Yarl’s Wood

Baroness Lister of Burtersett Excerpts

Tuesday 24th February 2015 Lords Chamber

[Lord Bates]

This is subject to a very careful screening process, and the decision to send someone to Yarl’s Wood is not taken lightly. There are medical reviews by a GP and reports are provided to the caseworkers before any decision is made. The point is that these are people who have overstayed their stay, their asylum immigration applications have been denied and, therefore, they are about to be deported imminently. That is the reason they are there. However, that does not mean that they should be treated with anything less than the highest standards of dignity and respect.

[Baroness Lister of Burtersett (Lab)]

My Lords, the review that has been announced is very welcome, as is what the Minister has said, but the terms of reference of the review do not explicitly include women generally; they refer just to pregnant women. The Minister himself has said that all the women about whom we have heard evidence from the noble Baroness, Lady Bakewell, are vulnerable. Will he now confirm that the review will look explicitly at the treatment of women, many of whom have fled gender-related violence in their home countries?

[Lord Bates]

I would have thought that the noble Baroness might welcome the fact that the Shaw review will range much wider. Of the 30,000 people who are held in detention, around 80% are male, and it is important that their needs are reviewed as well. However, I am sure that the noble Baroness’s observation will be fed back to the review.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Monday 9th February 2015 Lords Chamber

[Lord Bates]

This is the third and final group of amendments. In coming to the end of Third Reading, it is appropriate that I conclude my remarks on the subject of academic freedom.

On Report, your Lordships’ House agreed a government amendment to require further and higher education institutions, when carrying out the Prevent duty, to have particular regard to the duty to secure freedom of speech contained in the Education (No. 2) Act 1986. This will require higher and further education institutions, when considering all the factors they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech.

A number of noble Lords, in particular the noble Baroness, Lady Lister of Burtersett, argued that we should add to that provision so that particular regard must also be given to the principle of academic freedom. As I set out at the time, the Government do not believe that such a reference is strictly necessary: the description of academic freedom in Section 202 of the Education Reform Act 1988 is essentially a subset of freedom of speech as set out in Section 43 of the Education (No. 2) Act 1986.

However, your Lordships made the case that the principle of academic freedom itself should be explicitly referenced in the Bill. I committed to give this matter further consideration in order to provide reassurance. Therefore, I have tabled Amendments 5 and 6 to include “academic freedom” in Clause 31. This should provide unequivocal reassurance that the Prevent duty is not designed to undermine the principle of academic freedom. The Government have also tabled Amendment 4 to provide greater clarity as to which institutions the clause applies to. The new reference to Schedule 6 to the Education Reform Act 1988 makes it clear which higher education institutions are required to pay particular regard to freedom of speech and academic freedom when carrying out the Prevent duty. I trust that this provides greater clarity for your Lordships.

As this may be, without tempting fate, the last point I make formally on this matter—I am aware that the noble Baroness, Lady Lister, may wish to respond—I would like to place on record my deep thanks to your Lordships’ House for the consideration that they have given this very important Bill. We have spent seven days in Committee and we have had thirty-eight and a half hours of scrutiny. The Bill has been scrutinised not only by the excellent contribution of the current members of the Joint Committee on Human Rights, but by former council leaders, senior lawyers, former Law Lords, former judges, IT gurus, a former chief prosecutor, former diplomats, Cabinet Ministers, former Home Office Ministers, university vice-chancellors, academics, college heads, three former Cabinet Secretaries, two former directors of the security services and two former chiefs of the Metropolitan Police. That level of scrutiny has been reflected in some 237 amendments, which have been considered by your Lordships. People can therefore have some confidence that this important piece of legislation will leave your Lordships’ House in better shape than when it arrived.

I thank in particular Her Majesty’s Opposition—the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser—and also my noble friend Lady Hamwee and the noble Lord, Lord Paddick, for their contributions, their scrutiny and their liaison which has been ongoing throughout the course of our proceedings on the Bill.

It is appropriate that we conclude our discussions on this key issue, which is all to do with freedom of speech and academic freedom. It reminds us that while the purport of this piece of legislation is very much to keep us safe, we are ever mindful that we need to protect the very freedoms which the people who would seek to attack us want to take away. We cannot do their work for them and therefore we have refined and sharpened the Bill to make sure that it is suitable for that purpose.

As well as thanking all the Members who have taken part in your Lordships’ House, on a personal note I pay particular thanks to my noble friend Lord Ashton of Hyde for his assistance during the process, and also to the Bill team. I am sure that everyone—my noble friend Lord Ashton of Hyde, the Bill team, and all your Lordships—would want particular thanks to go to those members of the security services, the police force, and the Border Force, who give of their time and safety every day to keep us safe from these particular crimes. All they ask in return is our support and the tools to do the job. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I very much welcome Amendments 5 and 6, which write into the Bill the duty to,

“have particular regard to the importance of academic freedom”,

as defined in the 1988 Act, alongside the duty on freedom of speech, which was conceded on Report. I am really very grateful to the Minister. As a member of the Joint Committee on Human Rights, I thank him for listening and taking action so late in the day. I am sure he groaned inwardly when I burst into his office last week. No doubt he thought that everything had been sewn up. I am therefore particularly grateful that he was prepared to take action and go the last mile so late in the day.

I also thank the Bill team and the lawyers for executing the decision so neatly. I am sure that they also groaned—perhaps not quite so inwardly. I also welcome the Minister’s latest letter to noble Lords, in which he made clear that:

“‘Particular regard’ is stronger than ‘due regard’ because it elevates the consideration to the top of the list of factors to be weighed up i.e. freedom of speech is the most important other duty, rather than simply another one to be considered, such as health and safety”.

It might be helpful if he could confirm that, so that it is on the record.

I have one final question: what is the timetable is for finalising the guidelines and bringing regulations before both Houses?

[Lord Phillips of Sudbury (LD)]

For the sake of absolute clarity— because there has been a great deal of confusion about these aspects of the Bill—can my noble friend say whether it is correct that his Amendments 4, 5 and 6 make no difference whatever to the purport of the Bill, are merely clarifying and have no substance?

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 4th February 2015 Lords Chamber

I think I have said all I need to say in support of my amendment, which was drafted with very particular concern about the position in Scotland. Without developing the point any further at the moment, I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 14, to which I have added my name. I am grateful to the noble and learned Lord, Lord Hope, for combining his original amendment with the amendment by the Joint Committee on Human Rights. Once again, I declare an interest as emeritus professor at Loughborough University.

In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving “from co-operation to co-option”, as the noble Baroness, Lady Sharp, put it. Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it.

Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector. However, I am a realist, and, given the Minister’s welcome commitment to reflect and bring forward an amendment, which he has done, in a spirit of compromise, I have not retabled the JCHR amendment designed to exclude HE institutions from the duty altogether, or to provide a narrower exemption for their academic functions.

We all agree on the value of academic freedom and freedom of speech. As yesterday’s letter to the Guardian, signed by 524 professors—I can tell the House that trying to organise 524 professors is like herding cats, so to get them all to sign was quite an achievement—put it:

“One of the purposes of post-compulsory education is to foster critical thinking in staff, students and society more widely. Our universities and colleges are centres for debate and open discussion, where received wisdom can be challenged and controversial ideas put forward in the spirit of academic endeavour”.

Since last week’s debate, I have received a copy of a legal opinion provided for the University and College Union—my former union—by Robert Moretto QC, who has advised government departments, including the Home Office, in the past. I pay tribute to UCU for showing leadership on this matter. The opinion states:

“It is difficult in my view to square the Prevent duty with academic freedom enshrined in, for example, the Education (No. 2) Act 1986”,

and that,

“the Prevent duty as set out in the Draft Guidance appears to envisage that decisions may be taken”,

which prevent lawful speech.

The opinion also raises questions about possible incompatibility with the Human Rights Act in particular situations. This opinion lends weight to the JCHR’s concerns that the legal uncertainty created by the new duty in relation to existing duties concerning academic freedom and freedom of speech will have a seriously inhibiting effect on bona fide academic debate.

This takes us to the nub of what we have to decide today. While I very much welcome the fact that the Minister has tabled an amendment which makes explicit reference to the freedom of speech duty in the Education (No. 2) Act, it does not provide the clarity that HE institutions need. Here I am afraid that I part company with the noble and learned Lord, Lord Hope. An obligation to have regard is a familiar device of the legislative drafter when faced with duties which might conflict in practice. We see it in Sections 12 and 13 of the Human Rights Act, for example. The problem is that it still means that the Bill says nothing about the hierarchy of duties, and it leaves it to other things to influence decisions where the duties come into conflict. In effect, this means the Home Secretary’s guidance.

