My Lords, in moving this amendment I will speak also to Amendments 105, 107, 109 and 115 on behalf of the Joint Committee on Human Rights, of which I am a member. The amendments give effect to the recommendations made in our pre-legislative scrutiny report. Amendments 107 and 109 would exclude higher education institutions from the new statutory duty to,
“have due regard to the need to prevent people from being drawn into terrorism”,
although I suspect that the amendments in the name of the noble Lord, Lord Pannick, would do so rather better. Amendment 104 excludes,
“an academic function of a university or other further and higher education institution”,
from that duty. Amendment 105 makes it clear that the Prevent duty is subject to the duty contained in the Education (No. 2) Act 1986 to uphold freedom of speech, covering staff, students and visiting speakers. Amendment 115 requires that when issuing guidance and giving directions, the Secretary of State should have regard to the principle of academic freedom as contained in the Education Reform Act 1988, which includes a duty,
“to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.
These amendments may be technically deficient, but as they are for now probing amendments, I trust that the Minister will bear with me.
Recommendations stem from the JCHR’s conclusion that,
“because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new ‘prevent’ duty is not appropriate for application to universities”,
and from our observation that its relationship to universities’ existing duties with regard to freedom of speech is not clear. I have some sympathy with concerns about other parts of the educational sector, but following the JCHR report I will confine my remarks to HE institutions and will focus in particular on the question of academic freedom, therefore inevitably touching on some of the points already made. In doing so I declare my interest as an emeritus professor at Loughborough University.
Ministers have emphasised their commitment to academic freedom of freedom of speech, which I welcome. In a letter of 20 January to the JCHR, the Minister, James Brokenshire, pointed out that this freedom comes with a duty to ensure that it is within the law. Exactly. Given that, it is not clear why the Prevent duty has to be put on a statutory footing—moving from co-operation to co-option, as the noble Baroness, Lady Sharp, so pithily put it. Universities are already required to operate within any law that circumscribes freedom of speech. At last week’s packed meeting, addressed by the Minister and Mr Brokenshire—I thank the Minister for arranging that—we did not receive a convincing explanation. I suspect that the purpose of the meeting was to reassure noble Lords; my impression was that it had the opposite effect.
Since then, the JCHR has received the Minister’s letter, in which he set out why the Government believe that the application of the duty to universities is a
matter of enormous importance. He cited the proportion of people convicted of al-Qaeda-associated terrorist offences who had attended an HE institution—the implication, presumably, being that their HE experience helped to lead them there. He acknowledged that some students arrived already radicalised or are radicalised by external influences, while suggesting that others can become influenced by non-violent extremism at university but later move on to violence. That seems to reflect the kind of linear, conveyor-belt theory of the journey to terrorism, which is challenged by many experts in the area and which was questioned earlier by the noble Baroness, Lady Warsi.
There are two main areas of concern, which have sometimes been conflated: visiting speakers policies, and the free exchange of ideas that lies at the heart of the relationship between lecturers and students. With regard to visiting speakers, it is unclear how the new duties sit alongside the duty in the 1986 Act not to use beliefs or views as grounds to refuse access to premises. We shall look later at the draft guidance, so I will not go into that now, apart from coming back, in a moment, to the question of definitions.
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In his letter the Minister acknowledged that many universities already have adequate policies in place, and explained that it was precisely because most universities,
“take their responsibilities in this area very seriously, that it would be extraordinary if the … sector were to be removed from the scope of the duty”.
He asserted that,
“equally, many could do more”.
How many? When questioned on this at the meeting, Ministers were unable to provide any evidence of the number of universities that are failing in this regard. Surely it is premature to rush to legislate in this sensitive area without knowing the scale of the problem. If most universities have been performing so well on a voluntary basis, why not build on that and encourage the minority that are not? That point has already been made by more than one noble Lord.
Returning to the question of language and definitions, as the Minister predicted we would, Universities UK, UCU, million+ and others are worried by some of the language in the draft guidance, such as “non-violent extremism” and responsibility to exclude,
“those promoting extremist views that support or are conducive to terrorism”,
a vague formulation that could all too easily be interpreted in a way that conflates terrorism and extremist views.
As UUK points out, non-violent extremism is not generally unlawful, and it is not appropriate for universities to exclude such views. The JCHR warned that such terms,
“are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court … This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities”.
When we pressed the Minister, in his oral evidence to the committee, on where the lines were to be drawn, he left us none the wiser.
Universities tend to be pretty risk-averse institutions, and the fear is that they will err on the side of caution in drawing their own lines. Academics are rightly alarmed at the prospect. For example, Martin Hall, former vice-chancellor of the University of Salford, in Times Higher Education, has expressed fears that the new statutory obligations could be used against,
“any radical opposition to the status quo”.
Professor Peter Scott of the Institute of Education has warned that, “Mission drift is … inevitable”.
Let me illustrate my worries with an e- mail sent to all staff and students in my school at Loughborough University, inviting us to a discussion the day after the Charlie Hebdo attack. Among the questions to be posed was, “Were the attackers provoked by senseless Islamophobia? Is it clearly an act of terrorism?”. Some might consider such questions provocative, and they might well have provoked reactions from some students that might be interpreted as indicating the early stages of some path towards terrorism. The lecturer, in an e-mail exchange with me, mused, “With some of our interests in anarchism as a school of political thought and populism, could we be seen to have indirectly drawn some people to ideas which might end up potentially leading them to perpetrate violence? This is inevitable with HE in many ways since the idea is to get people to think more deeply and critically about issues, and when thoughts start shifting it is difficult to predict or control where they end up”.
I am sure that the Minister will once again assure us, in his soothing calm way, that debate of that kind will not be affected, but there is a real danger that academics will feel inhibited from initiating such discussion, thereby chilling academic freedom. Even if they do not, there is a danger that some students will feel they have to conceal their views for fear of being reported to what would be seen as the Prevent—or thought—police. That means that their views cannot then be challenged. As UCU and others have warned, the trust that is so important in the relationship between lecturer and student could be destroyed. Muslim bodies fear that that will create resentment and alienation. All in all, the effects could well be counterproductive. My primary concern is that the new Prevent duty should not have a chilling effect on the academic freedom in higher education that we all cherish.
I sum up the case by quoting a letter in today’s Times signed by more than 20 universities. It states:
“Universities are at their most effective in preventing radicalisation by ensuring that academics and students are free to question and test received wisdom within the law. The bill is not the best means of maximising the contribution universities can make, and may indeed be counterproductive, causing mistrust and alienation. The government does not appear to have considered how the bill will relate to universities’ existing duties and codes of practice concerning freedom of speech and academic freedom.
To be truly effective in countering terrorism and radicalisation, universities must continue to be independent from government. The new statutory duty should not apply to universities and they should be exempt … This would safeguard the unique status of universities as places where lawful ideas can be voiced and debated without fear of reprisal”.
Amendments 104, 107, 109, 110 and 112 would provide that safeguard. Echoing the very powerful plea made by my noble friend Lord Judd, I hope that,
despite the fact that the Government have made clear their disagreement, they will take seriously the concerns that have already been expressed, and which I am sure will be expressed again, and that, at the very least, the Minister will consider Amendments 105 and 115, which clarify the relationship between the new Prevent duty and existing duties to uphold freedom of speech and the principle of academic freedom. Acceptance of these two amendments, or something like them, would go a long way to meet the anxieties raised by many both inside and outside your Lordships’ House. Indeed, given all the assurances about not impinging on academic freedom, I cannot see any argument against doing so. I beg to move.