HL Deb 21 October 2004 vol 665 cc1046-54

(1) Where—

  1. (a) the construction of any traffic calming works is for the purpose of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 11), and
  2. (b) the function of constructing those works would, but for this section, be exercisable by the Scottish Ministers,
that function shall instead be exercisable by the Secretary of State.

(2) The power to make regulations under section 39B of this Act—

  1. (a) for the purpose of, or in connection with, avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000, and
  2. (b) which would, but for this section, be exercisable by the Scottish Ministers,
shall instead be exercisable by the Secretary of State.

(3) Regulations under section 39B of this Act may, if they are made by virtue of subsection (2) above, provide that, in such circumstances as the regulations may specify, works may be constructed or removed only with the consent of a police officer of such class as the regulations may specify."

(2) In section 40 of that Act (interpretation of sections 36 to 39C) for the definition of "traffic calming works" substitute— ??traffic calming works", in relation to a road, means works affecting the movement of vehicular or other traffic for the purpose of—

  1. (a) promoting safety (including avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 11)), or
  2. (b) preserving or improving the environment through which the road runs.""

The noble Lord said: I apologise that this government amendment is being moved late in the Committee's consideration of the Bill, but we feel that it is important to the legislation and that it is right to bring it forward now.

The traffic authorities routinely regulate the use of roads by traffic, which is done by the making of traffic regulation orders under powers conferred by the Road Traffic Regulation Act 1984. The purpose of Amendment No. 169 is simply to make it explicitly clear that traffic regulation orders may be made for the purpose of preventing acts of terrorism. We concluded that it is appropriate to use the Bill to do so because it deals with emergencies generally, including terrorism. There are no guarantees that there will be other suitable Bills in the short term to amend the 1984 Act.

The control of entry of vehicles to sensitive areas has an important role to play in preventing terrorist attacks. This amendment makes a number of changes to the Road Traffic Regulation Act 1984. It provides for antiterrorist traffic regulation orders—ATTROs, in the jargon—to be made by traffic authorities on the recommendation of the police. The amendment also makes some technical changes to the Highways Act 1980 and the Roads (Scotland) Act 1984.

The overall intention of these changes is to provide a clearer legal basis for regulating traffic to prevent or reduce the impact of vehicle-borne terrorist attacks, in particular no-warning vehicle suicide bombings. It is envisaged that such measures might be used, for example, to protect diplomatic premises, iconic buildings, critical national infrastructure sites and places hosting events such as intergovernmental conferences and summits. We unfortunately saw what a devastating impact a vehicle suicide bomb could have in the case of our Istanbul consulate last November.

Traffic controls that put distance between a bomb detonation and the target obviously reduce the impact of an attack. Likewise, reducing the speed at which vehicles loaded with explosive can approach a target serve to enhance defensive measures and can significantly lessen the impact of such an attack. Over the past three years a great deal of technical development work has been carried out to counter the threat of vehicle-borne suicide bombs. We wish to ensure that there is a clear legal framework in place to control traffic and deploy these measures.

The new Section 22C inserted into the 1984 Act provides that a permanent ATTRO may be made under Sections 1 and 6 of the Act for avoiding or reducing the likelihood of danger connected with terrorism and for preventing or reducing damage connected with terrorism. It also provides that temporary notices under Section 14 of the Act may be made or issued for a purpose relating to danger or damage connected with terrorism. In this connection, "terrorism" is given the meaning in Section 1 of the Terrorism Act 2000.

New Section 22D is supplemental to Section 22C. In particular, it provides that an anti-terrorist traffic regulation order may be made only on the recommendation of the chief police officer in the area in question. In making that recommendation, the chief of police will in practice be advised by specialist counter-terrorist officers with the assistance of Security Service officers as required.

Section 22D also disapplies some provisions in the 1984 Act that impose certain restrictions on the effects of normal traffic regulation orders. Section 22D enables the placing in a road of obstacles and obstructions such as vehicle blockers to give effect to a temporary anti-terrorist traffic regulation order. It also provides that an ATTRO may authorise works such as the installation of vehicle blockers and ancillary control equipment or the installation of anchor points to which vehicle blocking devices may be fixed.

The section also enables commencement, suspension or reviving of restrictions. What we have in mind here is that, depending on the level of threat of an attack, the level of traffic restriction near a particular site could be varied. The first level might be no vehicle restrictions; the second level might be a ban on heavy vehicles; and the third level might be a ban on all but specially authorised vehicles.

I want to assure the Committee that we are not about to embark on the imposition of wholesale traffic restrictions for security purposes causing widespread traffic disruption. We expect the powers conferred by Sections 22C and 22D to be used in a highly selective manner.

