Martyn’s Law misses parliamentary ‘wash up’

Rishi Sunak’s decision to call a general election has brought an abrupt end to the UK government’s legislative programme and one of the casualties is Martyn’s Law. As the BBC reports, the Terrorism (Protection of Premises) Bill was not included in the so-called ‘wash-up’ of last-minute legislation to be rushed through parliament and it means the uncertainty around employers’ new duties to protect their premises continues. We’ll speak to a health and safety expert about the current situation.

A reminder. This is the bill designed to protect premises from the threat of terrorism and was one of 21 Bills mentioned in the King’s Speech on 7 November, signalling the Government’s intention to pass it into law at some point in 2024. It follows recommendations made as part of the inquiry into the Manchester Arena attack in 2017 which killed 22 people. Also known as Martyn’s Law following a campaign by the mother of 29-year-old victim Martyn Hett, one of the people killed in the bombing, the bill introduces a ‘Protect Duty’ on those responsible for publicly accessible venues and events to help reduce the threat to the public from terrorist attacks. The Bill places a statutory duty on qualifying premises and events to take proportionate and reasonable measures to improve public safety and protect against the threat of terrorism. The legislation could affect as many as 650,000 businesses in the UK, although the scope will look different dependent on the size of your business or event.

The scope of the duty depends on the size of the premises and there are two tiers. ‘Standard tier’ premises would have a capacity of 100-799 people whilst ‘enhanced tier’ would cover capacities of 800 or more. On 5 February, the government opened a consultation on the requirements imposed on standard tier premises. That closed on 18 March and we are wating for the government’s response.

The fact the government has not yet responded to that consultation is one of the reasons they gave for not including it in the wash-up. They said unfortunately the bill simply had not progressed sufficiently to be able to rush it through in time. However, there is little doubt that it will be passed at some point, even if Labour wins power. As the BBC reports, reassuring Martyn Hett’s mother, Shadow Home Secretary Yvette Cooper has said a Labour government would introduce Martyn's Law in the next Parliament.

So let’s get a view on the current situation. Earlier health and safety expert Jonathan Cowlan joined me by phone from Glasgow. I put it to Jon that the uncertainty around these new laws is a concern for employers who want to plan ahead. So what should they do?

Jonathan Cowlan: “It is, and it's a very good question and an obvious one for people to ask and you can understand why, given the nature of the subject has been dealt with. I think the issue is you've got to make sure that it is workable in practice, not just as a piece of law. I think that's important and one of the overriding things, for me, and one of the reasons that the standard tier has gone out to consultation again, is about aligning with comparable regimes. So there's already existing health and safety requirements for, say, sports stadia, and licencing requirements for certain things and those things aren't always dealt with by the same enforcing body and it's important that it's clearly understood how the new law will allow you to produce documentation to fit in with existing law and the new law and I think practically that's an important thing so you're not reinventing things and doing them over again and, also, that it's clearly understood by organisations that have to comply with the law, what it looks like. I don't think we know at this stage, even though you've got two tiers, whether that will be similar for different types of activity, or things that are currently regulated differently, and I think the guidance to go with the new law will be really important in that regard and need some industry input.”

Joe Glavina: “Given all the uncertainty surrounding this, Jon, what are you saying to clients on this?”

Jonathan Cowlan: “We have been talking to clients to make them aware. This is definitely coming, I don't think there's any doubt about that, but raising the general awareness of the types of issue they will need to think about and that's a wide range of clients. So it may be things like sports stadia and event venues, but it will also include public buildings, and architects, and thinking about mechanisms to prevent people getting into premises, and things like that in terms of protective, physical measures. So it's a lot wider than just dealing with what you've got, it's also about dealing with what you're planning to build as well. So, it's very wide ranging and reaching in terms of that.”

Joe Glavina: “Looking ahead to when the legislation is eventually passed, what training will staff need and what will that look like? What’s your advice to HR on that?”

Jonathan Cowlan: “I think careful planning and careful thinking for your specific circumstances. I mean, the consultation has moved away from a proscribed training requirement, you know, one size fits all for all relevant staff. Instead, you're looking at those responsible needing to make sure that their procedures are adequately communicated and practised by relevant staff. So again, I think that highlights the practical health and safety angle of that in much the same way you have fire emergency evacuations and dealing with things of that nature and, again, it's that reasonable practicability standard that that's going to cover. However, I think with a topic such as this, as well as the normal record keeping requirements which you can share between HR and H&S, that's fine. I think you've got to look at the effects of events as well. What are you going to do about post-traumatic stress disorder for people who may be affected by that? I think the training would need to encompass clearly communicating what's available for people coming into that arena because that's a separate health and safety risk for employers because that's on their undertaking and you've got to think about that in that regard. So when you're talking about compatible regimes, you can see it can quite easily go into other areas where you need joined-up thinking, but you've got to understand what your legal responsibilities are.”

Joe Glavina: “Moving on to enforcement, Jon, how will the new laws be enforced? Do we know who the regulator will be?

Jonathan Cowlan: “No, in terms of the regulator. It’s the normal range of options that we're looking at, typically, with health and safety law, and the criminal side so when we're looking at those things it's typical sanctions that that we would all expect but what we don't know is the exact nature of what that will look like. You've clearly got the standard premises, and then you've got the enhanced duties. What does that look like? You would expect enhanced duties to have more rigour around them in the way that you would expect things to be done. Will they be considered, in the round, to be greater in terms of the need for those measures, and possibly greater penalties if things don't go as well compared with standard tier? I don't know what that's going to look like but clearly the nature of what we're dealing with here, and the public perception, means they will expect this stuff to bite if things do go wrong. I think organisations need to be mindful of the change with things like sentencing guidelines, and health and safety fines and penalties and what we've seen there in the last eight or so ears, in terms of increased penalties. That's where it really sits, I think, for organisations. It has to be taken seriously.”

Joe Glavina: “You’ve been involved in health and safety for over 35 years so you’ve seen a lot of new duties imposed on employers in that time. How big a deal is the new ‘Protect Duty’ in your view?”

Jonathan Cowlan: “I think it's very big, (a) because of the topic, (b) because it's in the public eyesight very much and, plus, frankly, the way in which social media and news works these days - it's out there straightaway when it happens. Also, there's a lot of interaction between duty holders under this legislation, how you deal with emergency services, how you get licences for various aspects. This is one aspect of the overall planning for events and use of public premises but it's stretching a bit further than it has done in the past in terms of its scope, and its capture, particularly with the numbers you're looking at, I think, at standard level. One thing that I think's important is the nature of the risk and the possible terrorism angle For me it isn't always by size of venue, or size of premises, or number of people. It can be a target that somebody wants to get at that is attending a relatively small event, possibly and people may see that as a different type of way, rather than going to a big event like the Manchester arena and using that. I don't know, and that's the thing, it’s a job to predict how people are going to work from a terrorism perspective and that that's really what you're doing here and that’s a new skill. That's not a mainstream health and safety skill to predict that. So dealing with the authorities that are used to dealing with that and getting good guidance from them about what you should consider is going to be a really important practical thing when organisations are looking at taking steps to comply.”

Regardless of the outcome of the general election, the next development will be new government, of whatever colour, reporting back on that standard tier consultation and as soon as that happens we will come back to this. In the meantime we’ve included a link to the consultation paper in the transcript of this programme for you.