Immigration: Detention

Baroness Lister of Burtersett Excerpts

Thursday 26th March 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, as a member of the inquiry, I am very grateful to the noble and learned Lord—who will be missed—for facilitating this debate, and to Sarah Teather for establishing the inquiry and chairing it with such skill and commitment.

We were shocked by what we heard, both from the detainees who recounted their experiences, and I pay tribute to them for doing so, and from professionals who, among other things, confirmed the disastrous effects of indefinite detention, particularly on the mental health of detainees. It became clear to us that as an absolute minimum there must be a time limit on detention and I very much welcome today’s announcement that my party supports this. But, in our view, even time limits would not be enough. We also seek a commitment to making deprivation of liberty for the purposes of immigration control a genuinely last resort, with a presumption in favour of the community-based alternatives practised in countries as diverse as Canada and Sweden.

What became clear during the inquiry was the disconnect between official policy and what actually happens. The current Home Office guidance that detention should be used sparingly and for the shortest possible period is rendered ineffective by working practices and culture. The same disconnect can be found in the treatment of women. One of our recommendations was that,

“women who are victims of rape and sexual violence should not be detained and this should be reflected in the Enforcement Instructions and Guidance”.

A reply to a Written Question about this recommendation states that the list of those,

“normally considered suitable for detention only in very exceptional circumstances … includes individuals for whom there is independent evidence of torture, which would encompass women who had suffered rape or other forms of sexual violence as an instrument of torture”.

However, UNHCR guidelines on detention state:

“Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained”.

I emphasise the “and” because my reading of that is that it should be sufficient for a woman to demonstrate that she has survived rape or sexual violence regardless of whether or not it constituted torture. The Written Answer conflates the two. Moreover, back in 2013 the UN Committee against Torture urged the UK Government to lower the evidential threshold of independent evidence. Far from being lowered, it now appears to cover survivors of rape and sexual abuse. I urge the Home Office to look at this again.

I also urge the Home Office to review the treatment of pregnant women. Again, there is a disconnect between policy and practice. A member of HM Inspectorate of Prisons told us that,

“pregnant women are only meant to be detained in the most exceptional circumstances … on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

The inquiry heard evidence of pregnant women being treated in a way that caused emotional, psychological and physical distress. Given the apparent inability of the Home Office to comply with its own policy, we recommended that pregnant women are never detained for immigration purposes.

I welcome the fact that the Shaw review, which I am sure the Minister will talk about, is to be asked to consider the recommendations in part 2 of our report. However, this avoids our more fundamental recommendations concerning the very use of detention. If the Shaw review is to carry credibility, it is crucial that its terms of reference are widened so that it can consider part 1 of our report also. Can the Minister explain why this is not possible?

The time for a well meaning smoothing of the harshest edges of a rotten system has passed. Thus the Government’s response to our review, as set out in the recent letter to Sarah Teather, is very disappointing. I urge whosoever form the next Government to take urgent action on our report as a whole in the name of human rights, justice and basic human decency.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

I thank the noble Baroness for that unexpected remark—I was slightly thrown by it—and, of course, I am very happy to reciprocate. There has been common ground in many of the areas that we have debated over the past six months while I have been in this role. On issues such as child sexual exploitation, counterterrorism legislation and modern- day slavery, we have, in the best traditions, worked together to provide better and more humane protection for people in this country.

It was typical of the noble and learned Lord, Lord Lloyd of Berwick, to choose the topic of this debate for his swansong. The noble Baroness, Lady Smith, said that Ministers quake in their shoes when the noble and learned Lord rises to his feet. If I am not quaking in my shoes it is only because the noble and learned Lord manages to prod the conscience of Ministers and hold them to account, not necessarily with a full, thrusting and aggressive approach but always with a very perceptive presentation of the case, and always on behalf of others and the most vulnerable in our society. I pay tribute to him. He will be sadly missed.

I realise that I have only a short time to speak because Standing Orders dictate that this debate should finish at 3.12 pm, I think. However, I do not think that we have anything else going on until people with strange tricorn hats start to appear at the Bar. I want to try to address some of the issues raised because they impact on the most vulnerable people in our society as well as some of the people from around the world who come here. We need to make sure that those issues are looked at carefully.

I join the noble and learned Lord in paying tribute to the authors, Sarah Teather and the others mentioned in this debate, for the way that they conducted both part 1 and part 2 of their review of detention in the immigration system and its effectiveness. I will return to that in just a second. Their work builds on a body of evidence that is raising deep public concerns. The undercover experiences at Yarl’s Wood in the Channel 4 documentary were deeply disturbing and are rightly the subject of an independent investigation. There was also the report by Women for Refugee Women, which I have read, about the daily experiences of people in that system. I think that one would have to have a heart of stone not to be moved by the stories that one hears and the accounts that one is given.

I am conscious that I am on a race to the bottom of the page already. My noble friend Lord Hurd is a distinguished former Home Secretary. I hope that he will be forbearing of a junior Minister in his former department who on the final day of term stretches the limits a little further than perhaps was initially thought. I shall try to do that in a number of areas, and he can come to my tribunal hearing if I go on a little bit too long and can perhaps defend me.

The first thing is to try to find the common ground. When I visited Yarl’s Wood immigration detention centre, there were different categories of people whom I met. I met detainees and staff as well. A very large proportion of them were coming in from the centres at Calais where they get on to trains or lorries and are then picked up immediately at the other end. They are then brought into the detention centre and stay only for a matter of hours before they are moved on and processed elsewhere, often returning of their own choice to France or Belgium.

There are then the most difficult cases, the foreign national offenders who have been referred to in many of the contributions that I have listened to. These are the people who used to be held within the prison estate and were then deported from there when they had served their sentence. A small proportion of them are still in the prison estate but are held now in the immigration detention centre ready to be removed. I am deeply conscious of the fact that the noble Lord, Lord Ramsbotham, is in his place. We had a very helpful meeting for interested Peers with officials dealing with these areas following the Yarl’s Wood allegations. The noble Lord rightly spoke of the appropriateness of mixing foreign national offenders who are on their way out with people who are seeking asylum in this country. That point has to be looked at. Clearly, one has a group of people who, understandably, want to do almost everything they possibly can to frustrate the removal process. They do not want to co-operate; they do not want to apply for identity documents. A principal reason why people are held there is that it is not in their interest to co-operate and give an accurate name, to give their passport details and date of birth, and to get replacement documentation for their country, because that would be, as it were, to co-operate in the process of the return which they do not want—they want to stay here. Having the privilege of being in this country, I am sure that we can all totally understand why they would want to do that. Virtually every foreign national offender whose case I have looked into has been there for a very long period and falls into that category.

