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Marine Accident Investigation Branch (Reports) Bill

Volume 506: debated on Friday 5 March 2010

Second Reading

I beg to move, That the Bill be now read a Second time.

I introduce the Bill in memory of my constituents Mr. Eric Blackley, Mr. Robert Cameron, Mr. Stephen Humphreys and Mr. Brian Aitchison, who died on 19 December 2007 when the Greenock-based tug, the Flying Phantom, sank in thick fog on the River Clyde. I set out all the reasons why the Bill is necessary when I introduced it as a ten-minute Bill on 20 October 2009, and I will not test the patience of the House by repeating all the arguments that I made then.

The Bill is extremely simple—two clauses, one substantive clause—and gives force of law to recommendations from the statutory reports from the marine accident investigation branch. I am entirely realistic about where we are in the parliamentary timetable, but granting the Bill a Second Reading will be a small step on the road to justice for the men who died, and will give some comfort to the noble grieving widows, whom I have met, and who strike me as women who are not seeking riches or for heads to roll, but who are seeking to ensure that no other families have to endure the awful and terrible suffering they have had to endure. I commend the Bill to the House.

I shall be brief. I congratulate the hon. Member for Inverclyde (David Cairns) on bringing the Bill before the House. He does so in the fine tradition of the House—by taking a local tragedy from his constituency and seeking to improve legislation as a result, trying to ensure that something good comes out of something bad. There are a number of issues that the Liberal Democrats would like to examine in Committee, but we are happy to support the Bill’s Second Reading today.

On behalf of my colleagues in the Front-Bench transport team, I am happy to comment on the Bill. Bedfordshire is not noted for its relationship to the sea, but I am pleased to have the opportunity to speak today.

I congratulate the hon. Member for Inverclyde (David Cairns) on introducing the Bill. In common with the remarks just made by the hon. Member for Hereford (Mr. Keetch), who spoke for the Liberal Democrats, I understand the burden of dealing with tragedy and taking forward some positive outcome. On Christmas day 1984, nine of my constituents in my then constituency of Bury, North died in a house fire. One of the reasons why the fire was so tragic in its consequences was the lack of smoke detectors in the house. I subsequently worked with the Greater Manchester fire brigade to improve the provision of smoke detectors in new build and rented accommodation throughout the country. The impact of death and tragedy makes any Member of Parliament want to do whatever they can to try to resolve the difficulties that might have caused the accident. That is exactly what the hon. Member for Inverclyde is doing today.

The Bill is simple and straightforward. The view of my colleagues is that it is likely to have ramifications and consequences, which is why they are keen to see it taken into Committee, in order to be discussed further.

The marine accident investigation branch’s 2008 annual report, published in July 2009, shows that of 117 recommendations issued for that period, 71 had already been accepted and implemented, while 31 had been accepted but were awaiting implementation. In the four-year period prior to that, of the MAIB’s 586 recommendations, 524 have been accepted and implemented, but 22 have been accepted and still await implementation. No one ever knows the one measure whose non-implementation might have an adverse effect in the future.

A duty already exists upon anyone to whom a recommendation is addressed either to provide to the chief inspector, within 28 days, details of any implementing action, or to explain why none has been taken, and to allow the chief inspector to publish information concerning those matters. We recognise that, although much work is already done to implement recommendations, there are still some potential loopholes and something may need to be challenged. That is why the hon. Gentleman has brought forward his Bill.

We are also conscious that shipping is a global activity, and for sensible reasons much of its regulation is dealt with internationally. It is not impossible to believe that, occasionally, an MAIB recommendation might conflict with international regulations or require international an agreement to be enacted. Likewise, recommendations could conceivably require legislation in other places. All that would necessarily happen without consultation or further investigation, and there might be impracticalities. However, that is exactly the sort of thing that needs to be considered in Committee.

