Gerry Horkan (Fianna Fail)
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The purpose of today’s meeting is for the joint committee to continue to discuss its pre-legislative scrutiny of the Merchant Shipping (Investigation of Marine Accidents) Bill. We are joined by Mr. Michael Kingston and Mr. Ciaran McCarthy. They are both very welcome.

I will read a note on privilege for both our witnesses and members. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue such remarks. It is imperative they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any member partaking via MS Teams to confirm, prior to making their contribution to the meeting, that they are on the grounds of the Leinster House campus. If attending in the committee room, they are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.

I now invite Mr. Kingston to make his opening statement. He is very welcome.

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.

Gerry Horkan (Fianna Fail)
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I thank Mr. Kingston for his comprehensive opening statement. We will now hear from members, beginning with Deputy O'Rourke.

Darren O'Rourke (Meath East, Sinn Fein)
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I thank the witnesses for their attendance. Their collective contribution to getting us to this stage at all, which Mr. Kingston referred to, is a significant achievement. I made the same point to the Minister last week. We have still some way to go, so let us keep at it.

I will pick up on a couple of points. Mr. Kingston will have heard the exchanges last week on the heads of the Bill. As he referenced, we are limited regarding the information we have from the Clinch report, in particular. We have some more information from the Lacey report but it is still redacted. Based on Mr. Kingston's understanding of the work on developments in this area in recent years and the complex and difficult events that have brought us to this point, do the heads of the Bill address adequately the various elements of the marine accident investigation unit? Are there specific areas on which we should focus? From the Lacey report, I picked up on the staff qualifications required. What would be the role of the investigation unit regarding inquests, for example? Are there particular areas in this regard that can or should be prescribed in the legislation? Could Mr. Kingston expand on his points on the Cape Town Agreement and the Torremolinos Declaration?

Is there merit or otherwise to including reference to them in the legislation?

Mr. Michael Kingston:

I thank the Deputy for those pertinent questions. I will go through a few issues with the general scheme. It is a comprehensive piece of work. I complimented the individual drafters who have worked on it, but there are some areas that need enhancing. I have some comments, as does Mr. McCarthy.

Under head 2, the definitions of "marine accidents" and "marine casualty" need to be double-checked to ensure that all types of vessels and boating activity are covered. These definitions should be referenced against the definition in the 2000 Act and the Lacey legislation. We are concerned about the use of the word “ship” as opposed to the word “vessel”. The definition of "ship" should be checked. This is not a criticism of the drafters, but it needs to be double-checked to ensure that we do not miss any type of incident in our jurisdiction, such as incidents involving kayaks or canoes. There have been a number of rowing accidents, sadly. We need to make sure we cover everything.

We need to be careful about the expenses of the Minister in the context of head 4. We need assurances of sufficient funding, which was discussed last week with the Minister, and an understanding that this is flexible and may need to increase, for example, if there is a major incident. This is dealt with comprehensively in the Róisín Lacey report and in the draft heads attached to it. It is not fully dealt with in the general scheme.

Head 7 relates to investigators of marine accidents. The investigator, as per Captain Clinch’s recommendation 3, needs to be appointed well in advance for transition purposes. We need to include wording regarding the requirement for at least two further full-time investigators with requisite experience, as per the EU directive on marine engineering, naval architecture and seagoing experience. We do not want to end up in another panel situation, as we explained previously. It would be better if this was legislated for and not left to the discretion of the chief inspector or Minister.

Head 7(12) states that a person cannot be involved with this body if he or she worked for the Department in the previous five years. I do not think that is the case with the aviation body, and it is not necessary because we have a wealth of experience in our Marine Survey Office, for example. There are individuals there that would be well qualified. After maybe a year out of working in this division, they know how to operate ethically in the context of working independently.

Head 9 states that the marine accident investigation unit must keep itself informed of certain matters. We would include here attendance at international forums such as the marine accident investigation forum, as envisaged by the 1998 report, which has never happened. That is important for education and in the context of the building up of corporate knowledge within the marine accident investigation unit.

Head 10, on annual reports and other publications, requests information on safety recommendations. This needs to be extended to include a detailed log or database that monitors the recommendations of the marine accident investigation unit and their implementation, including establishing a protocol with the Department, which must have a similar log. Róisín Lacey's report goes into great detail on this. It is incredibly important to keep on top of our recommendations. That has been a distinct failure of the current system.

Head 16 refers to ro-ro ferries and high-speed passenger craft and contains special provisions in respect of dealing with those. The head should be extended to cover large merchant ships.

Head 20, power of investigators, head 21, provisions of records, and head 22, preservation of evidence, are extremely important. Consideration must be given to the extensive reasoning by Róisín Lacey from memoranda of understanding with the HSA, the Garda, Civil Defence, the Irish Coast Guard and other bodies for the protection of evidence and a procedure as to who has priority at scenes of accidents. There should be provision to ensure that the marine accident investigation unit develops these protocols. This was envisaged by the 1998 report but has never happened. This has caused problems in respect of incidents up and down the country. I think in particular of John O’Brien and Pat Esmonde, who sadly drowned off Helvick Head in 2010. There have been problems with the preservation of evidence. That is just one example. That would not have happened if there were proper memoranda of understanding between the investigative body and the other agencies.

Head 26-----

Gerry Horkan (Fianna Fail)
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I am conscious we are giving each member five members. At this stage, we are ten minutes in-----

Mr. Michael Kingston:

I am coming to the end.

