Kenny MacAskill – 2023 Speech on Health and Safety at Offshore Wind Farms
The speech made by Kenny MacAskill, the Alba MP for East Lothian, in the House of Commons on 6 March 2023.
A just transition was proclaimed when COP26 was held in Glasgow in 2021. While that global jamboree may have underwhelmed in so many respects, it was at the forefront in one aspect, for as we transition from fossil fuels to renewables, not just countries but businesses, communities and workers were to be supported. Entire industries require to be run down or forsaken and decent jobs given up, even lifelong careers; however, financial support was to be given to assist nations in that journey. As for workers, assurances were made that in the transition to net zero, they would be protected and long-held rights would be assured—justice for workers, as well as for our planet.
Those assurances were echoed outwith the global gathering, endorsed by the UK Government—they have since been championed by them in the green jobs taskforce—and chorused by the Scottish Government in their just transition commission. The rhetoric has been fairness and equity for those whose work would require to change. In Scotland and in the UK as a whole, the sector most affected is in the North sea. Though extraction of oil and gas is still required, we are on a journey to decarbonise and to transition to renewables; it is a transition, but it must be a just one. That sector has provided huge wealth and benefit to our society, and many who worked hard in those difficult and often dangerous conditions are now moving into renewables. Where once it was oil and gas, it is now becoming wind, wave and tidal—let us not forget that we recently had a Prime Minister who championed the UK as the Saudi Arabia of wind. It is a move that matters for our nations and will create wealth, as well as provide hope for our planet.
However, recent events in the North sea have revealed that while there is a transition in the economy, there is no just transition for those working in that new and growing sector—primarily in the maritime sector, where minimum wage law does not apply consistently and immigration law is used as a crude instrument to profit from seafarer exploitation. That, though, is a debate for another day. Tonight, I want to raise the issue of employment rights, especially the effectiveness of health and safety legislation that is too easily avoided. The lack of consistent and effective offshore safety legislation has been brought to light by a recent tragedy. We must hope that from that sorrow there will come some solace, with the existing legislative gap being remedied.
That legislative gap affects hundreds if not thousands of workers in the offshore energy supply chain, sailing out of not just existing offshore hubs such as Aberdeen or Dundee but Eyemouth, Montrose, Fraserburgh, Wick, Buckie, and other Scottish ports involved in delivering a successful offshore wind industry. It also affects those in England servicing energy installations in the North sea from Humberside, Tyneside, Teesside or East Anglia, along with those who will be embarking from Holyhead, Milford Haven, Mostyn and other ports in Wales. At present, the framework of statutory employment and seafarer rights on which that workforce will depend for their health and safety is not fit for purpose. A just transition was promised, and a just transition there must be for our maritime and offshore workers, as well as our planet.
Let me detail the tragedy which brought those failures to light. On Sunday 22 January, a man went missing from Valaris 121, a mobile offshore drilling unit being towed to Dundee and located some 98 miles from Aberdeen. Police Scotland investigated and while satisfied that no criminal investigation was required, had concerns regarding wider health and safety issues, which they referred to the Health and Safety Executive. This is something that the HSE would not normally investigate. That it did so here is perhaps indicative of the concerns that the police had raised, for it is not the same as an industrial accident on land. Neither is it similar to that on an oil or gas rig on the UK continental shelf, or even on a fixed or floating wind turbine in the UK exclusive economic zone.
HSE legislation has rightly been extended to cover workers’ rights, but it is incomplete and, as a result, workers are at greater risk. Mobile drilling units such as Valaris 121 are classified as a ship or a vessel when towed, meaning that they fall outwith HSE jurisdiction and within that of the Maritime and Coastguard Agency. Accordingly, while the HSE could and very likely would have carried out a full investigation had this incident been on land, a rig or even a turbine, it is restricted in what it can do in this instance. Likewise, a report that may have seen a fatal accident inquiry in Scotland or a coroner’s court hearing in England and Wales will not happen. Why is that? It is because it is not classified as a health and safety issue, giving the HSE authority. Instead, it is considered a maritime safety matter, and the MCA has authority and leads these investigations through the marine accident investigation branch.
Jim Shannon (Strangford) (DUP)
I commend the hon. Gentleman for bringing this matter forward. When it comes to health and safety, we are all concerned. Given the fact that the offshore energy created comes on land in Scotland and England, is there some role for the Health and Safety Executive, even though, as he has clearly outlined, the MCA takes precedence? If the energy is coming here and the workers work out of Scotland and England, is there not a responsibility?
Kenny MacAskill
As I will come on to say, the HSE does a good job onshore, on oil and gas and on turbines, but we require that its powers be extended. It is the agency. The MCA and the MAIB do a wonderful job in preserving life and ensuring wider maritime safety, but they are not qualified in industrial accidents; neither are employment laws within their remit. Fundamentally, and worsening that handicap in expertise, the MCA does not even have responsibility for the investigation, or jurisdiction over this incident. That is because it occurred outwith UK territorial waters, which extend to 12 miles. Beyond that distance, even when within the UK exclusive economic zone of 200 miles and on the UK continental shelf, incidents are subject to international maritime regulations, which prescribe that the investigating agency is to be from the vessel’s flag state. That is the country where the ship is registered.
