Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[Lord Grabiner (CB)]

My Lords, if I may respectfully say so, I was extremely interested in the observations of the noble Lord, Lord Johnson of Marylebone, in support of the two amendments to which his name is attached. But there is another aspect of this discussion that gives me an opportunity to have a personal grouse, based on my own experience of higher education in the UK. Until recently I was the master of Clare College, Cambridge, and before that I was for many years chairman at the London School of Economics. We always took enormous pleasure on those occasions when we were able to recruit under-privileged students from poor postcode districts. At the end of the day, it is a terribly important part of the education process that we are concerned with.

The big problem with the current state of play—it has been going on for many years now—is that the cost of educating an undergraduate student at, say, Russell group universities is significantly more than the £9,250 charge that we make. Accordingly, most universities operate at a working loss in respect of the undergraduate school. It is only when you get to the uncapped overseas funds and the kinds of people we are talking about in these amendments that universities get an opportunity to, in effect, balance the books. I am afraid that for many years now, to balance the books we have had to take unregulated students from abroad—with, I entirely agree, a special emphasis at the moment on China.

Some of these fees are literally enormous, at £20,000, £30,000 or even more for certain specified courses. This is a very unsatisfactory state of affairs, not least because, when these students come from somewhere like mainland China, we are not interested in poor postcodes or whether they come from underprivileged families and so on. The answer is that they do not: they come from well-heeled families or state-funded backgrounds, enabling them to be educated here and—invariably, I am afraid, in most cases—to go straight back to their home countries. This is a serious concern, because we need strong cohorts of foreign students to come to our universities, without whom we would not be able to balance the books.

[Lord Hope of Craighead (CB)]

My Lords, following on from the noble Lord, Lord Grabiner, two words in the amendment cause me some concern: “overly reliant”. The problem is that no touchstone is provided in the amendment as to how that phrase is to be applied.

As it stands, subsection (2) gives clear guidance as to what the OfS is to look at. The problem to which the noble Lord, Lord Johnson of Marylebone, has drawn our attention is very widespread. It is not only China that one has to consider; there may be other countries too, and there is the question of balancing the contribution made in proportion to the size of the country, and whether it is so great that it gives rise to particular concerns. However, if I may say so with respect, the clause would be improved if it said a little more about the particular point to which the OfS should direct its attention, so that it knows itself what it should be doing.

[Lord Willetts (Con)]

My Lords, in the light of that last comment, I can briefly intervene with reference to Amendment 65 in my name. I register my interests as a member of the board of UKRI and a director of Thames Holdings.

I have two questions for the Minister but they arise also from the important intervention of my noble friend Lord Johnson of Marylebone. First, we do indeed need some sense of proportionality; the figure of 1% of the total income of a registered provider was an attempt to get some sense of what constituted undue influence. It would be very helpful to have an update from the Minister on the Government’s view on that. Secondly—I am speaking very much in a personal capacity—this clause is really about research funding. Of course, my noble friend has made an important point about teaching income. In the legislation which he steered through this House, there was a rather clear distinction between teaching, which is a responsibility of the OfS, and research, which is a responsibility of UKRI. It is important that those two bodies work together.

It would also be helpful to hear from the Minister how she envisages the OfS scrutinising what in this clause is predominantly research funding, for which the OfS has historically and legally not had any responsibility, but for which a different government body, on whose board I sit, currently has the main responsibility.

Higher Education and Research Bill

Lord Hope of Craighead Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Young of Cookham]

My Lords, looking at the names on this amendment, it is certainly a gold star amendment, to use the language of the OfS. When I looked at it, I was relieved to see that the name of my noble and learned friend Lord Mackay was not on it. Therefore, I was somewhat disappointed when he rose to his feet to lend his formidable support to the amendment.

I can see that these amendments stem from concerns that there need to be appropriate safeguards and checks on the OfS’s powers under Clauses 43, 44 and 54. We fully agree and have listened to the concerns expressed in Committee. As a result, we have tabled two sets of amendments. First, there is Amendment 116 after Clause 44 and related amendments, which we have just discussed in an earlier debate. These ensure that the OfS must seek expert advice before granting degree-awarding powers or varying or revoking them on quality grounds. Secondly, there are amendments to Clauses 43, 44 and 54, which we have just debated in the group with Amendment 107. These amendments clearly set out the limited set of circumstances where the powers of revocation can be used, such as in cases of serious quality concerns. These further strengthen already very robust safeguards, including statutory processes guaranteeing providers the opportunity to make representations and a right of appeal. By the way, there is nothing in the Bill to prevent further appeals to higher courts.

