On 10th January 2022, the Minister for Security and Borders at the Home Office, Damian Hinds MP, released a report summarising the findings from the public consultation for the proposed Protect Duty legislation that will require owners and/or operators of Publicly Accessible Locations (PALs) to take appropriate and proportionate measures to protect the public from terrorist attack.
Background
Since 2017, the United Kingdom has suffered a number of low-sophistication terror attacks in public spaces, in addition to the devastation of larger-scale atrocities such as that at the Manchester Arena and London Bridge. Read our review and assessment of Sir John Saunders’ report on the Manchester Arena Inquiry here.
Currently there is no legislative requirement for organisations to consider or employ security measures to counter terrorists at the vast majority of public places. However, following the Martyn’s Law campaign by Figen Murray, the mother of Martyn Hett, who died in the Manchester Arena attack, the Government committed to improve safety and security at public venues.
As part of its commitment, the Home Office launched a public consultation to consider how the security services, public and private sectors can work together to develop proportionate security measures to improve public security. It also sought to examine the current preparedness of those responsible for PALs were a terrorist attack to happen.
A PAL is defined 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.
Consultation Objectives
The consultation ran from 26th February 2021 to 2nd July 2021 and received over 2700 responses from both public and private sector organisations. The purpose of the consultation was to utilise feedback from private and public sector organisations to identify what appropriate and proportionate legislative security measures might look like and what support would be required from Government. Respondents had the opportunity to answer 58 questions spread across four thematic sections:
- Section 1: Who (or where) should legislation apply to?
- Section 2: What should the requirements be?
- Section 3: How should compliance work?
- Section 4: How should Government best support and work with partners?
Summary of findings
The proposals, as outlined in the consultation document, appear to have significant support with over 71% of respondents agreeing that PALs should take measures to protect people from attacks, including ensuring staff are trained to respond appropriately. It was evident that clear definitions of roles and responsibilities would be necessary, and that any requirements were proportionate to the size of the location and the number of employees, with more stringent emphasis on larger locations or those with greater numbers of staff.
Whilst there was an even split regarding the establishment of an inspectorate, the consultation strongly identified the need for clear advice and a better understanding of what any self-assessments should look like. To enable this, the Home Office, the National Counter Terrorism Security Office (NaCTSO), supported by Pool Reinsurance, are developing a new interactive digital platform called Protect UK due to launch publicly this year. The platform will provide advice, guidance, e-learning and other helpful content for all organisations, not just those captured by the Protect Duty, as to how to mitigate terrorism risk.
Key observations
What criteria would best determine which public venues Protect Duty should apply to?
- Whilst acknowledging the vast range of views received, the Minister confirmed the Government’s commitment to take forward Protect Duty legislation. Although no timeframe was given, it is anticipated that a Bill will be presented to Parliament later this year. • It is apparent the Government believes that a “joint” effort across the public and private sectors was needed to combat terrorism. Some respondents questioned whether those responsible for public places should play a role in public security at all – as opposed to the security services, the Police, and other emergency services. It seems that the Government’s aim is to deliver the greatest outcomes from the Duty by expanding the deterrence effect (the Protect and Prepare pillars of CONTEST1), by improving risk management at potential target locations enabled by effective partnerships with business. It appears that the Government recognises that it is essential that a range of tools, guidance and support is made available to the public to ensure that the “ask” of those in scope of the Protect Duty is understandable, deliverable and should be consistent.
- 71% agreed, or strongly agreed, with the principle of the legislation being applied to PALs and that proportionate measures to protect the public from attacks should be taken at these locations. Again, 71% of respondents also agreed that responsible venues and organisations should train and prepare their staff to respond appropriately in the event of a terrorist attack.
- The single most significant feature that defined which places or locations should be included in the legislation appears to be the number of people able to access a site, followed by a range of other criteria including risk-based assessment, geography, type of events, and average (rather than maximum) capacity.
What capacity level is appropriate to determine venues in scope of Protect Duty?
