The Protect Duty consultation, published by the UK government on 26 February 2021, is seeking views on how legislation could be used to enhance the protection and safety of public spaces and other publicly accessible locations.
The proposed legislation comes in the wake of terrorist attacks across the UK, including the Manchester Arena bombing in May 2017, and is informed in part by the campaign to introduce 'Martyn's Law' – named after 29 year-old Martyn Hett, who was tragically killed in the Arena bombing.
The consultation is open to the public, but is targeted at venues, organisations, businesses and local and public authorities who own or operate at publicly accessible locations.
'Publicly accessible locations' encompasses a range of locations, including (but not limited to):
Public venues (e.g. entertainment and sports stadiums, shopping centres and tourist attractions);
Large organisations (e.g. retail chains and gyms); and
Public spaces (e.g. parks, places of worship and pedestrianised areas).
The potential scope of the Protect Duty is far-reaching and will require organisations to engage with issues around security and counter terrorism in new and meaningful ways.
It remains to be seen how the Protect Duty will interact with existing health and safety legislation and the requirements placed on certain organisations that operate in public spaces.
The consultation considers:
Who (and where) the legislation should apply to;
What the Protect Duty requirements should be; and
How compliance should work.
Responses are invited until 2 July 2021.
The consultation proposes that any publicly accessible venue capable of holding gatherings of 100 persons or more should fall within the scope of the Protect Duty.
The persons responsible for the venue would be required to carry out risk assessments around threats and work to implement appropriate mitigation measures.
The consultation also proposes that the duty should apply to large organisations employing 250 people or more operating at publicly accessible locations.
This would include organisations with a number of outlets across a wide geographical area, where there is significant and regular public footfall and engagement and would bring high street retailers, supermarkets, chemists and petrol stations (among others) within the scope of the duty.
Another significant aspect of the proposed Protect Duty would be how to improve security in public spaces. Many of the recent attacks within the UK have occurred in public spaces, which are often open and lack clear boundaries.
The consultation will explore the complex issue of how responsibilities around security for public spaces could be established. To this end, responses from landowners and public authorities are strongly encouraged.
Requirements and compliance
The aim of a Protect Duty would be to impose a legal obligation on organisations to consider the safety and security of their staff and the public who use their facilities.
While there is little detail at this stage, the consultation suggests that one of the main requirements would be the duty to carry out risk assessments and mitigation measures that are proportionate to the specific circumstances of the venue/organisation and its environment, as well as the nature of the terrorist threat at any given time.
For smaller organisations, this may involve low-cost initiatives such as staff training on the nature of threats and attacks. For larger organisations, more significant and costly mitigation requirements would be expected.
The consultation proposes that venues and organisations record and retain risk assessments to evidence compliance with the Duty.
Other supporting evidence may include completion certificates for staff training courses and evidence of physical security measures.
The consultation also envisages an inspection and enforcement regime, with a new offence for non-compliant organisations that persistently fail to take reasonable mitigation measures.
It is advisable to start engaging with security and counter terrorism as part of any existing risk assessment/health and safety regime as early as possible.
A key question for venues and organisations will be how the proposed Protect Duty will interact with or impact on existing health and safety regulations and the legal obligation to do what is reasonably practicable to ensure people's health and safety.
Venues and organisation vary greatly in terms of type business, size, staffing and existing security resources, meaning there cannot be a 'one size fits all' approach.
Many organisations will have little experience of considering risks around terror attacks and threats.
Helpfully, the consultation proposes providing supporting government guidance that details the range of appropriate measures for organisations that fall within scope.
In the first instance, organisations and venues may find it useful to engage with the range of freely available resources on security and counter terrorism published by the government, including the Crowded Places Guidance (published November 2020).
This article was authored by Kirstie Imber, trainee; Elliott Kenton, senior associate; and Andrew Sanderson, partner in the health and safety disputes team at Fieldfisher. For more information on the implications of Protect Duty and how to prepare for compliance, please contact a member of the team.
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