Safety in Deep Sea Diving: Stephen O’Malley
(Limited Text - Ministerial Extracts only)
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The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
I congratulate the hon. Member for Liverpool, Riverside (Mrs Ellman) on securing this debate and on raising the important issue of safety in deep-sea diving. My thoughts go out to the family of Stephen O’Malley, who lost his life while carrying out commercial diving work off the coast of Germany on 3 May. I have to say, on a personal note, that when I was preparing for this debate, all the circumstances were explained to me—and the hon. Lady has set them out for us tonight—and it was absolutely dreadful to hear about the those awful events.
I also pay tribute to the hon. Lady for the unstinting support she has provided to Stephen’s family since his tragic death—to his partner, Nicola Braniff, and to his brother, Andrew Santos. I understand this because two Swindon residents were killed in the recent capsize of the whale-watching boat in Canada. My hon. and learned Friend the Member for South Swindon (Robert Buckland) and I therefore have some understanding of the emotions that those bereaved in these dreadful accidents go through, and of how we all wish to seek explanations. So please be assured that this is something that I have taken very seriously. This is an important debate for the family. Tonight, I am here as the Minister responsible for health and safety at work in Great Britain, including offshore diving in areas covered by British law.
Following Stephen’s tragic death, the Foreign and Commonwealth Office provided important consular assistance both to his family and his employer. As part of that assistance, they also passed information from the Danish authorities to the Liverpool and Wirral senior coroner to inform his investigation into the death. Given the circumstances of Stephen’s death, when his body was brought back to Liverpool there had to be a coroner investigation. The Liverpool and Wirral senior coroner commenced an investigation on 23 May 2012 and it was concluded with the inquest in Liverpool on 14 September 2015.
Justin Tomlinson
I would here like to acknowledge the hon. Lady’s keen interest throughout the coroner’s investigation and inquest. I know she was deeply involved at every stage. I would also like to pay tribute to Stephen’s partner Nicola and his brother Andrew, who I understand showed considerable dignity throughout the coroner’s investigation and inquest despite their recent grief at their sad loss. At the end of the inquest hearing, the senior Liverpool and Wirral coroner sent a report to Stephen’s Danish employer, SubCPartner, suggesting action it might take to prevent further deaths. I understand that SubCPartner has now responded.
On seeking to re-open the case into the death, the UK Government do not have the power to request the Danish authorities to re-open an investigation. I will go into that further, but I hope that at the very least a copy of this debate is raised directly with them. The hon. Lady mentioned the United Nations convention on the law of the sea. My officials have sought legal advice on this specific point and consulted the Maritime and Coastguard Agency. They have concluded that the UK does not have jurisdiction in this case. This is frustrating and I wish it were otherwise.
The advice centres on the definition of a “marine casualty” in the convention. Stephen was diving from a ship that was acting as a diving platform for a diving project not related to the ship. If Stephen had been working on a marine activity directly connected with the ship, for example working on the deck or diving on the ship’s hull, the convention would apply.
Mrs Ellman
Does the Minister accept that the manner in which Stephen died, shown graphically on the horrendous video, suggests that this situation cannot be left like this and further action must be taken?
Justin Tomlinson
I absolutely agree. At this point, we are looking at whether it is us, the Government, who can lead on that. That is why we sought legal advice on whether we had jurisdiction, whether through the Health and Safety Executive, which I am representing tonight, or the Government as a whole. There are options, however. The family could pursue this matter privately through the proper channels in Denmark. I understand that the Foreign and Commonwealth Office has provided a list of English-speaking Danish lawyers who may be able to do that on their behalf with the appropriate authorities through the proper Danish legal channels.
I will take a moment to explain the regulations for diving at work in the UK and why the Health and Safety Executive cannot investigate this case even jointly with the Danish authorities. In Great Britain, the Health and Safety Executive, under the Health and Safety at Work etc. Act 1974, is responsible for investigating diving accidents in Great Britain and UK territorial waters. In Great Britain, the 1974 Act applies to all work activities within Great Britain—separate, parallel legislation applies in Northern Ireland. This is extended to the territorial waters and designated areas of the continental shelf by the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2013.
