A further consultation about aspects of the ‘Protect’ duty which will be introduced by ‘Martyn’s law' began on 5 February and will run for six weeks only.

The Home Office had, before Christmas, indicated that it intended to seek views on adopting a more proportionate approach to complying with the so-called ‘Protect’ duty that the Bill will introduce. The Bill is also widely known as ‘Martyn’s law’, named after Martyn Hett who was among the 22 people killed in the Manchester Arena bombing in 2017. The Home Office press release, which links to the latest consultation, reflects that.

To recap, the Bill seeks to introduce a positive legal duty on those responsible for publicly accessible premises to take steps, as far as reasonably practicable, to minimise the risk of harm in the event of a terrorist attack. The duty comprises two tiers, based on the capacity of the premises:

• the standard tier will apply to premises with capacity between 100 and 799 people, 
• the enhanced tier to those with capacities of 800 or more.

When the draft Bill was first published in spring 2023, the enhanced tier duty was based on bespoke risk assessments and mitigation plans being prepared and maintained by dutyholders. The standard tier was to be based on following a standardised terrorism risk assessment and implementing standard training measures for all premises caught in the standard tier. It is estimated that nearly 300,000 premises fall within this tier, of which around half are managed by micro business, over 10% managed by small businesses and by medium business respectively, and just over 20% by large businesses.

The new consultation marks a deliberate change in the government’s approach to the standard tier only. 

During pre-legislative scrutiny, the Home Affairs Select Committee heard evidence that the standard duty as initially conceived risked imposing significant costs and burdens on small businesses and community groups in particular. The Committee pointed out that:

"The cost on standard and enhanced tier premises of implementing these proposals, estimated by the Government, is disproportionate to the level of threat, particularly  or those small and medium-sized premises captured in the standard tier… Given the potentially serious consequences, this is a significant concern."

The Home Office consultation recognises these concerns and, although the Bill has not yet been amended, the government’s reframed approach to the standard tier of the duty is that it will impose a legal obligation that dutyholders will, so far as reasonably practicable, put in place procedures and measures aimed at reducing harm to the public and staff on the premises in the event of an attack. It is also worth noting that the consultation confirms that places of worship, regardless of capacity, will be deemed to be in the standard tier (unless they charge for admission, such as in the case of many large cathedrals), as will nurseries and both primary and secondary schools, but not places of higher or tertiary education.

The consultation admits that the previous approach was “too directive and inflexible” and very clearly confirms that balance and proportionality will be key principles in the standard tier:

“Those responsible for Standard Tier premises need not do anything that is outside their control, or that would impose disproportionate burden on their finances or resources. This balancing exercise between the reduction of risk of harm to staff and visitors and the costs of implementation is familiar from other regulatory regimes such as Health and Safety, which require the taking of reasonably practicable steps.”

These new requirements for the standard tier are designed around outcomes as opposed to processes. In that vein, the previous requirement for terrorism protection training will no longer be part of the proposed new duty but instead the need for instruction or training will vary by particular premises, following the ‘reasonably practicable’ approach.

It is highly likely that the government’s new approach will be welcomed by prospective dutyholders and by those who provide risk management advice and insurance products to this cohort. The detail is of course not clear at this stage, but the new approach in principle now grounds the standard duty in the more familiar regulatory concepts of reasonable practicability and proportionality. We would encourage those readers in those industries as well as in the retail, hospitality, education and faith sectors to engage with the consultation and the government’s revised approach.  

Progress towards making the new duty a legal requirement is, however, on the slow side. The consultation states that there will be a “significant period” after Royal Assent to prepare for implementation, likely to be “at least 18-24 months”, meaning the duty might not take effect until will into the second half of 2026 or beyond – which would be heading towards the tenth anniversary of the Arena bombing in May 2027.