Law Enforcement Agencies: Duty of Candour

Baroness O'Loan Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, first, I extend my deepest sympathies to the family of Daniel Morgan. Regarding who should be held accountable, the Home Secretary has asked the Metropolitan Police Service to account for the findings in the report. She has also asked HMICFRS to ask the chief inspector what steps the inspectorate can take to provide assurance on the issues raised in the report.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan panel. Is the Minister aware that the panel identified the abstraction of vast amounts of police material by the senior investigating officer of the last investigation, much of which he then disseminated to journalists and others for the purpose of broadcasting and writing a book about the murder? It included sensitive and secret material, the dissemination of which involves potentially significant risk to those identified and could undermine any future prosecution. Given this, does the Minister agree that the police must ensure that their policies and procedures to prevent such behaviour are effective and implemented, and that the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing?

[Baroness Williams of Trafford (Con)]

I agree with the noble Baroness and I thank her for the work she has done to bring forward this report, which I am sure will be a source of learning for both the Government and the Metropolitan Police. Regarding the policies and procedures and what has changed since the murder of Daniel Morgan, as the noble Baroness probably knows, a code of ethics for the police was introduced in 2014, and in 2020 the standards of professional behaviour were changed to clarify that failure to co-operate with investigations and inquiries could constitute misconduct. Much has changed for the better since the murder of Daniel Morgan, but, as the noble Baroness says, this is by no means the end of this very long story.

Daniel Morgan: Independent Panel Report

Baroness O'Loan Excerpts

Tuesday 25th May 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I do not see how there can have been a cover-up, if the Home Secretary has not yet received the report. We need to be very careful about the series of events that are required for publication to take place. I am sure that, like the noble Lord, we all look forward to the report being published in Parliament.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan independent panel. Is the noble Baroness aware that the panel has worked very closely with the Home Office, including with the Permanent Secretary, on arrangements for publication, and that it understood until 10 May that it was most likely that the report would be published on 17 May or yesterday and that the Home Secretary would have prior sight of it, as normal? There was no suggestion that the Home Secretary would seek to redact the panel’s independent report.

Is the Minister aware of the process adopted by the panel to ensure compliance with its legal obligations, which derive from its terms of reference, and the requirements when a report is to be published in Parliament, which include getting consent from all document holders to publication of their material, an anonymisation process, the sending of fairness letters to all individuals and organisations criticised in the report, a 10-day security review by five senior members of the Metropolitan Police and a full legal review of the 1,200-page report by the panel’s independent solicitors and Queen’s Counsel to ensure that there are no outstanding concerns?

Is she aware that the panel now awaits confirmation from the Home Office of the arrangements to ensure the security of the report prior to its publication in Parliament? Despite her previous answer, can she assure the House that publication will occur by 16 June, to enable the family of Daniel Morgan, who have been waiting 34 years and three months for answers, finally to see this report?

[Baroness Williams of Trafford (Con)]

I begin by thanking the noble Baroness for the part she has played as chair of the inquiry. We are as keen as she is to see that report published in Parliament. I echo her words about the family, who have had to wait 34 years for some of the answers they seek. That must have been an incredibly painful process for them. On publication to Parliament, I agree that the panel is now awaiting confirmation of the arrangements from the Home Office. The Home Secretary needs to see the report before it can be published in Parliament. To echo previous noble Lords, I also completely respect that legal specialists have looked at the report, but my right honourable friend the Home Secretary is under an obligation to assure herself of those facts before the report is published. As my honourable friend read out yesterday, the terms of reference say:

“The Independent Panel will present its final Report to the Home Secretary who will make arrangements.”


The noble Baroness has acknowledged that there is no attempt to redact, only to ensure that human rights and national security issues are absolutely scrutinised. Then, I hope, the report will be published as soon as practicable.

Domestic Abuse Bill

Baroness O'Loan Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

[Lord Morrow (DUP) [V]]

My Lords, I again commend the Government for bringing forward the Bill, as I have done throughout its passage through this House. I thank the Minister for the work that has been undertaken thus far. However, as the tragic events in Clapham so shockingly remind us, speed is of the essence when it comes to changing the attitude of men and boys towards women and girls in our society.

The Minister has been keen to point out that the Government’s own pornography research does not prove causation—how could it? It does demonstrate a clear association between pornography consumption and male aggression and sexual violence, as does other research in the field. In this context, addressing the impact of pornography consumption on male aggression towards women must form part of a credible legislative approach to violence against women and a credible response to the outpouring of stories that we have all been moved by this week.

In recent debates, much has been said about how Part 3 of the Digital Economy Act protects children from pornographic websites through age verification. That is certainly very important because, if Part 3 was in place now, children today would be less likely to be exposed to pornographic websites. It would therefore be less likely that they would move into adulthood with the expectation that violence is a natural part of sexual relationships, with all that this means for behaviour.

However, after the events of last week, it is also important to stress that another feature of Part 3—namely, the regulator’s power to take robust action against websites showing illegal extreme pornography, regardless of age verification—is important, because it will help foster an environment that challenges the normalisation of violence against women. It is a vital change that women and children could benefit from right now, that could have brought huge benefits from last year and, crucially, that could bring huge benefits very quickly, for reasons I will explain, if the Government implement Part 3.

