With the new UK Government having signalled strong support for "Martyn's Law" in last month's King's Speech, Grant Campbell, Andy Nolan and Rebecca Taylor, from Brodies' specialist facilities management group, consider the touchpoint areas within FM contracts that may be impacted by its introduction.
The Terrorism (Protection of Premises) Bill, otherwise known as 'Martyn's Law', is targeted at organisations, businesses and authorities that own or operate publicly accessible premises and have a capacity of 100 individuals or more. This will cover everything from shops and shopping centres to open-air sports grounds and premises used for recreation, exercise or leisure. Responsibility for compliance will fall on those who have 'control of the premises'. The legislation is named after Martyn Hett, who was a victim of the 2017 Manchester Arena terrorist attack.
While we await clarity on exactly what this legislation will contain, it would be prudent for FM providers and customers to be aware of the likely impact on their FM contracts and to put measures in place where possible, to ensure a smooth transition to compliance.
1. Horizon scanning
Many FM contracts contain provisions which require the FM provider to notify the customer when they become aware of upcoming changes in law likely to impact on the contract. If a contract contains such a provision, the FM provider needs to have Martyn's Law on its radar and notify the customer at the appropriate time – otherwise the service provider might be in breach of contract.
2. Specification changes
Contractual obligations on FM providers and detailed service specifications will need to be reviewed and potentially changed, as may customer obligations and dependencies. These changes will probably be dealt with through the change control procedure provisions within the contract, as will the cost implications and whose account they are for. Specific issues might include:
- vulnerability risk assessments;
- duty to provide terrorism protection training to relevant workers;
- additional security measures, including procedures to be followed in the event of an act of terrorism in the immediate vicinity of the premises or event; and
- changes to business continuity and recovery plans.
3. Relief events and force majeure
How will failures by a party, responsible for complying with the legislation, flow down into the 'relief event' and 'force majeure event' contractual provisions? If, for example, a terrorist event occurs, and it was not prevented because a customer failed to discharge its obligations under the legislation with the result that the building itself is partially closed for an extended period, does that relieve the contractor from its contractual obligation to provide the relevant service? If it can provide the service but at additional costs, where do these additional costs lie?
4. Other areas
Other parts of FM contracts that may also be affected include:
- general service obligations and standards, particularly in the context of complying with applicable laws
- the customer's right to step-in – can that be triggered in an appropriate event, where a FM provider is failing to comply with its obligations and an emergency occurs?
- liability and indemnities – again, will the liability and indemnity provisions respond appropriately to an event that triggers loss?
All of these issues are likely to turn on the detailed wording of a particular FM contract. Often the relevant provisions will have been heavily negotiated, and therefore the analysis may be complex. That is why it is important to monitor the progress of Martyn's Law as it runs its parliamentary journey, and to develop early a clear strategy for identifying and dealing with any contractual issues that are coming down the track.
This article has been published in the September 2024 issue of the Facilities Management Journal. Please click here to view this issue online. You can view our follow-up blog here, which discusses key findings from the Home Office consultation.