The involvement of traffic authorities in making those orders will ensure that the wider impacts of any restrictions on road networks and transport services will be considered at the outset. Through proper planning of restrictions, we expect any traffic disruption to be minimised.

Section 67 of the Road Traffic Regulation Act 1984 enables the police to place traffic signs to control ordinary traffic in emergencies. The amendment expands the definition of "extraordinary circumstances" in Section 67 to include, terrorism or the prospect of terrorism". Thus, the police would be able to exercise their powers under Section 67 in an anticipatory way when intelligence sources identify a potential vehicle-borne terrorist threat to a particular site.

In the case of terrorism or the prospect of terrorism, the Section 67 power will be available to the police for a period of 28 days. That is designed to give them time to assess the threat. If they are satisfied that a real threat to a site exists, the next step would be to bring vehicle access controls under the authority of a temporary order.

Paragraph 1 of Schedule 9 to the Road Traffic Regulation Act 1984 already enables the Secretary of State, the National Assembly for Wales and Scottish Ministers to direct a local traffic authority to make or not make a permanent traffic regulation under Section 1 or 6 of that Act.

Where an order is required for anti-terrorist purposes, it is considered that that power of direction should apply to temporary as well as permanent orders. Therefore, the amendment alters paragraph 1 of Schedule 9 so that the power of direction applies to a temporary order made under Section 14 of the 1984 Act in so far as the power under that section is exercisable by virtue of Section 22C.

National security, which embraces terrorist threats, is a matter reserved to the Home Secretary. Therefore, the power of direction in the case of an order will be exercised by Scottish Ministers or the National Assembly for Wales with the consent of the Home Secretary. The amendment explicitly provides for that in the case of the National Assembly for Wales. The power of direction, subject to the consent of the Home Secretary in the case of Scottish Ministers, will be put in place by means of a Section 63 order to be made under the Scotland Act 1998 after the Bill is passed.

The amendment makes changes to those sections of the Highways Act 1980 and the Roads (Scotland) Act 1984 concerned with traffic calming works, such as pinch points and chicanes. By altering the definition of traffic calming works, the amendment makes it clear that such works, which are normally used to reduce vehicle speeds for road safety purposes, may also be used for avoiding or reducing the likelihood of danger connected with terrorism. They provide that traffic calming regulations made under the respective Acts may specify that some traffic calming works may be constructed or removed only with the consent of a police officer and in such circumstances as the regulations may specify.

In the case of traffic calming works on roads for which Scottish Ministers are responsible, the power to construct works is reserved to the Secretary of State. Similarly, the power to make regulations in relation to the construction of works for anti-terrorist purposes is also reserved to the Secretary of State. However, as with the power of direction in the case of the orders, the intention is that after passing the Bill an order will be made under Section 63 of the Scotland Act transferring those powers to Scottish Ministers.

In Wales, any traffic calming regulations will be made by the Assembly under Section 90H of the Highways Act 1980, which will be subject to Assembly procedures.

The Delegated Powers and Regulatory Reform Committee in its 30th report on the amendment have drawn to the attention of the House that proposed Section 22D(5)(d) would allow an order to provide that a constable may authorise an employee of a traffic authority to do anything that the constable could do by virtue of this subsection. This provision was seen as affording a degree of flexibility in the partnership between the police and local traffic authorities in dealing with terrorist threats. However, in the light of the committee's concerns, the Government have undertaken to review the need for section 22D(5)(d) and to bring forward a suitable amendment on Report if that is necessary.

We expect the cost of security measures authorised by these orders to be borne by those who benefit from them. Nevertheless, following recent discussions with local authority representatives, we recognise that this is an area where they have some concerns. Therefore, subject to the amendment being agreed, it is proposed to discuss funding and operational aspects of antiterrorist traffic regulation orders with local authority representatives in early December.

I have given a very full explanation of the amendment, which is somewhat technical in nature. However, it has been provided with the objective of ensuring that there is a clear understanding of the legal powers for local traffic authorities and for the police to restrict traffic where necessary in order to prevent or mitigate the impact of vehicle-borne terrorist attacks. We take the view that this is an area where legal clarity is required. The Government believe that it is important to place the explicit powers provided for in Amendment No. 169 on the statute book. I beg to move.

The Earl of Onslow

This is a rather long and complicated amendment which could almost be a Bill in itself, and I am not sure that this is the correct way to introduce it. We cannot go through the amendment line by line, which may or may not need to be done, and it makes cross-references to many other pieces of legislation.

