Wednesday, 9 March 2022
Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021: Second Stage
I am pleased to introduce the Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021 for consideration by the House. It is a short, technical Bill that contains important provisions to amend the Merchant Shipping (Investigation of Marine Casualties) Act 2000, which established the Marine Casualty Investigation Board, MCIB. The amendments to the 2000 Act have a particular focus to support the functioning of the independent MCIB as the marine casualty investigative body in the State and ensure that Ireland continues to meet our European and international obligations in that regard. The Bill will also update the definition of “safety convention” in the Merchant Shipping (Safety Convention) Act 1952 and, thereby, facilitate the transposition into Irish secondary legislation of certain amendments to the International Convention for the Safety of Life at Sea, SOLAS, The Bill is consistent with key objectives of the Department of Transport Statement of Strategy 2021-2023 to promote safety and of the Irish Maritime Directorate Strategy 2021-2025, one of the core objectives of which is to enhance maritime safety. As I will explain, this Bill is a necessary intermediary step to amend the existing legislative framework for the MCIB in order to ensure and support the continued functioning of the investigative body in the immediate term. Before I go into the detail of individual sections, to assist Senators and to provide some context, I would like to take a few moments to outline the background to the establishment of the MCIB, its role and the recent events that have given rise to the need for the current Bill. Historically, marine accident investigation is an important element of national safety policy. 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. The 2000 Act was introduced in response to the recommendations of the investigation of marine casualties policy review group, which reported in 1998. The Act addressed the core recommendation of the policy review group in facilitating the establishment of the MCIB as an independent State body to investigate marine casualties and publish reports of such investigations. The model for the composition and independence of the board implemented the recommendation of the 1998 policy review group report for a five-person part-time board consisting of three persons appointed by the Minister, one of whom would be the chairperson and another the deputy chairperson, the chief surveyor of the Marine Survey Office, and the Secretary General of the then Department of the Marine and Natural Resources or his or her nominee. The 2000 Act mandates the MCIB 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. In April 2009, EU Directive 2009/18/EC was adopted, which established the fundamental principles governing the investigation of accidents in the maritime transport sector. The directive has applied, since 2011, to a subset of the marine casualties that come within the remit of the MCIB and, for the purpose of the directive, the MCIB was designated as the investigative body in the State. 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, 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 had failed to comply with its obligations under Article 8.1 of Directive 2009/18/EC. The CJEU finding related solely to the presence of the 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 claim by the EU Commission that the MCIB lacked independence with regard to its legal structure nor was the issue of competence raised by the Commission. It is also worth noting that there was no court 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. The regulations confirm that the two members are no longer board members for the purpose of investigations that fall within the scope of the directive. Arising from these necessary actions taken on foot of the CJEU judgment, the MCIB board is currently composed of just three members and the 2000 Act does not provide a mechanism to fill the vacancies on the board. Therefore, the Bill before the House is needed: to facilitate a revised board composition and the appointment of new members to the MCIB to fill the existing vacancies, to remove risks associated with the current reduced board membership and to ensure the meeting of quorum requirements under the 2000 Act, which stipulate a quorum of three members for a meeting of the board; on grounds of consistency, to encompass the broader spectrum of investigations that come within the remit of the MCIB under the 2000 Act; to provide support to ensure the continued independent functioning of the board in the immediate term as the marine casualty investigative body in the State; and to meet international and EU requirements to have an independent marine casualty investigative body in place. The Bill will address these issues. While there is an immediate and urgent need to progress this Bill, I take this opportunity to confirm what I have already stated in correspondence, in presentations to the Joint Committee on Transport and Communications, and in statements to the Dáil. This Bill is a first step in a reform process. I propose further legislative change in the area of marine casualty investigation arising from the completion of a separate review of the legislative and structural framework that applies in Ireland. In tandem with the Bill, I initiated an independent review of the organisational structures for marine casualty investigation in this country in March 2021. The objective of the review was to assess the current organisational structures and to make recommendations, including regarding change, to achieve the most