The New Protect Duty

The consultation on the New Protect Duty, which seeks views on how to make the public safer at publicly accessible locations, ran from February 26th to July 2nd 2021.

This is what is known to date:

• It is intended that the proposed legislation will require owners and operators of Publicly Accessible Locations (PALs) to take appropriate and proportionate measures to protect the public from terrorist attack.
• A publicly accessible location is defined as any place where the public or a section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.
• Universities are publicly accessible locations and it is expected that the Act will apply to HEIs
• A particular focus will be on public venues with a capacity of 100 or more people and large organisations employing 250 or more staff that operate at publicly accessible locations
• There is currently no legislative requirement for organisations to consider or employ security measures at the vast majority of public places.

The results of the consultation may offer an indication of the government’s direction of thinking. The Home Secretary has stated that she is committed to this legislation, the essence of which has been indicated in the bullet points above. The government response to the consultation highlights issues of ‘confidence’ and areas for reflection.

Examples of questions which received an overwhelmingly consistent response were both Question 1 and Question 2.

• “Q1. Venues and organisations owning, operating or responsible for publicly accessible locations should take appropriate and proportionate measures to protect the public from attacks in these locations”
• “Q2 Venues and organisations owning, operating or responsible for publicly accessible locations should prepare their staff to respond appropriately in the event of a terrorist attach to best protect themselves and any members of the public interest.”

Both received 71% of respondents stating they “strongly agree / agree” with these propositions.

Currently “Half of respondents that operate or own a publicly accessible location currently undertake a risk assessment to consider the threat of terrorist attack. These are reviewed most commonly multiple times or once a year. Mitigating activities and measures most commonly progressed to combat terrorist threats were: liaison with police or other resource (e.g., security consultant) on threats and appropriate security measures; work to ensure security behaviours are adopted by the workforce; and staff training to raise awareness of the threat and what to do.” (Government Response Document, updated 27th January 2022, page 7).  It appears that the legislation aspires to systematise this kind of activity and ensure it becomes axiomatic throughout the defined areas of activity.

Based on the consultation one might reasonably expect a requirement for clearly defined responsibilities and roles which are allocated to identified individuals and there is likely to be some form of systemic monitoring of compliance. In turn this necessarily means the development of an inspectorate and sanctions for failure to comply. “An effective inspectorate would be a key component to oversee the effectiveness of the Duty in further improving public security, providing appropriate advice and education, and, where required, taking appropriate sanctions.” (Government Response Document, updated 27th January 2022, page 20).

This issue provides an example where respondents were almost equally divided in their opinions. Those in support viewed the inspectorate positively and thought it would be able to identify vulnerabilities and facilitate the sharing of best practice. Those who opposed considered the approach ‘heavy-handed’ and feared significant financial implications. It remains to be seen what the legislative provisions will be. Other areas of concern revolved around the issues of clarity. For example, the terms ‘reasonable steps’ and ‘reasonably practicable’ as part of enforceable legislation might be problematic.

What next?

Whatever the detail which finally emerges it appears there will be a new set of auditable responsibilities presented to Universities which will carry some form of sanction if they fail to comply. These new developments will impact both the ‘operations’ of universities as well as their insurers.

Operationally individuals with specific compliance responsibility will need to be identified and policies developed, implemented and audited. Additional questions from insurers will be raised and the cost and complexity of operating a PAL / university is likely to rise.

The legislation is likely to require organisations to complete a security risk assessment which would identify the likelihood of a range of threats, specify activities to mitigate particular threats and explain why certain countermeasures have not been taken. This upcoming legislation will almost certainly begin appearing in university risk registers and some commentators have suggested that its ramifications may have parallels with the Health and Safety at Work Act (1974). Although much remains unknown about the legislation, it may be prudent for HEIs to begin considering how it might approach planning and creating roles which would co-ordinate the institutional response to the ‘Prevent Duty’.

Further to the Prevent legislation, its success or otherwise is a subject of debate; out of the Ariana Grande Manchester concert the seeds for this new legislation were sown. The Manchester Arena is specifically referred to in the ‘Ministerial foreword’ in the Gov.uk response to the consultation. The state continues to strive to create a legislative solution to what appears to be a developing and ongoing existential threat.

The passage of time will bear witness to its efficacy:

“Like a bird on the wire
Like a drunk in a midnight choir
I have tried in my way to be free
Like a worm on a hook……”

(Leonard Cohen – Released 1969)