Data Protection Bill [HL]

Baroness O'Neill of Bengarve Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, as the last speaker before the winding speeches, I think it is my duty to be extremely brief, so I will try. We have had nearly 20 years of the Data Protection Act. We need this legislation because, if nothing else were the case, the United Kingdom will remain in the European Union on 18 May next year, which is the date of implementation of the new regulation, so we have to do something.

I will make a few rather sceptical remarks about the long-term viability of data protection approaches to protecting privacy. They have, of course, worked, or people have made great efforts to make them work, but I think the context in which they worked, at least up to a point, has become more difficult and they are less likely to work. The definition of personal data used in data protection approaches, and retained here, is data relating to a living individual who is identified, or can be identified, from the data. It is that modal idea of who can be identified that has caused persistent problems. Twenty years ago it was pretty reasonable to assume that identification could be prevented provided one could prevent either inadvertent or malicious disclosure, so the focus was on wrongful disclosure. However, today identification is much more often by inference and it is very difficult to see how inference is to be regulated.

The first time each of us read a detective story, he or she enjoyed the business of looking at the clues and suddenly realising, “Ah, I know whodunnit”. That inference is the way in which persons can be identified from data and, let us admit it, not merely from data that are within the control of some data controller. Data protection is after all in the end a system for regulating data controllers, combined with a requirement that institutions of a certain size have a data controller, so there is a lot that is outside it. However, if we are to protect privacy, there is, of course, reason to think about what is not within the control of any data controller. Today, vast amounts of data are outwith the control of any data controller: they are open data. Open data, as has been shown—a proof of concept from several years ago—can be fully anonymised and yet a process of inference can lead to the identification of persons. This is something we will have to consider in the future in thinking about privacy.

Moreover, throughout the period of data protection, one of the central requirements for the acceptable use of otherwise personal data has been that consent should be sought, yet the concepts of consent used in this area are deeply divisive and various. In commercial contexts, consent requirements are usually interpreted in fairly trivial ways. When we all download new software, we are asked to accept terms and conditions. This is called an end-user licence agreement. You tick and you click and you have consented to 45 pages of quite complicated prose that you did not bother to read and probably would not have understood if you had maintained attention for 45 pages. It does not much matter, because we have rather good consumer protection legislation, but there is this fiction of consent. However, at the other end of the spectrum, and in particular in a medical context, we have quite serious concepts of consent. For example, to name one medical document, the Helsinki Declaration of the World Medical Association contains the delicious thought that the researcher must ensure that the research participant has understood—then there is a whole list of things they have to understand, which includes the financial arrangements for the research. This is a fiction of consent of a completely different sort.

We should be aware that, deep down in this legislation, there is no level playing field at all. There are sectoral regimes with entirely different understandings of consent. We have, in effect, a plurality of regimes for privacy protection. Could we do otherwise or do better? I will not use any time, but I note that legislation that built on the principle of confidentiality, which is a principle that relates to the transfer of data from one party to another, might be more effective in the long run. It would of course have to be a revised account of confidentiality that was not tied to particular conceptions of professional or commercial confidentiality. We have to go ahead with this legislation now, but it may not be where we can stay for the long run.

Policing and Crime Bill

Baroness O'Neill of Bengarve Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

Moved by

[Baroness O'Neill of Bengarve]

At end insert “and do propose Amendments 24B and 24C in lieu—

24B: After Clause 26, insert the following new Clause—
“Public inquiries into police conduct etc: requirement for approval for termination or changes
(1) A Minister of the Crown may not terminate, or change the terms of reference of, a relevant inquiry unless—
(a) each House of Parliament approves a proposal laid by the Minister for the termination or change, and
(b) the chair of the inquiry consents in writing.
(2) In subsection (1), “relevant inquiry” means an inquiry under the Inquiries Act 2005 whose terms of reference include matters relating to police conduct connected with the press industry.”

24C: Clause 150, page 171, line 16, at end insert—
“( ) section (Public inquiries into police conduct etc: requirement for approval for termination or changes),”

[Baroness O'Neill of Bengarve (CB)]

My Lords, we have been on this terrain a number of times. I understand the Minister’s objection that there should not be a charge on public funds. Therefore, these amendments do not propose any charge on public funds that has not already been agreed by Parliament. I therefore think that that reason does not now hold.

We know that the status quo is unacceptable and that the form of press regulation that we now have is unstable and needs to be clear in supporting freedom of speech and the future possibility of democratic debate. That is a wider question and I will not go into the details here.

However, there is a second procedural issue which the Minister needs to address. When Parliament has already reached agreement, as it has on this matter, surely it is not acceptable to have a retrospective consultation. Consultation should take place before Parliament determines a matter. In this case, the consultation is retrospective. For that reason, we should not leave matters as they are. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I shall respond first to the point made by the noble Lord, Lord Pannick. He is right to assert that Sir Brian Leveson will be consulted formally in due course in his role as the inquiry chair before any decision is taken. The noble Lord also made a point about the cost and other issues that have already been addressed. Lord Justice Leveson said:

“Before leaving the Ruling, I add one further comment … If the transparent way in which the Inquiry has been conducted, the Report and the response by government and the press (along with a new acceptable regulatory regime) addresses the public concern, at the conclusion of any trial or trials, consideration can be given by everyone to the value to be gained from a further inquiry into Part 2. That inquiry will involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer than the present Inquiry which has not over focussed on individual conduct”.


