From Lyme Bay to Licensing
Past, present and future - the development of current regulation of outdoor adventure activities
The deaths of the four teenagers in the Lyme Bay canoeing tragedy in March 1993 will be remembered for a very long time by many people, not only family and friends, but also those involved in the outdoor activity community.
The canoeing tragedy itself was the result of a series of errors and circumstances, which the Devon County Council report states "quite simply, should not have happened." This report goes on to say that "the immediate cause of the tragedy was, however, the lamentable failure of the St Alban's Centre to organise and supervise the canoeing activity, to employ suitable staff and to have prepared and operated sensible and pre-determined procedures when difficulties arose." The successful prosecution of the parent company, OLL and the managing director,
Peter Kite, was based around these issues.
The canoeing party set out from the Cob in Lyme Regis at about 10 a.m. on March 22nd 1993. The party of 8 pupils and their teacher were accompanied by two instructors from the St Alban's Centre. The intention of the trip was to cross to Charmouth and return to Lyme Regis by lunchtime. Almost as soon as the trip got underway, the teacher experienced difficulties, and whilst one instructor attended to him, the other instructor rafted the pupils together. The raft rapidly drifted away from the teacher and instructor, and lost sight of them. The pupils were wearing life jackets,
the instructors bouyancy aids. No flares were carried, and the pupils did not have spray decks.
As the raft of kayaks drifted away form the coast, the wave height increased, and gradually, one by one, the kayaks were swamped until all nine individuals were in the water. Although the group had been due back for lunch at 12 noon, the emergency services were not asked to help until 15:30. The teacher and one instructor had remained in their kayaks, and were rescued by the inshore lifeboat at 17:31. The rest of the group were picked up by rescue helicopter between 17:40 and 18:40.
The events that surrounded and led to the loss of these four young people re-invigorated the campaign to better regulate the safety of outdoor activity providers, particularly those providing activities for school children. In addition, an investigation and review of coast guard procedures were undertaken, as the trial judge considered that the actions taken by HM coastguard on the day in question demonstrated "oversight" with regard to the search and rescue operation.
By the early 1990's, outdoor education was increasingly offered by a range of providers, not only Local Education Authority (LEA) and charitable organisations, but also commercial organisations. There was concern that the reduction in local authority monitoring and control would lead to a reduction in standards of both quality and safety.
Indeed, moves towards a national system of registration or code of practice to ensure satisfactory standards of safety in the outdoor activity sector had already started before Lyme Bay. The HSE had started to plan a programme of visits to outdoor activity centres to assess the situation in late 1992 and early 1993. This programme of visits was given further impetus in March 1993 after the deaths in Lyme Bay.
Also, prior to the Lyme Bay accident, providers of adventure activities could, if they chose, opt in to voluntary codes of practice with a variety of organisations. For example, national governing bodies such as the British Canoe Union and Royal Yachting Association, which focused on the delivery of their activities only; centre accreditation under the Welsh Tourist Board or British Activity Holiday Association (BAHA) schemes; approval through membership of the Association of Heads of Outdoor Education Centres; or accreditation through a regional body, such as the Cumbria
Association of Residential Providers. All these approval systems were voluntary, limited in scope, and any one centre could have approval from different bodies. There was not universal acceptance of any one scheme. A number of these voluntary accreditation schemes still exist, and many activity providers subscribe to them.
In 1993, the English Tourist Board brought together a group representing most of the voluntary approval bodies and other interested parties, known as the "Activity Centres Advisory Committee," (ACAC). In April 1994 the ACAC published a Code of Practice, which " is a statement of principles and expectation for the responsible provision of organised outdoor adventure activities." The ACAC played a significant role in the development initially of a voluntary code of practice, and in the eventual Government support of a statutory scheme.
The ACAC Code of Practice was widely accepted within the outdoor industry as a major step towards a credible national scheme, and many providers stated in their literature that they operated within its framework. The voluntary scheme was welcomed by the campaigners for a statutory scheme as " a step in the right direction" but they considered that it " did not go far enough." (Devon County Council, December 1994). However, the inspection system was superceded before it started by the new Activity Centres (Young Persons Safety) Act 1995.
Between the Lyme Bay deaths in March 1993, and the introduction of the Act in January 1995, opinion had been sharply divided between those demanding statutory regulation, and those maintaining self regulation on a voluntary basis was adequate.
In November 1993, the then Secretary of State for Education, John Patten, introduced a four-point plan as "government action to safeguard pupils and others in outdoor activity centres." This plan was:
An immediate survey, already in hand, of outdoor activity centres followed by a special programme of inspection visits by the Health and Safety Executive (HSE) looking at standards of health and safety in them, over the next two years
making publicly available factual information about the inspections and any enforcement action arising from them
New comprehensive and detailed guidance by the then Department for Education (DFE) (later becoming the Department for Education and Employment) with the assistance of the HSE, to provide information to schools and local authorities on the lessons which they should draw from the Lyme Bay incident
Changes in the documents concerning schools Articles of Government to make explicit the legal duty of care concerning health and safety.
