Civil Partnerships, Marriages and Deaths (Registration etc) Bill

Lord Morrow Excerpts

Report stage (Hansard): House of Lords
Friday 1st March 2019 Lords Chamber

[Lord Collins of Highbury]

My Lords, I have added my name to this amendment, and I am extremely grateful to the noble Lord, Lord Hayward, for continuing to push this issue because it is a fundamental one. It is not unrelated to the debate that we had on Amendment 1, because no one disputes the rights of religious people to determine their own rules and regulations and to determine their view. But freedom of religious belief is also about not imposing on others. That is what this debate is about today.

The debate is also about means. We get stuck into this issue because, at the moment, there are no means to ensure that we treat all our citizens in our United Kingdom in the same way, apart from pushing this sort of legislation. As the noble Lord, Lord Hayward, said, if the majority of people in Northern Ireland so desire to adopt same-sex marriage, at the moment there are no means to do it. The fact of the matter is that there is huge support in Northern Ireland for same-sex marriage. I never thought that I would see the day when a referendum conducted in the Republic of Ireland would result in support for it. In fact, we have seen huge change in communities, and it is about recognising the human rights of individuals. That is what today’s debate is about.

Of course, it is not correct for me to say that there are no means for change because this Parliament has the right, as Ministers have said. I heard the noble Lord, Lord McCrea, in Committee, and I recognise that there is an issue about devolved government and devolved powers. In fact, I am sure that everyone in Northern Ireland who has been campaigning for this would rather that they won it in their own communities and their own Assembly. They would rather have that, but as the noble Lord, Lord Hayward, said, they do not know what means will be available to achieve that at the moment. They are asking for our support and encouragement, and I am certainly prepared to give that.

I agree with the noble Lord that no one wants to hinder or harm the Bill in its progress through Parliament. I certainly do not. I have had many emails from people saying that they do not want to lose their hope of civil partnership, because they have been against marriage as an institution but want to protect their legal rights; civil partnership is a means of doing that for the first time. I certainly do not want to stand in their way, but I also know of the frustration and hurt that many people in Northern Ireland feel because they cannot exercise the same right as the rest of us in celebrating a same-sex marriage.

It is about time, and I hope that this amendment will send a clear message: that our debate today is saying that Parliament must act to address this fundamental denial of equality and human rights. Parliament must act and, as the noble Lord, Lord Hayward, said, this is about having a free vote—a vote that we can all support, across all sections of Parliament.

However, I hope that during this debate we will hear the Minister being able to address the question: if not now, when? If it is not now, will she commit, as my party will, to guaranteeing the next earliest opportunity to ensure that everyone in the United Kingdom has the same rights? We want to hear about progress and a timetable, so I support this amendment.

[Lord Morrow (DUP)]

My Lords, perhaps I may make a few brief comments. We have had quite a number of challenges from those who have already spoken on this issue. They recognise, I think, that the Northern Ireland Assembly is the place to decide this matter, and, as a former serving Member of that Assembly, I could not agree more.

We need to keep things in perspective, because it seems to me that a number of debates are contained within one debate today. In our previous debate, about animal welfare, the noble Lord, Lord Gardiner, said that it would be up to the Northern Ireland Assembly to decide these issues. When asked about the position in relation to Northern Ireland, he said that it was a matter for the Northern Ireland Assembly. I wondered then whether the next issue for debate would be a matter for the Northern Ireland Assembly. I will repeat what I have said on other occasions in this House: give us the Assembly or give us direct rule. At the moment, we are in no man’s land, and we cannot abide there much longer. Northern Ireland deserves to be governed, just like any other region of the United Kingdom.

There was allusion to the fact that the petition of concern is the problem. Let me make it very clear: at no time did my party ask for a petition of concern to be inserted into the Belfast agreement. We believe that it is very bad government to have it and we will say that anywhere. However, it is there; ironically, at the last talks neither Sinn Féin nor the SDLP wanted it withdrawn. We believe that there is a much better way to do it.