The detained fast track is an issue which will have to be addressed. Normally, the Border Force feels that these people’s asylum claims at ports of entry can be dealt with quickly and a swift decision reached. Normally, under the detained fast track, that can take 10 to 14 days. Not all those people are then deported; many of those claims are immediately upheld and the individuals concerned are moved to be cared for in the asylum system. That is important, too.

There are some areas on which I should like to make progress and cut to the chase, as there have been some very serious contributions. On Yarl’s Wood, one of the issues was the proportion of female staff. Yarl’s Wood is principally a place of female detention, so it would be appropriate for the number of female staff to be increased. We have said that we want to see it increased further and expect it to grow to 60%. Some also asked for greater transparency and for the improvement plans, which were previously not published, to be published. Taking advantage of the leniency which my noble friend Lord Hurd gave me, I can say that that will now be released.

I can also say as a statement of intent that we do not, as a direction of travel, want to see growth in the numbers of people in the immigration detention centres. For that reason, I can inform the House that the planning application for an extension at Campsfield has been declined. Moreover, today we are announcing that we are handing the Haslar immigration removal centre back to the prison estate. These are very important points as a general statement of direction of travel as to where government policy is going.

On the Stephen Shaw review, without wishing to test the patience of people who say that this is a time for action and not for more reviews, I think that there is something to be said for the fact that on an issue of this sensitivity, the margins of an election are not necessarily the time to get an objective and fair review of the case. We want to do this in a thorough and careful way, and explore all possible alternatives. There is the Kate Lampard review being undertaken by Serco and there is also the review by Stephen Shaw, who is widely respected. He is particularly looking at welfare. I will write to him today to ask him to extend the remit of his review to cover, in particular, the detention of pregnant women and people with disabilities. When we talk about that, distinct from talking about foreign national offenders who I think we all recognise are a different category in this sensitive issue, we are talking about those in the detained fast track. We will ask him to look particularly at the appropriateness of the welfare of those groups.

[Baroness Lister of Burtersett]

The Minister has been very helpful, but will he also extend that to cover women who have been subjected to rape and sexual abuse?

[Lord Bates]

I will need to double check on that, but I think that, under Article 5 and the rules governing when people have been subject to sexual violence or torture, that is the subject of the medical examination when they are brought into the system and therefore they should never be in the system. I will look at that— I will not look at the Box, because I will get a shake of the head, probably—and include it in my letter to Stephen Shaw today.

I could address other matters, but time has probably run out and so I am not able to.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Baroness Lister of Burtersett Excerpts

Monday 23rd March 2015 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I follow the comments just made by the noble and learned Lord, Lord Hope, by saying that one of the benefits of both new sets of guidance, for England and Wales and for Scotland, is that the tone is very different. That is enormously helpful. I am also very grateful for my noble friend’s comments about the final decision on external speakers being made by the next Government.

However, I would ask the Minister for absolute clarification on one point. I know that there have been discussions outside your Lordships’ House following the consultation on exactly what would happen if agreement were not reached on the thorny issue of external speakers. Could my noble friend give reassurance that the guidance to higher and further education would be withdrawn completely should such an agreement not be reached? Clearly, the reference within the guidance makes it absolutely clear that this is one of the Government’s major concerns.

I would be very grateful as well if our thanks could be passed back to the Minister’s civil servants for the hard work involved in accepting the many thorns in the flesh that your Lordships’ House has provided in the detailed discussions of this, especially given that the Commons did not have the chance to talk about the detail of the guidance when it considered the matter.

[Baroness Lister of Burtersett (Lab)]

My Lords, I welcome the opportunity to debate the guidance and welcome a number of the additions to the original draft, notably: the addition of the reference to the public sector equality duty in the Equality Act in paragraph 12; the cross-reference to “other relevant safeguarding guidance” in paragraph 40; and, in particular, the expectation in paragraph 111 that higher education institutions will,

“seek to engage and consult students on their plans for implementing the duty”.

The role of students—listening to what students have to say—is really important, so I welcome that. I am sure that the inclusion of a definition of “Having due regard” in the glossary will be helpful to all those non-lawyers in the higher education sector.

As during our discussion of the Bill, I will focus my remarks on higher education. Here, as the Minister has acknowledged, there is a glaring omission, with the reference to the issue at a later date of,

“guidance … on the management of external speakers and events”,

including, I am pleased to say, on how the Prevent duty will interact with,

“existing duties to secure freedom of speech and have regard to the importance of academic freedom”,

which, thanks to the deliberations in your Lordships’ House and to the Minister’s willingness to listen, were written into the legislation.

Although I understand the reason for the omission, having read about it in the press—I do not want to intrude into private debates on this—it is regrettable that the most contentious part of the draft guidance when it was discussed in your Lordships’ House is not available for your Lordships to debate today, as opposed to what may happen. I very much endorse the plea made by the noble Baroness, Lady Brinton, that, if agreement is not possible, the whole thing should be withdrawn. I also very much urge on the Minister, or any future Minister, that in the time between now and this being brought forward there should be proper engagement and consultation with the higher education sector to try to reach agreement on something that will be workable, unlike the original draft.

Concerns also remain about the position of student unions and societies. The guidance, I am glad to say, now acknowledges that student unions are already,

“subject to charity laws and regulations, including those that relating to preventing terrorism”.

But the NUS states:

“However, the continued emphasis on student unions’ compliance with their institutions’ policies remains worrying and indicates a misunderstanding of the autonomy of students’ unions which could lead to confusion and conflict between institutions and students’ unions”.

The NUS also commends the guidance for Scotland as achieving,

“a better balance in this respect”,

with a greater emphasis on co-operation with, rather than control by, higher education institutions. Can the Minister clarify the Government’s understanding of the implications of student unions’ autonomy in this area and explain why the Scottish guidance differs from that for England and Wales? I cannot see what the particular circumstances of Scotland are to explain this difference.