On the point made by the noble Baroness, Lady O’Neill, about Parliament voting on part 2 of the inquiry, in fact Parliament did not vote on part 2; the inquiry was established by Ministers under the powers of the 2005 Act. Parliament voted on Section 40, but in this Motion we are talking not about Section 40, but about Leveson 2.

On the point made by the noble Lord, Lord Rosser, about the Government already deciding to abandon part 2, as I hope I have explained, we have not made a decision on this; we want to take a view on it as part of the ongoing consultation. It is five years since the inquiry was established and since the scope of part 2 was set. We think a consultation is needed before a decision is made on whether proceeding with part 2 of the inquiry, on either its original or its amended terms of reference, is still in the public interest. In response to the point from the noble Lord, Lord Pannick, as I said, we will consult with Sir Brian Leveson formally in his role as the inquiry chair before any decision is taken.

[Baroness O'Neill of Bengarve]

My Lords, I thank the Minister for her reply and other noble Lords who have helped illuminate the issue we recur to. The noble Lord, Lord Lester, is perhaps a little optimistic in imagining that IPSO is a model of self-regulation. Perhaps he meant to say a model of self-interested regulation. The point is that Leveson provides not regulation, but an audit of the standard of self-regulation. As we all know, IPSO has refused to have its process audited. Its so-called independent review of what it did was to terms of reference that it provided and funded by itself. Just as we think a free market requires companies that are—

[Lord Lester of Herne Hill]

I am sorry for interrupting the noble Baroness, but is she aware that the independent review was conducted by a very senior former Permanent Secretary?

[Baroness O'Neill of Bengarve]

I am aware of that and know him. I admire him and what he did in Northern Ireland. He is an admirable person. I comment just on the terms of reference.

Self-regulation is something anybody would concede can reasonably be subject to audit. We allow companies in a free market to proceed as they wish, but they have to have their accounts audited. It is no different when we say that a free press should also be willing to subject itself to proper standards of audit. That, in a sense, is the area of debate. We should be very careful to keep self-regulation distinct from audit.

Quality matters, as does Leveson 2. We will return to this terrain and I do not think this is the end of the story, but I will withdraw the Motion because it has one or two deficiencies we need to deal with. It is not at all adequate to imagine that we can deal with these matters by having a consultation after a parliamentary decision. That is essentially the reason why I feel strongly that this is not the way to go; however, I beg leave to withdraw the Motion.

Motion A1 withdrawn.

Policing and Crime Bill

Baroness O'Neill of Bengarve Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

Moved by

[Baroness O'Neill of Bengarve]

48: After Clause 26, insert the following new Clause—
“Inquiry into complaints alleging corrupt relationships between police and newspaper organisations
(1) Within one month of the condition in subsection (3) being satisfied, the Prime Minister must commission an independent inquiry under the Inquiries Act 2005 into the operation of the police complaints system in respect of allegations of corrupt relationships between the police and newspaper organisations.(2) The inquiry’s terms of reference must include, but are not to be limited to—(a) how adequately police forces have investigated complaints about police officers in dealing with people working within, or connected to, newspaper organisations; (b) the thoroughness of any reviews by police forces into complaints of the type specified in paragraph (a);(c) in those cases where a complaint of the type referred to in paragraph (a) led to a criminal investigation, the conduct of prosecuting authorities in investigating the allegation;(d) whether and to what extent, if any, police officers took illegal payment to suppress investigations of complaints of relationships between police officers and people working within, or connected to, newspaper organisations;(e) the implications of paragraphs (a) to (d) for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies, and recommended actions in that respect.(3) The condition in this subsection is that the Attorney-General determines that the inquiry, if conducted effectively and fairly, would not be likely to prejudice any ongoing relevant criminal investigations or court proceedings cases.(4) The Attorney-General must consider and reach a decision on the matter specified in subsection (3) within one month of this section coming into force, and if necessary must reconsider the matter each month until the Attorney-General is able to make a determination as set out in subsection (3).”

[Baroness O'Neill of Bengarve (CB)]

My Lords, this amendment is also in the names of the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer of Thoroton. The second part of the Leveson inquiry was promised by the former Prime Minister in order to investigate allegations of collusion—above all, corrupt collusion—between the press and the police. An undertaking was made to victims of press and police corruption, including those who had lost loved ones at Hillsborough and were then smeared, among many other victims.

The noble Lord, Lord Strathclyde, when he was Leader of the House, read out the former Prime Minister’s Statement on this matter to this House on 29 November 2012—almost exactly four years ago. He said:

“When I set up this inquiry, I also said there would be a second part, to investigate wrongdoing in the press and the police, including the conduct of the first police investigation. This second stage cannot go ahead until the current criminal proceedings have concluded, but we remain committed to the inquiry as it was first established”.—[Official Report, 29/11/12; col. 338.]