I am sure that what the noble Lord is trying to do is perfectly reasonable, but are we absolutely certain that this is the right way to go about it? It would be perfectly easy, at the beginning of the next Session, to bring forward these provisions in the form of a short Bill. That legislation would not take up much time and, in its own right, it would amend the road traffic Acts.

I say that because this is an emergency powers Bill which is to be used for the implementation of temporary powers to be triggered only under certain conditions. We have been told that time and again. To tag this on as an amendment is not right.

I do not know about other noble Lords, but I am absolutely knackered after our long day. Both the noble Baroness opposite and my noble friend on the Front Bench are beginning to look a little green because they have been working so hard. They have all my congratulations. However, all I should like to say is that this is not the right way to introduce the measure.

Lord Lucas

I wonder how the Government were able to get this amendment past the Clerks, who are usually very vigilant about attempts to stretch the Title of a Bill. However, given that this Bill has aspects of protecting the environment about it, why does not the noble Lord, Lord Stoddart, bring forward an amendment on Report to abolish the common agricultural policy? That would fit very well, given the latitude here.

Lord Stoddart of Swindon

Perhaps I will do that.

Baroness Hamwee

The noble Earl referred to the hard work of noble Lords today. I am slightly embarrassed that I arrived in the Chamber only just before the noble Lord introduced the amendment. Last week I said to his Chief Whip that I thought that what the noble Lord is being required to do really does amount to cruel and unusual punishment. He is steering two Bills through in parallel.

I draw on my experience yesterday when we considered the Housing Bill. A new provision was introduced by the noble Lord which received a similar reception. That caused him and his noble friend Lord Rooker to decide rather swiftly that the delicate way of dealing with it, so that no one loses face, would be not to move the amendment. The provisions remain with noble Lords and there will be an opportunity to consider them at the next stage.

The noble Lord has said that legal clarity is required, and I am sure that that is right. There are aspects to this that are more than all of us together have been able to think of in the past 13 minutes.

The noble Lord referred to local authority concerns about funding, but I should have thought that the concerns went rather wider than that. He mentioned meeting the Local Government Association, and perhaps other representatives of local government in early December. I am not clear whether that will be before or after this Bill has completed its passage, as I do not know whether it will be carried over. My noble friend Lord McNally says from a sedentary position that it will not. Therefore, the meeting will be after the Bill is enacted.

I do not understand from the careful introduction that the noble Lord gave how the arrangements will be temporary, and what assurances there are that they will be removed after a threat has passed. I say that, particularly, as traffic calming seems to be a matter of fashion among highways engineers and what they think they can achieve by their different designs. The Minister referred to it as "calming", but the definition in paragraph 15(2) refers to works affecting the movement of … traffic", which could mean traffic blocking, not just traffic flowing or reducing movement. The noble Baroness nods her head.

Those are substantial matters. I do not see them here, but there may be provisions elsewhere for consultation with local authorities about the effect of such orders.

I have probably said enough as someone who is such a latecomer to this part of the Bill.

Lord Elton

While sympathising very much with everything that has been said, I have a question relating to page 11 of the Marshalled List. Is transport a reserved matter in Scotland? I rather think not, and that it is the responsibility of the Scottish Parliament. What is the opinion of Scottish Ministers in consultations about paragraph 17?

Lord McNally

I want to emphasise that the real concern in the Committee is that almost everything the Minister said in moving the amendment was not suitable to add to legislation. As the noble Earl, Lord Onslow, said, this is a mini-Bill.

The Earl of Onslow

A billet—a billet doux.

Lord McNally

I should prefer it if we knew not in December, but now, or before we pass the Bill, what the Local Government Association and traffic bodies think of it.

I have some experience in that I was an adviser to the Corporation of London when it brought in its measures, which have remained and are permanent. I know that when introducing those, there was concern in the surrounding boroughs about the knock-on effect of measures that made perfect sense for the security of the City of London, but not necessarily such good sense for the surrounding boroughs.

I suspect that local authorities will want to advise on some of the powers being taken and on the scrutiny of the Bill. It is too big an amendment to ask us to swallow whole at seven o'clock on a Thursday evening.

Lord Avebury

Will the noble Lord address a matter that has been discussed in your Lordships' House and at the other end of the Corridor? Have the Government discussed plans for closing any roads around the Palace of Westminster? If so, how far have those discussions gone?

7 p.m.

