These provisions are quite sufficient for the creation of a totalitarian police state. If that sounds far-fetched, that it is only because, in view of the nature of British society and its ingrained resistance to tyranny, such an outcome seems unimaginable. However, I suggest that our complacency in itself is not a sufficient protection against tyranny. Instead, we need to ensure that our legislation does not sanction such dangerously oppressive powers. To fulfil the various injunctions of the statutory Prevent strategy, the institutions will need to establish specialised units. The Home Office will be charged with monitoring all the resulting Prevent activity and ensuring that every specified institution has a suitable inspection regime.

An immediate concern is the expense that would be entailed in even a partial fulfilment of the agenda of the statutory Prevent programme. In this connection, I can speak of what I have experienced within the university environment. There are already precedents that provide ample warning of the deleterious effects of centrally directed inspection regimes. I have in mind the quality-assurance regimes to which universities have been subjected since the late 1980s. These have entailed considerable expense. They have pre-empted the time of lecturers and others, who have been required to provide extensive documentation of their activities and to submit reports to demonstrate compliance with the nostrums of the regimes. They have inhibited flexibility and innovation and imposed a heavy workload. This is exactly what we should expect from a centrally imposed, statutory Prevent agenda. The superfluous compulsory training courses that it mandates and the reports of compliance that will be demanded are aspects that are all too familiar to those who have served in universities in recent years. The injunction that lecturers should spy upon their students will subvert the essential relationship between staff and students. It will make it difficult for those charged with the pastoral care of students to discern what is actually happening in their lives. The injunction that all visiting lecturers should submit their material to prior inspection is absurd and unworkable; others have already commented on this point.

Finally, I should say that there is no evidence that I am aware of to suggest that the existing voluntary Prevent programme has been effective in averting terrorist outrages. Instead, this has been achieved by careful police work that has depended on the close co-operation

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of the Muslim community. To an extent that cannot be determined, it has been assisted by covert—that is to say, non-intrusive—surveillance and cyber-intelligence. It is these aspects of the counterterrorist strategy that need to be enhanced. A statutory Prevent strategy will be of no assistance in either connection.

Lord Bates: My Lords, I thank my noble friend for moving the amendment and giving us the opportunity to consider the important issues that he has raised. I agree with him that it is quite proper that the Government undertake reviews of policy and strategies from time to time to ensure they remain relevant and effective. The Government comprehensively reviewed the Prevent strategy in 2011. Since then, we have kept the various elements of the strategy under review. This has been part of regular business and in particular part of the annual report on our counterterrorism strategy, Contest, which is laid before Parliament. In the light of that, we have expanded the Prevent priority areas to reflect the changing threat, prioritised those that we feel are most effective and increased guidance and support for the voluntary Channel programme. In addition, the Prime Minister’s extremism task force was established in the wake of the murder of Drummer Lee Rigby,

“to identify any areas where the current approach was lacking”.

That task force reported in December 2013, just over one year ago. One of its conclusions was that delivery of Prevent should be put on a statutory footing in areas of the country where extremism was of most concern. The duty outlined in Clause 21 does just that. It does not limit itself to specific areas of the country. As the subsequent geographical spread of travellers to Syria has shown, such travellers can come from areas beyond those of most concern and listed under the current arrangements for Prevent.

Reviews of strategies can take many months to complete. It would be wrong in our view if we were to ignore the findings of the extremism task force and delay the implementation of this important duty in order to carry out yet another review. Should such a review take place at some point and recommend, in the light of actual experience of the implementation of the duty, that changes be made—for example to the authorities listed in Schedule 3—then the Government would be able at that point to lay regulations amending that schedule, which would need to be approved by both Houses.

Regarding the report to be provided prior to commencement, we have already published impact assessments on the measures in the Bill. As for the comparable legislation in other countries, the UK’s efforts in the field of Prevent are considered by most of our allies to be several years in advance of where they currently are.

I say to the noble Viscount, Lord Hanworth, who spoke on this, that when we are talking about a duty that is effectively about the upholding of democracy, tolerance and respect for others I do not think it is in any way appropriate to draw upholding those values akin to a totalitarian approach. I know that he was trying perhaps to provoke us into some further response. What we are talking about here is how, as a free liberal society, we react to a growing threat from within our

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society from people who seek to challenge those very basic freedoms and who pose a serious risk through potential violence to individuals, be they on campuses or in wider society. That was why when we had an extensive review of the Prevent strategy—which was launched in 2010 and, I think, published in 2011—it took the view that we should focus on national security as the priority of Prevent. That is why the Prevent programme has changed to being one of safeguarding and protecting people’s liberties in our society. I think that is right. It is kept under review, as I have tried to outline to my noble friend, and there are opportunities caused by that systematic review for Parliament to consider the progress of the strategy as it moves forward. In the light of that, I wonder if he might feel able to withdraw his amendment.

Lord Hannay of Chiswick: My Lords, the Minister will not be surprised to hear that his response is a little disappointing on this matter—predictable but disappointing. If the Government are not going to move in the direction suggested by these amendments and by some of the others that we have discussed, will the Minister register that it becomes ever more important that next week we hear from the Government not the full detail but some of the ways in which they intend to improve the guidance that they give to higher education institutions, to make it more positive and clearer about the Government’s support for our higher education institutions, which are some of the best in the world? We also need to hear from the Government their determination to allow some of the fears that have been expressed by those who have put forward a lot of amendments today to be met in some respects.

I hope that when the Minister reflects on this—as he agreed to do when we debated the previous group—he will think about how he can come forward on Report with clear and precise indications of areas where the Government are going to improve the guidance following the end of the consultation. I understand that it will take much longer to produce the full guidance, but I think that having that clear indication on the record will be helpful in our further consideration of the Bill.

10 pm

Lord Bates: Obviously I am sorry if the noble Lord feels that the response was not adequate. The amendment was trying to say that there should be some regular means of assessing the effectiveness of the measure and its impact on higher education institutions. I was trying to set out several existing mechanisms by which that reporting and accountability to Parliament could take place. In relation to the other point, I said earlier that in a sense, as a first stage, my letter of yesterday was a step down the path towards what I hoped he would find was a fuller response regarding how this might work. I shall look to take further steps as we move into Report and Third Reading in this House.

Lord Phillips of Sudbury: My Lords, I thank my noble friend the Minister, but I am afraid that I shall be even less complimentary than my co-signatory to the amendment, the noble Lord, Lord Hannay. I believe that my noble friend gave us no new facts at all.

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We have had extraordinarily little by way of evidence or factual backing for this. For example, his letter, which he put in the Library yesterday, refers to two students—one, I seem to remember, a Swedish student and the other an American student—who had been influenced at their universities. There was nothing about English students. We have had nothing about the cost to universities, direct and indirect. He has not attempted to deny, because it is undeniable, that it will be a heavy bureaucratic burden, as my noble friend Lord Hanworth said. If we are acting responsibly, we really need to know these things before we plunge in. It is no good saying that there will be a report next year. It will then be too late to reverse the compulsory legislative nature of this measure, destroying the hugely valuable voluntary basis upon which the Prevent strategy currently takes place.

Lord Bates: All the way through, we have tried to say that we envisage a light-touch duty to have regard to systems which will already be in place. I do not imagine that there is an academic institution in the land or in the world that does not have policies for the welfare of its students, for risk assessments, for online safety and for the conduct of meetings. Therefore, I expect that we are talking here about, if necessary, a small addition to what is already happening in existing institutions.

Lord Phillips of Sudbury: I thank my noble friend for that but I have to disagree with him. He talks about a small addition to the present state of affairs. The universities are telling us loud and clear that it is not a small addition; it is a massive new addition. Before we make this decision, some attempt has to be made to find out the cost to government. I think that even the present voluntary panels in the counties cost £26 million a year. That will be but chicken feed if the universities are subject to this new regime with this vast statutory guidance.

I will leave it at that for tonight, but I hope that my noble friend will endeavour to come back at Report, as the noble Lord, Lord Hannay, suggested, with something a great deal more satisfactory by way of background to the need for this than we currently have. Perhaps we can have a conversation before then, but the time is terribly short. I beg leave to withdraw the amendment.

Amendment 115A withdrawn.

Clause 27 agreed.

