Charlie McConalogue (Donegal, Fianna Fail) | Oireachtas source

I thank Deputies for their many and varied contributions on Second Stage of the Bill. In the main, they have a strong understanding of, and commitment to, the need for a timely introduction and implementation of an effective, proportionate and dissuasive points system for masters of fishing vessels. This is an important measure to support a level playing field on control and to support sustainable fishing in compliance with the rules in the waters around Ireland on which our fishing fleet is strongly dependent. As Deputies know, fishing industry representatives raised certain concerns about SI 318/2020, relating to the licence holders' points system, when it was signed into force in August 2020. It is understandable that those concerns would arise again in light of the similarity between the procedures adopted under that statutory instrument and those proposed in the Bill.

A number of Deputies raised concerns this evening, as well as in the context of pre-legislative scrutiny, about the standard of proof to be used by the determination panel and the appeals officer, which will be based on the balance of probabilities. The legal standard of 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. The latter is the standard to be used for the points system and the legal position is that it is the appropriate legal standard. Furthermore, the legal position is that the Supreme Court did not, in either the Crayden or O'Sullivan cases, in which a forerunner to SI 318/2020 was challenged successfully, make a single reference to beyond a reasonable doubt. That was not part of either judgment. The Supreme Court had no issue with the balance of probabilities standard of proof in any of the statutory instruments it considered.

Thus, there is no support in the Supreme Court judgments for the proposition that the "balance of probabilities" standard of proof should be raised to the criminal standard of "beyond a reasonable doubt".

Regarding points being removed following a not-guilty finding in the courts, the issue of points being removed where the master is found not guilty in criminal proceedings in respect of the infringement has been raised, both here and at pre-legislative scrutiny stage. This proposal would involve both systems being interlinked, and they would not stand alone from each other, that is, the criminal approach and the administrative approach, which is the one the penalty points is based on. 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 position is that points under EU regulation are intended as additional to a criminal prosecution. Accordingly, it could not be argued that Ireland has both a criminal and points system, as required under EU regulation, if we operated the system in a manner whereby the criminal proceedings completely eclipsed the points system. This is something that has been given a lot of consideration at all stages, not just now but in the course of preparing the penalty points' statutory instrument concerning the owners of a ship. The matter has been teased out in great detail. Were we to do that, it would simply not be possible for us to become compliant with the EU regulation.

It has also been suggested by a number of Deputies in this and previous debates that the master should have a right to a full re-hearing of the case before the High Court. The legal position is that under the Constitution, the High Court has "full original jurisdiction" and can hear all matters of law brought before it. The legal position further is that it would be highly anomalous, if not unprecedented, to provide such a full High Court re-hearing of a matter first governed by the procedures which were set down in the 2020 statutory instrument for licenceholders and in the Bill for masters. In addition, it would delay the application of points, which would run up against the timeline set down in the EU regulation, whereby points apply for three years, with the commencement date being 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 the EU provisions. Again, were we to do that, we would not be bringing ourselves into compliance, as is the requirement on us under EU regulation and law. We are the sole member state within the Common Fisheries Policy not to have yet applied this.

The High Court retains a supervisory and review capacity which 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 position 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 limit High Court appeals to reviews on a point of law.

I wish to address a claim made by the Opposition yesterday on Second Stage to the effect that if a master successfully appeals to the High Court on a point of law, then points would nevertheless remain assigned to him or her. A number of Deputies reiterated the point again today. It is something I have corrected on numerous occasions but people choose not to take on board and absorb the points I have made in that regard. To be clear, that is not correct. The legal position is that if a High Court challenge is successful on a point of law, then the court may make the appropriate order quashing any earlier decision to assign points. This is entirely independent of the separate provision in the Bill that points assigned to a master remain assigned regardless of any criminal proceedings pending, or the outcome of any such proceedings, in respect of the serious infringement concerned.

I will further tease out the points-on-conviction model. Fishing industry representatives point out that, prior to Brexit, the United Kingdom operated a system for its licenceholders whereby points would only be applied following a conviction in the courts for the serious infringement concerned. It has been queried why this model could not be adopted in Ireland for the masters' points system. The Supreme Court delivered its judgments on SI 3/2014 in December 2017. Those judgments found in favour of the State's position that for licenceholders, it is permissible to have a stand-alone points 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 Supreme Court judgment makes it clear that one of the obvious purposes behind the EU regulations is to ensure that the system of sanctions and dissuasive measures designed to disincentivise illegal fishing is that the system should operate efficiently and without undue delay. It is also clear from the judgment that the court understands that criminal prosecutions could take at least two years, making the points for licenceholders ineffective in many cases because they lapse three years after detection. The legal position is that it is not possible to deliver on an effective and dissuasive points system by assigning points upon successful prosecution. For instance, a delay in the prosecution of an offence could render the assignment of points meaningless, as points must be backdated to commence on the date of detection of the serious infringement and expire three years after that date. We all know from observing the weekly situation in the courts about the time cases can take. That would simply be ineffective and would not be workable. Neither would we be in compliance with the EU regulations.

Whereas the Supreme Court judgments related to the licenceholders' system, it is considered that the court's analysis applied equally in the context of the masters' points system provided for in the Bill, given the intention therein to replicate the existing licenceholders' system insofar as possible or necessary, including in relation to the lapse of points three years after detection.

