• March 30, 2023

Protect Duty (Martyn’s Law) – new legislation

Under planned new legislation in response to terrorist threats, the owners and operators of premises that are publicly accessible and where qualifying activities take place will need to take steps to protect the public from terrorist attacks and ensure that they are prepared to deal with incidents.

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The premises may be a building or a location with a defined boundary and include sites where temporary events occur. The planned new legislation – the Protect Duty – will only apply to premises where the maximum capacity is 100 persons or more.

Protect Duty - the background

In 2022, in response to the Manchester Arena bombing and other significant terror attacks, the Government announced its intention to introduce new legislation (the Protect Duty) across England, Wales, Scotland and Northern Ireland. This new legislation will make it a statutory duty for the owners and operators of publicly accessible locations (PALs) to take ‘appropriate and proportionate measures’ to protect the public from a terrorist attack. According to the Home Office, the Protect Duty, also known as ‘Martyn’s Law’ (Martyn Hett was a victim of the Manchester Arena attack, in which 22 people were killed), could affect approximately 650,000 UK businesses operating across multiple sectors.

Who or where should the Protect Duty apply to?

The three primary areas the Protect Duty will potentially apply to are:

  • Public venues (e.g., entertainment and sports venues, tourist attractions, and shopping centres with a capacity of 100 persons or more)
  • Large organisations (e.g., retail or entertainment chains employing 250 staff or more that operate at publicly accessible locations)
  • Public spaces (e.g., public parks, beaches, thoroughfares, bridges, town/city squares and pedestrianised areas). This includes event organisers using these spaces.

The new legislation will likely identify a ‘Duty Holder’, the owner or operator, for example, who holds organisational responsibility and control over the premises or location. Where there is a shared organisational responsibility, the parties would be required to work together to ensure the Duty requirements were met. 

To ensure a proportionate approach, the legislation will use a two-tiered model. Each tier is linked to the activity that takes place at a location and its capacity.

Standard Tier: Publicly accessible locations with a capacity of 100 persons or more

To meet their obligations under the new legislation, Duty Holders in the standard tier (locations with a capacity of 100 or more – which could include larger retail stores, bars, and restaurants) will need to take steps to improve preparedness and security. These steps will consist of engaging with freely available counterterrorism advice and training, awareness raising and the cascading of information to staff, and implementing a counterterrorism plan. 

The objective is to ensure that staff are well versed in the processes they must follow and can take lifesaving steps should a terrorist incident occur. For instance, these steps could include locking doors to delay attackers gaining access and leading fellow staff and customers to safety through alternative exits. Additionally, staff could be trained to administer first aid while waiting for the emergency services to attend.

Enhanced Tier: Publicly accessible locations with a capacity of 800 persons or more

Given the potentially fatal consequences of a terrorist attack at larger venues, locations with a capacity above 800 persons – such as such as live music venues, theatres and department stores – will have to meet additional security requirements in the enhanced tier. 

Duty Holders will be required to undertake a risk assessment and formulate a security plan that is ‘reasonably practicable’ – a phrase that Duty Holders should be familiar with through Health & Safety and Fire Safety regulations. This approach will allow duty holders to use their judgement to balance risk reduction against the time, money and effort necessary to reach an adequate level of security preparedness.

Places of worship and locations run by volunteers

The Protect Duty puts all places of worship in the standard tier regardless of their capacity, except for a small number across all faiths that charge tourists for entry or hire out their premises for large-scale commercial events.

Some charities, community groups and social enterprises may own or operate premises (museums, national trust sites, and substantial public venues) that they hire out for commercial purposes. Since these are most likely to fall below the 800+ capacity limit, the Government considers the standard tier requirements proportionate for this cohort.

When will The Protect Duty come into force?

While no date has been given for the implementation of the Property Protect, the Home Secretary, Suella Braverman, reaffirmed the Government’s commitment to publish draft legislation in spring 2023. Those organisations most likely affected by Protect Duty should begin looking at how they protect the public from terror threats as soon as possible. 

Protect Duty enforcement and consequences

The Protect Duty will likely involve regular and on-the-spot inspections by an as-yet unidentified inspectorate. Indications are that its approach will be to educate, advise and ensure compliance with financial penalties expected for consistent non-compliance. If a terrorist incident does occur and lives are lost, a venue’s operators could be prosecuted under the Corporate Homicide or Corporate Manslaughter Act.

What you can do now

If you believe that the Protect Duty applies to your organisation, you should speak to your broker and ask them to review your policy wording to ensure there is sufficient cover in the event of a terror incident. Conducting a risk assessment in light of the new legislation and its requirements is also worth considering to identify and address any potential security vulnerabilities. 

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