Immigration Bill
Baroness Kennedy of Shaws Excerpts(8 years, 3 months ago)
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Lord Kennedy of Southwark (Lab)
My Lords, the amendments in this group concern Clause 38 and Schedule 9. I declare an interest as an elected councillor in the London Borough of Lewisham.
As we have heard, many noble Lords have concerns about this part of the Bill, particularly the effect it may have on children who do not understand their immigration status and who, on reaching the age of 18, can find themselves in considerable difficulties. As we have heard, Schedule 9 aims to remove most local authority obligations under the Children Act to care leavers with unresolved immigration status.
We have to be clear that in these circumstances we are dealing with very young people—young adults but also very vulnerable people—and before approving these provisions we need to be satisfied that proper arrangements are in place to look out for these young people, who, as the noble Lord, Lord Alton, and other noble Lords have said, are at risk of serious abuse and other terrible things. They will lose their entitlement to support from the local authority where they have lived for many years and will not be allowed to remain with their foster parents. This is a particularly tough decision, along with the young adult not being able to benefit, on leaving care, from the services of a personal adviser to provide advice and support in place of a parent.
The Bill is flawed because it assumes that everything is okay, everything has been done properly and there is nothing to worry about—“Just use those criteria to assess them”. But it must be understood that these people will have come here as young children, they can be traumatised and have no understanding of why they are here and why they are on their own. They may have witnessed terrible things that no person, let alone a child, should witness. Is it really correct that we just assume that everything has been done properly when the reality may be very different? The best the young person could hope for would be being placed in Home Office accommodation, potentially far away from their foster family and the area they have grown up in and have come to understand. It can be far away from their existing support networks and their legal representatives. They will have to establish that they are destitute and have been refused asylum and that there is a “genuine obstacle” to leaving the UK.
Amendment 230D, moved by the noble Lord, Lord Alton of Liverpool, seeks to deal with the problem where the young person, on reaching 18, has not had the correct advice and could have been entitled to register as a British citizen or otherwise, and it makes provision for the schedule to have no effect in these cases. It is an excellent amendment, which I hope the Minister will accept or at least reflect on before we come back to this issue on Report. It will be important for the Minister to set out carefully what safeguards are in place to ensure that injustices are prevented from happening and are not built into the provisions in Schedule 9. I endorse all the questions asked of the Minister by noble Lords in the debate.
Amendments 235 and 236, in my name and that of my noble friend Lord Rosser, seek to maximise parliamentary scrutiny and ensure that Parliament has the opportunity to debate and approve by resolution the regulations before they come into force. These regulations have such far-reaching consequences that it is right that this level of scrutiny takes place, and I think there are some government amendments on the Marshalled List which have a similar effect.
Other probing amendments in this group, in the names of the noble Earl, Lord Listowel, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Norwich and other noble Lords, seek to improve the provisions and increase the protections available to care leavers. They all have the support of these Benches and it will be interesting to hear the Minister’s response to the issues they raise. There are a number of government amendments, which I am sure the Minister will explain in detail shortly. I may have some further questions after hearing his explanation.
Baroness Kennedy of The Shaws (Lab)
My Lords, my Amendment 239B relates to asylum seekers who came to this country as children, who then progress into higher education. They are currently subject to the rules that provide for higher fees in education because they have come from abroad, so they face the charges that are faced by those who apply to come to this country, as though they were people living elsewhere.
I am seeking an amendment to the Bill to allow for those young people not to be subject to the charges faced by foreign students and, since they have come as asylum seekers and are living now in this country, being provided the protection and safe haven of this country, we might therefore provide for tuition fees to be charged at the lower rate that is charged to people in this country. I should have risen before my noble friend on the Front Bench, but I had not realised that my amendment was in this group. That is the basic argument being made for Amendment 239B.
I have direct experience of this because, as I think I have mentioned in the House before, there is a small foundation which gives bursaries to people who are particularly disadvantaged. A category of them are asylum seekers, so we are very conscious of the problems that young people have when they come to this country and are given a safe haven. They are then often the most diligent at sixth-form colleges and in further education, and go on to higher education, but they face this incredibly high bill, although they have very little resource at all. We can help them in the tiniest ways, but they are facing the increased fee as if they were a well-to-do person applying to come to study in this country from abroad. So we think that the Government might want to look at this matter.
Lord Bates
My Lords, I am conscious of the time and that there has been some shuffling around and stern looks from the usual channels, who are looking to make progress. I hope your Lordships will bear with me when I say that it just happens that the way in which the scheduling has gone, we arrived at what is probably the most important group of amendments just before 7 pm. There are a huge number of people outside as well as inside this Chamber who need to understand what the 26 amendments that the Government have in this group, and of course the other amendments in it, would do. I need to put that on the record—that is a kind of clue to those people who are hovering that it may well be 15 minutes before I have done that. I hope that the House will bear with me and understand that we are talking about a very important group. I want to get those comments and explanations on the record so that they can be examined ahead of Report and our meeting.
To shorten somewhat what I will go through, I again refer noble Lords to my letter of 21 January and to the response explaining Schedules 8 and 9. I particularly draw the Committee’s attention to paragraphs 64 through to 76, and to appendix B. I have struck out some remarks of explanation in the areas covered in that document, which has been circulated and is in the public domain. I have also given an undertaking to the noble Earl, Lord Listowel, and the noble Baroness, Lady Lister, that we will have a meeting on this—an opportunity to exchange views and take a little more time to look at the evidence in the period between Committee and Report.
Clause 38 and Schedule 9 make changes to local authority support in England for migrants without immigration status, under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, while they establish a lawful basis to remain here or prior to their departure from the UK. Our public consultation on asylum support highlighted concerns that the framework provided by Schedule 3 and associated case law was complex and burdensome for local authorities to administer, and involved complicated assessments and continued litigation to establish what support should be provided and in what circumstances. The Public Bill Committee of the Commons heard similar concerns from local authority colleagues.