The latest letter on this from the Minister comes with an estimated timetable of between 22 and 27 months for implementing Part 3 of the Digital Economy Act 2017, with a new regulator. This is perhaps the finest example of a cannot-do, rather than a can-do, attitude to emerge from Whitehall since Sir Humphrey Appleby took his retirement. It is deeply problematic for at least two reasons. First, it clearly draws out the process to the greatest possible extent, making it as long as possible. Secondly, it rests upon a strategy that hopes that none of us will be cute enough to spot the elephant in the room.

The truth is that, if the Government were prepared to redesignate the BBFC as the regulator for Part 3 during the interim period, while the online harms Bill is being developed, then women and children would benefit within a matter of months from the very important protections that this House has already sanctioned in relation to pornographic websites. The taxpayer would also see a return on the £2.2 million investment in the steps taken in preparing for implementing Part 3.

The question the Government must answer is this: is bowing to their preference that Ofcom be the regulator, rather than the BBFC, so important that they are prepared to demand that the price for it is that women and children should be denied the protections that this House has sanctioned for them for a period of years? We can argue about how long it might take for the online harms framework to reach the point of implementation, but if we use the Digital Economy Act as a model, we can assume that the time from the arrival of the primary legislation in Parliament to the point at which it and the attendant secondary legislation and guidance are passed will be about three years. Is the Prime Minister prepared to tell the women and children of the United Kingdom that his preference for Ofcom over the BBFC is so great that women and children should be denied these important protections from pornographic websites for some years, even though he can still have Ofcom when the online harms regime comes into play? Is he prepared to ignore Women’s Aid? Are the Government saying that, because they cannot consent to this, we should cease support for this amendment and all those who want implementation now?

I trust that the Prime Minister still has his political wits about him. I trust that he will think better of taking a different position from all these bodies and the noble Baroness, Lady Benjamin, whom the people of this country hold in such high regard. Redesignation would take 40 days, as per Section 17 of the 2017 Act, where it was agreed that we should give the websites three months to get ready.

By my reckoning, if the Government show a fraction of the determination that we saw at the vigil in Clapham on Saturday night, Part 3, with all its protections for women and children, could be in force before this House rises for the Summer Recess. It is my great hope that the Government will do the right thing today and tell the Minister before she gets to her feet that she can announce that the Government will now implement Part 3, so that the noble Baroness, Lady Benjamin, whose leadership on this issue demands our great respect, can withdraw her amendment.

[Baroness O’Loan (CB) [V]]

My Lords, I am pleased to speak today in support of the amendment in the name of the noble Baroness, Lady Benjamin. I am grateful too for the powerful briefings and extensive correspondence on this amendment that I have received from several organisations and individuals.

Like other noble Lords who have spoken, I have seen the Government’s letter of 8 March. I found it unconvincing and I am concerned that there is a danger of completely missing the point of the amendment. As we saw over the weekend, the country is very concerned about attacks on women. I think, too, that we are all concerned about the level of violence against children, and indeed against men, in our society. It is clear that the consumption of pornography is associated with aggression and violence against women, men and children. This is an issue on which we can act today.

Had the Government implemented Part 3 of the Digital Economy Act as planned, we would have had a functioning regulator today. He or she would have been able to take a series of robust actions against any pornographic website showing illegal extreme pornography. We would have seen the introduction of age verification on pornographic websites.

Today, 14 women’s organisations, including Women’s Aid, have written to the Prime Minister asking him to instruct his Ministers to respond to the debate by making a commitment to implement Part 3 of the Digital Economy Act as an interim measure to protect women and children, treating them with dignity between now and when the online harms regime will be ready, probably in three years.

The suggestion in the Government’s letter that

“commencing Part 3 of the 2017 Act as an interim measure would … create a confusing and fragmented regulatory landscape”

is unconvincing; it is also regrettable.

The online harms Bill is not yet before Parliament; it will take time to pass through Parliament and, even if it is passed as suggested and the Government commence implementation immediately, the interim arrangements proposed today would be in place and working for two or three years before it would be realistically possible for any benefit to be experienced through such an Act. That would be years of additional protection before any further legislation was operative.

If providing a greater measure of protection for women and children is a critical issue, as the Government have said, they cannot continue to argue that the legislation that we have passed should not be implemented now, even as work proceeds on developing even better legislation for the future. With child-on-child sexual abuse, we know that between 2012 and 2016 there was a 78% rise in England and Wales. Research from 2017 on preventing harmful sexual behaviour involved interviews with young sexual offenders, asking them what might have stopped them. Their answers included “help in management of pornography”. Implementing Part 3 would do this; it would help to save and protect until new legislation is enacted.

I urge the Government to respond positively to noble Lords who have spoken in favour of this amendment and the many women’s groups that have written to the Prime Minister today, and I shall support the noble Baroness, Lady Benjamin, if she divides the House on this amendment.

[Baroness Finlay of Llandaff (CB) [V]]

We should all thank the noble Baroness, Lady Benjamin, for Amendment 87A. It has been thrown into stark relief by the terribly tragic death of Sarah Everard.

In 2017, Parliament agreed powers to take action against any website showing illegal extreme pornography, yet although we have agreed that non-fatal strangulation is a crime, we still face the cultural normalisation of aggressive sexual activity, of which strangulation activities are the most extreme example. Fuelling such activities is violent pornography and the underlying problem of sex addiction, as explained by the noble Lord, Lord McColl of Dulwich. As with any addiction, the person requires ever more potent dosages of the source of their addiction, whether drugs, alcohol, gambling or abnormal sex. When sexual potency appears to fail, the man seeks greater stimulation in an attempt to achieve satisfaction, developing psychological tolerance to abhorrent acts. The pornography sought gradually becomes ever more extreme, with films and images made exploiting those who are vulnerable, often underage, enslaved or both. This is not about choice or self-control; the addict has surrendered choice—they are controlled by their addiction, compulsively drawn by dependence to extreme pornography. That does not absolve them from responsibility at all but, by leaving the extreme pornography there, we do not just normalise these practices but fuel the addiction, similar to the drug trafficker providing cocaine to the addict.

