In light of recent terror threats and attacks in public spaces in the UK, notably the most significant being the bombing in Manchester Arena in 2017, the Home Secretary has confirmed that the Government intends to publish draft legislation this spring which will require certain premises to uphold a "Protect Duty".
The proposed legislation, to be known as "Martyn’s Law" in tribute to Martyn Hett, who was a victim of the Manchester Arena terrorist attack, is in response to such events, and aims to ensure that private and public sector businesses have appropriate security measures in publicly accessible locations.
The public inquiry into the Manchester Arena bombing published its final report on 2 March 2023, but an earlier report which scrutinised security at the arena concluded that “inadequate attention was paid to the national level of the terrorist threat by those directly concerned with security at the arena”.
Although the new Bill is yet to be published, its impact is already beginning to be felt as the police proactively shift the responsibility for improving UK preparedness onto businesses. The police have written to organisations who will be caught by the legislation to advise them to start preparing counter-terror risk assessments and security measures now. Many organisations are already starting to implement their own security measures and processes in order to proactively mitigate potential threats.
At present, there is no legislative requirement for organisations to consider or implement security measures in the vast majority of public places, so the introduction of this law would impose new obligations for businesses.
The proposed Protect Duty
The Government set out its legislative proposal for a Protect Duty in late 2022, following a public consultation in 2021. The Bill is expected to start its passage through parliament this year.
The Bill looks set to impose the duty on a wide range of premises, both buildings and temporary events and will include "locations for purposes such as entertainment and leisure, retail, food and drink, museums and galleries, sports grounds, public areas of local and central Government buildings (e.g., town halls), visitor attractions, temporary events, Places of Worship, health, and education".
The proposed law would adopt a tiered model aimed at ensuring the burden placed on businesses is proportionate to the size and risk of the premises. It is proposed that the duty will only apply to locations with a maximum capacity of over 100 and the "enhanced tier" obligations will only apply to locations with a capacity of over 800 people. It is envisioned by the Government that the obligations imposed by the new law will include security training and the formulation of a "preparedness plan". For locations which fall within the enhanced tier, there will be additional requirements to undertake a risk assessment to inform the development and implementation of their security plan, which could include subsequent measures being recommended for compliance with the new duty.
The Government plans to set up an inspection and enforcement regime which will have powers to impose sanctions for serious breaches, including possible fines for non- or insufficient compliance. It is likely that those investigated by this body would be required to demonstrate that effective and proportionate measures were in place, or that risk assessments had been undertaken to identify what was reasonable in their specific circumstances.
The impact for businesses and property owners
The Counter Terrorism Policing unit (CTP), a collaboration of UK police forces, welcomed the Government's announcement and undertook to "work alongside our partners to ensure those with a share in this legislative responsibility can deliver to the greatest effect". The CTP has started to notify businesses that they should take steps to assess the resilience of their premises security arrangements and consider implementing enhanced measures in anticipation of the proposed duty and the ongoing UK terror threat, which is currently assessed to be "substantial", meaning that "an attack is likely".
Businesses and premises that have links to politically sensitive groups may be high on the list of addressees for the police to notify. However, as Damien Hinds MP, the Minister for Security and Borders, said in the Ministerial Foreword to the Government’s response document to the Protect Duty public consultation, "terrorist attacks can potentially occur anywhere, in large or small venues, at a range of locations." Attacks in recent years have targeted venues including hospitals, such as the Liverpool Women's Hospital bombing in 2021; conference venues, such as Fishmongers Hall in 2019; and the constituency surgeries of MPs in 2016 and 2021.
However, it is not clear on whom the burden of complying with the duty will fall under the proposed legislation or how the police have identified who should be written to about responding to the current threat. The duty will be owed by the "owners and operators" of qualifying locations, but it appears that the details of how this will be managed between landlords, tenants, and licence holders is yet to be fleshed out.
Once the Bill is published, its full implications will need to be carefully considered by Parliament. However, from what the Government has already published, the new law could impact a broad spectrum of businesses, except for those small organisations that do not fall into scope. Businesses that have control over publicly accessible buildings, venues and spaces with a defined boundary may wish to seek advice about their proposed obligations and how to prepare a robust and proportionate response to meet those obligations.
Kizzy Augustin, Head of the Health & Safety team and Partner in the White Collar Crime and Investigations group, said: "The direction of travel in UK health and safety law points towards public accountability, particularly for organisations – and the approach to mitigating -terrorism risk is no different. It is important to ensure accountability at the right levels for protecting the public and preparing people to respond appropriately to potential risks, including terror threats, but the Government, with the support of the Police, must ensure there is not an undue burden on commercial property owners or occupiers."