We are clear that we want to encourage and enable more migrants without any lawful basis to remain here to leave the UK in circumstances where they can do so, while retaining appropriate safeguards. We have also listened carefully to what local authorities have told us about the scope for simplifying and strengthening the current framework. In that context, we have also had engagement with the Office of the Children’s Commissioner and I will ensure that we get a readout from those discussions for our meeting.
Schedule 9 therefore makes two key changes to Schedule 3 to the 2002 Act. First, it simplifies the way in which local authorities assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide, under Section 17 of the Children Act 1989, for any other needs of a child or their family in order to safeguard and promote the child’s welfare. Secondly, it prevents adult care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK. It ensures that local authorities can still provide these care leavers with any social care support which they consider that the young adult needs during this period.
The Earl of Listowel
I thank the Minister for the care with which he has responded and his full recognition of the vulnerability of these young people. I am grateful to him.
Baroness Kennedy of The Shaws
I, too, thank the Minister for giving consideration to the position of people who are facing this fee problem. I am grateful he has given some thought to that.
Immigration Bill
Baroness Kennedy of Shaws Excerpts(8 years, 3 months ago)
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Baroness Kennedy of The Shaws (Lab)
I support the noble Lord, Lord Hylton, in this amendment. I reiterate what he said: that this is a narrowly drawn amendment. It was drafted by the British Red Cross but is supported by a number of NGOs, including the Immigration Law Practitioners’ Association. It is closely defined in that it expands the categories of family members eligible for family reunion. It can only be, as the noble Lord has said, those who are coming here to seek respite from war, genocide or ethnic cleansing. They would have to be joining a family member who is already here, having been given refugee or humanitarian protection status. The two caveats are, first, that they would not be able to have recourse to public funds—they would be sponsored—and, secondly, that they would be registered with the Office of the United Nations High Commissioner for Refugees or a similarly recognised authority.
We make this argument to the Committee, and to the Government, on the basis that the people involved have close connection already with a family member in Britain. They are at the most extreme end of those who seek support and assistance—who seek a haven from persecution. This draws on the great tradition that we have in this country of offering asylum—genuine asylum—to those in desperate need.
I remind the Committee of what happened in the late 1930s. Although I am a Scot of Catholic background, I am married to a man who, on the one hand, is the son of a Presbyterian Scot but whose mother was a refugee from Austria. She came to this country in 1939, as a doctor from Vienna, and she and her sister managed to get out. Because of Quakers in this country, they were looked after or sponsored on their arrival into this country. They were able to bring their mother from Austria by sponsoring her. We still have among family papers her passport, which bears the stamp “J” for Jew. She came to this country precisely in the way that we are advocating that people should be able to come now—people who are fleeing persecution and are able to say, “Let us have a close family member come and join us”. I know that other Members of the Committee will join me in urging the Government to keep that great tradition alive by allowing for this amendment. It is precisely of the same order.
I add a coda. The two daughters went on to become practitioners—doctors—who brought great credit to the way in which they were able to join this community. They always felt an enormous indebtedness to the generosity of the people of this country. I urge the Committee, and the Government, to accept the amendment.
The Lord Bishop of Norwich
My Lords, the right reverend Prelate the Bishop of Southwark, who has added his name to Amendment 234, cannot be in his place, but I am glad to speak on my own behalf and, I hope, for him, too, since we are of one mind on this matter.
One of the great privileges of being a bishop in the Church of England is found in the many connections we have with Anglican dioceses overseas. The diocese of Southwark has very long-standing links with Zimbabwe, while my own has an association with Papua New Guinea that has gone on for 60 years. I was last there in August and September, visiting the remoter parts of the western highlands, which was a challenge. The welcome is amazing and humbling, but what one learns is about the huge significance of family and kinship roots in such societies. They make all the difference for individuals between flourishing and destitution. They provide the practical and emotional bonds through which people make sense of life. They are the source of social and financial security, elder care, childcare and so on.
I reflected while I was there on the atomistic character of many British social and family relationships, which seem very limited and limiting by contrast, and certainly unthinkable to them. Consequently, when states fail and insecurity becomes unbearable, as we have already heard, families do shift, but they do not fracture even if the world around them does; mutual obligations hold. When one flees terror and ruin, there can be no better way to do it than with those with whom there exist bonds of affection and mutual obligation. It may seem to us to be an organisational and financial necessity to break up family units or kinship groups, but to those within them in such situations, it seems like madness.
I appreciate that rules already exist to provide for a degree of family reunion, but the sentiment behind the amendment is that they are too restrictive. What sort of family life do we believe in if a minor is admitted to the UK and granted asylum status but there is no basis in the Immigration Rules for parents or siblings to join him or her—or, in reverse, if a Syrian father is granted asylum but not his 19 year-old daughter left in a refugee camp? I realise that the Minister may argue that such cases can be considered outwith the Immigration Rules, but the number of these visas is dropping rapidly, down to just 11 in 2014, which suggests that this is a route that is now very little trodden indeed. I would be grateful for the Minister’s reflection on that tiny number in this context.
The problems and issues underlying our net migration figures do not subsist in family reunion, nor are they caused by them, and hence I hope that the Minister will respond favourably to Amendment 234.
Immigration Bill
Baroness Kennedy of Shaws Excerpts(8 years, 4 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I declare immediately that I am involved with a number of charities dealing with refugee matters: the Cardinal Hume Centre already referred to by the noble Lord, Lord Alton, and Women for Refugee Women—I am a patron of both. However, today I will mainly draw on my role as chair of Justice, which is an independent all-party law reform and human rights organisation that works on strengthening the justice system here in the United Kingdom. It is also the UK section of the International Commission of Jurists.
Luckily, we have a whole set of wonderful researchers and young lawyers who work for us, who have been looking avidly at the Bill because of concern expressed to Justice by practitioners and others—lawyers who are members of Justice who are concerned about the Bill’s implications for our society.