The Government’s own research into the impact of pornography on male aggression reported in February 2020 that

“there is substantial evidence of an association between the use of pornography and harmful sexual attitudes and behaviours towards women”.

We need robust action against websites based anywhere in the world, accessing the UK with illegal extreme pornography. Age-verification checks would ensure that children are significantly less likely to be exposed to pornographic websites, which have negative implications for their development and give an expectation that violence is a natural part of sexual relationships, with all this means for their behaviour. The terrible costs of not implementing Part 3 of the Digital Economy Act are evident. As has been said:

“It’s now easy to find content on the major porn sites of women being hung, strangled, suffocated, garrotted—and with ‘choking’ content often featuring on the front page.”


Moreover, on September 2019, the Journal of Criminal Law noted:

“Evidence suggests that the mainstream online pornography websites, while declaring such material as contravening their terms and conditions, continue to host such material”.


We cannot wait for the online harms Bill. Women up and down the country—[Inaudible.]

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness O'Loan Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness O’Loan (CB) [V]]

The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to

“pay … attention to public authorities’… power to grant … authorisations.”

It does not provide proper authorisation or audit.

The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:

“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.

The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.

As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.

The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.

As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.

Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness has gone well over the advisory limit of four minutes. Perhaps she will conclude her remarks there.

[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.

European Public Prosecutor’s Office (EUC Report)

Baroness O'Loan Excerpts

Thursday 19th March 2015 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I speak in this debate as a member of European Union Sub-Committee E, which was so ably chaired by the noble Baroness, Lady Corston. This report deals with a subject which has much exercised the committee over the past years as the heart of it goes to how the European Union and the member states thereof seek to control crime, and particularly fraud affecting the EU.

There can be little doubt that co-operation between member states and European institutions and agencies in the fields of justice and home affairs has resulted in significant achievements in the battle against crime. Eurojust, Europol and OLAF—the European anti-fraud office—have all played their role in fighting crime. While there are deficiencies which have been identified, there can be no doubt that co-operation in the processes of investigation et cetera has facilitated effective action. The sub-committee was aware that there is a problem of hitherto unquantified fraud on the EU’s finances and it published a report on this matter.

European Union law obliges both the European Commission and member states to combat fraud on the EU’s finances, but the onus to protect the EU’s financial interests falls mainly on individual member states because they are currently responsible for administering 80% of EU funds. We found that the EU’s anti-fraud system has a number of weaknesses. The Commission cites a figure of fraud worth €404 million per annum, but we felt it offered only a glimpse of the level of fraud perpetrated against the EU’s budget. Based on the evidence we received, we felt that the actual figure is around £5 billion but may be even more. There clearly is a problem and the proposal for the EPPO is one of the initiatives intended to address this issue, but it does not really address the problem. Rather, we found that it had the capacity to create major problems both within participating member states—as the noble Baroness, Lady Corston, said, the UK would not be one at present because we would exercise our right not to participate—but also in other member states because of the capacity of the proposals to interfere with the working of the two institutions which have been really useful in the fight against crime against the EU’s financial interests: Eurojust and OLAF.

An EU body to investigate and prosecute crimes against the EU’s financial interests was provided for in Article 86 of the treaty on the functioning of the EU, which says that any EPPO would be responsible for investigating and prosecuting and bringing to judgment the perpetrators against the EU’s financial interests and that it would be empowered to exercise the functions of prosecutor in competent courts of the member states. The noble Baroness, Lady Corston, has articulated what happened when that proposal came before the sub-committee. We published a report in October 2013 which suggested that the House challenge the EPPO proposal on the very considerable grounds of subsidiarity. The House approved that opinion, and 14 other legislatures reached similar views, causing the EU Commission to review its proposal. However, it was a cursory review, and in December 2013 the Commission indicated that it would proceed with its proposal. We therefore undertook the second stage of the inquiry.

We found many problems with the current proposal for the EPPO, and many potential difficulties for the United Kingdom in the proposed arrangements and the possible UK response to them. First, the potential workload of the EPPO would be absolutely overwhelming, given the range of crimes against the EU’s financial interests. Witness after witness gave evidence to that effect, and even the Home Secretary was clear that it was impossible for anybody to give the correct figure for such crime—a view shared by the British former president of Eurojust, Mike Kennedy. The UK could not legally respond to EPPO requests for assistance, giving rise to the risk that the UK would—as the noble Baroness, Lady Corston, said—become a safe haven for illegally obtained EU funds; there would be problems for non-participating states in that the proposal might affect the capacity of Eurojust to support all member states; the proposals for shared competence between the EPPO and the member states are unclear to the extent that they may be unworkable; robust and capable monitoring of investigations and supporting fast and efficient decision-making would not be possible; and there is no clarity as to the impact of the existence of the EPPO on OLAF.