Those campaigning for statutory regulation greeted this four-point plan with widespread dismay. The Chief Education Officer of Devon County Council, Simon Jenkin, issued a statement saying the plan "places Education Authorities across the country in an invidious and untenable position" and "unless some formalised national system exists to record and monitor the qualifications and provide reports of accidents and near misses, then parents, teachers and pupils must have serious doubts about safety standards at outdoor activity centres."
The parents of the teenagers who died in Lyme Bay were campaigning hard for statutory regulation, lobbying MP's and Secretary of State for Education John Patten, and were aided by a national press almost universally in support of their aims. The Daily Mirror, on December 9th 1993, stated that "Thousands of children are facing appalling physical dangers because of the Government's refusal to bring in laws controlling holiday activity centres." This article went on to quote John Patten as claiming that the Lyme Regis tragedy was an "isolated incident",
and the paper detailed several other deaths and near misses in recent months in activity centres.
Throughout this period the Government maintained its position that it believed statutory accreditation was unnecessary, and this was also the opinion of the HSE. In a statement issued on December 8th 1994, a DFE spokesman said:
"Since the Lyme Bay tragedy, the Government has taken wide-ranging action on the safety of outdoor centres. This includes a special two year programme of inspections, and publication of guidance to centres was issued in September. It is the opinion of the Health and Safety Executive, on the evidence available, that further regulation or statutory accreditation is not necessary. The Government's view remains that there is no advantage to be gained from adding to the existing legislation and supports the voluntary accreditation scheme."
This view was reinforced by the DFE circular 22/94 issued in November 1994 entitled "Safety in Outdoor Activity Centres." This circular incorporated the four-point plan previously announced by Secretary of State John Patten.
However, at the trial in December 1994 of the company and its managers who ran the activity centre in Lyme Regis responsible for the ill fated canoeing trip, the Judge, Mr. Justice Ognall, made a powerful call for an immediate and thorough appraisal of the running of activity centres. He said the potential for injury or death was too obvious for safety procedures to be left "to the inadequate vagaries of self regulation." He added that authoritative control, supervision and if necessary, intervention was essential, and arranged that his observations be passed
to the then Secretary of State for Education, Gillian Shephard. The Judge also arranged that evidence of the rescue operation be sent to the Transport Secretary, who has responsibility for the coastguards. (An investigation into the rescue operation was conducted by John Reeder QC, and his findings were published in July 1996.)
Clearly the opinion of the trial judge, that self-regulation is inadequate, and the stated position of the Government, that further regulation or statutory accreditation is not necessary, were greatly at odds.
The campaign for regulation was gaining momentum, supported by the Association of County Councils, the National Union of Teachers, Holiday Which? The Townswoman's Guild, other elements of the media, parents and teachers. The opinion of the Health and Safety Executive, that further regulation was not necessary, was challenged by the campaigners, on the basis that children were entitled to a greater measure of care than the general public. The campaigners considered that the level of risk that parents accept when allowing their children to participate in school or similar
activities is much lower than that considered acceptable on a more general basis by the HSE.
HSE published an interim report in January 1995 on their survey of activity centres. This report noted that 31% of centres were accredited by an existing voluntary scheme, and that 84% of providers had made a satisfactory assessment of the risks and had adequate control measures in place. It also noted that "there was no room for complacency" and that there was "a real need for improvement in a significant minority of centres." David Jamieson MP used these figures and statements to support his push for regulation, focusing his concerns on the 69% not
participating in voluntary inspection and approval. He pointed out that the figures showed that 16% of providers did not have a satisfactory risk assessment, and asking if these were safe.
Additional pressure was brought to bear on the Government by the conclusions of the ACAC, who significantly had been brought together with a remit to examine the feasibility of viable self-regulation for the industry, but concluded that a statutory scheme would be the best option. The Welsh Tourist Board, who operate a voluntary scheme, also concluded that legislation was needed.
David Jamieson tabled a Private Members Bill, which gained an unopposed Second Reading on January 27th 1995, and was then accepted and supported by the Government, gaining Royal Assent in June 1995, as "The Activity Centres (Young Persons Safety) Act 1995.
The Health and Safety Commission (HSC) was charged by the terms of the Act with drawing up the proposals for regulations and guidance to implement the safety provisions of the Act. A consultative document was issued in the autumn of 1995 setting out proposals for a statutory scheme for the licensing of adventure activities for young people under 18. The paper also contained proposals for a non-statutory scheme to sit alongside and compliment the statutory scheme.
During this period the Select Committee for Education published its conclusions from its investigation into the provision of adventurous activities for children, and many of its conclusions and recommendations were incorporated into the final regulations. The Select Committee took evidence from a wide range of interested parties, including local authorities, managers of activity centres in both public and private sectors, teachers unions, NGB's, parents and others. They also took oral evidence from local authority associations, BAHA, ACAC, and the DFE. The final report
notes that the "great majority of evidence we received argued the case for a statutory system of inspection and accreditation of centres." A significant part of this report makes recommendations on issues the legislation should address.