We are quite satisfied that the hon. Gentleman has made his case for the Bill to be read a Second time, not only given what he has said previously and today on behalf of those whom he represents, but given that the awful tragedy involving the Flying Phantom on the Clyde is still very much in people’s minds. The Bill should be taken into Committee, and I commend him for bringing it forward on behalf of his constituents.

I, too, congratulate my hon. Friend the Member for Inverclyde (David Cairns) on his success in the ballot. Last night, I read the ten-minute Bill speech that he delivered on 20 October, and he referred in his introduction to the tragedy that occurred on 19 December 2007, when the Greenock-based tug, the Flying Phantom, sank in thick fog on the River Clyde with the loss of three of her crew. The dead men were Eric Blackley, aged 57, Robert Cameron, aged 65, and the skipper, Stephen Humphreys, who was just 33 years old. There was one survivor, Brian Aitchison, from the borders.

My right hon. Friend gives me the opportunity to correct something that I misstated at the beginning of my speech. I was anxious to get the Bill under way and not to detain the House, and in so doing I accidentally listed Mr. Brian Aitchison as one of the deceased, rather than as a survivor. I apologise unreservedly to him and his family for any distress that my slip of the tongue caused.

I also commend my hon. Friend’s sensitivity and the way in which he has dealt with the terrible circumstances that generated his interest in moving this Bill. That is demonstrated by the correction he has just made.

Without qualification, I take very seriously the safety of the United Kingdom’s ships and the people who operate them. The Government are committed to an ongoing policy of improving safety standards in the marine environment, and the marine accident investigation branch, or MAIB, performs a vital role in delivering that policy. Before we can discuss how to address the safety problems that go hand in hand with the operation of vessels, we must accept that there will always be, I am afraid, an element of risk.

No matter how much regulation we implement or how much guidance we issue, there will always be unforeseeable circumstances that can lead to tragic accidents. That is not to imply that we should give up on trying to reduce the likelihood of accidents. On the contrary, it is our task to ensure that those risks are as low as possible, and that the UK has an international reputation for excellence in its approach to improving marine safety. We have many tools at our disposal to bring that about. One of the most powerful is the objective, independent investigation of marine accidents, carried out by the marine accident investigation branch. The primary purpose of MAIB investigations is to examine the causes and circumstances of an accident and to identify lessons to reduce the risk of similar accidents in the future. To appreciate the MAIB’s role fully, it is essential for us to accept that it does not seek to determine liability or apportion blame for particular accidents. The elective nature of MAIB recommendations is an expression of that philosophy, which is a crucial element that ensures the effectiveness of the branch’s work.

The MAIB was formed in 1989, partly in response to the formal investigation in 1987 into the circumstances attending the capsizing of the roll-on/roll-off passenger ferry, the Herald of Free Enterprise, which resulted in the loss of 193 lives. Mr. Justice Sheen, the wreck commissioner appointed to conduct the investigation, expressed his concern at the widely held view that the Department of Transport, as it was then, could influence the outcome of investigations to ensure that it avoided any embarrassment.

Mr. Justice Sheen judged that the safeguards in place at the time were insufficient to deflect that criticism, and part of his report recommended that consideration be given to how such investigations would be conducted subsequently. He also made the point that investigations should be commenced as soon as possible after accidents occur, to ensure the reliability of witness statements and the integrity of evidence.

The then Government’s response was to establish a marine accident investigation branch based on the model that had been operating successfully in the aviation sector. Importantly, the MAIB was set up to act separately from the Department, and its investigations inherited the independent character of the formal investigations that preceded it.

To command the trust of industry and the public, the MAIB must not only operate independently of the Department, but be seen to do so. In practice, that separation is partly achieved by the status of the recommendations that the MAIB may issue as a result of its investigations. Those recommendations are not enforceable by the Government, and that contributes a great deal to both the reality and the perception of independence. If the status of recommendations is changed so that the Government become responsible for enforcing them, we will blur the line that exists between the work of the MAIB and that of the Department. That could have serious implications for the way in which the MAIB operates.