Clause 28: Assessment and support: local panels

Amendment 115AA

Moved by Baroness Hamwee

115AA: Clause 28, page 16, line 32, after “police” insert “or the responsible local authority”

Baroness Hamwee: My Lords, Amendment 115AA takes us back into Chapter 2 and the Channel programme. Clause 28 deals with local panels for assessment and support. The Bill provides that a chief officer of police

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can refer an individual to a panel. I was requested to raise the first of my amendments in this group by London Councils to allow local authorities as well as the police to make direct referrals in order to access specialist support for individuals who are identified as vulnerable to being drawn into terrorism. London Councils is concerned that the provisions might have the effect of limiting the access of public bodies other than the police to a key source of support. It gives as an example a teacher who may spot a pupil who has been accessing extremist materials and refer that pupil to the local authority under the school safeguarding policy. The local authority might conduct an assessment under safeguarding and child protection legislation, agree that the pupil is vulnerable to radicalisation and decide that the sensible next step would be for the case to be considered by the panel in order to access appropriate support.

London Councils is also concerned that, as drafted, an unbalanced relationship between the police and local authority would be created. The local authority of course would chair the panel. Another concern is that cases that come up before a panel are “deconflicted” by the police to ensure that the person concerned is not subject to an active investigation before a support plan can be put in place. I would be grateful if my noble friend could respond to that offer from local authorities to be even more active.

Amendment 115AB takes us to what the support plan would include. It returns to points that I have already made about discrimination, grassroots, bottom-up and perceptions. I suggest a reference to people,

“who will be consulted in keeping the plan under review”,

in order to ask about the role of the local community, religious leaders, the family and so forth and how they will be recognised.

Amendment 115AC is about the support that the panel may put into place. We are told that it must consider reference to a provider of health or social care services. Those are not the only services. I seek to add the words “or other”; for instance, housing. I know that Ministers have referred to Jobcentre Plus and so on. There are a number of other services which might be appropriate for an individual. I do not whether counselling would come within local care, but certainly that is also one which should be considered.

The last of my amendments in this group is Amendment 118ZA. It would amend Clause 32, which is about indemnification. We are told that the Secretary of State may agree to indemnify a support provider against reasonable expenses. I think that that should be “shall”. We have already more than touched on necessary expense and good investment but nevertheless there is concern about the expense of the sorts of programmes we have been discussing today. The authorities that will be required to undertake these various duties and activities will be very stretched to find the money for them and questions of prioritisation will arise. If I can be told that “may agree to indemnify” actually means “shall” in the odd way we sometimes seem to go about drafting legislation, that is fine, but I am certainly looking for some sort of reassurance. I beg to move.

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Baroness Sharp of Guildford: My Lords, I have added my name to Amendment 115C in this group. We have tabled this amendment because a number of organisations and members of the education profession have raised with us the issue of how far the provisions in Clause 28 will become counterproductive by destroying the relationship of trust between teacher and student. At their crudest, the duties being laid on the professionals concerned might be described as “snitching” on their pupils. The noble Lord, Lord Harris, who is not in his place at the moment, talked about spies in the camp as well as the perception of these provisions. I should like to quote from a recent edition of Times Higher Education:

“The draft legislation also proposes processes of referral for students considered at risk of succumbing to radicalisation. Universities will be required to train all staff who have contact with students to recognise what Brokenshire”—

the Minister in the Commons—

“called being ‘withdrawn and reserved, and perhaps showing other personality traits’. Where these traits are identified, the university must refer the student to a panel set up by the police and the local authority. The panel will oversee and administer a safeguarding programme which may include referral to the health services”.

There is obviously a balance to be struck here. We have all agreed in our debates that the Bill addresses serious problems, but there is also considerable worry that these requirements will destroy important relationships between teachers and students. The Association of School and College Leaders has talked about how the lack of certainty over the definitions of terms such “extremism” will make it difficult for schools and colleges to know with sufficient certainty whether they risk being found to be in breach of the new duty. The association states:

“The proposed powers to the Home Secretary, particularly with no parliamentary oversight, could have serious negative consequences for the curriculum and/or pastoral functions of schools and colleges”.

The association goes on to say:

“The implied duty to report children and young people ‘at risk’ to the police for referral to the Local Panels is problematic because schools and colleges may be unwilling to sacrifice relationships and trust on the basis of suspicion or may go to the other extreme and try to cover themselves by reporting every risk”.

These uncertainties and ambiguities will apply as much to other professions, especially those in the NHS and mental health services. There are real worries that making these duties statutory, instead of the present voluntary co-operation which gives room for judgment and flexibility, will result in a risk-averse and inflexible system which, rather than helping, has the reverse effect of alienating the students and making them more susceptible to extremist propaganda via the internet and social media. This is a very worrying issue which should be taken seriously. It strengthens the case for the implementation of Part 5 of the Bill being delayed until the authorities have had a chance to consult more widely and consider the possible unintended consequences of what is being proposed.

10.15 pm

Lord Rosser: My Lords, we have one amendment in this group, Amendment 115AD. Its effect is to give the Secretary of State statutory responsibilities in supporting local assessment and support panels exercising their

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functions under Clause 28 by requiring the Secretary of State: to provide guidance—rather than it being optional—on the exercise of the panel’s functions; to provide a list of approved providers for de-radicalisation programmes; and to ensure that the approved providers are subject to monitoring.

Under Clause 28, each local authority must ensure that a panel of persons is in place for its area with the function of assessing the extent to which identified individuals are vulnerable to being drawn into terrorism. That panel, whose chair has to be the responsible local authority, must, among other duties laid down in Clause 28, prepare a plan in respect of identified individuals whom the panel considers should be offered support for the purpose of reducing their vulnerability to being drawn into terrorism.

The effect of Clause 28 is to put the voluntary programme for people at risk of radicalisation, in operation since 2012 and known as Channel in England and Wales, on a statutory basis alongside the rest of the Prevent programme. Local authorities will not need to establish a new panel if there is already one which carries out the functions set out in Clause 28. The reason for taking this step is stated in the Government’s impact assessment as being to secure effective co-operation from multi-agency partners and ensure that good practice can be recognised, shared and applied between areas using common practices to further improve implementation of the programme. However, while the Government are putting these statutory duties on local authorities in respect of the panels, there appear to be no similar provisions to ensure that they are supported by central Government. Indeed, the Government’s factsheet on the Bill also states that there will be no extra funding for councils and local areas.

Under Clause 28, a chief officer of police must make the referral of an individual to the local support panel. As provided for in the Bill, local support panels have to assess the individual’s risk of radicalisation and tailor a support package to address those risks. The issues are complex and the current guidance cites, I think, 22 vulnerability indicators that may lead to a Channel referral. The panel must weigh up these factors and tailor a support package which could have any number of elements. In some areas the panels could be addressing issues that they have not faced before.

There is a need for the Home Office to support local panels by providing an approved list of support providers who are able to give the specialist interventions needed to address the specific issues facing the individual in question and to approve the list of support providers to help ensure effective support packages and value for money.

The panel is also tasked with assessing the progress that the individual makes. However, it does not necessarily have the ability to assess the quality of support provided by other agencies, which is why the Home Secretary should also be required to assess providers, as set out in the amendment. I suspect that the Minister will say in response that the Secretary of State and the Home Office already do much of what is laid down in this amendment, but frankly that rather misses the point. Since the responsibilities and duties of local authorities in respect of the local panels are now being placed on

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a statutory rather than a voluntary footing under the Bill, it is only right—if we are talking about a true partnership between central and local government on supporting people vulnerable to being drawn into terrorism—that the responsibilities of central government in respect of the functioning and effectiveness of, and support for, the local panels should also be placed on a statutory rather than an optional footing. That is what this amendment seeks to do, and I hope the Minister will feel able to give a sympathetic response.

Lord Carlile of Berriew: My Lords, I will just say a few words in relation to this group. Best practice as I have observed it around the country has involved local authorities doing more or less what is set out in the provisions in this part of the Bill. Indeed, in the London Borough of Waltham Forest, for example, I have witnessed a meeting of exactly the kind described here. However, the practice has been very varied around the country. Some local authorities have done almost nothing, and it is absolutely clear that the most important work can be done, and needs to be done, at least under the aegis of local authorities. I therefore commend the provisions.

However, one or two things have been said during the course of this short debate which are particularly important. I will just focus on one of them, a remark by my noble friend Lady Hamwee about housing. Housing providers—which obviously does not just mean councils—have a huge amount of corporate knowledge about what is going on in large social housing projects. I have heard housing managers give an almost flat-by-flat or house-by-house description of activity which might be of concern in relation to Prevent and other aspects of counterterrorism policy. Before the Bill reaches its final stages, I ask my noble friend to consider whether there should be a reference to housing in these clauses.

