New law to keep people safe will scale up preparedness for, and protection from, terrorist attacks….
On 2nd May 2023, the Government published the draft Terrorism (Protection of Premises) Bill, also known as Martyn’s Law, named in tribute to Martyn Hett, who was killed alongside twenty-one others in the 2017 Manchester Arena terrorist attack.
As the official legal services provider to the Association of Event Venues (AEV), and with many clients and contacts affected by Martyn’s Law, it’s a very interesting and important development for us and the businesses we work with.
Much of the content of the draft bill is what was expected following extensive public and stakeholder consultation. At its core, the legislation aims to reduce the risks we face from terrorism; it seeks to do so in a proportionate way so that the burden on those falling within the scope of the legislation is not overwhelming to the point of making their business unviable.
Some of the key points from the draft legislation include:
- Introduction of a two-tiered approach for qualifying public premises and qualifying public events.
- Standard requirements will be placed upon those qualifying premises with a capacity of between 100- 799 people and will include simple, low-cost activities to improve protective security and preparedness, such as undertaking a standard terrorism evaluation at least annually and providing relevant workers with appropriate terrorism training.Enhanced requirements will be placed upon those with a public capacity of 800+, given the potentially increased risks and the potential consequences of a successful terrorist attack.
- Enhanced requirements will include the appointment of a senior officer, preparation and maintenance of a security plan and introduction of reasonably practicable security measures.
- Requirements for service and filing of ‘co-operation notices’ by venues where other parties may have some control over the space or role in enabling the venue to comply with its obligations.
- Introduction of a regulator with powers not only to monitor and inspect but to take enforcement action including issuing contravention notices, restriction notices and significant financial penalty notices, all of which could have a considerable impact on businesses and their long-term future.
- A requirement for qualifying public premises to be registered with the regulator.
- A requirement for qualifying public events to be notified to the regulator.
A new online platform has been created by the Home Office to provide guidance on the Protect Duty, see here.
The Government has invited the Home Affairs Select Committee to undertake pre-legislative scrutiny of it in readiness for bringing into law late 2024/early 2025, and on 27 July 2023, the Home Affairs Select Committee published its report into Martyn’s Law, having been asked in May of this year to conduct pre-legislative scrutiny of the Bill before it is formally introduced in Parliament.
As part of the scrutiny process, the Committee reviewed written evidence from a number of interested parties including the National Association of Local Councils; the Football Association; the Association of Independent Museums; Scottish Rugby; the British Beer and Pub Association and LIVE (Live music Industry, Venues and Entertainment), amongst others.
The Committee also heard oral evidence from individuals including, Jonathan Hall, an independent reviewer of terrorism legislation; Matt Jukes, the Assistant Commissioner for Specialist Operations at the Metropolitan Police Service; Security Minister, Tom Tugendhat MP and Martyn’s mother, Figen Murray OBE.
The Committee has been fairly critical of the Bill, and it has raised a number of specific concerns and recommendations.
What does the Report say?
The Committee has suggested that for those premises which would fall within the proposed standard tier, “there is a lack of evidence that the risk of terrorist threat justifies the measures proposed” and on that basis, the Bill is “not fit for purpose”.
Direct concerns have been raised by the Committee that the estimated costs of implementation of proposals under the Bill, particularly regarding the standard tier businesses including small and micro businesses and voluntary and community facilities, are disproportionate to the level of threat and potentially are under-estimated too.
The Committee has called upon the Home Office to publish the criteria used to calculate the estimated costs so that businesses and Parliament can understand the same.
The Committee also supports the Local Government Association which says that the Bill should be implemented in stages, starting with the enhanced tier. It suggests a yearly review be undertaken and each time a terror attack occurs, an assessment of the impact of the legislation made. It further suggests that research into the threat of terrorism to small and micro sized businesses be undertaken, and only if that research indicates a benefit to implementation across standard tier, should provision to implement across those businesses be made.
Concerns were raised around the actual purpose of the Bill. The Committee says that whilst rhetoric around the Bill suggests prevention is the focus, it believes it is more focused on the consequences of a terrorist attack. In the circumstances, it has suggested that the Bill and any associated guidance and regulations must clearly and consistently set out its purpose.
The Committee has recognised a lack of awareness of the Bill amongst some premises (particularly smaller venues) that will be captured by it and therefore it has called upon the Home Office to undertake a targeted communications campaign as soon as possible to raise awareness and to set out what the main duties are for both tiers and what this is likely to entail for those involved.
The targeted communications campaign is also intended to prevent the spread of false information and flush out opportunists and self –styled experts and consultants claiming to know what businesses need to be doing to comply with the legislation which of course is not possible at this stage, with the Bill still very much in draft format.
The Report considers concerns raised to the Committee over capacity of premises being used as the determinator of risk, when “the threat depends partly on the nature of the premises and who is entering it”.
