The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely

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right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.

I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,

“is in no way designed to cut across the importance of free and open debate”,

particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.

Lord Hope of Craighead (CB): My Lords, I entirely support the points that have been made by all noble Lords who have spoken in favour of these amendments. I have a rather particular point to make about wording, which I do as a former chancellor of the University of Strathclyde, which of course is in Scotland.

Clause 41(1) makes it clear that Part 5 of the Bill applies to Scotland as well as to England and Wales—it does not apply to Northern Ireland, as the noble Baroness, Lady O’Loan, said. However, this gives rise to a problem about drafting. One has to be absolutely sure when one refers to legislation—as, for example, Amendment 105 does, along with Amendment 108 and others—that the legislation referred to applies to Scotland as well as to England and Wales. The problem with Amendment 105—which I entirely support in principle—is that Section 43(1) of the Education (No. 2) Act 1986 applies only to England and Wales, and does not apply to Scotland. The right to freedom of speech, and all the points that have been made in favour of the exercise of freedom of speech and about the difficulties of enforcing measures of the kind that we are talking about and so on and so forth, have just as much power and effect north of the border as they do in England and Wales. If Amendment 105 were to be agreed with the form of words which it has at the moment, it would create difficulties north of the border. That could be cured very easily by simply taking out the reference to,

“the duty in section 43(1)”,

of the 1986 Act, and substituting the words “the need to ensure that freedom of speech is maintained”. Freedom of speech in Scotland is deeply ingrained in the law of the country by, for example, Article 10 of the European Convention on Human Rights. One of the features of the 1986 Act is that it was passed some years before the Human Rights Act 1998 was enacted.

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Nowadays, you look to the convention rights in the Human Rights Act to see whether you have a right that you wish to assert. It is certainly true that Section 43 goes rather further and is quite detailed about the nature of the duty, but I have searched as best I can through the legislation in Scotland and, so far as I can see, there is no equivalent provision in either the education Acts or the university Acts in Scotland, which cover the same field.

6.15 pm

The problem we have is that we are trying to deal in this chapter with something that is devolved in some respects to Scotland: all the education aspects of the chapter are essentially dependent on Scottish legislation as a devolved matter, but the subject matter of the Bill as a whole, which is a Home Office measure, is reserved. One has to draft things—as I believe Part 5 does at the moment—in such a way that it will apply with equal force and as effectively in Scotland as it does in England and Wales. In a way, I am addressing my remarks as much to the framers of the amendments as I am to the Minister, who has been nodding very kindly throughout what I have been saying because, I think, he entirely grasps my point. We are legislating here for both jurisdictions and we must be sure that the legislation covers them both equally if we are to make the chapter effective.

The situation is slightly unreal because, as the guidance points out, and as we can see ourselves, no Scottish authorities are yet listed in Schedule 3. However, the guidance also states in its introduction:

“It is the hope and intention of the UK Government that Scottish authorities”—

I presume universities in particular—“will be included”. Although they are not listed at the moment, the point is one which could be of real significance. I hope that at some stage when these amendments are looked at again, and possibly brought forward on Report, they would apply equally in Scotland as they certainly would in England and Wales.

Baroness Manningham-Buller (CB): My Lords, I start by declaring an interest as the chair of the Court and Council of Imperial College and by agreeing with the very clear concerns expressed by my noble friend Lord Pannick about this whole area. The widening circles of support for this pernicious ideology are a concern for us all. I also pick up the question put by the noble Baroness, Lady Warsi, to my noble friend Lord Evans of Weardale, in his absence, about there being many routes to terrorism. I am out of date on this subject, but there is no one, single route by which a young man or woman turns up as a terrorist—there are many different routes.

I therefore fully understand the Government’s concern in this area and their wish to address it. However, I also support the very powerful remarks made by the noble Lord, Lord Macdonald of River Glaven, with which I agree. I am afraid that it is a profound irony that we are seeking to protect our values against this pernicious ideology by trying to bar views that are described, too vaguely, as “non-violent” extremist but which fall short of incitement to violence or to racial or ethnic hatred—which is already forbidden by law—or

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indeed of the other legislative constraints on universities, which other Members of the Committee have mentioned. This is potentially in conflict with the university’s existing obligations to protect free speech, something we are all concerned about. The voicing of these opinions, some of which have been mentioned, such as those against the rule of law, democracy, civil society, women’s rights and so on, is of course often offensive and insulting to people. But we have been reminded only recently that we have a right to insult and we should avoid double standards here.

These opinions need to be exposed, challenged and countered. As the Minister said when referring to universities in his very helpful letter yesterday, to which my noble friend Lord Pannick extensively referred, they are,

“one of our most important arenas for challenging extremist views and ideologies”.

Quite so, and it is safer to challenge them in a university, if they arise there, although I agree with the noble Baroness, Lady Kennedy of The Shaws, that it is not all happening in universities. Much of it is happening in bedrooms, online and so on.

So this is difficult. My instincts are very often in support of the Government on these sorts of subjects, knowing that countering terrorism is not straightforward. However, the doubts that I expressed at Second Reading about putting Prevent, whatever its importance, on a statutory footing, in particular with regard to universities, have not been assuaged by anything that I have heard today. This work is going on now, and we really need a proper review of what has been achieved so far that is evidence-based. We have heard statistics, but we have not heard what they really mean. Prevent needs to be conducted with sensitivity, proportionality and care, and I fear that making it statutory in universities will jeopardise all three.

Lord Hennessy of Nympsfield (CB): My Lords, I shall say a few short words in support of this group of amendments. I pay tribute to the Minister for the courtesy and care that he has brought to the conversations and for the correspondence that he has shared with several of your Lordships.

I declare as interests my professorship at Queen Mary University of London and my membership of the Royal United Services Institute Independent Surveillance Review. I have not been reassured about the practicalities of what the Government are proposing with regard to universities, on which I spoke at Second Reading, and I share the anxiety of many other noble Lords about freedom of speech within a university’s walls. I listened carefully to the Government’s case, but I am not persuaded that we need to shift from a voluntary approach to compulsion. By all means, strive to bring those universities which are laggardly up to the standards of the best; but we need to keep sharp what we already have—the scalpel of quiet, bespoke relationships between the authorities and the universities, rather than the mallet of legislation, however laudable the Government’s motivations in furthering the Prevent strategy.

I have to admit that the prospect of certain vice-chancellors being in the dock for contempt has a certain delicious attraction to it—although, I hasten

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to say, not my great friend and boss, the principal of Queen Mary University of London, Simon Gaskell. Universities must be very wary of overpleading that they are a special case—they genuinely must. None the less, the statutory road is not the path to take, as mapped out in Part 5 of the Bill. The defence of the realm is the first duty of the state—the first call upon the state—but here I think the state is in danger of overreaching and taking a step too far, even given the magnitude of the very real terrorist threats that we are facing.

Baroness Sharp of Guildford: My Lords, my name is attached to quite a number of the amendments in this group. I am not going to repeat the arguments that have been put very ably by other noble Lords. I merely add that it is vital that there is the opportunity for open debate and discussion of radical and extremist views in our universities and in other educational institutions in this country so that they can be challenged and the views refuted. It seems to me that the great danger in shutting down this debate is that it goes underground. It goes to the internet and social media, which we know are of vital importance in influencing those who are susceptible to these sorts of views. That issue is just as important for schools, further education colleges and sixth-form colleges with 15, 16 and 17 year- olds. If universities were to be excluded from this legislation, serious consideration would need to be given to the exclusion of other educational institutions as well.

Lord Renfrew of Kaimsthorn (Con): My Lords, this has been a radical debate in the profound sense of getting to the roots of things. We have been talking about the open society and its enemies, and the Government have rightly identified the enemies of the open society as armed terrorists. But who are the friends of the open society? Clearly, we are speaking about free speech and academic freedom. I think that the Government, in seeking to constrain the enemies of the open society, are wrong if they take steps that constrain free speech and academic debate. The debate this evening has very much highlighted those difficulties.

The noble Baroness, Lady Kennedy of The Shaws, spoke of the difficulties of administrating these procedures if they were passed into law. They would indeed be difficult to administer in a university. I fear that they would not be very well administered in most universities if universities were invited to apply them, because the sort of bureaucracy that can develop in a university would be ill suited to the task. So I feel very strongly that another approach has to be found, and there is a very strong case for excepting universities, as has been argued so well. I declare an interest as a former master of Jesus College, Cambridge, and a former professor. Universities are places where free speech should flourish and should be constrained as little as possible.

This year is the 200th anniversary of the Cambridge Union Society. That may be a small matter in these grand considerations, but I cannot see how a society like the Cambridge Union Society could flourish with the constraints applied to it in the draft guidance, some of which were mentioned by my noble friend Lord Macdonald of River Glaven. Therefore, I very

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much support the amendment and I hope that the Government will give it very serious consideration, because very high principles are at stake and, indeed, at risk.

Lord Elystan-Morgan (CB): My Lords, I shall speak briefly to Amendment 104. In so doing, I declare a past interest, as I was for 10 years a president of a Welsh university and the chairman of its management council.

I shall deal first with a technical constitutional point that is not a thousand miles away from the matter raised by the noble and learned Lord, Lord Hope of Craighead. Universities and higher education in general in Scotland and Wales are, of course, devolved functions. Therefore, one could easily react in a rather crude and barbaric way and say, “This is not a matter for Westminster to intervene in”—although I certainly do not take up that argument.

Nevertheless, one should bear in mind that there are conventions in existence in the relationship between this House and the devolved assemblies. This is the Mother of Parliaments, and it stands to reason that it has the sovereign authority to cancel or amend in any way that it wishes any area of devolution that it has endowed upon it. But it will not do that and does not intend doing that wrongly. We have the Sewel convention in Scotland and a similar convention in Wales to the effect that such interference will not take place save in the most unusual—if not unique—circumstances. It would take place when either the devolved assembly requests that it should happen—the point essentially raised in relation to Section 43 of the 1986 Act by the noble and learned Lord, Lord Hope—or there is a situation that is utterly unique. One can imagine one or two where there would be justification for such action.

It is clear to me that another principle overwhelms that; for although higher education has been devolved to Scotland and Wales, counterterrorism has not. That surely must take precedence in every way because it involves the security and, at the end of the day, the very existence of the state itself. I raise the matter not to show off any understanding of constitutional matters but to raise a point in relation to what should happen in this unique situation where we have a devolved function being clearly brought under the microscope of Westminster. The Bill accommodates that possibility very clearly in Clauses 23 and 25. In Clause 23, it is in relation to adding an authority to the list in Schedule 3; in Clause 25, it is in relation to giving a direction. However, the Bill states in each case that there has to be consultation between the Home Secretary and Welsh Ministers, and that is the point that I seek to raise.

6.30 pm

Such words have appeared in many Acts of Parliament during the past 15 or 20 years. Consultation is a very wide concept. At the one extreme, it might mean nothing more than a peremptory notice, utterly without discussion and merely for information; on the other hand, it can mean a soul-searching discussion where people talk to each other as if they are equals; and, in between, one has all manner of possibilities. In the main, consultation has not been on a very equal basis between Westminster and Cardiff—I do not know

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what the situation is in relation to Scotland and, if I did, it would not be a matter for me to comment on. In the past, much could have been very properly discussed which has been passed over in a very cavalier way. What I ask is that there should be an exceptional approach to consultation in this wholly exceptional case. I do not think that it is asking too much. Either by writing it into the body of the Bill or by some solemn undertaking, there should be some understanding that consultation in these contexts has to be real consultation and nothing less.

I turn briefly to the merit of the amendment. What is very strange is not that one should be arguing for the exclusion of universities—by universities, I mean as well other institutions in the same line as mentioned by the noble Baroness, Lady Sharp—but that they were included in the first instance. No cogent, reasonable case has been made out for that. The Government say, “Ah, well, we have quite some evidence that many people who have been radicalised and have gone abroad to join al-Qaeda and other similar bodies have been at some time or another in universities”. I would be very grateful if one could analyse that statement rather more carefully.

A very high percentage of young people go to university. That has been the policy of government for some years. Are the Government saying that the percentage of persons who are identified as having gone abroad in that way is higher than the average for the community as a whole? In other words, do they point the finger at universities as such, as opposed to pointing a finger at young people? We know that to a large extent the recruitment that we are talking about seems unfortunately to be the prerogative of young people.