The other point is about the police. It is of course right that the police should be involved in this activity, however there is a danger of exaggerating the role that the police play in Prevent. Of course the police should draw it to the attention of the relevant authorities—including the local authority and those involved in education, housing and so on—when they have detected concerns about the danger of radicalisation. However, we should not allow ourselves to be trapped in the position of believing that the police are the lead agency, or even a lead agency, in counter-radicalisation. It is when the police are overinvolved that communities become suspicious in the way that was mentioned earlier—perhaps with a degree of hyperbole—by the noble Viscount, Lord Hanworth. I simply ask my noble friend to keep in mind that there needs to be perhaps a little more flexibility than appears to be in the clause which the amendments in this group seek to amend.

Lord Ashton of Hyde: My Lords, this debate has allowed us to consider matters relating to the duty to create local panels to support people vulnerable to being drawn into terrorism in Chapter 2 of Part 5. I will start with my noble friend Lady Hamwee’s amendments. With many of them, this is really a question of practicality. We are seeking to continue

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the Channel programme, which has been operating now for nearly three years, in a way that is practical but effective.

Amendment 115AA would enable a local authority to refer an individual to a panel in addition to the police officer. I am pleased to reassure my noble friend Lady Hamwee that anyone can refer an individual who may be vulnerable to being drawn into terrorism for assessment, including the teachers to whom my noble friend referred. But, crucially, the police are responsible for co-ordinating activity from partners, and only the police may refer an individual to a panel. That is because the police carry out the initial assessment of an individual who has been referred and gather information from local partners to determine whether the individual is suitable for assessment by the panel.

My noble friend Lord Carlile asked whether the police were in danger of being overinvolved in this process. I remind the Committee that the Channel programme is entirely voluntary and that nobody needs to be in it who does not want to be in it. Different considerations apply to a voluntary programme from the other ones that we talked about earlier that are compulsory. To add a provision for a local authority to undertake a referral to a panel would create an unnecessary duplication of effort, as it would then also need to carry out the initial assessment and information-gathering phases. Of course, the police and the local authority are the two members of the panel ex officio, so they would be, of necessity, in close contact.

Amendment 115AB would have the effect of including in the support plan a list of people who have been consulted and who will be consulted in keeping the plan under review. I hope that I can give my noble friends some comfort on this point. In practice, those consulted on the support plan are the panel members. Proper records will be kept on the outcomes of the panels’ deliberations. We will ensure that the process and approach for support plans, and the records kept following these panels, are addressed in the statutory guidance underpinning this duty.

Amendment 115AC would add other providers that the panel must consider in cases where the individual is not vulnerable to being drawn into terrorism. We expect the panel to consider all forms of support on a case-by-case basis using its expertise and to refer an individual to the most appropriate support service, including housing and Jobcentre Plus, as my noble friend Lady Hamwee mentioned. The local authority housing function—my noble friend Lord Carlile mentioned housing—should be included in the panels. The local authority housing function should be covered by the membership of the local authority, but we can certainly ensure that this is emphasised in the guidance.

Lord Carlile of Berriew: I have listened carefully to my noble friend and there is one important lacuna in what he just said. A lot of social housing is no longer in the hands of local authorities. There are massive housing associations, particularly around London, which have taken local authority housing stock into their hands. I believe that the biggest landlord of social

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housing in London now may be the Peabody trust, which owns billions of pounds’ worth of property. Can we be sure that we are not going to just take local authority housing into this and that it will be possible to include other social housing? I think that is very important.

Lord Ashton of Hyde: I certainly take my noble friend’s point. I believe that the panel can include anyone who the local authority thinks is suitable, but I will take that back just to confirm that what I said is correct. As I just said, as the panel consists of local experts from such service providers, who will be very much aware of the services available locally, we do not consider it necessary to include in the Bill a list of all the services that the panel should consider. However, the process and the other forms of support to be considered will be detailed in the statutory guidance.

Amendment 115C would expressly rule out a disclosure that would jeopardise a relationship of trust between a practising professional and an individual concerned who has been referred to the programme. We do not seek or wish for the provisions of the Bill to undermine any such relationship. It is made expressly clear that the co-operation duty does not entail disclosures which would contravene the Data Protection Act. However, the 1998 Act includes certain lawful grounds on which information—which is not restricted to electronic information—concerning a person vulnerable to being drawn into terrorism could be shared.

10.30 pm

Information sharing is essential to the success of the programme, so that the panel can identify and address the full range of an individual’s vulnerabilities and be aware of what support they are already receiving. It also enables the panel to make an informed decision on whether an individual should receive support and, if so, which partners need to take action to provide it.

Information shared should be based on necessity and proportionality, and it will be a decision for partners of a panel to share relevant information. Importantly, the individual’s consent should be sought in advance wherever possible, bearing in mind that this is a voluntary programme. I can assure my noble friend that the duty to co-operate does not encourage the sharing of information in such a way as to jeopardise relationships of trust.

Amendment 115AD would require the provision of guidance to local panels. The Bill provides for the Secretary of State to issue statutory guidance to support the panel in respect of its functions, and indeed guidance is already in place to support existing panels.

The amendment also seeks to provide the panel with a list of approved providers for deradicalisation programmes and to ensure that the providers are subject to monitoring. A list of approved providers is already made available to key members of the panel to determine who might be best placed to deliver a theological or ideological intervention. It is the role of the chair to use the expertise of the panel to identify the most appropriate support package for an individual. There are also safeguards and measures in place to monitor providers, which I hope will reassure noble Lords.

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Lord Rosser: The Minister has given the reply that I indicated I thought would be forthcoming—namely that what I have asked about is already being done. However, the question is: if the Bill puts the functions of the local authority and the local panels on a statutory footing, why not also put the requirements that the Secretary of State is expected to meet on a statutory footing, even though that may be being done anyway?

Lord Ashton of Hyde: The reason that we want to put this on a statutory footing—which was recommended, incidentally, by the Government’s extremism task force—is to enhance the engagement and co-operation of partner agencies and to ensure that best practice is adopted. I know that the noble Lord asked as well about funding for Channel. We are not expanding Channel. It is already a national programme across England and Wales, so we do not consider that it needs more funding.

Lord Rosser:The point that I was raising was not about funding or querying why the local panels would be put on a statutory footing. My query was: if the local panels are being put on a statutory rather than a voluntary footing—which we are not arguing about—why not also put the requirements that the Secretary of State will be expected to meet on a statutory footing as well, rather than putting those on an optional basis? That is what is provided for in the Bill, but the Minister is reiterating that the Secretary of State does anyway what I am seeking to put on a statutory basis. Why not put that on a statutory footing in the same way as the activities of the local panels will be put on a statutory rather than voluntary footing?

Lord Ashton of Hyde: There is a reason why we want to put the local authorities’ duties on a statutory footing. If the Secretary of State is doing everything that the noble Lord wants her to do, I do not see any particular benefit in putting that on a statutory footing. However, rather than going backwards and forwards on this, I am prepared to take this matter back. If there is more information that I can provide to the noble Lord, I will do so.

All providers are bound by a service level agreement with the Home Office that sets out the terms and conditions of their appointment, including conduct. In addition, as part of their co-ordination role, the police regularly review progress made against any interventions commissioned. Any misconduct will be treated seriously, with the option of terminating an agreement with a provider. It would be unusual—and we think unnecessary—to provide for these matters in the Bill.

Finally, I would like to address my noble friend’s Amendment 118ZA, which seeks to ensure that the Secretary of State must indemnify a support provider against any costs and expenses incurred in carrying out functions as a provider. I would like to reassure noble Lords that the costs for each case would be considered and, where the case was deemed appropriate, those reasonable costs would be indemnified. However, there might be some cases where it would not be appropriate to indemnify costs. One of the key reasons

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for resisting making the indemnification clause a blanket duty, required in all cases, is that it is included in the Bill to plug a gap that might not arise in all cases. The gap is the absence of reasonably priced insurance in the open market for risks that might arise for intervention providers. Depending on the precise nature of the support the provider is giving, there may or may not be sufficient availability of cover in the market. The intention behind Clause 32 is to allow the Secretary of State, only where a provider cannot get adequate cover, to step in with an indemnity. We do not want the Secretary of State to have to indemnify if a product is available on the market. The Secretary of State should therefore have discretion to decide which costs or expenses would be indemnified, but, as I have said, it is the intention that reasonable costs would be indemnified.