Noble Lords also suggested in Committee an annual report on how the OfS exercises its powers of revocation under Clauses 43, 44 and 54. I accept that this is a good idea and would contribute to greater transparency. I can therefore tell noble Lords that in respect of each year where the OfS has made use of its powers to revoke degree-awarding powers or university title, we will ensure that a report be laid before Parliament that includes information on how the powers have been used.

Turning turn specifically to the amendment, the grounds for appeal in Clauses 46 and 56 have been carefully chosen and are largely based on what a judicial review would take into account. Despite the noble and learned Lord’s disparaging remarks about judicial review, it is the way in which public bodies are held accountable. These are sensible and appropriate grounds which balance the need for a regulator to make robust and confident decisions using its unique expertise with the need to hold that regulator to account where it makes decisions that are not within the reasonable scope of its powers. The Bill as drafted achieves that balance.

An appeal can be brought on three grounds, as the noble and learned Lord outlined. The first is that the decision was based on an error of fact. This means that if the OfS based its decision on wrong or incomplete facts, it can be overturned by the tribunal. The second ground is that a decision was wrong in law. We have specified in our amendments, to which I referred a moment ago, exactly when the OfS can revoke degree-awarding powers and/or university title, and how it has to go about it. For example, if the OfS decided to take the step of revocation outside the circumstances we have now specified in the Bill, its decision could be overturned by the First-tier Tribunal. Likewise, Clauses 45 and 55 provide that the OfS must have regard to representations made. If it did not do so, this could amount to being wrong in law and would therefore be grounds for appeal. Lastly, an appeal can be brought on the grounds that the decision was unreasonable. A provider could appeal against the OfS on the basis that its decision was unreasonable, having regard to the facts of its case.

Those grounds for appeal are complemented by strong procedural safeguards, which, again, are clearly set out in the Bill. These ensure that any decision made by the OfS must be legally correct and factually accurate and reflect a reasonable judgment, the OfS having carefully considered the available facts and applied its expertise according to the law. That is a very high standard to which the Bill holds the OfS to account.

By contrast, there are real risks in taking the route mapped by these amendments. They propose a more general and much less clean-cut ground of appeal—namely, that an appeal may be brought when the decision of the OfS is “wrong”, as explained by the noble and learned Lord. That is far less certain for the provider, for the regulator and indeed for the tribunal. It would also expand the range of cases that could go to appeal. What is “right” from one angle might always be seen as “wrong” from another. For example, will a provider that has its degree-awarding powers revoked on entirely justifiable grounds ever see that as anything other than “wrong”? Surely that provider should not have an automatic right of appeal, with all the delay, uncertainty and cost that that involves. The amendment would appear to allow that, as the balanced limitations of factual and legal accuracy and reasonableness would have been dispensed with.

Furthermore, the amendment would require the court to decide whether it agreed with the expert judgment reached by the OfS. Such an exercise would allow—indeed, it would require—a tribunal to put itself in the regulator’s shoes and then substitute its judgment for that of the OfS. I have to ask whether that is really the right place for the tribunal to be—asserting expertise in higher education rather than, in a more focused way, looking at lawfulness, factual accuracy and reasonableness. I respectfully suggest that it is not. Changing the grounds of appeal in this way would risk creating a process whereby the tribunals, rather than the OfS, regulated the HE sector. That is a powerful argument which noble Lords have so far not addressed.

I do not believe that the amendments are the right way to go—although they are well meant, I do not think they will take us in the right direction. Therefore, with respect, I ask the noble and learned Lord, Lord Judge, to withdraw his amendment.

[Lord Hope of Craighead (CB)]

Is the noble Lord able, with the resources at his disposal, to give any examples of this formula being used in the case of other regulators? We are contemplating a process that challenges a decision taken by a regulator, so it would be helpful to know whether this is the normal pattern or whether the suggestion of the noble and learned Lord, Lord Judge, is the normal pattern.

[Lord Young of Cookham]

The noble and learned Lord qualified his question with the remark “with the resources at my disposal”. The answer is that I do not have that answer at my disposal, but I will of course make inquiries and write to him.

