Propel Legal Briefing - The Protect Duty – a start but not the end by Chris Grunert

First appearing for Propel Hospitality in their Legal Briefing on June 14th 2023

The Protect Duty – a start but not the end by Chris Grunert

In May of this year, we saw the government publish its Terrorism (Protection of Premises) Draft Bill, which will also be known as Martyn’s Law in tribute to 29-year-old Martyn Hett, who was killed alongside 21 others in the 2017 Manchester Arena attack. The victims were simply enjoying a night seeing their favourite star on stage when they were murdered by a terrorist who detonated a large nail bomb outside one of the main entrances in the Arena concourse. The victims’ ages ranged from eight to 51 and they were fatally wounded shortly after the end of the Ariana Grande concert. 

The incident took place in the City Room of the Manchester Arena, which is the foyer leading to the Victoria Exchange complex. This meant the area where the bomb was detonated was a conduit to the car park as well as being linked to a pedestrian tunnel that led to the railway station and tram platform. Everyone was attempting to leave the Arena when the tragedy took place. It was a cruel, callous and calculated attack that will never be forgotten.

During the hearings in 2018 of the Intelligence and Security Committee of Parliament into the attack, counter-terrorism police told the committee that a Protect Duty was “not something that seems likely at the moment in law”. The Manchester Arena inquiry has now completed its thorough work – hoping to determine exactly what happened, and then to work out what must be done to prevent it from happening in the future. The inquiry made clear recommendations that a Protect Duty was needed and recognised it was now possible for a law to be put in place.

Martyn’s mother, Figen Murray, and many others campaigned tirelessly for a law of this kind. Whether this draft Bill is all that they fought and hoped for is not for me to say, but we can welcome this kind of action within our industry and understand our duty to protect the general public – which ties in with our licensing objectives.

This new Protect Duty law will mean the locations where people are most likely to congregate, including pubs, bars and arenas, must have measures in place to prevent and protect against terrorist attacks. This will no longer be in place just as an expectation of good practice, it is to be legislated as an official duty. While this is still a pending Bill, we can expect the law to come into play in the near future as it has received plenty of cross-party support.

Many of the themes outlined in the Manchester attack enquiry report can now be seen in this draft Bill. They include the rulings that:

• It is necessary to continuously remind staff whose role includes being alert to terror incidents of the current national threat level and what that level means in relation to the possibility of an attack.
• Robust procedures are necessary to counter the threat of a terrorist attack. The purposes of those procedures and the necessity of following them must be understood by those carrying them out.
• Those responsible for security should be briefed at every event about the current threat level and risk of terrorist attacks.
• Any and all suspicious behaviour by event-goers or members of the public close to a venue must be noted.

It must be reported promptly so that investigations can be made and action taken, if appropriate.
The inquiry’s recommendations are a good summary of the new proposed duty.

Not all premises will be subject to the new provisions, and the level of action required to be taken is dependent on the size of the venue and the activities it undertakes. The standard tier will be applicable to premises that can accommodate 100 or more individuals, while the enhanced tier will be implemented for venues and events with a maximum capacity of 800 or more people. However, there are certain exemptions to requirements for educational institutions and places of worship.
Additionally, a premises with a capacity of under 100 can access guidance and training materials if they desire additional help to simply improve good practice. 

Schedule one of the Bill lists all of the premises that will be subject to the new duty if the public has access to the premises. The net has been cast wide and includes:

• Shops
• Food and drink premises
• Nightclubs
• Entertainment venues such as theatres, comedy clubs, cinemas and live music venues
• Sports grounds
• Recreation, exercise or leisure activities (i.e. gyms, swimming pools)
• Libraries, museums and galleries etc
• Exhibition halls
• Visitor attractions
• Hotels etc
• Healthcare
• Education establishments
• Transport hubs
• Council buildings
• Temporary public events, i.e. pop-up festivals on private land will become subject to the new enhanced duty if the capacity exceeds 800.

One clause of the Bill that is already receiving some criticism is the definition of a premises. The Bill has defined a “premises” as:

• A building, including land occupied with the building;
• Any other land that has a readily identifiable physical boundary (whether permanent or not).

But what about those events that do not have a physical fence? I can think of dozens of events hosted by community groups or the council where there is no set wall as such. Could this mean an event that does not have a boundary fence would be exempt from any preventative measures? Public events that are not held in a defined premises with a capacity of less than 800 will not be subject to the new laws (as currently proposed), so even if 799 people attend, the event is not held by law to any rulings under the Protect Duty.

The issue that creates the risk is the event, which gathers a large number of people together, making them an ideal target for an attacker, not the fence that surrounds it. The ecstatic celebrations of Manchester City’s treble winners in the streets of Manchester are just one example of an event that may be outside the scope of the Bill; although we are sure precautions were taken and risks were considered in the above example. The new Bill is now subject to scrutiny by parliament’s committee procedure. Sessions have already taken place, and this issue is likely to be addressed. 

We have seen a few businesses trying to sell “Martyn’s Law Compliant Solutions”, offering to prepare risk assessments or advice to businesses on how to create relevant policies to achieve compliance with this future law – they are, at best, educated guesses, and at worst, cynical and worthless. These approaches are often trying to take advantage of operators’ concerns regarding a newly founded law they may not be too familiar with. 

One programme I believe is worthwhile for the vast majority of teams is the ACT Awareness e-learning training – but it is likely you will already be familiar with this if your role undertakes some responsibility surrounding terror-related safety. It is currently a free tool to help the untrained and uninitiated understand the complexity of the issue at hand. You can access the course and other excellent materials at www.protectuk.police.uk/. 

The reason that this legal briefing is titled “a start but not the end” is simply that this Bill, as necessary and important as I believe it is, will not eradicate such heinous attacks. The duty is clearly intended to prepare venues with the knowledge and action steps they need if such a disaster was ever to occur. However, there will always remain an area outside of the control of a venue where attacks can take place, and in the case of the Manchester attack, this was outside the Arena concourse.

Each action to improve security in one area will, in many cases, likely displace the risk elsewhere. It is a mighty challenge to try to tackle many factors at play on a case-by-case basis. Who truly possesses the authority, skills, resources and finances to take responsibility for such catastrophic incidents? The answer may be a combination of bodies sharing these burdens. 

Chris Grunert is a partner at John Gaunt & Partners