Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Wednesday 4th February 2015 Lords Chamber

Moved by

[Lord Hope of Craighead]

14: Clause 25, page 17, line 31, at end insert—
“( ) The general duty under subsection (1) is subject, in England and Wales, to the duty in section 43(1) of the Education (No. 2) Act 1986 (freedom of speech in universities, polytechnics and colleges), and in Scotland, to the need to ensure that freedom of speech within the law is secured in universities and other further and higher education institutions.”

[Lord Hope of Craighead (CB)]

My Lords, it falls to me to move Amendment 14 which is the first of five amendments in this group. I want to make it clear that the fact that I am speaking first and that my name is listed first on the amendment has nothing to do with the relative quality of the contributions which I and the three noble Baronesses who have added their names to this amendment made in Committee. My contribution was much lighter than theirs and I am sure they will have much more to say as the debate develops.

This group also contains Amendment 15, in my name and in the names of the noble Baronesses, as well as government Amendment 15D which is a significant amendment. It has been designed to meet some of the concerns which have been expressed about freedom of speech—especially academic freedom of speech in higher education institutions and, in particular, in universities.

As became clear in Committee, there are three aspects to this problem. The first is how to reconcile what the Government are proposing in the Bill as it stands—the duty which is being imposed on universities and other higher education institutions by the provisions of Section 43(1) of the Education (No. 2) Act 1986. This is a duty to secure freedom of speech in the institutions listed in this subsection. That is the first chapter, on how to reconcile these apparently competing duties.

The second deals with how to achieve the same reconciliation in relation to Scotland, bearing in mind that Part 5 of the Bill applies to Scotland just as it does to England and Wales, and that the 1986 Act does not extend to Scotland so there is no statutory duty on the universities and other institutions in those terms. Nevertheless, one would think—having regard to Article 10 of the European Convention on Human Rights, among other things—that the right to freedom of speech was just as powerful in Scotland as it was in the other jurisdiction.

The third point relates to how to reconcile the duty to secure freedom of speech with the guidance being proposed in the consultation paper. On the first point, I pay particular tribute to the Minister and his team for the way in which they have responded to the particular problem about reconciling the two competing statutory provisions. They have done so with commendable speed, given the rate at which we have been proceeding from Committee to Report. For my part, it seems that Amendment 15D, which the Minister will speak to later in the group, deals exactly with that point and makes it clear that the two duties can live together in the way in which the amendment describes. I express gratitude for what the noble Lord is proposing, which is a step in the right direction, although a small one.

My amendment is divided into two parts. The first deals with the position in England and Wales in relation to the 1986 Act; the second deals with the position in Scotland. That matter is not addressed by Amendment 15D, nor was it mentioned in the very helpful letter that the Minister wrote on 3 February which explains the reason for Amendment 15D but does not deal with the points that I raised about Scotland. I shall briefly repeat what I said in Committee. I drew attention to a fact that we are all aware of: that education north of the border is a devolved matter. We are dealing with a statute that deals with a reserved matter, the prevention of terrorism. There is an obvious need to reconcile these two matters, which no doubt is being achieved by discussions with the Scottish Government and consideration as to how best to meld the Scottish position with that for England and Wales.

The problem to which I tried to draw attention was this: the vehicle that is being used for the Prevent system, both north and south of the border, is all built into Part 5 of the Act. One would like to think that one would find everything one needed in statute to deal with the Scottish position, as one certainly does for dealing with the position in England and Wales. It is the absence of a reference to Scotland and the need to preserve freedom of speech, and at least respect the right to it, that have caused me concern. I raised this in Committee but so far there seems to be no answer.

There is a real puzzle about what exactly the Government’s thinking is about the position in Scotland, because the Bill is silent about it. It may be that because of the shortness of time the necessary discussions with the Scottish Government have not yet been completed; indeed, I would understand the need for those discussions to proceed to a solution. If that is the reason, then my fears would be allayed to some extent. But one is still left with the problem that the Bill will leave this House—and, if nothing is done about it, will no doubt leave the House of Commons as well—without anything in it that addresses the problem. With respect, that seems to be an unsatisfactory situation, bearing in mind that one is trying to achieve exactly the same thing in Scotland as one is seeking south of the border.

So there is something missing here, and I would be very interested to hear the Minister’s explanation of what is being done to address the situation. My suggestion when we talked about this last time was that once the Bill is enacted, I imagine that the only way one can deal with the Scottish position, if it needs to be dealt with, is by fresh enactment, which is a very heavy-handed way of dealing with the problem. One would rather see the matter dealt with now before the Bill leaves Parliament and is enacted.

--- Later in debate ---

[Lord Bates]

I am grateful to my noble and learned friend for that intervention. He hit upon a real issue, and we are going to have to write on that point. When exploring how to indicate that the commitment to free speech is to be taken seriously and nothing should take away from that, we did not want effectively to phrase the amendment in such a way as to say, a bit like Universities UK, “You can now just disregard it because you can claim everything is free speech and therefore do not need all the rest of it”. This is a serious thing that the Government are saying. We believe that there is a particular risk and that universities ought to have due regard to it. We would like that to be done consistently. That was the reason that we landed upon to,

“have particular regard to it”.

This answers the noble Lord, Lord Hannay, and with this I will sit down. You cannot have a debate of this quality, with such incredibly perceptive points being raised, and not be open to it. As I hope I have demonstrated throughout this process since we began our journey at Second Reading, I have tried to listen and have due regard to the views expressed in your Lordships’ House—and nothing will change on that. We will reflect very carefully on the particular points raised. Of course, if there are ways in which we can tighten the language that we use and points to take on board, we still have time to do that, but we feel that in putting forward Amendment 15D, we have something that can give real reassurance to universities in this regard.

[Lord Hope of Craighead]

My Lords, in view of the hour which we have reached, I am sure that all noble Lords would like me to bring this debate to an end as soon as possible. First, I thank all noble Lords who have spoken. This has been a debate of very high quality, and many interesting points have been raised. I am most grateful for the answer the Minister gave on Scotland, which satisfies me. We can no doubt return to that by order, if necessary.

As for the rest, I think that it is a search for clarity. I ask the Minister to bear in mind the contribution of the noble and learned Lord, Lord Mackay of Clashfern, and the point made by the noble Baroness, Lady Williams of Crosby, when she was complimenting the Minister on Amendment 15D. I think she said, “We are not there yet”. In a way, that sums up the essence of the debate. Many points have been made in various ways and many questions have been asked which the Minister clearly has not been able to answer. I think we are reassured by the open mind which he expressed in his concluding words. In view of that, the proper thing for me to do is to beg leave to withdraw the amendment.

Amendment 14 withdrawn.