Tuesday, 14 July 2020
Saincheisteanna Tráthúla - Topical Issue Debate
Marine Casualty Investigations Board
I am sharing time with Deputies Buckley and O’Rourke.
Last week the European Court of Justice found that the Marine Casualty Investigation Board is not adequately independent and gave costs against the State. Any decision of the European Court of Justice that finds against the State is weighty and significant but this is especially so in the context of the work that the Marine Casualty Investigation Board does. It has issued over recent years almost 300 reports on marine incidents and casualties since its establishment. Throughout the history of the State, and especially in recent years, there have been so many significant events and tragedies and families left grieving because of significant instances and tragedies. It is vital that the incidents are properly investigated and that the people who are affected, bereaved and injured have confidence in the system.
It has been found by the European Court of Justice that Ireland is in breach of Article 8(1) of directive 2009/18/EC. The fundamental point is quite straightforward. The court decided that the Marine Casualty Investigation Board is not independent because two of the five on the board are from the Department of Transport, Tourism and Sport. It seems obvious. Frankly, it is difficult to understand why the case was fought by the State given that many commentators were of the view that it was bound to fail. Will the Minister set out how much this case cost?
I have not been keeping track of time.
This is an important judgment.
The Commission raised concerns about the lack of independence and a conflict of interest and found that the State failed to comply with its obligations. It is an important and significant judgment and requires a full response from the Department and the State. I would question the approach taken by the Government in contesting the case. As Deputy Ó Laoghaire outlined, it is not as if this had not been flagged. The judgment has important implications for the recommendations, findings and report of the Marine Casualty Investigation Board. That needs to be fully investigated. Above all, we need a system of governance and practice in the Marine Casualty Investigation Board that is beyond reproach.
This judgment has serious implications. It is about accountability and responsibility. It beggars belief that this judgment has come back from the European Union. It was not too long ago that we raised other marine safety issues relating to lifeboat gear, the Coast Guard and so on in the House. It is imperative that the matter is investigated. We have to get clarity in respect of what actually happened. The previous two speakers indicated that this has serious implications, but it has also had an impact on families. I was almost ten years of age when the Whiddy Island disaster happened, but I still remember it. I urge the Minister of State to look into this judgment. I am curious to hear her response. I will stick to the time allowed and reply to the Minister of State afterwards.
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.
I have agreed with the other Deputies to take the full two minutes. There are a number of issues with the response from the Minister of State. There is a context to this. The Government and senior Ministers received an email in recent days from a maritime lawyer, Mr. Michael Kingston, who is the son of one of the victims of the Whiddy Island disaster. He outlined in that email his concerns that there has been a long track record in terms of a failure to tackle the issue of independence at the Marine Casualty Investigation Board. He is not alone in that regard. Many voices have raised the same concern.
To be honest, it is extraordinary that the case was defended. The issue was that there was a clear need for independence. Two of the five members of the board came from one Department. It is very difficult to see how anyone could have argued that was independent. I appreciate what the Minister of State said about impartiality, but it seems very apparent that the board was not independent. There are issues with that and there is a need for independence, which is required in the EU legislation.
It is remarkable that this judgment has not received more attention. The European Court of Justice has found that in the context of maritime safety, this State is in breach of EU legislation. It matters because the Department is responsible for safety on the water and for the legislation and relevant codes of practice. Of course it is important that recommendations are made following an incident or tragedy by a body which is adequately independent. That issue has been raised for several years now. I raised the issue last year, but many others have raised it for many years.
There is a strong view that the board was not adequately independent and that was problematic. How much has this case cost? The Minister of State referred to enhancing the organisational independence of the Marine Casualty Investigation Board. I hope that happens. Perhaps it needs to be entirely reconstituted. There may be a need to re-examine some of the cases it has dealt with or, at the very least, its approach in recent years. The State has incurred costs and it needs to accept that it is in the wrong and that there is a need for a fully independent body. We need to examine what happened in the past and how we got to the situation.
I have heard clearly what the Deputies stated. The Department is examining the judgment and has sought legal advice on this in terms of the next steps we will need to take to address the concerns of the Commission. Any proposed new policy approach will be the subject of a future submission for the consideration of the Cabinet. The Deputies can be assured that every effort is being made to progress matters as quickly as possible and to enhance the organisational independence of the Marine Casualty Investigation Board.