Immigration: Students

Baroness Sharp of Guildford Excerpts

Thursday 25th February 2016 Lords Chamber

Asked by

[Baroness Sharp of Guildford]

To ask Her Majesty’s Government what consideration they have given to removing international students from the net migration figures by including them as non-immigrant admissions, as is done in the United States.

[Baroness Sharp of Guildford (LD)]

My Lords, in introducing this short debate I declare two interests: I am an honorary fellow of Birkbeck College and I am the treasurer of the All-Party Parliamentary University Group. I should also say that I am looking forward enormously to hearing the maiden speech of the noble Baroness, Lady Brown of Cambridge, whose very distinguished record in science, technology and universities precedes her.

Net migration figures into the United Kingdom quite rightly reflect the flow of all those who come into the United Kingdom within a certain period of time—usually a year—minus the flow of those who leave. The Office for National Statistics, which is responsible for compiling these figures, uses the UN definition of “migrant”, which includes all people who move into the country for a period of 12 months or more, regardless of the purpose or permanence of their stay. On that basis, all students coming to study in the UK for more than one year are counted as immigrants. Likewise, all those who leave at the end of their studies are counted as emigrants.

International students are of very considerable benefit to the United Kingdom. They pay fees for their university tuition and accommodation, and UUK reckons that, together with off-campus spending, each student brings something like £26,000 a year to the United Kingdom economy. Indeed, the Government reckon that export earnings from overseas students amount to currently something like £25 billion, and the Autumn Statement suggested an ambition that this should grow by 20% to £30 billion by 2020.

There are also longer-term benefits. For example, a recent study from the Department for Business, Innovation and Skills found that more than 80% of the students who had studied here retained personal and professional links and had an increased appreciation for, and trust of, the United Kingdom. In other words, that soft power is very important as well as the actual money that they bring in. For all these reasons, it is very much to the UK’s advantage to encourage as many international students as possible to come to this country.

Problems, however, arise on two scores. First, in so far as the number of students coming to this country from overseas is increasing, we would expect that over that period more would come in than would leave, and that this would be reflected as a rise in net migration. Indeed, given the 20% increase in non-EU students projected in the Autumn Statement, the estimates written into the detailed documents accompanying the Statement projected an increase of 7% in student numbers for 2016-17 and 2017-18. This would amount to an extra 20,000 students each year, adding potentially an extra 40,000 to the net migration figures over these two years.

This, in itself, would not matter, if the Government had not at the same time set themselves a target for reducing net migration to below 100,000 from its current total of more than 300,000. In pursuit of this target, the Government have been tightening up the regulations on student visas, and many universities are complaining that, far from increasing, the number of new entrants is actually falling. Indeed, according to the latest figures, there has been a drop of 3% in new entrants for courses and, in particular, the number of students from west Africa and the Indian subcontinent is down.

The universities are particularly unhappy with the regime of “credibility interviews” instituted by the Home Office since 2012, whereby students, having applied for and received their certificate of acceptance by the universities, and then having to apply for a visa, are further interviewed by Home Office officials, often by Skype, to assess whether they are bona fide students. This is far from a small, random sample; in 2014, 125,000 credibility interviews took place and the total number of entrants was 174,000. There was also a sizeable increase in the number of visa refusals.

Research by the UK Council for International Student Affairs reveals that Home Office officials are making judgments well beyond the agreed terms of such interviews, often countering the university’s own assessment of academic potential on a seemingly random and inconsistent basis. But since those who conduct the interviews are not required to keep records of their reasons for turning down a visa, there is, at present, no recourse on these judgments. The overall result, far from encouraging overseas applicants to apply to our universities, drives them into the arms of our competitors, the USA, Canada and Australia, all of which, like the UK, are seeking to increase applicants from abroad.

On the face of it, there are two wholly incompatible strands of government policy: on the one hand seeking to increase overseas student numbers and, on the other, seeking all possible ways to cut net migration numbers. Universities are keen to expand the intake of students from non-EU countries—they bring, as I have said, substantial income both to the university and to local business, and many taught graduate programmes are dependent on recruiting overseas students. But inevitably, expansion in overseas student numbers increases net migration and results in tighter and tighter controls over the issuing of student visas, with the UK appearing more and more unwelcoming to overseas students. The one policy totally contradicts the other.

Others besides me have suggested treating students as temporary migrants and separating them from the net migration figures. The Government have resisted that on three grounds. In the first place, the ONS is obliged to use the UN definition of migrant. Secondly, students, even if temporary migrants, use public services and in this sense are in no way different from other migrants. Thirdly, the International Passenger Survey suggests that many students do not return when their visas expire and are therefore not temporary migrants.

I will return to the first of those, the UN definition, in a moment, but I will deal briefly with the other two issues. Most students are young people who make relatively little demand on public services and are in any case now required to pay an NHS surcharge. As we saw earlier, far from being a burden, they contribute substantially to the UK economy and in the long run very substantially.

In relation to the IPS, there is much controversy over its validity. There are good figures because of visas and university registrations for new entrants, but although attempts are being made to collate exit records, these are as yet in their infancy, which is why reliance has to be placed on the IPS. Even the Oxford-based Migration Observatory concluded that the statistics were unreliable and that the temporariness of international students remains uncertain.

