Noel O'Flynn (Cork North Central, Fianna Fail)

The issue of fisheries has been to the fore of the discussions of the Joint Committee on Communications, Marine and Natural Resources, of which I have the honour of being chairman. The second meeting of the committee discussed reform of the CFP and the then forthcoming TAC and quota negotiations at the December Agriculture and Fisheries Council. The meeting lasted four hours and we heard from the then Minister for Communications, Marine and Natural Resources, Deputy Dermot Ahern, departmental staff, fishery industry representatives, BIM and the Marine Institute. The joint committee has been exercised by fisheries.

Since my appointment as chairman, I have come to understand the pivotal role fishing plays in the sustainability and development of Ireland's peripheral coastal fishing communities. I am an advocate of trying to ensure that these communities survive and thrive. I do not have any deep sea fishing vessels in my constituency of Cork North-Central. I have no vested interests in the fishing industry.

This Bill was considered in detail at an all day hearing of the joint committee on 12 October. As part of my research, I discovered that the base legislation dealing with fisheries was the Merchant Shipping Act 1894, when Queen Victoria was the English monarch. This legislation was consolidated with the Fisheries (Consolidation) Act 1959. In 2005, this Bill rewrites and updates Part xiii, which deals with fisheries. I welcome this move but have certain reservations. Only a few weeks after the bicentennial celebration of Nelson's victory at Trafalgar we find an Irish Bill proposing to allow the firing of a gun at or into a boat. When I recently mentioned this in Brussels, there was astonishment that Ireland would propose such legislation, and particularly at the thought that a gun could be fired into or at a vessel of another member state. I welcome the Minister's intention to remove this provision from the Bill. Perhaps we could let Queen Victoria rest in peace.

I echo what the industry put on the record when it presented to the joint committee and the position of the vast majority of the committee's members, which has been expressed by a number of Deputies today. Fishery offences and infringements of the rules of the Common Fisheries Policy must be sanctioned and cannot be tolerated. I want it to be understood in the clearest terms that no one condones illegal fishing.

I mentioned Brussels a moment ago. Following the hearings on 12 October, the joint committee agreed to have a delegation visit Brussels to explore the EU's thinking behind the enforcement of the CFP and how this has impacted on the legislation proposed. The visit was informative. We met Commissioner Joe Borg's chef de cabinet, members of the European Parliament's Fisheries Committee, Irish MEPs and Commission officials. We discovered two central issues, namely, Commission or competency creep and proportionality. This Bill is not proportional, which is a key issue the Minister must address before he takes it on to Committee Stage.

As mentioned by my colleagues on the opposite benches, the Commission's reports highlight the principle of proportionality. A total of 86% of all fishery offences are dealt with by administrative penalties across the EU. The Bill proposes to rewrite Part xiii of the 1959 Act and we therefore have the opportunity to introduce legislation to put in place a fishery management, control and enforcement regime than could be the best in Europe. My concern as an elected legislator is that what will be enacted in this legislation will not be fair and proportional. In my reading of it, I do not believe the Department is adhering to the proportionality principle.

In correspondence from the Department pertaining to a commentary on the need for this Bill, I note a justification proffered that member states have strong, effective, dissuasive, transparent fisheries management and enforcement systems. I also note from the Commission's documentation that contrary behaviour should attract proportional, effective and dissuasive penalties imposed by national authorities. The one difference between the Department and the Commission's document is the word "proportional".

What is Commission or competency creep? I was unaware of it prior to going to Brussels. I recommend that all Deputies who are committee members visit Brussels more often and see at first hand how the work taking place in the EU impacts on the legislation we consider in the Dáil. I am echoing some of the points the Acting Chairman has been making for a long time. Commission or competency creep can best be seen in section 14 where the Minister can, by regulation, prescribe measures in respect of the CFP on those who buy, handle, weigh, transport, ship, land, process, store, document or sell fish. The Commission has sought to creep the competency of the CFP from the sea to the land. Through this section, the CFP has come ashore, grown legs and begun chasing processors.

