Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 4th February 2015 Lords Chamber

I think I have said all I need to say in support of my amendment, which was drafted with very particular concern about the position in Scotland. Without developing the point any further at the moment, I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 14, to which I have added my name. I am grateful to the noble and learned Lord, Lord Hope, for combining his original amendment with the amendment by the Joint Committee on Human Rights. Once again, I declare an interest as emeritus professor at Loughborough University.

In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving “from co-operation to co-option”, as the noble Baroness, Lady Sharp, put it. Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it.

Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector. However, I am a realist, and, given the Minister’s welcome commitment to reflect and bring forward an amendment, which he has done, in a spirit of compromise, I have not retabled the JCHR amendment designed to exclude HE institutions from the duty altogether, or to provide a narrower exemption for their academic functions.

We all agree on the value of academic freedom and freedom of speech. As yesterday’s letter to the Guardian, signed by 524 professors—I can tell the House that trying to organise 524 professors is like herding cats, so to get them all to sign was quite an achievement—put it:

“One of the purposes of post-compulsory education is to foster critical thinking in staff, students and society more widely. Our universities and colleges are centres for debate and open discussion, where received wisdom can be challenged and controversial ideas put forward in the spirit of academic endeavour”.

Since last week’s debate, I have received a copy of a legal opinion provided for the University and College Union—my former union—by Robert Moretto QC, who has advised government departments, including the Home Office, in the past. I pay tribute to UCU for showing leadership on this matter. The opinion states:

“It is difficult in my view to square the Prevent duty with academic freedom enshrined in, for example, the Education (No. 2) Act 1986”,

and that,

“the Prevent duty as set out in the Draft Guidance appears to envisage that decisions may be taken”,

which prevent lawful speech.

The opinion also raises questions about possible incompatibility with the Human Rights Act in particular situations. This opinion lends weight to the JCHR’s concerns that the legal uncertainty created by the new duty in relation to existing duties concerning academic freedom and freedom of speech will have a seriously inhibiting effect on bona fide academic debate.

This takes us to the nub of what we have to decide today. While I very much welcome the fact that the Minister has tabled an amendment which makes explicit reference to the freedom of speech duty in the Education (No. 2) Act, it does not provide the clarity that HE institutions need. Here I am afraid that I part company with the noble and learned Lord, Lord Hope. An obligation to have regard is a familiar device of the legislative drafter when faced with duties which might conflict in practice. We see it in Sections 12 and 13 of the Human Rights Act, for example. The problem is that it still means that the Bill says nothing about the hierarchy of duties, and it leaves it to other things to influence decisions where the duties come into conflict. In effect, this means the Home Secretary’s guidance.

I note that the amendment in the names of the noble Lords, Lord Macdonald and Lord Pannick, refers to “due regard”, as does the new Prevent duty in Clause 25(1). There was an exchange a moment ago about “particular regard” and “due regard”, and I have to admit that I did not understand the Minister’s explanation of where he saw the difference. I am not quite sure why the Government have chosen “particular regard” in this instance as opposed to “due regard”. I think that the Minister said that he regards “particular regard” as stronger than “due regard”. It would be helpful if he could confirm that later, because my understanding is that “due regard” carries greater legal clarity because of the case law interpreting the same phrase in the public sector equality duty. If he can confirm that by using “particular regard” he wants it to be stronger than “due regard”, I would be happy with that.

Amendment 14 provides the necessary clarity by making it explicit that the new Prevent duty is subject to the existing freedom of speech duty. In Committee, the Minister said there are good reasons why the freedom of speech duty should not be elevated above the Prevent duty, principally that freedom of speech is not open-ended or absolute. Of course the existing freedom of speech duty is subservient to the laws the Minister listed in Committee, including criminal law on the use of threatening words or inviting support for a proscribed terrorist organisation, and the civil law on defamation. In other words, there is already a duty to secure freedom of speech within the law.

This amendment would not change that, but it would make it clear that the Prevent duty could not be used to prevent lawful speech, and the importance of protecting lawful speech is underlined by Universities UK in its response to the draft guidance. I cannot see why the Government should resist that if they genuinely believe in protecting freedom of speech and academic freedom in our universities. Universities are looking for clarity and an explicit statement in law that in the context of higher education, freedom of speech and academic freedom within the law carry greater weight then the Prevent duty. The amendment has the support of Universities UK, UCU and million+.