The other most contentious element in the original draft guidance was the very broad definition of extremism 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”.

Perhaps even more worrying was the inclusion of “non-violent extremism”. The Joint Committee on Human Rights—again, I declare my interest as a member—emphasised its concerns about such vague terms in its legislative scrutiny report and warned:

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

UCU, my former trade union, has expressed similar concerns around the revised guidance. So-called fundamental British values, it says, include values and concepts which are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.

According to the summary of responses to the consultation, this issue attracted some comment, including concerns about that very vagueness. Yet the revised guidance does not appear to have attempted to address these concerns. Can the Minister explain why not? I do not want to make too much of it but can he also explain why the Scottish guidance does not make reference to “non-violent extremism” in the higher education section? If it is not necessary to repeat the earlier general reference there, why is it necessary to do so in the guidance for England and Wales?

Turning to training, the guidance requires a willingness to undertake training of what it calls “relevant staff”. It says:

“We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity. Such staff should have sufficient training to be able to recognise vulnerability to being drawn into terrorism”.

The guidance also suggests:

“Changes in behaviour and outlook may be visible to staff”.

The Minister, James Brokenshire, when he gave oral evidence to the JCHR, said:

“There might be someone whom a lecturer has concerns about, not simply because of one particular lively debate, but because they are becoming withdrawn and reserved, and perhaps showing other personality traits”.

All this suggests that we are talking about staff who are in close contact with students—for example, lecturers or personal tutors—who will need to be trained as they are presumably the most likely to pick up on such vulnerability or changes on a day-to-day basis.

I was surprised that the impact assessment—if I have read it correctly; perhaps I have made a mistake—assumes that 15 people in every HE and FE institution will receive Prevent awareness training once every two years at a cost of £46,500. Who does the Minister envisage that these 15 or so people will be? What positions will they hold? Clearly, they cannot be at the chalk—or what is now the whiteboard—face of teaching. I am not arguing for mass surveillance of students by lecturers but there seems to be an inconsistency here that could leave teaching staff exposed if they are expected to play an active role in preventing students being drawn into terrorism without being given the training that the guidance itself acknowledges is necessary for people to be able to fulfil this role. Again, I would be grateful for clarification, as it may be that I have misread the impact assessment.

Finally, is the Minister now in a position to clarify HEFCE’s role, as that has not been spelled out in the guidance? Here, UCU repeats its concerns about HEFCE’s ability to regulate institutions with which it has no formal funding relationship. Has this now been resolved? What steps will be taken to prepare HEFCE for this new role?

For all the very welcome improvements that were made to the Bill during its passage through your Lordships’ House and the improvements that have been made to the guidance, the guidance still raises a number of very real worries. This is all the more so in the light of the recent newspaper report about Imperial College cancelling a booking for an international conference on Palestine at the last minute because of what speakers might say. If this is true—I have not been able to check the newspaper report—it suggests that the legislation is already having the very chilling effect that many Members of your Lordships’ House warned about when the legislation was going through. I am not convinced that the guidance as it stands is sufficiently robust to guard against such a chilling effect.

Immigration: Regulations

Baroness Lister of Burtersett Excerpts

Wednesday 11th March 2015 Lords Chamber

[Lord Bates]

My Lords, I have read the report which came out last week. The Home Office will, of course, give a proper response to such an important and thorough piece of work. As to the noble Lord’s point about detention, he will be aware that 93% of those who are actually detained in immigration removal centres are there for less than four months. They are the most serious of cases—people who have come to this country clandestinely. We need to establish their identity because it would be a dereliction of duty not to identify those whom we are letting into this country. There are foreign national offenders and people whose appeals have been exhausted. However, we are keeping this under review and that is why the Home Secretary has asked Stephen Shaw to undertake a thorough review.

[Baroness Lister of Burtersett (Lab)]

My Lords, in its recent report on violence against women and girls, the Joint Committee on Human Rights, of which I am a member, expressed concern about how current Home Office policies leave some people destitute during the immigration and asylum process. This can lead to women being at greater risk of violence and sexual exploitation. Will the Government now amend the very welcome action plan on violence against women and girls to stop this happening?

[Lord Bates]

There is rightly support available for people who are in severe states of destitution. There are differing levels for those who are seeking asylum and for those whose asylum cases have been refused. These amounts are kept under review. There are additional facilities to provide accommodation, to help with food and access to legal and health care. These are all very important and we need to continue with them.

Modern Slavery Bill

Baroness Lister of Burtersett Excerpts

Wednesday 25th February 2015 Lords Chamber

[Baroness Hanham (Con)]

My Lords, my name is also attached to this amendment and since the start of the Bill it is one of the areas of this legislation that I have been most concerned about. Nobody could have failed to be moved by the television programmes that we have seen, the reports that we have heard, and the work done by Kalayaan, which has been very much hampered by the fact that the changes to the visa system took place in 2012.

In this 21st century it is absolutely unacceptable that people are coming in to this country tied to an employer, unable to do anything for themselves and absolutely under the instruction of the person for whom they are working and who has brought them into the country. We would not stand for this for a second if things were otherwise. It is time that we stopped standing for it. We desperately need to make the changes that will enable people who come here to feel reasonably free, reasonably able to live in this country and reasonably able to know that if things go horribly wrong with their employer—as so many of these cases clearly do—there is some redress to somebody who can help them and there is some way out.

When talking to Kalayaan, which deals with the forefront of the work that goes on, it is clear that under the current situation it feels completely helpless to ensure, first, that people can get to it and secondly that if people do come, it can do anything to help them. In Committee, I pointed out that one of the systems in place to help domestic workers know what to do if they run into trouble is a card that is delivered to them if they are lucky—if it does not go into the pocket of their employer—at London airports. It gives them the telephone number of ACAS and a couple of other telephone numbers that they can ring up if they are in trouble. Most of these people have their telephones taken away from them. They do not have access to a telephone. They do not know people in this country. They cannot get out of the premises or the property in order to find other people.

