Government to introduce a 'Protect Duty'

The Government has confirmed that it intends to develop legislation “at the earliest opportunity” to introduce a ‘protect duty’ which is likely to create a legal requirement for those owning, operating or responsible for certain publicly accessible places to take steps to protect the public from terrorist attacks at those locations.

The Government has proposed that the duty could apply in three main scenarios:

1. to owners and/or operators of “publicly accessible venues” that have a capacity of 100 persons or more;
2. to large organisations (employing 250 staff or more) that operate at “publicly accessible locations”;
3. to organisations that work at “public spaces”.

Education institutions own and operate from places which are likely to be caught by the proposals.

The Government consultation on the duty (which ran from 26 February 2021 to 2 July 2021) defines a ‘publicly accessible location’ as “any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”.  The consultation also refers to ‘public venues’ (“permanent buildings (e.g. entertainment and sports venues” or temporary event locations (such as outdoor festivals) where there is a defined boundary and open access to the public”) and ‘public spaces’ (“open public locations which usually have no clear boundaries or well-defined entrances/exit points (e.g. city centre squares, bridges or busy thoroughfares, parks, and beaches”).   

Precisely when and how the duty would apply to each of those types of locations is yet to be seen.

The consultation proposed a duty to take reasonably practicable protective security and organisational measures, such as using information and guidance to consider terrorist threats, assess the potential impact of these risks, and implementing staff training and planning.    

Highlights from the consultation responses include:

• 71% of respondents agreed or strongly agreed that those responsible for publicly accessible locations should take appropriate and proportionate measures to protect the public from attacks at these locations.
• 71% of respondents agreed that responsible venues and organisations should prepare their staff to respond appropriately in the event of a terrorist attack.
• When considering the venues to which a duty should apply, the capacity of a venue was the most popular criterion, with the majority indicating that 100 persons was the appropriate threshold.
• “Very strong views” were expressed on the need for accountability within the Duty.
• Just over 50% of respondents were in favour of an inspectorate to support compliance.
• There was an even split in respondents who were supportive of the use of civil penalties to ensure compliance.
• The financial implications of a Duty was “a recurring subject throughout the consultation and its responses”.
• The Government has confirmed that it intends to develop legislation “at the earliest opportunity” to introduce a ‘protect duty’ which is likely to create a legal requirement for those owning, operating or responsible for certain publicly accessible places to take steps to protect the public from terrorist attacks at those locations.The Government has confirmed that it intends to develop legislation “at the earliest opportunity” to introduce a ‘protect duty’ which is likely to create a legal requirement for those owning, operating or responsible for certain publicly accessible places to take steps to protect the public from terrorist attacks at those locations.74% of respondents felt that a single, digital service where you could access relevant material, advice and training in one place would be useful to help to comply with the Duty.

Education institutions may already undertake risks assessments that include consideration of the threat of terrorist attack and as there seems to be momentum from the Government on this issue, there could be merit in reviewing those arrangements.  

The suggestion that compliance will be supported by an inspectorate differs from the monitoring of the ‘Prevent duty’ (imposed by the Counter Terrorism and Security Act 2015) where – for education providers – compliance is monitored by the Office for Students/Ofsted.