Existential crisis: Bibby Stockholm “NOT a vessel”

Existential crisis: Bibby Stockholm “NOT a vessel”

Not being classed as a vessel has major implications for health & safety on board

Research by solicitor Nigel Turner and One Life To Live has revealed that the Maritime and Coastguard Agency (MCA) considers that the Bibby Stockholm is NOT a ‘vessel’ for the purposes of health & safety law.

The MCA is responsible for enforcing all merchant shipping regulations in respect of occupational health and safety, the safety of vessels, and safe navigation and operation (including manning levels and crew competency). However, their determination was revealed in an email to Mr Turner:

“The barge is currently considered a permanently moored structure as opposed to a vessel for which she is considered when under tow, and therefore regulatory responsibility for this would rest with the Health and Safety Executive. It is not an area under our control.”

MCA

The Bibby Stockholm is intended to accommodate 506 asylum-seekers plus 40 staff at Portland Port in Dorset, but so far only 39 asylum-seekers have spent just four and a half days on the Bibby Stockholm, between 7 and 11 August, because of the discovery of Legionella bacteria on board.

Who makes the rules?

While the HSE has been involved in checks of the Bibby Stockholm, this was around ‘working practices for port authority workers’. It is not known whether the Health and Safety Executive (HSE) is aware of the MCA’s statement, or accepts responsibility for health & safety on board. In fact, the MCA stated: “This office has not been liaising with HSE to date regarding Bibby Stockholm as we are not involved with the platform.”

If the Bibby Stockholm is NOT a vessel, this throws into doubt which regulations – maritime or land-based – should be applied to ensure health & safety on board.

Why does the Home Office keep insisting it’s safe – when it isn’t?

The Home Office has repeatedly insisted that the Bibby Stockholm was being made safe, or was already safe. In a 27 July 2023 article in the Guardian, the Home Office stated that the Bibby Stockholm had already “completed a statutory inspection and refurbishment… The welfare of those in our care is of the utmost priority and the barge is now undergoing final preparations to ensure it complies with all appropriate regulations before the arrival of the first asylum seekers”.

However, this statement was made:

  • before the Legionella bacteria were discovered; tests were done on 25 July and the results came back – positive – on 7 August, the day the asylum-seekers went on board. Therefore, contrary to that statement, the Home Office can NOT be certain that the Bibby Stockholm complied with all appropriate regulations before the arrival of the first asylum seekers.
  • before the Fire Brigades Union (FBU) issued a pre-action protocol letter to the Home Office on 25 August, outlining its concerns over safety aboard the barge. Therefore, contrary to that statement, the Home Office can NOT be certain that the Bibby Stockholm complied with all appropriate fire regulations before the arrival of the first asylum seekers. Yet it has continued to insist that the Bibby Stockholm is safe, even after that letter was sent by the FBU.
  • with a lack of clarity over which ‘statutory inspection’ was made (note that this is in the singular, not the plural), and which ‘appropriate regulations’ were complied with. Clearly, the inspection cannot have related to water safety or fire safety. And – given the MCA’s disavowal of responsibility for the Bibby Stockholm – did they apply regulations which govern operations on the land or on the water? And was all regulatory compliance achieved, or just some?

At this point, because of the MCA’s statement, it is unclear which regulations should apply – a matter which may need to be decided by the courts.

Why this matters

According to Mr Turner: “The MCA’s determination that the Bibby Stockholm is not a vessel for health and safety purposes raises very serious questions about health and safety jurisdiction which need clarifying as a matter of urgency, not least because they relate directly to the safety of the barge and everyone on it. If, God forbid, there were a major emergency on the Bibby Stockholm, with almost 550 people on board, who – in the absence of a captain and crew, and in the absence of a clear framework of responsibility – would be in control? We’ve already seen that it took nearly five days between identifying Legionella on board and the men being evacuated, probably because no one knew what to do, or who was in charge.”

Ms David suggested that the government had not thought through the true nature of the Bibby Stockholm. “It seems that, in an attempt to appear bullish on policy, following weeks of delays leading to a waste of around £2 million of taxpayers’ money, the Home Office has made too many quick and easy assumptions as to their compliance with a complex regulatory framework. The decision to use the Bibby Stockholm was very significant, and should not have been taken lightly – people’s lives could depend on it, as we have seen with the fire safety risks and with the Legionella.

Only once before has the Home Office accommodated asylum-seekers on water – and that was a disaster. In 1989, the detention ship Earl William broke from its moorings in a storm, drifted away, hit a sandbank, and began to flood. That should have been a salutary lesson to get things right in future.

“With the Bibby Stockholm, the Home Office should have made basic checks with a suitably experienced shipping lawyer – but they didn’t, and the asylum-seekers assigned to the Bibby Stockholm are expected to pay the price through risks to their health, wellbeing and safety. If neither the MCA or the HSE accepts responsibility for ensuring the safety of the Bibby Stockholm, there is a clear regulatory gap that could lead to serious illness, injuries or even deaths.”


Supplementary information

In Britain, some idea of the complexity around regulatory frameworks can be understood from a chapter in the book Marina Developments entitled Legal Aspects of Marina Development and Operation. With a marina understood as a ‘boat yard offering simple berthing facilities’, some parallels can be drawn. The authors state: “The law relating to the planning, building and operation of marinas is remarkably complex. There are problems arising from the distinct jurisdictional boundaries affecting land, harbours, seabed, each of which has its own structure of land ownership and is subject to different systems of regulatory control. And there is further complexity in the interrelationship between different sources of law: the common law relating to rights of ownership and navigation, the numerous private and local Acts of Parliament under which common law rights have been modified on a local and piecemeal basis, and general statute law, some of which applies to all property development, some of which is specific to certain areas (such as coastal protection), and some of which yields to modifications made by local Acts. In short, there is in Britain no co-ordinated legal framework regulating coastal zone management and use.”

The people contained on the Bibby Stockholm are not ‘illegal migrants’. The processing of their asylum claims had already begun prior to their boarding the Bibby Stockholm, and therefore they have not been disqualified from claiming asylum in the UK.