HSE EXEMPTS BPA FROM H&S LAW?

BPA exempted from the Health and Safety at Work etc Act 1974?

Are HSE Memoranda of Understanding a legal paradox or simple stupidity?

By Bravo Three Zero CMIOSH

Editorial Foreword

In the third and final part of our series on the Rachel Fisk tragedy, we addressed many of the underlying failures that any investigation should consider. However, we did not explore the question of the Memoranda of Understanding (MOU) that the Health and Safety Executive (HSE) has drawn up with the Ministry of Defence (MOD), the Civil Aviation Authority (CAA) and British Parachute Association Ltd trading as British Skydiving (BPA/BS).

As readers of this blog know, BPA Watch (BPAW) has questioned the legality of the CAA’s delegation of parachuting regulatory oversight to BPA/BS and not just because the CAA, as a quango rather than a Aviation Ministry, has no right to create other quangos as in this case, in effect, of BPA/BS. A study of the Law reveals that the CAA is not the parachuting Enforcing Authority and has delegated to BPA/BS regulatory powers that were not in the CAA’s gift to begin with. The HSE is the true parachuting Enforcing Authority. 

However, anyone who interpreted the HSE’s imposition upon the Royal Air Force (RAF) of a Crown Improvement Notice over the skydiving-related death of RAF Sgt Fisk as an indication that the HSE was finally assuming its legal obligations might be in for a rude disappointment. A reading of the various Memoranda of Understanding drawn up between the HSE and various parties suggests that the Crown Improvement Notice imposed on the RAF is not worth the paper upon which it is printed.

CAP1484 CAA/HSE/HSENI Memorandum of Understanding guidance

 

Readers wishing to familiarise themselves with the HSE’s MOU processes should begin by taking a look at the CAP 1484 CAA/HSE/HSENI Memorandum of Understandingguidance page on the CAA’s website. This document supports the CAA/HSE/HSENI MOU and explains in greater detail the enforcement responsibilities of each regulator and the interfaces between the organisations.

Sport parachuting - Liaison between HSE inspectors and the civil aviation authority (CAA)

OC 801/2 Supplement 1

MOD parachuting

This Supplement to OC 801/2 outlines the approach which should be adopted in relation to parachuting undertaken by MOD. The arrangements are different from those detailed in OC 801/2.

MEMORANDUM OF UNDERSTANDING BETWEEN THE MINISTRY OF DEFENCE AND THE HEALTH AND SAFETY EXECUTIVE

This Memorandum of Understanding –– known as the ‘General Agreement’ –– records an agreement between the MOD and the HSE in discharging their respective roles and responsibilities for regulation and enforcement of health and safety (H&S) legislation on the MOD estate and for MOD activities in Great Britain (GB).

To uninformed observers, these MOUs seem to represent a logical approach to parachuting regulation and seem to make reasonable legal argument in that MOD sports parachuting should be undertaken in accordance with the Health and Safety at Work etc Act 1974 and Regulations made thereunder.

Consequently, the issuing to the RAF by HM Inspector Emma Page of a HSE Improvement Notice for  Crown Employees on October 7^th 2021 makes complete sense. 

 

However, the MOD’s Joint Services Adventurous Training (JSAT) sports parachuting centres are required to affiliate to BPA/BS. This affiliation obliges the JSAT centres to operate in accordance with the BPA-BS Operations Manual. Thus the MOD has agreed to these contractual terms and paid BPA/BS the requisite fees in confirmation of this formal agreement.

As BPA Watch previously highlighted, Group Captain Mark Smith, Commandant of the RAF Robson Academy of Resilience at RAF Weston-on-the-Green, also confirmed this MOD-BPA/BS contract when he wrote: “RAF Weston on the Green, JSAT sports parachuting centre - operates under the auspices of British Skydiving - the National Governing Body (NGB) - who externally assure our parachuting activity.”.

Observers could be excused for wondering why the BPA/BA was not jointly named on HM Inspector Emma Page’s Crown Improvement Notice and why the Notice was addressed to Group Captain Smith’s deputy Wing Commander Tim Page –– who should engage good lawyers if he has not already done so. As BPAW’s Don Canard remarked of Page, he is being “done up like a kipper.”.

Wing Commander Page’s best defence might well consist of a legal argument that the HSE Crown Improvement Notice has no standing in Law because the contract between the MOD and BPA/BS is highly likely to negate the HSE-MOD MOU and any jurisdiction claimed by the HSE in relation to Sgt Fisk’s death.

