At a time when the UK’s terror threat is growing in complexity, the Home Office has highlighted that counter terrorism security efforts in publicly accessible locations (PALs) often fall behind legally required activities. In response, the government have announced details of a Protect Duty, which aims to formalise the responsibilities and actions that locations must take to mitigate the risk of a terrorist attack. With draft legislation expected in Spring 2023, it will impose a two-tiered duty on the owners and operators of many of London’s PALs to take proportionate steps to improve preparedness and protective security against terrorist attacks.
Background
The UK has experienced the loss of 43 innocent lives due to terror incidents since the publication of Lord Harris’ first Review of London's Preparedness to deal with a Major Terrorist Attack in 2016 (follow-up available here). Over this time, UK terror threat has grown increasingly complex and diffuse, with a growing threat from extreme right-wing inspired terrorism and more ‘lone-wolf’ attacks. The government has identified a need to better prepare public spaces to face this evolving threat picture.
Following public consultation and engagement with industry from February to July 2021, the government concluded that without legal compulsion, counter terrorism security efforts often fall behind legally required activities. On 19t December 2022, the government announced details for the ‘Protect Duty’, to be known as ‘Martyn’s Law’ in tribute of Martyn Hett, who was killed alongside 21 others in the Manchester Arena terrorist attack in 2017.
In order to reduce risk to the public from terrorism, Martyn’s Law aims to make the prioritisation, consideration and application of security processes and measures consistent across publicly accessible locations (PALs). Forming part of the government’s counter-terrorism strategy (CONTEST), it will require those responsible for certain locations to consider the threat from terrorism and implement appropriate and proportionate mitigation measures.
Draft legislation for Martyn’s Law is expected to be published in spring 2023. It will apply across England, Wales, Scotland and Northern Ireland.
How will the Duty work?
The legislation will impose a duty on the owners and operators of certain locations to increase their preparedness for and protection from a terrorist attack by requiring them to take proportionate steps, depending on the size and nature of the activities that take place there. A two-tiered model will ensure proportionality in the exercise of the Duty:
- A standard tier (for ‘qualifying locations’ with a maximum capacity of over 100) will require the undertaking of simple yet effective activities to improve protective security and preparedness. Activities will include: completion of free training; awareness raising and cascading of information to staff; and completion of a preparedness plan.
- An enhanced tier (for ‘qualifying locations’ with a maximum capacity of over 800) will place additional requirements on high capacity locations. Activities will include producing a risk assessment and security plan, considered to a ‘reasonably practicable’ standard.
What is a ‘qualifying location’?
A ‘qualifying location’ is a premises where ‘qualifying activities’ take place. These include:
- Venues for: sports; entertainment and leisure; retail; food and drink
- Places of: worship; health; education
- Museums and galleries
- Visitor attractions and temporary events
- Public areas of local and central government buildings
These must be either a building (including collections of buildings used for the same purposes, e.g., campuses), or a location/event with a defined boundary, allowing capacity to be known.
Exemptions: The Duty will not apply to offices and private residential locations, or those where transport security regulations already apply. It will also not apply where locations that are vacant over a reasonable period, permanently closed, or those with large floor space but low occupancy in practice, such as warehouses.
Special arrangements: In reflection of the existing range of mitigation activities delivered and funded by government to reduce the vulnerability of places of worship to terrorism and hate crime, all places of worship (except a small cohort which charge for entry/can be hired for commercial events) will be placed within the standard tier of the Duty regardless of capacity.
The three-criteria eligibility test
Premises will therefore fall into the scope of the Duty if they meet three tests:
- The premises is an eligible one – i.e., building or event with a defined boundary;
- A qualifying activity takes place there; and
- Maximum occupancy of the premises meets a specified threshold, either 100+ or 800+.
Enforcement of the Duty
An inspection capability will be established to educate, advise, and ensure compliance with the Duty. It will have the power to apply sanctions for noncompliance.
Considerations for local authorities
The Home Office promises to provide detailed guidance on compliance with Martyn’s Law once legislation is passed. However, this may not prevent owners and operators of both lower- and higher-capacity premises approaching their local authorities with queries and grievances. Local authorities will need to be prepared for owners and operators approaching them for support with interpreting Duty guidance.
During public consultation around the Duty, industry actors made clear their expectations of a financial offer from the government to support their Duty implementation. Depending on the size of this support offer – or lack thereof - premises may voice concern to boroughs about the resource requirements of compliance with the Duty.
The Duty will place a dual burden on boroughs’ time. At the same time as supporting owners and occupiers, boroughs will have their own Duty responsibilities to perform, given that Martyn’s Law will apply to many borough-hosted and affiliated events and borough-run premises. This first-hand experience will, however, help boroughs to offer useful guidance to other owners and occupiers. It will also mean that boroughs have to be similarly mindful of the financial implications of Duty compliance.
Commentary
Martyn’s Law has the potential to make a significant improvement to ensuring that the owners and operators of PALs are fulfilling their responsibility to protect the public from terrorism.
During the present cost of living crisis and increasing financial pressures on many small and medium-sized businesses, it seems appropriate that the activities expected of standard tier premises will be free and low-cost measures. However, due to the risks to national security involved here, the cost of measures should not be more important than their effectiveness. If a need is identified in the future for standard tier premises to implement more time-intensive or expensive measures, boroughs may call for the government to offer them commensurate financial support to assist their successful fulfilment of the Duty.
Further, in recognition of their significant responsibilities, enhanced tier premises are likely to call for Central government financial support from the outset. It is concerning that, as yet, the government has given no indication that it intends to provide any such financial support offer.
Premises will also need to be given sufficient time to prepare for the Duty. Good communication from the government will allow for the necessary communication, preparation, guidance and training, and recruitment of specialised staff before implementation begins.
Event organisers are likely to indirectly pick up some of the cost of the Duty through increased venue hire fees. This may be particularly relevant for larger capacity premises whose owners and operators will likely have to implement more time-intensive and expensive measures to comply with their Duty responsibilities.
There are still significant uncertainties about how the Duty will be enforced and the role and implications for local government. Boroughs will be looking to the government to provide much more detail around the planned enforcement of the Duty, including the full range of powers of the proposed inspectorate, and nature of the sanctions they will oversee.
Links:
If you would like to be involved in the stakeholder engagement events for the Protect Duty, please contact: ProtectDuty@homeoffice.gov.uk