Dáil debates

Thursday, 17 November 2005

Sea-Fisheries and Maritime Jurisdiction Bill 2005: Second Stage.

 

11:00 am

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

The primary purpose of this Bill is to modernise the legislative framework for sea-fisheries. The principal Act currently in place was adopted in the mid 20th century and was subject to a number of amendments. It was designed for a sea fishing industry which primarily involved short trips by small Irish boats. The sea fishing industry has changed almost beyond recognition since then in terms of the size of the fleet. It now includes many multi-million euro businesses with large Irish boats operating in far away regions and large non-Irish boats fishing in Irish waters — I should say in the waters around Ireland because they are European waters now whether one likes it or not. These boats often land their catches in Ireland. Many Members will be familiar with the number of French vessels which land into Killybegs and Castletownbere. The industry is now substantially regulated at EU level through the Common Fisheries Policy. In addition, the Bill is designed to fill a major gap in the Fisheries Acts regarding the implementation of the EU Common Fisheries Policy following litigation which resulted in the impugning by the Supreme Court of certain secondary legislation for lack of cover in the current Acts. It is necessary to amend the legal framework to have regard to these realities and to modernise our systems and structures so that best practice in fisheries management and control is implemented.

Section 14 fills the gap identified in section 224B of the Fisheries (Consolidation) Act 1959 by enabling detailed ministerial regulations to be made to apply the full range of EU requirements throughout the whole area to which the EU Common Fisheries Policy applies. As section 224B currently stands, it only applies within the 200 nautical miles exclusive fishery limits of the State and only specifically prohibits illegal fishing or attempts to fish illegally.

Section 15 of the Bill fills the gaps identified in section 223A of the 1959 Act by specifically enabling detailed ministerial regulations to be made to supplement the EU Common Fisheries Policy where the State has discretion as to the particular measures to be adopted.

For the convenience of the House, the current text of sections 223A and 224B of the 1959 Act is set out in Appendix 1 and Appendix 2 to the detailed explanatory and financial memorandum which was published with the Bill.

In addressing the issues arising from the Supreme Court judgments referred to, it was necessary to comprehensively review the whole of Part XIII of the 1959 Act and all subsequent Acts dealing with sea fisheries. The Government decided, in the interests of proper regulation, to replace Part XIII of the 1959 Act, as amended, by the up-to-date provisions which are now in Part 2 and sections 64 to 66, inclusive, of the Bill. Thus, on enactment of the Bill, there will only be two Acts instead of seven dealing with sea fisheries, that is, this Bill and the Fisheries (Amendment) Act 2003 reforming sea fishing boat licensing arrangements with provision for appeal. This is a major achievement by the Government since it came into Office.

I draw attention to Appendix 4 to the detailed explanatory and financial memorandum published with the Bill which shows the link between the sections of Part XIII of the 1959 Act, as amended, and the relevant sections of Part 2 of the Bill which replace them.

On section 18 of the Bill, the Joint Committee on Communications, Marine and Natural Resources at its meeting in which I participated on 12 October raised the matter of the powers of protection officers to fire guns which have been on the Statute Books since 1959. We are consulting with the Department of Defence on the provision that allows a sea fishery officer, in certain circumstances, to carry firearms and to fire a gun at or into the boat. I want to make it abundantly clear that I intend to introduce a suitable amendment on Committee Stage to deal with this issue which is understandably of concern to many, including myself. I have had a discussion with the Minister for Defence this morning.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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He was practically in the newspaper this morning.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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We will have to remove the gun from him as well.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Absolutely. It was a disgracefully insensitive exhibition.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I want to make it abundantly clear to the House that it will be removed and that an amendment will be introduced on Committee Stage to remove the gun and the reference here.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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That is to be welcomed.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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That is only a sidetrack. There is much more besides. That is only a token. I hope the Minister of State throws out the whole Bill.

Photo of Denis O'DonovanDenis O'Donovan (Cork South West, Fianna Fail)
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We had five problems. That is one resolved.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Section 28 updates and consolidates penalty provisions, dating from 1978, and updated subsequently on an ad hoc basis, for a variety of sea fisheries offences according to the following principles. The EU Common Fisheries Policy requires a deterrent and dissuasive system of penalties, applicable to any offenders against Irish law. A person who fishes illegally should not benefit from that activity and no stakeholder — politician, processor or producer — would differ with me on that. No one should benefit from that activity in accordance with the obligations imposed on member states by the EU Common Fisheries Policy. The current Irish penalties regime, including forfeitures, is designed as a deterrent and dissuasive regime and great care needs to be exercised in introducing any fundamental change. Any change would have to be justified objectively, for clear policy grounds and would need to show that it furthered the deterrent and dissuasive requirement of the EU Common Fisheries Policy. The increases in maximum fines proposed should be sufficient to provide an effective range of fines for the courts to deal with both large and small scale economic infractions and large and small boats. These are maximum fines and it will be a matter for the courts to decide on the fine to be imposed in any particular case. It is generally accepted that the penalty should fit the crime but that is a matter for the judges, not for the Minister.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Blame the judges now.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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It is true generally.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Minister of State is setting the level of fines in the Bill.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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It is true generally.

Notwithstanding the matter of administrative penalties, the Bill reflects the considered view of the Government that it is critically important to have in place fines and forfeitures that are genuinely dissuasive. Section 28 sets maximum fines that may be applied for any particular offence and must take account of the scale of the offence and whether or not it is a repeat. This also is a matter for the courts. As I stated, the court will determine the actual level of fine to be applied. It is important that Ireland sends out a clear message that illegal sea fishing is serious and will be dealt with accordingly. That of course is true for all countries and that should apply throughout all member states.

Appendix 3 to the explanatory and financial memorandum published with the Bill shows the current and proposed maximum fines for sea fisheries offences. In lieu of the single fine, up to a maximum of £100,000 —€126,974 — currently payable on conviction on indictment for an offence under section 224B of the 1959 Act, which is now section 14 of the Bill, section 28 of the Bill provides for a range of maximum fines tailored to the gravity of each offence: €200,000 for the most serious contraventions involving vessel capacity——

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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The average fine in Europe is €4,000.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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——€100,000 for contraventions involving illegal nets or other equipment, or €35,000 for other contraventions such as logbook offences. In my view this represents a reasonable increase on the level which was put in place in 1994. The fine proposed for fishing without a sea fishing boat licence has been increased from the level of €12,700, or £10,000, set in 1983 to €100,000.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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An eight-fold increase.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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That is a fact, yes.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Some 800%.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Fishing without a licence must be regarded as a particularly serious offence and the level of fine proposed in the Bill reflects this severity.