Gerry Horkan (Fianna Fail)
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That is okay. We will be able to cover more points as we come to each member. Mr Kingston may conclude.

Mr. Michael Kingston:

These are my only comments, but the Chair will appreciate they are substantive issues.

Gerry Horkan (Fianna Fail)
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Very much so.

Mr. Michael Kingston:

Under head 26, the marine accident investigation unit may reopen investigations. This head needs much further work. There are extensive provisions in the Lacey legislation for re-examination, support for parties involved and powers of Ministers to order re-inquiries, as well as provisions for tribunals of inquiry. This must be added in the public interest and is a serious shortfall at present. There are provisions in the current Act that can be looked at and which go further than this Bill.

Deputy O’Rourke mentioned inquests. The Lacey report contains important provisions to assist coroners, both in the reasoning in the report and in draft heads of legislation. That is not in the general scheme. It should be included. This has been a huge problem. The MCIB refused to attend a hearing in Donegal earlier this year. This must not be allowed to happen again. I think of the upcoming inquest in respect of Caitríona Lucas from Clare. This is what the coroner, Dr. McCauley, said in the inquest, which is on public record:

The MCIB Report is at variance with what we have found today. The report is not factually correct. There are particular facts that are not in that report. As a result, the analysis’ in that report are not what they should be, which had a huge bearing on the outcome and that is really important to note

He went on to say:

[The MCIB] have shown a complete lack of empathy to the families, and a certain arrogance about themselves and their report, that their report should be taken as ‘plain reading, should be accepted as evidence without any actual questioning.

[...]

They don’t think the families are important; they don’t even think explaining the facts of the death to the family is important, and they don’t respect a Coroner’s Court. And I think that is sad

That cannot be allowed to happen again. It is critical those provisions from the Lacey legislation are included in the Bill.

My time is up. I will come back to the Cape Town Agreement later. My apologies.

Gerry Horkan (Fianna Fail)
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This is a very sensitive topic. I am conscious that Mr. Kingston has much to contribute, but I want to be able to bring in the members.

Mr. Kingston will be able to respond to each of the members and add more in response to each of them.

Cathal Crowe (Clare, Fianna Fail)
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I thank Mr. Kingston and Mr. McCarthy for being here today. In private session we as a committee noted that the witnesses are high value and I want to state that publicly. Their inputs are very valued. Who funded the Lacey report and the Clinch report?

Mr. Michael Kingston:

The Irish taxpayer, ultimately, but it was obviously commissioned by the Department of Transport, at substantial cost.

Cathal Crowe (Clare, Fianna Fail)
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Are they the only two outstanding reports Mr. Kingston knows of that a Department commissioned, paid for with taxpayers' money, and several years later will still not release?

Mr. Michael Kingston:

To my knowledge----

Cathal Crowe (Clare, Fianna Fail)
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Are they unique in that regard?

Mr. Michael Kingston:

I am somewhat concerned by the Lacey report because Roisin Lacey refers to the advice of previous counsel within her report, which leads me to surmise there was a previous report. That is stated clearly in her report, but we did not know about the Lacey report, the huge amount of work that went into it and the draft heads of Bill that were attached to it. It is a mammoth amount of work that was just sitting there since-----

Gerry Horkan (Fianna Fail)
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To clarify, we did get a redacted copy of the Lacey report this morning, so it has been circulated to the committee.

Cathal Crowe (Clare, Fianna Fail)
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The point still stands. The Clinch report is the other one I referenced. Is there any theory among those in the marine sector as to why this report could be withheld and still has not been released?

Mr. Michael Kingston:

To answer frankly, we have been told it is being held under advice from the Attorney General's office. I cannot conceive of a reason the Attorney General would be holding that report other than it conclusively shows that all the investigations that have been carried out in Ireland have not been carried out correctly because it has highlighted the failures which have led us to where we are today.

Cathal Crowe (Clare, Fianna Fail)
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That is an essential point. This report is delayed and held up by bureaucrats, technocrats and legal advisers, and the reality is that all of these reports are based on findings and contain recommendations. I have seen in my own county how a highly valued member of our Coast Guard service, Ms Caitríona Lucas, lost her life. We have had other casualties as well and each one is unique. We can only deal overall with marine accidents, how they are investigated and how new safety protocols should be introduced if an informed report is produced and we adopt and enact that report.

What does Mr. Kingston believe is lacking in the proposed heads of Bill vis-à-viswhat we have seen? We have only had a rudimentary look at the Lacey report and the draft heads of Bill. Are there any other elements Mr. Kingston believes are lacking at the moment?

Mr. Michael Kingston:

I have touched on the issues that I see as important, and it is quite a substantial list. I appreciate the Deputy might have to review the record afterwards. I will hand over to Mr. Ciaran McCarthy, who has some other important issues with the proposed legislation. On the tragedy in Deputy Crowe's constituency, he will have heard me highlight the importance of legislation that imposes a statutory obligation on investigators to turn up at inquests. Given the failings of the past regime and the highlighted failings in the marine hazard report that was circulated to this committee, specifically in relation to the Caitríona Lucas tragedy, and there are so many mistakes outlined in that report, as have been put on the record by Captain Neil Ford, it is imperative the investigator attends the inquest of the Limerick coroner. For that reason, it is critically important the Lacey provision regarding the requirement for investigators to attend coroner's hearings is in the proposed legislation.