One of the major factors that determines whether an investigation results in meaningful and useful conclusions is the degree of freedom that investigators have to gather evidence, question witnesses and publish their findings. As an illustration of that principle, we consider matters of safety so important that there is a memorandum of understanding between the Crown Prosecution Service and the investigation branches that, when there is any conflict, the needs of the technical investigation should take precedence over the criminal investigation.

Another element, for which we cannot legislate or negotiate, is the perception of the MAIB in the minds of the parties involved in marine investigations. In many cases, the quality of evidence and testimony from those parties depends heavily on how they expect the MAIB to use the information. Under the current arrangements, the MAIB is able to engage openly and candidly with those involved in accidents because there is an understanding that the evidence will be used as the basis for recommendations about future safety, and not to determine liability or to apportion blame in relation to a specific accident.

I did not intend to ask my right hon. Friend to give way, and this will be the last time that I do so. The worst possible argument that I have ever heard for not having a force of statute on this matter is that when there has been a death or multiple deaths in which the actions of people might have played a role, they will comply with the statutory body only on the understanding that it will not rebound on them at all in any legal way. This is the worst possible argument for MAIB reports not being statutory. There may be other aspects that are international in nature, as the Opposition spokesman said, or there may be things to do with how the Health and Safety Executive or the courts operate. Saying that people will co-operate fully only because there are absolutely no ramifications involved is a terrible argument: nobody would co-operate with anybody under those circumstances.

My hon. Friend will appreciate the parallels with inquests, which are also inquisitorial, where there is no apportionment of blame, and where the recommendations do not have the same statutory binding effect. I will come to other reasons; I have a list of them, I am afraid.

The rationale for obliging the recipients of recommendations to comply with them appears to be based on a perception that MAIB recommendations otherwise carry no weight. In fact, however, the regulations governing the MAIB’s activities include provisions that require the recipients of recommendations to take them into consideration. They must then inform the MAIB of the action that they plan to take to implement the recommendations, along with a timetable. If the recipient plans to take no action pursuant to the recommendation, they must provide the MAIB with an explanation. Ignoring MAIB recommendations is not an option under the regulations, and doing so is likely to count against any recipient who fails to take action on a recommendation that could have contributed to the prevention of any accident that occurs in the future.

When we discuss the way in which safety is regulated in the UK, we must not stop at the prominent work of the accident investigators. Because of the MAIB’s direct involvement in the aftermath of marine accidents, its investigations and reports often command a high profile in the media and in public awareness. That is why significant attention can be paid to the MAIB’s recommendations; because they are so visible, it is easy to cast them as the primary response to marine tragedies and disasters. However, that characterisation misses the point of the MAIB’s role and that of the recommendations that it issues, and it underplays the role of other people and organisations that have a statutory duty for marine safety, such as the Maritime and Coastguard Agency, which has primary responsibility for regulating marine activity.

Independent accident investigation is just one piece of the wider safety puzzle. Depending on the context of any particular accident, a broad range of individuals and organisations may be responsible for ensuring safety. For example, employers are required to ensure the health and safety of seafarers by the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, and this duty was expanded to include the operators of vessels on inland waters by an amendment made in 2001. Those regulations place duties on employers to identify the risks to safe working and to implement reasonable safeguards. MAIB recommendations may highlight areas of risk that contributed to particular accidents, but it is clearly the responsibility of the employer, in this case, to consider the implications of those recommendations and the overall effect of the actions necessary to implement them.

Any proposal that obliges the recipients of MAIB recommendations to implement them would have the effect of making the MAIB responsible for the consequences of that implementation. That is the key point that my hon. Friend may have missed. Granting an investigative body such a degree of regulatory power runs counter to the principles that underlie the UK’s current marine safety regime. At best, by making MAIB recommendations mandatory, we would duplicate the responsibilities of other regulators and employers. Since those responsibilities carry with them a requirement to assess the risks and impacts of safety measures, the resourcing needs of the MAIB would increase dramatically and with no corresponding increase in the value that it delivers.

