Future of adventure activities licensing
Response to the HSE consultation on the subject, arguing that there is a continuing need for an independent regulatory authority in this area
The Activity Centres (Young Persons’ Safety) Act 1995 was introduced in the wake of the deaths of four children during a canoeing expedition at Lyme Bay, Dorset in March 1993. It provides for the mandatory licensing of all commercial centres which offer any or all of trekking, water sports, caving and climbing to those who are under the age of 18, with the cost of the licence being borne by the activities providers.
In 2010 Lord Young’s report, Common Sense Common Safety, recommended the abolition of the Adventure Activities Licensing Authority (AALA) on the grounds, inter alia, that the cost of the scheme was a disincentive to new and small activities providers who might wish to enter the market, given that the risks which those particular activities involve can be mitigated by proper compliance with the wider health and safety framework.
In summer 2011 the Health and Safety Executive launched a consultation exercise on Lord Young’s proposal that AALA be abolished and replaced with a code of practice accompanied by appropriate mechanisms for monitoring providers’ compliance with it. While the consultation is concerned with post-AALA adventure activities regulation in England alone, what follows is a response to that consultation which drew upon two recent fatal accident inquiries and the HSE’s own report into recent participant fatalities elsewhere, in addition to consideration of the wider regulatory framework. I have written elsewhere about the relationship between those legal issues and the perceptions of the AALA framework which are held by a small number of interviewees who operate AALA-licensed centres in the North of Scotland (for a more detailed analysis see "The Views From the Hills: Fatal Accidents, Child Safety and Licensing Adventure Activities" (2011) 31(3) Legal Studies 372-391), and it is hoped that this written response has the potential to offer helpful insights into the strengths and weaknesses of AALA from the Scottish perspective.
The fatal accident inquiries
In the 2010 fatal accident inquiry into the death of 15-year-old Laura McDairmant, the Sheriff, Johanna Johnson QC, noted that specific instructors’ qualifications in certain activities, including gorge jumping in which Laura was participating, are not available from any national sports governing body (part I, para 55), and that gorge jumping and gorge walking are not designated activities under the AALA regime. Consequently, this activity did not fall under the auspices of AALA and those who offered it had received no formal training from any accredited governing body. Although the activity could have been inspected by the local authority by virtue of its powers under the Health and Safety at Work Act 1974 and attendant Regulations, Dumfries & Galloway Council had a policy of not inspecting any activities providers who were inspected by AALA – even in respect of those activities where AALA’s remit does not run (part 1, para 101).
For many, this state of affairs goes to the heart of the difficulties posed by the AALA regime: understanding why some activities are covered while others are not, and knowing where responsibility for inspecting particular activities or particular providers ultimately lies, is difficult unless one is well versed in the tragedy of Lyme Bay and the reasoning which underpinned the 1995 Act’s introduction.
That said, being in possession of such knowledge does not mean the arrangements will necessarily make any sense either, and the existence of several regulatory frameworks in respect of those who provide adventure activities to young persons (two phrases which themselves have rather arbitrary definitions), means the arguments in favour of AALA’s abolition – or at least its fundamental reappraisal – are attractive because under the current framework it is not always easy to ascertain where responsibility lies.
In the McDairmant case this absence of an appropriate, externally-validated leaders’ qualification in gorge jumping had been compounded by an absence of “joined-up thinking” on the part of the local authority, AALA and the wider HSE; a more straightforward framework – at least in terms of it being easier to ascertain where responsibility lies – would clearly be desirable, but you can’t easily legislate for the stupidity of individuals.
The McDairmant inquiry bears uncomfortable comparison with the 2009 FAI into the death of Kaylee McIntosh, aged 14, who drowned while on an Army Cadet Force (ACF) expedition on South Uist in 2007. For the purposes of this paper, a no less significant factor than the dreadful circumstances of her death at the hands of the ACF instructors was the fact that, because the ACF is not a commercial activities provider, its activities are not covered by the AALA regime, and an AALA licence had not been needed in respect of a water-based activity for which a commercial provider would have required one. A manifestly inappropriate approach to a potentially dangerous activity had thus been allowed to slip through the net, simply because the people who ran the activity were not looking to make a profit from it; the McIntosh FAI thus highlighted the dangers of there being different regimes in respect of the same activities simply by virtue of the different legal status of the undertakings which offer them.