That brings me to my final point—the UN definition of migrant. I suggest that the answer is to copy the Americans. The US gets over the problem by issuing two different sets of statistics on net immigration. The first, issued by the US Census Bureau uses the same UN definition of migrant and, like the UK ONS, measures overall flows of people, including students, in and out of the country on an annual basis. The second set of statistics, produced for the Department of Homeland Security, makes the distinction between permanent immigrants and those classed as non-immigrant admissions, which includes students alongside tourists, business travellers and those involved in cultural exchanges. Canada and Australia make a similar distinction. It seems such a simple solution to a problem that has caused the Government a good deal of grief.

I end by posing two questions to the Minister. Why cannot this country be more pragmatic like the Americans and use two sets of statistics, thereby complying with the UN requirements in measuring overall migration flows, but having a sensible set of statistics on which to base their net immigration targets? Secondly, why does the Home Office think it necessary to best-guess university admissions systems and run such a heavy-handed programme of credibility interviews? Random sampling is one thing; interviewing and often in the process upsetting and putting off two-thirds of potential entrants is another. Is this really necessary?

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[Lord Bates]

The noble Lord, who knows this area inside out, knows that we looked at that very carefully. It is true that the United States separates that category out, but when it calculates net migration, it adds it back in. The United States behaves differently because it does not have a net migration target. We do, and therefore we have chosen to include students in the numbers.

[Baroness Sharp of Guildford]

Would the noble Lord not consider publishing the two statistics side by side, as the Americans do? We could have the net migration figures, but let us also have the figures excluding the students, so that the population can judge for themselves whether the targets have been met.

[Lord Bates]

Given the gap in the numbers, which we do not yet fully understand, the Government are not comfortable enough to take the heat from our heels—as it were—on the immigration statistics by providing a potentially sharp change in the net migration numbers. It might give us a degree of comfort that is not borne out in reality. The better our data and intelligence, the better able we will be to say to universities, “Listen, your responsibility is not just to attract people here, to ensure they are qualified to come and to give them a great education, but to ensure that, when their time is up and their visa has expired, they go home and use that education to build another career”. There are many ways we can all work together, and I am simply extending the opportunity to continue the dialogue—I am sure it will continue on the Floor of the House, but such dialogue can sometimes be engaged in more constructively with officials from different departments off the Floor—should it be helpful to the noble Baroness. I am grateful to her for raising this matter.

Counter-Terrorism and Security Bill

Baroness Sharp of Guildford Excerpts

Monday 9th February 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

I join in thanking the Minister for what he has done in reaching the right conclusion, particularly with regard to academic freedom. Balancing security with liberty and freedom is a very difficult business, and he has brought to this issue sensitivity, intellectual rigour and great listening skills. He has performed his function as a Minister in the most exemplary way, and I hope that others will follow suit. I wanted to thank him formally.

[Baroness Sharp of Guildford (LD)]

My Lords, as another of those who argued in favour of the amendments on academic freedom that were put before the House, I thank the Minister very much for his co-operation. Like others, I am pleased with the overall result, even though some of us would have liked implementation of the Prevent duty to be postponed for some time for a review of it to take place. However, we are very grateful to him for what he has achieved.

One of the issues that I raised with the Minister was whether the duty under the 1986 and 1988 Acts, which extend to further education colleges, included sixth-form colleges. I have had confirmation from the Bill team that the provision indeed includes those colleges. That results in a slightly anomalous situation in which sixth-formers in schools are not included within the general duty to promote freedom of speech in the same way. It is possible that there will be some follow-through from the Association of School and College Leaders, for example, to obtain further clarification from him.

[Baroness Brinton (LD)]

My Lords, I, too, add my thanks to the Minister and the Bill team for the amendments. As I said at earlier stages of the Bill, as someone who has had to deal with different codes of practice and work out which takes predominance over the other, the critical thing that came fairly early on in your Lordships’ House was the clear importance of the responsibility to hold on to the duty of freedom of speech. It was during that debate that academic freedom came up and I am very grateful that these amendments have been laid. Contrary to the question that my noble friend asked about whether this changed anything, I think that for people working in the academic world it is an important clarification. I received a number of questions from people in the academic community wondering exactly where these academic freedoms stood. Therefore, I am very grateful to the Minister.

Counter-Terrorism and Security Bill

Baroness Sharp of Guildford Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Sharp of Guildford (LD)]

We had a considerable debate in Committee on these issues. I shall speak to Amendment 13B and about the danger of making the Prevent strategy statutory rather than voluntary and the fear that it might prove to be counterproductive. It is clear, however, that the Government feel strongly that these powers need to be statutory to ensure that those authorities which to date have lagged behind in their observance of the Prevent strategy recognise their obligations.

Amendment 13B, therefore, takes a somewhat different tack, as my noble friend mentioned. We had some discussion also about the importance of community involvement and working with the grain of community culture and the mores in different areas. In other words, it is vital that the implementation of the Prevent strategy should be flexible in approach and take into account the sensibilities of different communities.

These points were stressed, in particular, by the noble Baroness, Lady Warsi, and my noble friend Lady Hussein-Ece—neither of whom is in the Chamber today—in relation to Muslim communities. Again, this point was raised in the example quoted by my noble friend Lady Hamwee of the advice given by Sutton. However, it applies just as much to other communities, where institutions and customs will vary from one to another. In some, the civic organisations—the mayor’s office and the agencies run from that office—may be the dominant players; in others, organisations such as the YMCA, third sector youth groups or faith groups may be most influential. It is a matter of recognising that one size does not fit all. Those behind the Prevent strategy must work with the grain of each community rather than trying to impose a standardised agenda on all.

