Protect duty consultation – LGA response, July 2021

1.1    The Local Government Association (LGA) is the national voice of local government. We work with councils to support, promote and improve local government. 

1.2    We are a politically-led, cross party organisation which works on behalf of councils to ensure local government has a strong, credible voice with national government. We aim to influence and set the political agenda on the issues that matter to councils so they are able to deliver local solutions to national problems.

 

2.1    Acts of terrorism have a devastating and far-reaching impact on victims, their families and friends, and on communities more widely. Local authorities take very seriously the threats from terrorism and, working alongside wider partners, work hard to keep their communities safe. We agree that it is important to consider what more can be done to help protect local places.

2.2     Terrorism is a clear threat to the health and safety of the public. We support calls for the risks of terrorism to be explicitly assessed, but we believe they should be assessed as part of a wider approach that considers terrorism risks alongside a range of other health and safety issues. This would ensure that specific terrorism risks are viewed in the context of the full range of risks being considered, and that mitigation measures taken for one risk do not create new risks elsewhere. There are a number of existing duties and structures in place for local authorities and partners to consider and mitigate these risks that could provide an appropriate platform for this work, such as the Health and Safety at Work Act or licensing legislation.

2.3     Whether or not this approach is taken, any option that requires local authority enforcement would need to consider the significant existing pressures on resources, enforcement capacity and expertise that councils are already facing in delivering these duties.

2.4     Under the consultation proposals as they currently stand, there will be a number of implications for local authorities; as owners and operators of venues in their own right; as employers of large organisations; and potentially in enforcing compliance. We raise a number of concerns below, including the need for greater clarity on a number of issues, how the duty would operate in practice, and the significant resource and capacity that would be needed for successful implementation.

2.5     We agree with the core principle set out in the consultation document about the need to take a proportionate approach to a new duty. Any new requirements must not be unduly burdensome, and in particular must not be allowed to inhibit the freedom to enjoy the places and spaces that are a critical and much-loved part of local life. We do not believe the duty should apply to public spaces unless they are being used for a specific event.

2.6     The capacity model proposed for determining the scope of a new duty raises a number of concerns. If the HSAW model (or similar) is not adopted as an alternative to this, we believe that a risk-based approach to determining which venues/events should fall within scope of the duty would be preferable, enabling those responsible to consider the precise level of risk at that particular place/event. Similarly, local partners should also have the autonomy to be able to balance the level of risk with reasonable mitigation measures that take account of the local context.

2.7     A new duty should be one aspect of a number of measures to keep our communities safe from terrorism; it is important that a new duty complements the many existing measures already in place. It is also vital that measures to increase security continue to sit alongside investment in prevention programmes, that aim to stop people being drawn into terrorism, tackle extremism and build cohesion and resilience.

3.1     Local authorities already undertake considerable work alongside wider partners to assess and mitigate against the risks of terrorism at and around venues and for particular events. More broadly, local authorities, along with many other organisations, will also assess and mitigate against a range of risks as part of existing legislation to keep communities safe.

3.2     There needs to be further consideration about how a new duty would sit alongside existing duties and delivery of work in the counter-terrorism space. This includes work undertaken by Community Safety Partnerships, Local Resilience Forums (in particular how a new duty will be aligned to the requirements in the Civil Contingencies Act 2004), CONTEST boards, Safety Advisory Groups (SAGs), licensing teams, and under the Health and Safety at Work Act. Many of these have overlapping partner representation and/or interest in these issues. Not all of these are statutory, such as SAGs, which provide a forum for partners to discuss and advise on public safety for particular events/locations – one option Government could consider is strengthening this framework to increase consistency across different areas. There is also a need to ensure strategic join-up with the Prevent (in particular the Venue Hire requirements set out in the Prevent Duty Toolkit) and Prepare strands of the CONTEST strategy (the latter is closely aligned, but often conflated, with Protect).

3.3     Rather than introducing a separate duty to assess and mitigate measures to counter terrorism, we suggest that existing legislation could be extended to cover terrorism risks.