To avoid unnecessary Circuit Court proceedings, section 28 also provides, on standard lines, for summary conviction by the District Court for minor offences, subject to a fine not exceeding €5,000, which reflects the current limit of jurisdiction of the District Court.

Section 28 maintains the long-standing status quo from 1978 on forfeitures by providing for forfeitures of fish and fishing gear as a statutory consequence of conviction on indictment, while section 29 simply reflects the existing provision, dating from 1994, for the forfeiture of boats also, if the court so orders when the circumstances so warrant. The levels of forfeiture that apply to indictable offences have been on the Statute Book for decades and are regarded as a considerable deterrent and set a proportionate penalty.

Changes in forfeitures for indictable offences would create considerable problems for defendants and the prosecution in sea fisheries cases. Most arrests involve a number of infringementsand charges and a system where only illegal fish or fish gear were to be forfeited could involve lengthy disputes about each count. It is the experience that the courts keep in view the value of forfeiture when fixing fines and fines are often at the lower end of the scale because the value of the catch and gear has been forfeited.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is fairly pathetic.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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The industry has made a strong case for the introduction of administrative penalties and sanctions. This was debated at length at the hearing at the Joint Committee on Communications, Marine and Natural Resources. While the introduction of such a system would have certain advantages, particularly the potential to deal speedily with offences, I am advised there are substantial legal issues arising in the implementation of such a system. In the case of most fisheries offences, the EU Common Fisheries Policy requires that the penalties must be deterrent and dissuasive and must involve depriving the wrongdoer of the benefit of his or her actions. Mandatory forfeitures are necessary to ensure the State complies with its obligations. The fines and forfeitures, therefore, are at a substantial level and I am advised that under the Irish legal system such penalties would be applied only to acts that were criminal in nature and therefore could only be administered by the courts by virtue of Article 34 of the Constitution, which provides that "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public." In the circumstances, a defendant is entitled to have the matter dealt with in open court with the full protections of the law and a jury trial, when faced with a potential penalty above certain limits.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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But he is entitled to consent to have it dealt with on an administrative basis.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Continental systems governed——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Will the Minister yield on that point?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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The Deputy will have his opportunity.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Will he take a question on that point?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Continental systems governed by civil law have a different approach——

Séamus Pattison (Carlow-Kilkenny, Labour)
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Second Stage is just beginning so there will be ample time for Deputy Jim O'Keeffe to contribute.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Minister is well aware that there is a way around this provision.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Administrative fines.

Séamus Pattison (Carlow-Kilkenny, Labour)
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The Minister of State without interruption.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I will be delighted to hear the Deputy's views when I have the opportunity.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Is the Minister not aware that there is a way around this constitutional provision through the consent of the defendant?

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Why does he not provide for that?

Séamus Pattison (Carlow-Kilkenny, Labour)
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We must allow the Minister of State to make his statement. Deputy Jim O'Keeffe will have his opportunity.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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This is only Second Stage. We will discuss the matter both on this Stage and on Committee Stage. I will be most anxious to hear the Deputy's views because of his legal background.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It is a question of principle.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please. The Minister of State without interruption.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Continental systems governed by civil law have a different approach——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It is essential to establish——

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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The Deputy heard what I said. I said all along, particularly because I have attended meetings of the joint committee and have been briefed fully on the contributions at its meetings, that I will be prepared to accept amendments that are practical, positive and in accord with the Constitution. I will be only too pleased to listen to the views of Deputy Jim O'Keeffe and others on how we can deal with these issues.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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If we can propose a procedure to apply administrative fines——

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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——will the Minister of State accept it?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I am saying I am prepared to listen.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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There is a big difference. We all listen but we want action.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It is action that we want.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Continental systems governed by civil law have a different approach and it must not be assumed that we could adopt the sort of system which may be in operation in much of Europe, and which is in operation in many parts of Europe. There are administrative sanctions with which we would have no great difficulty provided we could find a structure for them. Some 86% of arrests in Europe are dealt with by way of administrative sanctions for minor offences. Nobody is suggesting they should apply to any offences other than minor ones — the courts should deal with the others. I am advised, on the basis of Article 33 of the Constitution that this system creates a difficulty.

In the context of the concerns expressed by the Joint Committee on Communications, Marine and Natural Resources, chaired by Deputy O'Flynn, the Attorney General has reviewed the legal position. He has confirmed that under the Irish legal system and Constitution, administrative penalties are not possible in respect of these types of offences.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Why?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I take my advice and will deal with——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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They are with the consent of the defendant — that is the point.

Séamus Pattison (Carlow-Kilkenny, Labour)
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We cannot proceed in this manner. We are on Second Stage and the Minister should be allowed to contribute.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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The financial services regulator.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Competition law. There are many examples.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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The PIAB.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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The Commission representative confirmed at the meeting of the joint committee on 12 October that administrative penalties are applied widely in member states——

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Some 86%.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I said that. Administrative penalties are applied for a variety of sea fishery offences.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Let us have them here.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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As I indicated to the committee, I will actively pursue the question of a level playing field across the European Union regarding the imposition of administrative penalties for minor sea fishery offences. I will commit myself to doing what I can at European level but I am told the initiative must be taken at that level rather than at national level. We cannot take it because——

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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That is incorrect.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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We will not want it confined to catching sprat.

Séamus Pattison (Carlow-Kilkenny, Labour)
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It is very disorderly to interrupt during the Second Stage debate.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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We are improving the Bill.

Séamus Pattison (Carlow-Kilkenny, Labour)
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There will be ample opportunity to do so at a later Stage.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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We are getting annoyed here.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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It is a debate.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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In the case of sea fisheries, I am advised that the State would face the problem that the required level of sanction would trespass on the exclusive role of the courts in the administration of justice, thus exposing the administrative system to legal challenge. There would be no protection arising from Article 29.4.10° of the Constitution. From a legal perspective, to adopt a system of administrative penalties without being obliged to do so by EU legislation would, I am advised, render any measure vulnerable to legal challenge. This is why I say I will actively try to ensure the existence of a level playing field across the Union regarding the imposition of administrative penalties for minor sea fishery offences. These are not idle words — I will certainly pursue that objective while I am in this Department.