I note that the amendment in the names of the noble Lords, Lord Macdonald and Lord Pannick, refers to “due regard”, as does the new Prevent duty in Clause 25(1). There was an exchange a moment ago about “particular regard” and “due regard”, and I have to admit that I did not understand the Minister’s explanation of where he saw the difference. I am not quite sure why the Government have chosen “particular regard” in this instance as opposed to “due regard”. I think that the Minister said that he regards “particular regard” as stronger than “due regard”. It would be helpful if he could confirm that later, because my understanding is that “due regard” carries greater legal clarity because of the case law interpreting the same phrase in the public sector equality duty. If he can confirm that by using “particular regard” he wants it to be stronger than “due regard”, I would be happy with that.

Amendment 14 provides the necessary clarity by making it explicit that the new Prevent duty is subject to the existing freedom of speech duty. In Committee, the Minister said there are good reasons why the freedom of speech duty should not be elevated above the Prevent duty, principally that freedom of speech is not open-ended or absolute. Of course the existing freedom of speech duty is subservient to the laws the Minister listed in Committee, including criminal law on the use of threatening words or inviting support for a proscribed terrorist organisation, and the civil law on defamation. In other words, there is already a duty to secure freedom of speech within the law.

This amendment would not change that, but it would make it clear that the Prevent duty could not be used to prevent lawful speech, and the importance of protecting lawful speech is underlined by Universities UK in its response to the draft guidance. I cannot see why the Government should resist that if they genuinely believe in protecting freedom of speech and academic freedom in our universities. Universities are looking for clarity and an explicit statement in law that in the context of higher education, freedom of speech and academic freedom within the law carry greater weight then the Prevent duty. The amendment has the support of Universities UK, UCU and million+.

We have an important decision to make today. Universities and other institutions are looking to us to provide them with the clarity they need to operate the new Prevent duty in a way that does not have a chilling effect on academic freedom. When he has heard the debate, and in light of the strength of feeling expressed in Committee, I hope that the Minister might be prevailed upon to reflect further before Third Reading, even though I accept that he has already moved some way from the original position of the Government—and once more I thank him for that.

[Baroness O'Loan (CB)]

My Lords, I speak to Amendment 14 in the name of the noble and learned Lord, Lord Hope of Craighead. I have put my name to this amendment, which is designed to give absolute clarity to the continued protection under the law of freedom of speech in our universities, something which the Joint Committee on Human Rights strongly recommended in its legislative scrutiny report. This amendment is very simple. The noble Baroness, Lady Lister, has spoken clearly on its effect. It locates the statutory duty to protect freedom of speech squarely in Clause 25. It gives clarity to the fact that the new statutory Prevent duty, subject to the existing obligations of universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure freedom of speech within the law, is secured for members, students and employees of the establishment and for visiting speakers.

I thank the Minister for his movement and recognition of some of what was said in Committee. However, throughout his amendment he adverts to the duty in relation to freedom of speech in universities which is imposed by Section 43(1) of the Education (No. 2) Act 1986, in terms both of the relationship between the new duty and the duties imposed under that Act on the universities, and of making the Secretary of State have “particular regard” to that duty in any guidance or directions issued. The difficulty I have is that surely universities must not only have particular regard but also comply with their obligations under Section 43. Therefore if they are trying to have due regard to a duty to prevent people being drawn into terrorism at the same time as having particular regard to something which they must do anyway, there is a conflict for them in the hierarchy, to which the noble Baroness, Lady Lister, referred.

With respect, the amendment tabled by the Minister, Amendment 15D, is not as clear or effective as Amendment 14. I urge him to think very carefully about its limitations, and to accept the very real concerns articulated by so many leading academics and university vice-chancellors and chancellors that this Bill will seriously affect freedom of speech in the country. It will also affect our international reputation as the guardians of freedom of speech. The Prevent duty, as articulated in this context, would be a very blunt instrument. It will not prevent terrorists from using our universities as breeding and grooming grounds. That is best done by using more sophisticated means to identify and infiltrate groups who seek to recruit to terrorism through coffee shops, bars and things like that. We have a real battle to fight, but we must be cautious in the processes that we use so as to secure maximum impact in the fight, not to generate further unnecessary problems.

--- Later in debate ---

[Lord Bates]

I certainly take the noble Lord’s point but perhaps I may address some of the key points in the amendments that have been put forward.

I just want to put this in some kind of context. I admit to having had a bit of fun at Universities UK’s expense, but I think that quite a few noble Lords have had a bit of fun at the expense of the consultation document. Given that my noble friend Lord Deben has exhorted us to be in favour of all debate, one should not necessarily try to close off one part of it. However, I accept that perhaps I have pushed far enough, and the noble Lord, Lord Hannay, has got me on track. I shall address some of the particular points that have arisen.

I shall turn to the amendments themselves, but I think it would be helpful to address first the general principle that many noble Lords have spoken about, today and in Committee: the inclusion of universities and further education institutions within the scope of the Prevent duty in Clause 25. In Committee I outlined specific case studies, as did the noble Baroness, Lady Deech, of students and graduates who had gone on to commit terrorist atrocities. For the avoidance of doubt, in all the case studies I mentioned, including the 2010 Stockholm attack and the 2009 Detroit aircraft attack, the perpetrators had studied in UK institutions.

Young people accounted for around 31% of terrorist-related convictions between 2001 and June 2014. Within that date, the figure for at least two years is even higher, at 35%. The Prevent duty is designed to apply to sectors that can most effectively protect vulnerable people from radicalisation and from being drawn into terrorism.

In answer to the noble Lord, Lord Phillips, and the noble Baroness, Lady Lister, who have previously asked for evidence—I went back and said, “What evidence do we have from the regional co-ordinators at BIS that there is a level of non-compliance?”, and I have already referred to part of it—in the year up to 25 January 2015, at least 62 events were held on campuses that featured an extremist speaker or speakers. We know of another eight events that were publicised but later cancelled. Speakers at these events have, for example, called for apostates of Islam to be beheaded and have stated that a man who beats his wife should not be questioned as it is solely a matter between them.

I do not mention all this to suggest that these speakers should necessarily be banned—that is not what our guidance says is required under the Clause 25 duty—but to demonstrate the point that extremist views are propagated on campuses, that students are at risk of being drawn into terrorism and that a disproportionately high number of young people go on to become involved in it.

Since we last debated these issues, the consultation on the draft guidance has finished. Officials are still working through the responses, but an early indication shows that 42 higher education institutions emailed a response to the Home Office and, out of those, only eight stated that universities should not be subject to the duty. Furthermore, Universities UK—I qualify, of course, praying that organisation in aid of my position—which represents 133 vice-chancellors and principals, has not called for universities to be excluded from the Prevent duty. It reiterated its support for the duty when it met my honourable friend the Minister for Immigration and Security and my right honourable friend the Minister for Universities and Science earlier this week.

All this is not to say that universities have not raised issues with the current draft guidance. Almost all of them have done so, in a constructive fashion, and we thank them for their responses. That is the point of this form of public consultation and we will be making a number of changes to the guidance before it is published in its final form. I have already mentioned in Committee two changes that we propose to make: amending the reference to all speakers having to give prior sight of presentations; and making clear that not all staff need to receive Prevent training. We will be working through other changes and of course, as has been said, all that guidance, which will be issued to chancellors, will now be the subject, in a later group of amendments, of an affirmative resolution in both Houses of Parliament.

I now turn to the issue of freedom of speech, which has been heavily focused upon. It was mentioned that placing the duty on universities could have a chilling effect on freedom of speech and academic freedom, which would be contrary to the core function of our universities—a function which, as I have already said, makes universities one of our most important arenas for challenging extremist views and ideologies. As my noble friends Lord Deben and Lady Warsi said, I drew your Lordships’ attention in Committee to existing guidance referring to how speakers are treated. That is why I have tabled Amendment 15D.

This amendment would require further and higher education institutions, when carrying out the Prevent duty, to have particular regard to the duty to secure freedom of speech contained in the Education (No. 2) Act 1986. This will require higher and further education institutions, when considering all the factors that they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech. I am sorry that I caused my noble friend Lady Hamwee so much confusion earlier with the difference between having due regard and having particular regard. The reason we put that in is that we want to have a higher test to differentiate between having due regard to the guidance and having particular regard to freedom of speech under the 1986 Act. That was not accidental; it was absolutely intentional and, had I been a little sharper, I might have mentioned that to noble Lords earlier.

The noble Lords, Lord Pannick and Lord Macdonald, have tabled an amendment along similar lines, Amendment 14A, although we would argue that the Government’s amendment goes further. The noble and learned Lord, Lord Hope, has tabled Amendments 14 and 15 with a view to ensuring that, to the extent that Scottish higher and further education institutions are subject to the Prevent duty, their compliance with that duty is also subject to their need to ensure freedom of speech. This is quite clearly a logical approach, given that those bodies are not covered by the duty in the 1986 Act, and we are not in disagreement with the general principle of the noble and learned Lord’s amendments.

Given, however, that no Scottish bodies are currently listed in Schedule 6, these amendments are unnecessary. If and when Scottish institutions are added to Schedule 6 by order, the Government can use the power in Clause 26(3) to make consequential amendments to this chapter. We would at that point seek to ensure that Scottish institutions had the same requirement as those in England and Wales to pay particular regard to the need to secure freedom of speech, as contemplated by Article 10 of the European Convention on Human Rights. I hope that that goes some way to reassure the noble and learned Lord on this point.

