Mr. Gerard Kelly:

I thank the Chairman and members of the joint committee. On behalf of my colleagues, it is great to have an opportunity to make comments on the Bill. The Minister appears to justify the Bill on the basis it is the continuation of fishing that has been going on for 15 years and he is therefore under some sort of moral obligation to facilitate it; that it is required because fishing vessels from the Republic of Ireland enjoy reciprocal rights to fishing sites from UK waters; and that it is a token of goodwill from the Minister for the Brexit negotiations between the UK and the EU. Setting this aside, we present evidence the Minister's position is contradicted by facts on historical fishing and reciprocity and that it has no moral basis as it offers something far beyond what could be expected or offered by another country. It also leaves Ireland open to additional legal risk, of which the Minister is already aware.

The proposed legislation will permit UK vessels access to our zero to six mile zone around the Irish coast, where they can be treated as if they are Irish vessels. I refer to TAB1 D1 in the documentation provided to committee members, which shows a map of what the area looks like. The UK fleet already enjoys privileged access to our waters in the zone between six to 12 miles along the east coast. This was settled at the London Fisheries Convention of 1964. This is easily available to see at TAB1 D2 in our submission document.

Northern Irish vessels, being UK vessels, enjoy access to inshore waters of the entire UK and all waters outside Ireland's 12-mile limit. This is a big area. Without the Bill, these vessels can still operate out of Irish ports in accordance with the London Fisheries Convention. There is no suggestion UK vessels will either give up this access to the UK zone or reciprocate with the same access for Irish boats by Ireland passing the Bill.

Irish fishermen vehemently opposed the voisinageagreement when the Government of the day attempted to impose it in the 1960s, and disputed the concept of UK vessels fishing in the zero to six-mile zone. There then followed serious disputes at sea off Dunmore East. Any suggestion this has continued happily since the 1960s is factually incorrect. There are numerous contemporaneous reports of hostility in The Irish Timesfrom 1959 to 1966 that support this. The evidence conveys a very different picture to the 50 years of happy fishing outside the zero to six-mile zone that the Minister presented to the Seanad.

At the beginning of the mussel case, the Minister and the Attorney General wished to disown the natural resources, the territorial seas and their property. This is referenced at TAB2 D4 in the submission document. What would happen if we had not successfully appealed the High Court decision to the Supreme Court? Can the same people be trusted to do the right thing now or are they using the Oireachtas as a face-saving mechanism? Have the same attitudes deprived Ireland of the benefits of its oil and gas resources? Were oil and gas policies more rushed decisions involving blind cross-party support without understanding the consequences? Are we to be an island nation without its own seas and marine resources? The Barlow 2 case in the Supreme Court involved the reversal of roles, whereby the citizen had to protect the Constitution and the State with the Minister and the Attorney Channel opposing.

Fishing rights are to be guarded and preserved. They are part of our sovereignty and Constitution. The Supreme Court found that fishing by Northern Ireland vessels was illegal so any rights gained by these UK vessels or shellfish farms during the reference periods are now also void and must be returned to Irish fishing communities. The simple way to address the issue is to abandon the Bill and allocate the relevant quotas back to the host state, which is Ireland.

The Marine Institute atlas shows an image of where Irish vessels fish around the entire coast of Ireland. This is included in the documentation, at TAB1 D3. It also shows an image of fishing activities by various national fleets in Irish waters, which is incredible. Each time the Government has attempted to force this arrangement on Irish fishermen, the industry has opposed it, never more clearly than as expressed by Irish fishing organisations before the committee on 20 June 2017. An explanation of the so-called arrangement has always been that it is above our station to question such matters. We were told it was non-justicable and we had no standing to ask questions on it or even to challenge it. The Supreme Court judgment finally put to bed this "it is legal now so go away" argument.

I wish to make a small correction to what is printed on the top of page 5 of our submission document. The first line should refer to the Barlow 2 case and not the Barlow 1 case.

The UK structured its position on the voisinageletters that set out the arrangement in such a way that any rights vessels from the Republic of Ireland enjoyed fell away automatically as soon as the arrangement was ended. We hear about a voisinage agreement, but this is only a few letters which do not say a lot. However, one thing they do say is the arrangement will apply so long as the authorities of the Republic of Ireland continue to accord to Northern Irish vessels the same treatment as they would accord to vessels of the Republic of Ireland in the waters around the entire Irish coast. This is included at TAB2 D3 in the documentation.

We contend the arrangement referred to in the voisinageletters is an arrangement from December 1959, and the arrangement was not to prosecute Six-County fishermen for fishing inside Ireland's new three- mile limits. It was stated the strict legal position was that boats registered in the Six Counties were not entitled to fish in the new limits, that it would be impolitic to make an announcement that the law would not be enforced against Six-County fishermen and that the informal attitude to Six-County fishermen within the fishing limits would be continued. It was also stated that no announcement would be made on the matter. A senior judge described it as unlawful but tolerated. This is the same context on which this new fisheries Bill is based, that is, not to prosecute.