Higher Education and Research Bill

Lord Hope of Craighead Excerpts

Monday 9th January 2017 Lords Chamber

[Baroness Deech (CB)]

My Lords, I will speak in support of Amendment 65 in the name of my noble friend Lord Kerslake. The most relevant interest I have to declare is that I was the first Independent Adjudicator for Higher Education. I dealt with student complaints, which gave me a great deal of insight into what was going on.

Twenty-nine years have passed since the late Lord Jenkins—Roy Jenkins, the chancellors’ chancellor—secured an amendment to the Education Reform Act 1988. That Act ended the tenure that had been enjoyed by British academics. His amendment protected in law the freedom of academics 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 institution. That is repeated in the second half of the amendment being moved this evening, which is directed towards the OfS and the Secretary of State.

Why is it necessary to draw attention to that principle again and to re-enact it? The answer lies in the width of the risk presented in the Bill to the independence of UK higher education and in the amount of power granted to the Secretary of State and the OfS—so much more extensive than in the 1988 Act. Staff have to be free to criticise without fear the opinions of their colleagues and government policy and to publish without fear of reprisal through the closing of departments at the behest of the OfS. In later amendments to be debated in a few days’ time, we will return to the freedom of speech that universities should be securing. However, this amendment is directed, in an overarching way, to the structure that will govern our universities in future.

The Bill would allow untrammelled direction from the Secretary of State for research themes and the appointment of individual council chairs. That could, for short-term gains, limit the scope of the UK’s research functions and its innovation. When my husband was a young scientist in the 1960s, he worked for years on a strange, new and apparently useless but fascinating invention: the laser. We know now how that turned out and how it might have been nipped in the bud had there been in place an OfS regime at the time. The proposed UKRI—the new all in one—will reduce funding routes and may impact on the variety of research that is funded. If plurality of funding is diminished, the risk of taking the wrong decision is magnified, the decision process will be narrower and the diversity of perspective reduced.

We have proof of how things can go wrong: the binary line between universities under the UGC and polytechnics under local authority control and the placing of them in one funding pot; the introduction of central regulation and the auditing of teaching and research; the subordination of academic planning to deep financial controls and the increases in staff workloads despite what has been said earlier this evening—because one hour of teaching may well represent days of research, days of marking, days of seeing students, and days of working in the library and on committees. Indeed, the pressure to research that has been dominant up to now and that was brought in by the Government is responsible for the fact that people now think that teaching is not getting all the attention that it should. What the Bill is trying to do—but should not do in too rigid a way—is swing that pendulum back towards good teaching for the students.

Now we have a sad situation. In the guise of efficiency gains, so much has been lost and cut—and now the miserable replacement of grants with loans to cover living costs will knock all hopes of social mobility on the head. The amendment does no more than keep UK university regulation in line with domestic and international human rights law. The amendment is embedding freedom of thought, conscience, opinion, expression, association and assembly—familiar terms from our European and national human rights legislation. Academic freedom requires freedom from discrimination and harassment and prejudice. It is inextricably bound up with freedom of speech. It also means proper whistleblowing procedures and collegial decision-making, with academic excellence at its heart.

It also involves adherence to the principle of the universality of science—the freedom to share and carry out research without illegitimate hindrance based on irrelevant discrimination. No group of people should be excluded from scientific enterprise under this principle for reasons extraneous to the science itself—so the European Union would be in breach of that principle of the universality of science were it to place barriers in the way of contributions of UK scientists to global research, and vice versa. Of course, no university should discriminate against or boycott the scientists of any one nation. There is everything to be gained from this amendment and nothing to lose. I urge the Government to accept it.

[Lord Hope of Craighead (CB)]

My Lords, I just add a few brief words in support of the amendment of the noble Lord, Lord Kerslake. I declare an interest as a former chancellor of the University of Strathclyde, although I do not think that his amendment would extend to Scotland for the reason that the noble Lord, Lord Stevenson of Balmacara, mentioned. In that connection, I should point out that since Clause 117 makes it clear that the Bill extends to Wales as well as England, it may be that the noble Lord, Lord Kerslake, should extend his amendment to cover Wales as well, because I am not sure that there is any difference between Welsh institutions and English institutions for this purpose.

That aside, I commend the way in which the amendment is crafted, particularly the first paragraph because, as it was pointed out, it is directed to the duties to be performed by the Secretary of State. One of the problems revealed by the earlier debate is that of universities being required to do certain things that might attract all sorts of extremely unwelcome litigation. However, this amendment is directed where it should be directed and for that reason, as well as all the other points made by the noble Lord and by the noble Baroness, Lady Deech, I hope the Minister will take it very seriously.

