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

I move: “That the Bill be now read a Second Time.”

I am pleased to introduce the Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021 for the consideration of this House. The primary objective and focus of the Bill is to amend the Merchant Shipping (Investigation of Marine Casualties) Act 2000 to facilitate a revised board composition for the Marine Casualty Investigation Board, MCIB, and, through other necessary operational and technical revisions, to support the functioning of the MCIB as the investigative body in the State in relation to marine casualties, to meet our European and international obligations and to have an independent marine casualty investigative body in place.

Marine accident investigation is an important element of national safety policy going back many years. The Merchant Shipping Act 1894 provided the first legislative framework until it was replaced by the Merchant Shipping (Investigation of Marine Casualties) Act 2000, which provided for the establishment of the MCIB. In accordance with the Department of Transport’s statement of strategy 2021-2023, the promotion and enhancement of safety is a key objective and priority and underscores many of our policies, strategies and actions. Following on from this, one of the core objectives of the Irish maritime directorate strategy 2021-2025 is to enhance maritime safety. Bearing this in mind, while there is an immediate and urgent need to progress the current Bill, this Bill is not the final step in the process of reviewing the legislative and structural framework that applies to marine casualty investigation in Ireland.

I would like to take this opportunity to mention that an independent review of the organisational structures for marine casualty investigation in this country was initiated in March of this year to be carried out by Clinchmaritime Limited. The key objective of the review was to assess the current organisational structures for marine casualty investigation and to set out in a report any recommendations, including in relation to change, to achieve the most appropriate and effective marine casualty investigation structures for Ireland, taking into account national, EU and international obligations. The review report has been received and is currently being examined. The recommendations contained in the report will be given full consideration with the view to developing a plan of response, which may include the delivery of further legislation and will include further engagement with the Oireachtas committee.

As I will now explain in more detail, this Bill is a necessary intermediary step to amend the existing legislative framework for the MCIB to ensure and support the continued functioning of the investigative body in the immediate term. To assist Deputies and to provide some context to the current Bill, I would like to give a brief background to the establishment and role of the MCIB and the events over the last two years that have given rise to the need for this legislative change. The MCIB was established under the Merchant Shipping (Investigation of Marine Casualties) Act 2000 to investigate marine casualties and publish reports of such investigations. Under the 2000 Act, the MCIB is mandated to examine and, if necessary, carry out investigations into all types of marine casualties to, or on board, Irish registered vessels worldwide and other vessels in Irish territorial waters and inland waterways. This includes commercial cargo and passenger shipping, licensed fishing vessels and recreational and leisure craft. Section 8 of the 2000 Act provides for the independence of the board, while section 9 provides for a five-person board comprising three persons appointed by the Minister for Transport, the chief surveyor of the Department of Transport and the Secretary General of the Department, or his or her nominee.

The MCIB is also designated as the investigative body in the State for the purposes of EU Directive 2009/18/EC of 23 April 2009, which established the fundamental principles governing the investigation of accidents in the maritime transport sector. The directive applies since 2011 to a subset of the marine casualties that come within the remit of the MCIB. The purpose of an investigation is to establish the cause or causes of a marine casualty, with a view to making recommendations for the avoidance of similar marine casualties. It is not the purpose of an investigation to attribute blame or fault. The MCIB is a non-prosecutorial body which does not enforce laws or carry out prosecutions arising from the findings of its investigations.

In March 2019, the EU Commission lodged a case with the Court of Justice of the European Union, CJEU, expressing concern at the independence of the MCIB in the context of the independence requirements of Article 8.1 of Directive 2009/18/EC with particular regard to the membership of two officers of the Department of Transport, namely, the chief surveyor and a nominee of the Secretary General on the board. On 9 July 2020 the CJEU issued a judgment concerning the independence of the MCIB insofar as its investigative work falls within the scope of Directive 2009/18/EC. The court declared 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 Directive 2009/18/EC. The issue was the presence of two departmental officials on the board, who were seen as persons whose interests could conflict with the task entrusted to the MCIB. There was no finding of wrongdoing on the part of any members of the board. The State addressed the court findings through the resignation of the two board members from the board on 30 July 2020 and the introduction of amending regulations under the European Communities Act 1972, to confirm that the two members are no longer board members for the purpose of investigations that fall within the scope of the directive.

