Tuesday, 21 September 2021
Sea-Fisheries (Miscellaneous Provisions) Bill 2021: Second Stage
"That the Bill be now read a Second Time."
I am pleased to introduce the Sea-Fisheries (Miscellaneous Provisions) Bill 2021 to the House. By way of background I should advise that EU Council Regulation No. 1224/2009, known as the control regulation, establishes a community control system for ensuring compliance with rules of the Common Fisheries Policy, CFP, and establishing a level playing field across the EU on fisheries control. The control regulation requires, inter alia, that member states implement a points system for serious infringements of the rules of the CFP committed by the master skipper of a sea fishing vessel. The points system is intended to promote compliance with the rules of the CFP and seeks to deliver on the CFP objective of ensuring proportionate, effective and dissuasive penalty points for serious infringements and must contribute to a level playing field in fisheries control across member states.
Serious infringements include the following: not fulfilling obligations to record and report catch or catch-related data; concealing, tampering or disposal of evidence relating to an investigation; and fishing without a valid licence, authorisation or permit. The system was due to be in place by 1 January 2012 and the delay in implementing it is subject to EU infringement proceedings at present. A negative judgement from the Court of Justice of the European Union in any such proceedings could cost the State significantly in lump sum and ongoing fines.
I should also inform Deputies that serious financial implications arise from the non-implementation of the points system because, as a condition of the EU contribution to Ireland’s European Maritime and Fisheries Fund, EMFF, programme, certain conditions must be fulfilled, including the requirements of the control regulation to legislate for and implement points systems for sea-fishing boat licenceholders and, separately, masters of sea-fishing vessels.
The EU Commission has suspended approximately €24 million to date. This means that the investigation undertaken and paid for by the Exchequer is not being refunded by the EU Commission. Investment is ongoing and thus the EU funds suspended will continue to increase. Ultimately, this will reach €37 million in 2022 unless this non-compliance is resolved. Once Ireland has enacted the necessary legislation and has put in place the related administrative procedures and resources, the Commission is then required to lift the suspension of payments.
In December 2019, the then Government approved the general scheme that provided where a serious infringement was alleged to have been committed by a master, he or she will have been given an option to accept a lesser number of points than would apply as a consequence of a successful prosecution. If the points were accepted, they would have remained assigned to the master irrespective of the outcome of the prosecution.
My Department reviewed the approach in consultation with the Attorney General in light of the subsequent developments. These included, in particular, infringement proceedings which are in progress and the importance of being in a position to assure the Commission that any schemes meets the test of being proportionate, effective and dissuasive. In that regard, Ireland is under significant scrutiny from the EU Commission from the ongoing EU administrative inquiry into Ireland’s fishery control system. Having considered all aspects, the Minister, Deputy McConalogue, was not satisfied that the EU Commission would accept the system which permits a master in serious breach of obligations to achieve a 50% reduction of the points set for that infringement by accepting the breach, as had been provided for under the 2019 scheme.
The Minister, Deputy McConalogue, examined all options in consultation with the Attorney General and came to the conclusion that the only scheme for masters that will assure the Commission of our commitment to an effective regime is to replicate the main provisions of the separate required EU points system for sea-fishing boat licenceholders, the arrangements for which are set down in the governing EU regulations. The licenceholder system has been implemented by means of an administrative system under secondary legislation, namely, the European Union (Common Fisheries Policy) (Point System) Regulations 2020, SI 318/2020.
The scheme for masters’ points now being proposed in the Bill follows, as far as is possible, the provisions of the existing separate licenceholders‘ system with regard to,inter alia, the list of infringements, the number of points assigned and the suspension thresholds as provided for under the EU regulations.
The period of the suspension is determined by the number of points accumulated. The higher the number of points accumulated, the longer the suspension. The accumulation of 18, 36, 54 and 72 points will trigger suspensions of two, four, eight and 12 months, respectively.
