The problem with forums is that you never really know if what people are telling you is true or total guff. So yes I am a Fellow, twice, but I only put that so there is some proof that I am not talking out of my ar$e.
You have to remember that the Act is 40 years old now and whilst still excellent law, was written for a very different world of work. To understand this it is essential that you read the Roben's report of 1970-72. Anyone in the profession or doing a NEBOSH cert for eg should read it. They don't tell you this in Safety School, but they should.
The Act was written to reduce the high number of fatal accidents in industry by companies that basically didn't give a toss. The Factories Act was written in a way that left many loopholes and as long as you only killed people in these gaps then no crime had been committed. It was the outrage after Aberfan that was the catalyst for change.
So, where are we now? Well the simple truth is that with the demise of those major industries, the new mass employers are supermarkets, shoe shops, local government, double glazing companies etc etc. and what is happening is that there are people out there trying almost to shoehorn these employers into that old industrial law in ways that was never envisaged.
Let's take the FC as an example. They are an employer and do some pretty hazardous stuff. They are covered by everything that you mentioned. Let's forget their own employees for now. They're covered. They also have this duty to look after (as much as they realistically can) the people who come along to enjoy the land. Now, the FC has many undertakings such as growing trees and chopping them down, but they also have some support activities associated with the achievement of that such as manageing the deer trying to munch on them. In addition to this they provide a place for recreation eg mountain biking and walking. If I wander into the trees for a picnic, the real extent of the FC's duty extends to things like not crushing me with big machines and building foot bridges that don't collapse when I cross them. This access is free and they are members of the public. If they ran an event on their land where people came and paid, such as rally, then we'd still be the public, but we'd be called the Paying Public. We would pay them to come and enjoy something. Ok so far? They would not have to bring a risk assessment with them. Neither would they for mountain biking or anything similar.
Right, at this point another member of the public appears and says, May I shoot some of your deer? These people are not employers. They are bus drivers, teachers, post hole diggers, lawyers and IT consultants. They do not employe anyone either, they are themselves employees of someone else working 9 to 5 and paying their taxes. This is simply a hobby for them. The FC says yes, you may. But as deer control is part of the over all management of trees which is our core activity, we have a duty not to unduly expose anyone else out there to anything dangerous. Therefore we need to seek certain assurances that you aren't a blithering idiot. Because some of that liability may come home to rest with us and frankly we don't fancy it. Ok still making sense I hope.
Now where this then goes wrong is that the FC (and I am not having a go, seriously) is that it asks for risk assessments - which in itself isn't a wholly bad idea, but is seen as invoking that requirement under the Mgt Regs. This is the bit that is wrong. Why?
Well firstly, an employer would only ask for risk assessments from another employer such as a contractor or someone with whom they share a workspace. They would not request risk assessments from an employee. Does your boss ask you for risk assessments as a condition of employment? No of course not. Don't confuse that with helping to write them. In the eyes of the law, we are not employees I can assure you. There is plenty of evidence where an agency worker has tried to claim the same rights of employment in the past as full time employees. Yes it can be more than just money, but lets not get too deeply into that. Remember that WE are paying the FC here so that would be an odd employment contract. Under section 3 they have to look after those who aren't employees, yep agreed. And under section 7 employees have a duty to behave. But what doesn't exist in safety law is the requirement for member of the public to behave. I know, it's daft, but if you have a sign and an employee ignores it, then they have technically breached their duty. But if a member of the public ignores it, they haven't. Again, members of the public have no duties whatsoever under the Act. So for this to stick we either have to be THE employer, an employee or another employer like a contractor.
So are we contractors? Well we are contractEd, but no we are not contractors. Again, we're paying. We are buying something from them - we are in fact a CUSTOMER. The FC owes us a certain degree of care and to our fellow shooters and the public and the rest of the FC employees. Of course they do, but the mistake that people make is over that relationship between us and the FC. It is not a Master and Servant relationship it is a permission. And as I have said, we are not another employer.
Just how does the FC ascertain that we aren't idiots? Firstly we have to provide a valid FAC to show that a competent authority has seen fit to give us a firearm. Secondly, we have to produce evidence of an other authority that we have shown the right skills in stalking EG DSC level 1 or 2. Thirdly, they see for themselves by making us do a shooting test and even an oral test at times. Finally they look for insurance to make sure that we can cover our liabilities. And that my friends is the big driver here. It's not about criminal law and the HSE prosecuting them, it is the fear of civil litigation and being sued for something. But, as FAC holders, just where does the criminal and civil liability lie with shooting? It's the nut behind the butt as we all know. In essence WE carry most of the liability here not the FC.
The FC does have duties, we have explained that. But in criminal terms under the 1974 Act we do not. If the worst happened and we shot someone, that would be a regular criminal offence NOT a safety offence because we are not at work. I appreciate that syndicates were mentioned and that they would be classed as employers. This is not correct I am afraid. I know that certain shooting organisation have indicated as such, but if you, me, Mick from Telford, Jim from London and Fred from the council estate round the corner decide to split the cost of shooting on FC land, we are NOT suddenly an employer. We are not registered as a company, pay no tax, take no salary etc, we are simply a group of members of the public. Therefore we have no requirement to provide written risk assessments, especially of the things that ONLY affect us. It is of absolutely no legal concern of the FC as to our skills in manual handling, crossing fences, using knives etc. if it was then you'd have to provide them for mountain biking too. And let's not forget that you could run over a member of the public on your bike!!!! However, if the FC feel that in determining if I am safe with firearms that me giving them some document that further demonstrates that, then fine, all well and good; you could even call it a risk assessment if you like. But in the right terms, not safety regulations. I would call it a personal shooting CV perhaps. Where have you shot, what have you shot, how long have you been shooting etc etc. I would be able to read this and see what EXPERIENCE you have but only as PART of determining your skills. Just what benefit is there to supplying the FC with something that says, quad medium risk, shooting low risk, gralloching low risk, loading and unloading, medium risk? I challenge someone to tell me. What does that actually do for anyone? What they need to know is are you competent?
There will people out there who disagree but that is because they don't necessarily understand and it has become reality through myth and misconception. The FC DOES have to go to reasonable lengths to assure themselves that we are safe and suitable to be allowed on their land but only to the extent that it affects sother people. This stuff about TB, using ATVs etc is born from a fear of civil action. If I slice my arm gralloching a beast, I have committed no offence and neither has the FC.
I resent to old fart implication, but I have been doing this professionaly to remember life before the mgt regulations, yes. I know several of the 'top brass' at the HSE, Ragnar Lofstedt is a personal friend of mine (and a very keen stalker by the way) and I'm a published author on this subject. But I am not so arrogant that I would not listen to alternative view points, but they must be based on sound theory and reason.
Hope that's of some interest. There always some exceptions such as professional hunters and pest control contractors etc, but I am talking about Joe Public
Happy to continue the debate.
Chris (just Chris will do fine as I am not at work)