Counter-Terrorism and Security Bill

Baroness Sharp of Guildford Excerpts

Wednesday 28th January 2015 Lords Chamber

Moved by

[Baroness Sharp of Guildford]

103A: Clause 21, page 13, line 34, after “into” insert “activities which may lead to”

[Baroness Sharp of Guildford (LD)]

Amendment 103A is the first in a series of amendments relating to Part 5 of the Bill, which relate also to the Prevent strategy and its partner, the Channel programme. Part 5 seeks to make statutory for participants in these two programmes actions and duties that have until now been voluntary. That switch from co-operation to co-option raises a whole range of issues for those involved. The universities in particular are very unhappy, about both the threat to their autonomy and the conflict that this creates with their duties under other legislation to promote debate and safeguard freedom of speech.

The provisions in the Bill and its accompanying guidance also pose problems for other educational institutions: schools, further education colleges and sixth-form colleges, which provide for the younger—and arguably more impressionable—adolescent age group. Generally, there is considerable concern that these provisions may backfire and, far from helping to improve the present position, may well serve to make matters worse. To date, all these educational institutions have co-operated voluntarily and willingly with the Prevent strategy, accepting and developing it to suit their specific circumstances within the framework of their safeguarding policies. They worry that making these duties obligatory and pushing through this legislation with relatively little consultation will not only leave teachers and administrators with a considerable bureaucratic burden, but will also alienate those on whom those burdens fall as well as those whose activities it seeks to monitor.

In this context, Amendment 103A is a probing amendment; I am not suggesting that this wording is in any way appropriate. Essentially, it seeks to draw attention to the lack of clarity in the terminology used in the Bill and, in particular, in the draft guidance, which was issued alongside the Bill. The Bill itself is very careful to use the term “terrorism” and the duty specified in Clause 21(1) is,

“to prevent people from being drawn into terrorism”.

Clause 33 states that,

“‘terrorism’ has the same meaning as in the Terrorism Act 2000”,

which is a definition that has been around for some 15 years, so presumably the courts are reasonably happy with it. The definition of “terrorism” in the Terrorism Act 2000 relates to the “threat of action”, which involves violence against people and property, endangers lives, constitutes a serious risk to health or safety, or seriously disrupts an electronic system. It is less clear, and more subjective, what “being drawn into terrorism” —the words used in the Bill—means. The difficulty arises from the draft guidance that was issued.

The guidance makes it clear that the purpose of the legislation is,

“to exclude those promoting extremist views that support or are conducive to terrorism”.

In turn, paragraph 5 of that guidance defines terrorism as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

Further, those caught by Clause 21(1) are required to assess how far their students or pupils are at risk of being drawn, not only into violent extremism, but,

“non-violent extremism, which can create an atmosphere conducive to terrorism”.

An article in Times Higher Education suggested that that could apply to those using non-violent techniques such as sitting in a road to block the passage of equipment to be used for exploring fracking. As the Joint Committee on Human Rights pointed out, the terminology is so vague as to leave much discretion in the hands of the police and other members of the local panels being set up under Chapter 2 of this part of the Bill, whose task it is to decide whether those reported as being drawn into terrorism, or vulnerable to being so drawn, should be put on a support programme. I have a great deal of sympathy with the Association of School and College Leaders, whose briefing to us pointed out that the lack of legal certainty over definitions of terms such as “extremism” will make it extremely difficult for schools and colleges to know whether they risk being in breach of this new duty. The association remarks:

“A number of members had received the Prevent training in their schools and colleges, and while some found it helpful, others found that it was so vague in respect of what to look for that they felt even less confident about the duty after going through the training”.

It seems very difficult for us to impose these duties on such a wide body of institutions if there is such uncertainty over what this duty involves. I beg to move.

[Baroness Hamwee (LD)]

My Lords, Amendment 103B in this group is in my name. Widespread concerns have been expressed about Prevent becoming a statutory duty, and it has been suggested that Clause 21 be left out of the Bill. My preference would be for it not to become statutory, but I recognise that the Government have thought about that carefully and come to a view. I declare an interest as one of three joint presidents of London Councils, the umbrella organisation for the London boroughs. Like others, it is concerned.

I have two main, and rather different, points to make about the amendment. It would mean that the duty would not apply to any of the specified authorities—those listed in Schedule 3, and any more that are added,

“unless the Secretary of State has laid before Parliament a report regarding the operation of the duty”.

I shall come back to the term “operation” in a moment.