On the general arguments, we have had a magisterial condemnation—sometimes with great restraint, as in the case of the noble Lord, Lord Pannick, whose approach to the whole problem I admire—of the very principle of government seeking in some way either to diminish the independence of universities or to restrain freedom of speech, or, as may well be more relevant in this context, to give the impression that that might be what they intend. I accept that the Government’s intentions are good, but they have to be judged by exactly what the consequences will be.

I ask, first, therefore that the Government take heed of the two sections that we have heard quoted at length and accurately: Section 43 of the Education (No.2) Act 1986, which guarantees freedom of speech, and Section 202 of the Education Reform Act 1988, which guarantees safety of employment for people who involve themselves in teaching rather out-of-mainline subjects and ideas to young people. It simply will not do to leave the matter as it is. The wording of those two statutes is so specific and so deliberate that they simply cannot stand side by side with the very tenor of Part 5 of the Bill. If it becomes law, an inevitable conflict will have to be resolved. In some way, those provisions must be dovetailed with the purposes of Part 5.

Secondly, it is very dangerous to allow the Home Secretary from time to time to issue directions. Those directions lead ultimately to orders which are executed

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by courts. Leaving the matter like that would inevitably allow the Home Secretary to write his own law circumventing Parliament. I am sure that there is a better way of doing that.

Thirdly, the way in which the system operates seems to have been misjoined. The end product envisaged in Part 5 is that the Home Secretary should take drastic measures and issue a mandatory order. He issues a mandatory order after he has issued directions, but he issues such an order not because a direction has been broken but because there has been a lapse under Clause 21. The two things quite often might be exactly the same, but one does not have to exercise great imagination to consider that you could have no breach whatever of the directions but a blatant breach of Clause 21. I am sure that the matter will be attended to in due course.

Lord Hannay of Chiswick (CB): My Lords, I shall certainly not repeat what has been said—I am sorry; has the noble Lord not finished? I thought that he had.

Lord Elystan-Morgan: My Lords, I have a little to go.

Perhaps I may end in this way. The motivations of the Government are probably very decent, proper and understandable, but the way in which they are going about them is extremely naive and in many respects barbaric. Let us imagine that, before a person can speak at a university, notice for 14 days has to be given. A sketch of the content of that speech has to be produced. Just imagine how three people, all of them now dead, would react to that were they alive. One would be Bertrand Russell; another would be Bernard Shaw; a third would be a 30 year-old Winston Churchill. Do you think that they would have accepted the invitation? Do you think that they would have felt themselves bound by that stricture? It is a situation which, at best, is ridiculous and, at worst, can be extremely dangerous and counterproductive.

Most Members of the Committee will have heard at some time or another quoted the immortal words of John Philpot Curran, who in 1795 said, if I remember rightly:

“The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt”.

We can, by overemphasising vigilance, destroy the very thing that we seek to protect.

Lord Hannay of Chiswick: I shall not weary the Committee by using all the arguments that have been so well advanced by noble Lords on all sides. They have been much more eloquent than I could possibly be. I support the amendments proposed by my noble friend Lord Pannick and Amendment 104 because I do not think that the Government have made a very convincing case for moving from a voluntary to a statutory basis. They are quite right in wishing to see all higher education institutions taking the Prevent strategy seriously and co-operating with it but they have not given any evidence that this voluntary approach—reinforced perhaps by a bit of naming and shaming—cannot bring everyone voluntarily within

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this framework. They have said little about the efforts they have made to do that, except to admit, which I very much welcome, that the majority of universities are actually doing this already. Therefore, I do not think that the case has been made for moving from a voluntary to a statutory basis.

There is a bit of a mixture in this grouping, ranging from a carve-out for universities and other proposals that fall short of that, which would leave universities within the Bill but would mitigate the problems from it. I hope that the Minister will address some of the other amendments—Amendments 105, 112 and so on—which would achieve that mitigation. It is extremely important that that should appear in the Bill.

Finally, I have a point to make about the guidance. The consultation on the guidance with universities, if I understand it rightly, concludes at the end of this week. Frankly, that guidance is pretty horrifying. It has caused a great deal of the concern that has been expressed around this Committee by the nature of its prescriptive detail, its intrusiveness and the absolute impossibility for most universities to carry out these provisions. Next week, on Report, the Minister could make clear in the most formal way the changes to the guidance that will be introduced before it is promulgated. I hope that the Minister will take that seriously. If he cannot agree to remove universities from this Bill, which would be my preference, he should accept some of the amendments that would mitigate the effects of it, make quite clear that the guidance will be radically altered and explain how it will be altered. He should explain, above all, some of the points that he put in his letter about the positive things that the Government are happy to continue to see happening in universities and not just give a long list of the negative things that they are going to try to clamp down on. I hope that can be taken to heart before we come back on Report.

Lord Brown of Eaton-under-Heywood (CB): The amendments here fall into two distinct categories. There is the root-and-branch objection to the whole idea that higher education institutions should be brought into Part 5 of the Bill and the proposal that they should be carved out, to use the expression of the noble Lord, Lord Hannay. Then there are the amendments that seem to massage various provisions within Part 5 as it presently exists so that it becomes, apparently, compatible with the explicit statutory duties already placed on those institutions to promote free speech, freedom of expression, academic freedom and so on. Like the noble Lord, Lord Hannay, I very strongly support the first category, the root-and-branch objection. It seems to be a matter of the first importance that, for universities and higher institutions, nothing short of the express provisions of the criminal law—or, no doubt, the long-established principles of defamation—should operate as an inhibition on the freedoms that are here in question, which really are core values that go to the very heart of effective university life in a liberal democracy. It is small wonder that so little enthusiasm has been voiced in the Committee today in support of anything approaching Part 5 in its present form.

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6.45 pm

The Lord Bishop of Chester: I will speak very briefly as we come to the end of this debate. As I was listening to it, I realised that there is a whole area to which we have not referred but which is entirely relevant; that is, religious institutions and places of religious instruction and education. Those are missing from the Bill. The application of the Bill to universities will have very uncertain benefits and be extremely impractical to apply in as much as universities are independent institutions. They do not always appear so to the heads of those institutions when they deal with Governments but they are independent institutions. That is a really important feature. Most of the authorities listed here are not independent in that way, although other educational establishments are included.

At some point, we need to stop beating about the bush and see that, alongside the guarantee of freedom of religious speech in our country, and the charitable status of those engaged in different religious practices and education, there is an obligation that should be stated in law. Why not? There is simply an area missing from the Bill as we have it. When the Minister replies, I wonder whether he would be willing at least to comment on the fact that, among all these authorities that are listed, places of religious instruction and education are simply not mentioned.

Baroness Berridge (Con): My Lords, I rise as the last member of the Joint Committee on Human Rights—a long cast of players—to make representations in relation to this amendment. As noble Lords will be aware, the Joint Committee’s report recommended removing universities from the ambit of the Bill. However, I take on board the points made by the noble Baroness, Lady Sharp, about those in institutions for 15, 16 and 17 year-olds. I am grateful to the Minister for continuing to engage with the Joint Committee on Human Rights since we published our report. I have no doubt that what was presented to us was that there was a problem going on on campus, with certain groups holding extremist ideologies being given a platform and not being challenged on their views.

I wish to build briefly on the points made by the noble Lord, Lord Macdonald, in relation to the ambit of the criminal law here. Our response to some of these problems has obviously been to take terrorism offences and expand the ambit of the criminal law further and further down to preparatory-type offences, which we never would have envisaged 20 years ago. For instance, Section 1 of the Terrorism Act 2006 concerns the encouragement of terrorism. Section 1(1) states:

“This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences”.

Offences such as that are designed to go further down the chain and to catch preparatory-type offences. That offence might just apply to printed published statements. I have not had the time to double-check that.

If one remembers that one adds on to all these preparatory offences the group of offences called “inchoate offences,” which are attempting to do that offence,

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conspiring to do that offence or inciting to do that offence. That takes the ambit of the criminal law a long way down in terms of the statements that we are talking about in this House. It has not been made clear to us what views this is aimed to prevent being expressed on our university campuses that are not within the realm of free speech, as offensive and as contrary to British values as some of us might think those views to be, but are outside the ambit of the extensive criminal law.

Finally, in relation to the point raised by the right reverend Prelate, I had assumed that religious institutions were somehow caught by the definitions of educational institutions. It is noteworthy that General Synod has an exemption under the Bill. In relation to the trust that has not been built up, perhaps because this is fast-track legislation and there has not been extensive consultation, somehow there is now concern among some in the church community that Clause 21 would require the vetting of speakers at carol services that take place on university campuses. I am not sure how one gets from Clause 21 to thinking that that might be a risk, but it indicates to me that more trust needs to be built through consultation if we are to have a clause of this nature.

Baroness O'Neill of Bengarve (CB): I declare two interests, one as chair of the Equality and Human Rights Commission, which is thinking a lot these days about the right to freedom of expression and the challenges to it, and as a university teacher of some 40 years who has quite often not had her lectures drafted very much ahead of having to deliver them. That is a reality of academic life. I heard what other noble Lords have said about the ways these clauses could be counterproductive, but what is missing is positive thought about the ways in which universities have, not always with success but often, opened the minds of their students and countered radicalisation by the only long-term, effective method which is to discuss juvenile claims, hopes and aspirations that reveal hidden horrors within them. It is only speech that can defeat evil speech, and I hope that we will give far more thought to the positive measures that universities can take before we try in such an abstract way to construct forms of regulation that are likely to provoke what they seek to prevent.

Baroness Smith of Newnham (LD): My Lords, I am also an academic who tends not to write speeches in advance. I had not planned to speak this afternoon and I did not speak at Second Reading, but I feel it is important to mention something I did last summer which fits very much with one of the anecdotes we heard earlier from the noble Baroness, Lady Buscombe.

I was doing a training session for parliamentarians from another country, a private event, and I was trying to explain to them the merits of the legislative process in the United Kingdom. After a while, one of them said, “I know what we need to do; we need a revolution”. I said, “Could you explain what you mean?”, thinking it was a term of speech. No, they really meant that they wanted to overturn their Government. Clearly, I was not in any way trying to incite terrorist or any other activities to overthrow the state, and I was

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slightly afraid that if anyone had been listening in, they would have thought that I was leading the wrong sort of class.

If we are engaged in free speech in universities, things can happen. There can be discussions and the idea that somehow the Government should be trying to impose duties on academics to say in advance what they are going to say, and to censor in advance what outside speakers are going to say, is very malign. I am very supportive of the amendments, and like the noble Lord, Lord Pannick, I am not opposed to Part 5 and Schedule 3 in total. For local authorities and other organisations that are clearly state organisations, imposing a duty may be appropriate, but for higher education institutions, it is fundamentally wrong.

Baroness Smith of Basildon: My Lords, it should be no surprise that this debate has lasted as along as the debate on Monday on 17 new clauses around communications data retention. Perhaps that is an indication of the knowledge, concern and experiences of noble Lords here today. This has been a long debate. It has been a healthy and very well informed debate. The Minister may feel slightly embarrassed that he has found no friends for the Government’s position during the debate. It would be wrong to caricature the debate as people not wanting to avoid individuals being drawn into terrorism. That is very clear. I concur entirely with the noble Lord, Lord Pannick, who made clear why that is so important and the dangers of terrorism. I hope that no one would caricature this debate as showing that any noble Lord is not committed to ensuring that that is avoided at all costs and that action is taken.

I am not convinced of the need to pull universities out of Part 5 completely, but the reason there is very great concern is that the provision seems poorly drafted. It has created serious concern about the duties and responsibilities on universities. The issue is around free speech, which is what I want particularly to address because the Minister has an opportunity to win widespread support from your Lordships’ House and to respond to the eloquent and important points that have been made and to address the heart of the concerns. He will have heard them raised at Second Reading. They were reinforced tonight.

My noble friend Lady Lister said that her amendment may be technically deficient. It may be technically deficient, but she was very clear in what she was saying about her concerns about what could be seen to curtail free speech, proper debate and controversial debate within universities and higher education establishments.

The noble Baroness, Lady Buscombe, who is not in her place, made an important point about the consultation on this. It does not help debate in your Lordships’ House to be discussing guidance which is still open for consultation and which was not available at all in the other place. It was published after the other place debated this issue. We have had sight of the consultation, which will not close until the end of the week. The Minister recognises in his letter the concerns that have been raised. That letter was written only yesterday, which is why a number of noble Lords who have spoken about the duty regarding giving advance notice

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of speeches have not had time to read it. This is not the way we should establish guidance. This is not the way we should be debating legislation. In a later amendment, we will propose that because of the delay in the guidance and its importance, it should come back to both Houses and be subject to an affirmative resolution of both Houses before it can be accepted. It is completely unacceptable for us to be discussing this issue in such an abstract way.

