Police, Crime, Sentencing and Courts Bill

Baroness O'Loan Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I have added my name to this amendment for four reasons. First, the need is clear: we need complete protection of victims and the public interest, and to make certain that recalcitrant are no longer able to delay. Secondly, the duty of candour is clear: there is no doubt about what it entails. Thirdly, the remedies provided in the proposed new clause are extensive and proportionate. Finally, there can be no reason for delay. Why does it need consultation? It does not. The proposed new clause and the need are clear; we should pass this amendment.

[Baroness O’Loan (CB)]

My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Thomas, for tabling this amendment.

Briefly, a duty of candour would bring about a change of mindset and culture by requiring openness and transparency about what has happened in investigations. It would lead to a more efficient deployment of resources, which would have a beneficial impact on the public purse. It could very much help to contradict allegations of police corruption and will grow confidence in the leadership of the police service because there would be a statutory obligation of openness and transparency, and therefore an assumption there would be compliance with the law rather than a suspicion of cover-up or, even worse, corruption. The amendment is framed to protect all necessary matters but to enable a different positive approach to the delivery of policing. I support the amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome that the opposition is united in support of this amendment.

The police have failed to own up to many of their mistakes. I personally have experienced police evasion, police spying and police deceit. It beggars belief that there is no duty of candour on our police force already. It actually imposes their own idea of what the law says and this is completely wrong, so I very much support this amendment.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, for affording us this further opportunity to debate the case for a statutory duty of candour. They have rightly highlighted the importance of the police’s openness and transparency, which is a very serious matter. It is at the heart of public confidence in policing and ensures that the police are held to the highest standards; this is crucial to maintaining that confidence.

As I did in Committee, I start by highlighting the extensive work that has already been done and is ongoing to improve integrity and openness in policing. Back in February 2020, we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020 and, in so doing, has the force of law. It is worth quoting in full the relevant paragraph:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness.”


A failure to co-operate in this way constitutes a breach of the statutory standards of professional behaviour, by which all officers must abide, and could therefore result in a formal disciplinary sanction. I put it to the House at this point that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in this amendment, as they could ultimately be dismissed for a breach.

The duty to co-operate has been introduced since the issues that were highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel, which were later highlighted in its report. We are keen that this duty becomes fully embedded within the police workforce. The recently announced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a further test of this duty.

In addition to the standards of professional behaviour, the College of Policing’s code of ethics delivers a set of policing principles and ensures that ethics are at the centre of all policing decisions. The college is currently reviewing the code and intends to further promote a policing culture of openness and accountability. The Government are confident that the work of the college will ensure that candour is directly addressed through this review.

Noble Lords will be aware that a response to the Daniel Morgan Independent Panel and Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public authorities. Before the Government respond to these reports, it is clearly imperative that the Hillsborough families are given the opportunity to share their views. We hope that this happens as soon as is practicable.

Bishop James’s report also encouraged public bodies to sign the proposed charter for bereaved families. This has now been signed by the NPCC, on behalf of police forces, so that the perspective of the bereaved families is never lost. The charter commits forces to acting with candour, and in an open, honest, and transparent way, when facing public scrutiny, for example through public inquiries.

Regarding the point made by the noble Lord, Lord Paddick, the decision on disciplinary action is not just for forces. Of course, the IOPC can also call it in.

In conclusion, we believe that the existing legislation requiring officers to co-operate already amounts to a duty of candour, and this is complemented by the further commitments that policing has made to transparency and openness. That being the case—

[Baroness O'Loan (CB)]

The Minister has described a duty of co-operation, which is not the same as the duty described by the noble Lord, Lord Paddick, and others, in the amendment. It is not fair to explain that they are the same and that a duty of co-operation goes further than a duty of candour. They are two different duties and the obligation to comply with charters and standards is very different from the obligation to comply with the statutory duty.

[Baroness Williams of Trafford (Con)]

I was making the point that, in some ways, the duty of co-operation goes further because of the sanctions afforded to it, though I know that the noble Baroness, Lady O’Loan, for whom I have the greatest respect, disagrees with me.

Regarding an officer resigning or retiring, if he or she is found to have committed gross misconduct, the chair of proceedings can decide that they would have been dismissed if they had not already left the force, so leaving the force is no longer a way out, since this automatically places the officer on the College of Policing’s barred list, preventing them from working in policing again.

I know that the noble Baroness does not agree, but I hope that the noble Lord will withdraw the amendment, although I am not sure that he will.

Police, Crime, Sentencing and Courts Bill

Baroness O'Loan Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I have listened to everybody speak, and I appreciate that it is late at night, but I ask my colleagues around this Chamber to remember that we are talking about a human life that was horrifically and brutally taken. We have a family broken to bits. I have to say that, as somebody who has been through the criminal justice system, and as a mother of three daughters, my emotions are running high, because it was at this time of night that Sarah went missing and the searches began. Yet here in this Chamber we are arguing over having a statutory inquiry for the soul of Sarah Everard. We have colleagues here waiting to see whether we are going to divide, and saying that we are going on too long and are going round in circles. I feel ashamed to listen to these conversations, when we in this Chamber should be thinking of Sarah Everard and her family.

Let me tell you that it is not easy for the family; every day is hard. We are talking about a family that is traumatised. Any information that has come from any Minister or any government department will not be absorbed, because they are trying to get through every minute of every day. I am not saying this to be emotional—“Oh, calm down, my dear”—and I am not a legal eagle, as my fellow colleagues are who have just spoken articulately, but what I can say is that it is absolutely shameful that this Government are putting this inquiry into two parts.

That is not to say I cannot thank the Minister for taking the time to discuss this. The shame of it is that we are going to go through part 1, which deals with all the things that we already know, and that is why it is quite quick, and then, following advice to the Home Secretary, she or he—I have worked with several Justice Ministers as Victims’ Commissioner, and it is quite right that there is a carousel—will make a decision. It is unfortunate to think that an adequate and eloquent lady will give advice to the Home Secretary only for that person to yet again make a decision with no timeline.

It could be one of your daughters who they find. You could have to go through these media perceptions, asking what she was doing out late at night. Yet we protected an ex-police officer by saying that we do not know what has gone on and will have to find out. We are fighting here to discuss the place of a statutory inquiry. Given the public interest and all the window dressing from politicians across the House—because this Bill does go back to the Commons to be debated once again—I think that is shameful.

This House works best when we work together but tonight, at half past 11, I have been on my feet and travelling for 14 hours. I have health issues; I have taken my painkillers to be here to speak up for Sarah Everard. To walk a mile in the shoes of this family, in this horrific case shows that they are now relying on people giving messages, with no legal intervention. Yet we, as the unelected Chamber, can fight for this important inquiry. It is disgraceful that it is in two parts.

At this time of night, we are playing politics. Maybe the Government will win this Division and maybe we will, but it is shameful. Everyone in this Chamber needs to be aware that this could happen to them and they would go through the same system. It does not matter who you are—at the end of the day, we owe it to the public to make demands. We have asked the Government to order a statutory inquiry. Only then will the police be held accountable, only then will we stop police forces and officers marking their own homework and only then, speaking from my former role as Victims’ Commissioner, will they be truly accountable. In any other role, we would be sacked. We would be going through a civil investigation, a duty of care, vicarious liability—whatever it may be.

We are talking about a human life, a young woman who committed to go into a car with a police officer. For absolute assurance, for the public interest, for public safety, for our young and future generations, for our daughters and our sons, we owe it to help the public gain confidence in a system that is supposed to be there to protect us. Most importantly, what we see as the ethos of the police officers who put that uniform on has disintegrated.

