Data Protection Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Macdonald of River Glaven

Monday 30th October 2017 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I have put my name to the amendment and I declare an interest as the warden of Wadham College, Oxford.

It is important to underline, as the noble Baroness has, that fundraising is now intrinsic to the financial well-being of institutions of higher education. That is certainly true of my college. It is intrinsic and critical because, along with conference business and other means of raising money, it helps to plug the gap that exists between fee levels for students and the real cost of educating them. It is clearly in the public interest that colleges and universities be placed in the strongest possible position to raise money to plug that gap.

It is equally important to bear in mind that the sort of fundraising that we are talking about does not involve random mailshots to unsuspecting victims, but regular contact over years with individuals who overwhelmingly regard themselves as members of a close community and are much more likely to complain if they are not contacted than if they are. I have experienced that many times. Requiring colleges to rebuild their alumni databases from scratch could serve no conceivable public benefit; indeed, it would lead to a significant public disbenefit, because it would weaken our ability to fundraise in already straitened financial circumstances.

I certainly agree with the noble Baroness that guidance would be insufficient in this situation. This matter is of such importance to the economic well-being of the institutions in question that it must be dealt with in the Bill. I very much look forward to hearing the Minister’s response and would wish to attend any meeting, should one be arranged.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I regret that this is beginning to sound like a chorus from Oxford, but I, too, am the head of an Oxford college—in my case, Mansfield College. I join noble Lords in expressing concern. I have also been the chancellor of Oxford Brookes University, a different kind of university, the president of SOAS and a visiting professor at Sheffield Hallam—very different institutions in higher education—and am now very involved in the further education world.

We have always looked across the Atlantic and said, “Isn’t it wonderful that people in America are so generous to their colleges and remember the places where they got their education? Isn’t that a wonderful thing to encourage here?”. That has been going on for some decades, but some colleges and universities are still new to this and have been working very hard to create databases and links with those who go through their institutions and connections with those who went in the past. To ask us now to revisit all that conscientious work and then try to secure all the consents necessary really is the law of unintended consequences. It is not what the Bill had in mind.

I remind people that concern was expressed that elderly persons, for example, were feeling belaboured by communications from charities wanting them to make those charities the beneficiaries of their wills, or whatever, which had unpleasant consequences for older people. One wanted a constraint on such cold calling and writing to people without invitation or connection. That is not the case here. Our students have created relationships inside their colleges. They know their universities and feel grateful to them for the experiences they have had. Their connections make them part of the community, so it is very different.

I hope that today we will not hear simply, “Let us go away and think about this”. I hope that the Minister will indicate that there will be an exemption in the Bill for colleges and higher education institutions—and schools—because fundraising is, in our current climate, part and parcel of our existence.

I happen to be the head of a college that does not have a wealthy alumni base. It has been very hard work creating the links that we have. We do not have a huge staffing capacity. To expect small colleges to go back in time to get the consents all the way down the line is expecting too much.

I hope that we will hear some very positive things from the Front Bench and that the Government will make an exemption in the Bill, rather than include something in regulations. This is very important to the quality of what we can offer our students, and it is not just the elite universities that face this—it is all universities, because fundraising is so much part and parcel of what we do.

Counter-Terrorism and Security Bill

Debate between Baroness Kennedy of Shaws and Lord Macdonald of River Glaven

Wednesday 4th February 2015 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

In speaking to my Amendment 14A, I again declare an interest as warden of Wadham College, Oxford. Last week in Committee I put my name to the amendment tabled by the noble Lord, Lord Pannick, the purpose of which was to remove universities entirely from the ambit of the Bill. I did so because of what seemed to me to be the self-evidently paramount importance of free speech in universities, and because the obligations that the Bill placed on universities appeared to conflict with their statutory duties under the Education Act 1986 to secure freedom of speech, not only in their institutions but for visiting speakers.

It is fair to say that in debate in Committee there was overwhelming support for the proposal that universities should be removed from the ambit of the Bill. I remain firmly of the view that the definition of “non-violent extremism”, which the Minister has recently set out again, is absolutely hopeless in its application to universities. This is because one can with the greatest of ease imagine all sorts of discussions, lectures and seminars taking place on topics which would be caught by the Government’s definition, and people in those lectures and seminars expressing intellectual views which would also fall under the definition. As far as I am concerned, it is hopeless for the Government to seek to apply such a definition to universities, which are particular places of debate, discussion and intellectual inquiry.

