Dear Mr Cox,

I write with regard to the recent deaths of Gillian Davey and Michael Pender in Cornwall, and your report on Action to Prevent Future Deaths issued pursuant to Regulation 28 (‘the Regulation 28 Report’) dated 28 May
2020. I note that your investigations have not yet concluded and the inquests into the deaths have not been heard.

Before I respond to your request for details of the planned RNLI lifeguarding service, there is a preliminary matter I need to raise. As you are aware, I have been copied into the letter to you of today’s date from Brian Johnson, Chief Executive of the Maritime and Coastguard Agency. I entirely agree with and support the contents of his letter to you.

I appreciate your concerns about the prevention of future deaths. Further, I also appreciate that in accordance with Chief Coroner’s Guidance No. 5, you may issue a Regulation 28 Report before an inquest is concluded. However, in this instance I believe the Regulation 28 Report is premature and has been made without the benefit of all the relevant information; this includes the fact it is the landowner, not the RNLI, who has the responsibility to carry out risk assessments covering the public use of beaches, and then to mitigate the risks they identify by, amongst other things, providing a lifeguarding service.

As you set out in paragraph 5 of your report, your request is based upon the fact you believe that, unless lifeguarding services are back on beaches, there will inevitably be a further loss of life. This pre-supposes that both deaths were caused by a lack of lifeguards, which of course will require an inquest to determine.

Further, and importantly in the case of Gillian Davey, the incident did not happen next to a beach. Accordingly, no RNLI staff would have witnessed the incident. Instead, as was the case, a RNLI Lifeboat would have been tasked by HM Coastguard to attend. I imagine this will be a matter for evidence.

I note in your report at paragraph 4 you state the Coastguard arrived to perform the rescue and Miss Davey was removed. In fact, it was the RNLI which carried out this rescue.

As is set out above, I consider it very likely the RNLI will be required to provide you with evidence to allow you to fulfil your role. It is for this reason that, insofar as it relates to the RNLI, I consider the Regulation 28 Report to be premature. As you will be aware, paragraph 12 of the Chief Coroner’s Guidance No. 5 states that a

report will normally be made after an inquest is concluded. This is because a pre-condition to making a report (Regulation 28 (3)) is:

‘A report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner is relevant to the investigation’. (emphasis added) The RNLI has not yet provided you with any documents, evidence or information. I hope that once you have been provided with such information, you will not consider it necessary to issue a report.

In these circumstances, I would respectfully ask that you withdraw your report; certainly, insofar as it relates to the RNLI.

Notwithstanding the RNLI’s position on the Regulation 28 Report, I appreciate and understand your concerns in relation to beaches. As you may be aware, an objective of the RNLI is ‘to end preventable loss of life at sea’. It is clear we share your concerns. I have set out below some information in relation to the current plans for readiness, to give you assurance the RNLI is doing all in its power to provide a lifeguard service on many beaches across the UK, including on beaches in Cornwall. You should also note that many beaches, possibly the majority, never have lifeguard services, and many other organisations beyond the RNLI provide lifeguarding services on beaches around the UK coast.

Our original plan was to have lifeguard patrols on 70 beaches this summer. It was a conservative plan and made and announced when many things were still unknown. We now have a better idea of the journey out of lockdown for all parts of the UK, understand the new regulations with which we must comply as an employer and service provider and, most importantly, feel we can properly manage the risks associated with coronavirus. We were on 18 beaches last weekend, 8 of which are in Cornwall, and we are revising our original plans and exploring which additional beaches we can lifeguard this summer. To this end, we are working hard with 55 landowners and local councils to ensure as many beaches as possible will have RNLI lifeguard cover. With so many local landowners to work with, and so many dependencies, it will take time to confirm individual beaches and timings, but we will make public announcements with more detail over the next few weeks. I have only set out the plans for the current and future rollout of lifeguarding, but I can provide information as to the reasons why RNLI lifeguarding services were not on the Cornish beaches at the time of the two tragic deaths, along with some of the other preventative steps that had, and will continue to be taken, including widespread media messaging and signage. This can be provided in due course for the inquest. I hope this provides the information you require. I can assure you that everyone at the RNLI; its leadership, staff, volunteers and supporters, cares passionately about our purpose – saving lives at sea. We have for nearly 200 years and we always will.

