Mr. Michael Kingston:

I thank the Chair and all members of the committee for the opportunity to appear today, and the committee secretariat for their enormously hard organisational work and for affording Mr. McCarthy and I such courtesy and assistance. We deeply commend the committee members for the earnest manner in which they are continuing the business of Ireland on behalf of Irish society on so many issues and, in this case, the protection of our maritime sector.

The fact that we are here today is symptomatic of that work and that desire to ensure we are afforded the opportunity to be heard in the development of important legislation. I sincerely compliment the members of this committee for the manner in which they have engaged and negotiated on a cross-party basis for the good of Irish society on this issue.

I again make it clear that, although I have quite a lot of experience working with multiple world governments, international organisations and the UN's International Maritime Organization, as does Mr. Ciaran McCarthy, we appear here today in a personal capacity. We come here again with solutions to help the committee and indeed the Government, through the Department of Transport, to get this legislation right. When we were last here, on 29 January 2021, we said the Department must take a step back and listen so that collaboratively we learn from the mistakes of the past and work together for a better future – a future that will save lives in the maritime community, including merchant seafarers, pleasure-craft users, fishers and emergency services, protect the environment and save millions in wasted resources surrounding unnecessary tragedies.

We are pleased the Department has finally issued the heads of a Bill aiming to rectify our very serious breaches of European and international regulations confirmed in the Court of Justice of the European Union, CJEU, judgment of 9 July 2020 regarding how we as a nation have been investigating marine casualties. Our approach has been wholly inadequate and incorrect. We acknowledge and thank the individuals who have worked on drafting this legislation. It is now 25 months since we asked, at a meeting of this committee, for urgent action to be taken on the failures. We would like to remind the committee and make it clear that we said in January 2021 that there was no need for another review and that what needed to happen was clear. We specifically referred, in detail, to the obvious and clear recommendations of the 1998 Report of the Investigation of Marine Casualties Policy Review Group, the work on which was initiated by the then Deputy Sean Barrett in 1996. The report analysed international best practice and contended it was imperative that the Marine Casualty Investigation Board, MCIB, be independent and competent. Last week the Minister for Transport, Deputy Eamon Ryan, stated the 2000 Act implemented the recommendations of the 1998 review and established an independent State body to investigate marine casualties. For the extensive reasons we explained to this committee, that statement is totally incorrect because the 1998 report inexplicably went against its own findings in its conclusions by stating that "because we are a small country" we can ignore international best practice. It accordingly advised that the chief surveyor and the Secretary General, or his or her nominee, should be on the board, and that, accordingly, the MCIB was doomed from the start.

We also explained to the committee that in 2009, the then Minister, Mr. Noel Dempsey, in light of the UN's 2008 Casualty Investigation Code and the 2009 EU directive, ordered that an independent maritime investigative unit be set up. We stated a report had been produced. The committee, acting in the best interests of Irish citizens, asked us to provide model legislation to assist in urgently bringing proper legislation forward, and we gave specific advice in our note to the committee, dated 2 February 2021. We also stood ready to help the Department, and that was intimated to it by the committee. It never happened. Very disturbingly, we were then, through a third party, provided with details of the report by barrister Roisin Lacey, completed on 25 August 2010, with draft heads of legislation. It stated the Department never disclosed to this committee during pre-legislative scrutiny its unnecessary interim Bill, which wasted our time. It is clear from the Lacey report that it was commissioned because of the impending deadline for the transposition of the 2009 directive. I understand it was released by the Department to the committee just before this meeting. What the Minister said to this committee last week, suggesting it was something to do with an overall Government approach to the amalgamation of agencies following Mr. Colm McCarthy's earlier report, is utterly misleading and shows the Minister has not read the Lacey report.

The Lacey report, with the draft heads it attaches, while aimed at establishing a multimodal accident investigation office, which is what should have been done rather than going through three rounds of legislation at great cost to the taxpayer, and considering that the draft heads following the expensive report are just sitting there, is highly relevant to the heads of Bill before the committee. There are extremely important suggestions in the report, with detailed reasoning, that make sense for the proposed marine accident investigation unit that do not appear in the current draft heads. I will elaborate on these suggestions. It is imperative that this committee consider those recommendations and draft heads to complete a proper report so the proposed legislation is fit for purpose.

The committee will also remember that Mr. Ciaran McCarthy and myself explained that the 1998 report recommended the urgent codification of marine regulation, which is haphazard and all over the place. The inclusion of proposed legislation regarding the Safety of Life at Sea Convention, SOLAS, and renewables in the draft heads re-emphasises the need for urgent codification. Given this haphazard approach, we question why the Department has not included provisions for the ratification of the 2012 Cape Town Agreement for fishing vessel safety in the draft heads, and has also failed to do so in the interim Bill, given commitments Ireland made to implement it by October 2022 in signing the 2019 Torremolinos Declaration. Ireland is frustrating the international effort to implement this convention, which will help protect fishers all over the world, with many associated benefits. The Department should include it now.

On the draft heads that we are being asked to consider, it is incorrect not to disclose the report of Captain Steve Clinch, which, in turn, refers to the Lacey report. It is not proper and open to ask this committee to consider heads of a Bill without disclosing these reports. Additionally, it is critical for the fundamental rights of those who have suffered a tragedy that these individuals see these reports, in the interest of justice and therefore in the public interest. It is incorrect and misleading to give the impression that the CJEU judgment against Ireland gave a clean bill of health in respect of how reports about accidents were completed. It did not look at the reports. The simple fact is that they have not been carried out independently or competently. How we have arrived here today and some of the representations that have been made to both this committee and the Oireachtas over time, which are at the very least misleading, comprise a very serious matter for the Oireachtas given the consequences for Irish citizens and, not least, the issue of the faith we as a society place in public officials and the standard of ethics expected of them.

I, with the advice of Mr. Ciaran McCarthy, am here to discuss and elaborate on these issues. We are all proud of Ireland and want to help our nation to get things right. Collectively, we are getting there, and there is positivity. Again, I thank the individual drafting experts working on the proposed legislation for their hard work. Go raibh maith agaibh.