We have an important decision to make today. Universities and other institutions are looking to us to provide them with the clarity they need to operate the new Prevent duty in a way that does not have a chilling effect on academic freedom. When he has heard the debate, and in light of the strength of feeling expressed in Committee, I hope that the Minister might be prevailed upon to reflect further before Third Reading, even though I accept that he has already moved some way from the original position of the Government—and once more I thank him for that.

[Baroness O'Loan (CB)]

My Lords, I speak to Amendment 14 in the name of the noble and learned Lord, Lord Hope of Craighead. I have put my name to this amendment, which is designed to give absolute clarity to the continued protection under the law of freedom of speech in our universities, something which the Joint Committee on Human Rights strongly recommended in its legislative scrutiny report. This amendment is very simple. The noble Baroness, Lady Lister, has spoken clearly on its effect. It locates the statutory duty to protect freedom of speech squarely in Clause 25. It gives clarity to the fact that the new statutory Prevent duty, subject to the existing obligations of universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure freedom of speech within the law, is secured for members, students and employees of the establishment and for visiting speakers.

I thank the Minister for his movement and recognition of some of what was said in Committee. However, throughout his amendment he adverts to the duty in relation to freedom of speech in universities which is imposed by Section 43(1) of the Education (No. 2) Act 1986, in terms both of the relationship between the new duty and the duties imposed under that Act on the universities, and of making the Secretary of State have “particular regard” to that duty in any guidance or directions issued. The difficulty I have is that surely universities must not only have particular regard but also comply with their obligations under Section 43. Therefore if they are trying to have due regard to a duty to prevent people being drawn into terrorism at the same time as having particular regard to something which they must do anyway, there is a conflict for them in the hierarchy, to which the noble Baroness, Lady Lister, referred.

With respect, the amendment tabled by the Minister, Amendment 15D, is not as clear or effective as Amendment 14. I urge him to think very carefully about its limitations, and to accept the very real concerns articulated by so many leading academics and university vice-chancellors and chancellors that this Bill will seriously affect freedom of speech in the country. It will also affect our international reputation as the guardians of freedom of speech. The Prevent duty, as articulated in this context, would be a very blunt instrument. It will not prevent terrorists from using our universities as breeding and grooming grounds. That is best done by using more sophisticated means to identify and infiltrate groups who seek to recruit to terrorism through coffee shops, bars and things like that. We have a real battle to fight, but we must be cautious in the processes that we use so as to secure maximum impact in the fight, not to generate further unnecessary problems.

--- Later in debate ---

[Lord Bates]

I certainly take the noble Lord’s point but perhaps I may address some of the key points in the amendments that have been put forward.

I just want to put this in some kind of context. I admit to having had a bit of fun at Universities UK’s expense, but I think that quite a few noble Lords have had a bit of fun at the expense of the consultation document. Given that my noble friend Lord Deben has exhorted us to be in favour of all debate, one should not necessarily try to close off one part of it. However, I accept that perhaps I have pushed far enough, and the noble Lord, Lord Hannay, has got me on track. I shall address some of the particular points that have arisen.

I shall turn to the amendments themselves, but I think it would be helpful to address first the general principle that many noble Lords have spoken about, today and in Committee: the inclusion of universities and further education institutions within the scope of the Prevent duty in Clause 25. In Committee I outlined specific case studies, as did the noble Baroness, Lady Deech, of students and graduates who had gone on to commit terrorist atrocities. For the avoidance of doubt, in all the case studies I mentioned, including the 2010 Stockholm attack and the 2009 Detroit aircraft attack, the perpetrators had studied in UK institutions.

Young people accounted for around 31% of terrorist-related convictions between 2001 and June 2014. Within that date, the figure for at least two years is even higher, at 35%. The Prevent duty is designed to apply to sectors that can most effectively protect vulnerable people from radicalisation and from being drawn into terrorism.

In answer to the noble Lord, Lord Phillips, and the noble Baroness, Lady Lister, who have previously asked for evidence—I went back and said, “What evidence do we have from the regional co-ordinators at BIS that there is a level of non-compliance?”, and I have already referred to part of it—in the year up to 25 January 2015, at least 62 events were held on campuses that featured an extremist speaker or speakers. We know of another eight events that were publicised but later cancelled. Speakers at these events have, for example, called for apostates of Islam to be beheaded and have stated that a man who beats his wife should not be questioned as it is solely a matter between them.

