(TER0007)
Written evidence submitted by LIVE (Live music Industry Venues and Entertainment) (TER0007)
Pre-legislative scrutiny of the Terrorism (Protection of Premises) Draft Bill
As the representative body for the UK live music industry, LIVE appreciates the opportunity to offer evidence as part of the committee’s consideration of the draft Terrorism (Protection of Premises) Bill. By publishing a draft bill, the Home Office has provided time for detailed and expert consideration of these proposals. Given the breadth and complexity of the protect duty proposals, we think it is imperative that time is taken to consider detailed expert evidence across all aspects of the draft Bill.
As an industry, we remain resolute in our longstanding commitment to keeping fans who attend live music events safe. LIVE will continue to work closely with Government to ensure the final plans are realistic and workable and, crucially, sit appropriately alongside existing regulatory requirements to improve safety for all.
LIVE is the umbrella organisation representing the live music business in the UK. Across 15 member associations we represent over 3,000 companies, 4,000 artists and 2,000 backstage workers. Our membership covers the full spectrum of festivals and venues (from grassroots to major) and the promoters, agents, managers, production teams and services that create Britain’s world-class events. In preparing this submission, LIVE has benefited from expert input from our colleagues in the business events community. As a result, this submission is supported by the Events Industry Alliance which incorporates the Association of Event Venues, the Association of Event Organisers and the Event Supplier and Services Association.
Our members’ key concern is the absence in the draft Bill of consideration of the role of the existing licensing regime in preventing terrorism. This creates the potential for confusion, contradiction, and disproportionately burdensome regulation.
The LIVE submission to the committee comprises this letter and:
In summary LIVE’s position on the Bill is that:
Executive Summary of advice received from Philip Kolvin KC
Conclusion
Given live music venues, festivals and event spaces will make up the vast bulk of premises subject to the requirements of the draft Terrorism (protection of Premises) Bill, we are uniquely positioned to contribute on behalf of the industry and would appreciate the opportunity to present oral evidence to the committee.
In addition, we are keen to offer whatever other support the committee might require, such as expert testimony from Philip Kolvin KC, or supplementary guidance on the requirements of the current licensing regime.
LIVE would be happy to facilitate a site visit or visits to a venue or festival for Committee members to see current practices and the potential for conflict or confusion from the proposed protect duty requirement.
Finally, LIVE is firmly of the view that, before introducing a new regime, a much more complete impact assessment must be carried out to audit current requirements and duties (primarily under the Licensing Act 2003) on venues and avoid conflicting responsibilities. In line with the Regulatory Policy Committee, we feel disproportionality is a risk and would ask the Committee to recommend the Home Office undertake this assessment at the earliest opportunity.
June 2023
TERRORISM (PROTECTION OF PREMISES) BILL
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ADVICE
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Introduction
1. I am instructed to advise on the draft Terrorism (Protection of Premises) Bill (“the Bill”).
2. My client is the Concert Promoters’ Association Limited (“the CPA”). The CPA is a trade body established in 1986, its membership today comprising over 60 of the UK’s largest corporate promoters of live music and other entertainment. It works to provide a forum to campaign on issues of concern to its members and to support the growth of the industry.
3. This advice consists of:
(1) A brief summary of the Bill.
(2) A commentary on the Bill.
(3) Recommendations.
4. I add that while this advice is necessarily directed at the impact of the Bill on my client’s interests, most of the commentary applies to licensed venues as a whole.
5. So far as the recommendations are concerned, I have made some broader suggestions so as to achieve regulatory parity between licensed and non-licensed venues.
(1) A brief summary of the Bill
6. The Impact Assessment for the Bill explains that the strategic objective is to keep citizens safe and secure, while the policy objectives are to 1) reduce the impact of terrorist attacks where they do occur, 2) provide clarity of responsibility, at premises in scope, 3) improve consistency of security considerations and 4) expand the support available to help those responsible for the delivery of security in publicly accessible locations (“PALs”).
