Protect Duty for public places

Recent years have seen a significant increase in the threat of terrorist incidents in public places. The latest Home Office statistics evidence that there have been 14 terrorist attacks in the UK since 2017 and that the Counter Terrorism Policing and the UK Intelligence Services have foiled a further 32 terrorism plots during the same timeframe.

Whilst an awareness of the threat that we face from terrorism in the UK is growing, there are increasing concerns that, absent a legal obligation, counter-terrorism efforts will continue to be prioritised behind other statutory requirements by those responsible for ensuring safety in public spaces.

Figen Murray, the mother of Martyn Hett who was killed alongside 21 others in the devastating Manchester Arena terrorist attack in 2017, has fought tirelessly to bring a new specific counter-terrorism obligation to the legislative agenda. Following a public consultation that ran from 26 February 2021 until 2 July 2021, the Government confirmed on 19 December 2022, that they are set to deliver a draft Protect Duty Bill this spring. The proposed Protect Duty legislation, to be known as ‘Martyn’s Law’, will establish new specific requirements for those responsible for certain public locations and venues. The aim of legislation is to improve public safety by enhancing preparedness for and protection from terrorist incidents in all public spaces.  Such a duty was recommended by both the Manchester Arena Inquiry (report published in June 2021) and, prior to that, by the London Bridge and Borough Market inquests following  the death of eight victims of those attacks back in June 2017 (report published in December 2019).

Whilst full details of the Protect Duty Bill are awaited, the Government’s response to the Protect Duty public consultation, the newly published Martyn’s Law Factsheet and the Queen’s Speech in May 2022 all provide some useful guidance as to what we can expect from the new legislation. It also helps to assess what the potential implications are likely to be for those responsible for public locations and venues.

With a number of the recent attacks demonstrating that terrorists may choose to target a broad range of public locations, it is envisaged that many organisations will fall within the scope of the new Protect Duty. As such, it would be prudent for organisations who may have premises/sites which are likely to covered by the legislation to begin to consider how the duty will apply to them and what measures can be taken to prepare for its implementation.

Organisations should also remember that whilst the new protect duty is not yet law, they have long had obligations under general health and safety law to do what is reasonably practicable to ensure that people attending public places or events are safe. This includes a duty to plan for incidents and emergencies such as fire or bad weather (for outdoor places / events) but also terrorism where the risk exists. Government guidance on protecting people in crowded places from terrorist attacks has been available for many years and is now available via a new central hub for counter terrorism and security advice launched in 2022 called Protect UK.

The scope of the new Protect Duty

The Protect Duty consultation document stated that the duty would apply to any “publicly accessible location”. This was defined as “any place to which the public or any section of the public has access, on payment or otherwise, as of right by virtue of express or implied permission”. As such, it was anticipated that the new duty would apply to three main categories: (1) owners and operators of publicly accessible venues with a capacity of 100 persons or more; (2) large organisations that operate publicly accessible locations and employ 250 persons or more; and (3) those responsible for public spaces such as parks and beaches. The middle of these three categories suggested that large organisations that operate from lots of small venues were likely to be caught.

However, further details released by the Government on 19 December 2022 suggest a slight change in the approach to the application of the new duty. This latest information suggests that public premises will fall under the scope of the Protect Duty if they meet the following three stage test:

1. that the premises is an eligible one i.e. either a building or location/event that has a defined boundary
2. that a qualifying activity takes place at the location/event such as entertainment, education, retail, attractions, and
3. that the maximum occupancy of the premises meets a specified threshold of either 100 plus (‘standard tier’) or 800 plus people (‘enhanced tier’). This aim of this is to establish more of a tiered model focused on proportionality, where additional requirements will be placed on ‘enhanced tier’ high-capacity public places (i.e. those with a capacity of over 800 people).

Whilst the proposed definition might change again when the draft bill is published, the current scope of the duty is undoubtedly far-reaching and is likely to mandate the cooperation of those responsible for medical centres and hospitals; schools and universities as well as music and sports venues, to name a few.

Compliance with the new Protect Duty

The primary focus of the new Protect Duty is to ensure that those responsible for public spaces (and therefore best placed to fully understand the potential security risks that they face), develop and implement appropriate and proportionate mitigation measures to enhance protection from terrorist attacks whilst also preparing for such an eventuality.

The Government have emphasised that they are keen to strike a balance between the requirements of public safety and the burden that a new duty may place on small business. Therefore, in practice, proportionate mitigation measures for smaller venues and locations are likely to entail relatively simple changes to existing processes, comprising low additional costs to comply with the new duty. Similarly, for larger public venues and locations that fall within the scope of the duty, the implementation of measures will be limited to those that are ‘reasonably practicable’.  Owners and operators are effectively being asked to consider and assess the terrorist threat to the public at locations they own and operate and weigh this against the time and money required to achieve a “successful level of security preparedness”. In line with this requirement, appropriate security measures could be a combination of physical and behavioural interventions, from the installation of CCTV, to the provision of effective staff training to encourage vigilance and ensure that staff are able to respond appropriately in the event of a terrorist attack.

It is envisaged that an inspection and enforcement regime will be required to guarantee compliance and to provide the necessary assurance that organisations within the scope of the Protect Duty are consistently meeting the legislative requirements. Whilst at this stage we cannot be certain of the enforcement model that will be developed, it is likely that organisations will be required to undertake frequent risk assessments of terrorist threat to the public at locations they own and operate and the proportionate measures that have been implemented to mitigate such a threat. Even with a legislative onus on educating and advising organisations, it is expected that a new offence will be created with civil sanctions for organisations who persistently fail to take steps to assess and mitigate public security threats.

Preparing for implementation of the new Protect Duty

Whilst we can not anticipate the exact scope of the new legislation, the immediacy of the new Protect Duty highlights the growing need for organisations to make public security a priority. As more information comes through about the potential scope and requirements of the new duty, it would be sensible for organisations to take a proactive approach and begin to consider whether locations or venues that they are responsible for are likely to fall within the scope of the new Protect Duty.

Many organisations that will be caught by the new duty will have already considered the threat from terrorism and many will have already implemented measures (physical and / or behavioural) to reduce the risk. However, now would be a good time for organisations to re-visit the issue, building a robust understanding of the specific security risks posed including, identifying and recording how each location or venue might be targeted. Whilst the implementation of additional security measures will not be mandated at this stage, it may be time and cost-effective to take a look at the security arrangements that are already in place for locations and venues and to begin to identify any particular vulnerabilities and areas where additional mitigating steps may be required either now or in the future.