I thank the Minister and his colleague in the other place, James Brokenshire, who tried to address a number of the issues raised by noble Lords in the helpful briefing he gave a couple of weeks ago, but I fear that that briefing raised as many questions as it answered. One issue has been raised again tonight. If the Minister is able to answer it, it would be very helpful in understanding the debate. A number of noble Lords referred to the work ongoing in universities under the Prevent programme and the arrangements being made. The noble Baroness, Lady Brinton, gave a helpful example regarding the banning of a particular song which shows that universities are fulfilling their duties. A question raised at the briefing has been raised again today and my honourable friend Diana Johnson has been asking questions on this in the other place. We have not had an answer. How serious it is for those universities which the Minister says are not complying with Prevent? He said that most universities are complying with Prevent, which implies there is ongoing work which is successful. He wants to bring the other universities up to the same level, but how many are we talking about? Are most universities complying? Is it a few? Is it 50? We have no idea of the scale of the problem which he has indicated to us that makes this legislation necessary. It would be helpful if he could say something about that.

7 pm

The noble Lord, Lord Hannay, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, spoke about this issue being in two parts: those who are concerned about freedom of speech and the whole issue. If the Minister can put some guarantees in the Bill which address that overarching concern, that may go some way to alleviating the concerns that have been raised by noble Lords about whether universities should be in the Bill at all.

However, the Government said—it was said at the briefing, and I am sure that the Minister has it in his notes—that nothing in the Bill conflicts with the legal obligations of free speech. But that has not satisfied the universities, which are concerned that they will have two pieces of legislation that contradict each other. Finding and managing a way through that is extraordinarily difficult. The Minister will understand the necessity and value of those controversial discussions among young people at universities. We have heard from noble Lords tonight who have far more association with universities than I do. The noble Baroness, Lady Kennedy, gave an excellent example of the discussions she has with the students she works with and talks to, and of how universities start to fear that those discussions could be brought within the ambit of the Bill.

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I think the Minister has recognised the inadequacy of the way that the consultation has been handled. His letter addresses some of the points. That indicates that the Government are prepared to listen to the concerns that have been raised, which are very genuine and very real, and could hamper the way in which the Government’s plans are implemented. If there is nothing in the Bill that contradicts or overrides the right of free speech that universities have under the Education Act 1986, why not put that in the Bill to give absolute clarity? I do not understand the Minister’s arguments—we have heard them before and I hope he is not going to repeat them tonight—about why that cannot be explicit in the legislation so that it is clear that universities are not being affected in the way that so many noble Lords, understandably and possibly rightly, fear.

Amendment 105 and the amendments tabled by the noble Baronesses, Lady Brinton and Lady Sharp, try to get to the nub of this and find a way that would improve these measures and take away the dangerous part of the Bill, which indicates that we are seeking to contain what people say and debate. They would also ensure that we continue to provide a space in universities where those debates can be had.

I have been in the Minister’s position, albeit in the other place. I have seen the sheaves of paper being passed to him during the debate. I am sure that his notes say that he should reject all the amendments today. I have been there and done that and I, too, on occasion have put some in my pocket before leaving the Chamber. I urge the Minister not just to support the status quo on this. The Government have an opportunity to take note of what has been said, to listen and respond to those who understand these issues, who have been working with them, who will be responsible for implementing the legislation—and who are telling us that it is unworkable in practice. Perhaps the Minister can reflect on what has been said; if he can meet with noble Lords who I am sure will be happy to do so, to see if there is a better way forward, and come back, perhaps next week on Report, with thoughts that address, if not all the concerns that have been raised but many of them, that would be warmly welcomed by your Lordships’ House tonight. I urge the Minister to reflect on what has been said and hope that we can have a further productive discussion on Report.

Lord Bates: My Lords, it has been an excellent debate, which I will reflect on. The noble Baroness should not be so pessimistic and think that we are not going to reflect on this or that the notes simply say, “Resist”. That might have been the case under the previous Government, of which she was a member, but in the enlightened spirit of co-operation that is now engendered in Whitehall, that is not the case here.

In introducing this amendment, the noble Baroness, Lady Lister, referred to the meeting that we had on 15 January. I am a born optimist—mine is the blood group “B positive”—and I take the view that if we explain and people understand what is actually in the provisions, they will feel less chilled by them. The meeting was very well attended—in fact, it was the best attended and most interesting Peers meeting that I can remember. Of course, it provoked a lively debate

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and I reflected very carefully on it. One of the outcomes was the letter that I chose to send out last night, which has been referred to by a number of noble Lords, who have pointed to the restatement of the fact:

“We are firmly of the view that universities’ commitment to freedom of speech means that they represent one of our most important arenas for challenging extremist views and ideologies”,

simply because of that; and that we fully support,

“the existing duty in the Education (No 2) Act 1986 on universities to promote freedom of speech”.

I went on to reflect on the point, which a number of noble Lords have referred to, about the practicalities of how that is done. As several noble Lords recognised, even Ministers might struggle in giving speeches 14 days in advance; that might be pushing it a bit too far. I said that certainly we wanted to make sure that the requirements were less onerous —although, given that we are in a consultation phase until 30 January, I did not want to prejudge what the outcome was going to be.

Let me make one point that I think goes to the heart of where we are in this debate. External Speakers in Higher Education Institutions is another bit of guidance, provided by Universities UK and in operation at present. It says that actions that institutions take might include:

“Requesting a script or précis from the speaker outlining what they intend to say and requiring them to sign an undertaking”—

we are not going that far—

“acknowledging that their speech will be terminated if they deviate from it … Briefing the chair in advance of the event, making clear that they have a responsibility to ensure that no speaker or other person present at the event infringes the law; this briefing could highlight the circumstances under which they must stop the event, issue warnings to participants on their conduct or request the withdrawal or removal by stewards (or the police if necessary) of the person(s) concerned”.

That is pretty heavy stuff. It is in Universities UK’s guidance for external speakers that is already in place and applies to the 75% of universities which are part of that element.

Before I make specific remarks on the issues that have been raised, I turn to the Prevent duty under Part 5. When people were having these freedom of speech arguments in the context of universities, I do not think that we necessarily envisaged the type of situation that we might now be in and the level of threat, which is severe, that we now face and which gives rise to this legislation. Under Prevent, as was in many ways acknowledged by the previous Government, as well as dealing with the law and prosecution, you must engage in discussion with these groups and challenge their views. That was where Prevent came from and that is where we are going. Schedule 3 provides that this will apply to local government, criminal justice—probation, prisons—education and childcare, health and social care, and the police but people are proposing that universities should be exempt. These might be areas where there is some difference. I am trying to be straight with your Lordships about where the differences might arise between us.

Baroness O'Loan: How does the Minister envisage universities engaging with these groups to help them to see the error of their ways—it was envisaged that

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they might go into communities and talk to groups—without in some way being at risk of breaching the guidance which is implicit in this draft law?

Lord Bates: I will try to go on to explain about the guidance to the noble Baroness. I recognise her academic experience, which is particularly relevant, in teaching constitutional law in Northern Ireland; that must have particular relevance to what we are talking about here, and I listen very carefully to what she has to say. We are not seeking here to curtail or limit but to say that the institution should have guidance in place. Particular individuals should be responsible, a bit like what is described in the Universities UK guidance, but the institution ought to have some procedures and safeguards, if only for good order on the campus, when these matters are being discussed or when controversial matters are raised.

Baroness Warsi: I am sorry to cut my noble friend off in mid-flow. He may be aware that that kind of guidance led to a chilling effect within government on engagement with community groups. Many individual groups were not considered to be extremist groups and never passed the test required for them to be defined as such, but a question mark was raised over them. Even though no specific guidance was issued, that question mark was enough for individual Ministers, civil servants and departments to stop engaging with them. People were so concerned about being seen as being on the wrong side of the argument on these issues, that even where they would not have fallen foul of the guidance they were concerned that they would fall foul of opinion. Therefore that had a chilling effect, so the issue the noble Baroness raises is important. It may mean that they do not fall foul of the guidance—and this is only guidance—but it will have a chilling effect as regards engagement.

Lord Bates: I accept that my noble friend had lead responsibility for that, and she has far more experience in this area in formulating and delivering policy than I have. However, I am simply responding to the question which addressed where this code of practice is going as regards higher education institutions. I was simply making the point that in a sense it relates to the organisation and preparedness of institutions to deal with the safeguarding of organisations, the security of students, and just being aware. I was asked by the noble Baroness, Lady Brinton, to give some examples of the relationship the inspectors who currently engage on the Prevent programme—the regional co-ordinators —have with higher education institutions. They are often contacted and asked about particular speakers. Most institutions found it very helpful to have someone they could go to and ask for guidance on whether special procedures needed to be put in place for a particular person.

Baroness Brinton: I was trying to make the point that it would be helpful to have an example of where the existing codes of practice guidance are failing, which requires the draft legislation we are looking at today.

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Lord Bates: Yes; and I suppose that that comes from evidence. I accept that that evidence is not in the marshalled form in which the noble Baroness and the Committee might like, but it is certainly there in the evidence from the regional co-ordinators of the Prevent strategy, who say that some institutions simply do not comply and show no willingness to comply with guidance in the Prevent programme which is there already. Some do that very well; others have a willing heart, but are not doing it correctly. That is why, if this is put on a statutory footing and inspected externally, which is the Government’s case, we will have better evidence on which to measure the effectiveness of how this works on the ground. However, I will put some remarks on the record as regards these amendments.

The amendments in this group, in the name of a range of noble Lords, including members of the Joint Committee on Human Rights, seek to remove higher and further education institutions from the scope of the duty altogether, or severely to curtail the application of the duty to those institutions, whether through legislation or the statutory guidance. I recognise the strength of feeling in the Committee on this issue, and I, along with my ministerial colleagues, listened carefully to the helpful and constructive debate we had on this issue at Second Reading. I hope that it will be helpful to your Lordships if I set out why we believe that the inclusion of higher and further education institutions under this provision is so important.

7.15 pm

Between 1999 and 2009, as I set out in my letter, around 30% of people convicted of al-Qaeda-associated terrorist offences had attended a higher education institution. I accept, as the noble Baroness, Lady Manningham-Buller, clearly put it, that many different groups are involved in terrorism—but nevertheless, that 30% had attended a higher education institution. Young people in the 18 to 24 age group make up 30% of terrorist-related convictions.

Some students arrive at university already radicalised like some of those convicted of the “airline plot” in 2006, which the noble Lord, Lord Macdonald, who was Director of Public Prosecutions at the time, reflected on previously. Others are radicalised by external influences while at university, such as the terrorist who had studied here in the UK and who blew himself up in an attack in Stockholm in 2010, while some become influenced by non-violent extremism at university but later move on to violence, such as the terrorist responsible for the Detroit aircraft attack on Christmas Day 2009. The Prevent duty is designed to apply to sectors which can most effectively protect vulnerable people from radicalisation. There is no doubt that higher and further education is one of them.

Having explained why the Government consider it so important to have universities within the scope of the duty, I will outline some of the difficulties with limiting the scope of the duty. Amendment 104, tabled by members of the Joint Committee on Human Rights, would exclude,

“an academic function of a university or other further and higher education institution”,

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from the duty. That would severely curtail the scope of the duty on university and higher education authorities, to the point where the effect of it would be the same as if the further and higher education sectors were removed entirely from the duty—which the noble Baroness, Lady Smith, said the Opposition would not support. I make clear that the Government are committed that the duty should not undermine academic freedom or genuine research into terrorism—I will come to that later in responding to another point. My right honourable friend the Home Secretary emphasised this when the Bill was considered in another place. However, if this amendment were to be accepted, an important part of the duty would be lost.

One of the most striking aspects of our debates, both at Second Reading and today, has been on freedom of speech. A number of amendments have been tabled which seek to protect freedom of speech and academic freedom. Amendments 105, 112A, 112B and 112D would place the duty on higher and further education institutions to promote freedom of speech above the Prevent duty and require that that be made explicit in the statutory guidance. Amendment 115 inserts a new clause which requires the Secretary of State to have due regard to the principles of academic freedom when issuing guidance on the duty or issuing a direction.

The Government are firmly of the view that universities’ commitment to freedom of speech means that they represent one of our most important arenas for challenging extremist views and ideologies. We fully support—as I mentioned before and said in my letter—the existing duty in the Education (No. 2) Act 1986 on universities to promote freedom of speech. However, there are good reasons why it should not be elevated above the Prevent duty.