I hope that my responses have addressed the concerns raised by these amendments during this debate, and on that basis, I invite noble Lords not to press the amendments.

Baroness Hamwee: My Lords, the reference to insurance leaves me—I have to confess—rather bemused. That was not at all what I thought this clause could be about. However, I will not take time expressing my bemusement. The Minister started his response by using the terms “practical” and “effective”. Those are criteria for me as well. Unfortunately, as it happens, I am not wholly convinced that we identified the same ways of arriving at that conclusion.

I am particularly grateful to my noble friend Lord Carlile for expanding the point about housing. Of course, he is absolutely right: local authority housing supply is minuscule, almost disappearing. However, the role of housing providers in this area can be very significant. I will think about the detail of the Minister’s response and perhaps come back to it. For now, I beg leave to withdraw the amendment.

Amendment 115AA withdrawn.

Amendments 115AB to 115AD not moved.

Amendment 115AE

Moved by Baroness Hamwee

115AE: Clause 28, page 17, line 30, at end insert—

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

Baroness Hamwee: I will try to move this amendment in under one minute, and not only because the Chief Whip is here. The amendments in this group more or less replicate, word for word, amendments made in respect of the Prevent programme. This part of the Bill is about the Channel programme. The Minister has been stressing the importance of guidance—which makes me think that my amendments are important. I simply invite him at this point to make any further or different comments or responses to those which he gave when I moved and spoke to similar amendments earlier this evening. I was just under a minute, I think. I beg to move.

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Baroness Brinton: The noble Baroness has set a racing example, and I, too, will try to be extremely brief. My name is on Amendment 115B, which repeats the request found in two earlier clauses in the Bill through my amendments that when the Secretary of State issues or revises guidance she should make sure that Parliament has sight of an affirmative instrument in both Houses. I repeat, for the third time, I think, today, that where guidance is in parallel with other guidance, it should be issued as a single document.

The principal reason for this amendment is exactly the same as that for the other amendments: the Secretary of State has taken to herself and her successors a right to take decisions on guidance on sensitive issues. It is extremely difficult to assess which people are vulnerable to being drawn into terrorism. I am sure Parliament would want to have sight of this guidance and be able to review in future. As with my other comments, I hope that the Minister will be able to provide some reassurance that Parliament will be able to assess the guidance before it is given.

Lord Ashton of Hyde: My Lords, we have had a very brief debate on this part of the Bill. I am grateful to my noble friends for tabling this amendment. I fear that I may not be able to satisfy them. Amendment 115B seeks to make the guidance under the duty in Chapter 2 subject to approval under the affirmative procedure. Noble Lords should be aware that Channel is already an established programme across England and Wales and those who participate in the programme follow existing non-statutory guidance. The Channel programme has been in place since April 2012.

The current guidance for local authorities’ panels is being amended, in consultation with those involved in the programme, and will be reissued on a statutory basis. Guidance of this sort is not routinely made subject to parliamentary scrutiny, and the Delegated Powers and Regulatory Reform Committee has not recommended that it should be in this instance.

Amendment 115AF seeks to ensure that local authorities are consulted on any guidance issued for panels. Amendment 115E aims to ensure that partners of panels, or their representatives, are consulted before any guidance is issued. I can assure noble Lords that local authority panel chairs, panel members and police practitioners are being consulted about the revised guidance. Panel members invited to a meeting are likely to be those panel partners who have shared relevant information in relation to a referred individual and therefore will also be consulted at a local level. The consultation process will ensure that the views of all relevant stakeholders are taken account of and that the guidance is meaningful for those to whom it is issued. Their experience and expertise is invaluable in achieving this.

I hope that reassures my noble friend and that she will withdraw her amendment.

Baroness Hamwee: My Lords, I suspect that as with the equivalent group on the previous provisions, we may want to come back to these issues. I beg leave to withdraw the amendment.

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Amendment 115AE withdrawn.

Amendments 115AF to 115BA not moved.

Clause 28 agreed.

Clause 29 agreed.

Clause 30: Co-operation

Amendments 115C to 115F not moved.

Clause 30 agreed.

Schedule 4: Partners of local panels

Amendments 116 to 118

Moved by Lord Bates

116: Schedule 4, page 50, line 5, at end insert—

“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.”

117: Schedule 4, page 50, line 44, 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).”

118: Schedule 4, page 51, line 6, leave out “Assembly”

Amendments 116 to 118 agreed.

Schedule 4, as amended, agreed.

Clause 31 agreed.

Clause 32: Indemnification

Amendment 118ZA not moved.

Clause 32 agreed.

Amendment 118A not moved.

Clause 33 agreed.

10.45 pm

Amendment 118B

Moved by Baroness Berridge

118B: After Clause 33, insert the following new Clause—

“Part 15AFunding of terrorism: looting of cultural artefacts

Panel and report

(1) Within three months of the passing of this Act, the Secretary of State shall appoint a panel to examine and report on the funding of terrorism through the looting and sale of cultural artefacts.

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(2) The areas to be examined by the panel shall include, but shall not be limited to—

(a) the prevalence and scale of the funding of terrorism around the world through the looting and sale of cultural artefacts;

(b) the extent to which looted cultural artefacts are sold in, or transit through, any part of the United Kingdom;

(c) ways in which the practices in paragraph (b) can be reduced, including the possibility of placing a strict liability on United Kingdom auction houses in respect of the provenance of any cultural artefacts they sell; and

(d) the treatment of any cultural artefacts seized by the United Kingdom authorities, including the involvement of British museums and galleries.

(3) The report of the panel shall be laid before both Houses of Parliament.”

Baroness Berridge: My Lords, I rise to speak to Amendment 118B. First, I thank the charity Walk of Truth and its founder, Tasoula Hadjitofi, who drew this matter to my attention.

As I mentioned at Second Reading, it is clear that one of the streams of funding for IS in Iraq and Syria is the sale of looted religious and cultural heritage—anything from ancient coins to frescos literally hacked out of church walls. Due to the obvious difficulty of accessing IS-controlled territory, much of what we know is from reports by news outlets. Given the time, I will mention only one. In November 2014 an article in Newsweek quoted the executive director at Iraq Heritage, Aymen Jawad, as saying:

“By some estimates, these sales (of ancient artefacts) now represent ISIS’s second largest source of funding. One of its biggest paydays recently came from looting the ninth century B.C. grand palace of the Assyrian king Ashurnasirpal II at Kalhu, which is now called Nimrud … Tablets, manuscripts and cuneiforms are the most common artefacts being traded, and, unfortunately, this is being seen in Europe and America”.

Most of the reports indicate that these stolen treasures are finding their way into or through London. The news reports are confirmed by UNESCO, which has now alerted museums, Interpol, and the World Customs Organization to be vigilant,

“over objects that could come from the current looting of Iraqi heritage”.

The amendment requires the Home Secretary within three months of the Act to appoint a panel that would look carefully at this issue and specifically at the mens rea required for the offence under the Customs and Excise Management Act 1979. At the moment, the offence is committed, by auction houses and others, only where there are reasonable grounds to suspect that the goods were removed—in the case of Syria, for example—after 9 May 2011. I question whether that is sufficient, bearing in mind the current context.

The panel could investigate whether the UK should copy Germany’s law that will oblige dealers and collectors to present an export licence for where the object is coming from, in order to receive an import licence for any ancient artefact. The panel could also report on whether or how many stolen cultural and religious artefacts are coming through London. It could collate data on this matter, including how many cases the proceeds of crime unit of the Metropolitan Police is currently dealing with, which I presume has operational responsibility for this matter. Whether any artefacts

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have already been seized by the police and what happens to those artefacts would also be considered by the panel. If they have seized items, are the museums and galleries in London involved in helping to ensure that the artefacts are kept in conditions to preserve them, not only as criminal evidence but also to preserve their condition so they can one day be returned to Iraq or Syria? These items may require much more specialist handling than the colloquial “bagging up of evidence” to avoid contamination.

This panel would not be costly and would provide Parliament and the Government with much-needed data and recommendations to deal with the atrocious fact of stolen cultural heritage, which needs to be preserved for the time when Iraqis and Syrians can return to their homes and to the cultural heritage that should exist for them at that time. I beg to move.

