UK venue operators to face new protect duty in terrorism fight

Out-Law News | 13 Apr 2021 | 11:00 am | 3 min. read

The UK government is consulting on plans to introduce a new law requiring venue operators to consider the risk of a terrorist attack and take proportionate and reasonable measures to prepare for and protect the public from such an attack.

The consultation (59 page / 467KB PDF) forms part of the government’s manifesto commitment to improve public security in the face of ongoing terrorist threats. Echoing changes already seen in the wider safety and health sphere, the proposals aim to encourage the development of an improved safety culture, placing those seen to be in control at the forefront of improvements.

Bridges Kevin

Kevin Bridges

Partner, Head of Health and Safety

It will create a parallel system with enforcement intended to be civil in nature, but with the possibility of significant reputational damage in the event of a breach

Under the proposals outlined in the consultation document, those responsible for a publicly accessible location will have a “protect duty”. The protect duty would apply to certain publicly accessible locations, widely defined in the consultation paper as “any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”.

The protect duty will apply to public venues holding 100 or more people, and large organisations with more than 250 employees and operating publicly accessible spaces. Owners and operators of these spaces will be required to undertake regular assessments of the terrorist threat at their locations and adopt reasonably practicable mitigating measures. They will also be expected to keep up to date with threat guidance available from the government, police and other security agencies in carrying out these measures.

Safety in public spaces, such as parks, beaches and town squares, is also under consideration.

Health and safety expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law, said the proposals built on the culture of compliance encouraged in health and safety matters, emphasising the need for a holistic approach to compliance if it is to yield the desired results.

The consultation said security must be viewed as a system, “a combination of physical and/or behavioural interventions deployed in a complementary manner to mitigate key risks”. The government said getting “people” aspects right, for example by developing a security culture, encouraging vigilance, and providing appropriate and effective training, was at least as important as physical security measures.

“While the proposals have been met with approval from many owners and occupiers likely to be in scope of the new rules, clear guidance will be required if the laudable aims are to produce real results; for example, whilst organisations are well versed in ensuring they are up to date with current health and safety guidance, the government will have to ensure that for terrorism threats that advice and guidance is easily accessible and up to date,” Bridges said.

The government is proposing to enforce the protect duty through a combination of advice, enforcement notices and civil penalties, rather than through criminal sanction.

Bridges Kevin

Kevin Bridges

Partner, Head of Health and Safety

If the current proposals are to succeed any new legislation must be clear in its requirements, and be resourced properly to ensure a level playing field

Bridges said: “The protect duty will complement other existing duties on employers and those in control of public places that we are more familiar with under the common law and health and safety legislation. Criminal consequences in the form of fines will remain a possibility where breaches of those duties expose people to a risk and prosecutions are brought under the Health and Safety at Work etc Act 1974 or the Corporate Manslaughter and Corporate Homicide Act 2007.”

“Risk assessments are already a common feature in many duty holder’s risk management systems, so the protect duty is unlikely to impose additional new burdens on duty-holders. It will create a parallel system with enforcement intended to be civil in nature, but with the possibility of significant reputational damage in the event of a breach,” Bridges said.

The government said it was aware it would need to work with partners to consider bespoke support for venue operators and there would be a need to work with the security industry to deliver and support solutions helping owners and operators to comply with the new duty.

It said it also wanted to consider how the protect duty could incentivise rather than enforce compliance, for example through a reduction in insurance premiums. However the government said it was mindful to ensure that the duty did not inadvertently create unintended consequences or costs.

In its consultation the government said that organisations at the lower end of the criteria thresholds would only have to provide assurance that they had taken “simple low – or no – cost preparedness measures” such as ensuring that staff are trained how to respond to potential attacks, and that there are plans in place for an organisation’s response to different attack types.

“Even these measures, however, may require specialist input and the government must ensure that there are sufficient specialist advisers assigned to the project to be able to guide those within scope,” Bridges said.

“Many organisations already look at potential security threats as part of their ongoing risk assessments. If the current proposals are to succeed any new legislation must be clear in its requirements, and be resourced properly to ensure a level playing field. This is particularly so given the breadth of venues likely to be in scope,” he said.