Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Thursday, 5 May 2022

Vol. 284 No. 11

Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021: Report and Final Stages

Before we commence, I would like to remind Senators they may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. I welcome the Minister, Deputy Ryan, to the House for the discussion.

I move amendment No. 1:

In page 9, after line 40, to insert the following:

Legislation for a new regulator of the Maritime Casualty Investigation Board

16. The Minister shall, within 9 months of the passing of this Act, bring a report on the feasibility to provide for the establishment of a regulator for the

Marine Casualty Investigation Board. The regulator will, if deemed agreeable by the Minister be responsible for ensuring that appointments to the Marine Casualty Investigation Board are appropriate, fair and that there is no conflict of interest. The new appointee will take into consideration the recommendations of the Lacey Report, the Clinch Report, the ruling of the European Court of Human Rights and the pre-legislative scrutiny report from the Joint Committee on Transport and Communications on the Merchant Shipping (Investigation of Marine Casualties) (Amendment) Act 2022, and any other relevant information/submissions the Minister deems appropriate. The regulator will work closely with the Maritime Casualty Investigations Board in order to conduct its duties in line with both Irish and European law.”.

I second the amendment.

I want to thank my colleague, Senator Buttimer, for seconding this amendment. It is very helpful and it allows us to get our debate under way quickly. I want to acknowledge and thank him for that. I want to also welcome the Minister. I do not want to rehash too much here today. To be fair, we have had a good debate. I want to acknowledge the Minister’s staff who are here as well. This is a very specialised area. I have looked at the reports on the marine casualties Bill as well as issues around marine casualties and the importance of being an island nation and our interface with the sea. There has been an awful lot of public commentary about this. I also want to acknowledge the Joint Committee on Transport and Communications which dealt very extensively with this particular issue.

The amendment provides that within nine months of the passing of this Bill, the Minister will bring a report on "the feasibility to provide for the establishment of a regulator for the Marine Casualty Investigation Board. The regulator will, if deemed agreeable by the Minister..." and so on. Ultimately, this is a decision for the Minister. He is responsible and is driving this issue. I also want to acknowledge the work of the Minister of State, Deputy Naughton, in this area. I thank her for her meaningful engagement during the Committee Stage debate.

We have had the Lacey report and the Clinch report, with which the Minister will be very familiar. The former was prepared by Ms Róisín Lacey, senior counsel, and delivered to the Department on 25 August 2010 but remains unpublished. The report was commissioned by the then Minister for Transport, Deputy Noel Dempsey, a long time ago. The Lacey report made some very substantial recommendations, one of which was that there would be an investigation office, independent of the Department in every way. It would encompass aviation, rail and the marine. The report identified the fact that this must be done in order to comply with EU directives and was compatible with both international and Irish law. We have moved on from all of that. The Department explored the case for having a response for aviation, rail and marine but I detect, having read the debates, that there was a desire within the Department to focus on the marine aspect.

What is interesting, having looked back at the press clippings on this as well as at research provided by the Oireachtas Library and Research Service, is that there were many calls for the Garda Commissioner to act on the Lacey report. While that is very interesting, I do not intend to get into who said what because it is not appropriate to do so today. Accusations were made that there was huge resistance within the Department of Transport to publishing the Lacey report and its recommendations. Again, that accusation is out there; I am not making it but there is a suggestion that there was huge departmental resistance, for some reason. While I am privy to aspects of the reports, I cannot be absolutely sure they are correct so I will not quote extensively.

I will now turn to the Clinch report, with which the Minister would be very familiar. I read a number of transcripts into the record at the last meeting, on which the Minister commented, relating to the Clinch report. That report was prepared by Captain Steve Clinch of UK-based Clinchmaritime Limited and was also commissioned by the Department of Transport. Captain Clinch was asked to carry out an independent review of the organisational structures of the Maritime Casualty Investigation Board, MCIB. The report was delivered to the Department in 2021 and has still not been published. I do not know if the Minister has considered all of its recommendations or if he intends to implement any of them. I simply do not know.