At a time when the activities and costs of the EU are under significant scrutiny, when organised crime is becoming even more effective despite the massive resources poured into the attempts to control it, and when there is deep scepticism in some quarters about the benefits of EU membership—scepticism which I do not share—the committee has called on the Government to take effective action to ensure that the UK’s interests and indeed the interests of its colleagues of the European Union are not compromised, that very clear steps are taken both here and in the Union to ensure that before any EPPO is established there are very clear rules about how its shared competence will operate, and to provide for the situation in which we do not participate but must be protected against the adverse consequences which may result. In addition, the need to protect OLAF and the assistance currently received by the UK from OLAF and Eurojust is vital.

I therefore commend the recommendations of this report to Government for implementation. I welcome their response to the report, but urge them to accept all the recommendations, notwithstanding the lack of clarity about the proposal for the EPPO’s role and operation.

--- Later in debate ---

[Lord Bates]

These are important constitutional matters. I am looking across to the Benches where we have a distinguished constitutional academic and a distinguished former member of the Supreme Court, who may offer opinion, but I think I will slightly side-step the question.

Help is at hand.

[Baroness O'Loan]

My Lords, the proposal is that prosecutions will occur in British courts under British law. This is not a proposal that European law will be exercised in British courts, so the reservations of the noble Lord are not warranted.

[Lord Bates]

I could not have put that better myself.

Counter-Terrorism and Security Bill

Baroness O'Loan Excerpts

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.

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[Baroness Smith of Basildon (Lab)]

My Lords, it has been an interesting debate. I particularly want to look at Amendments 15A and 15C in the names of the noble Baronesses, Lady Lister, Lady O’Loan, Lady Buscombe and Lady Kennedy. This seems to be very similar to the debate we had earlier, and to the ones we had last week and at Second Reading, about how we define academic freedom and freedom of speech. My impression from listening to what the Minister has had to say in responding and from what I think he intended by his amendment—my noble friend Lady Lister made this point—is that this is about looking at those things together, as a whole. The noble Lord, Lord Pannick, I think, made the point that he took the Minister’s amendment—Amendment 15D—to incorporate academic freedom as well as freedom of speech. So our discussion here, in some ways, is not about the principle—I think the Minister has made clear his view on the principle of this—but about making sure that the detailed legislation is correct.

I must say that I do not agree with the noble Baroness, Lady O’Loan, about what the consequences of that could be. I do not think it would prevent a discussion of the origins of the Troubles in Northern Ireland or that it would have those dire consequences. However, the perception among some academics that it may do is quite worrying.

[Baroness O'Loan]

If a university has a group of people who want to hold a meeting, or if an academic wants to bring a speaker in, and the purpose is to challenge vociferously something which the Government have done, could that not conceivably constitute non-violent extremism? Could the university not, under the directions to be issued by the Secretary of State, find itself in a position where it has to determine whether or not it allowed that meeting to take place? That is all I was saying.

[Baroness Smith of Basildon]

It is quite a leap to say that a challenge to the Government automatically becomes something extreme. We are challenging the Government here today in terms of the debate we are having but, from what the Minister has been saying during this debate, that challenge to the Government is not being seen as extremism at any point. However, my noble friend Lady Lister made the point about the perception among academics of their freedom being curtailed. My noble friend was very clear in her comments about what she was seeking: to be absolutely clear in the Bill, or if need be in guidance, about that academic freedom and about the need, as quoted in the Education Reform Act 1988,

“to ensure that academic staff have freedom within the law”—

as was said earlier, all freedom of speech is qualified within the law—

“to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

I do not think, from what the Minister is saying, that he wants in any way to curtail that. This seems to be largely a technical point and one that, I hope, can be easily resolved. I hope he will address it in comments that he makes today. Perhaps he will be able to take it away and reflect on it or, indeed, ensure that it will be in guidance. However, some reflection on this point, which seems to me to be entirely compatible with his Amendment 15D, would be very helpful.

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[Baroness Hamwee]

I welcome the government amendments. In my clumsy way, I tried to deal with the issues raised by the independent reviewer about his remit and the new board at the last stage. The Minister referred to two of the five issues that the independent reviewer sought to cover, which I tried to cover at that last stage. I am flattered that he suggested that my Amendment 16A comes from my own interest and concerns about the Justice and Security Act and the disclosure of sensitive material, closed material proceedings, special advocates and all the rest of it, as well as my concerns about immigration and nationality law. I indeed have those concerns but I cannot say that this is a self-started amendment. I was asked to pursue the subject. The independent reviewer has made clear that he wants this. He does not seek to go beyond the counterterrorism area. I hope that the amendment is clear on that. His blog has already been quoted and I shall quote from it too. He wrote:

“It is however a shame that the Reviewer was not also given the opportunity to review the operation of other powers, including immigration powers, to the extent that they are used for counter-terrorism purposes. I have no evidence whatsoever that any of those powers is used in an improper manner. But in such a sensitive and secret area, it is as well to have the assurance that only independent review can provide”.

He continues by quoting from his report of last July, which said:

“More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s ‘dirty work’”.

I suggest my amendment because the independent reviewer has a holistic approach to this whole area. Individual case oversight and different reviewers, to which my noble friend has referred, while reassuring, do not meet the points that the reviewer has in his mind. He clearly looks at how the whole of counterterrorism legislation is operating and has ranged beyond the relatively narrow legislative remit that he has had in the past. Previously, I have heard him say that he is not seeking a turf war with other reviewers but, equally, he does not see these things in silos, which is why this amendment has come forward. I beg to move.