appropriate and effective marine casualty investigation structures for Ireland, taking into account national, EU and international obligations. Clinchmaritime Limited, headed by the former chief inspector of the UK’s Marine Accident Investigation Branch, was engaged to carry out the review. The recommendations in the subsequent Clinchmaritime Limited report have been given consideration and it is my intention that a policy proposal for a further reorganisation of marine casualty investigation structures will be brought to Cabinet in the coming weeks. Therefore, 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 and, subject to Government approval, I plan to progress the preparation of a further Bill in this area. In the immediate term, however, it is most important that the MCIB is supported in carrying out its role. That is what the current Bill seeks to achieve. I wish to acknowledge the ongoing commitment and dedication of the board of the MCIB and it is my hope that the Bill will provide further support for the important work that it undertakes. The Bill consists of 16 sections. As I have outlined, the main focus is to facilitate a revised board composition for the MCIB, the appointment of two new board members, and other necessary operational and technical revisions to the 2000 Act to support the independent functioning of the MCIB. Section 1 is the interpretation section. It explains that a reference to the “Act of 2000” means 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 2000 Act because it is no longer required in circumstances where the chief surveyor is no longer a member of the board of the MCIB.
Section 3 amends section 9 of the 2000 Act relating to the composition of the board of the MCIB. This section provides for a substitution of section 9 to provide for a revised board composition based on a minimum of five, 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 nominees as members of the board have been removed.
The section 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. 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 the previous five-year period from being eligible for appointment as a member of the board. A non-exhaustive list of desired knowledge and expertise for potential board members is set out in section 3. The list 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 as well as assisting the board in meeting the quorum requirements. 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, a specific consideration of board gender balance is being introduced when the Minister for Transport is appointing members of the board.
Section 4 amends the tenure of office provisions in section 10 of the 2000 Act for 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. 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 changes to section 9 of that 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, some consequential amendments to section 14 are provided for arising from section 3 and the revised composition of the board.
Section 7 expands the scope of section 18 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. All references to investigators nominated by the chief surveyor from the Marine Survey Office 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 interest requirements of that section to any other provider of services or expertise engaged by the board to the amended section 16 of that Act.
Section 9 expands the content of section 18 of the 2000 Act relating to disclosure of confidential information so as to be consistent with the regulatory regime that applies to marine investigations that fall within the scope of the EU Directive 2009/18/EC governing the investigation of accidents in the maritime transport sector.
Section 10 amends section 23 of the 2000 Act to provide an important specific requirement for persons involved in or aware of a marine casualty to notify the MCIB of information regarding the marine casualty.
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 the Minister for Transport where 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 investigation reports that fall within the scope of the Directive 2009/18/EC. The board shall endeavour to publish all investigation reports 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 to require persons to notify the Marine Survey Office when a marine casualty within the meaning of the 2000 Act occurs or commences. 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 the vessels of the Naval Service of the Defence Forces. Warships of another state are also excluded to be consistent with the application of Directive 2009/18/EC. The offences provision 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 are ongoing when the Bill is enacted. To remove any doubt, the section also confirms that the three remaining members of the existing board may continue in their role for the unexpired term of their appointments under the 2000 Act.
Section 15 provides for a small amendment to section 3(1) of the Merchant Shipping (Safety Convention) Act 1952. It substitutes and updates the definition of "Safety Convention" in that Act, which relates to the International Convention for the Safety of Life at Sea, the SOLAS convention. The definition was last updated in 2014 and needs to be further updated to facilitate the transposition into Irish secondary legislation of some recent amendments to the SOLAS convention that were adopted by 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 convention has been updated and amended on numerous occasions and is subject to change on a continuous, 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 relating to the Short Title, collective citation and construction of the Bill.
