Terrorism (Protection of Premises) Bill

Lord Davies of Gower Excerpts

Committee stage
Monday 10th February 2025 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, the noble Lord, Lord Anderson, has put forward an important group of amendments. When I think about this, I am guided by two principles. The first is that anything the noble Lord, Lord Anderson, says about terrorism is probably worth listening to extremely carefully.

Secondly, I strive to be consistent in your Lordships’ House. I appreciate that that is not something that all noble Lords, particularly some who were recently in government, have necessarily embraced, but I cannot forget the number of occasions in the last 14 years when I have trooped through the Lobbies against Henry VIII clauses—for all the reasons that the noble Lord, Lord Anderson, highlighted. I look forward to my noble friend’s response on precisely that point of why Henry VIII clauses might be needed in this case. If he is not so minded, perhaps he might give us an indication of the alternative.

The other point—again, I hope it is consistent with what I have already said—is that I am aware that the Bill has been through a large amount of consultation in reaching this House. That consultation has led to a series of compromises. I said earlier that my preference would have been for the limits to be set at lower levels and for the provisions to kick in at venues of 100. It is the Government’s judgment, from listening to that consultation, that 200 is a better figure to go for. I would be uneasy if we were saying that these major provisions, having been through such extensive consultations, could be changed without a consultation process and certainly without a proper process of parliamentary endorsement.

[Lord Davies of Gower (Con)]

My Lords, I speak in support of Amendments 21 and 23 tabled by the noble Lord, Lord Anderson of Ipswich. These amendments propose the removal of Clauses 5(4) to 5(6) and 6(4) to 6(6), which currently contain Henry VIII provisions granting Ministers the power to amend by regulation primary legislation relating to public protection procedures, including the ability to make them more onerous.

These are important amendments and I support them for several key reasons. First, they uphold parliamentary sovereignty and democratic accountability. The inclusion of Henry VIII clauses in the Bill would, in effect, bypass the scrutiny of Parliament by allowing Ministers to unilaterally change key aspects of public protection procedures. Such powers should be granted in only the most exceptional circumstances, where there is a clear and pressing need for flexibility.

In this case, however, the procedures in Clauses 5(3) and 6(3) have already been carefully considered and subject to full scrutiny, and will be endorsed by Parliament upon the Bill’s passage. It is therefore difficult to justify granting Ministers the ability to unpick these provisions without returning to Parliament for proper debate and approval.

Secondly, granting such sweeping powers undermines legal certainty. The security landscape is undoubtedly complex and may evolve over time, but that is precisely why legislation must provide a stable and predictable framework. If Ministers can alter public protection procedures by regulation, it will create uncertainty for the businesses, public authorities and other stakeholders that will implement these security measures. This uncertainty could hinder the very objective that the Bill seeks to achieve in enhancing public protection.

Furthermore, the inclusion of Henry VIII clauses risks undermining public trust. Effective public protection measures require the co-operation and confidence of the public and stakeholders alike. If these measures can be altered without consultation or parliamentary oversight through the proper primary legislation process, it may lead to perceptions of arbitrary governance and erode confidence in the fairness and transparency of security regulations.

I am not blind to the Government’s need for flexibility in responding to emerging security threats. However, existing mechanisms allow for swift and proportionate responses without the need for unchecked ministerial power. Maintaining proper parliamentary scrutiny is essential to preserving the legitimacy of any regulatory framework. The amendment strikes a necessary balance between security and democratic accountability. It ensures that any future changes to public protection procedures remain, as they should, subject to the robust oversight of Parliament. I urge the Government to accept this amendment and demonstrate their commitment to parliamentary sovereignty, legal certainty and public trust.

I will now speak to the important amendments to Clause 32 tabled by the noble Lord, Lord Anderson of Ipswich. They address the regulatory powers granted to the Secretary of State regarding the thresholds for qualifying premises and events under the Bill. Amendment 38 seeks to require that any reduction in the thresholds for qualifying premises and events be justified by a change in the threat level from terrorism. While I appreciate and respect the intention behind this amendment, I must approach it with some caution. The need to ensure that security regulations are proportionate to the prevailing threat level is, of course, essential. However, linking regulatory changes exclusively to a shift in the formal threat assessment may create unnecessary rigidity.

Security risks are often multifaceted and not always captured by changes in official threat levels. Local intelligence, emerging patterns of behaviour or other factors may necessitate adjustments to security requirements even when the formal threat level remains static. For this reason, although I appreciate the noble Lord’s desire for transparency and justification, I am somewhat hesitant to fully support his amendment. None the less, I commend the focus it places on ensuring that regulatory changes are evidence based and justified.

