European Union (Withdrawal) Bill

Baroness Lister of Burtersett Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, the Bill raises fundamental questions about not just the Brexit process and accountability to Parliament but also, as the right reverend Prelate reminded us in an inspiring speech, our vision of a good society post Brexit. In the Article 50 debate, I spoke about the sense of loss felt by me and by many who wrote to me as we are stripped of our European citizenship and the fundamental rights it affords us. Membership of social Europe has contributed to many of the social and other rights we enjoy today. With regard to the current Bill, fears have been expressed by those speaking on behalf of, among others, women, children, disabled people, LGBT people and workers, and also about environmental protections. How far we are able to allay those fears by strengthening the protection provided for equality and human rights has to be a litmus test of the effectiveness of our scrutiny of the Bill.

The Equality and Human Rights Commission and others have proposed various ways of providing such protection, including the introduction of a constitutional right to equality; the implementation of a socioeconomic duty, contained in the Equality Act 2010; a means of keeping pace with wider European equality and human rights law; and inclusion in the Bill of a clause embodying the principle of non-regression of equality rights, as recommended by the Women and Equalities Committee, among others. On this last matter, the government amendment in the Commons does not go nearly far enough. It does not actually protect equality rights and it applies only to secondary legislation, despite the Minister’s commitment to the Commons that it would apply to primary legislation also. Can the Minister explain why the Government have reneged on that commitment?

The other main means open to us is to retain the European Charter of Fundamental Rights, the key piece of EU law expressly not brought over, contravening the Bill’s “general rule”,

“that ‘the same rules and laws will apply after exit as the day before’”.

I have read the debates in the Commons and, unlike the noble and learned Lord, Lord Brown, I have yet to find a convincing argument to justify its exclusion. We are told that it is unnecessary because it adds nothing new. It will not affect substantive rights, the Leader of the House assured us. But in fact it includes certain rights and principles not covered elsewhere in our legislation, referred to in the Commons as a third category of rights, such as the right to dignity and a number of important children’s rights, including the fundamental duty to give primary consideration to children’s best interests. Can the Minister say how this duty will be protected in the absence of the charter or the incorporation of the UN Convention of the Rights of the Child into UK law?

The Bingham Centre for the Rule of Law warns:

“We will lose fundamental rights protection in certain areas”.


It points out, as did Lady Hermon in the Commons, that, without the charter, the obligation in the Good Friday agreement to an equivalence of human rights protection in Northern Ireland and the Republic is undermined. Can the Minister explain how that equivalence will now be maintained?

Even if, for the sake of argument, it were unnecessary, as the Government claim, what would be lost by now responding to the wide range of organisations, led by the statutory body with the responsibility for promoting equality and human rights, calling for its inclusion? Like the Constitution Committee, I do not understand why an exception should then be made to the general principle of legal continuity. Of course redundant rights specifically connected to EU membership could subsequently be removed, so that is no real argument. As it is, the Government’s position will be seen a symbol of the weakness of their commitment to human rights, despite protestations to the contrary.

The other argument, that to include the charter would sow confusion and legal uncertainty, is contradicted by the legal opinion obtained by the EHRC; by experts on European law, including the group convened by the Bingham centre and the UCL Constitution Unit; and by the appendix to the JCHR’s commentary on the right-by-right analysis, referred to earlier by the noble Baroness, Lady Hamwee. They argue the exact opposite: that its exclusion is a recipe for legal uncertainty. Surely the Government’s aim, as set out in the rather unconvincing right-by-right analysis,

“to maximise certainty and minimise complexity”,

is better met by having all these rights codified transparently in one place.

The Government repeatedly fall back on the protection provided by the Human Rights Act to counter calls for the charter’s inclusion. But given their earlier desire to repeal the Act, forgive me if I do not take much comfort from a commitment to it that is limited to the lifetime of the present Parliament. Wherever we stand on our exit from the EU, I hope that we can be united in our commitment to a society built on principles of equality and human rights, and therefore ensure the retention of the European Charter of Fundamental Rights as both a symbol and a cornerstone of that commitment.

