Oireachtas Joint and Select Committees
Wednesday, 23 January 2013
Joint Oireachtas Committee on Transport and Communications
Marine Casualty Investigation Board: Discussion with Chairman Designate
I welcome Ms Cliona Cassidy, chairman designate of the Marine Casualty Investigation Board, and thank her for attending. Members will be aware of the Government's decision in May 2011 to put new arrangements in place for the appointment of persons to State boards and bodies. The committee welcomes the opportunity to meet the chairman designate in public session to hear her views. We trust this provides greater transparency to the process of making appointments to State boards. I will take as read the issues already stated and the technical stuff because Ms Cassidy has been in the Gallery to hear it. I invite her to make her opening remarks.
Ms Cliona Cassidy:
I am honoured to have been proposed as chairman designate of the Marine Casualty Investigation Board, MCIB, and I thank the committee for offering me the opportunity to present my credentials. I grew up and attended primary school in Saudi Arabia and returned to Ireland for my secondary education, boarding at Rathdown School, Glenageary, and subsequently at King’s Hospital School, Palmerstown. I graduated from UCD in 1996 with a bachelor's degree in business and legal studies. I also completed a certificate in marketing and French and was subsequently employed by the British Potato Council in Oxford as an export marketing executive. The British Potato Council is a semi-state body funded through levies from the potato industry. I was promoted after two and half years to the position of export manager. My main responsibility during the course of the two roles was the management of external international consultants. These consultants managed the public image of British seed and consumer potatoes through media management, trade shows, seed growth trials and government relationships. The target markets included Spain, Portugal, Germany, France, Turkey and Lebanon. The experience of managing and directing diverse independent consultants and projects will be of use in my role overseeing the work of MCIB.
I represented the British Potato Council on the UK Department for Environment, Food, and Rural Affairs export industry committee, which was a forum to co-ordinate the international activities of a diverse range of British food and cultural promotional bodies and to promote excellence in exports through the annual export awards. The committee also offered a forum to discuss any difficulties encountered in international markets. I completed my employment in the British Potato Council in a consumer marketing role, promoting the industry to consumers in association with retailers and potato processors. I had budgetary responsibility in all of these roles, ensuring that limited resources were applied to gain the maximum or greatest result.
I returned to Ireland in 2003 and commenced retraining as a barrister-at-law. During my training I worked as a legal executive for Aidan Collins, an independent solicitor, and subsequently in the commercial litigation department of McCann FitzGerald. These were support roles which focused on legal research and case preparation. In essence I was responsible for distilling legislation and case law into key principles and clear and concise summaries. I graduated from the Honorable Society of King’s Inns with a merit and was called to the Bar in July 2005. While devilling with Caroline Cummings, BL, in 2005, I obtained experience in criminal law and judicial review. I gained further experience in 2006 while devilling with Marian Moylan, BL, and Carrie Jane Canniffe, BL, in family law and commercial law. I have a civil law practice based in Dublin and I predominantly work in the areas of judicial review, commercial law, personal injuries, family law and employment law.
In the area of judicial review, I have provided legal opinions and drafted proceedings on behalf of members of the Garda Síochána challenging the procedures in disciplinary investigations. I have also provided legal advice to the Chief State Solicitor’s Office on challenges by members of the Garda Síochána to decisions on the Garda compensation scheme. One of the cornerstones of the Irish Bar is the fact that barristers are independent and can represent the State and those challenging the State in different cases. My commercial work has included advising on contractual and negligence disputes and representing large financial institutions in debt recovery proceedings. I have also successfully enforced foreign judgments pursuant to Council regulations and the Lugano Convention. I have represented clients and insurance companies in a range of personal injuries actions, including physical and psychological injuries. I have also advised clients on bullying and harassment claims and employment contract disputes. I recently managed a team of barristers in a large electronic discovery process for a commercial funds dispute. I was a member of the family Bar working group, which was tasked with exploring the role of alternative dispute resolution in family disputes in December 2007. This included assisting in the drafting of a response to the report of Dr. Carol Coulter on the family law courts.
In 2008 I was appointed by the arbitration committee of the Bar Council to two working groups to assist in preparations for a conference of the International Council for Commercial Arbitration and a conference for young arbitration practitioners. These working groups were established to market and promote the involvement of practitioners in the conferences. Following an interview process I was then selected by the arbitration committee to intern at the International Centre for Dispute Resolution in New York.