The Minister has a reputation for having responded sympathetically, pragmatically and sensibly to all the issues that have been brought up. The number of government amendments that have come through over the past few weeks has been amazing. I pay tribute to him for the fact that he and the Minister in the other place have listened. I say now, please, will the Minister do this one further thing and listen to this particular problem? It is absolutely germane to modern slavery. It is one of the elements of modern slavery that we cannot overlook. I think this House will really not have shown itself at its best if we do not manage to pass this amendment, which will help—it will not do the trick but it will help other organisations help those who need it.

The mischief, of course, was the change to the visa system in 2012. I understand why—I understand the need to control immigration—but I do not think that we are going to break the bounds of numbers if we help and look after these people. We are not asking that they should stay in the country for ever. What we are asking is for the Government to say that this country does mind about what happens to people who come into it, particularly when they have no means of helping themselves. I very much hope that in his response to what has been put forward today, the Minister will be able to reassure us that the Government will take this amendment on board.

Finally, I think a review is splendid. It is one of the ways of shifting responsibility off to another day. I can see that it would be very nice to have a perfect review of all the implications but there are at least two, if not three, very well thought-out reports already. The Joint Committee on the Bill, on which I sat, went into this in great detail. I do not think we will miss very much if the Minister says that the review could take place but in the mean time agrees to the amendment, which I support.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak very briefly in support of the amendment. Rereading our debate in Committee, I was struck first by the unanimity of your Lordships’ House in support of the amendment but also by the tone of the debate, which was very different from the very positive tone there has been throughout the rest of the debates on the Bill. There was an air of exasperation, expressed particularly by the noble Baroness, Lady Cox, who is not able to be here today, and my noble friend Lady Royall.

I think the frustration was partly because the Minister, the noble Baroness, Lady Garden, claimed to share our concerns—and I am sure she does—yet responded with a series of totally unconvincing arguments. In particular, she seemed to be making the case on the basis of a hypothetical possible increase in abuse as a result of the amendment while seeming to discount the actual evidence of what, according to Kalayaan, happened after 1998 when similar rights were first introduced, which was a clear decrease in abuse reported to it, and then what happened post-April 2012 when those rights were rescinded, which was a significant increase in abuse reported. The Minister twice invited Members of your Lordships’ House to offer suggestions as to what we could do to prevent the abuse. The unanimous suggestion from all over the House, as well as from the Joint Committee on the draft Bill and the Joint Committee on Human Rights, was that we should restore the status quo ante—pre-2012—or something like it.

As has already been argued, there is no need for a review. We have no guarantee of what will happen as a result of that review after the election. How many more women will be subjected to forced labour and exploitation and the kind of suffering so movingly expressed in the example given by the noble Lord, Lord Hylton, before we are prepared to act? We have the opportunity to act today to remove an injustice that is totally against the principles underlying the Bill. I hope we will seize that opportunity.

Yarl’s Wood

Baroness Lister of Burtersett Excerpts

Tuesday 24th February 2015 Lords Chamber

[Lord Bates]

This is subject to a very careful screening process, and the decision to send someone to Yarl’s Wood is not taken lightly. There are medical reviews by a GP and reports are provided to the caseworkers before any decision is made. The point is that these are people who have overstayed their stay, their asylum immigration applications have been denied and, therefore, they are about to be deported imminently. That is the reason they are there. However, that does not mean that they should be treated with anything less than the highest standards of dignity and respect.

[Baroness Lister of Burtersett (Lab)]

My Lords, the review that has been announced is very welcome, as is what the Minister has said, but the terms of reference of the review do not explicitly include women generally; they refer just to pregnant women. The Minister himself has said that all the women about whom we have heard evidence from the noble Baroness, Lady Bakewell, are vulnerable. Will he now confirm that the review will look explicitly at the treatment of women, many of whom have fled gender-related violence in their home countries?

[Lord Bates]

I would have thought that the noble Baroness might welcome the fact that the Shaw review will range much wider. Of the 30,000 people who are held in detention, around 80% are male, and it is important that their needs are reviewed as well. However, I am sure that the noble Baroness’s observation will be fed back to the review.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Monday 9th February 2015 Lords Chamber

[Lord Bates]

This is the third and final group of amendments. In coming to the end of Third Reading, it is appropriate that I conclude my remarks on the subject of academic freedom.

On Report, your Lordships’ House agreed a government amendment to 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 they need to consider when complying with the Prevent duty, to place particular emphasis on the duty to secure freedom of speech.

A number of noble Lords, in particular the noble Baroness, Lady Lister of Burtersett, argued that we should add to that provision so that particular regard must also be given to the principle of academic freedom. As I set out at the time, the Government do not believe that such a reference is strictly necessary: the description of academic freedom in Section 202 of the Education Reform Act 1988 is essentially a subset of freedom of speech as set out in Section 43 of the Education (No. 2) Act 1986.

However, your Lordships made the case that the principle of academic freedom itself should be explicitly referenced in the Bill. I committed to give this matter further consideration in order to provide reassurance. Therefore, I have tabled Amendments 5 and 6 to include “academic freedom” in Clause 31. This should provide unequivocal reassurance that the Prevent duty is not designed to undermine the principle of academic freedom. The Government have also tabled Amendment 4 to provide greater clarity as to which institutions the clause applies to. The new reference to Schedule 6 to the Education Reform Act 1988 makes it clear which higher education institutions are required to pay particular regard to freedom of speech and academic freedom when carrying out the Prevent duty. I trust that this provides greater clarity for your Lordships.

As this may be, without tempting fate, the last point I make formally on this matter—I am aware that the noble Baroness, Lady Lister, may wish to respond—I would like to place on record my deep thanks to your Lordships’ House for the consideration that they have given this very important Bill. We have spent seven days in Committee and we have had thirty-eight and a half hours of scrutiny. The Bill has been scrutinised not only by the excellent contribution of the current members of the Joint Committee on Human Rights, but by former council leaders, senior lawyers, former Law Lords, former judges, IT gurus, a former chief prosecutor, former diplomats, Cabinet Ministers, former Home Office Ministers, university vice-chancellors, academics, college heads, three former Cabinet Secretaries, two former directors of the security services and two former chiefs of the Metropolitan Police. That level of scrutiny has been reflected in some 237 amendments, which have been considered by your Lordships. People can therefore have some confidence that this important piece of legislation will leave your Lordships’ House in better shape than when it arrived.

