Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I thank Deputy Gallagher and the other Deputies concerned for providing me with the opportunity to update the House on certain matters relating to the European Union (Common Fisheries Policy) (Point System) Regulations 2018, SI 89 of 2018.

Nine years ago, following a European Court of Auditors review on the enforcement of fisheries law, it was agreed by Ministers at EU level that a minority of vessels were not respecting the rules and were, through reckless overfishing, endangering the long-term sustainability of fish stocks on which all fishermen rely. After much debate, the 2009 EU control regulation was agreed by the Council of Ministers. The deadline for its introduction in member states was 1 January 2012, more than six years ago.

The control regulation provided for a points system for serious infringements targeted primarily at the licence and therefore the licenceholder. The primary purpose was to try to ensure a level playing field for those fishermen who were respecting the rules. The new EU points system is designed to complement and not replace national sanctions and ensure a level playing field across the EU.

This regulation requires effective and dissuasive sanctions complemented by a points system for serious infringements. Serious infringements are activities that contribute to overfishing and depletion of fish stocks. They include landing illegal "black" fish, not accurately declaring what was caught, falsification of records, concealing, tampering with or disposal of evidence and obstructing officials carrying out an investigation. Crucially, this EU points system is applicable to all fishing vessels that fish in the Irish 200-mile zone, both Irish and foreign.

Ireland introduced the EU points system for licenceholders in 2014, by way of secondary legislation, SI 3 of 2014. It operated for a period but, as the Deputies have pointed out, it was challenged successfully in two cases by licenceholders who had been assigned points for serious infringements.

4 o’clock

The High Court judgments were appealed to the Supreme Court, which examined the provisions of the 2014 statutory instrument. One of the key issues was that points should only be assigned following conviction in the courts. The Supreme Court judgment of Justice O'Donnell states, "In my view it is clear that such a system of points allocation [that is, the stand-alone system] is permissible under European Regulations." The Supreme Court judgment found that it is permissible to have a stand-alone points system pursuant to a statutory instrument so as to enable timely and effective implementation of the EU points system for sea fishing boat licence holders. The Supreme Court stated:

The possibility of points being allocated to a licence and remaining on that licence even after transfer, is likely to add to the dissuasive effect of the regime for enforcement of fishing rules. The possibility of points being allocated even before criminal proceedings are completed, or even though the outcome of the criminal proceedings may be an acquittal, is not a reason to conclude that the stand alone system is incompatible with the European Regulations since that outcome will, if anything, increase the possibility of enforcement of the rules, and in dissuading operators and licence holders from permitting breach of them. A stand alone system of points allocation certainly does not weaken enforcement. It can also be truly said to be complementary to the existing enforcement regime since it enhances enforcement and therefore compliance. In my view it is clear that such a system of points allocation is permissible under the European Regulations.

The Supreme Court found that the 2014 statutory instrument procedures were not adequate. That statutory instrument set up, in effect, a single decision-making process with the onus of disproof on the licence holder and did not comply with fair procedures. This is addressed in the current statutory instrument we are discussing. It reverses the onus on the licence holder contained in the 2014 statutory instrument and places the burden of proof on the control authorities. It provides for the separation of the detection of a serious infringement by the control authorities and the determination by an independent determination panel of whether, on the balance of probabilities, a serious infringement has occurred. The determination panel now comprises three independent legal professionals nominated by the Attorney General. The licence holder may request an oral hearing of the case. The SFPA provides a purely supportive administrative role, appointing the Attorney General's nominated professionals and providing all reasonable facilities and services to the panel. These practical services do not cut across the independence of the determination panel.

This 2018 statutory instrument provides for an independent appeals officer to review the decision of the determination panel and he or she may, at his or her discretion, decide to conduct an oral hearing. The accumulation of points for persistent serious infringements of the rules of the Common Fisheries Policy will lead to the suspension of a sea-fishing boat licence for periods from two months to one year. In extreme cases, persistent serial and serious fisheries infringements could lead to the permanent withdrawal of a licence.

Deputies will be aware that, on 17 May 2018, the European Commission issued a letter of formal notice against Ireland for non-compliance with the required EU points system for licence holders of sea-fishing boats and a separate system for skippers of vessels. It has given Ireland two months to submit observations before deciding if it will proceed to pursue the infringement with the European Court.

There are also serious financial implications with regard to the EU co-funding of Ireland’s EMFF operational programme. The EU is committed to contributing €37.2 million towards the €44.5 million cost of EMFF control investments. This EU contribution represents 83.6% of these costs. The Commission is withholding payment of these moneys and is moving to formally suspend payment. To date, a €2.7 million claim has been withheld and a further €4 million claim is about to be suspended. Ultimately, Ireland will lose the entire €37 million unless we fully comply with these legal requirements. This is the stark reality of what may happen should this House vote to annul SI 89 of 2018.

The points system is necessary as an effective measure against the minority - foreign or Irish - who break the rules. It is necessary to protect the vast majority of our law-abiding industry and preserve the fish stocks for all fishermen and for future generations. That is a good enough reason to support this statutory instrument; the danger of jeopardising almost €40 million in EU funding by playing to the gallery is another. The majority of fishermen in this country want to see points applied to those who commit serious infringements, jeopardising the future for everyone. A vote to annul this statutory instrument would be a vote for that small minority of serious offenders who want to act with impunity. I urge the House to protect the future of our fishing industry and to reject the motion.

See this speech in context