I say immediately in tribute to the noble Lord, Lord Alton, who is one of the great moral voices in this House, that his is the speech I would have liked to have made in this debate, because he speaks about the actual experience of people, the need for us never to lose our compassion when dealing with the issue of immigration and how we must remember the stories. People say to me, “How come you are a human rights lawyer? What made you a human rights lawyer?”. I always say, “It is the stories of my clients”. My clients were my way into human rights law, because you only have to hear the stories of persecution, suffering and abuse—whether domestic violence or abuse in countries beyond these shores—to know why we need law that is strong but tempered by protection of human rights.
I want to refer to the concerns that we at Justice have about the Bill. We are very concerned about a number of the provisions, and recommend that the offence of illegal working be removed from the Bill altogether. I say that because we already have power to deal with people who are here illegally. It is a criminal offence to overstay or to find a way in to this country that is not licit, and we can prosecute. We are in fact burdening the legal system with yet more criminal processes when they are unnecessary. It will also, as the noble Lord, Lord Alton, said, undo so much good work by the Minister himself and others around the House and the whole of this Parliament on the Modern Slavery Act. That will be undermined by making people fear that they are going to be prosecuted for the meagre money they earn if they find some sort of work to help support themselves. We are talking about taking those earnings from people, which will all go into the coffers of the United Kingdom. I suspect that it will cost us more to do that. To confiscate what are usually miserable, meagre, lowly earnings from those people seems to me a terrible statement of where we have got to with immigration issues.
Justice also recommends that the offence of leasing premises to those disqualified from renting be removed from the Bill, pending a comprehensive evaluation of the law that we introduced only a year ago and which, as others have mentioned, has introduced a whole civil process for people who are leasing premises to those who should not be in the country. An assessment of that is important to see whether it is undermining good race relations in this country. As others have mentioned, there is serious concern about discrimination. People with a foreign name who apply for housing and approach letting agencies already face problems even getting on to lists and seeing premises. We should be most anxious about the ways in which this undoes the mortar of a civilised society.
Justice also recommends that we look again at the provision in the Bill that would enable the Secretary of State to challenge the decisions of the courts, of the First-tier Tribunal, in respect of bail. Just because a Secretary of State might not like a court’s decision should not mean that a power be vested in him or her to intervene, save in the most exceptional circumstances. Mention was made in the House of Commons of a circumstance where a flight to remove someone from the country is changed, and it was said that bail should therefore be removed to enable that. We could put such an amendment into the Bill, but we should be most concerned about the idea that there should be a readily available right for the Secretary of State to overcome a court’s decision, given what that means for the rule of law.
Justice also recommends that the proposal to extend the “deport first, appeal later” powers to all human rights-based immigration appeals should be a source of alarm to anyone who cares about the law and the rule of law. How can people outside the country assert their rights and appeal in the way that we think is appropriate under the rule of law? It is unimaginable. We can already see that the huge drop in numbers is not just because some applications or appeals would have been unjustified but because many people do not understand the process and therefore cannot complete and submit the relevant forms, do not have legal representation, or have difficulty arranging and paying for representation and liaising with any legal representative thereafter. They have difficulty obtaining, translating and submitting evidence to the tribunal. Just think through the practicalities of doing that, as someone who is here and for whom a decision has been made, which can often be wrong. The practicalities tell you just how ludicrous it is to extend that provision to all human rights bases for appeal. To insist that it be done from somewhere else is to operate serious injustice in ways that should be a source of shame to us.
The noble Lord, Lord Alton, and others have mentioned the business of turning people into destitute persons living on our streets and in our doorways. The idea that we are going to make it so hard for people to access some sort of minimal support is something we should be ashamed to be even considering. The support is already minimal, but making the situation even harder is never a good way of dealing with false claims to the right to stay. Destitution should not exist in Britain in these times.
I want to mention Yarl’s Wood because I am a patron of Women for Refugee Women. You just have to see the conditions these women have experienced in their own countries and hear of the horrors they describe—we cannot allow that to continue. Unlimited detention has a terrible psychological consequence, and we should really put a time limit on it: of 28 days, I hope.
This is a shocking Bill. It is morally disgraceful, mean-spirited, near-sighted and speaks to our lesser angels. Of course we have to have proper immigration procedures and systems, and they should be clear and just; but they have to be imbued with humanity and decency. We are better than this.
Yarl’s Wood
Baroness Kennedy of Shaws Excerpts(9 years, 2 months ago)
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Lord Bates
At Yarl’s Wood, in the past two years, the answer is, fortunately, none. These are very vulnerable people; we accept that totally. The noble Lord asked about pregnant women in particular. There is a limit which says that no women past the 24th week of pregnancy can be held or put into the detention fast track. The point is that they should be in Yarl’s Wood only for a very short time. They are people who are identified for quick return and their stays should be no more than a few weeks.
Baroness Kennedy of The Shaws (Lab)
My Lords, I welcome the Secretary of State’s review of the welfare of detainees, but I am anxious to know whether it will include a review of whether the decision-making is to the appropriate standards. The evidence shows that victims of abuse in these centres feel greatly traumatised by the very fact of detention. Surely the reviewer should be encouraged to meet ex-detainees as present detainees might be reluctant to speak of some of the things that have happened to them. Would it not also be good if he met members of organisations that work closely with traumatised victims who have been detained—organisations such as the Helen Bamber Foundation, which deals with victims of torture; Freedom from Torture, and Women for Refugee Women? Will the reviewer meet those people, and will he review the very decision-making as to whether people should be detained at all?
Lord Bates
It is, obviously, set up as an independent review, so it will be for Stephen Shaw to do that. However, as he is a former Prisons and Probation Ombudsman I would expect that his attention will be drawn not only to the current detainees but to former detainees and also to those excellent charitable organisations. To the list of excellent charitable organisations that the noble Baroness mentioned I would add Hibiscus, particularly at Yarl’s Wood. It does an outstanding job of providing humane care, advice and friendship to people in that situation.