But there has been a shift, and the Government are apparently no longer so committed to Leveson part 2 happening once the criminal proceedings are finished. The noble Baroness, Lady Neville-Rolfe, answered a Written Question on Leveson 2 on 15 June this year. She wrote:

“Criminal proceedings connected to the subject matter of the Leveson inquiry, including the appeals process, have not yet completed. We have always been clear that these cases must conclude before we consider part 2 of the inquiry”.

So now it is just to be considered, not undertaken.

This is not what was promised to the Hillsborough families or to other victims of press and police collusion or corruption. In the light of the conviction of Mazher Mahmood, the findings of the Hillsborough Independent Panel, the finding that News of the World executives lied to a Select Committee and the apparent continuation of what we might, kindly, call business as usual at some larger newspaper corporations, I do not think we can say that we are sure that the need for Leveson 2 has diminished. The Hillsborough Family Support Group worked with the shadow Home Secretary, Mr Andy Burnham, to table an amendment to the Bill on Report in the Commons which would have recommitted the Government to going through with Leveson 2. It is that amendment that I have agreed to move today.

The Government could have begun proceedings for Leveson 2 weeks ago, when the relevant trials had finished. Doing so would help draw a line under Hillsborough, Orgreave, Daniel Morgan and countless other scandals involving both the police and the press.

I do not think this is a trivial matter. A commitment was made to Leveson 2; the victims want it; the public want it; and, for democracy to function well, we all need it. The Government should get on with what they promised in 2011 and 2012 and begin Leveson 2 now. I beg to move.

[Viscount Hailsham (Con)]

My Lords, despite the eminence of the noble Baroness, I hope the Government will be robust in resisting the amendment. I have one general principle about it. Over a long time in Parliament, I have been involved directly and indirectly with a very large number of inquiries; I have participated in some. There is a proportionality rule: is the likely outcome of the inquiry and the chances of its recommendations being implemented sufficient to justify the cost of setting it up and the bureaucracy involved? In the majority of cases in which I have been involved, the answer to that question is no, and I strongly suspect that this time the answer is no again.

All of us who have been in public life know full well that there has always been collusion between the police and journalists—certainly ever since I was first in the House of Commons, nearly 40 years ago. It is lamentable, but it has been the case. I doubt that anything else that will be turned up in this inquiry would justify the initial cost.

I have one further point. It is absolutely right that police officers who take money for supplying confidential information—that is, are bribed—should be the subject of criminal procedure. But that is also, in the generality of cases, true of the journalists. What we are dealing with when a journalist pays a police officer is a criminal conspiracy to do an unlawful thing.

Occasionally, there will be instances where the public interest is genuinely involved. But one thing I have noted in recent months and years is the unwillingness of juries to convict journalists for doing this, because quite specious claims of public interest are always invoked. In general, it is public curiosity, not interest, which justifies the process. I very much doubt that we will get juries to see the rightness of what I have been saying, so there may have to be another way forward.

I very much hope that the press industry—editors in particular—recognises the impropriety in the generality of cases of journalists paying police officers for information. The fact that juries will not convict for these purposes is neither here nor there. I would hope that senior journalists would incorporate into the contracts of employment with their journalists a prohibition on doing what I have just described, and that editors and proprietors would be willing to enforce that prohibition.

Reverting to my first point, I am sorry, but I cannot support the noble Baroness’s very eloquent submission to your Lordships’ House.

--- Later in debate ---

[Baroness Williams of Trafford]

The consultation finishes on 10 January. In terms of anything going forward, we will of course be informed and guided by the consultation and I would not at this point wish to put a timescale on the inquiry.

[Baroness O'Neill of Bengarve]

I thank the Minister for her reply. She suggests that we have yet to consider whether it is appropriate, proportionate or in the public interest to proceed with this amendment and that we should await the outcome of the consultation. That outcome is nicely timed to be rather too late for this legislation, where the proposed new clause fits very well. It has nothing to do with the commencement of Section 40 of the other legislation, so that one we can set aside. But this one is really a matter of honour for the Government. These were commitments made in public and there were real and identifiable victims, and while of course cost is an issue and the Government would perhaps wish to think about how to contain them, surely it is useful that some of the criminal cases that have been tried have actually done the work of finding out what happened in certain cases. The cost issue is not the same as it might have seemed in advance because some of that has already been sorted. I wish to test the opinion of the House.

Investigatory Powers Bill

Baroness O'Neill of Bengarve Excerpts

Monday 11th July 2016 Lords Chamber

Non-commencement changes government policy, breaks the cross-party agreement and betrays victims of press abuse. My amendments will not be put to a vote in Committee, but I intend to bring them back on Report unless the Government commence Section 40, as Parliament expected to happen last year. I commend my amendment to the Committee.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I support my noble friend’s amendment. She set out extremely clearly what is at stake and we should remember that at the other end of violations of privacy there are people who have their privacy severely intruded upon. The intruders are not the security services or a public authority but privately owned newspapers.

