Counter-Terrorism and Security Bill

Lord Phillips of Sudbury Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Bates]

Of course, many of us subscribe to the view that one of the greatest forces against extremism is the freedom of speech that exists within universities so that people’s radical views can be challenged, and should be challenged, in an open way. Nothing being brought forward today says that the Government are going to tell any university who it should invite to speak. Nothing is going to tell any university who it should have on its faculty or in its student body. That is for the university to decide. All we ask is that at a time of national alert on issues of terrorism universities have due regard to their responsibility to the challenges and vulnerabilities of their institutions and the students who are in their care. That is where we are coming from on this. On the great sweep of what the noble Lord said, I fully endorse it.

[Lord Phillips of Sudbury (LD)]

The Minister just, for the second time during his winding up, referred to the phrase “having due regard” in Clause 21 of Part 5 as if to placate those who are concerned by the directions which are still out for consultation. Is the reality not that Clause 25 gives the Secretary of State power to make directions with regard to any of these matters and then to follow that up by a mandatory order? If that mandatory order is breached there are serious punitive consequences, so is it not a trifle inadvertently misleading to refer again and again to this merely having “due regard to”?

[Lord Bates]

My noble friend has great legal expertise in the terms being used here. We are saying that, clearly, if you put anything on a statutory footing—even to “have due regard to” the guidance—then there must be a consequence should you fail to have due regard or are found not to have due regard; and that that must be specified in the legislation. That is all we are doing here. I am sure we are all of the view that such a measure would be used only in extreme circumstances. We fully expect that all universities will do what the best universities are doing already, which is to have their systems and procedures in place for this. As I have said, I am very conscious that we will be returning to this in further groups; but in the mean time I would be grateful if my noble friend might consider withdrawing the amendment.

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[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.

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[Lord Bates]

I accept the point that my noble friend makes about charities. That is the reason why the Charity Commission has taken robust action against some charities that are not fulfilling that public duty. We will certainly look at that further.

I am conscious that this has been a long debate and I have given a commitment to reflect on it. Specific questions were raised. If they are not addressed in discussion on subsequent groups of amendments, I give an assurance to write to your Lordships ahead of Report. Given that important commitment which I wanted to get on the record—namely, that in relation to some of the amendments, particularly Amendments 105, 112A, 112B and 112D, I would very much like to reflect on the debate that we have had—I hope that the noble Baroness and other noble Lords will feel able not to press their amendments at this stage.

[Lord Phillips of Sudbury]

My Lords, the Minister made a remark earlier that went to the highly contentious issue which at least half a dozen noble Lords have raised relating to paragraph 66 of the guidance. It says—I quote from the letter that the Minister wrote yesterday—that,

“we note the difficulties of requiring all visiting speakers to submit their presentations in advance, and … we will be making changes to that text in the … guidance”.

There is no equivocation there. The Minister says that that will be changed. Earlier in his speech, he said that he would look at this and consider the response to the consultation. There is a big difference there and it is very important to a lot of people here to know what the position is.

[Lord Bates]

Normally I go beyond what I am instructed to say by my patient Bill team who work behind me, but on this occasion, I think that I am probably behind them in that the letter says in terms that we have heard enough already to reach a judgment on the practicalities of the provision in paragraph 66 and that we will rework that, notwithstanding the answer which I accept that I gave to the noble Lord, Lord Hannay, earlier, that we would reflect on the issue and did not want to prejudge the consultation. I suppose that we have prejudged the consultation in that particular regard because we do not want what we consider is the important issue of keeping the universities within the broader statutory provision to be, as it were, misunderstood or challenged on relatively small procedural matters which could cause alarm and are many miles away from where the principal focus of our efforts should be.