Categorically speaking, there should be no place for those involved in anything to do with illegal fish, namely, undersized fish. However, there is a world of difference between illegal fishing and the catching of illegal fish. I agree with Deputy Eamon Ryan that we must introduce Irish legislation to criminalise those who catch or are involved with undersized fish. From this benchmark, there must be administrative sanctions for lesser offences. We must be proportional, set the mark for the worst offence and work downwards. This legislation sets the bar as high as possible for relatively minor offences and then pushes into the stratosphere the sanctions to be imposed for serious offences. This is as unreal as the Commission's expansion of its competency.

Last night I read the European Court of Justice judgment in case No. 304/02 Commission v. France. In paragraph 73 of the judgment, I found that the court knew about proportionality, as it held:

Accordingly, in light of the detailed evidence submitted by the Commission, the information adduced by the French Government is not sufficiently substantial to demonstrate that the measures which it has implemented so far as concerns the taking of action in respect of infringements of the fisheries rules display the efficacy, proportionality and deterrence necessary to meet its obligation to ensure the effectiveness of the Community system for conservation and management of fishery resources.

There is the word "proportionality" again. That seven cases have been initiated by the Commission against Ireland and the Department has made members of the joint committee aware of the Commission's case against France and that, in terms of some of the cases taken against Ireland, there is created a potential significant exposure to the State.

Is the main reason the Commission has taken seven cases against us because our legislation imposing sanctions for fisheries offences is so appalling that the Department must propose this legislation? Alternatively, is it the truth that the Department has at an operational level been poor in how it manages the control, monitoring and enforcement required by the CFP and that, in the main, has been legislated for by this Oireachtas at the rate of nearly one new or amending Act every two years? The Department comes to the Oireachtas with a proposal for stronger and more draconian legislation. I want to ensure we have a regime in place that covers Ireland's obligations under the CFP. I do not want Ireland to be continually exposed to the European Commission identifying deficiencies which as a member state Ireland must address.

Since 2000 the Oireachtas has passed the Fisheries (Amendment) Act 2000, the Fisheries (Amendment) Act 2001 and the Fisheries (Amendment) Act 2003 and we are now dealing with Sea-Fisheries and Maritime Jurisdiction Bill 2005. In terms of legislating for fisheries this Oireachtas is becoming a serial legislator. It is almost an annual event, like the budget. Will the Department ever get it right?

I will consider the matter of the Supreme Court rulings in the Browne and Kennedy cases, which in addition to the European Commission actions against Ireland, the Department are using as part justification for the need for this Bill. I do not dispute that the Supreme Court rulings have created an obligation to amend legislation. This is not confined to the Department. The Supreme Court judgments in the Browne and Kennedy cases have serious implications for all Departments. However, if all Departments take the same attitude as the Department of Communications, Marine and Natural Resources in how they seek to comply legislatively with the Supreme Court rulings, then the electorate will wreak havoc come the general election.

As Deputy Perry stated, the Supreme Court judgment in the Kennedy case ruled:

If s[ection].223A were considered an appropriate basis for the statutory instrument it would, as pointed out by Keane CJ, in Browne v. Ireland. be used to circumvent s[ection] 224B (quite apart from any consideration of s[ection] 3(3) of the Act of 1972).

This is interesting in the context of the Supreme Court judgment in the Browne case which held:

[T]hat it was not open to the Minister to use the mechanism of s[ection] 223A of the Fisheries (Consolidation) Act 1959 (inserted by s[ection] 9 of the Fisheries (Amendment) Act 1978, amended by s[ection] 4 of the Fisheries (Amendment)Act 1983) to create an indictable offence by means of statutory instrument as a method of giving effect to Council Regulation (EC) No. 894/97 of 29 April 1997 as amended by Council Regulation (EC) No. 1239/98 of 8 June 1998.

The spin emanating from Leeson Lane is that as a result of the Supreme Court judgment, there is no effective fishery law and Ireland is leaving itself swinging in the wind. This is untrue and must be nailed right here and now. Why did the Department sit on its hands since 2003 when the Supreme Court found a deficiency in section 223A, the very section that was again found repugnant in 2005 in the Kennedy case? Is the Department slow to learn a lesson? Why did the Department have to wait a full two years to be told again by the Supreme Court that section 223A was deficient before it brought this Bill forward?