Freedom of speech is not open-ended or absolute. The duty is to secure freedom of speech “within the law”, as the noble Lord, Lord Pannick, reminded us. A range of statutes apply on university campuses. Higher and further education institutions must take account of various considerations when assessing what the freedom of speech duty entails for them, including a range of relevant legislation. This is acknowledged explicitly in the guidance already published by Universities UK. As the document states,

“Universities have to balance their obligation to secure free speech with their duties to ensure that the law is observed, which includes promoting good campus relations and maintaining the safety and security of staff, students and visitors”.

Universities already weigh up a number of considerations when making their decisions. The Prevent duty will sit alongside other limited constraints on absolute freedom of speech which the vast majority of us accept, as indeed does the higher education sector.

Existing considerations relevant to the application of freedom of speech in universities and elsewhere include: criminal laws against the use of threatening or abusive words or behaviour; inviting support for a proscribed terrorist organisation; the civil law on defamation; and duties to have regard to the need to prevent discrimination, harassment and victimisation. The Government are determined to protect our freedom of speech from those who would intimidate us through violence or the threat of it.

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This duty is in no way designed to cut across the importance of free and open debate, and there is nothing in either the Bill or the draft guidance that imposes a blanket ban on extremist speakers speaking on campus. Nor is there anything in the duty or draft guidance that would restrict legitimate debate or academic research. Existing limitations on freedom of speech have not restricted such legitimate activities in the past, and there is no reason to believe that they will in the future.

There is absolutely nothing in the duty or guidance which would, as has been alleged in the press, require universities to report “non-violent extremists” to the police, or to forbid anyone to argue, as Plato did—we have had sight of the noble Lord’s letter in the Times this morning—that democracy is wrong in principle, or to give a talk which fails to respect individual liberty.

Indeed, we have seen a number of examples of universities taking decisions that have clearly balanced a number of different considerations. One university recently decided not to allow a certain speaker on its campus because of their extreme views on homosexuality, and decided that allowing them to speak would undermine its equality and tolerance polices and would have caused real tensions within the student population. Thus the Prevent duty will sit alongside all the existing duties and responsibilities that universities must consider.

I hope that your Lordships will see that, far from encroaching on the ability of colleges and universities to ensure academic freedom, the Prevent duty will sit comfortably alongside that duty and others. It will ensure that all these institutions take seriously their obligations to ensure that people are not radicalised on campus.

Lord Pannick: If the intention is that the Prevent duty should, as the Minister just told the House, sit alongside academic freedom and freedom of expression in universities, why not say so on the face of the Bill, so that it is absolutely clear?

Lord Bates: That is in my next paragraph, if the noble Lord will let me come to it.

However, I can equally understand the trepidation of many in your Lordships’ House, and I have heard the strength of feeling on this matter. On that basis, I will commit to considering this matter further, and to discussing it with my ministerial colleagues, before Report, in order to identify whether it would be possible to provide some additional comfort to noble Lords, and to the education sector itself.

This has been a very wide debate, with some 20 speakers. Many have made very specific points and asked very specific questions. I am conscious that this is the second group of amendments within six weeks to cover Prevent, but—

Lord Hannay of Chiswick: Could the Minister perhaps extend the period of reflection with his colleagues to cover the issues in the guidance, which have given rise to such concern, as well? I am talking particularly about overprescriptive guidance. The Minister addressed some of those issues in his letter of last night, but by

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no means all of them. As the period for consultation will have expired by this weekend, will he undertake to consider—no more than that—what he will be able to put on the record on Report to make it clear that the guidance to be issued will be very different from the draft guidance that went into the consultation?

Lord Bates: Well, yes, I am happy to say that we will continue to keep the whole thing under review. That is the whole point of the consultation. I accept that the fact that the consultation concludes on 30 January may cause some difficulties. However, all the points debated today and at Second Reading are very much part of that consultation. I shall certainly go as far as I am able towards providing what might be described as an additional “first draft” type of review of the guidance, as a result of the responses that have been received so far. About 160 comments have been received, in addition to the debates that we have had.

I was about to say that a substantial number of points have been raised in the debate, and I can go through them. My noble friend Lady O’Cathain, who happened to catch my ear during the intervention by the noble Lord, Lord Hannay, asked me not to miss out the point made by the right reverend Prelate the Bishop of Chester about religious institutions. There is a point here, which we took into consideration, about what is a private matter, such as religious faith and worship, and what is a public matter—that is, a public matter in public institutions of education—and about comparing the two duties and thinking about whether we should extend our guidance into those institutions.

That was one of the reasons why my right honourable friend the Secretary of State for Communities and Local Government, Eric Pickles, decided to send the letter that he wrote to mosques and other religious institutions, recognising the importance of faith and urging them to play their part in the community-wide desire to keep our society safe.

The Lord Bishop of Chester: My Lords, I am grateful for those remarks, but I think that advocating the idea that the distinction is essentially between private and public will not work in the longer term. Religion is too powerful a force, and spills over beyond the private. Indeed, in one sense universities are private institutions: they are completely legally independent of government, and one of the reasons why they flourish in this country is that, even though the relationship is close, that position has been maintained. I simply make that point, and hope that at some point further thought will be given to how one can get beyond simply relegating the religious to the private sphere—because that does not really work.

Lord Bates: Having been on the receiving end of mass campaigns by people who are deeply upset at the state daring to encroach on the sacred territory of religious groups, I think that we should bear in mind the notion of, “Be careful what you wish for”. We do have to be careful here, because there will be people who say, “Hang on, this is the state going one step further than it should into a private realm”. None the less, I shall reflect further.

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Baroness Berridge: While the Minister is speaking of reflection, will he reflect further on the issue for charities? Under the previous Government there was a unit within the Charity Commission designed to look at the financial structures and compliance of various charities. It was discovered that a lot of extremism could be found when one looked, first, at the numbers: the finances revealed organisations that were charities to which we needed to pay close attention. We are not giving the Prevent duty to trustees of charities, who may arguably count as public. Yet the public fund an awful lot of charitable work through gift aid and so on. Surely the logic would be to extend the duty to the charitable sector. It is there to provide public benefit: that is the test that we have for charities. The unit seemed to be quite a good one. I think the Charity Commission had to decrease it, but has now increased it again, because looking at the numbers, at what trustees are up to, and at who they are connected to through the charitable structure, gives us some great information about what is actually going on.

7.30 pm

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

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

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

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

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

Lord Bates: Normally I go beyond what I am instructed to say by my patient Bill team who work behind me, but on this occasion, I think that I am probably behind them in that the letter says in terms that we have heard enough already to reach a judgment on the practicalities of the provision in paragraph 66 and that we will rework that, notwithstanding the answer which I accept that I gave to the noble Lord,

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Lord Hannay, earlier, that we would reflect on the issue and did not want to prejudge the consultation. I suppose that we have prejudged the consultation in that particular regard because we do not want what we consider is the important issue of keeping the universities within the broader statutory provision to be, as it were, misunderstood or challenged on relatively small procedural matters which could cause alarm and are many miles away from where the principal focus of our efforts should be.

Baroness Lister of Burtersett: My Lords, I thank the Minister for his characteristically good-natured and considered response, which I shall discuss in a moment. I thank all noble Lords who put their names to my amendments and the many noble Lords from across the House who supported them. I cannot remember many debates in your Lordships’ House where not one noble Lord has spoken in support of the Minister, although many have rightly emphasised how much they support what the Government are trying to achieve in terms of preventing terrorism. We have had perspectives from Northern Ireland, Wales and Scotland. I thank the noble and learned Lord, Lord Hope, for pointing out the deficiencies of Amendment 105 and how we can put that right. We have heard important arguments of principle that go to the heart of what a university is about and have pointed out how we could undermine the very values that we are trying to protect. As I said at Second Reading, I call these values of democratic citizenship. There is nothing uniquely British about them, but they are values that we probably share. We have also heard important arguments regarding practice, where noble Lords have pointed out that there seems to be a lack of understanding of how universities work, and that the practical implementation of the measure would be counterproductive, not least in pushing underground some of the debates with which we need to engage.

Before I discuss the Minister’s very helpful finale, so to speak, I wish to make a couple of points. He pointed out that Universities UK had itself issued guidance which is rather similar to the guidance that everybody has decried as being much too prescriptive. However, the fact that no one, not even Universities UK, seemed to know that it had included the relevant measure suggests that probably most universities simply ignore that bit of it because it is so obviously fatuous. However, the big difference is that if a university fails to comply with that guidance, the Home Secretary will not issue a directive against it and it will not find itself in court. There is a huge difference between the advisory guidance that Universities UK issues and statutory guidance related to the Bill.

A number of noble Lords asked about the lack of evidence on how many universities are failing to comply in this regard. The Minister said that he accepted that the evidence has not been marshalled but that there are institutions that do not comply. Noble Lords who are academics would not accept that as evidence. Evidence has to be marshalled for it to constitute genuine evidence; otherwise, it is anecdote.

I very much appreciate the Minister saying that he will go away and reflect on the debate, but am slightly worried because he talked about the new Prevent duty

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sitting comfortably alongside existing statutory duties to uphold freedom of speech and academic freedom. The whole point is that it sits uncomfortably beside those duties. I am worried that we may be talking about some kind of parallel universe. I am not a lawyer so I may make a fool of myself when I say this, but the existing duties in the 1986 and 1988 education Acts are themselves subject to other laws which restrict freedom of speech, as I said, so I do not see why there is a problem in making the Prevent duty subject to those duties because they are circumscribed. Therefore, I do not understand the noble Lord’s argument on that. When he reflects on the debate, I hope he will think seriously about that, because if the new duty is not subject to those duties, it will not meet the concerns expressed so powerfully in your Lordships’ House—concerns which are based on noble Lords’ experience. I hope it will be possible to discuss this issue informally, although we clearly do not have an awful lot of time before Report, given the fast-track nature of this legislation. I welcome the fact that the Minister is prepared to think further about this and beg leave to withdraw the amendment.

Amendment 104 withdrawn.

Amendment 105 not moved.

Clause 21 agreed.

Lord Ashton of Hyde (Con): My Lords, before we move on to the next amendment, perhaps I may suggest, for the aid of noble Lords planning the rest of their evening, and given that we have a lot to get through, that it might be worth while getting some sustenance. I have discussed this with the usual channels and the plan is that we will debate the next group of amendments and then adjourn the Committee for 30 minutes. We would like to continue and try to complete the Committee stage tonight.

Schedule 3: Specified authorities

Amendment 105A

Moved by Lord Rosser

105A: Schedule 3, page 47, line 4, at end insert—

“A unitary authority.”

Lord Rosser (Lab): My Lords, Clause 21 places a general duty on specified authorities, defined as,

“a person or body that is listed in Schedule 3”,

to have a general duty to have due regard, in the exercise of their functions,

“to the need to prevent people from being drawn into terrorism”.

Included among the specified authorities on which this general duty is placed are local authorities. The types of local authorities covered are listed in Schedule 3. They include a county council or district council in England, the Greater London Authority and a London borough council. What Schedule 3 does not appear to include is unitary authorities in general. The purpose of this amendment is to invite the Government to clarify which local government unitary authorities are covered by Schedule 3 and which are not, and the basis of that decision.

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Two examples of unitary authorities which do not appear to be included in Schedule 3 are Thurrock and Southend in Essex. Clearly, Essex County Council is covered by Schedule 3 and will have the general duty placed on it under this Bill to have due regard to the need to prevent people from being drawn into terrorism. That duty will not apparently also be placed on the Thurrock and Southend unitary authorities. Is it the intention, to use Thurrock and Southend as examples, that the responsibility will rest with the county council rather than the unitary authority? If so, why, and how will the arrangements work in this situation within the areas of the Thurrock and Southend unitary authorities? On which local authority, or local authorities, will the duty in Clause 21 lie in our major cities in England outside London, such as Birmingham and Manchester?

The consultation document on the Prevent duty guidance asks the question as to whether there are additional local authorities that should be subject to the duty to prevent people from being drawn into terrorism. Perhaps that means that the Government have some doubts about whether the list of local authorities covered by Schedule 3 is as extensive as it might be. In their factsheet on the Bill, the Government give us an example of what steps local authorities should take to meet their Prevent duty in the Bill. The example given—one that the Minister referred to in an earlier debate—is that local authorities should ensure that publicly owned premises are not used to disseminate extremist views. Does that mean only in local authorities covered by Schedule 3 and not in those that are not covered by Schedule 3?