There was overwhelming support in debates—virtually every Peer who spoke did so in favour of the removal of universities from the scope of the Bill—yet, when winding up, those on the Opposition Front Bench made clear that they would be unable to support such a proposition, so last week I tabled a further amendment. The purpose of this Amendment 14A was to secure some reassurance that any risk that the Bill would undermine academic freedom would be mitigated, by placing in the Bill an obligation on universities to approach their duties under it in the light of their pre-existing free speech obligations under the Education Act. Like the noble and learned Lord, Lord Hope, obviously I was pleased when on Monday the Government tabled their own amendment, which in effect secures the same thing.

Like the noble Baroness, Lady Lister, I should have liked much more on this, for all the reasons which she articulated so ably. I should be delighted if the Government were minded to accede to her amendment. Nevertheless, it seems to me to be important that we secure the Government’s acknowledgment—and an acknowledgment on the face of the Bill—that these provisions apply to universities only within the critical context of their statutory freedom of expression duties. This is so that in future it cannot be argued that those duties are displaced by the passage of the Bill: they are not. The Government’s amendment seems to me to make explicit that they are not. I am grateful to the Minister for securing the Government’s movement, such as it is, on this important and fundamental issue.

[Baroness Kennedy of The Shaws (Lab)]

Today I found a piece of satire that said:

“Top universities a ‘breeding ground’ for Tories, warn Islamic groups”.

Accompanying this, there was a photograph of the Bullingdon Club from a certain era.

In my experience—and I, too, declare an interest as being the principal of Mansfield College, Oxford—universities are more or less breeding grounds for people who want to get a job. In fact, in many universities, there is not enough debate and sharing of ideas, because the real drama is around acquiring the kind of qualifications that will do well in the job market. Universities, as has been said, should and must be places for the exchange of ideas. Yet already there are concerns that, even as it stands, there are real pressures on universities around the issue of inviting speakers. For example, there was a piece in the Guardian’s online comment pages by Dr Karma Nabulsi, an academic at Oxford who speaks regularly at other universities, saying that constraints are already felt by universities—that if, for example, someone seeks to invite in a speaker on Islam, for comparative religion, some universities become very sensitive and anxious. If there is an invitation to a speaker on Islamic studies or the history of religion, anxiety is expressed and often the support of the police is encouraged and advice is sought from external sources. So the chilling effect is very worrying for the academic world.

When I chaired the British Council in that period from 1998 to 2004, we did a lot of work in eastern Europe and the former Soviet Union. One of the great things about going to universities there, when we did various projects, was how academics talked about the iconic value of academic freedom, which they associated with Britain and of which they had been deprived for so long. That is something that we should feel proud of. In this Chamber, particularly, we often go back to this business of the pride that we take in British values and wax lyrical about the importance of freedom and liberty—yet, at the same time, here we are, when it comes to the bit, going into retreat.

I support the position taken by my noble friend Lady Lister. I feel that universities should not have been included in this legislation and that voluntarism is the way forward. We should not be creating a statutory duty because adult institutions of learning are different. They are where the great debates happen—the exchange of ideas—and they are the crucible in which people formulate ideas and in which ideas can be challenged. You could create a different set of arguments as to why you exclude universities. However, given that that is not going to be the direction of travel—and I greatly regret that my Front Bench is being required to retreat from taking that principled stand—I urge on this House to consider the amendments proposed by my noble friend Lady Lister. I welcome and pay tribute to the Minister for seeking to keep pushing this issue to a better place, and I thank the Home Office for doing that, and for the efforts of those involved. However, we are still not there. We are getting a parity as between the duties, when we should be saying that academic freedom has to be prioritised; it should be the duty which has primacy, because it is so important and something that we value so greatly when we talk about “British values”.

I know that we are getting towards the closing days of this Parliament and that there is anxiety about not spilling over in our time, but I urge the Minister to go back before Third Reading and see whether we cannot have a formulation that gives primacy to academic freedom. The complaints and anxieties of the many academics as well as others in the academic world who have expressed concern are not trivial; they are being expressed for a reason. That is one reason why our institutions of higher and further education are respected around the world. We have to be the protectors of this, and I hope that we can find a formulation that is better than the one that we currently have.

Counter-Terrorism and Security Bill

Debate between Baroness Kennedy of Shaws and Lord Macdonald of River Glaven

Tuesday 20th January 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I declare an interest as a member of the Joint Committee on Human Rights.

