Counter-Terrorism and Security Bill

Baroness Smith of Basildon Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I have one short point, which has not been raised before, to add to this part of the debate. We now have in this country approaching 100,000 overseas students, a high proportion of whom—about one-third—come from China. A directive from a Minister to a university, as perceived by an overseas student from China, would be very close to being a government censure on that university. The amendment moved by my noble friend at least gives an opportunity for a university to set out why it has refused to take the action that the Secretary of State has enjoined it to, and to explain whether this is a relatively minor aberration or a serious defiance of the directions that the university has been given. That really could be quite important in terms of the attraction to students coming from overseas countries, especially those that have—shall we put it like this?—rather coercive Governments.

[Baroness Smith of Basildon (Lab)]

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

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

[Baroness O'Loan]

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

[Baroness Smith of Basildon]

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

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

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

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

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

[Lord Bates]

My Lords, I will just deal with a few points from this debate. This group of amendments deals with Clauses 28 and 29. I will refer first to Clause 28, particularly the now amended subsection (4A). The point was raised by the noble Lord, Lord Phillips of Sudbury, who asked whether it would be possible for the affirmative resolution, which is coming forward on the guidance, to cover more than just the date when it will be brought in, which was one reading of the amendment. I confirm, of course, that it will cover both the date and the content of the guidance. We recognise that that is a very important part. It is not clever wording trying to curtail debate. We recognise that that is the intent and I wanted to take the opportunity before we leave Clause 28 to put that on the record.

The noble Baroness, Lady Lister, in moving her amendment, asked that the Secretary of State,

“have due regard to the principle of academic freedom”,

when issuing guidance or giving direction. We have already amended the Bill to ensure that particular regard is paid by the Secretary of State to the duty to secure freedom of speech in higher and further education, as set out in Section 43 of the Education (No. 2) Act 1986. The interplay between the duty in that Act and the principle of academic freedom set out in Section 202(2) of the Education Reform Act 1988 is an interesting one.

The Education Reform Act defines academic freedom as, in particular, the ability for academic staff to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or the privileges they may have at their institutions. I well acknowledge the remarks made by the noble Baroness, Lady O’Loan, who told us very powerfully in earlier stages of the Bill about the rigours of actually teaching constitutional government—I think it was—in Northern Ireland during the time of the Troubles. We accept that what is described here is effectively a subset of freedom of speech which higher and further education institutions have a duty to secure through Section 43 of the 1986 Act.

Furthermore, I note that the 1986 Act extends the duty to secure freedom of speech not only to academic staff but also to employees, students—to whom the noble Baroness, Lady Williams, referred—and visitors. It covers both higher and further education institutions, whereas the matters referred to in Section 202 of the 1988 Act are only pertinent to the academic staff of universities.

Without going any further at this stage, I would like to reflect on what the noble Baroness said, without saying anything binding. I certainly understand where she is coming from, if it is a matter of interpretation. We just need to check that with lawyers. If she is willing not to press that amendment, I will certainly give an undertaking to look at it again and perhaps come back with some comments at Third Reading.

I turn now to Amendment 15B in the name of my noble friend Lady Sharp, which would require the Secretary of State, prior to making a direction, to inform the authority of that intention and to give the authority the opportunity to make representations before the direction is made. Any decision made by the Secretary of State must be reasonable and proportionate. In most circumstances, this would require only the steps outlined; so in that sense, we believe that this amendment is not necessary. I can also assure the House once again that it is the Secretary of State’s intention, as a matter of policy, to use this power only as a last resort, when other means of securing compliance through discussions with the authorities—who will be at liberty to make representations at that stage—have been exhausted. I should also reiterate that both the Prevent oversight board, on which our noble friend Lord Carlile sits, and the courts—to answer the point made by the noble Lord, Lord Thomas of Gresford—will play a role in the process of giving and enforcing such a direction.

To clarify, we do not want, as it were, to run to the bottom line on this point of the direction. It is a necessary consequence of making statutory the requirement to have due regard that there must be some legal doorstop. If people refuse to abide by the law then, just as with any other law, ultimately it trickles down to the court and might end up in contempt of court. We recognise that we are treading on very sensitive ground here. I am sure that all Secretaries of State will weigh that very carefully. Also, they must have particular regard when issuing that direction to the freedoms outlined in the 1986 Act.

With that reassurance to my noble friend and the promise to reflect on the amendment moved by the noble Baroness, Lady Lister, I ask noble Lords to consider not pressing their amendments at this stage.

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[Baroness Smith of Basildon]

I have a very brief comment. I listened with great interest to the noble Lord’s comments. I think he was right to ask those questions, and I am sure he shares my concern that the coalition Government cut substantial funding from Prevent, so fewer local authorities have benefited in the past couple of years. There are questions to be asked of the Minister because Prevent is very important. We recognise that by making it statutory, but I regret the cuts the coalition Government have made to the Prevent programme.

[Lord Bates]

My Lords, in considering these amendments, I defer to the extensive and detailed local government expertise of my noble friends Lady Hamwee and Lord Scriven. Before I respond to the specifics of the amendment, I repeat that in relation to the Channel guidance, we are consulting local authorities and specifically Channel panel chairs. We would be very happy to consult London Councils—Sutton was mentioned in particular—to take account of their views and concerns and to address them in any guidance that is issued. If other local authorities feel the same, that would be welcomed.