7. The Bill provides for two sorts of premises, standard duty and enhanced duty premises. Both must fulfil the use criteria set out in Schedule 1. The former have a public capacity of at least 100, the latter have a public capacity of at least 800. The legislation also provides for qualifying public events, which would include concerts and festivals, with a capacity of at least 800. All of these must be registered with or notified to a national regulator. The Impact Assessment estimates that over 300,000 premises will be regulated. This will make it by some stretch the largest regulator of individual premises across the regulatory field.
8. Standard duty premises will have to carry out a standard duty evaluation, whereas enhanced duty premises and qualifying public events will have to carry out an enhanced terrorism risk assessment. The latter is more detailed, with greater focus on practicable prevention measures, which will need to be adopted, together with a security plan, overseen by a “designated senor officer”. All will need to train relevant workers.
9. Turning to the regulator, this will be a national body. It has not yet been decided whether the regulatory responsibilities will be placed with an existing regulator or a new ALB. It will have extensive investigatory powers.
10. The regulator will be able to serve contravention notices where there has been failure to comply with one of the legislative requirements, requiring remediation. It will also be able to serve restriction notices which can restrict the uses, times or capacity of the premises or event, impose conditions or even shut the premises or event down. There is a right of appeal to an as yet unnamed tribunal. Failure to comply is an offence with a due diligence defence provided.
11. The regulator will also be able to impose civil penalties and daily penalties, following a notice and representations process. For enhanced duty premises and events the maximum penalty is £18m or 5% of the worldwide revenue of the organisation, with daily penalties 1% of that. The notice can be served on “a person” who is contravening a requirement of the legislation. Again, there is a right of appeal.
12. The Secretary of State can issue guidance on the Bill’s requirements, while the regulator is confined to giving guidance about the exercise of its own functions.
(2) A commentary on the Bill
13. From the perspective of a licensed operator, the Bill suffers from a notable lacuna. It simply fails to acknowledge the role of the licensing system in protecting the public.
The only mention of licensing is in Clause 38, dealing with when licence plans can be removed from the public register.
14. The purpose of the Licensing Act 2003 was essentially four-fold:
15. Clearly, the prevention of terrorist acts engages all of the licensing objectives. Therefore, such prevention is directly within the scope of the Licensing Act.
16. I would add that, in addition to issuing guidance, the Secretary of State can make specific requirements of licensees by issuing mandatory licence conditions or mandatory codes. Typically these concern responsible alcohol service, but there is no reason why they could not include other obligations such as mitigation of terrorist risks.
17. In practice, the prevention of terrorism is dealt with under the Licensing Act in a number of ways.
18. First, at the individual decision-making level, any responsible authority, or indeed anyone else, can make a representation dealing with terrorism. Similarly, a review may be brought on the grounds that the premises are not doing enough to counter the threat of terrorism. This gives the licensing authority power, for example, to attach conditions concerning counter-terrorism.
19. Second, an authority may set out specific expectations regarding terrorism in its licensing policy. A good example is Westminster City Council, which sets out detailed requirements which operators need to meet on pain of facing a refusal of their application or a revocation of their licence. I have appended to this advice some extracts from Westminster’s policy dealing with terrorism.
20. Third, in respect of events, authorities establish Safety Advisory Groups (“SAGs”), which scrutinise pending events and work with organisers to ensure that the licensing objectives are promoted. Whether because they have a veto over the event under the premises licence1 or because of their independent powers under health and safety legislation or police legislation, organisers need to have secured the approval of the SAG before their event proceeds. For festivals, taking one example, there is practically always a need for a counter-terrorism risk assessment, with the Police playing a key role in ensuring that the measures proposed are adequate, and based on factors including the current risk level, local intelligence and factors directly related to the event.