3.4     One possibility would be to consider the use of the Health and Safety at Work Act 1974 (HSAW). It is important that any new Protect obligations only apply to relevant venues and only impose proportionate burdens. Using capacity figures as a proxy for risk is not a sensible approach to this issue. A village hall with a capacity of 500 is unlikely to face a threat from terrorists; however, a city centre venue with a capacity of 200 will need to consider the risk. The HSWA model offers a better approach to the question of proportionality than the capacity-based approach set out in the consultation.

3.5     The Health and Safety at Work Act already requires those responsible for workplaces to consider risks to employees and customers, including risks of violence. Amending the HSWA to explicitly require duty holders to consider the threat of terrorism as part of this process is one way to ensure that the burden falling on business and venues is proportionate. In some places there will be a credible risk; on others a negligible one – and this will change depending on, for instance, the specific event being held. Separating out the risk of terrorism from other elements of a HSWA risk assessment (in particular other work-related risks of violence) undermines the basis of risk assessment under the HSWA and the principles of the Protect duty, and makes for an unnecessarily complex and potentially flawed security system in a venue. For example, it makes no sense to separately consider the risk of a terrorist with a knife running into a bar and attacking a customer, from the assessment of the risk that a customer dispute escalates into violence.

3.6     Assessing the relative risk of one incident over another requires an assessment of risk as a whole. One advantage of the HSWA approach is that specific terrorism risks are viewed in the context of the range of risks being considered, and that mitigation measures taken for one risk do not create new risks elsewhere. Another advantage is that a HSWA model could potentially be implemented by amending guidance or through an Approved Code of Practice that would avoid the need for time consuming legislation (or existing legislation could be extended, if Government does not think current HSWA would be fully comprehensive).

3.7     However, while this model offers one example of an existing framework that would enable terrorism risks to be assessed alongside others, it would present huge challenges for local authorities, given the extremely limited resources and capacity currently available to councils for delivering this work. 

We agree that for many large venues and events, it would be reasonable to look at what more can be done to improve security through effective assessment and mitigation.

4.2     However, we are concerned that the capacity-based approach set out in the consultation is likely to impose an intolerable burden on many smaller venues/events as we elaborate on below, causing them to cease and thereby handing a win to terrorists who wish to disrupt our way of life. An appropriate balance must be achieved between protecting our communities and the places they use as part of their everyday business, and ensuring that the access and enjoyment of those places is not unduly restricted.

Owners/operators of venues

4.3     We agree that any new duty introduced must be proportional and not unduly burdensome for those within scope. We are particularly mindful of the need for local businesses, town centres and local authorities to focus on post-pandemic recovery in the short and medium term, and that the introduction (and cost) of any new measures at this time should be kept to the necessary minimum. Further, as leaders of place, councils are keen to encourage communities to come together, use local facilities, support local businesses and the voluntary sector etc, particularly as we emerge from the pandemic. It must be ensured that a new duty does not prevent this.

4.4     The threshold for falling within scope of the duty as it is set out in the consultation will cover a significant number of venues, including important community facilities. The Government needs to think very carefully about which venues will fall in scope if they proceed with a capacity-based approach (for example would an event in nursing homes, schools, wedding venues be covered?)

4.5     Similarly, local authorities are keen, and have been encouraged, to do what they can to support community events such a church fetes or community fun days through light touch approaches to licensing. It is important that an appropriate balance is achieved that enables events to go ahead, whilst keeping people safe.

4.6     There is a need for greater clarity across the board about where exactly responsibility would sit for fulfilling the duty. This includes “owners and operators” of venues who would be subject to the duty (and enforcement measures), as currently set out in the proposals. The consultation document refers to “the parties responsible for the venue, which would usually be the owners or operators, who have control and ownership of systems and processes” and that “where there is a shared organisational responsibility for a venue within scope, the parties would be required to work together to ensure the Duty requirements were met.” This is likely to raise a number of complexities about who could and should ultimately be responsible for meeting a duty in practice. In cases such as a village hall hired out to different event organisers, any duty that falls on individual organisers is likely to lead to inconsistency and raise competence issues, while it may be impractical to expect the owner to undertake detailed assessments for every event, especially where mitigation has to be implemented by individual organisers. Another example requiring clarity would be a local authority which owns a leisure centre, but where the services are operated by a separate company.

