My Lords, I will just deal with a few points from this debate. This group of amendments deals with Clauses 28 and 29. I will refer first to Clause 28, particularly the now amended subsection (4A). The point was raised by the noble Lord, Lord Phillips of Sudbury, who asked whether it would be possible for the affirmative resolution, which is coming forward on the guidance, to cover more than just the date when it will be brought in, which was one reading of the amendment. I confirm, of course, that it will cover both the date and the content of the guidance. We recognise that that is a very important part. It is not clever wording trying to curtail debate. We recognise that that is the intent and I wanted to take the opportunity before we leave Clause 28 to put that on the record.
The noble Baroness, Lady Lister, in moving her amendment, asked that the Secretary of State,
“have due regard to the principle of academic freedom”,
when issuing guidance or giving direction. We have already amended the Bill to ensure that particular regard is paid by the Secretary of State to the duty to secure freedom of speech in higher and further education, as set out in Section 43 of the Education (No. 2) Act 1986. The interplay between the duty in that Act and the principle of academic freedom set out in Section 202(2) of the Education Reform Act 1988 is an interesting one.
The Education Reform Act defines academic freedom as, in particular, the ability for academic staff to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their
jobs or the privileges they may have at their institutions. I well acknowledge the remarks made by the noble Baroness, Lady O’Loan, who told us very powerfully in earlier stages of the Bill about the rigours of actually teaching constitutional government—I think it was—in Northern Ireland during the time of the Troubles. We accept that what is described here is effectively a subset of freedom of speech which higher and further education institutions have a duty to secure through Section 43 of the 1986 Act.
Furthermore, I note that the 1986 Act extends the duty to secure freedom of speech not only to academic staff but also to employees, students—to whom the noble Baroness, Lady Williams, referred—and visitors. It covers both higher and further education institutions, whereas the matters referred to in Section 202 of the 1988 Act are only pertinent to the academic staff of universities.
Without going any further at this stage, I would like to reflect on what the noble Baroness said, without saying anything binding. I certainly understand where she is coming from, if it is a matter of interpretation. We just need to check that with lawyers. If she is willing not to press that amendment, I will certainly give an undertaking to look at it again and perhaps come back with some comments at Third Reading.
I turn now to Amendment 15B in the name of my noble friend Lady Sharp, which would require the Secretary of State, prior to making a direction, to inform the authority of that intention and to give the authority the opportunity to make representations before the direction is made. Any decision made by the Secretary of State must be reasonable and proportionate. In most circumstances, this would require only the steps outlined; so in that sense, we believe that this amendment is not necessary. I can also assure the House once again that it is the Secretary of State’s intention, as a matter of policy, to use this power only as a last resort, when other means of securing compliance through discussions with the authorities—who will be at liberty to make representations at that stage—have been exhausted. I should also reiterate that both the Prevent oversight board, on which our noble friend Lord Carlile sits, and the courts—to answer the point made by the noble Lord, Lord Thomas of Gresford—will play a role in the process of giving and enforcing such a direction.
To clarify, we do not want, as it were, to run to the bottom line on this point of the direction. It is a necessary consequence of making statutory the requirement to have due regard that there must be some legal doorstop. If people refuse to abide by the law then, just as with any other law, ultimately it trickles down to the court and might end up in contempt of court. We recognise that we are treading on very sensitive ground here. I am sure that all Secretaries of State will weigh that very carefully. Also, they must have particular regard when issuing that direction to the freedoms outlined in the 1986 Act.
With that reassurance to my noble friend and the promise to reflect on the amendment moved by the noble Baroness, Lady Lister, I ask noble Lords to consider not pressing their amendments at this stage.
10.15 pm