Lord Renfrew of Kaimsthorn: My Lords, I certainly support the intention behind the amendment. My noble friend the Minister may well say in his reply that some of these issues are already covered by the Dealing in Cultural Objects (Offences) Act 2003. It is certainly the case that it is illegal to sell in this country cultural objects that were illegally exported from their country of origin after 2003. However, there are many new dimensions and my noble friend is right to draw attention to them. The scale on which terrorism is being funded through the sale of such artefacts gives cause for concern. I am not sure that many artefacts of this kind are being sold in this country now, but many will be in transit. As they may well be sold in the future they could still command a good price in the market.

I draw attention to one point. Proposed new subsection (2)(c) would require the examination of,

“the possibility of placing a strict liability on United Kingdom auction houses in respect of the provenance of any cultural artefacts they sell”.

This is not the occasion for a long debate on these matters. Some of them were raised in amendments during the passage of the Coroners and Justice Act 2009, although they were not carried. They placed an onus on auction houses in particular to be more transparent about vendors because auction houses are not obliged to declare for whom they sell such objects and somebody selling privately on the open market is not obliged to declare from where the objects came. There is a real problem. Indeed, there have been cases recently where auction houses have offered for sale objects which, it turned out, did not have a respectable provenance and had emerged on the market by shady means. It is therefore time to place an onus on the auction houses to check the provenance of the artefacts and to be assured that they left their country of origin legally after 2003, which would comply with the Dealing in Cultural Objects (Offences) Act. However, there is at present no onus on auction houses to be clear about the source of their objects. That is a glaring loophole, and that is why I support the amendment.

Baroness Brinton: I will speak to Amendment 118B but will not repeat the points made by my noble friends Lady Berridge and Lord Renfrew of Kaimsthorn.

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I want to remind the House of the scale of this problem and that it is a key funding area for Islamic State. A flash stick recovered after a courier was killed last year revealed that $36 million of goods had been taken from one town alone in Iraq. If you scale that up, and understand that each item can be sold for between $20,000 and $50,000, one begins to understand where IS’s money to resupply itself with weapons comes from. In addition to the provenance arguments and making sure that auction houses deal with appropriate items, there is a real issue of funding terrorism that needs to be addressed as well.

Lord Ashton of Hyde: My Lords, I am grateful to my noble friend for tabling this interesting amendment and for giving due warning at Second Reading that it might be coming. It allows us the opportunity to give due consideration to the looting and sale of cultural artefacts. Of course I agree with all noble Lords who have spoken that this is a relevant issue in the context of the terrorist threat, given that such sales are often used as a source of finance for ISIL and others, as noble Lords have said. I hope that I may be able to give some reassurance.

I should stress that this is a global issue, on which all states need to respond together. That is why the United Nations Security Council adopted Resolution 2195 in December 2014. This calls on all states to prevent and suppress the financing of terrorism. In particular, the resolution highlights the fact that terrorists can benefit from a plethora of activities, including through the sale of artefacts. It also recognises that defeating terrorist fundraising requires a global effort.

My noble friend’s suggestion of a further examination of this issue is timely. The UN resolution already requires the Secretary-General to submit a report to the Security Council outlining efforts to address the threat of terrorists benefiting from a range of transnational organised crime, including the sale of artefacts. Notably, the report will contain recommendations to strengthen member states’ capability in relation to this issue. Rather than commission a separate report at this time, the UK will carefully consider the findings of the UN report and take appropriate action as necessary.

In addition to this, the United Nations Office on Drugs and Crime established an intergovernmental expert group on protection against trafficking in cultural property. In January 2014 that group finalised guidelines for crime prevention and criminal justice responses with respect to trafficking in cultural property and other related offences. Again, the United Kingdom has actively been involved in this work.

Amendment 118B proposes that a panel be appointed to explore looting and sale of antiquities for the purposes of financing terrorism and report on that subject. I hope that I have given my noble friends some reassurance on why such a requirement is unnecessary, given the UN work in this area and in light of our wider work on the issue.

As I have said, all states, including the UK, are required to stop terrorist financing, including through the sale of artefacts. The UN Security Council resolution

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makes it clear that there will be a report on efforts to counter the financing of terrorism-related crimes, including the sale of artefacts, which will include recommendations on how member states can strengthen their capabilities. I must stress that the UK takes the funding of terrorist organisations through any means, including through the sale of artefacts in the UK, very seriously. Instances of terrorist financing in the UK will be investigated by the police.

The UK already assesses how we can reduce all instances of terrorist financing and countering terrorist financing features in the Government’s counterterrorism strategy, Contest. The Government continually assess how best to disrupt the financing of the activities of terrorists, whether through the sale of antiquities or by other means.

Auction houses are required by law to report any suspicions of terrorist financing relating to high-value goods to the National Crime Agency. I can confirm to my noble friend Lord Renfrew that there is no suggestion that any UK companies or auction houses have been involved in terrorist financing through the sale of artefacts. Additionally, Part III of the Terrorism Act 2000 already makes it illegal to make funds available to terrorists or to enter into an arrangement that will result in funds being made available. Where there are suspicions of terrorist financing, it also creates various reporting obligations for the regulated sector, including auction houses, which are subject to criminal sanction in the event of non-compliance. Therefore, we do not see the need to impose an additional strict liability on auction houses, given that they are already obliged to raise terrorist financing suspicions with the authorities. I hope I have reassured your Lordships that the UK already has a very robust response to this important issue and plays an active role in what needs to be an international approach. I welcome the opportunity to put our work on this issue on the record and I am grateful to my noble friends for providing the chance to do so. In the light of the extensive work that already goes on in this area, I hope that my noble friend will feel able to withdraw her amendment.

Baroness Berridge: I thank my noble friend the Minister and welcome what he said about the UK Government’s response to the UN report. This was an exploratory amendment around this issue but it served to distil matters. Although my noble friend stated that there is no evidence of current terrorist funding through auction houses in London, the evidence that I have received matches the comments of my noble friend Lord Renfrew. Items appear in the catalogues of auction houses in London, but when an auction house is phoned and asked whether it is certain of the origins of a particular artefact, that artefact disappears from the sale catalogue. So, clearly, through our suggestion of a panel, we have distilled the issue. As my noble friend stated, there is concern about the provenance of artefacts offered for sale here in London. I hope that my noble friend the Minister will meet us to discuss this specific issue as greater onus needs to be placed on auction houses in this context. I beg leave to withdraw the amendment.

Amendment 118B withdrawn.

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Clause 34: Insurance against payments made in response to terrorist demands

Amendment 118C not moved.

Clause 34 agreed.

Clause 35 agreed.

Schedule 5 agreed.

11 pm

Amendment 118D

Moved by Lord Pannick

118D: Before Clause 36, insert the following new Clause—

“Independent reviewer of terrorism legislation

In section 36 of the Terrorism Act 2006, for subsection (1) substitute—

“(1) The Secretary of State must appoint a person to review and report on the operation, effectiveness and implications of—

(a) counter-terrorism legislation; and

(b) any other legislation or power to the extent that they are applied for counter-terrorist purposes.

(1A) “Counter-terrorism legislation” in subsection (1) means—

(a) the terrorism Act 2000,

(b) the Anti-terrorism, Crime and Security Act 2001,

(c) Part 1 of the Terrorism Act 2006,

(d) the Counter-Terrorism Act 2008,

(e) the Terrorist Asset-Freezing Act 2010,

(f) the Terrorism Prevention and Investigation Measures Act 2011,

(g) Part 2 of the Justice and Security Act 2013, and

(h) Parts 1 and 2 of the Counter-Terrorism and Security Act 2015.””

Lord Pannick: My Lords, this amendment stands in my name—

Lord Bates: I apologise to the Committee and to the noble Lord, but I thought that it might be helpful to him if I put on the record some comments on his amendment, which the Government have carefully considered. I hope that that might be helpful to the noble Lord.

Lord Pannick: I move this amendment formally.

Lord Bates: My Lords, it is getting late. I am very grateful to the noble Lord for moving this amendment and for raising this very important issue.

The two amendments before us are slightly different in wording but are designed for the same purpose. Both amendments would insert a new clause into the Bill which would amend the statutory remit of the Independent Reviewer of Terrorism Legislation and, in some respects, would amend the reporting arrangements for those Acts falling within his remit.

I am aware that the essence of these amendments reflects a recommendation made by David Anderson in his last annual report on the operation of the

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Terrorism Acts, and echoed by the Joint Committee on Human Rights in its recent report on the Bill. It is, however, right that the Government think carefully before making what would be very significant changes to a long-standing and highly effective oversight role. The primary purpose of the independent reviewer role is to provide assurance to the public on the operation of UK counterterrorism legislation. It is important that we do not dilute this core function and that there is clarity about what is subject to the independent reviewer’s oversight.

