Seán Connick (Wexford, Fianna Fail)

I am not convinced, unfortunately, that this Bill would contribute positively to the rebuilding of fish stocks. Quite the opposite, in fact, my belief is that it could result in increasing the level of illegal fishing and further drive down the biomass of fish stocks leading to a collapse of many of the key commercial stocks around the coast on which our fishing industry is so dependent. In this regard, I consider that the Bill could have two possible outcomes, neither of which would protect fish stocks. The first possibility would be that this new Bill could introduce low fines for significant offences which would not be dissuasive and would promote illegal activity. The other option would be that it would introduce a new system for the administration of very minor errors which are currently subject to warnings and in this way distract and take the existing limited resources away from the real work of identifying and prosecuting the big offenders.

The issue of how and at what level sanctions should be applied has long been an issue with the fishing industry, particularly since the passing of the Sea Fisheries and Maritime Jurisdiction Act in 2006. This Bill, when viewed at first glance, may look as if it could provide a viable arrangement for the control of sea fisheries. However, the Bill does not stand up to closer scrutiny. The Bill would introduce a regime that would apply to fishing activity of all fleets in Ireland's 200 mile exclusive fisheries zone. The reality is that the Bill, if it applied to the offences currently specified in Irish legislation, would remove the current deterrent arrangements in place that protect against illegal fishing and would seriously risk promoting increased illegal landings and other unacceptable fishing practices by all fishing vessels from all member states and third countries operating in the rich fishing grounds inside Ireland's 200 mile zone. The Bill does not provide the necessary measures to appropriately regulate fishing activity and would not give a reasonable level of confidence that illegal fishing will not be rewarded. If the Bill were to be accepted, a new tier of minor offences would have to be created, which, in fact, are not currently prosecuted under the existing legislation.

The Irish seafood industry makes a significant contribution to the national economy in terms of output, employment and exports. Generating approximately 11,000 jobs in rural coastal regions, it is estimated that the industry contributed approximately €780 million to the national economy in 2008. Almost 60% of the employment and added value created in the marine sector is located outside the most developed regions of the country. The Irish fishing fleet is totally dependent on the state of fish stocks in the waters around Ireland, and it is the health of these stocks which ultimately determines the economic viability of our fleet and the supply of raw material to our seafood processors.

Over the past number of years we have seen a significant decline in quotas. Scientific evidence shows that many fish stocks important to Irish fishermen have declined to dangerously low levels. The state of the cod stocks have attracted particular attention, but there are other important stocks at dangerous levels, including whiting, sole and herring. I am committed to supporting changes in the Common Fisheries Policy that strengthen that policy and deliver better management and conservation methods for our fisheries which would have a meaningful and positive impact on the goals of returning fish stocks to healthy levels. I and my predecessors have made clear at EU Council that we see the delivery of a level playing field on control across the EU as a central part of the reform. The new EU Fisheries Control Regulation adopted last October is not, I believe, a threat to Irish fishermen who have already moved significantly to a culture of compliance. As fisheries are a common resource it is vital that all operators from all EU fleets respect the rules. We must rebuild our fish stocks by implementing conservation measures and tackle illegal fishing by fleets in our waters, which is the major cause of the decline in our fish stocks and quotas.

However, the adoption of the Fine Gael Bill before us would, I believe, move us in the opposite direction. Instead of effectively addressing illegal fishing it could introduce a culture of non-compliance where those detected would be confident that any penalties imposed are lower than the economic benefit from the illegal fish retained from the fishing trip. As a coastal state with responsibility for protecting some of the richest fishing grounds in the EU and with a fishing industry almost completely dependent on sustainable fish stocks in our own waters, it is of the highest priority that there are effective control regimes in place across all member states, including Ireland.