Other amendments to SI 318/2020 on licenceholders' points were previously proposed by the industry. In addition to the above main issues, which I have just outlined, the industry also raised previously the following proposed amendments in the context of the statutory instrument on licenceholders' points. The first proposed amendment is that the Attorney General should establish and regulate the determination panel and that members of the determination panel be removed or resign by or via the Attorney General's office. The attribution of points for serious infringements, as required under the EU regulations, is an operational issue. The Attorney General's constitutional role as the Government's legal adviser is incompatible with this suggestion. Accordingly, it was not possible to accept the suggestion.

A second concern raised in respect of the proposal is that if the Attorney General were to establish the determination panel, he would be discharging just part of the duties set out at Article 125(a) of Commission Implementing Regulation No. 404/2011, namely, the setting up of the system for the attribution of points under Article 92 of the control regulation. Noting that SI 318/2020 has left the Minister as the body who appoints the appeals officer, the legal position is that the proposed amendment effectively subdivides the responsibilities set out at Article 125(a), a course not congruent with the text of that article. The legal position is that the Attorney General would have to set up the entire points system if he is to set up or regulate the determination panel.

Next, I wish to touch on the proposed amendment that the Minister, as opposed to the SFPA, appoints the determination panel. SI 318/2020 provides for the establishment by the SFPA of a determination panel comprised of three independent legal professionals, nominated by the Attorney General, to determine if, on the balance of probabilities, a serious infringement of the rules of the Common Fisheries Policy occurred. The SFPA only makes an appointment of named legal professionals nominated by the Attorney General's office. It has no role whatsoever in the nomination process.

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The legal position is that it would not be advisable to permit the Minister, rather than the SFPA, to appoint the determination panel.

A further proposal is to add the wording "and not minor in nature giving due regard to all the facts of the case", and this was another amendment considered. This suggestion is in regard to the appeals officer confirming that the points shall be assigned where he or she considers that the alleged serious infringement involved an infringement that was serious. The serious infringement referred to is already defined in the 2020 statutory instrument. The legal position is that this amendment confuses EU law and Irish law, as well as civil law and criminal law, and the difference between "serious" and "non-minor" offences in Irish law. The two standards referred to are entirely different and the amendment serves only to confuse the issue. Accordingly, this proposal was not accepted in the context of SI 318/2020 as regards the licence holders points system.

Two amendments which were accepted and incorporated into the licence holders points system and the Bill are as follows. The first is an oral hearing in all circumstances at both determination panel stage and appeal stage. SI 318/2020 and the Bill provide that an oral hearing must be granted if the applicant so wishes at both the determination panel and appeals officer stages. The second is proposals to increase certain timescales in SI 89/2018, for example, that the licence holder be given 30 working days, as distinct from ten previously, to make submissions to the determination panel; and that an application to the High Court shall be made no later than 28 working days, as distinct from 14 days, after relevant notification. SI 318/2020 and the Bill provide that the licence holder shall have the opportunity to make submissions in writing to the determination panel and the appeals officer within 30 working days from the date of the relevant notification.

I now turn to the application of points to third country vessels. Fishing industry representatives have also expressed concern regarding the non-application of points to third country vessels, which of course now includes UK vessels post-Brexit. This issue also arose at pre-legislative scrutiny stage and was mentioned by Deputies in the debate on Second Stage. The Bill provides that an official can prepare a report regarding an alleged serious infringement involving a foreign sea fishing boat in the exclusive fishery limits of the State or an Irish sea fishing boat, wherever it may be. The person who is alleged to be the master of the boat concerned must be an Irish citizen or a national of another member state, so points cannot be assigned to a third country master, for example, a UK master, notwithstanding the fact that third country vessels do fish in the exclusive fishery limits of the State. This is because the masters points system is an EU scheme deriving exclusively from EU law and so can only apply to masters who are Irish citizens or a national of another member state. It is not open to the Minister to make the EU masters points system applicable to third country masters.

I will now touch on other issues raised at pre-legislative scrutiny stage at the joint Oireachtas committee. The first point is the joint committee call to support and resource the implementation of the recommendations of the PwC review of the organisational capacity of the Sea-Fisheries Protection Authority, SFPA. The committee's view was that it is imperative that penalty points for masters of vessels are applied in the context of a robust and fair system of fisheries controls, and that the lack of capacity at present within the SFPA must not have the effect of constraining the activities of the fisheries sector. In response, I note the SFPA is implementing the recommendations of an independent review of the organisational capability of the SFPA carried out in 2019 and completed by PwC. The principal objective of the review was to contribute to the ongoing and future development of the SFPA. The review concentrates on the organisational capabilities of the SFPA to deliver on its mission for the effective and fair regulation of the sea fishing and seafood sectors that fall within its mandate. As Minister, I am satisfied that the SFPA is committed to delivering on the recommendations of the review report which, when implemented, will address issues identified to improve the effectiveness of the organisation. Responsibility for implementation of the recommendations rests with the SFPA, which is an independent agency as set down in the 2006 Act.

To conclude, this Bill is necessary to protect law-abiding operators, who make up the vast majority of those in the industry, and to preserve this precious and valuable resource for all Irish fishermen and for future generations. I am confident that the new points system provided for under 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. The points system is necessary as an effective measure against the small number of operators, either foreign or Irish, who break the rules. It is necessary to protect law-abiding operators and preserve fish stocks. I have no doubt that all sides of the House will appreciate this Bill is a vital piece of legislation which requires full scrutiny in its passage through the Oireachtas. Accordingly, I am grateful to Deputies for their thoughtful and considered contributions on Second Stage yesterday and today. I look forward to a more detailed scrutiny of the provisions of the Bill on Committee stage in the near future.

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