Terrorism (Protection of Premises) Bill

Lord Sandhurst Excerpts

Committee stage
Monday 10th February 2025 Lords Chamber

As related in the explanatory statement to Amendment 39, this amendment takes as its model the Fire Safety Act 2021. We took that course because the Fire Safety Act is the precedent expressly advanced in the delegated powers memorandum as the model for this regulation-making power. But it is not a very exact precedent, because the Fire Safety Act contains a duty to consult and this clause does not. If we are to delegate such an important power to the Minister, an obligation to consult before acting is surely the minimum safeguard that we should require—so let us put it in. I beg to move.

[Lord Sandhurst (Con)]

My Lords, I support these amendments. In particular, I shall speak to Amendments 21, 23 and 39, but I support the other one too. We have to remember that we have to uphold parliamentary sovereignty and democratic accountability. As the noble Lord, Lord Anderson, explained, these are Henry VIII clauses. They will effectively bypass the scrutiny of Parliament. They will allow Ministers to change key aspects of public protection measures and to do so by means that should be employed only in exceptional circumstances.

This is particularly ironic in the light of two recent statements by this Government’s Attorney-General, the noble and learned Lord, Lord Hermer. In his maiden speech in July last year, he said that the Government would

“seek to promote the highest standards in how we legislate”

and seek

“to increase … accessibility and certainty”.—[Official Report, 23/7/24; col. 372.]

in how we make law, including not abusing the use of secondary legislation—I remind the House of that. On 22 November, in the Attorney-General’s 2024 Bingham Lecture, he addressed the erosion of the separation of powers and the usurpation—his word—of parliamentary sovereignty and judicial authority. He stressed the importance of the separation of powers and public confidence in democratic institutions.

In the present instance, we have procedures in the Bill that have been carefully considered and subject to full scrutiny. They will have been endorsed by both Houses of Parliament upon the Bill’s passage; that will be put to one side if they are then changed by regulation. Such sweeping powers undermine legal certainty; they are simply not appropriate in this instance. If we are to have effective measures—we have looked at the detail and found that these measures must have everyone working together to be effective: members of the public, the police, the emergency services and the SIA—it is important that everyone feels bound in and supportive.

If, having been through a long and tough series of debates in these Houses, the primary legislation is then just put to one side by successive Secretaries of State, we have all wasted our time. The public will perceive that and there will be a serious loss of democratic accountability and confidence.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was glad to add my name to Amendment 21, in the name of the noble Lords, Lord Anderson of Ipswich and Lord Sandhurst, and the noble Baroness, Lady Suttie, and Amendments 23 and 38.

I am very concerned about what I consider to be the introduction of an anti-democratic part to this Bill, which is worrying and unnecessary in terms of delegated powers and secondary legislation. It opens up the potential for an overreach of powers in relation to the use of Henry VIII powers. The noble Lord, Lord Anderson, explained brilliantly how the regulations can be amended in terms of the list of public protection procedures and measures that qualifying events and premises will be obliged to put in place. It feels as though that makes a mockery of the hours that we are spending here. I do not know why we are examining every line to ensure proportionality and those of us who raise concerns about overreach and so on are reassured that this will proceed carefully and not get out of hand, when all that could be wiped away with a pen stroke. Allowing this particular policy to be, potentially, reshaped to create further obligations on premises, venues and businesses and so on, fuels my fear of an excessive expansion of this policy and the aims of the Bill through regulation, without any of us having any oversight.

Those of us who worry about mission creep—or, what is more, who know the way in which the fear of terrorism and the call for safety have been used over many years as a potential restriction on freedom and civil liberties—will therefore at least want to pause and receive an adequate explanation of why on earth these Henry VIII powers are necessary if, as the Government assure us, this will not be a disproportionate Bill.

The regulator created by the Bill will already have immense powers to issue fines for non-compliance, restriction notices and so on. Many venues fear that this will kill them off financially; we have heard much testimony on that. There is already a sort of fear of God among many organisations associated with civil society and the public square, let alone the already decimated hospitality industry, about how they are to cope with the requirements of the Bill and to plan to deal with its requirements. It might well be argued that this is the price we pay for protecting the public, but that would be if they knew exactly what they had to do to plan for the Bill. These Henry VIII powers give the Secretary of State the power to make those threats to venues far more onerous. They cannot possibly plan for them.

This is all in a context in which a whole range of committees and consultations that have looked at this legislation have noted that there is no evidence that the measures listed in the Bill will have any effect on reducing the threat of terrorism, particularly in relation to smaller venues. One does not want to feel that we are in a situation of introducing legislation that could destroy businesses and aspects of civil society without evidence and that would allow the state to have ever-greater power in relation to surveillance—what those venues do and so on—just so that you can say to the public that you are protecting them, when in fact you might not be protecting them at all.

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[Baroness Hamwee (LD)]

My Lords, I hope the Minister will not feel beleaguered or besieged by this amendment, which is a probing amendment prompted by the Independent Reviewer of Terrorism Legislation’s note on the Bill published on his website.

