Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, Oxford is well represented today. I declare an interest as a fellow of All Souls College. I find this a genuinely difficult issue. I am supportive of the Government’s general objectives in Part 5; far more supportive, I think, than some of the speakers who have addressed noble Lords this afternoon, particularly in the earlier debate.

It seems to me that the starting point has to be that there is a disturbingly large number of people out there who are prepared to take violent action for ideological and religious reasons. There is an even more disturbingly large number of people who are prepared to encourage or to condone such violence. For me, the most shocking part of the appalling events in Paris were not the attacks on the journalists and the kosher supermarket by deranged Islamists, it was that a minute’s silence for the victims was unenforceable in many French schools, because of sympathy for the murderers and their supposed cause from students and, presumably, their families. This demonstrates, I think, that in France there is an alarming failure to understand the basic principles of a liberal democracy; a democracy which protects the freedom of religion—rightly so—of those who refuse to recognise the basic rights of others.

My starting point is that the Government are rightly determined to prevent such developments here; developments which breed religion-inspired violence. Having said that, I share the concerns which have been expressed this afternoon about the impact of these provisions on freedom of expression and academic freedom in universities. My concern is very similar to that of the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Kennedy. It is that the duty which the Bill will impose is very difficult to reconcile with the very idea of a university whose primary role is to encourage academic debate and dissent. I think that a code which can be enforced by legally binding directions is far too blunt an instrument in the context of a lecture hall or a seminar room. If you try to wear a policeman’s hat and an academic gown at the same time, you are unlikely, I think, to perform either task adequately.

The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.

I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,

“is in no way designed to cut across the importance of free and open debate”,

particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.

[Lord Hope of Craighead (CB)]

My Lords, I entirely support the points that have been made by all noble Lords who have spoken in favour of these amendments. I have a rather particular point to make about wording, which I do as a former chancellor of the University of Strathclyde, which of course is in Scotland.

Clause 41(1) makes it clear that Part 5 of the Bill applies to Scotland as well as to England and Wales—it does not apply to Northern Ireland, as the noble Baroness, Lady O’Loan, said. However, this gives rise to a problem about drafting. One has to be absolutely sure when one refers to legislation—as, for example, Amendment 105 does, along with Amendment 108 and others—that the legislation referred to applies to Scotland as well as to England and Wales. The problem with Amendment 105—which I entirely support in principle—is that Section 43(1) of the Education (No. 2) Act 1986 applies only to England and Wales, and does not apply to Scotland. The right to freedom of speech, and all the points that have been made in favour of the exercise of freedom of speech and about the difficulties of enforcing measures of the kind that we are talking about and so on and so forth, have just as much power and effect north of the border as they do in England and Wales. If Amendment 105 were to be agreed with the form of words which it has at the moment, it would create difficulties north of the border. That could be cured very easily by simply taking out the reference to,

“the duty in section 43(1)”,

of the 1986 Act, and substituting the words “the need to ensure that freedom of speech is maintained”. Freedom of speech in Scotland is deeply ingrained in the law of the country by, for example, Article 10 of the European Convention on Human Rights. One of the features of the 1986 Act is that it was passed some years before the Human Rights Act 1998 was enacted. Nowadays, you look to the convention rights in the Human Rights Act to see whether you have a right that you wish to assert. It is certainly true that Section 43 goes rather further and is quite detailed about the nature of the duty, but I have searched as best I can through the legislation in Scotland and, so far as I can see, there is no equivalent provision in either the education Acts or the university Acts in Scotland, which cover the same field.

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[Lord Bates]

My Lords, with the leave of the House I will take Amendments 113 and 114 together. Throughout our debates the Government have made it clear that we will rely on existing monitoring regimes for the relevant sectors. That remains the case. Although publicly funded further education is monitored by Ofsted, no such regime currently exists for all higher or private further education. We have asked the higher and further education sectors about monitoring of the Prevent duty as part of the consultation on the draft guidance, which has been undertaken in parallel to the passage of the Bill. I am pleased to say that in the discussions we have had, the sector has been broadly supportive of a limited regime, such as the one we are proposing.