Higher Education and Research Bill

Baroness Lister of Burtersett Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support the amendment. I will not repeat what I said in Committee other than to emphasise the importance of the amendment for promoting the integration of young people who have been granted humanitarian protection.

In Committee, the Minister, the noble Viscount, Lord Younger, responded that this issue,

“is already addressed within the student support regulations”—[Official Report, 25/1/17; col. 725]

in that, as we have heard, this group is eligible to obtain student support and have home fee status after three years’ residence. But he then acknowledged that those with refugee status are allowed to access student support immediately, and the implication seemed to be that three years is really not that long to wait. Three years may not be very long for us older people, but for a young person it is a lifetime. As my noble friend Lord Dubs said, to a young person in this situation three years is absolutely crucial.

The Minister also said that people with humanitarian protection under the Syrian resettlement scheme,

“are not precluded from applying for refugee status if they consider they meet the criteria”,—[Official Report, 25/1/17; col. 725.]

as if this was a straightforward thing for a young person to do. Neither the noble Viscount nor the Minister in the Commons would provide us with a satisfactory explanation for denying this group of young people access to higher education without a three-year wait, which, as I said, could feel like a lifetime.

I am encouraged by what my noble friend Lord Dubs said about what the Home Secretary has said. I would like once more to press the Government, through the Minister, to look again at the issue more generally, and I hope that part of the conversation with the Home Secretary was about this. There are one or two other ways in which humanitarian protection does not provide the same rights as refugee status. I know that this is being looked at in government, as I have been having a go at it in a number of ways. In answer to an Oral Question of mine a while ago, the noble Lord, Lord Bates, pointed out that the reason for humanitarian protection for the Syrian resettlement scheme is to enable them to move very quickly. I can understand that but, once they are here, surely it would be possible to review the situation and see whether full refugee status can be granted once the paperwork and everything can be looked at.

I hope that the Government will look at this. They say that they are looking at it, but nothing ever seems to happen. In the meantime, this amendment is the very least we can do to help this vulnerable group of young people to fulfil their potential and build a future in our country.

[Baroness Hamwee (LD)]

My Lords, having checked with my noble friend Lady Garden, I can say from these Benches that we support this amendment. The Minister referred at the last stage to keeping the issue under active review. I was going to ask what that meant and whether there had been any activation since.

The noble Lord, Lord Dubs, has to be optimistic. We all do, because it would be very depressing if one could not be optimistic on this subject; one would so rapidly go downhill on it. He referred to the situation as an anomaly. Indeed it is, as well as being intrinsically important. Only very small numbers of people must be affected by this, given the numbers who have humanitarian protection and those who might seek university education. I am quite puzzled as to what three years’ residence proves and what relevance it should have to an entitlement to that education or the ability to profit from a course.

As so often when we talk about higher education, the Bill has been a basis for our referring to the soft power of international links through higher education and so on, and to the contribution to the UK’s economy as a result of people benefiting from higher education. This cohort of people would contribute to the UK in just the same way as a result of it, and be one of those further links in good international relations. I am very glad that the noble Lord, Lord Dubs, has brought the matter back, and I look forward to some good news.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my name is on this amendment as well. As the noble Lord said, this is a modest amendment, seeking only a review as set out in the amendment—although of course, if the Government were to tell your Lordships that they are about to announce an independent reviewer of the whole of Prevent, as David Anderson and others have called for, I do not suppose the noble Lord would object to that.

The UN special rapporteur on the rights to freedom of peaceful assembly and of association is among those who has commented on the operation of Prevent in educational institutions. With other members of the Joint Committee on Human Rights, I met the special rapporteur. It is quite a facer to be in a meeting with someone in that position and be told that your own country is not behaving quite as it should and quite as the UN rapporteur thinks it should, given that we are so used to criticising other countries in human rights areas.