Modern Slavery Bill
Baroness Kennedy of Shaws Excerpts(9 years, 2 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, these amendments reflect my concern and that of the Immigration Law Practitioners’ Association that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, individuals will continue to fall through the cracks. Amendment 50 would ensure that legal aid could be provided to a person before an application has been made to the competent authority or before the competent authority has reached its decision that there are reasonable grounds to believe that a person is a victim of slavery, servitude or forced labour. The amendment’s proposal is that legal aid would be provided if the legal representative reasonably believed that the standardised indicators of slavery, servitude or forced labour, as set out in the national referral mechanism form, were met in the particular case. The next amendment, Amendment 51, would create a new clause, which would follow Clause 47, which would have exactly the identical effect for trafficked persons.
I know that the Government have made a special effort in this regard, but legal aid is made available now too late for a number of these cases. It is not available for those who are trying to pluck up the courage to approach the authorities. We have heard time and again in this House of the circumstances in which people are so fearful that taking that step feels enormous to them. Legal aid is also not available to those who have been referred to the national mechanism but are trying to pluck up the courage to describe what has happened to them, finding it difficult to give voice to some of the horrors that they have been through. They are also fearful of providing supporting evidence from other people; they worry about naming others in case there are consequences for them and because they are afraid of those who have trafficked them. The concern is that those people have had experiences that make them fearful of authority—and, believe it or not, they are sometimes more prepared to tell a lawyer about their experiences than they would be to tell people whom they see as being part of the authority system.
Many in the House have spoken about the charity Kalayaan, which deals with domestic workers. A number of cases have been brought to our attention, which have come regularly before the courts. They are of people who have been assessed as trafficked by Kalayaan. However, their stories show the failure of the system, as they are afraid to approach the authorities and afraid of being referred to the national referral mechanism because they do not know what the outcome might be. They do not know whether they will be returned immediately or whether there will be reprisals from their employers or those who have trafficked them. They relate stories of people who have been subjected to terrible labour exploitation, and treated appallingly with many being beaten and bearing the scars of that. Some have tried to commit suicide. They say that often they are the sole providers for families back home in places such as India and they are worried about the consequences of putting themselves in the hands of the authorities. They need advice on whether they qualify for a residence permit, for example, such as they would receive if they were deemed victims of trafficking. These people are fearful about their situation and want to know what their options are, whether they will be able to stay, whether they will be safe or whether they will simply be returned to the countries from where they came. Sometimes, they prefer to stay with the devil they know and continue to be beaten and abused because they do not know what their rights are.
Lord Bates
I am grateful to the noble Baroness, Lady Kennedy, for returning to move her amendment and giving us an opportunity to again look at this important area.
The Government are keen to ensure that we get right the legal support available to victims through the Bill. That is why we amended the Bill in Committee in this House to extend the existing legal aid provision for victims of trafficking to those who have experienced slavery, servitude or forced labour. This support will be provided once an individual has received a positive “reasonable grounds” decision in the NRM, which is generally made within five working days of an individual being referred to the NRM. I accept totally the point made by the noble Baroness about it being essential that good decisions are made early, and that might be done within that definition. I do not consider that this short period of time without legal aid should have a significant adverse impact on individuals. We want as many victims as possible to gain access to the safety and support provided by the national referral mechanism. Once referred to the NRM, individuals will have 45 days’ reflection and recovery in which to make informed decisions about their immigration choices in a safe environment and with access to legal aid.
I am concerned that providing access to legal aid without any link to the NRM may encourage some victims to not opt for the support available to them. Opening up legal aid to those not in the process would not only risk incorrect use of the system but would mean that individuals could bypass the safeguarding system in place for them, and risks individuals remaining in situations of exploitation. For this reason, I think it is right that legal aid is available only once individuals have entered the national referral mechanism.
However, we are open to changes from the existing system. We have committed to piloting a range of changes to the NRM in light of recommendations made by the recent review, which will include incorporating the “reasonable grounds” decision into the initial referral. In practice, this would have the effect of providing earlier access to legal aid because “reasonable grounds” is the trigger by which that would happen. Any changes to the NRM would be reflected in the provision of legal aid and could be made through secondary legislation.
I hope that the House will be reassured that, through the NRM pilots, we will be testing moving access to legal aid for victims of modern slavery to the point of referral, as was being suggested. Given the concern that this amendment could inadvertently discourage victims from leaving a situation of slavery, I hope that the noble Baroness will consider withdrawing or not moving her amendments.
I should just answer a couple of points raised by my noble friend Lady Hamwee and by the noble Baroness. I was asked about the NRM pilots. Those pilots will test the provision of legal aid at the point that a case enters the NRM. The NRM review did not recommend access to legal aid prior to this point. We do not currently intend to test this proposal.
A point was made about the comparable system for asylum seekers. Advice is available for potential asylum seekers to understand their rights under the refugee convention. There are limited funds available for more general immigration advice that a victim of modern slavery would seek. We need to ensure that advice is therefore appropriately targeted and best assists the victims. Asylum seekers come to the UK as a place of safety and may then seek advice on their next steps. This is not the same as a victim of modern slavery, who may still be in a situation of exploitation. We think that linking legal aid to the NRM process is the best way to ensure that such advice is received by the right people and that victims are encouraged to gain access to the protection and support available in the NRM mechanism.
For those reasons, I ask the noble Baroness to reflect on her amendment.
