Michael Creed (Cork North West, Fine Gael) | Oireachtas source

With regard to the momentous decision that this House will be asked to vote on next Tuesday - I appreciate the period between this debate and then - the House must look at the process by which it takes significant decisions like this. As the Government representative I am challenged by a wall of different views and it is entirely inadequate to get across the complexity of the message involved at the heart of this in the very little time afforded to the Government in Private Members' time. That is not any reflection on Deputy Gallagher, and I appreciate his long-standing concern on this issue. We have had long-standing engagement on it. What we are about to do and reflect upon is extraordinary and significant. I will put it in financial terms.

There is €37 million of funding available to us under the multi-annual financial framework, MFF, which is immediately in the firing line. There is over €200 million available in the MFF that supports the fishing industry in many ways, including processing, improved gear selection etc. That could be further jeopardised. We should also bear in mind that back in the early 2000s, the French were slapped with a fine for non-compliance with fishery regulations of €50 million every six months. We are about to embark on something that has enormous financial significance and the Government's opportunity to respond to this initiative amounts to two ten-minute slots in a debate. This is the only opportunity available to Deputy Gallagher but now is an opportune time to reflect on the gravity of what we are considering.

Another point being made loosely is what would happen if only the Government acted "legally". I ask Members to think about that. It has also been a criticism that we have been here since 2014 and there was a statutory instrument in 2016. The point was made by Deputy Pearse Doherty but that statutory instrument stands approved by this House. It is something we must reflect upon in the context of a vote that may take place next week. The argument was made that this Government is being reckless in the context of the Supreme Court ruling. It was right and proper that we waited on the High Court adjudication and the appeal to the Supreme Court before acting on a 2018 statutory instrument, and that is exactly what we did. That ruling did not come until December 2017. We have not hung around or prevaricated. We moved appropriately after a Supreme Court adjudication, which made two very distinct and important findings.

It indicated it is appropriate to proceed by way of administrative sanction through a statutory instrument. For the first time, it was confirmation that we can have administrative sanctions by way of a statutory instrument. On narrower grounds it found against the State and therefore the 2014 statutory instrument fell on the basis of the burden of proof. The 2018 statutory instrument has totally responded to the High Court ruling and the burden of proof has been changed entirely. Many Members have called it unfair, with Deputy Murphy O'Mahony saying somebody is guilty until proven innocent, but that is not the case. Many Deputies who spoke have not read the statutory instrument in detail, and it has much detail addressing each and every finding in the Supreme Court ruling.

Deputy Gallagher made a number of points, apart from his protestations that he is in favour of administrative sanctions, as he should be. This regulation was negotiated and approved by a Fianna Fáil Minister. It is prescriptive and there is no wriggle room. It is what we are implementing by way of statutory instrument. Deputy Gallagher indicated he is in favour of a points system but objected to the level of proof being "balance of probability". The Supreme Court stated quite clearly that we can have an administrative sanction regime - a European points system - but the burden of proof for such administrative sanction is the balance of probability. It is not "beyond reasonable doubt", which is the criminal sanction. Deputy Gallagher must make up his mind as to whether he wants to abide by the Supreme Court ruling or a hybrid system unknown to anybody with on one hand a balance of probability and, if we do not like that, an option of beyond reasonable doubt. The Supreme Court ruling in December 2017 clearly stated we can have a balance of probability administrative sanction regime.

Access to courts is provided for on a point of law. What else would one want access to the courts for other than on a point of law?

I very much take the point made by Deputy Eamon Ryan. I think his point was subsequent to that of Deputy Murphy O'Mahony, but Deputy Murphy O'Mahony again brought into question the integrity of a State agency. Would we attack the Garda in this House like we feel free and willing to attack the SFPA and to impugn its integrity and its commitment to doing its job right and proper? I do not think we would. We certainly would not do so with the Garda and we should not do so with the SFPA.

A point was made about the sale of vessels and how that is being dealt with in the statutory instrument. I wish to quote from the EU regulation that was negotiated by Fianna Fáil. It states, "The points assigned shall be transferred to any future holder of the fishing licence for the fishing vessel concerned where the vessel is sold, transferred or otherwise changes ownership after the date of the infringement." The criticism in this regard of the statutory instrument appears to me to be that we did not leave a loophole such that one could shift the tonnage or in some way diminish the impact of the sanction of points because one could shift tonnage in a way that minimised the impact of the conviction. The regulation is effective in this regard, and it is right that it should be so. This has been spun, of course, as an attack on the whole fishing industry, but nothing could be further from the truth. Who fears a points regime? The fishing industry? Only those who break the law fear such a regime.

To take up the point Deputy Danny Healy-Rae made, this is not about minor fishing infringements; this is a regulation that is specifically designed for serious offences. It is not about the generality of the fishing industry, which, by and large, is law-abiding. However, those who commit serious offences deserve the full sanction of the law and I do not think anyone disputes that. However, to judge from the contributions, one would think we want to create a fog and to have a system of administrative sanctions but administrative sanctions on a "beyond reasonable doubt" evidential standard. That hybrid does not exist, Deputy Gallagher. We need to be realistic and fair about what we are talking about. If this were only about timelines and oral hearings, I am sure we could fix this very quickly. However, there appear to be much more fundamental issues at stake here about whether we accept the findings of the Supreme Court. That is, I think, what is at issue. I slightly digress, but Deputy Calleary, as a legal person, must have smirked in some respect about the issues surrounding the Supreme Court ruling and the hybrid evidential standard being advanced. However, he did talk about the inshore fishing industry, and we currently have under way a consultation for the inshore sector. I look forward to the support of those who spoke very eloquently about the fishing industry and the inshore sector in the context of the recommendations that might come to me in due course about how we might best protect those in the inshore sector to ensure they can make a living in a challenged environment.

I made the point earlier to Deputy Pearse Doherty about the 2016 statutory instrument. We had the 2014 statutory instrument. That was the subject of a High Court and, most recently, a Supreme Court ruling. The 2016 statutory instrument, which Deputy Pearse Doherty, for some reason, seems to think he voted down, was not voted down. It stands approved by the House, and we will have to reflect on that.

As I said at the outset, the process for dealing with something as significant as this is inadequate. This is the first time the House has sought to annul a statutory instrument, and we should not do that without reflecting quite seriously on the consequences. The consequences are very significant in terms of the financial cost to taxpayers. We are not talking about small change here; we are talking about many millions of euro of taxpayers' money, money that is invested to protect the best interests of the fishing industry. I stand by the fishing industry. It is my job to stand by the fishing industry and I am proud to do so and to make efforts to build an industry that can achieve its potential. It is interesting to hear the contributions concerning our entry into the European Union and how it might have been sold out etc. Our industry today is multiples the size it was when we joined the European Union. Our industry then was by and large an inshore industry. We now have a fine fishing industry and we look for the maximum possible sustainable opportunities for that industry. Key to this is having an effective sanctions regime for those who put the livelihoods of the majority in jeopardy by unsustainable fishing practices. That is in essence what is at the heart of this matter. It is about penalising the few who are serious lawbreakers. This is not for minor offences.

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