My first point is to ask whether imposing the duty is appropriate to all specified authorities, and for all the functions of those authorities. My second point is about funding, particularly in the case of local authorities. As my noble friend has said, authorities will have a statutory duty, as set out in Clause 21, to “have due regard”—and in talking about activities leading to terrorism, she has identified an important issue. My amendment would require each authority to be considered separately. The authorities are different, and they operate differently. That is why I have used the term,

“the operation of the duty”.

The scheduled authorities range from local authorities through a great variety of educational institutions, the police, prisons, health services and health service providers. Even if the duty is appropriate for a higher education institution—we will be paying a good deal of attention to that aspect today—is it appropriate for a primary school or a nursery school?

Of course, preventing people being drawn into terrorist activities is immensely important. However, I wonder whether our great arts institutions, which get a lot of public funding—although not as much as most of them would like—have more opportunity than a nursery school does to deal with this issue. A nursery school may have a responsibility, but it is a responsibility to make kids aware of the difference between violence and talking about things. That is much more important than closing off the issues.

I do not think it is enough to say, as I suspect the Minister may suggest, that there will be a proportionate light touch, because having the duty creates work and bureaucracy, and requires record-keeping. The Secretary of State will have the power to issue directions and, in the case of educational institutions, Ofsted will apply them. As has been suggested to me by some of those concerned—especially by those from the Muslim community, although my concerns are not limited to that—the records may then show that there is disproportionate criticism of schools in areas with a large Muslim population. That will give the alienating message—I believe “alienating” was the term my noble friend used—that we are concerned about.

I suspect that others will talk about the principle of applying a statutory duty to local authorities, as distinct from a function and a power, as has been the case, and would be the case. I want to ask my noble friend about services that are contracted out by local authorities, as many services are. If an authority is in the middle of a contract, it cannot change it; it certainly cannot change it unilaterally. How should it deal with that? New and renewed contracts would have to tie organisations into the new duty. That is in part why I have used the term “operations”, because I am unclear how this will work in practice.

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[Lord Harris of Haringey (Lab)]

My Lords, I am slightly bemused by this grouping because it contains two very different amendments. Both seek clarity but the second amendment, spoken to by the noble Baroness, Lady Hamwee, raises the issue of whether the operation of the various duties can be delivered, given the resources that have been made available.

The material produced by London Councils highlights my concern that the Government are underfunding what they want to do regarding counterterrorism. The concerns of London Councils are simply that, given the duties being placed on those councils—which will be magnified across the country in other local authorities—the sums of money that the Government propose to put aside for counterterrorism are inadequate. I am also aware that the money being made available to the police service is considered by many to be inadequate.

In a Written Answer sent to me today, the Minister tells me that it would be completely inappropriate to say what sum of money has been made available for the counterterrorism police network. That is a slightly puzzling Answer because the reality is that the sums of money flowing to the counterterrorism network, in practice, go though the Metropolitan Police accounts and end up in papers put before the London Assembly. The figures are ultimately in the public domain, although they might take a while before they emerge.

My understanding is that the counterterrorism police network has suggested that implementing what the Government expected would—given the current stage of threat—require something like an additional £30 million a year. Again, my understanding is that the sum of money being made available—although I appreciate that the Minister can neither confirm nor deny this because of the position he has taken—is rather less than that. In fact, my understanding is that it is less than one-third of the sum required. Therefore, clarity about whether it is practicable to operate and bring these matters to fruition is important, which is presumably the purpose of the amendment of the noble Baroness, Lady Hamwee.

The amendment of the noble Baroness, Lady Sharp, also seeks clarity on what people are trying to prevent. I have a feeling that she is widening the definition of what authorities are required to prevent. Asking them to prevent people being drawn into terrorism is one thing; asking them to prevent people being drawn into,

“activities which may lead to”,

terrorism broadens the definition beyond all recognition.

[Baroness Sharp of Guildford]

I should point out to the noble Lord that I said that it was merely a probing amendment and that the wording was not appropriate.

[Lord Harris of Haringey]

I am not criticising the noble Baroness and I appreciate that all Liberal Democrat amendments are probing amendments, because that is the nature of their position.

The point that I am trying to make—it would be helpful if the Government could clarify this—is that although there is a definition of terrorism, I suspect that the definition of activities “leading to” terrorism is much broader. That could draw some things into the definition because people then have to make a subjective judgment as to whether something is an activity that under certain circumstances, not necessarily present, might lead to terrorism. Some clarity from the Minister on that would be useful.