It is important to state that the Clinch report was a Government-funded report and its author was tasked with carrying out an independent review of the MCIB structures. That is the kernel of the debate on these issues. We need to determine how to address the current deficits and problems in the organisational structures of the MCIB. That is where the suggested shortcomings lie and where the concerns arise. Clinch set out numerous recommendations and suggested that these could be embodied into law, thus ensuring that Ireland is fully compliant with its EU and international obligations. The Minister is aware of the Clinch report and of the finer, granular detail of the recommendations therein. Clinch also advocates for a robust and properly resourced MCIB in the context of any new organisational structure. Again, we are talking about the organisational structure, professionalism and accountability vis-à-vis issues relating to marine casualty investigations.

What does the Minister intend to put in place and when does he intend to publish the Clinch report in full? How many recommendations are contained in the report? Has the Minister considered them in detail? Is he still working on that? Is it his intention to implement all of the recommendations and what is the timeline for that? I understand that one of the key recommendations of the Clinch report is the establishment of a full-time, professional uniformed MCIB. That sounds reasonable and obvious. I am told that the current structure in Ireland is a part-time investigation board. I cannot be sure of that but that is what I have been told. It is my understanding that we have a part-time investigation board that is staffed by part-time investigators. Is that the case? I ask the Minister to confirm whether the current MCIB is a part-time or a full-time operation. Are the investigators part time? Perhaps there is not the demand for full-time investigators. The Minister will know this from the data in the possession of his Department. Is there a real demand for a full-time panel of investigators? I am simply posing those questions.

At a meeting of the Oireachtas Select Committee on Transport and Communications on Wednesday, 16 February 2022, the Minister said:

As the Clinch report was commissioned on the back of the Department's initiative, it is very much in our interest that it would be published and acted on. I am happy to commit here to doing exactly that.

During previous debates on the record of the Houses, Deputies Joe Carey, Darren O'Rourke and Cathal Crowe expressed similar concerns to the ones I am articulating here today. They also said that there was clearly a need for new structures and new systems to deal with maritime casualty investigations and related matters, including a full-time, independent investigation unit. Again, to go back to the meeting of 16 February last, the Minister said the following: "What I said in private session is that we expect the publication of the Clinch report at the end of quarter 1 and that is still the timeline, subject to the Office of the Attorney General and others signing off on it".

I understand the role of the Office of the Attorney General and respect it. I also know that the Minister clearly intends to publish the report, or at least I hope so. I do not know where we are in relation to the Attorney General's office considering these matters. I do know that the office has a big work schedule and this might not be at the top of the priority list. Can the Minister give us an indication of where we are with regard to the Attorney General considering these matters. Are we any nearer a deadline or a date for the publication of the Clinch report?

I have no skin in this game. I have never been involved in a maritime accident, nor have any members of my family. I have no knowledge of same except through people who have contacted my office. People from Donegal, Galway, Kinsale and Arklow have contacted me and shared horrific stories of their experiences. They are concerned and believe there are shortcomings here that must be addressed. What I have read and my understanding of the Minister's commentary on these matters, particularly at meetings of the select committee, leads me to believe that he also has concerns although I do not know the extent of those concerns. A lot of work may be going on in the background.

I ask the Minister to ensure that there is an assessment of the current organisational structures of the MCIB and to set out a report, at some stage in the future, with recommendations and timelines to achieve the most appropriate and most effective marine casualty investigation structures for Ireland. That is not an unreasonable request. Such recommendations must take into account national and European legislation in this regard.

My amendment provides that the Minister shall, within nine months, consider the issue of a regulator. It is important that any new regulator would take into consideration the recommendations of the Lacey report. The amendment provides that the regulator "will take into consideration", which is very reasonable, the recommendations of the Lacey and Clinch reports, as well as the "ruling of the European Court of Human Rights". This is a reference to a particular case which was very significant. I do not want to go into that in much detail but we know that it came at a cost, financially, to the individual who took the case to Europe.

