The draft wording of the Terrorism (Protection of Premises) Draft Bill (also known as ‘Martyn’s Law’) continues to work its way through Parliament, and following its inclusion in the King’s Speech.
Whilst some aspects of the Bill have recently been subject to scrutiny and criticism, the fundamental purpose of the draft is to be welcomed.
Although identification of ‘lone wolf’ individuals, their methodology and where and when they may attack are often difficult to predict, such ‘low complexity’ attacks are no less deadly than those committed by organised terrorist groups and it is only correct that all businesses prepare for the unthinkable.
The draft Bill, also known as Martyn’s Law in honour of Martyn Hett, who was killed during the 2017 Manchester Arena attack, seeks to address this issue by imposing proactive security measures on organisations that may be subject to terrorist attack. Specifically, the Bill requires those responsible for certain public premises to expressly consider the risk from terrorism and implement reasonably practicable and proportionate mitigating measures in response. The Bill also proposes to establish an inspection and enforcement regime, to ensure compliance with the legislation once it comes into force.
Which premises are caught?
The definition of ‘qualifying public premises’ is wide and includes premises used for:
- retail purposes
- hospitality and entertainment
- sporting grounds
- exhibition halls
- transport terminals; and
- childcare and educational facilities.
To be caught by the definition, and the additional duties imposed, the public must have access to the premises which themselves must have a capacity for 100 or more individuals.
Certain ‘qualifying public events’ are also caught by the provisions, which includes events held at premises which are not qualifying public premises, but to which the public have access and have capacity for 800 or more individuals.
What is the duty that is imposed?
Different duties apply depending on the size of the qualifying premises, with those having a public capacity of 800 or more individuals being classed as an ‘enhanced duty premises.’ Other public premises are subject to a ‘standard duty’.
In either scenario, the duties are imposed on the person (or persons) who has control of the premises for their relevant use, or the qualifying public event.
In addition to being obliged to register the premises, the responsible person must also:
- ensure that a standard terrorism evaluation of the premises has been completed
- revise that evaluation as required and ensure it is kept up to date
- make available a copy of the current evaluation to each individual who uses the premises as a place of work; and
- provide the regulator with a copy, on request.
A standard evaluation must be reviewed every time there is a material change to the premises or its use, as well as within 12 months of the previous review.
The evaluation should include information as to the:
- types of terrorism most likely to occur at or in the immediate vicinity of the premises
- the measures in place in relation to the premises that might be expected to reduce the risk of acts of terrorism of those types occurring at or in the immediate vicinity of the premises
- the measures in place in relation to the premises that might be expected to reduce the risk of physical harm to individuals if acts of terrorism of those types were to occur at, or in the immediate vicinity of, the premises
- the procedures to be followed if acts of terrorism were to occur at, or in the immediate vicinity of, the premises; and
- the ways in which individuals who use the premises as a place of work will be made aware of the standard terrorism evaluation of the premises, or relevant information in the evaluation.
Where the enhanced duty applies, the responsible person must also prepare a terrorism risk assessment at least three months before the date of the event taking place. The draft Bill explains that a terrorism risk assessment is an assessment of:
- the types of acts of terrorism most likely to occur at, or in the immediate vicinity of, the premises or event
- the reasonably practicable measures that might be expected to reduce the risk of acts of terrorism of those types occurring at, or in the immediate vicinity of, the premises or event; and
- the reasonably practicable measures that might be expected to reduce the risk of physical harm to individuals if acts of terrorism of those types were to occur at, or in the immediate vicinity of, the premises or event.
What are the responsibilities?
The draft Bill serves to impose additional duties on those responsible for qualifying premises.
For example, Martyn’s Law if enacted in its current form will oblige those responsible to provide terrorism protection training, and to implement prescribed security measures and plans in the event of an attack.
Obligations under the Bill will be monitored and enforced by local authorities, using a ‘reasonably practicable’ test to assess what is proportionate in any given situation.
If contraventions are identified then the Bill provides for notices to be served, as well as the imposition of financial penalties. Of note, the maximum penalty in respect of standard duty premises is £10,000, but for those subject to the enhanced duty is the greater of £18 million, or 5% of qualifying global revenue.
Failure to comply with a notice which has been served will be an offence, being punishable on conviction by up to two years custody and/ or an unlimited fine. In addition, individuals within an organisation may also be guilty of an offence if the corporate’s offending is shown to have been committed with their consent, connivance or neglect.
The aims of the Bill are commendable, and have been prepared following consultation with various parties in the aftermath of the Manchester Arena attack in 2017. The specific and deliberate focus on the risk of terrorism is to be welcomed and it is hoped that the Bill is able to complete its passage through Parliament as soon as possible.
However, the proposals are not in themselves novel and largely reflect and mirror existing duties imposed on organisations and businesses in respect of day-to-day health and safety management. Where this legislation differs however is that it prescribes the risk (terrorism) to be expressly considered and requires relevant organisations to proactively prepare in anticipation of that risk materialising.
The additional inspection and enforcement responsibilities come at a time when local authorities are financially stretched and it will be interesting to understand from where the additional funding and resources to achieve this aim will be sourced. For example, the impact assessment which accompanies the draft legislation estimates that the total set-up and on-going cost of Martyn’s Law to be between £1.1 billion and £6.3 billion.
In addition, criticism has been levelled at both the arbitrary capacity cut-off figures – given that acts of terrorism do not usually abide by such distinctions – as well as the potentially disproportionate cost which will be imposed on small and medium-sized venues. Whilst the Bill, if enacted, will certainly increase provider knowledge, it remains unclear how it will provide a benefit to venues, given the random and often unforeseeable nature of terrorist activities.
To discuss this in more detail, contact associate partner in Pannone Corporate’s regulatory team, Bill Dunkerley.