However, that does not alter the general point that the noble Baroness, Lady Sharp, highlighted, which is the importance of public authorities having a clear understanding of what they are required to do and what they are supposed to be preventing.

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[Baroness Hamwee]

My Lords, before my noble friend responds, I had degrouped that amendment from my, rather than from anybody else’s, amendments. In replying, my noble friend the Minister has relied a great deal on Clause 24 on guidance. However, that does not seem to me to justify the ability of Parliament to consider, authority by authority and function by function, the application of this duty, which is a much more significant duty—on that I am very much with my noble friend Lord Phillips—than the words “due regard” in everyday speech might suggest. If I were to see Hansard by the time we reach Clause 24 today I might think that my noble friend had given me quite a lot of material to press my amendments to that clause, because he has said an awful lot that supports what I am arguing should go on to the statute book. We will come to that, but I wanted to make it clear that my point is about Parliament’s role in this; it is not about consultation on guidance.

[Baroness Sharp of Guildford]

I thank the Minister for his response to my amendment and other noble Lords who have participated in this very interesting debate. It was supposed to be a relatively minor probing amendment to clarify the definitions and to make the point, which I think still needs to be made, that where there is not clarity in definition, it leaves a great deal to the judgment of those expected to implement these duties. That in itself poses problems, both for those in the process of implementing them and those who, perhaps further down the line or on the panel, will have to make assessments about those seen to be vulnerable to terrorism. And what does “being drawn into terrorism” mean? There are problems here for those who need to interpret the legislation.

We have had a much wider debate than just about definitions. It has been a very interesting debate about, as I said in my introduction, whether the Prevent strategy should be statutory. I am very much of the view taken by my noble friends Lord Phillips and Lady Hamwee, that in fact the subsequent clauses—24, 28 and 30—make the whole business of being statutory fairly rigorous.

The effectiveness of the Prevent programme, whether we need to review it, whether it is sensible that the programme should be statutory, or whether we should not continue to rely on the voluntary participation of the institutions are all questions that we will undoubtedly come back to, both later today and on Report. For the moment, I beg leave to withdraw my amendment.

Amendment 103A withdrawn.

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[Lord Hennessy of Nympsfield (CB)]

My Lords, I shall say a few short words in support of this group of amendments. I pay tribute to the Minister for the courtesy and care that he has brought to the conversations and for the correspondence that he has shared with several of your Lordships.

I declare as interests my professorship at Queen Mary University of London and my membership of the Royal United Services Institute Independent Surveillance Review. I have not been reassured about the practicalities of what the Government are proposing with regard to universities, on which I spoke at Second Reading, and I share the anxiety of many other noble Lords about freedom of speech within a university’s walls. I listened carefully to the Government’s case, but I am not persuaded that we need to shift from a voluntary approach to compulsion. By all means, strive to bring those universities which are laggardly up to the standards of the best; but we need to keep sharp what we already have—the scalpel of quiet, bespoke relationships between the authorities and the universities, rather than the mallet of legislation, however laudable the Government’s motivations in furthering the Prevent strategy.

I have to admit that the prospect of certain vice-chancellors being in the dock for contempt has a certain delicious attraction to it—although, I hasten to say, not my great friend and boss, the principal of Queen Mary University of London, Simon Gaskell. Universities must be very wary of overpleading that they are a special case—they genuinely must. None the less, the statutory road is not the path to take, as mapped out in Part 5 of the Bill. The defence of the realm is the first duty of the state—the first call upon the state—but here I think the state is in danger of overreaching and taking a step too far, even given the magnitude of the very real terrorist threats that we are facing.

[Baroness Sharp of Guildford]

My Lords, my name is attached to quite a number of the amendments in this group. I am not going to repeat the arguments that have been put very ably by other noble Lords. I merely add that it is vital that there is the opportunity for open debate and discussion of radical and extremist views in our universities and in other educational institutions in this country so that they can be challenged and the views refuted. It seems to me that the great danger in shutting down this debate is that it goes underground. It goes to the internet and social media, which we know are of vital importance in influencing those who are susceptible to these sorts of views. That issue is just as important for schools, further education colleges and sixth-form colleges with 15, 16 and 17 year- olds. If universities were to be excluded from this legislation, serious consideration would need to be given to the exclusion of other educational institutions as well.

[Lord Renfrew of Kaimsthorn (Con)]

My Lords, this has been a radical debate in the profound sense of getting to the roots of things. We have been talking about the open society and its enemies, and the Government have rightly identified the enemies of the open society as armed terrorists. But who are the friends of the open society? Clearly, we are speaking about free speech and academic freedom. I think that the Government, in seeking to constrain the enemies of the open society, are wrong if they take steps that constrain free speech and academic debate. The debate this evening has very much highlighted those difficulties.

