Martyn's law and the effect on businesses

Answer

Following a public consultation, the proposed introduction of legislation to minimise the risk of a successful terror attack has received overwhelming support from 71% of respondents, including local authorities, charities, security experts as well as survivors of the terror attacks in the UK.

The draft Protect Duty Bill is set to get its first reading in Spring 2023. Protect Duty, which is also known as ‘Martyn's Law’ was campaigned for by the mother of one of the victims of the Manchester Arena attack in 2007.

The latest government figures showed 27 terrorist attacks have been prevented since March 2017, which has made the need for an extra layer of protection to make the UK more resilient to terrorism.

In December 2022, the government issued a statement on the Protect Duty Bill, which provides some insight into the intended nature and extent of the duties that are likely to be imposed on organisations and individuals who control or have responsibility for publicly accessible buildings, locations, and venues.

Those responsible for shopping centres, retail outlets, sporting events, fairs, concert venues, and other publicly accessible places and spaces, such as hospitals, colleges and university campuses, will fall within the scope of Protect Duty and will be required to take a variety of proactive steps and measures, depending on the scale of eligible premises and type of qualifying activity, to improve preparedness for and response to terror-related risks.

The proactive steps imposed by the Protect Duty Bill may include:

• raising awareness among staff;
• conducting risk assessments;
• implementing preventive measures; and
• introducing a counter-terrorism plan.

The Protect Duty Bill is intended to apply only to those eligible locations, spaces, and buildings (including collections of buildings used for the same purposes, such as university or college campuses), both permanent and temporary, with a capacity to hold 100 or more people at any one time. The requirements are planned to be introduced in a tiered model:

• Standard tier: premises/locations with a capacity of 100 or more at a time.
• Enhanced tier: premises/locations with a capacity of 800 or more at any time. 

Those in the standard tier will be required to undertake activities to improve preparedness aimed at minimising the risk of a successful terror attack. Those activities will have to be effective; however, are likely to be cost-efficient to the duty holders. The standard tier obligations may include:

• conducting risk assessments for eligible locations and qualifying activities, taking into consideration the impact on the public;
• raising awareness among staff via information sharing, training, and the use of government guidance and resources (some information is already available on the ProtectUK Security Hub); and
• introducing such security practices as locking doors to delay attackers or training their staff on life-saving treatment to be administered while awaiting emergency services.

Duty holders that fall under the enhanced tier, in addition to the standard tier measures, will be required to undertake a risk assessment to develop and implement a thorough security plan. Security plan measures will necessitate the development of practical physical measures, such as lockable doors and secure spaces as well as CCTV systems, entry-pass systems, procedures for searches prior to entry, and anti-ram barriers and bollards to avoid the risk of attacks using hostile vehicles.

It's expected that the government will appoint an existing or a new regulatory to monitor the compliance and development of the ‘security culture’ by providing assistance and guidance. However, the enforcement notices and civil sanctions will be imposed on the duty holders for consistent non-compliance and serious breaches.

In addition to the obvious reputational harm, which would attach to such penalties, the non-compliance by operators of high-profile venues and events would carry a risk of being perceived as someone not worried about the public’s protection. The financial penalties are also proposed to be considerable. The amounts currently being considered are up to £10,000 fine for standard tier duty holders; and a fine of up to £18 million or 5% of global annual turnover for enhanced tier duty holders.

Maria Emberson is a trainee solicitor at Womble Bond Dickinson.