[Baroness Afshar (CB)]

My Lords, I should like to speak in defence of the amendment, because, more and more, parliamentary legislation is identifying Muslims as “the others”, or the enemy within. The “otherisation” of an entire community through insensitive approaches which do not give them the leeway to fit in is the surest way of driving them away and towards actions that are undesirable on all sides, and which their religion forbids.

If people are defined by their religion, and if the strategy is such that they cannot find a person to whom they can comment or a position to which they can adhere, then, given the difficulty of the alienation created by these labels, I fear that violence will become an alternative. I hope that the House will take heed and offer a far more inclusive approach rather than one which is intent on labelling certain groups and faith groups as “others”.

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[Lord Deben (Con)]

My Lords, we ought to realise that we are talking not just about the problems of terrorism but about something which has been much wider than that. I am very concerned about the situation in which we now find ourselves.

It is 55 years since my right honourable friend Kenneth Clarke and I debated with Sir Oswald Mosley in front of 2,000 students at Cambridge University. There were many who wanted him banned, but we said that if there was to be a new generation of students who understood the threat of fascism, they had to hear the arguments and we had to respond to them. We had the response because the Jewish Society went to huge trouble to give us all the evidence from Sir Oswald Mosley’s activities before the war. Noble Lords may remember that that would have been a time when we were a generation who knew nothing of this, but I venture to say that a whole group of people went away from university knowing how to argue the case and understanding what this very emollient, brilliant speaker was really like. It was from that moment that I became an even more enthusiastic supporter of the concept of the freedom of speech as a mechanism against extremism.

I want to say to my noble friend that we are at this moment in a very dangerous position. A close friend of mine, an Anglican priest—a man whom I would vouch for in any circumstances—has just been sacked as the episcopal chaplain to Yale because he dared to write a letter in response to others in the New York Times. It was a very moderate and reasonable letter in which he talked about the activities in Gaza of Prime Minister Netanyahu. No one in this House would have thought that an unsuitable letter to write, but he was sacked.

In the past few years, there have been many occasions in universities when people who hold unpopular views have been unplatformed in one way or another—for example, people who want to argue the case against abortion. I think that is an argument that it is proper to have on whatever side you stand. However, there are universities where it is almost impossible to have that debate.

One of the problems that we are faced with is that my noble friend has a real difficulty. We have a terrorist threat which is greater than we have had certainly in our lifetimes. It is a threat which is particularly difficult because it is associated not only in the popular mind but, because of certain facts, with a section of the community. Therefore, those of us who seek racial integration have to be extremely careful in the way in which we handle this threat, but we also have to recognise that it is a threat. It is not acceptable just to say, “Well, you know, we will just have to put up with it”. That is not where we are today.

I understand my noble friend’s problem, but I remind him that down the ages the threat of terrorism has been used to restrict the freedoms which the terrorists wish to remove. That is the fundamental problem. I worry immediately when we ask universities to inform upon and to investigate, and to assess what is a proper debate and what is not a proper debate, because I happen to believe that there are no improper debates in universities. There are improper actions as a result of debates; there are improper actions during debates; but to put a case and to argue the case is an essential part of university education.

I thank my noble friend for his amendment. If he had not tabled this amendment, I think I would have found myself very hard put to support any of this part of the Bill. However, I hope that he will have listened carefully to what others have said. I do not want universities to be able to use this as an excuse for interfering not only in these subjects but in others. That is my worry. It is not the worry as put forward in the excellent speech of the introducer of the lead amendment. My worry is that, by analogy, people will say, “Just as we have to think about terrorism in this way, so we have to think about this or that unpopular view”, whether it is an issue of left or right, an issue of morality or an issue of politics. I hope that my noble friend will give me an assurance that, if he feels that he cannot say that his amendment covers that, he will go away and think again to ensure that the narrowness which he hoped to apply to this matter is sufficiently safeguarded. I do not want to have a world in which today’s version of those students cannot have that debate with today’s Sir Oswald Mosley—with today’s fascists, communists, or extremists of any kind. If that were true, we would have sold out on a central British value.

[Baroness Sharp of Guildford]

My Lords, my noble friend Lord Deben may remember that the subsection in the 1986 Act was embedded in that Act precisely to combat the no-platform developments that had taken place in the 1980s. Like others, I hope that the Minister will have listened to this debate and may be able to give us greater clarification than there is in the amendment he has brought forward. We had a debate in the first group about the hierarchy of regard—due regard and particular regard—which perhaps has relevance to this. It would be good if one could feel that that was embedded.

Amendment 14C is in my name and those of my noble friends Lady Hamwee, Lady Brinton and Lady Williams of Crosby. So far in this debate, as we did very largely in the debate in Committee, we have talked about universities, and I was very pleased to see that the Minister’s amendment makes express reference to further education colleges. Many noble Lords may not realise that there are some 850,000 young people, aged 16 to 18 studying in further education colleges compared to 441,000 in schools. A very large number of young people in further education colleges—something like 100,000—are studying for higher education qualifications. So further education colleges are a very important part of the hierarchy.

I have a specific question for the Minister: where do sixth form colleges fall? There is explicit mention of further education colleges but there is no mention of sixth form colleges, which were in fact, under recent legislation, made into a separate category of college. Perhaps I can leave that thought with the Minister, and he and his Bill team can ponder on it and see whether it is perhaps necessary to make some minor further amendment.