Cathal Crowe (Clare, Fianna Fail)
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Mr. Kingston has said that the term "ships" is currently specified and he is of the belief it should be more broad and include the word "vessels". I agree with him on that because, in 2019, Amy Mulcahy, a young girl from Limerick, was trapped under a rowing boat for some time and suffered substantial brain damage as a result. There are many more examples of smaller vessels such as kayaks etc. that need to be embodied in this Bill.

Mr. Kingston was able to tell us previously that the Marine Casualty Investigation Board had a very low budget in 2019 which paled in comparison with the budget spent on air crash investigations which was €750,000, and in that same year, €350,000 spent on rail accident investigations. I do not know if there were any rail accidents that year but certainly the budget paled in comparison. Does Mr. Kingston have any updated figures on how much is being spent in the State at this time in marine casualty investigation?

Mr. Michael Kingston:

I do not know, but what I heard the Minister say regarding the new regime is that the budget will be made available. It needs to be a substantial and flexible budget that is fit for purpose with at least three investigators and assistants.

On the current regime, Captain Clinch recommended that the Minister use his power, which is what we recommended back in 2021 under section 16 of the current Act, to appoint a chief inspector to assist the current board. I do not know how much has been spent on that. I note he has said a surveyor, Keith Patterson, has been appointed, and we thank Keith Patterson for his work. Whether he is at the level of a chief inspector, I am not entirely sure, so I do not know how much is currently being spent or what provisions have been made available to ensure that, as we speak, during this transition period, we are carrying out our investigations correctly. We need confirmation from the Department that Captain Clinch's recommendation for the interim period, that a chief inspector assist the board, has in fact been put in place.

Gerard Craughwell (Independent)
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I thank the witnesses for their presentation. I want to go back to accidents that took place before this legislation. We clearly have a problem with the marine accident investigation board that was in place at the time. Regarding this legislation, and we have a problem in that we are on a very tight timeline for pre-legislative scrutiny on it, which I do not particularly agree with. I think pre-legislative scrutiny should take as long as it takes.

Regarding the case of Caitríona Lucas, I have a letter from the Health and Safety Authority advising me that a file was prepared and sent to the Director of Public Prosecutions, DPP. No action was taken by the DPP, for whatever reason she had. I also have some information regarding the life jackets that were in use at the time and the testing of those life jackets, which is a bit difficult for me to understand. Caitríona Lucas's life jacket was never tested. Any testing that took place was done by the manufacturer. As far as I can ascertain, nobody from any of the stations that reported a fault with the life jacket was interviewed. There is video and photographic evidence to show the failure of those life jackets. I am just wondering and what I am trying to get into my head is that we had an investigation into the death of Caitríona Lucas. Clearly, to me it seems it was flawed. There are more questions than answers and more witnesses who have not been interviewed.

Does Mr. Kingston wish to make any comment on that?

Mr. Michael Kingston:

I am acutely-----

Gerry Horkan (Fianna Fail)
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We should remember we are here for pre-legislative scrutiny of the proposed Bill. References to other areas are not relevant to what we are trying to do. I know Senator Craughwell might be trying to broaden the discussion, but we are trying to analyse how good this Bill is.

Gerard Craughwell (Independent)
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If the Bill is-----

Mr. Michael Kingston:

Let me answer in another way that is within the realms of what the Cathaoirleach Gníomhach said.

Gerry Horkan (Fianna Fail)
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The committee and I have protocols.

Mr. Michael Kingston:

I totally understand. If I stray outside, which I do not wish to do, I ask the Cathaoirleach Gníomhach to let me know. What is relevant to the matter raised by Senator Craughwell is relevant to the pre-legislative scrutiny. We are trying to analyse legislation based on a report by the former head of the Marine Accident Investigation Branch in the UK, a very experienced individual, Captain Steve Clinch, as well as the former general secretary of the Marine Accident Investigators International Forum, but we have not seen the report. It is very hard for this committee, and Mr. McCarthy and I, in a democracy, to work from recommendations where we cannot see the thought processes involved and then analyse legislation drafted on the back of those recommendations.

Deputy Crowe asked why Captain Clinch's report has not been released. It is relevant to the issues we are discussing regarding the incident Senator Craughwell raised in that I am confident the report will show these investigations have not been carried out correctly. I note all the issues relating to that tragedy in County Clare. It is for that reason the investigator and the MCIB must assist the coroner in the upcoming inquest. If the coroner, with the assistance of the investigator, finds out what he did or did not include under the failed system, we will be able to get to the bottom of what actually happened in the interests of the fundamental rights of Caitríona Lucas and her family. It is their fundamental right under the European Convention on Human Rights to find out what happened in order that it does not happen again.

Gerard Craughwell (Independent)
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If I may, the Clinch report-----

Gerry Horkan (Fianna Fail)
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The Senator's time has concluded but he can make a final point.

Gerard Craughwell (Independent)
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-----has been mentioned by more than one person. We are being asked to carry out pre-legislative scrutiny but we are not being provided with the tools to allow us to analyse past mistakes or issues. One or maybe both hands are being tied behind our backs, and both ankles are being nobbled as well.

Gerry Horkan (Fianna Fail)
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I am not, but somebody might-----

Gerard Craughwell (Independent)
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Well, somebody is. The bottom line is it is up to this committee to decide whether it is prepared to allow that to happen. I would be interested in Mr. Kingston's views on that.