It also appears, subject to what the Minister is going to say, that while not all local authorities are covered by Schedule 3 on the duty to prevent people being drawn into terrorism, under Clause 28 each local authority must ensure that a panel of persons is in place for its area to ensure support for people vulnerable to being drawn into terrorism. That would appear to be a bit of a contrast.

I hope I have made it clear that the purpose of this amendment is to seek clarification on which unitary authorities are and which are not covered by Schedule 3 and the reasons behind that decision. I await the Minister’s response. I beg to move.

7.45 pm

Baroness Hamwee: My Lords, the world of local government, in its kaleidoscopic way, is changing at the moment with new groupings of authorities, such as the Association of Greater Manchester Authorities. Although the duty is expressed as a duty on each individual authority, will the Government be open to authorities seeking to find ways for neighbours to provide services to fulfil the duty? This has only just occurred to me, but it seems that one should be open to practical ways of dealing with this sort of thing.

Separately, I ask whether my noble friend is able to address my points about the contracting-out of services, which I raised in the first group of amendments. I do not know whether he has any notes on that. It is mentioned in Amendment 106 in the Minister’s name, which caused me to go on a hunt for Schedule 36A to the Education Act. That is only about education and there are many other services which are contracted

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out. I asked London Councils whether I was barking up the wrong tree in worrying about this. Its answer was that I was not and that this is something worth pursuing.

Lord Harris of Haringey: My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.

There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.

Lord Bates: My Lords, I can say in advance that I will probably be writing to both my noble friend and the noble Lord on their points. As extensive as the briefing is, I am afraid that it has not pre-empted those two points of contracting out or the Ministry of Defence Police.

I will move the government amendments in this group shortly but first I will respond to Amendment 105A in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith—the Opposition Front Bench. This amendment would add a unitary authority to a list of specified authorities in Schedule 3 on page 47. This is an issue that I have discussed with her previously. I am pleased to assure her and others in your Lordships’ House that this amendment is unnecessary. Unitary authorities are already covered by virtue of a county or, more commonly, a district council. On that basis, I hope the noble Lord will feel able to withdraw the amendment. I can see a quizzical look from noble Lords on this but we say that whether it relates to a county or district council in England—that is, a person carrying out the function of an authority mentioned in Section 1(2) of the Local Government Act 1999, by virtue of a direction made under Section 15 of that Act—the provision would catch all. Noble Lords will have to take the word of our counsel on it. It would be a pretty easy amendment to make if we were wrong, and we would be happy to correct it; but we feel that unitary authorities are covered under the existing wording.

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There are a number of government amendments in this group, regarding bodies listed in Schedules 3 and 4. Schedule 3 specifies the authorities subject to the duty to have due regard to the need to prevent people being drawn into terrorism. Schedule 4 specifies the persons who are subject to the duty to co-operate with panels established by local authorities to provide support for people vulnerable to being drawn into terrorism.

Amendments 106, 108, 111 and 116 to 118 will ensure that the appropriate authorities are subject to the duties, and that there are no gaps or inconsistencies. Amendments 106 and 116 add persons who are appointed by local authorities under certain delegated functions related to education functions. This ensures appropriate coverage of the duties. Amendments 108 and 117 add a person specified by Welsh Ministers in respect of a direction made in respect of a Welsh local authority’s education functions. This amendment ensures a consistent approach.

Lord Scriven: Where do GPs, as part of the health service, fit into the system?

Lord Bates: I am thinking on my feet. The legislation mentions a community health council in Wales, a local health board or NHS foundation trust.

Noble Lords: Oh!

Lord Bates: That was a good try but I am clearly in need of that break. Rather than answer now, I shall add my noble friend honourably to the list of the three Members to whom I shall write with clarification. However, inspiration has just come to me. Of course I knew the answer. GPs are not covered by this provision.

Lord Scriven: If it is a function across health professionals and health services, the proportion of people who come into contact with an acute trust is significantly small. Why have the health service and GPs been excluded from the duty, yet consultants who see the minority of patients have been included? What is the significant difference in order for the Government to be making that delineation of clinicians?

Baroness Hamwee: My Lords, if the Minister is going to come back to us on various points, perhaps he can include something on patient confidentiality.

Lord Bates: As I sat down to take that intervention, further inspiration came to me on this matter. We are consulting GPs on their role in this, and we will have regard to the important points relating to patient confidentiality to which the noble Baroness referred.

Finally, Amendments 119 to 122 would allow the Government to make changes, through regulations, to Schedules 3 and 4 at any time after the Bill is granted Royal Assent, and before such time as the rest of this part commences. The amendments ensure that, in the event that there are additional bodies to which the Prevent duty should apply or which should be partners to Channel panels, then those bodies can be added to

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the appropriate schedule with as much notice as possible before the duties on them commence. This is clearly in the best interests of those bodies because it will give them time to prepare. This has particular relevance to the addition of Scottish bodies. The Government have made clear that it is our hope and intention that Scottish bodies will become subject to the Prevent duty, and we are currently discussing this with the Scottish Government.

We still wish to make the changes to the schedules as soon as possible after Royal Assent, and to have the duty commence for all specified authorities in England, Wales and Scotland at the same time. Therefore, I invite the Committee to agree these government amendments and trust that, in the light of my earlier clarification, the noble Lord will feel able to withdraw the amendment.

Lord Rosser: I thank all noble Lords who have taken part in this debate. I am left feeling somewhat lonely. I think that I am the only noble Lord who has spoken in this debate who is not actually going to get a letter. I appreciate that the Minister was repeating the legal advice that he had been given—I do not doubt that advice—but having apparently found out that the reference to:

“A county council or district council”,

covers unitary authorities, it would be helpful if he were able at least to quote other legislation in which a reference to a county council or district council is meant to include a unitary authority. I am sure it exists; this is not a challenge. I assume from the advice given to the Minister that there must be examples in other legislation where that is the case. It would be helpful if there could be a note on that, or at least some communication to make that point.

Lord Bates: I am happy to write to the noble Lord on that.

Lord Rosser: I thank the Minister. I no longer feel lonely; I am going to get a letter as well. The question has also been raised as to why the consultation asked:

“Are there additional local authorities that should be subject to the duty?”.

I appreciate that parish councils are not mentioned but I hardly imagine that they are going to be covered by the duty; therefore, bearing in mind that unitary authorities are covered, I am not sure exactly which local authorities people might suggest could be included. However, I am not inviting the Minister to send me a letter covering that question. I am grateful to him for his reply, and I am sure that other noble Lords are grateful to him for his willingness to respond to the queries I have raised. I beg leave to withdraw the amendment.

Amendment 105A withdrawn.

Amendment 106

Moved by Lord Bates

106: Schedule 3, page 47, line 24, at beginning insert—

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“A person who is authorised by virtue of an order made under section 70 of the Deregulation and Contracting Out Act 1994 to exercise a function specified in Schedule 36A to the Education Act 1996.”

Amendment 106 agreed.

Amendment 107 not moved.

Amendment 108

Moved by Lord Bates

108: Schedule 3, page 48, line 20, at end insert—

“A person who is specified in a direction made in relation to the exercise of a local authority’s functions given by the Welsh Ministers under section 25 of the School Standards and Organisation (Wales) Act 2013 (anaw 1) (including that section as applied by section 50A of the Children Act 2004 or section 29 of the Childcare Act 2006).”

Amendment 108 agreed.

Amendments 109 and 110 not moved.

Amendment 111

Moved by Lord Bates

111: Schedule 3, page 48, line 28, leave out “Assembly”

Amendment 111 agreed.

Schedule 3, as amended, agreed.

Clause 22: Power to specify authorities

Amendment 112 not moved.

Clause 22 agreed.

Clause 23 agreed.

Clause 24: Power to issue guidance

Amendments 112A and 112B not moved.

7.59 pm

Sitting suspended.

8.30 pm

Amendment 112BA

Moved by Baroness Hamwee

112BA: Clause 24, page 15, line 13, at end insert—

“( ) Guidance issued under this section shall in particular deal with equalities issues.”

Baroness Hamwee: My Lords, Amendment 112BA is grouped with a number of other amendments, most of which relate to Clause 24. The amendments in this group in my name and those of my noble friends have been tabled to enable me once again to raise issues about equalities and concerns about discrimination.

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It has been put to me that Prevent is regarded as a security prism through which all Muslims are seen and that Muslims are suspect until proved otherwise. The term “siege mentality” has also been used. We have discussed the dangers of alienation arising from the very activities that should be part of the solution, not part of the problem, and of alienation feeding violence. I have said to the Muslim organisations that have contacted me, and I think I have said in the Chamber, that because the current context for this legislation is the war in Syria and since most Britons, not all, who are drawn into fighting there are Muslims—I am not saying that they come from the same ethnic background; that is, of course, quite different—it is inevitable that Muslims will make up the great majority of those who are the subject of, or some might say subjected to, the provisions of this Bill.

We have laws about equalities and they apply to this legislation as to every other piece of legislation. I doubt that much can be done in legislation to address the concerns I have just summarised but what can be done should be done: in legislation, in practice and in providing safeguards against discrimination. Transparency is a very important tool and it occurred to me today that, the more transparency there is about how these provisions are operated, the more ammunition—if that is not an indelicate word in the context—the Government can give themselves to counter those concerns.

I have mentioned the current context. The counter- terrorism strategy and policy of course are also directed to dealing with other extremism manifested in violence—for instance, right-wing extremism. I am told that freedom of information requests for basic statistics about Prevent are routinely denied on the basis of national security. It seems to me that we should be looking for ways of providing information that do not endanger security. For instance, I wondered how many individuals are in a programme because of anti-Semitic violence. Over the last day or two, I have been pondering what it would look like if one substituted “Jewish” for “Muslim” in the briefings and descriptions we have had. The issue is not just how I would see it as a Jew—not a very observant Jew but one who is aware of her background and heritage—but also whether other people, who might be resistant to some of the points I have been making, would see things differently if it were a different group interposed in that way. I think that if this were aimed at the Jewish community or communities, I might feel targeted rather than protected. I say all that by way of some introduction and can go through the specific amendments fairly quickly.

I said earlier this evening that I think—although I am going to have to read the debate to check—that the Minister in his answer on the first group implied more support, at least for the thoughts that lie behind these amendments, than I suspect he is going to articulate now and he also implied more consultation than the clause spells out. The clause deals with revised guidance as well as the first issue of guidance. If one accepts the Minister’s point about how well the Government have conducted the process so far for the purpose of the argument, nevertheless the issues I am raising will be important for the revision of guidance as well.

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The first of my amendments, Amendment 112BA, states:

“Guidance … shall in particular deal with equalities issues”.

I think that that speaks for itself.

Amendment 112BB would insert that there must be consultation with,

“the specified authorities subject to the guidance”,

as well as with, as stated in the Bill, the Welsh and Scottish Governments. The clause then goes on to include the very wide catch-all—although it could be a very narrow “catch-few”—of,

“any person whom the Secretary of State considers appropriate”.

It must be right for those who are going to be the subject of this guidance to be consulted.

I then take that a stage further with Amendment 112BC by providing that, before responding to that consultation, a specified authority should,

“consult its local or other relevant communities”.

It comes pretty naturally to most local authorities to consult their own communities when they are proposing to do something, although not always. However, I do not just mean residents as a kind of amorphous bunch. There are communities within communities. We are all members of more than one community, and the specified authorities can identify their communities as they see fit under what I am proposing.

The next of my amendments, Amendment 112CB, relates to Clause 24(7), under which the Secretary of State can make minor revisions to the guidance without going to Welsh and Scottish Governments if the,

“Secretary of State considers that the proposed revisions … are insubstantial”.

I would like to see that as an objective test so that it could be challenged—in other words, I would like to change this subsection so that the consultation provisions have effect unless they are insubstantial.

Amendment 112DA is an amendment to Clause 25. It must be the case that authorities have the opportunity to make representations before directions under this clause are given—this being the clause which takes us to the sanction for failing to comply with the duty. I would hope that that would be automatic. It is perhaps a matter of general law but, again, I think that it should be spelled out.

Amendment 112F also relates to the directions clause provisions. It would insert that the Secretary of State should report to Parliament on any direction given. Giving a direction in this way is a pretty substantial action, and I think that it should be reported to Parliament with the reasons for it.

I hope that I have covered everything that is in my name. My noble friend tells me that I have, so I beg to move Amendment 112BA. As I do so, I realise that each of the amendments is on what might be thought to be a small point but, in my view, they amount to trying to find a way of addressing concerns which are clearly very real in the minds of those who have been looking at this legislation.