Amendment 14C, which I want to speak to, is a very different amendment from the ones to date. It is a fairly straightforward amendment, which asks that the guidance, when issued,

“shall recognise the respective duties of specified authorities in the education sector … to secure freedom of speech … to promote tolerance and encourage respect for democracy and … participation in it … to offer a broad and balanced curriculum promoting spiritual, moral and cultural development”.

As I say, it is less specific, but in some ways a lot broader, than the other amendments that are being considered in this group.

Schools are already subject to a fair number of statutory duties which embody these issues. The Education and Skills Act 2008 requires schools to promote British values and respect for the civil and criminal law, to further tolerance and harmony between different cultural traditions, and to encourage respect for democracy and support for participation in it. The Education Act 2002, which is referred to in the Academies Act 2010, requires schools to offer,

“a balanced and broadly based curriculum which … promotes the spiritual, moral, cultural, mental and physical development of … the school and of society, and … prepares pupils at the school for the opportunities, responsibilities and experiences of later life”.

The Education Act 1996 includes duties not to express,

“partisan political views in the teaching of any subject”,

or to allow pupils to pursue “partisan political activities”.

We have rather deliberately widened the framework in the amendment we have put forward. It is important to recognise that very many young people of the ages of 15, 16 and 17 who are in schools or colleges are very susceptible to the propaganda of extremism. They are active users of Facebook and other social media and, as adolescents, are keen to challenge authority. Throughout their lives, they have often lived, through television, with violence and horror. Our education institutions, as a whole, have a very important role to balance these influences and, as we say in this amendment,

“to promote tolerance and … respect for democracy”.

We talk about British values, but surely at the heart of British values is freedom of speech.

Counter-Terrorism and Security Bill

Baroness Sharp of Guildford Excerpts

Wednesday 4th February 2015 Lords Chamber

These simple amendments in the names of the noble Baroness, Lady Lister, and my other colleagues on the Joint Committee on Human Rights will go some way to counteracting the chill factor to which so many noble Lords and so many academics have referred in the context of these measures.

[Baroness Sharp of Guildford (LD)]

My Lords, I rise to speak to Amendment 15B in my name and that of my noble friends Lady Brinton, Lady Williams and Lady Hamwee. Before speaking to that amendment I would like to say that I have a great deal of sympathy with the arguments that have been put forward by the noble Baronesses, Lady Lister and Lady O’Loan. If the Minister is going to think again about his amendment, I hope that he can find some way of incorporating these thoughts into that amendment. I realise that, as it stands, it covers guidance. The issue that we are coming on to, which is the issuing of directions, carries that forward and has a much more direct challenge to the autonomy of universities than the issuing of guidance.

The other amendment is directed entirely to Clause 29, which gives the Home Secretary the power to direct any authority, including universities and other educational institutions, to issue a direction if she is not satisfied that the authority has been discharging its duty under Clause 25(1).

We discussed this at considerable length in Committee and I do not want to repeat the arguments that we rehearsed at that stage. The Minister in reply to that discussion stressed that this was in every way a last resort power which it was hoped would hardly, if ever, be used. He suggested that perhaps it was just there in the background to try to make sure that people took the guidance seriously. Nevertheless, considerable disquiet remains about its possible usage. This probing amendment seeks to clarify the procedures which might be used. It seeks to ensure that the Government inform the authority of any direction that they are minded to make, and that the authority concerned should have the opportunity to make representations before any final decisions are made to issue such a direction. It also seeks to ensure that the Secretary of State will consider those representations before making the final decision. It seems natural justice that, where such a last resort power is used, the institutions concerned should have a chance to know why the power is being used and to make their own case against it.

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.

Higher Education: Overseas Students

Baroness Sharp of Guildford Excerpts

Monday 19th January 2015 Lords Chamber

[Lord Bates]

It simply reflects that such is the quality of education institutions in this country that they attract some of “the brightest and best” academic and skilled people from around the world. We want to continue to ensure that they do that and, in so doing, contribute to the success of the growing British economy.

[Baroness Sharp of Guildford (LD)]

Given the Government’s ambition to make this country the best place in which to practise science, will the Minister tell us whether they have heeded the warning from Sir Paul Nurse, the president of the Royal Society, that the present anti-immigration rhetoric coming from some Members is damaging the ability of this country to recruit leading scientists?

[Lord Bates]

That is all the more reason why we need to ensure that we give a warm welcome and send out a very clear message to those people that we want to come to this country to study and to contribute to the economy that we will not stand by and see our system abused by people who do not want to come here and study but instead want to come here to work.

Visas: Student Visa Policy

Baroness Sharp of Guildford Excerpts

Thursday 31st January 2013 Lords Chamber

[Baroness Sharp of Guildford]

My Lords, I thank the noble Lord, Lord MacGregor, for raising this important subject. I declare an interest as a visiting fellow at the University of Sussex and as a former university teacher. I also echo the thoughts expressed by the noble Lord, Lord MacGregor, about how as a House we undoubtedly condemn the bogus student issue and welcome the fact that the Home Office has moved to disaggregate the statistics.

Nevertheless, according to the 2011 figures, 566,000 people came through immigration into the UK and 351,000 left, so net migration was 215,000. As we have heard, the Home Office has a target of reducing this by the next general election, in 2015, to less than 100,000. In 2011, 174,000 non-EU overseas students enrolled to study at UK higher education institutions. We know from the Home Office research based on the 2004 cohort of students that only about 3% of these students actually remain permanently in the UK in jobs after five years. Therefore, of those 174,000 students fewer than 10,000 will be added to the net immigration figures.