During my time at the Bar, I have taught law to a range of students who have varying levels of and requirements for legal knowledge. I currently tutor on the diploma in legal studies course in the Honorable Society of King’s Inns. I also tutor on the barrister-at-law degree course, which concentrates on practice and procedure. I have developed and lectured an introduction to law course for final-year engineering students in UCD, which includes law of contract, tort, legal systems and health and safety legislation.
My experience, while diverse, will meet some of the key skills that are required in this role - namely, objectivity, independence and a focus on fair procedures. I was informed of the possible vacancy in the membership of the MCIB in September 2012 and submitted my curriculum vitae to the Minister for Transport, Tourism and Sport for consideration. I am grateful to the previous chairman, John O’Donnell, BL, and board for the excellent work they did in setting up the MCIB and establishing the current procedures. I am also grateful to Martin Diskin, Jürgen Whyte and Margaret Bell for taking time to discuss with me the workings of the MCIB and their vision for the future.
The MCIB was established pursuant to the Merchant Shipping (Investigation of Marine Casualties) Act 2000 and Statutory Instrument No. 276 of 2011, European Communities (Merchant Shipping) (Investigation of Accidents) Regulations 2011. Its function is to carry out investigations of marine casualties involving Irish vessels or taking place in Irish waters.
The result of those investigations is to ascertain the cause of the incident in order to enable the MCIB to make recommendations to the Minister. The reports can sometimes make for difficult reading. The recommendations in them assist in preventing the repetition of such incidents. At all times, the paramount focus of the MCIB is to assist in the promotion of a culture of safety in the water.
The assignment of blame or fault does not fall under the remit of the MCIB. It is important that this essential feature of its remit continues to be promoted. It is necessary for the efficient management of investigations that those who are interviewed in the course of individual investigations understand that their purpose is purely to ascertain the cause of the incident. This promotes openness, which could otherwise be a difficulty. It is important to keep in mind that a whole village or community will have been touched by some incidents. A further key statutory provision is the independent nature of the MCIB, which enables it to criticise the Department of Transport, Tourism and Sport if and when required. Independence in respect of a relationship with the industry is also important. I have no connection with the marine industry. Therefore, I am unlikely to be conflicted in any situation.
It is clear that the MCIB has very qualified investigators and knowledgeable board members. I see my role as providing independent leadership and guidance to ensure fair procedures are followed in the course of investigations. The prompt and accurate publication of reports is essential to the work of the MCIB. That will remain a key focus of its work into the future. In essence, this follows on from the procedures that have been established over the last ten years. The most recent published annual report of the MCIB, which relates to 2010, gives a useful comparison of marine casualties from 2002 to 2010, as well as fatality trends during that period. It is heartening to see a downward trend in fatalities in most categories, although the worrying increase in recreational craft fatalities reminds us of the need to communicate with those who are not necessarily working in the marine industry but enjoy the benefits of our access to water-based activities.
I thank the Chairman and the members of the joint committee for their time and patience this morning. If I am fortunate enough to be appointed as chairman of the MCIB, I look forward to working closely with the other board members and the investigators to ensure the MCIB continues to be run in an efficient manner and the paramount requirement of safety at sea and in our inland waters is promoted.
Ms Cliona Cassidy:
In essence, their vision for the future involves ensuring that the independence of the board continues. It is a statutory obligation. They are keen to ensure the industry can see that the MCIB is a purely independent body, the sole function of which is to ascertain the cause of an incident. There appears to be a trend in other accident investigation arenas whereby there is a fear that the information and evidence accumulated can be used in litigation processes. That is not the reason for the existence of this board. It works purely to put recommendations together and thereby facilitate the Minister in ensuring such incidents do not occur again or do not occur as frequently. That is the vision that I see and that the other members see.
I welcome Ms Cassidy and congratulate her on her nomination as chairman designate. I have had the sad duty of reading MCIB reports on many occasions in recent years. Many of those involved in the incidents investigated in the reports were friends or acquaintances of mine. Ms Cassidy is right to suggest that the reports often make for distressing reading. I hope the professionalism shown by the MCIB in the writing and publishing of its reports will continue under Ms Cassidy's stewardship.
I would like to ask a few questions. Ms Cassidy seemed to emphasise independence as a key factor throughout her presentation. I welcome the fact that she does not have a connection to this country's marine industry or to the leisure, sea-fisheries and commercial sectors of our small marine community. It is depressing that, as an island nation, we do not look towards our maritime resource in the way we should. If Ms Cassidy had a prior involvement with the marine industry, I have no doubt that a conflict would eventually arise. I welcome that aspect of Ms Cassidy's character.
