‘Martyn’s Law’ back in Parliament but further guidance needed

Martyn’s Law is back in parliament and is undergoing scrutiny once again. The Terrorism (Protection of Premises) Bill had its first reading on 12 September and has cross party support and is expected to become law at some point next year. We’ll take a look at the changes made to this hugely significant piece of health and safety legislation since the draft bill was published on 2 May, along with explanatory notes.

The Bill responds to a commitment originally made by the previous government in the aftermath of the Manchester Arena bombing.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 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 are enhanced tier premises or “qualifying public events.”  
 
The previous government had published a draft bill for scrutiny. Amidst concerns about the practicalities and proportionality of the draft bill’s provisions, changes were proposed in a consultation published before the recent general election. That consultation aimed to address the concerns by amending the requirements in relation to what were described as standard tier premises. In tandem with publication of its bill last week, the Labour government published the results of that consultation, the responses to which are said to have been reflected in the new bill.

So, let’s get a view on what has changed. Earlier I spoke on the phone to Hannah Burton who has been tracking the bill’s progress:

Hannah Burton: “We’ve had a look through the documentation that's been published and from our review we can see that the standard tier is something that has changed from the draft bill and that now states that, instead of it being 100 or more individuals present, the new wording is that it is reasonably expected that from time to time 200 or more individuals may be present, and I think that will come as a welcome change to the standard tier premises. I think it is still a little bit unclear, though, because what is reasonably expected? What is time to time? Those are things that can be subjective and, therefore, hopefully in the guidance there will be some further information that will give our clients some clarity on that.”

Joe Glavina: “We now know that the new regulator is going to be the Security Industry Authority and we’re told that at some point they will be publishing some guidance.”

Hannah Burton: “Yes, you're right, there is some guidance that will be published and that will be very welcomed. As far as we're aware, after the Royal Assent businesses will be given some guidance from the new regulator, the Security Industry Authority. There may be guidance that comes before that - we're not really too clear on the timescales as yet - so it will be a matter of keeping an eye out for that guidance but it certainly will be coming and that, hopefully, will answer a lot of the questions that we still have around this, including things in relation to the training elements of this, how that may be required by the regulator, what might be required in regard to that, the types of risk assessments that they're looking for, things that currently are unclear within the draft legislation.”

Joe Glavina: “You touched on training, Hannah. Earlier in the year I interviewed Jon Cowlan on this subject and he said training will be crucial and that it will need to be tailored.”

Hannah Burton: “Different businesses will have different risk factors and the people that know the business the best are those within it, and particularly dependent upon which tier the business falls in, those risk factors will be very different. The level of involvement with this piece of legislation will be very different. So a one-size-fits-all training regime isn't likely to be viable here. It will need to be tailored to the business, to those particular risk factors, and to the risk assessment and mitigation that has been assessed as being relevant to that business. So, yes, I completely agree a tailored training approach is what is required.”

Joe Glavina: “How will this new duty when it arrives, marry up with existing health and safety obligations. That seems to be one of the big uncertainties around this new duty.” 

Hannah Burton: “Yes, it is and businesses have those health and safety obligations, they haven't gone anywhere, they will remain and they will be as prevalent in the business, and should be, as always. So, this is in addition to that, and one can't take out the other. They should be alongside one another but how in reality that's going to work is still unclear. Risk assessments are common practice in health and safety and this risk assessment, whether it's going to essentially enhance current health and safety risk assessments, whether it might be an add on, whether it will be standalone, but both of them will need to coexist together. So yes, it's going to be somewhat of an intricate decision as to where and how it's placed within the current requirements into health and safety, and these additional requirements.”

Joe Glavina: “Final point, Hannah, which is on what employers should be doing now. We are told there is going to be a period between Royal Assent and this legislation actually being implemented by businesses and that’s to be around 24 months. So, given that we're not even at Royal Assent yet, it means we're still a long way off this duty coming into force. So what should employers be doing now if anything?”

Hannah Burton: “What we would say is it's always best to get on the front foot of these types of things and new implementation of law. We know now that this isn't going to change in that the draft bill is back before parliament, it’s going to go through the administrative process that it needs to, the scrutiny, so we now know the wording. What we don't know is the additional guidance and some of the practicalities of how this should, or is hoped, will be implemented. But what I would say is that it needs to stay on the radar. We can't think that it’s a few years away and therefore we shouldn't do anything. What we absolutely should be doing, and what we would advise businesses to do, is keep an eye on it and when the guidance starts to come through, which it will do, when the regulator starts producing that, that's the point where you can really get ahead of it. You can start deciding who in the organization is going to be responsible. What might our risk assessments look like? Where do we even fall within this in terms of categorisation of tiers, etcetera? Who is best placed to deal with it? All of those things can be decisions that can be made without it being fully in force, I think.”

The bill had its first reading on 12 September and will have its second reading next week, on 14 October. We’ll be tracking developments closely so do watch this space.