The Minister is on top of his brief. He knows the issues here and the granular detail of the concerns. As I said, I have no skin in this game or personal axe to grind with anyone. All I want to see is a robust and professional operation that ensures we have an MCIB that is well resourced and appropriately structured to address the issues in Ireland.

I thank Senator Boyhan for the opportunity to respond to this amendment and to the debate. The main purpose of the Bill is to amend the Merchant Shipping (Investigation of Marine Casualties) Act 2000, to facilitate a revised board composition for the Marine Casualty Investigation Board, MCIB, and thereby remove risks associated with the current reduced board membership and ensure the quorum requirements of the Act continue to be met. The Bill is a transitional legislative measure to support the continued functioning of the MCIB as the marine investigation body in the State and in accordance with our EU international obligations to have an independent marine casualty investigation body in place.

As explained during the Committee Stage debate, the Bill is a first step of a reform process. I have recently obtained Cabinet approval for the preparation of draft heads for another merchant shipping Bill, which will provide for the further reorganisation of marine casualty investigation structures in Ireland based on the establishment of a full-time marine accident investigation unit. To answer one of Senator Boyhan's questions, I agree that it is that full-time characteristic that we need to establish. Therefore, this Bill is not the end of the legislative reform in this area.

I am concerned, unfortunately, at the contents of this proposed amendment for a number of reasons. First, it seeks to introduce a policy proposal in regard to the establishment of a regulator for the MCIB and, therefore, appears to pre-empt a legislative policy decision of Government. The effect of the amendment would be to require the Minister for Transport to examine and prepare a feasibility report on a proposal for a regulator of the MCIB, which policy proposal that has not yet been the subject of consideration by Cabinet. In that regard, the proposed amendment seeks to pre-empt a legislative policy decision of Government.

Second, a proposal for the establishment of a regulator of the MCIB goes beyond the scope of this Bill. It is completely different from recent policy decisions taken by the Government in regard to wider structural reform in this area. In my view, acceptance of such an amendment would expand the entire focus and intent of the current Bill and it is based on a policy approach that, as I said, has not been approved by Cabinet. I would not be in a position to accept such an amendment without further recourse to Cabinet on a detailed revised policy proposal in regard to what is envisaged as a regulator or the functions of the body or of the individual concerned.

Third, in view of the focus of current policy as approved by Cabinet, I do not consider it appropriate to pursue a report on the feasibility of a regulator in the manner and timeline proposed, particularly when the implementation of current Government policy decisions will see, as I said earlier, a transition from the existing MCIB structure to a full-time marine accident investigation unit in the medium-term. The current Bill supports the continued operation of the MCIB in accordance with international and EU requirements pending the development and progression of the next proposed reform legislation in this area. It has been explained that the continued operation of the MCIB during this transitional period is crucial.

As also explained on Committee Stage, a post-enactment report on the functioning of this Bill when enacted will be laid before the Oireachtas Library for the information of Oireachtas Members 12 months following the enactment of the Bill. This will outline developments in regard to the implementation of the current Bill. The draft heads for the proposed next merchant shipping Bill to implement the next steps for the organisational reforms process in regard to marine casualty investigation will also be subject to engagement with the Joint Committee on Transport and Communications, including for pre-legislative scrutiny as part of the normal legislative process.

I reiterate the intention to publish the Clinch report. As I said in an earlier Dáil debate, it is subject to Attorney General sign-off. I am still awaiting that, but I expect to receive it shortly. I cannot outline the contents or nature of the report in advance. As I said, the report is subject to Attorney General approval, which I hope I will receive very shortly. As has been said throughout this legislative process, that should not impinge on, shorten or delay the enactment of this legislation because it is required to meet a very specific purpose, namely, to provide a viable transitional arrangement as we develop the new legislation. Unfortunately, I am unable to accept the amendment, although I very much understand the spirit in which it is presented.