I agree that the fines in some member states are not adequate. However, in other member states the fines imposed are higher than those in Ireland. In most member states, the number of fines is far greater than in Ireland.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Which countries are those?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Low fines in some member states do not and cannot justify Ireland deciding to reduce the level of penalties. I am committed to building sustainable sea fisheries and strengthening control of these fisheries. It is necessary to support this objective with penalties that are dissuasive.

Section 32 aims to capture the ill-gotten gains arising from illegal sea fishing and should serve to effectively deter such activity. The court will decide the issue in any case, with the guidance of the detailed provisions of the section. The section is a necessary addition to the current suite of statutory provisions for the imposition by the courts of fines and forfeitures and may be used even if it is not feasible to take Court proceedings for an offence of illegal fishing. Measures such as these are needed to safeguard fish stocks and allowable catches for the law-abiding and should commend themselves widely.

The updating of the legislative framework for sea fisheries is regarded by the Government as an integral part of its commitment to modernising structures and delivering sustainable sea fisheries to ensure long-term economically prosperous coastal communities. The €45 million scrappage scheme for the whitefish and shellfish sections of the Irish fleet, which the Government agreed last July, demonstrates this commitment clearly. It presents an opportunity to decommission vessels over 15 years of age that are more than 18 metres in length in the whitefish sector and more than 15 metres in length in the shellfish sector. We invited those who wish to decommission vessels to do so. BIM is dealing with the applications on our behalf and as soon as I have details on the numbers, tonnage, etc., I will make them available to the House.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Small beer compared to the largesse the Minister of State gave to Mr. McHugh.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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Perhaps the Deputy will elaborate on that. I challenge him to accuse me of doing something outside the law.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Has he talked to his colleagues?

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I challenge Deputy Jim O'Keeffe to put on record and include my name in a statement suggesting I am doing something outside the law.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is not what I said.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please. The Minister should be allowed to make his contribution.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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The Deputy will see what he said in the "blacks". If he wants to withdraw his statement, he can do so now.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Is the Minister of State suggesting it was a colleague of his instead?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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That is not what the Deputy said.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I take the implication.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I will defend myself at any time, both inside the House and outside the House.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Minister is very defensive about the issue.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I am not defensive at all. I have been a Member since 1981, except for some years during which I was in Europe. Integrity is important to me — more important than anything else. If it is not important to Deputy Jim O'Keeffe, that is a matter for him. There is such a thing as integrity——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I will accept the Minister of State's explanation——

Séamus Pattison (Carlow-Kilkenny, Labour)
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The Minister of State without interruption.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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——that he was not properly involved.

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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To modernise the implementation and enforcement of the Common Fisheries Policy, in line with developments in other member states and the European Commission, the Bill proposes to legally separate responsibility for enforcement of fisheries policy from the policy-making functions of the Minister. This initiative will vest statutory responsibility and accountability in statutory officers within the Department. However, this is only an interim step. It is my intention to bring forward proposals early in the new year to establish a new independent executive as a regulatory body vested with the statutory responsibility for the control and enforcement of the Common Fisheries Policy. It is also my intention that such an agency will be set up on an administrative basis, independent of the Department, early in the new year, pending the introduction of the necessary legislation. In addition, other responsibilities may be vested in such an agency in due course. I am also giving serious consideration to including the licensing authority in this agency. I want to remove both of these functions from the Department and make them independent. Issues of perception may be involved. I will defend those who are responsible in the licensing agency and those who advise me at present as being totally independent. However, if their functions must be removed from the Department, it is not just sufficient to do this — we must be seen to do it.

Photo of Eamon RyanEamon Ryan (Dublin South, Green Party)
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Is this not because of the controversy over the Atlantic Dawn? Is there not a question to be answered by Government?

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please. These interruptions must cease.

12:00 pm

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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To avoid legal doubt and in the interests of coherence and accessibility for all concerned, it was also decided to update and consolidate the law from 1894 relating to the registration of sea fishing boats. Those provisions are in Chapter 6 of Part 4. For convenience, section 64 contains the up-to-date text of the law relating to sea fishing boat licensing, incorporating the changes made by section 53 of the Maritime Safety Act 2005.

I now turn to other provisions relating to sea fisheries matters, namely, the substantive sections 65, 66 and 67, which are designed to clarify the law and benefit the law-abiding in the light of evolving needs and circumstances. Section 65 is intended to prevent competitive distortion due to non-compliance by some sea fishing enterprises with tax obligations. The section imposes tax clearance requirements for the grant of sea fishing boat licences, because licensing provides access to a very valuable public resource. Tax clearance is a requirement for the grant of taxi licences for that reason. The section will be commenced by ministerial order as soon as necessary consultations on the matter have taken place after the Bill is enacted.

Section 66 clarifies the scope of ministerial policy directives to the sea fishing boat licensing authority or appeals officers, so as to include a specific reference to measures to control and regulate the capacity of the sea fishing fleet and the rational management of fisheries. The detailed directives already in place have been duly presented to both Houses of the Oireachtas as the 2003 Act requires, and are readily viewable on the Department's website. Section 67 reduces unnecessary bureaucracy by exempting from compulsory registration as a ship under the Mercantile Marine Act 1955 any sea fishing boat of less than 15 metres in length overall which is registered in the statutory register of fishing boats or is formally exempted for such registration.

Section 27 is intended to facilitate Circuit Court proceedings for indictable offences under the Fisheries Acts by restoring the pre-2001 arrangements for cases to be sent forward for trial without unnecessary District Court proceedings, and should be welcomed.

The House will be glad to note the continuing significant development of aquaculture within the statutory framework provided by the Fisheries (Amendment) Act 1997, as refined by the 1998 and 2001 Fisheries Acts. The period since the enactment of the 1997 Act has, overall, been one of significant growth and development for the aquaculture sector, and the value of its output in 2004 was some €98 million. It is now a key component of overall seafood production and is generally recognised as having the capacity to play a critical role in the economic life of many coastal peripheral areas. The objective must be to ensure that the sector's further development is on a sustainable and environmentally friendly basis. The regulatory framework established by the 1997 Act is central to the achievement of this objective, and the proposed changes to that framework are designed to enhance its operational effectiveness. It is proposed that licence renewals may be granted for the continuance of well-run aquaculture operations of long standing, without the renewal in all cases having to be formally effected before the licences in question have expired.