Baroness Brinton: My Lords, I should like to speak to Amendments 112C and 112E, which are in my name. I start by apologising to the Minister. I am sorry

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that I could not manage to get to his meeting last week. I know that my noble friend Lady Hamwee expressed my concerns and I am grateful for the Minister’s letter on some issues which has been referred to considerably since we started today’s session.

These two amendments are important and my noble friend Lady Hamwee ended on that point. After going to war, the right to curtail freedoms is one of the most important decisions that a Government have to take. The one thing that is missing at the moment on some of the key directions, particularly on guidance and on where the Secretary of State gives a direction to an authority, is any sense of accountability and transparency.

I shall take the amendments in order. Amendment 112C says that if guidance is issued,

“the Secretary of State must lay before Parliament … the proposed guidance or proposed revisions”,

and it should be done by an affirmative instrument of both Houses. As I have said on earlier amendments, guidance also needs to be combined into one document with any other parallel guidance that will ease matters for those having to use it. The duty in the Education Act 1986 is absolutely clear and I believe that the guidance has been brought forward in haste. The Commons has not managed to see the draft guidance and the consultation does not end until tomorrow. I am grateful to my noble friend for some of the changes that he has made but I see nothing in his letter that relates to this issue of transparency and accountability to Parliament. It is important on such a sensitive issue that goes to the heart of the freedom of people in this country that Parliament at the very least should have the right to examine any changes that the Secretary of State wishes to lay.

Amendment 112E asks for the same scrutiny for the Secretary of State should she or he direct under the terms of this provision. It is important that we as Parliament understand how and why an appropriate authority has failed, partly so that we can amass the evidence that my noble friend talked about earlier, but also because we as Parliament need to know exactly what is happening. Amendment 112E also provides that:

“A copy of any such report must be sent to—

(a) the Chair of the Joint Committee on Human Rights;

(b) the Independent Reviewer of Terrorism Legislation; and

(c) any other person whom the Secretary of State deems appropriate”.

It is also important that the relevant sector sees what is going on so as to understand the issues, a point made by the noble Baroness, Lady Hamwee. The three bodies mentioned also deal with some of the wider issues around terrorism, freedom and liberties. It would be inappropriate for them not to comment before such matters were discussed in Parliament.

8.45 pm

Baroness Berridge: My Lords, Amendment 112E is in my name and I join the noble Baroness, Lady Brinton, in her reasoning for it. Clause 24(8) states:

“The Secretary of State must publish the current version of any guidance issued under this section”.

However, Clause 25(1) states that,

“the Secretary of State may give directions to the authority for the purpose of enforcing the performance of that duty”.

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The directions will be known to the Home Secretary and to the body in receipt of them but there is no requirement for the wider public to be made aware of the nature of these serious directions that could curtail freedom of speech. One could predict that they might be the subject of a freedom of information request but these directions should be known wider than that. I agree with the outline of Amendment 112E that Parliament, in the absence of a written constitution, is the guardian of such liberties. Producing a report to Parliament enables the matter to be scrutinised. As a member of the Joint Committee on Human Rights, I believe that that committee could scrutinise the directions under this provision. This is a particular executive power that we exercise and it is appropriate that the provisions in Amendment 112E should be made.

Baroness Sharp of Guildford: I have added my name to Amendments 112C and 112E. It is important that the fine print of the duty is spelt out in the guidance. It is extremely important that this should be put in the public domain and scrutinised by Parliament. I very much endorse the provisions of Amendment 112C. Similarly, in relation to the Secretary of State giving directions, it is important that this is transparent and in the public domain. Including such a report would actually be after the event. The scrutiny is not before the action but after it. Nevertheless, it brings the matter to public notice. It is vital that this is scrutinised by Parliament. I very much like the notion that a copy must be sent to the chair of the Joint Committee on Human Rights. That is appropriate given the interest that that committee has shown in these provisions.

Baroness Lister of Burtersett: My Lords, the concerns that were expressed in earlier debates about the draft statutory guidance underline just how important it is that that guidance is the subject of proper parliamentary scrutiny. Indeed, the Joint Committee on Human Rights, which has just been referred to, has recommended that the Bill should be amended to require the guidance to be approved by affirmative resolution of each House. I want to ask one specific question about the guidance. I do not know whether this is my bid for a letter but it would be good to have the answer in Hansard. The guidance sets out what is expected from student unions and societies in relation to the Prevent strategy, including making clear the need,

“to challenge … extremist ideas which are used to legitimise terrorism and are shared by terrorist groups”.

Both Universities UK and the National Union of Students have questioned how this is compatible with student union status as independent legal entities. My noble friend Lady Kennedy of The Shaws made reference to this in passing but did not actually pose the question of how it is compatible. The NUS also points out that student unions are already regulated by the Charity Commission so it could be awkward if they had to be accountable to two different bodies. I would welcome an explanation of this either now or, if that is not possible, in a letter. How do student unions fit into this and how will it be possible for universities to apply the guidance to bodies which are independent of them?

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Baroness Smith of Basildon: My Lords, clearly we have returned from our break reinvigorated, although I suspect that when noble Lords saw the words, “House adjourned for pleasure” while they ate with indecent haste, they might have wondered about the term “pleasure”. We will all claim some indigestion later.

I shall speak to all the amendments, including our Amendment 112CA. Yet again these amendments highlight the concerns around making sure that something is effective in practice, that the necessary checks and balances are in place, and that the reporting procedures will ensure that it is working as it should. Our amendment reflects a point made by my noble friend Lady Lister, which is that the guidance should be subject to the affirmative resolution procedure. That is important because the guidance we are discussing and which we will rely on is now out for consultation, and that consultation has not been completed. I think that the noble Lord has been both wise and helpful in pre-empting the consultation responses in his letter sent last night to noble Lords. It goes into some of the changes that can be made. However, the importance of the consultation is such that it is going to inform the guidance, which in turn will indicate to specified authorities what is going to be expected of them. I appreciate that noble Lords have pointed out in earlier debates that it is not prescriptive, but the role of the guidance will be crucial to how the specified authorities can ensure that they do not find themselves subject to a direction from the Secretary of State, which is quite a significant move. We should not underestimate the importance of the consultation and the guidance.

We are not going to see the guidance until the Committee stage has finished, so there will be no real opportunity to discuss it as we would like. Moreover, I do not know whether the Government are going to issue a formal response to the consultation. Indeed, the consultation itself had not been issued when the other place considered this Bill, and that is why we think it would be a sensible and practical move for the guidance to be considered by both Houses under the affirmative procedure. This has the support of Universities UK and million+.

Part 5 sets out a new duty which has a very wide range. It relates to schools, universities, prisons, the police and some public companies exercising a public duty. We had a long debate earlier about higher education. I also appreciate that recently there have been cases in Tower Hamlets and Birmingham which highlighted the need to bring schools within the Prevent agenda to see how it could be of positive assistance to them, although the Minister is probably very aware of the fact that we need further information on how that will work in practice.

However, I am struggling to understand why nurseries have been included in the list and how they are going to operate this. The noble Baroness, Lady Hussein-Ece, raised the same point earlier. We all know that young children say things that they do not understand and they do not mean. A young Muslim friend of mine was absolutely horrified when her nephew came home from school playing with an imaginary gun and saying that he was going to fight in Iraq. He does not know where Iraq is and he had no idea of what he was saying. He did not hear it at home, but somehow he

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picked it up. What would be the duty of the nursery when he said that? My nephew at the age of four caused great embarrassment to my younger sister when on a train back home one day he asked the German man sitting opposite him: “Are you a Nazi then?”. Where did he pick that up? One thinks of “Raiders of the Lost Ark”. Children say things that are inappropriate; that they do not mean or understand. I wonder how that fits in with the Government’s Prevent agenda and the duty that they are going to place on nurseries.

I declare an interest because my mum runs a preschool. It was a Church of England voluntary preschool; it is now state-funded under the Labour Government’s plans to provide nursery provision for three and four year-olds. It is Ofsted inspected. If I have to tell her that she now has a further duty to have due regard to ensure that her three and four year-olds are not drawn into terrorism, I wonder how she will respond and what the responsibility will be to ensure that she fulfils that duty. I joke slightly, but this is a serious matter. I do not understand how the Government expect people to fulfil that duty.

I have read the guidance and would be interested to know how many nurseries, preschool providers and childminders had access and would have known to respond and understood what there is. If the noble Lord is able to say at the end of the consultation how many responses there were from those providers, it would be interesting to get a sense of the legitimacy of the consultation.

If the concern is about parents, it is important for the welfare of a child that nursery staff have a very trusting relationship with parents. We should not take any action which undermines that. The Minister nods and I am sure that he understands the point I make. Why are nurseries included and how will the measure work in practice?

There is nothing in the guidance, it seems to me, that looks at the issue of online radicalisation. If you look at the risks of being drawn into terrorism—a point which has been made today by a number of noble Lords—the only route is not through university, as seems to be indicated in some of the documentation that we have seen. What action is proposed to counter radicalism, recruitment and grooming online? There is a significant case for far more to be done to tackle online grooming, extremism online and social media—all these different routes. This does not seem to be catered for in the guidance that is out for consultation.

Another point that has been raised, but is worth repeating when talking about the duty and parliamentary scrutiny, is the need for the Government to give further clarity on what is meant by extremism. Which definition should be used? I turn to the detail of the amendment. Clause 24 gives the Secretary of State the power to issue guidance to specified authorities about the exercise of their duty. The consultation ends on Friday. The Bill was semi-fast-tracked. We have not had the opportunity to benefit from the consultation results. I found the consultation documents quite narrow—as did other noble Lords—in how they expected people to respond. Without those responses it is absolutely essential that Parliament, not the Secretary of State, has the final say in how that guidance should reflect the responses to the consultation. Otherwise, all we

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are doing in the clause is to provide an enabling power for the Secretary of State. Given the impact that this will have, we think that such scrutiny from your Lordships’ House and from the other place is important.

Over the past week or so we have had discussions with various Muslim representative groups, the Muslim Council of Britain and MEND regarding their concerns about the Bill and particularly the Prevent duty. It is worth putting on record that in many cases we see that Muslim community groups and youth organisations have been among the most vocal in condemning extremism and extreme violence and in pointing out that the action of barbaric groups such as ISIL are not representative of the Islamic faith whatsoever. I would not want anything that goes out from the Bill or from the debates that we have today to undermine our acknowledgement of that.

We have to ensure that we continue to speak to those communities about their experiences and work together to try to counteract the issues that divide us. There is far more that unites us than divides us and the Prevent strategy is not going to work unless we have that interfaith and all-faith and no-faith understanding. It is because the Opposition support Prevent that we want it to be effective and proportionate. The guidance that the Secretary of State is going to issue will be crucial in this. That is why we believe it is so important that it has parliamentary approval.

9 pm

Lord Bates: My Lords, I am grateful to the noble Baroness for moving her amendment and to other noble Lords who have spoken in this debate. It may be helpful if I put on record a couple of points relating to the consultation on the guidance first.

The Bill was considered at Second Reading in the House of Commons on 2 December. It had three days in Committee—9, 15 and 16 December 2014—and then two days on Report, on 6 and 7 January. Third Reading also took place on 7 January. The draft guidance that we are considering today was deliberately published in mid-December so that it would be caught in part of that consultation process. It was certainly there, although as reflected in the Official Report in the other place, it was not given the same level of scrutiny that it has had in your Lordships’ House. That may have been to do with its availability, because people had not studied it in great detail or perhaps because other organisations and higher education institutions had not quite flagged up their concerns at that point, but that has been addressed now. Moreover, of course, subject to your Lordships granting the Bill a Third Reading, the amendments that there will be in this area will be considered in another place. I agree about the importance of parliamentary scrutiny, and this Bill has benefited immensely from it.

Before I go into the prepared remarks on the amendments themselves, I will just try to deal with a couple of issues. The noble Baroness, Lady Lister, asked whether the duty applies to the National Union of Students. The duty does not apply to student unions and societies, but institutions should have regard to the duty in the context of their relationships and interactions with student unions and societies.

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This requires clear policies about what activities are allowed to take place on campus. Policies should set out what institutions expect of student societies in relation to Prevent. We expect student unions and societies to work closely with their institution and to co-operate with the institution’s policies.