I thank in particular Her Majesty’s Opposition—the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser—and also my noble friend Lady Hamwee and the noble Lord, Lord Paddick, for their contributions, their scrutiny and their liaison which has been ongoing throughout the course of our proceedings on the Bill.

It is appropriate that we conclude our discussions on this key issue, which is all to do with freedom of speech and academic freedom. It reminds us that while the purport of this piece of legislation is very much to keep us safe, we are ever mindful that we need to protect the very freedoms which the people who would seek to attack us want to take away. We cannot do their work for them and therefore we have refined and sharpened the Bill to make sure that it is suitable for that purpose.

As well as thanking all the Members who have taken part in your Lordships’ House, on a personal note I pay particular thanks to my noble friend Lord Ashton of Hyde for his assistance during the process, and also to the Bill team. I am sure that everyone—my noble friend Lord Ashton of Hyde, the Bill team, and all your Lordships—would want particular thanks to go to those members of the security services, the police force, and the Border Force, who give of their time and safety every day to keep us safe from these particular crimes. All they ask in return is our support and the tools to do the job. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I very much welcome Amendments 5 and 6, which write into the Bill the duty to,

“have particular regard to the importance of academic freedom”,

as defined in the 1988 Act, alongside the duty on freedom of speech, which was conceded on Report. I am really very grateful to the Minister. As a member of the Joint Committee on Human Rights, I thank him for listening and taking action so late in the day. I am sure he groaned inwardly when I burst into his office last week. No doubt he thought that everything had been sewn up. I am therefore particularly grateful that he was prepared to take action and go the last mile so late in the day.

I also thank the Bill team and the lawyers for executing the decision so neatly. I am sure that they also groaned—perhaps not quite so inwardly. I also welcome the Minister’s latest letter to noble Lords, in which he made clear that:

“‘Particular regard’ is stronger than ‘due regard’ because it elevates the consideration to the top of the list of factors to be weighed up i.e. freedom of speech is the most important other duty, rather than simply another one to be considered, such as health and safety”.

It might be helpful if he could confirm that, so that it is on the record.

I have one final question: what is the timetable is for finalising the guidelines and bringing regulations before both Houses?

[Lord Phillips of Sudbury (LD)]

For the sake of absolute clarity— because there has been a great deal of confusion about these aspects of the Bill—can my noble friend say whether it is correct that his Amendments 4, 5 and 6 make no difference whatever to the purport of the Bill, are merely clarifying and have no substance?

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, on behalf of the Joint Committee on Human Rights I would like to say how much I welcome the government amendment. It is nice to be able to welcome Government amendments unequivocally on this occasion. The Government have accepted just the one recommendation in our report, and we are very pleased that they have.

[Baroness Brinton (LD)]

My Lords, my name is on Amendment 14F and I also want to thank the Minister for his Amendment 14E. As I said in Committee, after going to war, curtailment of freedom is one of the most important things that a Government must consider doing. Given the seriousness of that, it seemed extraordinary that there was no scrutiny by Parliament, so I am grateful for that. On a slightly lighter note, and not strictly to do with this amendment, the fact that 33% of terrorists have been to university was repeated this evening. I wonder whether we need much more draconian measures for schools, given that 100% of terrorists will have attended school.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

15A: Clause 28, page 19, line 15, at end insert—
“( ) When issuing guidance under this section in relation to universities and other higher education institutions, the Secretary of State shall have due regard to the principle of academic freedom and to the matters specified in section 202(2) of the Education Reform Act 1988 (the university commissioners).”

[Baroness Lister of Burtersett]

My Lords, in moving Amendment 15A, I shall speak also to Amendment 15C in my name and that of other members of the Joint Committee on Human Rights, two of whom apologised that they had to leave. Amendments 15A and 15C together would require the Secretary of State to have due regard to the principle of academic freedom, as already recognised by Parliament in Section 202(2) of the Education Reform Act 1988, when issuing guidance or directions under this section. It was quoted earlier, but I remind noble Lords that it includes a duty,

“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”.

I believe that it was inserted by your Lordships' House and it would be appropriate if we were to do the same now.

I would argue that Amendments 15A and 15C are perfectly compatible with the Government’s own Amendment 15D. They would simply add to it by making explicit reference to the important duty to uphold academic freedom in the 1988 Act, which is currently missing. This is a duty that is very important to academics, as it puts flesh and bones in the context of higher education on to the more abstract duty of freedom of speech contained in the 1986 Act and referred to in the Government’s own amendment.

I think that we have all been guilty at times of conflating the two principles of freedom of speech and academic freedom. If I may say so, the Minister does so in his letter of 3 February to me and other noble Lords—and here I thank him for finding a few minutes yesterday to discuss the amendments with me. The letter refers to the impact that the Prevent duty might have on academic freedom of speech. Although the two principles overlap, there is also a clear distinction, which it is important to understand because it is at the heart of why the amendments matter. Here, I have to part company with the noble Lord, Lord Pannick, who is not in his place, when he suggested that one necessarily implies the other.

While I have always counselled my students against relying on Wikipedia, on the principle of “do as I say” rather than “do as I do”, I turn to it now because it provides a helpful working definition of academic freedom. It says that it is,

“the belief that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts (including those that are inconvenient to external political groups or to authorities)”.

It spells out:

“Academic freedom and free speech rights are not coextensive … Academic freedom involves more than speech rights; for example, it includes the right to determine what is taught in the classroom”.

In Committee, I illustrated my worries by citing a discussion of the Charlie Hebdo attack that colleagues instigated, open to all staff and students in my school at Loughborough University. What was at issue here was not so much the freedom of speech of staff and students as the academic freedom to feel safe to instigate such a discussion that might be interpreted as potentially drawing some students towards ideas that conceivably might lead them towards violent terrorism. If the duty to uphold academic freedom as well as freedom of speech was written into the Bill itself, it would, I hope, give some assurance to both lecturers and students that it is still safe to have such controversial discussions. If it is not written in, I fear a chilling effect on both—lecturers playing safe and not instigating debate on such controversial topics related to terrorism, or something like it, because of feeling pressure from university management not to take risks of this kind, and/or students feeling afraid to engage honestly and openly. This would then have the counterproductive effect, which was discussed quite a lot in Committee, of pushing extremist views underground rather than allowing staff and students to discuss them critically. Indeed, a Hansard Society student on placement with me put it very well. He said, “You prevent the peers of the extremists from engaging with them and you cripple their ability to persuade them to abandon extremist views”. Earlier, that point was made very eloquently by the noble Baroness, Lady Warsi, and the noble Lord, Lord Wilson of Dinton, who are not in their places.

