On 2 May 2023, the Government published draft legislation titled the Terrorism (Protection of Premises) Bill. It has been created in response to findings made by the public inquiry into the 2017 Manchester Arena bombing which concluded that more needed to be done to ensure public safety at certain large-scale events and premises.
The draft Bill will now be subject to pre-legislative scrutiny by the Home Affairs Select Committee and is expected to start its passage through parliament this year.
New obligations on businesses and property owners
The Bill imposes obligations on a wide range of premises, where the primary use is for: entertainment and leisure, retail, food and drink, nightclubs, museums and galleries, sports grounds, hotels, healthcare, bus and railway stations, public areas of local and central Government buildings, visitor attractions, temporary events, places of worship and childcare or education. The Act will not apply to private residential premises, offices, or open-air spaces which can be accessed by the public without permission.
The proposed law adopts a tiered model aimed at ensuring the burden placed on businesses and property owners is proportionate to the capacity of the premises. The classification of a premises does not depend whether the premises is at a heightened risk of terrorism. The duty will only apply to locations with a maximum capacity of over 100 ("standard duty premises") and "enhanced duty premises" are locations with a capacity of over 800 people (with the exception of certain places of worship, childcare and education establishments). Also subject to the duty are "qualifying public events", where a premises which would not otherwise be caught by the legislation and has capacity for over 800 individuals will be accessible to the public, or a section of the public, for a particular event.
The obligations imposed by the new law include requirements for all premises and events to which the legislation applies to:
- register the premises or event with the regulator;
- create and maintain documented risk assessments which set out the likely risks, the prevention and response measures in place, and how this will be communicated to staff; and
- provide regular terrorism protection training to employees and/ or volunteers.
For qualifying events and enhanced duty premises, there are additional requirements to implement security measures, which must include access monitoring, response procedures, security plans and information security measures. The steps to be taken should be proportionate to the premises/ event and to the resources available to the person implementing these measures.
The Bill requires the person who is responsible for the premises or event to identify a designated senior officer whose details will need to be notified to the regulator. Where the person responsible for the event or property is a body corporate, the responsible person must be a director or senior employee. If one or more qualifying premises are contained within other qualifying premises the Act will apply in relation to each of the premises. The draft legislation makes clear that any person who has control of the premises will be required to comply with the obligations, so cooperation between property owners, landlords, tenants and licensees will be essential.
Offences and enforcement under the proposed legislation
A new regulator, yet to be identified, will provide guidance on the Act and will oversee an inspection and enforcement regime allowing it to conduct investigations, issue contravention and restriction notices which require certain steps to be taken within a specified timeframe and to impose substantial penalties. Although any penalty must be appropriate and proportionate to the contravention, the maximum fixed penalty which the regulator may impose is set to be £10,000 for standard duty premises and, for qualifying events or enhanced duty premises, the greater of £18 million or 5% of the wrongdoer's worldwide revenue. This is reminiscent of the hike in penalties (including unlimited fines) imposed as a result of the implementation of the UK Definitive Sentencing Guidelines for health and safety, food safety and corporate manslaughter offences back in 2016.
The draft Bill includes offences for non or insufficient compliance with the duties it creates, including failure to comply with a contravention or restriction notice. An offence will also be committed where false or misleading information is knowingly or recklessly provided to the regulator. This offence may be punishable by a fine or imprisonment for up to two years, again like the current health and safety regime.
Once the Bill is finalised, its full implications will need to be carefully considered by property and business owners, as well as landlords, tenants, licensees and those organising or hosting large events. As highlighted in an earlier article which considered the Government's legislative proposal for this Bill, action by the UK's Counter Terrorism Policing unit (CTP) has already started to reveal the potential impact of this legislation on businesses and property owners. Some businesses and qualifying premises have already received letters from the CTP notifying them that they should take proactive steps to assess their premises' security arrangements and consider implementing enhanced measures where necessary.
As it is currently drafted, this new law will impact a broad spectrum of businesses. Anyone who expects they may be subject to the legislation should consider a proactive and preventative approach. This includes seeking early advice about how to prepare a robust and proportionate response to meet the expected obligations.