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

I thank colleagues. Deputies have proposed an amendment to impose residency requirements on the owners of Northern Irish sea-fishing boats. At the time of confirming the voisinagearrangements in the 1960s, reference was also made to the requirement to be permanently resident in the Six Counties. With the passage of time, however, we must acknowledge the changed realities within which we operate. Not least of these changes is the fact that citizens of EU member states, including Ireland, have the right to reside in any part of the European Union. Freedom of movement and residence for persons within the European Union is the cornerstone of Union citizenship established by the Treaty of Maastricht in 1992. The Deputies' proposed amendment is also not compatible with the reality of corporate ownership of sea-fishing boats. As stipulated in the Treaty on the Functioning of the European Union and reinforced by the case law of the Court of Justice of the European Union, the freedom of establishment and the freedom to provide services guarantees mobility for businesses within the European Union. I cannot accept an amendment which proposes the imposition of illegal provisions. If we were to exclude corporate ownership as a principle for access to the zero to six nautical mile zone, it would also impact on our own sector, perhaps to a greater extent. Some of the allegedly foreign owners of Northern flags of convenience could well be Irish investors, an issue I recall one Senator alluding to on Committee Stage in the Seanad.

I will read to the House excerpts from the High Court judgment of Mr. Justice Birmingham, which are of direct relevance to this issue. He said:

The structure of the fishing industry in Europe and indeed in Ireland has evolved in the half century since the exchange of letters occurred.

He went on to say:

It may well have been the case that in 1964 boats were owned and operated by individuals and that it was realistic to think in terms of permanently resident individual fishermen. However, almost 50 years on, where vessels are larger and more sophisticated, corporate ownership is now the norm, as is illustrated by the fact that the corporate plaintiffs are each the owners of a vessel. It seems to me that the arrangement entered into is robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time.

The Supreme Court accepted the High Court's analysis of the arrangement. The following is a quotation from Mr. Justice O'Donnell's judgment:

In particular I agree that reciprocity is only required at the general level of fishing, and is not required at the level of each species. I also accept that the arrangement must be a flexible one if it is to permit the fishing now carried out.

We must remember that the Bill is about reinstating arrangements under existing neighbourhood relations. We can still go North and, by virtue of the Supreme Court decision, they cannot come South. Equally, they have not changed the rules for us when we go North. No particular restrictions have been imposed on Irish sea-fishing boats for corporate owners or in relation to residency or otherwise. We are only looking to restore that which existed prior to October 2016. Regardless of Brexit or anything else in the context of the Good Friday Agreement and in the context of harmonious relationships North and South, it is only right and proper that we would restore that reciprocal arrangement. "Restore" means just that. That is what the Bill is for, not any other purpose.

Deputy Clare Daly raised the point about a Northern Ireland or UK register open to boats from Scotland, Wales or England. That is not in fact the case. We have been informed by the Northern Ireland authorities that there is a Northern Ireland register. When a boat is registered, the owner must indicate a port to which the boat is attached and a region within which it operates. There is a specific Northern Ireland register, which is important in the context of capacity to enforce and so on. A point I read out alludes to something Deputy Pringle said. If we were to accept the amendment he proposes, it would equally adversely impact on our own boats in the context of corporate ownership, apart at all from the fact that it would be illegal to do so in the context of European law. The judgments reflect the fact that things have moved on substantially from the 1960s and we have different shades of ownership now. We have interests in both the register we operate and, according to the commentary I have from Members, interests in the Northern Ireland register which, if they were DNA tested, may not be of entirely Irish origin. That is part of the European family we are in and it involves freedom of movement, freedom to deliver services and freedom of establishment. To impose a restriction as proposed, in particular when no reciprocal restriction is placed on our boats going North, would be counterproductive. The cross-ownership point to which Senator Mac Lochlainn referred in the Seanad regarding a boat leaving Donegal and finding that by virtue of that, it could not turn right out of Lough Foyle, brings that home. There are numerous persons we are aware of who are resident down here and who have registered boats in Northern Ireland. The law of unintended consequences applies, quite apart from the fact that it is illegal to accept the proposal under EU law.

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