So, here goes with a further update together with a little background for anyone unaware of the proposed legislation, formally known as the Terrorism (Protection of Premises) Bill.
Background to the Government’s proposals:
Martyn’s Law, according to the Government, “will make sure venues across the UK consider the security of the public and take steps to protect them from harm”.
The concept of a Protect Duty, a legislative requirement on premises and events to take proportionate measures to reduce the risk of terrorism, can be traced back several years. 2017 was a key year.
During that year the UK suffered five serious terrorist attacks at Westminster Bridge, Manchester Arena, London Bridge, Finsbury Park and Parsons Green.
Sadly, 36 individuals were killed and more than 200 were injured. There have been 15 domestic terror attacks since the start of 2017 and 43 disrupted late-stage plots.
Research conducted by the Government in 2019 of 550 organisations suggested in a list of priorities, dealing with terrorism came fifth after health and safety, fire, safeguarding and crime prevention.
Inquests following the Manchester Arena bombing and the London Bridge and Borough Market attacks both suggested the need for the introduction of legislation to set out the duties of owners and public authorities regarding protective security.
Additionally, the Martyn’s Law campaign, led by Figen Murray, the mother of Martyn Hett, one of the 22 innocent victims of the Manchester Arena bombing relentlessly pushed governments of both blue and red hue and their prime ministers towards personal and policy pledges to bring forward legislation.
And if anyone was not convinced by the human cost of terrorism, between the years 2004 and 2016 it is estimated that damage to tourism alone from terrorist attacks was £43.7bn.
Background to the legislation:
An original Bill (with the same name) was published by the Conservative government on 2 May 2023.
This came in for significant criticism primarily because it failed to properly address and analyse the impact of the legislation on smaller venues.
The vast majority of publicly accessible venues with a 100 capacity or more were in scope, and small businesses and community venues with large capacities but low attendances like some village halls were particularly unhappy.
The Bill was given a red rating (‘not fit for purpose’) by the Regulatory Policy Committee and came in for further criticism after evidence was taken by the Home Affairs Select Committee for broadly the same reasons.
All this resulted in a government consultation on the standard tier (only) in February 2024.
Fast forward to July and we have a general election and before we know it an amended Bill was introduced to Parliament by the new Labour government on 12 September 2024.
This Bill has since been slightly amended in its passage through the House of Commons, those amendments being largely technical and clarificatory in nature.
The rest of this article seeks to give a very broad brush summary of the proposed legislation together with a timeline.
Who is in scope – premises:
To be within scope of the Bill you have to either be qualifying premises or a qualifying event.
A qualifying premises can include a building and/or land, for example a pub and its beer garden or a hotel with outside grounds used for dining and events.
Units in shopping centres can be included, as can groups of buildings for example a university campus.
The premises must be “wholly or mainly” used for one or more uses listed in the Bill, which include retail, food and drink, entertainment and leisure activities and a host of other uses including healthcare and education.
Suffice to say all publicly accessible hospitality and leisure facilities fall within the list of uses.
A key point is that the Bill only relates to parts of premises which are publicly accessible, not private.
Hence, office space, storerooms etc would not feature in terms of calculating whether a premises was in scope.
The second key point is that in order to be in scope, unlike the 100 or more capacity of the Conservative Government’s version of the Bill, the test for “capacity” now is that it is reasonable to expect “from time to time 200 or more individuals may be present on the premises” in connection with the relevant use, eg. drinking, eating, bowling, using the library .
Certain premises are exempt, for example the various UK parliaments, and open parks and recreation grounds where there is no check for entry (basically your local park that you can just walk into)
Who is in scope?
In addition to premises, events can also be within scope. An event needs to take place at premises, which can be a building or other land, the public must have access and it is reasonable to expect that at some point during the event 800 or more individuals may be present for the same time.
There is an express permission requirement namely attendees must have paid or have invitations or passes allowing access.
To be a qualifying event, think of festivals with a maximum (at any particular time) attendees including staff of 800 or more, where there is some form of check on entry, so you can’t just wander in and out as you please (distinguish this from open Christmas markets or street fairs which are out of scope).
It is possible to have a qualifying event at a qualifying premises. For example, a pub may be in scope of the Bill but once a year it has a 900 capacity event in its beer garden.
The 900-capacity event would be a qualifying event subject to its own requirements, whereas for the rest of the year the pub would have its own, different responsibilities.
In this scenario the pub would fall within the less stringent standard tier, whereas the beer garden event would, due to its higher attendance, fall within the enhanced tier (see below).
Capacity considerations:
As I stated earlier, the original “capacity” of 100 has gone and been replaced with 200 or more for qualifying premises.
The use of the word “capacity” has also been removed due to its perceived inflexibility and unfairness.
New and fairer methods which are perhaps more accurate for estimating the real number of persons attending will be permissible, including the fire safety occupancy figure, historic attendance data, numbers based on fixed seating, the number of tickets sold or restrictions placed by other permissions (for example a premises licence), or indeed the “staggering” of attendees (an event may have sold 1,000 tickets but only 250 people are allowed each day over 4 days).
Basically, whatever method results in a reasonable and accurate assessment of the maximum number of people that can be reasonably expected to attend from time to time will be acceptable.
Requirements: standard tier:
There are two tiers if a premises or event is in scope. The first is the standard tier for premises with 200 plus persons.
