Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

The ambition of this Bill is to replace the Marine Casualty Investigation Board, a body which was flawed from its inception. The fundamental weakness of the board was the presence on the board of the chief surveyor of the Marine Survey Office and the Secretary General of the Department of Transport, people who by their positions were objectively biased. It is not about the individuals, but they were objectively biased. The function of the Marine Casualty Investigation Board was to investigate maritime accidents, which could potentially have been caused by the actions of persons within the Department of Transport whose duties are, for example, to certify shipping.

The body also suffered from an acute lack of resourcing and top-tier professionalism when compared with the air and rail investigative equivalents and a failure to stipulate that the board members be appropriately qualified or experienced. In essence, a board was established which was empowered to investigate itself and has resulted in the production of substandard reports, with a resultant failure to properly document or learn from incidents, some of which had tragic outcomes.

For example, I remember debating the report that followed the awful tragedy of the Rescue 116 helicopter crash. It was very detailed and we discussed it at length. We were told it was not about apportioning blame but rather about making sure the same thing did not happen again. It is hard to believe Ireland is a maritime country. We have a bigger coastline than most European countries but our governance of it has been so remiss.

The State was able to get away with this model until 2009, when the EU introduced a directive obliging member states to establish bodies to investigate marine accidents and to ensure their impartiality and independence. The European Commission began infringement proceedings in 2015, which the State chose to challenge and which ultimately ended with a wholly predictable adverse finding by the Court of Justice of the European Union in July 2020. To add insult to injury, it is reported that at the time, the State was left liable for costs over the decision to challenge the European Commission’s issue with the make-up of the board. Who gave the advice to initiate that challenge when the outcome was so predictable? Anyone taking a cursory glance at the failure in this regard would have said that we could not win the case. Why, therefore, was the case taken forward? I do not understand the thinking behind that decision.

We were told the practice in these cases is that neither the European Commission nor the member states - Ireland in this instance - ever actually seek their costs, and, therefore, it is a notional concept. I want to know about costs. In my opinion, a notional concept means that it just does not arise. Of course, you cannot take a case without cost. While we are not paying on both sides, it has a cost on our side to take that case, even if it is done in-house. There are opportunity costs by virtue of the fact that staff have to be deployed to do that work. I do not accept that it is a notional cost. There is an actual cost in taking those cases. We should not have taken that case in the first place. We should have accepted there was an issue that urgently needed to be addressed and should have addressed it.

The decision addressed the narrow issue of whether the presence of the chief surveyor and the Secretary General on the board compromised its independence. It found that it did. The decision did not consider any of the other failings of the Marine Casualty Investigation Board. The chief surveyor and the Secretary General resigned from the board and the Minister introduced a short statutory instrument, as a stop-gap measure, obviously. I understand there was an attempt to fast-track amending legislation through the Dáil and to bypass pre-legislative scrutiny on the basis that the legislation was urgent. It must be remembered that this case was taken in 2015. We were notified in 2009. This is gun-to-the-head stuff rather than going through the process which produces the optimal outcome. Pre-legislative scrutiny can be enormously helpful. The contributions made by some of the witnesses, including that of my colleague, Ciarán McCarthy, before the Joint Committee on Transport and Communications regarding this Bill were incredibly important in improving this piece of legislation.

This new Bill is an effort to remedy the earlier botched legislation that was brought in after the EU ruling. The Bill, while primarily focused on marine accident investigation, also encompasses specialised offshore service vessels. Legislation is needed in this area as the Government has increased our offshore wind targets needed to be achieved by 2030. Obviously, that is needed.

Tackling climate change is an existential crisis of our generation. Establishing a sustainable source of renewable offshore energy will be key to this. I noted in the budget the amount provided for the Port of Cork. We do not actually have a port that is sufficient to deal with the construction of offshore platforms. This measure will remedy that. It is a good location with a natural harbour. It is important that this decision was made. It is long overdue. It is quite extraordinary we had that huge resource of offshore energy but we are only now getting around to designating a port. I acknowledge it has been done and that resources have been made available.

I welcome that the Minister has chosen to disband the existing Marine Casualty Investigation Board and replace it with another body. We urgently require legislation specific to the types of ships we will need to build and maintain our offshore infrastructure. Ireland has been in breach of its obligations under the International Convention for the Safety of Life at Sea, SOLAS, for decades. It is a relief this is being addressed. It is disheartening, however, to contemplate yet another proposal to amend the Merchant Shipping Act 1894 and to shoehorn into the same Bill a number of disparate proposals. While the Victorians were ingenious, it is a fallacy to suppose that people who lived 130 years ago had the foresight to regulate offshore renewable energy in 2023 or 2024. The individual issues of marine accident investigation, offshore renewable production, safety of life at sea and the working conditions of seafarers are each by themselves deserving of specific legislation.

