Wednesday, 24 November 2021
Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021: Second Stage
Catherine Murphy (Kildare North, Social Democrats)
I do not know how many times I have stood in this House to criticise our lax record on implementing EU directives. We are constant laggards when it comes to EU law, and that goes across Departments, but in this particular case, instead of delaying the implementation, we seem to have just pretended that we had properly transposed the legislation and hoped the European Commission would not notice there were two departmental officials sitting on the independent Marine Casualty Investigation Board. Of course, not only were we knowingly going against an EU directive - because I do not for one instant believe that the Department thought this arrangement constituted independence - we also knowingly went against established best practice.
In 1987, a UK ferry, the Herald of Free Enterprise, left a Belgian port with its bow door open and the sea immediately flooded the decks. The ferry capsized within ten minutes, killing 193 passengers and crew. I remember the incident very well and what transpired afterwards in terms of the safety that was insisted on, in particular making sure doors were closed and that there were public announcements, and so on. The public inquiry into it resulted in the establishment of the UK’s Marine Accident Investigation Branch. In the following years, many other countries followed suit and set up similar organisations.
Unfortunately, we waited until 1998 to consider setting up our own investigation structure. A report was commissioned and people were dispatched to various places around the world to observe best practice, noting that bodies should be independent and should contain maritime experts. Incredibly, we then concluded that we should ignore all of that best practice and have the Secretary General of the Department of Transport and the Chief Surveyor of the Marine Survey Office on the board, and we proceeded to include no other people with maritime expertise. This was to act directly and consciously against the best practice which was observed in other jurisdictions, not to mention against basic common sense in that the two regulators in the area should not be investigating themselves. I would have thought this was self-evident, although I know this was before the Minister of State’s time.
In the 2000s, the EU produced a suite of legislative packages - Erika 1, 2, and 3 - which were all intended to improve safety in the shipping industry and reduce environmental damage. The packages were named after a particular ship which spilled more than 10,000 tonnes of oil off the coast of France in 1999, polluting 400 km of coastline. We also had experience of that in previous decades. What followed was Directive 2009/18/EC, the directive which we were found to have contravened. It outlines that an investigative body carrying out marine safety investigations shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it. We have to remember the whole purpose of this report, as we discussed last week in regard to R116, was not to apportion blame but to ensure we ended up reducing the number of accidents - in that case, making our skies safer, and in this case, making the marine environment safer. When I say "the marine environment", I understand this entity is not confined to the coast but also covers lakes and inland waterways.
We transposed that directive in the full knowledge that the board was not independent, by any understanding of the word. In 2015, the European Commission asked for clarity from the Department on the implementation of the directive, noting that the Chief Surveyor and the Secretary General “performed other regulatory and enforcement functions in respect of the regulations in the field of maritime transport and/or fisheries”, and we did nothing.
In 2016, the European Commission rightly commenced infringement proceedings against the State and incredibly the Department argued that the make-up of the board of the MCIB constituted independence. What on earth was the Department thinking about when it challenged this? Why did it not accept that this was not really something that could be challenged? I would like to hear what kind of advice was received in this regard and from whom. It would be useful if the Minister of State could explain that when she is summing up. Did the Department receive legal advice which encouraged it to challenge the European Commission's decision? In the Committee of Public Accounts I am forever asking the State Claims Agency what it is advising Departments on or how it comes about that things are being challenged which should not be challenged. How much money did the State spend on this case? It is a case we seemed destined to lose and that we deserved to lose. The MCIB needs to be completely independent. It needs to contain maritime experts and not only legal experts who rely on independently contracted investigators to carry out reports.
Crucially however, the investigation of maritime casualties needs to be resourced. The ad hocnature of resourcing given to this area is appalling. We have investigation units for the rail and aviation industries, as has been pointed out by others. It is not a foreign concept to us that these units are required and it is good practice to have them. In 2019, €350,000 was spent on rail investigators and €750,000 was spent on aviation investigators and thankfully there were no deaths in those sectors during those years. In the same year only €27,000 was spend on investigators in the maritime industry on ten incidents, including six deaths. It is unacceptable to take such a hands-off approach to investigating maritime casualties. The board does not contain maritime expertise, it is only now becoming independent from the regulator, it is part-time and all reports are done through independently contracted investigators that are under-resourced. There is an ad hocnature to what is and is not investigated. There do not seem to be clear protocols on that and it would be useful to hear what is intended in that area.
