In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking ... as might affect their health or safety.
Further to that, an employer or self-employed person has a legal duty to complete a risk assessment. Risk assessments are a legal requirement under the Management of Health and Safety at Work Regulations 1999. Regulation 3 stipulates:
Every employer shall make a suitable and sufficient assessment of ... (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and ... (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.
This regulation requires all employers and self-employed people to assess the risks to workers and any others who may be affected by their work or business. This will enable them to identify the measures they need to take to comply with health and safety law. All employers should carry out a systematic general examination of the effect of their undertaking, their work activities and the condition of the premises. Those who employ five or more employees should record the significant findings of that risk assessment.
A risk assessment is carried out to identify the risks to health and safety to any person arising out of, or in connection with, work or the conduct of their undertaking. It should identify how the risks arise and how they impact on those affected. This information is needed to make decisions on how to manage those risks so that the decisions are made in an informed, rational and structured manner, and the action taken is proportionate.
A risk assessment should usually involve identifying the hazards present in any working environment or arising out of commercial activities and work activities, and evaluating the extent of the risks involved, taking into account existing precautions and their effectiveness. In this approved code of practice ... (a) a hazard is something with the potential to cause harm (this can include articles, substances, plant or machines, methods of work, the working environment and other aspects of work organisation) ... (b) a risk is the likelihood of potential harm from that hazard being realised. The extent of the risk will depend on ... the likelihood of that harm occurring; ... the potential severity of that harm, i.e. of any resultant injury or adverse health effect; and ... the population which might be affected by the hazard, i.e. the number of people who might be exposed.
I also have guidelines from another source: Reservoirs and HSW Act: Inspections Policy. It relates specifically to reservoirs, but the control measures cited may be of some use. With regard to public safety, it says that a risk assessment is required to take into account high-risk areas and the likely actions of persons using a reservoir. It says that fencing or natural barriers may be needed to discourage people from approaching deep water. It says that fishing platforms may be provided to direct anglers away from areas where they could slip into the water and suggests considering the provision of rescue aids within the risk assessment. For example, if the reservoir is visited only by water company employees, they should take rescue aids such as throw-lines to the site.
Where members of the public regularly gain access to these sites, rescue aids must be located at suitable points. Warning signs should be placed at suitable locationsfor example, entry pathways and high-risk areas.
Do we think that existing legislation is good enough for public amenities? Should there be more specific regulation for public premises? Health and Safety Executive legislation is aimed more at the protection of employees and may be inadequate for public safety. Good employers understand the dangers that are present on their premises and enforce risk assessments, but in understanding the dangers of water the public are possibly overlooked by others. After all, employees are more likely to be aware of the dangers than members of the public.
For instance, the pond at the caravan park where the Marsdens had their tragic accident had conducted a risk assessment only after an earlier incident at the same pond. We need also to consider that caravan parks tend to attract families with young children. Why does the legislation that governs them not take that fact into consideration? If there were a swimming pool on the site, we would expect at least some safety procedures to be in place. We recognise a pool to be a hazard, although I accept that that is another area where the law is vague. That surprises me. It is another area where I would like to see legislation tightened.
We do not consider that the same requirements are necessary for ponds despite the fact that they could pose the same threat to visitors, particularly the young. In the majority of cases, I would like to see ponds filled in. If they are not, there should be a requirement to ensure that fences are put in place to prevent accidents. In the Marsden case, the pond did have a small fence, but it was not high enough and therefore did not have any effect. If anything, it could be argued that it had a negative effect. Safety can definitely be improved by the
provision of adequate fencing. This is not a measure that would place huge expense on park owners, but it may well save lives.
If we have ponds in our gardens, we may well need to take similar measures, if we believe that they could be accessed by children. We should not lose sight of the fact that many deaths have occurred in just such ponds.
I would like to see a requirement on park owners to alert all guests to water hazards or any other hazards that are present on the site. Specific water legislation to cover amenities of this sort, such as a caravan park, would make it clear to all concerned that there is a need to take proportionate action to reduce the risk of open water on their premises. Current legislation does not do this, and I believe that it would help all concernedoperators and the publicin diminishing the risk posed by water, especially to young children, if such legislation were in place.
There is another issue that has an effect on water safety. In carrying out research on this subject, I found it difficult to ascertain who exactly had responsibility for water safety. The water safety forum provided a framework for action, but I found it confusing when trying to ascertain who dealt with what aspect of water safety. The WSF does not deal with such inquiries.
