Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

125: Schedule 5, page 90, line 15, at end insert “and that all the requirements for the grant specified in this Schedule are met,”

[Lord Mackay of Clashfern (Con)]

The amendment arises out of an observation I made when this schedule was considered in Committee. I think it was the noble Baroness, Lady Brown, who said that this was quite a serious matter.

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt my noble and learned friend but I believe that the amendment is within the group we have just concluded.

--- Later in debate ---

[Lord Mackay of Clashfern]

I think that that is certainly so; my understanding of time and practice here suggests that it is. Perhaps I may continue.

The noble Baroness, Lady Brown, made the point that the noble Lord was making on the previous amendment: that this is really rather novel. You can imagine the effect on a higher education provider if it appeared in the newspaper that, the night before, a search warrant had been issued for its headquarters. In answer to that, my noble friend Lord Younger of Leckie said that the conditions are very strict, and he read out the fairly detailed conditions. I thought it might be a simple safeguard to require a signature to say that these conditions had been met. I got a letter the day after that suggesting that this was an unheard of stipulation. As you can imagine, that slightly worked me up to see what I could do about it.

The provisions say that a search warrant must specify the name of the authorised person who applied for it and so on, and,

“state that it is issued under this Schedule”.

That is a fairly important provision. It occurred to me that all one had to do was add after that the following simple words,

“and that all the requirements for the grant specified in this Schedule are met”.

That seems very straightforward and easy.

Look at how these magistrate’s search warrants are granted. One must remember that where the conditions in a particular provision are important, the magistrate may not have in his head exactly what the conditions are. Therefore, I suggest that this amendment is a rather easy and convenient way of making sure that the magistrate’s attention is directed to the detailed requirements of the schedule, which have to be met before the warrant can be granted. That seems very straightforward and I cannot see anything wrong with it. So far, I have not heard any reason why it would not work. Therefore, I beg to move this amendment.

[Lord Young of Cookham]

My Lords, might I respond to the points that my noble and learned friend has raised? In so doing, perhaps I will respond very briefly to the point made by the noble Lord, Lord Watson, in concluding the previous debate about why these powers were necessary and where the demands came from.

As I said, at present, neither HEFCE nor the Secretary of State has the statutory right to enter a HE provider to investigate if serious wrongdoing is suspected. This compromises investigators’ ability to obtain evidence of what may have happened and makes it harder to tackle rogue providers.

In its 2014 report on alternative providers, the National Audit Office said that the department has no rights of access to providers and that this affects the extent to which it can investigate currently. Therefore, we believe that these powers are needed to safeguard the interests of students and the taxpayer and to protect the reputation of the sector.

I apologise to my noble and learned friend, but I tried to address Amendment 125 when I—

[Lord Young of Cookham]

No, the provisions are not required for the reasons that the noble Lord has suggested but because we believe they are necessary for the current institutions and in the light of the NAO report, which was written before these new providers came on to the scene. The department has no right of access to the providers. This affects the extent to which it can investigate currently rather than in future.

I turn to my noble and learned friend. I am not sure that I can usefully add to what I said earlier. I would not of course challenge for a moment what he said about practice in the judiciary. My understanding is that it is not usual practice within powers of entry provision for the magistrate to sign a certification document, and we are still unaware of any examples of this. The relevant clause in the Bill, as I think I said a moment ago, sets out the considerations that magistrates would have to take into account when making their judicial decision to grant a warrant, and we have full confidence that this constitutes a sufficient safeguard to ensure that a warrant will be granted only where necessary. For that reason, we are not persuaded that his amendment, in saying that it would have to be signed, constitutes an extra safeguard to ensure that a warrant would be granted only where necessary. I hope that, against that background, my noble and learned friend will feel that he does not have to press his amendment.

[Lord Mackay of Clashfern]

I am very sorry, but it strikes me as absolutely essential that the warrant be signed. I do not think that there is any question but that the magistrate has to sign the warrant. Given that the warrant has to contain a statement that it is under the schedule—in other words, the magistrate has to say that it is under the schedule—it is only common sense. There are special conditions here, which my noble friend relied on as justifying the proposition that they should have this provision, in spite of what the noble Baroness, Lady Brown, said about how detrimental it might be to a higher education provider. I am not disputing the need for the warrant at all; all that I am suggesting is that it would be a very important safeguard that magistrates’ attention would be drawn specifically to these quite elaborate conditions. They are quite detailed, and I do not think that it is likely that a magistrate will have them in his head, or her head, as they approach the grant of a warrant, when whoever it is comes along and applies for it.

Therefore I am not asking for any separate signature—one signature is enough—but the signature would include the phrase that I have put in this amendment, after the fact that it is under this schedule. That seems to be absolute common sense, and I am extremely sorry that the Government have not had the willingness to accommodate this, which occurred to me in the course of dealing with the matter here. Surely, that is what Committee stages are for. If the Government are to cast aside what I have suggested, given that I have a certain amount of experience of magistrates’ warrants and so on, I sincerely hope that before Third Reading this is taken into account. Otherwise, it seems to me an absolutely idiotic attitude from the Government to simple improvements suggested in the course of the discussion.

[Lord Young of Cookham]

I am grateful to my noble and learned friend, and of course I will with my colleagues have a look at this between now and Third Reading, but what we have done here is to take a standard approach used in existing legislative provisions relating to search warrants and powers of entry. We are simply seeking to replicate the procedure that already exists in similar circumstances, when for whatever reason powers of entry are required. We are simply applying best practice and extending to these institutions powers that already exist to institutions in the educational field. However, in view of the very strong feelings that my noble and learned friend clearly has on this, and in view of his greater knowledge than mine in matters judicial, of course we will take it away and have another look at it. Against those undertakings, I hope that my noble and learned friend might feel able to withdraw his amendment.

[Lord Mackay of Clashfern]

Certainly, with that understanding, I am prepared to withdraw the amendment and I sincerely hope that wise counsels will prevail by the time we come to Third Reading.

Amendment 125 withdrawn.