Amendment 15K concerns the costs of implementing the duties in Chapters 1 and 2 of Part 5. The amendment would require the Secretary of State to report to Parliament on the costs incurred by specified authorities and on the grant made to meet those costs. My right honourable friend the Prime Minister has already announced £130 million of extra resource over this year and next to meet the increased terrorist threat from Syria and Iraq. Some of this funding has been earmarked for the implementation of the duty in the chapter. I am not trying to suggest that it is all going there. The vast majority, I think, is heading towards the security services for technology capability.

Channel panels already exist in all areas of England and Wales. Under existing arrangements, which should not change in practice as a result of this legislation, the Home Office provides funding for Channel police practitioners who co-ordinate activity in organising cases and supporting panels. Each of the nine police regions receives funding to support the Channel programme. For national security reasons, we do not publicly provide a breakdown of police counterterrorism spend by individual projects, capabilities, work streams or police force areas. Disclosure could identify areas where the threat to the national security of the UK is greatest and where there are vulnerabilities in different regions and capabilities. I hope that that helps in some way to explain the reasons behind this.

The Home Office also funds theological and ideological interventions—so that which is not provided by the local authorities is provided by the Home Office. We therefore do not consider that local authorities should incur extra costs as a result of the implementation of this chapter. Any statutory services provided would be met through existing funding.

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[Baroness Ludford (LD)]

My Lords, very briefly, given the hour, I think we can all agree that the independent reviewer is not only a formidable lawyer but a master of modern communication with his blogs and tweets.

I welcome the broad support for Amendment 16A given by the noble Lord, Lord Butler. I want to press the Minister a little on some of his replies: first, on the potential clash with the Independent Chief Inspector of Borders and Immigration. I have just tried to flick through his last annual report but I do not think that he touches on anything to do with national security or powers linked to counterterrorism. As the noble Lord, Lord Butler, has just said, there is a way of dovetailing to make sure that there is no clash. What Amendment 16A proposes is very much to the extent that immigration and nationality law is used for counterterrorism purposes, which is not broadly the focus of the borders and immigration inspector.

Then there was a reference to a one-off review of Section 66, on deprivation of citizenship. However, a one-off review is not the same thing as continuous review and monitoring, so that is really apples and pears.

I join the noble Lord, Lord Butler, in wondering about the Secretary of State at some point, possibly several years hence, appointing an overseer of Part 2 of the Justice and Security Act. The Minister said that that person could be the independent reviewer. Why wait? Why risk setting up two separate posts, which would be inefficient and potentially add some costs? Why not short-circuit the exercise by deciding now to give that function to the independent reviewer? As my noble friend Lady Hamwee said, the case-by-case judicial oversight of the court is not what is meant here by the independent reviewer’s role in having that overview of the way that Part 2 of the Justice and Security Act, on closed material proceedings, has been employed in a whole string of cases. It is rather different. I would press the Minister to give a little more justification as to why Amendment 16A is not feasible.

Lastly, I may not have heard the Minister correctly—it may, again, be the lateness of the hour—but I am not sure that he gave an in-principle explanation of why it is not possible to have a statutory basis for the access to secret material. Of course, I accept what he and the independent reviewer have said—that in practice there has not been a problem and that if the Government tried to be obstructive, we would all know about it pretty soon. However, I do not think that he explained what the policy, or legal or other difficulty, is.

[Baroness Smith of Basildon]

My Lords, as we glide through the final hour of the day, it is appropriate that we also glide through the final amendment. I congratulate the Government on the fact that the consultation on the Privacy and Civil Liberties Board ended on 30 January and we have new amendments to debate on 4 February. That is quite an achievement.

I am grateful to the Minister, as we are significantly better placed than we were when the Government first announced this back in July, when the noble Lord, Lord Taylor, and I were debating the DRIPA legislation. This was announced with no detail, although the detail then emerged that this was going to replace the independent reviewer. The Government wisely listened to those who said that this was a dreadful idea and could not see the logic behind it—but we then moved into an area where there was a lack of clarity and confusion. The Minister will be aware that we put down significant amendments in Committee on this, and I greatly welcome the amendments today.

I am also grateful to the Minister for meeting me to discuss this issue. He knows it was of enormous concern to us. Although I share some of the reservations of the noble Lord, Lord Butler, we are in a much better place. From what we are seeing here and from what the independent reviewer, David Anderson, is saying, he will find a way to make the board work effectively and be useful to him. The noble Lord made the point about him asking for a junior counsel or barrister to work with him. It seems to me that he has the opportunity here, if the board is acting under his direction and control, for somebody who is on the board to fulfil that role for him. I would not envisage a secretariat of the board—I am not sure how much of a secretariat the board will need—but certainly a board acting under his direction and control will provide an opportunity for him.

The other issue that we raised in our amendments was that the remit of the board should deal specifically with the impact of counterterrorist legislation on communities. I know that the independent reviewer already sees that as part of his role, but it is not explicitly in the amendments before us today. I do not think it necessarily matters, as long as it is made clear that he continues to see that as he does at the moment.

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[Lord Butler of Brockwell]

The way the noble Baroness talked about the relationship between the independent reviewer and the board underlines the importance of the point made by the noble Lord, Lord Thomas, about clarifying whether the board is to be supportive or consultative. She talked as if the board was going to be part of the support staff for the reviewer, which would be excellent—but in that case, it is rather funny to call it a board. Why not just call it his staff?

[Baroness Smith of Basildon]

I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,

“direction and control of the Independent Reviewer”.

So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.

[Lord Ashton of Hyde]

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

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

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

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

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