My noble friend Lady Berridge asked why the directions are private. The power to give directions will be subject to multiple layers of protection, including judicial oversight and that of the Prevent oversight board, on which my noble friend Lord Carlile provides independent representation. A direction would only be issued as a last resort and only after all other means of ensuring compliance with the duty had been exhausted. A decision to make a direction can be judicially reviewed, and if it is contested, it would come before a court to be enforced. All of these judicial processes are of course matters of public record. I also emphasise that the direction would only be likely to be made in order to ensure that the right policies and procedures are put in place according to the guidance in the institution. This is not designed to impose decisions in respect of individual cases and decisions that have been taken in those institutions. We do not feel the need for a level of transparency that requires all directions—of which there will be very few—to be made public in the way suggested.

As for definitions of extremism, we touched on this earlier, but, for the record, the definition that we are working with is,

“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”.

Calls for the death of British Armed Forces are also included.

The noble Baroness, Lady Smith, referred to the situation in nurseries and asked why they were covered. In the comprehensive list of the institutions covered, nurseries are included because they are public areas and the Government can inspect what happens in them as they are covered by certain government standards. There have, for example, been cases where individuals decided to travel to Syria and had actually taken children with them. That might be something. For example, a child might have mentioned that that was going to happen. That could be relevant to safeguarding the child. In all these things, I am conscious of something that the noble Lord, Lord Ramsbotham, was always fond of saying, which is that a failure of common sense is a failure of the rules, and we are expecting, in these circumstances, that common sense will prevail.

Baroness Smith of Basildon: I think that the noble Lord is making a good fist of it but it is not very convincing. He thinks there might have been a case or there could be a case where a child might let slip in a packed nursery that someone is going to Syria and that he or she could be taken with them. What we have here is a duty being placed on the staff of that nursery. Unless it is clear-cut what that duty is going to be and how it is to be undertaken by the staff, I struggle to find a good explanation for why it is in there. I hope that the paper arriving for him is enlightenment, and I will give him an opportunity to read it, but so far his explanation is not really very convincing. It is quite an

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onerous duty to be placed on staff, involving training, costs and so on. If he is able to offer any further enlightenment on why and how, I would be very grateful.

Lord Harris of Haringey: My Lords, while the Minister takes the opportunity to read fully the piece of paper that has just arrived, it seems to me that the argument that he is putting forward is about essentially providing a duty to support the Pursue function rather than the Prevent function. Of course, in a nursery and various other places information may emerge that could actually be important in terms of pursuing, preventing or interdicting a particular terrorist act. That is slightly distinct from what we are talking about here, which is preventing people from going down the road of becoming terrorists. The examples that the Minister has given have been more about the Pursue end of the counterterrorism strategy rather than the Prevent end.

Lord Bates: In that case, it is probably the fault of the rather poor example that I gave rather than the actual guidance as it is. Essentially, it says to a responsible person within any nursery, “There is a general Prevent review where we are trying to prevent people from being drawn into terrorism”. The responsible person would want to know, “What does that mean for us? If we had a circumstance where that came to light, what would we actually do? Who would we report it to? If we had any concerns, what would we do?”. The fact that that procedure is written down and that somebody has actually thought about what that procedure would be complies with the guidelines. It is the duty to have due regard to the guidance.

The amendments in this group relate to a number of matters concerning the duty itself and the guidance to be issued under it. I begin with the amendments that deal with parliamentary scrutiny of the guidance, which were tabled by the Opposition and my noble friends. Amendments 112C and 112CA would require that the guidance may be issued only subject to parliamentary approval. The Bill already provides that the Secretary of State may consult before issuing guidance. That consultation has been running for six weeks and closes on 30 January.

This public consultation has provided ample opportunity for interested parties to scrutinise and influence the guidance. The final guidance will have benefited from extensive consultation and expert input, including contributions to debates in your Lordships’ House.

The approach that we have taken to this guidance is not uncommon. I note that the Delegated Powers and Regulatory Reform Committee did not recommend any additional parliamentary scrutiny of the guidance in its report on the Bill. I take this opportunity to thank the committee, and particularly my noble friend Lady Thomas of Winchester, for producing its report so efficiently in order to support your Lordships’ scrutiny of this legislation. In view of this, and although we of course value the importance of parliamentary scrutiny, the Government do not believe that it is crucial for the guidance to be subject to parliamentary approval.

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Amendment 112BA would require the guidance to “deal with equalities issues”. I assure my noble friend Lady Hamwee that this is an issue that the Government take extremely seriously. In drawing up the final version of guidance, we will certainly consider any equalities issues that have arisen since we published the draft for consultation. Of course, many of the specified authorities will already be subject to the public sector equality duty in the Equality Act 2010. I hope she is reassured that her amendment is not necessary in the light of these considerations.

Amendments 112BB, 112BC and 112CB would further increase requirements to consult on the guidance. I assure your Lordships that the Secretary of State will of course consult specified authorities before issuing guidance that affects them. As I have said, we are just coming to the end of a full public consultation on the guidance. However, it will not always be necessary to consult all specified authorities in all cases. For example, there might be a case where part of the guidance relating to just one sector is to be revised and it would not be appropriate to consult all specified authorities on such revisions.

Amendment 112BC would require specified authorities to consult their local or relevant communities. This might be good practice in some cases. However, the duty is on the specified authority, not their relevant communities, and this consultation would impose additional costs. There might also be cases where it would not be appropriate to consult communities. For example, in making amendments to the guidance to the prisons sector, it might not be appropriate to consult the prison population. As such, we consider this to be a matter best left to specified authorities to consider and to decide.

Amendment 112CB would remove reference to the Secretary of State as being the person who should decide whether a revision to the guidance is insubstantial. The amendment accepts that insubstantial changes should not require consultation and that someone must make the decision on whether a change is insubstantial. It remains the Government’s view that the decision should fall to the Secretary of State, given her responsibilities to Parliament. This is consistent with standard practice on this type of issue.

I shall now respond to the amendments that relate to the Secretary of State’s power to issue directions. Amendment 112DA would make the power to issue a direction subject to the specified authorities having the opportunity to make representations. Amendments 112E and 112F would require the Secretary of State to issue a report to Parliament after making such a direction.

I reassure your Lordships that a number of safeguards are already built into this direction-making power that make these amendments unnecessary. The legislation makes clear that the power can be used only where a specified authority has failed to discharge its duty to have due regard to the need to prevent people being drawn into terrorism, in the assessment of the Secretary of State. This narrows the circumstances in which the power could be used. The decision to issue a direction to bring about compliance could then be judicially reviewed, following the normal principles of such reviews.

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Further, the direction is enforceable only by application to a court for a mandatory order. The court would not exercise its discretion to issue an order if it felt that the direction had been issued unreasonably. Of course, court decisions stand to be appealed against.

The Government would consider using the power only where other efforts to address the failure had been exhausted. The decision to recommend that the Secretary of State issue a direction would have been considered in detail by the Prevent oversight board, on which, as I have already mentioned, my noble friend Lord Carlile sits as an independent member. There would also have been detailed discussions with the specified authority beforehand, including the opportunity to make representations at that stage.

This debate has been an insightful introduction to the consideration of the Prevent duty. I hope that my remarks, in which I have been able to expand on previous statements, may reassure noble Lords. In that regard, I invite them not to press their amendments at this stage.

9.15 pm

Lord Harris of Haringey: Before the noble Baroness, Lady Hamwee, makes that decision, I revert to the question of what it is that is being required and one of the reasons why that might imply that it is better to have more consultation about it. One of the reasons why some of the previous Prevent programmes failed, and fell into disrepute with the communities concerned, was that they were not seen as about preventing people from going down the road to become dangerous, violent extremists. Rather, they were seen as being programmes that put a series of spies in the camp and were about reporting individuals to the authorities for action to be taken against them. Speaking personally, I am all for mechanisms that identify people who are a danger to the rest of us and make sure that appropriate steps are taken, but this was perceived as being the authorities intervening and getting the data. We are going to come to this subject in a minute, but when I questioned the Channel panels as to why the intelligence services were not specifically listed as an agency involved in that, the argument given at that stage was that it was because it would make it look as if the Channel panel process was part of a process of ratting on individuals to the authorities.

It is important to get this guidance in a form where the communities understand that it is not about pointing the finger at individuals in a way that might lead them into trouble with the authorities, but is a way of supporting individuals and preventing them going down that road. That is why this distinction of whether this is about “prevent” or “pursue” is so important, as is getting public and community buy-in to the way in which this is enforced.

Baroness Hamwee: My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the

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situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.

Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—

Lord Carlile of Berriew (LD): I am grateful to my noble friend for allowing me to interrupt her. The Minister, during the course of his speech a few moments ago, mentioned the Prevent oversight board on a number of occasions and kindly referred to my involvement. Does he agree with me that, if the Prevent oversight board is to have a realistic oversight role, it should meet reasonably often; it should be able to choose what it reviews from time to time; and it should be heavily involved in the quality control of Prevent schemes around the country rather than, as at present, meeting very rarely and not really carrying out a great deal of detailed scrutiny?

Baroness Hamwee: I am not sure whether that was a question for me; I assume it was, although it seems to be beyond the amendments that we are dealing with here. In making that point, though, I think my noble friend is pointing to the breadth, depth and complexity of this issue and to the need to keep everything under review and to be open to making changes as it becomes apparent that they are needed. This sort of guidance needs time for those who are affected to trickle down consultations, sweep up the responses and reflect back—perhaps this goes to my noble friend’s point as well—experience on the ground.

Like the noble Baroness, I mentioned nurseries in the first group and said rather more about the bureaucracy involved, which would be inappropriate for small organisations such as the nurseries, pre-schools and primary schools that we are talking about. It is about the substance as well as the bureaucracy. I was reminded by her anecdote of the six year-old son of a friend who was being visited by a German family. The child came downstairs going—I do not know how Hansard can reproduce this—“Rat-a-tat-tat”. He was asked, “What are you doing?”, and replied, “I’m killing dirty Germans”. That is exactly the same sort of experience, but how should one react to that?

On the individual amendments rather than the generality, I am glad to hear that the Government will consider equalities issues. What the Minister was given to read was that the Government will, “consider any equalities issues that have arisen since we published the draft for consultation”. There will be issues, I think.

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I will not get into a discussion at this time of night on the philosophy of consulting the population of prisons, although I think there is quite an interesting debate to be had about that.

Under my Amendment 112CB, the Secretary of State would have to take the decision about whether or not proposed revisions to the guidance were substantial, but that should be by an objective test, not a subjective one.

In summary, I come back to two words: transparency and safeguards. I will of course consider the detail of what my noble friend said, but it is quite clear to me that, with perception being so important as well as reality, we have to reduce the opportunity for incorrect perceptions as well as everything else.

Amendment 112BA withdrawn.

Amendments 112BB to 112D not moved.

Clause 24 agreed.

Clause 25: Power to give directions

Amendments 112DA to 112F not moved.

Clause 25 agreed.

Amendment 113

Moved by Lord Bates

113: After Clause 25, insert the following new Clause—

“Monitoring of performance: further and higher education bodies

(1) In this section—

“monitoring authority” has the meaning given by subsection (4);

“relevant further education body” means the governing body or proprietor of an institution in England or Wales that—

(a) is subject to the duty imposed by section 21(1), and

(b) is subject to that duty because it is an institution at which more than 250 students are undertaking courses in preparation for examinations related to qualifications regulated by the Office of Qualifications and Examinations Regulation or the Welsh Government;

“relevant higher education body” means the governing body or proprietor of an institution in England or Wales that is subject to the duty imposed by section 21(1) because it is—

(a) a qualifying institution within the meaning given by section 11 of the Higher Education Act 2004, or

(b) an institution at which more than 250 students are undertaking courses of a description mentioned in Schedule 6 to the Education Reform Act 1988 (higher education courses).

(2) A relevant further education body or relevant higher education body must give to the monitoring authority any information that the monitoring authority may require for the purposes of monitoring that body’s performance in discharging the duty imposed by section 21(1).

(3) The information that the monitoring authority may require under subsection (2) includes information which specifies the steps that will be taken by the body in question to ensure that it discharges the duty imposed by section 21(1).

(4) The “monitoring authority” for a relevant further education body or a relevant higher education body is—

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(a) the Secretary of State, or

(b) a person to whom the Secretary of State delegates the function under subsection (2) in relation to that body.

The Secretary of State must consult the Welsh Ministers before delegating the function under subsection (2) in relation to institutions in Wales.