We must have a statutory inquiry for the soul of Sarah Everard and, indeed, for the sake of humanity. If we do not, this will be a shameful decision that we will always regret having made.

[Baroness O'Loan (CB)]

My Lords, I am pleased to support this amendment in the name of the noble Baroness, Lady Chakrabarti, as well as those of the noble Lord, Lord Carlile, and the noble Baroness, Lady Newlove, who has spoken so eloquently and passionately on this subject. The Government claimed that the inquiry that was established would be quicker as a non-statutory inquiry; from my experience, that is not necessarily the case. The reality is that in phase 2 of this inquiry, if not in phase 1, we need an inquiry under the Inquiries Act 2005, which is not limited to the activities of one officer but embraces the very important issues of recruitment, vetting, funding and resourcing of anti-corruption activity, and the fact that the IPCC is so underfunded for the anti-corruption work that it has to do.

My inquiry and others before it have pointed out the serious deficiencies in the management and funding of those elements of police responsibility that are dedicated to identifying criminals within police ranks and dealing effectively with them. I reported in June last year. Given my experience of investigating matters involving the MPS, the IPCC and the Crown Prosecution Service over some six years, I do not believe that a non-statutory inquiry can act as effectively as one armed with the power to compel witnesses and the discovery of documentation. My panel was to report within 12 months of receiving documentation. We received our first documents in January 2015 and our last in March 2021. We reported three months later, saying:

“It is very important that lessons are learned about planning and preparation before the appointment of panels and similar public scrutiny bodies to avoid unnecessary distress to the families of those affected and unnecessary delays and costs to the public purse.”


I am sure that everybody’s thoughts tonight are with the family of Sarah Everard and with all those women who are listening, as the noble Baroness, Lady Chakrabarti, has said, and who will be affected by the outcome of this inquiry. Earlier, as we sat waiting for this amendment to be called, a number of Members—noble Baronesses—were discussing what it feels like as a sole woman to walk out of your Lordships’ House at this time of night and later, and try to find our way safely to the places that we stay in.

Police, Crime, Sentencing and Courts Bill

Baroness O'Loan Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Moylan (Con)]

My Lords, I have two points to raise. Following the right reverend Prelate the Bishop of Leeds, I start by saying that this is a sensitive subject. I agree with him that, even though this is the day of burial of Sir David Amess, and he is in our thoughts, I do not wish to criticise the police and their conduct on that day or talk about that incident. I want to talk at a slightly more abstract level. I appreciate that anyone in charge of the crime scene on that day faced a difficult decision and it is not for me to criticise what they did at that time; that is not my point.

My first point is to stand back and ask a more abstract question: who owns a death? The assumption, especially when a death is violent or in emergency circumstances, is that the death is owned by the state—by the police and the ambulance service primarily. They are in charge, it belongs to them and everybody else must have permission to be admitted. Even the right reverend Prelate the Bishop of Leeds sort of admitted that and gave that point away by saying that police needed better training to understand why and when they should admit people to the scene.

I would go a little further and say that the claims of the police and ambulance service have to be understood and considered in the light of other claims. Those other claims include the claims of the family and the dying person themselves as to who owns what is going on and who has a say. If we simply collapse into thinking that it is just a matter of getting better police procedure, we are conceding the major point. Of course it is in the public interest that a criminal who has killed people should be brought to justice, that their trial should be fair and the evidence preserved. But that is not the only interest in a death. It is not the only subject and there are other claims we should consider.

This afternoon, as some noble Lords know, there was an Oral Question on this topic in my name on the Order Paper. One noble Lord genuinely asked: has this subject ever come up before? I think he meant: has it ever come to a ministerial desk before? The answer of my noble friend was that she thought not—that the Amess case had brought it to public attention, but it had not really come up before. However, the real answer to that question is, “Yes, yes, yes”. It has come up before, for example at the Manchester Arena, and countless times in care homes over the last year throughout this country; it just does not rise to the level of Ministers’ desks.

Here, I have to admit that I have taken some advice from a distinguished academic specialising in emergency response, and I am told by her that this is partly because there is indeed police training on this subject, but it is primarily focused on how to explain to the families afterwards why the priest was not allowed in. That is the main focus of police training, rather than training them to think of the circumstances in which they might relinquish their claim—valid though it is—in order to respect the claims of others. That is my first point, and I think we should reflect on that.

My second point is a little more practical: we can do this better if we want to. We have done it better in the past. I was told today, again by the same distinguished academic, that there are lovely pictures from the Second World War of ARP wardens going into bomb sites—arduous and horrible work—immediately after a bombing to try to rescue the dying and recover the dead. They were accompanied by clergy with “ARP clergy” written on their tin hats, because it was assumed that these people were correctly and properly embedded in any team that was going to identify, and to find and rescue, people who were dying in the wake of a bomb. Of course, in those circumstances, there was no question of identifying the perpetrator. The perpetrator was well known and was not going to be brought to criminal trial on that basis.

I am treading on slightly uncertain ground for me here, but if you go to other countries—to Israel, for example—I am told that where there are bombs and emergency responses, there are people who are again embedded with the police. They would not be clergy because Judaism operates in a different way; there is no function, as I understand it, reserved to a clergyman in Judaism that cannot be carried out by a lay person. Although the approach to death is slightly different—it is not a question of last rites for the dying, but more a case of the proper treatment of the dead—these people are embedded with the police and it is all well understood. My noble friend Lord Moynihan, asking a supplementary question earlier today, drew attention to practice in certain US states. Again, there is much better relationship, a working relationship, between the police and what are called faith groups, in exactly these circumstances.

That illustrates the two points. First, we need to ask ourselves some radical questions about who is charge in these circumstances, and who has a claim—not just as a petitioner, merely standing at the door asking—to be there at the death. Secondly, if we want to, we can do better. That is why, today, I asked my noble friend if she would at least undertake a study that looked at practice in other countries and jurisdictions to see how they do it and what we can learn from that. I think we would benefit greatly from that. I do not ask any more.

[Baroness O’Loan (CB)]

I thank the noble Baronesses, Lady Stowell and Lady Masham, for tabling this probing amendment, prompted by the tragic and terrible murder of Sir David Amess and the inability of the attending priest to gain access to Sir David in what may have been his final moments. I am not sure if it is a declarable interest but, like Sir David, I am a Catholic. My support for this amendment is a product of my faith.

In almost any situation in which someone has suffered a terrible injury, there is the possibility that a crime has been committed and therefore, of course, the location of that injury will become a crime scene. Current police procedures are very specific about the management of such scenes and actions taken in those first minutes may be critical to resolve any crime that has been committed. The responsibility lies with the first officers to attend. Access to such a scene is necessarily limited. A scene log will be created to manage and record all the activities within the crime scene. However, a variety of people do gain access. They include ambulance and medical personnel, undertakers, photographers and scene of crime officers. They all have a legitimate purpose in being at the scene, but not all these purposes relate to the maintenance of the integrity and provenance of any material that may be recovered from the scene. Crime scene officers are required to ensure that persons entering the scene are wearing suitable protective clothing to prevent contamination of the scene, and to ensure that they are protected from any hazards present. So, it is possible to provide safe access for clergy that will not in any way contaminate or inhibit an investigation. The question then must be: is it desirable to do so?

Northern Ireland has seen the cost and the benefit of the presence of a priest on many occasions. The PSNI has worked with very well with clergy of all denominations. Perhaps I could remind your Lordships of the terrible murder of the two corporals, Derek Wood and David Howes, by the Provisional IRA on 19 March 1988 in west Belfast. Father Alec Reid of nearby Clonard Monastery attended them as they lay dying. His prayers—his intervention at that most savage moment—were enormously important to so many.

