Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

3rd reading (Hansard): House of Lords
Tuesday 4th April 2017 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

10: Schedule 5, page 98, line 43, at end insert “and that all the requirements for the grant specified in this Schedule are met,”

[Lord Mackay of Clashfern (Con)]

My Lords, this amendment has a rather interesting history. It arose from my reaction in Committee to an amendment in the name of the noble Baroness, Lady Brown, in connection with this schedule, which contains a power of search that is absolutely new to the academic community. It therefore required very careful consideration, which the noble Baroness’s amendment provided. In addition, she pointed out that this power had created anxiety in the academic community, as noble Lords might expect. Apart from what it might achieve, one thing is certain: if it were ever carried out, it would do very serious damage to the reputation of a higher education provider whose premises were the subject of a search.

Having listened to this, I suggested that it might be a good idea for the magistrate granting the warrant to indicate that he or she was satisfied that the conditions had been applied and satisfied. These conditions are extremely strong and very useful. When the point was raised by the noble Baroness, Lady Brown, my noble friend the Minister read out the conditions and said that they would certainly be satisfied, and that that was implied in the statutory provision.

After raising in response to that the idea that the magistrate might indicate by signature that he or she had been satisfied that the conditions had been met, I quite quickly received a letter to say that the idea of a separate signature was unheard of and that it would be a quite startling innovation. Well, the search warrant itself was something of an innovation, so I was not particularly disturbed by that—but I thought that I had better meet that and deal with it by suggesting an amendment to the form of the warrant specified in statute and put into the warrant that the magistrate was satisfied that the conditions for the grant set out in the schedule had been met.

Noble Lords who are interested will remember that ultimately this came to Report, when my noble friend Lord Young of Cookham dealt with the amendment. In the course of his observations he referred to two statutes that were supposed to indicate a form of warrant that would exclude my idea. Needless to say, I examined both of those and neither of them seemed to support the proposition for which they were cited. Eventually, my noble friend kindly agreed that the Government would consider the matter further—which is why it is competent for me to raise it at Third Reading. I had permission, as it were.

Since Report, I have had a meeting with the Minister—this time, the noble Viscount, Lord Younger of Leckie—officials from the Department for Education as well as, and this is the vital information, an official from Her Majesty’s courts service. It was not clear from the previous meeting exactly what the objection was to my amendment. It was thought that his department was carrying out an operation to simplify all warrants and make them pretty well the same. It turned out at the meeting that these were related to the criminal procedure and the operations of the committee concerned with the revision of criminal procedure matters. I continued to think that this was not a criminal matter and therefore did not preclude what I wanted.

I was fairly insistent that this should happen, so we had a meeting this afternoon. It transpires that the idea of it being unheard of to have a separate signature is without foundation, because the criminal procedure committee and the Lord Chief Justice, who is no doubt an implement of that, have approved a form of warrant in criminal procedures which includes at the end of the application a space for the magistrate to sign to the effect that he or she has granted a warrant and to give the reasons for it.

It is apparent that this is not a criminal warrant; it is much more general than that. The official from the courts service kindly gave me a copy today of the form of warrant in criminal matters. It refers to the Criminal Procedure Rules and the Police and Criminal Evidence Act 1984, but it also says:

“Use this form ONLY for an application for a search warrant under a power to which sections 15 & 16 of the Police and Criminal Evidence Act 1984 … apply, other than section 8”.


There is a different form for Section 8. So whatever you say about the form, it does not seem expressly to apply to one type of warrant. The official undertook to confirm whether this procedure applies generally as a matter of practice to other warrants—and he rather thought that it did.

I would be content if this form of warrant or something like it was agreed to be applied to the warrants under Schedule 5 to the Act, because it is a form of what I originally suggested. If that is correct, it is a perfectly reasonable way of allaying the concern of the academic community that the warrant would be too readily granted and that the very strict conditions laid down in the schedule might not be fully understood by the magistrate who had the obligation in connection with the warrant.

I think it right that I should move my amendment but explain that, in light of the rather tortuous history that it has had, I would be content if the Minister confirmed that the practice of magistrates’ courts generally in relation to all the warrants that they deal with is to contain in the application a form for the signature of the magistrate confirming that he or she has issued the warrant for the reasons that are summarised.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, with that introduction, how can one fail? I thank another noble and learned Lord—this time, my noble and learned friend Lord Mackay—for his helpful and astute contributions on this issue both in Committee and on Report. We are very grateful for the expertise that he brings to bear. As my noble and learned friend said, this amendment has had an interesting history and has done the rounds, but, on a serious note, let me offer my apologies if the department’s letters to him on this issue have misunderstood his area of concern.