As the House will appreciate, it may not be possible in every case to have all the necessary site inspections, or water and other analyses, formally completed before a particular date. In such circumstances it would clearly be unfair to disrupt efficient, well-run operations on what would be something of a technicality. It is proposed, therefore, that a licensee who has applied for a renewal of his or her licence will be able to continue to operate, subject to the terms and conditions of the licence, until a decision is made on the renewal application. I am relaxing the current blanket provisions for terminating a licence if I am satisfied that the operations could not commence within two years, as is the current position, or have been suspended for a continuous period of two years, for bona fide reasons such as illness on the part of the licence holder, fish health or environmental conditions.

This is not a charter for people to acquire licences speculatively in the hope that after some years they can assign them to a third party. On the contrary, where licensed sites are simply not being used, the licences will be revoked and made available to others who are willing and able to operate the sites more productively.

The opportunity is also being taken to facilitate the reduction of licensed sites and licensed production, and the use of novel or experimental equipment, subject to appropriate conditions. The problem mainly arises in bottom culture where substantial portions of licensed sites may prove to be unsuitable for cultivation. At present licence holders wishing to reduce the size of their licensed areas and benefit from a proportional reduction in licence fees are obliged to go through the licensing process anew. I do not consider this to be necessary or appropriate and believe it should be open to a licensee to simply request the reduction of the licensed area or the permitted production.

While these changes relating to aquaculture are essentially technical in nature, I hope they will effect a beneficial streamlining of the licensing process. Aquaculture production is primarily intended for human consumption and food safety considerations must therefore prevail.

Section 69 is designed to safeguard Exchequer revenues by preventing the build-up of arrears of charges for services provided at the five State-owned fishery harbours and allowing the fishery harbour centres to continue to meet customer needs, which are not confined to the fisheries sector. I will deal with the question of arrears in more detail on Committee Stage.

The essential core of the Bill is an important suite of provisions to strengthen sea fisheries law and improve enforcement arrangements to safeguard sea fish stocks for sustainable fishing and rational management. All accept that we are the custodians and must ensure that we protect the resources of not just Ireland but all of Europe. There is an obligation on every Member and on the European Commission to ensure that we have a sustainable fishery and preserve resources for future generations. I look forward to the contributions of other Members.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Fine Gael in Government will repeal this Bill, which proposes to categorise as criminals fishermen and those working in a key traditional industry, and imposes a range of fines which are punitive and vindictive and come on top of a range of fines which are already the highest in the EU. This is our commitment.

A serious debate on the future direction of our fishing industry is long overdue in this House. The total failure of the Common Fisheries Policy at European level, the need for root and branch reform and the gross lack of support by this Government for the sector are issues that must be highlighted. A clear, defined national strategy to optimise the benefits of one of our most significant natural resources was never more needed. The Bill is the opposite of what is needed from a Government which is disinterested, in disarray and at loggerheads with itself as to fisheries policy. Rather than championing a fresh partnership approach to the management of the fish stocks around our coast, the Bill is simply an appalling mishmash of extreme and authoritarian measures which serve no purpose other than to drive a deeper wedge between the fishing industry and the custodians of the common good. I am astonished the Minister of State, Deputy Gallagher, has the gall to present this Bill in its present form. It is well known he has the most serious reservations about many aspects of it. Does the Minister of State support this Bill as it is proposed to be enacted? This House and the fishing industry is entitled to know. Who is in charge of fisheries policy? Is it the Minister of State, who has been frogmarched into this Chamber by his senior Minister, Deputy Noel Dempsey? We know this Bill has been re-introduced at the Minister's insistence. Has Deputy Noel Dempsey revoked the powers delegated to his Minister of State?

There seems to be a peculiar form of guerrilla warfare ongoing between the two of them. Or is it the Secretary General of the Department, Mr. Tuohy, who is in charge? He has certainly led the charge to have this Bill enacted, judging by a letter from him to the joint committee, dated 18 October last. We deserve an explanation. In the meantime I remind all three gentlemen that it is the prerogative of the Oireachtas to legislate and nobody else. We intend to oppose this Bill trenchantly at every turn, and not because we are not in favour of strong controls on fishing. We strongly support appropriate measures to conserve our depleted fish stocks. Such measures are essential if we are to confront one of the major environmental challenges of our time. We do not support or condone illegal fishing activity in any form and such behaviour must be tackled vigorously.

This Bill is patently not the answer, however. It is a wasted opportunity on the part of the Government to bring change to the fishing industry. Movements within the industry have been crying out for change for a number of years. I have spoken out in the past against the high level of fines imposed on Irish fishermen, in comparison with the EU average. I have also called on the Minister of State to decriminalise minor fishery offences. This Bill was an ideal opportunity to introduce such change. The following changes must be made to this Bill. It must provide for administrative and graded sanctions and it must decriminalise fisheries offences. According to published EU data, 86% of all EU fisheries offences are now dealt with by way of administrative sanctions. Why we are not acting in the same way defies logic.

The section relating to the seafood manager should be deleted in its entirety. This move will not improve control and enforcement. As laid out in this Bill the seafood manager proposals lack accountability and undermine and sideline the role of the Minister. Instead, a fully independent office should be established. The automatic confiscation of catch and gear must be changed to allow the issue to be decided at the discretion of the courts. What is particularly appalling about this provision is that it only applies to Irish vessels. The fines and penalties detailed in the Bill lack proportionality and must be reduced and changed. We need to enforce the principle that serious fisheries offences attract serious penalties. However, we must not push overly harsh penalties onto minor offences. Such a position will not be of benefit to anyone involved. Finally, the provision on the use of firearms against fishing vessels must be totally deleted from the Bill. It is quite extraordinary that it was ever included in the first place. This provision is very much out of date. To have the Naval Service firing onto fishing vessels could produce a serious tragedy. I was absolutely astonished when——

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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It would be like a third world war.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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As Deputy O'Flynn, who is Chairman of the Joint Committee on Communications, Marine and Natural Resources, has said, it would be like a third world war, or it could be like going back to the days of Queen Victoria.

We need a Bill that is progressive and that will be acceptable to stakeholders. At a time when the Irish fishing fleet is already suffering because of outside issues such as rising fuel costs, we do not need this Government bringing in a Bill that will make its problems even worse. The background to the Bill shows that legislation in this area was needed. The Supreme Court judgment in the Browne v.Attorney General case found that the order in question was made under the wrong section of the Fisheries Consolidation Act 1959. The effect of the judgment in another case, Kennedy v.the Attorney General, is more far reaching. This judgment provided for the following: a Minister of the Government may not, by statutory instrument, give effect to an EU policy or an Act of the institutions of the European Union using a power conferred by an Act, unless the Act contains an explicit power to give effect to the Act of the institutions of the European Union.

