Wednesday, 24 November 2021
Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021: Second Stage
Hildegarde Naughton (Galway West, Fine Gael)
I thank Deputies for their comments on the Bill. I welcome the engagement on it and the underlying support for an enhanced legislative framework for the investigation of marine casualties in Ireland. Although a relatively short Bill of only 16 sections, it contains important provisions to amend and update the Merchant Shipping (Investigation of Marine Casualties) Act 2000 and thereby to support the continued independent functioning of the Marine Casualty Investigation Board as the marine investigative body in the State. This is needed, not only in order that we will continue to meet our international and EU obligations to have an independent investigative body in place, but also to ensure the MCIB can continue to carry out its investigative role, establishing the causes of marine casualties and making safety recommendations with the aim of preventing similar casualties occurring in the future.
It is also consistent with one of the core objectives of the Irish Maritime Directorate Strategy 2021-2025 to enhance maritime safety and is an important pillar of our national safety policy. I am confident the Bill will provide a suitable baseline for the future development of marine casualty investigation structures in Ireland. As mentioned in the opening statement on the Bill, there is an urgent need for it to progress. As a consequence of the necessary actions taken to address the findings of the July 2020 CJEU judgment, the MCIB board is currently composed of three members and the existing 2000 Act does not provide a mechanism to fill the vacancies on the board.
The Bill will allow the filling of the vacancies to be progressed. It will facilitate a revised board composition and the appointment of new board members, thus removing the risks associated with a reduced board membership and ensuring quorum requirements for board meetings can be met. It will also ensure there is a specific legislative requirement in the 2000 Act for a marine casualty to be notified to the MCIB directly.
The report of the Joint Committee on Transport and Communications on the pre-legislative scrutiny of the Bill noted the importance of the Bill. The committee agreed that the current situation of the quorum for board meetings poses a risk to the functioning of the MCIB and that section 3 of the Bill, which provides for the appointment of an increased number of board members with specific relevant competences and expertise, should ensure the board functions in the short term, while the Department carries out the comprehensive review of the broader framework for marine casualty investigation.
The underlying focus of the operational and technical amendments to the 2000 Act contained in the Bill is to support the functioning of the MCIB.
The opportunity offered by this Bill's introduction has been taken to update the legislative provisions relating to the International Convention for the Safety of Life at Sea, SOLAS, with a view to providing an enabling framework for the transposition of more recent amendments to the international convention into Irish law. There is an ongoing need for such updates in maritime primary legislation. I am pleased that the Bill affords us this opportunity.
I would like to address some of the main themes of the debate. Deputies O'Rourke, Mac Lochlainn, Cathal Crowe, Martin Kenny and others raised the issue of the review report and the wider review of organisational structures for marine casualty investigation in Ireland and the publication of the Clinchmaritime Limited report on the matter. In March 2021, Clinchmaritime Limited was asked to assess the current organisational structures and set out any recommendations, including related to change, to achieve the most appropriate and effective marine casualty investigation structures for Ireland, taking into account national, EU and international obligations. A public consultation on the matter was also carried out between late March and mid-May of 2021. All submissions received were forwarded to Clinchmaritime Limited in order to form input into the review. The contents of the report from Clinchmaritime Limited are being considered in my Department, and officials continue to engage with the Office of the Attorney General to obtain legal advice on certain aspects of the report. This advice will inform the publication of the report. It is therefore not possible to comment further on the report or its publication at this stage. It is envisaged that policy proposals to address recommendations from the overall review process will be developed. As indicated previously, this may lead to proposals for further legislative change. This Bill is the start of a process but it is an urgent and necessary first step.
A number of Deputies raised the issue of funding for the MCIB. It is funded by the Department of Transport's Vote, with money voted by the Oireachtas. In recent years, €402,000 has been allocated but the full amount has not been drawn down by the MCIB. Given the nature of the work of the MCIB, funding requirements can vary from year to year. All funding requests from the board to carry out its work programme have been met. In the context of the general review of the organisational structures relating to marine casualty investigation in Ireland, the funding structures and requirements of the marine casualty investigation body may be subject to revision in the future. The existing board comprises highly qualified and experienced individuals. The members have extensive, wide-ranging experience, including in litigation, regulatory law, marine engineering, and accident investigation.
Deputies Berry and McNamara raised the issue of new board members and how they will be found in the interim. In normal circumstances, the standard system for board appointments uses the Public Appointments Service and an advertising campaign on its website to fill vacancies on the board. It is open to suitably qualified persons to apply for consideration for appointment. If the Bill is enacted, there would be an immediate need to fill board vacancies and, in particular, to ensure that the quorum requirements for board meetings are met. Section 9 of the Act provides the Minister with power to appoint members, which may be utilised to ensure the continued functioning of a marine casualty investigation body in Ireland. Section 3 of the Bill sets out an amendment to section 9 of the Act relating to the knowledge and experience required for consideration as an appointee to the board, inter alia, accident investigation, marine engineering, nautical science or navigation, naval architecture, maritime law and regulation, and health and safety management.