It confirms that there is no government provided rationale nor any evidence to support why capacity figures of 100+ (standard tier) and 800 + (enhanced tier) have been chosen, or why certain types of premises and events have been excluded entirely, for example, outdoor, un-boundaried, non-ticketed open air events attracting large crowds (eg Christmas markets). The Committee has stated that the Government should consider expanding the scope of the Bill to include outdoor events where no permission or payment to enter is not required and where capacity will be over 800 persons.
Concerns have been raised that the Bill does not take account of the varying terrorist threats which may exist in different parts of the UK (for example the threats that exist in Northern Ireland may be very different to the threats which exist in England which in turn may be different to those in Scotland and Wales). This is something which may need to be reviewed and appropriate guidance issued in the regions as the Bill progresses to become law in due course.
Concerns have been raised over lack of detail in the Bill and lack of guidance as to identifying the ‘person responsible’ for undertaking the required duties, eg a building owner may have limited control over the activities taking place within the building. The Report flags that whilst there is provision for one party to issue a ‘co-operation notice’ to another, this risks the wrong person assuming responsibility, may be open to abuse and may also be open to challenge.
The Report concludes that the Bill is unclear as to how it is to work in the presence of existing laws, regulations and guidance around counter terrorism and health and safety. The concern is that there may be duplication and confusion between existing law and practices and proposals under the Bill.
The Committee is critical of the training requirements outlined in the Bill and has said that training should be of a proscribed standard to avoid inconsistent or poor regimes. They have also urged the Government to engage more closely with the voluntary sector in this regard to ensure suitable systems are put in place.
It has called for a statutory standard to be set for risk assessments at enhanced tier premises, to avoid different standards of risk assessments being carried out across the premises captured.
Concerns are also raised that the Bill is “currently incomplete on the identity of the regulator, its governance, and its accountability. There are no provisions setting out who the regulator will be, whether it will be independent or not, how it operates and how it should be accountable.”
As such, the Government have been told to develop concrete proposals on the regulator within two months and make the relevant changes to the Bill before introducing it to Parliament.
Similarly, the Government have been told to issue all draft guidance accompanying the Bill by the end of September 2023 to allow those impacted by it to provide feedback.
The Committee have also suggested that the Bill should include a provision for mandatory life-saving training for staff at premises falling within the scope of the legislation and the Home Office should consider mandatory bandage kits at such premises.
In addition, it suggests that provision be included in the Bill to require new publicly accessible buildings, which would fall within the category of enhanced tier premises, to consider security in the design of the building – so that there would be statutory standards for the design of new builds.
Responding to evidence and concerns raised about the level and standard of training for those working within the security industry, the Committee have also invited the Government to work more closely with the Security Industry Authority to improve and standardise training for security guards across the UK and to consider provision for education and procurement of security at enhanced tier premises.
What did the some of the Bill’ s sponsors say?
Responding to the Report Nick Aldworth, a former National Coordinator of Protect and Prepare Counter Terrorism policing who worked with Figen Murray on Martyn’s Law, said: “I know that the committee did its work in a rush, but its conclusions don’t reflect the universal and unpredictable nature of the terrorist threat that was described to them by other witnesses.”
“Recommending a single tier and phased implementation will only signpost terrorists to smaller locations and increase the risk to them. At a time when we are seeing terrorists shift their focus to these kinds of venues as soft targets, nowhere is without exposure to terrorism. The Government should take their point seriously on including outdoor venues, but their wider arguments are not only wrong but dangerous.”
Figen Murray said: “Having lost my son to terrorism, along with so many others in the Manchester Arena attack, I find it hard to understand the argument that a few hours of training each year is a disproportionate step for businesses to take.
“Martyn’s law is a proportionate response that will keep millions of us safer and the Government must now press ahead.”
So what next?
The published guidance will be hugely important to our understanding of the Bill, as of course will the Government’s response to the Report which it has been given until the 23rd September 2023 to produce.
It’s fair to say though that at the very least there is likely to be a number of substantial amendments before the Bill comes before Parliament.
With so many unknowns around the specifics of the legislation and when it is likely to come into force, it would be premature for any business to launch into a full overhaul of their premises, their policies, procedures and training. However, it is not too early to give consideration to the potential measures that you and your business may ultimately need to put in place and doing so now is likely to give you greater control around the planning, costs and implementation of the same.
Organisations involved in this sector will be expected to be alive to the issues underpinning and surrounding the proposed legislation and to generally conduct their operations accordingly. “We didn’t know” or “We didn’t realise” is not going to pass muster, and the current knowledge landscape may well provide the benchmarking for reasonable and acceptable practice, regardless of the fact that the legislation is yet to land. Insurers will also be alive to this, so we can expect some challenges and demands from that sector too.
Here at nQ legal, we can provide specialist legal advice and assistance to you and your business. We have put together a range of services, some for now, and others geared for the future when the new law comes in.
The current line-up is as follows, although obviously things will evolve to respond to changes in the proposals and subsequent regulatory landscape.
Please get in touch if you have any queries, we’d be very happy to help.
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Advice from specialist criminal and regulatory solicitors during an investigation and/or prosecution, as well as, access to experienced counsel and experts, where required.
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