A master who has accumulated 90 points or more or has received five suspensions shall effectively be permanently disqualified from taking control of an Irish or foreign sea-fishing boat, wherever it may be.
The masters' points system proposed in the Bill also mirrors the provisions of SI 318/2020 as regards the licenceholders' points system in other respects, including that the same independent determination panel and independent appeals officer will determine on the balance of probabilities whether a serious infringement has occurred.
The procedures and timelines laid down in the Bill for the determination panel and appeals officer to make their determinations are similar to those provided for under SI 318/2020. The master can request an oral hearing before both the determination panel and appeals officer. A decision of the appeals officer to assign points can be appealed to the High Court, on a point of law. Points assigned to a master remained assigned, regardless of any criminal proceedings in respect of the serious infringements concerned. Points assigned to a foreign master will be notified to the relevant authorities of the relevant member state.
The Bill also provides that the Minister of the day shall establish and maintain a register of masters who are Irish citizens. A person cannot take charge of a sea-fishing vessel, unless he or she is registered and to do otherwise is an offence. The Minister may revoke registration or refuse to register a person, where incomplete, inaccurate, false or misleading information, in any material respect, is provided by that person. The person is entitled to make representations to the Minister, however, before any such decision is taken. Upon notification, the Minister shall record, on the register, the points assigned to the holder of an Irish fishing licence that relates to the master concerned. Where the master is a foreign master, the notification of the assignment of points will be made to the competent authority of the member state of which the master is a national.
The criteria for entry onto the Irish register will be relatively limited. A person does not need to have attained a level of expertise or have a clean criminal record, etc. The only conditions are that the master is an Irish citizen; is not, at the time of registration, assigned 90 or more points and has not furnished the Minister with inaccurate, incomplete, false or misleading information. Other than on consideration of those simple criteria, the Minister should not refuse a person entry onto the register.
The Bill also contains a section to facilitate the sharing of certain data between the sea fisheries protection authority and the Revenue Commissioners. Such data sharing already occurs in respect of other public bodies, such as between Revenue and the Department of Social Protection. It is proposed a framework be put in place that would allow for joint sharing of information for alleged fisheries and tax offences in the fisheries section. There are also various technical and miscellaneous amendments, most of which were identified during the period immediately after the enactment of the principal Act, the Sea-Fisheries and Maritime Jurisdiction Act 2006. They are primarily technical in nature and correct typographic and reference errors in the Act and would improve its overall operation.
I also draw the attention of Deputies to key matters provided for in the Bill, which were not provided for the general scheme of the Bill, as published. The opportunity is being taken to close a lacuna in primary legislation, to expressly preclude the possibility of a minor applying for a sea-fishing boat licence. The Bill makes provision for this lacuna to be remedied by stipulating that an applicant for a sea-fishing boat licence must be aged over 18, at the time of the application. The Bill amends the European Union (Common Fisheries Policy) (Point System) Regulations 2020, SI No. 318/2020, to provide that the Sea-Fisheries Protection Authority, SFPA, has an express power to assign points to the sea-fishing boat licence holder concerned, once it has been determined that a serious infringement of the rules of the Common Fisheries Policy has occurred. Another amendment proposed in the Bill, which was not provided for in the general scheme, is designed to correct a drafting ambiguity in section 28(5)(b) of the 2006 Act. Section 28(5)(b) provides for the forfeiture of fish and fishing gear, where a person is convicted, on indictment, of certain offences under the 2006 Act.
Deputies should be also aware that the general scheme of the Bill was subject to thorough pre-legislative scrutiny by the Oireachtas Joint Committee on Agriculture, Food and the Marine, in April and May 2021. The committee heard from key industry representatives and the Minister, Deputy McConalogue, also appeared before it, twice. The Minister acknowledged and thanked members of the committee for their time and a constructive discussion on the contents of the general scheme.
