Counter-Terrorism and Security Bill

Lord Bates Excerpts

Monday 9th February 2015 Lords Chamber

Moved by

[Lord Bates]

1: Clause 1, page 2, line 8, at end insert—
“( ) In Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) (civil legal services: excluded services), in paragraph 2(d) (proceedings in court of summary jurisdiction in relation to which funding for representation may be provided), after paragraph (xx) insert—
“(xxi) under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015;”.”

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

My Lords, Amendment 1 relates to the availability of civil legal services in Northern Ireland for hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained under the power in Part 1, Chapter 1, of the Bill.

Your Lordships will recall that, in Committee on 20 January, the House agreed to an amendment that extended the availability of legal aid to those subject to the temporary passport seizure power in England and Wales, subject to individuals meeting the statutory means and merits tests. At that time, I advised the House that we were discussing the matter with the devolved Administrations and that further amendments may be required.

Accordingly, this amendment is necessary to ensure that, subject to means and merits tests, civil legal aid may be available in relation to applications to extend a temporary passport seizure to a district judge in the magistrates’ courts in Northern Ireland, as set out in paragraph 8 of Schedule 1 to the Bill. The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that Act may require some amendment and that will, of course, be taken forward through the Scottish Parliament.

Amendment 1 will amend paragraph 2(d) of Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 to bring the proceedings in Schedule 1 to the Bill within the scope of civil legal services in Northern Ireland. The amendment also ensures that advocacy before the district judge in the magistrates’ courts may be included in the civil legal aid that may be available for those proceedings. The amendment does not alter the statutory means and merits tests, nor does it make available civil legal aid for any other civil legal services in Northern Ireland. Legal aid is already available for judicial review proceedings in Northern Ireland, subject to individuals meeting the statutory means and merits test.

The Government consider that an amendment to the scope of the civil legal aid scheme in Northern Ireland is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances, and the absence of an alternative route to resolution.

The Joint Committee on Human Rights and a number of noble Lords have expressed an interest in this issue and I trust that this further amendment will also be welcomed by your Lordships’ House. I beg to move.

Amendment 1 agreed.

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Moved by

[Lord Bates]

2: Clause 26, page 17, line 39, after “to” insert “the exercise of particular functions or to”

[Lord Bates]

My Lords, in moving Amendment 2, I will, with the leave of the House, speak also to Amendments 3, 7 and 8. These all relatively minor and technical amendments in relation to the Prevent duty in Part 5, Chapter 1, of the Bill.

Schedule 6 specifies those authorities subject to the duty. Amendments 2, 3 and 7 increase the flexibility here to allow for the duty to apply only in relation to the performance of certain of a specified authority’s functions that we chose to refer to in the schedule. We do not have any intention of altering the current descriptions in Schedule 6 at the present time, but these amendments will allow for the possibility of such nuances to be included in the future.

Amendment 7 seeks to provide a clarification that functions caught by this duty do not include functions exercised outside Great Britain. This matches the territorial extent of this part of the Bill.

Amendment 8 follows on from the government amendment tabled on Report, which required that the Prevent guidance be subject to parliamentary scrutiny. This amendment allows for the power to issue such guidance to commence upon Royal Assent. This will ensure that the guidance can be issued and considered by Parliament at the earliest opportunity, prior to the duty itself being commenced, so that specified authorities have as much time as possible to make preparations in the light of the guidance before it takes effect. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I welcome these government amendments, as I do all their amendments at this stage. I particularly welcome the proposal that only particular functions of authorities which are specified in the future may be caught. I wish I had thought of using the term “nuance” when I tabled a similar amendment at a previous stage about the current list of authorities.

I have a question for my noble friend on Amendment 7 and functions exercised outside Great Britain. I imagine that his notes include one or two examples of what that might comprise. I asked my noble friends sitting next to me whether they had any ideas. My noble friend Lady Ludford suggested that the measure might apply to the activities of UK Visas and Immigration. I do not know whether the Home Office would come down with a heavy fist on a Home Office body, but I am sure that it is a good principle. It seems that my noble friend may not have any examples, in which case I will let him off the hook as he has been so helpful on other matters.

[Lord Bates]

My Lords, I am very grateful to my noble friend for her question on these amendments. We are happy to supply further examples but one which springs to mind is that of a university which has another campus outside the United Kingdom. However, if there are other examples which would be helpful to your Lordships, I am happy to write at a later date.