My noble friend Lady Hamwee spoke to her Amendment 14C, which would require that guidance to the education sector must recognise the duties of that sector to secure freedom of speech, to promote tolerance and respect for democracy and to offer a broad and balanced curriculum. The guidance already makes these points in the relevant sections. I refer my noble friend to paragraph 105 of the draft guidance in particular. There were a number of points, but I am conscious of the time I have taken to respond.

[Baroness Lister of Burtersett]

The Minister, in talking about Amendment 14, seemed to imply that it related only to Scotland. He said that he agreed with this amendment, but Amendment 14 incorporates an amendment from the Joint Committee on Human Rights which makes very clear that the Prevent duty should be subject to the duty in Section 43(1) of the Education (No. 2) Act 1986. Is he now saying that he agrees with that?

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, on behalf of the Joint Committee on Human Rights I would like to say how much I welcome the government amendment. It is nice to be able to welcome Government amendments unequivocally on this occasion. The Government have accepted just the one recommendation in our report, and we are very pleased that they have.

[Baroness Brinton (LD)]

My Lords, my name is on Amendment 14F and I also want to thank the Minister for his Amendment 14E. As I said in Committee, after going to war, curtailment of freedom is one of the most important things that a Government must consider doing. Given the seriousness of that, it seemed extraordinary that there was no scrutiny by Parliament, so I am grateful for that. On a slightly lighter note, and not strictly to do with this amendment, the fact that 33% of terrorists have been to university was repeated this evening. I wonder whether we need much more draconian measures for schools, given that 100% of terrorists will have attended school.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

15A: Clause 28, page 19, line 15, at end insert—
“( ) When issuing guidance under this section in relation to universities and other higher education institutions, the Secretary of State shall have due regard to the principle of academic freedom and to the matters specified in section 202(2) of the Education Reform Act 1988 (the university commissioners).”

[Baroness Lister of Burtersett]

My Lords, in moving Amendment 15A, I shall speak also to Amendment 15C in my name and that of other members of the Joint Committee on Human Rights, two of whom apologised that they had to leave. Amendments 15A and 15C together would require the Secretary of State to have due regard to the principle of academic freedom, as already recognised by Parliament in Section 202(2) of the Education Reform Act 1988, when issuing guidance or directions under this section. It was quoted earlier, but I remind noble Lords that it includes a duty,

“to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

I believe that it was inserted by your Lordships' House and it would be appropriate if we were to do the same now.

I would argue that Amendments 15A and 15C are perfectly compatible with the Government’s own Amendment 15D. They would simply add to it by making explicit reference to the important duty to uphold academic freedom in the 1988 Act, which is currently missing. This is a duty that is very important to academics, as it puts flesh and bones in the context of higher education on to the more abstract duty of freedom of speech contained in the 1986 Act and referred to in the Government’s own amendment.

I think that we have all been guilty at times of conflating the two principles of freedom of speech and academic freedom. If I may say so, the Minister does so in his letter of 3 February to me and other noble Lords—and here I thank him for finding a few minutes yesterday to discuss the amendments with me. The letter refers to the impact that the Prevent duty might have on academic freedom of speech. Although the two principles overlap, there is also a clear distinction, which it is important to understand because it is at the heart of why the amendments matter. Here, I have to part company with the noble Lord, Lord Pannick, who is not in his place, when he suggested that one necessarily implies the other.

While I have always counselled my students against relying on Wikipedia, on the principle of “do as I say” rather than “do as I do”, I turn to it now because it provides a helpful working definition of academic freedom. It says that it is,

“the belief that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts (including those that are inconvenient to external political groups or to authorities)”.

It spells out:

“Academic freedom and free speech rights are not coextensive … Academic freedom involves more than speech rights; for example, it includes the right to determine what is taught in the classroom”.

In Committee, I illustrated my worries by citing a discussion of the Charlie Hebdo attack that colleagues instigated, open to all staff and students in my school at Loughborough University. What was at issue here was not so much the freedom of speech of staff and students as the academic freedom to feel safe to instigate such a discussion that might be interpreted as potentially drawing some students towards ideas that conceivably might lead them towards violent terrorism. If the duty to uphold academic freedom as well as freedom of speech was written into the Bill itself, it would, I hope, give some assurance to both lecturers and students that it is still safe to have such controversial discussions. If it is not written in, I fear a chilling effect on both—lecturers playing safe and not instigating debate on such controversial topics related to terrorism, or something like it, because of feeling pressure from university management not to take risks of this kind, and/or students feeling afraid to engage honestly and openly. This would then have the counterproductive effect, which was discussed quite a lot in Committee, of pushing extremist views underground rather than allowing staff and students to discuss them critically. Indeed, a Hansard Society student on placement with me put it very well. He said, “You prevent the peers of the extremists from engaging with them and you cripple their ability to persuade them to abandon extremist views”. Earlier, that point was made very eloquently by the noble Baroness, Lady Warsi, and the noble Lord, Lord Wilson of Dinton, who are not in their places.

I will also illustrate the point with reference to the draft guidance. Paragraph 57, for example, makes it clear that the Home Office expects universities to carry out a risk assessment of where and how their students might be at risk of being drawn into not just violent extremism but non-violent extremism, which, as Universities UK has consistently pointed out, is not generally unlawful. The noble Lord, Lord Macdonald, earlier referred to this bit of the guidance as hopeless. It is easy to see how in a university with risk-averse management—which is probably true of much of university management these days—this could translate into pressure on individual academics not to offer certain courses or lectures or to pursue certain research grant applications, or to discourage certain topics of inquiry by doctoral students.

The Government’s free speech amendment is helpful in relation to the draft guidance in so far as it refers to visiting speakers and events but it does not address the academic freedom issues that are the stuff of everyday academic life as lived and breathed by academics and students. Robert Moretto’s legal advice, to which I referred in our earlier debate, suggests that, as currently drafted, the guidance “seeks to avoid” the kinds of issues raised by the tension between the Prevent duty and existing freedom of speech and academic freedom duties of such concern to noble Lords. It therefore gives the individual academic little clarity. The Government’s amendment goes some way towards providing that clarity but I suggest that if the Minister could go away and come back at Third Reading with something that incorporated these amendments too, it would do the job even better.

Because of the tight timescale with fast-tracking, it has not been possible to have the kind of more in-depth informal discussion that would have been normal between the stages of the Bill. My noble friend Lady Smith of Basildon has already referred to the problems that this has created. I think that the problems have been as much for the Minister and his team as for anyone else. It would be such a shame if, for this practical reason, we lost the opportunity to strengthen the Bill in a way that I believe is totally compatible with the Government’s aims.

If the Minister felt able to go a bit further—again, I appreciate how far he has already moved on this part of the Bill—it would give some reassurance to the academic community who are so anxious about this Bill and who I fear will have been very disappointed at the outcome of the debate on the second group of amendments. I beseech the Minister to be as flexible as possible, but if it really is impossible will he at least commit to ensuring that the guidance states that due regard must be had to the principle of academic freedom as recognised in the Education Reform Act 1988, although this does not address the question of directives, as these amendments do. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I support the noble Baroness, Lady Lister, on Amendments 15A and 15C, to which I have added my name. I thank the Minister for listening and for giving effect through his new amendments to at least part of the arguments which we raised on freedom of speech in the context of the Prevent duty in Part 5. But as the noble Baroness, Lady Lister, has said, there remains the issue of academic freedom, which was discussed in the debate on the earlier group.

Academic freedom was given statutory protection under Section 202 of the Education Reform Act. It imposes a duty on university commissioners to,

“have regard to the need … to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.

This protection is vitally important to academics. There can be no doubt that policies, opinions and even moral values change, and with those changes come the need to challenge existing wisdom and to seek new ways and new processes within the law.

We see that particularly in university teaching and research, where the good academic enthuses his or her students through proper exposure to their research, often in ground-breaking areas where the conventional wisdoms no longer provide the necessary answers. Academics need the freedom to bring into their lecture theatres voices and ideas which may even offend received wisdom and the necessary challenge can then take place. Above all, they need to be sure that in pushing the boundaries for the common good they do not place in peril their livelihoods and their careers.

These amendments are of the utmost importance. Some 540 of the UK’s most senior academics signed a letter in Tuesday’s Guardian warning that the Bill would place an unlawful and unenforceable duty on universities. They call for the Government to take steps to ensure that academic freedom remains uncompromised by efforts to tackle extremism in the UK. I hope that the Minister will accept that Amendments 15A and 15C would enhance the proposed arrangements in respect of the Secretary of State’s guidance and directions to universities in the context of the Prevent duty and would protect academic freedom while not hindering the very proper fight against terrorism.