Two Belfast priests died during the Troubles attending their parishioners who had been shot. Father Hugh Mullan died in 1971, going out into gunfire knowing that he could be shot. Another, Father Noel Fitzpatrick, died in 1972 when accompanied by a parishioner, Paddy Butler. Waving a white handkerchief, he attempted to reach wounded men during sustained and heavy gunfire. These were brave men living their call to minister. It has long been a tradition in this country and many others that there is recognition of the value of spiritual and pastoral support. For this reason, chaplaincy services are publicly funded in many situations. However, at the present moment, attending an emergency scene as a priest can be a daunting experience, as the response of police and ambulance personnel is not certain. It depends on a decision made by someone who may have no religious faith and who may see absolutely no justification for permitting access by a priest.

To be able to receive sacramental spiritual support in the event of a death, or possible imminent death, is of profound meaning and importance to Catholics. Indeed, the support of a priest or other minister of religion is of great importance to those of other denominations and faiths. As your Lordships have heard, Cardinal Nichols and the Commissioner of the Met have agreed to establish a joint group to study the access given or refused to Catholic priests at scenes of traumatic violence and to consider whether any changes are required to the guidance issued to officers facing such a situation. This is a very positive initiative that will inform the national debate. There can be no doubt that many factors will be considered but, given that safe access, with protection against any crime scene contamination, can be secured, the primary question must be whether such access should and can be managed in a way that will enable the celebration of the sacraments at this most sacred moment, the moment when we believe a soul is passing.

Undoubtedly, any future guidance will require processes for the identification, training, et cetera, of clergy who might be granted access in such situations, but these are practical issues which can be resolved. I put my name to this amendment because I believe it can be done, and it should be done, for the support of the dying person and for their family and friends, who may be enormously comforted by the fact that a priest was allowed to attend someone at this most sacred moment.

[Baroness Newlove (Con)]

My Lords, I support this amendment. I appreciate the time, but as somebody who has lost somebody to a violent act and has been in a crime scene, I reiterate the words of my friend, the noble Baroness, Lady O’Loan. I am a Roman Catholic, but actually I am speaking about the procedures that the police had in place on that night. I was in a crime scene and I had to wait for permission to leave that crime scene and to be able to go and see Garry, who was dying. He died on the ground—he came around and then they rushed him. It may have been only minutes but it was hours in my mind. You have to wait for police procedures. I fully respect that the police are doing what they are doing, but it did feel at times that it was about the process and not about the dying man on the ground and my three daughters, who were covered in blood, being whisked away as victims of a horrendous, horrific crime. Even the priest in the hospital had to step away with anger at seeing how vicious a scene it was.

I support this probing amendment, not out of disrespect for the police officers, but I do believe that there are a lot of processes that go on. Even the Home Office is on the phone to see if things are flagging up. So, with respect, to make this procedure a lot better, we have to look at how we help victims and their families. My heart has gone out to Sir David’s family, because the shock of those seconds of losing somebody is something you will never, ever get over.

Law Enforcement Agencies: Duty of Candour

Baroness O'Loan Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, first, I extend my deepest sympathies to the family of Daniel Morgan. Regarding who should be held accountable, the Home Secretary has asked the Metropolitan Police Service to account for the findings in the report. She has also asked HMICFRS to ask the chief inspector what steps the inspectorate can take to provide assurance on the issues raised in the report.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan panel. Is the Minister aware that the panel identified the abstraction of vast amounts of police material by the senior investigating officer of the last investigation, much of which he then disseminated to journalists and others for the purpose of broadcasting and writing a book about the murder? It included sensitive and secret material, the dissemination of which involves potentially significant risk to those identified and could undermine any future prosecution. Given this, does the Minister agree that the police must ensure that their policies and procedures to prevent such behaviour are effective and implemented, and that the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing?

[Baroness Williams of Trafford (Con)]

I agree with the noble Baroness and I thank her for the work she has done to bring forward this report, which I am sure will be a source of learning for both the Government and the Metropolitan Police. Regarding the policies and procedures and what has changed since the murder of Daniel Morgan, as the noble Baroness probably knows, a code of ethics for the police was introduced in 2014, and in 2020 the standards of professional behaviour were changed to clarify that failure to co-operate with investigations and inquiries could constitute misconduct. Much has changed for the better since the murder of Daniel Morgan, but, as the noble Baroness says, this is by no means the end of this very long story.

Daniel Morgan: Independent Panel Report

Baroness O'Loan Excerpts

Tuesday 25th May 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I do not see how there can have been a cover-up, if the Home Secretary has not yet received the report. We need to be very careful about the series of events that are required for publication to take place. I am sure that, like the noble Lord, we all look forward to the report being published in Parliament.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan independent panel. Is the noble Baroness aware that the panel has worked very closely with the Home Office, including with the Permanent Secretary, on arrangements for publication, and that it understood until 10 May that it was most likely that the report would be published on 17 May or yesterday and that the Home Secretary would have prior sight of it, as normal? There was no suggestion that the Home Secretary would seek to redact the panel’s independent report.

Is the Minister aware of the process adopted by the panel to ensure compliance with its legal obligations, which derive from its terms of reference, and the requirements when a report is to be published in Parliament, which include getting consent from all document holders to publication of their material, an anonymisation process, the sending of fairness letters to all individuals and organisations criticised in the report, a 10-day security review by five senior members of the Metropolitan Police and a full legal review of the 1,200-page report by the panel’s independent solicitors and Queen’s Counsel to ensure that there are no outstanding concerns?

Is she aware that the panel now awaits confirmation from the Home Office of the arrangements to ensure the security of the report prior to its publication in Parliament? Despite her previous answer, can she assure the House that publication will occur by 16 June, to enable the family of Daniel Morgan, who have been waiting 34 years and three months for answers, finally to see this report?

[Baroness Williams of Trafford (Con)]

I begin by thanking the noble Baroness for the part she has played as chair of the inquiry. We are as keen as she is to see that report published in Parliament. I echo her words about the family, who have had to wait 34 years for some of the answers they seek. That must have been an incredibly painful process for them. On publication to Parliament, I agree that the panel is now awaiting confirmation of the arrangements from the Home Office. The Home Secretary needs to see the report before it can be published in Parliament. To echo previous noble Lords, I also completely respect that legal specialists have looked at the report, but my right honourable friend the Home Secretary is under an obligation to assure herself of those facts before the report is published. As my honourable friend read out yesterday, the terms of reference say:

“The Independent Panel will present its final Report to the Home Secretary who will make arrangements.”


The noble Baroness has acknowledged that there is no attempt to redact, only to ensure that human rights and national security issues are absolutely scrutinised. Then, I hope, the report will be published as soon as practicable.

Domestic Abuse Bill

Baroness O'Loan Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

[Lord Morrow (DUP) [V]]

My Lords, I again commend the Government for bringing forward the Bill, as I have done throughout its passage through this House. I thank the Minister for the work that has been undertaken thus far. However, as the tragic events in Clapham so shockingly remind us, speed is of the essence when it comes to changing the attitude of men and boys towards women and girls in our society.

The Minister has been keen to point out that the Government’s own pornography research does not prove causation—how could it? It does demonstrate a clear association between pornography consumption and male aggression and sexual violence, as does other research in the field. In this context, addressing the impact of pornography consumption on male aggression towards women must form part of a credible legislative approach to violence against women and a credible response to the outpouring of stories that we have all been moved by this week.

In recent debates, much has been said about how Part 3 of the Digital Economy Act protects children from pornographic websites through age verification. That is certainly very important because, if Part 3 was in place now, children today would be less likely to be exposed to pornographic websites. It would therefore be less likely that they would move into adulthood with the expectation that violence is a natural part of sexual relationships, with all that this means for behaviour.