It is not disputed that these deficiencies in national legislation need to be urgently addressed. I fully agree it is essential that these matters are speedily addressed. However, the proposals contained in the Sea Fisheries and Maritime Jurisdiction Bill 2005 are not the only means of addressing these issues.

There appears to be enormous haste on the part of the Minister to rush through this legislation. This is very surprising given that the matters raised in the judgment on the Browne case have been known to the Department for over two years. It begs the question as to why the sudden urgency. It is all the more puzzling when the judgment in the Kennedy case is considered. The Kennedy judgment surely impacts on the entire Government, not just the Minister of State's Department. There is a need to address the matters raised in a coherent and co-ordinated manner. The premise of the Minister, Deputy Noel Dempsey, is that this legislation must be consolidated, but the ramifications of this Bill affect the 14 other Departments. Why is the same type of legislation not being introduced by other Departments? Perhaps the Minister of State will answer that. The raison d'être for this Bill is based solely on the judgment. Why has the Taoiseach not told the Dáil this will apply to all Departments?

The Fisheries Consultation Act originally dates from 1959, but it has been updated and amended regularly since then to take account of changing circumstances. This includes Ireland's accession to the then European Economic Community. The development of the Common Fisheries Policy and the various enlargements that have occurred to the European Community are important developments within Ireland's fishing industry. Hearings were held by the Joint Committee on Communications, Marine and Natural Resources, of which I am Vice-Chairman, at the beginning of October. It was critically important and correct that the Chairman of that committee should have met the interested bodies representing the fishing trade. I compliment Deputy O'Flynn for having held that meeting. Up to that point there had been no meeting with the representative bodies. He was also correct to have held consultations with the fishing industry. The overall thrust of these meetings was very effective.

The committee's Chairman was also correct in meeting all the representative bodies last week in Brussels. I want to put on record a letter to the committee signed by all the Irish MEPs, North and South. It says:

A Chathaoirligh,

Following the meeting last week in Brussels between the members of the Oireachtas Joint Committee on Communications, the Marine and Natural Resources, cross party representation of Irish MEPs and cross party representation from all the major Political Groups on the Fisheries Committee in the European Parliament, we have been requested, by all those present, to convey to your Committee a number of observations.

Nobody condones violations of fishing rules and regulations in any manner. The MEPs believe that there must be sanctions for such violations. Without interfering in Irish National legislation, they believe that sanctions and penalties in all EU Member States must be proportionate and fair.

However some of the provisions of the Irish Sea Fisheries and Maritime Jurisdiction Bill 2005, as proposed, were met by the MEPs, without exception, with total incredulity. In particular they found that some of the draconian sanctions which only apply to Irish fishermen to be not only extremely discriminatory but also in total contradiction with the European ideal and not least to the spirit of the Common Fisheries Policy. They underlined that this type of double standard would be unacceptable and would be rejected with force in their own countries.

They found the general levels of "the excessively inflated sanctions being proposed", which would apply to their own fleets in Irish waters, to be totally disproportionate to the offences concerned, with no relation whatsoever to sanctions for similar offences in every other Member State.

The Members of the European Parliament underlined that it was totally erroneous and misleading for anyone to suggest that "Brussels" was directly responsible for the levels of sanctions being proposed. The sanctions aspect of the bill is the sole responsibility of the Irish authorities, on a proposal from their Civil Service.

The MEPs underlined that the European Commission have consistently indicated that they have a preference for these matters to be dealt with by administrative sanctions.

The MEPs are in full agreement with this approach and would like to see fisheries offences de-criminalised. They underlined that almost 90% of all EU offences in the fisheries sector are dealt with using administrative sanctions.

The non Irish MEPs underlined that their own fishermen were directly concerned by the proposed Irish legislation. Consequently they have decided to raise the whole question of sanctions, throughout the EU, in a number of ways in the coming weeks.

Party Parliamentary questions with debate in full plenary session will be tabled to both the Commission and the Council.

The Fisheries Committee will seek independent legal advice on the different systems applied in the different Member States.

The Committee will also undertake whatever procedure that is necessary to put this whole vexed question firmly back on the EU agenda.

We have been asked to request that your Committee keep the MEPs informed of the evolution of your draft bill. Furthermore were you to arrange a hearing on this issue, members of the European Parliament's Fisheries Committee, representing a number of EU countries, would be willing to travel to Dublin to testify.

The letter was signed by Mr. Brian Crowley MEP, Deputy Alyward MEP, Deputy Coveney MEP, Ms Avril Doyle MEP, Ms Bairbre de Brún MEP, Deputy Harkin MEP, Senator Higgins MEP, Mr. Seán Ó Neachtain MEP, Ms Mary Lou McDonald MEP, Ms Mairéad McGuinness MEP, Mr. Jim Nicholson MEP, Deputy Ryan MEP, Ms Kathy Sinnot MEP and Deputy Mitchell MEP.

The Minister indicated that all this is coming from Brussels, but the letter indicated that such is not the case. Discussions at the meeting showed the diversity of approaches there could be to fisheries management within the EU. There is no set approach within the Union to fisheries management. The level of fines imposed in different EU countries and how different countries within the Union deal with fisheries offences is extremely varied.

What is needed is a concerted effort by EU countries to adopt a similar approach to fisheries offences. We need to examine the efforts made in other countries in this respect. We need to learn from the policies of other Governments. We cannot be arrogant enough to presume we can write a Bill without examining the faults and failings of other countries. We need to examine the alternatives. The benefits to be offered by this approach make it even more disappointing when we see that the Minister did not take enough time to listen to the Irish fishing industry and examine policies abroad. It is not enough to restate existing laws, or to reinforce the current model of fisheries management without examining and considering alternatives. In many ways this Bill amounts to an outline of the law. Despite the fact that it is lengthy, it represents a skeletal outline of the law. In too many instances, the Bill delegates regulation making powers to the Minister. Sections 3, 9, 14, 15 and 44 all delegate regulation making powers to the Minister. In effect, we are being asked to debate and pass a law the true meaning and extent of which remains unknown. The Minister should not leave gaping holes in the Bill only to be later filled in by regulations. This sidelining of the Oireachtas is unforgivable. The regulation making power in the hands of this Minister is a dangerous weapon. This Bill should show support to Ireland's fishing industry. Instead, it will provide more hardship for the men and women who form the backbone of one of our most important indigenous industries.