The amendments would give assurance to academics, young and old, in the work they must do, which can be both brave and challenging, and I would like noble Lords to look at some of that work. It is not easy to challenge what may be received wisdom in communities which have been radicalised, but equally it is not easy to challenge received wisdom in communities where there is an illusion but not the reality of democracy. I am sure noble Lords know where I am going: I am going to Northern Ireland.

In the late 1960s, 1970s and 1980s, the Northern Ireland civil rights movement, and ultimately the universities, played a profoundly important role in challenging the status quo in Northern Ireland using non-violent methods. I wish to refer noble Lords to a description of non-violent methods for this purpose. It states that,

“non-violent extremism … can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.

For decades there were those in the universities and colleges who said that Bloody Sunday was a tragedy and an outrage and that the Government of the United Kingdom, in the publication of the report on the atrocities of Bloody Sunday, had done a terribly wrong thing. That was, if you like, a challenge to democracy as it stood at the time, and those academics were sometimes in a difficult place. There is no doubt that the articulation of the fact that the Bloody Sunday shootings were unlawful may well have been used as a justification for violence by those who subsequently went to violence and extremism of the most violent kind, but that does not mean that the efforts by academics to bring these matters to the attention of society and to have the truth told should have been condemned and prevented because they might have drawn people into terrorism. There is something more fundamental at stake here.

Noble Lords also know of the allegations of wrongdoing on Iraq and our entry into the war in Iraq. You could argue that the identification of what happened that led us into the Iraq conflict and brought us out of it, leaving a serious state of disarray and a huge tragedy behind it, was wrong—we await the report of the Chilcot inquiry—but you could also argue that the challenge of going into the war in Iraq, which many noble Lords opposed, and what happened in Iraq was a justified challenge, and yet it may well have given rise to a justification for extremism even in this country.

The essence of freedom of speech and freedom of expression and academic freedom is that the truth will be protected and cherished, and that people will have the right to say things which even Governments find very difficult to take and which ultimately may be proved to be true.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I thank all noble Lords who spoke in support of Amendments 15A and 15C, in particular the noble Baroness, Lady O’Loan. Her experience in Northern Ireland is very relevant to our discussions and throws real light on what is at issue here. I am also grateful to my noble friend Lady Smith, although I do not think that anyone is saying that this would necessarily cause that effect. This is the whole concept of the chilling effect: it is about perception and what people fear. I will not go into the phenomenology and so forth, but perceptions become reality because that is how people think. The chilling effect is very real.

I am most grateful to the Minister. I could not, because of the breakneck speed at which we must go through this, really ask for more than that he is prepared to go away and reflect. I accept that it is not binding. However, I trust that he will look very seriously to see what might be possible to come back with at Third Reading. I am very grateful to him. On that basis, I beg leave to withdraw the amendment.

Amendment 15A withdrawn.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 28th January 2015 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

104: Clause 21, page 14, line 7, at end insert—
“(f) an academic function of a university or other further and higher education institution”

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, in moving this amendment I will speak also to Amendments 105, 107, 109 and 115 on behalf of the Joint Committee on Human Rights, of which I am a member. The amendments give effect to the recommendations made in our pre-legislative scrutiny report. Amendments 107 and 109 would exclude higher education institutions from the new statutory duty to,

“have due regard to the need to prevent people from being drawn into terrorism”,

although I suspect that the amendments in the name of the noble Lord, Lord Pannick, would do so rather better. Amendment 104 excludes,

“an academic function of a university or other further and higher education institution”,

from that duty. Amendment 105 makes it clear that the Prevent duty is subject to the duty contained in the Education (No. 2) Act 1986 to uphold freedom of speech, covering staff, students and visiting speakers. Amendment 115 requires that when issuing guidance and giving directions, the Secretary of State should have regard to the principle of academic freedom as contained in the Education Reform Act 1988, which includes a duty,

“to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

These amendments may be technically deficient, but as they are for now probing amendments, I trust that the Minister will bear with me.

Recommendations stem from the JCHR’s conclusion that,

“because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new ‘prevent’ duty is not appropriate for application to universities”,

and from our observation that its relationship to universities’ existing duties with regard to freedom of speech is not clear. I have some sympathy with concerns about other parts of the educational sector, but following the JCHR report I will confine my remarks to HE institutions and will focus in particular on the question of academic freedom, therefore inevitably touching on some of the points already made. In doing so I declare my interest as an emeritus professor at Loughborough University.

Ministers have emphasised their commitment to academic freedom of freedom of speech, which I welcome. In a letter of 20 January to the JCHR, the Minister, James Brokenshire, pointed out that this freedom comes with a duty to ensure that it is within the law. Exactly. Given that, it is not clear why the Prevent duty has to be put on a statutory footing—moving from co-operation to co-option, as the noble Baroness, Lady Sharp, so pithily put it. Universities are already required to operate within any law that circumscribes freedom of speech. At last week’s packed meeting, addressed by the Minister and Mr Brokenshire—I thank the Minister for arranging that—we did not receive a convincing explanation. I suspect that the purpose of the meeting was to reassure noble Lords; my impression was that it had the opposite effect.

Since then, the JCHR has received the Minister’s letter, in which he set out why the Government believe that the application of the duty to universities is a matter of enormous importance. He cited the proportion of people convicted of al-Qaeda-associated terrorist offences who had attended an HE institution—the implication, presumably, being that their HE experience helped to lead them there. He acknowledged that some students arrived already radicalised or are radicalised by external influences, while suggesting that others can become influenced by non-violent extremism at university but later move on to violence. That seems to reflect the kind of linear, conveyor-belt theory of the journey to terrorism, which is challenged by many experts in the area and which was questioned earlier by the noble Baroness, Lady Warsi.

There are two main areas of concern, which have sometimes been conflated: visiting speakers policies, and the free exchange of ideas that lies at the heart of the relationship between lecturers and students. With regard to visiting speakers, it is unclear how the new duties sit alongside the duty in the 1986 Act not to use beliefs or views as grounds to refuse access to premises. We shall look later at the draft guidance, so I will not go into that now, apart from coming back, in a moment, to the question of definitions.

--- Later in debate ---

[Lord Bates]

Normally I go beyond what I am instructed to say by my patient Bill team who work behind me, but on this occasion, I think that I am probably behind them in that the letter says in terms that we have heard enough already to reach a judgment on the practicalities of the provision in paragraph 66 and that we will rework that, notwithstanding the answer which I accept that I gave to the noble Lord, Lord Hannay, earlier, that we would reflect on the issue and did not want to prejudge the consultation. I suppose that we have prejudged the consultation in that particular regard because we do not want what we consider is the important issue of keeping the universities within the broader statutory provision to be, as it were, misunderstood or challenged on relatively small procedural matters which could cause alarm and are many miles away from where the principal focus of our efforts should be.

[Baroness Lister of Burtersett]

My Lords, I thank the Minister for his characteristically good-natured and considered response, which I shall discuss in a moment. I thank all noble Lords who put their names to my amendments and the many noble Lords from across the House who supported them. I cannot remember many debates in your Lordships’ House where not one noble Lord has spoken in support of the Minister, although many have rightly emphasised how much they support what the Government are trying to achieve in terms of preventing terrorism. We have had perspectives from Northern Ireland, Wales and Scotland. I thank the noble and learned Lord, Lord Hope, for pointing out the deficiencies of Amendment 105 and how we can put that right. We have heard important arguments of principle that go to the heart of what a university is about and have pointed out how we could undermine the very values that we are trying to protect. As I said at Second Reading, I call these values of democratic citizenship. There is nothing uniquely British about them, but they are values that we probably share. We have also heard important arguments regarding practice, where noble Lords have pointed out that there seems to be a lack of understanding of how universities work, and that the practical implementation of the measure would be counterproductive, not least in pushing underground some of the debates with which we need to engage.

Before I discuss the Minister’s very helpful finale, so to speak, I wish to make a couple of points. He pointed out that Universities UK had itself issued guidance which is rather similar to the guidance that everybody has decried as being much too prescriptive. However, the fact that no one, not even Universities UK, seemed to know that it had included the relevant measure suggests that probably most universities simply ignore that bit of it because it is so obviously fatuous. However, the big difference is that if a university fails to comply with that guidance, the Home Secretary will not issue a directive against it and it will not find itself in court. There is a huge difference between the advisory guidance that Universities UK issues and statutory guidance related to the Bill.

A number of noble Lords asked about the lack of evidence on how many universities are failing to comply in this regard. The Minister said that he accepted that the evidence has not been marshalled but that there are institutions that do not comply. Noble Lords who are academics would not accept that as evidence. Evidence has to be marshalled for it to constitute genuine evidence; otherwise, it is anecdote.