However, after the events of last week, it is also important to stress that another feature of Part 3—namely, the regulator’s power to take robust action against websites showing illegal extreme pornography, regardless of age verification—is important, because it will help foster an environment that challenges the normalisation of violence against women. It is a vital change that women and children could benefit from right now, that could have brought huge benefits from last year and, crucially, that could bring huge benefits very quickly, for reasons I will explain, if the Government implement Part 3.

The latest letter on this from the Minister comes with an estimated timetable of between 22 and 27 months for implementing Part 3 of the Digital Economy Act 2017, with a new regulator. This is perhaps the finest example of a cannot-do, rather than a can-do, attitude to emerge from Whitehall since Sir Humphrey Appleby took his retirement. It is deeply problematic for at least two reasons. First, it clearly draws out the process to the greatest possible extent, making it as long as possible. Secondly, it rests upon a strategy that hopes that none of us will be cute enough to spot the elephant in the room.

The truth is that, if the Government were prepared to redesignate the BBFC as the regulator for Part 3 during the interim period, while the online harms Bill is being developed, then women and children would benefit within a matter of months from the very important protections that this House has already sanctioned in relation to pornographic websites. The taxpayer would also see a return on the £2.2 million investment in the steps taken in preparing for implementing Part 3.

The question the Government must answer is this: is bowing to their preference that Ofcom be the regulator, rather than the BBFC, so important that they are prepared to demand that the price for it is that women and children should be denied the protections that this House has sanctioned for them for a period of years? We can argue about how long it might take for the online harms framework to reach the point of implementation, but if we use the Digital Economy Act as a model, we can assume that the time from the arrival of the primary legislation in Parliament to the point at which it and the attendant secondary legislation and guidance are passed will be about three years. Is the Prime Minister prepared to tell the women and children of the United Kingdom that his preference for Ofcom over the BBFC is so great that women and children should be denied these important protections from pornographic websites for some years, even though he can still have Ofcom when the online harms regime comes into play? Is he prepared to ignore Women’s Aid? Are the Government saying that, because they cannot consent to this, we should cease support for this amendment and all those who want implementation now?

I trust that the Prime Minister still has his political wits about him. I trust that he will think better of taking a different position from all these bodies and the noble Baroness, Lady Benjamin, whom the people of this country hold in such high regard. Redesignation would take 40 days, as per Section 17 of the 2017 Act, where it was agreed that we should give the websites three months to get ready.

By my reckoning, if the Government show a fraction of the determination that we saw at the vigil in Clapham on Saturday night, Part 3, with all its protections for women and children, could be in force before this House rises for the Summer Recess. It is my great hope that the Government will do the right thing today and tell the Minister before she gets to her feet that she can announce that the Government will now implement Part 3, so that the noble Baroness, Lady Benjamin, whose leadership on this issue demands our great respect, can withdraw her amendment.

[Baroness O’Loan (CB) [V]]

My Lords, I am pleased to speak today in support of the amendment in the name of the noble Baroness, Lady Benjamin. I am grateful too for the powerful briefings and extensive correspondence on this amendment that I have received from several organisations and individuals.

Like other noble Lords who have spoken, I have seen the Government’s letter of 8 March. I found it unconvincing and I am concerned that there is a danger of completely missing the point of the amendment. As we saw over the weekend, the country is very concerned about attacks on women. I think, too, that we are all concerned about the level of violence against children, and indeed against men, in our society. It is clear that the consumption of pornography is associated with aggression and violence against women, men and children. This is an issue on which we can act today.

Had the Government implemented Part 3 of the Digital Economy Act as planned, we would have had a functioning regulator today. He or she would have been able to take a series of robust actions against any pornographic website showing illegal extreme pornography. We would have seen the introduction of age verification on pornographic websites.

Today, 14 women’s organisations, including Women’s Aid, have written to the Prime Minister asking him to instruct his Ministers to respond to the debate by making a commitment to implement Part 3 of the Digital Economy Act as an interim measure to protect women and children, treating them with dignity between now and when the online harms regime will be ready, probably in three years.

The suggestion in the Government’s letter that

“commencing Part 3 of the 2017 Act as an interim measure would … create a confusing and fragmented regulatory landscape”

is unconvincing; it is also regrettable.

The online harms Bill is not yet before Parliament; it will take time to pass through Parliament and, even if it is passed as suggested and the Government commence implementation immediately, the interim arrangements proposed today would be in place and working for two or three years before it would be realistically possible for any benefit to be experienced through such an Act. That would be years of additional protection before any further legislation was operative.

If providing a greater measure of protection for women and children is a critical issue, as the Government have said, they cannot continue to argue that the legislation that we have passed should not be implemented now, even as work proceeds on developing even better legislation for the future. With child-on-child sexual abuse, we know that between 2012 and 2016 there was a 78% rise in England and Wales. Research from 2017 on preventing harmful sexual behaviour involved interviews with young sexual offenders, asking them what might have stopped them. Their answers included “help in management of pornography”. Implementing Part 3 would do this; it would help to save and protect until new legislation is enacted.

I urge the Government to respond positively to noble Lords who have spoken in favour of this amendment and the many women’s groups that have written to the Prime Minister today, and I shall support the noble Baroness, Lady Benjamin, if she divides the House on this amendment.

[Baroness Finlay of Llandaff (CB) [V]]

We should all thank the noble Baroness, Lady Benjamin, for Amendment 87A. It has been thrown into stark relief by the terribly tragic death of Sarah Everard.

In 2017, Parliament agreed powers to take action against any website showing illegal extreme pornography, yet although we have agreed that non-fatal strangulation is a crime, we still face the cultural normalisation of aggressive sexual activity, of which strangulation activities are the most extreme example. Fuelling such activities is violent pornography and the underlying problem of sex addiction, as explained by the noble Lord, Lord McColl of Dulwich. As with any addiction, the person requires ever more potent dosages of the source of their addiction, whether drugs, alcohol, gambling or abnormal sex. When sexual potency appears to fail, the man seeks greater stimulation in an attempt to achieve satisfaction, developing psychological tolerance to abhorrent acts. The pornography sought gradually becomes ever more extreme, with films and images made exploiting those who are vulnerable, often underage, enslaved or both. This is not about choice or self-control; the addict has surrendered choice—they are controlled by their addiction, compulsively drawn by dependence to extreme pornography. That does not absolve them from responsibility at all but, by leaving the extreme pornography there, we do not just normalise these practices but fuel the addiction, similar to the drug trafficker providing cocaine to the addict.

The Government’s own research into the impact of pornography on male aggression reported in February 2020 that

“there is substantial evidence of an association between the use of pornography and harmful sexual attitudes and behaviours towards women”.

We need robust action against websites based anywhere in the world, accessing the UK with illegal extreme pornography. Age-verification checks would ensure that children are significantly less likely to be exposed to pornographic websites, which have negative implications for their development and give an expectation that violence is a natural part of sexual relationships, with all this means for their behaviour. The terrible costs of not implementing Part 3 of the Digital Economy Act are evident. As has been said:

“It’s now easy to find content on the major porn sites of women being hung, strangled, suffocated, garrotted—and with ‘choking’ content often featuring on the front page.”


Moreover, on September 2019, the Journal of Criminal Law noted:

“Evidence suggests that the mainstream online pornography websites, while declaring such material as contravening their terms and conditions, continue to host such material”.


We cannot wait for the online harms Bill. Women up and down the country—[Inaudible.]