However, the UK Border Agency has a target to cut net immigration to the tens of thousands. If it could cut the number of students by 50,000—from about 175,000 to 125,000—by tightening up on student visas, that would mean only a short-term gain, not a long-term one. If the figure is reduced to 125,000 and only a very few remain, that would mean only 3,000 to 4,000 remaining.

I can only assume that this is a Home Office strategy, because it is making it as difficult as possible for those from non-EU countries to come here as students. Only yesterday, when I was at UCL giving a seminar on a masters course, I heard of a student from Lebanon who had been lined up to come here and join the course. She had filled in all the forms and been through the interview but in the end failed to meet the deadline for applications and was turned down because the Border Agency and the company that it uses failed to tell her whether she had passed the interview. This is a cheap, short-sighted strategy and not worthy of this country.

Food Security Policy

Baroness Sharp of Guildford Excerpts

Thursday 24th May 2012 Lords Chamber

[Baroness Sharp of Guildford]

My Lords, I, too, thank my noble friend Lady Miller for introducing this timely debate. I declare myself the fourth member of Sub-Committee D to be speaking in this debate.

I spent the first half of April in Egypt. While wondering about the degree to which methods of cultivation seemed to have changed very little over the past few millennia—donkeys still seem to be the main means of transport—I nevertheless found fascinating the narrow bands on each side of the floodplain of the Nile that had been the centre of civilisation three or four millennia ago. When we returned to the UK, there was an interesting programme on BBC Four, which I happened to see, about the sudden collapse of the first kingdom in about 2000 BC. What had been a relatively high level of civilisation suddenly disintegrated. Archaeologists are increasingly of the view that the reason was a major famine caused by the failure of the rains in the upper Nile valleys in what are now Uganda and Southern Sudan, which feed the Nile. Luxor, where we were, had not received any rain for 46 years, but the Nile had traditionally provided the fertility of the Nile valley.

When the Nile failed, the fertility of the valley failed. Hieroglyphs of that period, around 2000 BC, indicated that it was a very serious famine. They were stories about people having to resort to eating their own babies and years of famine—the sort of famines there are now in west Africa and the Horn of Africa, which the noble Lord, Lord Judd, spoke about. This lasted for something like 20 or 30 years—the sort of thing that the Murray-Darling valley in Australia has seen. In those days, of course, there were no global programmes to help. Today, we exist in a global world, but the issue of food security hit home, as did the degree to which crises of this sort destabilise political systems. There are lessons that we can learn today.

The Foresight programme and report, The Future of Food and Farming, put together the four issues that John Beddington, the Government Chief Scientific Adviser, talks about as his perfect storm: population growth, climate change, the exhaustion of easily accessible fossil fuel energy, and increasing competition for water resources. Above all is the issue of population growth—from 7 billion today to an expected 9 billion, or even more, in 2050.

The key question for food security is: will we be able to feed all these people? In the 20th century, when arguably we faced an equally fast growth in population, we were able to do so by pulling more land into cultivation by the very profligate use of fossil fuel fertilisers—fossil fuels in the form of fertiliser—which underpinned the green revolution, and by building huge dams such as the Aswan and Three Gorges dams to provide for irrigation.

However, none of this is possible any longer. We need our forests and wilderness areas to absorb our carbon dioxide emissions. We are running out of easily accessible fossil fuel energy. Water resources are becoming increasingly scarce and expensive to manage and climate change is causing total unpredictability in rainfall, periods of drought, and so forth.

Nevertheless, I suppose I am slightly surprised at how optimistic in some senses the Foresight exercise was. There were three main messages in the priority themes that it picked out. First, it is vital to spread best practice. Knowledge transfer and exchange are the key to this. One of the problems that we face—this has come out in what many noble Lords have said—is that we have the knowledge today but people are not using it. It is therefore vital that we develop forms of farm advice and advice systems that spread the knowledge that we have. It is not necessarily a question of developing GM, although that may play a part. We must disseminate best practice.

Secondly, we need to invest much more in research and development. The noble Earl, Lord Caithness, mentioned the study on innovation that we in Sub-Committee D made. Out of that came the fact that the EU spends €400 billion on the CAP and only €2 billion on research. This will rise to about €4 billion, but it will still be a miserable 1% of the total. The European Union target is to spend 3% of GDP on research, which would equate to something like €12 billion. The UK’s research effort is, in relative terms, lower than that of Germany or France. We have superb, leading-edge research institutions, but again we fall down very badly on dissemination.

The final issue, to which my noble friend Lady Parminter referred, is reducing waste. It is appalling that more than 30% of the food produced in the world is wasted. The noble Lord, Lord Stern, spoke about the methods by which that waste could be easily prevented. So much could be used to feed those who are undernourished.

There are questions that we need to put to the Minister. Are we doing enough to promote research and development? Are we doing enough to disseminate knowledge and develop farm advisory systems? Are we doing enough both at home and in international circles to make sure that things are done? There is a great danger of feeling satisfied by coming to agreements in talking shops; the noble Lords, Lord Judd and Lord Stern, instanced the promises made in the G8 summit that were not met. What we are desperately looking for, both in this area and that of climate change, is leadership—not only from our Government but in the wider world—to try to get things done, as distinct from just talking about them.

Protection of Freedoms Bill

Baroness Sharp of Guildford Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Addington]

I shall speak to Amendment 51, which stands in my name. Unfortunately, my noble friend Lady Heyhoe Flint is unable to be here. I am afraid that she is going through a learning curve on this Bill and has learnt the great rule about parliamentary procedure in the Lords that it does not matter how late you stay, sometimes the proceedings just will not get to your amendment.

