My Lords, I shall speak briefly to Amendment 104. In so doing, I declare a past interest, as I was for 10 years a president of a Welsh university and the chairman of its management council.
I shall deal first with a technical constitutional point that is not a thousand miles away from the matter raised by the noble and learned Lord, Lord Hope of Craighead. Universities and higher education in general in Scotland and Wales are, of course, devolved functions. Therefore, one could easily react in a rather crude and barbaric way and say, “This is not a matter for Westminster to intervene in”—although I certainly do not take up that argument.
Nevertheless, one should bear in mind that there are conventions in existence in the relationship between this House and the devolved assemblies. This is the Mother of Parliaments, and it stands to reason that it has the sovereign authority to cancel or amend in any way that it wishes any area of devolution that it has endowed upon it. But it will not do that and does not intend doing that wrongly. We have the Sewel convention in Scotland and a similar convention in Wales to the effect that such interference will not take place save in the most unusual—if not unique—circumstances. It would take place when either the devolved assembly requests that it should happen—the point essentially raised in relation to Section 43 of the 1986 Act by the noble and learned Lord, Lord Hope—or there is a situation that is utterly unique. One can imagine one or two where there would be justification for such action.
It is clear to me that another principle overwhelms that; for although higher education has been devolved to Scotland and Wales, counterterrorism has not. That surely must take precedence in every way because it involves the security and, at the end of the day, the very existence of the state itself. I raise the matter not to show off any understanding of constitutional matters but to raise a point in relation to what should happen in this unique situation where we have a devolved function being clearly brought under the microscope of Westminster. The Bill accommodates that possibility very clearly in Clauses 23 and 25. In Clause 23, it is in relation to adding an authority to the list in Schedule 3; in Clause 25, it is in relation to giving a direction. However, the Bill states in each case that there has to be consultation between the Home Secretary and Welsh Ministers, and that is the point that I seek to raise.
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Such words have appeared in many Acts of Parliament during the past 15 or 20 years. Consultation is a very wide concept. At the one extreme, it might mean nothing more than a peremptory notice, utterly without discussion and merely for information; on the other hand, it can mean a soul-searching discussion where people talk to each other as if they were equals; and, in between, one has all manner of possibilities. In the main, consultation has not been on a very equal basis between Westminster and Cardiff—I do not know
what the situation is in relation to Scotland and, if I did, it would not be a matter for me to comment on. In the past, much could have been very properly discussed which has been passed over in a very cavalier way. What I ask is that there should be an exceptional approach to consultation in this wholly exceptional case. I do not think that it is asking too much. Either by writing it into the body of the Bill or by some solemn undertaking, there should be some understanding that consultation in these contexts has to be real consultation and nothing less.
I turn briefly to the merit of the amendment. What is very strange is not that one should be arguing for the exclusion of universities—by universities, I mean as well other institutions in the same line as mentioned by the noble Baroness, Lady Sharp—but that they were included in the first instance. No cogent, reasonable case has been made out for that. The Government say, “Ah, well, we have quite some evidence that many people who have been radicalised and have gone abroad to join al-Qaeda and other similar bodies have been at some time or another in universities”. I would be very grateful if one could analyse that statement rather more carefully.
A very high percentage of young people go to university. That has been the policy of government for some years. Are the Government saying that the percentage of persons who are identified as having gone abroad in that way is higher than the average for the community as a whole? In other words, do they point the finger at universities as such, as opposed to pointing a finger at young people? We know that to a large extent the recruitment that we are talking about seems unfortunately to be the prerogative of young people.
On the general arguments, we have had a magisterial condemnation—sometimes with great restraint, as in the case of the noble Lord, Lord Pannick, whose approach to the whole problem I admire—of the very principle of government seeking in some way either to diminish the independence of universities or to restrain freedom of speech, or, as may well be more relevant in this context, to give the impression that that might be what they intend. I accept that the Government’s intentions are good, but they have to be judged by exactly what the consequences will be.
I ask, first, therefore that the Government take heed of the two sections that we have heard quoted at length and accurately: Section 43 of the Education (No.2) Act 1986, which guaranteed freedom of speech, and Section 202 of the Education Reform Act 1988, which guarantees safety of employment for people who involve themselves in teaching rather out-of-mainline subjects and ideas to young people. It simply will not do to leave the matter as it is. The wording of those two statutes is so specific and so deliberate that they simply cannot stand side by side with the very tenor of Part 5 of the Bill. If it becomes law, an inevitable conflict will have to be resolved. In some way, those provisions must be dovetailed with the purposes of Part 5.
Secondly, it is very dangerous to allow the Home Secretary from time to time to issue directions. Those directions lead ultimately to orders which are executed
by courts. Leaving the matter like that would inevitably allow the Home Secretary to write his own law circumventing Parliament. I am sure that there is a better way of doing that.
Thirdly, the way in which the system operates seems to have been misjoined. The end product envisaged in Part 5 is that the Home Secretary should take drastic measures and issue a mandatory order. He issues a mandatory order after he has issued directions, but he does not issue such an order because a direction has been broken but because there has been a lapse under Clause 21. The two things quite often might be exactly the same, but one does not have to exercise great imagination to consider that you could have no breach whatever of the directions but a blatant breach of Clause 21. I am sure that the matter will be attended to in due course.