The review should thus take into account the anomaly of there being divergent approaches to providers who offer the same potentially dangerous activities, and there is certainly no evidence that AALA-accredited providers are less safe than the non-accredited ones. While one appreciates that the different regimes are a consequence of the desire not to burden charitable and voluntary bodies with the costs and complexities of licensing, the welfare of the young people who participate has to be paramount; whatever framework applies to commercial providers should also be applicable to the non-commercial undertakings.
Sadly there have been deaths in all parts of Great Britain in the course of adventure activities since the 1995 Act came into force, but only Laura McDairmant’s decease involved failures on the part of an AALA-accredited provider. The one common factor is that they were all a consequence of wilful health and safety breaches by the responsible adults, and would almost certainly have been avoided if the risks inherent in the activities had been properly assessed and managed in accordance with the 1974 Act and the Management of Health and Safety at Work Regulations 1999, which are the first points of reference for such activities and which provide (when read in conjunction with other HSE documents) guidance as to what is required.
For accredited providers the 1995 Act is supplemented by the Adventure Activities Licensing Regulations 2004, and while compliance with those regulations is deemed to connote “compliance with nationally accepted standards of good practice in the delivery of adventure activities to young people, with due regard to the benefits and risks of the activity”, the regime thus represents an extra layer of bureaucracy because it operates in addition to, not instead of, that wider health and safety regime.
Taken together, it means that there is a daunting regulatory framework that activities providers whose skills and passions lie elsewhere must understand, in order both to get their licence and thereafter to work within the parameters of health and safety law – so much so that perhaps the complexity of applying is no less a disincentive than are the costs of applying, and if a less convoluted framework which still serves the ultimate purpose of protecting participants cannot be developed, there must at least be an accurate, easily available, low cost source of information to which activities providers can turn for assistance. There would be opportunities for those currently involved in AALA to devise and manage such a scheme.
The wider issues
In respect of the designated activities, AALA’s powers are not particularly extensive, and this is a potential source of grievance for activities providers because, beyond its inspection remit, AALA “has no statutory enforcement powers and no immediate power to prevent an activity from continuing”. The enforcement of all these aspects of health and safety law is ultimately within the purview of the local authority, and thus it is difficult to establish that AALA has actually helped make the designated activities “safer”.
The various roles of the HSE, AALA and local authorities create the potential for some roles to be duplicated while others are not carried out at all. At the McDairmant FAI Sheriff Johnson noted that “there is no system in place to ensure that a local authority is made aware of the adventure activities which are not the subject of inspection by AALA and for which the local authority retains responsibility for inspection”. The McIntosh FAI graphically illustrated how it is perfectly possible for non-commercial providers to avoid inspection regardless of the activities they offer; and activities considerably more dangerous than the ones the 1995 Act designates likewise fall outside AALA’s remit because “the definition of adventure activities has not been flexible enough to encompass a number of new and potentially risky activities”.
All that said, because it provides a very important source of information for schools, parents and young people, AALA has much to commend it, and as the review proceeds it would be worth establishing whether users look for AALA accreditation even if they are seeking an outdoor centre to provide non-designated activities, or to work with adults.
If it were to remain in situ in Scotland only, it might make Scottish centres attractive to schools and parents elsewhere who appreciate what AALA accreditation represents and take a degree of confidence from it. But AALA accreditation, of itself, does not guarantee that those providers will actually have access to the regulated activities market, because individual local authorities still have their own procedures that operate in addition to those imposed by the licensing authority, and an activities provider needs to satisfy the requirements of the former as well as those of the latter. For many local authorities the AALA regime does provide as much evidence of a safety culture as they feel they need, but for others AALA is almost an irrelevance; there is too much divergence in the approaches that local authorities take.