Baroness Kennedy of The Shaws
I am grateful to the Minister for explaining how the pilot scheme will operate and that the whole intention is to direct people towards the national referral mechanism. The hope is that that mechanism will work much more effectively than it has been doing and that it will provide the kind of support that is needed. However, the concern that providing legal aid earlier might in some way direct people away from the national referral mechanism in many ways highlights the very problem that worries me and others who are directly involved in immigration cases. In fact, there is evidence that lots of people—I say “lots of people”; I am not sure that we know what the numbers are—are not leaving abusive circumstances and circumstances of slavery because they do not know what their legal position is. They do not seek legal advice to take the steps that we are hearing about. The suggestion was made that we limit it to the circumstances in which a lawyer would bear the burden of making the assessment that somebody meets all the tests, as the noble Baroness, Lady Hamwee, said. An application would then be made for legal aid. That lawyer would then know that the usual legal aid assessment would be made and that they would carry the financial can if their assessment was not accepted as reasonable. That will gather up those people who are afraid of taking the big step of going to authorities when they do not know what the risk will be to them.
I know that the Government’s intention is that the authorities will act in a much more embracing and supportive way, but you cannot overcome people’s fear as easily as that. That is why having something available beforehand is being urged on the Government. I understand the automatic response that we have got to be very careful about not expanding the parameters of legal aid in this area because we are trying to cut it down but, by doing that, there will be a detriment to a category of people who are too afraid.
It is interesting that the noble Baroness, Lady Hamwee, raised the issue of numbers. It is not thought that the numbers here are considerable but they are often the most serious cases, where people are really suffering and afraid because they are in total ignorance of what their rights are. The point where they go to somewhere like Kalayaan and are referred to a lawyer is when they can be told what their rights are and understand that their case will fall into a category which will allow them the protections that they need through the processes of the national referral mechanism, which is being reformed in a way which will give people confidence.
I hear what the Minister is saying and I will withdraw my amendment at this stage. However, I ask the Government to consider piloting for this category of person, too, to see whether there is a way in which a kind of “green form” scheme can be created to provide that preliminary advice. Secondly, I ask the Minister to look at the numbers. I suspect, as the noble Baroness, Lady Hamwee, suggested, that the numbers are not very great. So we are not talking about a great cost but it will catch, perhaps, some of the most vulnerable. I beg leave to withdraw the amendment.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(9 years, 2 months ago)
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Lord Phillips of Sudbury (LD)
For the sake of absolute clarity— because there has been a great deal of confusion about these aspects of the Bill—can my noble friend say whether it is correct that his Amendments 4, 5 and 6 make no difference whatever to the purport of the Bill, are merely clarifying and have no substance?
Baroness Kennedy of The Shaws (Lab)
I join in thanking the Minister for what he has done in reaching the right conclusion, particularly with regard to academic freedom. Balancing security with liberty and freedom is a very difficult business, and he has brought to this issue sensitivity, intellectual rigour and great listening skills. He has performed his function as a Minister in the most exemplary way, and I hope that others will follow suit. I wanted to thank him formally.
Baroness Sharp of Guildford (LD)
My Lords, as another of those who argued in favour of the amendments on academic freedom that were put before the House, I thank the Minister very much for his co-operation. Like others, I am pleased with the overall result, even though some of us would have liked implementation of the Prevent duty to be postponed for some time for a review of it to take place. However, we are very grateful to him for what he has achieved.
One of the issues that I raised with the Minister was whether the duty under the 1986 and 1988 Acts, which extend to further education colleges, included sixth-form colleges. I have had confirmation from the Bill team that the provision indeed includes those colleges. That results in a slightly anomalous situation in which sixth-formers in schools are not included within the general duty to promote freedom of speech in the same way. It is possible that there will be some follow-through from the Association of School and College Leaders, for example, to obtain further clarification from him.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(9 years, 3 months ago)
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Lord Macdonald of River Glaven (LD)
In speaking to my Amendment 14A, I again declare an interest as warden of Wadham College, Oxford. Last week in Committee I put my name to the amendment tabled by the noble Lord, Lord Pannick, the purpose of which was to remove universities entirely from the ambit of the Bill. I did so because of what seemed to me to be the self-evidently paramount importance of free speech in universities, and because the obligations that the Bill placed on universities appeared to conflict with their statutory duties under the Education Act 1986 to secure freedom of speech, not only in their institutions but for visiting speakers.
It is fair to say that in debate in Committee there was overwhelming support for the proposal that universities should be removed from the ambit of the Bill. I remain firmly of the view that the definition of “non-violent extremism”, which the Minister has recently set out again, is absolutely hopeless in its application to universities. This is because one can with the greatest of ease imagine all sorts of discussions, lectures and seminars taking place on topics which would be caught by the Government’s definition, and people in those lectures and seminars expressing intellectual views which would also fall under the definition. As far as I am concerned, it is hopeless for the Government to seek to apply such a definition to universities, which are particular places of debate, discussion and intellectual inquiry.
There was overwhelming support in debates—virtually every Peer who spoke did so in favour of the removal of universities from the scope of the Bill—yet, when winding up, those on the Opposition Front Bench made clear that they would be unable to support such a proposition, so last week I tabled a further amendment. The purpose of this Amendment 14A was to secure some reassurance that any risk that the Bill would undermine academic freedom would be mitigated, by placing in the Bill an obligation on universities to approach their duties under it in the light of their pre-existing free speech obligations under the Education Act. Like the noble and learned Lord, Lord Hope, obviously I was pleased when on Monday the Government tabled their own amendment, which in effect secures the same thing.
Like the noble Baroness, Lady Lister, I should have liked much more on this, for all the reasons which she articulated so ably. I should be delighted if the Government were minded to accede to her amendment. Nevertheless, it seems to me to be important that we secure the Government’s acknowledgment—and an acknowledgment on the face of the Bill—that these provisions apply to universities only within the critical context of their statutory freedom of expression duties. This is so that in future it cannot be argued that those duties are displaced by the passage of the Bill: they are not. The Government’s amendment seems to me to make explicit that they are not. I am grateful to the Minister for securing the Government’s movement, such as it is, on this important and fundamental issue.
Baroness Kennedy of The Shaws (Lab)
Today I found a piece of satire that said:
“Top universities a ‘breeding ground’ for Tories, warn Islamic groups”.