21. I would add that for events taking place in sports stadia, as well as a premises licence or licences, there can be three other, separate, consents in place: a licence from the Sports Grounds Safety Authority (“SGSA”), a safety certificate from the local authority for the sporting events there and a special safety certificate, also from the local authority, for other types of events, such as concerts. SGSA’s policy is to adopt a wide approach to the concept of safety, to include counter-terrorism. It can therefore attach conditions to a licence requiring incorporation of counter-terrorism measures. It can also direct local authorities to include measures in safety certificates. Its advice to authorities is as follows2:
4. Counter Terrorism
Are procedures in place to hold parts of a SAG meeting in confidence where this is required by the information to be discussed?
Does the ground have contingency plans that include the different methods of people movement in an emergency situation?
Does the ground have a lock down plan?
Is there a specific counter terrorism plan that has been developed by the club?
Are all counter terrorism documents marked in accordance with a secure documents scheme, such as the Government Security Classification Scheme?
Has the ground produced a plan to deal with an increase in the threat level?
1 In some cases, depending on local procedures, SAGs are simply consultative but for practical purposes an event would not proceed without their fiat.
2. https://sgsa.org.uk/wp-content/uploads/2018/09/Wider-Definition-of-Safety-Local-Authority-Checklist.pdf
22. In all of these ways, therefore, provision has been made or could be made for counterterrorism measures to be dealt with through the licensing regime.
23. This is of cardinal importance, because not only will licensed premises form the lion’s share numerically of premises to be regulated under the proposed legislation, but they will also comprise the largest such premises (e.g. stadia, festivals and nightclubs), andwill be the most concentrated geographically and the most densely packed in terms of users. For these reasons, it is not easy to understand why the draft Bill simply does not recognise that there is a regime which is operational and actually and potentially capable of achieving the same ends as the legislation in view.
24. A similar point regarding the existence of a tailor-made regime was made by Sir John Saunders in his recommendations in Volume 1 of the Manchester Arena Inquiry Report:
Similar considerations apply to licensing permissions. Any building such as the Arena would require a licence to permit public entertainment and the sale of alcohol. Public safety has always been a consideration in the granting of licences and the clear terms of the Licensing Act 2003 mean that it still is.
I recommend consideration is given to these matters when legislating for a Protect Duty. The Home Office, in their submissions to me, indicated that they will consider reviewing the Licensing Act 2003 guidance once a Protect Duty has been brought in. An addition to that guidance is all that would be required. Any change in the guidance needs to be consistent with a new Protect Duty and there seems no reason why it should not be issued at the same time as the introduction of the new duty.
25. Therefore, it might reasonably have been expected that the Impact Assessment accompanying the draft Bill would contain some analysis of whether the licensing system provides a suitable means of protecting the public from terrorism, or at least an explanation of how separate regulatory regimes, sitting side by side, were thought to be necessary, and how they were expected to complement each other. However, the Impact Assessment is silent on the topic. It does not mention the Licensing Act at all, except in the context of Sensitive Information in Licensing Applications.
26. This omission is really underlined by the two options which the Impact Assessment explores. The first option is to do nothing. The second option is to introduce the legislation contained in the draft Bill. This is the equivalent of Henry Ford’s aphorism that a customer could have a car in any colour as long as it was black. Respectfully, the Bill affects far too many premises, and imposes burdens which are too substantial, and costs so much money to implement, for such a shallow analysis of the potential means of achieving its ends. The ends are necessary and admirable, but that makes it the more important that there is thorough consideration of how they are to be achieved in a proportionate manner.
27. In the case of licensed premises, there is no reason why the licensing system cannot be pressed into service to ensure that venues are training their staff, carrying out risk assessments and adopting measures to promote counter-terrorism. If it is thought that there is too much scope for local variation, which is not cured by section 182 guidance, then mandatory conditions can be imposed to ensure the maximum uniformity with the minimum procedural fuss.