We have to be very careful. If we start cherry picking—saying that we will do this piece of legislation but we will not do that—where will that take us? We can draw only one conclusion. When this House and the other place start to make legislation relating to Northern Ireland, irrespective of the issue—and this is where we get lost sometimes—the message will go out very clearly that both this House and the other place have given up on devolution.

I have said this before and I think it bears repeating: if devolution returns tomorrow—it is unlikely to be tomorrow, since it is Saturday, but we will take Monday—the first through the door will be my party. We will be at the head of the queue. We did not bring the Northern Ireland Assembly down, but, because of the way the Belfast agreement was constructed, one party can at any time bring the whole thing to a halt.

Let us face the elephant in the room. We were told that Sinn Féin could not continue because of RHI. But there has been a public inquiry into RHI and it will make its findings known within months or perhaps weeks—that fox has been shot. What is now holding it up? Sinn Féin has another list of things that it needs—and you can be sure that, once there is any move to bring back the Assembly, another list will appear to say we cannot have devolution because this has to be done. Remember, this is not the first time that the Northern Ireland Assembly has come to a standstill. Noble Lords will recall that there was another occasion.

[Lord Faulkner of Worcester]

Can the noble Lord give an assurance that the DUP would not block the equal status of the Irish language if it were part of a devolution settlement and the restoration of the Assembly?

[Lord Morrow]

That would be equivalent to the DUP asking Sinn Féin to give assurances tomorrow that it will never again bring the Assembly to a standstill. We do not know what the circumstances will be. Sinn Féin brought it to a standstill. The last time it did this was on social security issues; then, after a long delay, it caught on that this was a matter that came from London, and so it could not change it.

[Lord Kilclooney (CB)]

Does the noble Lord understand what the phrase, “equal status for the Irish language” means? Because I do not. Less than 1% of the people of Northern Ireland show an interest in the Irish language, so equal with what? More people speak Polish, Chinese or Lithuanian. Irish is very much a minimal language in Northern Ireland.

[Lord Morrow]

There are many occasions on which I disagree with the noble Lord, Lord Kilclooney, but this is not one of them. I could not say it better myself. He has put it very eloquently, and he was one of the architects of the Belfast agreement. It is a flawed agreement, I might add, but it is there. It is not the best structure for good government and it is quite confusing. Even those of us who tried to work within it, and those of us who served as Ministers within it, know how restrictive it is and how complicated it can be. Indeed, when you explain to the general public, they throw their hands up and say, “And that is in the name of democracy”. They bid you well, give you a pat on the back and say, “Carry on in your own wee world”.

Let us be very careful, irrespective of how sincere people might be on any issue. The noble Lord, Lord Hayward, said something that struck me. He said that things are changing in Northern Ireland—and he might be right. I live there and have lived all my life there. In 1973, I went into politics as a local councillor and served for some 40 years—I know I do not look that age, but there you are. I went into the Northern Ireland Assembly, where I served for some 18 years, and I have been in this House for some 12 years. I have some idea of what is happening and of what makes Northern Ireland tick. Today, we say very clearly to this House: give us back the Northern Ireland Assembly and bring every issue that you wish to the table—every issue, even those I might emphatically disagree with.

I finish by saying that I was not one of the signatories to the Belfast agreement, but I had to accept it. When it was put to the people, they voted for it by a very small majority—particularly on the unionist side. As a democrat, I said: the people have spoken and I must listen to them.

[Lord McColl of Dulwich (Con)]

My Lords, when I approach the subject of Northern Ireland, I do so with sensitivity to its troubled history and with an overwhelming conviction that devolution in Northern Ireland is very important. While it is certainly far from perfect, Northern Ireland politics has been greatly enhanced by devolution. Mindful of this fact, the point must be made with respect to the amendment before us today that we cannot start legislating on devolved matters as if we were in a direct rule situation without unsettling and potentially unravelling devolution. If we do so on this matter, a precedent will be set and then there will be pressure to do it in other areas. As the noble Lord, Lord Morrow, said, we cannot cherry pick.