It is obvious that many of the recommendations made by the MCIB in recent reports have been viewed with great seriousness by the relevant Departments, and rightly so. Does Ms Cassidy have a view on the role of the Health and Safety Authority in marine issues? In my opinion, the Marine Survey Office should be the lead authority when it comes to safety at sea. What does Ms Cassidy think about the possibility of the Health and Safety Authority getting involved in such matters? Does she have a view on the use of personal locator beacons, which would allow casualties to be recovered quickly or, in the case of an unfortunate tragedy, bodies to be found? If not, will she develop a view on it? There are some compatibility issues with such devices at the moment. It is something the MCIB could take a view on. I do not suggest it should comment on their use in individual incidents, but perhaps it could make some kind of recommendation for the future.
I appreciate that Ms Cassidy is just beginning her work in this role, but I would like to ask her about one aspect of the recommendations of the MCIB about which I am concerned. Over the years, public representatives have constantly commented on this in the context of health and safety legislation. Is there a danger that we are gilding the lily in terms of health and safety legislation? I do not want to take it to an extreme, but the obvious way to prevent casualties at sea is to avoid going to sea. A balance can be struck somewhere in the middle of that. Would Ms Cassidy be conscious of the concern that many of the MCIB's recommendations might overstep the mark? If they restrict this country's engagement with its marine resources, which is already quite poor, they will make things even more difficult.
Ms Cliona Cassidy:
I thank Deputy Harrington and welcome his questions. I have not yet considered one or two of the matters he raised. As he is aware, I have not yet started to work with the board. I have met some of the members of the board, however. I would like to respond to the concern expressed by the Deputy about the possibility of gilding the lily. I understand there is always a fear that if we go too far, we will end up telling people to stay on land, or to stay in a seat and make sure it has four legs. We do not want to tell people not to move. Having read some of the MCIB reports, it seems to me that the recommendations that are made are sensible. Mr. Brian Hogan, who is the board's head surveyor, has a great deal of experience in the marine industry. For that reason, I believe flights of fancy will be taken down. I suggest that the management of the board has a role in ensuring recommendations are sensible or can be legislated for. While I am not offering legal advice to the board, I hope my background in law will give me a realism in the world, even without my knowledge of the marine industry.
Therefore, we would not be over-recommending but we would be making recommendations that are sensible and which we believe could improve the situation in both the marine industry and with regard to leisure craft.
With regard to the Health and Safety Authority getting involved, the recommendations go to the Minister and they can result in a code of conduct or further regulation or statutory instruments. I believe it would be for the Minister to make the decision as to who would be the overriding authority in ensuring compliance in those situations. I have not had a view with regard to directly engaging with the Health and Safety Authority and I do not believe that, under the legislation, I or the board would, in fact, have that ability, although I will take that on board and I will investigate it.
In terms of general policy, my view from reading the legislation is that the board's role is to merely look at the incidents and for recommendations to flow from the incidents and from the causes of incidents. I do not believe there is a power within the board to make general policy recommendations outside of the reports on the incidents that have happened. That would be my current stance in regard to the personal beacons that were mentioned, although, obviously, if that arose in a situation and it was a recommendation that would have been of assistance, then there is no difficulty in the board making a recommendation flowing from that.
I thank Ms Cassidy for her presentation and wish her all the best in the job. Increasingly, we are seeing recreational casualties. On the face of it, casualties have reduced in recent years but that could easily change if we get warm weather or the weather changes. What Ms Cassidy said about health and safety crosses over into that and, with regard to Ms Cassidy's role, I was interested in hearing more in terms of whether, given the MCIB is there to make recommendations, it would make recommendations in regard to each incident, particularly those involving recreational craft.
With regard to the powers of the board, while it examines incidents and makes recommendations, has it any further role beside that? How many people are employed in this area? Does the board have the equipment necessary to follow up on these incidents? How in-depth are the investigations? If incidents are examined and recommendations made, there has to be research and someone has to provide the statistics and explain exactly what has happened. How in-depth is that? Does this include recommendations in regard to the emergency services such as the helicopter services if, for example, they did not respond? Is there a role for the board to state that, for example, it feels the emergency services were very poor in a given situation?
I know it is a part-time board and Ms Cassidy might tell us how often it sits. In terms of the North-South links between the two different areas, does the MCIB have a linking role with its counterparts in the North and does it share information with regard to incidents and best practice?
Ms Cliona Cassidy:
I thank the Deputy for his questions. The investigations arise out of each incident so a report is created for each incident and, if it is appropriate, a recommendation flows from that. With regard to the question of a further role, the board is there for the investigation of marine casualties, and this has quite a broad term within the legislation, so it does not necessarily require a fatality or the sinking of a ship. For example, a boat running aground would be deemed an incident, and the board may then decide to investigate that.
