Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Baroness Brinton Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome these regulations and I am grateful to the Minister for his explanation. He may remember that when we were debating the Bill, which has now become the 2015 Act, I tabled a number of amendments to try to advance the Scottish position, which was difficult because no Scottish institutions were yet mentioned in the schedule. That meant that I felt a little inhibited in pressing the points that needed to be attended to.

I am particularly grateful to the Minister and those who have been advising him for the way the Scottish matters have been dealt with in Regulations 4 and 5. Regulation 4 deals with a technical point which I had thought about raising but it seemed a little too fussy at the time; namely, that a mandatory order, which was being provided for in the Bill and, subject to this amendment, is still in the Act, is not available as a means of enforcing a court’s orders in Scotland. As Regulation 4 correctly puts it, a proper mechanism is,

“by an order for specific implement”.

Had it been necessary to do so, I would have moved that amendment myself. I did not trouble to because I was quite sure that someone would pick it up if the need arose and I am very glad that that has been attended to.

It is pleasing to see how the definition of the duty to ensure freedom of speech has been expressed in Regulation 5, particularly as it mentions visiting speakers as well as,

“members, students and employees of the institution”.

The wording of that provision, which chimes very well with what I and others were attempting to achieve in the debates on the Bill, is very welcome.

Finally, the Scottish guidance is significantly lighter-handed than the English. In particular, the way higher education and further education institutions are dealt with is significantly lighter because a good deal more trust exists between the Government in Scotland and the institutions with which they are dealing. However, looking at paragraph 60 in the Scottish guidance, it occurred to me that further guidance was being anticipated to deal specifically with the problem of visiting speakers. The Minister mentioned that in his summary. I look forward to seeing what comes out of it, but I hope very much that those who are framing the guidance in Scotland will continue to deal with this with a light-touch mechanism. They are dealing with people of good will who know exactly what they are seeking to achieve and who do not need very much detail—just enough to point the way the universities should go in setting out their mechanisms. I am quite certain they will follow the guidance if it follows the kind of pattern we see in the guidance before us today.

For all these reasons, I am extremely grateful to the Minister and those supporting him for what has been achieved in these regulations.

[Baroness Brinton (LD)]

My Lords, I follow the comments just made by the noble and learned Lord, Lord Hope, by saying that one of the benefits of both new sets of guidance, for England and Wales and for Scotland, is that the tone is very different. That is enormously helpful. I am also very grateful for my noble friend’s comments about the final decision on external speakers being made by the next Government.

However, I would ask the Minister for absolute clarification on one point. I know that there have been discussions outside your Lordships’ House following the consultation on exactly what would happen if agreement were not reached on the thorny issue of external speakers. Could my noble friend give reassurance that the guidance to higher and further education would be withdrawn completely should such an agreement not be reached? Clearly, the reference within the guidance makes it absolutely clear that this is one of the Government’s major concerns.

I would be very grateful as well if our thanks could be passed back to the Minister’s civil servants for the hard work involved in accepting the many thorns in the flesh that your Lordships’ House has provided in the detailed discussions of this, especially given that the Commons did not have the chance to talk about the detail of the guidance when it considered the matter.

[Baroness Lister of Burtersett (Lab)]

My Lords, I welcome the opportunity to debate the guidance and welcome a number of the additions to the original draft, notably: the addition of the reference to the public sector equality duty in the Equality Act in paragraph 12; the cross-reference to “other relevant safeguarding guidance” in paragraph 40; and, in particular, the expectation in paragraph 111 that higher education institutions will,

“seek to engage and consult students on their plans for implementing the duty”.

The role of students—listening to what students have to say—is really important, so I welcome that. I am sure that the inclusion of a definition of “Having due regard” in the glossary will be helpful to all those non-lawyers in the higher education sector.

As during our discussion of the Bill, I will focus my remarks on higher education. Here, as the Minister has acknowledged, there is a glaring omission, with the reference to the issue at a later date of,

“guidance … on the management of external speakers and events”,

including, I am pleased to say, on how the Prevent duty will interact with,

“existing duties to secure freedom of speech and have regard to the importance of academic freedom”,

which, thanks to the deliberations in your Lordships’ House and to the Minister’s willingness to listen, were written into the legislation.