Gerry Horkan (Fianna Fail)
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I thank the Senator. That concludes his remarks. He might bring that matter up in another context. Our next contributor is Deputy Ó Murchú. His slot was earlier but he can come in now.

Ruairi Ó Murchú (Louth, Sinn Fein)
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I apologise. I had to take a call related to job losses in my constituency.

Mr. Kingston has a long history regarding this issue. As we are all aware - a number of colleagues spoke about this - we have not had full sight of the Lacey and Clinch reports. It goes without saying we need that to happen as soon as possible. Mr. Kingston detailed where he sees possibilities that this legislation will not cut the mustard; for example, where we are talking about the types of vessel, right through to the ability to re-examine and specific issues around the investigator and the board.

I will focus on how exactly Mr. Kingston sees it. On the situation of an investigator in particular, who would the person who compels be? Would the Minister compel the investigator to be available? We are talking about the report as it relates to Caitríona Lucas and the fact there were a number of mistakes, some of which could have been rectified by an investigator being there. I ask Mr. Kingston to detail some of what exactly that would look like and how it would work, as well as the particular issues and mistakes made on the basis of this not having previously happened.

Mr. Michael Kingston:

The unit will decide what is to be investigated. There are important reporting mechanisms and it is an offence not to report an incident. I will not go into all the mechanics of that but it is provided for in the proposed legislation, as it was in the previous legislation. In the incident referenced, and every incident that took place under the old regime, we fell down in not having a competent investigative system to deal with investigations. We had part-time investigators - we went through all this previously on pre-legislative scrutiny - and a part-time board. We had a compromised board because departmental officials were on it, including those who set regulations. They were effectively investigating their own work in that the first thing done in an investigation is to find out what happened, what the regulatory framework behind it was, whether things were being enforced properly and how they can be improved. The board was investigating its own work, which was the first major shortcoming.

As Deputy Crowe referenced, panel investigators were paid a measly amount of money in comparison with the full-time aviation and rail body. In 2019, for ten incidents, €27,000 was allocated for investigations in the field, which was €2,700 per incident, when six people died. The way things are, you cannot even get out of Dublin these days for €2,700 to do almost a day's work. The money was not there to gather the information. There were also no mechanics for the preservation of evidence; no memorandums of understanding with the Garda, the Civil Defence and the Health and Safety Authority; and no protocols in place even though they are very important. Such matters have not been included in this Bill as comprehensively as they were in the legislation in respect of the Lacey report. That needs to be fixed. Full-time investigators with proper qualifications need to be at the ready and protocols need to be in place, including a protocol between the proposed accident investigation unit and the Department, which, in fairness to the drafters, is in the legislation in respect of independence. Not only should there be independence in practice, away from Leeson Lane in a separate office, but the public should see that a protocol is in place. Those key issues will help to resolve those historical failures.

Joe Carey (Clare, Fine Gael)
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I extend a big welcome to our witnesses. It is hard to believe they have appeared before the committee over a three-year period to look at this legislation. The committee has pushed this issue and, in fairness, it is great to have heads of legislation before us for this very important area. I am from County Clare. The circumstances around the loss of Caitríona Lucas are tragic. It is a very difficult area. I hope members of the MCIB will go to the forthcoming inquest in April and do everything they can to help the Lucas family.

I note the briefing document on the legislation submitted by Mr. McCarthy. He touched on various issues, such as the SOLAS Convention, which Ireland is in breach of, the independence of the new structure, the fact it will still be under the Department of Transport and the need to change that, and the qualifications of investigators.

While we are looking for a qualified applicant for the position of chief surveyor, the specific qualifications have not been outlined. Will Mr. McCarthy take us through those issues?

Mr. Ciaran McCarthy:

I agree with everything Mr. Kingston stated. First, we are delighted that the Marine Casualty Investigation Board is going away and I compliment the committee on getting us to that level. The Deputy is correct; there is nothing in the general scheme to suggest what the qualifications of these people should be. I have provided a briefing document, which the committee will have seen, with respect to the legislation. The primary function of the legislation is to transpose Directive No. 18 of 2009, which we were previously found to be in breach of transposing. To give some background, the directive did not come out of the blue. It came on foot of the Erika and Prestigetanker disasters in European Union waters, which led to this activism from the European Union. This is where we were caught out because our MCIB was not up to the standard required. Members will see within the directive, particularly in Article 8.1, that there is frequent mention of "suitably qualified investigators". There is nothing in the general scheme, as it stands, to suggest what they are other than that qualified persons will be employed in these roles.

Joe Carey (Clare, Fine Gael)
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What types of competencies will be required for these roles?

Mr. Ciaran McCarthy:

We are looking at specific marine competencies, particularly that the persons would be qualified master mariners, qualified ship surveyors or qualified marine engineers.

Joe Carey (Clare, Fine Gael)
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Captain Clinch made the recommendations. It is a travesty that his report has not been published in full and I repeat my call that it should be. He is one of the chief people involved in this area in the UK and he obviously has qualifications. Is the type of competency that applicants there need to have to be part of such an investigation unit defined in the UK legislation?

Mr. Michael Kingston:

Yes. We cited the UK example in the context of the protocols and all the suggestions I have been making in response to Deputy Ó Murchú. Roisin Lacey, for example, frequently referenced the existing Marine Accident Investigation Branch of the United Kingdom, and that is another reason Captain Clinch's report should be released, given his vast experience in working under that system and knowledge of what we should be doing. We would be able to read his reasoning that led to the recommendations that have given rise to this legislation.