[Baroness O'Loan]

My Lords, I support the noble Baroness, Lady Hamwee. This amendment derives from the work of the Joint Committee on Human Rights in scrutinising the Bill. We took evidence from a number of people, including the independent reviewer. It was his recommendation about the major gaps in his function which should be filled which led to the creation of this amendment. I did not put my name to it to lead it because, in my innocence, I thought that there was a possibility that we might get to it earlier in the evening when I would be engaged in a committee. I have much to learn about your Lordships’ House.

As the noble Lord, Lord Ashton, rightly says, the independent reviewer had identified these major gaps. The Government have also accepted and recognised those gaps. I think that the independent reviewer has been looking at the whole architecture of counterterrorist legislation and has tried to ensure that there is—I do not like to use the word holistic—a complete, effective and standard-based approach to the review, which I do not think is provided by individual case-by-case judicial proceedings.

The opportunity here is simple and it would not add a great deal to the work of the independent reviewer were the Government to consider again this amendment. As the Minister has said, the office of the Independent Reviewer of Terrorism Legislation is very highly respected in the country. I have worked very closely with some of the predecessors of David Anderson QC and I know how very significant that work is.

We are just asking for two issues to be moved into the remit of the independent reviewer under this amendment. As the noble Baroness, Lady Hamwee, has said, the first concerns Part 2 of the Justice and Security Act 2013, which deals with closed material procedures. Those procedures apply in litigation, which very often is litigation that is seeking compensation in claims against the Government and other authorities, and where there is a problem that there is material the disclosure of which will be damaging to the interests of national security.

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[Lord Ashton of Hyde]

My Lords, I thank all noble Lords who have spoken. They were broadly in support—although I fear that we may not be able to persuade the noble Lord, Lord Butler, that this is a good idea. However, I will come to what the independent reviewer thinks of it later.

One thing that is important to say right at the beginning will answer, to a certain extent, the points made by my noble friend Lord Thomas, the noble Lord, Lord Butler, and some other noble Lords as well, about the information that the board itself will be able to see. We think that it is important that any individuals appointed to the board are provided with an appropriate level of security clearance; so the independent reviewer is cleared to see classified information—and, if necessary, the same will apply to members of the board. Of course, the independent reviewer has a great deal of influence on who is appointed to the board. The Home Secretary will work on his recommendation, although of course it is ultimately the Home Secretary’s decision. I think that covers most of the points made by my noble friend Lord Thomas. I am grateful for his support on that.

The noble Baroness, Lady Smith, mentioned what she said at Third Reading about communities—sorry, I meant what she said in Committee. Third Reading is on Monday; we go from week to week in no time at all. The present reviewer sees that issue. On the point about the board working under his direction and control, I do not see any reason why that should change. He will be able to use the benefits of the members of the board to continue with those areas that he wants to focus on. One reason we have removed the annual necessity for reviews, with the exception of the Terrorism Act, is that the independent reviewer will now be able to conduct thematic reviews instead of just purely linking them to individual bits of legislation. Again, I take the point about the relationships that he has built up over the years—including with foreign countries. As to him being chairman of the board and using board members as support, I do not see any reason why that should change, either.

There was talk about whether the secretariat would supply support and whether the members of the board will be there to provide advice or work for him. I think that both are the case. They will work under his direction and control, and he will also be able to appoint people who have particular skills in different areas that he can draw on. For example, he might be able to appoint someone who is—this was nearer to his original idea—a junior barrister who is appropriately security cleared. However, I take the point that one might not describe that in common parlance as a board, but the name is what we have. Several noble Lords talked about the label on the tin representing what is inside. On that subject, privacy and civil liberties are obviously important in connection with terrorism legislation. If you open the tin which is so labelled and see inside, “Chaired by and under the direction and control of the Independent Reviewer of Terrorism Legislation”, you would get a pretty good idea of what the board is about.

Moving on to my noble friends Lady Hamwee and Lady Ludford, I fear we will not be able to go as far as they want. We extended the remit of the independent reviewer and think that it is right to draw limits on that. I agree that a one-off review is not the same as a review by the Independent Reviewer of Terrorism Legislation. Equally, judicial oversight is not the same, but it is oversight and reassurance for each individual case on those closed material proceedings. It has value. At the moment, we have drawn the line where we have, for the reasons I said: mainly because of overlap and duplication. We think that the way we have done it at the moment concentrates on those—

[Baroness O'Loan]

How can there be duplication if the Government were to include Part 2 of the Act and appoint the independent reviewer to review it? There is nobody currently reviewing that legislation and there will not be for five years, so how can that be duplication? It will not avoid duplication but simply prevent review.

Counter-Terrorism and Security Bill

Baroness O'Loan Excerpts

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.

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[Lord Bates]

It could be. I do not know what was in their minds.

The pressure and stipulation that are contained even in the consultation document issued in December, which we went out to consultation on—sadly, I have then gone and pre-empted the consultation by assuring your Lordships that certain sections of it would not apply—are a much lighter touch. There is no question, none at all, of the Government telling people who to have on their campus, in their university or in their college to speak. All we ask is that they have systems and procedures in place by which they ensure that the people who come on to their campus—

[Baroness O'Loan]

I thank the Minister for giving way. Surely it is not the case that all the Government are asking is that they have some procedures; surely it is the case that under the Bill the Secretary of State will have the power to direct universities as to what they do, and therefore it is that power that makes a difference.