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Moved by

[Lord Phillips of Sudbury]

115A: After Clause 26, insert the following new Clause—
“Impact Report
(1) Before the provisions of this Chapter may come into force in respect of the specified authorities set out in Schedule 3 under the heading Education, child care etc., the Secretary of State must prepare a Report on the potential direct and indirect impact howsoever of this Part on the specified authorities affected, on those attending the same in whatever capacity, and on society generally.
(2) In particular the Report shall assess the impact referred to in subsection (1) in relation to the cultural and financial consequences.
(3) The Report shall also specify comparable legislative arrangements in other Member States of the European Union, the United States of America and the countries of the Commonwealth.”

[Lord Phillips of Sudbury]

My Lords, Amendments 115A, 118A and 123 stand in the names of the noble Viscount, Lord Hanworth, who is a professor at the University of Leicester, the noble Lord, Lord Hannay of Chiswick, who is pro-chancellor of Birmingham University, the noble Lord, Lord Norton of Louth, who is a professor at the University of Hull, and has had to go back at this hour in order to meet his students in the morning, and myself—and I was for 11 years chancellor of the University of Essex. It is no surprise, therefore, that this group of amendments addresses what we take to be the severe inadequacies of Part 5 of the Bill in so far as it relates to schools and universities. We have no view to express on, for example, the issue of prisons in relation to Part 5. Part 5 is made up of a strange bag of entities, and we believe that universities and schools deserve particular and different treatment.

We well understand that the issues the Government are grappling with in the Bill are of extraordinary difficulty—they are damned if they do and damned if they don’t. The only thing one can say, in the light of the debate today, is that as far as I can recollect not one single person has spoken in favour of Part 5, and nearly everybody has addressed their remarks to its treatment of universities and schools—much more of universities than schools, it has to be said.

I pay tribute to some of those who have tried to assist us in our work—Universities UK, the National Union of Students and the Association of School and College Leaders. A number of us also had a useful communication from the Muslim Council of Britain, which is particularly concerned about the unintended effects on Muslim communities.

One thing that has been universally remarked on, although in different language—it is manifestly true of the impact of Part 5 on universities—is the extraordinary complexity, bureaucracy and cost that it will impose on educational establishments. I shall come to those in a little more detail when I go through the amendments.

The other thing that has come through again and again is the absence of adequate preparation for the Bill, and for this part in particular—an absence of remotely sufficient fact or evidence to justify the huge change in regime that will afflict universities if the Bill goes through unamended. It is also striking that the consultation, too, seems to have been highly inadequate. I think that the Minister referred to 160 responses. I do not know how many universities there are, but there are a lot more than that, let alone higher education authorities and thousands of schools. Indeed, I hope that the whole population is interested in the fate of our universities consequent upon the well intentioned but, we believe, severely misguided measures in this part of the Bill.

If it were not for the factor of realpolitiks, I and, I think, other supporters of these three amendments would wish to see universities taken right out of Part 5. However, we are not arguing for that because, as I say, we are trying to be as pragmatic and concessionary—if I can use that word—to the Government as possible, understanding that they would have to bear the brunt of public unrest if, in a week’s time, some terrorist event were to take place in our blessed islands.

Amendment 115A is headed, “Impact Report”, and would require the Secretary of State to,

“prepare a Report on the potential direct and indirect impact … of this Part”,

of the Bill on universities and schools, and the impact,

“on those attending the same in whatever capacity, and on society generally”.

The amendment follows that up by saying that the report must assess the impact in relation particularly to the “cultural and financial consequences”. I stress that the cultural consequences are even more important than the financial ones. I noted that in the course of this very revealing debate a great number of noble Lords focused particularly on culture, including the noble Lords, Lord Judd and Lord Hennessy, and the noble Baronesses, Lady Kennedy of The Shaws and Lady O’Neill of Bengarve.

The third aspect of the impact report that we want to see the Government prepare before universities and schools can be brought under this part of the Bill is a comparable study of legislative arrangements in other member states of the European Union, the United States of America and countries of the Commonwealth. My noble friend Lady Hamwee referred to the regimes in Germany and Denmark, which deal with the issues we are confronting. I think she said that, as far as she was aware, neither of the sets of requirements was statutorily compulsory.

