The Government has introduced legislative changes over the years aimed at countering terrorism, including longer sentences for offenders and powers to implement restrictions on those who are reasonably believed to be involved in terrorism.
However, the national threat level from terrorism for the UK remains at "substantial". The Manchester Arena bombing was just one of multiple major terrorist attacks in the UK in the first half of 2017 alone. Martyn Hett was one of 22 people who was tragically killed in that attack.
Martyn's Law
The Terrorism (Protection of Premises) Bill – also known as Martyn's Law – was inspired by Martyn Hett's mother. It is intended to enhance the UK's resilience and preparedness against the evolving and diversifying terrorist threat.
The draft Bill was published on 2 May 2023 and aims to introduce mandatory requirements for owners and operators of qualifying public premises and events to take proportionate steps to reduce the risk of threat from terrorist attacks.
Qualifying public premises and events are those with public access and uses including activities such as entertainment, leisure, health care and education. They are separated into two tiers, each imposing different requirements, depending on the size of the venue:
- premises with a capacity of between 100 and 799 individuals are subject to standard duty requirements, including the requirement to undertake a standard terrorism evaluation at least annually and providing relevant workers with appropriate terrorism protection training; and
- premises and events with capacities of 800 or more individuals are subject to enhanced duty requirements. These include the requirement to carry out an enhanced terrorism risk assessment, implement reasonably practicable security measures, appoint a designated senior officer and prepare and maintain a security plan.
The new legislation will also create a regulatory framework to oversee and enforce compliance with the requirements. This includes a register of qualifying premises and events, investigatory powers, civil sanctions, restriction and contravention notices and criminal offences.
Current status of the Bill
The Bill was mentioned in the King's Speech on 7 November 2023 and was intended to be passed this year. However, the government's legislative programme was brought an early close due to the decision to call a general election. The Bill was not included in the 'wash up' of legislation that was still in progress.
This casts some doubt as to whether the Bill will be enacted and, if so, in what form. A change in government may mean the duties that are intended to be applied to owners and operators of qualifying premises are amended.
What does this mean for directors and their insurers?
Martyn's Law will create potential liabilities and exposures for directors and officers within organisations that are subject to the enhanced duty requirements in two main ways.
Firstly, the draft Bill specifies that the designated senior officer, who must be a director or senior officer of the organisation, is responsible for ensuring that the security plan is prepared, maintained and implemented and that the regulator is notified of any material changes to the plan or the premises. Secondly, the draft Bill provides for individual liability for senior individuals where their organisation commits an offence and does so with their consent, connivance or neglect.
Directors and officers who fail to comply with their duties are at risk of regulatory investigation, civil claims and criminal prosecutions. For the most serious cases, they could face up to two years imprisonment.
This is likely to lead to increased claims under D&O insurance policies. Typically, cover will be available under such policies for defence costs and claims arising from 'wrongful acts' committed by directors and officers in their insured capacity. However, a number of common exclusions may limit the cover available or preclude cover entirely.
Information relating to compliance with Martyn's Law, including results of terrorism risk assessments, details of security plans and measures and the identity and qualifications of designated senior officers are likely to be of high interest to Underwriters at placement. Policyholders will also be obligated to disclose any changes to their premises or events that could affect the risk profile or the capacity threshold.
See 'Protect Duty Draft Legislation Published: What You Need to Know' for more information on Martyn's Law and the impact on other sectors.