Nevertheless, I can see that there is some force to the argument that it is a little perverse that while the independent reviewer is able, and obliged, to look at certain Acts of counterterrorism legislation, other equally relevant pieces of counterterrorism legislation are outside his remit. The Government have reflected on this issue, and will continue to do so in the light of this evening’s debate, to consider whether it might be possible to make some changes on Report to address this concern. Were we to expand the independent reviewer’s remit, it would, of course, raise questions about the capacity of the independent reviewer. Even someone with such a voracious appetite for work as David Anderson has limits. In part, the Privacy and Civil Liberties Board, which we are coming on to, is designed to increase the support and capacity of the independent reviewer. I will give further thought to whether it would be appropriate to give him greater flexibility to set his own work programme and concentrate on those areas which he believes are most deserving of scrutiny or most topical.

I give your Lordships a very clear assurance that the Government will consider these points extremely carefully, and very urgently, and I hope that we may be able to find some way to meet the points which these amendments seek to address. I invite the noble Lord to reflect on those comments.

Lord Pannick: I am very grateful to the noble Lord. That is extremely helpful. Of course I have no intention of pressing the amendment. I look forward to hearing what he says next week on Report. I ask him to reflect not only on the recommendation of the Joint Committee that the remit of the independent reviewer should be expanded but also, as the Minister mentioned, the other part of the Joint Committee recommendation—paragraph 7.8 of their report—that the Government should make available to the independent reviewer resources necessary to perform his task effectively. In particular, David Anderson has explained that it would help considerably if he were assisted by a security-cleared junior counsel. That seems a very good idea to me. I do not think that the provision of such assistance would need statutory authority, but I hope that the Minister can reflect on that. Other noble Lords may wish to intervene in relation to this debate.

Baroness Hamwee: My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters

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will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.

Lord Carlile of Berriew: My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.

Lord Pannick: My Lords, I beg leave to withdraw the amendment.

Amendment 118D withdrawn.

Amendment 118E not moved.

Clause 36: Privacy and Civil Liberties Board

The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con): My Lords, if Amendment 118F is agreed to, I cannot call Amendment 118G for reasons of pre-emption.

Amendment 118F

Moved by Baroness Smith of Basildon

118F: Clause 36, page 22, line 14, leave out subsection (1) and insert—

“(1) The Secretary of State shall by regulations made by statutory instrument establish a body to—

(a) provide advice and assistance to the persons appointed under—in the discharge of their statutory functions;

(i) section 36(1) of the Terrorism Act 2006;

(ii) section 31(1) of the Terrorist Asset-Freezing etc. Act 2010; and

(iii) section 20(1) of the Terrorism Prevention and Investigation Measures Act 2011,

in the discharge of their statutory functions;

(b) review the operation, effectiveness and implications of the Anti-Terrorism, Crime and Security Act 2001, the Counter-Terrorism Act 2008, the Counter-Terrorism and Security Act 2015 and any other law or prerogative power to the extent that it relates to counter-terrorism;

(c) consider whether such legislation contains appropriate safeguards, is proportionate and remains necessary;

(d) review intelligence-sharing guidance and practice to the extent that it relates to counter-terrorism and the functions of the Board;

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(e) make recommendations to any public authority about the exercise of its statutory functions relating to the prevention of terrorism;

(f) undertake inquiries relating to counter-terrorism when invited to do so by the Home Secretary, the Treasury or the Secretary of State for Northern Ireland, or on the initiative of the Board;

(g) encourage good practice in the prevention, investigation, detection and prosecution of terrorism; and

(h) provide advice and assistance to Government on the development and implementation of policy relating to the prevention of terrorism.”

Baroness Smith of Basildon: My Lords, I will also speak to Amendments 118H and 118J. I welcome the Minister’s statement in relation to the previous debate on the amendment of the noble Lord, Lord Pannick. I hope that that will be reflected in his comments on this group of amendments, which also impact on the work of the independent reviewer and the Government’s proposals for a Privacy and Civil Liberties Board.

One reason that I brought forward these amendments is to get some concrete proposals to try to improve this part of the Bill, but I also want to understand the thinking behind the Government’s proposals and how they expect them to work in practice. This was first announced in July, when the Government brought forward the DRIPA Bill. When that was debated, there were no details on the board other than what it was to be called. My understanding is that, since then, there has been considerable debate within the Government about what the role, remit and make-up of the board will be. The original proposal, that it should replace the independent reviewer, has wisely been dropped. However, on 17 December last year, the Government launched their public consultation on establishing a board—another consultation, which does not end until tomorrow. Will that report be available when we discuss this issue on Report?

The Government said that purpose of the Privacy and Civil Liberties Board was to support the work of the independent reviewer of counterterrorism, but the how, why, where and who of what will happen is where the lack of clarity remains. What is clear is that both inside and outside your Lordships’ House the whole role of the independent reviewer attracts enormous respect and credibility regarding the way in which he undertakes his work. We extend those comments to the previous holder of that position. However, that is not to say that the work could not be improved or enhanced.

In the previous debate, the noble Lords, Lord Carlile and Lord Pannick, commented on the recommendations made by the independent reviewer on how he could better undertake his work. He provided suggestions in his report on the operation of the terrorism legislation in 2013. He repeated those points in evidence to the parliamentary committee. His comments on how he thinks he can enhance and improve the role of the independent reviewer seem thoughtful and worthy of serious consideration by the Government.

While I therefore agree with the Government and welcome their direction of thought on examining ways in which that role could be supported and enhanced, the Government need to provide more detail and a

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convincing case for why the establishment of the new Privacy and Civil Liberties Board is the right way forward. The impact assessment produced by the Government, which was published after the independent reviewer’s recommendations were published, makes it clear that the Government did not consider any of those recommendations when deciding to proceed with a new board. The policy options that were considered, including any alternatives to regulation, were:

“Option 1—do not establish a privacy and civil liberties board”,


“Option 2—legislate to provide … a Privacy and Civil Liberties Board”.

The options suggested by the independent reviewer of how to improve his work included having a junior counsel work with him who was security cleared, but that was not even considered when the Government brought forward their proposal for such a board. That is disappointing and perhaps the Minister can say why. I am not saying that he should automatically take on board and accept anything that the independent reviewer says that he wants, but those issues should have been considered in the round when looking to improve and enhance the work of the independent reviewer. The question of whether to have a board and the options that he put forward should all have been considered together.

The consultation produced by the Government on establishing such a board quotes the independent reviewer. While admitting that the independent reviewer thinks that a board would be best served by an individual operating part-time, the consultation quotes him as saying that,

“a board, if properly constituted, could bring advantages”.

Although that quote is correct, it is shame that it is not presented in its proper context in the consultation document. He said that in the context of the Government’s proposal, as it was then, to replace the independent reviewer with a new board. In the rest of the quote, which the Government did not put in their consultation document, he said:

“In short, such a Board if properly constituted could bring advantages: but”—

this is the bit missing from the consultation document—

“the wrong decisions could substantially diminish the value that is offered by the current arrangements, particularly if there were any reluctance to share classified information with a larger and more varied group. If the proposal is progressed, I would suggest that it requires the most careful scrutiny”.

It is disappointing that that comment was not included in the consultation document in the interests of completeness. I therefore ask the Minister: does he consider that the representation of the independent reviewer’s opinion in the consultation document is entirely and wholly accurate and in context? Does he consider that this enabling power, which is what Clause 36 is, provides the adequate scrutiny that the independent reviewer suggested?

Some of the background to our amendment is to ascertain exactly what is required of the board. As I say, the clause is essentially an enabling power for the Secretary of State. It could be a very broad power in determining and deciding the role and functions of

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the board, the salaries of the board and the administrative support it needs—which, if you look at the impact assessment, you will see is quite a sizeable bureaucracy in the age of austerity.

11.15 pm

In our Amendments 118F and 118J we have sought to bring some clarity to that role. Amendment 118F is much more specific about the role of the board. In addition to the board’s current role in terrorism legislation, which is what causes concern, it is both very wide and very brief in how it describes “advice and assistance” to the independent reviewer. This amendment seeks to place the remit of the board in the Bill to ensure it has a remit on all counterterrorism issues. It is a probing amendment to get some clarity.