Illegal fishing, which in many cases involves non-declaration of landings of key commercial stocks or mis-reporting of them, is not acceptable in the marketplace or with consumers, the general public or the law-makers at EU level. Since 1959, Ireland has applied its criminal law in relation to fisheries matters and, since our membership of the European Community, Ireland has applied the criminal law in the enforcement of fisheries policy. Current legalisation provides for graduated maximum penalties based on vessel size. However, it is important to understand that the larger vessels in our waters may have on board at any one time a catch with a value of several hundred thousand euros. Under the Sea Fisheries and Maritime Jurisdiction Act 2006 it is a matter for the individual court to decide on the level of fine appropriate on a case by case basis, taking into account the seriousness of the offence, size of vessel and its impact. These sanctions apply equally to Irish, Spanish, French or any other operator found to have infringed the rules.

In the case of most fisheries offences, the EU Common Fisheries Policy requires that the penalties must be effective, a deterrent and dissuasive and must involve depriving the wrongdoer of the benefit of his or her actions. Mandatory forfeitures are necessary to ensure that the State complies with its obligations. The potential fines and forfeitures, therefore, are at a substantial level and I am legally advised that under the Irish legal system such penalties would be viewed as criminal in nature and therefore could only be administered by the courts by virtue of Article 34 of the Constitution which provides that:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

In the circumstances, a defendant is entitled to have the matter dealt with in open court with the full protections of the law and a jury trial, when faced by a potential penalty above certain limits. Continental systems governed by civil law have a different approach and it must not be assumed that we could adopt the sort of system which may be in operation in much of Europe.

It is of vital national interest that an appropriate regime is in place to protect fish stocks from any illegal fishing by all the fleets operating in our waters. This is necessary to ensure that the long-term future of coastal communities is protected but also, critically, to avoid financial penalties being imposed on the State and the Irish taxpayer. All member states, including Ireland, are under close scrutiny by the Commission. In the case of France, in 2005 the European Court of Justice imposed a fine of €20 million together with a fine of €57.8 million every six months until the appropriate level of regulation was applied to the fishing industry. The EU Commission had brought forward an EU infringement case against Ireland in 2005 and 2006 on control failures. The actions taken by the State involving a new legislative framework, the establishment of the independent Sea Fisheries Protection Authority and increased staff for land based controls has resulted in the EU Commission not proceeding with the infringement case and imposing similar fines on Ireland. However, in the event that the Irish authorities are judged by the EU Commission as rowing back on the commitments made in 2005 and 2006 to deal effectively with illegal fishing, the infringement case could be reactivated.

Successive fisheries Ministers have seriously considered the imposition of administrative sanctions following representations from the Irish fishing industry. On a number of occasions the advice of successive Attorneys General has been sought on this approach. The legal advice is that imposing sanctions such as those set out in the Fine Gael Bill would undermine the existing legislative framework, allowing offenders to avoid the very serious penalties, prosecution and forfeiture of gear by payment of a fine of €1,000, or less.

The Irish legal system, in principle, permits the operation of a fixed penalty notice system in respect of minor penalties which afford the person an opportunity of paying the fixed penalty and avoiding criminal prosecution. Under such a system, fines are only imposed where they are accepted, and if a person wishes to dispute the alleged offence, then the matter is tried by a court. The Fine Gael Bill purports to follow that system. However, it proposes to provide that in the case of significant offences contained in tables 1 and 2 of section 28 of the Sea-Fisheries and Maritime Jurisdiction Act 2006, in respect of which very serious penalties can be imposed in the event of conviction, including fines and forfeiture of gear, a person can avoid prosecution by payment of a fine of €1,000 or such lesser amount as may be prescribed. In other words, under the Fine Gael Bill the potentially very significant penalties currently provided for in the fulfilment of EU law obligations that take account of the substantial financial reward possible from illegal fishing can be avoided by payment of a small sum of money on foot of a fixed penalty notice. Under the current system a judge can determine the gravity of the case and apply the level of fine which he or she deems appropriate.

The proposed fixed penalty notice system from a fisheries protection perspective is likely to be counter-productive in current circumstances. The only legally acceptable approach would involve applying the provisions of the Fine Gael Bill to minor offences which currently are not prosecuted or are dealt with by means of a warning. In effect, the acceptance of the Fine Gael Bill would require the creation of a new tier of offences which are currently not prosecuted. This will have the effect of increasing the bureaucratic burden on the industry and diverting the limited resources from the detection of serious offences to the administration of minor infringements. This can hardly be good for the Irish fishing industry.

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