Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, it goes without saying that we are united in our abhorrence of violent terrorism, not least as our debate takes place under the shadow of the appalling murders in Paris. However, the magnificent solidaristic reaction in France and beyond reminds us of the values our Government seek to protect through this legislation. Democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs are not, as claimed, uniquely British values but—I would argue—values of democratic citizenship. The implications of the Bill for democratic citizenship and human rights are what I wish to explore in my contribution—with reference to the report of the Joint Committee on Human Rights, of which I am a member—not least because if the Bill is seen to infringe the citizenship and human rights of one particular community, it could have the opposite effect to that intended. This echoes the point made so strongly by the noble and learned Lord, Lord Lloyd of Berwick.

In Part 1, the JCHR accepted the case for a new power to seize travel documents but, in view of the significance of such a,

“power to interfere with the right to leave the country”,

it emphasised the importance of the,

“procedural safeguards … to ensure that it is not exercised disproportionately”.

We therefore made a number of recommendations for strengthening these safeguards so as to uphold the rule of law. The proposal for temporary exclusion orders has been more controversial. To his credit, the Minister, James Brokenshire, rejected his colleagues’ attempts to persuade him to rename it a “managed return order”, which was advocated also by some noble Lords, because, he acknowledged,

“it is exclusionary in its nature during the period prior to return”.—[Official Report, Commons, 6/1/15; cols. 207-08.]

He also argued that this is “not about citizenship”. That may be true in so far as it is not about the formal, absolute deprivation of citizenship; I welcome the retreat from the proposal originally announced by the Prime Minister in September. Clearly, however, it fetters the right of a citizen to return to his or her country of citizenship and therefore it is “about” citizenship, and in effect suspends it.

In the JCHR’s view there is,

“a very real risk that the human rights of UK nationals will be violated”,

and we made clear our opposition,

“in principle to any exclusion of UK nationals from the UK, even on a temporary basis”.

As the noble Lord, Lord Thomas of Gresford, noted, we therefore suggested that “notification of return” orders, which would require,

“UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so”,

would represent a,

“more proportionate interference with the right … to return to the UK”,

in a way that is,

“compatible with the UK’s human rights obligations”.

The arguments in support of proper judicial safeguards were well aired in the other place, leading to the welcome, if somewhat vague, commitment to return to this issue in your Lordships’ House. The JCHR was clear that the Bill must,

“provide expressly for a judicial role prior to the making of”,

an order. We also supported the view of the Independent Reviewer of Terrorism Legislation that the powers in Part 1 should be subject to review by him, and we recommended that they be,

“subject to a renewal requirement”,

so that Parliament can consider the case for their continuation,

“in the light of the Independent Reviewer’s report on their operation in practice”.

I turn to Part 5 and, in particular, to the application to universities of the new statutory duty to have due regard to the need to prevent people being drawn into terrorism. Here I declare an interest as an emeritus professor at Loughborough University. As Universities UK, my former union UCU, the NUS and the JCHR, among others, have asked, how is this new duty to be balanced with the obligation on universities to defend academic freedom and freedom of speech? In oral evidence the Minister tried to reassure the JCHR on that account, but I am afraid we were not reassured, because:

“Broad terms such as ‘extremist’ or ‘radical’ are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court”.

We warned that:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

Universities UK raised a particular concern about paragraph 57 of the draft guidance, which explicitly states that universities must include “non-violent extremism” in the risk assessments they will be expected to carry out. As the former vice-chancellor of Salford University asks in the current Times Higher Education, could the new obligation,

“be used against opponents of fracking … or any radical opposition to the status quo?”.

Surely universities are just the place where young people and others should be able to explore “extremist” ideas, however unpalatable, without being treated as potentially being on the path to terrorism or as popularising “views which terrorists exploit”, to quote the guidance. I found a recent article by Professors Paul Thomas and Ted Cantle, who have done much work in this area, very helpful in thinking about these issues. They point out that:

“Leading academic analysts of terrorism … have long-argued that how democratic states respond to terrorist threats is crucial—a response of repression or unjustified surveillance can represent precisely the undermining of democratic rights and processes that extremist groups hope to achieve”.

They also warn that,

“the further pressure to ban extremist speakers in universities and colleges will remove almost all opportunity for young people to hear extremist views and to have them challenged in an open and reasoned way, as though they are so seductive that any attempt to oppose them will result in failure”.

Instead, they argue for an education approach based on,

“open dialogue, with prejudiced views challenged but in a patient and respectful way”,

which,

“trusts the power of education and shows a faith in the potential of all young people to develop resilience against extremism and hatred by enabling them to learn and to practice real, democratic debate and citizenship”.

I welcome the issue of the draft guidance for consultation last month but rather than provide reassurance it has, if anything, exacerbated the JCHR’s concerns. For now I will raise just one concern that Universities UK is particularly worried about: what it calls the “over-prescriptive and onerous” expectations with regard to external speakers, which include the requirement of:

“Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations … etc”.

As someone who is quite frequently asked to lecture at other universities, will I now be required to send my notes to be vetted in advance?

In view of such concerns and the very special place that academic freedom and freedom of speech enjoy in the context of university education, as recognised in Section 202 of the Education Reform Act 1988, the JCHR concluded that the best way to ensure that these principles are protected would be either,

“to remove universities from the list of specified authorities to which the new duty applies”,

or,

“to add the exercise of an academic function to the list of functions which are excepted from the application of the duty”.

We also recommended that the guidance should be scrutinised by both Houses by way of affirmative resolution. At the other end of the educational age-scale, can the Minister explain just how nursery staff and childminders will be expected,

“to identify children at risk of being drawn into terrorism”?

It is crucial that fears about terrorism do not lead to the erosion of the very principles of democratic citizenship that the Bill purports to defend. We now have an opportunity and a responsibility to ensure that these principles are protected as we subject the Bill to scrutiny.