Dear Mr Cox

Thank you for your letter of 29 May, enclosing your Regulation 28 Prevention of Future Deaths report following the recent deaths in Cornwall of Gillian Davey and Michael Pender. I note that your investigations have not yet concluded and the inquests into the deaths have not been heard. On a point of fact related to Section 4 of your report, it was the RNLI lifeboat that was on scene for the incident involving Miss Davey rather than the Coastguard – our role was to coordinate the tasking of the lifeboat.

In your report, under Section 6, you say that the Department for Transport, the RNLI and the Maritime and Coastguard Agency (MCA) have the powers to take action in respect to providing a lifeguard service on beaches in Cornwall, to help prevent the future loss of life. The MCA, which includes Her Majesty’s Coastguard, is an executive Agency of the Department for Transport. I am therefore replying on my own behalf, and also on behalf of the Secretary of State for Transport, the Right Honourable Grant Shapps MP. The MCA has a responsibility to respond to calls for assistance as the emergency responder with the remit for search and rescue at the coast and at sea. Our role is to coordinate the emergency response drawing from the matrix of search and rescue resources that are available and appropriate. However, we have no remit for beach safety or the provision of lifeguarding. I should also make it clear that the RNLI has no legal obligation or duty to provide either lifeguards or lifeboats.

Alongside the RNLI and other sea safety charities, we promote safety messages including specific campaigns aimed at the general public for when they go to the beach. Those messages are designed to help save lives and to reduce the call on resources. The relevant beach owner, which can be a local authority, sometimes the National Trust and many private owners have the responsibility to carry out risk assessments covering public use of beaches and then to mitigate the risks they identify. To help landowners

with responsibilities for beach safety with those risk assessments we produced guidance on Managing Beach Safety1.

One way to manage risks is to arrange for a lifeguarding service, which may well be organised under contract with the RNLI. As a result of the lockdown across the United Kingdom from late March 2020, the RNLI was unable to recruit and train their prospective community of lifeguards for the 2020 season in a way that was consistent with social distancing rules, and neither could they enter into arrangements with local authorities and landowners as they would in a normal year.

I can tell you that the RNLI is working with local authorities and others to steadily ramp-up their capability to provide a beach lifeguarding service. Already at least 18 beaches have RNLI lifeguards. Plans are in place to have lifeguarding services at as many beaches as is feasible in the current circumstances, including many in the South West. The RNLI will make a public announcement with more detail over the coming weeks.

Others such as Surf Life Saving Great Britain are also doing their best to provide services ranging from beach wardens to fully trained lifeguards. The nature of that provision, whether it uses purely volunteers or paid-for staff, and the hours of availability, will vary from location to location.

For our part, given that the RNLI and similar organisations may not have lifeguards on beaches, we are sending more HM Coastguard vehicle patrols to known safety hotspots for surveillance purposes, keeping a look out for any incidents at the coast enabling a swift response for search and rescue, should that be needed.

I am copying this response to the Chief Executive of the RNLI, Mark Dowie.

Dear Mr Cox

Thank you for your letter of 22 June to Brian Johnson about the tragic deaths of Gillian Davey and Michael Pender. I am replying because I can be the formal representative of the Maritime & Coastguard Agency should you call us to the inquests. This statement is in addition to the correspondence sent you on 5 June replying to your letter of 29 May 2020, receipt of which was acknowledged by from your office on 5 June and I attach that reply to this statement, for ease of reference.

The Department for Transport and the Maritime & Coastguard Agency have an interest in maritime safety generally because we want to see fewer accidents and less demand on the emergency services that we coordinate to respond to search and rescue missions. That is why we promote initiatives such as the annual Maritime Safety Week alongside partner organisations and we use our social media and other channels to communicate safety campaigns and messages. We do not have any statutory or specific responsibilities for beach safety.

After the deaths at Camber Sands in 2016 and the helpful observations from Mr Craze, the East Sussex Coroner, the Maritime & Coastguard Agency, working closely with the wider membership of the National Water Safety Forum, commissioned a review from an independent lawyer. We asked him to undertake research to form a view of beach safety in terms of legal responsibilities and to make recommendations.