I am more supportive of his approach in Amendment 39, which would require the Secretary of State to consult relevant stakeholders before making regulations under this section. This is a measured and sensible proposal that aligns with the principles of good governance. The wording, adapted from the Fire Safety Act 2021, provides a strong precedent for such consultation requirements.

Consultation is essential not only for ensuring that regulatory changes are practical and effective but for fostering buy-in from those directly affected by these measures. Venues, event organisers, local authorities and security experts are on the front lines of implementing public protection measures. Their insights and experiences are invaluable in shaping regulations that are both proportionate and workable. Moreover, consultation promotes transparency and accountability, helping to build public trust in the regulatory framework. In a democracy, it is only right that those affected by significant changes to security requirements have the opportunity to contribute their views and understand the rationale behind decisions.

In conclusion, while I take a cautious approach to Amendment 38, Amendment 39 takes a better approach. I urge the Government to look at this proposal as a possible safeguard for ensuring that regulations are both effective and democratically accountable.

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

My Lords, the Dispatch Box can sometimes be a lonely place, but such is life. I hope I can give some comfort to noble Lords who have contributed on the points that they have raised, while also explaining where the Government are coming from.

I thank the noble Lord, Lord Anderson of Ipswich, for his amendments and his constructive approach to the Bill’s proposals. It was good to talk to him outside the Chamber as well as having this debate. He has had support from the noble Baronesses, Lady Suttie and Lady Fox of Buckley, and the noble Lord, Lord Sandhurst. My noble friend Lord Harris of Haringey also made strong comments on the use of Henry VIII powers. The noble Lord, Lord Davies of Gower, from His Majesty’s Opposition Front Benches broadly speaking supported the bulk of the noble Lord’s amendments, with some concerns over Amendment 38. Ironically, it is on Amendment 38 that I can potentially offer the noble Lord, Lord Anderson, most warmth today. I shall try to give the House some comfort on these points and, hopefully, some explanation.

I welcomed the scrutiny of the Delegated Powers and Regulatory Reform Committee and of the Constitution Committee, of which the noble Lord, Lord Anderson, is a member. The Government carefully assessed each of the delegated powers in the Bill so as to draw them as narrowly as possible and to find alternative mechanisms which remove the need for secondary legislation where possible. Our view, and this is consistent with what we said in opposition, is that Henry VIII powers should be included only where they are necessary to ensure that the legislation continues to operate as intended and where there is a justification for those changes. I believe that is reflected in the scrutiny of the two committees, as the only concern raised was about the linked powers in Clauses 5(4) and 6(4). For the reasons I will set out, the Government still consider the powers covered by these amendments to be necessary.

On Amendments 21 and 23 tabled by the noble Lord, Lord Anderson of Ipswich, I take everything he says to the Committee—and to the Government outside the House—as important and serious. His amendments seek to remove powers that would enable the Secretary of State to add, remove or otherwise amend the public protection measures listed in Clauses 5(3) and 6(3). Members of the Committee will remember that Clause 5 covers a number of measures, such as evacuation, invacuation, preventing individuals leaving premises or providing information to individuals on premises or at an event. They are reasonable measures that can be taken, but the changing nature of terrorism means that over time methodologies may change.

As the ways in which acts of terrorism are carried out change, so too may the many ways in which we need to respond to them. The Government want to keep the legislation under review to ensure that it effectively deals with the terrorist threat while being—this goes to the heart of what the noble Baroness, Lady Fox, said—appropriate, proportionate and done in a reasonable way. These powers better enable the Government to respond to changes appropriately and maintain this balance.

The measures in Clause 5(3) are already constrained. They can be used only to achieve the public protection outcomes of the future Act. The Secretary of State may add further procedures only if it is considered that they would reduce the risk of physical harm to individuals. Similarly, the power to remove or amend the existing public protection measures may be exercised only where it is considered that such changes would not increase the risk of physical harm to individuals. The powers in Clause 6(3) are similarly restricted. The Secretary of State may add further measures only if it is considered that they would reduce the vulnerability of premises or events or reduce the risk of physical harm to individuals. Similarly, the power to remove or amend the existing public protection measures may be exercised only where it is considered that such changes would not increase the vulnerability of premises or events.

There are limited, straightforward proposals in Clauses 5 and 6, which set down a number of potential measures that are in place. Any change under those Henry VIII powers would be subject to the affirmative procedure. Before any regulations under these provisions are made, both Houses of Parliament would have the opportunity to debate and scrutinise changes to the public protection procedures and measures through these powers. Those limitations will help safeguard against unnecessary use of those powers by any future Secretary of State, in line with making sure that the public protection measures in Clauses 5 and 6 are met.