I have a number of amendments in this group and they all relate to judicial oversight of the powers to remove passports and travel documents. They are all ways of giving weight to the right to a fair hearing, as provided by Article 6 of the European convention. Basically, they are ways of making the oversight of the power procedurally fair and it is on procedural fairness that I want to make this contribution.

The relevant parts of Schedule 1 provide for a judicial role and are modelled to some extent on the provision made for warrants for further detention in Schedule 8 to the Terrorism Act 2000. That governs the detention of a person arrested on reasonable suspicion of being a terrorist. If you make a close comparison of the two schedules, it becomes clear that the procedural safeguards that were introduced into the Terrorism Act are not present in this Bill. This makes it significantly weaker as a result.

When Schedule 8 to the Terrorism Act was procedurally strengthened it was as a result of some of the recommendations of the previous Joint Committee that I was not on. That kind of coherence should be there in legislation of this sort. At the moment Schedule 1 is not compatible with the European Convention on Human Rights; the requirements on fair hearing are certainly not. I want to outline where the weaknesses lie, which is why I have tabled my amendments.

Amendment 24 refers specifically to,

“a warrant of further retention”,

to draw that analogy with the warrant for further detention that exists in the previous terrorism legislation. I have an amendment relating to gisting too. I repeat what others have said: a person who is having this power exercised against them really should know the basis on which the documents have been taken and there is the need for an extension. It is just not good enough to say, as it does in the Bill, that we should be preventing people dragging their feet or not being diligent enough. While we want to ensure that people are acting diligently and expeditiously, there has to be more to it. There should be some requirement to consider the grounds for the retention of the documents, so I have inserted that into my Amendment 27.

This is all drawing on the report of the Joint Committee on Human Rights. With regard to Amendment 29, I urge the Committee to recognise how important it is to have oral argument in something as important as this. To have it done just in writing is not good enough. This is all fair hearing stuff. I really urge the Government to have regard to the ways in which this has been done in previous legislation.

With regard to Amendment 30, I am very concerned that while the Bill provides for a closed material proceeding at the extension hearing, there is no provision for special advocates. I am no great fan of special advocates— that process of having secret hearings—but I certainly feel that if you are going to have a closed material proceeding, you really must have protections for the person who is having their documents taken. I urge the Government to look at this again because I do not think that Strasbourg is going to think that it is compliant. Strasbourg has accepted the procedure that we have introduced here but one of the things it sees as being an important element is the role of the special advocate. There is a case waiting to come up in Strasbourg—Duffy—but I think we will find that this is going to fall foul of our obligations. Having special advocates involved is a very important element here.

Amendment 31 is really just tidying up in order to make the procedures parallel with those in Schedule 8. Amendment 32 says that if the court allows closed material proceedings, the state must provide a summary. Of course, if the state does not want to do that and there are special reasons why the intelligence agencies do not want it to be in the public domain, it is open to the state to withdraw. I think it is important that we use the model of other legislation that we have to help us get the best kind of legislation that the Government are seeking in this set of circumstances.

Those are the reasons for my amendments. I support the reduction to seven days that is being proposed by the noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Thomas of Gresford. I hope that the Government will see why it is important that we create fair proceedings around this special set of powers.

[Lord Macdonald of River Glaven]

My Lords, I support what the noble Baroness has said. There cannot be any doubt that the power to exclude British citizens from their own country is a wholly exceptional power of the sort that we have not seen before. In fact, it is warranted by the threat that emanates from the globalisation of terror and the ease with which young men in particular, but some young women as well, can pass in and out of parts of the world that are controlled by terrorists, and of course the threat that they represent to us when they return from those zones.

However, it is the exceptional, drastic nature of this power, warranted though it is, that requires that procedural fairness is absolutely guaranteed by the processes under which the power is exercised. It is because the power is so extraordinary that it is so important, in order to avoid the scenario that the noble Baroness was talking about at the outset of this debate, that we observe the highest degree of procedural fairness. To that extent, I support what she has been saying.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Kennedy of Shaws and Lord Macdonald of River Glaven

Tuesday 15th November 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, Clause 4 of the Bill indicates that the finding which will be made in relation to a TPIM is that an individual has been involved in,

“the commission, preparation or instigation of acts of terrorism”;

or in,

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”;

or in,

“conduct which gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so”;

or in,

“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in”,

such conduct.

