Counter-Terrorism and Security Bill

Lord Harris of Haringey Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Judd (Lab)]

My Lords, I am sure that a great many of your Lordships are involved in higher education and universities. I am a very committed member of court at Lancaster and Newcastle universities and an emeritus governor of LSE, having been a governor for 30 years.

This amendment obviously relates very closely to the next group. Therefore some of the things that I will say on this amendment will have application to the next group.

I beg the Minister and his colleagues to treat this matter very sensitively and not to come to any absolute conclusions before they have heard the existing reservations. The concept of the autonomy and freedom of the university is fundamental to our concept of higher education, and to the model of our university lives which is held out to the world and makes it so attractive to students, including postgraduate students, from all over the world. Whatever the Government’s intentions, they must be very careful that what is proposed will not be widely perceived as formalising matters to the point of turning the university into an agent of government. How can we have statutory responsibilities of this kind without beginning to suggest that universities must act for the Government in this respect?

Of course we want the co-operation and good will of the universities in this matter and of course there is a desperately dangerous situation in which we live, and I accept that those dangers are not diminishing. However, this makes the battle for hearts and minds more important than ever. It makes the winning of a real commitment to freedom and to the things that we stand for and are trying to defend in our society more important to leaders, not only in this country but across the world. Within a university, that is best achieved in the context of free discussion and debate. That is the whole point. This matters because unacceptable extremist ideas can be approached face on and argued out. Sensitive potential recruits for extremism can see that there is a better way. Do we feel that we are engaged in a battle for hearts and minds or do we not? If we see that that is the only lasting hope to win this battle, everything else that we do is just putting fingers in the dyke. The fundamental issue is to win the good will and the conviction of people across the world to a better way. That can happen very much—I will not say best, as that is a big claim—within our universities. This is a tremendously important issue that concerns the whole fundamental concept of the university, how it is seen and the atmosphere in which it operates.

When the noble Baroness introduced the amendment, she referred to the rush and to the failure to have proper consultation. I forget which American statesman said that the difference between an academic and a politician is that an academic argues for a conclusion while a politician has to argue for a decision. I see the potential hazards of this business of consultation in this sphere. However, if there are anxieties—they do seem widespread—there has not been adequate consultation, and that is a serious matter. Whatever is proposed, it will be strongest if it has the good will of the universities rather than all the reservations and anxieties that have been expressed by them.

For all these reasons, I commend the amendment of the noble Baroness and ask the Minister—I do not want to embarrass him but he is a thoughtful and considerate man, and I have great regard for him—to think very carefully with his colleagues before insisting upon their proposals exactly as they are.

[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, the world of local government, in its kaleidoscopic way, is changing at the moment with new groupings of authorities, such as the Association of Greater Manchester Authorities. Although the duty is expressed as a duty on each individual authority, will the Government be open to authorities seeking to find ways for neighbours to provide services to fulfil the duty? This has only just occurred to me, but it seems that one should be open to practical ways of dealing with this sort of thing.

Separately, I ask whether my noble friend is able to address my points about the contracting-out of services, which I raised in the first group of amendments. I do not know whether he has any notes on that. It is mentioned in Amendment 106 in the Minister’s name, which caused me to go on a hunt for Schedule 36A to the Education Act. That is only about education and there are many other services which are contracted out. I asked London Councils whether I was barking up the wrong tree in worrying about this. Its answer was that I was not and that this is something worth pursuing.

[Lord Harris of Haringey]

My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.

There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.

[Lord Bates]

My Lords, I can say in advance that I will probably be writing to both my noble friend and the noble Lord on their points. As extensive as the briefing is, I am afraid that it has not pre-empted those two points of contracting out or the Ministry of Defence Police.

I will move the government amendments in this group shortly but first I will respond to Amendment 105A in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith—the Opposition Front Bench. This amendment would add a unitary authority to a list of specified authorities in Schedule 3 on page 47. This is an issue that I have discussed with her previously. I am pleased to assure her and others in your Lordships’ House that this amendment is unnecessary. Unitary authorities are already covered by virtue of a county or, more commonly, a district council. On that basis, I hope the noble Lord will feel able to withdraw the amendment. I can see a quizzical look from noble Lords on this but we say that whether it relates to a county or district council in England—that is, a person carrying out the function of an authority mentioned in Section 1(2) of the Local Government Act 1999, by virtue of a direction made under Section 15 of that Act—the provision would catch all. Noble Lords will have to take the word of our counsel on it. It would be a pretty easy amendment to make if we were wrong, and we would be happy to correct it; but we feel that unitary authorities are covered under the existing wording.