4.7     A further concern is that many organisations potentially within scope of the duty would have little experience or expertise in the counter-terrorism field. We would be particularly concerned, for instance, that if the duty extended to volunteers organising local community events, this would be a substantial deterrent for people to take on a voluntary role and may mean local events - which are the lifeblood of our communities - could be at risk of cancellation. 

4.8     The proposals acknowledge that different venues and spaces should not be treated in the same way. However, while very large venues will likely be at increased risk as they provide opportunities for a larger number of potential victims, differentiating between venues according to capacity/size only, as set out in the consultation, provides a blunt instrument that does not necessarily equate to actual risk. For instance, some smaller venues may be more symbolic and therefore more likely to be targeted (eg places of worship); their layout might make them more susceptible to attack or change the potential severity of an attack; and conversely, some larger venues will be less at risk and/or face different levels/types of risks and threats depending on the specific event being hosted at any one time.

4.9     Similarly, the proposals also suggest that organisations employing 250 staff or more will be subject to the duty. However, while some organisations have low numbers of employees, potentially meaning they fall outside of scope, they may have high numbers of customers/public/attendees.

4.10   If the HSWA or similar approach suggested above is not pursued, the Protect duty should enable those responsible to consider the precise level of risk at that particular place/event. We suggest that a risk-based approach to determining which venues/events should fall within scope, that looks at both national and local context, intelligence etc, would offer a more nuanced alternative.

4.11   There also needs to be further clarity about which venues will be designated as “publicly accessible”. For instance, some venues operate conferencing facilities which are strictly “business to business”, and do not take bookings directly from the public. Potentially this may not be covered by the duty as it is currently proposed.

4.12   Managing risks in the spaces outside specific venues also needs to be carefully considered. In some instances it is not always easy to determine exactly who is responsible for the areas outside of venues (“grey spaces”); and what the legal implications might be where mitigation measures for one venue (for instance bag searches) effectively introduces new, or displaced, risks elsewhere (for instance queues in public space outside of venues or muster points). It should be recognised that some events at large venues in particular can create issues for town and city centre spaces far beyond the boundaries of the venue itself.

4.13   Further, it may not always be clear who owns/is therefore responsible for some public places. We are concerned that local authorities could effectively be left to “pick-up” responsibility for fulfilling the duty for many publicly accessible areas where there is ambiguity, with inevitable resource implications. 

Parks/public spaces

4.14   The consultation proposals suggest that a new duty should extend to public spaces. Parks and public spaces are a focal point for local community life. They provide precious places for our communities to relax, socialise, and are a critical part of supporting the wellbeing of our residents. It is vital that a proportionate approach to ensuring the safety of these spaces is applied, that does not detract from their core purpose and effectively does more harm than good. We do not think the duty should apply to public spaces as a matter of course, unless that space is being used for specific events.

4.15   Should Government choose to extend the duty to public spaces, how a duty could and should be applied here needs careful consideration. There is little detail in the proposals about what this might look like in practice, however we are particularly concerned about the implications of a broad application to public spaces such as parks and beaches.

4.16   There are a number of practical concerns about extending the duty to public spaces. Many public spaces are open and do not have defined boundaries, and require a different approach to other publicly accessible locations - both in terms of risk assessment and appropriate mitigation.

4.17   Ownership of these spaces is also not always clear. For instance, village greens can belong to the parish council, district or the Highways Authority. There can also be challenges around national parks and beaches and where responsibility for these areas begin and end; similar issues might apply to privately owned public spaces, such as gardens and squares. The 2019 report Review of the legal responsibility for beach safety for the Maritime and Coastguard Agency outlines some of the complexities of imposing duties (and overlapping existing duties) in this space.

