SHE Matters: The Protect Duty

The new Protect Duty Bill was announced in the Queen’s Speech on 10 May 2022, following the Government consultation which ran in 2021. It was confirmed that the new Protect Duty legislation will become law in the 2022-23 Parliamentary session. In the meantime, organisations should start to consider their role in protecting the public from terror threats and how the new legislation will affect their business.

1. Aim of the Protect Duty

There have been an increasing number of terrorist attacks in public spaces in the UK – most notably, the Manchester Arena bombing. Currently, there is no legislative requirement for the vast majority of organisations to consider or employ security measures to help prevent such incidents occurring. The devastation caused by the Manchester Arena bombing has provided impetus for much needed legislative change.

The Protect Duty aims to enhance national security by introducing new security requirements for those in control of certain “publicly accessible locations” to ensure preparedness for and protection from terrorist attacks.

A new framework will be established that requires those in control of certain publicly accessible locations to consider the threat from terrorism and implement appropriate and proportionate mitigation measures. It will also introduce an inspection and enforcement regime, which will seek to educate, advise, and ensure compliance with the Protect Duty.

2. Who will the Protect Duty apply to?

The definition of “publicly accessible location” is wide and is likely to encompass a vast range of locations including sports stadiums, music venues, pubs, nightclubs, shopping centres, supermarkets, schools, universities, hospitals, places of worship, transport hubs, open air venues, sports facilities, restaurants and cafes.

It is anticipated that the Protect Duty will apply to venues with a capacity above a certain threshold (a capacity of 100 or more was considered in the Government’s consultation).

However, it is also anticipated that the Protect Duty will apply to large organisations with 250 employees or more that own or occupy publicly accessible locations. This includes organisations with multiple premises with regular public footfall, such as chains of betting shops, takeaways, cafes, petrol stations and chemists. There may be no equivalent capacity threshold for such large organisations.

Where there are multiple dutyholders in respect to one venue, such as a shopping centre, the Protect Duty is likely to require dutyholders to consult and cooperate with one another to ensure that suitable security plans are agreed and implemented.

Even if your organisation or venue falls outside the scope of the Protect Duty, the Government has emphasised that all locations should consider implementing the security measures, in a way that is proportionate to reflect the risk.

3. What will the Protect Duty require from organisations?

Owners and operators of relevant publicly accessible locations will be required to use available information and guidance provided by the Government and the police to consider terrorist threats to the public and staff at locations that they own and/or operate.

Such organisations will be expected to consider and implement “reasonable” security measures with the aim of preserving life. These measures could include training staff on how to identify and respond to threats, implementing robust security policies, and/or introducing physical safety elements such as barriers.

The Government has emphasised that these measures do not need to be expensive. Specialist physical security products are only likely to be installed at larger sites and prevention is seen as a combination of physical and behavioural interventions “deployed in a complementary manner”.

While measures that organisations are expected to take will be proportionate to the size of the organisation and footfall, larger organisations should anticipate much more onerous requirements. It is clear that the scale and complexity of a dutyholder organisation is going to be particularly important in determining the action and the control measures an organisation should take.

However, regardless of the size of a dutyholder organisation, suitable risk assessments and training will be a core requirement for all organisations to which the Protect Duty applies.

We are anticipating Government guidance on the Protect Duty to provide more clarity on what is expected of dutyholders. Guidance is set to be “clear and detailed”, “sector-specific” as appropriate and will highlight dedicated points of contact for dutyholders.

4. Consequences of non-compliance

Given the severe and devastating impacts that could occur as a result of non-compliance with the Protect Duty, the Government has proposed that a new offence is created for organisations who persistently fail to take reasonable steps to reduce the potential impact of terrorist attacks.

The Government has proposed an enforcement regime, with penalties primarily based on civil sanctions (such as fines) for organisations in breach of the Protect Duty. This is considered by the Government to be an appropriate framework for a regime that is seeking to encourage more effective organisational security cultures, rather than a system of criminal sanctions.

We anticipate that the guidance will dictate larger fines for larger originations, as we have seen in other regulatory regimes.

All organisations, regardless of size, should begin to consider how the Protect Duty will impact their organisation and start taking steps to assess the threat from terrorism, train staff and implement appropriate security measures to keep the public safe from potential terrorist attacks at their venues