I thank the Minister for outlining the position he has taken. There has been a great deal of debate in committee and in both Chambers in regard to this particular issue. It is not surprising that many have sought to try to broaden this legislation because the notion of reviews and reform of the overall architecture of the Marine Accident Investigation Board and its operation has been around and promised for a long time. Quite frankly, it has not happened. That is why there has been such a push at this stage. I recognise that the Minister's hands are tied to some extent because this Bill is technical in nature and needs to be passed relatively quickly to give credibility to the investigations that are already under way.

The decision taken elsewhere has created a lacuna that had to be brought to a head. The engagement by all Members of both Houses was a genuine effort to bring about the ultimate change that is required here. The Minister clearly sees the benefit in it. As identified by him, he has already secured approval from Cabinet. That is to be welcomed, but there has been approval from Cabinet to proceed previously and nothing has happened. We are putting trust and faith in the Minister to bring that to fruition.

In committee, we have had various hearings. The person by whom I was taken on every occasion he presented, whether in terms of the material he provided or his oral presentations, was Mr. Michael Kingston, a noted expert in this area, who is legally trained. He has been involved in this area and has a personal interest in it having lost his father in an accident many years ago. The RTÉ radio "Documentary on One" or "Doc on one" is well worth listening to from a podcast point of view to get a sense of the feeling that is there. I suggest that the Minister's officials, in preparation the next Bill, reach out to Michael Kingston in light of his expertise in this area. It might give a grounding or context in which the next phase of the legislative response is brought to fruition.

I look forward to working with the Minister on that legislation, including in the pre-legislative scrutiny process. We will be happy to engage. I am aware that the Minister has a busy schedule, as does the Government in terms of getting legislation through, but this is important for all those families out there who have been impacted and affected and, sadly, for those who will be affected into the future as well. There is need to put in place an appropriate architecture from a legislative perspective.

I welcome the Minister to the House. I will be brief. Like Senator Dooley, I am a member of the transport committee, which has engaged in an inordinate amount of informed debate and consideration of this issue. Senator Dooley referred to the issue of architecture and to Michael Kingston whose testimony and evidence are to be commended.

This is a technical Bill. It is about protecting and saving lives and ensuring that our Marine Accident and Investigation Board has confidence. I am heartened by the Minister's comments in regard to the transitional nature of this measure. I thank him and his Department for their work on it. It is important that we move forward. The amendment tabled by Senator Boyhan is in the spirit of trying to improve the Bill in creating confidence and certainty. I hope we can take on board some of the points which, as Senator Dooley indicated, arose out of the committee's hearings. I have listened to the very informative "Doc on one". It should be compulsory listening for those of us in the Houses of the Oireachtas dealing with this particular Bill and future legislation.

The Minister's comments today are positive. I take them in the spirit in which they were made.

I thank the Minister and Senators for their contributions. I hear what the Minister says. The easy option is not to reject the Minister's non-acceptance of the amendment and to call a vote, but that is politics. We have enough of that going on here. Let us use this House in a constructive way.

The key words in the Minister's statement were that the proposed amendment "pre-empts further legislation". He also said that in regard to the regulator it might not be appropriate, but that he had not teased out that matter in any great detail. I respect that. The Minister spoke about this legislation being transitional and part of a series of changes that he would like to see and said it was but a first step in the reform process. I have to be clear on one issue; we need to speed up. We should not doubt the Minister's commitment. Things move slowly, but this is a critical issue. The coverage this Bill has received in various marine publications is enormous. It is interesting to look at the provincial newspapers that are covering this particular issue. There is huge concern. Coastal communities around the country are stakeholders and they are concerned.

I echo what Senators Dooley and Buttimer said in regard to Michael Kingston.