4.18   One unintended consequence of introducing a duty for these spaces could be that mitigation measures taken to reduce or funnel access to public spaces, for example by removing non-statutory access staircases to popular beaches, could lead to new potential sources of risk from slips, trips, and falls if visitors create informal paths to access those spaces.

4.19   The wider context for the use of some public spaces should also be considered. For instance, until a field becomes an enclosed space for an event or festival, it is essentially a passageway and unlikely to require the same level of assessment or mitigation. It is also important to understand how the duty will apply where events use a number of public spaces as part of their use (eg parkrun).

5.1     We agree that there is a need to ensure that the requirements imposed under the duty are proportionate and not overly burdensome. We do not believe the New Burdens doctrine would apply to councils for undertaking risk assessments and introducing new mitigating measures under this part of the proposed duty, since the duty would also apply to private sector bodies. We are therefore particularly concerned about the potential substantial additional costs for local authorities this could incur.

5.2     We are also mindful of any new burdens that impact on local places more widely - particularly local businesses, the voluntary sector, and struggling high streets as they emerge from the pandemic. Further, a proportional approach could be key to getting smaller venues in particular to engage and comply with the duty requirements.

Risk assessment

5.3     Many local authorities, working with a range of multi-agency partners, will have considerable expertise and experience in risk assessment and mitigation for specific events and high-profile venues/buildings etc, but this duty will considerably increase the number of venues and events that might be subject to these sorts of measures. The proposed duty would require specialist risk assessments and mitigation, which will be new to many venues/operators within scope of the proposed duty.

5.4     The proposals raise questions about who would fulfil a risk assessment role, how to ensure their competence (with the likely training needed for this – and cost implications that follow) and how to achieve a consistent approach across the board. A further important question is whether risk assessors could be personally liable for their advice (see further, below).

5.5     We set out under section 4 above some of the potential issues in displacing risk and in identifying who might be responsible for a particular space. Effective risk assessment is likely therefore to require a holistic and overarching approach across a whole place, rather than considering risk simply on a venue-by-venue basis. This role could fall to councils (and/or alongside partners through existing forums), which could place additional resource burdens on local authorities.

5.6     We also note above that existing legislation/forums already require local authorities (and others) to undertake a range of risk assessments and mitigation measures that might overlap with this space. These need to be fully understood to ensure that any new measures are joined-up and do not introduce unintended overlaps or contradictions. One specific example which requires further consideration is whether the assessment envisaged under the Protect duty needs to cover evacuation, given that this is likely to be dealt with under a fire risk assessment. Although the two risks differ in some respects, thought must be given as to whether the evacuation implications differ and if so, which duty should require them to be considered. Making separate risk assessments for evacuation in the event of a fire and of a terrorist attack risks duplication and/or confusion.

Mitigation

5.7     A fundamental principle of the new duty should be that mitigation measures reflect the true nature of the risk. It must be accepted that it is impossible to eliminate all risks and threats entirely.

5.8     It is important that there is sufficient flexibility under a new duty to allow for a measured approach; balancing the level of risk with reasonable mitigation (and cost) – and crucially, does not have a disproportionate and negative impact on local places and the lives of local residents. This may be particularly acute for open spaces such as parks and beaches where there are limits on what can, and can reasonably (particularly with limited resources), be put in place to reduce the threat.

5.9     The consultation document references mitigation through “reasonably practicable” protective security and preparedness. There is some concern about how this term will and should be construed in practice; although the term is relatively well established and understood, care needs to be taken in written guidance to avoid situations where mitigation measures proposed are disproportionate to risk.

5.10   We are concerned about the cost implications for local authorities for the implementation – and ongoing maintenance - of some physical mitigation measures. Even fairly “light touch” mitigation such as enhanced training will inevitably have some costs attached, including requiring substantial capacity to deliver – if this were to require roll out to all council staff, for instance, this would be a significant undertaking. Further, some of the risks associated with certain locations will change over time in response to changing threats, which could mean more difficult and more expensive retrofitting of security measures.