On the topic of the reports themselves, there are many alarm bells ringing. It was reported last year that a file had gone to detectives in the National Bureau of Criminal Investigation, which alleged that Department officials had been interfering in reports from the MCIB, altering investigative reports which made criticisms of the Department and removing safety recommendations made by investigators. That is only an allegation but it sets off alarm bells. It is a serious charge to lay at the Department's door and is exactly the kind of situation which is to be avoided by having an independent investigative body in place. The reports produced by this body are not intended to make the Department of Transport look good. That is not what the purpose of this body is; it is to prevent accidents happening in the future and to find out what happened in particular incidents. The body should be entirely focused on improving safety and environmental issues. The intention is to learn from incidents and prevent future casualties. The suggestion that these reports were altered to remove safety recommendations and that lives were possibly put at risk is something we need to be concerned about. As I said, it is an allegation at this point.
The MCIB does not investigate every single maritime incident which is reported to it. However, there is no clarity to or transparency in the process on how it is decided whether or not it will investigate an incident. Not all of these issues are addressed in the Bill. I share the concerns of other Deputies that the Bill does not go far enough and I am concerned that it is a sticking plaster. We need a timeline for when a more comprehensive approach will be taken. I accept that the quorum for the board needs to be raised in the immediate term, but this Bill cannot be seen as anything other than an interim measure. If we want to be serious about maritime safety then much more needs to be done. We do not need to wait until the EU passes a new directive or hauls us through the courts to make further reforms. We know problems exist beyond what is addressed here and we know that the investigation of marine casualties needs a serious overhaul.
I expect that this is not news to the Minister of State. I understand that a report on the MCIB is sitting on her desk at the moment. This report was mentioned by other Members and it was commissioned from Clinchmaritime Limited. It makes a number of recommendations for reform. Is it likely that we will see any amendments on Committee Stage as a result of that? Will that report inform that process or is this the extent of what we can expect? I have not seen the report and I encourage the Minister of State to release it. We cannot pass legislation like this when we know there is a deficiency and that more needs to be done. This does not exclusively happen in transport; it comes up in justice quite a lot as well but we often put a gun to our heads in setting a timeline to put something in place because we are not complying with EU law.
We need to know what exactly has gone wrong in the MCIB to date. This would inform a new Bill to provide an appropriate investigation system. That system may constitute an entirely new body. We are an island nation, which others have referred to, and we also have a culture, born out of necessity, of a strong maritime industry. Pre-Brexit, we were establishing more ferry routes and relying more on the sea bridge to mainland Europe now that the land bridge is less accessible.
We are all aware that the fishing industry is often a dangerous one to work in. Incidents, fatalities and losses at sea are often reported. I note that this Bill would make it an offence to not report an incident within six months. I understand that the intention behind this is to attempt to ensure that all incidents are reported. However, I would worry that the threat of an offence may have the opposite effect. You would hope that people would buy into this and accept that it is being put in place in the interests of safety. The no-fault nature of the investigation body is key to ensuring that the industry is as safe as possible. It ensures that people feel comfortable coming forward to report incidents without fear. It may well be that more than regulation will be imparted and that training and expertise are also imparted. Has a regulatory impact survey been done on this measure in particular? I know the Committee on Transport and Communications has asked that this section be removed until the committee can give it further scrutiny.
It is self-evident that we need to ensure that we have the highest possible level of safety in our maritime industry. I will be watching out for the Minister of State to respond on what is intended. None of us could accept that this will be sufficient to properly put a system in place that achieves a safer environment for people to work in. I hope that serious note will be taken of the extent of the resourcing of the investigative board and of the ad hocnature of what does and does not get investigated. That is important and several Members have made the exact same point on that.