Martin Kenny (Sligo-Leitrim, Sinn Fein) | Oireachtas source

I move amendment No. 1:

To insert the following after “hereby annulled”:

“and calls on the Government to introduce regulations that will provide redress to the courts in circumstances where the complainant is not satisfied with a sanction made under the regulations, in order to give effect to the ruling of the Supreme Court of Ireland on this matter.”

I thank Deputy Gallagher for putting forward the motion. The issue, which has been around for some time, concerns penalty points for fishermen. It is important to state that it is appropriate that penalty points would be applied to fishermen who are in breach of the rules. Everyone agrees with that and we need to see it happen. We want to see a statutory instrument which can bring that into effect in a way that is measured and that works for everyone involved in the industry, including fishermen.

The document which has been produced contains many parts that we take issue with. In the first few pages, one of the first things we come across is the issue of proof and the fact that this will be based on the "balance of probabilities". This is one of the fundamental issues for most people. We deal all the time with individuals who are in some way slightly on the wrong side of regulations. Many fear that, at times, they could be treated badly if they have a past record and may have breached a rule such that each time they start over, it could be held against them and they might not be treated as fairly as if it was their first time to be outside a regulation. Many people would have an issue with that and it is where the problem with the balance of probability arises. The balance of probability is a very loose way of looking at this and it needs to be re-examined.

There is also the question of the independence of the determination panel because it is so closely linked to the SFPA which is a problem for some. Ultimately, the decision as to whether there is a serious breach is going to be in the report that comes from the SFPA and that report comes to the determination panel, which is made up of three members who are appointed by the SFPA. There are questions to be asked and it is only fair that the Minister uses this opportunity to clarify the situation.

Another issue that alarms me concerns the oral hearings. The document, on page 6, states, "The Determination Panel, having regard to the interest of justice, may decide at its discretion, whether or not to conduct an oral hearing for the purposes of the determination." Many of us deal with the Department of Social Protection, the Department of Agriculture, Food and the Marine and sections where there are meetings and a requirement to go before determination panels to sort out issues. In all cases, there is an automatic right to have an oral hearing and the fishermen can go in to make their case. It would be more than appropriate that this is looked at again to ensure they can make their case and that the oral hearing is acceded to in all cases.

Deputy Gallagher referred to the timeframe of ten working days. To make a request for a hearing within ten days is too tight a timeframe and I believe it needs to be broadened out considerably in the interests of fair play for everybody involved.

Other issues that jump straight out include the period relating to appeals. The period allowed to make an appeal under the regulation, at 20 working days, is too short. There needs to be a recognition that we are dealing with fishermen who are out at sea much of the time and we need to find a way of dealing with these issues.

There is also the question of criminal proceedings and what role the courts might have, an issue to which we refer directly in our amendment. There is a feeling, from the fisherman's point of view, that if all else fails, they can go to the court, have a proper hearing and put their case, particularly if they cannot put it anywhere else. If they are refused an oral hearing, however, and the determination panel and the appeals office find against them, where have they to go? They have nowhere to go.

That is the issue. They need to know that in the interests of fair play, they can go to court, put their case and have it heard. At least they then will feel there is a sense of fair play. At present, the fishermen to whom I have spoken, and they are all around the country, are of the same view, that is, that the odds are stacked against them. If we wanted to do this fairly we would make sure to represent the fisherman first. We understand there is an obligation under EU regulations but the first port of call is to ensure the fisherman is looked after in all of these cases.

The only place we see anything about this is where it states that criminal proceedings are not valid. It states "points assigned to a holder of an Irish licence remain assigned regardless of any criminal proceedings pending, or the outcome of any such proceedings, in respect of the serious infringement concerned." This is a draconian way of dealing with an industry that is on its knees and needs help. This is an opportunity for the Minister to rectify that by withdrawing the statutory instrument and it is in the interests of fair play that he find a solution that works for everyone.

The statutory instrument also states that an appeal may be made to the appeals office not later than 20 working days from the day of notification of the proposal by the Sea-Fisheries Protection Authority to assign the points to the fisherman. Again, 20 days is too short a timeframe in which to get it done and this provision needs to be looked at again. It states the appeals officer may decide, at his or her discretion, whether to conduct an oral hearing. Again, there needs to be a sense of fair play here. All people are looking for is the sense that common justice will apply. It goes on to state:

The Appeals Officer shall confirm that the points shall be assigned to the holder of the licence where on the balance of probabilities, he or she considers that the alleged serious infringement in respect of which it is proposed to assign points—

(a) did occur,

and occurred according to the regulations.

The fishers who are doing their best and who want to and who are playing by the rules fear that if they make a mistake, they will be dragged over the coals and made an example of. That is not fair. I do not know who wrote the statutory instruments or where they came from but it seems what we have now is a copy-and-paste job, with a few little changes, from what was rejected by the Supreme Court. That is the issue. We need to come up with something that looks after the people out at sea who are trying to get their livelihood from this industry, which is under pressure so much of the time.

The statutory instrument also states a person may appeal to the High Court on a point of law only. If it is not only on a point of law it is only on the process. People need to be able to go to court on the overall problem they have encountered and to have their full case heard and they need to know they will get fair play. If that is not going to happen, the statutory instrument is not up to what we need.

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