Clause 8 is about co-ordination and co-operation. I have always found it a bit difficult to get my head around the notion of a statutory requirement to co-operate, although co-ordination might be a bit different. The amendment addresses subsections (5) and (6), which place a duty on someone who is not responsible for the premises but who has

“control to any other extent of the premises”.

The duty is subject to enforcement by the regulator. The amendment is to ask what “control to any other extent” means. The Explanatory Notes say that it is intended to apply to the freehold owner of the premises or the superior landlord who leases to the person who is primarily responsible under the Bill.

The independent reviewer gives a particular example. The owner of a premises rents them out to the responsible person, who uses them, in this example, as a bingo hall with a capacity of more than 800. The lease has 12 months to run and provides that no alteration may be made to the structure of the premises without the owner’s consent. There are no plans to renew the lease—indeed, the owner of the premises wants to sell them to a developer. The responsible person decides that, to comply with his duty under the legislation, he must make a structural change, putting in a new exit where there are currently windows. The owner would be entitled to refuse the alterations, particularly because they would adversely affect the value of the premises. There are conflicting considerations. Does Clause 8(6) mean that the owner has a duty to give consent? It is practicable for him to do so, but is it reasonable? What is the policy intention? Does it matter that the lease gives the ultimate say to the owner over building alterations, or is the lease now overwritten?

All this amounts to a question whether Clause 8 is intended to overwrite commercial considerations. The clause has the capacity to impose new terrorism-related duties on many building owners and landowners, not only in the property investment sector. Its effect, the independent reviewer writes, is “uncertain”. He suggests that

“since the Bill imposes unprecedented terrorism-related duties on members of the public, and has the capacity to interfere with commercial relationships, the intended impact … should be clearer”.

In this group, Amendments 24A and 24B are in the name of the noble Lord, Lord Sandhurst. I will leave it to him to introduce those. However, on Amendment 24B, in which he proposes that the tribunal must issue its determinations within a reasonable time—that being defined in regulations by the Secretary of State—I wonder whether he can tell the Committee whether this is entirely novel. He will know far better than I do, given his background and experience, whether the tribunal is required to meet a timeframe in other equivalent contexts. That is my question on his amendment. I beg to move my Amendment 24.

[Lord Sandhurst (Con)]

My Lords, in this group, I have Amendments 24A and 24B. Amendment 24A to Clause 10 is very simple. It gives the option in the case of non-enhanced duty—that is, standard duty—premises for the responsible body to delegate responsibility to more than one person. That will not dilute responsibility but, if we suppose that two people were given responsibility where it was a small and informal group, it would allow for a degree of flexibility. That is important in small, informal organisations which normally have fewer than 200 people but, in any case, fewer than 800 at an event. This is for smaller events—I do not mean that they are unimportant—and those in charge are likely to be smaller and much less formal organisations than for big places. If such organisations are to engage with all this, very often, if there are volunteers, person A may not be available because they may be on holiday, so we say let us have person B. It is not a big, structured organisation that we are talking about, necessarily.

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[Lord Hanson of Flint (Lab)]

I am in danger of straying into a future set of amendments, or indeed a general Second Reading debate on the Security Industry Authority. I say to the noble Lord that the SIA currently has a very good record of processing licensing applications—93% within 25 days—and has an 86% satisfaction rating by individuals in terms of their interaction with the authority. Ministers are going to be accountable for the performance in the event of this Bill becoming an Act. We have said, particularly my honourable friend Dan Jarvis, the Security Minister in the House of Commons, that there will be key ministerial engagement with the SIA in helping to develop and shape that plan over the two-year period between the Bill potentially receiving Royal Assent, and its implementation by the SIA and this scheme becoming live.

We may have that Second Reading debate in later groups of amendments. I hope I will be able to reassure the noble Lord then that Ministers have taken decisions to put the SIA in the prime spot of the regulator. Ministers want that to succeed, and they will be making sure that the plans are put in place to make sure that it succeeds, because this legislation is meaningless without the regulation, delivery, oversight, guidance and training that we believe the SIA can put into place. We will revisit that downstream.

I am grateful to the noble and learned Lord, Lord Hope, for his contribution; I think he stole some of the lines that I was going to use. He made the very clear point that the tribunal has a responsibility for setting its timescales and its deadlines, and that it is not for ministerial direction to do that. The tribunal system is well established, with statutory rules and experienced judges and officials who understand the need to make timely decisions in a variety of contexts. It is these rules and processes that should determine how that tribunal operates: with appropriate parliamentary and ministerial oversight—certainly—through amendments to legislation relating to courts and tribunals.

I note the potentially positive objectives of the noble Lord, Lord Sandhurst. He wants to see a definitive timescale set, but if we included that provision in the Bill, it would set an unhelpful precedent and cut across the roles of the Tribunal Procedure Committee and the tribunal procedure rules. I do not anticipate a large number of cases coming before a tribunal anyway, because I hope that—again, as with most of the issues in the proposed legislation—we can resolve these matters well downstream. In the event of an issue coming to a tribunal, it is right and proper—and I am grateful that the noble and learned Lord, Lord Hope, mentioned this—that the tribunal itself is able to operate effectively, with its own well-established framework to deliver its own fair decision, and not be hampered by timescales set by legislation which may not anticipate what will happen two, three, four or five years down the line. Therefore, I will take support where I can get it and thank the noble Lord for his contribution.