I thank the Government for what they have said. They have listened to the concerns brought to me through the Sport and Recreation Alliance, which represents all the major sporting bodies. Its concern will probably be mirrored in every body that deals particularly with children and virtually any vulnerable group: that is, we do not exactly know how much authority a person will have over a child, which will change with each sport or activity over a period of time. If you are helping a dancer with flexibility or strength work, it is slightly different from assisting with strength work for a young shot putter. There will still be a very intimate level of interaction and a degree of authority.

Giving those bodies in charge the chance to interact with the Government and to make sure that there is a two-way dialogue means that there will be a better chance of getting this right. I thank the Minister for what he has said and for all the work that he has done on this. However, will he give an assurance that this will be updated periodically? Training techniques in virtually all sports change. Philosophies of engagement with groups of youngsters have certainly changed dramatically and will probably change again. A degree of change and a continuation of flow of information would be good, and what the Government have done is good. It addresses virtually all our points.

[Baroness Sharp of Guildford]

My Lords, I regret to say that my noble friend Lady Walmsley is unable to be here today and has asked me to speak on her behalf on Amendment 52. The Minister has already mentioned this amendment. I take it from when he talked about the fact that the situation in further education colleges has yet to be finalised, and that the precise application can be ensured in regulations, that there is still some room for manoeuvre.

I should like to take up the two letters that the Minister wrote to my noble friend on 11 February and the other to my noble friend Lady Randerson on 1 February. I believe that it has been circulated to noble Lords. We are anxious that further education colleges should be treated in the same way as schools and that every full-time, and to some extent part-time, member of staff should be subject to the same vetting and barring rules. We were arguing that the staff should have a statutory CRB check. My noble friend has made the point many times as to the illogicality of the two types of institution being treated differently, but I will not dwell on that.

In his letter to my noble friend Lady Randerson, the Minister says:

“We do not consider it is right that, apart from special circumstances such as those applying to fostering and adoption, barred list information should be available in respect of posts which are not themselves subject to barring. This would effectively provide barring information to employers which is not relevant to the post and could lead to disproportionate and detrimental decisions”.

My noble friend Lady Walmsley and I do not agree that this information is not relevant to the post. We believe that it is relevant to the post if the employer thinks it is: in other words, if the employer thinks that the post, albeit not a regulated one under this Bill, would give the employee an opportunity to develop a relationship of trust with a young person.

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[Lord Bew]

My Lords, I support Amendments 55A and 56. I must confess the interest of being a working professor in one of our universities. I thank the noble Lord, Lord Henley, who has spent much time with those of us who have been concerned about these matters. I am very grateful to him for that.

The Government’s view is that the exemptions already present mean that many of the fears held in this Chamber are unjustified. I want to make one brutal, simple and crude point, which partly picks up on the points already made by the noble Baroness, Lady Benjamin. We must think about multinational concerns and how the country is viewed from outside. For example, let us take the case of our libel law. Our senior judiciary genuinely believes that it is wrong to believe that London is the libel capital of the universe. Genuinely, it says, “If you look more closely at the facts of the case, it is not quite so”. Perhaps that is right; perhaps it is wrong. The world has made up its mind that London is the libel capital of the universe. That clearly affects the way that the world behaves. It may be unfair, but the world has made up its mind. Similarly, in this case, it is not worth taking the risk of the world making up its mind that there might be this or that exemption in existing law but somehow universities in the United Kingdom are not as secure places to invest in research as universities in France or the Republic of Ireland—or even in Scotland—where there are higher barriers. I wish to underline that brutal point about international perception.

Unfortunately, my noble friend Lady O'Neill has had to go. I want to make one point which I know was on her mind in moving her amendment. Her concern relates to public authorities—here, meaning universities and other publicly funded institutes—being required to release research data sets on which they hold copyright in a reusable form without any conditions on their subsequent dissemination. A research data set that is released without conditions on its further use is, in effect, made available to the entire world and so will be fully available in jurisdictions where respect for intellectual property is poor and remedies for its violation are non-existent. In other words, we are talking about something entirely different from the case involving Cambridge, King’s College London and Professor Crick, which we talked about earlier. It is an entirely different utilisation of another person’s data set.

I was discussing this with a distinguished researcher at our university at the weekend. She said to me, “Actually, I’m sitting on a very sophisticated data set and it is just about possible that I am not asking the right questions of it. There might be somebody in another United Kingdom university who would ask different questions and could do something with it. It is just about possible that that might be so”. However, the danger—and it is the concern that the amendment of my noble friend Lady O’Neill addresses—is: if we do not control the reusable aspects of such an exchange, we will leave ourselves open in a way which is not sensible from a national point of view. I am sure it is the view of my noble friend Lady O’Neill that we cannot ignore the reality that science is both international and competitive and that sophisticated science is now done in some places where there is scant respect for intellectual property. An unreciprocated requirement for United Kingdom university researchers to provide any data sets that they create and hold without any conditions on their republication or dissemination will damage the competitive position of UK researchers and so of UK science.

[Baroness Sharp of Guildford]

My Lords, I have spoken before in favour of Amendment 56 and shall not repeat the arguments which illustrate how much work goes into cleaning up the raw data necessary to form data sets to develop meaningful analysis and the problems that can arise from forced distribution before those data have been properly presented and analysed.

