Noel Dempsey (Meath, Fianna Fail)

I move: "That the Bill be now read a Second Time."

Molaim Bille Iascaigh an Fheabhail agus Chairlinn don Teach. I commend the Foyle and Carlingford Fisheries Bill to the House. I am very pleased to have this opportunity to present the Bill for consideration by the House.

The background to it is that the Good Friday Agreement provided for the establishment of six North-South bodies to take forward co-operation in specific areas, including aquaculture and fisheries in the Foyle and Carlingford areas. The Foyle, Carlingford and Irish Lights Commission, which I will refer to as the commission, is one of the North-South bodies envisaged in the Agreement and was established under the British-Irish Agreement Act of March 1999. The commission replaced the Foyle Fisheries Commission, which was established in 1952 to manage the fisheries resources of the Foyle area. Under the Good Friday Agreement, the functions of the former Foyle Fisheries Commission in regard to the Foyle area were transferred to the commission. These functions were also extended to the Carlingford area.

The Loughs Agency is an agency of the commission and exercises the functions of the body in accordance with any directions given to it by the North-South Ministerial Council, to which it reports. During suspension of the Assembly, decisions by the North-South Ministerial Council are taken by way of agreed interim procedures processes. The Agreement also provided that the Loughs Agency would be given responsibility for aquaculture and fisheries related matters and should have powers for the promotion of development of Lough Foyle and Carlingford Lough for commercial and recreational purposes.

The purpose of this Bill is to give effect to the provisions of the Good Friday Agreement in so far as the Loughs Agency is concerned. Equivalent legislation is required in Northern Ireland, a draft of which has been published recently and is the subject of a consultation process prior to enactment. In the absence of an Assembly in Northern Ireland, the legislation for that jurisdiction will be introduced by means of an order in council through the parliamentary process in Westminster.

For the convenience of the House a detailed explanatory memorandum has been published and this provides a synopsis of the Bill's provisions. The Bill, when enacted, will provide for a robust regime for the regulation of aquaculture in Lough Foyle for the first time, the introduction of an appeals system in respect of decisions on aquaculture matters, and generally for the modernisation of the fisheries provisions of the Foyle Fisheries Acts.

I stress that the Bill is the result of a long and detailed negotiation process across a range of Departments and agencies North and South, and some of those negotiations are still continuing. As such, it reflects a consensus that has been reached having regard to the provisions of the Good Friday Agreement and the constitutional imperatives in the two jurisdictions. For this reason, there will be provisions in this Bill that are not contained in the draft Northern Ireland order, and vice versa, and this reflects the impact of local law in the two jurisdictions. This is an important point because it means that any amendments, introduced in either jurisdiction, will need to be considered in consultation with the relevant Minister's officials and legal advisers. The need to agree changes, other than those necessitated by local law requirements, may restrict the scope for making changes as the statutory instruments progress through both the Oireachtas and Westminster.

I will now deal with the contents of the Bill. Section 2 provides for the commencement on specified days of different provisions of the Act. It also provides that the commencement of any provision of the Act may be limited to a particular geographical area. The purpose of this is to take account of the fact that it may not be possible for the Loughs Agency to consider all aquaculture licence applications at the same time. Some sites may, therefore, be licensed before others. Accordingly, it is proposed that the criminal sanctions for carrying out an unlicensed aquaculture operation should not be introduced until all licences have issued.

Part 2 of the Bill inserts a new Part VI A, sections 53A to 53W, into the Foyle Fisheries Act 1952. This part provides for the introduction of an aquaculture licensing system in Lough Foyle to be overseen by the Loughs Agency. It also transfers the existing aquaculture licensing powers of the Minister for Communications, Marine and Natural Resources within the Carlingford area to the agency. One of the key provisions, section 53A, confers powers on the Loughs Agency to grant aquaculture licences, notwithstanding any public right to fish. It also creates two offences — the first is the carrying out of aquaculture operations without a licence and the second is failure to comply with the terms and conditions of an aquaculture licence. Penalties for these offences are: on summary conviction, a fine of not more than €5,000 and/or imprisonment for not more than six months; or on conviction on indictment, a fine of not more than €100,000 and/or imprisonment for not more than two years. The section also provides that aquaculture licences granted in respect of part of the foreshore, the bed of the sea or of an estuary, which is owned or occupied by another person, or which is within the limits of a several or private fishery, can only be granted with the consent of the owner, or occupier, of the area or fishery in question.