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness O'Loan Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness O’Loan (CB) [V]]

The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to

“pay … attention to public authorities’… power to grant … authorisations.”

It does not provide proper authorisation or audit.

The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:

“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.

The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.

As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.

The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.

As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.

Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness has gone well over the advisory limit of four minutes. Perhaps she will conclude her remarks there.

[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.

European Public Prosecutor’s Office (EUC Report)

Baroness O'Loan Excerpts

Thursday 19th March 2015 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I speak in this debate as a member of European Union Sub-Committee E, which was so ably chaired by the noble Baroness, Lady Corston. This report deals with a subject which has much exercised the committee over the past years as the heart of it goes to how the European Union and the member states thereof seek to control crime, and particularly fraud affecting the EU.

There can be little doubt that co-operation between member states and European institutions and agencies in the fields of justice and home affairs has resulted in significant achievements in the battle against crime. Eurojust, Europol and OLAF—the European anti-fraud office—have all played their role in fighting crime. While there are deficiencies which have been identified, there can be no doubt that co-operation in the processes of investigation et cetera has facilitated effective action. The sub-committee was aware that there is a problem of hitherto unquantified fraud on the EU’s finances and it published a report on this matter.

European Union law obliges both the European Commission and member states to combat fraud on the EU’s finances, but the onus to protect the EU’s financial interests falls mainly on individual member states because they are currently responsible for administering 80% of EU funds. We found that the EU’s anti-fraud system has a number of weaknesses. The Commission cites a figure of fraud worth €404 million per annum, but we felt it offered only a glimpse of the level of fraud perpetrated against the EU’s budget. Based on the evidence we received, we felt that the actual figure is around £5 billion but may be even more. There clearly is a problem and the proposal for the EPPO is one of the initiatives intended to address this issue, but it does not really address the problem. Rather, we found that it had the capacity to create major problems both within participating member states—as the noble Baroness, Lady Corston, said, the UK would not be one at present because we would exercise our right not to participate—but also in other member states because of the capacity of the proposals to interfere with the working of the two institutions which have been really useful in the fight against crime against the EU’s financial interests: Eurojust and OLAF.

An EU body to investigate and prosecute crimes against the EU’s financial interests was provided for in Article 86 of the treaty on the functioning of the EU, which says that any EPPO would be responsible for investigating and prosecuting and bringing to judgment the perpetrators against the EU’s financial interests and that it would be empowered to exercise the functions of prosecutor in competent courts of the member states. The noble Baroness, Lady Corston, has articulated what happened when that proposal came before the sub-committee. We published a report in October 2013 which suggested that the House challenge the EPPO proposal on the very considerable grounds of subsidiarity. The House approved that opinion, and 14 other legislatures reached similar views, causing the EU Commission to review its proposal. However, it was a cursory review, and in December 2013 the Commission indicated that it would proceed with its proposal. We therefore undertook the second stage of the inquiry.

We found many problems with the current proposal for the EPPO, and many potential difficulties for the United Kingdom in the proposed arrangements and the possible UK response to them. First, the potential workload of the EPPO would be absolutely overwhelming, given the range of crimes against the EU’s financial interests. Witness after witness gave evidence to that effect, and even the Home Secretary was clear that it was impossible for anybody to give the correct figure for such crime—a view shared by the British former president of Eurojust, Mike Kennedy. The UK could not legally respond to EPPO requests for assistance, giving rise to the risk that the UK would—as the noble Baroness, Lady Corston, said—become a safe haven for illegally obtained EU funds; there would be problems for non-participating states in that the proposal might affect the capacity of Eurojust to support all member states; the proposals for shared competence between the EPPO and the member states are unclear to the extent that they may be unworkable; robust and capable monitoring of investigations and supporting fast and efficient decision-making would not be possible; and there is no clarity as to the impact of the existence of the EPPO on OLAF.

At a time when the activities and costs of the EU are under significant scrutiny, when organised crime is becoming even more effective despite the massive resources poured into the attempts to control it, and when there is deep scepticism in some quarters about the benefits of EU membership—scepticism which I do not share—the committee has called on the Government to take effective action to ensure that the UK’s interests and indeed the interests of its colleagues of the European Union are not compromised, that very clear steps are taken both here and in the Union to ensure that before any EPPO is established there are very clear rules about how its shared competence will operate, and to provide for the situation in which we do not participate but must be protected against the adverse consequences which may result. In addition, the need to protect OLAF and the assistance currently received by the UK from OLAF and Eurojust is vital.

I therefore commend the recommendations of this report to Government for implementation. I welcome their response to the report, but urge them to accept all the recommendations, notwithstanding the lack of clarity about the proposal for the EPPO’s role and operation.

--- Later in debate ---

[Lord Bates]

These are important constitutional matters. I am looking across to the Benches where we have a distinguished constitutional academic and a distinguished former member of the Supreme Court, who may offer opinion, but I think I will slightly side-step the question.

Help is at hand.

[Baroness O'Loan]

My Lords, the proposal is that prosecutions will occur in British courts under British law. This is not a proposal that European law will be exercised in British courts, so the reservations of the noble Lord are not warranted.

[Lord Bates]

I could not have put that better myself.

Counter-Terrorism and Security Bill

Baroness O'Loan Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, in moving Amendment 15A, I shall speak also to Amendment 15C in my name and that of other members of the Joint Committee on Human Rights, two of whom apologised that they had to leave. Amendments 15A and 15C together would require the Secretary of State to have due regard to the principle of academic freedom, as already recognised by Parliament in Section 202(2) of the Education Reform Act 1988, when issuing guidance or directions under this section. It was quoted earlier, but I remind noble Lords that it includes a duty,

“to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

I believe that it was inserted by your Lordships' House and it would be appropriate if we were to do the same now.

I would argue that Amendments 15A and 15C are perfectly compatible with the Government’s own Amendment 15D. They would simply add to it by making explicit reference to the important duty to uphold academic freedom in the 1988 Act, which is currently missing. This is a duty that is very important to academics, as it puts flesh and bones in the context of higher education on to the more abstract duty of freedom of speech contained in the 1986 Act and referred to in the Government’s own amendment.

I think that we have all been guilty at times of conflating the two principles of freedom of speech and academic freedom. If I may say so, the Minister does so in his letter of 3 February to me and other noble Lords—and here I thank him for finding a few minutes yesterday to discuss the amendments with me. The letter refers to the impact that the Prevent duty might have on academic freedom of speech. Although the two principles overlap, there is also a clear distinction, which it is important to understand because it is at the heart of why the amendments matter. Here, I have to part company with the noble Lord, Lord Pannick, who is not in his place, when he suggested that one necessarily implies the other.

While I have always counselled my students against relying on Wikipedia, on the principle of “do as I say” rather than “do as I do”, I turn to it now because it provides a helpful working definition of academic freedom. It says that it is,

“the belief that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts (including those that are inconvenient to external political groups or to authorities)”.

It spells out:

“Academic freedom and free speech rights are not coextensive … Academic freedom involves more than speech rights; for example, it includes the right to determine what is taught in the classroom”.

In Committee, I illustrated my worries by citing a discussion of the Charlie Hebdo attack that colleagues instigated, open to all staff and students in my school at Loughborough University. What was at issue here was not so much the freedom of speech of staff and students as the academic freedom to feel safe to instigate such a discussion that might be interpreted as potentially drawing some students towards ideas that conceivably might lead them towards violent terrorism. If the duty to uphold academic freedom as well as freedom of speech was written into the Bill itself, it would, I hope, give some assurance to both lecturers and students that it is still safe to have such controversial discussions. If it is not written in, I fear a chilling effect on both—lecturers playing safe and not instigating debate on such controversial topics related to terrorism, or something like it, because of feeling pressure from university management not to take risks of this kind, and/or students feeling afraid to engage honestly and openly. This would then have the counterproductive effect, which was discussed quite a lot in Committee, of pushing extremist views underground rather than allowing staff and students to discuss them critically. Indeed, a Hansard Society student on placement with me put it very well. He said, “You prevent the peers of the extremists from engaging with them and you cripple their ability to persuade them to abandon extremist views”. Earlier, that point was made very eloquently by the noble Baroness, Lady Warsi, and the noble Lord, Lord Wilson of Dinton, who are not in their places.