However, while these actions address the CJEU ruling from an EU perspective, separate legislative revisions are required at a national level for a number of important reasons. First, to facilitate the appointment of new members to the MCIB to fill the existing vacancies on the board. Second, to remove risks associated with the current reduced board membership of only three persons and to ensure that the board can continue to meet the quorum requirements of the 2000 Act, which stipulates a quorum of three members for a meeting of the board. Third, on grounds of consistency to encompass the broader spectrum of investigations that come within the remit of the MCIB under the 2000 Act and fourth, to ensure that the board can continue to function to meet our EU and international obligations to have an independent marine casualty investigative body in place. The Bill that I present to the House today will address these issues.

I now wish to look at the content of the Bill, which consists of 16 sections. As already outlined, the main focus is to facilitate a revised board composition for the MCIB and the appointment of new board members. The Bill also provides for other necessary operational and technical revisions to the 2000 Act to support the ongoing independent functioning of the MCIB. The opportunity has also been taken in the Bill to update the definition of “safety convention” in the Merchant Shipping (Safety Convention) Act 1952, which relates to the International Maritime Organization's International Convention for the Safety of Life at Sea, SOLAS. This is being done to facilitate the transposition of some convention amendments since December 2014 into Irish secondary legislation.

Section 1 of the Bill is the interpretation section. It provides for a definition of the Act of 2000, that is, the Merchant Shipping (Investigation of Marine Casualties) Act 2000, No. 14 of 2000, which is the focus of the amendments set out in sections 2 to 12, inclusive, of the Bill. As already mentioned, the 2000 Act is the Act that underpins the establishment and the operation of the MCIB. Section 2 removes the definition of “chief surveyor” from the interpretation section of the 2000 Act as it is no longer required because the chief surveyor is no longer a member of the board of the MCIB.

Section 3 is one of the most important sections of the Bill, as it amends section 9 of the 2009 Act, which relates to the composition of the board of the MCIB. The section provides for a substitution of section 9 of the 2000 Act to provide for a new composition of the board of the MCIB based on a minimum of five members and a maximum of seven members appointed by the Minister for Transport. References to the chief surveyor and the Secretary General of the Department of Transport, or his or her nominee as members of the board, have been removed. The section facilitates the appointment of new board members and provides some flexibility on the total number of members in recognition of the limited pool of persons with appropriate maritime or other expertise who may be interested in putting themselves forward for consideration as a member of the board. However mindful of the CJEU judgment, the section precludes serving officers of the Department of Transport or certain officers or special advisers to Ministers or Ministers of State who held a position in the Department in a previous five-year period from being eligible for appointment as a member of the board.

Section 3 also sets out a framework of desired skill sets for potential board members in the interest of maintaining knowledge and expertise on the board. The list is not exhaustive but includes knowledge, experience and expertise in such matters as accident investigation, corporate governance and management, marine engineering, nautical science or navigation, naval architecture, maritime law and regulation, health and safety management and risk management. The possibility of increased membership will facilitate the addition of further expertise on the board. The revised section introduces a specific consideration of board gender balance when the Minister of Transport is appointing members of the board. This is in line with the Government's commitment to achieve gender balance on State boards and the code of practice for the governance of State bodies.

Section 4 amends the tenure of office provisions in section 10 of the 2000 Act that apply to board members and removes the age threshold for members. The chairperson and members of the board may be appointed for an initial period not exceeding five years and may be reappointed for a second term. In accordance with the updated code of practice for the governance of State bodies, membership of the board will be limited to two terms of appointment.

Section 5 is a minor technical amendment to section 11 of the 2000 Act to adjust a cross reference in the section arising from the revised construction of section 9 of the 2000 Act under section 3 of the Bill.

Section 6 amends section 14 of the 2000 Act, which relates to the quorum for a meeting of the board and vacancies on the board. The amended section clarifies the possible composition of the three-person quorum, including when the chairperson and deputy chairperson are not in attendance at a meeting or are required to withdraw at the same time due to conflict of interest issues. As in other sections of the Bill, some consequential amendments to section 14 are provided for, arising from section 3 of the Bill and the revised composition of the board.