Section 53B empowers the Loughs Agency to prescribe matters of procedure in the licence application process and the type of information to be provided by applicants, including information relating to the potential impact of aquaculture on the environment. Section 53C relates to the determination of licence applications. It provides for the consideration of written representations on such applications, notification of the decision to the applicant and publication of the notice of decision. Section 53D provides that an aquaculture licence shall define the position and limits of the licensed area and shall be subject to such conditions as may be determined by the Loughs Agency. The section lists examples of the types of conditions that may be imposed. Under section 53E licences may be granted for a period of between ten and 20 years and may be renewed for a further period not exceeding 20 years. An aquaculture licence confers, on its holder, exclusive rights to conduct aquaculture but protects existing legal rights enjoyed, for example, by any person under a local or personal Act or under charter. Section 53F also provides that ownership of the stock cultivated under a licence vests in the licensee. It makes it an offence for another person to interfere with a licensee's operations. Section 53G allows the agency to vary an aquaculture licence in the public interest and to pay compensation to the licensee for loss or damage arising from such a variation. The Loughs Agency is enabled, under section 53I, to revoke a licence for reasons of non-operation or breach of conditions. Licences may also be revoked in the public interest subject to the payment of compensation.

Sections 53H, J, K and L make provisions for the variation of licences, the surrender of licences, the death of a licence holder, bankruptcy of the licensee, the transfer of aquaculture licences and the procedures to apply in each of these cases. Section 53N enables the Loughs Agency to make regulations providing for the payment of fees in respect of applications for aquaculture licences. It also provides for the variation, transfer, surrender and subsistence of aquaculture licences. Regulations made under this part of the Bill must be approved by the North-South Ministerial Council.

The Bill also provides for the establishment of the Foyle and Carlingford Aquaculture Licensing Appeals Board, and the appointment of members and a chairperson to the board by the North-South Ministerial Council. Any aggrieved persons may appeal to this board against licensing decisions, including decisions on revocations, transfer, variations and compensation. Both the agency and the appeals board are obliged to give reasons for their decisions under section 53Q. The Bill contains a number of provisions on aquaculture in Carlingford and provides that existing licence applications shall continue to have effect as if made under section 53A.

Part 3 of the Bill contains the proposed amendments to the Foyle Fisheries Act 1952. Section 6 amends the functions of the agency as laid out in section 11 of the 1952 Act. This is in order to take account of the additional functions conferred on the Foyle, Carlingford and Irish Lights Commission by the British-Irish Agreement Act 1999. Section 7 amends the 1952 Act and confers additional regulation-making powers on the Loughs Agency. These relate to the prohibition of the sale of fish caught by rod and line, concessionary fees, exemption from payment of fees, the nature of documentation to accompany applications, conditions attaching to fishing licences, the transfer of fishing licences and the tagging of fish. It also makes provision in regard to the publication of such regulations.

Section 8 amends section 14 of the 1952 Act and enables the agency to restrict the number of licences for commercial netting within a particular prescribed area of the Foyle or Carlingford areas. This section also provides for how the allocation of licences by the agency is undertaken in instances where the number of applications exceeds the maximum number of licences prescribed. These new provisions, when enacted, will play an important role in the introduction of any new management regime for wild salmon in Lough Foyle, which may be required in order to comply with the habitats directive.

A new section, section 14A, in the 1952 Act, is inserted by section 9 of this Bill. It allows the Loughs Agency to acquire, by agreement, fishing rights in any waters, for the purpose of developing and improving facilities for angling. It also provides for the development of these waters by the agency.