I shall briefly reiterate why the powers to enter and inspect higher education providers, set out in Schedule 5, are needed. These powers will allow suspected breaches of registration and funding conditions which are considered by a magistrate to be, to quote directly from Schedule 5,

“sufficiently serious to justify entering premises”,

such as financial irregularity, to be tackled swiftly and effectively through the new power of entry. This will safeguard the interests of students and the taxpayer, and protect the reputation of the sector. As the NAO said in its 2014 report on alternative providers, at the moment the department has no rights of access to providers, and this affects the extent to which it can investigate.

We agree that it is vital, of course, that strong safeguards are in place to ensure that these powers are used appropriately. As set out in Schedule 5 as drafted, a magistrate would need to be satisfied that four tests were met before granting a warrant: first, that reasonable grounds existed for suspecting a breach of a condition of funding or registration; secondly, that the suspected breach was sufficiently serious to justify entering the premises; thirdly, that entry to the premises was necessary to determine whether the breach was taking place; and fourthly, that permission to enter would be refused, or else requesting entry would frustrate the purpose of entry. These criteria will ensure that the exercise of the power is appropriately limited. Further limitations are built into Schedule 5, including, first, that entry must be at a reasonable hour, and secondly, that the premises may be searched only to the extent that is reasonably required to determine whether there is or has been a breach.

I believe that the thinking of the Government and that of my noble and learned friend is very largely aligned in relation to these safeguards. I fully understand that this amendment does not seek in any way to alter the conditions which must be met for a warrant to be granted, or prevent warrants being granted where they otherwise would have been. Rather, as my noble and learned friend has set out, the amendment makes a small change to the powers so that the search warrant to enter a higher education provider must state that all the conditions for grant of the warrant specified in Schedule 5 have been met. I am grateful for my noble and learned friend’s valuable contribution and have discussed this with him outside the Chamber and reflected on this matter very carefully. As he said, he spoke with my honourable friend in the other place, Jo Johnson, on this matter today, and with officials from HM Courts and Tribunals Service. I hope that these conversations were helpful. However, the Government remain of the view that this schedule should stand as drafted, as we believe that a requirement to state that the conditions have been met would not provide an extra legal safeguard.

We agree that it is imperative that the conditions in the schedule are fully met before any warrant is granted. However, we believe that this is already the effect of the Bill as drafted, specifically paragraph 1 of Schedule 5. Furthermore, paragraph 3(1)(f) already provides that the warrant must, as far as possible, identify the funding or registration condition breach which is suspected. We understand that, in the past, magistrates may have taken an insufficiently robust approach towards scrutinising warrant applications but, as I have impressed upon my noble and learned friend, the position is markedly different now: the specifics of applications are carefully scrutinised and it is not uncommon for warrants to be refused. I should acknowledge to my noble and learned friend that there may have been a misunderstanding as to the requirement for a magistrate to certify that the statutory requirements for the issue of a search warrant have been met. I want to reassure him that a magistrate will be required to set out the reasons for their decisions in writing, and to add their signature to their reasons. I accept that this may be described as a certificate.

I want to go into a little more detail, bearing in mind the comments of my noble and learned friend. He asked whether an application under Schedule 5 is within the ambit of the criminal procedure rules. The criminal procedures apply to a magistrates’ court,

“when dealing with a criminal cause or matter”.

Although an application for a warrant under Schedule 5 can be granted only where the breach under investigation is sufficiently serious, there is no requirement that the investigation must relate to possible breaches of the criminal law. However, in the absence of any specific guidance to the contrary, it is the practice of magistrates’ courts to deal with applications for a warrant to enter premises in accordance with the CPR and the criminal practice directions and using the prescribed form of application and warrant. Magistrates’ courts do not seek to make fine distinctions as to whether an application is civil or criminal. It is the nature of the application that is important.

As I said earlier, I can confirm that a magistrate will sign a separate form which certifies that the statutory criteria are met. In addition, of course, the magistrate will sign the warrant. With that reassurance, with the extra detail that I have set out and the reasons we believe this amendment is not necessary, I respectfully ask my noble and learned friend to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, I am extremely happy because the purpose of my original intervention has been fully met by the description that my noble friend has given of the practice of the court. It is a little odd that the form is to be used only for criminal matters, but practice sometimes overcomes that. I am constrained to add a personal note. When I came to politics rather late in life, I had a very skilled, shrewd and experienced person to guide me. He was operating in a very hostile atmosphere and I gathered from him that if you could do anything to allay the concerns of those who were concerned about your activities, so long as it did not alter your own position it was wise to do so. I have used that criterion for most of my time in these offices. The person to whom I owe this tuition was the father of my noble and learned friend. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.