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Published 13 January 2023
The new year sees fresh details provided on the anti-terrorist Protect Duty legislation and the UK Resilience Framework.
There is a good chance that, in the week before Christmas, two important government Press Releases flew under the radar of many interested parties. On 19 December, the Prime Minister announced further details around the Protect Duty, providing new information on how the UK’s resilience to terrorism is to be stepped up. On the same day, the Cabinet Office published a new Resilience Framework to strengthen how the UK prepares for and responds to emergencies.
We have been eagerly waiting for further information on the Protect Duty ever since it was included in the Queen’s Speech in May 2022, following publication of the Summary of Responses and Home Office Response to the Consultation in January 2022. The Press Release on 19 December confirmed that draft legislation will be published in Spring 2023 and further details were included in the Martyn’s Law Factsheet, in tribute of Martyn Hett, who was killed alongside 21 others in the Manchester Arena terrorist attack in 2017.
It is immediately apparent that there has been a subtle change in approach. Originally, the proposal was that the duty should apply to owners and/or operators of publicly accessible venues with a capacity of 100 people or more. In addition, the second proposal was that the duty should apply to large organisations employing 250 staff or more that operate at publicly accessible locations. This could therefore include organisations with a number of outlets with venue capacity below 100 people, such as high street retailers, newsagents, chemists and petrol stations.
The latest information suggests that the Bill will now follow a tiered model with a three stage test: capacity, eligibility and qualifying activity.
On capacity, a ‘standard tier’ will apply to locations with a maximum capacity of over 100 people. These locations will need to undertake low-cost, simple yet effective activities to improve preparedness, such as training, information sharing and completion of a plan to embed practices.
An ‘enhanced tier’ will focus on high-capacity locations of 800 or more people, which will also be required to undertake a risk assessment to inform the development and implementation of a thorough security plan. Subsequent measures may include developing a vigilance and security culture and implementing physical measures such as CCTV.
Secondly, premises will need to meet the eligibility requirement. Eligible locations are either a building (including collections of buildings used for the same purposes, such as a campus) or location or event (including a temporary event) that has a defined boundary, allowing capacity to be known.
Finally, the location will need to carry out qualifying activities, including entertainment and leisure, retail, food and drink, museums and galleries, sports grounds, public areas of local and central Government buildings (such as town halls), visitor attractions, temporary events, places of worship, health, and education.
So, in addition to the new enhanced tier, it is clear now that events such as outdoor music and literary events and fairs may fall within scope.
There are some exclusions from the duty. These include locations where transport security regulations already apply; and those that are vacant over a reasonable period or are permanently closed. Those with a large floor space and low occupancy in practice (like warehouses and storage facilities) as well as offices and private residential locations, will not be in scope. All places of worship will be placed within the standard tier regardless of capacity, except a small group across all faiths that charge tourists for entry and/or hire out the site for large commercial events.
Further guidance is already available at ProtectUK, a new online platform developed by the National Counter Terrorism Security Office, Home Office and Pool Re.
Our thought leadership has for some time been flagging the need for collaboration. As commented by Professor Watchman in our Unlocking the Potential of ESG report in September 2022: “If we don’t have government, business and civil society all rowing in the same direction, we are not going to be able to achieve anything.”
It is interesting then to see the 19 December Press Release describe this Framework as “officially making resilience a national endeavour for the first time... A new ‘whole of society’ approach to emergency planning encourages individuals, businesses and other organisations to play their part in building resilience across the UK.” The risks outlined expressly include terrorism, as well as extreme weather and pandemics.
The Framework is guided by three core principles: shared understanding of the civil contingencies risks we face; focus on prevention and preparation; and a whole of society approach.
Action plans are then set out under six key themes: Risk, Responsibilities and Accountability, Partnerships, Communities, Investment and Skills. Structurally in Government, it introduces a Head of Resilience and Resilience Directorate, a new National Resilience Academy and an annual statement on resilience.
The Framework also overarches a number of other projects underpinning resilience, with specific mention being given to the Net Zero Strategy and Energy Security Strategy; Climate Change Risk Assessment and National Adaptation Programme; National Cyber Strategy and Supply Chains Resilience Framework.
The Protect Duty clearly provides a further example of these core principles in practice. What we now need is some of the finer details, especially around enforcement and how duties will dovetail where there are multiple parties involved. The new Protect Duty is certainly high up on our New Year list of topics to watch.
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Olugbenga Dansu, Jack Reynolds