Accompanying this, there was a photograph of the Bullingdon Club from a certain era.
In my experience—and I, too, declare an interest as being the principal of Mansfield College, Oxford—universities are more or less breeding grounds for people who want to get a job. In fact, in many universities, there is not enough debate and sharing of ideas, because the real drama is around acquiring the kind of qualifications that will do well in the job market. Universities, as has been said, should and must be places for the exchange of ideas. Yet already there are concerns that, even as it stands, there are real pressures on universities around the issue of inviting speakers. For example, there was a piece in the Guardian’s online comment pages by Dr Karma Nabulsi, an academic at Oxford who speaks regularly at other universities, saying that constraints are already felt by universities—that if, for example, someone seeks to invite in a speaker on Islam, for comparative religion, some universities become very sensitive and anxious. If there is an invitation to a speaker on Islamic studies or the history of religion, anxiety is expressed and often the support of the police is encouraged and advice is sought from external sources. So the chilling effect is very worrying for the academic world.
When I chaired the British Council in that period from 1998 to 2004, we did a lot of work in eastern Europe and the former Soviet Union. One of the great things about going to universities there, when we did various projects, was how academics talked about the iconic value of academic freedom, which they associated with Britain and of which they had been deprived for so long. That is something that we should feel proud of. In this Chamber, particularly, we often go back to this business of the pride that we take in British values and wax lyrical about the importance of freedom and liberty—yet, at the same time, here we are, when it comes to the bit, going into retreat.
I support the position taken by my noble friend Lady Lister. I feel that universities should not have been included in this legislation and that voluntarism is the way forward. We should not be creating a statutory duty because adult institutions of learning are different. They are where the great debates happen—the exchange of ideas—and they are the crucible in which people formulate ideas and in which ideas can be challenged. You could create a different set of arguments as to why you exclude universities. However, given that that is not going to be the direction of travel—and I greatly regret that my Front Bench is being required to retreat from taking that principled stand—I urge on this House to consider the amendments proposed by my noble friend Lady Lister. I welcome and pay tribute to the Minister for seeking to keep pushing this issue to a better place, and I thank the Home Office for doing that, and for the efforts of those involved. However, we are still not there. We are getting a parity as between the duties, when we should be saying that academic freedom has to be prioritised; it should be the duty which has primacy, because it is so important and something that we value so greatly when we talk about “British values”.
I know that we are getting towards the closing days of this Parliament and that there is anxiety about not spilling over in our time, but I urge the Minister to go back before Third Reading and see whether we cannot have a formulation that gives primacy to academic freedom. The complaints and anxieties of the many academics as well as others in the academic world who have expressed concern are not trivial; they are being expressed for a reason. That is one reason why our institutions of higher and further education are respected around the world. We have to be the protectors of this, and I hope that we can find a formulation that is better than the one that we currently have.
Lord Bates
My Lords, this has been an excellent debate. I often say that it has been a good debate when I stand up at the end of a group of amendments, but this has been a truly outstanding discussion. We have been talking in an academic context; I think this debate should almost be required reading in many institutions, although I would not wish to encroach on academic freedom by suggesting it so blatantly.
It has evoked such strong passions because there are so many Members of your Lordships’ House who have held and hold positions in our great British universities and who have benefited from the freedoms of speech and academic research which exist there. These are strengths and the envy of the world. We have all had the opportunity and privilege of benefitting from them. When I look at the warden of Wadham College I always have particular regard to what he has to say—whether it is telling me about legislation or taking the short cut across the quad. It evokes a deep passion in us all and we are right to feel very proud of our institutions and the freedom of speech which takes place within them.
I want to put how we arrived at this situation into some sort of context. The Prevent strategy was introduced in 2007. As the noble Baroness will recall, in 2005 we had the outrage of the terrorist attack on the London Underground; 54 people were killed and several hundred people were injured. There were two Terrorism Acts—one in 2000, when the noble Lord, Lord Wilson, was Cabinet Secretary, and a subsequent one in 2006. I want to echo the points made by my noble friend Lady Warsi. There was a view which said, “Listen, there is something more afoot here. We need not just to tighten the law, to tighten the surveillance and prosecution element of it. We need somehow to prevent and to get ahead of the poisonous ideology which is pervading these people’s minds to actually think that they would consider blowing themselves up on a crowded subway train. We need somehow to engage with that”. So the previous Government, to their credit, came up with the concept of Prevent. Right from the outset the Prevent programme went across all bodies and organisations. All public bodies were encouraged to think about how they could prevent people from being drawn into terrorist activities.
One of the dangers of listening to my noble friend Lord Deben is that I get so carried away by his arguments and powers of persuasion that sometimes I forget that I am not sitting on the Back Benches and I nod vigorously towards him. Then I remember that I have a responsibility on the Front Bench and am jolted to focus on Clause 25, which says that the general duty to which we ask people to have due regard is that:
“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism”.
That is what it says. We can get drawn into its implications, but that is the principle that is on the face on the Bill.
So we had the Prevent strategy, which applied across all organisations and which was reviewed and refreshed in 2011. After the horrific murder of Drummer Lee Rigby on the streets of Woolwich, there was an assessment of the Prevent strategy and the conclusion went something like this. “Listen, there are some wonderful things going on. We have regional co-ordinators. They are working very well with the universities in looking at who is on campus, making sure that they have preparations in place and that views which are potentially dangerous and leading people into extremism and terrorism are noted. However, it is very patchy. There are some universities that are extremely good and there are some which, to be honest, just do not want to play ball. Invariably, as is often the case, the ones that are very good are in the low-risk areas and the ones that are very poor are in the high-risk areas”. The extremism task force which was considering this came forward and said, “We need to put this on a statutory footing, so that we get some consistency of delivery across the piece—across all organisations—and we bring the ones which are not taking their responsibility seriously up to the standard of what the others are doing already”. So we arrived more or less at where we are.