Given the special value of devolution in the history of Northern Ireland, I would not want your Lordships’ House to act in a manner that created new pressures that would make the general unravelling of devolution more likely. Of course, I accept that at some point in the future there may have to be a decision to reintroduce direct rule, but we are not there yet and it would be wrong for your Lordships’ House to act in a way that does anything to revive direct rule practices, with all the attendant constitutional implications, by way of precedent.

In making this point, I should say that I have spoken to my noble and learned friend Lord Mackay of Clashfern. He regrets that he cannot be here today, but has given me permission to quote him in saying that,

“for so long as a matter is devolved, notwithstanding the current difficulties, it would be quite wrong for your Lordships’ House to pass legislation in relation to it”.

Mindful of these considerations, while today’s debate has served the useful purpose of putting these matters on record, I hope very much that the amendment will be withdrawn.

--- Later in debate ---

[Lord Hayward]

My Lords, this has been a full and very constructive debate. First, I apologise to the noble Baroness, Lady Barker, if I leave the Chamber immediately after my amendment is dealt with—I will return as quickly as possible.

Secondly, somewhat surprisingly, I disagree with the noble Lord, Lord Cashman, and others, who talked about responsibility in relation to gay marriage and equality in Northern Ireland. I do so on the basis that a legal case is coming, which may decide where the responsibility lies. I agree with the noble Lords, Lord Kilclooney, Lord McCrea and Lord Morrow, that it would appear that, under the legislation, responsibility for this matter would fall to the Northern Ireland Assembly if it were sitting. If it did not fall within that remit, this House and the other place should have made that clear when preparing the legislation. So, to some extent, the problem we are in falls to us as legislators in Westminster.

I was particularly pleased by the acknowledgement by the noble Lord, Lord Morrow, that things in Northern Ireland are changing.

[Lord Morrow]

Maybe.

Finance (No. 3) Bill

Lord Morrow Excerpts

2nd reading (Hansard): House of Lords & 3rd reading (Hansard): House of Lords & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Thursday 7th February 2019 Lords Chamber

[Lord Morrow (DUP)]

My Lords, in the time available to me, I would like to address an amendment tabled by some 20 Members of Parliament on Report in the other place. The amendment asked the Chancellor to review the effective marginal tax rate placed on low-income families in the UK. The amendment was not selected or debated, but I hope that by raising it today I can give expression to a matter that the other place clearly wanted to address in relation to the Bill. In doing so, I note that this is a matter which has caught the attention of noble Lords from other parties who would have liked to be here today to speak to it.

The effective marginal tax rate is the amount of any additional pound that someone would earn on top of their current income that would go to the Exchequer in the forms of tax, national insurance and lost benefits. It is a key measure of aspiration. If you know that if you work harder you will keep most of the additional money that you earn, there is an incentive to do so and take your family to better things. If, however, you know that most of the additional money you earn will go to the Government, the incentive to earn your way to better things will be substantially eroded.

It is always good to run an economy in which hard work is incentivised. This, however, becomes an imperative when dealing with low-income working families. Of all people, these are the ones we want to aspire and know that hard work can deliver. Indeed, they are the very people to whom the Prime Minister pledged herself on the steps of Downing Street in July 2016. It is therefore of huge concern to me that it is this income group in particular that our current fiscal arrangements do more to deprive of aspiration than any other.

The CARE and Tax and the Family report, The Taxation of Families— International Comparisons 2017, which was published last year, and the Manifesto to Strengthen Families report, Making Work Pay for Low-Income Families, published by MPs this year, show that low-income families in receipt of tax credits face a marginal effective tax rate of some 73%. This means that the families in question get to keep just 27 pence from every additional pound earned, with 73 pence going to the Exchequer in the form of tax, national insurance and lost benefits. A low-income family in receipt of tax credits, housing benefit and council tax benefit meanwhile faces a staggering effective marginal rate of 96%, meaning that they get to keep just four pence in the pound, with 96 pence going to the Exchequer in tax, national insurance and lost benefits.