[Lord Bates]

On that element, the noble Baroness is correct; there is a power there. If you make it a statutory duty, there needs to be some element of saying, “Well, so what if they brush aside their statutory duty?”. What if they brushed aside their statutory duty on a whole range of things? We have talked about that: the Public Order Act 1986; the Protection from Harassment Act 1997; the Terrorism Act 2006, which talks about inviting support for a proscribed organisation or punishing statements encouraging terrorism or disseminating terrorist material; and the Public Order Act 1988, or “breach of the peace” law—these are all Acts that contain a duty. What if organisations fail to observe the health and safety Act, and an inspector comes and says—I realise that I have tested the House.

Counter-Terrorism and Security Bill

Baroness O'Loan Excerpts

Wednesday 28th January 2015 Lords Chamber

Amendments 104, 107, 109, 110 and 112 would provide that safeguard. Echoing the very powerful plea made by my noble friend Lord Judd, I hope that, despite the fact that the Government have made clear their disagreement, they will take seriously the concerns that have already been expressed, and which I am sure will be expressed again, and that, at the very least, the Minister will consider Amendments 105 and 115, which clarify the relationship between the new Prevent duty and existing duties to uphold freedom of speech and the principle of academic freedom. Acceptance of these two amendments, or something like them, would go a long way to meet the anxieties raised by many both inside and outside your Lordships’ House. Indeed, given all the assurances about not impinging on academic freedom, I cannot see any argument against doing so. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I have put my name to Amendments 104, 105 and 115, which seek to protect universities and other further and higher education institutions from being bound by this part of the Bill in the context of an academic function and protection of freedom of speech, and to Amendments 107 and 109, which seek to exclude from Schedule 3 to the Bill certain universities and other colleges in England, Wales and Scotland. I do not think that this provision applies to Northern Ireland. I hope that the Minister will correct me if that is not the case.

The Bill seeks to put the Prevent programme on a statutory footing and I suspect has a greater impact than the Minister is willing to recognise. I have read carefully the letter which the Minister wrote to Members on making universities subject to the duty, which included a lot of statistics in relation to the number of people convicted of al-Qaeda-associated terrorist offences. I make one observation in relation to those figures. They do not necessarily indicate that the students were radicalised at university. There is evidence of terrorist organisations using universities to develop young people to be significant terrorist leaders because terrorism requires not just snipers and bombers but leaders, managers, logistics, procurement and all sorts of things, and that is the kind of skill you can pick up at university, so I think the issue is much more complex than is suggested.

Looking at Prevent on its own, the definition of terrorism includes non-violent terrorism, as the noble Baroness, Lady Lister, said. I am a member of the Joint Committee on Human Rights and the problem as I see it is that these amendments are designed to address a threat to freedom of speech and all the consequences that would follow from that. I will speak of those consequences, in part from my experiences as a chair at a university, albeit an Irish university, and as a former university academic. I taught for 20 years in a university. During that period, we had several terrorist bombs. We lived daily with the terrorist armed threat, particularly in relation to our students who were members of the security forces and the police. It is profoundly important, as we contemplate the unintended consequences that might result from this clause, that we do not politicise our universities in a way which would make them the target of attacks such as that on Lee Rigby and other attacks, such as bombings and suicide attacks. I do not say that to be scaremongering, but because it is profoundly important that we recognise that the war that is being fought against democracy is a war which is changing its tactics. There is a lot of evidence that it will move much further on to our territory.

The function of a university in educating its students includes the provision of safe space in which students can debate and discuss very sensitive issues. My experience has been that, very often where issues are particularly sensitive, students can almost be afraid to engage with them. They need that space and the recognition that it is right to engage with these issues. I think of my experience in trying to teach constitutional law to students in Northern Ireland. One half of the class sat on one side of the room and the other half sat on the other side of the room and there was to be no meeting of minds about what I was trying to teach them. There was a terror of articulating any views lest that be taken back to somebody and consequences might follow. It is vital that students develop the confidence to address and to challenge issues, to test propositions, so that they can take a greater part in the debate within and without the university and, when they leave university, in constitutional governance.

That is where we are now in England, Wales and Scotland. We need people who have been exposed to challenging argument and have the capacity and the confidence to think and to articulate views which are the product of reasoned judgment rather than bias and prejudice. Although we may think we know what we are talking about when we speak of terrorism, some of yesterday’s terrorists are today’s world leaders. What does that mean for our understanding and what does it mean for those in universities who contemplate non-violent political action against democracies or systems of law in other countries which they are articulating in their own university? Are they to be regulated by the universities because they may be perceived as possibly supporting terrorism? How will the universities know the answer to that?

We have to ensure space in our universities for debates. The JCHR says in its report that,

“universities are precisely the places where there should be open and inclusive discussion of ideas. Broad terms such as ‘extremist’ or ‘radical’ are not capable of being defined with sufficient precision to enable universities to know … whether they … risk … being found to be in breach of the new duty”.

The JCHR talks of the inhibiting effect of the Bill as,

“lecturers and students worry about whether critical discussion of fundamentalist arguments, or of the circumstances in which resort to political violence might be justified, could fall foul of the new duty”.

The noble Baroness, Lady Warsi, spoke very articulately on the definition of extremism. It is not an exclusive definition. It refers to opposition to British values, including democracy and the rule of law, but it is not exclusive. Universities will have to work out what other values are included in this definition. Even the chief constable of the Greater Manchester Police, Sir Peter Fahy, has expressed concern that this will leave too much discretion to the police when they are trying to deal with very difficult situations. In effect, the Bill will force them to make decisions when they are conducting policing operations which are more political policy decisions than operational policing decisions. That analogy also applies to universities.