As multinationals come and go, we must learn to support the industries which will always stay in Ireland. As an island nation we need to protect our fishing industry. In this way, we can learn from our EU neighbours. Across Europe the majority of member states deal with fisheries offences by way of administrative penalties. For example in Spain in 2001, only four out of 3,595 fisheries offences went before the courts. Under existing legislation all fisheries offences in Ireland are tried through the criminal courts. The subsequent fines imposed are significantly higher than anywhere else in Europe. This has been acknowledged by a number of EU Commission reports. The EU report on behaviours that seriously infringed the rules of the common fisheries policy, highlighted the following fines. For fishing without a licence the average fine in Spain is €1,463. In Ireland that figure is €21,400.

For a logbook offence in Denmark the fine is €393, whereas in Ireland the same offence will cost €8,455. In the UK, the fine for fishing for a species that is subject to prohibition is €2,328. In Ireland the same offence will result in a fine of €23,125. The list goes on and on. How this can strike anyone as an equal playing field is beyond me. This gives the impression that not only are we not supporting the Irish fishing fleet, but we are actually trying to stamp it out.

Representatives from the Irish fishing industry have campaigned for the implementation of a fairer and more appropriate system, with penalties that fit the offence. This campaign attempted to have existing legislation changed. However, instead of changing the legislation for the better, it has been made even worse. The implementation of the Bill in its current format will have an even more detrimental impact on the Irish fishing industry than did the existing legislation. There are genuine and serious concerns regarding the proposals in the Bill. The Bill provides for disproportionate fines for fisheries offences. These fines can reach up to €200,000. The average fine across Europe for fisheries offences was €4,600. As already stated, Irish fines for fisheries offences are already the highest in Europe. Nonetheless, the Bill proposes increases in the fines for certain offences. Fines for the use of illegal nets currently stand at €63,487. The proposed new fine is €100,000. Why are we raising a fine by more than €35,000 when it is already far higher than the European average? For those found guilty of contravening quota notices, they will face fines nearly €10,000 higher than existing legislation allows. One of the most dramatic increases is for those found in contravention of a licence. Those found guilty of that offence will face fines nearly ten times higher than those found in existing legislation. This Bill will raise the fine from €12,697 to €100,000.

In addition to these fines, there is also the issue of confiscation of catch and gear. Currently, there is automatic confiscation of gear and catch at Circuit Court level. However, this confiscation provision is only automatically applied to Irish vessels coming before the court. Why is it that in the case of foreign vessels the court has discretion on whether to confiscate catch and gear? Why do foreign fishermen operating in the same areas as Irish fishermen get preferential treatment? Yet again, we have a damning indictment of this Government's attitude towards native fishermen.

We oppose this Bill because it is extreme, excessive, unreasonable, unfair and undemocratic. We believe it is discriminatory and removes fundamental rights. It cedes far too much authority to unelected officials. Regardless of their individual calibre such officials must be accountable in law and to this House for their actions. It further exacerbates disproportionate penalties and criminalises the fishing sector. The vast majority of people working in this sector are decent, hardworking people of great enterprise, who are operating in an already impossible environment.

This Bill was considered in detail in its present form by the Oireachtas Joint Committee on Communications, Marine and Natural Resources, where it was almost unanimously rejected. It was regarded by the committee as being deeply and disturbingly extreme in its overall tone and detailed provisions.

Photo of Eamon RyanEamon Ryan (Dublin South, Green Party)
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Not quite unanimously rejected.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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He said "almost".

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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We were told in a letter from Mr. Tuohy that failure to enact this Bill would leave the taxpayers seriously exposed to multi-million euro sanctions from Brussels, yet the committee was told quite clearly during a visit to the EU Commission last week that this was not the case. If the Browne case is so urgent, why is the Taoiseach not bringing every other Minister in here to introduce legislation? This case applies to every other Department. That has not been explained. This case is being used to bring in legislation that is not necessary.

This Bill is an inappropriate, ill-judged, one-dimensional approach to the management of our valuable fish resources. The perception is that it is concerned with the consolidation of law and the remedying of constitutional deficiencies. However, in its present form, it has been hijacked. A legislative opportunity to introduce wholly unwarranted provisions and curtailment of a citizen's right to redress has been taken. During a visit to the European Commission last week, members of the Joint Committee on Communications, Marine and Natural Resources were told that this was not the case.

I note that the present law has not prevented an effective fine of €40,000 being imposed on a trawler from Clogherhead earlier this week or the prosecution of further cases as we speak. I submit that if the intention was to rectify the deficiencies in law due to the Supreme Court case, it could have been done in a one-page Bill. Moreover, a thorough debate on fisheries could have been held.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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Absolutely.

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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Similarly, if the consolidation and streamlining of the legislation passed since the 1959 Act was the intention, this would have been a sensible move. The issues pertaining to the imposition of fines could have been dealt with differently and the Supreme Court case could have been dealt with. This should have been applied in all Departments. However, this Bill uses these pretexts to enshrine a staggering increase in criminal sanctions. This will result in Irish law being even more out of kilter with EU-wide systems, and will discriminate against Irish vessels to boot, which is deeply troubling.

The current Minister of State at the Department of Communications, Marine and Natural Resources, Deputy Gallagher, has sought to distance himself as much as possible from this Bill. He told the Joint Committee on Communications, Marine and Natural Resources that it was drafted before his time. Nevertheless, despite having major difficulties with this Bill, he has come before the House to promote it. It is wrong to introduce legislation on which there was no consultation with any of the representative bodies. I must compliment the Chairman of the Joint Committee on Communications, Marine and Natural Resources, Deputy O'Flynn, for holding a public hearing on this issue. He was completely correct in inviting representatives from the Naval Service as well as an EU official who appeared before the committee and asserted that this Bill did not originate in Europe. We must have honesty in this respect. Who is driving this Bill? What are its origins and justification?

