Tommy Broughan (Dublin North East, Labour)

I move amendment No. 1:

In page 9, line 7, after "1988" to insert the following:

"AND THEREBY TO MAKE PROVISION FOR AN APPROPRIATE SYSTEM OF PENALTIES".

The intention of the amendment is to change the Title.

The aim of amendment No. 6 is to add a new chapter entitled: "Administrative Penalties". My other amendments that are to be discussed with amendment No. 1 have the same purpose.

In the brief discussion we had on this Bill on the Order of Business with the Taoiseach and the leader of the Fine Gael Party, Deputy Kenny, I tried to outline why it is so important that we should come forward with a system of administrative penalties. The fishing industry faces major problems and we must create a sustainable industry while protecting vulnerable stocks. We must also ensure that the blue treasure of our nation, which encompasses something like 1 million km2 of seas, is preserved for future generations. Above all, we must ensure a future for the 8,000 people or so — according to Marine Institute figures — who go out to sea on a daily basis in very dangerous conditions. In recent weeks, two boats from the east coast were lost at sea. It remains an incredibly dangerous profession. We must ensure a secure livelihood for years and decades to come.

We must also remember the other 40,000 workers who depend in one way or another on the fishing industry and the people living in coastal communities. There are six major fishery harbours and 15 other important fishery harbour locations. It is critical that we build a sustainable and profitable industry. It is important that we create a situation where fishermen will make sufficient profit to invest in new technology and boats. It is necessary that the high level of uncertainty and complexity surrounding fisheries and marine management is removed.

We need a level playing pitch. The Minister went to Europe and, in what appeared to be an almost off-hand comment, surrendered 7,000 tonnes of our mackerel quota. He did not succeed in ensuring that his Department fulfilled its responsibilities under previous fishing Acts and the Ministers and Secretaries Act, to the extent that for three years running — between 2002 and 2005 — the catch returns were not submitted for this country. This was a case of incredible maladministration by the Department, of which the Minister is the political head. It is for that reason that we have been facing major fines.

The most astonishing discovery we made in the lengthy preliminary discussions at the Oireachtas Joint Committee on Communications, Marine and Natural Resources was that our Naval Service has no control over the fishing tactics, strategy and catches of the other European fleets. The Commodore informed the committee that it was not part of his function to check for quotas or total allowable catches. As other Deputies have said, the current system under the Common Fisheries Policy is unacceptable. The Minister has said we need to get our own house in order first. Our house is that million km2 of seas, yet what we will achieve by 7 p.m. this evening is to introduce fairly draconian measures to invigilate our fishermen while boats from Holland, France and Spain can do as they will.

The Minister achieved little in this regard on his recent visit to Brussels. He came back with nothing. All he has sold to the fishing industry is, effectively, pie in the sky. He has not protected our stocks or created a sustainable basis for the fishing industry. As we speak, there are at least eight Dutch factory ships on our seas, not just over-fishing but grading the fish, which is a crime under the Common Fisheries Policy, and preventing our fisheries protection officers from seeing what they are doing. The Bill will do nothing to alleviate this.

We should introduce a system of appropriate penalties which is the intention of many of my amendments. It would be fair to have an administrative penalties system for minor infringements. We have had a long debate about this matter. It appeared at first that the Attorney General was totally opposed to it. That is what the Taoiseach told me on the floor of this House. The Minister and the then Minister of State in the Department, Deputy Gallagher — our late lamented Minister of State who fell off our great national trawler as we steamed through the seas of this Bill — stated that it appeared to be unconstitutional. Following correspondence on administrative penalties between my party leader, Deputy Rabbitte, and the Taoiseach, it appears clear that administrative penalties are constitutional. The reason we know this is that the Minister for Communications, Marine and Natural Resources, has imposed administrative penalties on the communications industry.

On Committee Stage, I recalled that the Minister had transposed four EU directives into law in the area of communications, all of which impose administrative penalties. It is clear that the financial regulator, IFSRA, can impose administrative penalties under its founding Act. Those penalties include an administrative fine of up to €5 million. We are also familiar with administrative penalties under the Road Traffic Act. As the Minister well knows if he has read it, the second major amendment I tabled is based almost completely on the Road Traffic Act 2003. It gives the basis for penalty points, parking fines and other fines with which we are familiar under the Road Traffic Acts. The measures I have outlined permit the Minister to include a system in this Bill that would permit him to impose administrative penalties by way of regulation. I thank the Minister for considering our advice and case. He replied to us in a lengthy letter which dealt with administrative penalties and other matters.

The key point he appears to be making is that, rather than being unconstitutional, administrative penalties are unsuitable for the fishing industry. However, I told him that some of the greatest crimes in the history of this State were not dealt with by the criminal courts. We have only to revisit the history of the Committee of Public Accounts, of which I was a member. That committee invigilated the banking industry and discovered evidence of widespread illegality across the board, yet nobody ended up in prison. We witnessed exchanges with the Taoiseach about this matter this morning. Nobody involved in these illegal practices ended up with a criminal record. The matter was dealt with through administrative sanctions, although very serious crimes were uncovered. In respect of minor offences, there appears to be one law for certain professions and another for fishermen, which is unfair and should be addressed.

When one examines the European scoreboard for the Common Fisheries Policy, one can see that a system of administrative sanctions is being considered by all the great fishing countries. Scotland is considering adopting such a system and the Netherlands, Belgium, France and Spain have a system of administrative penalties based on their civil law systems. As we noted on Second Stage and Committee Stage, many of the penalties under these regimes are very low, compared to some of the penalties set out in this Bill which already exist under the 1959 Act and other fisheries Acts.

