The upcoming legislation will reform the Protect Duty thereby transforming it from a voluntary engagement for businesses into a compulsory duty.
What is Martyn's Law?
Martyn’s Law is a forthcoming piece of legislation expected to be introduced formally to Parliament in Spring 2023. It will reform the Protect Duty thereby transforming it from a voluntary engagement for businesses into a compulsory duty.
The new terrorism law is likely to touch upon every organisation that owns or occupies commercial premises, irrespective of whether they receive visitors, or if they are considering hosting public events.
The law is named after Martyn Hett, one of 22 victims who were unlawfully killed in the 2017 terrorist attack at the Manchester Arena. Martyn’s mother, Figen Murray O.B.E., has worked tirelessly and successfully to petition government to improve security against the threat of terrorism at public venues.
Protect duty consultation
The Government launched a consultation which ran from 26 February 2021 to 2 July 2021. That consultation produced positive support for the imposition of duty with some 70% of respondents in favour.
On 17 June 2021, Sir John Saunders released his Volume 1 report for the Manchester Arena bombing Inquiry. That report explored the security arrangements at the Manchester Arena. Within the report Sir John Saunders also endorsed the imposition of a duty for venues like the Manchester Arena.
On 10 May 2022 in the Queen’s Speech, the Government unveiled measures to protect the United Kingdom.
Then progress stalled until, on 19 December 2022, Prime Minister Rishi Sunak confirmed the Government commitment to the introduction of Martyn’s Law in the spring. Following the Prime Minister’s announcement, the Home Office also issued guidance which redefines the approach being taken by Government to Martyn’s Law.
Protect duty 2022
The duty itself has not changed. It will require the owners and occupiers of publicly accessible locations to do three things:-
- To conduct a risk assessment to consider the threat of a terror attack in their publicly accessible locations;
- To implement measures, so far as reasonably practicable, to reduce the risk of terror attacks (enhanced tier duty holders);
- To have in place robust plans to deal with the threat of terror attacks.
The aim of the legislation is to ensure that parties are prepared, ready and know what to do in the event of a terror attack. Its stated aim is to deliver enhanced security systems, staff training and clearer processes.
Where will the protect duty apply?
The scope of the duty seems to have been a matter which the Government has wrestled with for some time. When the consultation launched in 2021, it envisaged the application of the duty for all publicly accessible locations with a capacity exceeding 100 people, including workplaces where there are more than 250 employees who receive visits from members of the public. The consultation also envisaged three groups of duty holders: small, medium and large.
All of this has changed in the most recent Home Office guidance. The key words now used are qualifying activities taking place in eligible locations with defined boundaries. Currently all three terms remain undefined.
The Home Office have confirmed that the duty will apply to: entertainment and leisure venues, retail, food and drink, museums, galleries, sports grounds and local and central government buildings.
It will apply to temporary events, places of worship and educational institutions (such as university campuses).
The duty will apply irrespective of the identity of the duty holder. That means it will apply equally and proportionately to volunteers and charitable organisations as it will to corporates and public sector organisations.
Exemptions
There are very limited exemptions to the application of the protect duty. The main exemption is transport hubs because they are covered by existing regulation.
Some football stadia may potentially also be exempt by reason of regulation.
The duty is not intended to apply to offices, residential buildings, unoccupied buildings, or premises with a large footprint but low occupancy.
Protect duty Martyn's Law
Standard tier
The standard tier will apply to qualifying locations with a maximum capacity exceeding 100 people. It will also apply to places of worship irrespective of maximum capacity.
For standard tier duty holders, the suggested approach is compliance with simple activities which can be co-ordinated through Government guidance. Most of this guidance is likely to be made available online with the purpose of assisting the duty holder in the preparation of their risk assessment and by directing them to online training materials.
It is very likely that standard tier training will incorporate measures which look to ensuring that appropriate first aid provisions are available, in addition to deterrent measures.
Enhanced tier
The enhanced tier is applicable to locations with a capacity exceeding 800 people at any one time.
These duty holders will be expected to produce both a risk assessment and a security plan which will be assessed against the standard of reasonable practicability.
What is practicable is what can be implemented irrespective of resources. What is reasonable balances the impact of the implementation of measures against the threat. It should be borne in mind that terror attacks have devastating consequences. It is likely that reasonable practicability for enhanced duty holders will have to give considerable weight to adverse outcomes.
Distinct from standard tier duty holders, both the risk assessment and the security plan will be bespoke documents. It will be necessary for those in the enhanced tier to demonstrate both effective deterrence and reasonable response measures. There has been considerable focus in the work of Government to ensure that effective response measures include; comprehensive CCTV, effective training of staff, work with neighbours to ensure comprehensive plans for shares areas of responsibility (“grey space”) and adequate first aid provisions to deal with the aftermath of any terror attack.
Will it become law?
It is very likely to become law and to receive Royal Assent in 2023. The duty has cross-party Parliamentary support. The prevention of further terrorist attacks and UK bombings like the Manchester Arena bombings is a matter of continuing priority for government.
When will Martyn's Law come into force?
No date has been given for the implementation of Martyn’s Law.
Evidence given to the Manchester Arena Inquiry by the Home Office placed emphasis upon ensuring that duty holders start their preparations for compliance with the duty now and not waiting for the implementation date, thus hinting at a short implementation period. That will be contingent upon ensuring that Government training and support resources are also available.
Enforcement and consequences
An inspectorate will be established to support and enforce Martyn’s Law. The identity of the inspectorate is, as yet, unknown.
It is likely that the approach to inspection in the first instance will be to seek to educate and support duty holders.
However, the Government has consistently said that the inspectorate will have bite. That means it is likely that its powers will include the power to prosecute duty holders, or to prohibit activities until compliance is achieved.
Prosecution may have very serious consequences for duty holders who fail to comply with the duty in the event of a terrorist attack on their premises. From a civil perspective, a failure to comply with the duty is likely to attract a liability to compensate victims of such terror attacks. This is a fundamental change in the law which should not be underestimated.
Who will Martyn's Law impact?
Many of our customers will be directly impacted by Martyn’s Law and there are a range of legal considerations which include:-
- Licensing requirements.
- Review of commercial lease agreements and commercial contracts.
- There should be particular focus on the resilience of out-sourced arrangements including security, CCTV and private medical provisions. Martyn’s Law is likely to result in a non-delegable duty which means that external provisions must be compliant.
- Consideration should be given to responsibility for areas of shared occupancy.
- Check that adequate insurance cover exists.
For more information about Martyn’s Law or to discuss any queries please contact Paul Tarne.
Paul is renowned for handling sensitive and challenging cases, which often include claims of significant value. A further example of Paul’s work is the successful defence of a claim for £25 million brought by four claimants for misfeasance and malicious prosecution.
If you would like further guidance on any aspects of the new legislation, please contact one of our expert public inquiries solicitors.