As BPA Watch has previously reported, no BPA/BS officials seem able to produce any credible, government-issued, recognised or approved credentials qualifying them for any role in Health and Safety, accident prevention and investigation. The question must be asked: who were the HSE officials who approved the HSE-BPA/BS MOU without carrying out the prerequisite and necessary due diligence?

As one leading Parachute Training Organisation owner asked: “was the HSE acting to counter a proposal from within the CAA to deregulate skydiving, which would have confirmed the HSE as the regulator?”. Given that the HSE is actually the parachuting regulator, the question is moot but as long as the HSE continues to deny its obligations under the Law, the question remains an issue, especially with the rising toll of skydiving fatalities and life-changing injuries.

And then there is the HSE-BPA/BS MOU as described by BPA/BS Communications Manager Angel Fernandez in a news bulletin entitled ‘Why BritishSkydiving is so important to us all?’. 

Obviously, previous attempts by the HSE to exercise control over parachute equipment standards and to investigate skydiving incidents and accidents seem to have led to this HSE-BPA/BS MOU exempting BPA/BS from the health and safety law.

Through this MOU, if Fernandez was writing factually, the HSE apparently negated its legal obligations and duties to protect people at work in MOD and civil parachuting enterprises, and disregard to public safety, handing control over to the CAA - BPA/BS cartel.

In his article on May 9^th 2020, Fernandez discusses the HSE-BPA/BS MOU and makes some quite extraordinary and worrying assertions. Fernandez describes a litany of BPA/BS evasion and resistance to legal compliance and safety improvements proposed by various regulators and authorities.

As BPA Watch has already reported, the CAA-BPA document CAP 660 is not compliant with Health and Safety legislation. Fernandez also attempts to give the impression to readers that BPA/BS is the equivalent of HM Government departments and agencies, stating that the firm carries out regulatory functions and is in practice the Regulator.

Fernandez uses similar language to that later deployed by BPA/BS Chief Operating Officer –– and ghost CEO –– Tony Butler when he describes the HSE as a “threat”. More recently, in a written riposte to the lawsuit brought against BPA/BS by the majority of its affiliated Parachute Training Organisations, Butler described the HSE as a “danger”. Fernandez explains these ‘threats’ to readers:

• Attempts by the Health and Safety Executive (HSE) to exercise control over parachute equipment standards and to investigate skydiving incidents and accidents; a move which finally resulted in negotiating a memorandum of understanding whereby the HSE relinquished their position and acknowledged the expertise of British Skydiving (then BPA) and the CAA in matters of skydiving regulation.
• Successful opposition to a subsequent proposal from within the CAA to deregulate skydiving, which would have effectively handed regulation over to the HSE.

In correspondence with HM Inspector Emma Page –– the HSE case officer assigned to the Sgt Fisk investigation ––  and HM Principal Inspector Stephen Faulkner, BPA Watch asked, essentially, if the HSE-BPA/BS MOU amounted to the HSE granting the BPA an exemption from the Health and Safety at Work etc Act 1974 and HSE jurisdiction.

In response to this and other questions, Mr Faulkner wrote; “The Notice does not represent the conclusion of the investigation, it was served on the RAF in relation to the management of sport parachuting activities undertaken by its employees as part of adventure training.  There are many lines of enquiry which are being undertaken but I am unable to comment on these at this stage.  Please be reassured that we have registered the concerns you have raised”.

The MOD Air Secretariat stated to BPA Watch on October 27^th 2021: “While I note the concerns and questions you have raised, I hope you will understand that a joint investigation is currently underway being conducted by Thames Valley Police and the Health & Safety Executive (HSE). As such, it would be inappropriate to comment until these investigations are complete.

“I can confirm that the Defence Safety Authority has convened a Service Inquiry (SI) to determine the cause of the accident, together with any other contributory or aggravating factors. It may be helpful if I explain that, on completion, the SI panel’s report will be provided to the HSE and the Coroner, and the report will be published on the Gov.uk website.”.

 

Both the HSE and the MOD seem not to understand that the MOD-BPA/BS contract, namely the JSAT affiliation to BPA-BS, has primacy in Law and nullifies the HSE-MOD MOU, thus enabling the HSE-BPA/BS MOU to take legal precedence.

If BPA/BS Communications Manager Angel Fernandez is correct in writing publicly that the “HSE relinquished their position and acknowledged the expertise of British Skydiving (then BPA) and the CAA in matters of skydiving regulation”, it means in effect that BPA Ltd trading as British Skydiving has been granted an exemption from The Health and Safety at Work etc Act 1974 and, consequently, HSE jurisdiction. 