I should like to reinforce the arguments made around the Chamber about what a disincentive to young researchers it is if they feel that all their work can be poached and used by somebody else. As the noble Lord, Lord Oxburgh, mentioned, it is also open to foreign researchers to poach and make use of those data, pre-empting the results. Similarly, it can be a disincentive to commercial collaboration, although, as the noble Baroness, Lady O’Neill, suggested in relation to her amendment, one way to prevent the data being poached is to collaborate with a commercial partner. However, at a time when Her Majesty’s Government are trying to encourage collaboration between commercial partners and universities, it seems very unfortunate to encourage the use of freedom of information in this way.

What I cannot understand is the Government’s opposition to the amendment. Effectively, this scheme has been piloted in Scotland and has been found to be very satisfactory. It is very unusual for us to have legislation that has been piloted in this way. Given that it has proved so satisfactory, I cannot understand why the Government are so resistant to accepting it.

[Lord Nickson]

My Lords, I have made a rare appearance here because I thought that the Scotland Bill would be coming up yesterday and was suitably disappointed. I did not come to speak in this debate. However, having spent a lifetime in industry and having also been fortunate enough to be the chancellor of a very junior Scottish university to that of my noble friend Lord Sutherland, I should like to say to the Minister and the Government that I have never heard a debate in this House containing such conviction, unanimity and passion, and given with such authority from so many sides. I am deeply impressed by what I have heard. I merely rise to support the amendments and to plead with the Minister and the Government to take what has been expressed with great seriousness.

Protection of Freedoms Bill

Baroness Sharp of Guildford Excerpts

Thursday 12th January 2012 Grand Committee

[Lord Bew]

My Lords, I rise briefly to support Amendment 148A, in particular, and to make the point even more starkly that in an era when these requests are more and more common, unless some protection for universities, as envisaged in the amendment, comes in, there will be an implicit negative tax on research, as researchers will have to take these possibilities into account. That is the last thing that our universities need at present. I support Amendment 148A very strongly. The real cost of complying with the requests that currently come in is a stark issue.

[Baroness Sharp of Guildford]

My Lords, I, too, rise briefly to support the amendments in the name of the noble Baroness, Lady O’Neill of Bengarve. My experience now is somewhat dated, but back in the early 1990s I was responsible for supervising a group of researchers putting together a substantial database on bibliometrics. The difficulties of cleaning up such a database are extreme and costly. The group of four young researchers I was supervising worked for two or three years in just cleaning up the database. One issue that we were looking at then was the advantage of concentrating research into large laboratories rather than having a lot of smaller researchers. You cannot do such research until you have cleaned up the database. Someone coming in and using your data is clearly something that we need to protect against. We also need to make sure that the costs involved in putting databases together are fully met.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I start by saying that I am very grateful to the noble Baroness, Lady O’Neill, for her opening remarks when she talked about discussions that have already taken place. I understand her concerns. I understand them now possibly in spades as I look at the serried ranks of academe facing me. I ought to make it clear that further discussions will have to take place between now and Report as there are real concerns in the academic and research community. The noble Baroness, Lady Warwick, reiterated concern about costs and her noble friend Lady Blackstone referred to burdens on academe. Concern was expressed about safety, particularly for those involved in research relating to animals. I can well understand that, having had some responsibility for that issue when I was a Minister in Defra.

I shall try to explain our intention behind Clause 100 and what we initially think of the amendments. I should make it clear that I am more than happy to have another meeting with the noble Baroness and any others who wish to come along, as we want to ensure that we get this right and can meet those concerns. I shall say a few words about the background to Clause 100, particularly as this is the first amendment in the group. I shall not go on at this stage to Amendment 151, to which the noble Baroness referred, as I had better do that when it is moved in its proper place.

Clause 100 gives effect to the Government’s commitment to provide greater transparency and create, in particular, a new right to data so that government-held data sets can be requested, used by the public and published regularly. We believe that that will help the public and organisations to hold the Government to account. It will redirect and shape public services to reduce the deficit and deliver better value for money in public service spending. It will realise significant economic benefits by enabling individuals, businesses and not-for-profit organisations to build innovative applications using that public data.

The Freedom of Information Act 2000 currently provides for the release or publication of the recorded information held by public authorities covered by the Act but makes no provision for reuse at the point of publication or release. It requires only the provision of access to the information and only upon request, which means that repeat requests have to be made over a period of time to gain sets of information or data. There is no obligation for public authorities to provide such data in an electronic format that promotes reuse—for example, machine-readable or open, standard format. I note the comments of my noble friend Lord Lucas about his trials and tribulations with the university sector, particularly with its use of PDF, which causes him problems.

These changes to the Freedom of Information Act, as set out in Clause 100, are intended to promote the proactive release of more data sets and to ensure that when data are released they are in a reusable format and, where possible, free for reuse. This will, in turn, promote the use and development of the raw data held by public authorities to provide useful products and services.

Additionally, the Government announced their intention to ask Parliament to undertake post-legislative scrutiny to see how well the Act is working in practice and whether there are any further changes to be made. In advance of this, the Government must act on their commitment to transparency and open data to release the benefits of open data to the public as soon as possible. There will be further post-legislative scrutiny to see how well that Act is working, and we will come to that in due course. When we have that, we can respond.

I turn now to the amendments in this group and will deal with them, but I repeat the commitment I made at the beginning that I am more than happy to discuss these in greater detail afterwards with whoever the noble Baroness wishes to bring along. Amendment 147A seeks to add the word “complete” to the definition of data sets allowed to be requested. However, I believe that the use of the word “complete” would not improve the definition of data set and could introduce a degree of uncertainty and confusion around the operation of this provision. For example, data sets may be continuously updated depending on the publication scheme set out by a public authority, and one could argue that a particular data set is never complete per se. The Government do not wish to be overprescriptive on this matter and defer judgment to the public authority to decide when its data are ready to be published in the interests of all parties.

