Charlie McConalogue (Donegal, Fianna Fail) | Oireachtas source

I have previously discussed this matter with the committee in terms of the licence penalty points statutory instrument and licence holders. Also, I met and discussed the matter in great depth with fishermen's representatives.

A number of proposals or suggested amendments were put forward on the licence holder statutory instrument, which my own party put forward in opposition, that we felt should be considered. The amendments were considered in great detail and some were incorporated such as additional time for the appeals process, etc. For some of them, given the legal advice following a full assessment, it was found that if they were to be accepted it would mean that the statutory instrument and the licence penalty points system would not pass muster or meet the expected thresholds. At that time they were examined in massive detail, given exceptional hearing and fully examined as to the capacity for them to be absorbed and incorporated into the statutory instrument.

The masters penalty points system requires legislation. The same approach and the learnings from all of that full examination and assessment is followed through in the approach being taken now with the masters penalty points legislation. It is very similar to and consistent with the approach taken in terms of the licence holders.

As I mentioned at the outset, the regulation requires each member state to have a penalty points system for licence holders and for masters has been in place since 2012. We are very late to the table and are the last member state to put this legislation in place. The initial licence statutory instrument was legally challenged and found not to be appropriate in some regards so a new SI was required. There was a significant examination of the amendments put forward by my own party and a new SI was introduced last August.

Overall, the two penalty points systems must achieve a system that is dissuasive, proportionate and effective, which are the key thresholds.

I will touch on the three points the Deputy raised. On the issue of the standard of proof to be used by the determination panel and the appeals officer, balance of probabilities is the approach that is being taken. The legal standard of beyond a reasonable doubt is almost entirely confined to criminal trials and is not applicable to proceedings that are civil in nature. For any civil proceedings that end up in court, the standard used is on the balance of probabilities. It is a standard that is used for the licence holders points system and for the masters system we are discussing. Our legal advice is that it is the appropriate legal standard for the penalty points system to ensure we are compliant with our responsibilities as a control authority and as a control member state.

The Deputy asked about cases where there is no guilty verdict in criminal proceedings. Where the master or owner is found not guilty in criminal proceedings, this proposal would involve both systems being interlinked. They would not stand alone from each other if the proposal the Deputy is making were to be adopted. They are separate systems involving separate standards of proof between the points and a criminal prosecution. It would lead to confusion and conflation of evidence, and render elements inadmissible. In addition, the legal advice is clear that points under the EU regulation are intended as additional to criminal prosecution. I will repeat that. The legal advice is that points under EU regulation are intended as additional to criminal prosecution. Accordingly, it could not be argued that Ireland has both criminal and points systems as required under EU regulation if we operated this system in a manner whereby criminal proceedings completely eclipsed the points system.

That is the legal advice we have on the matter. The overarching point I would make is that it is my objective to introduce a system which is as balanced and proportionate to all of our responsibilities and, indeed, to the fishing sector as it possibly can be while meeting our legal obligations to comply with European regulation. There is no point in any of us going through this process and introducing a system that then falls flat on it face and does not meet our legal obligations. That adds no value. We need to deal with the facts and deal with the issue.

We certainly should tease out the details as we are doing today and over the next period but, ultimately, what we introduce must ensure that, as a member state, we are compliant with our obligations under the 2012 EU regulation. At the moment, Ireland is the only member state that is not compliant. We would all be wasting our time if we fool ourselves by introducing a system that does not bring us into compliance with our European obligations as a control member state authority. That is ultimately where we need to be at the end of this process, having introduced this legislation.

Regarding a licence holder having a full right to the rehearing of a case before the High Court, the legal advice is clear that under the Constitution the High Court has full original jurisdiction and can hear all matters of law brought before it. The legal advice is that it would be highly anomalous, if not unprecedented, to provide such a full High Court rehearing of a matter first governed in procedures set down in the previous statutory instrument or, indeed, in this legislation. In addition, it would delay the application of points which would run up against the timelines stipulated in the EU regulation that points apply for three years from the commencement date following detection. To that extent then it would hinder the effective implementation of this EU law and would not meet Ireland's obligations to implement these EU provisions.

Similar challenges would have been teased out regarding the licence holder penalty points system. They were given great examination at that time when amendments were considered and ultimately decided upon. The same considerations apply to this masters penalty points system which is very much based on the licence holder one.