Protect Duty: What does this new duty mean for owners and operators?

The improvement of safety and security at public venues has been a significant concern of the government, particularly following the terrorist attacks seen in the UK since 2017. In light of this, the government has now published proposals on the new “Protect Duty”.

By the proposed introduction of this new Duty, the government intends to set out a legal framework for “publicly accessible locations” to ensure preparedness for, and protection from, terrorist attacks.

The consultation is to run for 18 weeks until 25 July 2021 and views are being sought on:

• who the Duty should apply to

• what will be required of stakeholders

• how compliance should work.

Which venues are likely to be affected?

A “publicly accessible location” is defined as any place to which the public or any section of the public has access (on payment or otherwise) as of right or under express or implied permissions. 

These locations would therefore extend to a wide variety of everyday locations including:

• retail stores

• shopping centres and markets

• high streets

• sports stadia

• parks, beaches, public squares and other open spaces

• schools and universities

• places of worship.

The proposal is that the Duty would apply to:

(i) owners or operators of publicly accessible venues with a capacity of 100 or more (e.g shopping centres, cinemas and sports stadia),  or temporary event locations within defined boundaries (such as outdoor festivals);

(ii) large organisations employing 250 staff or more that operate at publicly accessible locations including organisations with a number of outlets, with a  capacity of 100 or less, across a wide geographical footprint, where there is significant and/or regular public footfall on a routine or daily basis.  High street retailers, supermarkets, entertainment chains,  newsagents, chemists, betting shops and petrol stations could all fall within this category; and

(iii) public spaces  where boundaries are undefined (e.g town and city squares, pedestrianised areas and public parks). 

What might a Protect Duty involve?

For public venues and large organisations, the government considers that owners and operators should be required to:

• use available government information and guidance to consider terrorist threats to the public and staff at locations they own or operate

• assess the potential impact of these risks across their functions and estate and through their systems and processes; and

• consider and take forward “reasonably practicable” protective security and organisational preparedness measures (which could involve, for example, staff training and planning for how to react in the event of an attack).

The Consultation document helpfully includes some best practice examples of security considerations and mitigations at different types of organisations, to demonstrate that the threat and risk impacts had been considered and appropriate mitigations investigated and implemented, or at least, plans put in place for implementation. 

The government has taken pains to emphasize that its intention is not to impose an unreasonable or disproportionate costs burden on affected organisations, though costs implications will vary depending on factors like the location and the nature of the venues affected.

The hope is that for many organisations and venues, the requirements of a Protect Duty would entail minimal new costs. This is because many have already undertaken, or are currently undertaking significant work, to consider appropriate security measures, systems and processes not least as a result of Covid-19. 

There will be instances where proportionate security measures would entail more significant mitigation requirements, such as implementing measures for appropriate access control or reducing the risk of vehicles as a weapon of attack. As those measures will entail financial cost to plan, design and implement, a reasonable time would need to be allowed to plan and progress such measures within a business.

How would compliance work?

The most efficient way of demonstrating compliance with the Protect Duty is considered to be through risk assessments, which would specify:

• the range of threats considered
• the steps taken to mitigate the threat
• the steps taken to prepare for and/or respond in the event of attack

• if steps have not been taken, the reasons why.

The assessments would need to be recorded and retained by venues and organisers and reviewed periodically to respond to changes. 

An inspection regime (assessed either remotely or by a third party agency) would be needed to oversee compliance, using evidence-based risk assessments. In practice this could involve providing completion certificates for staff training courses, or evidence of installation of physical security measures such as installation of door locks and roller shutters.

The government plans that the inspections could also offer an opportunity to provide specific support and advice to help improve protection and preparedness. 

How would compliance be enforced?

It is envisaged that an enforcement model would be developed which gives inspectors the capacity to provide advice and guidance on risk assessment and appropriate mitigation or requests for necessary improvements.  If these were not taken forward, enforcement options could include notice of a deficiency or enforcement action, with persistent breaches being punishable by fines rather than imprisonment.

Will these proposals be welcomed?

The Conservatives committed to improving the safety and security of public venues in their 2019 General Election manifesto; a commitment which has culminated in the publication of these  proposals on the new Protect Duty. As Robert Gardener, Hogan Lovells’ Director of Government Affairs notes: “The detail of any draft legislation will depend on the results of the consultation. However, from a policy perspective, there is broad agreement for legislation in this area. Victims’ groups have been campaigning for this for years now, and there is little doubt that improved measures will help to keep the public safe. But there is also a strong political driver behind this move. Security experts have warned about the ‘siege mentality’ of responding to the threat of terrorism; the denying of liberty and the spreading of fear is actually doing the job of the terrorists for them. The government is alive to this, and is keen to embed preventative measures in much more of a steady and unnoticeable way: protection without detection. That is why venues need to be part of the approach, and that is why parliament is unlikely to resist the draft legislation.” As such, these new proposals could be finding their way into the statute books fairly swiftly!

Authored by Anita Zacharias and Robert Gardener