The National Union of Students, echoing calls by Universities UK and others, notes that any statutory guidance applying to universities needs to appreciate the particular freedoms of speech appropriate to an academic context, including allowing students and staff to speak freely on controversial issues. That needs to be retained in order to prevent the chilling effect on university campuses whereby people become wary of discussing difficult issues. Ignorance, prejudice, discrimination and unfounded fears can be the unintended products of restricting freedom of speech. Paradoxically, they can play their part in encouraging individuals to the cause of fundamentalism and even violence. We have seen that across the world.

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[Lord Bates]

My Lords, it has been an excellent debate, which I will reflect on. The noble Baroness should not be so pessimistic and think that we are not going to reflect on this or that the notes simply say, “Resist”. That might have been the case under the previous Government, of which she was a member, but in the enlightened spirit of co-operation that is now engendered in Whitehall, that is not the case here.

In introducing this amendment, the noble Baroness, Lady Lister, referred to the meeting that we had on 15 January. I am a born optimist—mine is the blood group “B positive”—and I take the view that if we explain and people understand what is actually in the provisions, they will feel less chilled by them. The meeting was very well attended—in fact, it was the best attended and most interesting Peers meeting that I can remember. Of course, it provoked a lively debate and I reflected very carefully on it. One of the outcomes was the letter that I chose to send out last night, which has been referred to by a number of noble Lords, who have pointed to the restatement of the fact:

“We are firmly of the view that universities’ commitment to freedom of speech means that they represent one of our most important arenas for challenging extremist views and ideologies”,

simply because of that; and that we fully support,

“the existing duty in the Education (No 2) Act 1986 on universities to promote freedom of speech”.

I went on to reflect on the point, which a number of noble Lords have referred to, about the practicalities of how that is done. As several noble Lords recognised, even Ministers might struggle in giving speeches 14 days in advance; that might be pushing it a bit too far. I said that certainly we wanted to make sure that the requirements were less onerous —although, given that we are in a consultation phase until 30 January, I did not want to prejudge what the outcome was going to be.

Let me make one point that I think goes to the heart of where we are in this debate. External Speakers in Higher Education Institutions is another bit of guidance, provided by Universities UK and in operation at present. It says that actions that institutions take might include:

“Requesting a script or précis from the speaker outlining what they intend to say and requiring them to sign an undertaking”—

we are not going that far—

“acknowledging that their speech will be terminated if they deviate from it … Briefing the chair in advance of the event, making clear that they have a responsibility to ensure that no speaker or other person present at the event infringes the law; this briefing could highlight the circumstances under which they must stop the event, issue warnings to participants on their conduct or request the withdrawal or removal by stewards (or the police if necessary) of the person(s) concerned”.

That is pretty heavy stuff. It is in Universities UK’s guidance for external speakers that is already in place and applies to the 75% of universities which are part of that element.

Before I make specific remarks on the issues that have been raised, I turn to the Prevent duty under Part 5. When people were having these freedom of speech arguments in the context of universities, I do not think that we necessarily envisaged the type of situation that we might now be in and the level of threat, which is severe, that we now face and which gives rise to this legislation. Under Prevent, as was in many ways acknowledged by the previous Government, as well as dealing with the law and prosecution, you must engage in discussion with these groups and challenge their views. That was where Prevent came from and that is where we are going. Schedule 3 provides that this will apply to local government, criminal justice—probation, prisons—education and childcare, health and social care, and the police but people are proposing that universities should be exempt. These might be areas where there is some difference. I am trying to be straight with your Lordships about where the differences might arise between us.

[Baroness O'Loan]

How does the Minister envisage universities engaging with these groups to help them to see the error of their ways—it was envisaged that they might go into communities and talk to groups—without in some way being at risk of breaching the guidance which is implicit in this draft law?

[Lord Bates]

I will try to go on to explain about the guidance to the noble Baroness. I recognise her academic experience, which is particularly relevant, in teaching constitutional law in Northern Ireland; that must have particular relevance to what we are talking about here, and I listen very carefully to what she has to say. We are not seeking here to curtail or limit but to say that the institution should have guidance in place. Particular individuals should be responsible, a bit like what is described in the Universities UK guidance, but the institution ought to have some procedures and safeguards, if only for good order on the campus, when these matters are being discussed or when controversial matters are raised.

Immigration Bill

Baroness O'Loan Excerpts

Monday 7th April 2014 Lords Chamber

Whatever the position is on that, it is very unlikely that any possible advantage to national security could begin to compensate for the indisputable reputational damage that such a measure would occasion and the damage, therefore, that it would cause to our soft power. Our amendment makes a modest enough proposal: a Joint Committee before we take this drastic step. I urge your Lordships to accede to it.

[Baroness O'Loan (CB)]

My Lords, I spoke on the first day in Committee but was unable to attend on the day this clause was discussed, as I was recovering from surgery. Nevertheless, as a member of the Joint Committee on Human Rights, I have put my name to these amendments because it is profoundly important that the Bill which comes to be enacted following your Lordships’ deliberations takes into account the issues which arise. As the noble Baroness, Lady Lister, has said, this would most effectively be done through the amendment of the noble Lord, Lord Pannick.