Joe Carey (Clare, Fine Gael)
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As for the independence of the unit, it is proposed it will remain located in the Department of Transport. Where do our guests recommend it be located? Should it be in the Department of Justice, for example?

Gerry Horkan (Fianna Fail)
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Or totally stand-alone, perhaps.

Mr. Ciaran McCarthy:

It is concerning that it will again be within the Department of Transport. We are back to a situation where we are leaving the fox in charge of the hen coop. The Department of Agriculture, Food and the Marine also has input into fisheries matters, as the Deputy will be aware, so it is another option. Nevertheless, maritime function within this country is highly centralised within the Department of Justice. In fact, there are five divisions in the Department in that regard, including the regulator and the Coast Guard. Senator Craughwell spoke about a case involving the Coast Guard. It is not inconceivable this new unit will be tasked with investigating these other members of the Department of Transport, so it is a little baffling, to my mind, that it will still be centred there. I know there is talk of perhaps locating it in a different building, but I do not see the objective. If we are looking back to the European Court of Justice judgment that criticised us, I do not foresee the objective independence, which the court criticised us for not having, being achieved by siting this unit within the Department of Transport.

Gerard Craughwell (Independent)
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Should it not, like the Garda Síochána Ombudsman Commission, GSOC, or the Ombudsman, be located completely away from any Department?

Mr. Ciaran McCarthy:

That would be the preferable position.

Mr. Michael Kingston:

We should have immediately put in place the Roisin Lacey recommendations with draft heads of legislation, with the three units away in a different location working together, and the job would have been done years ago but we did not do that, so we are where we are.

Joe Carey (Clare, Fine Gael)
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Our guests will be familiar with the Torremolinos convention, with which we are not in compliance. We gave a commitment in October 2022 that we would fully sign up. What implication does that convention have and should it be included in the Bill as well?

Mr. Michael Kingston:

I might hand over to Mr. McCarthy presently after briefly discussing other parts of the general scheme that have been added as extras in addition to the substantive issue, namely, the renewables legislation and the safety of life at sea legislation. The Cape Town Agreement for fishing vessel safety, which was agreed in 2012, is the latest iteration of a world drive to try to put in place an international regime for the safety of fishing vessels of more than 24 m in length that operate on the high seas or are involved in illegal, unreported and regulated fishing and all sorts of other substandard activities, and the world is so close to implementing it.

Ireland has its provisions in our national legislation through a 1997 European directive, so it will be no skin off our back to ratify it through Parliament to assist the international regime to get to the threshold of 22 nations and 3,600 vessels whereby it will come into force. Working with the International Maritime Organization intensively on this issue, we have been begging nations to ratify the agreement, yet it is just an administrative issue for Ireland. I have worked with so many other nations on it. Belize and Peru have just ratified it, while South Korea and China are in the process of doing so. We are at 19 nations. It is about Ireland stepping up to the mark to fulfil our international obligations to protect seafarers throughout the world and have the first ever regime for the safety of fishermen. As a matter of national duty and pride, it should be done and there is no reason it should not be added to the end of this legislation. It should have been done in the interim legislation. We promised the International Maritime Organization that we would do it by October 2022 but it is not appearing anywhere on any legislative radar.

Gerry Horkan (Fianna Fail)
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I thank Deputy Carey for his in-depth analysis of the general scheme. I call Deputy Mattie McGrath.

Mattie McGrath (Tipperary, Independent)
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Go raibh maith agat. I think the committee could do with appointing Senator Horkan as permanent Chair, although I have no role in that.

Gerry Horkan (Fianna Fail)
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I thank the Deputy for saying that but I will not hold my breath.

Mattie McGrath (Tipperary, Independent)
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I welcome Mr. McCarthy and Mr. Kingston. I am late to this process and there has already been a lot of pre-legislative scrutiny.

As far as I can see, it is like a sieve. It is like rounding up the sheep and I am a sheep farmer. It is like mountain sheep and you need dogs to round them all up. This new body will be inside the Department of Transport. Our guests will refer to it but they might give me some idea of what they really think about it. Should it not be outside the Department as is the case for the Garda Síochána Ombudsman Commission, GSOC, and other agencies?

We have spoken about the 22 commitments to the EU. Why are we not meeting those? An EU directive from 2009 was to be implemented by 2011. Where is that at?

My concerns go back as far as the Whiddy Island disaster. Deputy Carey has an interest in Clare. I have spoken previously about an incident off the coast of An Sean Phobal and An Rinn. This most recent incident, although it is not recent now, occurred off Helvick Head and affected the O'Brien and Esmonde families from my constituency. The investigation of that accident was an utter sham. It was a scam and a cover-up and you could call it nothing else. The Garda failed to act. I am still engaging with the Garda on the behalf of the families. I could not say enough about Anne-Marie O'Brien and the Trojan battle she has undertaken to seek justice. Perhaps our guests could offer some opinions about what kind of investigation should have taken place. How competent is the new board? Our guest might speak to the competence and qualifications of the new board members. I know that at the time of that incident, the board had no seagoing experience. They did their investigation from a desktop or from the land, or whatever. I was aghast at that. Perhaps our guests will address some of the shortcomings in those investigations. Numerous investigations and reports cost a lot of money but achieved nothing. We owe it to the people who lost their lives, their families and communities to have those incidents investigated properly and to provide some sense of justice and closure for the families.