The Minister referred in the Seanad to Irish fishermen utilising vessels from outside the jurisdiction. Is this covered in the Bill by the term "sea-fishing boat owned and operated in Northern Ireland"?

That is a UK-flagged vessel owned and operated in Ireland’s exclusive fisheries zone. The Bill is being diluted for abuse in favour of UK vessels as it proceeds through the Seanad. These vessels can still operate out of Irish ports and be owned by Irish fishermen but they cannot fish in the zero to six-mile zone. Accordingly, there is no hardship or need for compensation as suggested by Deputy Gallagher at the previous committee meeting. Deputy Gallagher’s constituency of Donegal has 360 Irish fishing vessels that deserve his attention.

The Supreme Court was asked to make a decision as to the legality of fishing by Northern Irish fishing vessels. It decided unanimously that it was illegal. For clarity, this applied to all areas within Ireland’s zero to 12-mile zone, apart from that provided for under the London Fisheries Convention, which can be seen at TAB1 D2 in the documentation provided.

With regard to Brexit negotiations and international agreements, our understanding is that the European Union has adopted a policy that there will be no bilateral agreements with the UK prior to Brexit. Has the Minister investigated the consequences of legalising this fishing in terms of our obligations to our EU partners? Has he investigated the risks the proposed legislation may create under Article 8(2) of the London Fisheries Convention? Article 9(2), which is normally referred to, only applies to vessels that habitually fished under voisinagearrangements, not to be confused with a regime of "not to prosecute". Does the legislation comply with the Minister’s fisheries management obligations, for example, in respect of conservation and management? Will the Minister need to have joint management with the UK for Ireland’s inshore waters? Will he have to consult again with Stormont when managing the mussel industry in Cromane, in County Kerry?

Is the Minister aware that when he was in the Seanad on this matter on 8 March 2017, on the same day the UK fisheries Minister was being advised that the Common Fisheries Policy superseded the London Fisheries Convention, meaning that historic fishing rights derive from EU law, and not from the convention? There was a man here who said he was sceptical as to whether the London fisheries rights could be revived after 40 years. That reference is in TAB3 D3.

With regard to precedent for the legislation, the Minister should be aware that thevoisinagearrangements concluded between other countries are never unrestricted. He should note that voisinagearrangements made at the London Fisheries Convention are all documented in EU Regulation 1380/2013 and listed in Annex I to the aforementioned document. There is no mention of the Irish arrangement permitting UK vessels to operate in Ireland’s zero to 12-mile zone other than that illustrated at TAB1 D2, the text version of which is in TAB2 D6.

All other agreements are specifically restricted to prevent abuse. Typical restrictions include limits on species and locations. Where is Ireland’s voisinagerecorded in this annexe? The Minister alludes to this voisinagebeing in place since 1960. The London Fisheries Convention was completed in March 1964 yet the so-called voisinageletters were dated September and December 1965, so how does the proposed unrestricted access sit in that context?

There is incontrovertible evidence that Northern Ireland shellfish farms, that is, plots of land on the sea bed, were allocated thousands of tonnes of mussel seed in the Republic of Ireland. Some of those farms did not even own a fishing boat. We then had a voisinagefor fish farms. Nevertheless, joint management under the legal umbrella or foundation of voisinage arrangements somehow allowed for allocation-quota of a precious Irish natural resource to UK shellfish farms. These quotas or entitlements have since been traded but, more importantly, Irish businesses had to suffer the loss of these resources and Irish processing plants have closed down. The Irish Department will not consider permitting Irish fishing vessels to have individual transferable quotas but was willing to permit a UK shellfish farm an individual transferable quota of mussel seed in the Irish Sea and the farm need not have a boat.

Has the Minister been made aware of such activities by his officials? Does he propose to prevent such behaviour happening again in the future? Does the Minister give foreign interests priority over Irish communities in this Bill? Where is the legal, moral or economic justification for this? Will the Minister rule out categorically that the ancillary legislation envisaged will provide for similar abusive regimes previously described as joint management or the seed mussel allocation committee, SMAC?

As for good relations and the all-island agenda, if the Minister wishes to give access to Northern Irish vessels on the basis of some higher political goal, he should say so explicitly. If he chooses to legislate to give free access to our zero to six-mile zone, then he cannot simply ignore the legal rights of Irish fishermen, including their right to earn a living, and the constitutional protections that exist in respect of this and other rights. When the then Taoiseach, Seán Lemass, met with Captain O'Neill in the early 1960s, they did discuss agriculture and fisheries. On fisheries, they discussed prosecutions for illegal fishing. Today, there are examples of co-operation on agriculture on an all-island basis. There is an all-island animal disease control plan, but that does not permit farmers from one jurisdiction or a dairy processor to milk the cows from the neighbouring jurisdiction, although they can buy the milk.