28. I should add this. It is not only that there is a perfectly serviceable system, tailor-made to achieve the ends of the Bill but ignored by the Bill, but the Bill itself does not evenexplain exactly how the two regimes are expected to sit side by side. Should licensing authorities cut and paste the Protect Duty into licences, or must they abjure involvement? Should the Protect Duty cease to apply provided that the licence contains equivalent matters? Should licence conditions dealing with counter-terrorism be
deemed null and void if the Protect Duty applies, as occurs with Licensing Act conditions replicated in a sex establishment licence, or fire safety conditions? What if a licence conditions deals with matters which cover but do not refer specifically to counter-terrorism controls? May responsible authorities even apply to review the premises licence on grounds relating to counter-terrorism?
29. Further, what if measures under the Protect Duty cut across measures under the licence? For example, a search condition under a licence may result in a queue. The Protect Duty may require the obviation of queues. Obviously, when the licensing authority has dominion over its terrain it can decide how the two aims are to be reconciled. But if there is a separate authority dealing with the matter, whose will prevails? The last to regulate, or the first, or the national regulator, or the local? No answer is given, because the question has not apparently been considered.
30. In saying this, I also note the Regulatory Policy Committee’s assessment that the Bill is not fit for purpose, in that it has not provided evidence that the Bill would reduce terrorism for small venues, or that a new regulator with national inspectors would be efficient compared with local compliance. I strongly agree with this, as far as it goes. The local regulatory system established under the Licensing Act is bound to be superior to, and more sensitive and responsive than a national regulatory system given the knowledge of local CTSAs, local police and PCCs, local SAGs and local licensing authorities. It is wholly unclear why it has been thought necessary to side-line the existing regime in favour of a remote national regulator. As the RPC said, the assessment needs to address disproportionality. I take the view that an unnecessary extra regulatory system is a paradigm of disproportionality.
31. It is not unusual for legislation to be adopted with insufficient understanding of how the licensing system works in practice. It represents the long experience of practitioners. In this case, the proposed legislation affects too many premises at too great a cost for the existence and effect of the licensing system to be side-lined. In my respectful view, the licensing system provides an appropriate means to achieve the desirable ends of the Bill, and deserves appropriate consideration, which has apparently been lacking so far.
32. Before leaving this point, I would note that Clause 7 of the Bill takes out of regulation under the Act certain categories of premises, including premises subject to a transport security regime, such as railway stations. That is because the objectives of the legislation are achieved under the regimes governing such assets. It is hard to see why such a specific exemption has been made for some types of premises but not others, such as licensed premises. An appeal to consistency would suggest that the same arguments for exemption appertain, but these have not apparently been considered at all.
A better way?
33. As I have stated, it would be more effective, less costly and more proportionate to ensure that licensed premises are pulling their weight, using the licensing system. The Secretary of State can amend the section 182 Guidance and/or issue mandatory conditions, and licensing authorities can adjust their statements of licensing policy in response.
34. But what of other premises?
35. In my view, the answer would be to enshrine Martyn’s law in primary legislation creating duties on non-licensed premises in similar terms, i.e. to train staff, risk-assess and adopt security measures. In doing so, premises would be required to comply with codes of practice issued by the Secretary of State or some other body in like terms to the section 182 Guidance. Failing to comply would be a criminal offence.
36. Enforcement could be by the local police, who have access to both national and local security intelligence and know their own areas. Officers could be specially trained by NPCC with input by NACTSO. Failing that, enforcement would be a local authority function with training of officers by LGA, again with relevant police input. Having local officers would mean that they could spend time liaising with authorities, police and local authority colleagues, night-time managers, town centre managers, BID managers, safer neighbourhood teams and community safety partnerships to inculcate a culture of resilience locally in a way that a national regulator of premises could never hope to do. More particularly, they can engage in formal and informal compliance monitoring, mentoring and dialogue which, if done well, almost always obviates the need for enforcement.
37. If it is thought necessary to supplement criminal enforcement powers, then the contravention notice procedure seems unobjectionable, having parallels in abatement notices in environmental health, prohibition notices in health and safety and enforcement notices in planning. The power to issue such notices would lie with licensing authorities or police/local authorities as the case may be. Failure to comply with the notice would be a criminal offence.