Lord Bassam of Brighton

When I realised that I had to introduce the amendment, I rather thought that I had drawn the short straw. I also calculated the time at which I would be moving it. Nevertheless, I shall plough on because we have a reasonable case to make. I entirely take on the chin the comments and observations that have been made, which are not unreasonable in the circumstances, and I shall try to answer as many of the points as I can.

The noble Earl, Lord Onslow, said that this is an emergency power. That is not quite right; it is a Civil Contingencies Bill. Part 1 relates to emergency planning, so it is not only about emergency powers. I stress the distinction.

That raises the question of whether this is within the Bill's scope, and we believe that it is. There have been consultations on that issue. The subject matter of the amendment was considered by the parliamentary authorities not to be within the scope of the subject matter of the Traffic Management Bill—a Bill which, in the normal course of events, one would have seen as an appropriate vehicle, if you will forgive the pun, for this. However, it is certainly within the scope of the subject matter of the Civil Contingencies Bill, and we have given that point careful consideration.

I have seen Bills that are certainly smaller in scope, length and description than this one, but the problem is that there is no guarantee that there will be an opportunity for a Bill of this nature or of an expanded nature on the subject in the next Session. As I said when I was going through the background to the amendment, it is important that we clarify the law to ensure that we have appropriate powers in place. I do not think anyone wants a situation where there is uncertainty. It is important that we get things right. I am sure that all noble Lords want us to do that.

It was not unreasonable to pose the question—in fact, the noble Baroness, Lady Buscombe, told the Committee that she will be involved in a debate on consultative overload next week—but we have consulted on these measures, although, I must confess, on a shorter timescale. But they have been discussed and debated with practitioners.

I take the point made by either the noble Baroness, Lady Hamwee, or the noble Lord, Lord McNally, about the importance of discussing matters with the Local Government Association. It is of course important that we continue discussions with it, and I can say from the Dispatch Box today that such discussions will continue. The noble Lord's point about the potential knock-on effects that an action taken in one area can have on an adjoining borough was well made. He has obviously had more experience of that than I have, although I certainly had some experience when I was the leader of my local authority.

The noble Baroness, Lady Hamwee, made a point and then asked a question about traffic calming being driven by fashion. That is true, certainly in my experience. We put in traffic calming measures one year at the behest of the county council, and when we came along as the unitary authority we thought they were wrong and took them away. But this is not about fashion; it is about putting measures in place. Yes, they may be barriers, if that is the right thing to do, but they are perhaps more likely to be the creation of pinch points and measures that slow down vehicles.

As to how the decision may be made as to where traffic restrictions should be introduced, clearly that has to be done on the basis of good advice, the recommendations of the police, and through working closely with the traffic authority for the area and the community surrounding the road in question. Traffic authorities will not be able to make traffic regulation orders for anti-terrorist purposes of their own volition. There will be careful consultation on the way in which these matters are worked through.

The noble Lord, Lord Avebury, asked about road closures around Parliament. The amendment is about taking a generic power which can be used in a variety of circumstances. It would be wrong to see it as serving only our needs and protecting only our Parliament, important though that is. We have to see this more generally as being a power of benefit to the wider community in terms of public protection. It is for that reason that we believe it is necessary to bring forward these powers in order that the public may be properly protected. I do not see it as a self-serving measure.

The noble Baroness, Lady Hamwee, asked how long the orders will last. Temporary orders last for 18 months; permanent orders last for as long as is necessary. But they may be revoked at any time. There are consultation processes and scope is there for public inquiries to be undertaken in respect of permanent orders.

I was also asked about the opinion of Scottish Ministers. Scottish Ministers and the National Assembly for Wales have agreed to the proposals in the amendment. They think that they are entirely appropriate and are quite happy with the way in which it is intended that they will operate.

This is a big amendment in terms of its length and technicality. We offered consultation if anyone wanted to discuss the technicalities, but nobody took this up. I understand that, and I understand the concern about raising the amendment at a late stage in our Committee consideration. Members of the Committee will have the opportunity for further interrogation on Report. I make the offer again of further consultation on the specific set of amendments between stages. We believe this to be important; we see it as a vehicle, if I may use that word, in which we could and should introduce something that may well have important matters and elements of public protection to it.

I give the assurance that we are doing this on very careful advice. The necessity for it has been based on very careful advice indeed. I am more than happy to ensure that we have further consultation with interested parliamentary parties. I will certainly double check on the issue as it relates to local authorities. However, I am satisfied, as I was in moving the amendment, that some consultation had taken place and that local government and those who advise local government had given this extensive consideration, along with the National Assembly for Wales and the Scottish executive, as their views are obviously extremely important.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Clauses 33 to 36 agreed to.

House resumed: Bill reported with amendments.