I will turn to an overview of the detailed provisions of the Bill. Section 1 clarifies the Act of 2006 means the Sea-Fisheries and Maritime Jurisdiction Act 2006. Section 2 amends section 2 of the 2006 Act, insofar as certain definitions provided for thereunder are concerned. Section 3 amends section 12 of the 2006 Act, to provide clarity around the publication of a notification in Iris Oifigiúil,as provided for thereunder. Sections 4 and 5 amend sections 13 and 15 of the 2006 Act, respectively, to provide for certain miscellaneous and technical amendments. Section 6 inserts into Part 2 of the 2006 Act, a new chapter, 2A, on the regulation of the Irish fishing masters, and provides for the establishment of a points system for masters of fishing vessels, as required by EU fisheries control regulation (EC) No. 1224/2009 and its implementing Commission Regulation (EU) No. 404/2011.
The Minister shall establish and maintain a register of Irish citizens who are masters of sea-fishing boats - the Irish fishing master register - and the points assigned each such master. The register shall contain certain details such as the master's name and address, contact details, number of points assigned, if any, and the date on which any such points were assigned. The control authorities, the Sea-Fisheries Protection Authority and naval service shall have access to, and may examine, the register for control purposes only. The Minister may refuse to register a person if his or her application for registration is incomplete, inaccurate, false or misleading. However, the person concerned may make representations to the Minister before any such decision is taken. It shall be an offence for a person to knowingly furnish the Minister with false or misleading information, when applying for registration.
A certificate of master registration shall be issued by the Minister, in respect of each person entered on the register. Data entered in the register shall be stored only for as long as is necessary for the operation of the register. It shall be an offence for an Irish citizen to take charge or attempt to take charge of an Irish or foreign sea-fishing boat, unless he or she is registered. As I have already outlined, the procedures around detection and notification of alleged serious infringements of the rules of the Common Fisheries Policy committed by masters and subsequent assignment of points by the Sea-Fisheries Protection Authority, closely resemble those provided for in the separate points system already in place under SI 318/2020, for the holder of a sea-fishing boat licence, established in response to the same EU legislation.
The accumulation of points will result in the suspension of a master from the register, that is, he or she will be prohibited from taking control of an Irish or foreign sea-fishing boat, wherever it may be. The period of the suspension is determined by the number of points accumulated. The higher the number of points accumulated, the longer the suspension. When the points are assigned to a master on the register, the Minister shall notify him or her of certain matters. A master who has been suspended or removed from the register is required to immediately inform the sea-fishing boat licence holder who engages, or proposes to engage, him or her as a master, of such a suspension or removal. It shall be an offence for a sea-fishing boat licence holder to employ a person, knowing that he or she has been suspended or removed from the register.
Sections 7 and 8 amend sections 16 and 17 of the Act of 2006, respectively, to provide for certain miscellaneous and technical amendments. Section 9 provides for the transfer of certain data between the SFPA and the Revenue Commissioners. Such data sharing already occurs in respect of other public bodies, such as between Revenue and the Department of Social Protection. Section 10 amends section 28 of the Act of 2006, to provide clarity in certain drafting matters identified therein. Sections 11 and 12 amend sections 37 and 54 of the Act of 2006, respectively, to provide for certain miscellaneous and technical amendments. Section 13 amends the Fisheries (Amendment) Act 2003 to, inter alia, rectify a lacuna to the effect that there is, at present, no legal impediment to a minor applying for a sea-fishing boat licence. Section 14 provides for certain amendments to regulation 7 of the European Union (Common Fisheries Policy) (Point System) Regulations 2020, SI No. 318/2020. Section 15 provides standard provisions for the title, citation and commencement of the Bill.