I will also illustrate the point with reference to the draft guidance. Paragraph 57, for example, makes it clear that the Home Office expects universities to carry out a risk assessment of where and how their students might be at risk of being drawn into not just violent extremism but non-violent extremism, which, as Universities UK has consistently pointed out, is not generally unlawful. The noble Lord, Lord Macdonald, earlier referred to this bit of the guidance as hopeless. It is easy to see how in a university with risk-averse management—which is probably true of much of university management these days—this could translate into pressure on individual academics not to offer certain courses or lectures or to pursue certain research grant applications, or to discourage certain topics of inquiry by doctoral students.

The Government’s free speech amendment is helpful in relation to the draft guidance in so far as it refers to visiting speakers and events but it does not address the academic freedom issues that are the stuff of everyday academic life as lived and breathed by academics and students. Robert Moretto’s legal advice, to which I referred in our earlier debate, suggests that, as currently drafted, the guidance “seeks to avoid” the kinds of issues raised by the tension between the Prevent duty and existing freedom of speech and academic freedom duties of such concern to noble Lords. It therefore gives the individual academic little clarity. The Government’s amendment goes some way towards providing that clarity but I suggest that if the Minister could go away and come back at Third Reading with something that incorporated these amendments too, it would do the job even better.

Because of the tight timescale with fast-tracking, it has not been possible to have the kind of more in-depth informal discussion that would have been normal between the stages of the Bill. My noble friend Lady Smith of Basildon has already referred to the problems that this has created. I think that the problems have been as much for the Minister and his team as for anyone else. It would be such a shame if, for this practical reason, we lost the opportunity to strengthen the Bill in a way that I believe is totally compatible with the Government’s aims.

If the Minister felt able to go a bit further—again, I appreciate how far he has already moved on this part of the Bill—it would give some reassurance to the academic community who are so anxious about this Bill and who I fear will have been very disappointed at the outcome of the debate on the second group of amendments. I beseech the Minister to be as flexible as possible, but if it really is impossible will he at least commit to ensuring that the guidance states that due regard must be had to the principle of academic freedom as recognised in the Education Reform Act 1988, although this does not address the question of directives, as these amendments do. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I support the noble Baroness, Lady Lister, on Amendments 15A and 15C, to which I have added my name. I thank the Minister for listening and for giving effect through his new amendments to at least part of the arguments which we raised on freedom of speech in the context of the Prevent duty in Part 5. But as the noble Baroness, Lady Lister, has said, there remains the issue of academic freedom, which was discussed in the debate on the earlier group.

Academic freedom was given statutory protection under Section 202 of the Education Reform Act. It imposes a duty on university commissioners to,

“have regard to the need … to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.

This protection is vitally important to academics. There can be no doubt that policies, opinions and even moral values change, and with those changes come the need to challenge existing wisdom and to seek new ways and new processes within the law.

We see that particularly in university teaching and research, where the good academic enthuses his or her students through proper exposure to their research, often in ground-breaking areas where the conventional wisdoms no longer provide the necessary answers. Academics need the freedom to bring into their lecture theatres voices and ideas which may even offend received wisdom and the necessary challenge can then take place. Above all, they need to be sure that in pushing the boundaries for the common good they do not place in peril their livelihoods and their careers.

These amendments are of the utmost importance. Some 540 of the UK’s most senior academics signed a letter in Tuesday’s Guardian warning that the Bill would place an unlawful and unenforceable duty on universities. They call for the Government to take steps to ensure that academic freedom remains uncompromised by efforts to tackle extremism in the UK. I hope that the Minister will accept that Amendments 15A and 15C would enhance the proposed arrangements in respect of the Secretary of State’s guidance and directions to universities in the context of the Prevent duty and would protect academic freedom while not hindering the very proper fight against terrorism.

The amendments would give assurance to academics, young and old, in the work they must do, which can be both brave and challenging, and I would like noble Lords to look at some of that work. It is not easy to challenge what may be received wisdom in communities which have been radicalised, but equally it is not easy to challenge received wisdom in communities where there is an illusion but not the reality of democracy. I am sure noble Lords know where I am going: I am going to Northern Ireland.

In the late 1960s, 1970s and 1980s, the Northern Ireland civil rights movement, and ultimately the universities, played a profoundly important role in challenging the status quo in Northern Ireland using non-violent methods. I wish to refer noble Lords to a description of non-violent methods for this purpose. It states that,

“non-violent extremism … can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.

For decades there were those in the universities and colleges who said that Bloody Sunday was a tragedy and an outrage and that the Government of the United Kingdom, in the publication of the report on the atrocities of Bloody Sunday, had done a terribly wrong thing. That was, if you like, a challenge to democracy as it stood at the time, and those academics were sometimes in a difficult place. There is no doubt that the articulation of the fact that the Bloody Sunday shootings were unlawful may well have been used as a justification for violence by those who subsequently went to violence and extremism of the most violent kind, but that does not mean that the efforts by academics to bring these matters to the attention of society and to have the truth told should have been condemned and prevented because they might have drawn people into terrorism. There is something more fundamental at stake here.

Noble Lords also know of the allegations of wrongdoing on Iraq and our entry into the war in Iraq. You could argue that the identification of what happened that led us into the Iraq conflict and brought us out of it, leaving a serious state of disarray and a huge tragedy behind it, was wrong—we await the report of the Chilcot inquiry—but you could also argue that the challenge of going into the war in Iraq, which many noble Lords opposed, and what happened in Iraq was a justified challenge, and yet it may well have given rise to a justification for extremism even in this country.

The essence of freedom of speech and freedom of expression and academic freedom is that the truth will be protected and cherished, and that people will have the right to say things which even Governments find very difficult to take and which ultimately may be proved to be true.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, it has been an interesting debate. I particularly want to look at Amendments 15A and 15C in the names of the noble Baronesses, Lady Lister, Lady O’Loan, Lady Buscombe and Lady Kennedy. This seems to be very similar to the debate we had earlier, and to the ones we had last week and at Second Reading, about how we define academic freedom and freedom of speech. My impression from listening to what the Minister has had to say in responding and from what I think he intended by his amendment—my noble friend Lady Lister made this point—is that this is about looking at those things together, as a whole. The noble Lord, Lord Pannick, I think, made the point that he took the Minister’s amendment—Amendment 15D—to incorporate academic freedom as well as freedom of speech. So our discussion here, in some ways, is not about the principle—I think the Minister has made clear his view on the principle of this—but about making sure that the detailed legislation is correct.

I must say that I do not agree with the noble Baroness, Lady O’Loan, about what the consequences of that could be. I do not think it would prevent a discussion of the origins of the Troubles in Northern Ireland or that it would have those dire consequences. However, the perception among some academics that it may do is quite worrying.

[Baroness O'Loan]

If a university has a group of people who want to hold a meeting, or if an academic wants to bring a speaker in, and the purpose is to challenge vociferously something which the Government have done, could that not conceivably constitute non-violent extremism? Could the university not, under the directions to be issued by the Secretary of State, find itself in a position where it has to determine whether or not it allowed that meeting to take place? That is all I was saying.

