New 'Protect Duty' requires anti-terror measures at venues accessible to public

On 10 January 2022, the government published its response to the Protect Duty public consultation, which ran from 26 February to 2 July 2021. The Protect Duty has been championed by victims’ groups, including the Martyn’s Law campaign, which was established following the Manchester Arena attack in 2017. The majority of respondents supported tougher security measures to ensure preparedness for and protection from terrorist attacks.

Under the government plans, venues would have a legal duty to put in place security measures to protect the public from terror attacks, and it is likely that the government will introduce the Protect Duty through formal legislation.

This is a significant shift in regulation, as there is currently no legislative requirement for organisations or venues to consider or employ security measures at the vast majority of public places.

Publicly accessible 

It is proposed that the Protect Duty will apply to any publicly accessible venue capable of holding gatherings of 100 people or more, which would include:

• Public venues (such as entertainment and sports stadiums, shopping centres and tourist attractions);
• Large organisations (for example, retail chains and gyms); and
• Public spaces (parks and pedestrianised areas fall into this category).

Although the Protect Duty is not proposed to apply to offices, it is proposed for large organisations employing 250 people or more operating at publicly accessible locations. This would include organisations with a number of outlets across a wide geographical area, where there is significant and regular public footfall and engagement, and would bring high street retailers, supermarkets, chemists and petrol stations (among others) within the scope of the duty.

Key findings 

There were 2,755 responses from a variety of organisations, sectors and campaigners, with the majority supporting the government’s proposals to introduce stronger measures, including a legal requirement for some public places to ensure preparedness for and protection from terrorist attacks. 
Suggested measures include:

• Ensuring staff are trained to respond appropriately to terror incidents.
• The need for accountability, such as  clear roles and responsibilities, particularly among event organisers, and those at senior level within venues and organisations.
• An inspectorate that would identify key vulnerabilities and areas for improvement, as well as share best practice. 
• Civil penalties to ensure compliance.

No 'one size fits all'

Venues and organisations vary greatly in terms of type business, size, staffing and existing security resources, meaning there cannot be a "one size fits all" approach.

The Home Office has suggested that measures should be proportionate to a venue's size, with smaller organisations not facing the same requirements as larger ones. 

For smaller organisations, this may involve low-cost initiatives such as staff training on the nature of threats and attacks. For larger organisations, more significant and costly mitigation requirements would be expected, for example installing full body scanners.

The consultation proposes that venues and organisations record and retain risk assessments to evidence compliance with the duty. Other supporting evidence may include completion certificates for staff training courses and evidence of physical security measures.

What comes next

The government continues to engage with a range of stakeholders and other government departments as well as using the feedback from the consultation to further develop the legislation, which will be introduced to Parliament at the earliest opportunity.

To further support the public and private sector, the Home Office is collaborating with the National Counter Terrorism Security Office (NaCTSO) and Pool Reinsurance to develop a new interactive online platform, due to launch publicly this year. The site is currently undergoing user testing ahead of its formal launch. It will provide a central digital location for advice, guidance, e-learning and other helpful content. It will provide support for all organisations, not just those bound by the Protect Duty.

Osborne Clarke comment

It is advisable to start engaging with security and counter terrorism as part of any existing risk assessment/health and safety regime as early as possible.

A key question for venues and organisations will be how the proposed Protect Duty will interact with or impact on existing health and safety regulations and the legal obligation to do what is reasonably practicable to ensure people's health and safety, particularly under sections 2 - 4.

Many organisations will have little experience of considering risks around terror attacks and threats. Helpfully, the consultation proposes providing supporting government guidance that details the range of appropriate measures for organisations that fall within scope.

In the first instance, organisations and venues may find it useful to engage with the range of freely available resources on security and counter terrorism published by the government, including the Crowded Places Guidance.

The government has also developed the ACT (Action Counters Terrorism) Awareness e-learning programme designed for companies to train individuals to recognise signs of suspicious behaviour and understand what to do in the event of a major incident, helping to protect buildings, business areas and their surrounding neighbourhoods from the threat of terrorism. Over 5000 companies have signed up since its launch in 2017. The course is taken online and takes under an hour to complete.

Some of the modules covered in the training include:

• Identifying security vulnerabilities
• How to identify and respond to suspicious behaviour
• What to do in the event of a bomb threat

If you would like to discuss any of these issues further, please do not hesitate to contact the authors or your usual Osborne Clarke contact.