The voisinageagreement we have experienced is the only example of a transfer of assets. What the then Taoiseach, Seán Lemass, discussed with Captain O'Neill is documented in the National Archives and reported to the Oireachtas accordingly. There is no mention of any voisinageagreement. The reason for that is obvious, as can be seen in the difference between the then Taoiseach's SI 173/1959 and the former Taoiseach, Deputy Kenny's SI 22/2016.

Further clarification on voisinageis available to the elected members in the Official Report of the Dáil debate on the Maritime Jurisdiction (Amendment) Act 1964, during which the London Fisheries Convention is discussed but voisinageis not mentioned at all. The voisinagedialogue letters do not occur until September and December 1965, more than a year later. My colleague, Mr. Crowley, will later give a position offered by the Department of Agriculture, Food and the Marine on voisinage in 2012. The answer from the Minister, Deputy Creed, to Deputy McConalogue in Dáil Éireann on 24 November 2016 is somewhat misleading in so far as the Supreme Court judgment related to the zero to 12-mile zone and not the zero to six-mile zone referred to in the Minister’s reply. Perhaps the record of the Dáil should be amended accordingly.

I will turn to my summary and proposed way forward. The Minister, Deputy Creed, appears to have lost sight of the fact that he is dealing with illegal fishing in this legislation. Fishing takes place in an environment where rules are numerous and strictly enforced, typically to the letter of the law. What the Minister is actually proposing is to set aside the law for a specific group of British-flagged vessels to operate inside the Irish zero to six miles coastal zone and not be prosecuted.

The Minister is also proposing to allow another state decide which vessels will qualify to be classed in that "not for prosecution" group. The terms "Northern Ireland Owned and Operated" and "voisinage" are vague, uncertain and so incapable of enforcement they are void because of uncertainty. Is this intentional on the part of the Minister? Which part applies - owned or operated? Even the text of the Bill is a contradiction of itself. Does the Minister realise that while the Irish vessel registration system proves ownership, the UK registration system does not? State authorities said they cannot look behind the licensing regime of another country, even if the vessels are fishing in Irish waters.

It is our honestly held view that this legislation is nothing more than a vindictive attempt to punish the fishermen and the industry which took the Supreme Court case. The intent of the Minister is in all likelihood incapable of legislation but the ideology behind the Bill raises serious concerns. Recently, we heard that fishermen who operate in the Moville district of Lough Foyle may not be given allocations this year.

To provide our summary of the proposed legislation, the arrangement to set aside the law was never legal and consequently should never earn any sort of legal recognition. It has been continually opposed by Irish fishermen since the first attempt to impose it on us. It was resurrected to facilitate access to our mussel resource for large Dutch corporations using Northern Ireland as a flag of convenience. The legislation is not supported by any moral obligation given that no other country has ever given such access, nor does the UK give anyone else such access. We are swopping a horse for a rabbit.

UK fishermen will continue to enjoy privileged access to our east coast six to 12 mile zone without this legislation. The legislation offers nothing for the fishermen or taxpayers of the Republic of Ireland. It will result in loss of income, jobs, taxes and people from Irish coastal communities. Experience suggests that it will be abused in a similar manner as occurred in the bottom mussel industry historically. It is already drafted for abuse. The main beneficiaries will be large foreign corporations initially, followed by those who will exploit the loopholes now being created in the regulatory regimes by this Bill. It may create major legal difficulties for Ireland elsewhere. In the context of Brexit and the apparent intent of the UK to withdraw from the London Fisheries Convention, the Minister should not be introducing any new fisheries legislation.

Ireland has a sea territory ten times its land area.

This vast resource only produces around €500 million worth of fisheries material per year for Ireland. We would like to take this opportunity to begin new thinking for this massive resource and what it could mean for the coastal communities of Ireland. We need new thinking whereby Ireland’s leaders value our marine resources and develop an industry as large as farming. The resources are there and other countries are harnessing them, as can be seen in tab No. 1, D5. Deputy Creed’s speech in October 2016 at the eighth meeting of the National Inshore Fisheries Forum stated: "The inshore sector, comprising fishing boats of less than 12 metres in overall length, make up more than 80% of the Irish fleet and are predominately active within six nautical miles of the Irish shore”. That is over 1,600 Irish vessels depending on the area the Minister is canvassing the committee to give access to for UK vessels to fish in. Note the Minister is not saying the Irish fleet needs the coast of the Six Counties.