[Lord Winston (Lab)]

My Lords, I am wedged between two lawyers. I absolutely support the amendment spoken to by the noble Lord, Lord Kerslake. One thing concerns me and it may concern the noble Baroness, Lady Deech, as well. The rise of racist, anti-Muslim and anti-Jewish behaviour in universities in recent years causes us great concern. I wonder whether the phrase,

“the freedom of academic staff within the law”,

will be adequate to control some of these outbursts, which are not necessarily exactly illegal but are certainly very discreditable and dangerous for universities. Would the noble Lord like to address that?

Children and Social Work Bill [HL]

Lord Hope of Craighead Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

[Lord Ramsbotham]

My Lords, I remind the Minister that he used the word “depressed” in connection with our previous group on improvements. I have to admit that looking at the last committee report of the UN convention and comparing it with the previous committee report, I was depressed at how many in the previous one were still there in this present one. If you are looking for improvements, I suggest that you could start well with the two committee reports because they set out a very clear agenda for improvement.

[Lord Hope of Craighead (CB)]

My Lords, I add a word on how this matter might be viewed in the courts. As many of your Lordships will know, I was a member of the UK Supreme Court; from time to time the UNCR convention was cited and we always paid close attention to what it said. It is plain from a number of our judgments that it did influence the way we approached cases involving children but, more importantly, there was a case called P-S Children in 2013 in the Court of Appeal in England, where it was said:

“The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have regard to it when considering matters relating to it”.

In that case, the question was whether a child had a right to be heard in proceedings relating to him. There was no statutory right, but there was nothing to prevent it. However, the court—having regard to what the convention said—went on to say:

“It should now be declared that the child does have the … important but limited right, that is to say, a right to be heard in the proceedings”.

That is just one example of the way in which the courts today are drawing upon the convention in developing their jurisprudence. It is also well established as a matter of fundamental law that when the United Kingdom has signed up to an international convention, it is to be presumed that this Parliament, when legislating, will legislate in accordance with what the convention provides. Therefore, if you find a provision relating to children, or the duties of authorities relating to children, the courts, if asked to do so, would interpret the legislation in the light of the convention.

We are in an imperfect world so far as England and Wales are concerned, but the courts are doing the best they can to follow the guidance of the convention and it would seem far better that England and Wales should follow the example of Scotland and legislate to put the matter beyond any doubt.

Children and Families Bill

Lord Hope of Craighead Excerpts

Tuesday 28th January 2014 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I rise briefly to offer my strongest support to my noble friend’s amendment as vice-chair of the All-Party Parliamentary Group for Children and Young People in Care and Leaving Care. Many of these children have very unfortunate early experiences of a sexual nature, and as they grow up through life, they are more likely to become involved in addictions of various kinds such as alcohol, drugs and cigarettes. They are more likely to start on these things than other children. If one looks at their mental health, according to the Office for National Statistics, 10% of children in the general population have mental disorders; roughly 40% in foster care have mental disorders and 69% in residential care have such disorders. My concern is that these young people will particularly tend to look for comfort from this sort of stuff on the internet—to see it, perhaps, as a form of self-medication and become addicted to it. I therefore strongly support my noble friend and hope the Minister will accept her amendment.

[Lord Hope of Craighead (CB)]

My Lords, I would like to add a brief word of my own in support of the amendment. It is a feature of the amendment, as noble Lords will have noticed, that it places important duties on Ofcom. In fact, the position that Ofcom occupies in the structure has been designed to give a robust nature to the system that is being set up: Ofcom will play a vital part in setting standards, issuing codes and so on. It is worth noting that the proposal fits very well with the structure of the Communications Act 2003, which places duties on Ofcom itself. It also provides that Ofcom shall have such other functions as may be conferred on it by any other enactment, which is what this amendment seeks to do.

Among the duties set out in the 2003 Act is the duty,

“to further the interests of citizens in relation to communications matters”—

a very broad duty. In performing those duties, the Act also says that Ofcom must have regard to,

“the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection”.

The system that is being devised, therefore, is very much in keeping with the structure that was set some 10 years ago for Ofcom. For that reason, among others, I strongly support the amendment and, in particular, the detail built into it.