38. The restriction notice process is a draconian remedy, and I am not convinced that it is proportionate, when considered alongside other measures in the Bill. It would enable an official to shut down a large festival peremptorily, with no power to stay the notice pending appeal. This would be a major disincentive for a promoter to work in the UK. I am not convinced that an insurer would even insure against the risk, at least not without a premium representing a significant percentage of the cost of the festival itself. If there is genuinely an exceptional danger, it is always open to the enforcing authority to apply for an injunction, in the case of local authorities under section 222 Local Government Act 1972.
39. Finally, I should say a word about the proposed civil penalty regime. It is suggested that a penalty of up to £18m or 5% of an operator’s worldwide revenue (whichever is the greater) could be imposed a) without any hearing, let alone a judicial process b) on balance of probabilities. Again, this is neither justified nor proportionate. By all means if an operator has broken the law, it should be prosecuted. But it is not enough to say that these powers will not often be used, as the Impact Assessment suggests. The powers are there, and while some will be strongly motivated to comply, others will be deterred from putting on cultural events because of these very draconian, peremptory powers which could be used against them. I think that the powers are a step too far and should be dropped.
(3) Recommendations
40. It seems to me that the Bill lacks fundamental balance. Terrorism is a national issue affecting all of us. The agency best placed to prevent terror is the State itself, acting through its various expert agencies and bodies, equipped with the intelligence to combat terrorism, armed and trained officers deployed for the purpose, with many powers not available to citizens. While I am sure it was not the intention, the Bill has the appearance of an instrument which passes primary responsibility for counter-terrorism to operators of premises, who lack the security intelligence, training, equipment or powers available to the State. Many premises operators are in serious financial difficulty due to various economic factors which are too well known to require repetition here. The Bill should be rebalanced to define the State’s responsibilities in combatting terrorism, and also to ensure that disproportionate burdens are not placed on premises, which may not have the money or wherewithal to shoulder them.
41. My advice is that the licensing system provides a perfectly serviceable regime for achieving the ends of Martyn’s law in local areas through local regulators, at the saving of many billions of pounds to the public purse. To achieve national uniformity, mandatory conditions can be imposed, section 182 guidance amended and statements of licensing policy revised. Breach could result in review, summary review or even prosecution for breach of mandatory conditions.
42. For non-licensed premises, the Protect Duty can be imposed by legislation imposing the same requirements – training, risk assessment and security measures – following codes of practice issued by the Secretary of State. Breach would be a criminal offence, again enforceable locally by duly trained Police or local authority officers.
43. If thought necessary, both regimes could provide for a contravention notice procedure.
44. Under both regimes, a national digital service would provide training materials, template risk assessments and security measures.
45. I do not believe that the powers to serve restriction notices (particularly without a stay pending appeal) or to impose civil penalties are proportionate or necessary. They could be introduced at a later stage if it is thought that, in practice, the legislation lacks teeth. Alternatively, if it is thought really necessary, the existing powers which the police and local authority have to close premises in the event of nuisance or disorder could be amended or adapted to provide equivalent powers in respect of counter-terrorism. I do not believe that the power is necessary. But, in any event, what seems to me to be vastly onerous is to constitute a new national regulator with oversight of 300,000 premises, equipping it with the most draconian of powers, when there are perfectly good local regulators which are or could be equipped for the purpose.
46. In conclusion, Martyn’s law is important. But that does not mean that the wheel must be reinvented, or that a wholly new regulatory regime should be introduced to sit over an existing regime catering for the same things, or that the regime should contain sanctions out of all proportion to existing sanctions for other regulatory failings, or that the regime should serve to deter operators from providing cultural opportunities, an already marginal activity.
47. For those reasons, I have made several recommendations which will enable the ends of the draft Bill to be attained through use of existing local processes, in a way which imposes a considerably lower burden on operators and the public purse.
PHILIP KOLVIN KC
2nd June 2023