Counter-Terrorism and Security Bill

Debate between Lord Macdonald of River Glaven and Lord Elystan-Morgan

Wednesday 4th February 2015 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, there is no doubt that freedom of speech in universities is utterly essential. Without it, there can be no concept of a real university. Freedom of speech is of course a basic human right, but in a university it is the very bedrock on which its concept is founded.

A week ago, in Committee, the noble and learned Lord, Lord Scott, reminded us that if a university loses freedom of speech—the right to discuss, examine, disseminate and comment on all manner of opinions in the widest possible range—it becomes an intellectual closed shop. I do not think that it could be better put than that. It is against that template that one has to consider all these matters.

I raise a point which follows very closely that of the noble and learned Lord, Lord Hope of Craighead. It relates to Section 43 of the Education (No. 2) Act 1986. The question is whether what is proposed by the Minister in Amendment 15D goes far enough. The fact that “particular regard” has to be paid leaves an open question as to exactly how the two concepts can sit together: the concept in Section 43 of freedom of speech in a university and the concept of statutory guidance, around which the clauses of Part 5 are built. To my mind, it still leaves a dubiety. That is why I support Amendment 14.

I am not sure exactly what wording should be used to improve the situation—it is always dangerous to try to make legislation on the hoof—but I should have thought that one could look to a different precedent. In Section 1 of the Children Act 1989, a court is enjoined, in dealing with a child’s case, to consider seven or eight different situations, but it is stated that the welfare of the child shall be regarded as the “paramount consideration”. Whether the word used is paramount or prime it could so be made clear that, where the two matters—the principles of Section 43 and those set out in the statutory directive—are in conflict, Section 43 should remain paramount.

Section 43 does not stand alone. Another very relevant section is Section 202 of the Education Reform Act 1988. That protects the employment of a person who may be teaching out-of-the-way subjects. Section 202 states that university commissioners,

“shall have regard to the need … to ensure that academic staff have freedom within the law 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 privileges they may have at their institutions”.

Why has Section 202 not been included in the same bounty as Section 43 of the 1986 Act in the Minister’s amendment? I am sure that he will pay close attention to that situation.

I also wish to raise a point which may or may not have relevance, which is the position of Wales. Like Scotland, Wales enjoys devolved powers in relation to higher education. Does the problem identified by the noble and learned Lord, Lord Hope, apply to Wales? I do not think so, but I would like to be totally reassured on that point. These are not simple matters, but they are well worth our best and most detailed and concentrated attention at this very moment. I have very great respect for the Minister and indeed I have some sympathy with him, because 47 years ago—hard as that is to believe—I held exactly the same position in the other place as he does now, and dealt with the same subjects. These are matters which deserve our very best concentration.

[Lord Macdonald of River Glaven (LD)]

In speaking to my Amendment 14A, I again declare an interest as warden of Wadham College, Oxford. Last week in Committee I put my name to the amendment tabled by the noble Lord, Lord Pannick, the purpose of which was to remove universities entirely from the ambit of the Bill. I did so because of what seemed to me to be the self-evidently paramount importance of free speech in universities, and because the obligations that the Bill placed on universities appeared to conflict with their statutory duties under the Education Act 1986 to secure freedom of speech, not only in their institutions but for visiting speakers.

It is fair to say that in debate in Committee there was overwhelming support for the proposal that universities should be removed from the ambit of the Bill. I remain firmly of the view that the definition of “non-violent extremism”, which the Minister has recently set out again, is absolutely hopeless in its application to universities. This is because one can with the greatest of ease imagine all sorts of discussions, lectures and seminars taking place on topics which would be caught by the Government’s definition, and people in those lectures and seminars expressing intellectual views which would also fall under the definition. As far as I am concerned, it is hopeless for the Government to seek to apply such a definition to universities, which are particular places of debate, discussion and intellectual inquiry.

There was overwhelming support in debates—virtually every Peer who spoke did so in favour of the removal of universities from the scope of the Bill—yet, when winding up, those on the Opposition Front Bench made clear that they would be unable to support such a proposition, so last week I tabled a further amendment. The purpose of this Amendment 14A was to secure some reassurance that any risk that the Bill would undermine academic freedom would be mitigated, by placing in the Bill an obligation on universities to approach their duties under it in the light of their pre-existing free speech obligations under the Education Act. Like the noble and learned Lord, Lord Hope, obviously I was pleased when on Monday the Government tabled their own amendment, which in effect secures the same thing.

Like the noble Baroness, Lady Lister, I should have liked much more on this, for all the reasons which she articulated so ably. I should be delighted if the Government were minded to accede to her amendment. Nevertheless, it seems to me to be important that we secure the Government’s acknowledgment—and an acknowledgment on the face of the Bill—that these provisions apply to universities only within the critical context of their statutory freedom of expression duties. This is so that in future it cannot be argued that those duties are displaced by the passage of the Bill: they are not. The Government’s amendment seems to me to make explicit that they are not. I am grateful to the Minister for securing the Government’s movement, such as it is, on this important and fundamental issue.