Charlie McConalogue (Donegal, Fianna Fail) | Oireachtas source

I acknowledge Sinn Féin and its motion. I apologise to Deputy Mac Lochlainn and a few of his colleagues who spoke at the start of the debate for not being able to be present for their contributions. I heard it while I was in transit but I would like to have been here in person, although the Minister of State, Deputy Heydon, was. I thank everybody for the many contributions on the motion. Many Deputies took the time to take part in the debate and to give us the benefit of their views, and it has been a worthwhile debate in that regard.

This is an important issue that my party took seriously when on the Opposition benches. That is why I, as the then Opposition spokesperson for agriculture, food and the marine, alongside the then Deputy Pat The Cope Gallagher, who was our spokesperson on fisheries, tabled a motion in the House in respect of the penalty points statutory instrument introduced in 2018, seeking amendments and making a clear request, for which we got the support of the House, to have those amendments considered. The amendments were considered in that period of two years and legal advice sought on how the SI might be amended in a way that would take on board the fishing sector's concerns and, at the same time, leave us compliant with our obligation for a control authority in the Common Fisheries Policy to have a system of policing our seas and ensuring that the Common Fisheries Policy was being implemented and overseen.

The SI, which was signed into law by the Taoiseach at the end of August, took on board two of those amendments, in respect of the need for a right to an oral hearing with the determination panel and the appeals officer and of the opportunity for additional time for making submissions and for seeking those appeals. The other amendments that were proposed, having been legally considered, were determined not to be possible to accommodate in the SI while keeping us compliant with our obligations under the Common Fisheries Policy and implementing the regulation, which had been outstanding since 2012.

I acknowledge Deputy Christopher O'Sullivan's engagement with producer organisations and his input to me over the past period, as well as the many other Deputies who have spoken to me about the matter. I also acknowledge the meeting I had with producer organisations where we discussed this in detail and where I offered them the opportunity to come forward with further submissions to me that they wished me to consider if they believed that an argument could be made that our obligations could be complied with and the requests accommodated. That door is still open. Our obligation is to ensure we implement and follow legal advice on the statutory instruments we bring forward and I will outline some of the key considerations that have informed the content of the statutory instrument, which was brought forward at the end of August.

I know that everyone in the House wants there to be a strong and vibrant fishing industry that supports employment in our fishing fleet, fish processing and ancillary activities in our coastal communities. My Government colleagues and I, although we are here discussing this issue, are all very aware of the important moment this is for the fishing sector in respect of Brexit and ensuring the best outcome and that the sector is protected in that regard. As the Minister of State, Deputy Heydon, outlined earlier, the conservation of fishing resources is in everyone's interests and is vital for the future of the Irish fishing industry. An effective regulation implementing the EU points system is necessary to protect the vast law-abiding majority of industry to preserve the precious and valuable resource in our waters, for our fishermen and future generations.

The delay of more than eight years in implementing a points system needs to be addressed, particularly given that the European Commission has commenced formal infringement proceedings for non-implementation of the points system with potentially very significant fines that Ireland may have to pay as a result. The Commission has also warned that up to €37 million in EU funding for the fishing sector may have to be suspended indefinitely until Ireland complies with the requirements of EU law and implements a points system. One of the main issues of contention in respect of the application of points has been the possibility of points being assigned outside of our courts system. The 2017 Supreme Court judgment found in favour of the State's position that it is permissible to have a stand-alone system separate to a prosecution through the courts and that it is permissible to provide for a stand-alone system pursuant to a statutory instrument. The judgment is clear on this as the court understands that criminal prosecutions could take at least two years, making the points for licenceholders ineffective in many cases because points are to be applied from the date of detection and lapse three years from that date.

It has also been suggested that the licenceholder should have a right to a full rehearing of the case before the High Court. The legal advice I have is clear that under the Constitution, the High Court has "full original jurisdiction" and can hear all matters of law brought before it. The legal advice is that it would be highly anomalous, if not unprecedented, to provide such a full High Court rehearing of a matter first governed by the procedures set down in the 2020 SI. In addition, it would delay the application of points, which would run against the timeline set down in the EU regulation that points apply for three years, with a commencement date of the date of detection. To that extent it would hinder the effective implementation of this EU law and would not meet Ireland's obligations to implement these EU provisions. The High Court retains a supervisory and review capacity that provides for an appeal on a point of law to the High Court, which is entirely in keeping with statutory review and appeal procedures of this nature. Accordingly, the legal advice is that while the High Court retains the constitutional authority to enjoy full original jurisdiction over any legal proceedings, this authority has been circumscribed by the specific appeals mechanisms set down in primary and secondary legislation, which overwhelmingly limits just High Court appeals to reviews on a point of law.

The issue of points following capacity was raised. Where points have been built up on a licence in respect of serious infringements and a further serious infringement would result in a suspension of the licence, it is essential that the points are managed so as to dissuade further serious infringements. The SI provides that the points cannot be negated through being subdivided by the licenceholder and distributed in reduced numbers among different fishing vessels. A proposal from industry that would allow points to be subdivided by the subdivision of capacity among fishing vessels, so that each vessel would hold a smaller number of points, was examined but was not accepted as it was deemed that it would undermine the effectiveness of the system and not meet the objective of the EU regulation.

The issue of the standard of proof to be used by the determination panel and the appeals officer was also raised. The legal standard "beyond a reasonable doubt" is almost entirely confined to criminal trials and is not applicable to proceedings of a civil nature, where the standard used is the "balance of probabilities". This is the standard used for the points system and is an appropriate legal standard.

The issue of points for licenceholders being removed where the master or owner is found not guilty in criminal proceedings in respect of the infringement was also debated. This proposal would involve both systems being interlinked and they would not stand alone from each other. There are separate systems involving separate standards of proof between the points and a criminal prosecution. It would lead to the confusion and conflation of evidence and render elements inadmissible. In addition, the legal advice is clear that points under EU regulation are intended as additional to a criminal prosecution. Accordingly, it could not be argued that Ireland has both criminal and points systems, as required under EU regulation, if we operated the system in a manner whereby the criminal proceedings completely eclipsed the points system.

Deputies also raised the issue of infringements and the points to be assigned in that regard. An annex of the EU implementing regulation sets down the details of the infringements and the points to be assigned. Furthermore, the EU regulations on this matter are very prescriptive for licenceholders, leaving little room for further negotiation. Fixed at EU level, for example, are the list of serious infringements, the number of points to be assigned for each such infringement, the periods of suspension and disqualification, the deletion of points after three years and the deletion of points in certain other circumstances. The issues being raised by industry representatives were previously raised on a number or occasions, including with current and former Deputies. All such proposals were carefully examined and any that were considered acceptable from a compliance and legal perspective were accepted and incorporated into 2020 SI. As I outlined, these relate primarily to an unqualified commitment to an oral hearing, should the licenceholder request one, and an extension of certain timescales, such as for a licenceholder to make written submissions to the determination panel and appeals officer.

If the House were to vote to annul SI 318 of 2020, this would leave a significant vacuum in the law in this area and impact how Ireland would respond to the EU Commission in respect of the infringement proceedings taken against Ireland and the withholding of EU funds under the European Maritime and Fisheries Fund, EMFF. This would be acting in a way that would show irresponsible indifference to the consequences, not only for the fishing industry, but also for the public purse and for Ireland’s reputation as a member of the European Union.

I have clearly outlined the process that has taken place in examining the proposals and amendments suggested in 2018. I have outlined those that have been taken on board and the reasons the others were not taken on board. This is the best and most balance statutory instrument that can be had that ensures we are compliant with our obligations under EU regulations to apply a penalty points system.

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