Terrorism (Protection of Premises) Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 12th February 2025 Lords Chamber

Moved by

[Baroness Hamwee]

37A: Leave out Clause 31 and insert the following new Clause—
“Civil liabilityNothing in this Act or regulations made under it affects any right of action in civil proceedings.”Member's explanatory statement
This amendment is to clarify the right to civil proceedings under the Bill.

[Baroness Hamwee (LD)]

My Lords, Amendment 37A is in my name and that of the noble Lord, Lord Carlile of Berriew. Clause 31 of the Bill provides that,

“Except so far as this Part or regulations under this Part provide, nothing … confers a right of action in any civil proceedings in respect of a contravention of a requirement imposed by … this Part”.


It then goes on to say that that subsection

“does not affect any right of action which exists apart from the provisions of this Part”.

I was quite confused by that clause, and relieved that the noble Lord, Lord Carlile, also sought clarity. Our amendment would provide that:

“Nothing in this Act or regulations made under it affects any right of action in civil proceedings”.


If we have interpreted the provision correctly, that is a rather more straightforward way of saying it.

When the point was raised at Second Reading, the Minister said that the lack of time meant that we did not have the opportunity then to discuss the clause in detail. He said there would be opportunities in due course, so I am taking this opportunity. My question is, quite straightforwardly: does the amendment express what the Government are seeking to say, particularly with regard to breach of statutory duty? If it is not as the amendment sets out, why not? I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to act as junior counsel to the noble Baroness, Lady Hamwee. I listened carefully to some comments that the Minister made on Monday, which alluded to this clause, and I thought about them carefully, but they were brief and I, too, wish to test what is really intended by the Government. My feeling is that the Government have made an inadvertent mistake in Clause 31 which they can easily rectify.

This Bill is designed to protect citizens by imposing clear statutory duties. When clear statutory duties are imposed and there is a breach of those duties, it is very common for a citizen who is a victim of that breach to be able to bring a civil action. The purpose of the civil action is often to recover damages, though it may involve other declaratory judgments too.

I want to give a few examples, because I think we are going to have one substantive debate on this clause and then a decision will be reached. I am going to mention a number of instances in which breach of statutory duty gives rise to a civil action to obtain judgments of the kind I mentioned. First, driving a vehicle in an unsafe condition gives rise to a statutory duty which can result in a judgment for damages. In this Bill we are talking about something much bigger in scale than driving a vehicle in an unsafe condition, but it may have exactly the same consequences.

There are other examples. If there are unsafe systems or means of work in any workspace, there can be an action for breach of statutory duty without it being necessary to prove negligence, nuisance or any other tort —civil wrong—that requires specific proof of certain aspects. Allowing a vehicle to be driven by an uninsured person allows a claim for breach of statutory duty. The failure to arrange compulsory insurance for employees allows such a claim. If a landlord fails to provide habitable standards, equally, there can be such a claim. If a company fails to disclose required financial information to investors, there can be such a claim for breach of statutory duty.

If a shop sells faulty electrical equipment whereby a fire is caused in the home for which it has been bought, for example, one does not have to prove negligence. One may have an action under the Sale of Goods Acts or their equivalent, but there is an opportunity to obtain damages for breach of statutory duty. At a construction site, the failure to provide safety barriers gives rise to such an action. If we go to a restaurant and suffer food poisoning because it has failed to reach the statutory hygiene standards, we can make a claim for damages for breach of statutory duty. If one fails as an employer to provide proper training to employees on handling hazardous chemicals, that too gives rise to a potential claim for breach of statutory duty. I have chosen just a few examples—and there are others—where one does not have to prove negligence and the components of negligence.

Such provisions are all designed to secure protection for individuals without the need to prove those other elements of common-law civil wrongs. I do not understand why those rights are removed by Clause 31(1). I invite the Government to reflect on what is, as I have suggested, probably an inadvertent failure.

--- Later in debate ---

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment, with the support of the noble Lord, Lord Carlile of Berriew. We have had discussions outside this Committee to examine these issues. I am genuinely sorry that I was not able to allay the concerns expressed in our discussions, but I hope to be able to do so today, formally and on the record. I am grateful for the comments from the noble Lord, Lord Sandhurst, which I think were supportive, and those from the Opposition Front Bench made by the noble Lord, Lord Davies of Gower.

