Non-Executive Director of Counter Terrorism for Carlisle Support Services, Nick Aldworth, shares his view on the government’s response to the UK Protect Duty consultation.
After the government’s representative from the Homeland Security Group (formerly the Office for Security and Counter Terrorism) gave their final evidence to the Manchester Arena Inquiry, the ensuing, ferocious questioning perhaps summarised how many felt about the lack of policy clarity.
However, understanding what the Martyn’s Law campaign originally asked of government, and what has subsequently come to light from the Manchester Arena Inquiry, I think it is possible to give an informed view of how it might develop and what might be slowing things down.
The good news is that a majority of respondents agreed with the need for the law. In fact, seven out of ten respondents agreed, or strongly agreed, with the principle of the legislation being applied to publicly accessible locations (PAL). Helpfully, the government’s document provided a definition:
‘A publicly accessible location is defined 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. For clarity, public places/venues are 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.’
The document makes a distinction between places and spaces and I hypothesise that this distinction will enable a desegregation of spaces from places in legislative terms. In other words, I sense that spaces, per-se will not be included in the act, unless they become a temporary event location, or are in some other way boundaried. The Manchester Arena Inquiry placed larger venues in a different category of concern and I think we can expect that to be reflected in the legislation. Most people agreed the capacity threshold for inclusion in the law, should be 100 or more.
In addition, an important application proposed was that the law should apply to all companies with 250 or more employees. There were several suggested exemptions, notably within the faith sector, but these didn’t appear to have substance. Interestingly, the faith sector has benefited from government funding to help protect places of worship from terrorism and it would seem contradictory to now suggest that they are not at risk.
When it came to accountability, most respondents believed that the owners and operators of PALs should be accountable to the law; this suggests the possibility of an accountable persons within a company needing to be identified as they are for health and safety or fiduciary matters.
I think the security industry as a whole now has an opportunity to come together and reconfigure themselves with a code of practice that stops the race to the bottom line and requires clients to commission the right number of resources, with the right level of skills and at a price that will guarantee the provision is met. Could a Protect Duty be the spark that ignites reform of the security industry and the professionalisation of its workers?
The starting point of security should be a threat assessment followed by an assessment of how vulnerable your place or space is to that threat.
A challenge for government will be how to legislate the concept of proportionality. An example of this is CPNI’s guidance on Hostile Vehicle Mitigation (HVM) which introduces a sliding-scale of effectiveness (and by default cost) and has allowed owners and operators to make more informed choices about how to reduce vulnerability from such threats. However, not all mitigations are so scalable and I’m far from convinced that proportionality will be effectively articulated.
The value of information, and using it to enhance security, was seen as important in respect of protecting the public. Training, awareness, campaigns and guidance were all seen as providing value. Within this grouping was the inclusion of ‘tools’, something that needs further consideration. I’m confident that the new law will include the need to engage with training and guidance. Not only is it easily enacted and already available, but government, policing and the private sector have been investing in Protect UK which will soon become the centralised library of authoritative information.
There is a great emphasis within the report on engagement with existing statutory bodies, such as local authorities and emergency services, in the protection of public spaces, rather than places. I sense that the application of the duty to spaces will be too difficult to achieve in the same way as places, but a general duty of collaboration and/or consultation on security issues might be applicable.
I sense that the application of the duty to spaces will be too difficult to achieve in the same way as places, but a general duty of collaboration and/or consultation on security issues might be applicable. However, this could also be expanded into applying a legal requirement for local resilience forums to consider the risk of terrorism, something that is currently only discretionary.
Views were sought on how the law might be enforced. It appears that most of the responses were tactical, with the highest number of respondents suggesting that the main compliance measure should be training. Other responses included spot checks, annual visits and self-assessment. It is clear from the brevity of this section that inspection and compliance are presenting government with some difficult questions.
There was a mixed response about using civil fines as a sanction for non-compliance, with a majority being against this. In fact, a significantly larger group of respondents proposed alternative or additional views; this included a qualified use of fines and education as an alternative to enforcement. There seemed to be little support for criminal prosecution.
I think it is unlikely that the government will build a new inspectorate. If this legislation is to be created in 2022, there is neither time nor money to create one but you cannot establish a new law without some sense of how it will be enforced. I suspect that in its early years, the law will only be regulated when ‘default’ of it comes to light.
Government support and work with partners
The government clearly sees itself as being responsible for providing authoritative advice and guidance. This is their most important role. Most respondents seem to agree, with 74% proposing the use of a digital service to deliver this.
Among the other responsibilities that it was suggested government should have, was the funding of mitigations where there was perceived to be a sector-specific cost impact. There is a precedent for this with the places of worship fund, but I suspect such fiscal support will remain very limited.
There was a lot in this section of the consultation, but most of it seems to validate the simple concept of the digital service and provides helpful feedback on how that is likely to be most effective.
The government has committed to bringing in the legislation, but not the timetable for doing so. As we hurtle towards the fifth anniversary of the 2017 terrorist attacks, we should keep pressure on the government to act sooner, rather than later. There must never be another Manchester Arena attack, nor another attack where so many opportunities to stop it were missed.
This article was originally published in the March edition of Security Journal UK. To read your FREE digital edition, click here.