My Lords, it should be no surprise that this debate has lasted as along as the debate on Monday on 17 new clauses around communications data retention. Perhaps that is an indication of the knowledge, concern and experiences of noble Lords here today. This has been a long debate. It has been a healthy and very well informed debate. The Minister may feel slightly embarrassed that he has found no friends for the Government’s position during the debate. It would be wrong to caricature the debate as people not wanting to avoid individuals being drawn into terrorism. That is very clear. I concur entirely with the noble Lord, Lord Pannick, who made clear why that is so important and the dangers of terrorism. I hope that no one would caricature this debate as showing that any noble Lord is not committed to ensuring that that is avoided at all costs and that action is taken.
I am not convinced of the need to pull universities out of Part 5 completely, but the reason there is very great concern is that the provision seems poorly drafted. It has created serious concern about the duties and responsibilities on universities. The issue is around free speech, which is what I want particularly to address because the Minister has an opportunity to win widespread support from your Lordships’ House and to respond to the eloquent and important points that have been made and to address the heart of the concerns. He will have heard them raised at Second Reading. They were reinforced tonight.
My noble friend Lady Lister said that her amendment may be technically deficient. It may be technically deficient, but she was very clear in what she was saying about her concerns about what could be seen to curtail free speech, proper debate and controversial debate within universities and higher education establishments.
The noble Baroness, Lady Buscombe, who is not in her place, made an important point about the consultation on this. It does not help debate in your Lordships’ House to be discussing guidance which is still open for consultation and which was not available at all in the other place. It was published after the other place debated this issue. We have had sight of the consultation, which will not close until the end of the week. The Minister recognises in his letter the concerns that have been raised. That letter was written only yesterday, which is why a number of noble Lords who have spoken about the duty regarding giving advance notice
of speeches have not had time to read it. This is not the way we should establish guidance. This is not the way we should be debating legislation. In a later amendment, we will propose that because of the delay in the guidance and its importance, it should come back to both Houses and be subject to an affirmative resolution of both Houses before it can be accepted. It is completely unacceptable for us to be discussing this issue in such an abstract way.
I thank the Minister and his colleague in the other place, James Brokenshire, who tried to address a number of the issues raised by noble Lords in the helpful briefing he gave a couple of weeks ago, but I fear that that briefing raised as many questions as it answered. One issue has been raised again tonight. If the Minister is able to answer it, it would be very helpful in understanding the debate. A number of noble Lords referred to the work ongoing in universities under the Prevent programme and the arrangements being made. The noble Baroness, Lady Brinton, gave a helpful example regarding the banning of a particular song which shows that universities are fulfilling their duties. A question raised at the briefing has been raised again today and my honourable friend Diana Johnson has been asking questions on this in the other place. We have not had an answer. How serious it is for those universities which the Minister says are not complying with Prevent? He said that most universities are complying with Prevent, which implies there is ongoing work which is successful. He wants to bring the other universities up to the same level, but how many are we talking about? Are most universities complying? Is it a few? Is it 50? We have no idea of the scale of the problem which he has indicated to us that makes this legislation necessary. It would be helpful if he could say something about that.
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The noble Lord, Lord Hannay, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, spoke about this issue being in two parts: those who are concerned about freedom of speech and the whole issue. If the Minister can put some guarantees in the Bill which address that overarching concern, that may go some way to alleviating the concerns that have been raised by noble Lords about whether universities should be in the Bill at all.
However, the Government said—it was said at the briefing, and I am sure that the Minister has it in his notes—that nothing in the Bill conflicts with the legal obligations of free speech. But that has not satisfied the universities, which are concerned that they will have two pieces of legislation that contradict each other. Finding and managing a way through that is extraordinarily difficult. The Minister will understand the necessity and value of those controversial discussions among young people at universities. We have heard from noble Lords tonight who have far more association with universities than I do. The noble Baroness, Lady Kennedy, gave an excellent example of the discussions she has with the students she works with and talks to, and of how universities start to fear that those discussions could be brought within the ambit of the Bill.
I think the Minister has recognised the inadequacy of the way that the consultation has been handled. His letter addresses some of the points. That indicates that the Government are prepared to listen to the concerns that have been raised, which are very genuine and very real, and could hamper the way in which the Government’s plans are implemented. If there is nothing in the Bill that contradicts or overrides the right of free speech that universities have under the Education Act 1986, why not put that in the Bill to give absolute clarity? I do not understand the Minister’s arguments—we have heard them before and I hope he is not going to repeat them tonight—about why that cannot be explicit in the legislation so that it is clear that universities are not being affected in the way that so many noble Lords, understandably and possibly rightly, fear.
Amendment 105 and the amendments tabled by the noble Baronesses, Lady Brinton and Lady Sharp, try to get to the nub of this and find a way that would improve these measures and take away the dangerous part of the Bill, which indicates that we are seeking to contain what people say and debate. They would also ensure that we continue to provide a space in universities where those debates can be had.
I have been in the Minister’s position, albeit in the other place. I have seen the sheaves of paper being passed to him during the debate. I am sure that his notes say that he should reject all the amendments today. I have been there and done that and I, too, on occasion have put some in my pocket before leaving the Chamber. I urge the Minister not just to support the status quo on this. The Government have an opportunity to take note of what has been said, to listen and respond to those who understand these issues, who have been working with them, who will be responsible for implementing the legislation—and who are telling us that it is unworkable in practice. Perhaps the Minister can reflect on what has been said; if he can meet with noble Lords who I am sure will be happy to do so, to see if there is a better way forward, and come back, perhaps next week on Report, with thoughts that address, if not all the concerns that have been raised but many of them, that would be warmly welcomed by your Lordships’ House tonight. I urge the Minister to reflect on what has been said and hope that we can have a further productive discussion on Report.