There is a rumour abroad that in some way Sir Brian Leveson’s recommendations were a challenge, an affront and an abridgment to freedom of the press. That is a mistaken view of the matter. Freedom of the press is not freedom to intrude in other people’s privacy. On the contrary, it is freedom not just within the law—we are talking about changing the law—but where victims have reasonable redress. At present, that is not the case because the heavy costs and risks fall on victims—even a worthy case may fail in the courts—and because, on the other hand, perpetrators have no incentive to apologise or be accurate. There has been a great deal of concern about the extreme inadequacy of the complaints procedures that IPSO has devised. I say that with hesitation because I suspect that they cannot really count as complaints procedures, given that violations are rarely reported adequately and lead to no consequences.

We need this protection for individuals and private lives, and it fits naturally into this Bill.

[Lord Lipsey (Lab)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Hollins. We should remember the agreement signed in 2015 with the full support of Parliament, and its three pillars: there should be a body to regulate complaints against the press that is based on Lord Leveson’s recommendations; it should not be compulsory for the press to sign up to those recommendations, but there should be certain disincentives to not signing up, such as in the treatment of case costs by the courts; and there should be a back-stop in the form of a royal charter for such a body in order to make sure that there was no backsliding.

If we are honest and look at those agreed aims of Parliament, how are we doing? We are doing badly. We have one regulator, Impress, which, as the noble Baroness said, is compliant and marching towards a seal of approval, but has no serious clients. We have another in IPSO, which falls far short—I emphasise “far short”—of the requirements of Leveson. It is dependent on those who regulate it, with its structure, rules, code, membership and funding all controlled by those it seeks to regulate. It does not provide assured redress for members of the public who have been mistreated, because its arbitration scheme is voluntary. It is confined, like its predecessors, to mediation, not regulation, and its procedures make it hard, if not impossible, to envisage that it would ever impose a big fine on a member. I do not want to impose on the patience of the Committee by going into great detail on any of these. However, I do not blame the chair of IPSO, Alan Moses, who has fought vigorously for a compliant IPSO; I blame the clients.

Having said that, there is still hope. The Government’s own Press Recognition Panel has to report to Parliament, perhaps in September, about how things are going, and it is bound to say that they are going nowhere. I invest more hope still in the fact that Sir Joe Pilling, a former head of the Northern Ireland department, has been commissioned by IPSO to look into its workings. We had a good example of the work of former heads of the Northern Ireland department in the report of John Chilcot last week, and I believe that Sir Joe Pilling is another good man who can do a good job.

However, just at this moment when things hang in the balance, the Government have chosen to take their foot off the pedal. It never occurred to Parliament for a single second—I was present during the debates, as were many noble Lords—that the damages sanctions would not be brought into force. To be fair, John Whittingdale has not said that he will not bring them into force, but that he is not currently minded to bring them into force. While that is his position—while it is thought that the organisation will get away without these incentives coming into force—the chances of fundamental change to IPSO that is greatly required are such as to compete adversely with those of a snowball in hell.

The IPSO non-compliant press is basing itself on the argument it has run throughout—that the suggested royal charter is a tool which could lead to parliamentary and political interference with the press. I happen to think that claim is far-fetched, but believes it. However, that is very much a side issue. The central issue is not the royal charter but whether we are to have a Leveson-compliant regulatory body or are we to have IPSO slipping back over time, as its various predecessors did, into complete impotence and ineffectiveness? In the absence of the sanctions envisaged by both Houses and all parties in Parliament, the whole dreadful saga that led to Leveson is destined, in time, to repeat itself, leaving ruined lives in its wake.

Investigatory Powers Bill

Baroness O'Neill of Bengarve Excerpts

Monday 27th June 2016 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, as the very last Back-Bench speaker I might not have much to say but I have one thing to say at the start: it seems rather a good day for this Second Reading because the Bill bears on UK national security. I therefore hope that, unlike some current Bills, it will still have adequate government support amid the political disarray. I am not sure whether the UK break-up party, formerly known as UKIP, would agree but there is just a chance that the UK has a future. Your Lordships will understand that I come from Northern Ireland, while several noble Lords here come from Scotland. We are worried that there is no such future. However, even in the event of break-up there will still be an interval after the current legislation expires in December during which the security of the UK remains a proper concern for us in this House and this Parliament—and thereafter, who knows?

The Bill comes to us after extensive preparatory work, which has been much mentioned. I, too, declare an interest as a member of the Royal United Services Institute working party that produced one of the reports before the parliamentary scrutiny began. However, further consideration is still relevant, because these are complex matters.

Like many noble Lords, I think that the fundamental architecture of the Bill is sound. There is good reason why the rights to liberty and security form a single right in the European convention and elsewhere. Liberty and security are inextricably interconnected and are matters that must be specified in ways that are mutually qualifying. It is also good to see the right to privacy—of course another qualified right—taken so seriously.

One of the reasons why it is so hard to draft good legislation in this area—and on this occasion I must congratulate the parliamentary draftsmen on the Bill and the excellent Explanatory Notes, which is something I do not often say—is that so many people start with quite obsolete views of what is at stake. Many people imagine that what has to be controlled and regulated is surveillance or intrusion or spying or, to use a well-known word that has been mentioned already, snooping, hence the populist phrase “snoopers’ charter”. That view is archaic. Of course there are still episodes of snooping and intrusion, but what we are trying to regulate in the era of big data is inference, and that is much harder. We are trying to regulate moves that enable inferences to be drawn.