There has been an exchange of correspondence and we have received the Minister's response. My party and I are bitterly opposed to major criminality. Very serious allegations of criminality in the fishing industry were made in a recent article by Stephen Collins in The Irish Times. Some of this criminal activity is alleged to have taken place in Scotland and was referred to by the Minister. It is appalling if these allegations are true and the full rigour of the law must be brought to bear on them. This provision is included in this Bill and the earlier Acts which have not been struck down by the judgment by the High Court in the case involving Vincent Browne. We support this but we still believe that it is reasonable to ask for a system of administrative penalties.

Amendment No. 1 would change the title of the Bill to introduce a system of administrative penalties. Amendment No. 6 would bring about a major change, which I hope will be considered and accepted, even at this late stage, by the Minister. This system of administrative penalties is based on that set out in the Road Traffic Act 2003. Under this model, a system of penalty notices would co-exist with criminal offences. If a penalty notice is issued and paid, no prosecution would be instituted so the individual concerned would not end up with a criminal record. However, neither side would be compelled to either issue or pay the notice so cases could be heard in court if either side so wished.

If the Minister accepts amendment No. 6, the State would have discretion to issue fisheries penalties notices for lesser infringements in circumstances where to do so would be a deterrent and be dissuasive and where no major financial benefit accrued to the defendant from his or her offence. In any case where a deterrent or dissuasive penalty or the deprivation of the wrongdoer's benefit required a greater punishment, the State would be free not to issue a penalty notice but to proceed immediately to a criminal prosecution and sanction. The Minister rightly pointed out that a system of penalty notices or on-the-spot fines does not involve decriminalisation but it involves a practical way of dealing with many minor infringements without recourse to the criminal courts.

It appears that the relevant regulations under the Road Traffic Act 2003 impose different penalties for similar offences in different circumstances and impose an additional 50% penalty if a fine is paid late. Therefore, there is considerable discretion in creating a penalties regime which would be broadly proportionate to the seriousness of the offence to which the penalty applies, bearing in mind that very serious offences will continue to be dealt with by the courts. It is clear that there is scope for introducing a system of administrative penalties based on the Road Traffic Act 2003 for minor offences which would be concurrent with criminal penalties and sanctions.

As the Minister can see, the new chapter 2 and section 6 proposed by amendment No. 6 refer to the Sea Fisheries Acts up to 2006. Section 6 in chapter 2 sets out a procedure whereby an offence is identified, the notice is served or fixed to a vessel pursuant to subsection (2)(b) of section 6 and the person liable to make a payment during a period of 28 days, beginning on the day of the notice, pays an authorised officer at a specified place a fixed charge payment or a prescribed amount accompanied by the notice duly completed. The rest of the section details the other elements of a system of administrative penalties, including the actions open to the authorised office, the fisheries protection officer, the way in which the Minister may make regulations for enabling the section to have full effect and the fact that any such regulations in respect of fixed charges referred to in section 6 may specify different amounts in respect of different fixed charge offences and to such offences involving different classes of vessel and such offences committed in different areas.

I ask the Minister for the final time to consider the plea we have heard from the fishing industry throughout this debate not to criminalise and smear the industry and those valiant men and women, often in deprived coastal communities, who work day and night to support their families but to give them what appears to be a reasonable and fair option. Great Britain, which is another great country with a system of common law in Europe, appears to be moving towards a system of administrative fines, based on a reading of a number of documents. A study published a few weeks ago by the British Department of Environment, Food and Rural Affairs includes a consultation on a system of administrative penalties for fisheries offences. The report refers to a document prepared by the strategy unit of the British Prime Minister, Tony Blair, entitled Net Benefits: A sustainable and profitable future for UK fishing. According to this document, criminal penalties should be reserved for persistent and extreme criminal behaviour. For remaining penalties, the imposition of administrative penalties would be a sufficient deterrent.

This report is the result of a number of fisheries documents published by the British Government and the Scottish Executive, such as Securing the Benefits: The joint UK response to the Prime Minister's Strategy Unit Net Benefits report on the future of the fishing industry in the UK. On Committee Stage, I quoted from a very fine document published a few months ago by the Fisheries Minister of the Scottish Executive entitled A Sustainable Framework for Scottish Sea Fisheries. According to this document, the Scottish Executive "will explore options for a wider system of administrative penalties as an alternative or complement to criminal prosecution".

Like the Irish fishing industry, the Scottish fishing industry is a very important one. The Minister is aware that the British Government and the Scottish Executive are seriously considering a system of administrative penalties because they have examined the long history and great tradition of fishing, which involved hunter gatherers battling the elements, and what the fairest solution would be. Fishing is a very difficult industry within which to operate and it has been a very difficult way of life for generations of coastal communities who are now represented by many Deputies. I understand that a few months ago, all the skippers in Whitby in Yorkshire ended up in court and received criminal convictions as a result of minor infringements of the law. These people were criminalised.

Fishermen want to have what they regard a sustainable and profitable industry, which is also the ambition of the Irish Labour Party. It appears that there will be administrative penalties at both UK and Scottish levels. We led the way once or twice before with the ban on smoking and so on. The Minister has a history of not going with the herd at times. Therefore, I ask him to be radical and say to everyone from coastal communities that Ireland will go the route of administrative penalties.

See this speech in context