If we placed a higher rate of tax of 73%, or—perish the thought—of 96%, on the rich, there would very properly be a national outcry. This, however, is the effective marginal tax rate that we place on low-income families. Rather than empowering these working families to raise themselves up, we push them down and trap them in relative poverty. Of course, I appreciate that some regard has been given to this problem and that under universal credit the 96% rate will come down to 80%. However, I find no comfort in this at all. Eighty per cent is higher than anywhere else in the developed world, and the 73% rate actually increases to 75%.

At this point some might say, “Hang on, is the effective marginal rate not just the inevitable consequence of providing benefits? If you don’t like the effective marginal tax rate, the simplest solution would be to abolish benefits”. I am absolutely not advocating that.

While I acknowledge that if you give benefits you create a marginal rate as income rises and those benefits are withdrawn, the problem I seek to highlight today is that our effective marginal rates are much higher than those anywhere else in the developed world. If we use OECD data to compare the way in which all OECD countries treat a one-earner married couple with two children on 75% of the average wage, the marginal effective tax rate that they face in the UK—that 73%, the lowest of the above rates—is already the highest of any country anywhere in the developed world. The OECD average is just 33%. This poses a very important question that I would like to set before the Minister today. If other developed countries—all of which have effective benefits systems—can have an average effective marginal tax rate of 33%, rather than 73%, so can we. As Fiona Bruce, the Member of Parliament for Congleton, urged recently in another place, “So must we”.

Interestingly, the 73% figure is also very high in the history of the UK. In 1990, the effective marginal rate on such a family was just 34%, practically the same as the OECD average marginal effective tax rate on such families today. The Manifesto to Strengthen Families report concludes that our unusually high effective marginal tax rates are the result, first, of Mrs Thatcher’s failure to accept the proposal of the noble Lord, Lord Lawson, for fully transferable allowance for married couples, and then Gordon Brown’s decision to remove the additional person’s allowance and married couple’s allowance in 2000. The effect was that, from that point onwards, the income tax system made no provision for family responsibility and had to compensate for that by inflating benefits. It is the withdrawal of those inflated benefits, on top of an income tax rate that ignores family responsibility, that creates our confiscatory marginal rates as the inflated benefits are withdrawn.

One response to this problem would be for the Government to try to find more money to further reduce the universal credit taper rate. While that would be welcome, a recent Centre for Policy Studies report shows that for those earning above their personal allowance, it would reduce the effective marginal tax rate to only 66%. This would mean that low-income families would continue to lose more of every additional pound earned to the Exchequer than they would take home. While I would not oppose attempts by the Government to look for more money to reduce the taper rate, I submit that this strategy does not really address the presenting problem.

Rather than looking for new money to help these low-income working families, what is really required is to look at distributing the current money allocated to help those families in a different way, so that it comes partly through the tax system rather than wholly through the benefits system. This would create two mutually reinforcing downward movements on the effective marginal tax rate. First, the income tax element of the effective marginal tax rate would fall as a result of households with family responsibilities being taxed less. Secondly, the benefits element of the effective marginal tax rate would fall as a result of there no longer being a need to inflate benefits, because of the prior change in the tax rate on those families. This would mean that when benefits were withdrawn, they would not create the confiscatory effective marginal rates experienced at present.

This is the central conclusion of the Manifesto to Strengthen Families and the Make Work Pay report. It is a conclusion to which the Government must now give their urgent attention because, ironically, although the very highest effective marginal rates will fall slightly under universal credit, people will become more aware of our confiscatory marginal rates than they were under tax credits. Under tax credits, if someone works overtime this month or takes a second job, it will affect their tax credit entitlement only next year and will not be clearly identifiable with the increased income. By contrast, under universal credit, working more hours or taking another job will affect the amount of credit received next month. The link between working more and receiving less will therefore be much more immediate and apparent. This will make our marginal rate problem much more difficult to sustain.

I am very glad that, although this matter was not debated on Report in the other place, it was the subject of a 90-minute debate a week later. I am delighted that in responding to the debate, the Financial Secretary to the Treasury, Mel Stride, the Member of Parliament for Central Devon, said:

“I will respond directly to the overarching request made of me this morning, which is that I go back to the Treasury with the report and the comments made in this debate and look genuinely and deeply at the issues raised. I can give an unequivocal commitment to do precisely that”.—[Official Report, Commons, 16/1/19; col. 399WH.]