The noble Baroness, Lady Kennedy of The Shaws, spoke of the difficulties of administrating these procedures if they were passed into law. They would indeed be difficult to administer in a university. I fear that they would not be very well administered in most universities if universities were invited to apply them, because the sort of bureaucracy that can develop in a university would be ill suited to the task. So I feel very strongly that another approach has to be found, and there is a very strong case for excepting universities, as has been argued so well. I declare an interest as a former master of Jesus College, Cambridge, and a former professor. Universities are places where free speech should flourish and should be constrained as little as possible.

This year is the 200th anniversary of the Cambridge Union Society. That may be a small matter in these grand considerations, but I cannot see how a society like the Cambridge Union Society could flourish with the constraints applied to it in the draft guidance, some of which were mentioned by my noble friend Lord Macdonald of River Glaven. Therefore, I very much support the amendment and I hope that the Government will give it very serious consideration, because very high principles are at stake and, indeed, at risk.

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[Baroness Berridge]

My Lords, Amendment 112E is in my name and I join the noble Baroness, Lady Brinton, in her reasoning for it. Clause 24(8) states:

“The Secretary of State must publish the current version of any guidance issued under this section”.

However, Clause 25(1) states that,

“the Secretary of State may give directions to the authority for the purpose of enforcing the performance of that duty”.

The directions will be known to the Home Secretary and to the body in receipt of them but there is no requirement for the wider public to be made aware of the nature of these serious directions that could curtail freedom of speech. One could predict that they might be the subject of a freedom of information request but these directions should be known wider than that. I agree with the outline of Amendment 112E that Parliament, in the absence of a written constitution, is the guardian of such liberties. Producing a report to Parliament enables the matter to be scrutinised. As a member of the Joint Committee on Human Rights, I believe that that committee could scrutinise the directions under this provision. This is a particular executive power that we exercise and it is appropriate that the provisions in Amendment 112E should be made.

[Baroness Sharp of Guildford]

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

[Baroness Lister of Burtersett]

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

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

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

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[Baroness Sharp of Guildford]

My Lords, I have added my name to Amendment 115C in this group. We have tabled this amendment because a number of organisations and members of the education profession have raised with us the issue of how far the provisions in Clause 28 will become counterproductive by destroying the relationship of trust between teacher and student. At their crudest, the duties being laid on the professionals concerned might be described as “snitching” on their pupils. The noble Lord, Lord Harris, who is not in his place at the moment, talked about spies in the camp as well as the perception of these provisions. I should like to quote from a recent edition of Times Higher Education:

“The draft legislation also proposes processes of referral for students considered at risk of succumbing to radicalisation. Universities will be required to train all staff who have contact with students to recognise what Brokenshire”—

the Minister in the Commons—

“called being ‘withdrawn and reserved, and perhaps showing other personality traits’. Where these traits are identified, the university must refer the student to a panel set up by the police and the local authority. The panel will oversee and administer a safeguarding programme which may include referral to the health services”.

There is obviously a balance to be struck here. We have all agreed in our debates that the Bill addresses serious problems, but there is also considerable worry that these requirements will destroy important relationships between teachers and students. The Association of School and College Leaders has talked about how the lack of certainty over the definitions of terms such “extremism” will make it difficult for schools and colleges to know with sufficient certainty whether they risk being found to be in breach of the new duty. The association states:

“The proposed powers to the Home Secretary, particularly with no parliamentary oversight, could have serious negative consequences for the curriculum and/or pastoral functions of schools and colleges”.

The association goes on to say:

“The implied duty to report children and young people ‘at risk’ to the police for referral to the Local Panels is problematic because schools and colleges may be unwilling to sacrifice relationships and trust on the basis of suspicion or may go to the other extreme and try to cover themselves by reporting every risk”.

These uncertainties and ambiguities will apply as much to other professions, especially those in the NHS and mental health services. There are real worries that making these duties statutory, instead of the present voluntary co-operation which gives room for judgment and flexibility, will result in a risk-averse and inflexible system which, rather than helping, has the reverse effect of alienating the students and making them more susceptible to extremist propaganda via the internet and social media. This is a very worrying issue which should be taken seriously. It strengthens the case for the implementation of Part 5 of the Bill being delayed until the authorities have had a chance to consult more widely and consider the possible unintended consequences of what is being proposed.