[Lord Lucas (Con)]

My Lords, while I share the concerns of the noble Baroness—particularly as I have an 11 year-old daughter—I do not think that her amendment achieves anything. It asks ISPs to do something that is impossible. How can they provide subscribers with an internet access service that excludes adult content? People can use proxy servers; they can link across to their parents’ computers if they have set their parents’ computers up right; they can use sites that are newly created every day and whose URLs are spread by e-mail; they can indulge in these things through chat programmes, where there is nothing about the site that tells you what it is being used for. There are so many ways in which the nasty side of the internet can spread. It is utterly impossible for ISPs to block; there is no technology that would enable them to perform the functions set out here. How does a little ISP know which sites in this swiftly moving internet are offering the content which offends this amendment that were not doing so yesterday and may not do so tomorrow? They get passed around by kids and are designed to be fast moving. I cannot see how there is anything in this approach of requiring individual ISPs to do things that has any hope of success or of producing a law that is feasible and possible for individual companies to do.

If we were to approach this, perhaps, on a national level by asking our friends in Cheltenham—who, presumably, already read most of this stuff—to put a stopper on the stuff that would offend, perhaps we would have some hope of keeping up with the pace of the avoidance mechanisms that are out there. Unless we do it in a co-ordinated way like that, we really have no hope of achieving exclusion. I therefore beg the noble Baroness to think again and to look rather at enabling parents to exercise proper jurisdiction over what their children are doing. It is really quite hard to find good programmes that you can put on your children’s machines that will tell you what they have been doing and enable you to share with them what they have been seeing and experiencing on the internet and to educate and guide them. By and large, those programmes are not available on ISPs’ websites. Individual parental responsibility has a much better hope of looking after our children than pretending that we can block something when we cannot.

Children and Families Bill

Lord Hope of Craighead Excerpts

Tuesday 17th December 2013 Lords Chamber

[Baroness Tyler of Enfield (LD)]

I declare an interest as a vice-president of the charity Relate. I have great sympathy with what the noble Lord, Lord Northbourne, is trying to achieve through this amendment, although I feel that primary legislation is probably not quite the right place to put across this very important message. I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is important to emphasise at every opportunity that this is about parental responsibilities rather than rights. That must flow through all the messaging and communications that we talked about when we discussed the earlier amendment.

I, too, should like to see this guidance offered at many different opportunities. I should like to see this sort of guidance as an integral part of relationship education. We talked about the importance of relationship education in Committee, and I suspect that we shall return to it later. I should also like to see it included in the various pilots for birth registration in different venues. It would be good to see it included there, and in the various packs—Bounty packs and others—that are prepared for new parents. I should like to see it at the new-parent stage, at the education stage and especially in the various advice and guidance packs that are available for separating parents. It has a lot to offer. It is a very important set of messages. I just happen to think that primary legislation is not quite the right place for it.

[Lord Hope of Craighead (CB)]

My Lords, since the Minister may be looking at this matter more fully, I suggest as a footnote to this discussion that he might look at the Family Law (Scotland) Act—I think I have the correct name of the Act, although I cannot give the date. The introductory text to that Act makes exactly the point the noble Lord, Lord Northbourne, is making. It talks about the responsibilities of the parent to the child. The following section I think uses the word “rights”, but it is talking about the child’s rights rather than those of the parents. It is the counterpart to responsibilities. It has been set out in primary legislation, I think on the recommendation of the Scottish Law Commission, that it is a useful checklist of the corresponding rights of the child, but particularly of the responsibilities that rest upon the parent throughout the child’s childhood. The Minister might find this piece of comparative law helpful.

[Baroness Howe of Idlicote (CB)]

My Lords, I will add a brief note. While I probably agree that the Bill is not the right place for these proposals, I remember the excitement of the early days when I appeared in your Lordships’ House and what was then the new Labour Government had brought in something called citizenship. It generated a lot of excitement because it would obviously have been a good place in which to put over the responsibilities of parents. Alas, it never happened, because citizenship got whizzed all over the place.

I have somewhat changed my views over time on PHSE. That also could be used rather more effectively in schools in the future in these areas. Above all, I emphasise the point that the earlier you can work with children on what their own children are going to need, the better. Hopefully, not only will it prepare them for being better parents but it might also help them be rather better sisters and brothers, if they are living in households where they need that extra guidance.