Amendment 118A deals with Chapter 2 of Part 5 and Amendment 115A deals with Chapter 1. Chapter 2 of Part 5 concerns the local authority panels and the whole edifice of district council and county council panels, with their police reports and panoply of partners, and a whole range of stuff about that. I totted it up and I think that Part 5 covers 12 pages of the Bill and a further 39 pages in the draft guidance, so we are dealing with a huge corpus of new statute law because the guidance will be statutory.

Amendment 118A states that,

“the Secretary of State must prepare a Review of the workings of the existing voluntary ‘Prevent’ strategy”.

Again, it is striking that there are no adequate facts or evidence on which to base any reliable new regime. I call in aid a Written Answer to my noble friend Lord Scriven in which the good noble Lord, Lord Bates, said, inter alia:

“The Government does not hold information about the Prevent policies and processes of all the authorities on which the duty would fall”.

That is not a basis on which to bring forward legislative impositions—for that is what they are. It would be folly for us to go ahead without requiring the Secretary of State to produce a sufficient review so that Parliament, when it comes to consider Chapter 2, will have at its back enough information, fact and evidence to enable it to reach the right decision. Amendment 118A also talks about the review dealing with the effectiveness and shortcomings of the present Prevent strategy.

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[Lord Bates]

Obviously I am sorry if the noble Lord feels that the response was not adequate. The amendment was trying to say that there should be some regular means of assessing the effectiveness of the measure and its impact on higher education institutions. I was trying to set out several existing mechanisms by which that reporting and accountability to Parliament could take place. In relation to the other point, I said earlier that in a sense, as a first stage, my letter of yesterday was a step down the path towards what I hoped he would find was a fuller response regarding how this might work. I shall look to take further steps as we move into Report and Third Reading in this House.

[Lord Phillips of Sudbury]

My Lords, I thank my noble friend the Minister, but I am afraid that I shall be even less complimentary than my co-signatory to the amendment, the noble Lord, Lord Hannay. I believe that my noble friend gave us no new facts at all. We have had extraordinarily little by way of evidence or factual backing for this. For example, his letter, which he put in the Library yesterday, refers to two students—one, I seem to remember, a Swedish student and the other an American student—who had been influenced at their universities. There was nothing about English students. We have had nothing about the cost to universities, direct and indirect. He has not attempted to deny, because it is undeniable, that it will be a heavy bureaucratic burden, as my noble friend Lord Hanworth said. If we are acting responsibly, we really need to know these things before we plunge in. It is no good saying that there will be a report next year. It will then be too late to reverse the compulsory legislative nature of this measure, destroying the hugely valuable voluntary basis upon which the Prevent strategy currently takes place.

[Lord Bates]

All the way through, we have tried to say that we envisage a light-touch duty to have regard to systems which will already be in place. I do not imagine that there is an academic institution in the land or in the world that does not have policies for the welfare of its students, for risk assessments, for online safety and for the conduct of meetings. Therefore, I expect that we are talking here about, if necessary, a small addition to what is already happening in existing institutions.

[Lord Phillips of Sudbury]

I thank my noble friend for that but I have to disagree with him. He talks about a small addition to the present state of affairs. The universities are telling us loud and clear that it is not a small addition; it is a massive new addition. Before we make this decision, some attempt has to be made to find out the cost to government. I think that even the present voluntary panels in the counties cost £26 million a year. That will be but chicken feed if the universities are subject to this new regime with this vast statutory guidance.

I will leave it at that for tonight, but I hope that my noble friend will endeavour to come back at Report, as the noble Lord, Lord Hannay, suggested, with something a great deal more satisfactory by way of background to the need for this than we currently have. Perhaps we can have a conversation before then, but the time is terribly short. I beg leave to withdraw the amendment.

Amendment 115A withdrawn.