The majority of this Bill is concerned with a body to be known as the marine accident investigation unit. The Bill will transpose EU Directive No. 2009/18 establishing principles governing the investigation of accidents, which was introduced as part of the EU-wide Erika suite of maritime safety measures following the Prestigeand Erikatanker incidents. The recitals of the directive speak to the need to hold unbiased investigations by qualified investigators within an independent body to help prevent the recurrence of casualties. Article 8.1 provides that suitably qualified investigators, competent in matters relating to marine casualties and incidents belonging to an investigative body which is independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it. Article 8.2 of the directive provides that individual investigators,“have a working knowledge of, and practical experience in” the matters they are to investigate.

Ireland previously sought to transpose the directive through the European Communities (Merchant Shipping) (Investigation of Accidents) Regulations 2011, that is, SI 276 of 2011. In the course of a ruling, however, delivered on 9 July 2020 in case C-257/19 the Court of Justice of the European Union, it was found that the presence of the chief surveyor of the Marine Survey Office and the Secretary General of the Department of the Marine and Natural Resources, or his or her nominee further to section 9(1) of the Merchant Shipping (Investigation of Marine Casualties) Act 2000, on the MCIB meant the objective independence of the body could not be guaranteed. This Bill is an attempt to rectify these issues and establish a body that is in conformity with EU law.

The Bill makes provision for the establishment of the new marine accident investigation unit within the Department of Transport. Although the text mirrors that of the directive with respect to independence of organisation, legal structure and decision-making, the objective independence of the proposed new organisation is undermined by its being a part of the Department of Transport, given that it is not inconceivable that it would be called upon to investigate instances involving divisions of the Irish maritime directorate of the Department of Transport, such as the Marine Survey Office or the Coast Guard.

Ideally, this body should be under the remit of a different Department, perhaps the Department of Justice. There is potential for continuing conflict in this area.

Also provided for will be the persons with qualifications to be appointed as investigators and chief investigator. The Bill does not state what qualifications such people should hold. The marine accident investigation unit is to be provided with extensive powers, including the power to initiate investigations and the rights to use reasonable force to gain entry and require medical examinations of persons. These are extensive powers and responsibilities, yet the Bill is silent on the qualifications or backgrounds of the investigators who will use them and in stipulating that the investigators be competent in matters relating to marine casualties and incidents and have a working knowledge of, and practical experience in, the matters they are to investigate, as required by the directive. I would be concerned if people were asked for their qualifications in court and could not state what they were. There could be a challenge in such circumstances. I would have believed a basic requirement would be to specify the range of qualifications. There can be a range. There seems to be a quite significant gap in this regard.

Part of the Bill concerns offshore service vessels and their personnel onboard. Although legislation currently exists to regulate oil and gas extraction, Ireland does not have laws regulating specialist vessels engaged in the construction and maintenance of structures used to exploit offshore renewable energy. We do not recognise categorisations of such ships under special purpose ship codes or work boat codes, nor do we accept crew certification for the operation of such vessels with limitations in terms of purpose, power or areas of operation, as is the case in the UK. There are examples in other jurisdictions and it is not as if we have to reinvent the wheel. We should be examining what has been done elsewhere and what we need to do now. Otherwise, we will be back legislating in this area again. What should be future-proofed in this legislation does not appear to be future-proofed.

The methodology employed by the Marine Survey Office is to insist that vessels in the category in question, both Irish registered and foreign flagged and which regularly dock at the country’s ports, must acquire Irish passenger ship or Irish passenger boat certification and Irish load line certificates.

Provision is also made for a new category of passengers, to be known as "industrial personnel", who are persons transported or accommodated for the purpose of offshore industrial activities performed on board other ships or offshore facilities. A ship carrying such persons will not be required to be certified as a passenger vessel but will instead be categorised as an "offshore service vessel", which will be obliged to comply with the rules contained in Part 6. The Minister may make rules for offshore service vessels and industrial personnel with respect to design, construction and equipping vessels, and also the carriage of industrial personnel, including in respect of their training and medical fitness; however, the Bill does not make any reference to the licensing and training of persons who will be required to operate these ships. There are things to go back on here and we need to get ahead of them.

This area should be subject to stand-alone legislation given its importance to the offshore renewable commitments for the next decade. Given that we have designated the Port of Cork and provided funding, we can anticipate the needs. We must not wait until there is an accident, a directive from the EU or criticism from the Commission; rather, we need to put the matter in the work plan and do the work in a timely way. What happens offshore changes all the time and it is certainly not equivalent to what happened in Victorian times.

Marine accident reports are incredibly important to those who have lost family members or loved ones at sea. It is important that an organisation be capable of delivering the detail and that the investigation be conducted by people who are professional and can give families the answers. This relates even to giving a date of death for those missing for a period of time. This is really important to families. It might seem fairly obvious but sometimes there is a question mark over even this.

There is quite a bit of work to be done in this area, and we have to get ahead of it because offshore energy generation, particularly wind energy generation, will play a huge part in what will happen in the future. It has to happen. We have a unique opportunity that others would bite our hand off for but we have to put all the building blocks in place to make sure the work is done safely and properly legislated for.

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