--- Later in debate ---

[Lord Judge (CB)]

My Lords, to add to a maelstrom of lawyers is not a particularly bright idea at this time in the afternoon, but I declare an interest as I was a member of the Court of Appeal that decided, when we decided it, the case of J. The case was brought to us so that the threshold test could be clarified: that was the only purpose of it. It was brought by a local authority, deliberately focusing on the single fact of possible perpetration and omitting any other consideration, so that the issue could go to the Supreme Court and that five previous decisions of the House of Lords could be analysed once more. We followed the previous decisions of the House of Lords and immediately gave leave for appeal to the Supreme Court—a very unusual step for the Court of Appeal to take—because it had to be addressed in that court.

Once it is established that an individual living in a household in which a child or children have been killed or seriously injured was one of the possible perpetrators of the injuries, but the evidence is not sufficiently clear for the court to identify who is actually responsible, where does that leave us? It leaves us with the possibility that the individual was, indeed, responsible for the death or those injuries or some of them. That seems to me to be a stark fact, but there is a further consideration. Often the ill treatment has been repeated; these awful occasions are not, generally speaking, a one-off. Generally, what you have is a series of repeated assaults on the child that culminate in an attack in which the child sustains fatal injuries. J was such a case. What that little baby had gone through in three weeks is beyond description.

Therefore, in many of these cases, although not all of them, the person who has not actually caused any injury has undoubtedly been aware of the fact that the child has been suffering. It is not just that the child cries—we all know that babies whinge and cry, some more than others—but this was a child with evidence on its little body of injury. Indeed, although these cases are largely confined to the family court, one needs to stand back and wonder why on earth criminal prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish who is guilty of the murder or manslaughter, but, where the evidence is uncertain, to demonstrate that both, on any view, are culpable in the sense that they have allowed the child to be bullied and abused in the way that has culminated in its death. If there had been a criminal prosecution and a conviction, it would not have occurred to anyone to say, “Oh well, that conviction is irrelevant to the threshold test that the family court has to ask in relation to another case”.

If there are combinations of events like those that have happened, it seems to me that they raise issues of great relevance to the threshold test in family proceedings. It is not a question of removing a child from a family on the basis of suspicion alone; it is that the threshold test should be allowed to be tested by reference to all the relevant evidence. If all the relevant evidence reveals that the threshold test should be passed, then you move on to care proceedings. For me, the idea that we should exclude from the threshold test possible relevant material is not how justice is done.

[Lord Hope of Craighead]

My Lords, I hope that I may be forgiven for adding one more lawyer’s speech to those which have already been given, and particularly that the noble Baroness, Lady Howarth, will forgive me for doing this. My reason for wanting to speak is that I presided over the case of In re J in the Supreme Court. I think that the noble and learned Lord, Lord Judge, expressed great concern that the issue was being brought before the courts on a hypothesis; I think I am right in saying that he said that it is not the business of the court to judge hypothetical cases. We took the view that we should decide the case on the material that we were given, but it is right to stress, as the noble and learned Baroness, Lady Hale, stressed, that the situation we were presented with was highly artificial in order to test one particular point: whether the “sole fact”, as it is put in the noble and learned Lord’s amendment, was enough to cross the threshold.

I do not want to add anything to the clear description which the noble and learned Lord, Lord Walker of Gestingthorpe, gave us as to what the case of In re J was all about, but I should like to say briefly why I join with the noble and learned Baroness in resisting the amendment. In my case, it is particularly on account of its wording, given the use of “sole fact” and the reference to “real possibility”. My objections can be summarised on three simple grounds: first, the amendment as it stands is wrong in principle; secondly, when you look at the structure of the statute it is unnecessary; and, thirdly, from the point of view of family life in circumstances that are quite likely to occur, it could indeed be damaging.

First, on the principle, I respectfully suggest that the golden rule is that a prediction of future harm has to be based on facts which have been proved on a balance of probabilities. It is only then that the state would be justified in removing a child from the family; in our democratic society, it is not enough that there should be suspicion. It has to be based on proof, so the state should be required to demonstrate that it has real and current concerns about the child’s safety before the child is taken into care. I appreciate that I am moving through all sorts of stages in making that proposition, but that is the background to the point I wish to make. I stress that if we look at the wording of Section 31(2) of the Children Act, which we do not have on the paper before us, when it states that a child may be taken into care only if,

“the child … is suffering, or is likely to suffer, significant harm”,

it is using the language of proof, not of possibility. That was a point made by Lord Nicholls some 18 years ago in the case of In re H.

