‘Martyn’s Law’ update published but clarity and guidance still required

The Terrorism (Protection of Premises) Bill was published in response to a commitment originally made by the previous government in the aftermath of the Manchester Arena bombing. Known as “Martyn’s Law” after victim, Martyn Hett, the bill (56 pages / 581 KB) places a statutory duty on those responsible for qualifying premises and events to implement reasonably practicable public protection procedures and/or measures, depending on the capacity of the premises. Differing requirements are imposed depending on whether the premises fall within the definition of standard tier or enhanced tier premises or “qualifying public events”.  

While the aims of the new draft bill are to be applauded, clarity is still required and further guidance to assist in compliance will be crucial.

The previous government had published a draft bill for scrutiny. However, concerns were raised about the practicalities and proportionality of the draft bill’s provisions, specifically in relation to what were described as “standard tier premises”.  Changes were then proposed in a consultation published before July’s general election, setting out to amend the requirements of these premises. 

The consultation results (38 pages /  571 KB) were published by the Labour government in tandem with the updated bill, with the latest draft reflecting the responses received. 

Under the latest proposals, the new duty will apply to “qualifying public premises” and “qualifying events”.  Qualifying public premises are essentially those to which the public have access, in relation to which “it is reasonable to expect that from time to time 200 or more individuals may be present” at the same time - the previous draft bill included premises with a capacity of 100 or more - and that are primarily used for specified purposes. Those uses are widely defined by reference to a schedule to the bill and, as before, include venues for entertainment, nightclubs, leisure, retail, food and drink, hotels, museums and galleries, sports grounds, public areas of local and central government buildings such as town halls, visitor attractions, temporary events, places of worship, health, and education.

For open air venues in scope of the proposed new duty, access for the public must be by express permission only, with or without payment.

The government has undertaken to publish guidance on a number of matters to assist those with new responsibilities meet those obligations ahead of the legislation coming into force, including on determination of use.

As before, the bill splits qualifying public premises into two tiers, with requirements applying to premises in each tier. Standard duty premises are premises with a capacity of 200 to 799, whereas enhanced duty premises have a capacity of 800 or over. The draft 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.

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.

The public capacity of premises and events will be determined in accordance with regulations made by the secretary of state.

Standard tier requirements are intended to be proportionate and clear, whilst ensuring that they achieve their primary objective - to implement simple procedures which could reduce harm and save lives in the event of an attack. 

Those responsible must take “appropriate and reasonably practicable” steps to protect against physical harm from terrorism. Whilst the steps to be taken in each case will depend in the particular premises in question, as well as the different types of terrorism which could be relevant, they are intended to focus on outcomes, rather than processes, and the development of tailored and effective plans and procedures. Guidance on such procedures will be published but the government has indicated that these will include procedures for evacuation, invacuation, lock down and communication.

As part of putting in place the procedural measures outlined, workers will need to be sufficiently instructed or trained to carry them out effectively.

Those responsible for qualifying premises and qualifying events – essentially those with control of such premises – must notify the regulator (the Security Industry Authority) that they are responsible for qualifying premises. Where there is more than one responsible person, they must coordinate with each other in complying with the bill’s requirements.

Persons responsible for enhanced duty premises or a qualifying public event must also prepare and maintain measures to reduce the vulnerability of the particular premises or event to acts of terrorism, as well as to reduce the risk of physical harm to individuals.

Such measures will include monitoring of the premises or event and their immediate vicinity; controlling the movement of individuals into, out of and within the premises or event: measures relating to the physical safety and security of the premises or event and securing sensitive information on the premises or event which could be used by terrorists.  A security plan documenting the steps taken, or to be taken must be prepared, maintained and submitted to the regulator, with an explanation of the reasoning underpinning those steps.

As before, the bill also sets out the proposed enforcement powers of the regulator – a range of sanctions and penalties for non-compliance is envisaged. 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 operator’s worldwide revenue. 

Where a compliance or restriction notice is issued in relation to enhanced duty premises or a qualifying event, it will be an offence to fail to comply with the notice.

The bill also provides for criminal sanctions for individual officers where a corporate entity commits an offence, and it is shown to have been committed with the consent or connivance of that individual. 

Whilst the bill goes some way to address concern with its previous iteration, questions remain, and the content of promised guidance will be crucial. Clearly risk assessment will be a central requirement but it remains unclear who will carry this out and whether, for example, specialist assessment of the potential attack will be required.