There are a number of government amendments in this group, regarding bodies listed in Schedules 3 and 4. Schedule 3 specifies the authorities subject to the duty to have due regard to the need to prevent people being drawn into terrorism. Schedule 4 specifies the persons who are subject to the duty to co-operate with panels established by local authorities to provide support for people vulnerable to being drawn into terrorism.

Amendments 106, 108, 111 and 116 to 118 will ensure that the appropriate authorities are subject to the duties, and that there are no gaps or inconsistencies. Amendments 106 and 116 add persons who are appointed by local authorities under certain delegated functions related to education functions. This ensures appropriate coverage of the duties. Amendments 108 and 117 add a person specified by Welsh Ministers in respect of a direction made in respect of a Welsh local authority’s education functions. This amendment ensures a consistent approach.

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[Baroness Smith of Basildon]

I think that the noble Lord is making a good fist of it but it is not very convincing. He thinks there might have been a case or there could be a case where a child might let slip in a packed nursery that someone is going to Syria and that he or she could be taken with them. What we have here is a duty being placed on the staff of that nursery. Unless it is clear-cut what that duty is going to be and how it is to be undertaken by the staff, I struggle to find a good explanation for why it is in there. I hope that the paper arriving for him is enlightenment, and I will give him an opportunity to read it, but so far his explanation is not really very convincing. It is quite an onerous duty to be placed on staff, involving training, costs and so on. If he is able to offer any further enlightenment on why and how, I would be very grateful.

[Lord Harris of Haringey]

My Lords, while the Minister takes the opportunity to read fully the piece of paper that has just arrived, it seems to me that the argument that he is putting forward is about essentially providing a duty to support the Pursue function rather than the Prevent function. Of course, in a nursery and various other places information may emerge that could actually be important in terms of pursuing, preventing or interdicting a particular terrorist act. That is slightly distinct from what we are talking about here, which is preventing people from going down the road of becoming terrorists. The examples that the Minister has given have been more about the Pursue end of the counterterrorism strategy rather than the Prevent end.

[Lord Bates]

In that case, it is probably the fault of the rather poor example that I gave rather than the actual guidance as it is. Essentially, it says to a responsible person within any nursery, “There is a general Prevent review where we are trying to prevent people from being drawn into terrorism”. The responsible person would want to know, “What does that mean for us? If we had a circumstance where that came to light, what would we actually do? Who would we report it to? If we had any concerns, what would we do?”. The fact that that procedure is written down and that somebody has actually thought about what that procedure would be complies with the guidelines. It is the duty to have due regard to the guidance.

The amendments in this group relate to a number of matters concerning the duty itself and the guidance to be issued under it. I begin with the amendments that deal with parliamentary scrutiny of the guidance, which were tabled by the Opposition and my noble friends. Amendments 112C and 112CA would require that the guidance may be issued only subject to parliamentary approval. The Bill already provides that the Secretary of State may consult before issuing guidance. That consultation has been running for six weeks and closes on 30 January.

This public consultation has provided ample opportunity for interested parties to scrutinise and influence the guidance. The final guidance will have benefited from extensive consultation and expert input, including contributions to debates in your Lordships’ House.

The approach that we have taken to this guidance is not uncommon. I note that the Delegated Powers and Regulatory Reform Committee did not recommend any additional parliamentary scrutiny of the guidance in its report on the Bill. I take this opportunity to thank the committee, and particularly my noble friend Lady Thomas of Winchester, for producing its report so efficiently in order to support your Lordships’ scrutiny of this legislation. In view of this, and although we of course value the importance of parliamentary scrutiny, the Government do not believe that it is crucial for the guidance to be subject to parliamentary approval.

