How the UK Border Agency nearly blew Robin Hood Airport "sky high"

A calamity at the "Twitter Joke Trial" airport of which you will not have heard

The security managers of Robin Hood Airport are well known for their zeal in searching Twitter while off-duty for tweets containing supposed "bomb threats" which are nothing of the kind

But while those responsible with the safety of the public and of staff at this South Yorkshire airport were concerning themselves in January 2010 with the now infamous tweet of Paul Chambers, a infinitely more dangerous incident had recently occurred, about which there appears to have been no publicity until yesterday.

 

A dangerous load

On 10 November 2009 an aircraft carrying anti-tank ammunition landed at the airport. It appears the manager of the UK Border Agency (UKBA) based at the airport decided that his staff were to carry out checks on the packed ammunition. It was evident that this was a hazard, but the manager proceeded with the idea and even directed the plane to a separate part of the airport for the exercise to take place.

The pilot warned the manager that the crates of ammunition were explosive. The pilot added that the crates should not be examined by any unqualified staff. But the warnings were ignored. The UKBA manager had determined that unqualified staff were going to unpack live ammunition from its casing. (One presumes all this was also to be done on a concrete floor and in the near proximity of a fuelled aircraft.)

The UKBA staff did as they were told and opened the five crates, each of which contained five rounds of anti-tank ammunition.  The staff then partially removed some explosive devices from protective packaging. We are told that this entailed the staff removing three separate layers of packaging, including opening the protective tubing and exposing live rounds of the anti-tank ammunition.

It was about a stupid decision as such a manager could make, and a decision putting the lives of staff and many others at genuine risk.

 

A matter of Health and Safety

When this incident came to the notice of the Health and Safety Executive (HSE), there was an immediate investigation. It was clear that there had been a breach of Sections 2 and 3 of the Health and Safety at Work etc Act 1974

As the HSE later stated:

The HSE investigation found that UKBA had failed to carry out a suitable risk assessment to enable them to complete the checks safely. Had they done so, they would have recognised several problems.

There was a significant risk that the ammunition could detonate if it was dropped which could have detonated the whole cargo. As a result, members of the public, airport workers and nearby aircraft were all put at risk on that day.

This was an understatement.  Although ammunition is (of course) not designed to explode easily, unpacking such materials is rightly the job of trained professionals.

In normal circumstances, there would have then been a prosecution of UKBA for its fundamental breach of health and safety law.

 

Censure, not prosecution

But UKBA was not to be prosecuted. This is because, as a Crown body, it cannot be prosecuted. This constitutional oddity means that UKBA - and other such bodies - escape the processes of the criminal justice system even when there has been a clear breach of the legal obligations which nonetheless still apply to them.

So instead of a public prosecution, the HSE had to follow a closed process called "Crown Censure". This is, in effect, a sequence of meetings where culpability is discussed and eventually determined. The meetings are not public, and the minutes of the meetings are not provided to the public. (Indeed, the HSE press officer laughed down the phone when I asked if the papers could be made available.)

Eventually, UKBA "accepted" the censure. The HSE said:

Our investigation into the details of the cargo verification by UKBA staff at Robin Hood Doncaster Sheffield airport found that the failings by the Agency were serious enough to warrant this course of action.

The evidence brought to light by the HSE investigation would be sufficient to provide a realistic prospect of conviction of UKBA in civilian courts. This Crown Censure is the maximum enforcement action that HSE can take and should serve to illustrate how seriously we take the failings we identified."

We are then told:

Mr Paul Darling, Corporate Director, Resources and Organisational Development, of the UK Border Agency attended the Crown Censure meeting on 19 December 2012 at the HSE premises in Sheffield and accepted the findings on behalf of UKBA.

But this cannot be a satisfactory process for matters of public safety. A number of people were put at risk that day by the sheer irresponsibility of a UKBA manager.

 

Tweets and ammunition and "Security Theatre"

UKBA has now had two years and a bit to get its act together after almost blowing a good part of Robin Hood Airport sky high. A press statement put out today said:

We deeply regret this incident. As acknowledged by the Health and Safety Executive, we have already made significant changes to the way we manage health and safety to avoid a similar incident occurring in the future.

UKBA, however, did not tell what these "significant changes" were. 

The contrast of superficial and and sensible approaches to safety has been called by the great Bruce Schneier as "Security Theatre". In airports and elsewhere, a lot is done just for show, and the elaborate gestures do little or nothing to actually achieve improved security. 

It would seem Robin Hood Airport is a case study of such a misconceived policy. In the space of a few months between November 2009 and January 2010, one security manager there almost caused a disaster while another concentrated on a harmless jokey tweet. 

And only the latter led to the criminal process even being engaged.

