Armed Forces (Tri-Service Serious Crime Unit) (Consequential Amendments) (No. 2) Regulations 2022

Debate between Lord Hope of Craighead and Baroness Smith of Newnham

Tuesday 8th November 2022 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, as the noble and gallant Lord, Lord Craig of Radley, just said, this is a very narrow statutory instrument. It is perhaps surprising that its debate has such a wide audience. On the defence side of things, we are quite used to either having Statements right at the end of business or discussing SIs in Grand Committee, where there are usually about four of us. It is important that your Lordships contribute to, listen to and are part of discussions about defence, because they are so important—but the two SIs today are both narrowly focused on service justice.

Normally I would delegate all this to my noble friend Lord Thomas of Gresford, who unfortunately is not here today. In his absence I welcome the statutory instrument and note that it very much fits with the reviews we talked about on various occasions when looking at the overseas operations Bill, when the Minister repeatedly said that the Henriques report will say or do whatever. That is obviously part of this decision, as is the Lyons review.

Paragraph 7.1 of the Explanatory Memorandum notes that the defence serious crime unit should

“bring together the Special Investigations Branches of the Royal Navy Police, Royal Military Police and Royal Air Force Police”.

It then adds,

“along with specialist investigative support.”

Building on the noble and gallant Lord’s questions about availability of support, can the Minister indicate what sort of additional support might be available? Beyond that, we on these Benches are content with the SI.

[Lord Hope of Craighead (CB)]

My Lords, I intervene out of order, encouraged by what the noble Baroness just said. One point that attracted my attention is that the regulations apply to all parts of Great Britain and Northern Ireland,

“and the British overseas territories (except Gibraltar).”

Is there something particular about Gibraltar that means they do not apply there? It would be interesting to know why Gibraltar should be excluded. I am sure it is not an oversight, but the Explanatory Memorandum does not explain and it would be interesting to know the reason.

Higher Education (Freedom of Speech) Bill

Debate between Lord Hope of Craighead and Baroness Smith of Newnham

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I hesitate to intervene in this debate as I am not an academic. I look on the wording of the provisions in the Bill as a simple lawyer. For my part, I like the very simple wording of the existing provision in new Section A3. It is capable of accommodating changing circumstances and the various situations that academic institutions have to deal with.

The problem, with great respect to the noble Lord, Lord Moylan, is that he complicates that simple expression in new Section A3 with a serious of steps that are to be taken. I am not sure that anything he has said is inconsistent with what we find in new Section A3, but I would much rather keep it in the simple form that is already in the Bill without adding to the complication. To put it another way, the noble Lord, with great respect and with very good intention, is perhaps trying to do too much by expanding and trying to explain the duty already in new Section A3.

I do not object to the addition suggested by the noble Lord, Lord Willetts, but I do not think it is necessary as, if it is a relevant legal duty, it is already there to be performed; it does not need to be said. As a lawyer, I prefer simplicity—not all lawyers do—and I would like to keep it simple in the way it is already expressed in the Bill.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches we have relatively little to add. I strongly support what the noble Baroness, Lady Chakrabarti, said on various issues, not least about academic excellence because it is not just about academic freedom. Part of the purpose of a university is about educating and engaging in debate, but we are also trying to ensure that the minds of students are being stimulated. It is not just about academic freedom but that is part of it. As the noble and learned Lord, Lord Hope of Craighead, has said, Amendment 31 seems somewhat unnecessary. While on these Benches we support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens, if the Minister can persuade us that they are all implicit in the Bill and are not necessary, then perhaps they could not be moved.

Higher Education (Freedom of Speech) Bill

Debate between Lord Hope of Craighead and Baroness Smith of Newnham

Committee stage
Monday 31st October 2022 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.

Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.

My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.

At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.

It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to

“freedom of speech within the law”

in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.

There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.

I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.

Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:

“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”


It goes on to say:

“In this section ‘the right to freedom of speech’ means the Convention right”.


It then sets that out in full in the way that my amendment does.

My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Baroness Smith of Newnham

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Smith of Newnham]

My Lords, I rise in the absence of my noble and learned friend Lord Wallace of Tankerness, who has also put his name to this amendment. I want to raise a point that he has already raised with the noble and learned Lord, Lord Keen, and a couple of my own.

First, my noble and learned friend asked how EU law will take effect, given that under Clause 1, the European Communities Act 1972 will be repealed. It may be that ensuring Clause 6 has effect only after the transition period gets around that, but there is a real question about the United Kingdom implementing EU law from the day we leave—30 March next year—through to the end of December 2020. During that period, we will be subject to the European Court of Justice but, in principle, will have no representation—that is the point the noble Lord, Lord Kerr, made in passing: we will not have a judge. The noble Baroness the Leader of the House was asked whether the United Kingdom will still have a judge on the Monday. We assume it will not, but is that the case? Have the Government discussed it? In addition, will we have an Advocate-General? My understanding is that the current Advocate-General believes she is in an ad-hominem position.

[Lord Hope of Craighead (CB)]

I think it was the noble Lord, Lord Thomas of Gresford, who pressed this point. The answer we received was that this would be a matter for negotiation, the suggestion being that we would somehow negotiate the presence of a UK judge on the court. Rather like the point about nationality, having looked at the treaties, I think it is almost impossible to see how this could be arranged. I think we have to accept that we will not have any representation on the court because we will have no Members of the European Parliament.

[Baroness Smith of Newnham]

I am most grateful to the noble and learned Lord. In a sense, that puts us in an even more difficult position. Surely, one idea was that by taking back control we would be able to legislate and use our own courts. We will have 21 months in which we do what the European Union requests without having a say. What are the Government doing to ensure we have at least some sort of seat at the table?