When pursuing my inquiries on behalf of the Marsdens, I had delays in responses to letters as they were pushed from one department to another. Responsibilities for inland water are spread across several Government Departments and agencies. It was difficult for me to ascertain whether the incident was dealt with by the local authority, the Office of the Deputy Prime Minister as it was then, or the Health and Safety Executive, with the Department for Work and Pensions being the enforcing authority. That can lead to further anguish for bereaved parents.
We need to increase the public awareness programme into water safety for young children. Most parents are aware of all the dangers posed to children, but perhaps the message about water is not pushed hard enough. We instil in our children the dangers posed by traffic on our roads. We tell them about the dangers of getting lost and those of wandering off. Perhaps we face these dangers every day. More emphasis should be given to the dangers of water, particularly in schools.
We all have a responsibility for childrens safety. While the onus is on parents and guardians to mind children and teach them the dangers of water, reforms could be introduced to reduce the chances of death by drowning in certain circumstances. New regulations on water safety in public places would concentrate the owners mind, and encourage them to carry out risk assessments and take appropriate action. A central Government contact point to deal with all water safety issues would enable inquiries for information to be dealt with quickly and effectively. A co-ordinated national education campaign aimed at parents and guardians could advise them of the dangers to children of water and of their responsibilities.
In conclusion, I accept that dangers to our children will always exist, but we must do something about water danger. The introduction of sensible legislation and regulation would clearly help, and we need more common sense in this area. The Marsden family have suffered a tragic loss, and they rightly hope and desire that no other family should suffer in such a manner.
The Parliamentary Under-Secretary of State for Work and Pensions (Mrs. Anne McGuire): May I congratulate my hon. Friend the Member for Alyn and Deeside (Mark Tami) on securing this debate? In his customary way, he has raised an important matter, and I thank him for the opportunity to consider how we can improve safety for children at water attractions by raising the tragic case of Matthew Marsdena young two-year-old child who sadly died on 21 August 2004.
First, I am sure that hon. Members will wish to join me in extending sympathy to Matthews family on their tragic loss. Nothing, as my hon. Friend said, can take away the pain that Mathews parents feel following the loss of their young son, who was just starting out in life. It is quite understandable that they wish others to learn from their terrible experience and suffering so that young lives are not cut short in a similar tragic accident in future. May I set out the background by looking at drowning rates in the United Kingdom? The risk of drowning is small, with a death rate of 0.8 per 100,000 deaths in the UK each year. However, as my hon. Friend identified, the risks to small children are significant. The latest figures from the Royal Society for the Prevention of Accidents show that 131 children drowned in small volumes of water in the 11 years to December 2003, and that 90 of them were under five.
Most of those accidents happened in garden ponds, water features and paddling pools in the vicinity of the childrens own home or in a family environment. Water is highly attractive to children and even the shallowest of ponds can be lethal to the very young. Each and every one of those deaths is a terrible family tragedy. My noble Friend Lord Hunt wrote to my hon. Friend last year about the case. Matthews drowning on holiday with his family at a caravan park was investigated first by the police, then by Gwynedd county council under health and safety legislation, as enforcement responsibility fell to the local authority, not to the Health and Safety Executive. Formal enforcement action was not taken but, following investigations, the caravan park has filled in the duck pond as a mark of respect to Matthew and his family.
On the legal position, caravan park owners and operators, like any other responsible employer, must provide healthy and safe working conditions for their employees under the Health and Safety at Work etc. Act 1974, as my hon. Friend said. They have a responsibility, too, to protect members of the public from their work activities. In addition, they have a duty to carry out risk assessments under the Management of Health and Safety at Work Regulations 1999.
That means that operators such as those at the holiday park have a duty to ensure that risks like those presented by the duck pond are properly assessed, managed and controlled. I fully understand that following such a tragic loss, there will be calls for the introduction of additional legal controls with the aim of preventing similar accidents. I regret, however, to advise my hon. Friend that I do not believe that new legislation is the answer.
Under our existing health and safety legislative framework, it is for dutyholders to identify what their particular hazards and risks are and what precautions are necessary to deal with them in their own
circumstances. Such flexibility is important because it enables judgments to be reached on what is appropriate and sensible in various circumstances. The legislative framework provides the freedom to devise solutions that satisfy safety goals in a way that is not prescriptive or bureaucratic. This is aimed at ensuring a proportionate responsea basic principle of good regulation. I do understand, however, that parents who have lost a child in such circumstances may feel that a proportionate response should, indeed, be more regulation.