Then, because the guidance to be put out was going to be specific—and noble Lords have had some great fun at its expense—this was something that we put out to consultation. The noble and learned Lord, Lord Hope, referred to differences with the Scottish consultation. I think I said in Committee that in relation to the particular, narrow elements, the requirements such as giving advance notice on speeches are very limited compared with the much more extensive Universities UK guidance for external speakers, which requests,
“a script or précis from the speaker outlining what they intend to say and requiring them to sign an undertaking acknowledging that their speech will be terminated if they deviate from it”.
This is from Universities UK’s current guidelines on having speakers on campus, which also talks about:
“Briefing the chair in advance of the event, making clear that they have a responsibility to ensure that no speaker or other person present at the event infringes the law; this briefing could highlight the circumstances under which they must stop the event, issue warnings to participants on their conduct or request the withdrawal or removal by stewards (or the police if necessary) of the person(s) concerned”.
I do not recall a hue and cry from the collective colleges of our great universities to say that this was outrageous and should not be happening; people just kind of said, “Listen”—
Baroness Kennedy of The Shaws
The reason why there was no hue and cry from the colleges and universities is that they just ignore it. It is a shame on Universities UK that it produced guidelines that are so ridiculous that people cast them to one side. I am afraid that this has led to a diminution of respect for the organisation, and that has been a problem across the board.
Baroness Brinton
Does my noble friend not agree that the difference between the UUK guidance and the Bill is that the Bill gives the Secretary of State powers to act against the university whereas at the moment the UUK guidance merely advises universities to think about something? I hope that the Minister will recognise that.
Independent Panel Inquiry into Child Sexual Abuse
Baroness Kennedy of Shaws Excerpts(9 years, 3 months ago)
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Lord Bates
My noble friend is absolutely right that we do need to get it right and the terms of reference are key. When we set up the initial independent panel, she will recall that we planned to have six-monthly statements. I thought that was a good arrangement, but one of the whole points of setting it up under the independent Inquiries Act is that the terms of reference have to be agreed with the new chairman. That will be very important, but the fact that we have a former High Court judge—a member of the judiciary with great experience of getting through complex and difficult situations and getting to the heart of the truth—should help us in that task.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, join others in congratulating the Home Secretary on this appointment. Justice Lowell Goddard is someone known to a number of us in the legal profession, and I am sure our judges know her well. She is highly respected and has a great deal of experience. New Zealand has particular experience in dealing with these very problems—indeed, another judge, Carolyn Henwood, led an inquiry into child abuse in children’s homes—so there is a wealth of experience there.
I want to ask this question, because I heard mention of whether the appointment of Ben Emmerson was something that would be agreed to. Ben Emmerson QC is a fearless counsel. Surely the Minister would agree in appointing him that there is a very important role for there to be someone who understands the British system—the British class system, the nature of the British establishment and matters which might not be as quickly understood by someone from a different jurisdiction.
My second question is about the Official Secrets Act. As I understood it, the Minister said that no one would be able to hide behind the Official Secrets Act so as not to answer questions in relation to the inquiry. I should like reassurance about that, because a number of the victims say that, in having their desire to pursue complaints dismissed, they were at times told that matters of national security or public interest meant that inquiries should not proceed. That would be a detriment to the kind of inquiry which is sought by survivors and all of us to clear these matters up.
Lord Bates
I welcome the noble Baroness’s support for Justice Goddard from her personal experience of her, and for Ben Emmerson QC. We have been very clear that the Official Secrets Act should be no bar to anyone coming forward with evidence. There are means under the Inquiries Act whereby, if need be, certain evidence can be supplied to the inquiry with restrictions around it, but the Official Secrets Act cannot be used as a screen to hide behind.
Counter-Terrorism and Security Bill
Baroness Kennedy of Shaws Excerpts(9 years, 3 months ago)
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Baroness Kennedy of The Shaws (Lab)
My Lords, I return in this set of amendments to matters that I raised in Committee. I do so as a member of the Joint Committee on Human Rights, which is concerned about the inadequacy of providing for the right to a fair hearing on these matters under Article 6 of the European Convention on Human Rights. I say immediately that we recognise the availability of judicial review but the availability of JR alone is not sufficient to satisfy the requirement of the right to a fair hearing under Article 6.
I remind the House that this Bill gives a significant power to the authorities to remove a passport and prevent someone travelling. It provides for a judicial consideration only after 14 days, so you do not go immediately to a court unless you seek judicial review. However, after 14 days the judge is under a duty to extend the period of retention of the passport for a further 30 days so long as he or she is satisfied that the investigation into the person is being conducted “diligently and expeditiously”. That is the only test for the judge at that point. We can well imagine someone turning up to say, “We need to keep this passport longer because we are still making our inquiries and working as fast as we can”. All of us who know how the courts work know that it is very hard for a judge to go behind the simple statements presented to the court.
The Bill provides for a closed material procedure at that hearing but makes no provision for the interests of the excluded party to be represented by a special advocate. You can ask for an extension, and for the person whose passport has been removed and the counsel representing them to remove themselves from the court. While in other circumstances that would immediately give rise to the special advocate procedure, here it does not.
It was the view of the Joint Committee that the best way to ensure compatibility with Article 6 was to amend Schedule 1 to the Bill so that it provides a genuinely judicial system of what we called “warrants of further retention”, directly analogous to the system of warrants of further detention of terrorism suspects in Schedule 8 to the Terrorism Act 2000. In fact, that has been used as the model in these circumstances, except for this set of provisions. I know that in Committee the Minister said that detention warrants were of greater seriousness than removing someone’s passport, but we would remind the House that interfering with family and private life by seizing someone’s passport is rather important and a significant intrusion into one’s liberties. However, the standards that we would expect seem to be absent.