The defect found by the Supreme Court was that if it is required to give effect by statutory instrument to an obligation of an EU policy or an EU legislative provision, it must be referenced by an Act of the Oireachtas. As my colleagues have said, this applies to every Department. To put about the spin that because of the Supreme Court judgments in the Browne and Kennedy cases, we have no effective fisheries law is patently dishonest.

The hearings of the Joint Committee on Communications, Marine and Natural Resources on 12 October highlighted the fact that in proposing this radical rewriting of Part XIII of the 1959 Act, the Department consulted no one. This is astounding and has been made all the more incredible when it was known that the Department did not subject this Bill to regulatory impact analysis. I know of no other Department or division of a Department which would behave in such a fashion, ignoring a complete industry together with undermining the viability of peripheral coastal communities without any regard to consultation. Partnership means nothing to the administrators of our national fishery.

This Bill has a unique place in legislation proposed to the Dáil for consideration. It is very rare to find a Bill that proposes too little and too much at the same time. It has too little to address the legitimate concerns of the fishing industry and to give Ireland an effective and functioning fishery control regime and too much to address the Supreme Court judgment and Ireland's obligations under the Common Fisheries Policy.

I want to consider the EU general principle whereby a member state cannot discriminate on the grounds of nationality. I am aware of how European Court of Justice case law has moved out this principle so that member states can impose greater obligations on their own nationals than they can enforce on nationals of other member states. This is called "gold plating" and as a legislator, I want this to stop. I do not support the provisions contained in this Bill whereby Irish fisherman will have, as a statutory consequence of conviction on indictment, automatic forfeiture of gear and catch, while foreign fishermen will have the privilege of the Irish court deciding if they will forfeit their catch and gear. This Bill proposes to continue this discriminatory practice and amendments should be brought forward to change this. I ask the Minister of State to bring forward those amendments on Committee Stage.

The joint committee agreed to go to Brussels and Deputy Broughan was present when this was agreed. No member of the Fianna Fáil party has stated they will oppose the Bill. As Chairman of the joint committee I proposed to bank the questions. I informed Deputy Broughan that the Fianna Fáil party would not go offside on this measure but would endeavour to persuade the Minister to make significant changes to the Bill and that we would not be voting through the lobby with the Deputy. I wish to put this on the record of the House because Deputy Broughan gets carried away on occasion.

Our committee has taken the unusual step of engaging the services of a senior counsel to advise us on this legislation and to advise us on the proportionality and administrative sanctions. The committee will lay this independent advice before the Minister on Committee Stage of the Bill.

Deputy Broughan seems to think we were in a circus in Brussels. I think it was a wonderful opportunity to meet the Irish MEPs and the EU Fisheries Committee. The Irish MEPs will appear before the joint committee to engage in a discussion on the Common Fisheries Policy. The EU Fisheries Committee members will also be invited to attend a general discussion on uniformity, proportionality and other matters of common interest to all EU countries.

I refer to EU document COM (2003) 782 which outlines reports from member states which have seriously infringed the rules of the Common Fisheries Policy in 2002. Belgium was guilty of 49 serious infringements with an average fine of €1,143, Denmark had 442 infringements with an average fine of €622, Germany had 118 infringements with an average fine of €820, Spain had 1,785 infringements with an average fine of €2,126, France had 288 infringements with an average fine of €2,367, Ireland had 26 infringements with an average fine of €11,978 and the United Kingdom had 125 infringements with an average fine of €8,795. The House can see the need for uniformity of sanctions across the EU. Greece, Spain, Portugal, Italy and the UK have the largest fleets with a total of 68,392 vessels out of the 76,942 vessels registered on 1 January 2003. Ireland has 1,437 vessels, or 1.8% of the European fleet. Ireland received 0.38% of the sanctions, yet has the highest level of fines. There is a clear need for uniformity across the EU in levels of fines imposed. This was clearly the view of the EU official, Mr. Gallizioli, who appeared before our committee on 12 October and stated that the Commission believes "an administrative system is better than a criminal system."

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