Universities are not inspected. Rather, they are currently subject to limited monitoring and assurance regimes that apply to quality of provision and to accounting for the use of public money. Those regimes are based on risk and are designed to be proportionate and not burdensome. The overwhelming view expressed in the discussions so far has been to agree that a monitoring regime for this duty should be one that is both recognisable to the part of the education sector to which it is being applied and proportionate to the duty being placed upon the sector. We have achieved that with these amendments.

The amendments will allow the monitoring authority to require the provision of information by relevant education institutions to assess compliance with the duty. Information that institutions might be asked to provide to monitoring bodies could include details of risk assessments relating to how students might be at risk of being drawn into terrorism, policies and procedures on speakers and events, and on IT. We fully expect an institution to co-operate with the monitoring authority. However, there may be rare cases where the institution does not co-operate and, in such cases, where the monitoring authority has exhausted all other options to address the failure, the amendments allow the relevant Secretary of State to make a direction.

This is a serious step that we would not like to see taken unless it is strictly necessary. For that reason, the amendments allow for a monitoring authority—for example, when not satisfied that an institution has adequate provisions in place to comply with the duty—to request information about steps that the institution plans to take to ensure that it discharges its Prevent duty correctly. We expect this to be sufficient to avoid the use of direction in all but the most serious cases.

If an institution has failed to provide adequate information about compliance with the duty in spite of repeated approaches by the monitoring authority, we would expect any direction necessary to be given by the appropriate Secretary of State. That means the Secretary of State for Business, Innovation and Skills in England, not the Home Secretary and, for institutions in Wales, we expect it to be the Secretary of State for Wales, in consultation with the relevant Welsh Ministers. The amendments allow for the relevant Secretary of State to undertake monitoring or to delegate the function. We do not envisage that the Secretary of State will actually undertake this function, but it is important to explain the technical reason for including this possibility.

We may wish to consider whether the Skills Funding Agency is an appropriate monitoring body for part of the sector and if, in consultation with the further education sector, we determine that it is, then we would technically need the Secretary of State to deliver that function. That is because of the proposed legislative changes to abolish the office of chief executive of skills funding in the Deregulation Bill, which will mean that the Skills Funding Agency will become part of the Department for Business, Innovation and Skills and will operate through the powers and duties of the Secretary of State.

Going forward, the department with responsibility will work with the monitoring bodies and, once they have been confirmed, we will work with the sector to draw up a monitoring framework that sets out more explicitly how we expect to monitor compliance with the duty. I beg to move.

[Lord Hope of Craighead]

My Lords, I think I understand the purpose of the clauses from the explanation that the Minister has very helpfully given. He will not be surprised to hear that I have spotted that there is no mention of Scotland in either of these two clauses. As I mentioned earlier, if one looks at Clause 41 one sees that Part 5 of the Bill applies to Scotland as well as to England and Wales. Therefore, as far as I can judge, all the other clauses in this part are carefully designed to apply to that jurisdiction as well as to England and Wales. It is very strange that no mention is made of Scotland in either of these clauses or in the noble Lord’s explanation of their purpose. I may be wrong, but the equivalent bodies exist in Scotland to enable a similar system to be carried out. Is it simply that under the normal conventions, the Government have been unable to secure the agreement of the Scottish Government to these clauses, and will come back at a later date—perhaps before Third Reading or possibly in the other House, if this has to go there —or is this a deliberate intention not to apply the monitoring system to Scotland? If that is the intention, I would be very interested to know why that decision was taken.

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[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.

[Lord Hope of Craighead]

Is it the intention to make further amendments by statutory instrument rather than by primary legislation? Obviously, if we had to come back with an amending statute, that would take time and be a rather laborious business. I wonder whether a better precaution would have been to put some kind of structure into the Bill at this stage, as is done elsewhere in this part, on the assumption that a number of Scottish authorities or institutions will be added to Schedule 3. But if it is possible to do it all by order the problem disappears, because that can be done quite simply.

[Lord Bates]

Perhaps I could reflect on that a little more and then return to it. Of course, there is still parliamentary time for further consideration of the Bill, and for Scottish bodies to be named and listed. We would be happy if that happened in time for them to be included on the face of the Bill. I shall consider further the noble and learned Lord’s point.