The requirements are they must notify the regulator (who will be the Security Industry Authority) as well as have in place what the government describes as simple low cost activities surrounding policies and procedures required to be followed by staff in the event of a terrorist attack or suspected attack.
There is no requirement for physical measures to be put in place or the purchase of equipment.
The four procedures are as follows
- Evacuation – to get people out of the building
- Invacuation – to bring people into the premises to keep them safe, or move them to safe parts of the building
- Lockdown – to secure the premises against attackers
- Communication – to alert staff and customers and move people away from danger
Additionally, staff must be made aware of these procedures, (which one might describe as another word for training).
There is a reasonably practicable test so whilst these procedures will be expected in all standard tier premises, what will be expected of a 600 capacity venue which is packed every night of the week will not necessarily be the same as a 200 capacity venue that is only used once a week.
Requirements: Enhanced tier
The enhanced tier covers premises with 800 or more people attending from time to time, or events whose ‘peak attendance’ (my words) is reasonably expected to be 800 or more people at any one time.
These larger premises and events must also notify the SIA and carry out the procedures as required of the standard tier.
Additionally, they must take reasonably practicable measures to reduce the vulnerability of premises to attack and to reduce the risk of physical harm in the event of an attack.
Those measures and procedures must be documented and provided to the SIA.
Measures may include monitoring, movement, security of information and physical safety – this might be CCTV, barriers, bag searches, restricting access to building floor plans, hostile vehicle mitigation, safety glass or a whole range of other measures.
The responsible person:
The responsible person has control of the premises in connection with its use, for example the licensee rather than the property landlord.
For an event, the responsible person would usually be the event organiser rather than the farmer who owns the land.
The responsible person can be an individual or a company.
Enhanced tier premises must appoint a so called designated senior individual (who would usually be expected to be a Director or other senior individual) to have responsibility for ensuring the requirements of the Bill are carried out, if the responsible person is itself a corporate body.
There are requirements under the Bill for coordination, namely for two or more responsible persons to work together.
Imagine a pantomime at a town hall next to a pop up event for a Christmas marquee next door for 1500 people – during Christmas and the New Year one would imagine an expectation under the Bill for the responsible persons for each of those activities to get their heads together to fulfil their duties regarding the risk of terrorism, particularly in terms of ingress and egress.
There is also a requirement of co-operation, so where for example a nightclub owner needs the property freeholder’s consent to changes to a building under a lease, the freeholder would be under a reasonably practicable duty to co-operate with works identified as necessary to comply with requirements under the Bill, and indeed in some circumstances pay.
For example if the lease required contributions from the landlord for the maintenance and upkeep of the premises.
Regulation, sanctions and enforcement:
As I said, the regulator is the SIA and we shall see how that pans out in terms of its ability to fill some rather large, important and specialist shoes.
The regulator’s main role is to oversee compliance and enforcement. At the first instance its job will be to educate and provide guidance.
The Government estimates that there will be inspections of between 1-5% per annum of sites (there are an estimated 180,000 sites estimated to be in scope).
The regulator will have powers of entry, information gathering and monetary penalties.
It will be able to issue compliance and restriction notices.
Penalty notices for standard premises will carry a maximum of £500 per day and a fixed penalty of £10,000; for enhanced tier premises that shoots up to £50,000 per day maximum and an £18 million fixed penalty or 5% of worldwide turnover. An appeals tribunal will be established.
Sensitive information in licensing applications (“SILA”):
These provisions in the Bill are designed to ensure that the level of detail in premises licence plans that are available for public inspection at Licensing Authorities and which may be of use to those with hostile or terrorist intent will not be available moving forward.
How this works in practice is still to be worked out, but the idea will be new applications may have two licence plans.
One with the detail that would be expected in a licensing application, and the other a bare shell plan, which would be held by the Licensing Authority for public inspection but doesn’t contain any information that might be of use to terrorists.
Licensing Authorities will not be required to conduct a wholesale review of the existing plans on their register and neither, I imagine, will standard tier premises be required to assess whether their existing plans need to be amended or removed (unlike enhanced tier premises and events).
Practical points and timeline:
There are updated Martyn’s Law fact sheets on the Government’s website and a continually updated Martyn’s Law webpage on Protect UK. There is also a dedicated page on the Bill here.
The fact sheets are particularly useful and cover scope, requirements, responsible person, regulator, sanctions, and the reasonable expectation of attendance.
Guidance from the SIA and from the Secretary of State will follow in due course.
Timeline:
The Bill went through its Report Stage and Third Reading in the House of Commons on 9 December.
Various amendments were made, mainly to tighten up the wording.
It had its First Reading in the House of Lords on 10 December and is due its Second on 9 January 2025, with a ‘gentle word of encouragement’ from the Minister to the Upper House to recognise the cross-party consensus in the Commons and to allow the Bill to continue its ‘smooth’ (and to date speedy) passage through Parliament.
Once the Lords have gone through a similar process the Bill will return to the House of Commons for consideration of any amendments.
It may receive Royal Assent in early 2025, coming into force later in the year.
However, the Act is likely to have two or more years’ lead time before its provisions are required to be complied with, long enough one hopes for operators to understand the provisions and plan for them.
- Andy Grimsey is a senior associate solicitor at Poppleston Allen