I put on record in this place that, although I should have preferred the amendment moved on Report on effective marginal tax rates to have been accepted, I very much welcome that commitment. Can the Minister advise the House on what stage that promised investigation has reached? If it has not yet been concluded, there are those in this House who are also eagerly awaiting the outcome of those reflections. This is a matter requiring the Government’s urgent attention.

Counter-Terrorism and Border Security Bill

Lord Morrow Excerpts

Monday 17th December 2018 Lords Chamber

The Minister mentioned to me that the guidance would have to be updated in any event within 12 months. However, given the serious implications of the confusion that I have highlighted, it would be helpful if that review could be brought forward a little. If that is not possible, a supplementary definition of when non-violent extremism is a relevant consideration under Section 36 and when it is not would be a useful temporary solution. I beg to move.

[Lord Morrow (DUP)]

My Lords, I am very pleased to speak in support of Amendment 46. I want also to put on the record my thanks to the Minister for facilitating the meeting with the noble Baroness, Lady Howe, and me.

It is not my intention to repeat what the noble Baroness has said, but I want to say clearly that I agree with all of it. The Minister asked her and me whether we could think of any examples of confusion resulting from the inconsistent approach set out in guidance as to when non-violent extremism can be addressed in responding to the Section 36 duty, which pertains narrowly to terrorism, and when it cannot. I shall set out at least two examples.

Before I do so, however, I want to say that, even if there were no examples, it would still be important that when a lack of clarity was highlighted we did not wait for a problem before recognising the need to take action. I am a great believer in recognising where there is potential for problems before they make their presence felt and intervening to address the source of the difficulty in question.

Paragraph 129 of Mr Justice Ouseley’s judgment clearly demonstrates that he has already identified a tendency for people to misconstrue the guidance as it relates to the definition of the threshold that has to be crossed for consideration of non-violent extremism to become relevant. He states: “However often that phrase”—that is, preventing people being drawn into non-violent extremism—

“is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.

In my judgment, this is no more than sufficient justification for the Government to recognise the importance of intervening in order to bring the requisite clarity. This could be done relatively easily by employing Mr Justice Ouseley’s definition of when non-violent extremism is relevant to discharging responsibilities under the terrorism Act 2015 and when it is not.

Despite this, I will now turn to two specific examples, starting with the experience of the National Union of Teachers, which has asked:

“How are schools and sixth form colleges expected to incorporate the Prevent strategy into their existing safeguarding policies? The Prevent duty guidance is again lacking in detail on this point. It says schools ‘will need to consider the level of risk to identify the most appropriate referral, which could include Channel or Children’s Social Care, for example’. It also requires these policies to ‘set out clear protocols for ensuring that any visiting speakers—whether invited by staff or by children themselves—are suitable and appropriately supervised’”.


Crucially, however, the NUT then goes on to observe that the guidance,

“does not indicate which acts/behaviours warrant a referral to Channel or Children’s Social Care”.

This clearly illustrates the problem.

The NUT is not saying that it cannot see terrorism, which is fairly easy to identify. Its difficulty pertains to the lack of clarity regarding what else is relevant, and at the heart of that challenge is knowing what non-violent extremism is engaged and what non-violent extremism is not engaged. On the basis of some parts of the guidance, one could think that all non-violent extremism is relevant. On the basis of the legal definition in his judgment, however, Mr Justice Ouseley is very clear that non-violent extremism is relevant only if it is connected to terrorism in the sense that it,

“risks drawing others into terrorism before the guidance applies to it”.

He then, of course, looks at it from the other perspective, saying:

“If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.