This is a very grave finding. As I suggested earlier, it is a finding which justifies a standard of proof on the balance of probabilities rather than reasonable belief. I support the amendment for the reasons that have already been set out.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. It was always a great source of regret and sorrow to me that during Labour’s years in government we saw an erosion of the standards of proof on many different fronts. I remember getting support from the Conservative Benches and agreement that erosions of the standard of proof were taking place. Therefore, this rather strange volte-face by the coalition Government has come as a surprise to me. I want the Government to think again about this erosion of the standard of proof. As noble Lords who have already spoken have said, the consequences are serious. This House should not contemplate having anything less than the balance of probabilities.

--- Later in debate ---

[Lord Macdonald of River Glaven]

My Lords, I support the amendment for reasons already advanced. For my part, I have no desire at all to see this sort of scheme become a normal and conventional part of our legal arrangements; it is not, for all the reasons that noble Lords have repeatedly advanced this afternoon. It is an exceptional scheme, and it is important that it continues to be seen as such. The amendment lays it bare; it mandates appropriate and continuing scrutiny, engaging the regular attention of this House and providing reassurance that these measures will not continue for a moment longer than they are required or necessary. A strong part of providing that reassurance will be annual scrutiny by this House of the continued necessity for such a scheme as is undoubtedly going to pass into law.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. I am not going to take up the time of the House, because I think that the arguments are simple. It is about the exceptional nature of this shift, which requires us to keep it under scrutiny. I remember having conversations with colleagues when we were discussing control orders, and hearing repeated over and over again in this House how important it was that liberty is maintained and that requires eternal vigilance. That is why when you depart from the norms that are in our system you have to have them under review as often as yearly.

I know that the Minister speaks passionately about liberty—I have heard him do so. I remind him that that vigilance requires that we keep this constantly in front of us, and I think that once a year is not asking too much.

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

Debate between Baroness Kennedy of Shaws and Lord Macdonald of River Glaven

Tuesday 8th March 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the review of counterterrorism and security powers. Like the Joint Committee on Human Rights in its recently published report, I strongly welcome the Government’s conclusion that the current control order regime can and should be repealed, consistent with public safety. It is obviously essential that it is replaced with something that is very different in character and not simply a pale imitation. We shall have to look closely at the legislation that comes forward to ensure that that is not what the Government have in mind. The review has clearly shown that the present regime is inefficient, grants excessive power to the Government, and undermines traditional British norms and respect for the rule of law. This may not be surprising. It was introduced by accident, following a series of court judgments adverse to the last Government. It has been a bad mistake.

I also strongly welcome the Government’s renewed and strengthened commitment, expressed in their response to the review, to the absolute priority of criminal prosecution. Where people are involved in terrorism they must be detected with all the considerable power at the disposal of the state, then prosecuted and locked up. It is not just public confidence that demands this but also our traditional common-law attachment to the supremacy of due process in criminal justice and our courts. The fact is that the evidence gathered by the review has made it clear that the present control order regime acts as a fundamental impediment to prosecution. This is because the restrictions placed upon controlees forbid the very contact and activity that, under proper surveillance and investigation, lead to evidence fit for prosecution. It is also because far too many controlees are simply warehoused under the supervision of the security services, beyond the scrutiny of criminal investigation, and therefore beyond any real possibility of prosecution.

For good reasons, the instincts of the security services are protective rather than prosecutorial in nature but this practice, and the Security Service’s primacy within it, means that some serious terrorist activity remains completely unpunished by criminal law. This is a serious and continuing failure of public policy. Any new scheme introduced by the Government must not replicate this failure. To give reality to the primacy of prosecution, which is the Government’s stated aim, it should clearly become an intrinsic part of any new regime that restrictions placed upon individuals should be linked to a continuing criminal investigation. After all, if the Home Secretary, under the new regime, is to go to the High Court to assert her belief that an individual is involved in acts of terrorism so that she may obtain an order placing restrictions upon that person, it would be quite absurd for there to be no active criminal investigation into the individual in question attendant upon the Home Secretary’s application. Yet that is the position that we are in at the moment.

Of course, if there were always such an investigation in progress, court-approved restrictions mandated for the duration of that investigation, up to a maximum period of two years, would become much more constitutionally acceptable—a form of pre-charge bail. I have no doubt that such a reform would garner broad support for the Government’s new regime, including among those most bitterly critical of the current arrangements. This reform would encourage evidence gathering and therefore increase the likelihood of prosecution. It would bring the new regime much closer to criminal justice, which is an obvious good in itself with all the protections that criminal justice implies for suspects. The Government should urgently reconsider their preliminary view on this issue which, frankly, has been hostile.

