Counter-Terrorism and Security Bill

Lord Macdonald of River Glaven Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I put my name to Amendments 110 and 112, along with the noble Lord, Lord Pannick, and I declare an interest as the warden of Wadham College, Oxford.

Under the terms of the Education (No. 2) Act 1986, universities are under a statutory duty to,

“take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

The Act goes on to say that this includes the duty,

“to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with … the beliefs or views of that individual or of any member of that body; or … the policy or objectives of that body”.

Universities are required under this statute to have a code of practice in place to facilitate the discharge of these important duties. We might contrast the terms of that statute with the relevant clauses of the Bill and the proposed guidance associated with it.

It is very easy to understand why Parliament should have passed those parts of the Education Act. It was to underline not just the importance of free speech as a public good in itself, but to highlight its particular relevance—its inescapable importance—to institutions of higher learning. That is to say, you cannot have one without the other. Noble Lords will remember the context in which that legislation was passed. Speakers were being howled down in some of our universities, to the shame of those institutions. Some were being refused facilities to speak—the so-called “no platform policies” that some institutions adopted, again, to their shame. An institution that shouts down a speaker with unpopular views or bans arguments that cause offence is not really a university at all: it is an intellectual closed shop. That is something very different and much less attractive.

Under the proposed guidance accompanying this Bill, which universities will be under a duty to have regard to in discharging their new policing obligations—for that is what they are—academics must devise processes to exclude from those universities people who intend to speak or give presentations in a way that may be guilty in some way of exhibiting traits of what the guidance terms “non-violent extremism”. The definition of non-violent extremism has already been drawn to the attention of the Committee. I suppose in the sense of non-violent extremism, it must, if we extract it from the proposed guidance accurately, be,

“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”.

It is those things that must be banished from British universities.

The patent lack of understanding in this Bill about how universities work—and some noble Lords have already alluded to this—becomes very clear when one considers the processes that the guidance mandates our universities to follow in order to discharge their new speech-policing obligations under the Bill. They are to be found in the guidance. The proposed guidance states that, in order to comply with the duty,

“all universities should have policies and procedures in place for the management of events on campus and use of all university premises”.

The guidance goes on:

“We would expect the policies and procedures on speakers and events to include at least the following … Sufficient notice of booking (generally at least 14 days) to allow for checks to be made and cancellation to take place if necessary … Advance notice of the content of the event, including an outline of the topics to be discussed and sight of any presentations, footage to be broadcast etc … A system for assessing and rating risks associated with any planned events, providing evidence to suggest whether an event should proceed, be cancelled or whether mitigating action is”,

to be contemplated or required.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend. I was under the impression that the noble Lord, Lord Bates, indicated in his letter dated 27 January that the Government would now withdraw paragraph 66 from the proposed guidance. It might save an awful lot of consideration in this Chamber if that is indeed the case.

[Lord Macdonald of River Glaven]

If that is the case, no doubt my noble friend the Minister will make that clear.

The greater point is that universities are not places of surveillance in the sense intended in this Bill, and they cannot become so without fracturing what is best about them. As far as I can tell, no concern at all appears to be expressed in the legislation or in the guidance that what is being proposed is a form of institutionalised censorship with academics at its heart.

If the guidance means what it says, and we must assume that it does, it calls into question a situation in which people in British universities would not be allowed to argue, with Plato perhaps, that democracy is flawed. It is not a crime to argue that democracy is flawed. No one in a British university could deliver a lecture that evinced a lack of respect for someone else’s religion. It is not, thank goodness, a crime in this country to demonstrate a lack of respect for someone else’s religion. Perhaps no one in a British university would be allowed to decry individual liberty in favour of, say, collective empowerment—a notion with a long intellectual pedigree. Again, it is not a crime to express that view in the United Kingdom. Obviously, the point is not whether noble Lords agree or disagree with any of these propositions, or whether any noble Lord would wish to advance any of them—for my part, I would not particularly. The question is rather whether we have really reached a state of affairs in this country in which it is now necessary for a senior politician, even a politician as senior as the Home Secretary, to be granted the power to influence, by power of direction if necessary, what can and what cannot be said in a university in the absence of any crime being committed. That is the point. This legislation seeks to control not only violent extremism but also speech in universities even where that speech is not otherwise a crime. This is its central failing and it is the reason I have put my name to the amendments tabled by the noble Lord, Lord Pannick.