These are the tests that should be being applied but, as the noble Baroness, Lady Howe, has demonstrated, the current guidance does not uphold them and does not have a clear and consistent definition of when non-violent extremism is relevant for the purpose of discharging the Section 36 responsibilities and when it is not relevant. Having considered this NUT example, it is also helpful to have regard to the 2016 Joint Committee on Human Rights report on counter- extremism. Again in relation to education, it states, at paragraph 46, that:

“On 21 June 2016, the Times reported that ‘in schools 1,041 children were referred last year to Channel, the de-radicalisation programme; in 2012, the year it was extended nationally, only nine children were referred’. Evidence on the proportionality of such referrals is almost entirely anecdotal at this stage. Yet it is far from clear that it was envisaged that so many children would be referred. Tell MAMA has stated that it has ‘received a number of cases involving schools and where Muslim young people have been interviewed on the back of alleged comments that they have made within the school environment’. They argue that some of these individuals ‘believe that they have been targeted because of their faith’”.


In other words, the JCHR is questioning whether the scale of referrals is appropriate.

If teachers are overreferring, this is not because they are seeing lots of terrorism in our schools. It is almost certainly because they are seeing what they perceive to be non-violent extremism and think that it provides a basis for a referral. Clearly, if non-violent extremism as a whole is in play, it provides a very broad basis for making referrals that would be consistent with these numbers. This misreading is, of course, entirely consistent with Mr Justice Ouseley’s observation that preventing people being drawn into non-violent extremism arises out of,

“a fundamental misreading of the guidance”.

He is very clear that, legally, the relevant Section 26 duty—and we may add by extension the relevant Section 36 duty, since both are confined to terrorism—engages non-violent extremism only to the extent that it can be shown to be connected to terrorism by playing a part in drawing people into it.

When we are confronted by a general tendency for people to misread the guidance, we can safely assume that the guidance is not clear. That is precisely what the noble Baroness, Lady Howe, has shown, by looking at the relevant texts. The Minister told the noble Baroness and me that these concerns could be addressed within 12 months because the guidance documents would be up for review by then. However, given that there is evidence suggesting that non-violent extremism is being applied generally, without regard for the appropriate legal constraints, reviewing the guidance is now a matter of considerable urgency.

It was your Lordships’ House that set the legislative framework providing the foundations for the Prevent and Channel duty guidance when we scrutinised and passed the 2015 Act. The evidence highlighting that the guidance is not clear and that it is being misread, to allow it to be applied to non-violent extremism not licensed anywhere in the legislation that we signed off, should be a real concern to every Member of your Lordships’ House.

In this context, while I appreciate that in the normal course of events there will be an opportunity to review the guidance documents in 12 months, I am not persuaded that it is appropriate to leave the many public servants who are expected to discharge this duty with guidance that we know is vulnerable to being misread for possibly as long as another 18 months, depending how long the review lasts. Mindful of this, I ask the Minister to take this matter away between now and Third Reading to see whether, mindful of the practical implications arising out of the lack of clarity, it might be possible to bring forward a review.

As the noble Baroness, Lady Howe, said, I do not think there is necessarily a need to rewrite the entire guidance documents. What is required is a clear statement at the start of the documents and in the glossary that says words to the effect of, “Any reference to extremism in this document must be read as engaging only non-violent extremism, to the extent that it is connected to terrorism, in the sense that it can be shown to play a part in drawing people into terrorism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist poses such a risk, the guidance applies. It is not an issue that preventing people being drawn into terrorism is a legitimate aim”. I believe this would bring much-needed clarity. I look forward with great interest to what the Minister has to say in response.

[Lord Stunell (LD)]

My Lords, I cannot in any way match the forensic and destructive analysis of the present situation provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow. I thank them for that. I think that the Minister has some serious answering to do on those very technical points—the case was argued in much detail.

I want to very briefly make a much broader point. When we make weapons of law in this place, who will wield them in the future? The very compelling point by the noble Baroness, Lady Howe, that one person’s non-violent extremism is somebody else’s common sense, is one that we ought to have very much in our minds. We should regard that as being precious and part of our heritage as citizens of this country.

It is also something that changes over time. I want to confess to the House that, on one reading of history, I am a non-violent extremist. I am a supporter of the views of Thomas Helwys, who fled this country in 1605 because of the tract that he published which stated that every man should be free to worship his own God, in his own way, whether Catholic, Jew or Muslim. He very sensibly fled to the Netherlands for four years after publishing that tract. He subsequently returned to this country, was arrested and was imprisoned for life in the Tower of London. That is an example of the fact that fashions change and things change in our own country. They also change geographically. In the European Union, 10 years ago it was perfectly safe and proper to be a lecturer at George Soros’s university. Now you are an enemy of the state.

