Terrorism (Protection of Premises) Bill

Committee (3rd Day)

Clause 5: Public protection procedures

Amendment 21

21: Clause 5, page 4, line 19, leave out subsections (4) to (6) Member’s explanatory statement This would remove a Henry VIII Clause which will otherwise give the Minister power by regulation to alter (including by making more onerous) the range of public protection procedures in subsection (3) which were decided upon after full consultation and will after passage of the Bill have been endorsed by Parliament.

My Lords, I will speak to the four amendments in this group, with thanks to the noble Baronesses, Lady Suttie and Lady Fox, and the noble Lord, Lord Sandhurst, who have variously signed them. I thank also the Minister, not only for being generous with his time but for his indication in Committee on Wednesday that he had some sympathy with these amendments. What form that sympathy will take we look forward to finding out.

Standing back, the Bill has two principal elements: it stipulates the capacity of events and premises that are subject to its provisions, and it stipulates the types of procedures and measures which must be followed by those responsible for such premises and events. Those things are not matters of detail—they define the policy that underlies Martyn’s law. We are asked, quite properly, to sign off on those provisions by giving our approval to Clauses 2 and 3 on capacity, and to Clauses 5 and 6 on procedures and measures.

The amendments in this group all relate to Henry VIII clauses: provisions in the Bill that allow the Minister, by the affirmative procedure, to amend provisions of statute. It is not just any statute: this statute, the one we are being asked to pass into law; and not just any provisions—the provisions in Clauses 2, 3, 5 and 6 that lie right at its heart.

Delegated powers are a fact of life and, although some of us may regret it, we are even seeing the normalisation of Henry VIII powers, which allow statutes to be amended in points of detail by regulation. But I suggest that these Henry VIII clauses simply go too far in giving Ministers the power to retake policy decisions that have been taken after much debate by Parliament.

The first pair of amendments in my name, Amendments 21 and 23, would remove the Henry VIII clauses in Clauses 5 and 6. These were singled out for concern by the Constitution Committee in the letter from the noble Baroness, Lady Drake, to the Minister of 14 January. As a member of that committee, fortunate to serve under the chairmanship of the noble Baroness, I will briefly explain why.

The Minister, in his response to the noble Baroness, Lady Drake, of 24 January, defended these Henry VIII powers on the grounds of expediency: ensuring that the regime can be adjusted, if necessary, and recalibrated so as to ensure that it continues to strike the correct balance. But, if that were a sufficient explanation for this Henry VIII power, it could justify a Henry VIII power in almost any circumstance. “Parliament has struck a balance in this Bill after the most careful consultation”, the Government seem to be saying, “but we reserve the right to change it whenever we like”.

As the Constitution Committee put it in our letter:

“We have long held the constitutional standard that delegated powers are not an appropriate route for policy change and would appreciate further explanation of how the clauses safeguard against the excessive dilution and/or expansion of the bill’s aims by regulation”.

There is no apparent limitation on the policy changes which these regulations could introduce, other than the self-evident one that further procedures or measures must reduce, or not increase, the risk of physical harm to individuals. Even Amendment 21A from the last group, in the name of the noble Lord, Lord Davies of Gower, would introduce only a test of proportionality, and only in Clause 6. I look forward to the Minister’s explanation of why these powers are necessary and why, if he can show that they are necessary, it was thought appropriate or necessary to take them without precondition or even the most rudimentary consultation.

The second pair of amendments, Amendments 38 and 39, relate to the later Henry VIII powers in Clause 32, and specifically to the thresholds of 200 individuals for premises to fall within scope of the Bill and 800 individuals for enhanced duty premises and qualifying events. These amendments are modest indeed. They would not remove the Henry VIII powers, despite the central importance of these thresholds to the Bill, but simply place reasonable conditions on their use. Amendment 38 provides that the minimum thresholds may be reduced only if the Secretary of State is satisfied that the reduction is justified by a change in the threat from terrorism. One would hope that reductions would not be contemplated in other circumstances but, to be properly reassured, we need to see that in the Bill.

Amendment 39 requires the Secretary of State, before making regulations under Section 32, to

“consult anyone that appears to the Secretary of State to be appropriate”.

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.

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.

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.

My Lords, this group of amendments on delegated powers and the Henry VIII clauses is a key area of contention in the Bill. On behalf of these Benches, I have added my name to Amendments 21 and 38 in this group. As the noble Baroness, Lady Fox, said, they were beautifully and comprehensively introduced by the noble Lord, Lord Anderson, so I shall keep my remarks fairly brief.

It is true to say that the amendments in this group are now truly cross-party. I suspect that there are several noble Lords on the Government Benches who would rather agree with them too. I note in passing, as an observation of more than 11 years in your Lordships’ House, that parties tend to oppose Henry VIII clauses when they are sitting on the Opposition Benches, whereas they tend to introduce them once they are in government. If the previous draft Bill under the previous Government was perhaps too prescriptive, many of the concerns about this Bill now stem from the fact that it lacks clarity and leaves too much power in the hands of the Secretary of State, without parliamentary oversight. Like the noble Lord, Lord Anderson, I very much agree with the Constitution Committee’s letter in that regard, in particular the sentence that says that

“delegated powers are not an appropriate route for policy change”.

I think that is a truism, and I look forward to hearing the Minister’s response.

As the Bill currently stands, we are concerned that there is too much power left in the hands of the Home Secretary. In particular, there is a risk that if at some point in the future, God forbid, there is a horrendous terrorist attack, the Government may feel under huge pressure to react and, indeed, sometimes potentially to overreact. In such circumstances, there is always a tremendous amount of pressure to respond to events. In those circumstances, it is all the more important that Parliament can debate such measures and that there is proper and full consultation with the sector.