The role of surveillance and control is one that is entirely inimical to the purpose of a university as we have understood it, which is to analyse, to explain and to discover. In that sense, open debate is the lifeblood of an institution of higher learning. Of course, as noble Lords have recognised, universities do not have immunity in the face of the criminal law—and they should not be immune to it. Indeed, like everyone else and every other body, they have existing obligations under anti-terrorism legislation, including the obligation to disclose to the authorities information they have about terrorism activities. But no one is suggesting that they are failing to discharge those obligations, and this Bill neither defines nor seeks to address any such failing. That is because there is none.

Let me conclude by pointing out one striking omission from the proposed guidance that is to accompany the Bill. Nowhere within it is there any attempt to explain how its terms are consistent with the entirely appropriate and laudable legal obligation placed upon universities to secure freedom of speech. There is no attempt to square that circle. This may be because no one in the Home Office considered the Education Act properly before deciding to legislate for our universities in this way, or it may be because it is simply obvious that the freedom of speech duty mandated in the Education Act is in conflict with the Bill, so any attempt to argue that they can coexist is doomed to failure.

These proposals may spring from the best of intentions. They doubtless spring from a desire to do something, perhaps anything, about the real problems we face around radicalisation. However, in practice they will inevitably undermine the place of freedom of speech in our universities. They are wrong in principle and they are unworkable in practice.

[Baroness Brinton]

My Lords, I have added my name to Amendments 112A, 112B and 112D. I shall start by speaking to those amendments and then to the others in the group. It is a matter of serendipity that I follow my noble friend Lord Macdonald because Amendments 112A, 112B and 112D try to address the exact points that he has raised and insist that the two duties must be examined together in order to balance the right to freedom of speech. I defy officers of universities and colleges to achieve that and I think that it would be a tall task for civil servants. One of the reasons I have been keen to table these amendments is that, as a senior university administrator, I have sat with two codes of practice and two different sets of statutory guidance which are completely in conflict with one another. We have to make it clear to those who will try to deliver the legislation on the front line exactly how it would happen. That is why the first part of the amendment talks about the recognition of the duty on free speech and the second part makes it clear that any guidance must be produced in the form of a single document so that staff do not have to trawl through parallel sets of guidance and codes of practice to try to find out which trumps the other.

I hope that the amendment is straightforward and simple, but it is included in a group which seeks to tackle the absolute, fundamental problems around the duty and how it conflicts with the duty on freedom of speech. I want to make two points. The first goes back to the Education (No. 2) Act 1986, which many noble Lords have quoted. Clause 43(4) states,

“(including where appropriate the initiation of disciplinary measures) to secure”,

those rights, but that is a two-way right, and universities have certainly used it where there might be either radicalisation or something close to the infringement of personal liberties or, worse than that, the possible incitement of a crime. On 20 September 2013, the Guardian reported that a number of our universities and students unions across the UK had banned the song “Blurred Lines”, a song that is degrading to women and which encourages rape. That demonstrates that the current boundaries for freedom of speech are well understood in our universities and are applied by them and by the student bodies. I come back to this. I do not understand why we need a duty when it is absolutely evident that this is already working in practice. I repeat my request for specific recent examples of where this has not succeeded and has not been followed through.

The other point I want to make on academic freedom moves away from the purist freedom-of-speech argument. Much of our debate has been about societies, students and academies talking outside the normal framework. Recently I was talking to a postgraduate student who is working on Middle East peace studies. He and his colleagues have just completed a module in a Masters course on suicide bombers. How free will they be to access information on that issue and thus actually help this country and the wider world to understand what motivates these people to become so radicalised that they are prepared to give up their lives? Would accessing videos online to try and understand the linguistic and pedagogic emotions behind those decisions be caught as radicalisation, would it require a special exemption in order to have that debate, or would it just be banned completely? We need to understand how the pure academic freedom to research would be affected by this duty.