Contribution
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.