I very much appreciate the Minister saying that he will go away and reflect on the debate, but am slightly worried because he talked about the new Prevent duty sitting comfortably alongside existing statutory duties to uphold freedom of speech and academic freedom. The whole point is that it sits uncomfortably beside those duties. I am worried that we may be talking about some kind of parallel universe. I am not a lawyer so I may make a fool of myself when I say this, but the existing duties in the 1986 and 1988 education Acts are themselves subject to other laws which restrict freedom of speech, as I said, so I do not see why there is a problem in making the Prevent duty subject to those duties because they are circumscribed. Therefore, I do not understand the noble Lord’s argument on that. When he reflects on the debate, I hope he will think seriously about that, because if the new duty is not subject to those duties, it will not meet the concerns expressed so powerfully in your Lordships’ House—concerns which are based on noble Lords’ experience. I hope it will be possible to discuss this issue informally, although we clearly do not have an awful lot of time before Report, given the fast-track nature of this legislation. I welcome the fact that the Minister is prepared to think further about this and beg leave to withdraw the amendment.

Amendment 104 withdrawn.

--- Later in debate ---

[Baroness Sharp of Guildford]

I have added my name to Amendments 112C and 112E. It is important that the fine print of the duty is spelt out in the guidance. It is extremely important that this should be put in the public domain and scrutinised by Parliament. I very much endorse the provisions of Amendment 112C. Similarly, in relation to the Secretary of State giving directions, it is important that this is transparent and in the public domain. Including such a report would actually be after the event. The scrutiny is not before the action but after it. Nevertheless, it brings the matter to public notice. It is vital that this is scrutinised by Parliament. I very much like the notion that a copy must be sent to the chair of the Joint Committee on Human Rights. That is appropriate given the interest that that committee has shown in these provisions.

[Baroness Lister of Burtersett]

My Lords, the concerns that were expressed in earlier debates about the draft statutory guidance underline just how important it is that that guidance is the subject of proper parliamentary scrutiny. Indeed, the Joint Committee on Human Rights, which has just been referred to, has recommended that the Bill should be amended to require the guidance to be approved by affirmative resolution of each House. I want to ask one specific question about the guidance. I do not know whether this is my bid for a letter but it would be good to have the answer in Hansard. The guidance sets out what is expected from student unions and societies in relation to the Prevent strategy, including making clear the need,

“to challenge … extremist ideas which are used to legitimise terrorism and are shared by terrorist groups”.

Both Universities UK and the National Union of Students have questioned how this is compatible with student union status as independent legal entities. My noble friend Lady Kennedy of The Shaws made reference to this in passing but did not actually pose the question of how it is compatible. The NUS also points out that student unions are already regulated by the Charity Commission so it could be awkward if they had to be accountable to two different bodies. I would welcome an explanation of this either now or, if that is not possible, in a letter. How do student unions fit into this and how will it be possible for universities to apply the guidance to bodies which are independent of them?

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I have a few questions concerning the role of HEFCE as the appropriate monitoring body. I was slightly surprised when I heard that it would play that role. What expertise does it have as primarily a funding body—albeit, I accept, with some wider governance oversight? Is there not a danger that the chilling effect will be that much greater if compliance is policed by the funding body?

Will the Minister also explain how HEFCE will regulate those HE institutions with which it has no formal funding relationship? Finally, I understand that reference to “the Secretary of State” means the Home Secretary. However, Universities UK argues that it is inappropriate for HEFCE to be given directions by the Home Secretary; there is the whole question about the independence of universities anyway, but in so far as there is such a relationship, normally HEFCE has a relationship with BIS, not with the Home Office. I would therefore appreciate the noble Lord’s reflections on those questions, because I know that there are concerns in the HE sector about the role of HEFCE— I do not know what its own view is on that.

[Lord Bates]

My Lords, I am grateful to noble Lords for their questions. I will first deal with the questions from the noble Baroness, Lady Lister, on HEFCE. As the noble Baroness will be aware, that is one of the questions we specifically ask on page 21 of the consultation:

“Do you agree that the Higher Education Funding Council for England is the appropriate body to monitor compliance with this duty? … Are there other higher education regulatory bodies that should be involved in monitoring compliance?”.

In many ways the short answer is that we are consulting on that. That was one of the reasons why when I introduced the government amendments I said that in certain cases we nominate the Secretary of State for Business, Innovation and Skills as the designated person for these purposes. I hope that addresses that point.

I turn to the point mentioned by the noble and learned Lord, Lord Hope, on Scotland, which he raised in the previous context as well; as I have stated, it is our hope and intention to add Scottish bodies to Schedule 3 in due course. At such point we could look at making consequential amendments to this clause to make it applicable to Scotland. The other one relates to Northern Ireland. On the application of free speech in Scotland, which was referred to previously—I take the opportunity because the notes happened to arrive together—this part of the Bill applies to England, Wales and Scotland, but as yet no Scottish bodies are listed in Schedule 3; I made that same point earlier. However, we will look carefully at the wording used, to ensure that it applies equally across all territories, so the basic answer is what I already said in this regard.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I apologise that I was not here at the beginning of the noble and learned Lord’s remarks. I support the amendment and the remarks made by my noble friend Lady Kennedy of The Shaws. I have a question for the Minister. Members of the Joint Committee on Human Rights, of which I am one, with heavy heart agreed that we had to agree with the independent reviewer, but we said:

“We look to the Government to be proactive in bringing forward ideas about how to mitigate the alienation and resentment likely to be caused in some minority communities”,

by relocation. I would be very grateful if the Minister could give the Committee some idea of what ideas might be brought forward by the Government.

[Baroness Smith of Basildon (Lab)]

My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.

Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,

“is satisfied, on the balance of probabilities”,

for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.

My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, it goes without saying that we are united in our abhorrence of violent terrorism, not least as our debate takes place under the shadow of the appalling murders in Paris. However, the magnificent solidaristic reaction in France and beyond reminds us of the values our Government seek to protect through this legislation. Democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs are not, as claimed, uniquely British values but—I would argue—values of democratic citizenship. The implications of the Bill for democratic citizenship and human rights are what I wish to explore in my contribution—with reference to the report of the Joint Committee on Human Rights, of which I am a member—not least because if the Bill is seen to infringe the citizenship and human rights of one particular community, it could have the opposite effect to that intended. This echoes the point made so strongly by the noble and learned Lord, Lord Lloyd of Berwick.

In Part 1, the JCHR accepted the case for a new power to seize travel documents but, in view of the significance of such a,

“power to interfere with the right to leave the country”,

it emphasised the importance of the,

“procedural safeguards … to ensure that it is not exercised disproportionately”.

We therefore made a number of recommendations for strengthening these safeguards so as to uphold the rule of law. The proposal for temporary exclusion orders has been more controversial. To his credit, the Minister, James Brokenshire, rejected his colleagues’ attempts to persuade him to rename it a “managed return order”, which was advocated also by some noble Lords, because, he acknowledged,

“it is exclusionary in its nature during the period prior to return”.—[Official Report, Commons, 6/1/15; cols. 207-08.]

He also argued that this is “not about citizenship”. That may be true in so far as it is not about the formal, absolute deprivation of citizenship; I welcome the retreat from the proposal originally announced by the Prime Minister in September. Clearly, however, it fetters the right of a citizen to return to his or her country of citizenship and therefore it is “about” citizenship, and in effect suspends it.

In the JCHR’s view there is,

“a very real risk that the human rights of UK nationals will be violated”,

and we made clear our opposition,

“in principle to any exclusion of UK nationals from the UK, even on a temporary basis”.

As the noble Lord, Lord Thomas of Gresford, noted, we therefore suggested that “notification of return” orders, which would require,

“UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”,

would represent a,

“more proportionate interference with the right … to return to the UK”,

in a way that is,

“compatible with the UK’s human rights obligations”.

The arguments in support of proper judicial safeguards were well aired in the other place, leading to the welcome, if somewhat vague, commitment to return to this issue in your Lordships’ House. The JCHR was clear that the Bill must,

“provide expressly for a judicial role prior to the making of”,

an order. We also supported the view of the Independent Reviewer of Terrorism Legislation that the powers in Part 1 should be subject to review by him, and we recommended that they be,

“subject to a renewal requirement”,

so that Parliament can consider the case for their continuation,

“in the light of the Independent Reviewer’s report on their operation in practice”.

I turn to Part 5 and, in particular, to the application to universities of the new statutory duty to have due regard to the need to prevent people being drawn into terrorism. Here I declare an interest as an emeritus professor at Loughborough University. As Universities UK, my former union UCU, the NUS and the JCHR, among others, have asked, how is this new duty to be balanced with the obligation on universities to defend academic freedom and freedom of speech? In oral evidence the Minister tried to reassure the JCHR on that account, but I am afraid we were not reassured, because:

“Broad terms such as ‘extremist’ or ‘radical’ are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.

We warned that:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

Universities UK raised a particular concern about paragraph 57 of the draft guidance, which explicitly states that universities must include “non-violent extremism” in the risk assessments they will be expected to carry out. As the former vice-chancellor of Salford University asks in the current Times Higher Education, could the new obligation,

“be used against opponents of fracking … or any radical opposition to the status quo?”.