That concludes my outline of the provisions of the Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill. To summarise, my main objectives in presenting the Bill for the consideration of the House are to amend the existing legislative framework that relates to the MCIB; facilitate the filling of vacancies on the board and the appointment of additional board members; remove the current risks associated with a reduced board membership by ensuring that the board is quorate pending further structural reform; and enhance the organisational independence of the MCIB. The provisions of the Bill will assist the MCIB in carrying out its important role as the marine casualty investigation body in the State, thus ensuring that Ireland will continue to comply with international and EU requirements in this area. I commend the Bill to the House.
I thank Senator Dooley for letting me speak first. I thank the Minister for his engagement at committee level. I also thank him for his contribution and its overarching philosophy. I welcome what we are trying to do in this legislation. The review of marine casualty investigation, the Clinch report, is critical to that. I thank him for his contribution in that regard.
Any marine casualty is about a person, his or her family and the consequences and devastation arising from the loss of life and, in some cases, life-changing injuries. Tonight is a very important night. I thank Mr. Michael Kingston for his engagement with the committee. Senator Dooley is also with us this evening.
This may be a technical Bill but it is about fundamental reform. The Minister’s contribution on the Clinch report is welcome. I hope the report will be published and the Government will respond to it with full and comprehensive change. The most important contribution we can make is to present a roadmap for best practice internationally. I have no doubt, given the Minister’s sincerity in everything that he does, that he will show that same sincerity in this case.
My final point, mar fhocal scoir, is that the Clinch report is pivotal.Today is a beginning and a first step in that regard. The Minister has consulted with the Attorney General regarding the report and he is committed to its publication to give us a roadmap for the future. I am heartened by the Minister's contribution and I commend the Bill to the House. I look forward to us coming back again to ensure that we strengthen the MCIB and ascertain that it is focused on the people involved in marine casualty situations and their families. I thank the Minister for this debate.
Like Senator Buttimer, I thank the Minister for his engagement at the committee. We spent many hours in discussion and teasing out not just this legislation. As the Minister has rightly identified, this is effectively a stop-gap measure, to paraphrase slightly, in respect of what needs to happen regarding the composition of the board.
I have certainly been taken by our engagement as a committee and individually with Michael Kingston in respect of his expertise, knowledge and personal story in the context of this legislation. He has campaigned for a long time for a reconfiguration, reorganisation and reorientation of the system. He would say the system is broken and that this stop-gap measure is a sticking plaster. He has referred at length to the necessity for the Clinch report to be published and to take the recommendations from that. When I spoke to him recently, he reminded me that there is a Lacey report dating back to 2010. He also reminded me that a former colleague of mine, and then Minister, Noel Dempsey, drafted a ministerial order which, effectively, to use the words of Mr. Kingston, has never been implemented. My understanding is that the Lacey report in 2010 contained a template for draft legislation.
I am concerned that even though we are pushing through this legislation now, perhaps more should have been done to get that into the Bill. I accept, however, that there is much going on, but that that aspect must be resolved. Knowing the Minister as long as I do, I have every expectation that he will drive this matter the rest of the way and that we will get the significant change being requested. There are people with differing views around the table, but it is important that we move onto the next phase without delay and initiate and enact the legislation. It is long overdue and recognised as important and we must deliver on it.
I thank Senators Buttimer and Dooley. They have engaged in the committee and in real detail here. We broadly agree on the immediate need for this legislation to ensure that our MCIB board is quorate and that we do not leave any gaps in the institutions of the State, that we accept the court judgment and act on it immediately. As I said in the committee, I have committed, subject to the legal advice from the Attorney General, that we will publish the Clinch report and we will undertake further reform in this area later this year to further modernise our investigation mechanisms. It is important, however, that we now act quickly to get the existing board fully quorate and I appreciate the support of the Senators in this regard. I look forward to getting this legislation through Committee and Report Stages quickly, hopefully, and to having the Bill enacted.