My Lords, I entirely support the points that have been made by all noble Lords who have spoken in favour of these amendments. I have a rather particular point to make about wording, which I do as a former chancellor of the University of Strathclyde, which of course is in Scotland.
Clause 41(1) makes it clear that Part 5 of the Bill applies to Scotland as well as to England and Wales—it does not apply to Northern Ireland, as the noble Baroness, Lady O’Loan, said. However, this gives rise to a problem about drafting. One has to be absolutely sure when one refers to legislation—as, for example, Amendment 105 does, along with Amendment 108 and others—that the legislation referred to applies to Scotland as well as to England and Wales. The problem with Amendment 105—which I entirely support in principle—is that Section 43(1) of the Education (No. 2) Act 1986 applies only to England and Wales, and does not apply to Scotland. The right to freedom of speech, and all the points that have been made in favour of the exercise of freedom of speech and about the difficulties of enforcing measures of the kind that we are talking about and so on and so forth, have just as much power and effect north of the border as they do in England and Wales. If Amendment 105 were to be agreed with the form of words which it has at the moment, it would create difficulties north of the border. That could be cured very easily by simply taking out the reference to,
“the duty in section 43(1)”,
of the 1986 Act, and substituting the words “the need to ensure that freedom of speech is maintained”. Freedom of speech in Scotland is deeply ingrained in the law of the country by, for example, Article 10 of the European Convention on Human Rights. One of the features of the 1986 Act is that it was passed some years before the Human Rights Act 1998 was enacted.
Nowadays, you look to the convention rights in the Human Rights Act to see whether you have a right that you wish to assert. It is certainly true that Section 43 goes rather further and is quite detailed about the nature of the duty, but I have searched as best I can through the legislation in Scotland and, so far as I can see, there is no equivalent provision in either the education Acts or the university Acts in Scotland, which cover the same field.
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The problem we have is that we are trying to deal in this chapter with something that is devolved in some respects to Scotland: all the education aspects of the chapter are essentially dependent on Scottish legislation as a devolved matter, but the subject matter of the Bill as a whole, which is a Home Office measure, is reserved. One has to draft things—as I believe Part 5 does at the moment—in such a way that it will apply with equal force and as effectively in Scotland as it does in England and Wales. In a way, I am addressing my remarks as much to the framers of the amendments as I am to the Minister, who has been nodding very kindly throughout what I have been saying because, I think, he entirely grasps my point. We are legislating here for both jurisdictions and we must be sure that the legislation covers them both equally, if we are to make the chapter effective.
The situation is slightly unreal because, as the guidance points out, and as we can see ourselves, no Scottish authorities are yet listed in Schedule 3. However, the guidance also states in its introduction:
“It is the hope and intention of the UK Government that Scottish authorities”—
I presume universities in particular—“will be included”. Although they are not listed at the moment, the point is one which could be of real significance. I hope that at some stage when these amendments are looked at again, and possibly brought forward on Report, they would apply equally in Scotland as they certainly would in England and Wales.