Some activities providers do not deal with particular local authorities because of the time and expense involved in doing so, and given that some activities or providers seem to avoid inspection altogether while others have to go through multiple processes that promise nothing in return, it would appear sensible to consider whether a degree of uniformity could not be achieved by the local authorities, perhaps to the extent of there being a centralised application procedure which needs to be carried out only once in order to satisfy all the local authorities an activities provider might wish to register with.
The alternative is that local authorities must be willing to do what AALA currently does – inspect every site where a designated activity takes place, and ensure that the task is carried out by people with appropriate expertise. At present, many local authorities are content just to receive the requisite paperwork from a centre whose competence has been prima facie established by virtue of its being AALA registered, but one anticipates that if AALA is replaced by self-regulation it will take time to convince many schools, local authorities and parents that the scheme is appropriate; end-users have grown accustomed to there being proper external oversight of activities providers and their views need to be canvassed.
The Glenridding Beck inquiry drew attention to the benefits of local authorities having a “suitably experienced” outdoor education adviser (perhaps similar to the ones who emerged in Scotland in the 1970s and 1980s after the Cairngorm disaster, but whose demise was precipitated by declining funding thereafter), but suggested that they still “might need to obtain advice from specialists in connection with particular activities”. This approach could have merit, because overseeing the paperwork requires different skills to overseeing instructors’ ability to engage in a dynamic risk assessment which takes into account changing weather conditions, the attitudes and maturity of the participants and the experience and competence of the group leaders; while many centres now offer myriad activities, like gorge jumping, which are relatively new and not many people have extensive experience of them. Reforms that would result in clearer lines of communication between a licensing body and local authorities, with the former taking responsibility for what occurs in the field and the latter taking responsibility for the no less important task of overseeing the documentary evidence, might thus be worthy of consideration; it would certainly be an alternative to a framework of self-regulation if this review detects little enthusiasm for that.
AALA accreditation is not cheap, but when considered alongside the concerns about declining participation, the myriad other opportunities for out-of-school curriculum-linked activities, the obligations imposed by the wider Scottish, UK and European legal frameworks applying to such undertakings, and the seemingly ever-increasing insurance premiums which face activities providers, it becomes apparent that the cost of AALA registration is only one factor, and perhaps a comparatively insignificant one, that those providers have to accommodate. None of those other challenges is going to go away, but there would be merit in exploring the strengths and weaknesses of the scheme presently operating in Northern Ireland, and to see whether it might be possible for government, sporting organisations and the activities providers themselves to develop a less expensive, probably non-statutory, framework which avoids duplication while taking the necessary steps to ensure these activities remain safe and effectively regulated, in a manner that parents and schools can understand, while rendering the whole regime less intimidating.
There is a risk that AALA is going to be the scapegoat in the drive to reduce bureaucracy and, in the medium term, it might become apparent that the real difficulties which face the sector lie elsewhere. AALA has probably served its purpose, at least in its current form, and a streamlined, more rational, system of licensing and inspection would have much to commend it; but the potentially negative impact of there being no independent regulatory body which oversees the industry – and which gives parents and schools a degree of confidence in respect of it – will have to be carefully balanced against any benefits which might accrue from the changes presently being considered.
Finally, those who have responsibility for developing a post-AALA regime will be aware that there are particular environmental and climatic challenges facing adventure activities providers in Scotland, and also that there are other fundamental differences which make the Scottish experience very different to that which applies in England & Wales. While the desire to have the same framework applying across the UK is superficially attractive, it is not necessarily the case that whatever is deemed appropriate for one jurisdiction will be suitable for the other, and this may become another area where education law and policy in Scotland develops very differently to what emerges elsewhere.
Indeed, the review should proceed on the clear expectation that because education is a devolved matter, it is quite possible that whatever framework replaces AALA in Scotland (assuming it is replaced here at all) will be significantly different to that which emerges in England & Wales. One would expect that the differences in climate, geography, educational policy and the wider legal framework may well lead the current Scottish Government to regard adventure activities licensing as an area in which Scotland’s post-devolution autonomy over education matters can, and should, be robustly asserted.
Dr David McArdle is a senior lecturer in the School of Law, University of Stirling