I do not want to repeat everything that has been said on this and other occasions; I appreciate we have other things to get through tonight. However, it seems to me that universities are precisely the places not just where views which are not illegal by definition should be challenged, but where there should be the opportunity for those who are confused, interested or whatever, to hear, to listen and to join in the debate. Prevent cannot work without confidence and trust in its reliability and its effectiveness. For these reasons, the proposal to review its operation is entirely sensible.

[Baroness Lister of Burtersett]

My Lords, I am pleased to support the amendment and to follow the noble Baroness, Lady Hamwee, who, as she noted in Committee, joined the Joint Committee on Human Rights just as I left it. In Committee, I reminded noble Lords of the concerns raised across the House during the Counter-Terrorism and Security Bill about the application of the Prevent duty to higher education institutions. As we have heard, the present amendment does no more than call for an independent, authoritative review of how the duty now operates in those HE institutions. This would respond to concerns raised more recently by a range of organisations, including, as my noble friend Lord Dubs said, the Home Affairs Select Committee. These concerns include: possibly discriminatory impact; the question of the adequacy or otherwise of the training given to academics; and the human rights implications, echoing earlier concerns of the JCHR.

In Committee, the noble Baroness, Lady Goldie, said that,

“we welcome discussion about how to implement Prevent effectively and proportionately, but … we consider blanket opposition to the duty unhelpful”.—[Official Report, 25/1/17; col.762.]

As we have heard, the amendment no longer proposes blanket opposition. Surely, in order to have a well-informed discussion, as called for by the noble Baroness, it makes sense to have an independent review of how the policy is operating, as called for in the amendment, to inform that very discussion. I can understand why the Minister opposed the original amendment, even though I disagreed with her, but I can see no justification for opposing this much more modest, and I hope helpful, amendment as a basis for the discussion that she said the Government would like to see.

[Lord Young of Cookham]

My Lords, I am grateful to all noble Lords who have spoken to this amendment and for the measured way in which they have put forward the case. I hope we will all agree we cannot ignore the increasing threat to the UK from terrorism. This is currently assessed as severe, meaning an attack is highly likely. We cannot simply wait for attacks to happen. We cannot stand by and do nothing while vulnerable individuals are targeted for radicalisation and drawn into terrorism, so we must have a strong and robust strategy to prevent this.

Prevent was discussed in Committee, and I am particularly grateful for the input at that stage from the noble Baroness, Lady Deech, who recognised the importance of Prevent in higher education. The Prevent programme is designed to safeguard vulnerable individuals from all forms of radicalisation in a variety of institutions. It is an important safeguard for our domestic students but also for the thousands of international students who choose to study here each year. Setting off to university can be a big transition in the lives of many people, and it is vital that universities safeguard their students during what can sometimes be a very challenging time for vulnerable individuals. The coalition Government introduced a clear legal duty to ensure universities recognise and act on this responsibility.

Preventing people being drawn into terrorism is difficult and challenging work, but Prevent is working and making a positive difference. In 2015, more than 1,000 referrals of vulnerable individuals were made to Channel, which enabled them to access support to try to divert them away from radicalisation. The vast majority of the individuals who choose to participate in Channel leave with no further concerns about their vulnerability to being drawn into terrorism—so as I say, Prevent is working.

Of course, this amendment is aimed at reviewing the operation of Prevent in the higher education sector, but this is already happening. Following consultation with the sector, HEFCE, which I believe to be independent of government, launched its monitoring framework last year and has had 100% engagement. In its report published in January, HEFCE found that the vast majority of institutions are implementing the Prevent duty effectively.

HEFCE has seen higher education providers increasingly improve their awareness of the risks to vulnerable students, and there have been some highly encouraging examples across the sector of how they mitigate these risks in a sensible way. The HEFCE report highlights numerous cases of good practice in the sector, and the steps being taken by institutions, from our oldest institutions through to newer providers. To give just one example, HEFCE found that the University of the West of England hosted a joint consultation with its students’ union on the implementation of the Prevent duty. This included open debate between students and Prevent partners with an opportunity for all students to view and comment on draft policies and procedures. This demonstrated a real understanding of the importance of engaging and collaborating with the student body to effectively implement the duty.