As I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, accepted, the amendment has the effect of lowering the threshold to some degree. It assumes that the state cannot prove that the carer in question was the perpetrator—that all it can prove is that she was a possible perpetrator—and that that bald fact is all that can be done. Even allowing for the point at the end of the proposed amendment, that this is a “real possibility” and something that cannot sensibly be ignored, I suggest that we are still below the threshold which Section 31(2) sets.

Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was not saying that the problem which the amendment is addressing is rare in itself. She was not saying, I think, that it is rare for two people in the situation in which the carer in this case was placed to blame each other, so that the court is unable to decide between the two. What she was saying was extremely rare was the situation which the court was being presented with: that this was the sole fact. As she put it in her judgment, the issue hardly ever comes before the court at the threshold stage packaged in that way. The point which she was making, and which one can see by studying the structure of the Children Act, is that in Part V, and in particular in Section 47, powers are available to the local authority to make inquiries and, if it is thwarted, to take further steps which may ultimately lead to an emergency protection order being applied for and so on, as the noble and learned Baroness, Lady Butler-Sloss, explained to us.

In the case of In re J, there was a difference of view as to whether the sole fact which has been referred to was relevant at all. In my judgment, I used the words “relevant” and “sufficient” to try to explain the difference of view. Lord Wilson and Lord Sumption said that it was not relevant at all; the rest of us said that the fact of the possible perpetration was relevant and could not be ignored, but it is not enough and is not sufficient to cross the threshold and therefore something more must be found.

The problem with the amendment is that it has absolutely no context attached to it. The sole possibilities are stated in the amendment in the starkest possible terms. However, as soon as you start to examine a particular case—as the noble and learned Lord, Lord Judge, did when he talked about the number of injuries inflicted in that tragic period of three weeks—you are adding something that is not in the amendment. Indeed, the noble and learned Lord, Lord Lloyd, said that the amendment is dealing with the situation of two possible perpetrators only, but it does not actually say that. It just says “a possible perpetrator”. As soon as you begin to make inquiries and search around, you are going to add things in which begin to build up a context which the social worker will be able to put together before the threshold stage has to be crossed when the case is brought into court. My objection to the amendment is really that: that it does not give you any context at all. Surely, that is taking the matter too far.

The third and final point is the risk of damage. Let us contemplate a situation which is not far removed from the situation of In re J, where the woman—and let us take the woman because it was the woman in In re J—is living in an abusive relationship. That was indeed the case here because she had separated from the previous partner because he was violent to her repeatedly and eventually she left him. All sorts of reasons can be imagined why she did not blame him. She may have been under pressure from him. She decides to create a new life for herself, as indeed she was doing in In re J, making a relationship with somebody who is absolutely blameless, who has children of his own already. There she is, now in family with him with a further child of their own.

My concern is that, if the amendment is passed in its stark form, it holds a threat over that relationship from the very beginning. There must be a question about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of what happened in the past?” The amendment pays no regard to the length of time that may have elapsed between the incident when the perpetration occurred and the moment at which the inquiry is being initiated. Without elaborating further, it is the starkness of the amendment, which lowers the threshold, that is a cause for real concern.

I wrote to the noble and learned Lord, Lord Lloyd, with a suggestion about how one might approach the problem—because I do appreciate that there is a problem—by suggesting that, without using the word “sole”, one might be able to reassure social workers that this factor is relevant, which I believe firmly would be the case. If an amendment were to be framed which made that point and put it beyond doubt, then I would be entirely happy and I hope very much that it would reassure social workers. However, the amendment as phrased goes far too far and is too stark and for that reason I support the noble and learned Baroness, Lady Butler-Sloss, in resisting the amendment.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, oppose the amendment. I am glad that the noble and learned Lord, Lord Hope, has mentioned the difficulty where there is background of abuse against the mother of the child. I have been involved in cases where that has been the situation. That can often be the reason why a woman at trial does not testify, or at the police station does not give an account, of what has happened at the hands of her abusive partner who has also abused her child.

I was glad to hear the discussion that has just taken place, but my concern is the narrowness of the drafting. Before any judgment was made, I would want to be sure that one was able to explore the context and the situation that the mother was in at the time. Very often, battered women are frozen into a situation where they do not act to protect their child, and we should be very careful about not letting someone have a chance to make a new life with a new partner in very different circumstances where they would be perfectly good as a parent.