- The vast majority (84%) agreed the capacity threshold should be based on locations where 100 or more people can gather. Where a venue or location is shared, 82% responded that all parties would have to work together to meet the requirements of the duty.
- Whilst there might be exemptions to the Duty where specific legislation already exists, predominantly in the transport sector, 58% believed that there should be no other exemptions. Others, however, believed exemptions could be made based on risk assessments, or for rural locations and community, voluntary or faith-based venues. There was a consensus that larger organisations (250+ employees) should be included, with very few considering micro-organisations (1-9 employees) to be within scope.
- When it came to accountability, most respondents (67%) believed that the owners and operators should be accountable in law. This would suggest that there may be a requirement to clearly define those individual roles and responsibilities, particularly amongst event organisers, and those at senior level within venues and organisations. This is likely to lead to organisations being required to review where the responsibility lies, especially if services are being contracted or locations leased.
- A recurring subject throughout the consultation and its responses was concern that the Protect Duty may negatively impact organisations financially. The findings have been fed into the Home Office’s proposals and a Duty Impact Assessment is to be completed to consider financial implications further, in tandem with any wider impact.
- Views were sought on what an inspectorate might deliver and how it might enforce the law as well as how to sanction non-compliance. Generally, there appears to be an even split between a body that will issue fines in order to ensure compliance versus an advisory and support body. To establish an inspectorate in little under a year would be extremely difficult and costly for the Government. Options open to the Government might include a long implementation period, self-certification and focus only high threat PALs requiring formal inspections.
Frequency that respondents review their terrorism risk assessments
- There was an even split response as to whether respondents undertook Counter Terrorism (CT) risk assessments. One could assume that it would be likely, given that approximately half of respondents already undertake some form of assessment, that legislation would sensibly include the need to undertake a terrorism risk assessment. It should be noted that that throughout the report, it was clear that respondents wanted Government support and direction on the correct template or format for such assessments which, in turn, would ensure a consistency of approach.
- There was a mixed response regards the range of current risk mitigation practices, with the majority undertaking some form of liaison with Police or other security professionals. As the Duty will likely capture thousands more places than is currently the case, it is highly unlikely the Police Counter Terrorism Security Advisors (CTSAs) would be able to meet the demand for support. However, 78% indicated that they would use the new digital service, Protect UK (the Pool Re, CTP and NaCTSO collaboration). Businesses would use this to access relevant advice and training to understand emerging terrorist threats, to better understand risk management processes and to access CT training resources.
- Critically, there was significant and repeated demand for sector or location specific, rather than generic, advice. It was also suggested that standards should be established for CT risk assessments and advice and that there should be some form of Government regulated and approved security professionals qualification and accreditation scheme.
The duration of the consultation and the number of responses received underline the complex nature of the proposal and will likely have given Home Office officials food-for-thought. The fact that little has been said yet regarding actual requirements suggest that the Government recognise that this duty, whilst widely supported by the private sector, must be deliverable. There is clearly a demand though for clarity regarding who is responsible as well as what is appropriate and proportionate.
Next steps
Whilst the consultation report did not set out any detail on what the Duty will require or when the legislation will be introduced, it is clear that the Government has the backing for tougher measures to protect the public.
It recognises that for the Duty to be implemented easily and without any undue financial or resource burdens, a collective effort will be required between the public and private sectors but also that the private sector will require support and clear guidance on what is appropriate and proportionate. To ensure that this is achievable, the Home Office will now continue to liaise with stakeholders as they draft the legislation which may go before Parliament later this year.
As details regarding Protect Duty become clearer, we will continue to provide updates including webinars and workshops to enable discussion with subject matter experts from Government, UK CT Policing and the insurance and security sectors. Our SOLUTIONS consultants are available to provide guidance on the current and emerging terrorism threat as well as risk management support. For more information, contact [email protected]
The full government consultation report can be found here.
Find more information about the implications of Protect Duty for businesses here. For any other terrorism risk management advice visit our Risk Management page here.
For any further questions about this blog, please contact the Pool Re SOLUTIONS Team at [email protected].
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