The Minister of State has claimed that this Bill was drafted before his time. What are Members to make of that? I note from evidence presented by fishing industry representatives to the Joint Committee on Communications, Marine and Natural Resources, that there was no attempt to consult them in respect of this Bill. I have met the fishing representatives. They are sensible men who represent a vast industry and, as an island nation, one should consider its growth. Such people have invested millions of euro in vessels and are supported by the banks. It is astonishing that they should have been ignored and that a Bill with a potentially far-reaching impact on their livelihoods could have been introduced without any consultation. I am astonished that the civil servants and the Minister of State would agree to that. The lack of consultation is obvious when one reads the Bill. This morning, the Minister for Communications, Marine and Natural Resources came before the House and stated that the Bill was necessary in light of legislation and penalties from Europe. That is untrue.

I commend industry representatives on their reasoned analysis of this Bill. They are all businessmen who will apply the law and operate the system efficiently. As I have stated from the outset, this Bill will be amended when Fine Gael is in Government. We will not criminalise fishermen who are not drug barons peddling drugs but people who make a livelihood processing fish. Were they drug barons and not fishermen, the proposed legislation could not be more stringent. This Bill is designed to increase the severity of criminal sanctions in Ireland far beyond those pertaining in other EU jurisdictions. Under the existing legislation, the existing Irish sanctions are already far above the norm. In stating this, I repeat that Fine Gael is as determined as anyone else to stamp out illegal practices. No one should misrepresent our position.

However, as I have already noted, a graded system of sanctions based on administrative law for all but serious offences, should be introduced. In this context I propose that sections 28 and 29 of the Bill, dealing with levels of fines and legal procedures, must be reconsidered in their entirety. I am not convinced by the argument that levels of fines up to €200,000 are merely the maxima and are of little significance. The Judiciary will, not unreasonably, take their cue from the legislation and determine fines accordingly.

I am concerned about section 15 which allows for further provisions over and above those required by EU law. What is the purpose of this except to have Ireland on an even more uneven playing field? Any sane person must surely reject subsections 18(5) and 18(6) which make provision for the firing of live ammunition into fishing vessels. This Bill must be redrafted in its entirety. While I suspect that this clause is intended to distract from other objectionable parts of the Bill, it cannot be left stand and must be withdrawn.

As I have stated, I am also unhappy with the composition of the proposed new position of seafood control manager and the relegation of the role of the Minister in section 41. This entire area requires re-examination. I am not in favour of reducing the oversight of democratically elected people, namely, the Minister and this House, in such vital matters. If the seafood control position is required as stated, the manager should be independent from the Department and everyone else. Regardless of their individual calibre, which I do not question in any way, the sweeping powers provided by this Bill to officers of the State are not balanced by the rights of citizens aggrieved to seek redress if they wish. This must be changed.

The areas of concern I have highlighted are only a few of the critical issues which Fine Gael will oppose in this Bill. We are concerned by the proposed immunity from legal action of the registrar of fishing boats. The conditions for notifications to vessel owners are simply unacceptable and the discrimination between the treatment of Irish and overseas fishing vessels is another area of concern. We will not be fobbed off by promises to have the Minister of State's officials examine the Bill's deficiencies. While that tactic is employed constantly in this House, Fine Gael will not be fobbed off and will fight this Bill all the way.

We ask that this Bill be withdrawn in its entirety and, failing that, we will vigorously propose sweeping and detailed amendments. It is a pity that Members should be holding this debate about such unacceptable legislation. We need to engage in a real debate which tackles the realities underlying the failure of the Common Fisheries Policy. We must make it a national priority to seek fundamental reform which will obviate any impetus towards over-fishing or non-compliance. We must also, as the scientific advisers to the EU, ICES, put it in their recent advice to the European Commission, "break out of the vicious circle" in which we find ourselves. We are at this juncture because this Minister of State fails to lead and has failed to direct his officials in pursuance of the real imperatives in the fisheries debate. In this Bill, he has turned his back on any emerging sense of reality or partnership, as evidenced by the development of industry-led regional advisory councils at EU level.

This Bill is the antithesis of any sense of giving responsibility and a real role to fishermen in sustainably harvesting a resource whose health is of more importance to them than to any stakeholders. This Bill is a wasted opportunity to engage in the real issues and is a one-dimensional, knee-jerk response to the real difficulties besetting our fishing industry. It is regrettable that this Bill has been brought before the House without any real debate on the possibilities and enormous opportunities that could be taken.

The proposed Bill does too much and too little. It does too much to address the Supreme Court judgments and possible non-compliance with national obligations under the Common Fisheries Policy and certainly does too little with regard to fisheries management and a vision for the fisheries industry in the coming years.

It is well past time that this Government and the Minister of State who sponsors this Bill stepped aside to allow a fresher, more vigorous and imaginative approach to be taken by others if we are to do any proper justice to the coastal communities of Ireland. They need a real vision of the opportunities.

One should consider the disappointing manner in which the Department handled the lost at sea scheme. It was not advertised transparently and raises questions as to who runs the Department. Is it being run solely by the departmental officials or by the Minister of State who has been delegated to so do?

While I genuinely congratulated the Minister of State on his appointment, I am disappointed that he felt obliged to bring this Bill, which runs counter to his fundamental beliefs, before the House. If possible, this legislation should be withdrawn. If not, substantial amendments must be included to facilitate a vision of the development of Ireland as an island nation and of the enormous development opportunities, which extend for 200 nautical miles.

We are at a crossroads in the development of the fishing industry. The Government has missed a major opportunity to hold a debate on the industry's potential. Instead, it has introduced draconian legislation which, as Deputy O'Flynn noted at our committee hearing on the Bill, is ill advised, ill judged and unwarranted. The Fine Gael Party will fight every section of the Bill and table a raft of amendments to change its ethos fundamentally. In Government, we will repeal this legislation which proposes, without foundation, to criminalise fishermen.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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I warmly welcome the Minister of State at the Department of Communications, Marine and Natural Resources, Deputy Gallagher, and his key civil servants to the House. Before addressing the Bill, I will refer briefly to the apparent confirmation that a significant element of the marine section of the Department of Communications, Marine and Natural Resources, including responsibility for ports, the coastguard, maritime safety and marine development, is to be transferred to another Department. This cannibalisation of the Department is a regrettable and retrograde development and casts an outrageous, appalling slur on the marine community, maritime workers and the general effort under way to develop the maritime potential of our island nation.