5.11   We note above the importance of ensuring that a new duty provides flexibility for a measured approach in the local context. Local partners should have the autonomy under any legislation to decide what measures would be appropriate at a local level to achieve this balance. Local context will also be an important consideration in terms of risk and response, and while guidance on mitigation measures will be helpful, different measures are likely to be appropriate in different places. There are specific concerns about mitigation measures on listed buildings or heritage sites, including the cost implications of this. For example, Windsor and Maidenhead Council, Thames Valley Police and the Royal Collections Trust recently spent £1.4m on anti-terror barriers around Windsor Castle that were in keeping with the local historic context. On sites where this level of investment is unaffordable there may be a significant negative impact on the historic environment. Further, the precise make-up of a specific venue/location will need to be considered; for example, requiring all Hostile Vehicle Mitigations (HVM) to withstand 7.5T at 50 mph may not be appropriate in sites where such speed or access is already prevented by topography.

5.12   In practice, much of the effectiveness of mitigation measures would be reliant on staff (or, potentially volunteers) implementing these competently and reliably. This also raises issues about training and vetting staff; for some events, additional staff, stewards etc might be employed where it may be difficult to verify qualifications/competence and the extent to which those personnel have been briefed or trained.

5.13   There is also a need to be mindful of unintended consequences from mitigation measures. For instance, poorly implemented training could run the risk of profiling certain groups or backgrounds, which could have consequences for community cohesion.

Liability

5.14   Another issue which requires further exploration and clarity is the potential for different actors to become liable should an attack occur - even where a risk assessment was undertaken, and mitigation measures introduced. We raise above uncertainties about where precisely a duty would sit (eg who might be deemed an owner or operator of a venue). This raises further queries, for instance, about whether an event organiser could potentially be responsible/liable for a venue it does not own; or a building owner be held responsible for the actions of those who use it, where risks are displaced from elsewhere.

5.15   There is an additional risk of unintended consequences from the duty that might arise because of the possibility of liability – for instance, recommending/introducing disproportionately high-level, disruptive or expensive mitigation measures to avoid future litigation.

5.16   Given the difficulties that have arisen in the housing sector from the unwillingness of insurers to provide Professional Indemnity Insurance to those conducting surveys of cladding systems or fire risk assessments in high rise residential buildings, the Government needs to make an assessment of the willingness of insurers to cover those giving advice on assessments under the Protect duty to ensure that demand for such assessments will be met without imposing excessive costs through a ramping up of premiums.

5.17   While it may make sense for an organisation to be required to cooperate on Protect Duty assessments, clarity of liability will be needed. The Government may want to use a Responsible Person (RP) model, but will need to consider how liable an RP can be if those the RP needs to work with fail to fulfil their roles.

The consultation proposals explore the need for an inspection and compliance regime, to ensure that those subject to the duty are meeting their requirements. We are concerned about the introduction of another separate inspection system for businesses already facing a considerable number of pressures, and that it would be preferable if these arrangements could be incorporated within an existing regime.

6.2     We understand that Government is exploring whether local authorities should be responsible for this role. There is a need to further understand the implications for local authorities of this role, including what the size of the task would be and the expectations around enforcement and inspection. We note that while the duty proposals suggest that a light touch enforcement approach may be sufficient, the recent Manchester Arena Inquiry report sets out that this is unlikely to be sufficient, particularly for larger venues. The Government needs to be clear about its enforcement expectations; if a heavier touch is required, the implications for this must be fully set out in an impact assessment before parliament is asked to consider legislation.

6.3     Councils’ regulatory services functions have faced substantial resource and capacity concerns for some time. Significant reductions in local government funding, alongside the need to protect services such as adult social care and children’s services, have led to regulatory services shrinking and a reduction in officer capacity. At the same time the number of statutory responsibilities being placed on these services has increased, adding to the pressure on already stretched services[1].