Who holds the weapons concerning what is extreme and what is common sense? I hope the Minister will consider that point as well as the forensic and detailed critique provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow.

Counter-Terrorism and Border Security Bill

Lord Morrow Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

Thus, the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism. The Prevent duty guidance should be updated so that the guidance consistently reflects this position. The other relevant guidance documents that could also have bearing on the discharging of the responsibilities defined by Section 36 of the 2015 Act, which Clause 19 amends, should be similarly updated. Moreover, these documents should also be updated to reflect the distinction that Mr Justice Ouseley has made in their application generally beyond Section 36. I beg to move.

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Baroness, Lady Howe, on bringing forward Amendments 89 and 91, which I am content to support.

Like the noble Baroness, I scrutinised the Minister’s letter, which I will come back to. The letter makes two key claims with respect to the Channel guidance. First, it states:

“The Channel Duty Guidance is clear that ‘preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology’”.


In this context, the Minister argues that the only point of intervention would be where extremist ideas are used,

“to legitimise terrorism and are shared by terrorist groups”.

In truth, however, as the noble Baroness, Lady Howe, pointed out, the guidance contains some references to extremism that are not rooted in a necessary connection to terrorism, and it thereby effectively mandates two interventions: one quite properly, where there is concern that the individual in question is being drawn into terrorism, whereas the other is effectively a monitoring intervention to monitor people whose views the state considers extreme but in relation to which there is no need for any immediate connection to terrorism. I assume that the thought is that because they have extreme views, there is a chance that they could at some point show signs of interest in terrorism, but in the absence of anything other than a vague definition of extremism, this opens the door for the state to start monitoring any views its officers decide are extreme. I find this second intervention Orwellian and illiberal.

The current legislation in Section 36 of the 2015 Act provides a clear and narrow remit that is confined to terrorism. It is completely inappropriate to issue guidance that strays into undefined views that the state or its representatives happen to find extreme, unless they are connected to espousing or celebrating terrorism.

This problem is clearly underlined by the fact that paragraph 124 of the new Counter-Terrorism Strategy, published in June, comments on the Channel programme and states:

“Channel is run in every local authority in England and Wales and addresses all types of extremism”.


That tells us all we need to know: it addresses extremism in all its forms, and thus there is no necessary connection of any sort with terrorism. I find somewhat disingenuous the suggestion from the Minister that the Channel guidance is the only guidance that will inform the approach of local government officials in discharging their responsibilities under Section 36. I completely accept that the Channel guidance has been specially developed to help local government discharge its responsibilities with respect to Section 36. It is certainly the guidance to which local authorities refer first when considering their Section 36 responsibilities. However, that does not mean that the other guidance documents to which the noble Baroness, Lady Howe, referred will not be consulted.

The fact that the Channel process is part of the Prevent strategy is spelled out for us by the Channel guidance. Paragraph 7 of Section 1 states:

“Channel forms a key part of the Prevent strategy”.


In this context it would not be at all surprising if the Prevent Duty Guidance was consulted in addition to the Channel guidance to provide a broader context as Channel is, by the guidance’s own admission, part of the Prevent strategy. On the same basis, it would not be at all surprising if a local authority in want of a better understanding of extremism also turned to the Counter-Extremism Strategy, or if a local authority in want of a better understanding of terrorism also turned to the Counter-Terrorism Strategy. This is where Justice Ouseley’s judgment becomes so important.

In her letter, the Minister said:

“The High Court in the case of Salman Butt v the Secretary of State for the Home Department, which Baroness Howe also mentioned, was clear that the Government was fully within its powers to include this form of non-violent extremism within the scope of the Prevent Duty Guidance”.