It can be helpful to keep three rather simple questions apart. The first question is: are other people actually gaining access to private data about me? That is the sort of question that worries people, and the answer is usually not and, in particular, not to information that those other people are going to know is about me. The question perhaps reveals either a bit of paranoia or a bit of vanity, but it is quite common.

The second question is, “Can people gain access to private information or data about me?”, and the answer is that usually they can. They do not, but they can. Mostly, of course, they will not realise the data are about me. They can, and that is true not just of the security services but also of many others, and I will come back to that.

The third question is the one we are dealing with and is: may people gain access to data about me? It is only this third question that the Bill seeks to address, and then only with respect to a limited range of public bodies. It seeks to regulate the investigatory powers of the police and the security services assuming that possibilities of inference, and so of disclosure, have been multiplied by the new technologies. The Bill does not seek to regulate the same activities when undertaken by other parts of the state or by non-state actors, such as internet service providers or the media.

There are therefore parallel questions, and I want to raise one, which other noble Lords have also raised, about the media. Many of us have received briefings from the National Union of Journalists about special protection for journalists so that they do not have to disclose their sources and are protected from investigation. I understand very well the concern that this raises, and my noble friend Lord Colville spoke very eloquently about it just now, but I am worried about whether it can be effectively drafted. The Bill currently provides for two special cases of privileged exemption from investigation: for legislators and for legal professional privilege. Both are quite controlled exceptions. We can tell who is a legislator and who is lawyer and when a lawyer is engaged in the relevant discussions with a client. I expect that a claim for journalistic privilege may be tabled, and I wonder whether Her Majesty’s Government have thought about the issues that should be approached and the questions that should be answered. Is every blogger and tweeter a journalist? Other noble Lords have raised that question too. If not, where is the line to be drawn? Secondly, what protection would Her Majesty’s Government think appropriate to prevent the use of claims of privilege in cases where, unlike the Winterbourne investigation, there is no source but only fabrication? Does not freedom of public debate depend on the possibility of testing media claims? Does soft power too need to be accountable?

This is not the Bill to address these issues, but they need addressing. There is a need to address parallel issues about intrusion into private matters by non-state actors, including businesses and the media, that use these new and powerful forms of data analysis. I believe that the new data protection regulation that has finally completed its passage in Brussels is a rather superior document to the data protection directive on which our Data Protection Act is based. It is a pity of course that it does not come into force until 2018 and that we may not have the benefit from it.

My final word is on whistleblowing. Whistleblowing is not a matter of sending poison pen letters: good whistleblowing works when there are proper structures in which there is a confidential intermediary who receives the whistleblower’s message. The media are not the people to handle good whistleblowing. We need, on the contrary, to require major institutions to have proper whistleblowing structures. Some do and many do not—it could be done.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Baroness O'Neill of Bengarve Excerpts

Monday 23rd March 2015 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Butler, has partly stolen my thunder: I, too, was going to raise the issue of the monitoring body. Like all the speakers so far, I would like to thank the Minister for the care and attention with which he listened at Committee and Report stages to the issues raised. Many of the changes to the guidance are greatly to be welcomed, particularly the addition of a glossary. Although, as the noble Lord, Lord Hannay, said, we still do not have a definition of non-violent extremism, an attempt at that is made in the glossary. Obviously, I think that we would all like to go further and know what the Government’s intention really is in understanding non-violent extremism—because, as the noble Lord, Lord Judd, said, there is clearly an issue about ensuring that we still have free expression and that universities are able to deal with that. A lot of the changes have toned down the language from previous versions, so we are talking about “relevant” and “appropriate” bodies and people, not simply all academics and everybody associated with higher education institutions.

That is very much to be welcomed, but, like many colleagues, I think that there is still an issue of when we are likely to see guidance on counterextremism. As the noble Lord, Lord Hannay, rightly says, it needs to be dealt with carefully and should not be rushed by the next Government and the next Parliament. Can the Minister reassure us that what he said at the outset will indeed be in place and that government proposals will come back to Parliament to be debated on the Floor of both Houses, as this guidance has done? That is hugely important. We welcome this opportunity today, but it would be extremely detrimental if further counterextremism proposals came forward in the next Parliament on which we did not have a say.

[Baroness O'Neill of Bengarve (CB)]

My Lords, would the Minister be willing to consider that the Prevent duty might be well entrenched by preventive measures such as requiring a recording of visiting speakers’ presentations? It is such a normal feature of university life that one is requested to agree to a recording for the intranet, a podcast or whatever. It would mean that there would be a record and that matters could proceed with a lighter touch.

[Baroness Tonge (Ind LD)]

My Lords, I have not spoken previously on this matter, but I just want to draw the Minister’s attention to the fact that Southampton University is organising a conference on legal issues surrounding Israel and Palestine, the two states, in the middle of April and is under intense pressure from the Israel lobby to drop it on the grounds that it will be anti-Semitic. Will he comment on this—or could he, in the interests of freedom of speech and particularly freedom of expression in universities, help Southampton University in this matter?

