Consultation on 'Martyn’s Law' published but questions remain

The consultation (49 pages / 518 KB) seeks the views of those responsible for smaller premises considered “standard tier” under the draft  Terrorism (Protection of Premises) Bill (56 pages / 581 KB) (the draft  bill), published in May 2023 and known as ‘Martyn’s Law’ after Manchester Arena bombing victim Martyn Hett.

The draft bill places a statutory duty on those responsible for qualifying premises and events to take proportionate and reasonable measures to improve public safety and protect against the threat of terrorism. It introduces a new health and safety duty on employers.  Differing requirements are imposed depending on whether the premises fall within the definition of standard tier or are enhanced tier premises or “qualifying public events”.   However, concerns have been raised about the practicalities and proportionality of the draft bill’s provisions, in particular in pre-legislative scrutiny by the Home Office Select Committee.

The government has sought to address at least some of those concerns in proposed changes set out in the consultation.

The proposed changes aim to ensure that requirements for standard tier premises are proportionate and clear, whilst ensuring that they achieve their primary objective - to implement simple procedures which could reduce harm and save lives in the event of an attack. According to the government “(t)hose responsible for such premises will be required to undertake simple, yet effective, activities to improve protective security and preparedness.”  They are intended to focus on outcomes, rather than processes, and the development of tailored and effective plans and procedures.

Standard tier premises are those with a capacity of 100 or more individuals, including employees.  In addition, the consultation states that they must be “wholly or mainly” used for one or more specified purposes.   Public parks, public gardens and recreation or sports grounds are not within scope of the requirements where no payment is taken for entry, nor any check carried out. 

Places of worship will be standard tier irrespective of capacity – unless they charge a fee for entry.  Similarly, it is proposed that premises that are used for childcare or primary, secondary, or further education (but not higher education) will also fall within the standard tier even if their capacity is 800 or over.

Those responsible for standard tier premises, essentially those with control of such premises, must notify the regulator that they are responsible for qualifying premises.  The regulator is still to be identified. They must also ensure that they have put in place procedural measures “that could be expected to reduce, so far as reasonably practicable, the risk of physical harm to individuals at the premises in the event of an attack”.  The consultation states that these will include procedures for evacuation, invacuation, lock down and communication.

In a change from the provisions of the draft bill, the consultation proposes that there will be no requirement to complete a specified form (the ‘Standard Terrorism Evaluation’) for standard tier premises nor to ensure that people working at the premises are given any specific training.

However, as part of putting in place the procedural measures outlined, workers will need to be sufficiently instructed or trained to carry them out effectively.  The method of training will depend on the nature of the premises, for example its staffing.  The consultation states that guidance will be available on ProtectUK and will support users in further understanding the types of terrorist attacks that could occur at their premises.  In addition, the regulator will be expected to support and guide duty holders.

Failure and non-compliance may result in compliance notices being issued and monetary penalties for standard tier premises.  However, there will be no criminal offence for failing to comply with a compliance notice in the standard tier.

The government makes it clear that the regulator will be expected to issue guidance to assist in compliance. The content of this guidance will be crucial.

Kevin Bridges, health and safety expert at Pinsent Masons said that “questions remain as to what exactly amounts to ‘measures that could be expected to reduce insofar as reasonably practicable the risk of physical harm to individuals at the premises in the event of an attack’.  Risk assessments will be required but who will carry them out?  Will specialist assessment of the potential for attack be required, for example”. Terrorism is defined by reference to the Terrorism Act 2000.

Bridges added “Careful consideration will also have to be given to the interaction of new obligations imposed by the draft bill and existing obligations.  For example, how will the requirements for a standard tier premises risk assessment fit with obligations under overarching health and safety obligations, or with specific obligations imposed on licensed venues? Guidance will need to be coordinated”.

Fiona Cameron, health and safety expert at Pinsent Masons, said: “Whilst the government states that there will be no requirement to give specific training to standard tier workers, it is clear that training will remain as an expectation and obligation as part of the development of effective plans and procedures.  Clarity is still required not only on the content and standard of such training but by whom it should be delivered and to which workers”.

The consultation is open until 18 March 2024. To ensure those affected have sufficient time to understand, plan and prepare for the legislation, there will be a period of 18-24 months between royal assent and the implementation of it. Those affected are encouraged to make sure their voice is heard by responding to the consultation.