I appreciate that the noble Baroness raised concerns at Second Reading in respect of these provisions, and we have exchanged correspondence and had meetings in response to her concerns about the potential impact on the higher education research community, which has argued that some of its data would be releasable in transient form until final publication. I reassure the Committee that Clause 100 as it stands does not alter the status quo in relation to the release of information in draft or of incomplete status, and such information is already adequately protected by existing exemptions under the Freedom of Information Act. Furthermore, the Information Commissioner’s office has produced specific guidance for higher education institutions by recommending those institutions to have a robust information management regime that will tackle issues about disclosure of data that is incomplete or in a draft form.

Similarly, Amendment 147B, which amends new Section 11(1A) of the Freedom of Information Act, is unnecessary as the provision already covers the circumstances that the amendment seeks to specify. The duty to provide a data set to the applicant in a reusable format, as currently drafted, adequately covers the effect of a public authority undertaking to provide the data set as requested in a reusable format. We consider that Clause 100 and the Freedom of Information Act as a whole already make adequate provisions for charging and that the noble Baroness’s Amendment 148A is not appropriate or necessary. Further, the Government will be providing guidance in the revised Section 45 code of practice on reusable formats and on when it will be considered reasonably practicable for a public authority to convert a data set into a reusable format for release, so that it will be clear what should be expected for both the data holder and the requester. The costs for releasing a data set in a reusable format falls to the public authority, as does releasing other information under the Freedom of Information Act, and the same freedom of information provisions apply here in terms of releasing that information.

With regards to the noble Baroness’s Amendments 148C and 148E, which seek to amend the definition of a data set, we consider that the current definition provided for in Clause 100 is fit for purpose. We do not believe that it would be sensible to introduce further limbs into the definition of a data set as, inevitably, the addition of any new terms, such as “data integrity and security”, could raise as many questions as to their meaning as the terms which they are intended to clarify. We believe that it is preferable to address such matters through the supplementary guidance for public authorities, which will be provided in the revised Section 45 code of practice.

As regards Amendment 148, in the name of my noble friend, I take a similar view. It seeks to define what is meant by the term “capable of reuse”. Again, we believe the appropriate place for any necessary clarification of the terminology used in the clause, and of the reusable formats to be adopted, is in the revised code of practice, which will be produced under Section 45 of the Freedom of Information Act.

We will be revising the statutory code of practice to provide greater clarity on certain aspects of these provisions. Among other things, the revised code will provide guidance on what constitutes a reusable format and sets out those factors that a public authority should take into account when deciding whether it is appropriate to include a data set in a publication scheme. We will also issue administrative guidance to central government on best practice.

On my noble friend’s Amendments 149 and 150, it is important that the changes we are making preserve existing regimes, specifically when it comes to charging for reuse of copyright material. Currently, public sector bodies under the Re-use of Public Sector Information Regulations may charge on a reasonable return of investment basis, and the policy is to maintain the status quo. Maintaining this right continues to allow public authorities the flexibility to charge should they wish and, where justified, in accordance with the Treasury’s guidance, Managing Public Money, which we all take enormously seriously.

We would expect, as now, most data sets to be provided free of charge for reuse but it is right that public authorities should, in appropriate cases, be able to charge. Any such charges would normally be set at the level necessary to recover costs, and no more, but fees can be set at a level to provide for a reasonable return on that investment. This would be appropriate in circumstances where the public sector has followed the Treasury’s guidance, Managing Public Money, and its accounting principles, and has taken into account the value of that data set and the costs incurred in resourcing the collection of the data.

With regards to my noble friend’s Amendments 148B and 148D, I would respectfully recall the reasoning behind the clause whereby the intention is to create a new right to data through the request for data sets for reuse and, where reasonably practicable, in a reusable format. The extension as proposed in my noble friend’s amendments goes beyond the realm of data sets and therefore is not appropriate in this instance but may be considered, again, as part of the post-legislative scrutiny that we are offering on the Freedom of Information Act which is currently under way.

--- Later in debate ---

[Lord May of Oxford]

I express my approval of the amendment. I would go beyond the noble Baroness, Lady Blackstone, in saying that I understand science to embrace the social sciences within it. In this case, it goes wider than that in extending increasingly the large areas of the humanities that use large databases. It is a really important problem and the spirit of this amendment addresses it in a significant way. I very much hope that all that has been said here is taken to heart.

[Baroness Sharp of Guildford]

I would like to say very briefly how much I support this amendment. The noble Baroness, Lady Blackstone, asked the Minister expressly whether he had looked at the Scottish and Irish legislation. I would bring his attention to the American situation, because we followed America in introducing a Freedom of Information Act and we also regard that country as being foremost in terms of publications and citations in scientific and social science research. We follow America in many senses, but it has specific legislation that has guidelines providing the constraints that we are looking for. It seems sensible to have an exemption, as in the Scottish model that we can follow, which has over the past few years been satisfactory. It would be easy to follow, and it picks up all the reservations that those of us had who spoke in favour of the amendments proposed by the noble Baroness, Lady O’Neill. It picks up a lot of the points made by those amendments and puts them neatly into one clause. I support the amendment and hope that the Minister and his advisers are looking at the models in other countries.