Finally, I know that noble Lords are concerned about the interplay between Prevent and freedom of speech, something the higher education sector rightly holds dear, and which we touched on in an earlier debate. Prevent does not stop lawful debate. In higher education, providers that are subject to the freedom of speech duty are required to have particular regard to this duty when carrying out their Prevent duty. This was explicitly written into the Prevent legislation to underline its importance as a central value of both our higher education system and indeed of our society. HEFCE’s monitoring shows that higher education providers are balancing the need to protect their students and their obligations under Prevent while ensuring that freedom of speech on campus is not undermined.

I say to the noble Lord, Lord Dubs, and those who have taken part in this short debate that the Government are grateful for the opportunity to discuss this vital duty that stops vulnerable individuals being drawn into terrorism. Prevent is being implemented effectively and pragmatically in the higher education sector and we want to maintain this momentum. We know it is both effective and pragmatic from the monitoring that HEFCE does. Against that background, I hope the noble Lord might feel able to withdraw Amendment 154.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Baroness Lister of Burtersett Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, like many other noble Lords I have an interest in the Bill through my involvement with a number of organisations that stand to be affected by Part 2. Moreover, I spent the first half of my working life working for the Child Poverty Action Group and am therefore very sympathetic to the concerns raised by myriad voluntary sector organisations. Part 2 is the focus of the report of the Joint Committee on Human Rights, of which I am a member, and its report lists my relevant interest. It will also be the main focus of my comments. I will first make some general remarks about process and the overarching aim of enhancing transparency.

The Political and Constitutional Reform Committee states bluntly that,

“this is an object lesson in how not to produce legislation”,

as it is informed by neither proper consultation with stakeholders nor pre-legislative scrutiny. The JCHR has protested at the,

“unnecessary speed at which the Bill is being taken”,

when there are no grounds for it being treated as emergency or fast-track legislation, as my noble friend Lady Kennedy of The Shaws has already underlined. This has impeded the committee’s ability to fulfil its scrutiny function in a timely manner, an unacceptable trend about which we had already complained in our Legislative Scrutiny Update report earlier this year.

Proper human rights scrutiny is not some optional extra to be fitted in when it suits the Government’s timetable. Indeed, as the committee points out:

“Laws that are passed following proper pre-legislative scrutiny, and after adequate timetabling for scrutiny and debate of the human rights implications of the Bills, are more likely to withstand subsequent judicial scrutiny of their human rights compatibility”.

This is particularly important with regard to the Bill because of its significance for the democratic process. The Government’s human rights memorandum to the committee accepts that Part 2 of the Bill engages the rights to freedom of expression and assembly. It acknowledges under Article 10 of the European Convention on Human Rights, that,

“political expression attracts the highest level of protection because freedom of political debate is at the heart of the creation and development of a democratic society”.

It also accepts the link with Article 11, for, as the Strasbourg court has said,

“The protection of opinions and the freedom to express them is one of the objectives of the freedom of assembly and association as enshrined in Article 11”.

We therefore now have a particular duty in this House to impress on the Government the importance of getting the Bill right.

The watchword of the Bill is “transparency”, and the overarching aim of increasing transparency in the democratic process is admirable. However, organisations which have campaigned for a statutory register argue that Part 1 of the Bill risks making lobbying less—not more—transparent. That is because it will cover only a fraction of lobbying and lobbyists and because the register will include no meaningful information on the activities of those it covers. That is about as transparent as mud. The dictionary definition of “transparent” is not just,

“able to be seen through”,

but also,

“easily detected, understood; obvious, evident”—

the very opposite of how the charitable and voluntary sector perceives Part 2. Instead, “uncertainty” and “ambiguity” are the words used to describe it. The noble Baroness, Lady Hanham, made a similar point.

The NCVO goes so far as to warn of,

“unbearable amounts of uncertainty for organisations”.

