Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

I am glad to have the opportunity, on behalf of the Labour Party, to contribute to this debate, which centres on the implementation of SI 89 of 2018, the European Union (Common Fisheries Policy) (Point System) Regulations, which appears to supersede SI 125 of 2016 which was signed into law on 1 March 2016 by the predecessor of the current Minister. There has been a significant amount of debate on this issue and the Minister has put forward his views on putting in place a system that derives from the Common Fisheries Policy and the application of an EU regulation from eight or nine years ago.

I find it astounding that we have reached this impasse now. At the last hour we are putting in place a penalty points system that appears to be permitted under the EU regulations. The critical issue lies with the format in which it is going to be implemented in this country. There are a number of issues, but it is important to implement this. There should be a points system where people transgress, and there have to penalties to take cognisance of the nature of the transgressions.

Central to the application of any such system has to be a right of access to the courts if a person feels aggrieved by the imposition of a penalty. The Minister said we can have that on a point of law. That is his "out" in respect of the application. I did not realise this was coming up today. There is huge amount in it. I looked at the statutory instrument, which the Minister, Deputy Creed, sent to us, in the past hour. I think balance of probabilities will be hard. There will be a determination body with three members. The Minister assures us that they will be selected independently, but the SFPA will be involved in the selection and can get rid of them if it is unhappy with them.

If we are going to have a system, it will have to be robustly independent. It has to not just appear to be independent, but has to be seen to be independent. Perception becomes reality. If people feel aggrieved by that, they will rebel against it. It is very hard to see, in this context, how a quasi-judicial tribunal, which the determination body of three independent legal assessors will be, can work. These are given constitutional recognition under Article 37 of the Constitution. Normally, they work on the balance of probabilities. That is intended here but in respect of this, where reasonable doubt is intended to be the criminal standard to apply, it will be very difficult to set it up.Therefore, it would be better to give people right of access to the courts straight away.

I can see where the Minister is coming from. There is going to be a determination body, then a right of appeal and eventually time will run out. The three years will be gone because it is from the date of the detection of the offence that the penalty is applied, not the date of a successful prosecution. That is an issue. I cannot see how a tribunal can be set up in that way. It is not going to be easy. I refer to points of natural justice - nemo judex in sua causa and all of those things. Anywhere there is a criminal penalty or sanction involved, people are entitled to those protections. They are laid down constitutionally in our laws and we cannot deviate from them irrespective of whether we find that administratively simpler or whatever. We have to maintain those.

I am confused about this. This would be a quasi-judicial administrative body going to operate to a criminal standard. I concur with Deputy Gallagher's observation that all bodies contained in the statutory instrument must be robustly independent. There should be no crossover in respect of roles or inputs. There should be none of that. He made reference to the SFPA having the power to choose or remove the determination officers. No such power should be vested in the SFPA. We have to move away from that. On the time for appeals, there are 30 days for a social welfare appeal. That is for people who are arrested at home at an identifiable address. I am not an expert on fishermen - other than the boats on Lough Ennell or Owel, which is different from fishing the high seas - but some of these people are working from various addresses or working at sea and may not come back for several days or nights. The five days, therefore, would be gone.

There are a number of points that can be addressed easily by the Minister. As one of my Labour Party colleagues said, I am eager to ascertain the nature of Deputy Gallagher's rationale for rejecting this. It is historic. Statutory instruments have been subject to a virtual nod and wink policy in this House. I have spoken on this on a number of occasions and said that it is not appropriate that statutory instruments be used. I refer particularly to where significant issues of policy implementation are being addressed by a secondary legislation route. They should be subject to scrutiny by debate. It is hard to envisage putting in place an administrative framework for the imposition of a criminal sanction by virtue of a stand alone quasi-judicial body and perhaps it would be safer to have access to the District Court secured.

Deputy Pat The Cope Gallagher has done us a service. Forgetting the nature of what is going on here, but there are significant elements of legal implications and impositions in statutory instruments. They have been whooshed through with nods and placed in libraries and all over the place. It is a bad practice and it should not be done. They have been subject to court interventions on numerous occasions. I can see why; I know the background to this with the 2009 regulation. It facilitated the implementation of a points system.We seem to have been dilatory in getting this in place. I know about the Supreme Court judgment in December where the State was found against on a number of issues of a technical nature. It permitted the State to implement a stand alone system. It appears to be of an administrative nature rather than separate to a persecution through the courts and such a system could be facilitated by the statutory instrument system.

I will not argue with Mr. Justice Donal O'Donnell. He is a leading Supreme Court judge and probably one of our finest jurists. He indicated that it should operate efficiently and appropriately. The veil of constitutionally guaranteed legal protections which one has would have to envelop any system put in place. An oral hearing in respect of an appeal is an absolute prerequisite if we are to have a system. This is very important. We have it in agriculture where we are setting up a new system and debating it even now. It is very important in the interests of the wider fisheries industry also. Money will be withheld and we will have EU infringement proceedings from the Commission.

The Minister, Deputy Creed, Deputy Gallagher, the Fianna Fáil Party and any other interested parties should get together immediately and reach an amicable compromise in respect of what needs to be done. Any more delay will see Ireland subject to daily fines once the EU Commission moves to the formal infringement proceedings, as the Minister of State, Deputy McEntee, said. Once that happens, money and scarce resources will be wasted. Ireland must comply fully with its obligations under EU law. We have had proceedings in 2014, 2016 and now in 2018. Let us put our heads together and resolve this once and for all. I support that move.

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