Counter-Terrorism and Security Bill

Debate between Baroness Lister of Burtersett and Baroness O'Loan

Wednesday 4th February 2015 Lords Chamber

[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.

Counter-Terrorism and Security Bill

Debate between Baroness Lister of Burtersett and Baroness O'Loan

Wednesday 4th February 2015 Lords Chamber

[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.

Welfare Reform Bill

Debate between Baroness Lister of Burtersett and Baroness O'Loan

Wednesday 16th November 2011 Grand Committee

[Baroness Lister of Burtersett]

My Lords, I wish to speak briefly in support of the hobby horse of the noble Baroness, Lady Campbell of Surbiton, which we should take seriously. I was struck by what she said about how a trial period in which disabled people’s organisations were involved could do a lot to restore confidence in the system. I am sure that I am not the only noble Lord who has been struck by the e-mails, letters and faxes that I have received, which demonstrate that that confidence is at rock bottom. There has been a catastrophic loss of confidence. The noble Baroness is offering the Government perhaps not an olive branch, because that suggests that a war is going on, but an opportunity—I suggest that the Government would do well to grasp it—to listen to what is being said, accept this amendment with its trial period and involve disabled people’s organisations. That could go a long way to restore confidence in this system.

[Baroness O'Loan]

My Lords, I apologise to the Committee that I was unable to be here at the beginning of the proceedings. The amendment tabled by the noble Baroness, Lady Campbell, to Clause 78 has to be considered in the light of the UN Convention on the Rights of Persons with Disabilities. I draw particularly to the Committee’s attention the fact that paragraph o of the preamble to that convention provides that,

“persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”.

The proposal for a trial period and the involvement of disabled people’s organisations in the assessment process will undoubtedly enhance that process, but it will also put the United Kingdom in a position in which we are in compliance with our obligations under the convention. I am sure the Minister will be aware that it will be most important to have a review in terms of having confidence in the Government’s new system, and to ensure that injustice is not done and that people do not lose the right to benefit simply because of a flawed assessment process, particularly one that is not conducted by those with the necessary expertise, as was referred to by a number of noble Lords.

I refer the Committee to Articles 19 and 20 of the UN Convention on the Rights of Persons with Disabilities, which are particularly relevant in terms of the opportunities that disabled people need in the context of this amendment. It is also cost-effective; more importantly, it is respectful of the rights and dignity of people with disability. As the noble Baroness, Lady Grey-Thompson, was saying, when they are unlikely to experience any change in the health impairments from which they suffer and which result in significant costs, they should not be required to be assessed more than once every five years. It is a human rights issue. The assessment process itself, as we have been told, will take a toll on such people and it would be disproportionate, unnecessary and unproductive to require more regular assessment.