The Diving at Work Regulations 1997 also apply to all diving projects at work in Great Britain and UK territorial waters, and also to diving projects conducted in UK-designated areas of the continental shelf associated with offshore installations and energy structures, including wind farms. The regulations place duties on diving contractors, divers, clients and others whose acts or omissions could adversely affect the health and safety of those engaged in a diving project. The law is supported by five approved codes of practice, detailed guidance documents and industry safety forums, which ensure a high standard of safety for deep-sea divers working in Great Britain. The detailed guidance requires the diving contractor to plan and prepare for reasonably foreseeable emergencies, including the need to recover an unconscious diver from the water and a diving supervisor to ensure that the dive is conducted safely.
In 2013, in response to concerns raised during discussions with industry, HSE also issued a safety notice about the dangers of tight neck seals. That was widely distributed and discussed with representatives from all diving-at-work industry sectors, including diver training schools. On the specific point about whether HSE has rules in place regarding neck dam tightness, diver training is regulated, and the fitting of the neck dams is on the training syllabus. The helmet operating instructions also stress that the correct fitting of the seal is critical, and we check awareness of this during HSE inspections. A safety alert on this subject has also just been released.
Investigating diving fatalities in the UK is an important area. Since agreeing to take this debate, I have spoken directly to my officials in HSE and I am assured that if such an accident occurred in the UK, we have processes and procedures in place to fully investigate the incident. The first stage of any fatal accident is undertaken by the police, supported by HSE. The police must decide whether the death resulted from a manslaughter offence. If that is likely, they will continue to investigate, supported by HSE. If the police conclude that manslaughter is not an issue, they will hand the investigation over to HSE. These investigations will include taking breathing gas samples, removing equipment for testing, and examining qualifications, medical records and dive project records. If appropriate, HSE will alert the pathologist to the need for a diving pathologist or diving expertise for the post-mortem. The evidence will then be drawn together in an investigation report, which makes recommendations for any further action, including enforcement.
As for European regulations, there is no EU directive covering diving at work, and the UK’s Diving at Work Regulations 1997 are solely national regulations. There is a wide variation in the standards of regulation of commercial diving across the EU, although countries with an established offshore oil and gas industry generally have more developed regulations for diving. However, the UK is a member of the European Diving Technology Committee, which promotes safe diving practice in Europe. The UK diving industry and HSE play a key role in this European committee to improve safe diving practice here in the UK and in Europe. I will ask HSE, through its membership of the EDTC, to ensure that lessons are learnt from this tragic case, not just here, but across Europe.
As I have said, I know that the family have asked whether HSE can investigate Stephen’s death, but because Stephen died working abroad, outside UK territorial waters and outside the area where HSE has enforcement powers, unfortunately HSE has no powers to directly investigate Stephen’s death.
Mrs Ellman
I appreciate the Minister’s comments and the care he has clearly taken in preparing for this debate, but would he or the relevant Minister make further representations to the appropriate authorities, which I assume are the Danish authorities, to reopen this case? I am making my own representations, my constituent is making her representations, and it would certainly be helpful to us if the appropriate Minister could assist by doing that.
Justin Tomlinson
I am happy to do that. As I said, I hope that these authorities will see this debate—we will make sure a copy is sent through to them—and I will raise that and ask them. I cannot make them do something—I make that qualification. From the tragic circumstances, from the way this has been described and from what we have seen, I can say that if it had occurred in this country, that is the very least we would be expecting to do.
Again, I wish to commend the work that the hon. Lady has done right from the beginning in providing that support at these incredibly difficult times, even more so because this did not happen here in the UK. Commercial diving is clearly a hazardous occupation, but we know that when risks are controlled by complying with regulations and industry best practice, such incidents can be prevented. I am, or HSE officials are, happy to meet her if she would like to know more about the safety regime in the UK. In the UK, I am confident that the diving industry is well regulated and, as mentioned, I will ask HSE, through its membership of the EDTC, to ensure that lessons are learnt from this tragic case. I have genuinely taken a real personal interest in this case. The circumstances were awful. We will do what we can. I am as frustrated as she is about the legal position, but we can act directly only where we have jurisdiction.
Question put and agreed to.