Counter-Terrorism and Security Bill

Baroness O'Neill of Bengarve Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Williams of Crosby (LD)]

My Lords, my noble friend Lord Bates has done an amazing job in inching this legislation slowly towards becoming a bearable and acceptable piece of law. However, we are not there yet. I put on record my thanks for my noble friend’s two amendments. One of them still awaits greater clarification. I am still not clear what the hierarchy is of, in particular, “due” and other kinds of regard. It is important that that is made clear. In doing so, I hope that my noble friend will recognise—as I am sure he will—that the heart of university education lies in academic freedom. Therefore, it is not one of a number of considerations but at the very centre of what it is to have a free system of tertiary education. My noble friend can get there but we need another little heave before he does.

The second thing I thank my noble friend for is the movement towards making sure that the so-called guidance is subjected to parliamentary consideration. We all appreciate that very much, not just because it helps to make the guidance itself clearer and reflect the experience of Parliament but because it is essential in dealing with terrorism that we bring into the pattern the greatest possible commitment by Parliament and all parts of university, not least including students. I will talk a little further about that later. At this point, I simply contribute the thought that it is critical that Parliament should be a significant part of the whole of this legislation so that it can exercise its wisdom, experience and commitment. Secondly, as we discussed, I hope my noble friend, for whom I have a great deal of respect, will recognise that academic freedom is not one of a number of priorities but the central one.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I add my voice to these questions about the guidance that may be issued. I very much welcome the fact that such guidance would have to be approved by both Houses before it came into force but we have heard about one sort of guidance which raises particular fears for anybody who cares about freedom of speech or academic freedom.

I must declare an interest. Yesterday evening, I was a visiting lecturer at Canterbury Christ Church University, speaking on an extremely dangerous topic: freedom of expression. I distinguished different conceptions of freedom of expression and had a very engaged audience who had a great deal to say and came from many directions. Now, I said the other day in our debate that I am not one of those lecturers who always has her full text available in advance. I give too many visiting lectures in the course of a year—probably about 40—for that. At that rate, as this is an ancillary, unpaid activity, I cannot be held responsible for producing text at some defined moment such as a fortnight ahead. I would simply have to give it up. I hope the Minister realises how much of the intellectual life of our country flows through visiting occasions—seminars, lectures, panel discussions and the like—in and also beyond universities for which providing prior texts is just not feasible.

I have a definite point to make here. The first arguments about freedom of expression—which we then called freedom of speech or freedom of the press in this country—opposed the idea of prior restraint. The former Member of Parliament for Hull, Mr John Milton, put this argument admirably in the mid-17th century in his great work, Areopagitica. Prior restraint is what he called “licensing” and “misdoubt”. Can the Minister give the House an undertaking that we will not get into prior restraint, thereby taking British values back to where they were in the middle of the 17th century, if not further? Without prior restraint, some things can go on. It is not enough but I think the House would probably welcome an undertaking from the Minister when he winds up that prior restraint will not be one of the methods by which guidance is imposed.

[Lord Lamont of Lerwick]

My Lords, I will be extremely brief but I support the very powerful speech made by my noble friend Lord Deben. I was actually in the audience when he and Kenneth Clarke debated with Sir Oswald Mosley. I remember shouting out some rather abrasive heckles at Sir Oswald Mosley and getting a rather rude reply. My noble friend was absolutely right in what he said: the meeting demonstrated very much the shortcomings of the arguments put forward by Sir Oswald Mosley, and the British movement before the war as well.

I have one or two points about the guidelines. I know we will come to an amendment on them later, but given the way that this House works I suspect a lot of future debates will get collapsed into this particular amendment. As I said earlier when I intervened rather rudely on the Minister, what particularly bothers me is this whole concept of non-violent extremism. I listened to his answer but, to be honest, did not really feel that it really met the point—I will study it very carefully in the Official Report tomorrow in case I missed something.

The point I addressed particularly was about this meeting where I spoke, along with the editor of the Sunday Telegraph, at Queen Mary college in London. The meeting consisted entirely of Muslim students, a large number of whom made it very clear that they did not support terrorism or violence but wished to dispute the basis of western democracy and elections. They preferred a more consultative process—shura—rather than western democracy, and I and the editor of the Sunday Telegraph argued with them. I believe that it was a good thing to hold that meeting openly, on the campus, and have that thoroughly aired. At the end of the meeting, some expressed some sympathy with what was said and some did not. However, I do not believe for one minute that it would have been right to ban such a meeting. That seems to be an example of exactly this phrase, “non-violent extremism”. We should be careful here. As the noble Baroness, Lady Deech, said, so many things restrict freedom of speech in this country already.

There are many things in the guidelines that I think are open to argument. The noble Lord, Lord Morgan, highlighted the talk of “pathways”. That struck a chord with me, because there is a sentence about,

“intervening to stop people moving from extremist (albeit legal) groups into terrorist-related activity”.

How, precisely, is one to stop people moving from a legal group into something that is illegal? There is also the sentence:

“Islamic extremists specifically attack the principles of civic participation”.