Although I understand the reason for the omission, having read about it in the press—I do not want to intrude into private debates on this—it is regrettable that the most contentious part of the draft guidance when it was discussed in your Lordships’ House is not available for your Lordships to debate today, as opposed to what may happen. I very much endorse the plea made by the noble Baroness, Lady Brinton, that, if agreement is not possible, the whole thing should be withdrawn. I also very much urge on the Minister, or any future Minister, that in the time between now and this being brought forward there should be proper engagement and consultation with the higher education sector to try to reach agreement on something that will be workable, unlike the original draft.

Concerns also remain about the position of student unions and societies. The guidance, I am glad to say, now acknowledges that student unions are already,

“subject to charity laws and regulations, including those that relating to preventing terrorism”.

But the NUS states:

“However, the continued emphasis on student unions’ compliance with their institutions’ policies remains worrying and indicates a misunderstanding of the autonomy of students’ unions which could lead to confusion and conflict between institutions and students’ unions”.

The NUS also commends the guidance for Scotland as achieving,

“a better balance in this respect”,

with a greater emphasis on co-operation with, rather than control by, higher education institutions. Can the Minister clarify the Government’s understanding of the implications of student unions’ autonomy in this area and explain why the Scottish guidance differs from that for England and Wales? I cannot see what the particular circumstances of Scotland are to explain this difference.

The other most contentious element in the original draft guidance was the very broad definition of extremism as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

Perhaps even more worrying was the inclusion of “non-violent extremism”. The Joint Committee on Human Rights—again, I declare my interest as a member—emphasised its concerns about such vague terms in its legislative scrutiny report and warned:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

UCU, my former trade union, has expressed similar concerns around the revised guidance. So-called fundamental British values, it says, include values and concepts which are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.

According to the summary of responses to the consultation, this issue attracted some comment, including concerns about that very vagueness. Yet the revised guidance does not appear to have attempted to address these concerns. Can the Minister explain why not? I do not want to make too much of it but can he also explain why the Scottish guidance does not make reference to “non-violent extremism” in the higher education section? If it is not necessary to repeat the earlier general reference there, why is it necessary to do so in the guidance for England and Wales?

Turning to training, the guidance requires a willingness to undertake training of what it calls “relevant staff”. It says:

“We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity. Such staff should have sufficient training to be able to recognise vulnerability to being drawn into terrorism”.

The guidance also suggests:

“Changes in behaviour and outlook may be visible to staff”.

The Minister, James Brokenshire, when he gave oral evidence to the JCHR, said:

“There might be someone whom a lecturer has concerns about, not simply because of one particular lively debate, but because they are becoming withdrawn and reserved, and perhaps showing other personality traits”.

All this suggests that we are talking about staff who are in close contact with students—for example, lecturers or personal tutors—who will need to be trained as they are presumably the most likely to pick up on such vulnerability or changes on a day-to-day basis.

I was surprised that the impact assessment—if I have read it correctly; perhaps I have made a mistake—assumes that 15 people in every HE and FE institution will receive Prevent awareness training once every two years at a cost of £46,500. Who does the Minister envisage that these 15 or so people will be? What positions will they hold? Clearly, they cannot be at the chalk—or what is now the whiteboard—face of teaching. I am not arguing for mass surveillance of students by lecturers but there seems to be an inconsistency here that could leave teaching staff exposed if they are expected to play an active role in preventing students being drawn into terrorism without being given the training that the guidance itself acknowledges is necessary for people to be able to fulfil this role. Again, I would be grateful for clarification, as it may be that I have misread the impact assessment.

Finally, is the Minister now in a position to clarify HEFCE’s role, as that has not been spelled out in the guidance? Here, UCU repeats its concerns about HEFCE’s ability to regulate institutions with which it has no formal funding relationship. Has this now been resolved? What steps will be taken to prepare HEFCE for this new role?

For all the very welcome improvements that were made to the Bill during its passage through your Lordships’ House and the improvements that have been made to the guidance, the guidance still raises a number of very real worries. This is all the more so in the light of the recent newspaper report about Imperial College cancelling a booking for an international conference on Palestine at the last minute because of what speakers might say. If this is true—I have not been able to check the newspaper report—it suggests that the legislation is already having the very chilling effect that many Members of your Lordships’ House warned about when the legislation was going through. I am not convinced that the guidance as it stands is sufficiently robust to guard against such a chilling effect.