The amendments put forward in my name fall under a number of different headings. The length of the period of retention concerns us; it should be seven days, not 14. The grounds that must be satisfied for a judicial warrant of further retention should be gisted and a summary of the withheld information, at least, should be provided to the court. That is different from the position proposed in the previous amendment because although lawyers would be involved at that point, a constable at the scene, say, could not be expected somehow at short notice to provide a statement that did not in any way risk disclosure of sensitive information. In this case, lawyers would have already been involved and gisting would have been perfectly possible.
Therefore, my set of amendments deals with these matters and reflects the amendments proposed in Committee. They provide for proper judicial oversight, which should happen speedily—not within 14 days but seven. We would expect, as in any other procedures whereby liberty and citizens’ rights were seriously being interfered with, there to be opportunities for knowing, at that point and in gisted form, the reasons for retention. If there are going to be closed procedures, the special advocate procedure should be invoked. That is what this set of amendments seeks to do. Given the seriousness of this matter—because it is a great intrusion—I hope that, having had some time to reflect, this House, the Minister and the Government will decide that that is the proper way in which to deal with such a significant interference with citizens’ rights. I beg to move.
Lord Bates
My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.
The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.
Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.
Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.
Baroness Kennedy of The Shaws
My Lords, I cannot pretend that the resistance to the argument that there should be proper judicial oversight is not disappointing. I know that the Joint Committee on Human Rights feels strongly that powers like these are very serious powers to take to the state. They also send out a message that is going to be received very negatively, because there will almost undoubtedly be occasions when people fail to travel to important family occasions and where the reasons for preventing that travel are based on information that is not satisfactory. There will be a real backlash, and we will find the communities affected feeling very alienated as a result. That is why having proper judicial oversight is so important. I am disappointed, but at this stage I beg leave to withdraw my amendment.
Counter-Terrorism and Security Bill
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Baroness Kennedy of The Shaws (Lab)
My Lords, I shall start by mentioning that I, too, serve on the Joint Committee on Human Rights—I am afraid that a whole flurry of us are getting involved in this debate. There certainly was a real consensus within the Joint Committee that applying this duty to universities would be detrimental to freedom of speech. We have been most concerned about it. One of the things that I think we have all now acknowledged is that freedom of speech is an absolute value to higher education. To interfere with that or to create a chilling effect is something that we should step back from. I endorse entirely all that has been said by others on this subject and want to add one or two things.
I have acted for a number of people involved in failure to fulfil their responsibilities in the criminal field, where they have not informed on those who seemed to be involved in terrorist activity. The duty to inform is real. The universities are very conscious of it, as are the student bodies. The concern that seems to be at the base of this—and which the public would want to see being at the base of this—is that, if you were to hear that people are planning and plotting things, there is a responsibility to do something about it. That already exists in law. It is the further steps that are involved in this that worry people.
Like the noble Lord, Lord Macdonald, and the noble Baroness, Lady Brinton, and others, I am involved in higher education, and I have been for some time. I too am the head of an Oxford college. Oxford University senior administrators have written to heads of house, such as Lord Macdonald and me, expressing their concern about this part of the legislation. This is partly because, as the noble Baroness, Lady Brinton, has said, it is almost impossible for us to oversee it sensibly. For example, in Oxford it would be hard to count the number of meetings that take place in any one week across the college structure and the whole of the university. I cannot imagine what the numbers might be. The noble Lord, Lord Macdonald, and I talked about the possibility of doing a review to see what the number was. We are certainly talking about hundreds. The same would be true in Cambridge and in universities around the country. The autonomy of student unions to invite their speakers quite independently of the governance of the university must not be forgotten.
I speak from my experience as a lawyer who has acted in the criminal courts in this field during the Irish Troubles, but most particularly in recent years around the recent phase of terrorism. I acted in the case that came to be known as the Crevice trial; the fertiliser bomb plot. I acted in the transatlantic bomb plot where seven young men were put on trial for trying to blow up aeroplanes. I have acted for a number of the different wives of men involved in terrorism in relation to their duty to report. I have acted for a boy who was groomed while he was on the internet in his bedroom in his parents’ house. I have acted for those who were involved in trying to dispose of evidence in the aftermath of the 7/7 bombings in relation to 27 July 2005. So I have acted in a whole series of these cases and I can honestly say that my experience is that these are not people who were radicalised in universities.
Radicalisation does not go on in universities. By and large I am talking about young men and it is about friendships and networks of friendship where people learn from each other and pass books and material to each other. It is not about closing down what happens in universities. It is really about what happens in our communities. So the work that is already going on in communities is probably the stuff that needs to be strengthened. All I urge is take a look at the real evidence of this. It is not enough to tick a box and say, “Some of these boys went to university, some of them were on access courses”. Many of our young around the country are going to university, but these boys were not radicalised because they were university students, in the way in which we think of university students. I see noble Lords nodding. That really has not been the case.
I go back to my concern about the chilling effect, which has been described by others. There is also the deterioration of trust effect, which is very important in the relationships between those who teach and those who learn. The other thing is that I spend time with the students in my college. I have them in regularly to gatherings. I do a regular meeting with sets of 12 at a time. We have discussions; they talk about all these things that are being described, some of them by the noble Lord, Lord Macdonald. They debate things such as, “Is democracy so wonderful, when it is bought wholesale by donations to political parties and where the small people do not get a voice? Is it right that religion can be denigrated?”. They want to debate things such as, “What is the point at which people are entitled to take up arms?”. I remember when I was president of SOAS, the School of Oriental and African Studies, there would be incredibly vital debates and arguments about the circumstances in which someone was entitled, as Mandela was in his time, to take up arms against the state. When is it appropriate? That is how young people learn about the nature of our society. It is where they learn and hear the counter arguments to some of the things that they feel seem so obvious to them.
This is not, by and large, where your radicalised young person is giving voice to his views. That is happening in the café down the road. It is happening in the kebab shop. It is happening in people’s rooms, but it is not happening in the universities in the way that somehow is imagined by this part of the legislation. I urge against it and ask that the bit about universities is taken out, because we are interfering with one of the most important freedoms that should be protected in our society.
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.