[Baroness Smith of Basildon]

It is quite a leap to say that a challenge to the Government automatically becomes something extreme. We are challenging the Government here today in terms of the debate we are having but, from what the Minister has been saying during this debate, that challenge to the Government is not being seen as extremism at any point. However, my noble friend Lady Lister made the point about the perception among academics of their freedom being curtailed. My noble friend was very clear in her comments about what she was seeking: to be absolutely clear in the Bill, or if need be in guidance, about that academic freedom and about the need, as quoted in the Education Reform Act 1988,

“to ensure that academic staff have freedom within the law”—

as was said earlier, all freedom of speech is qualified within the law—

“to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

I do not think, from what the Minister is saying, that he wants in any way to curtail that. This seems to be largely a technical point and one that, I hope, can be easily resolved. I hope he will address it in comments that he makes today. Perhaps he will be able to take it away and reflect on it or, indeed, ensure that it will be in guidance. However, some reflection on this point, which seems to me to be entirely compatible with his Amendment 15D, would be very helpful.

--- Later in debate ---

[Baroness Hamwee]

I welcome the government amendments. In my clumsy way, I tried to deal with the issues raised by the independent reviewer about his remit and the new board at the last stage. The Minister referred to two of the five issues that the independent reviewer sought to cover, which I tried to cover at that last stage. I am flattered that he suggested that my Amendment 16A comes from my own interest and concerns about the Justice and Security Act and the disclosure of sensitive material, closed material proceedings, special advocates and all the rest of it, as well as my concerns about immigration and nationality law. I indeed have those concerns but I cannot say that this is a self-started amendment. I was asked to pursue the subject. The independent reviewer has made clear that he wants this. He does not seek to go beyond the counterterrorism area. I hope that the amendment is clear on that. His blog has already been quoted and I shall quote from it too. He wrote:

“It is however a shame that the Reviewer was not also given the opportunity to review the operation of other powers, including immigration powers, to the extent that they are used for counter-terrorism purposes. I have no evidence whatsoever that any of those powers is used in an improper manner. But in such a sensitive and secret area, it is as well to have the assurance that only independent review can provide”.

He continues by quoting from his report of last July, which said:

“More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s ‘dirty work’”.

I suggest my amendment because the independent reviewer has a holistic approach to this whole area. Individual case oversight and different reviewers, to which my noble friend has referred, while reassuring, do not meet the points that the reviewer has in his mind. He clearly looks at how the whole of counterterrorism legislation is operating and has ranged beyond the relatively narrow legislative remit that he has had in the past. Previously, I have heard him say that he is not seeking a turf war with other reviewers but, equally, he does not see these things in silos, which is why this amendment has come forward. I beg to move.

[Baroness O'Loan]

My Lords, I support the noble Baroness, Lady Hamwee. This amendment derives from the work of the Joint Committee on Human Rights in scrutinising the Bill. We took evidence from a number of people, including the independent reviewer. It was his recommendation about the major gaps in his function which should be filled which led to the creation of this amendment. I did not put my name to it to lead it because, in my innocence, I thought that there was a possibility that we might get to it earlier in the evening when I would be engaged in a committee. I have much to learn about your Lordships’ House.

As the noble Lord, Lord Ashton, rightly says, the independent reviewer had identified these major gaps. The Government have also accepted and recognised those gaps. I think that the independent reviewer has been looking at the whole architecture of counterterrorist legislation and has tried to ensure that there is—I do not like to use the word holistic—a complete, effective and standard-based approach to the review, which I do not think is provided by individual case-by-case judicial proceedings.

The opportunity here is simple and it would not add a great deal to the work of the independent reviewer were the Government to consider again this amendment. As the Minister has said, the office of the Independent Reviewer of Terrorism Legislation is very highly respected in the country. I have worked very closely with some of the predecessors of David Anderson QC and I know how very significant that work is.

We are just asking for two issues to be moved into the remit of the independent reviewer under this amendment. As the noble Baroness, Lady Hamwee, has said, the first concerns Part 2 of the Justice and Security Act 2013, which deals with closed material procedures. Those procedures apply in litigation, which very often is litigation that is seeking compensation in claims against the Government and other authorities, and where there is a problem that there is material the disclosure of which will be damaging to the interests of national security.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I thank all noble Lords who have spoken. They were broadly in support—although I fear that we may not be able to persuade the noble Lord, Lord Butler, that this is a good idea. However, I will come to what the independent reviewer thinks of it later.

One thing that is important to say right at the beginning will answer, to a certain extent, the points made by my noble friend Lord Thomas, the noble Lord, Lord Butler, and some other noble Lords as well, about the information that the board itself will be able to see. We think that it is important that any individuals appointed to the board are provided with an appropriate level of security clearance; so the independent reviewer is cleared to see classified information—and, if necessary, the same will apply to members of the board. Of course, the independent reviewer has a great deal of influence on who is appointed to the board. The Home Secretary will work on his recommendation, although of course it is ultimately the Home Secretary’s decision. I think that covers most of the points made by my noble friend Lord Thomas. I am grateful for his support on that.

The noble Baroness, Lady Smith, mentioned what she said at Third Reading about communities—sorry, I meant what she said in Committee. Third Reading is on Monday; we go from week to week in no time at all. The present reviewer sees that issue. On the point about the board working under his direction and control, I do not see any reason why that should change. He will be able to use the benefits of the members of the board to continue with those areas that he wants to focus on. One reason we have removed the annual necessity for reviews, with the exception of the Terrorism Act, is that the independent reviewer will now be able to conduct thematic reviews instead of just purely linking them to individual bits of legislation. Again, I take the point about the relationships that he has built up over the years—including with foreign countries. As to him being chairman of the board and using board members as support, I do not see any reason why that should change, either.

There was talk about whether the secretariat would supply support and whether the members of the board will be there to provide advice or work for him. I think that both are the case. They will work under his direction and control, and he will also be able to appoint people who have particular skills in different areas that he can draw on. For example, he might be able to appoint someone who is—this was nearer to his original idea—a junior barrister who is appropriately security cleared. However, I take the point that one might not describe that in common parlance as a board, but the name is what we have. Several noble Lords talked about the label on the tin representing what is inside. On that subject, privacy and civil liberties are obviously important in connection with terrorism legislation. If you open the tin which is so labelled and see inside, “Chaired by and under the direction and control of the Independent Reviewer of Terrorism Legislation”, you would get a pretty good idea of what the board is about.

Moving on to my noble friends Lady Hamwee and Lady Ludford, I fear we will not be able to go as far as they want. We extended the remit of the independent reviewer and think that it is right to draw limits on that. I agree that a one-off review is not the same as a review by the Independent Reviewer of Terrorism Legislation. Equally, judicial oversight is not the same, but it is oversight and reassurance for each individual case on those closed material proceedings. It has value. At the moment, we have drawn the line where we have, for the reasons I said: mainly because of overlap and duplication. We think that the way we have done it at the moment concentrates on those—

[Baroness O'Loan]

How can there be duplication if the Government were to include Part 2 of the Act and appoint the independent reviewer to review it? There is nobody currently reviewing that legislation and there will not be for five years, so how can that be duplication? It will not avoid duplication but simply prevent review.

Counter-Terrorism and Security Bill

Baroness O'Loan Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 14, to which I have added my name. I am grateful to the noble and learned Lord, Lord Hope, for combining his original amendment with the amendment by the Joint Committee on Human Rights. Once again, I declare an interest as emeritus professor at Loughborough University.

In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving “from co-operation to co-option”, as the noble Baroness, Lady Sharp, put it. Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it.

Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector. However, I am a realist, and, given the Minister’s welcome commitment to reflect and bring forward an amendment, which he has done, in a spirit of compromise, I have not retabled the JCHR amendment designed to exclude HE institutions from the duty altogether, or to provide a narrower exemption for their academic functions.

We all agree on the value of academic freedom and freedom of speech. As yesterday’s letter to the Guardian, signed by 524 professors—I can tell the House that trying to organise 524 professors is like herding cats, so to get them all to sign was quite an achievement—put it:

“One of the purposes of post-compulsory education is to foster critical thinking in staff, students and society more widely. Our universities and colleges are centres for debate and open discussion, where received wisdom can be challenged and controversial ideas put forward in the spirit of academic endeavour”.

Since last week’s debate, I have received a copy of a legal opinion provided for the University and College Union—my former union—by Robert Moretto QC, who has advised government departments, including the Home Office, in the past. I pay tribute to UCU for showing leadership on this matter. The opinion states:

“It is difficult in my view to square the Prevent duty with academic freedom enshrined in, for example, the Education (No. 2) Act 1986”,

and that,

“the Prevent duty as set out in the Draft Guidance appears to envisage that decisions may be taken”,

which prevent lawful speech.

The opinion also raises questions about possible incompatibility with the Human Rights Act in particular situations. This opinion lends weight to the JCHR’s concerns that the legal uncertainty created by the new duty in relation to existing duties concerning academic freedom and freedom of speech will have a seriously inhibiting effect on bona fide academic debate.

This takes us to the nub of what we have to decide today. While I very much welcome the fact that the Minister has tabled an amendment which makes explicit reference to the freedom of speech duty in the Education (No. 2) Act, it does not provide the clarity that HE institutions need. Here I am afraid that I part company with the noble and learned Lord, Lord Hope. An obligation to have regard is a familiar device of the legislative drafter when faced with duties which might conflict in practice. We see it in Sections 12 and 13 of the Human Rights Act, for example. The problem is that it still means that the Bill says nothing about the hierarchy of duties, and it leaves it to other things to influence decisions where the duties come into conflict. In effect, this means the Home Secretary’s guidance.

I note that the amendment in the names of the noble Lords, Lord Macdonald and Lord Pannick, refers to “due regard”, as does the new Prevent duty in Clause 25(1). There was an exchange a moment ago about “particular regard” and “due regard”, and I have to admit that I did not understand the Minister’s explanation of where he saw the difference. I am not quite sure why the Government have chosen “particular regard” in this instance as opposed to “due regard”. I think that the Minister said that he regards “particular regard” as stronger than “due regard”. It would be helpful if he could confirm that later, because my understanding is that “due regard” carries greater legal clarity because of the case law interpreting the same phrase in the public sector equality duty. If he can confirm that by using “particular regard” he wants it to be stronger than “due regard”, I would be happy with that.

Amendment 14 provides the necessary clarity by making it explicit that the new Prevent duty is subject to the existing freedom of speech duty. In Committee, the Minister said there are good reasons why the freedom of speech duty should not be elevated above the Prevent duty, principally that freedom of speech is not open-ended or absolute. Of course the existing freedom of speech duty is subservient to the laws the Minister listed in Committee, including criminal law on the use of threatening words or inviting support for a proscribed terrorist organisation, and the civil law on defamation. In other words, there is already a duty to secure freedom of speech within the law.

This amendment would not change that, but it would make it clear that the Prevent duty could not be used to prevent lawful speech, and the importance of protecting lawful speech is underlined by Universities UK in its response to the draft guidance. I cannot see why the Government should resist that if they genuinely believe in protecting freedom of speech and academic freedom in our universities. Universities are looking for clarity and an explicit statement in law that in the context of higher education, freedom of speech and academic freedom within the law carry greater weight then the Prevent duty. The amendment has the support of Universities UK, UCU and million+.

We have an important decision to make today. Universities and other institutions are looking to us to provide them with the clarity they need to operate the new Prevent duty in a way that does not have a chilling effect on academic freedom. When he has heard the debate, and in light of the strength of feeling expressed in Committee, I hope that the Minister might be prevailed upon to reflect further before Third Reading, even though I accept that he has already moved some way from the original position of the Government—and once more I thank him for that.

[Baroness O'Loan (CB)]

My Lords, I speak to Amendment 14 in the name of the noble and learned Lord, Lord Hope of Craighead. I have put my name to this amendment, which is designed to give absolute clarity to the continued protection under the law of freedom of speech in our universities, something which the Joint Committee on Human Rights strongly recommended in its legislative scrutiny report. This amendment is very simple. The noble Baroness, Lady Lister, has spoken clearly on its effect. It locates the statutory duty to protect freedom of speech squarely in Clause 25. It gives clarity to the fact that the new statutory Prevent duty, subject to the existing obligations of universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure freedom of speech within the law, is secured for members, students and employees of the establishment and for visiting speakers.

I thank the Minister for his movement and recognition of some of what was said in Committee. However, throughout his amendment he adverts to the duty in relation to freedom of speech in universities which is imposed by Section 43(1) of the Education (No. 2) Act 1986, in terms both of the relationship between the new duty and the duties imposed under that Act on the universities, and of making the Secretary of State have “particular regard” to that duty in any guidance or directions issued. The difficulty I have is that surely universities must not only have particular regard but also comply with their obligations under Section 43. Therefore if they are trying to have due regard to a duty to prevent people being drawn into terrorism at the same time as having particular regard to something which they must do anyway, there is a conflict for them in the hierarchy, to which the noble Baroness, Lady Lister, referred.

With respect, the amendment tabled by the Minister, Amendment 15D, is not as clear or effective as Amendment 14. I urge him to think very carefully about its limitations, and to accept the very real concerns articulated by so many leading academics and university vice-chancellors and chancellors that this Bill will seriously affect freedom of speech in the country. It will also affect our international reputation as the guardians of freedom of speech. The Prevent duty, as articulated in this context, would be a very blunt instrument. It will not prevent terrorists from using our universities as breeding and grooming grounds. That is best done by using more sophisticated means to identify and infiltrate groups who seek to recruit to terrorism through coffee shops, bars and things like that. We have a real battle to fight, but we must be cautious in the processes that we use so as to secure maximum impact in the fight, not to generate further unnecessary problems.

--- Later in debate ---

[Lord Bates]

It could be. I do not know what was in their minds.

The pressure and stipulation that are contained even in the consultation document issued in December, which we went out to consultation on—sadly, I have then gone and pre-empted the consultation by assuring your Lordships that certain sections of it would not apply—are a much lighter touch. There is no question, none at all, of the Government telling people who to have on their campus, in their university or in their college to speak. All we ask is that they have systems and procedures in place by which they ensure that the people who come on to their campus—

[Baroness O'Loan]

I thank the Minister for giving way. Surely it is not the case that all the Government are asking is that they have some procedures; surely it is the case that under the Bill the Secretary of State will have the power to direct universities as to what they do, and therefore it is that power that makes a difference.

[Lord Bates]

On that element, the noble Baroness is correct; there is a power there. If you make it a statutory duty, there needs to be some element of saying, “Well, so what if they brush aside their statutory duty?”. What if they brushed aside their statutory duty on a whole range of things? We have talked about that: the Public Order Act 1986; the Protection from Harassment Act 1997; the Terrorism Act 2006, which talks about inviting support for a proscribed organisation or punishing statements encouraging terrorism or disseminating terrorist material; and the Public Order Act 1988, or “breach of the peace” law—these are all Acts that contain a duty. What if organisations fail to observe the health and safety Act, and an inspector comes and says—I realise that I have tested the House.