I believe, although I may be in a minority of one among today’s speakers, that the proposals in the Bill are sufficient for any Henry VIII power used in this circumstance to be brought back to the House for affirmative resolution and for the House of Commons to have a similar potential vote in due course. I do not have sympathy with those amendments, although I understand where they are coming from.

However, I will be honest; when I first saw Amendment 38, in the name of the noble Lord, Lord Anderson of Ipswich, I said to colleagues that I thought he has a point—and, if the Committee will bear with me, I think he does. Amendment 38 proposes to look at how we can reduce the qualifying threshold figures, saying that regulations can be made

“only if the Secretary of State is satisfied that the reduction is justified by a change in the threat from terrorism”.

There is potentially room there for discussion with the noble Lord outside this Chamber before Report, which is not too far hence, to look at whether we can reach an accommodation to agree that broad principle.

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[Lord Hope of Craighead (CB)]

My Lords, I will say a word about Amendment 24B. It is quite unusual for a tribunal or a court to be required by statute to deliver its judgment within a “reasonable time”. I can understand why the noble Lord, Lord Sandhurst, realises that a proposition of that kind—which is so general—requires definition.

That brings me to the second point, which is the power given to the Secretary of State to define the length of a “reasonable time”. The problem the Secretary of State faces is that if he gives a definition, it will have to last, presumably, until some further exercise of the power is resorted to. Looking ahead, it is very difficult to know what exactly the reasonable time would be. At the very least, I would expect that if the Minister were attracted by that amendment, it would be qualified by “after consultation with the tribunal”. To do this without consultation with a tribunal would be really dangerous because it might set out a time which, realistically, given its resources, the tribunal cannot meet.

I see what the noble Lord is trying to achieve, but it has difficulties. To try to define “reasonable time”, even with the assistance of a tribunal, is a task that would not be easily achieved.

[Lord Davies of Gower (Con)]

My Lords, I rise to speak to Amendment 24, tabled by the noble Baroness, Lady Hamwee, and to Amendments 24A and 24B in the name of my noble friend Lord Sandhurst. Amendment 24 seeks to remove subsections (5) and (6) of Clause 8, probing the implications of this clause for commercial agreements, as highlighted by the Independent Reviewer of Terrorism Legislation’s note on the Bill.

The amendment rightly seeks to probe how these provisions will affect contractual relationships between private sector actors. There is a genuine concern that the current wording could place undue financial and legal burdens on businesses by interfering with existing agreements. This could lead to significant commercial disputes and unnecessary litigation, ultimately hindering the smooth operation of commercial partnerships.

While public safety is undoubtedly a priority, we must ensure that our approach to security does not inadvertently create a minefield of legal uncertainty for businesses. Subsections (5) and (6) appear to grant broad and potentially disruptive powers that may override established contractual terms. In doing so, they risk undermining commercial stability and discouraging investment in venues and events that play an important role in our social and economic life.

Furthermore, these provisions may disproportionately impact small and medium-sized enterprises that lack the legal and financial resources to navigate complex contractual adjustments. Removing subsections (5) and (6) would encourage a more co-operative and practical approach, allowing businesses to work with public authorities to achieve security objectives without unnecessary interference in their commercial arrangements.

The independent reviewer’s concerns highlight the need for clarity and a balanced approach. Instead of imposing rigid requirements that disrupt commercial agreements, we should be looking to develop guidance that promotes collaboration between duty holders and security authorities. With this amendment, this House can signal our intention to maintain security measures that are both effective and commercially workable.

Amendment 24A in the name of my noble friend Lord Sandhurst is a simple amendment which seeks to establish the Government’s reasons for requiring one senior individual to be responsible for the duties under the Bill for those premises and events with an enhanced duty. This should be something that the Minister can resolve with a clear answer today, and I hope he will be able to give that answer today.

Amendment 24B, also in the name of my noble friend Lord Sandhurst, seeks to establish the timeframe in which decisions by the tribunal have to be made. Clearly, events will need swift decisions from the tribunal if the decisions are to be made before the events themselves are held, and it is surely right that all organisations deserve timely determinations from the tribunal. Can the Minister tell us what his expectations are in this regard? Can he confirm that the Government have assessed the impact of this new duty on the tribunal on waiting times for determinations?

I urge the Government to reconsider the necessity of these subsections and to work toward a more proportionate and practical solution.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Sandhurst, for their amendments. I will try to deal with both in due course.