The tribunal has an overarching duty to deal with cases fairly and justly. If an arbitrary time limit is imposed, the proposal by the noble Lord, Lord Sandhurst, may undermine that existing duty.

I hope that, in my response, I have given some comfort to the noble Baroness, Lady Hamwee, and that I have explained to the noble Lord, Lord Sandhurst, why I wish them both not to press their amendments.

[Lord Sandhurst (Con)]

My Lords, I can see force in what the Minister has said, so I will not press my amendment.

[Baroness Hamwee (LD)]

I am glad that the noble Lord, Lord Sandhurst, will not pursue his amendment. As noble, and noble and learned, Lords will have understood, my question to him was a coded form of opposition. He said “It doesn’t matter that there’s no precedent”, but I think that it matters very much.

On my Amendment 24, I hope it is appropriate to summarise the Minister’s response as saying that there are two conditions for subsection (6) to apply: practicality and reasonableness. He is nodding—I say that so that we will get it into Hansard, because it answers the question raised by the independent reviewer. If we need to come back for any clarity, or if I am misconstruing him, perhaps there will be an opportunity.

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[Baroness Suttie (LD)]

My Lords, Amendments 30 and 31, in my name and that of my noble friend Lady Hamwee, are probing amendments that aim to clarify how the provisions in the Bill will complement or enhance existing legal requirements on qualifying premises.

In speaking ahead of the Bill to a number of organisations with an interest in it, we heard from the live events industry that it is already heavily regulated and subject to a number of legal requirements under existing licensing laws. Music venues, festivals and events are regulated under the Licensing Act 2003 with, where appropriate, highly developed counterterrorism measures secured by licence conditions and overseen by the safety advisory groups, in accordance with long established and authoritative guidance such as the Purple Guide. This is an important local dimension for a number of events. There will already be local regulatory and partnership structures for counterterrorism resilience. LIVE, the live music industry body in the UK, which has spoken to us about the Bill, has told us that for larger festivals measures have already been taken to protect visitors and workers from terrorist attacks. That is because every venue and festival that comes under LIVE has a premises licence, which means they are already considering counterterrorism, safety and security in the running of the premises or events. As part of that, venues and festivals already work closely with safety advisory groups, which take advice from local police forces and counterterrorism security co-ordinators. Amendment 30 therefore asks for reassurance from the Minister that account will be taken of that in preparing guidance and advice under the Bill. I am sure he will agree that it is important to try, wherever possible, to avoid duplication between this Bill and existing requirements under the Licensing Act, and to promote coherence between the two regimes as far as is practicable to do so.

We heard similar concerns from the Society of London Theatre and UK Theatre, which has resulted in our tabling of Amendment 31. To be effective, it is crucial that the SIA understands the industries that it is overseeing, including theatre. In particular, it must be familiar with their operations and existing security arrangements. I ask the Minister whether it is the Government’s intention that the SIA will undertake engagement work with sectors, such as theatre, that will be affected by this new legislation to understand their individual complexities and how they currently work.

Paragraph (ii) of our amendment would require the SIA to take account of particular considerations relating to adjacent premises, premises within other premises and areas in the vicinity of buildings. The Bill defines “premise operator” as the freeholder or leaseholder and “event organiser” as the entity overseeing event delivery. However, some theatres operate within multipurpose venues, such as university complexes. Similarly, many venues hold multiple events concurrently and the security stance changes from time to time. Is the intent that the venue will be required to submit its plans for each change of activity or change of resource? It is important for the guidance to reflect how various duty holders in a multipurpose setting can co-ordinate procedural measures. We urge the Minister in his response to give as much clarity for that industry as possible.

[Lord Sandhurst (Con)]

Having heard the opening speech from the noble Baroness, Lady Suttie, the one thing that seems clear to me is that there will be different bodies out there with different responsibilities and we will have the SIA coming in. It is important that, before Report, it is clear who will sit at the top and have the last word, because there may be competing interests from different authorities. I do not know what all the details are, but the noble Baroness has set this out. If it is to be the SIA, so be it, but there may be other bodies which know much more about important matters. There needs to be thought within government about how that is to be addressed with specialist knowledge and so on.

[Lord Harris of Haringey (Lab)]

My Lords, there is enormous advantage in the various regulatory frameworks being consistent. That is a very basic principle. If you are looking for a holistic approach to protective security—which is what this Bill is about—there is the element of personal responsibility involved in making sure that sensible precautions are taken at a local level, but there will also be responsibilities on licensing authorities. It is my view that the various licensing authorities should proactively put in proportionate requirements for the various organisations concerned. In many cases they do that already, but I am not sure that it is a consistent process because each licensing authority is technically separate. While I am not sure that it is in the scope of this Bill to try to regularise the position of different licensing authorities, a holistic approach to protective security would ensure that licensing authorities behave in a consistent fashion.