The research was completed by Dominic Watkins at DWF who took time to test out his thinking with a wide range of stakeholders. A review was completed, and recommendations made. One immediate action, to update a Beach Safety Guide that was originally published in the 1990s, was completed quickly by the Maritime & Coastguard Agency. The Guide provides a framework for beach owners to use when considering risks to the public at their beaches and advice on mitigations that might be

used to address any risks. We worked with the Royal Society for the Prevention of Accidents and the RNLI to develop additional information published in June this year providing advice on maintaining the safety of the public and staff on beaches during a pandemic. We particularly welcomed the support of the Local Government Association who made the guidance available to their local authority membership.

We recognised that the remainder of the Review’s recommendations were wide-ranging and would need much more detailed discussion and consideration across many interest groups and government Departments. We had planned to make the Review public at a National Water Safety Forum event in November 2019 organised by the Royal Society for the Prevention of Accidents. Ministers were scheduled to introduce the Review and our plan was to use the occasion to start a wider consideration of the policy matters it contains. However, at the beginning of November the Prime Minister called a General Election for 12 December 2019. It is a convention within Government that all but essential policy announcements are deferred during the pre-election period, which meant that the Minister was no longer able to attend the Safety Conference and start the wider discussions.

Ministerial appointments and portfolios were confirmed at the end of February 2020 and soon after new Ministers had been briefed about the most pressing issues that needed to be at the top of their priorities, attention necessarily focused on the coronavirus pandemic. The opportunity to consider the independent review has now been taken and we intend to publish it on gov.uk as soon as possible. Ministers are seeking a wider debate about the merits of the remaining recommendations and we will be discussing these with stakeholders with a view to gauging opinion on possible next steps.

However, you will understand that this will not be a quick process and it will take time to come to any firm conclusions. Within his report the author is very clear that “while commissioned by the MCA, it is important to stress that this Report and its findings are entirely independent from the MCA”.

There are many stakeholders with an interest in beach safety and finding absolute legal clarity about responsibilities may be difficult. The Ministry of Housing, Communities and Local Government has an interest in supporting local authorities, many of which will be the notional “owner” of much of the United Kingdom’s 11,500 miles of coastline and many of our 1,320 beaches. Other beaches will be privately owned or owned by other major landowners such as the National Trust and the Crown Estates.

As part of the response to the current pandemic, the Cabinet Office have brought together parts of the machinery of government with an interest in beach safety and this may be a useful forum to consider some of the challenges set out in the Review. There may also be a role for the National Water Safety Forum and its constituent members. Indeed, the Forum has already brought together a compendium of existing helpful advice and guidance to support beach owners in their efforts to understand and mitigate safety risks.

We believe it is too soon to judge what conclusions those wider discussions and considerations might lead to and whether new legislation, greater collaboration or further guidance to support beach owners might offer the most effective approach.

Fundamentally and ultimately, however, people have a personal responsibility for their own safety in and around water and on beaches. Landowners, local authorities and others can provide safety information including signage and public rescue equipment, but it is individuals taking responsibility for their own safety and actions that will keep most people safe. Even where beach owners carry out a risk assessment and conclude that they can support safety by providing a lifeguarding service, whether from the RNLI or another provider, those services will not operate 24 hours a day and always cover just a limited area of each beach. Deployment will also be seasonal to take account of the times of year when the risk is judged to be at its highest. The provision of a lifeguarding service is not, and can never be, an absolute guarantee of safety.

For our part in the Maritime & Coastguard Agency we will continue to work with partners on safety campaigns and messaging using social media and paid advertising. At the moment we are engaged in a joint campaign with the RNLI to encourage coastal safety, discourage people from using inflatables at the beach, and to remind them that if they do get into difficulty then they should call 999 for the Coastguard.

We are ready of course to support you with your upcoming inquests. I will attend in my role as Assistant Director with Her Majesty’s Coastguard. I will be able to explain our search and rescue operations generally and the specific actions in the two deaths you are examining. I will also be able to set out what is happening in relation to the wider review.