Beside the negative effect that the proposals would have on how the MAIB operates and contributes to the improvement of marine safety, they would carry two other major implications for Government. The first is that they would effectively grant the MAIB a direction-making power. Currently, it is the responsibility of the Secretary of State to legislate for shipping safety under powers conferred in merchant shipping legislation, under the scrutiny of Parliament. Obliging recipients to comply with MAIB recommendations would lend those recommendations the force of law, and it would be law made without the controls that we normally consider essential.

I am becoming increasingly worried by my right hon. Friend’s contribution. He will not know this, but I was one of the solicitors involved in the Zeebrugge ferry disaster, which I think is getting on for 30 years ago now. I dealt with a number of cases and I remember the conclusions of Mr. Justice Sheen and the difficulties of litigation.

Claims for compensation are irrelevant, because they are dealt with under the Athens convention, effectively on a no-fault liability basis. More importantly, I am concerned that my right hon. Friend is effectively saying that accidents at sea should not have the same protection as accidents on land, for which the Health and Safety Executive can issue a prohibition notice or an improvement notice. The Bill promoted by my hon. Friend the Member for Inverclyde (David Cairns) seeks to achieve the same thing in relation to the MAIB. Why should not the same provisions apply?

My hon. Friend has obviously read my speech, because I will come to that later. If he does not mind, I will deal with it then rather than put page 16 before page 11. He raises an important point, and I will be happy to speak or write to him about it if I do not reach it in the next few minutes.

As I said, obliging recipients to comply with MAIB recommendations would lend those recommendations the force of law, which would be made without the controls that we normally consider essential. MAIB investigations and the recommendations that come from them are often necessarily broad in scope, so that all relevant factors contributing to an accident can be considered and addressed. It is because the remit is so broad that the MAIB can conduct the thorough and incisive investigations for which it is renowned. However, the same breadth means that compulsory MAIB recommendations would lead unavoidably to the implementation of policies on matters that are currently the preserve of the Secretary of State, who is accountable to Parliament. Even if we ignore the administrative problems and the impact that the proposals would have on the MAIB’s effectiveness as an investigator, delegating such wide law-making power without proper controls is unacceptable.

Another concern is that the proposals run counter to the Government’s commitment to better regulation. The five principles that underpin that commitment are that regulation must be transparent, accountable, proportionate, consistent and targeted. Regulation based on MAIB recommendations would seem to meet only one of those five criteria. Since the recommendations come from detailed investigations on which a report is produced, the regulation would at least be transparent to some degree. However, it would certainly not demonstrate accountability, because the recommendations are not directly overseen by Parliament. Causing recommendations to have the force of law does not guarantee proportionality, because the MAIB does not conduct any form of cost-benefit analysis of the effects that its findings might have in the broader commercial context of the operations on which they have a bearing.

I have already explained how existing legislation is balanced around the principles of risk assessment and proportionality, and how the MAIB could not act as a regulator without a massive increase in its budget. Because of the volume of marine accidents, it is impractical to conduct a detailed investigation into each one. The MAIB must assign its limited resources carefully so that they will reveal the most valuable safety lessons. Those lessons and any associated recommendations may be specific to particular accidents or apply more broadly to similar circumstances. That is not a problem when recommendations are non-compulsory because recipients can consider the matters raised and implement related measures in so far as that is necessary to ensure reasonable safety. However, that manner of making recommendations would be impossible under a regime that enforced them as law because they would not be suitably targeted for the purposes of better regulation.

Moreover, since all accidents will be investigated—

In the light of the Government’s entirely unreasonable opposition to the Bill, I wish to withdraw it.

I think “no date named” is the answer.

The debate stood adjourned (Standing Order No. 11(2)).