With regard to employees and proper equipment, we have access to the surveyors and investigators of the Department of Agriculture, Food and the Marine, and they wear an MCIB hat when they are investigating in that particular situation. Therefore, they go in not to assess whether regulations were followed or whether there was compliance, but to ascertain merely the cause of the incident. Within that, they can involve the Garda, they can interview and they can look at the vessel involved, depending on the type of incident. I do not believe there is any issue with regard to proper equipment or access to surveyors. Over the past two years, an independent surveyor list has been put together so, if it is inappropriate for some of the surveyors who are within the Department to investigate a particular incident, we have independent surveyors we can call on in that situation. Again, I do not believe there is an issue with regard to our access to the appropriate expertise required in the investigation of reports at this time.
With regard to the potential for querying or criticising the emergency services, our independence is pure so if it means we are criticising the Department, elements of the Department or the regulatory authority in regard to marine incidents, we have the power to do that and, where it is appropriate, we will do that. That will not change under my stewardship.
The board sits on 12 separate occasions during the year and, as Deputy Ellis rightly pointed out, it is a part-time board. Those board meetings are to assess whether there are any new incidents that need investigation, how ongoing investigations are proceeding and what needs to be done next, to ensure the publication of reports as and when they are completed and to ensure they have been commented on by those who may be adversely affected by them.
In regard to North-South links, I have to admit I am not sure of the position. I can come back to the committee with an answer but I am afraid I cannot give members any information in response to the Deputy's question.
I thank Ms Cassidy for her presentation and wish her well in the task ahead. Her presentation answered many of the questions we might have had because it is so thorough. As Deputy Harrington said, the theme of independence is coming through loud and clear. I note also that Ms Cassidy actually applied for this job. In the past there would have been situations where people were head-hunted or friends were appointed, so I want to note and welcome the fact that Ms Cassidy's independence is copper-fastened by the fact she applied for this post.
She mentioned that she sees her role as independent to ensure fair procedures are followed in investigations. If she believes fair procedures are not being followed, what powers does she have and what action can she take to ensure that procedures are fair? Does the board's role differ when it is investigating incidents involving international vessels compared to cases involving Irish vessels? Does it liaise with international bodies at that stage?
Ms Cassidy and Deputy Ellis mentioned leisure boating accidents and the dangers involved in leisure boating because it may be less controlled than other forms of boating. Is that a problem?
Ms Cliona Cassidy:
In respect of fair procedures, a report can take a period of time to collate. As the board sits once a month and we get updates on the progress of a particular investigation and the drafting of the report, we can manage how that situation is arising. A report will not be published until it has been viewed by those regarded by the board as being potentially adversely affected by the findings. I think of fair procedures in terms of the judicial element. The board could be subject to judicial review in, for example, seeking to prevent the publication of a report or the manner in which a report has been compiled and published. I would ensure that during the course of the investigation, the drafting of the report and the publication period fair procedures are followed that ensure everyone is asked the appropriate questions and has an opportunity to make comments on the draft report prior to publication; I would ensure that those are carried out effectively and within the legislation.
The legislation states that a vessel under our remit is one registered or located in this State, including Irish waters. If an international vessel is in Irish waters when an incident occurs, we are in position to carry out an investigation if we think it appropriate. One can see how broad it is. The Asgard, unfortunately, sank in French waters but the board still carried out an investigation into that vessel because it was registered with the State. If the incident happens in Irish waters, we have the opportunity to make a decision as to whether it is appropriate for us to carry out an investigation.
There appears to be an issue with recreational and leisure boating activities because there might be more people who have decided it is fabulous to have access to the water, which is great. We have such amazing facilities in that respect. The Department of Agriculture, Food and the Marine has issued codes of conduct relating to leisure activities that are quite clear and contain photographs and examples of specific things that people should do. It could be that this message has not got very far and needs to be promoted because it is a worrying trend. The fishing industry and other commercial vessels seem to have taken on board the potential issues that have arisen in terms of certain incidents and we need to make sure we can get that message out to the general public which is likely to be using the speedboats, yachts, kayaks and open rowing boats.
If members are happy, I am happy to conclude consideration of our topic. Is it agreed that the committee will inform the Minister for Transport, Tourism and Sport that we have concluded our discussion with Ms Cassidy and that we will forward a copy of the transcript of the meeting to him for his information? Agreed. I thank Ms Cassidy for her attendance and her very detailed response to our questions and wish her well. No doubt, she will be extremely successful and we wish her the best in the future.