Section 10 inserts a new section, section 14B, in the 1952 Act to enable the Loughs Agency to issue and charge for permits to fish in waters which it owns or manages. Section 11 amends section 28 of the 1952 Act to provide that the agency may prescribe different times for the closure of the seasons for different species of fish. Section 12 inserts a new section, section 35A, in the 1952 Act to prohibit unlicensed fishing. It makes it an offence to fish without a licence or in contravention of the terms and conditions of a licence. It will also be an offence to be in possession of an unauthorised fishing engine. It also inserts a new section, section 35B, to provide for certain exceptions in relation to offences. It details possible defences that may be available to a person charged with an offence under section 35A.

Section 15 inserts a new section in the 1952 Act, which makes it an offence to cause or knowingly permit any deleterious matter to pollute a river. Provision is also made for the Loughs Agency to carry out necessary works for the reinstatement of the waters to restore the fish population after such an incident. This section also provides for the recovery of costs from the person convicted of discharging the pollution. Section 16 extends the prohibition on the use of certain devices to facilitate the unlawful taking of fish, including electrical or acoustical apparatus. It also prohibits the use of a gaff.

Section 18 amends section 46 of the 1952 Act. This amendment adds private river watchers to the list of persons with power to remove any unlawfully killed or diseased salmon from the water. The amendment also requires those who exercise such powers to notify the Loughs Agency. This was seen as an important addition by the agency.

Section 19 details possible defences that may be used by a person charged with an offence under subsection (1)(a) of section 47 of the 1952 Act relating to the taking of spawn, smolts or fry of salmon or trout. The amended section also provides that it shall be an offence to remove material from the bed of the freshwater portion of a river without the consent of the Loughs Agency and makes provision for the granting of such consents by the agency.

Section 21 updates the procedures for the appointment of river watchers. The two new sections added to section 56 of the 1952 Act oblige the agency to maintain a register of the names and addresses of those entitled to act as river watchers. It also imposes a five-year limit on the period for which a river watcher may be appointed and allows for the re-appointment of river watchers.

Section 22 amends section 59(1) to enable an authorised person to seize any equipment which has been or is being used to facilitate the unlawful taking of fish. This section also amends section 65 of the 1952 Act and allows the courts to order the forfeiture of equipment seized.

Section 23 also amends section 59 of the 1952 Act and allows authorised persons to cross any land on foot, and where there is a suitable roadway, lane or path, to use motor vehicles to assist in the pursuit and apprehension of offenders. The provision also requires authorised persons not to cause obstructions and to re-secure any land against trespass when exercising such powers.

Section 24 amends section 60 of the 1952 Act by updating the existing provisions relating to warrants. This provision allows a District Court judge to issue warrants, valid for seven days, empowering an authorised officer to enter and search premises at any reasonable time or at a time specified by the judge in the warrant. This also provides for the enforcement of the warrant if the house is empty and provides that an authorised person, other than a private river watcher, may accompany the person authorised by the warrant.

Section 26 amends section 64 of the 1952 Act so that powers under this section do not permit authorised officers to enter an enclosed garden or dwelling house. Section 27 provides for the revision of penalties in respect of offences committed under the Act. The penalties are set out in Schedule 2 to the Bill. This section also provides for the recoupment by the Loughs Agency of the cost of prosecutions by the insertion of section 69A in the 1952 Act.

Section 28 amends section 70 of the 1952 Act to provide that work, which might otherwise be prohibited under the 1952 Act, may be carried out by the agency or any person to whom a permit is issued, provided that such work is for artificial propagation, scientific purposes or the improvement of the fisheries. The amendment also details procedures on permits issued for this purpose.

Section 29 amends section 76 of the 1952 Act, by amending the existing statutory forfeiture provisions to allow the courts to adjudicate on forfeiture. This section also repeals section 77 of the 1952 Act. Section 30 inserts a new section 73A in the 1952 Act. It provides that applications for judicial review of decisions of the Loughs Agency about aquaculture, or of the appeals board in appeals, may only be made in accordance with Order 84 of the Rules of the Superior Courts. Provision is also made so that the High Court may not decline jurisdiction in a case by reason only that the decision was made in an area that is outside the State, or relates to a place that is outside the State. This is one of the provisions that is included in this Bill but not in the draft Northern Ireland Order in Council, the Foyle and Carlingford Fisheries (Northern Ireland) Order 2007. This section is included on the advice of the Attorney General.