The outstanding issues have been graphically illustrated by the noble Baroness, Lady Lister, but I will refer very briefly to them. The Government have so far declined to provide any indication of the number of people whose citizenship was taken away from them while they were abroad, on the basis that they are all cases in which the information on which the Secretary of State relied was information which should not be made public. The Government say that they are “unable” to put the numbers into the public domain,

“for reasons of national security and operational effectiveness”.

However, I do not believe that the release of this number, or of many other numbers, will in any way impact on national security.

The Government also indicated in their response that it is anticipated that the new power will usually, and possibly always, be exercised on the basis of closed material. As noble Lords will recall, this is not a procedure which has commended itself to many and is one which carries with it the risk of unfairness. The Joint Committee remains concerned that exercising the power,

“in relation to naturalised British citizens while they are abroad … carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.

The first two amendments to which I put my name, Amendments 56ZA and 56ZB, therefore seek to ensure United Kingdom compliance with our international obligations and to ensure the adequacy of the safeguards against arbitrariness in decision-making by requiring that, if it is to be done,

“the deprivation of citizenship is a necessary and proportionate response to such conduct”.

The Joint Committee on Human Rights does not accept the Government’s argument that the clause is compatible with its international obligations to countries that have admitted British citizens whose citizenship is subsequently removed.

The Government assert that out-of-country deprivations of citizenship do not engage the European Convention on Human Rights because it does not apply extraterritorially other than in exceptional circumstances. However, the case which they propose as an authority for this view is by no means an authority for the broad proposition that the ECHR is not engaged by an out-of-country deprivation of citizenship that leaves an individual stateless, as the case itself did not concern a deprivation which left the individuals concerned stateless. Moreover, there have been cases involving extraterritorial jurisdiction. I point your Lordships to the East African Asians case, in which the UK was found to have breached the right not to be subjected to “inhuman or degrading treatment” in Article 3 of the ECHR when it removed the right of abode in the UK from British citizens. Were Parliament to enact Clause 60 as drafted, it would be the first measure adopted by the UK in recent years that gave rise directly to an increase in the number of stateless people in the world.

Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.

The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?

[Baroness Hamwee]

My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.

The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.

I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,

“a danger to the security or public order of the United Kingdom”,

will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?

I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.

The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?

Immigration Bill

Baroness O'Loan Excerpts

Monday 3rd March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, in moving Amendment 1, I shall speak also to Amendment 4. The group includes Amendments 2, 5, 6, 7 and 8 as well. This is a point at which I feel I should be instigating some sort of cabaret to retain your Lordships. Maybe a tea dance would be more appropriate for this company; I do not know.

Clause 1 provides for a new section to go into the 1999 Immigration and Asylum Act for the removal of persons unlawfully in the United Kingdom. It replaces the current Section 10 of that Act, which is headed, “Removal of certain persons”. That change is significant, and the new section would certainly give rather broader powers. Amendment 1, my first amendment, would require the Secretary of State to give notice of the removal, which should be in writing and give the date and time of the removal. At this stage, at any rate, I have referred to this as the “approximate” time in order to anticipate, and therefore not waste time on, an argument that a plane might be delayed. Talking about time without qualifying it was therefore inappropriate—that is not of course the point of this.

Amendment 4 is about notice to a family member, which new Section 10(6)(c) in effect makes optional. New Section 10 gives powers to remove the individual and family members who are not defined. None of the amendments in this group is about not removing persons who are unlawfully here, which is a different argument, but about who is to be removed and how. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the provisions not being in the Bill. We have of course already seen draft regulations. They are in the pack that my noble friend has arranged for noble Lords to see, which contains a whole group of statements of intent, regulations, codes, statements of fact and so on. I thank him for that. I forgot to take it home with me on Friday but I read it, or the right bits, before tabling these amendments.

The Delegated Powers Committee found it,

“difficult to understand why operational experience should have any effect on who is to be treated as a family member”,

and recommended that the definition in the draft regulations be placed in the Bill. That seems to be an appropriate provision. Draft Regulation 4 requires notice to be given to a family member facing removal, which reflects what is currently in the 1999 Act, but the Bill provides only that regulations “may” provide for that notice. I hope that the Minister can explain to the Committee why this should not be a requirement. It seems an absolutely fundamental point and other noble Lords will have seen briefing to the effect that it has been made by the judiciary as well.

There is also a draft regulation providing that the giving of notice invalidates any leave to enter or remain, in the case of the family member previously held, that is currently in Section 10(8). Again, why should safeguards currently in primary legislation not be included in the Bill?

There are always provisions about service of notices in the draft regulations, although I do not know whether they are usual. It may not be a point for debate in Committee today but I could not help noticing that the draft regulations provide for recorded delivery of the notice that requires signing for, but there is deemed service. There must be a risk, for instance, that someone else in the house will sign for receipt of notice of something that is crucial to the person who may not actually receive it. There are deemed service provisions elsewhere in the regulations.

Less technically perhaps, there are directions for removal ceasing to have effect if the family member ceases to belong to the family. Again, that is a current provision and it would be absolutely appropriate for it to be in the legislation. In the Commons Committee, the Minister gave a number of assurances. Of course I accept them, but Governments change, as sometimes do regulations as well.

I cannot recall if the sword of Damocles fell at the end of the tale, but I am concerned about how long it may hang—perhaps for a very long time—and whether it may hang at all over a family member who has a right to leave, enter or remain in the country in his or her own right. This group extends further than these two amendments. Although we may appear to be starting the Bill almost half way through the journey—in the philosophical as well as the practical sense—that someone seeking to enter or remain in our country will make, these are very important issues. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.

The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.