Protect Duty Consultation Part One - Why it is vital for the events industry to respond

The enquiry into the bombing of the Ariana Grande concert at the Manchester Arena in 2017 found that the public outcry for the eponymous ‘Martyn’s law’ was justified and the Home Office has decided that it should be in the form of the proposed Protect Duty. The consultation is open until 2nd July 2021. In Part One we will look at the context and why it is important for the events industry to respond. In Part Two, next week, we will explore the detail contained in the proposed duty.

 No sane person is going to disagree with the notion that terrorist threat needs to be acknowledged and managed and, after all, the events business has a clear vested interest in doing so. The question here is the extent to which event companies and venue operators can be obligated by law to quantify, assess and manage that risk. The government has answered that question in part with the proposed Protect Duty. Many have queried whether this law is necessary and arguably the accountabilities enshrined in the Health and Safety at Work Act already impose a duty to prevent foreseeable harm. That consideration, however, is entirely academic as the decision for a new law has already been made; there is, though, still an opportunity to influence the shape of the new law by engaging in this consultation process. For example, one of the many proposals is that any venue or public space with a capacity over 100 would be subject to the law. The consultation allows respondents to comment on whether this should be a higher or lower figure or indeed whether some other criteria should be used.

 It is vital that event companies and event professionals consider how this proposed law could play out in practice. There have been many comparisons with health and safety but this is not necessarily helpful. For example, a ladder, is either fit for purpose or not, in which case it presents an unacceptable risk. A fire exit is either clear and accessible or blocked, in which case it is unacceptable. In both cases these are things which can be easily identified and dealt with. Terrorist threat cannot necessarily be quantified in this way. Unsafe behaviours be they deliberate or accidental are largely predictable. How, though, do you rationalise a terrorist threat rooted in a death cult ideology with no clear allegiance to any organisation that can radicalise a teenage schoolchild in their own bedroom via the internet? Event companies can own and control the health and safety risk but they cannot easily assess the security threat posed by terrorists and those disposed to random acts of extreme violence in terms of their intentions and capabilities. Event companies need to think carefully how they would, in practice, assess the threat and then prepare and execute the proposed legal requirements. This begs the question as to what compliance would look like. Presumably the only way to demonstrate it would be to prepare a security plan. This then raises the issue as to the competency required to draft such a plan and who then determines whether or not the security plan is in fact compliant?

 Legal context is important here. The proposed new duty is not criminal law like health and safety law where non-compliance can result in prosecution and a criminal record for those found to be culpable. This places an important limit on the legal liabilities of those with duties under this law. The proposal is for a new offence for non-complaint organisations based on civil sanctions such as fines. That is not, however the same as Common Law where the employer is liable by default for the actions of employees. It is quite possible, but not entirely clear from this document, that individuals could be vulnerable to being fined. The document is peppered with comments about this being a ‘light touch’ regulation with requirements that are ‘reasonable’ and ‘proportionate’. The government intention here is clearly to nudge organisations into thinking more and doing more about the potential for a terrorist attack in a public place rather than to bludgeon the industry into compliance with the full force of criminal law and that should be welcomed. Again, however, respondents should think very carefully about how this is likely to be applied in practice, whatever the original intentions. There are numerous cases in UK health and safety law where the application of the law far exceeded the original more limited intentions. 

 Recent experience with some local authorities with the application of Covid laws does not inspire confidence that application will necessarily be light touch or proportionate. There are already reports that as pubs are now able to open for outdoor custom, some local authorities are using the strictest interpretation of ‘outdoor space’ with walled gardens being designated as being enclosed even though for all practical purposes they are clearly outdoor spaces. This mindset will surely seek to restrict rather than permit events with any new law. Tight drafting of this law should not leave room for enforcement authorities to over enforce or to embellish the requirements as they so often do.

 The proposals in the document for enforcement and the creation of ‘inspectors’ to enforce also needs very careful scrutiny by event companies and event professionals. The pandemic has made public safety experts of us all and the accusation that an event organisation is failing in its Protect Duty to the public by putting profit before safety from terrorism is arguably far more powerful in the social media age than any new civil or criminal law could be. 

 The UK has a cadre of serious-minded and competent security professionals who are able to give proportionate advice on how to deal with a range of security threats but it is open to question as the extent that this professional group will be able to service the demands of the new law given that they are all currently gainfully employed. How will this law be interpreted and applied by the army of instant experts that will no doubt emerge to fill the gap and seek to profit from it? 

 The events industry has developed, over time, a delicate eco system by which, outside of elite sports, health and safety is largely self-regulatory and enforced by private (non-government) specialist event safety professionals. Government agencies rarely get directly involved other than oversight by local authority SAG’s or where there is a significant problem. The necessary expertise exists within the industry and all parties understand the risks and how they are managed and by and large this results in effective and proportionate health and safety which works. The sudden introduction of new Covid laws last year offers an insight as to what happens when new law for public safety is introduced without a consultation process. Granted, the situations are not exactly comparable but it is worth considering what the effect of the new law would be, once enacted, if there were a spate of terrorist attacks at events. How would it then be applied? 

 In Part One the intention has been to do enough to whet the appetite of event operations professionals to engage seriously with the process of consultation. This means downloading the consultation at the link below and for event companies to appoint a project team to look at the detail. The consultation is open to anyone who downloads the content. This includes the security profession, local authorities, the legal profession, insurers and of course the general public including anyone who was directly involved in the Manchester tragedy who doubtless will have followed this process closely. Each will have their own valid view from their personal or professional perspective. It is vital therefore that the events industry engages fully with this process to ensure that there is a balanced view to shape this new law when it comes into force.

 www.gov.uk/government/consultations/protect-duty