who stated at the Report stage of the Bill in the other place that he hoped there would be fewer people having education, health and care plans than under statements,

“because local offers meet so many of the needs of parents and young people”.—[Official Report, Commons, 11/6/13; col. 205.]

The local offer has the potential to be truly transformative in improving the lives of families with disabled children, ensuring that services are designed by families for families. However, I am not confident that the current provisions in the Bill will guarantee this. I will listen with enthusiasm to any reassurance I can get. I further urge the Government to accept the amendment of my noble friend Lord Low, which would prioritise the needs of families and ultimately lead to better life outcomes for 1.4 million children.

[Lord Northbourne]

My Lords, I support the amendment of the noble Lord, Lord Low, and the comments that the noble Baroness, Lady Howarth, made about it, which were very wise and very important. Both those speakers have said what needs saying more ably than I can, and I am not going to repeat it. The only thing that I am going to raise with the Minister is whether this does not raise a question about the rather extraordinary wording of Clause 25(1):

“A local authority in England must exercise its functions under this Part … where it thinks that this would”...

Leaving aside the rather esoteric question of whether or not local authorities think, that enormously weakens the residual provisions in these clauses. It gives the local authority the excuse to say that it does not think that these things are absolutely necessary. I wonder whether the Minister might think about that.