Irresistible force meets immovable object!

Everybody knows it, but nobody wants to talk about it. On Monday 20 March, the guarding/keyholding sector of the security industry will reach crisis point. By any conservative estimate, there will be tens of thousands of security officers operating illegally in England and Wales, without benefit of a licence granted by the Security Industry Authority (SIA).

The immovable object here stems from the deadline which was set many moons ago. The SIA chose - from a range of options - a definitive date which could not be altered. There is no point in dwelling too long on the whys and wherefores. There was an informal undertaking by representatives of ‘the industry' (that nebulous, catch-all phrase) to begin to submit licence applications up to one year in advance. Some did and some didn't, an outcome which is not altogether surprising given the cost/cash flow implications of an application which would lose up to 33% of its value before delivering any return.

Informal undertakings, as they say, are not worth the paper they're written on. There is no doubt that the deadline is fixed. The Home Office minister responsible, Mr Paul Goggins, has gone on record saying exactly that (‘Regulation "must be policed" states CBI boss', News Update, SMT, December 2006, p7), and on more than one occasion.

Pressure is beginning to build

The pressure on the immovable object is increasing all the time, as the bottleneck of applications builds up. Even with an enhanced processing rate, the SIA cannot expect to clear the backlog until some time after 20 March. Many security officers and their employers will be in breach of the law - and what a tough law. One day, a law-abiding taxpayer... The next, the worst of all things - a criminal inhabiting the security sector.

If the SIA's avowal is to eliminate criminality from the industry, it will have neatly produced a target-rich environment.

In this case, the irresistible force is the punitive action which awaits these soon-to-be criminals - and this is not a minimum force. From what I have been told, it would seem that there is a traffic-light system in operation. Green companies are OK. Red contractors are set to miss the deadline while those under Amber are somewhere in-between.

Of late, I've received telephoned calls from managing directors who have been threatened with legal action immediately after the deadline, and who are now fearful they will be prosecuted regardless of the efforts they may have made to meet the Government's deadline.

On 20 January, the SIA issued a press announcement detailing ‘Operation Forewarn'. It states that 27 security companies the Regulator considers to be "high risk" have been visited by specialist SIA investigators. Apparently, senior staff from each contractor were ‘asked' to sign a declaration that they understand the implications of the legislation.

All messages being sent out by the SIA suggest the irresistible force will be brought into operation on the dot of the deadline.

Preparing for the worst

Exactly what elements and aspects of English and Welsh life, then, will be forced to close down on 20 March? Hospitals, Government buildings, transport networks, warehouses, industrial estates, power stations and office buildings are but a few examples. Pretty much any organisation employing and deploying contract security is at risk of closure. Customers will be let down, employees will be let go and new recruits will not be sought.

Employee contract termination notice letters, to be issued in February, are being prepared by one company in case licences are not through on time

Many companies are now actually thinking along these lines. Employee contract termination notice letters, to be issued in February, are being prepared by one security company in case licences are not through on time. At another major contractor, recruitment has ceased since there is no prospect of licensing being completed by March. The expected delay is apparently running at around 20 weeks from the date of employment. Both of these companies are anticipating serious long-term damage to be done to their businesses.

Only it will not happen. The country is not going to grind to a halt. Contracts will be fulfilled. Unlicensed staff will be employed and deployed. Why? Put simply, there is no alternative. Given the SIA's processing methodology and speed, for the industry to be licensed on schedule just how much time is ‘reasonable' to expect a person to apply for a licence? The answer will be given by the Courts (if it comes to that).

Given the Passport Office and DVLC efficiencies which they would use as a yardstick, let's assume that a Judge decides on two months. Any greater length of time than that would be ‘unreasonable'. In other words, using this rough estimate, an existing employee/company who applied before 20 January would be OK. A ‘starter' who was employed/applied thereafter would expect to receive his or her licence at the normal speed of the SIA machine.

If an employment/application begun in February/March was not returned until June, or July or August, that would be ‘reasonable' given that it was in the hands of the SIA processing machine throughout that period. The ACS - and its licensing dispensation - is a red herring compared to this limitation on punitive action.

The National Security Inspectorate has had to deal with this type of situation twice in the last three years in connection with DD243 and PD 6662. In both cases, the deadlines were fixed and ‘the industry' was not ready (and, what's more, could not reasonably be expected to be). As the enforcement organisation, we chose to negotiate for leniency and practice clemency, on the basis that it was unfair to do otherwise. Although that was hardly what we wanted to do, we felt obliged to explain this ‘fudge' to the industry such that people would know where they stood.

Ironing-out inconsistencies

Something will have to give and, because that something cannot possibly be the immovable object, it will have to be the irresistible force.

There is simply no point in the SIA threatening companies with prosecution if they cannot reasonably be prosecuted. Most important of all, the stress and grief which such a threat introduces into companies must be relieved because it's starting to cause mayhem.

This represents something of a dilemma. The SIA could well argue that it's introducing pressure in order to create more urgency. Fine. However, inconsistent behaviours by the Regulator would soon need to be smoothed out into some sort of logical communication or else this sector of the industry - which is supposed to be improved by regulation - will end up much the worse for it.

Tom Mullarkey is chief executive of the National Security Inspectorate (www.nsi.org.uk)