Hildegarde Naughton (Galway West, Fine Gael) | Oireachtas source

I thank the Deputies for raising this matter. The Marine Casualty Investigation Board was established as an independent body in 2002 under the Merchant Shipping (Investigation of Marine Casualties) Act 2000 to investigate marine casualties and publish reports of such investigations involving Irish-registered vessels worldwide and other vessels in Irish territorial waters and inland waterways. Section 8 of the Act provides that the board shall be independent of the Minister for Transport, Tourism and Sport in the performance of its functions and in general shall be independent of any other person or body whose interests could conflict with the functions of the board. Section 9 sets out the composition of the five-person board, which consists of three persons appointed by the Minister for Transport, Tourism and Sport, the chief surveyor of the Department of Transport, Tourism and Sport and the Secretary General of the Department or his or her nominee.

Under current arrangements, the three ministerial appointments are made following an open application process involving the Public Appointments Service, PAS, State boards recruitment system. The 2000 Act set out a specific legislative framework for the operation of the board and also addressed such issues as tenure of office, removal from office, disclosure of interests, the reporting of marine casualties and investigations. All investigations of marine casualties are carried out by the Marine Casualty Investigation Board's panel of external investigators. The panel reflects the broad-based marine competence and experience which is of relevance in undertaking independent investigations.

Directive 2009/18/EC of 23 April 2009 establishes the fundamental principles governing the investigation of accidents in the maritime transport sector. The directive applies to a small subset of the marine casualties that come under the remit of the Marine Casualty Investigation Board, and involves an average of fewer than three casualties in any given year. Article 8.1 of the directive provides that an investigation of body shall be independent in its organisation, legal structure and decision making of any party whose interests could conflict with the task entrusted to it.

In 2011, the Marine Casualty Investigation Board was designated as the investigative body in the State for the purposes of Article 8 of the directive. The EU Commission expressed concern at the independence of the board in the context of the independence requirements of Article 8.1, with particular regard to the membership of the chief surveyor of the Department of Transport, Tourism and Sport and the nominee of the Secretary General of the Department of the board.

The case was lodged with the Court of Justice of the European Union in March 2019. On 9 July 2020, the court delivered its judgment, declaring that by failing to provide for an investigative body which is independent in its organisation and decision-making of any party whose interests could conflict with the task entrusted to that investigative body, Ireland has failed to comply with its obligations under Article 8.1 of the directive. The main issue of concern is the presence of two departmental officials on the board who were seen as persons whose interests could conflict with the task entrusted to the board. There is no finding of impartiality on the part of the board, but the court has noted that a finding that the investigative body failed to act impartially in specific cases is not necessary to establish an infringement. My Department is examining the judgment and has sought urgent legal advice on the possible next steps, which may involve amending legislation to provide a basis for early engagement with the EU Commission and to ensure that the court's findings and the concerns of the Commission are addressed.

At this early stage, I am not in a position to indicate definitively what our next course of action will be. However, I can assure Deputies that every effort will be made to progress matters as quickly as possible in order to enhance the organisational independence of the Marine Casualty Investigation Board in carrying out its important role in investigating marine casualties, establishing the cause or causes of those casualties and making safety recommendations for the avoidance of similar incidents in the future.

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