Amendment 112BA would require the guidance to “deal with equalities issues”. I assure my noble friend Lady Hamwee that this is an issue that the Government take extremely seriously. In drawing up the final version of guidance, we will certainly consider any equalities issues that have arisen since we published the draft for consultation. Of course, many of the specified authorities will already be subject to the public sector equality duty in the Equality Act 2010. I hope she is reassured that her amendment is not necessary in the light of these considerations.

Amendments 112BB, 112BC and 112CB would further increase requirements to consult on the guidance. I assure your Lordships that the Secretary of State will of course consult specified authorities before issuing guidance that affects them. As I have said, we are just coming to the end of a full public consultation on the guidance. However, it will not always be necessary to consult all specified authorities in all cases. For example, there might be a case where part of the guidance relating to just one sector is to be revised and it would not be appropriate to consult all specified authorities on such revisions.

Amendment 112BC would require specified authorities to consult their local or relevant communities. This might be good practice in some cases. However, the duty is on the specified authority, not their relevant communities, and this consultation would impose additional costs. There might also be cases where it would not be appropriate to consult communities. For example, in making amendments to the guidance to the prisons sector, it might not be appropriate to consult the prison population. As such, we consider this to be a matter best left to specified authorities to consider and to decide.

Amendment 112CB would remove reference to the Secretary of State as being the person who should decide whether a revision to the guidance is insubstantial. The amendment accepts that insubstantial changes should not require consultation and that someone must make the decision on whether a change is insubstantial. It remains the Government’s view that the decision should fall to the Secretary of State, given her responsibilities to Parliament. This is consistent with standard practice on this type of issue.

I shall now respond to the amendments that relate to the Secretary of State’s power to issue directions. Amendment 112DA would make the power to issue a direction subject to the specified authorities having the opportunity to make representations. Amendments 112E and 112F would require the Secretary of State to issue a report to Parliament after making such a direction.

I reassure your Lordships that a number of safeguards are already built into this direction-making power that make these amendments unnecessary. The legislation makes clear that the power can be used only where a specified authority has failed to discharge its duty to have due regard to the need to prevent people being drawn into terrorism, in the assessment of the Secretary of State. This narrows the circumstances in which the power could be used. The decision to issue a direction to bring about compliance could then be judicially reviewed, following the normal principles of such reviews.

Further, the direction is enforceable only by application to a court for a mandatory order. The court would not exercise its discretion to issue an order if it felt that the direction had been issued unreasonably. Of course, court decisions stand to be appealed against.

The Government would consider using the power only where other efforts to address the failure had been exhausted. The decision to recommend that the Secretary of State issue a direction would have been considered in detail by the Prevent oversight board, on which, as I have already mentioned, my noble friend Lord Carlile sits as an independent member. There would also have been detailed discussions with the specified authority beforehand, including the opportunity to make representations at that stage.

This debate has been an insightful introduction to the consideration of the Prevent duty. I hope that my remarks, in which I have been able to expand on previous statements, may reassure noble Lords. In that regard, I invite them not to press their amendments at this stage.

[Lord Harris of Haringey]

Before the noble Baroness, Lady Hamwee, makes that decision, I revert to the question of what it is that is being required and one of the reasons why that might imply that it is better to have more consultation about it. One of the reasons why some of the previous Prevent programmes failed, and fell into disrepute with the communities concerned, was that they were not seen as about preventing people from going down the road to become dangerous, violent extremists. Rather, they were seen as being programmes that put a series of spies in the camp and were about reporting individuals to the authorities for action to be taken against them. Speaking personally, I am all for mechanisms that identify people who are a danger to the rest of us and make sure that appropriate steps are taken, but this was perceived as being the authorities intervening and getting the data. We are going to come to this subject in a minute, but when I questioned the Channel panels as to why the intelligence services were not specifically listed as an agency involved in that, the argument given at that stage was that it was because it would make it look as if the Channel panel process was part of a process of ratting on individuals to the authorities.

It is important to get this guidance in a form where the communities understand that it is not about pointing the finger at individuals in a way that might lead them into trouble with the authorities, but is a way of supporting individuals and preventing them going down that road. That is why this distinction of whether this is about “prevent” or “pursue” is so important, as is getting public and community buy-in to the way in which this is enforced.

[Baroness Hamwee]

My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.

Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—