Clarity needed over scope of UK’s new Protect Duty under Martyn’s Law, say lawyers

A draft bill designed to reduce the threat of terrorist attacks has undergone scrutiny by a committee of MPs who say they are unconvinced that it would make a difference and have proposed numerous changes. It’s an issue we covered in this programme last week. The Draft Terrorism (Protection of Premises) Bill aims to place a duty on qualifying public premises or events to take certain steps to deter and minimise the threat and impact of terrorism to the public. Health and safety specialists Hannah Burton and Jonathan Cowlan explained how the new Protect Duty will work and its impact on employers. 

We are returning to this to hear more from Hannah and Jonathan about how this proposed legislation may change in the months ahead, the challenge of complying with it and how it will be enforced. So, key question, will HR have a role in helping the business get ready for it?: 

Hannah Burton: “Yes absolutely and I think, as with a lot of draft bills, we're still uncertain in legal terms what is actually coming. We've got an idea now of what the government is thinking, but certainly something is coming and that communication piece from HR, and briefing the staff that this is going to affect, should be done at the earliest possible opportunity, I would say, so it’s on everyone's radar so it doesn't come as a surprise when you start saying to employees, okay, you've now got this additional set of training to do, the health and safety team, you've now got an additional risk assessment to do. I would say that being as prepared as possible is the whole purpose of this draft bill anyway, being prepared for terrorism, so be prepared within your business for when it comes to fruition.”

Joe Glavina: “What’s your final message to HR professionals watching this?”

Hannah Burton: “I think my final message or take away just would be preparation. There's no harm in preparing for something. Although it isn't legislation yet it certainly is going to be something that is going to affect them and their business and their team and collaboratively they can raise awareness of it already. Whether that's with the health and safety team or the employees that they think it's going to affect. So yes, I think that would be my final message really, we are in the early stages, but certainly having it on your radar is preferable.”

Joe Glavina: “Jon if I can come to you. The Home Affairs Committee has recently finished its pre-legislative scrutiny of the bill and they've expressed some concerns. In fact, they have a long list of issues with this bill and say it has not been well thought out on many different levels. What do you make of that?”

Jonathan Cowlan: “I think it's understandable. One thing I would say is I think the committee has done a good job in terms of the range of issues they've looked at and the evidence they considered. I think it's always going to be difficult with something like this to target it well enough to achieve its aims and, as you refer to, some of the things the committee have brought up. So, for example, is capacity the right way of looking at these things, and the proportionality of response expected when you're dealing with capacities of 100? So village halls immediately springs to mind with that type of thing, and even for the enhanced premises, on a capacity basis, 800 isn’t that great. So, proportionality of what's expected and the impact that could have on, particularly, voluntary organisations running events and wanting the legal responsibility for that. I think other angles that you would also consider there are the competence to do risk assessments and then who will be actually carrying those out because that's certainly going to be a different type of risk assessment than is currently being done and guidance is awaited on the enhanced risk assessment detail. I think as well as that you've got training concerns where you're looking at training as specified within the draft bill. Well, to what standard? Who can supply that? What level of training are you going to need and how will that training actually happen? Will it be ‘hands on’ for things like first aid or will it be online training? There's no real detail included on that and, as you’ve probably picked up, certainly for the enhanced premises, there's concern about, well, will this draft legislation actually help prevent things that have happened in the recent past and there was certainly some debate around that from the expert evidence that was given.”

Joe Glavina: “We still don’t know how the new duties will be enforced and there are still lots of unknowns. What’s top of your list for clarification?”

Jonathan Cowlan: “Well, you did mention it. We have to touch on the subject of enforcement. There's a regulator mentioned although there's no detail on who that may be and, again, that was something that the committee brought up as a concern for clarification but when we look at the types of sanctions available they will be criminal sanctions. So, things like contravention notices, so making people put things right where they're not of an adequate standard and, for the standard premises, the smaller ones, fixed penalty fines of up to £10,000, and when you get to the enhanced premises you're looking there at potential fines of up to £18 million, or 5% of worldwide turnover, whichever is the greater. So, that’s a pretty big chunk of cash, I think you'd agree, and how the regulator is going to operate in that sphere, and whether it be national regulator or regional one, there's nothing there. So, again, that is another area that's key for clarification I think.”

The Home Affairs Select Committee published its latest 42-page report on 19 July and we have put a link to that in the transcript of this programme. As the committee’s report makes clear, employers caught by the bill will be given an opportunity to give feedback and raise any concerns they have, after which the bill will progress to its first stage in the House of Commons and we will be tracking that closely for you.

LINKS
- Link to Home Affairs Select Committee Report on the Terrorism (Protection of Premises) draft Bill