There are various types of water attraction, which my hon. Friend highlighted. Those include, for example, boating lakes, swimming pools, both public and domestic, reservoirs, lakes, canals, rivers, the seaside and marinas, as well as duck and garden ponds. Some are run by commercial businesses, some by charities and others by local authorities. Some are located in peoples homes and gardens, and others are part of the fabric of our countryside and open to everyone.
Just as there are many types of attraction, there is a wide range of safety precautions available. These include, for instance, fencing the edges or ensuring that they are gently sloping, flat or well defined, providing lifebelts, providing warning notices and information, and ensuring supervision by staff, parents or responsible adults. When these are attractions to which the public have access, it is for the operators to consider the available precautions and decide which are the most appropriate ones for them in the context of the risks. Of course, everyone has the responsibility to use them in a sensible manner.
Sensible risk management will usually involve a combination of a number of precautions. Operators should be seeking to effectively manage their risks in their own particular circumstances, yet still allow the facilities to be enjoyed and appreciated by those using them. Tragically, there are no guarantees that trying to make water attractions inaccessible would eradicate risks to children. It is a sad fact that fencing, as my hon. Friend observed, can provide parents with a false sense of security, and accidents can still occur because parents think their children are safe. But fencing can be climbed by older children, and can become damaged and allow access to smaller children.
Where there is any stretch of water, even the shallowest garden pond, there is risk for children, and everyone in a position of responsibility needs to be aware of the risks and take the necessary actions. This may include operators bringing the hazards to the attention of parents. New legislation would not be the answer to the problem. It would not be practical or desirable to try and fence and make inaccessible all ponds and stretches of water, or for some form of formal supervision to be required in all cases. As it is, the existing legislation requires dutyholders to exercise judgement on how best to reduce risks in a sensible way.
Water is everywhere, and access to many attractions is open to individuals and families to enjoy as they think fit. It would not be possible to make canals, marinas and other water attractions inaccessible, but there are undoubtedly risks to children and others when visiting these attractions. As my hon. Friend acknowledged, risk is a part of everyday life and we
cannot eliminate it all together. We certainly would not want to prevent people making use of and enjoying the countryside and seaside where they live or where they visit. We also would not want to require measures that are impractical and, in so doing, inadvertently force the closure of attractions that can be used and enjoyed safely.
However, it is clear that we should do all that we can to try to minimise the risks of drowning to children, but our approach must be to ensure that current arrangements work as well as possible, that people are fully aware of the risks and how best to manage them and that people are clear about their responsibilities. Often, a combination of measures and responsibilities is needed to ensure that risks are properly managed. That could include fencing and supervision, but it may not be practical or even desirable in all cases.
The Health and Safety Commission has said that it does not necessarily see new regulation as the solution to all problems, particularly when there are other means of achieving the same ends. Those who have such responsibilities are best placed to ensure that risks are sensibly managed and that the public are protected from harm. In this case, leisure site operators are best placed to ensure that the risks are sensibly managed and that the public are protected from serious harm. Where they fail to fulfil their legal responsibilities, they may be subject to enforcement action, including prosecution under health and safety law. I believe that the existing legislative framework is sufficient to provide for that.
My hon. Friend has raised an important point about the various bodies involved in water safety, and I regret
the difficulties that he had in trying to access some of the information that he needed. He will be aware that the national water safety forum was established following the Governments review into inland water safety, and the forum is endeavouring to bring together information about incidents, casualties and fatalities in water. I will therefore make sure that the information about Matthew Marsdens death will be passed to the forum and also ensure that my hon. Friends comments about the difficulties that he faced are drawn to their attention.
Finally, what I have said tonight will be no consolation at all to Matthews parents. However, we should never cease to learn the lessons from tragedies such as this young childs. That case has only too sadly highlighted the risks to small children of water attractions and the need for those responsible to be alert to the safety measures that are needed. Although we can never totally remove risk from society, we can strive to ensure that people, especially children, live in a society that values them and fully provides for their safety. As a parent myself, I know that Matthews family, and in particular his parents, may be disappointed by my response tonight, but I reiterate: legal change is not the answer in this case. Redoubled efforts by the Government, businesses and others to ensure risks are understood, well publicised, and sensibly managed are the way forward.