(5) A delegation under subsection (4)(b) must be made by giving notice in writing to the person to whom the delegation is made if—

(a) that person is Her Majesty’s Chief Inspector of Education, Children’s Services and Skills or Her Majesty’s Chief Inspector of Education and Training in Wales, and the function is delegated in relation to relevant further education bodies;

(b) that person is the Higher Education Funding Council for England or the Higher Education Funding Council for Wales, and the function is delegated in relation to relevant higher education bodies.

(6) Otherwise, a delegation under subsection (4)(b) must be made by regulations.

(7) The Secretary of State must publish any notice given under subsection (5).

(8) Regulations under subsection (6) are to be made by statutory instrument; and any such instrument is subject to annulment in pursuance of a resolution of either House of Parliament.

(9) In this section—

(a) “institution in England” means an institution whose activities are carried on, or principally carried on, in England, and includes the Open University;

(b) “institution in Wales” means an institution whose activities are carried on, or principally carried on, in Wales.

Lord Bates: My Lords, with the leave of the House I will take Amendments 113 and 114 together. Throughout our debates the Government have made it clear that we will rely on existing monitoring regimes for the relevant sectors. That remains the case. Although publicly funded further education is monitored by Ofsted, no such regime currently exists for all higher or private further education. We have asked the higher and further education sectors about monitoring of the Prevent duty as part of the consultation on the draft guidance, which has been undertaken in parallel to the passage of the Bill. I am pleased to say that in the discussions we have had, the sector has been broadly supportive of a limited regime, such as the one we are proposing.

Universities are not inspected. Rather, they are currently subject to limited monitoring and assurance regimes that apply to quality of provision and to accounting for the use of public money. Those regimes are based on risk and are designed to be proportionate and not burdensome. The overwhelming view expressed in the discussions so far has been to agree that a monitoring regime for this duty should be one that is both recognisable to the part of the education sector to which it is being applied and proportionate to the duty being placed upon the sector. We have achieved that with these amendments.

The amendments will allow the monitoring authority to require the provision of information by relevant education institutions to assess compliance with the duty. Information that institutions might be asked to provide to monitoring bodies could include details of risk assessments relating to how students might be at risk of being drawn into terrorism, policies and procedures

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on speakers and events, and on IT. We fully expect an institution to co-operate with the monitoring authority. However, there may be rare cases where the institution does not co-operate and, in such cases, where the monitoring authority has exhausted all other options to address the failure, the amendments allow the relevant Secretary of State to make a direction.

This is a serious step that we would not like to see taken unless it is strictly necessary. For that reason, the amendments allow for a monitoring authority—for example, when not satisfied that an institution has adequate provisions in place to comply with the duty—to request information about steps that the institution plans to take to ensure that it discharges its Prevent duty correctly. We expect this to be sufficient to avoid the use of direction in all but the most serious cases.

If an institution has failed to provide adequate information about compliance with the duty in spite of repeated approaches by the monitoring authority, we would expect any direction necessary to be given by the appropriate Secretary of State. That means the Secretary of State for Business, Innovation and Skills in England, not the Home Secretary and, for institutions in Wales, we expect it to be the Secretary of State for Wales, in consultation with the relevant Welsh Ministers. The amendments allow for the relevant Secretary of State to undertake monitoring or to delegate the function. We do not envisage that the Secretary of State will actually undertake this function, but it is important to explain the technical reason for including this possibility.

We may wish to consider whether the Skills Funding Agency is an appropriate monitoring body for part of the sector and if, in consultation with the further education sector, we determine that it is, then we would technically need the Secretary of State to deliver that function. That is because of the proposed legislative changes to abolish the office of chief executive of skills funding in the Deregulation Bill, which will mean that the Skills Funding Agency will become part of the Department for Business, Innovation and Skills and will operate through the powers and duties of the Secretary of State.

Going forward, the department with responsibility will work with the monitoring bodies and, once they have been confirmed, we will work with the sector to draw up a monitoring framework that sets out more explicitly how we expect to monitor compliance with the duty. I beg to move.

Lord Hope of Craighead: My Lords, I think I understand the purpose of the clauses from the explanation that the Minister has very helpfully given. He will not be surprised to hear that I have spotted that there is no mention of Scotland in either of these two clauses. As I mentioned earlier, if one looks at Clause 41 one sees that Part 5 of the Bill applies to Scotland as well as to England and Wales. Therefore, as far as I can judge, all the other clauses in this part are carefully designed to apply to that jurisdiction as well as to England and Wales. It is very strange that no mention is made of Scotland in either of these clauses or in the noble Lord’s explanation of their purpose. I may be wrong, but the equivalent bodies exist in Scotland to enable a similar system to be carried out.

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Is it simply that under the normal conventions, the Government have been unable to secure the agreement of the Scottish Government to these clauses, and will come back at a later date—perhaps before Third Reading or possibly in the other House, if this has to go there —or is this a deliberate intention not to apply the monitoring system to Scotland? If that is the intention, I would be very interested to know why that decision was taken.

9.30 pm

Baroness Lister of Burtersett: My Lords, I have a few questions concerning the role of HEFCE as the appropriate monitoring body. I was slightly surprised when I heard that it would play that role. What expertise does it have as primarily a funding body—albeit, I accept, with some wider governance oversight? Is there not a danger that the chilling effect will be that much greater if compliance is policed by the funding body?

Will the Minister also explain how HEFCE will regulate those HE institutions with which it has no formal funding relationship? Finally, I understand that reference to “the Secretary of State” means the Home Secretary. However, Universities UK argues that it is inappropriate for HEFCE to be given directions by the Home Secretary; there is the whole question about the independence of universities anyway, but in so far as there is such a relationship, normally HEFCE has a relationship with BIS, not with the Home Office. I would therefore appreciate the noble Lord’s reflections on those questions, because I know that there are concerns in the HE sector about the role of HEFCE— I do not know what its own view is on that.

Lord Bates: My Lords, I am grateful to noble Lords for their questions. I will first deal with the questions from the noble Baroness, Lady Lister, on HEFCE. As the noble Baroness will be aware, that is one of the questions we specifically ask on page 21 of the consultation:

“Do you agree that the Higher Education Funding Council for England is the appropriate body to monitor compliance with this duty? … Are there other higher education regulatory bodies that should be involved in monitoring compliance?”.

In many ways the short answer is that we are consulting on that. That was one of the reasons why when I introduced the government amendments I said that in certain cases we nominate the Secretary of State for Business, Innovation and Skills as the designated person for these purposes. I hope that addresses that point.

I turn to the point mentioned by the noble and learned Lord, Lord Hope, on Scotland, which he raised in the previous context as well; as I have stated, it is our hope and intention to add Scottish bodies to Schedule 3 in due course. At such point we could look at making consequential amendments to this clause to make it applicable to Scotland. The other one relates to Northern Ireland. On the application of free speech in Scotland, which was referred to previously—I take the opportunity because the notes happened to arrive together—this part of the Bill applies to England, Wales and Scotland, but as yet no Scottish bodies are listed in Schedule 3; I made that same point earlier.

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However, we will look carefully at the wording used, to ensure that it applies equally across all territories, so the basic answer is what I already said in this regard.

Lord Hope of Craighead: Is it the intention to make further amendments by statutory instrument rather than by primary legislation? Obviously, if we had to come back with an amending statute, that would take time and be a rather laborious business. I wonder whether a better precaution would have been to put some kind of structure into the Bill at this stage, as is done elsewhere in this part, on the assumption that a number of Scottish authorities or institutions will be added to Schedule 3. But if it is possible to do it all by order the problem disappears, because that can be done quite simply.

Lord Bates: Perhaps I could reflect on that a little more and then return to it. Of course, there is still parliamentary time for further consideration of the Bill, and for Scottish bodies to be named and listed. We would be happy if that happened in time for them to be included on the face of the Bill. I shall consider further the noble and learned Lord’s point.

Amendment 113 agreed.

Amendment 114

Moved by Lord Bates

114: After Clause 25, insert the following new Clause—

“Power to give directions: section (Monitoring of performance: further and higher education bodies)

(1) Where the Secretary of State is satisfied that a relevant further education body or a relevant higher education body has failed to comply with a requirement under section (Monitoring of performance: further and higher education bodies)(2), the Secretary of State may give directions to the body for the purpose of enforcing compliance.

(2) A direction under this section may be enforced, on an application made on behalf of the Secretary of State, by a mandatory order.

(3) The Secretary of State must consult the Welsh Ministers before giving directions under subsection (1) in relation to institutions in Wales.

(4) In this section “relevant further education body”, “relevant higher education body” and “institution in Wales” have the same meaning as in section (Monitoring of performance: further and higher education bodies).”

Amendment 114 agreed.

Amendment 115 not moved.

Clause 26 agreed.

Amendment 115A

Moved by Lord Phillips of Sudbury

115A: After Clause 26, insert the following new Clause—

“Impact Report

(1) Before the provisions of this Chapter may come into force in respect of the specified authorities set out in Schedule 3 under the heading Education, child care etc., the Secretary of State must

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prepare a Report on the potential direct and indirect impact howsoever of this Part on the specified authorities affected, on those attending the same in whatever capacity, and on society generally.

(2) In particular the Report shall assess the impact referred to in subsection (1) in relation to the cultural and financial consequences.

(3) The Report shall also specify comparable legislative arrangements in other Member States of the European Union, the United States of America and the countries of the Commonwealth.”

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 118A states that,

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

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

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

That is not a basis on which to bring forward legislative impositions—for that is what they are. It would be folly for us to go ahead without requiring the Secretary of State to produce a sufficient review so that Parliament, when it comes to consider Chapter 2, will have at its back enough information, fact and evidence to enable

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it to reach the right decision. Amendment 118A also talks about the review dealing with the effectiveness and shortcomings of the present Prevent strategy.

9.45 pm

Finally, Amendment 123 says very simply that there must be an affirmative resolution in order to bring Chapters 1 and 2 into effect and that both Houses shall not be asked to consider that until they have had at least one month to consider the review and the report laid before them. This is manifestly reasonable, given that we have Report seven days from now and that the consultation, which is so vital to our understanding of the purport of Part 5, is not yet complete. I do not see how the Government can sensibly and reasonably come before us in a week’s time with views on all the issues canvassed in this 39-page document. I hope that this set of amendments will appear to the Committee as manifestly sensible and reasonable. I beg to move.

Viscount Hanworth (Lab): My Lords, my name is also attached to the amendments in this group and I strongly support the remarks of the noble Lord, Lord Phillips.

One of the most arresting testimonies that I have heard recently concerns the way in which the alienation and radicalisation of young British Muslims has been related to a rising tide of Islamophobia. It would be wrong to suggest that the existing Prevent strategy is grounded in Islamophobia, but there are clear indications that it has added to the sense of alienation. In other words, the strategy has already become counterproductive. By placing the strategy on a statutory basis and by mandating acts of surveillance on the part of various public institutions, the damage that has already been done is in danger of being exacerbated. The danger can only be averted if the Prevent agenda is pursued with sensitivity and with a light touch and if it is subject to careful and ongoing parliamentary scrutiny. Amendment 115A and the other amendments with which it has been grouped seek to ensure that there will be some scrutiny at the outset. I observe that these amendments are conformable with Amendments 112C and 112E, which concern the need to review the guidance on subsequent occasions.

The consultation document titled Prevent Duty Guidance gives an indication of what might transpire if the strategy were unleashed in an unbridled manner. It has the potential to give rise to an era comparable to the post-war era of anti-communist persecution in the United States, known as the era of McCarthyism. The document describes a duty to prevent people from becoming terrorists and a duty to challenge terrorist ideas. These duties will be imposed on specified institutions: hospitals, schools, prisons, young offender institutions, universities and local authorities. The intention is that the Secretary of State should have the freedom to specify the duties that will be incumbent upon each category of institution, without submitting them to parliamentary scrutiny. Little regard has been given to the potential within the institutions for fulfilling such duties. Nevertheless, it is proposed to establish an inspection regime that will determine whether the duties are being fulfilled. If they are not fulfilled, then it is proposed that penalties may be imposed.

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Specially appointed agents may be assigned to the institutions to ensure their compliance with the statutory obligations. We are told that the specified institutions must demonstrate evidence of productive co-operation with local Prevent organisations, the police and local authorities. Those in positions of leadership must ensure that the staff of their institutions implement their Prevent duties effectively. To this end, they will need to ensure that the staff are appropriately trained.

People suspected of being involved in terrorist-related activities must be reported to the police. If I understand correctly, terrorist-related activities are deemed to include non-violent extremism, which would make the category very wide and ill-defined. All the activities in fulfilment of the duties must be recorded, and reports of compliance must be made available on request.