First, Clause 8(5) and (6) introduce a co-operation requirement between persons responsible for those premises under the Bill and those with any other form of control of enhanced duty premises and qualifying events. I make it clear to the Committee that this clause relates to the enhanced tier of premises, not the standard tier, so this would be responsible for the very top end of the arena-type premises. The responsibility for implementing the Bill’s requirements will always remain with a responsible person. Nevertheless, for reasons that have been outlined by the noble Baroness, Lady Hamwee, there may be areas where they require permission, support or co-operative steps from other parties to have some level of control of the premises or the event, in order to comply with the requirements of the Bill.

The noble Baroness gave an example which I can repeat back to her, in essence, where the person is a leaseholder who might identify that in order to put in place public protection measures, some changes are required to the building, such as replacing glass or providing alternative exit routes. In order to do that, the lease agreement may specify that permission must be obtained from the freeholder before any alterations are made. The purpose of this would be that if the freeholder were to refuse, or fail to respond to, such a request, this would compromise the responsible person’s ability to take forward reasonably practicable measures and frustrate the potential protection afforded to the premises. Clause 8(5) and (6) have been designed to require in such circumstances the freeholder

“so far as is reasonably practicable”—

the key phrase in the legislation—to co-operate with the leaseholder for the purposes of allowing the Bill’s requirements to be met.

I re-emphasise

“so far as is reasonably practicable”.

The clause does not require those subject to Clause 8(5) and (6) to habitually co-operate; they must co-operate so far as is reasonably practicable. What is reasonably practicable are the very issues that the Committee has already referred to, such as costs, benefits and the difficulties in making the respective relevant change, including considering the longer-term use of the premises.

I should also emphasise that Clause 8 does not automatically override commercial contracts or agreements. There is the co-operative principle that where there are parties with control of premises or events, there will be parties who will work readily with those responsible to take forward appropriate requirements. However, where that is not the case and where there is a dispute, Clause 11—which we will come to in a moment—gives the persons the right to apply for determination at a tribunal. The tribunal may be asked to determine

“whether a person is required to co-operate with the person responsible”

for the duty. I hope the noble Baroness, Lady Hamwee, will recognise that there is a reasonable test in the clause as determined, and that the safeguard of the tribunal is there for where there are disagreements in due course.

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[Lord Udny-Lister (Con)]

My Lords, I support Amendment 25. We all know that if training is provided badly, it is actually better if there was no training given in the first instance, because it will do far more damage. When we are considering mandating training for public safety, it is imperative that only suitably qualified persons from legitimate organisations are permitted to offer that training. Only two or three weeks ago, those of us who are interested were reading about problems with fire legislation, where incorrect training was being provided and had caused major problems for a number of home owners, so this is essential. It is also worth bearing in mind that this training will require recognised people who will be able to train on threats, counterterrorism awareness, emergency trauma care and co-ordinating with the security services. All this will require people who know what they are doing. That is my first point.

While I am on my feet, I will also talk about Amendment 27 and support it. To achieve the end goal of enhancing public safety through the mitigation of risk, it is self-evident that public awareness is going to be key. I therefore encourage noble Lords to support the amendment. To achieve public awareness, government must be mandated to provide information and material to the SIA and relevant bodies such as local authorities—something we have not really talked about. Proposed new subsection (2) in that amendment is imperative, as the financial burden that could fall on local authorities is going to be significant—as it is on the SIA, but of course that is getting funding.

In its submission of evidence on this, back in July 2023, the council of local authorities said that this could run into millions of pounds. It would have to include familiarisation costs. Councils would have to fund risk assessments and do comprehensive training for staff and councillors. There would need to be tailored advice. All this is costly and time consuming, and it is important to reiterate that local authorities are already under pressure because of spiralling costs. Therefore, it is important that the Government clarify what funding will be available to local authorities. Will they be covered by the new burdens doctrine, which states that any additional costs incurred by local authorities by new legislation will be covered by government?

[Lord Davies of Gower (Con)]

My Lords, I will speak to the amendments proposed by the noble Lord, Lord Faulkner of Worcester, and the noble Baroness, Lady Suttie. These amendments address vital areas where the Bill can be further strengthened to enhance public safety and ensure that all relevant stakeholders are equipped to fulfil their duties under the legislation.