I will also illustrate the point with reference to the draft guidance. Paragraph 57, for example, makes it clear that the Home Office expects universities to carry out a risk assessment of where and how their students might be at risk of being drawn into not just violent extremism but non-violent extremism, which, as Universities UK has consistently pointed out, is not generally unlawful. The noble Lord, Lord Macdonald, earlier referred to this bit of the guidance as hopeless. It is easy to see how in a university with risk-averse management—which is probably true of much of university management these days—this could translate into pressure on individual academics not to offer certain courses or lectures or to pursue certain research grant applications, or to discourage certain topics of inquiry by doctoral students.

The Government’s free speech amendment is helpful in relation to the draft guidance in so far as it refers to visiting speakers and events but it does not address the academic freedom issues that are the stuff of everyday academic life as lived and breathed by academics and students. Robert Moretto’s legal advice, to which I referred in our earlier debate, suggests that, as currently drafted, the guidance “seeks to avoid” the kinds of issues raised by the tension between the Prevent duty and existing freedom of speech and academic freedom duties of such concern to noble Lords. It therefore gives the individual academic little clarity. The Government’s amendment goes some way towards providing that clarity but I suggest that if the Minister could go away and come back at Third Reading with something that incorporated these amendments too, it would do the job even better.

Because of the tight timescale with fast-tracking, it has not been possible to have the kind of more in-depth informal discussion that would have been normal between the stages of the Bill. My noble friend Lady Smith of Basildon has already referred to the problems that this has created. I think that the problems have been as much for the Minister and his team as for anyone else. It would be such a shame if, for this practical reason, we lost the opportunity to strengthen the Bill in a way that I believe is totally compatible with the Government’s aims.

If the Minister felt able to go a bit further—again, I appreciate how far he has already moved on this part of the Bill—it would give some reassurance to the academic community who are so anxious about this Bill and who I fear will have been very disappointed at the outcome of the debate on the second group of amendments. I beseech the Minister to be as flexible as possible, but if it really is impossible will he at least commit to ensuring that the guidance states that due regard must be had to the principle of academic freedom as recognised in the Education Reform Act 1988, although this does not address the question of directives, as these amendments do. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I support the noble Baroness, Lady Lister, on Amendments 15A and 15C, to which I have added my name. I thank the Minister for listening and for giving effect through his new amendments to at least part of the arguments which we raised on freedom of speech in the context of the Prevent duty in Part 5. But as the noble Baroness, Lady Lister, has said, there remains the issue of academic freedom, which was discussed in the debate on the earlier group.

Academic freedom was given statutory protection under Section 202 of the Education Reform Act. It imposes a duty on university commissioners to,

“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”.

This protection is vitally important to academics. There can be no doubt that policies, opinions and even moral values change, and with those changes come the need to challenge existing wisdom and to seek new ways and new processes within the law.

We see that particularly in university teaching and research, where the good academic enthuses his or her students through proper exposure to their research, often in ground-breaking areas where the conventional wisdoms no longer provide the necessary answers. Academics need the freedom to bring into their lecture theatres voices and ideas which may even offend received wisdom and the necessary challenge can then take place. Above all, they need to be sure that in pushing the boundaries for the common good they do not place in peril their livelihoods and their careers.

These amendments are of the utmost importance. Some 540 of the UK’s most senior academics signed a letter in Tuesday’s Guardian warning that the Bill would place an unlawful and unenforceable duty on universities. They call for the Government to take steps to ensure that academic freedom remains uncompromised by efforts to tackle extremism in the UK. I hope that the Minister will accept that Amendments 15A and 15C would enhance the proposed arrangements in respect of the Secretary of State’s guidance and directions to universities in the context of the Prevent duty and would protect academic freedom while not hindering the very proper fight against terrorism.

The amendments would give assurance to academics, young and old, in the work they must do, which can be both brave and challenging, and I would like noble Lords to look at some of that work. It is not easy to challenge what may be received wisdom in communities which have been radicalised, but equally it is not easy to challenge received wisdom in communities where there is an illusion but not the reality of democracy. I am sure noble Lords know where I am going: I am going to Northern Ireland.

In the late 1960s, 1970s and 1980s, the Northern Ireland civil rights movement, and ultimately the universities, played a profoundly important role in challenging the status quo in Northern Ireland using non-violent methods. I wish to refer noble Lords to a description of non-violent methods for this purpose. It states that,

“non-violent extremism … can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.

For decades there were those in the universities and colleges who said that Bloody Sunday was a tragedy and an outrage and that the Government of the United Kingdom, in the publication of the report on the atrocities of Bloody Sunday, had done a terribly wrong thing. That was, if you like, a challenge to democracy as it stood at the time, and those academics were sometimes in a difficult place. There is no doubt that the articulation of the fact that the Bloody Sunday shootings were unlawful may well have been used as a justification for violence by those who subsequently went to violence and extremism of the most violent kind, but that does not mean that the efforts by academics to bring these matters to the attention of society and to have the truth told should have been condemned and prevented because they might have drawn people into terrorism. There is something more fundamental at stake here.

Noble Lords also know of the allegations of wrongdoing on Iraq and our entry into the war in Iraq. You could argue that the identification of what happened that led us into the Iraq conflict and brought us out of it, leaving a serious state of disarray and a huge tragedy behind it, was wrong—we await the report of the Chilcot inquiry—but you could also argue that the challenge of going into the war in Iraq, which many noble Lords opposed, and what happened in Iraq was a justified challenge, and yet it may well have given rise to a justification for extremism even in this country.

The essence of freedom of speech and freedom of expression and academic freedom is that the truth will be protected and cherished, and that people will have the right to say things which even Governments find very difficult to take and which ultimately may be proved to be true.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I thank all noble Lords who spoke in support of Amendments 15A and 15C, in particular the noble Baroness, Lady O’Loan. Her experience in Northern Ireland is very relevant to our discussions and throws real light on what is at issue here. I am also grateful to my noble friend Lady Smith, although I do not think that anyone is saying that this would necessarily cause that effect. This is the whole concept of the chilling effect: it is about perception and what people fear. I will not go into the phenomenology and so forth, but perceptions become reality because that is how people think. The chilling effect is very real.