Section 7 expands the scope of section 16 of the 2000 Act relating to consultants, advisers and investigators to facilitate the engagement of additional expertise by the board to assist it in the performance of its functions under the Act. All references to investigators nominated by the chief surveyor from the Marine Survey Office, MSO, have been removed from the section to confirm the current situation where no Marine Survey Office personnel are involved in investigating marine casualties on behalf of the MCIB.

Investigations are conducted by investigators from a panel established by the MCIB. Section 8 is a consequential amendment and amends section 17 of the 2000 Act to apply the disclosure of interests requirements of that section to any other provider of skills or expertise engaged by the board under the amended section 16 of that Act.

Section 9 amends section 18 of the 2000 Act to bring a greater consistency between the provisions of the 2000 Act and the regulatory regime that applies to marine investigations that fall within the scope of EU Directive 2009/18/EC, which governs the investigation of accidents in the maritime transport sector, with regard to confidentiality and the unauthorised disclosure of confidential information.

Section 10 provides for an important specific requirement for persons who are involved in or aware of a marine casualty to notify the MCIB of information regarding the marine casualty through an amendment of section 23 of the 2000 Act, which deals with the initial notification of marine casualties.

Mindful of the CJEU judgment and the independence of the MCIB, section 11 amends section 26 of the 2000 Act in relation to investigations, to remove the requirement to consult with the Minister for Transport when the board decides to investigate a casualty that falls within section 26(1)(b) of the 2000 Act.

Section 12 amends section 34 of the 2000 Act to bring a consistency between the timeframe for the publication of investigation reports by the board under the 2000 Act and those that fall within the scope of Directive 2009/18/EC. The amendment provides that the board will endeavour to publish an investigation report within 12 months of the occurrence of the marine casualty rather than within nine months of the notification of the casualty. At least one interim report within 12 months of the occurrence of a marine casualty will be required if the board is not in a position to publish a final report within that 12-month period.

Section 13 is not an amendment to the 2000 Act. It is a new, stand-alone provision in the Bill that will require persons to notify the Marine Survey Office when a marine casualty within the meaning of the 2000 Act occurs. This is an important provision and recognises the fact that the Marine Survey Office continues to have an interest in knowing about marine casualties, in particular where there may be implications for the safety of vessels, crew, passengers or the environment, and where there are regulatory compliance issues that need to be addressed or followed up. To reflect the provisions of section 1(4) of the 2000 Act, the requirements of the section do not apply to vessels of the Naval Service of the Defence Forces. Warships of another state are also excluded, in order to be consistent with the application of Directive 2009/18/EC. The offence provisions in the section are in line with those that apply to similar offences under the 2000 Act.

Section 14 is a transitional provision to confirm the continuation and completion of any MCIB investigations that may have been commenced and have not been completed on the date of the enactment of the Bill. To remove any doubt, the section also confirms the continued appointment of the three remaining members of the existing board for the unexpired term of their appointments under the 2000 Act.

Section 15 provides for an amendment of section 3(1) of the Merchant Shipping (Safety Convention) Act 1952 to substitute and update the definition of "safety convention" in that Act. The definition was last updated in 2014. This will facilitate the transposition into Irish secondary legislation of some recent amendments to the International Convention for the Safety of Life at Sea, the SOLAS convention, that have been adopted up to and including the 99th session of the maritime safety committee of the International Maritime Organization in May 2018. The SOLAS convention is an important international convention concerning the safety of merchant ships. The main objective of the convention is to specify minimum safety standards for the construction, equipment and operation of ships. The convention has been updated and amended on numerous occasions and is subject to change on a continuous and almost annual basis by the International Maritime Organization, thus necessitating periodic updating of the enabling provisions in Irish primary legislation.

Section 16 is a standard legislative provision providing for the Short Title, collective citation and construction of the Bill.

As indicated at the outset, the primary aim in presenting this Bill for the consideration of the House is to amend the existing legislative framework that relates to the MCIB in order to ensure the continued functioning of the board as the maritime investigative body in the State, by facilitating the filling of vacancies on the board and the appointment of additional board members, and thereby removing the current risks associated with a reduced board membership. The proposals contained in the Bill will enhance the organisational independence of the MCIB 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. I commend the Bill to the House.

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