Gerry Horkan (Fianna Fail)
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I have been advised to mention to the Deputy, and this applies to all members, that we are dealing with the pre-legislative scrutiny of future Bills and we do not want to go back too far on other issues. I understand the point the Deputy is trying to make.

Mattie McGrath (Tipperary, Independent)
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We cannot go forward in any context if we do not sort out the past.

Gerry Horkan (Fianna Fail)
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I accept that point and the Deputy's bona fides. We are trying to discuss the pre-legislative scrutiny on this particular legislation.

Mattie McGrath (Tipperary, Independent)
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There is a human factor-----

Gerry Horkan (Fianna Fail)
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I know what the Deputy is trying to say.

Mattie McGrath (Tipperary, Independent)
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-----in respect of loved ones and their families. Mr. Kingston, more than anyone else, knows about Whiddy Island. Perhaps he would answer some of those issues.

Mr. Michael Kingston:

I can also within------

Gerry Horkan (Fianna Fail)
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I appreciate the point the Deputy is trying to make but we need to be careful in how we tackle it.

Mattie McGrath (Tipperary, Independent)
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You can be too careful. You will never make an omelette if you do not break an egg. That is what is wrong. We have been too careful. We have a fox in charge of the henhouse and that is what is going on. We have a couple of foxes minding the henhouse now in case any of them escape. It is not satisfactory.

Mr. Michael Kingston:

To assist the concerns of the Cathaoirleach Gníomhach and to answer the Deputy, it can be done within the parameters of the current legislative discussion, which, as I said in answer to Senator Craughwell, centres around recommendations from a report that has not been published. That report has undoubtedly made findings about the manner in which we have been investigating maritime tragedies. Otherwise we would not be here. That includes the overarching point of Deputy Mattie McGrath about the transposition of the 2009 directive. The directive dictated that we should investigate marine casualties competently and independently, which is what this proposed legislation is now genuinely attempting to do at last, following the European judgment which confirmed that we did not transpose the directive correctly. What happened in the meantime was that investigations were, without question, not carried out correctly, and that includes the tragedy which befell John O'Brien and Pat Esmonde off Helvick Head. What is deeply concerning from the Róisín Lacey report, referred to by Captain Clinch, which forms the basis of this legislation, is that the Department knew and acknowledged to Róisín Lacey in an interview that it could not be on the MCIB anymore, and then remained on the board. When people such as Anne-Marie O'Brien, John O'Brien's sister, wrote to the Department asking for answers about the failed investigation, which we now know was not done competently, the answer from the very people who were acquiescing in a board they knew they should not be members of was that the Department could not enter correspondence because the MCIB was independent. That is an incredible situation, considering the 1998 report that gave rise to the 2000 Act stated specifically that we were to show empathy to those who had suffered loss and that there should be at least two individuals appointed in the Department to liaise with bereaved families, yet they were batted off time and again as if they did not exist. That is a massive failing by this State. The case to which the Deputy referred is not the only one. It is for that reason the Captain Clinch report must be disclosed in relation to the fundamental rights of those who have died and their families. A fundamental right under the European Convention on Human Rights requires that those family members get to the bottom of what happened. That is also in the public interest.

Gerard Craughwell (Independent)
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The Deputy mentioned the fox looking after the henhouse. We spent two and a half years on the Air Navigation and Transport Bill before we finally got the Minister to agree that the people who wrote the legislation were the people we were trying to regulate. If we are going through pre-legislative scrutiny, I do not want the marine accident investigation Bill to come to the Seanad and be held up for two and a half years. I would have difficulty in finding people to support me in that. Passing legislation that is wrong is the worst possible thing we could do. I have deep concerns about putting a time limit on it or asking us to scrutinise the legislation without access to the Captain Clinch report, etc. Unless we have all the information, I believe this committee should refuse to carry out pre-legislative scrutiny.

Gerry Horkan (Fianna Fail)
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We are probably a little past that. We are sitting in public. The Minister was before the committee last week. Mr. Kingston and Mr. McCarthy are before the committee this week.

Gerard Craughwell (Independent)
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The public are watching now and I hope they know-----

Gerry Horkan (Fianna Fail)
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I am making this point on the behalf of the Senator as much as on my behalf. We cannot say we are refusing to do it because we are already a couple of meetings into the process.

Gerard Craughwell (Independent)
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What I am saying is-----

Gerry Horkan (Fianna Fail)
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We could refuse in the sense of saying we are not happy with-----

Joe Carey (Clare, Fine Gael)
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It is also important to make that point that this committee only had eight weeks, and every other committee-----

Gerry Horkan (Fianna Fail)
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That is a new provision.

Joe Carey (Clare, Fine Gael)
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It is a new provision.

Gerry Horkan (Fianna Fail)
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I do not make the rules.

Joe Carey (Clare, Fine Gael)
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We are in adherence with that. We have that particular window to-----

Gerard Craughwell (Independent)
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Captain Clinch must come before the committee even if we have to fly him in from wherever he is. If we have to fund that, so be it.

Gerry Horkan (Fianna Fail)
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Captain Clinch was given the opportunity. I am not trying to defend anything but Captain Clinch was given the opportunity and was originally going to join us via Teams. He does not need to be flown in for that. He declined to present himself, as is his entitlement.