I accept that it is possible to find a good number of statements in the Prevent Duty Guidance that are consistent with this statement. Take paragraph 38, for example, which states:

“We expect local authorities to use the existing counter-terrorism local profiles … produced for every region by the police, to assess the risk of individuals being drawn into terrorism. This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.


However, it is also possible to find numerous references to extremism in the Prevent Duty Guidance, where no such distinction applies—for example, in paragraph 106, which states:

“Prisons should perform initial risk assessments on reception, including cell-sharing risk assessments, and initial reception and induction interviews to establish concerns in relation to any form of extremism, be that faith based, animal rights, environmental, far right, far left extremism or any new emerging trends”.


Let us now consider paragraph 109:

“Appropriate information and intelligence sharing should take place, for example with law enforcement partners, to understand whether extremism is an issue and to identify and manage any behaviours of concern”.


Again, there is plainly no necessary link to terrorism here; and let us consider paragraph 131:

“In addition PCTLs should lead the development of, for example, faith awareness or Extremism Risk Screening training of local training and staff development to supplement the Prevent awareness training. This should focus on emerging issues and any new support and interventions that become available”.


I could go on, but in some ways the most damning statement from the guidance is the glossary definition of extremism, which provides the baseline account for the term in the guidance. The glossary in the 2015 guidance, which can be located on page 21, states:

“‘Extremism’ is defined in the 2011 Prevent strategy as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas”.


Crucially, this definition does not require any connection with terrorism. The calling for the death of servicemen is not necessary to meet the definition which also does not require any other link to terrorism. It is this glossary definition of extremism that is being used to broaden the scope of the Channel and Prevent duties. The very moment these duties divert from their primary aim of addressing the risk of people being drawn into terrorism to addressing the risk of people being drawn into terrorism and extremism—where the two are contrasted they clearly are not the same—we are at risk of becoming an Orwellian state.

In this context, it is particularly concerning that, as reported by the Joint Committee on Human Rights, Dr Charlotte Heath-Kelly at the University of Warwick has warned about her concerns with local authority involvement in Prevent. She said:

“We have found that this leads healthcare professionals and Local Authority processes to enquire into incidences of dissent and illiberal political beliefs—rather than vulnerability to abuse in persons with formal care needs (the legal definition of safeguarding). For example, during our study of local authority owned Prevent work, we found cases where children had been referred to safeguarding teams for watching Arabic television, and where adults were referred for planning pilgrimage trips. While these incidents did not reach Channel, it is crucial that the select committee investigate the low level, and misguided, monitoring of religiosity and political beliefs. People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.


I very much hope that, when the Minister responds to this debate, she will acknowledge that there are real concerns here; I hope she might be willing to meet concerned Members to discuss the matter between Committee and Report about the way the relevant guidance documents handle extremism.

I should say that there are members of the other place who would also like to attend such a meeting with the Minister. They had wanted to raise this matter through an amendment on Report but were somewhat taken aback by the fact that the day the Government announced the date for Report in another place was the very same day as the deadline for submitting amendments. This meant that the only amendments tabled on Report in another place were from the Front Benches, who knew in advance the date for Report and thus the deadline for tabling amendments to explore these issues. There was not a single Back-Bench amendment.

[Baroness Williams of Trafford]

My Lords, I thank both the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe, for explaining the amendments at length. I say at the outset that I am happy to meet with both the noble Baroness and the noble Lord in due course.

Both at Second Reading and today, the noble Baroness mentioned a number of guidance documents and strategies which she suggested had informed the decisions made by local authorities about the referral of individuals to a Channel panel. Among them, she referred to the Prevent Duty Guidance. However, this guidance is not the relevant document which will guide local authorities through this process. The Prevent Duty Guidance concerns a separate duty, the wider Prevent duty, containing Section 26 of the Counter-Terrorism and Security Act 2015. The proposal in Clause 19 instead talks of the duty of local authorities to maintain a panel to assess and provide support to people who are vulnerable to being drawn into terrorism; this is commonly known as the Channel panel. The statutory basis for these Channel panels is found in Sections 36 to 41 of the 2015 Act. This is accompanied by its own statutory guidance, issued under the power in Section 36(7), known as Channel duty guidance.