The purpose of the Bill, as we have discussed, is to mitigate the effects of physical harm arising from acts of terrorism. My starting point, which I know will be shared by everybody in this Committee today, is that the people responsible for such heinous acts that might be inflicted as a result of terrorist activity are the terrorists themselves. The purpose of this potential Act, if it is approved downstream, is to ensure that there are requirements on the duty holders under it which make a real difference to the physical harm caused by potential acts of terrorism. For this reason, there is both a set of conditions to put in place, under Clauses 5 and 6, and robust regulatory and enforcement provision in the Bill.

However, the duties should not impose an actionable right for someone who has suffered loss or injury to bring a claim for a breach of statutory duty. I will try to explain why I think that is the case in due course. I may or may not convince the noble Baroness and the noble Lord, but I will attempt to do so.

Clause 31(1) puts this principle beyond doubt and provides valuable reassurance for responsible persons who, fearing they may face civil proceedings, could otherwise feel pressured to overcomply with the Bill’s requirements. These points were made by the noble Lord, Lord Davies of Gower. They might, as the Liberal Democrats have previously spoken about, drive people who have those statutory responsibilities to start to engage expensive consultants to overworry about the provisions or to make alterations to their premises that are disproportionate to the risks they face.

Throughout the Bill, the Government have tried to make the provisions as simple and clear as possible and to not put concerns that would lead to potential costly litigation on the face of the Bill. Clause 31(2) makes it clear that it does not affect any right of action which exists, apart from the provisions of Part 1 of the Bill. I know the noble Lord is aware of this because we have discussed it but, for example, a claim for negligence could still be made under the provisions of Clause 31(2). That provision is precisely in line with existing legislation, such as the health and safety legislation in 2013, which ensured that no civil right of action was available for breach of statutory duty unless provided for specifically under the Bill.

It is right that the Bill makes it clear that existing rights of action, such as negligence claims, are not affected, while providing what I hope—again, this is for noble Lords to assess—is clear reassurance to all that a civil claim for breach of statutory duty may not be brought. Therefore, I hope it helps the true purpose of the Bill: to require reasonable, simple and effective steps to mitigate the harm that could be caused by an act of terrorism, for which the terrorist is solely responsible. It should be achieved appropriately, proportionately and without overcompliance flowing from a fear of costly litigation.

I may not have succeeded, but I hope I am finding the balance point between the concerns expressed by Members of the Opposition, and the genuine concerns put down by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Carlile. I hope that balance point is achieved by what the Government say. I will listen again if the noble Lord, Lord Carlile, wishes to make any further points based on what I have said. That is —not with my legal training but the legal mind of the Home Office lawyers behind me—the position I put before the Committee in response to the amendments.

[Baroness Hamwee (LD)]

My Lords, I am grateful to those who have taken part in this debate. I do not know whether noble Lords listening are any clearer as to where we are going on this. I make it clear to the Committee that my first objective is to achieve something that is readily understandable to anybody reading this legislation. The Member’s explanatory statement refers to clarity. I was seeking to address this to, first, get clarity and then debate the substance.

I was also concerned that it is important to get discussions on the record. This is not an accusation, but I was not involved in any discussions outside this House. It occurs to me listening to the discussion that it will also be important that guidance or explanations about how this new regime is to work are written in kindergarten language and available to the public.

[Lord Hanson of Flint (Lab)]

Perhaps I might again reassure the noble Baroness. What I have said, from this Dispatch Box, is that guidance from both the Home Office and downstream will be put out once the Security Industry Authority is established, and that it will be subject to discussion in this House. I hope that will achieve the noble Baroness’s objective.

[Baroness Hamwee (LD)]

I hope that anything that is put out does not need that much discussion in terms of clarity and whether the plain English campaign is satisfied and so on. I am not going to seek to take this further today, but I come back to it as one of the central political points about legislation being clear to those who have to operate it and who are affected by it. Having said that, I beg leave to withdraw the amendment.

Amendment 37A withdrawn.