That relates directly to the meeting that I attended at Queen Mary college in London—and I would say it was a very good thing that we discussed whether to participate or not to participate.

Various people have commented on the guidance for speakers at universities, and stressed the point—I shall not make it again—that it is most unlikely that speakers will have a full text. I gave a lecture at a university last week, and I shall not disclose, for fear of offending the university, how late I left the preparation of my remarks.

The guidance also mentions:

“A system for assessing and rating risks”.

If ever I heard of a box-ticking exercise, it is “rating risks”. Are people going to give someone seven out of 10 because he is more dangerous than someone who only gets five out of 10? This, I am afraid, reminds me of the FSA—or the FCA, as it now is—which thinks that it will somehow prevent a financial disaster if risks are rated on a scale of one to 10.

Lastly, there is the point that my noble friend Lord Renfrew raised last week in an intervention on the Minister, when he asked, “What about societies at universities, as opposed to universities themselves?”. If my recollection is right, and if I heard the Minister correctly, I think he said that there would be no problem with societies. However, the guidance document contains a whole section on “Student unions and societies”, in which we are told that they must have regard to who comes to speak to them, what the speaker’s platform is, what supervision there is to see that people can be allowed to challenge them, and so on. There are even phrases about “managing prayer … facilities”. Why should prayers be managed by some sort of authority? This all seems to me far too intrusive, and I would be grateful if the Minister gave the assurance that a lot of these things will be looked at—and, I hope, dropped.

Counter-Terrorism and Security Bill

Baroness O'Neill of Bengarve Excerpts

Wednesday 28th January 2015 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I rise as the last member of the Joint Committee on Human Rights—a long cast of players—to make representations in relation to this amendment. As noble Lords will be aware, the Joint Committee’s report recommended removing universities from the ambit of the Bill. However, I take on board the points made by the noble Baroness, Lady Sharp, about those in institutions for 15, 16 and 17 year-olds. I am grateful to the Minister for continuing to engage with the Joint Committee on Human Rights since we published our report. I have no doubt that what was presented to us was that there was a problem going on on campus, with certain groups holding extremist ideologies being given a platform and not being challenged on their views.

I wish to build briefly on the points made by the noble Lord, Lord Macdonald, in relation to the ambit of the criminal law here. Our response to some of these problems has obviously been to take terrorism offences and expand the ambit of the criminal law further and further down to preparatory-type offences, which we never would have envisaged 20 years ago. For instance, Section 1 of the Terrorism Act 2006 concerns the encouragement of terrorism. Section 1(1) states:

“This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences”.

Offences such as that are designed to go further down the chain and to catch preparatory-type offences. That offence might just apply to printed published statements. I have not had the time to double-check that.

If one remembers that one adds on to all these preparatory offences the group of offences called “inchoate offences,” which are attempting to do that offence, conspiring to do that offence or inciting to do that offence. That takes the ambit of the criminal law a long way down in terms of the statements that we are talking about in this House. It has not been made clear to us what views this is aimed to prevent being expressed on our university campuses that are not within the realm of free speech, as offensive and as contrary to British values as some of us might think those views to be, but are outside the ambit of the extensive criminal law.

Finally, in relation to the point raised by the right reverend Prelate, I had assumed that religious institutions were somehow caught by the definitions of educational institutions. It is noteworthy that General Synod has an exemption under the Bill. In relation to the trust that has not been built up, perhaps because this is fast-track legislation and there has not been extensive consultation, somehow there is now concern among some in the church community that Clause 21 would require the vetting of speakers at carol services that take place on university campuses. I am not sure how one gets from Clause 21 to thinking that that might be a risk, but it indicates to me that more trust needs to be built through consultation if we are to have a clause of this nature.

[Baroness O'Neill of Bengarve (CB)]

I declare two interests, one as chair of the Equality and Human Rights Commission, which is thinking a lot these days about the right to freedom of expression and the challenges to it, and as a university teacher of some 40 years who has quite often not had her lectures drafted very much ahead of having to deliver them. That is a reality of academic life. I heard what other noble Lords have said about the ways these clauses could be counterproductive, but what is missing is positive thought about the ways in which universities have, not always with success but often, opened the minds of their students and countered radicalisation by the only long-term, effective method which is to discuss juvenile claims, hopes and aspirations that reveal hidden horrors within them. It is only speech that can defeat evil speech, and I hope that we will give far more thought to the positive measures that universities can take before we try in such an abstract way to construct forms of regulation that are likely to provoke what they seek to prevent.

[Baroness Smith of Newnham (LD)]

My Lords, I am also an academic who tends not to write speeches in advance. I had not planned to speak this afternoon and I did not speak at Second Reading, but I feel it is important to mention something I did last summer which fits very much with one of the anecdotes we heard earlier from the noble Baroness, Lady Buscombe.