Amendment 118J seeks to mirror and complement the role of the independent reviewer to ensure that the board must also consider the impact of counterterrorism legislation on communities. I have added this as a stand-alone amendment. It could be an additional point to the other amendment but I wanted to draw specific attention to its importance, and I am grateful to the Muslim Council of Britain for the discussions it has had with me on this. One of the concerns raised with us is that community engagement is so often seen as a response to terrorism and seeks to prevent terrorism rather than have the wider and very important aims of community cohesion and integration, which have a positive and deterrent effect on extremism. There are genuine concerns that counterterrorism legislation is targeted at specific communities as a whole and not just at potential extremists. If the community feels that, it acts against what we are seeking to do. The independent reviewer already sees this as part of his role and we should be explicit that it should also be part of the role of any board established. I hope that the noble Lord will see the sense in this and accept that amendment.

Finally, Amendment 118H renames the board. Again, we are seeking to bring some clarity to the debate in providing a name that reflects the role that we would see for such a board. There is no indication that the Government plan to give this body a wider remit on privacy and civil liberties but that is what the name implies. I think probably the name came before the Government decided what the board was going to do and that is where the confusion lies. In following the Government’s own terms of reference it would be created to support the work of the independent reviewer. Surely it is a panel rather than a board and more accurately has an oversight remit.

Our amendments are a way forward to seek clarity and improvement. Questions remain about how the Government view the relationship between the board and the reviewer and why they have brought forward this proposal. Will the reviewer chair the board? Will he have a role in appointing the board? Will he be expected to report to the board and if so, how? What will be the level of security clearance for the board? Could it damage the independent reviewer’s ability to seek information and have candid discussions if those who provide information to him consider he has to share that information with the board, depending on

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his relationship with the board? It would be helpful if the noble Lord could address some of the issues I have raised. I beg to move.

Baroness Hamwee: My Lords, I have Amendments 118G and 118K in this group but I want to say on Amendment 118J that I take the noble Baroness’s point about the impact on communities. The point has been raised with me as well and rightly so.

The first of my amendments in fact builds on the consultation paper. Under the section headed “What would the … Board do?”, it sets out in bullet-point form a number of core objectives. In most of the cases it uses the terminology that the subject of the consideration is,

“sufficient to meet the threat and adequately take account of privacy and civil liberties concerns”.

I think that I would prefer to see the word “properly” rather than “adequately” take account of privacy and civil liberties concerns. It is essential that that aspect is set out in the consultation paper, and I would hope to see it spelled out in the remit for the board in the statute as well. If it is not there, it is not there, and it will be difficult for the board to pursue that. My amendment is quite mild in that it seeks to provide advice to Ministers on that aspect of legislation. I have used the word “adequately” to reflect the consultation paper, although, as I said, I would prefer proper account to be taken of those concerns by that clear purpose being put on the face of the Bill.

My other amendment is about the chairmanship of the board, to which the noble Baroness referred. My amendment would give flexibility around whether the independent reviewer should chair the board. Mr Anderson has made his views clear about this being a possible diversion of his time and energy. I have a lot of sympathy with that, and the JCHR also took the point. The independent reviewer could still have an extremely central role in determining membership and the work programme without being the chair. I am not saying in this amendment that he—or, in future, she—should not chair the board; I am leaving it open for further consideration.

Lord Thomas of Gresford (LD): I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.

Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,

“particular things that the board may or must do”.

This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.

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I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.

Lord Pannick: From a modest height, I am very concerned that Clause 36 will undermine the essential role of the independent reviewer. The current holder of the post, David Anderson, and his predecessor, the noble Lord, Lord Carlile of Berriew, have achieved a remarkable degree of success. They have commanded the confidence of the public and of the NGOs that have expertise in this area. They have also commanded the confidence of the intelligence services and the Government. To command the confidence and, indeed, the respect of all these different constituencies is a deeply impressive achievement. However, that confidence and respect have necessarily depended on the personal independence, integrity and judgment of those who have performed this role. The job cannot be done by a committee. The clause is silent on whether the independent reviewer will share all the secret information with the board. If so, there is a real danger that he will not, in practice, be given such free access to confidential information in the future. If he is not to share the information with the board, I cannot see how it can do much to advise and assist him.

My other concern is that Mr Anderson, as has already been mentioned, has limited time to devote to the primary task of reviewing counterterrorism legislation. The very last thing that he needs is a committee structure that will inevitably use up his finite time which would be far better spent on the front line on essential activities of reviewing the operation of the relevant legislation. For all the reasons that have already been given and for these reasons, Clause 36, certainly in its current form, is a very bad idea. I hope that the Government will fundamentally reconsider it in the limited time before Report next Wednesday.

Lord Carlile of Berriew: My Lords, I absolutely agree with what has just been said by the noble Lord, Lord Pannick, and the reasoning behind what he said. However, I recognise that the Government are determined to pass something like Clause 36. In looking at Clause 36(1), if there is to be some kind of board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation, then so be it. But the only part of Clause 36 that has been really thought through is subsection (1), which merely gives the power to establish the board. It is important to be fair to the Minister and to recognise that the Government are not setting up the board by this provision, which enables the creation of regulations only if such regulations are made to set up the board.

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I have a few issues that need to briefly be considered before we deal with the principal question of whether the clause should remain in its present form. I absolutely agree with the noble Baroness, Lady Smith, that the title is inappropriate. If the title were appropriate, Mr Anderson, surely, would be retitled the Privacy and Civil Liberties Reviewer. But of course Mr Anderson would not accept that because that is not what he is. It is completely illogical to have an Independent Reviewer of Terrorism Legislation and a board assisting him entitled the Privacy and Civil Liberties Board, whose prime aims are neither privacy nor civil liberties. I beseech the Minister, who is a sensible, realistic and charming man—if I may say so—to recognise that what is in the tin should be described accurately on the tin. Many who are involved in this field of work have been perplexed by this title; apparently it has some attraction to advertising and branding people.

I would like to hear my noble friend say that yes, the Government do want to have a board, albeit possibly under another title, and that it can be formed—that is, regulations could form it. But I ask my noble friend to recognise that a great deal of work is still to be done. That work cannot be done while this Bill is before this Session of Parliament. I ask him to recognise that the work will take many months and possibly even longer. It may be that the regulations will never be made because we have not yet reached the point at which we are ready to describe a board that would have some utility in the life of the Independent Reviewer of Terrorism Legislation.

Perhaps I may close my evening here with a couple of words of Latin. I would say to my noble friend: please, festina lente.

11.30 pm

Baroness Manningham-Buller: My Lords, it is late, we all want to go home, and the end is in sight. This grandly titled panel is a tail stuck clumsily on a donkey. Someone has grabbed an American idea and stuck it into the Bill. What is it for? Others who have spoken have asked exactly the same question, and I think that we would all be concerned if the role of the Independent Reviewer of Terrorism Legislation was damaged or corroded in any way.

I congratulate the Opposition on nobly suggesting some flesh to put on this bony tail of the donkey with a number of things that they think might be worth discussing, if the board ever was to convene under a different title. It is all pretty vague stuff. What do the Government think the board will do? They have had some suggestions from the Opposition. How will the members be chosen, what will be their powers, and—a point raised by the noble Lord, Lord Pannick—what access to classified information will they have? No doubt all that is clear to the Government, but it is certainly not clear to me.

Lord Butler of Brockwell (CB): My Lords, I have sat through the Committee debates without opening my mouth until this late stage, but if even now I can help to save the Government from expenditure on some quite unnecessary bureaucracy, it will have been worth while.

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I am actually astonished that this Government, who have been so draconian in their cull of quangos and unnecessary bodies, should come forward at this late stage of the Parliament with a proposal of this sort. However, it is not just that I think that it is unnecessary. I agree with the noble Baroness and the noble Lord, Lord Carlile, that it is damaging. At Second Reading I said that I feared that this was the fifth wheel on a coach which at present operates very satisfactorily. Even if that were not so and it could be shown that the body has some utility, I must point out to noble Lords how unsatisfactory it is to include this clause in the Bill in its present state. It is an empty shell. It empowers the Secretary of State to do anything she likes by way of functions, appointments and procedure, including amending any primary legislation—a Henry VIII clause par excellence.

The contents of the statutory instrument, now non-existent, are to be determined as a result of consultation. It has been pointed out that that consultation is not due to end until 30 January. There is no prospect that we will have the Government’s conclusions on these important matters about the board before the Bill passes into law. The only firm provision in the Bill is that the independent reviewer should chair the board. The noble Baroness, Lady Hamwee, moved an amendment even to modify that and make it flexible. Moreover, I understand that the Government may have already changed their mind about it. That only serves to illustrate how completely undecided the Government are about this body.