Since the 1996 CAA-BPA Exposition, renewed in 2020, BPA/BS is the Regulator for all matters pertaining to parachuting and skydiving and can act as they see fit regardless of statutory provisions.

Aided and abetted by the HSE, the CAA and the MOD, this amateur sports association –– operating as an illegal commercial monopoly –– has been able to circumvent constitutional law and Parliament in order to give the BPA/BS Operations Manual quasi legal status , even though the MOD havepreviously questioned the adequacy of the document.

The HSE have deemed BPA/BS as ‘experts’ on all matters relating to parachuting and skydiving, a blessing which includes all such activities undertaken by the MOD.

The BPA has codified in CAP660 that MOD parachuting qualifications and expertise including those of professional RAF Parachute Jump Instructors (PJI) and Army parachutists are not recognised and that only unaccredited BPA/BS awards are acceptable. 

The firm is aided and abetted in this by the CAA, whose directors have consistently declined to agree that recognised qualifications issued under the Regulated Qualifications Framework by accredited Awarding Bodies are valid.

Despite the warnings of this blog and others to HM Government Ministers, the Police, HSE and MOD Service Inquiry investigators now appear to be sleepwalking into a legal minefield that may take a judicial or parliamentary review to resolve.

Sgt Rachel Fisk: victim of negligence

The MOD seems to have subjugated itself and the expertise of its service personnel –– like the late Sgt Fisk –– along with NVQ and other recognised qualifications to an amateur sports body run by people who pay themselves six-figure annual salaries whilst spending no more than £5,000 a year on safety-related matters.

The HSE seems to have signed away its powers  and, with those powers, the rights of military and civil parachutists to the protection that is their right under The Health and Safety at Work etc Act 1974 and related regulations.

If this is so, then whatever findings the HSE and the MOD present to the Coroner, who must rule on the Rachel Fisk fatality, can be deemed as questionable in Law and, more to the point, challenged by the charlatans of British Parachute Association Ltd trading as British Skydiving should the Coroner’s findings not be convenient to BPA/BS.

All the Coroner has to do is ask the HSE to produce its parachuting Code of Practice, a document it cannot produce as no such Code exists. Will the Coroner ask any of the parties involved in the investigation to produce their credentials?

The MOD is the only such party that can field credible parachuting experts but as we have seen, the MOD seems to think the charlatans of BPA/BS more qualified than their own parachuting experts.

We will conclude with a simple question and some food for thought:

Since when has the Health and Safety at Work etc Act 1974, the protection of persons at work and public safety, together with HSE oversight, ever been considered as a “danger” or a “threat” in the context of the UK regulatory framework?  The answer is obvious: since the introduction of the CAA-BPA Exposition in 1996, which CAA directors claim “reflects Government policy”.

Despite decades of illegal if not downright criminal activity – systematic evasion of health and safety law – the current legal situation would strongly suggest that BPA/BS enjoys the equivalent of Crown Immunity, an immunity reflected in the HSE omission of BPA/BS from the Crown Improvement Notice imposed on the RAF in relation to Sgt Fisk’s death.

The RAF –– JSAT, the Robson Academy of Resilience, RAF Weston-on-the-Green, 2 Group and 22 Group –- and their appointed scapegoat Wing Commander Tim Page should be able to see the HSE off by citing the agreements upon which the BPA Watch team stumbled whilst reporting on the Sgt Fisk affair.

Charlatans: BPA.BS 'interim report' into the death of Sgt Fisk

It seems that none the guilty parties can be prosecuted under The Health and Safety at Work etc Act 1974 because of the HSE exemptions that their employers enjoy. Perhaps Thames Valley Police will try to bring charges of corporate manslaughter but would the Crown Prosecution Service (CPS) approve such charges?

However, as BPA/BS are the controlling mind and the personnel at RAF WOTG are contractually bound to operate under the auspices of BPA/BS and in accordance with the BPA/BS Operations Manual, Thames Valley Police and the CPS would probably need to bring the charges against BPA/BS and its directorate under the Corporate Manslaughter and Corporate Homicide Act 2007 – not the MOD.

BPA Watch now challenges HM Government and its various Enforcing Authorities to do the right thing by reinstituting the rule of law in the UK so that Sgt Rachel Fisk’s bereaved family can obtain some kind of justice relating to their daughter’s entirely avoidable death in the service of her nation. 

Rachel Fisk was at work and died because of the negligence of those controlling and overseeing her activities – BPA/BS officials, cited by the CAA as “world class” and representing the “gold standard” in parachuting.