Legal spotlight - June 23

THE UK government’s pledge to require venue operators to take steps to protect the public from terrorism moved a step closer to implementation with the publication of its Terrorism (Protection of Premises) Draft Bill (the Bill).

The Bill follows a previous government commitment to improve public security in the face of ongoing terrorist threats and to create a culture of safety, harnessing private sector resources to drive improvements. 

The new protect duty (known as Martyn’s law) will apply to “qualifying public premises”. Qualifying public premises are essentially those to which the public have access, have a capacity of 100 or more and are primarily used for specified purposes. Those purposes are widely defined by reference to a schedule and include venues for entertainment, leisure, retail, food and drink, museums and galleries, sports grounds, public areas of local and central government buildings (e.g., town halls), visitor attractions, temporary events, places of worship, health, and education. 

For open air venues in scope, access for the public must be by express permission only (with or without payment).

The Bill splits qualifying public premises into two tiers with particular requirements applying to premises in each tier. Standard duty premises are premises with a capacity of 100 to 799, whereas enhanced duty premises are those with a capacity of 800 or over. The Bill allows for provision to be made for some qualifying premises to be treated as standard duty premises when they would otherwise be enhanced duty premises, and vice versa. Public capacity will be determined in accordance with regulations made by the Secretary of State.  

Enhanced duty premises responsibilities are also imposed on those in control of “qualifying public events”.  These are public events held at premises that are not qualifying public premises with a capacity of 800 or over, where express permission is required to enter for the purpose of attending the event (with or without payment).  

Amongst the standard duty requirements is an obligation to undertake a standard terrorism evaluation of the premises, which will include an assessment of the types of terrorism most likely to occur at or in the immediate vicinity of the premises and the measures in place to mitigate this risk and protect the public, including procedures to evacuate their premises. This must be regularly reviewed and a copy must be made available to workers. Relevant workers (those with appropriate responsibilities) must also be given appropriate terrorism protection training. 

Persons responsible for enhanced duty premises or qualifying public events will also be required to ensure that terrorism protection training is provided to relevant workers at their premises. In addition, they must appoint an individual as the designated senior officer for the premises or event and must complete and regularly review their terrorism risk assessment. In completing this assessment, they must consider the types of terrorist act most likely to occur at or around their premises or event and the ‘reasonably practicable’ measures that might be expected to reduce the risk of such an act occurring, or the risk of physical harm to individuals as a result of such an act. They must also implement reasonably practicable security measures to reduce the risk of, and harm caused by, terrorism.   

Persons responsible for enhanced duty premises or a qualifying public event must also prepare and maintain a security plan for the premises or event, with a copy provided to the regulator.  Details of the contents of that security plan will be set out in future regulations but it will document, amongst other things, information about the premises or event and of the persons responsible for them.   

The Bill sets out the enforcement powers of the regulator, including to impose a range of sanctions and penalties for non-compliance. Civil penalties may be imposed as an alternative to criminal sanction in appropriate cases. For enhanced duty premises or a qualifying public event that may be up to £18 million or 5% of the person’s worldwide revenue. The Bill also provides for criminal sanction for individual officers where a corporate commits an offence and it is shown to have been committed with the consent or connivance of that individual. While the regulator is still to be identified, the most obvious choice, the Health and Safety Executive, is an already stretched resource, with significant new responsibilities already recently given to it. Considerable additional resource will be required if this too is to be in their remit. 

In all instances, the government and the regulator will provide guidance and support to ensure that they “do everything possible to alleviate the burden on business”. 

The Bill creates a framework for what appears to be significant new duties on those responsible for premises or events in scope. Questions remain however with much of the detail still to be set out in regulations to be made by the Secretary of State and guidance still to be provided. Care will be required to ensure that any new responsibilities imposed are not only understandable and deliverable, but also are a proportionate response to the risk without unduly burdening business.  As ever, the devil will be in the detail.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com