The HSC recognised that some degree of risk is unavoidable if adventure activities are to accomplish their essential purpose, as did the campaigners for a statutory scheme. Simon Jenkin in his letter to Headteachers of all Devon schools, sent out on the final day of the Lyme Bay trial, noted that "...accidents of the kind that happened in Lyme Bay can never be avoided completely." The initial report of the Devon County Council inquiry into the deaths in Lyme Bay notes - "...we recognise that there will always be a degree of risk when young people undertake
The HSC did not wish to cut across the freedom of voluntary and national organisations to offer opportunity to members to participate on a non-commercial basis, and considered that the organisers and the parents of the young people involved in these activities should take responsibility for their own affairs.
The findings of the HSE survey of activity centres that started in 1993 were published in April 1996, and were taken into account by the HSC. The survey concluded that, overall, "safety was generally well managed, and that legal requirements were met by most providers." The survey also noted that "Not surprisingly, most of these providers are still vividly aware of the Lyme Bay incident and the failings which led to the deaths of the young people involved."
However, the survey report concluded that the "proposed licensing scheme for certain prescribed activities should improve further the safety standards....".
All these considerations lead to the final form of the Regulations, which were put before Parliament at the end of March 1996, and took effect from the 16th April 1996.
An independent licensing authority was designated by parliament. This non-departmental public authority, the Adventure Activities Licensing Authority, is funded by the Department of Education and Employment (DFE) and operates under the guidance of the HSC.
An inspectorate was appointed drawing on skilled and experienced individuals from within the outdoor community. The aim was to provide an interface between the outdoor community and government officials. The statutory function of inspecting providers of adventure activities and issuing licences could be achieved, under the guidance of HSC, using many of the existing ethics and structures of the outdoor community.
The Licensing Authority commenced inspections of activity providers in the autumn of 1996, visiting the majority during the summer of 1997, and by September 1997, had made decisions on the issuing of licences to all providers who had applied for a licence.
The initial number of licence holders was 875. The ACAC had estimated that around 1500 providers would fall within the scope of their proposed scheme, but the Regulations as finally drawn reduced this estimated figure by almost half. The Licensing Authority refused to issue a licence to 13 of the original applicants, and a further 49 withdrew their application. By February 2000 the total number of licence holders had increased to 911 and total refusals to 29.
Inevitably, the implementation of the Regulations required the Licensing Authority to interpret the guidance, and make decisions about "grey areas", endeavouring to remain within the letter of the law and the spirit of the overall intentions of the Regulations. Areas that caused most difficulty, and led licence holders to query the Licensing Authority, include the variable duration of licences, the cost of obtaining a licence; the difficulty of deciding if an activity was licensable or not; the fact that voluntary groups and schools taking young people on identical
activities do not require a licence; and the lack of overall publicity and public awareness of the scheme. A further concern was that licence holders may offer a large number of activities that do not fall within the scope of the scheme, and contrary to public perception, these activities may not receive the same scrutiny as licensable activities.
A triennial review was envisaged at the outset of the scheme, and this took place in 1999. The review was undertaken by DfEE, and a consultation document circulated widely. A number of organisations and individuals argued for a change to the Regulations, suggesting that HSE should take on the registration of all providers of outdoor activities, and this compulsory registration would be for all activities, not the limited range under the current scheme. Other suggestions included phasing out the statutory regulations and replacing it with a non-statutory safety inspection
Overall, the majority of respondents to the review were of the opinion that the scheme "was doing its job" and three quarters said it should continue, with a further review in three years time - 2002. On 10th December 1999, the Schools Minister, Jacqui Smith announced that the scheme will continue, "in order to provide an assurance that pupils can take part in adventure activities safely." The minister added that she is "...particularly keen to ease the financial burden on smaller adventure activity providers." She notes that the licensing
scheme is "currently the best option available." and will be liaising with all interested parties "
on the way they'd like to see adventure activities regulated, in the run up to the triennial review in 2002."
It is clear that the scheme exists not only to promote safety in the provision of outdoor activities to children, but also to "provide an assurance" to the public that the activity provider has been inspected and is operating to acceptable safety standards. This latter point, of "providing an assurance" will be key to the credibility and acceptability from the public's point of view, of any scheme that supercedes the existing regulations.
The final conclusion of the Select Committee in 1995 stated that:
"It should be possible to implement legislation which reduces the level of risk in such activities to a minimum without reducing the opportunities for young people to participate in them. Above all, we hope that the passage of legislation will help entrench among providers - and users- of activity centres the culture of safety which is ultimately the best defence against tragedies like that at Lyme Bay."
Changes to the scheme before the 2002 review are therefore focused on reducing "red tape" and the financial burden on smaller providers. Beyond 2002, the challenge to all involved will be to find a credible, acceptable scheme, which continues to "provide an assurance" to the public that their children are in safe hands, and which does not reduce the opportunities for young people to participate.
Jan Bradford, Senior Inspector with The Adventure Activities Licensing Authority