I thank the Chairman and the members of the committee for inviting me here today to discuss the general scheme of the merchant shipping (investigation of marine casualties) (amendment) Bill. Clearly, it is not the final step in the process of reviewing the legislative and structural framework governing marine casualty investigation in Ireland. The Bill seeks to ensure the continued functioning of the Marine Casualty Investigation Board in the immediate term.
The Merchant Shipping Act 1894 provided the framework for marine accident investigation until the Merchant Shipping (Investigation of Marine Casualties) Act 2000 was enacted to establish the Marine Casualty Investigation Board and implement key recommendations of the investigation of marine casualties policy review group, which reported to the then Minister in 1998. The MCIB, in accordance with the 2000 Act, is composed of a five-person board, comprising three members appointed by the Minister and two other persons who, until recently, were the chief surveyor of the Department and a nominee of the Secretary General. Under 2011 regulations, the MCIB is also designated as the investigation body for the purposes of Directive 2009/18/EC, and this applies to a subset of the marine casualties that come within the remit of the MCIB.
In recent years, a formal process was undertaken with the European Commission relating to the implementation of the directive and the independence of the MCIB in the context of Article 8. My Department engaged with the Commission at all stages, and when the Commission lodged a case with the Court of Justice of the European Union, it was defended with the approval of the Government and having regard to legal advice.
The CJEU judgment on 9 July 2020 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 it, Ireland has failed to comply with its obligations under Article 8.1 of the directive. The issue was the presence of two Department officials on the board who were seen as persons whose interests could conflict with the task entrusted to the MCIB. There was no court finding of wrongdoing on the part of any members of the board. Following the CJEU ruling, legal advice was received on legislative and administrative options to address the findings. To address the immediate issue regarding board membership, the two board members of concern were requested to resign from the board and did so on 30 July last year.
I made amending regulations in October 2020 to address the infringement findings and to provide for a revised board structure and operation whereby the chief surveyor and the Secretary General of the Department of Transport or his or her nominee are no longer board members for the purpose of investigations that fall within the scope of the directive. My Department wrote to the European Commission regarding the actions taken to address this and the proposed Bill to amend the 2000 Act.
The strict requirement of independence on which the judgment is based does not apply outside Directive 2009/18/EC, and the court ruling only relates to the organisation of the board in the context of marine casualties that come within the scope of the directive. However, on the grounds of consistency, it is necessary to progress a further legislative revision of the board structure to encompass the broader spectrum of investigations that come within the remit of the MCIB under the 2000 Act.
On 8 December 2020, the Government approved the urgent drafting of a Bill along the lines of the general scheme that is now before the committee this afternoon. The objective of the proposal is to amend the 2000 Act to facilitate the appointment of new members to the MCIB and to revise some operational provisions in the interest of the continued and consistent functioning of the MCIB as the investigative body in the State.
Through a substitution of section 9 of the 2000 Act, as proposed in head 3, a revised board composition is proposed, consisting of a minimum of five members and a maximum of seven members, who will be appointed by the Minister for Transport, having regard to a list of desired skill sets. This facilitates the addition of further expertise to the board, including the membership, and confirms that serving or former officers of the Department will not be eligible for appointment.
By including the skill set requirement in legislation, the current practice and approach through the Public Appointments Service recruitment system will be formalised.
The general scheme proposes amendments to sections of the 2000 Act that relate to the general operation and functioning of the board. I am conscious of time and so I will not go into the detail but my full statement will be published on the committee website. However, I would like to mention some details.
Head 7 amends section 18 to facilitate the engagement of additional expertise by the board and removes all references to investigators nominated by the chief surveyor from the Marine Survey Office. This confirms the current situation.
Head 10 amends section 28 to confirm a specific requirement for persons to notify the MCIB of information regarding the marine casualty. Head 12 amends section 34 so that the board will endeavour to publish all investigation reports within 12 months of the occurrence of the marine casualty. Head 13 ensures that the Marine Survey Office will be aware of marine casualties in view of possible safety implications or compliance issues that may need to be addressed. Head 15 facilitates the transposition into Irish secondary legislation of recent amendments to the International Convention for the Safety of Life at Sea.
I again emphasise that the primary objective of the proposed Bill is to ensure the continued independent functioning of the MCIB in the immediate term. I am keen for the Bill to progress as quickly as possible to facilitate the appointment of new members to the MCIB as there are risks associated with the current reduced board.
I am aware of the correspondence that has been received by the commission regarding the operation of the MCIB. I reiterate that the MCIB acts independently of me and my Department and, for that reason, it is not appropriate for me to comment on individual incidents, MCIB reports and recommendations, or allegations and statements made. These issues are separate to the pre-legislative scrutiny of the current general scheme.
As outlined in my letter of 19 January 2021, I consider that the time is now opportune to undertake a fundamental review of the structures in place for marine accident investigations. This review will be carried out by an independent expert and concluded over the coming months. This is by no means a criticism of the MCIB board and its members past and present, its secretariat or its investigators and the valuable work they have undertaken. However, circumstances have changed since the 1998 report of the policy review group and the enactment of the 2000 Act. In light of the CJEU judgment, I consider it to be an opportune time to have such a review.
The review will look at how maritime accident investigation is structured overseas and how other modes are treated in Ireland. Therefore, this Bill is a transitional measure and not a permanent legislative framework for marine accident investigation. Further legislation may be required following completion of the review. Pending the outcome of the review, it is imperative that the State continues to have a functioning marine investigation body in place. This requires the amendment of the 2000 Act.
I thank the Chairman and the committee for taking the time to undertake pre-legislative scrutiny of the general scheme of the Bill and I look forward to hearing the views of committee members on the matter.