6.4     Whichever model is pursued for the new duty, enforcement would be an unwelcome burden for councils which would require significant resource and capacity; local authorities would need dedicated resources to fulfil this role if this was imposed. Given the large number of venues covered by the scope of the duty as it currently stands, any additional inspection burden over and above existing activities would need considerable resource. A new duty on local authorities for the inspection element of the proposals would need to be resourced as part of the New Burdens doctrine.

6.5     If local authorities were to be responsible for this element of the duty, there is a question as to where it should sit. Councils’ Environmental Health, licensing and health and safety teams may provide some possibilities, however there are a number of challenges here which would need to be fully understood. These include: developing specific expertise in counter-terrorism; small health and safety functions, working at capacity and facing recruitment challenges; and while terrorism risks might be considered as part of the licensing process, not all venues to which the duty would apply are licenced. We also note above the importance of ensuring that any new duties take account of the frameworks and legislation already in place to consider and mitigate risks to public safety; that existing functions work well; and that these are joined up.

6.6     There is also a need for clarity on what sanctions would be imposed for non-compliance. We suggest that FPNs would not be suitable in this context. In addition to any local arrangements, there would need to be some form of national oversight to make sure work is sufficiently prioritised.

6.7     If local authorities are given an enforcement role then a further question will arise as to how the duty is enforced in local authority premises.

7.1     It is important that measures to increase security continue to sit alongside investment in prevention programmes, that aim to stop people being drawn into terrorism, tackle extremism and build cohesion and resilience. We are concerned that Government policy appears to be moving increasingly away from the prevention space, which can help to avoid issues from developing into criminality and violence – including the withdrawal of funding for the Special Interest Group on Countering Extremism (SIGCE) and dedicated counter-extremism Community Coordinators in key areas.

7.2     The timescales for introducing any new Protect duty should be carefully considered. This would need to allow for sufficient communication, preparation, training, recruitment of specialist advisors and assessors etc to be sourced even before implementation can begin.

7.3     For local authorities, the duty will impact on a number of service areas and sufficient time will need to be given to ensure that processes and procedures can be adapted accordingly. One example of this might be changes to planning applications, requiring councils to develop supplementary planning documents and reflecting any new requirements in Local Plans. If councils were also responsible for the enforcement aspect of the new duty, this would also require considerable time to establish. The introduction of the smoke free legislation could be a good exemplar model to consider here in terms of lead times, funding, and guidance.

7.4     As noted above, there are significant concerns about how the duty will operate in practice. It will be vital that sufficient detail and clarity is provided on a number of issues before a duty can be introduced, applied/executed consistently and effectively enforced.

7.5     We expect that a substantial training and guidance programme will need to be developed as part of implementation of the new duty – and made available before the new duty comes into force. Guidance/training on undertaking risk assessments, and appropriate and proportionate mitigation measures that meet the legislative requirements will be particularly important (whilst still ensuring there is local autonomy to determine what measures would be appropriate in the local context). The consultation acknowledges that many venues and organisations within the proposed scope of the duty will have little experience of considering and mitigating terrorist threats (including some local authorities) and are likely to require additional support. In addition, some organisations/venues will not be used to working collaboratively with public sector colleagues.

7.6     It is important that any guidance and training (and potentially the duty itself) is reviewed and refreshed regularly to reflect changes to risks and threats over time. This might include, for instance, the changing nature of why people visit town centres (eg more for entertainment and experiences rather than shopping.) It is also key that information and intelligence is shared in an appropriate and timely way with partners, and is aligned with other elements of CONTEST.

7.7     Introducing a new duty will require significant resource and capacity to ensure that those within scope are aware of their responsibilities and can begin to put measures in place to comply. We anticipate significant increased demand for bespoke advice and expertise from those subject to the duty, particularly as a new duty beds in – this will likely place significant strain on a number of agencies, both local authorities and beyond (CTSAs in particular), and will need to be resourced. These demands are likely to be particularly high if local authorities are also responsible for the compliance element of the proposals.