Gerard Craughwell (Independent)
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In deference to the Cathaoirleach Gníomhach, and I do not mean to call his position into question-----

Gerry Horkan (Fianna Fail)
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The Senator is going to do that anyway.

Gerard Craughwell (Independent)
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-----but I wrote today to the Taoiseach, the Tánaiste and the Minister, Deputy Eamon Ryan, to say that the work of this committee is being impeded because a permanent Chairman to the committee has not been appointed. I hope the Cathaoirleach Gníomhach is appointed because he would be a fine Chairman and I would have no problem with that at all.

Gerry Horkan (Fianna Fail)
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We all live in hope.

Gerard Craughwell (Independent)
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The point is we have no teeth. I firmly believe that the Government is stalling in appointing a Chairman because we cannot do anything without one.

Ruairi Ó Murchú (Louth, Sinn Fein)
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The word on the street would say-----

Gerry Horkan (Fianna Fail)
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To quote a great line from "Yes, Minister", that would be to confuse lethargy for strategy. However, it is possibly fair to say that we have had a good discussion.

Mr. Michael Kingston:

We will not let it detract from the moment to do the best we can to put pressure on the Department.

Gerry Horkan (Fianna Fail)
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That is why we are all here and it is why Mr. Kingston was invited. We wanted to bring him in and we have done so. We would have been more than happy to discuss and hear from-----

Mr. Michael Kingston:

May I make a comment?

Gerry Horkan (Fianna Fail)
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Of course. I will bring Mr. Kingston back in shortly. I have not said anything yet. I was going to come in briefly on a couple of points. Mr. Kingston has seen what is there now and has given us a lengthy opening statement.

If the Minister for Transport, Deputy Ryan, was sitting across from or beside Mr. Kingston, what are the three, four or five things he would tell him need to be in this Bill or we need to deal with, so it is good as it needs to be, should be and people deserve it to be?

Mr. Michael Kingston:

I would refer to my answer to Deputy O’Rourke. That is the short answer to that and it is on the record. I read out a list and it was supplemented by some of Mr. McCarthy’s comments. I also would urge that the Cape Town Agreement is included and we step up to our mark regarding those obligations. In addition, this haphazard approach to tagging on other legislation to maritime legislation and the substantive legislation when it is before the Oireachtas should stop. We need to codify our marine legislation, which was recommended to be done urgently by the 1998 report. That is now 25 years ago.

On Captain Clinch, he has a shadow over him in terms of his report. He is aware that it is being withheld by the Office of the Attorney General. Captain Clinch is an upstanding citizen of the United Kingdom. He suspects that the Attorney General is an upstanding legal practitioner of the Republic of Ireland, and we all hope that he is. He is saying to himself that he could be asked questions outside privilege. Therefore, he has probably sensibly declined an invitation. One has to question why his report is being withheld.

It is also noteworthy what Róisín Lacey said on all of this. If the new marine accident and investigation unit ever needs legal advice, she goes into great detail about how it should not be from the Office of the Attorney General because there is no differentiation between the Government and the marine accident investigation board. I suggest that is precisely what is happening now with Captain Clinch’s report and the Office of the Attorney General. They are in the same camp.

Gerry Horkan (Fianna Fail)
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I get the Chinese walls and all the rest of it.

Mr. Michael Kingston:

When he was questioned last week, the Minister said that Captain Clinch’s report should not be released because the Attorney General said so and that is the end of that.

Gerard Craughwell (Independent)
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The Attorney General-----

Mr. Michael Kingston:

Okay. The Attorney General’s office, but it was the former Attorney General.

Gerry Horkan (Fianna Fail)
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The position is the position.

Mr. Michael Kingston:

I question that. The Minister, Deputy Ryan, stated that it is in the public interest to listen to the Attorney General. Is it always in the public interest to listen to the Attorney General?

Gerard Craughwell (Independent)
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Certainly not.

Gerry Horkan (Fianna Fail)
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I would possibly suggest trying to be neutral. It probably is in the interest to listen to him, but perhaps not only him.

Mr. Michael Kingston:

Not in this instance. I suggest that this will be subject to litigation in the High Court for the reasons I stated regarding the fundamental rights of individuals under the European Convention on Human Rights. They need to see that report.

Ruairi Ó Murchú (Louth, Sinn Fein)
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In fairness, an Cathaoirleach Gníomhach posed the question on what fit for purpose legislation would look like. Mr. Kingston laid out those proposals.

Gerry Horkan (Fianna Fail)
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They were very comprehensive, initially to our first contributor, Deputy O’Rourke.

Ruairi Ó Murchú (Louth, Sinn Fein)
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Yes, so that is there. There has been a fair amount of discussion. We talked about the failures of the past, but beyond that, the witness talked about an outfit that was not fit for purpose in any way, shape or form in relation to carrying out the investigations as necessary. The other piece he emphasised is the fear of this being contained within the Department of Transport. If we were talking about the railway accident investigation unit, RAIU, or whatever, on a technicality, it can be in a Department. What exactly does independence look like? As much as we need those reports published, if what Mr. Kingston suggested is enacted or dealt with - one could make an argument that if that is done, it is probably a completely different beast than what is planned at the minute - but if that is the case, has he reached that place we need for a fit for purpose MCIB?

Gerry Horkan (Fianna Fail)
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To add to what Deputy Ó Murchú said, would Mr. Kingston consider the Bill, as it is proposed at the moment, to not be fit for purpose? Would he not like to see it passed in its current form?

