Head of Retail & Consumer | Head of Risk Advisory
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The world watched in horror in May 2017 as a terrorist attack at Manchester Arena claimed 22 lives.
In response to tireless campaigning from the parents of one of the victims, Martyn Hett, the UK Government will legislate to impose a specific duty on the operators of premises and events that attract significant numbers of people, to identify and mitigate the threat posed by terrorist activity.
This 'Protect Duty', which will be introduced by The Terrorism (Protection of Premises) Bill is more commonly known as "Martyn's Law."
The Bill will establish a tiered model for premises, linked to the activity that takes place at premises (or at an event) - and its capacity.
Larger premises will fall within the 'Enhanced Tier.' A further consultation on what 'Standard Tier' businesses will need to do has just been published.
There is some way to go before the scope of any "Protect Duty" is finalised however, and before guidance is issued about how affected businesses may ensure compliance.
In our view, it is sensible for retailers to now consider the capacity of their premises and in particular the capacity of publicly accessible areas, including where there is outdoor seating.
However, retailers should be wary of any business purporting to offer training and advice on "how to comply with Martyn's Law." The Home Office would acknowledge that we are not at the stage where the regulatory framework is sufficiently clear for such training to serve a useful purpose.
The latest developments, and a fuller analysis of relevant considerations, is set out below following a useful discussion briefing with the Home Office and the British Retail Consortium (BRC) in recent weeks.
Retailers will likely be familiar with the outline details:
To be in scope:
The Bill will establish a tiered model, linked to the activity that takes place at premises or at an event and its capacity:
This tier will see additional requirements placed on high-capacity venues in recognition of the potential catastrophic consequences of a successful attack. This will apply to premises and events with a capacity of 800 or more individuals, for example, live music premises or events, theatres, and department stores. Those responsible for an enhanced duty premises or qualifying public events must:
The Government states that it does not wish the regulatory burden to overpower businesses or be disproportionate. To be in scope the premises must have a capacity of between 100 and 799. The link to the newly published consultation can be found here.
Please note the consultation will end on 18th March 2024.
A notable feature here is the requirement in the Draft Bill for Standard Tier premises to complete a standardised template have been scaled back: now such premises are required to have “reasonably practicable” procedures in place, were an attack to occur.
Similarly, the requirement for businesses operating in the standard tier to provide specific training is no longer applicable. However, providing meaningful training on workplace risk is part and parcel of discharging current health and safety duties. It seems likely to us that workplace training will have to evolve to incorporate the risk of terrorist activity for in-scope businesses.
At a recent meeting organised by the British Retail Consortium with the Home Office team responsible for deciding how capacity will be calculated, we learned the following:
It is therefore going to take some time before the scope of any Protect Duty is finalised.
The Home Office is proceeding on the basis that the calculation for the ‘100’ or ‘800 plus figure will be:
There is some way to go before the scope of any "Protect Duty" is finalised and before definitive Guidance is issued about how in scope businesses may be able to comply with such a duty.
We would advise retailers to actively consider the capacity of their premises and in particular the capacity of publicly accessible areas and whether there is any outdoor seating at the premises. Consider too the number of staff on duty at any one time and who work 'on the shop floor.'
Also consider the nature and extent of any existing health and safety policies that may address counter terrorism.
Contact us, or the Home Office directly with any questions you may have, or if you would like to share with them details about your business that might cause you difficulty if the Home Office determines that 'maximum capacity in accordance with Regulations' is the way capacity will be calculated here.
Given there is still a long way to go before Martyn's Law becomes law with associated guidance on how to comply, retailers should be wary of any business purporting to offer training and advice on "how to comply with Martyn's Law."
The Home Office would acknowledge that we are not at the stage where the regulatory framework is sufficiently clear that training on how to prepare for Martyn's Law would serve any meaningful purpose.