I would submit to noble Lords and to the Government that it would be much better to remove the clause from the Bill at this stage and to do the further work which the noble Lord, Lord Carlile, has described, and which is extensive. If, after the election, the next Government wish to come forward with a board with its functions and its contribution very much better defined, and after consultation with the independent reviewer, that would be the time to make provision for a board of this sort.

Lord Bates: My Lords, this has been a good debate and I am grateful to noble Lords for their amendments. I, too, must not be tempted at this late hour to drift off the core message before me. I was tempted, when the noble Baroness, Lady Manningham-Buller, talked about camels and donkeys—

Baroness Manningham-Buller: I only talked about donkeys.

Lord Bates: Perhaps I was thinking of the aphorism that a camel is a horse designed by committee.

Lord Thomas of Gresford: May I ask if it is apposite to call the independent reviewer a donkey?

Lord Bates: Indeed, not a donkey, nor a camel, though he certainly does more than the work of both, which I guess is the point which is being made to all of us here—that is a serious point about how we support a highly effective individual in a highly effective office to do his duties more effectively. I will seek to address

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some of the specific points on my way through, but I give notice that part of my instructions, should I race past it on page 11 of my speaking notes, is that we will be returning to this on Report. I hope that that will provide some comfort to noble Lords as they consider what to do with their amendments at this stage.

Clause 36 is a very important clause, as it should be. It is right that as the legislative landscape changes, we pause to consider the safeguards and oversight arrangements we have in place for counterterrorism laws, to ensure that we are getting the balance right between responding to these threats and the protection of civil liberties.

Few would question the exemplary job David Anderson QC is currently doing as the Independent Reviewer of Terrorism Legislation, or the contribution of his predecessor. I totally take on board my noble friend’s injunction to make haste slowly and the fact that we should ensure that there is a robust independent scrutiny of some of our most far-reaching counterterrorism powers. We should be proud of the long-standing, very effective and transparent system of independent oversight that we have in the UK, but we should not rest on our laurels.

Clause 36 provides for the creation of a board which will support the independent reviewer of terrorism legislation. As our legislative armoury necessarily increases, there is also an increasing demand for the review of particular aspects of counterterrorism legislation, and that this is a substantial task for one individual to undertake. David Anderson has himself made clear that he is operating at the very limit of his capacity and that there is a need to reform the independent reviewer’s role. It is intended that the board will provide support in the discharge of the independent reviewer’s statutory responsibilities, but also that the board will produce reports and advice to the independent reviewer, expanding the capacity and breadth of experience available to our oversight arrangements, and enabling a greater range of matters to be subject to review.

It may be helpful at this point to deal with Amendments 118F to 118J which go to the heart of a very important issue, in the same way as other amendments, in seeking to set out particular matters on which the board will report.

Clause 36 provides for regulations to be made which will be subject to the affirmative procedure and which would set out the precise detail of the board. Among other matters, these regulations will make provision about the appointment, membership and particular functions of the board. I fully expect that a number of the issues covered within these amendments may be appropriately dealt with in those regulations.

We are approaching the end of the public consultation period on 30 January, as the noble Lord, Lord Butler, pointed out. The Government will consider carefully the outcome of that consultation prior to bringing forward the regulations setting out the details on how the board will operate. Of course, it is important that the comments of your Lordships in this debate and at other stages of consideration are also considered as part of that consultation.

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However, I am mindful that a number of views which have been expressed in this House—

Lord Butler of Brockwell: My Lords, the Minister said that we would return to this on Report. He will presumably acknowledge that it is completely impracticable that a Report stage starting on Monday should be able to take into account the results of the consultation.

Lord Bates: That may be two different elements. It is certainly our intention to return to this issue, perhaps with a little bit more detail at that stage on how this is going to operate, whereas the full responses of the consultation will, of course, take a little longer to put in place and therefore the regulations that accompany them will also necessarily be a little bit later. It is right that in setting the board up we make clear how it will operate alongside the independent reviewer. The Government are giving careful consideration to this important point, and I hope we can return to this matter on Report, in order to deal with the substance of the concerns previously expressed by David Anderson and your Lordships on this specific issue.

David Anderson has been kept informed of the development of these proposals, and we take seriously his views on these matters. He will have a key role in determining what work the board will undertake and precisely how it will support his role. It is right that the board’s statutory remit be drawn in line with that of the role it is designed to support. Indeed, I want to assure your Lordships that, in making changes to this important area, the Government will not do anything to diminish the existing arrangements. We will, of course, continue to work closely with David Anderson in refining the details of how the board will operate. However, in my view, we should not unduly prescribe in this Bill the tasks that the board will carry out, so as to ensure that it is flexible and that it will be helpful to and genuinely enhance the capacity of the independent reviewer’s role.

I hope also that I can reassure my noble friend that Amendment 118K is not necessary. An important feature of Clause 36 is that it provides that the board will be chaired by the independent reviewer, ensuring that the reviewer role will continue to provide the vital scrutiny that it has done over the past 35 years. This will also ensure that the work of the board complements rather than duplicates—much less rivals—the very important work of the independent reviewer. I understand that David Anderson has welcomed this aspect of the clause.

I hope that I can deal swiftly with Amendment 118H, which proposes to change the board’s name. The name of the body must reflect its purpose—I appreciate the suggestion of a Ronseal test, if you like, so that it does what it says on the tin—and the Government would assert that this is very much the case here. We have been clear that the consideration of privacy and civil liberties interests in our counterterrorism legislation and policies will be a key object of the board. The board will seek to offer further assurance to the public that careful, independent scrutiny is being given to the UK’s counterterrorism powers to ensure that we are

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getting the balance right and that our legislation and policies have due regard for civil liberty and privacy concerns in the face of the threat to the UK. It is right therefore that the name of the board reflects this.

Finally, I turn to Amendments 118L and 118M, which stand in the name of my noble friend Lord Thomas of Gresford. The Bill very properly provides that the regulations to establish the Privacy and Civil Liberties Board should be subject to the affirmative resolution procedure. That is right and proper given the significance of the issues. However, if minor changes to those regulations were to be required in future—perhaps in the light of experience based on the initial operation of the board—it would seem unnecessary, and not a good use of Parliament’s time, for all such revisions to be subject to the full affirmative resolution procedure.

As your Lordships will be aware, the Delegated Powers and Regulatory Reform Committee considered this Bill, and published a report on 15 January. The committee, having considered all the issues carefully, did not make any recommendation for change in respect of Clause 36, and I suggest that this Committee should accept that position. In the light of that explanation, and with the assurances that we will return to this on Report, I invite the noble Baroness to consider withdrawing her amendment at this stage.

Baroness Smith of Basildon: My Lords, I am grateful to the Minister. He says it gives us comfort that we will return to this on Report, but unless we know what we will return to on Report, there is not much comfort there. I will not detain the Committee at this late time, but he did not answer my question about why the recommendations of the independent reviewer were not considered when the Government were looking at what to do to support the reviewer. He also did not answer my question about the Government’s selective quotes from the independent reviewer in the consultation document or my question about the independent reviewer’s appointment to the board. Most importantly, I was hoping to hear from him, but did not, a justification for the role of the board. It still seems to me that an announcement was made about a title and a body without clarity of what that body was going to do. I have to say that I still find it difficult to believe that a

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Privacy and Civil Liberties Board will be there to support the Independent Reviewer of Terrorism Legislation—it seems a bit incongruous. However, I look forward—I hope—to seeing what is tabled on Report by the Minister and, at this stage, beg leave to withdraw my amendment.

Amendment 118F withdrawn.

Amendments 118G to 118M not moved.

Clause 36 agreed.

Clauses 37 to 41 agreed.

Clause 42: Commencement

Amendments 119 to 122

Moved by Lord Bates

119: Clause 42, page 25, line 6, leave out paragraph (a) and insert—

“(a) sections 28 to 30 and 32;”

120: Clause 42, page 25, line 12, leave out “Part 2” and insert “Paragraphs 12 to 14”

121: Clause 42, page 25, line 12, leave out “that Part” and insert “those paragraphs”

122: Clause 42, page 25, line 13, leave out paragraph (d) and insert—

“(d) sections 21 and 24 to 26;”

Amendments 119 to 122 agreed.

Amendment 123 not moved.

Clause 42, as amended, agreed.

Clause 43 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 11.47 pm.