Surely universities are just the place where young people and others should be able to explore “extremist” ideas, however unpalatable, without being treated as potentially being on the path to terrorism or as popularising “views which terrorists exploit”, to quote the guidance. I found a recent article by Professors Paul Thomas and Ted Cantle, who have done much work in this area, very helpful in thinking about these issues. They point out that:

“Leading academic analysts of terrorism … have long-argued that how democratic states respond to terrorist threats is crucial—a response of repression or unjustified surveillance can represent precisely the undermining of democratic rights and processes that extremist groups hope to achieve”.

They also warn that,

“the further pressure to ban extremist speakers in universities and colleges will remove almost all opportunity for young people to hear extremist views and to have them challenged in an open and reasoned way, as though they are so seductive that any attempt to oppose them will result in failure”.

Instead, they argue for an education approach based on,

“open dialogue, with prejudiced views challenged but in a patient and respectful way”,

which,

“trusts the power of education and shows a faith in the potential of all young people to develop resilience against extremism and hatred by enabling them to learn and to practice real, democratic debate and citizenship”.

I welcome the issue of the draft guidance for consultation last month but rather than provide reassurance it has, if anything, exacerbated the JCHR’s concerns. For now I will raise just one concern that Universities UK is particularly worried about: what it calls the “over-prescriptive and onerous” expectations with regard to external speakers, which include the requirement of:

“Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations … etc”.

As someone who is quite frequently asked to lecture at other universities, will I now be required to send my notes to be vetted in advance?

In view of such concerns and the very special place that academic freedom and freedom of speech enjoy in the context of university education, as recognised in Section 202 of the Education Reform Act 1988, the JCHR concluded that the best way to ensure that these principles are protected would be either,

“to remove universities from the list of specified authorities to which the new duty applies”,

or,

“to add the exercise of an academic function to the list of functions which are excepted from the application of the duty”.

We also recommended that the guidance should be scrutinised by both Houses by way of affirmative resolution. At the other end of the educational age-scale, can the Minister explain just how nursery staff and childminders will be expected,

“to identify children at risk of being drawn into terrorism”?

It is crucial that fears about terrorism do not lead to the erosion of the very principles of democratic citizenship that the Bill purports to defend. We now have an opportunity and a responsibility to ensure that these principles are protected as we subject the Bill to scrutiny.

Modern Slavery Bill

Baroness Lister of Burtersett Excerpts

Wednesday 10th December 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I fully support the amendment—as the Minister knows, because I told him some time ago. I take the view that the recent change in the visa for domestic servants is shocking, because it puts a relatively small number of people into an utterly impossible situation. They can choose either to continue to be a slave, or to be deported. That is just not acceptable.

However, if the Government are not disposed to do anything effective about the visa, they might be interested in some discussions that I have had with the creative and inventive researcher of Frank Field MP. He has come up with an analogy that the Minister might just find interesting. Women who come over here with a marriage visa and become the victims of domestic violence are entitled to what is called a DDV—destitution and domestic violence—concession. This concession allows them three months’ access to public funds while their cases are being sorted out by the Home Office, with a view to deciding whether they will be given the right to remain here, or whether, after those three months, they will have to go back.

I ask the Minister, at the very least, to say whether there is not a very close analogy between such a domestic servant and a woman coming over here with a marriage visa who then has to leave home because of domestic violence. Goodness me, some of the violence that women in domestic servitude suffer is probably worse than the domestic violence suffered by a woman who has come over with a marriage visa. I suggest that three months is too short a period for a victim of slavery, so I ask the Minister to consider the marriage visa and see whether the same conditions could apply, by analogy, to the visa for domestic servants. I ask for six months instead of three months for these women to sort themselves out, and for their cases to be sorted out by the Home Office. If at the end of six months they had to go back, that would be a rather different situation, because they would have had some time at least, with public benefit, to try to see what their future lives might be. The marriage visa analogy may not be as good as some other means, but I urge the Minister at least to look at it as a possible alternative.

[Baroness Lister of Burtersett (Lab)]

My Lords, a powerful case has been made for the amendment, and I simply want to add my support. This is such an important issue, which goes to the heart of what the Bill is about. The Minister, in his letter to Peers after Second Reading, said that he shared noble Lords’ determination to stamp out all forms of modern slavery, including abuse of domestic workers. That is a welcome aspiration, which has been repeated in various forms in various places.

The centrality of this issue to the Bill is underlined by the Joseph Rowntree Foundation. On the basis of studies that it has funded, it writes that,

“there is most risk of forced labour where an individual’s work visa is tied to a particular employer. The most commonly cited example is the situation of overseas domestic workers who, since 2012, are again no longer allowed to change employers within the same category and hence become trapped in abusive situations”.

Evidence of the effects of being so trapped is, as we have heard, provided by organisations such as Kalayaan, which works with overseas domestic workers. I pay tribute to its work. Kalayaan argues that all the available evidence suggests that the change in the visa,

“has facilitated their exploitation and abuse, including trafficking”.

As the noble Baroness, Lady Cox, has said, Kalayaan details numerous ways in which the abuse experienced by overseas domestic workers who register with them has worsened since the change in the rules.

In their response to the Joint Committee on the draft Bill, the Government suggested that the previous rules “potentially encouraged abuse” because they enabled employers to bring domestic workers to this country for longer periods. Do the Government have evidence of such abuse? Or is this a hypothetical potential, which needs to be set against the actual evidence of abuse that has happened since 2012? In that time, as we have heard, abuse and exploitation has got much worse. It should also be set against the fact that the pre-2012 regime was cited by both the ILO and the UN Special Rapporteur on the Human Rights of Migrants as best practice. As the noble Baroness, Lady Cox, has observed, this was one reason why the Joint Committee on Human Rights, of which I am a member, regarded,

“the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers.

We recommended that the Bill should be amended to reinstate the pre-2012 position.

Given the clear evidence of how the removal of that protection has facilitated abuse, given the Government’s own commitment to stamp out abuse of overseas domestic workers, and given that I feel both Ministers are reasonable people, I hope that they will feel able to take this amendment away, think again, and bring forward their own amendment before Report.

--- Later in debate ---

[Baroness Garden of Frognal]

I think we are all agreed that that is a difficult problem and we are trying to find ways to tackle it. The power of the employer and the fact that people support family links back home make it extraordinarily difficult for people to complain about their employment.

I turn to the tabled new clause and its proposal that, if they sought new work, overseas domestic workers would be allowed to extend their visas and be granted a three-month temporary visa where there is evidence that they had been a victim of trafficking or slavery. This particular visa is designed for the sole purpose of enabling workers who are part of a household overseas to accompany their employers to the UK while the employer is working here. Allowing them to change employer is not compatible with the purpose of this particular visa. It would create an anomaly in the system if non-skilled, non-European Economic Area domestic workers could come to the UK with an employer and then change employer and stay here in a way that is denied to other non-skilled, non-EEA workers.

The noble Lord, Lord Rosser, asked me about the sort of numbers that we might expect. Between 2009 and 2013, on average 5,600 overseas domestic workers in private households extended their visas annually. We know that wages and working conditions in the UK are often more attractive than in the countries from which they may have come, so we would expect a similarly large number of workers to seek to remain here. The amendment would potentially allow overseas domestic workers to extend their visas indefinitely in 12-month increments, permitting all those who stayed in the UK for 10 years to become eligible to apply for settlement. It is arguable that this temporary, non-economic route should not have preference over those who choose to follow the official routes into employment in this country.

The ability to change employer does not necessarily protect against exploitation. Indeed, the long-term nature of employment and an ability to extend visas can, in some cases, facilitate abuse. It therefore would not necessarily provide protection against trafficking and other exploitation.

[Baroness Lister of Burtersett]

Could the Minister explain how it would make abuse more, rather than less, likely if they have the power to make that choice? I did not quite follow the argument.

[Baroness Garden of Frognal]

If they had power to extend their visas indefinitely then the employer could keep them in the country indefinitely.

[Baroness Lister of Burtersett]

I thought the argument was that they had the power to change their employer. How does that make them more likely to be abused, if the reason they want to change their employer is because the employer who brought them into the country is abusing them in the kind of way that we heard from my noble friend Lady Kennedy?

[Baroness Garden of Frognal]

It would enable them to extend their visas. It is the extension of the visa that would mean that they could be here longer and therefore possibly open to abuse for longer.

One other thing worth saying is that, of those who sought to extend visas before, there was a whole range of reasons as to why they wanted to do so. The fact that they were victims of trafficking or abuse was not necessarily the only or the main reason why people chose to change employers and to extend their visas. Of course, we recognise that there are huge risks to people who come here. In the Bill we seek to provide methods of having a more secure life for the people who come into our country and who are here because of the employment they have with a particular employer.

Modern Slavery Bill

Baroness Lister of Burtersett Excerpts

Monday 8th December 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have Amendment 67F in this group but, before I discuss it, I should say how much I agree with the thrust of everything that has been said this afternoon. I tabled some amendments which we discussed at the end of our proceedings last Wednesday, which went in the same direction as many of the amendments in this group. It is perhaps as well that the group was not made even longer by having those amendments in it.