He is a very brave man who put his money where his mouth is. He has expertise, took a case and was successful, and we must learn from that. The Minister and his party, more than anyone, know about bravery and courage because they challenged the establishment and status quo about environmental issues. It is a lonely and expensive road and it leaves people very much on their own. I acknowledge that and the role of some key Green Party activists who have pursued other similar types of advocacy issues because they believed in them. Let us not forget the guys outside who are trying to do their best. Let us not always overanalyse their motives. Not all of them are necessarily against the establishment. They want a better system.

I take on board what the Minister has said but the problem is that progress is too slow. I know we will be able to look back at this legislation in 12 months. The important message that I want to go out today is that we have a structure that is professional and appropriate in terms of a marine casualty investigation. I have reflected on what the Minister has said and will read his comments in the Official Report later. He has indicated that legislation is part of a process that will be rolled out.

I am glad to have had the opportunity to bring this matter to the House again. I acknowledge that the Minister, who is a busy man, came to the House to tease out the details. I will withdraw my amendment but I will keep a keen eye on this legislation. To be honest, I will stir things up if I do not see progress made in the next 12 months. We should not have to wait that long. This is an important issue. I want to send the very clear message to the coastal communities that I have raised this issue. I am never shy when it comes to public relations, advocating and telling the world what I do in here. It is what we all should do as it is what makes a politician stand out. I will engage with the various maritime publications and the maritime community within the next few hours. I will tell them where we are and send them a link to the proceedings of this debate. All we can do is bring this matter to the central table and ask the Minister to keep an eye on it.

The Minister's party is only one member of a three-party coalition but the Minister knows what it is like to be a member of a small party in a parliamentary Chamber. We have quite a small set-up on this side of the House but the vast majority in both Houses. I would like to think that one day in the life of this Government a Minister will come to the House and tell a member of the Opposition that he or she brought some really constructive ideas and suggestions to legislation and that he or she will support that Member 100%. Unfortunately, such unconditional support has not been forthcoming. It is a mark of this Government that it does not have the political maturity to come into the Houses and acknowledge the work of members of the Opposition who have a critical role to play in parliamentary democracy and enhancing legislation, particularly in the Upper House.

I thank the Minister and his officials for their time and the few Senators in the Chamber who engaged in this debate. More important, I thank all of the Senators on the committee because that is where a much of the debate took place and much of the work was done. Let us leave with a renewed commitment to keep this issue on the political agenda. I am happy to withdraw my amendment on the basis I have outlined.

Amendment, by leave, withdrawn.
Bill received for final consideration.

When is it proposed to take Fifth Stage?

Is that agreed? Agreed.

Question proposed: "That the Bill do now pass."

I accept what Senator Boyhan said about the critical role played by the Opposition. I must go back and look at my own record. Opposition amendments are an important part of the legislative process and it is important that the Government is open to accepting them. The Senator's words will echo in my ears as we look at various amendments in the future.

I thank all of the Senators for the speedy way in which this Bill has progressed through the House. There was a delay initially caused by the Government side, for which I apologise. We want to be faster and I accept what Senator Boyhan said. I assure Senators that this Bill will not be the end of the matter. We will return with further legislation and further improvements in our marine casualty investigation structures. I thank our civil servants.

They do an excellent job in this and other legislation. I have found them a pillar of good common sense. Public interest is what directs them and they, more than anyone else, deserve credit for the work that is done in this area. I look forward to returning to the Seanad with further legislation on the area of marine casualty investigation to follow through on the words that have been expressed.

Question put and agreed to.

I thank the Minister for concluding matters on a very positive note. When is it proposed to sit again?

Dé Máirt ar leath-uair tar éis a dó a chlog.

An bhfuil sé sin aontaithe? Aontaithe.

Cuireadh an Seanad ar athló ar 2.17 p.m. go dtí 2.30 p.m., Dé Máirt, an 10 Bealtaine 2022.
The Seanad adjourned at 2.17 p.m. until 2.30 p.m. on Tuesday, 10 May 2022.