Again frankly, any Security Service opposition to intense police activity around controlees should not be a trump card. The public interest is wider than the instincts of the Security Service. In fact, the trump card should always be found in locking up those people who want to wreak violence upon our communities and putting them in prison cells for long, long years. This is the true deterrent and it is also the process that truly protects the public in a way that control orders never have.

There is a separate issue. A further conclusion of the review was that relocation—the practice under which people were forced to move to other parts of the country away from home, family and friends—should be abolished, and that long curfews should go. These were among the most bitterly resented aspects of the old regime and for good reason. They were also the most offensive to our traditional norms, imposed as they were without prosecution let alone conviction, and without the controlees being told any more than the mere gist of the allegations against them. Whoever would have thought that in Britain we would have a form of internal exile without prosecution or conviction?

The Government have now agreed that these provisions are excessive, disproportionate and, unnecessary—and I would add offensive. We do not need them, as the Government have now determined. They intend to abolish relocation and long curfews under their new regime. In those circumstances, they should do so now. How can it be right for this House to be invited to extend powers that the Government themselves have conceded are wrong in principle and excessive in practice, particularly when those powers impact so vividly upon civil liberties? I invite my noble friend to consider a way to proceed that does not include renewal of these quite excessive and, as we now know, unnecessary intrusions. Those subjected to them should not have to labour under these oppressive measures any longer. There can be no conceivable public interest in obliging them to do so when the measures themselves are serving no useful purpose.

Finally, it will be critical for this House and the other place to examine with great care the legislative proposals that come forward. It is always tempting for the bad old stuff to slip back into a piece of draft legislation. We must not end up in the position of approving a system later this year or early next year which is a form, as some people have put it, of “control order light”. We need real reform in this area. If there are to be restrictions, they must be coterminous with criminal investigation. There must be no restrictions which destroy the ability of the state to obtain evidence against people who might have been involved in terrorism, which is precisely the effect of the present regime. It has failed and must stop.

[Baroness Kennedy of The Shaws]

My Lords, I will be brief. First, I suspect I am one of few people in the House who has been involved in some of these cases in the courts. I have seen them at close quarters.

Many noble Lords will also remember that I was one of those on the Labour Benches who strongly opposed the Labour Government introducing control orders. I opposed them then and ever since. I welcomed the fact that noble Lords on the other side of the House, whose faces are familiar, all went through the Lobbies with me opposing control orders. Now they are sitting in government and I want to remind them of the principled stand that they all took on control orders. It is easy, once in government, to hear poured into their ears the position taken by the security services that somehow this is the only way forward. With regard to the issue of dealing with persons suspected of links with terrorism where it would be difficult to bring them to trial, I have always advocated that surveillance, the use of intercept and so on can be done, but without interfering with liberty in the excessive way that control orders have meant. I am saddened and disappointed that the siren voices of the security services have persuaded the Government that something not very different from control orders should be the way forward. I am sure that I will be one of the people who take part in the debates when the legislation is presented to this House, and I will rigorously test some of the suggestions that have been made.

I strongly support what has been said by the noble and learned Lord, Lord Lloyd, and indeed the noble Lord, Lord Macdonald: given the principled position that the Government are going to do away with control orders, and even if the position is that something else will come in of a lesser order but somewhat similar, it is quite wrong at this moment to keep the thing that they have criticised for so long with regard to the eight people currently subject to the level of suspicion that we have heard about. It cannot be right to continue that until the end of this year. At the very least, the Government should be reducing the constraints upon liberty to the standard that they are intending to introduce, and then that can be revisited in December. However, it cannot be right for them to continue with control orders when they so bitterly opposed their existence once they had been introduced by new Labour in government. I ask that, in the spirit not just of decency but of appropriateness, the cases that we have spoken about and the noble and learned Lord, Lord Lloyd, mentioned be revisited.

I reiterate what my noble friend Lord Judd has said: one of the jewels in our crown, one of the great limbs of our democracy, is the way in which we interpret the rule of law. I am a proud champion of the common law. We have always believed that due process was vital before we in any way encroached upon the liberty of human beings. That is a proud tradition here and it is a sort of ceding to the terrorists if you abandon those values, which are so precious in our society. I strongly urge that we do not go down the road of introducing something similar, because it is a poison in the system. It is a way of saying that it was not just a temporary measure; somehow we have bought into this idea, and an alternative to the things that we have always believed in can now be introduced. I urge that we think again about that.

I was interested to hear that the noble Lord, Lord Macdonald, said that there are alternatives, and I hope that in the months to come the Government will look again at what they are intending to do.