I am most grateful to the Minister. I could not, because of the breakneck speed at which we must go through this, really ask for more than that he is prepared to go away and reflect. I accept that it is not binding. However, I trust that he will look very seriously to see what might be possible to come back with at Third Reading. I am very grateful to him. On that basis, I beg leave to withdraw the amendment.

Amendment 15A withdrawn.

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?

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Wednesday 28th January 2015 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

104: Clause 21, page 14, line 7, at end insert—
“(f) an academic function of a university or other further and higher education institution”

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, in moving this amendment I will speak also to Amendments 105, 107, 109 and 115 on behalf of the Joint Committee on Human Rights, of which I am a member. The amendments give effect to the recommendations made in our pre-legislative scrutiny report. Amendments 107 and 109 would exclude higher education institutions from the new statutory duty to,

“have due regard to the need to prevent people from being drawn into terrorism”,

although I suspect that the amendments in the name of the noble Lord, Lord Pannick, would do so rather better. Amendment 104 excludes,

“an academic function of a university or other further and higher education institution”,

from that duty. Amendment 105 makes it clear that the Prevent duty is subject to the duty contained in the Education (No. 2) Act 1986 to uphold freedom of speech, covering staff, students and visiting speakers. Amendment 115 requires that when issuing guidance and giving directions, the Secretary of State should have regard to the principle of academic freedom as contained in the Education Reform Act 1988, which includes a duty,

“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”.

These amendments may be technically deficient, but as they are for now probing amendments, I trust that the Minister will bear with me.

Recommendations stem from the JCHR’s conclusion that,

“because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new ‘prevent’ duty is not appropriate for application to universities”,

and from our observation that its relationship to universities’ existing duties with regard to freedom of speech is not clear. I have some sympathy with concerns about other parts of the educational sector, but following the JCHR report I will confine my remarks to HE institutions and will focus in particular on the question of academic freedom, therefore inevitably touching on some of the points already made. In doing so I declare my interest as an emeritus professor at Loughborough University.

Ministers have emphasised their commitment to academic freedom of freedom of speech, which I welcome. In a letter of 20 January to the JCHR, the Minister, James Brokenshire, pointed out that this freedom comes with a duty to ensure that it is within the law. Exactly. Given that, it is not clear why the Prevent duty has to be put on a statutory footing—moving from co-operation to co-option, as the noble Baroness, Lady Sharp, so pithily put it. Universities are already required to operate within any law that circumscribes freedom of speech. At last week’s packed meeting, addressed by the Minister and Mr Brokenshire—I thank the Minister for arranging that—we did not receive a convincing explanation. I suspect that the purpose of the meeting was to reassure noble Lords; my impression was that it had the opposite effect.

Since then, the JCHR has received the Minister’s letter, in which he set out why the Government believe that the application of the duty to universities is a matter of enormous importance. He cited the proportion of people convicted of al-Qaeda-associated terrorist offences who had attended an HE institution—the implication, presumably, being that their HE experience helped to lead them there. He acknowledged that some students arrived already radicalised or are radicalised by external influences, while suggesting that others can become influenced by non-violent extremism at university but later move on to violence. That seems to reflect the kind of linear, conveyor-belt theory of the journey to terrorism, which is challenged by many experts in the area and which was questioned earlier by the noble Baroness, Lady Warsi.

There are two main areas of concern, which have sometimes been conflated: visiting speakers policies, and the free exchange of ideas that lies at the heart of the relationship between lecturers and students. With regard to visiting speakers, it is unclear how the new duties sit alongside the duty in the 1986 Act not to use beliefs or views as grounds to refuse access to premises. We shall look later at the draft guidance, so I will not go into that now, apart from coming back, in a moment, to the question of definitions.

--- Later in debate ---

[Lord Bates]

Normally I go beyond what I am instructed to say by my patient Bill team who work behind me, but on this occasion, I think that I am probably behind them in that the letter says in terms that we have heard enough already to reach a judgment on the practicalities of the provision in paragraph 66 and that we will rework that, notwithstanding the answer which I accept that I gave to the noble Lord, Lord Hannay, earlier, that we would reflect on the issue and did not want to prejudge the consultation. I suppose that we have prejudged the consultation in that particular regard because we do not want what we consider is the important issue of keeping the universities within the broader statutory provision to be, as it were, misunderstood or challenged on relatively small procedural matters which could cause alarm and are many miles away from where the principal focus of our efforts should be.

[Baroness Lister of Burtersett]

My Lords, I thank the Minister for his characteristically good-natured and considered response, which I shall discuss in a moment. I thank all noble Lords who put their names to my amendments and the many noble Lords from across the House who supported them. I cannot remember many debates in your Lordships’ House where not one noble Lord has spoken in support of the Minister, although many have rightly emphasised how much they support what the Government are trying to achieve in terms of preventing terrorism. We have had perspectives from Northern Ireland, Wales and Scotland. I thank the noble and learned Lord, Lord Hope, for pointing out the deficiencies of Amendment 105 and how we can put that right. We have heard important arguments of principle that go to the heart of what a university is about and have pointed out how we could undermine the very values that we are trying to protect. As I said at Second Reading, I call these values of democratic citizenship. There is nothing uniquely British about them, but they are values that we probably share. We have also heard important arguments regarding practice, where noble Lords have pointed out that there seems to be a lack of understanding of how universities work, and that the practical implementation of the measure would be counterproductive, not least in pushing underground some of the debates with which we need to engage.

Before I discuss the Minister’s very helpful finale, so to speak, I wish to make a couple of points. He pointed out that Universities UK had itself issued guidance which is rather similar to the guidance that everybody has decried as being much too prescriptive. However, the fact that no one, not even Universities UK, seemed to know that it had included the relevant measure suggests that probably most universities simply ignore that bit of it because it is so obviously fatuous. However, the big difference is that if a university fails to comply with that guidance, the Home Secretary will not issue a directive against it and it will not find itself in court. There is a huge difference between the advisory guidance that Universities UK issues and statutory guidance related to the Bill.