 

David Allen Green is legal correspondent of the New Statesman and was defence solicitor in the "Twitter Joke Trial" appeal at the High Court

 

Robin Hood Airport, safe from menacing tweets at least. Photograph: B Doon

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty
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After Richmond Park, Labour MPs are haunted by a familiar ghost

Labour MPs in big cities fear the Liberal Democrats, while in the north, they fear Ukip. 

The Liberal Democrats’ victory in Richmond Park has Conservatives nervous, and rightly so. Not only did Sarah Olney take the votes of soft Conservatives who backed a Remain vote on 23 June, she also benefited from tactical voting from Labour voters.

Although Richmond Park is the fifth most pro-Remain constituency won by a Conservative at the 2015 election, the more significant number – for the Liberal Democrats at least – is 15: that’s the number of Tory-held seats they could win if they reduced the Labour vote by the same amount they managed in Richmond Park.

The Tories have two Brexit headaches, electorally speaking. The first is the direct loss of voters who backed David Cameron in 2015 and a Remain vote in 2016 to the Liberal Democrats. The second is that Brexit appears to have made Liberal Democrat candidates palatable to Labour voters who backed the party as the anti-Conservative option in seats where Labour is generally weak from 1992 to 2010, but stayed at home or voted Labour in 2015.

Although local council by-elections are not as dramatic as parliamentary ones, they offer clues as to how national elections may play out, and it’s worth noting that Richmond Park wasn’t the only place where the Liberal Democrats saw a dramatic surge in the party’s fortunes. They also made a dramatic gain in Chichester, which voted to leave.

(That’s the other factor to remember in the “Leave/Remain” divide. In Liberal-Conservative battlegrounds where the majority of voters opted to leave, the third-placed Labour and Green vote tends to be heavily pro-Remain.)

But it’s not just Conservatives with the Liberal Democrats in second who have cause to be nervous.  Labour MPs outside of England's big cities have long been nervous that Ukip will do to them what the SNP did to their Scottish colleagues in 2015. That Ukip is now in second place in many seats that Labour once considered safe only adds to the sense of unease.

In a lot of seats, the closeness of Ukip is overstated. As one MP, who has the Conservatives in second place observed, “All that’s happened is you used to have five or six no-hopers, and all of that vote has gone to Ukip, so colleagues are nervous”. That’s true, to an extent. But it’s worth noting that the same thing could be said for the Liberal Democrats in Conservative seats in 1992. All they had done was to coagulate most of the “anyone but the Conservative” vote under their banner. In 1997, they took Conservative votes – and with it, picked up 28 formerly Tory seats.

Also nervous are the party’s London MPs, albeit for different reasons. They fear that Remain voters will desert them for the Liberal Democrats. (It’s worth noting that Catherine West, who sits for the most pro-Remain seat in the country, has already told constituents that she will vote against Article 50, as has David Lammy, another North London MP.)

A particular cause for alarm is that most of the party’s high command – Jeremy Corbyn, Emily Thornberry, Diane Abbott, and Keir Starmer – all sit for seats that were heavily pro-Remain. Thornberry, in particular, has the particularly dangerous combination of a seat that voted Remain in June but has flirted with the Liberal Democrats in the past, with the shadow foreign secretary finishing just 484 votes ahead of Bridget Fox, the Liberal Democrat candidate, in 2005.

Are they right to be worried? That the referendum allowed the Liberal Democrats to reconfigure the politics of Richmond Park adds credence to a YouGov poll that showed a pro-Brexit Labour party finishing third behind a pro-second referendum Liberal Democrat party, should Labour go into the next election backing Brexit and the Liberal Democrats opt to oppose it.

The difficulty for Labour is the calculation for the Liberal Democrats is easy. They are an unabashedly pro-European party, from their activists to their MPs, and the 22 per cent of voters who back a referendum re-run are a significantly larger group than the eight per cent of the vote that Nick Clegg’s Liberal Democrats got in 2015.

The calculus is more fraught for Labour. In terms of the straight Conservative battle, their best hope is to put the referendum question to bed and focus on issues which don’t divide their coalition in two, as immigration does. But for separate reasons, neither Ukip nor the Liberal Democrats will be keen to let them.

At every point, the referendum question poses difficulties for Labour. Even when neither Ukip nor the Liberal Democrats take seats from them directly, they can hurt them badly, allowing the Conservatives to come through the middle.

The big problem is that the stance that makes sense in terms of maintaining party unity is to try to run on a ticket of moving past the referendum and focussing on the party’s core issues of social justice, better public services and redistribution.

But the trouble with that approach is that it’s alarmingly similar to the one favoured by Kezia Dugdale and Scottish Labour in 2016, who tried to make the election about public services, not the constitution. They came third, behind a Conservative party that ran on an explicitly pro-Union platform. The possibility of an English sequel should not be ruled out.  

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.