Outdoor Activities – licence or code?
Posted: Monday 7 November 2011
Over the last couple of days it has been reported that the chair of the Scottish Advisory Panel for Outdoor Education, Mr Nigel Marshall, has criticised the UK government’s plans to introduce a voluntary code of practice to replace the current licensing scheme which was established under the Activity Centres (Young Persons’ Safety) Act 1995 (the “Act”) as a “negative step”.
Background
The Act was introduced following the tragic deaths of four teenagers whilst canoeing at an activity centre in Lyme Bay, Dorset in 1993.
It imposes requirements relating to safety (presently set out in the Adventure Activities Licensing Regulations 2004) which require that paid provision of four defined adventure activities (namely trekking, water sports, caving and climbing) for young persons under the age of 18 be licensed.
The responsibility for the licensing regime is that of the Adventure Activities Licensing Authority (AALA).
The licensing scheme does not cover any activities outside of the four defined areas nor does it cover any of the defined areas when provided for by schools for their own pupils.
Voluntary Code
In June of this year, the Health & Safety Executive (HSE) launched a public consultation on the possibility of abolishing the current licensing scheme and replacing it with a voluntary code of practice.
This followed the recommendation of Lord Young who, in his report “Common Sense Common Safety”, criticised the current licensing regime as “a cost and burden on business that adds little to the health & safety of young people undertaking adventure activities”.
So how will a voluntary code of practice operate?
Well, the plan is for the HSE to oversee and monitor the code of practice to ensure that those planning trips are compliant. The code will be either a statement of general principles applicable to all activities or be more specifically aimed at a narrower range of activities.
As the only legislative change will be to remove the statutory licensing scheme, the AALA would not be repealed. In addition, the consultation document confirms that there would be no plans to change the provisions in the Health and Safety at Work Act 1974 or the Management of Health and Safety at Work Regulations 1999 and so the general duties placed upon every provider of outdoor activities by this legislation will remain in force.
Criticisms
The HSE consultation ended on 21 September 2011 and it is intended for legislative change to begin process through Parliament in 2012.
However, there have already been significant criticisms of the proposed changes.
In addition to Mr Marshall’s comments, the teaching union NASUWT is concerned that the changes could endanger lives, describing the drive to abolish the licensing scheme as “driven more by political ideology than common sense”.
Until the proposed changes are placed before Parliament, it is difficult to second guess what impact (if any), the consultation process will have had. It does appear however that the issue has divided the outdoor activity market with some providers having concerns that abolishing the licensing regime could change public perception that outdoor activities are inherently safe.
One final point worth noting for providers north of the border is that creation of a voluntary code of practice would be a devolved matter and therefore if the Scottish government is not happy with the plans, it can come up with separate proposals.
To discuss this further contact our sports and tourism law expert Paul Geoghegan.