I do not mention all this to suggest that these speakers should necessarily be banned—that is not what our guidance says is required under the Clause 25 duty—but to demonstrate the point that extremist views are propagated on campuses, that students are at risk of being drawn into terrorism and that a disproportionately high number of young people go on to become involved in it.

Since we last debated these issues, the consultation on the draft guidance has finished. Officials are still working through the responses, but an early indication shows that 42 higher education institutions emailed a response to the Home Office and, out of those, only eight stated that universities should not be subject to the duty. Furthermore, Universities UK—I qualify, of course, praying that organisation in aid of my position—which represents 133 vice-chancellors and principals, has not called for universities to be excluded from the Prevent duty. It reiterated its support for the duty when it met my honourable friend the Minister for Immigration and Security and my right honourable friend the Minister for Universities and Science earlier this week.

All this is not to say that universities have not raised issues with the current draft guidance. Almost all of them have done so, in a constructive fashion, and we thank them for their responses. That is the point of this form of public consultation and we will be making a number of changes to the guidance before it is published in its final form. I have already mentioned in Committee two changes that we propose to make: amending the reference to all speakers having to give prior sight of presentations; and making clear that not all staff need to receive Prevent training. We will be working through other changes and of course, as has been said, all that guidance, which will be issued to chancellors, will now be the subject, in a later group of amendments, of an affirmative resolution in both Houses of Parliament.

I now turn to the issue of freedom of speech, which has been heavily focused upon. It was mentioned that placing the duty on universities could have a chilling effect on freedom of speech and academic freedom, which would be contrary to the core function of our universities—a function which, as I have already said, makes universities one of our most important arenas for challenging extremist views and ideologies. As my noble friends Lord Deben and Lady Warsi said, I drew your Lordships’ attention in Committee to existing guidance referring to how speakers are treated. That is why I have tabled Amendment 15D.

This amendment would require further and higher education institutions, when carrying out the Prevent duty, to have particular regard to the duty to secure freedom of speech contained in the Education (No. 2) Act 1986. This will require higher and further education institutions, when considering all the factors that they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech. I am sorry that I caused my noble friend Lady Hamwee so much confusion earlier with the difference between having due regard and having particular regard. The reason we put that in is that we want to have a higher test to differentiate between having due regard to the guidance and having particular regard to freedom of speech under the 1986 Act. That was not accidental; it was absolutely intentional and, had I been a little sharper, I might have mentioned that to noble Lords earlier.

The noble Lords, Lord Pannick and Lord Macdonald, have tabled an amendment along similar lines, Amendment 14A, although we would argue that the Government’s amendment goes further. The noble and learned Lord, Lord Hope, has tabled Amendments 14 and 15 with a view to ensuring that, to the extent that Scottish higher and further education institutions are subject to the Prevent duty, their compliance with that duty is also subject to their need to ensure freedom of speech. This is quite clearly a logical approach, given that those bodies are not covered by the duty in the 1986 Act, and we are not in disagreement with the general principle of the noble and learned Lord’s amendments.

Given, however, that no Scottish bodies are currently listed in Schedule 6, these amendments are unnecessary. If and when Scottish institutions are added to Schedule 6 by order, the Government can use the power in Clause 26(3) to make consequential amendments to this chapter. We would at that point seek to ensure that Scottish institutions had the same requirement as those in England and Wales to pay particular regard to the need to secure freedom of speech, as contemplated by Article 10 of the European Convention on Human Rights. I hope that that goes some way to reassure the noble and learned Lord on this point.

My noble friend Lady Hamwee spoke to her Amendment 14C, which would require that guidance to the education sector must recognise the duties of that sector to secure freedom of speech, to promote tolerance and respect for democracy and to offer a broad and balanced curriculum. The guidance already makes these points in the relevant sections. I refer my noble friend to paragraph 105 of the draft guidance in particular. There were a number of points, but I am conscious of the time I have taken to respond.

[Baroness Lister of Burtersett]

The Minister, in talking about Amendment 14, seemed to imply that it related only to Scotland. He said that he agreed with this amendment, but Amendment 14 incorporates an amendment from the Joint Committee on Human Rights which makes very clear that the Prevent duty should be subject to the duty in Section 43(1) of the Education (No. 2) Act 1986. Is he now saying that he agrees with that?