Valaris 121 is registered in Liberia, a flag state managed in Virginia, USA. Accordingly, we have the absurdity of responsibility for an investigation and jurisdiction in enforcement for an incident leading to the death of a UK worker resting not with police or Crown, HSE or MCA, or even with an organisation based in Edinburgh or London, but in the flag state of Liberia, a country located on another continent. That country is one of the world’s largest shipping registers and is categorised by the International Transport Workers Federation as a flag of convenience. That means that employment and safety standards are at the international minimum and ship owners pay no tax to the Liberian state. That alone is a concern, as questions are sometimes raised regarding registration, let alone supervision.
Despite my asking numerous questions, the Government are unable to tell me how many vessels operating in the UK sector are foreign flagged. That should be a concern, as anecdotally it would seem that the vast majority are not registered under the red ensign, despite the Government’s obsession with wrapping things in the Union Jack.
The Lord Advocate advised that a multi-agency meeting took place to discuss the incident; it involved representatives of the Maritime and Coastguard Agency, the Health and Safety Executive, Police Scotland, the Crown Office and Procurator Fiscal Service and the Republic of Liberia. They discussed who would have primacy in the various investigations. I do not know this, but I assume that it was a virtual meeting; likewise, I do not know who the representative from Liberia was, or what level of seniority they had. The Lord Advocate explained further that Police Scotland remains in charge of the missing person enquiry, though, sadly, the body may never be recovered.
The Lord Advocate confirmed that the HSE remained the lead agency for the investigation in Scotland and the UK—but doing what, and enforcing which laws? Is that because there is no one here from Liberia to do it, and because the only folk nearby are from the HSE? Will we simply see a report filed and no further action taken? More importantly, how does this address the failure to extend health and safety legislation for the oil and gas sector to the new world of offshore wind, other renewable energies and nascent green technologies such as hydrogen, carbon capture and storage and liquefied natural gas?
Leaving aside the good intentions of the Lord Advocate and the diligent work by the HSE, let us recall where jurisdiction and enforcement lie: with the flag state, Liberia. Let me again set out why that is—all this has been confirmed through repeated parliamentary answers from several Government Departments.
Health and safety legislation applies to workers on land and operating in UK territorial waters, as the hon. Member for Strangford (Jim Shannon) mentioned; those territorial waters extend for 12 miles. The Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2013 applies to oil and gas, and even turbines, but that is insufficient for the new sector, as I shall detail. Valaris 121 is classified as a vessel or ship, which means that it is not subject to that legislation. As the tragedy happened outwith UK territorial waters, it is classified as a maritime incident—hence the involvement of the flag state, and the absurdity of Liberian jurisdiction. The issue of the absence of health and safety rights goes far wider than this incident or this vessel. It goes to the very heart of how the new sector to which we are transitioning operates.
As disclosed in parliamentary answer 139284 from the Department for Work and Pensions, under the 2013 order, health and safety protection applies to those operating in the offshore wind sector when on a “structure or machine”; the provisions apply to
“structures for the production of energy from wind”,
and to
“the operation of a cable for transmitting electricity from an energy structure.”
All well, one might think, but no; the legislation goes on to specifically state:
“Ships are not defined as energy structures for the purposes of this legislation.”
Therein lies the injustice of this North sea tragedy. It also shows that current provisions are incapable of providing the protections required for workers in this new sector. There are two clear reasons for that. First, few people work on a turbine; it is accessing, maintaining and supporting turbines that matters. Workers do not live on them, as they do on oil and gas rigs—or at least not yet, and if that changed, living accommodation would likely be confined to flotels, special operation vessels and other entirely separate solutions. If protection is provided only when people are physically working on the turbine, that totally ignores the nature of both the job and the sector.
Secondly, Valaris is classified as a vessel or ship, but she is not what most imagine a vessel or ship to be, as she is designed as a working platform. Some workers will be drilling, and others will be working while attached to a turbine. If they are physically attached to the turbine, then they are covered, but when they are travelling to the turbine or back, or even if they are proximate to it but not physically attached to it—that will likely be the bulk of the work—they are not.
The current legislation fails to take account of the operation of and working practices in offshore wind. It is an expanding and developing sector, which means that people are being denied cover in aspects of the work that lack protections. The danger is that this tragedy might be replicated, and oft times more, given the expansion of the sector. Health and safety protections that apply for oil and gas must be available for offshore wind and other renewables.
I have had discussions with Offshore Energies UK, which takes safety extremely seriously, as the House would expect, and it has indicated an acceptance of the gap and a willingness to assist in resolving the situation. To address it, the definition of energy structures under the 2013 order needs to be extended, and legislation to protect seafarers operating in the offshore wind sector needs to be enacted, but so far the DWP has failed to show any interest. Will the Minister agree to meet me and worker representatives to discuss this? There must be a just transition for our planet, but there must also be a just transition for workers, and this most certainly is not a just transition in the offshore wind sector.