Indeed, I, too, have had an e-mail from Newcastle CVS expressing just such anxieties about what the Bill will mean for it and the local charities which it supports. As a number of organisations have warned, this uncertainty will have a “chilling effect” on legitimate campaigning at both national and constituency level at the expense of healthy democratic engagement.

Moreover, organisations such as the Association of Chief Executives of Voluntary Organisations—ACEVO—and the Quakers are fearful that small civil society groups will not be able to comply with the increased reporting requirements, which the Electoral Commission warns constitute an increase in,

“the regulatory burden for registered campaigners”.

As a result, they could be discouraged from democratic involvement in the pre-election period. Is it not odd that a Government who are so obsessed with reducing red tape for small businesses are now happy to tie up small civil society groups in red tape, as my noble friend Lady Hayter has already pointed out?

In so far as the government amendments to the Bill addressed these concerns, they are welcome. However, the widespread view conveyed to us, and based on legal advice, is that they do not go far enough. The NCVO and ACEVO both refer to problems with the existing test of controlled expenditure. These, it would appear, were manageable for many organisations within the context of the other rules that have applied, although even then, according to ACEVO, many smaller and less experienced campaigning organisations,

“were put off from pre-election campaigning activity”.

However, in the new context of the significantly expanded list of activities covered and lower spending thresholds, simply reverting to the test in the Political Parties, Elections and Referendums Act 2000 may not be enough to remove the feared chilling effect of the Bill. The JCHR has called on the Government to consider these concerns about how the existing definition will interact with key changes in the Bill. I would welcome the Minister’s response to this point.

As the Electoral Commission has advised, it is the “cumulative impact” of Part 2 on non-party campaigners that we need to scrutinise closely. It has told the Government:

“Because the Bill brings some kinds of activity into the regime for the first time … the wording of the amendments needs further consideration and testing”.

The JCHR has pointed in particular to fears about the combined impact of the much expanded list of controlled activities, the reduction in maximum spending limits and lowered registration thresholds. Furthermore, it has criticised the failure of the Government to explain satisfactorily the rationale for the change in spending limits and registration thresholds. It therefore recommends that these should remain at their present level pending further detailed work on the appropriate level, echoing the Electoral Commission’s recommendation on registration thresholds.

Others have raised worries about new constituency-level spending limits, which will add to the regulatory burden on civil society groups, and about how the new provisions could aggravate the already inhibitory effect of the existing rules regulating groups working in coalitions. All these issues need close scrutiny.

When I worked at the CPAG, I recall that the pre-election period was a crucial time for us to try to get poverty on the political agenda. It is a time for holding up to scrutiny a Government’s record on a non-partisan basis. It is a time for trying to wring commitments out of political parties and their candidates with a view to influencing not the election result but the agenda of the incoming Government, whatever their political complexion. If this kind of important work is inhibited by this Bill for fear that it will be wrongly construed as,

“intended to promote or procure the electoral success of a party or candidate”,

in the context of more stringent financial rules, as civil society fears, our democracy will be the poorer for it.

Some may give the Government the benefit of the doubt and attribute this,

“dog’s breakfast of a Bill”,

as the chair of the PCRC has called it, to cock-up rather than conspiracy. Others believe that it is a conspiracy to gag campaigners. If the Government do not want to give credence to the conspiracy theorists, mentioned by the noble Lord, Lord Hodgson, it is time that they face up to the breadth of the opposition and think again. From a human rights perspective, the JCHR concludes that the deeply unsatisfactory legislative process makes it,

“difficult to assess whether the specific measures proposed in Part 2 constitute a necessary and proportionate means of achieving the Government’s aim in order to justify any interference with free speech rights”.

As already noted, our primary recommendation, therefore, is to pause the Bill's legislative process to allow more time for proper consultation. I hope that, even at this late stage, the Government will heed our advice and that of countless others. The rights to freedom of speech and association are too important for our democracy for them to steam ahead regardless.