A number of noble Lords asked about the lack of evidence on how many universities are failing to comply in this regard. The Minister said that he accepted that the evidence has not been marshalled but that there are institutions that do not comply. Noble Lords who are academics would not accept that as evidence. Evidence has to be marshalled for it to constitute genuine evidence; otherwise, it is anecdote.

I very much appreciate the Minister saying that he will go away and reflect on the debate, but am slightly worried because he talked about the new Prevent duty sitting comfortably alongside existing statutory duties to uphold freedom of speech and academic freedom. The whole point is that it sits uncomfortably beside those duties. I am worried that we may be talking about some kind of parallel universe. I am not a lawyer so I may make a fool of myself when I say this, but the existing duties in the 1986 and 1988 education Acts are themselves subject to other laws which restrict freedom of speech, as I said, so I do not see why there is a problem in making the Prevent duty subject to those duties because they are circumscribed. Therefore, I do not understand the noble Lord’s argument on that. When he reflects on the debate, I hope he will think seriously about that, because if the new duty is not subject to those duties, it will not meet the concerns expressed so powerfully in your Lordships’ House—concerns which are based on noble Lords’ experience. I hope it will be possible to discuss this issue informally, although we clearly do not have an awful lot of time before Report, given the fast-track nature of this legislation. I welcome the fact that the Minister is prepared to think further about this and beg leave to withdraw the amendment.

Amendment 104 withdrawn.

--- Later in debate ---

[Baroness Sharp of Guildford]

I have added my name to Amendments 112C and 112E. It is important that the fine print of the duty is spelt out in the guidance. It is extremely important that this should be put in the public domain and scrutinised by Parliament. I very much endorse the provisions of Amendment 112C. Similarly, in relation to the Secretary of State giving directions, it is important that this is transparent and in the public domain. Including such a report would actually be after the event. The scrutiny is not before the action but after it. Nevertheless, it brings the matter to public notice. It is vital that this is scrutinised by Parliament. I very much like the notion that a copy must be sent to the chair of the Joint Committee on Human Rights. That is appropriate given the interest that that committee has shown in these provisions.

[Baroness Lister of Burtersett]

My Lords, the concerns that were expressed in earlier debates about the draft statutory guidance underline just how important it is that that guidance is the subject of proper parliamentary scrutiny. Indeed, the Joint Committee on Human Rights, which has just been referred to, has recommended that the Bill should be amended to require the guidance to be approved by affirmative resolution of each House. I want to ask one specific question about the guidance. I do not know whether this is my bid for a letter but it would be good to have the answer in Hansard. The guidance sets out what is expected from student unions and societies in relation to the Prevent strategy, including making clear the need,

“to challenge … extremist ideas which are used to legitimise terrorism and are shared by terrorist groups”.

Both Universities UK and the National Union of Students have questioned how this is compatible with student union status as independent legal entities. My noble friend Lady Kennedy of The Shaws made reference to this in passing but did not actually pose the question of how it is compatible. The NUS also points out that student unions are already regulated by the Charity Commission so it could be awkward if they had to be accountable to two different bodies. I would welcome an explanation of this either now or, if that is not possible, in a letter. How do student unions fit into this and how will it be possible for universities to apply the guidance to bodies which are independent of them?

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I have a few questions concerning the role of HEFCE as the appropriate monitoring body. I was slightly surprised when I heard that it would play that role. What expertise does it have as primarily a funding body—albeit, I accept, with some wider governance oversight? Is there not a danger that the chilling effect will be that much greater if compliance is policed by the funding body?

Will the Minister also explain how HEFCE will regulate those HE institutions with which it has no formal funding relationship? Finally, I understand that reference to “the Secretary of State” means the Home Secretary. However, Universities UK argues that it is inappropriate for HEFCE to be given directions by the Home Secretary; there is the whole question about the independence of universities anyway, but in so far as there is such a relationship, normally HEFCE has a relationship with BIS, not with the Home Office. I would therefore appreciate the noble Lord’s reflections on those questions, because I know that there are concerns in the HE sector about the role of HEFCE— I do not know what its own view is on that.

[Lord Bates]

My Lords, I am grateful to noble Lords for their questions. I will first deal with the questions from the noble Baroness, Lady Lister, on HEFCE. As the noble Baroness will be aware, that is one of the questions we specifically ask on page 21 of the consultation:

“Do you agree that the Higher Education Funding Council for England is the appropriate body to monitor compliance with this duty? … Are there other higher education regulatory bodies that should be involved in monitoring compliance?”.

In many ways the short answer is that we are consulting on that. That was one of the reasons why when I introduced the government amendments I said that in certain cases we nominate the Secretary of State for Business, Innovation and Skills as the designated person for these purposes. I hope that addresses that point.

I turn to the point mentioned by the noble and learned Lord, Lord Hope, on Scotland, which he raised in the previous context as well; as I have stated, it is our hope and intention to add Scottish bodies to Schedule 3 in due course. At such point we could look at making consequential amendments to this clause to make it applicable to Scotland. The other one relates to Northern Ireland. On the application of free speech in Scotland, which was referred to previously—I take the opportunity because the notes happened to arrive together—this part of the Bill applies to England, Wales and Scotland, but as yet no Scottish bodies are listed in Schedule 3; I made that same point earlier. However, we will look carefully at the wording used, to ensure that it applies equally across all territories, so the basic answer is what I already said in this regard.

Counter-Terrorism and Security Bill

Baroness Lister of Burtersett Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I apologise that I was not here at the beginning of the noble and learned Lord’s remarks. I support the amendment and the remarks made by my noble friend Lady Kennedy of The Shaws. I have a question for the Minister. Members of the Joint Committee on Human Rights, of which I am one, with heavy heart agreed that we had to agree with the independent reviewer, but we said:

“We look to the Government to be proactive in bringing forward ideas about how to mitigate the alienation and resentment likely to be caused in some minority communities”,

by relocation. I would be very grateful if the Minister could give the Committee some idea of what ideas might be brought forward by the Government.

[Baroness Smith of Basildon (Lab)]

My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.

Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,

“is satisfied, on the balance of probabilities”,

for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.

My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.