Notwithstanding the normal practice for the appointment of persons to State bodies as outlined above, the ultimate power to make MCIB appointments rests with the Minister for Transport under the provisions of the 2000 Act. The ministerial power overrides any conflict with the requirements of the Code of Practice for the Governance of State Bodies of 2016, and could be used in the event that the Minister needs to quickly and decisively to make an urgent appointment to ensure that the MCIB continues to operate and to meet its statutory mandate. It must be noted, however, that it is intended to utilise the expert experience of the Public Appointments Service to fill all board vacancies that arise routinely.
Deputy Catherine Murphy raised issue in respect of the CJEU. In any scenario such as this, serious consideration has to be given to a legal strategy that weighs up all the appropriate factors with legal advice. There is never any certainty with legal proceedings. There was an arguable case in response to the proceedings taken by the Commission. At the time, the decision to defend was an appropriate and reasonable course of action. All key decisions relating to the MCIB infringement case were made following receipt of legal advice and with the approval of the Attorney General and the Minister for the final decision to defend the case at the CJEU.
Deputy McNamara and others raised the issue of the cost of the CJEU defence. There were no immediate costs or fines for Ireland arising from the CJEU judgment of 9 July 2020. Fines were not imposed as a consequence of the judgment, since the proceedings were brought under Article 258 of the Treaty on the Functioning of the European Union. The general principle is that the party that loses a case bears the cost. However, the practice in these cases is that neither the European Commission nor the member state, which is Ireland in this instance, ever actually seek their costs. It is therefore a notional concept. Costs related to the defence of the case arose from the preparation and receipt of counsel opinion at each stage of the process and from meetings and consultations with counsel. These costs are met by the Office of the Chief State Solicitor. The Office of the Chief State Solicitor does not bill Departments for its services, so the only costs that can be quantified are those paid to counsel. Other costs arising from the involvement of the Department of Transport, the Office of the Attorney General and the Office of the Chief State Solicitor's staff in the case were met as part of the normal salary costs of individual staff members.
While I have the opportunity, I want to clarify some issues regarding the CJEU judgment. The specific finding of the judgment related to the presence of two Department of Transport officials on the five-person board of the MCIB, who were seen as persons whose interests could conflict with a task entrusted to the MCIB. There was no claim by the Commission that the MCIB lacked independence with regard to its legal structure and there was no court finding of partiality or wrongdoing by any member of the board. Notwithstanding suggestions to the contrary from some quarters, the CJEU judgment contains no adverse findings regarding the competence of the MCIB or of individual members and this issue has not formed part of any interactions between the European Commission and my Department, either before or since the court case.
Deputy Catherine Murphy raised allegations made regarding certain board members. This is a matter for An Garda Síochána. I am advised that An Garda Síochána wrote to the chair of the MCIB on 21 June 2021 to confirm that a thorough examination of certain allegations made had been conducted and that no criminality was identified. The matter has been closed by An Garda Síochána.
I reassure Deputies that a comprehensive framework and programme are in place within the Department of Transport to oversee and review the legislative structures that apply to the maritime area. This includes a detailed legislative programme document, which is reviewed and updated regularly, having regard to developments at an EU and international level, as well as domestic requirements, priorities and available resources. The extensive maritime legislative programme addresses issues relating to merchant shipping, fishing, passenger vessels and recreational craft, as well as maritime safety and marine environment ship-source pollution prevention. Consolidation and review of the Merchant Shipping Acts has been an important goal of the Irish maritime directorate. As part of the current process, my Department has engaged with the Law Reform Commission, and received specific training on its software to enable officials to directly prepare consolidated texts of the Merchant Shipping Act 1894, the Merchant Shipping (Safety Convention) Act 1952 and the Merchant Shipping Act 1992. These texts have been finalised by the Department, reviewed by the Law Reform Commission, and published on the Law Reform Commission's website in 2021.
I must clarify that the Lacey report of 2010 was not a report about the independence of the MCIB. The terms of reference asked that the then air, marine, and rail accident investigation legislation be examined, with a view to providing a report to the then Minister for Transport on legislative proposals on the possible amalgamation of the three existing units into a single office, a national multimodal accident investigation office. In the context of looking at wider structural issues as part of the review of marine casualty investigations in Ireland, this matter may well be considered.
I reiterate that this Bill is a necessary step to amend the legislative framework surrounding the MCIB and to support the continued functioning of the marine investigative body in the immediate term. I thank Deputies for their contributions to the debate on the Bill and I look forward to further interaction on this important legislation on Committee Stage.