An efficient and effective master points system is necessary to protect law-abiding masters, who make up the majority of those in the industry, and to preserve this precious and valuable industry for all Irish fishermen and for future generations. The master points system proposed in the Bill will play a vital role in delivering on the Common Fisheries Policy objective of ensuring proportionate, effective and dissuasive penalties for serious infringements and contributing to a level playing field in fisheries control, across member states. Implementation of the points system is urgent, given the long delays since 2012, the ongoing EU infringement proceedings and the suspension of EMFF funding. Ireland is the only member state without a functioning master points system, a system over which the Government cannot stand. I commend the Bill to the House.
I will be sharing time with my colleague, Deputy Carthy. Where do I start with all of this? The Minister of State knows that this has been a deeply controversial saga. It has gone to the Supreme Court and the previous Ministers and the Department were found to have wronged fishermen on a number of occasions. They repeatedly did not listen to the industry. If they had listened, what the industry has been saying is that it of course supports the implementation of a penalty points scheme but it has to be fair, just and equitable. That is what they have said right throughout. I am going to go through some of their main concerns.
As the Minister of State knows, the previous Minister, Deputy Creed, attempted to bring in a statutory instrument which, for the first time in the history of the State, was voted down in this House. It was the then Fianna Fáil spokesperson on the marine, Pat the Cope Gallagher, who brought in that annulment motion. It won the support of the House and the statutory instrument was annulled. That was the right thing to do. Those of us who supported that annulment motion were all shocked to see the Taoiseach, who was then the acting Minister for Agriculture, Food and the Marine, introduce a statutory instrument identical to the one that was voted out by this House. He went against his own previous spokesperson on the marine, Pat the Cope Gallagher, who I believe listened to the industry, worked with it and defined solid solutions. He actually presented a solution to the Department officials and the Minister but he was ignored. It was shocking that his own Taoiseach ignored him and then the Minister, Deputy McConalogue, brought that statutory instrument forward again. We then brought an annulment motion that, unfortunately, was not successful to try to stop it.
Did the Government learn any lessons from that whole episode? Absolutely not. It has now brought in this legislation, which has the same serious flaws in it as the statutory instrument that is now operational. It brought this legislation, which is fundamentally flawed, to the Oireachtas committee and that all-party committee corresponded with the Minister and pointed out two issues in particular. The first is the issue of the balance of probabilities. What person or citizen in this State would accept a conviction that could have such a detrimental impact on their livelihood on the balance of probabilities, rather than on the threshold that we all understand, which is that of beyond a reasonable doubt? It is extraordinary that the Government would allow that threshold. That says it all about the attitude of some people in officialdom in Ireland, who I believe have a view that fishermen are guilty until proven innocent. It is a criminalisation of a whole industry when there is a threshold of the balance of probabilities rather than beyond a reasonable doubt.
If that was not good enough, there is also the fact that people can only appeal to the High Court on a point of law. This issue has been through the Supreme Court and the Supreme Court found that a person has the right to appeal when it impacts on their livelihood. That would be the vessel owner in the case of the statutory instrument and the master of the vessel in this case. However, they can only appeal to the High Court on a point of law. That is bad enough but it gets worse. If a person did go to the High Court on that point of law and was successful, that would not mean the points would be removed. It is absolutely extraordinary. I have said this at the committee. Imagine if we told our citizens that if a speed van or a garda allegedly caught them speeding while driving along in their car and they decided to take it to court and won their case, the points would still stay on their licence. If we had a law like that people would be in uproar throughout the land and it would not see the light of day but that is how we treat our fishermen.
I assume the Minister of State and the officials have read the submissions from the various fishing organisations to the Oireachtas committee. All these points were put forward again in those submissions, but did the Government listen to the fishing organisations, or the all-party committee that corresponded with it and expressed profound concern about these aspects of this legislation? The answer is "No". It did not listen. Here we are now with flawed legislation that is offensive to fishermen up and down the coast. Sinn Féin will oppose it at every Stage and will seek to put in amendments to get the Government to see sense, to treat the fishermen with respect and to bring in a points system that is fair, just and equitable.