The noble Lord, Lord Warner, asked why we should go to all this trouble and then constrain the commissioner’s remit and role. That seems to me to go absolutely to the heart of the issue. The commissioner should be able to take a holistic—I do not much like that word—viewpoint of everything that is going on that relates to trafficking. The issues are very complex and interrelated and our understanding of them is developing fast, so the commissioner should be allowed the scope that the commissioner designate has clearly identified. However, as others have said, we should not leave it to him to find ways round the legislation, as it were, which is what it sounds as if he is seeking to do, although I am sure that he would not put it that way.

Moreover, I wonder whether the Secretary of State should have a power to redact passages from reports in the interests of national security. I am not sure whether I am right about this, but I could not find a similar power for the Secretary of State in respect of the reviewer of terrorism legislation, where you would think that would certainly be needed. I think what this boils down to is that we have to respect the fact that the commissioners who are appointed will be entirely sensible.

My amendment picks up the point about data collection and would insert a power to collect, compile, analyse and disseminate information and statistics. The Government’s response to the report of the pre-legislative scrutiny committee, which argued for the ability to deal with data, did not, as far as I could see, address that. As Governments always do, they said that the scrutiny was welcome. However, the point was also picked up by the Joint Committee on Human Rights, which commented:

“National human rights institutions … generally do not have the Ombudsman-type power to take up individual cases, but they do have a significant role in collecting data in order to monitor the State’s performance in observing the rights of individuals”.

If I can put it less assertively, may I ask my noble friend whether he can confirm that research, which is mentioned in the clause, covers the points which I have included in my amendment? Even if the role is restricted to enforcement, which I very much hope it is not, data collection is important in enforcement. Enforcers need to know what they are up against. I also ask my noble friend whether the Government will be producing a data-sharing protocol, which is recommended in the review of the NRM. There will be another point on data later, but if the Minister is able to answer, that would be interesting.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise in support of these amendments aimed at strengthening and broadening the remit of the anti-slavery commissioner, which is very much in the spirit of the recommendation put forward by the Joint Committee on Human Rights, of which I am a member. The JCHR concluded that the commissioner’s mandate,

“remains weak … and narrowly focused”.

Following questioning of the Government, the committee accepted the need to avoid any overlap or confusion with the role of the Victims’ Commissioner—I see that the noble Baroness is in her place—but we said that we did not consider this to be an inevitable result of broadening the role beyond its narrow focus on law enforcement.

Amnesty made the point in its briefing that the Home Secretary has emphasised the need for a co-ordinated and holistic approach, mentioned by the noble Baroness, Lady Hamwee, to tackling modern slavery. It said that this is why it is so important that the commissioner is properly resourced and empowered to look fully across the piece. I agree with that.

The JCHR recommended that the Government should follow the model of the Office of the Children’s Commissioner, which the noble Lord, Lord Patel, has talked about. When we discussed this at our last sitting, I commended the Government for having strengthened the position of the Children’s Commissioner and made it a much stronger body than it was. That was very much to the Government’s credit, although I would add that the Minister mentioned on Wednesday the fact that the Children’s Commissioner is housed in a Department for Education building, as if that meant that it was fine for this commissioner to be. The JCHR strongly recommended against that, because it impinges on the commissioner’s independence—but that is by the by.

Despite having set up this very good model of the Office of the Children’s Commissioner, the Government deliberately decided not to pursue that model for the anti-slavery commissioner. They then pointed out that this was reflected in the much smaller budget for this commissioner than for the Office of the Children’s Commissioner. I could not help but wonder whether this was partly about trying to save money. Are they trying to have an office of the anti-slavery commissioner on the cheap? The old proverb about a ha’p’orth of tar came to mind.

I want to return to a question I asked the Minister at our previous sitting, when perhaps I did not make myself fully clear. I asked the Minister why the Government do not see the anti-slavery commissioner primarily as part of the human rights machinery, as they told the JCHR. The Minister replied that the commissioner,

“is not a national human rights institution as defined under the Paris principles”.—[Official Report, 3/12/14; col. 1382.]

However, he agreed that it would play a key part in improving our human rights response to tackle modern slavery. In my speech last week I quoted from the exchange between Humpty Dumpty and Alice in Lewis Carroll, on how we understand the meaning of words. When I reflected on the Minister’s reply to me, I rather felt as though I had walked through the looking-glass. It was, of course, perfectly open to the Government to make the anti-slavery commissioner compliant with Paris principles. That was a political decision and choice. However, they chose not to.

So let me rephrase my question. Why did the Government choose to make the anti-slavery commissioner not compliant with the Paris principles? That is: why do they believe it should not be part of the human rights machinery—not why it is not technically part of the human rights machinery—when we are all agreed that it has this key role in improving our human rights response to modern slavery? I am baffled, I have to say.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I have put my name in support of these amendments in the name of the noble Lord, Lord McColl of Dulwich. He and I have battled for three years—he having taken the lead—and this is a great moment. The Government are to be congratulated on Clause 47. They are to be congratulated on going as far as they have, but they have not gone far enough.

One of the most important points made by the noble Lord, Lord McColl, was on the child advocate having an absolutely clear statutory position. I remember discussing this with representatives of Barnardo’s who had had to work from time to time with local authorities on children in whom they had an interest and who found that some local authorities would not help them because they had no statutory power. This is a serious matter. You have to be able to say to a local authority, “You’ve got to give this to me”, and not, “Please would you mind giving it to me?”. It is a crucial distinction. In Clause 47(4), to which the noble Lord referred, the fact that it says:

“The Secretary of State may make regulations about functions”,

and about,

“requiring public authorities to co-operate with, and provide information to, child trafficking advocates”,

is not good enough. The word has to be “must”; “may” will not do.

As the noble Lord, Lord McColl, also pointed out, certain basic things are to be found in our Amendment 86H, the majority of which have to be in primary legislation. However, I can see that much of Amendment 86 could be done by regulation. It seems to me that the Government should go away and have a look at these two amendments. Some provisions could appropriately be made by regulation but the really important ones need to be made in primary legislation to give the child trafficking advocate the jurisdiction, to use a legal word, or actual control over what they wish to do for the child by working with local authorities, the police and other agencies, including the National Health Service. They would need to have the right to require those agencies to provide them with documentation and information about the child who is a trafficked victim. Other than that, each of these agencies may, and probably would, be very difficult about supplying the information. That information is crucial for the advocate, who should be there from the beginning of the identification of the child to the moment when the child is settled. With these amendments tabled by the noble Lord, Lord McColl, three years on from when we started, we have got a long way, but the Government need to listen to see that it is not quite sufficient. We need to give the child trafficking advocate the powers as well as the duties.

My last point is about the power to appoint and instruct legal representatives. It is also absolutely crucial to give that child trafficking advocate the powers that these children—mainly brought over from other countries, although there are also some internal children—actually need from them. For those reasons, I strongly support these amendments. As I say, some provisions could be in regulation but there are basic points that have to be in primary legislation.

[Baroness Lister of Burtersett]

I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.

The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,

“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.

We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.

I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.

I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.

I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.

I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.

Modern Slavery Bill

Baroness Lister of Burtersett Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise very briefly in support of the noble Baroness and thank her for tabling the amendment, which takes up one of the recommendations of the Joint Committee on Human Rights. We wrote to the Government about this and in response the Government stated that an explicit reference is unnecessary due to case law that establishes the principle that in the context of civil orders applying to anti-social behaviour the requisite burden of proof is the criminal standard. That was a reference to the other Bill as well. However, given that I speak as another member of the non-lawyer sisterhood in your Lordships’ House, perhaps the Minister could explain a bit more about that. Would he not accept that the principle of legal certainty is a very important one, particularly in such a charged area?

[Lord Rosser]

The noble Baroness, Lady Hamwee, and my noble friend Lady Lister have made reference to the views of the Joint Committee. Of course, reference has been made also to the fact that similar amendments were discussed in the other place. As we know, the response of the Minister in the other place was that, although the orders would be obtained through civil proceedings, the Government accepted that the threshold would be akin to the criminal standard of satisfied beyond reasonable doubt, in line with relevant case law. The Minister in the other place went on to express the view that since the relevant clauses in the Bill already met the evidential threshold that appeared to be being sought in the amendments that were discussed in the other place, the amendments were not needed.

Naturally, I am assuming that the reply that we are going to get from the Minister will be in line with the response that was given by the Minister in the other place, but I hope that the Minister will respond also to the point that has been made about why there is a reluctance to put this on the face of the Bill so that there is no doubt at all about it.

--- Later in debate ---

[Baroness Hamwee]

My Lords, under the Bill the court can make a prohibition for any period, and the criterion is that the prohibition is “necessary to protect” a particular person or persons generally from physical or psychological harm likely to arise from slavery or a trafficking offence by the defendant. Obviously, that goes very wide in terms of the court’s powers. The Joint Committee on Human Rights made the point—I hope that I am not stealing the noble Baroness’s thunder again—that there should be certainty as to the prohibitions which can be applied and recommended that there might be, for instance, an indicative list of the sorts of prohibitions that can be imposed in such orders. Considerations of legal certainty should also be given prominence in the development of the statutory guidance. That statutory guidance will apply to the police, to immigration officers and the NCA. I am not sure where the courts stand in this and whether it is improper to issue guidance to a court. The police can apply for a particular prohibition order and the court will have unlimited discretion.