I was doing a training session for parliamentarians from another country, a private event, and I was trying to explain to them the merits of the legislative process in the United Kingdom. After a while, one of them said, “I know what we need to do; we need a revolution”. I said, “Could you explain what you mean?”, thinking it was a term of speech. No, they really meant that they wanted to overturn their Government. Clearly, I was not in any way trying to incite terrorist or any other activities to overthrow the state, and I was slightly afraid that if anyone had been listening in, they would have thought that I was leading the wrong sort of class.

If we are engaged in free speech in universities, things can happen. There can be discussions and the idea that somehow the Government should be trying to impose duties on academics to say in advance what they are going to say, and to censor in advance what outside speakers are going to say, is very malign. I am very supportive of the amendments, and like the noble Lord, Lord Pannick, I am not opposed to Part 5 and Schedule 3 in total. For local authorities and other organisations that are clearly state organisations, imposing a duty may be appropriate, but for higher education institutions, it is fundamentally wrong.

Immigration Bill

Baroness O'Neill of Bengarve Excerpts

Thursday 3rd April 2014 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, I have enormous sympathy with the intention of this amendment. It is entirely wrong that local people in particular, but also many other people resident in this country, should be bypassed in the recruitment process and not even have the opportunity to seek work. I declare an interest as chair of the Equality and Human Rights Commission already referred to. We have done some work in the past on the meat-processing industry, where such practices were found—not prevalent, but found. We intend also to do some work on the cleaning industry.

However, I am not sure that the amendment as it stands will address the problem adequately. That is to say, it refers to recruitment agencies located in this country. It could very readily be bypassed simply by subcontracting with recruitment agencies elsewhere. Also, there are occasions where we wish to enable employers to recruit overseas exclusively. Think of schools that seek native speakers to teach French. They probably want to be able to advertise in France, to French students, and we do not wish to prohibit that. I will just echo the point that, if the Minister thinks something can be done, it will not be through this amendment as it stands. However, the avoidance of both unfair discrimination and the appearance of it is surely an important issue.

[Lord Taylor of Holbeach]

My Lords, I am pleased that the noble Lord, Lord Rosser, has brought this back, and it has been very useful to hear from the noble Baroness, Lady O’Neill of Bengarve, about her take on this issue. She raises some of the subtle things at the edge of any blanket restriction that might be made.

I said right at the beginning when we debated this issue in Committee that the Opposition and the Government are not very far apart at all in this area. It is a matter of time and place rather than the detail of the amendment. I think the noble Lord, Lord Rosser, accepts that the amendment may not be quite perfect. I cannot commit to come back on this issue at Third Reading. There is likely to be an announcement very shortly on this whole issue, so it would be more appropriate to wait until that announcement has been made, as it will make clear what the Government’s position is. I do not think that the Opposition or any other noble Lords will find themselves very far from the Government on this issue.

To look at where we are, the Government are committed to protecting the rights of UK workers. We have said that, and as I said in Committee, the Government have already taken tougher action against abuse of the national minimum wage, both as regards its enforcement and by increasing the financial penalty for breaches. We are taking a more robust approach to the employers of illegal workers, including through a doubling of the maximum civil penalty to £20,000, which has now been approved by both Houses.

We are ensuring greater collaboration across Government to increase our “enforcement reach” and the range of sanctions that can be brought to bear against exploitative employment practices. Furthermore, the Government have commissioned a report by the Migration Advisory Committee into the causes of low-skilled migration and its social impacts.

That is why we are trying to look at the bigger picture. The amendment identifies a particular problem—and I acknowledge that it is a problem—but there is a bigger picture: why is so much of migration into this country in low-skilled jobs? We know that the social impacts of this cause concern across wider communities. We are taking action to prevent abuse of our public services and benefits systems by migrants, including those who come from the European Economic Area. As I have said previously, employment levels have risen, since this Government came into office, by 1.3 million, of which 78% is accounted for by UK nationals. However, I recognise there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe, and subject their workers to exploitative conditions. We have to acknowledge that.

We are sympathetic to the intentions behind this amendment but, as it stands, it would not achieve its aims at all. It will need very careful review because an agency could evade its scope and be in the clear simply by signing up a single UK recruit. That will not address the problem which the noble Lord has brought to the attention of the House. The ordinary residence test is very weak and easy to pass. However, more does need to be done to tackle such unfair recruitment practices, a view which I think noble Lords generally share. Ministers are actively considering how best to protect British workers from this type of discrimination and, as I have said, the House may expect announcements to be made very shortly on this issue. In the light of the points I have made, I hope the noble Lord will agree to withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Baroness O'Neill of Bengarve Excerpts

Tuesday 14th January 2014 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I wonder whether the Minister could address the case of the adult child of a tenant who is away at university but whose place of permanent residence remains the family home and who gets involved in a riot—a serious matter—in or near the university. Would it be the case that in those circumstances the parent stands to lose their tenancy?

[Lord Elton (Con)]

If your Lordships will permit a latecomer—almost an interloper—to ask just one question, would my noble friend be kind enough to tell me what exactly is the definition of the members of a household? I take it that it includes anybody who has been given or lent a room at the time. Would it include anybody who is paying the tenant for a room? It would obviously not include anybody who was paying the landlord for a room. In other words, is there any necessity for there to be a familial or emotional connection, or any other close connection, with the other members of the household?