The horrific events have that blighted public spaces over recent decades remind us of the importance of constant vigilance and robust security measures. As policymakers, it is our duty to ensure that we not only legislate to protect the public but provide practical support to those responsible for implementing these protections. These amendments, focused on training, public protection procedures and public awareness, are an interesting approach to ensuring that this legislation is properly implemented.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I did not intend to speak on this group, but I will make a couple of points. The amendment from the noble Lord, Lord Murray, is not necessarily one I support, but the idea that snake oil salesmen are confined to the private sector means the fact that people are not aware of what is happening among NGOs, the voluntary sector and charities, particularly in terms of training. Goodness knows, there is a huge amount of guff being peddled and sold from that direction, so I want to at least acknowledge that it is not just private providers.

Even if I am not particularly moved by the amendment, it is also not entirely fair to suggest that it is trying to sell training certificates that will falsely imply that people will feel safe because they have had some accredited training. If I am honest, my concern about the whole Bill is that the public are being told that if we pass the Bill, they will be kept safe from terrorism. That is mis-selling.

I have raised these points throughout our discussions on the Bill. We face huge challenges when it comes to terrorism, extremism and keeping the public safe, and, of all the pieces of legislation we could bring in, this is the least effective and the most anodyne, and will have no impact at all on public safety. Yet it is heralded as being so important. So it is a bit rich to have a go at one amendment for doing that, when in fact it could be levelled at the legislation as a whole.

[Lord Davies of Gower (Con)]

My Lords, I support the amendment put forward by my noble friend Lord Murray of Blidworth. This amendment introduces a new clause on private sector engagement in counter-terrorism measures. It is designed to allow those responsible for managing high-risk or qualifying premises to contract with accredited private security providers for risk assessments and ongoing security services. It mandates that the Secretary of State maintains a list of certified private security firms and that these firms comply with national guidelines and be subject to regular audits by the Security Industry Authority.

I commend this amendment for its forward-thinking approach in leveraging private sector expertise to enhance our national security posture. In an era when terrorism remains an ever-present threat, we must not limit ourselves to traditional, often overstretched, public sector resources. Instead, we should embrace innovative partnerships that can deliver rapid, expert responses to evolving threats, while ensuring accountability and the highest standards of practice.

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[Lord Hogan-Howe (CB)]

My Lords, the noble Baroness, Lady Suttie, has hit on a good point, particularly when you consider that at least four bodies would have a view about evacuation—the Health and Safety Executive, licensing authorities, the SIA and the fire regulators. Each has its own inspection regime, which means that there could be four inspections in one year about the same event. They would all want to make sure that this does not cause more cost but does cause more effectiveness. Whether it is in the Bill or something to reassure the people operating these premises, I think it worth considering at this stage. Nobody is saying that it should not happen, but it is about how it works together. This would be one more body in a similar area if we considered evacuation only, but I suspect that there are other overlapping areas.

[Lord Davies of Gower (Con)]

My Lords, Amendment 32 in my name would require the Security Industry Authority to notify all local authorities when guidance under the Act has been published. This amendment is a sensible and practical addition that enhances the effectiveness of the guidance regime established by the Bill. Local authorities, as the key regulators of many of the premises affected by this legislation, must be fully informed and equipped to act on the guidance issued by the SIA. Without clear and timely notification, there is a real risk that local authorities may be unaware of updates or new requirements, leading to inconsistencies in enforcement and, ultimately, undermining the policy aims of the Bill.

The Security Industry Authority will no doubt invest considerable resources in developing detailed guidance, taking into account the needs of various sectors and types of premises. However, guidance can be effective only if those responsible for its implementation are fully aware of it. Local authorities play a pivotal role in licensing, regulation and compliance, particularly in environments where security is a key concern. Whether dealing with entertainment venues, public spaces or other licensed premises, their ability to respond quickly and efficiently to new guidance is essential for maintaining public safety.

Ensuring that local authorities are promptly notified will support the smooth implementation of the Act and strengthen co-operation between central guidance bodies and local enforcement agencies. It will reduce the risk of delays in adopting best practices and foster a stronger sense of collaboration between stakeholders at the national and local levels. Ultimately, this measure will help create a more coherent and streamlined regulatory environment, benefiting businesses and the public alike.

Furthermore, this amendment underscores the importance of clarity and communication in regulatory frameworks. Given the increasing complexity of the legislative landscape for public safety and licensing, clear channels of communication between central bodies and local authorities are more critical than ever. We must not assume that guidance, once published, will automatically reach all relevant parties without a formal notification requirement. By adopting this amendment, we would take a simple yet effective step to close that potential gap.

I respectfully suggest that the adoption of Amendment 32 would represent a constructive and pragmatic step toward strengthening communication between national and local regulatory bodies. It is a practical measure that will enhance the effectiveness of this legislation and support its successful implement- ation. I urge the Government to give it serious and favourable consideration.