Amendment 2 agreed.

Moved by

[Lord Bates]

3: Clause 26, page 17, line 41, after “to” insert “those functions or”

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Moved by

[Lord Bates]

4: Clause 31, page 20, line 12, leave out from “of” to end of line 13 and insert “a description mentioned in Schedule 6 to the Education Reform Act 1988 (higher education courses).”

[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?

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[Baroness Smith of Basildon (Lab)]

My Lords, the Minister’s characteristically generous comments when he introduced these amendments illustrate his attitude to the whole Bill. I hope that the well-deserved praise that he has received so far does not damage his promotion prospects in the future, given where it is coming from. He said that the debate had lasted thirty-eight and a half hours. There were times when it flew by and there were times it did not, but it is a testament to your Lordships’ House—and I think noble Lords across the House, other than the noble Lord, Lord Phillips, have recognised this—that we have a substantially improved Bill from the one that we received, and with no votes, which is an interesting comment on the way we have proceeded in our discussions and debates both inside the Chamber and, as the noble Baroness, Lady Lister, referred to, outside the Chamber as well.

I thank the Minister for the number of occasions on which he has been willing to engage. We have all engaged with Ministers across parties in the past where we have engaged but have felt that they perhaps have not engaged in the same way. He has not been guilty of that on any occasion. He did engage properly. Even last Wednesday, I caught him at around midnight as he was leaving the Chamber, and he was willing to discuss the issue of academic freedom further. I think that says a lot about how we got to this substantially improved Bill.

My only question is to ask whether the Minister can place on the record the points that he made in his extremely helpful letter in that regard, as outlined by the noble Baroness, Lady Lister. I think that would be very important. I thank him and his Bill team, who have been available at all times for discussions and debate. I think that is what has led to the improvements.

Can I make one plea? I have also received emails and letters about this. There is some misunderstanding of the purpose of the Bill and how these measures will work. That is going to be very important. Legislation is one thing, but hearts and minds and understanding to make it work in practice in the way that it is supposed to—doing no less and no more than is intended—will be extremely important.

As well as the clarity that the Minister has given to the Bill as a whole, particularly on freedom of speech and academic freedom in Parts 1 and 2 of the Bill, the issues will now receive judicial review. That is extremely important. We pushed it to a vote in the Commons. We did not succeed, but we have succeeded in agreement across your Lordships’ House on that point during our debates.

On the issues of guidance, the fact that we have now increased parliamentary scrutiny by affirmative order is extremely important. I also recognise that during Committee, as the noble Baroness, Lady Buscombe, said, several changes were made to that guidance. She recognised that it would have to be changed before it was presented to your Lordships’ House through an SI.

We support these amendments. We are grateful to the Minister for putting them forward. We also welcome the spirit in which this Bill has been debated and discussed and the changes that have been made. It is a significant testament to your Lordships’ House that, as I said at the beginning, we have a much improved Bill in comparison to the one we received, and with no votes, by negotiation and discussion.

[Lord Bates]

My Lords, I am very grateful for the comments that have been made from around the House. There is no need for the noble Baroness to worry about damaging my career prospects. As I am reliably informed, I do not have many, having already exceeded my mother’s expectations for my career some years ago.

The noble Baroness made a very important point about the fact that we have considered 237 amendments and there has been no Division, but that is not to say that there has been no difference, change or argument, or really passionate debate. I think of some of the debates that we have had, particularly on academic freedom and communications data, to which my noble friend Lady Buscombe referred. We have had passionate debate all the way through, and as a result of that 40 amendments have been made to the Bill, which will now go on its journey to another place.

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Moved by

[Lord Bates]

5: Clause 31, page 20, line 15, leave out from “applies” to end of line 17 and insert “—
(a) must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty;(b) must have particular regard to the importance of academic freedom, if it is the proprietor or governing body of a qualifying institution.”

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Moved by

[Lord Bates]

7: Clause 35, page 22, line 2, at end insert—
“( ) “Function” does not include a function so far as it is exercised outside Great Britain.”

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Moved by

[Lord Bates]

8: Clause 52, page 32, line 40, leave out “29” and insert “30, section 31(2) and (4) and sections 32”