Section 32 confers powers on the agency to provide, subject to the payment of such fees as it may determine, services relating to fisheries and amends paragraph 2 of the Third Schedule to the 1952 Act. Section 34 provides that the Fisheries (Amendment) Act 1997 shall not apply to the Louth area. To date, aquaculture operations in this area have been licensed under the 1997 Act. Section 35 amends the Foreshore Act 1933 so that the Minister may grant a foreshore licence to the Loughs Agency. This will allow aquaculture licensees to conduct aquaculture operations on the foreshore.

Schedule 1 to this Bill inserts new Schedules 3A and 3B in the 1952 Act. These make provision for the incorporation, membership and staffing of the Aquaculture Licences Appeals Board and set out the procedures for appeals.

There are eight articles in Schedule 3A which I will briefly outline. Article 1 provides that the appeals board, which I will refer to as the board, shall have the legal capacity of a body corporate and that judicial notice shall be taken of the seal of the board. Article 2 provides that remuneration of the board, tenure of office of the board, and resignations and removals from the board are to be determined by the NSMC, the Minister for Finance and personnel in Northern Ireland. Article 3 provides for the employment of staff or engagement of services of persons by the board. It makes provisions for the payment of such persons and for the payment of pensions subject to the same approvals as in Article 2. Articles 4 and 5 contain a number of procedural rules for meetings of the board. Article 6 requires the board to draw up a code of conduct, covering its obligations to the public and its accountability. Articles 7 and 8 are standard provisions concerning the keeping and auditing of annual and other accounts and annual reports.

The new Schedule 3B to the 1952 Act deals with procedures in relation to appeals. There are 18 articles to the Schedule. Article 1 details the procedures for lodging appeals. Article 2 authorises the board to give directions on notices of appeal and defer service of the notice of appeal on the Loughs Agency until it is satisfied that its directions have been complied with. Article 3 provides that a board may dismiss appeals considered to have no valid ground, to be vexatious or frivolous, that are not in the form required or where the appellant fails to comply with a direction of the board.

Articles 4 and 5 are concerned with procedures applicable to the amendment of notice of appeal and withdrawal of appeals. Articles 6 to 11, inclusive, detail the procedures to be followed by the board and the Loughs Agency in response to a notice of appeal. Articles 12 and 13 provide the board with the discretion to treat two or more appeals as one and where hearings are to be held.

Article 14 authorises the board to give directions about the manner in which the proceedings are conducted; the presentation or disclosure of documentation; the seeking of expert opinion; and the calling of witnesses to give evidence. The article also details procedures for third parties requesting the board to give such directions. Article 15 authorises the board to issue a summons requiring a person to attend as a witness, answer questions or produce documents, and details the procedures to be followed for such a summons. Article 16 authorises the board to debar a party from the proceedings for having failed to comply with a direction given under this Schedule. Article 17 provides for oral hearings to be held in public except in the case where confidential information is being considered. Article 18 provides for the delivery of decisions by the board and that each party to the appeal shall be sent a copy of the decision.

Schedule 2 to the Bill contains the details of the new penalties as provided in section 27. The penalties in the North and the South have been made as consistent as possible allowing for local law conditions so that offenders should be subject to similar penalties in either jurisdiction. The Attorney General has advised that it is necessary to amend the Bill so that it applies to all fish in the agency's jurisdiction. In addition, the Attorney General advises that the definition of the Foyle area must be inserted on the face of the Bill. The Attorney General has advised that these amendments are necessary to give effect to the Good Friday Agreement. I will be bringing forward amendments on Committee Stage to give effect to this advice. Deputy Keaveney has been pursuing this matter with me for some time.

The Bill is an important measure in the delivery of service by a North-South body established under the Good Friday Agreement. It will equip the agency with the powers to regulate aquaculture and it modernises its powers over inland fisheries. In turn, this will enhance the commission's scope for conserving and managing these fisheries. I commend the Bill to the House.

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