It seems to me that if these prohibitions are capable of being set out in guidance, they are capable of being set out more formally. My amendment proposes that they should be included in regulations rather than in guidance. That would provide certainty as to what prohibitions might be applied and give Parliament the opportunity to debate those prohibitions, and having regulations rather than primary legislation would allow for quite a degree of flexibility. Wishing to see certainty and not to provide completely unconstrained discretion without knowing until case law has developed what might be included in the prohibitions, I am proposing the use of regulations. I beg to move.

[Baroness Lister of Burtersett]

My Lords, the noble Baroness has not stolen my thunder at all, and again I am most grateful to her for tabling this amendment. It picks up on the recommendations made by the Joint Committee on Human Rights. I want to make one additional point on why this raises an important question of human rights. As we said in our report:

“In order to ensure compatibility with the right to respect for private life, any restriction must satisfy the requirements of legal certainty. It is essential that prohibitions contained in the orders are clear, as a breach of an order is a criminal offence”.

[Baroness Garden of Frognal]

My Lords, I thank both noble Baronesses for speaking to these amendments. They raise the important issue of the prohibitions that can be imposed by the slavery and trafficking prevention orders and risk orders. Prevention is critical to tackling modern slavery effectively and the purpose of these orders is to enable the courts to impose prohibitions on individuals who are believed to pose a risk of causing harm by the commission of a slavery or human trafficking offence. It is important that these orders provide law enforcement agencies and the courts with the ability to respond flexibly to the risks posed by an individual. Clauses 17 and 24 make it clear that slavery and trafficking prevention orders and risk orders will only contain prohibitions that the court is satisfied are necessary for the purposes of protecting people from the physical or psychological harms that would be likely to occur if the defendant committed the slavery or human trafficking offence. These prohibitions can be imposed anywhere in the UK or outside of the UK, they can be for a fixed period of at least five years, and some prohibitions may apply for longer than others.

To enable law enforcement agencies and the courts to respond to changing slavery and human trafficking practices and to tailor prohibitions to the specific risk posed by individuals, we have deliberately not specified the types of restrictions that can be included in the orders. This makes them flexible and capable of restricting any activities that a person undertakes if the court considers it necessary. The approach is in line with existing orders relating to the prevention of sexual harm. Making the amendment requested by my noble friend would restrict the flexibility that these orders need to have. We believe that we have already set substantial and appropriate safeguards to ensure that orders will only be used in appropriate circumstances when necessary to stop the harm caused by these very serious offences, by requiring that the court is satisfied that they and the prohibitions that they include are necessary.

I appreciate the power of the argument of my noble friend and the noble Baroness, Lady Lister, and of the arguments of the Joint Committee on Human Rights to ensure that operational law enforcement partners are clear on the types of prohibitions that might be helpful. In line with the Joint Committee on Human Rights recommendation we shall ensure that the statutory guidance in relation to the orders will include guidance on appropriate prohibitions. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Hamwee]

I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.

I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.

Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.

[Baroness Lister of Burtersett]

My Lords, I support all these amendments, which aim to ensure the genuine independence of the anti-slavery commissioner and to establish a relationship with Parliament. As I said, they are very much in line with the recommendations of the Joint Committee on Human Rights, of which I am a member. I am grateful to all noble Lords who tabled them; a very powerful case has been made. I apologise if I echo some of the arguments, but some of them bear repetition.

The JCHR welcomed the creation of the office of the anti-slavery commissioner as,

“a potentially significant human rights enhancing measure”.

However, whether it fulfils that potential depends very much on it being genuinely independent of government. As we have heard, a very constructive debate in the Public Bill Committee led to an amendment on Report which added “independent” to the statutory title of the commissioner, as my noble friend Lord Warner, explained. I welcome that, as it reflected the all-party consensus around the importance of the commissioner’s independence. As the JCHR observed,

“the post cannot be made genuinely independent merely by adding a label”.

We listed the provisions and omissions that mean that it cannot be described as independent in any meaningful sense, which are for the most part covered by noble Lords’ amendments, so I will not go through them.

In light of those severe limitations on the commissioner’s independence, we asked the Government in what sense the role is independent and why it is less so than the Office of the Children’s Commissioner. Their response was to accept that there were significant differences in the legislative framework governing the two bodies, but, as we heard, they maintained that both models produced independent bodies. Yet the widespread view both inside and outside Parliament is that that does not constitute independence because, as the JCHR said, the role would largely be controlled by the Home Office, serving simply as an adjunct to it. My noble friend Lord Warner spelt out very graphically what that might mean in practice.

This debate on what constitutes independence brings to mind the famous exchange between Humpty Dumpty and Alice:

“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’”.

I thought that was rather appropriate in the context of a debate about slavery. Surely, ultimately, in deciding what constitutes independence here, Parliament should be the master, and the related concern of the JCHR, taken up in the amendment in the name of the noble Baroness, Lady Hamwee, was about the commissioner’s relationship to Parliament.

The JCHR has sought to strengthen the relationship between Parliament and a number of bodies which form part of the human rights machinery, including the Office of the Children’s Commissioner, and I very much commend the way the Government have strengthened and ensured the independence of that office. We stated in our report:

“In our view, the Anti-slavery Commissioner proposed in this Bill has the potential to be another part of that machinery with an important human rights role”.

However, we were surprised and disappointed, to put it mildly, by the Government’s statement that they do not see the commissioner’s role primarily as part of the national human rights machinery. I find it extraordinary that in one of the most human rights-enhancing Bills brought forward by the Government, the machinery to implement it is not seen as part of the human rights machinery. Can the Minister explain why, and does he accept that that rather diminishes the potentially human rights-enhancing role of the Bill?

We have heard from members of the Joint Committee on the draft Bill how that committee itself stressed the importance of the independence, which is crucial for both credibility and establishing the trust of NGOs and other stakeholders. I would add to that list, most importantly, the victims of modern slavery themselves. The committee heard from the Dutch equivalent, who said that,

“the long-standing effectiveness of her own role lay in its statutory independence and the trust engendered as a consequence”,

as my noble friend Lady Royall has said. It expressed sympathy with,

“those who cautioned against relying on either the good intentions of the holder of the office of Home Secretary”.

We all know and appreciate the commitment of the current Home Secretary on the issue of modern slavery. But when even the autonomy of the Chief Inspector of Borders and Immigration has been undermined by the Home Secretary’s recent refusal to publish five inspection reports, leading to his recent warning to the Public Accounts Committee that the independence of his role has been compromised, that must send out warning signals for a role that has less statutory independence.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we will come to the staff’s functions and powers next week, but we should not lose sight of the fact that some of them need to have experience that is far wider than and quite different from that of the Home Office: we are talking about health and the whole of the welfare system, at least. That point has been made in the context of the powers, but let us mark it in the context of staff as well.

[Baroness Lister of Burtersett]

At the risk of overloading the Minister with questions, I asked a very specific question that I do not think he answered: why do the Government not see the office of the anti-slavery commissioner primarily as part of the human rights machinery?

[Lord Bates]

I will come back to a few of the points raised there. I take the point the noble Baroness made about what was intended in the wording on the budget, but none the less, there is an element, in the way that the amendment is currently worded, that would allow the commissioner a degree of independence in the level of the budget that he sets.

We envisage that the staff will be analytical staff. There will be quite a lot of data collection on the number of prosecutions, the number of people going into and coming out of the national referral mechanism, and on the compensation and reparation orders that will go out. There will be quite a lot of data support. While I appreciate the olive branch from the noble and learned Baroness, Lady Butler-Sloss, suggesting a way forward on this, the independent person in this process ultimately is the commissioner himself. The commissioner will not be, by anybody’s standards, a Home Office place-person. He is somebody with genuine credentials and independence. I think that he will make a significant difference to the role, and I am sure that he will have a very clear view of what his role should be.

On the specific point of appointing staff, I am happy to give an undertaking that I will take this away and reflect a little more on it. In saying that, I would not want the Committee to be of the view that we do not envisage that the commissioner will have to have confidence in his team and that he will be part of the recruitment process. When we limit his pool of staff to people from the Home Office—we are not really limiting it; it is quite a large pool of several thousand—I am sure, from my limited experience, that he will be fishing in, and recruiting from, the finest pool of talent in Whitehall. However, I hear what is being said and we will return to this. I totally accept that appearance is very important in these matters.

The noble Baroness, Lady Lister, asked me a specific point about the human rights machinery. The Independent Anti-slavery Commissioner is not a national human rights institution as defined under the Paris principles but, as was felt by the Joint Committee, the commissioner will play a key part in improving our human rights response to tackle modern slavery.

I hope that with those words the noble Lord will feel able to withdraw his amendment, even if he has to come back and fight another day.