Mr. Michael Kingston:

We have to be careful when we are talking about this issue in the context of our historical arrival at where we are. We have had serious failings. I would go so far as to say that there is no other conclusion. We deliberately did not have an independent Marine Casualty Investigation Board. One only needs to read the Róisín Lacey report.

It is not inconceivable that independence can be achieved while reporting to the Department of Transport with strict protocols. That is the case in the United Kingdom and it also exists in other jurisdictions. However, we need to be careful about how it is done. For that reason, I have explained how important it is there is a strict protocol. In fairness, that is referenced in the legislation. It is not that we are in a quagmire; the legislation is positive.

We talked about two different issues today. Mr. McCarthy and I made some sensible suggestions to enhance the legislation. We can put together a note to the committee afterwards. We also talked about historical problems. We have been careful to compliment the drafters of the current legislation. They have worked extremely hard as public servants. However, there is an historical problem that the Department needs to acknowledge and it owes obligations to the people who have had very serious and tragic problems under that regime.

Regarding the proposed legislation, with the proper protocols in place, it is workable within the Department of Transport but physically located elsewhere. As Captain Clinch suggests, it could be located with the air accident investigation and rail units so that they can garner corporate knowledge, work together and move towards a multimodal system, which would be the next round of legislation. We would prefer if that happened now, but we are where we are. Given the historical failure to acknowledge wrongdoing and put our hands up to fix this, which has been going on for decades, those protocols have to be carefully thought through. Probably the most important thing that this committee could do is ensure that the proper protocol is in place to ensure that independence is not only done but seen to be done, in addition to the other suggestions that we made today enhance the legislation to help the earnest drafters who have brought forward the proposed legislation.

Ruairi Ó Murchú (Louth, Sinn Fein)
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In fairness to Mr. Kingston, he separated it out. We all accept there has a been a huge amount of tragedy. There are legacy issues for the State. As regards the legislation, we are at a reasonable starting point. All we need is to follow the best practice, whether we are using the example of the British legislation or others. As was said, we need to ensure some element of independence through tight protocols.

Mr. Michael Kingston:

And the Lacey legislation, which was massively comprehensive, albeit for three units. The suggestions apply to the maritime unit just as much as they did to the rail and aviation units. They are incredibly comprehensive.

Ruairi Ó Murchú (Louth, Sinn Fein)
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Mr. Kingston will provide us a note. We will ensure that this is highlighted and taken into account. Then we will see the legislation. We need to make sure that what Mr. Kingston and what we are all proposing is addressed in order that the final legislation is able to provide a fit for purpose future. There are still issues in relations to legacy issues from the past.

Mr. Michael Kingston:

We want to help the Department. Let us not forget the foundation block for prosperity in everything we are doing at the moment, which is why there is renewable legislation coming through and so on. We cannot just have a great renewable drive without safety.

To achieve safety, you need to analyse each and every incident to ensure it never happens again and make very stringent recommendations. Those recommendations need to be acted upon. That is the foundation block for the prosperity of the Irish maritime sector.

Ruairi Ó Murchú (Louth, Sinn Fein)
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It is done in aviation and everywhere else.

Mr. Ciaran McCarthy:

In reply to Deputy Ó Murchú’s query, it is somewhat disappointing that the legislation has been sought to be introduced by amending the Merchant Shipping Act 1894. We do not need another amendment of this. The UK has got rid of its Merchant Shipping Act 1984. We need up-to-date, codified legislation. The practice of the Minister of tagging very disparate elements of maritime law onto one Bill is not good. It makes our legal code extremely cumbersome and hard to understand.

Gerry Horkan (Fianna Fail)
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It is probably not the first time it has happened. We have roads legislation with about 15 different areas in it.

Mr. Ciaran McCarthy:

It is particularly disappointing in this context.

Mr. Kingston mentioned renewables. The current Administration has committed to 7 GHz of offshore renewables by the end of the decade. There is a section within the Bill on renewables. We really do not have very much legislation on renewable energy. It is not appropriate just to tack renewables provisions onto the end of the Bill, as has been done.

With respect to the renewables legislation proposed, we do not have the legislation to deal with the non-standard vessels we will need to build our offshore wind farms. At the moment, they are classed as passenger ships, which represents a big expense and an impediment to our progress. There is also a requirement for load line certificates for ships that are Irish registered and that are here for quite a while. This is a major impediment. The legislation on this covers a huge area and should be stand-alone. The Bill seeks to deal with the types of people carried on the ships so they will not have to have passenger certificates, but it does nothing to address the people who navigate the ships. Our colleagues in the UK have a completely different system of certification, basically meaning a person certified to navigate a large ocean-going oil tanker does not need to be the person employed to navigate one of the smaller ships. There is a lot missing in this regard.

Ruairi Ó Murchú (Louth, Sinn Fein)
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We have an awkward workaround that is obviously cumbersome. Beyond that, the fix is not complete. There is best practice to watch, whatever about throwing all the elements together into one hodgepodge Bill.

Mr. Michael Kingston:

We said to the Minister two years ago that we spent €55 million or €60 million on our response services but that we should be spending more money on our development of regulation and our Marine Survey Office so we can fix all this. More funding is required at the front end. Prevention is better than cure.

Gerry Horkan (Fianna Fail)
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I appreciate the attendance of Mr. Kingston and Mr. McCarthy. I thank them and the members.