It is also regrettable that the Fianna Fáil Party failed to deliver the categorical promise made in its pre-election programme for Government in 2002 to appoint a Minister with responsibility for the marine and maritime affairs who would sit at the Cabinet table. Not only was the new Department not established after the new Government was formed, the relevant Department did not even include the word "marine" in its title. We now learn that the marine section of the Department will be moved all over the place. Will the remainder of the section be transferred to the Department of Agriculture and Food? The Minister of State, who I understood was to have been given a role in Government similar to that of Deputy Rabbitte when he was a member of the rainbow coalition, is set to be shafted by the Administration instead of being appointed a senior Minister of State with responsibility for the marine with a seat at the Cabinet table. This is a retrograde step.

I pledge that if given an opportunity following the next general election to help shape a programme for Government alongside our Fine Gael Party colleagues, the Labour Party will insist on establishing a Cabinet level Department of the marine, the lead, integrated and coherent section of a maritime Department. Would any other island country settle for less?

I welcome the commitment made by the Minister of State on section 18 and the ludicrous provision on the use of force against fishing vessels. I also welcome his interesting commitment to establish an independent agency to implement the Common Fisheries Policy and sea fisheries control. This is the correct approach and begins to address some of the problems I have with the Bill.

I accept the need for a serious, well regulated fishery control regime. I recently read a book entitled The End of the Line by a distinguished English journalist, Charles Clover who, with many other commentators, has graphically illustrated the dangerous state of world and European fishing stocks and the fundamental necessity to take seriously the maintenance of the fragile marine ecosystem. I also accept that the Secretary General raised genuine concerns about the legality of current fines and penalties for fisheries offences which resulted from the Supreme Court case taken by fisherman, Mr. Vincent Browne.

Sustainability must be the key principle of fisheries management and is a prerequisite for a viable industry. Chapters 2 and 3 of the Bill provide for many important tools to achieve this result. The key failure of the Department in introducing this important legislation has been the virtual absence of consultation with stakeholders and their political representatives. As I noted, this failure has resulted in the developments of recent weeks.

The Labour Party continues to have fundamental problems with the Bill, which is the reason I oppose it in its current form and called a division. They include the level of fines and penalties provided for in section 4 and the lack of consistency with our EU partner states. Fishermen and the representatives of maritime communities have also raised a grave concern regarding the criminalisation of seemingly minor offences.

It must be admitted that the Common Fisheries Policy, in many aspects of its administration, has failed. It was no surprise that at the previous general election, one of the major parties advocated abolishing the policy and starting over again. The monitoring of vessels from France, Spain and other countries is also a key concern. In addition, a question mark continues to hang over the independence of the seafood control manager. I welcome, however, the commitment the Minister of State appears to have made this morning. I will return to other concerns I have with the Bill.

During my time in the House, I have never witnessed such a farcical circus as that which developed around the Sea-Fisheries and Maritime Jurisdiction Bill 2005. When I first read the text several weeks ago a number of issues leaped from the page, including the possible use of force against fishing boats, the high level of fines under the penalties for certain indictable offences, the transfer of the prosecution of sea fisheries offences from the Office of the Attorney General to the Office of the Director of Public Prosecutions, the precise status of the seafood control manager, an apparent element of retrospection in section 68 and the proposed passage of only 20 articles of the United Nations Convention of the Law of the Sea 1982.

I was amazed, however, that the Department did not provide Members with a lengthy briefing document on these and other important matters related to the proposed control regimes. I was also astonished that an abstract of the current proposed fisheries control mechanism was not submitted to the Joint Committee on Communications, Marine and Natural Resources in the summer session or by mid-September at the latest for discussion by Deputies and Senators and consultation between the joint committee and the main fisheries organisations and fishery harbour development bodies.

Instead, we received the Bill a few days after a reportedly acrimonious meeting of the Fianna Fáil Parliamentary Party. A meeting of the Joint Committee on Communications, Marine and Natural Resources was then hastily convened by its Chairman, Deputy O'Flynn. At that meeting, several Deputies from the Fianna Fáil Party stated on the record that they would vote against the Bill because it was extremely harsh and out of line with the regimes in place in our European Union sister states. Civil servants in the Department were effectively hung out to dry and blamed for the Bill, yet it was Fianna Fáil Party Ministers who published and introduced the Bill. On two occasions this morning, during an electronic and a manual vote, Deputies reneged on their commitment and voted for every aspect of the Bill. What arrant hypocrisy.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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We will have a debate on——

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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They engaged in hypocrisy. If the Deputy examines my career he will find that one of my fundamental rules has been to walk the walk if I talk the talk. Members of the Fianna Fáil Party do not have the honour and integrity to do likewise.

Following the meeting of the joint committee, the Bill, which was due to be taken the following day, was withdrawn. On three occasions I asked the Taoiseach, Minister for Finance and Minister for Foreign Affairs, respectively, whether the legislation would be changed and when it would be reintroduced. It is the Government's duty to govern.

The Secretary General of the Department provided Members with a lengthy written submission on the reason comprehensive legislation on the new control mechanism was a legal requirement on the Irish Government and other European Union Governments. As I stated, I have concerns about this matter. We had an outrageous circus around the Bill involving the joint committee and now, I understand, a gaggle of MEPs from whom we generally do not hear from one end of their five-year period of office to another is also involved. This was a disgraceful episode which should never be repeated on any other legislation.

One useful initiative taken by the joint committee was to visit Killybegs earlier this year. The final words said to us on that two-day visit to the headquarters of the Killybegs Fishermen's Organisation, which I remember well, were that our fisheries should be viewed as a sustainable sunrise industry rather than what they believed was the constant vision of a sunset industry in terminal decline coming from many political quarters and the media. We said to them that surely involves serious control mechanisms and sustainability. However, the Killybegs fishermen left Deputies and Senators with the vision of a vibrant, viable and sustainable industry, one that the Labour Party and I share and at which we will always aim.

The two Pádraic White reports, Proposals and Recommendations for the Review of the Common Fisheries Policy, published in 2000, and Decommissioning Requirements for Ireland's Demersal and Shellfish Fleets, published last July, lay out some of the key requirements for sustainable and dynamic Irish sea fisheries. In February 2005, according to the second report, 1,415 vessels were registered under the new licensing system, with a further 755 traditional in-shore vessels, all less than 12 metres long, then being incorporated into the fishing fleet register. The total capacity of the Irish fishing fleet at the time was almost 87,000 gross tonnes, of which almost 42% was represented by 23 vessels of the pelagic fleet. The recent White report shows that Ireland's demersal quotas declined from 60,000 tonnes to under 40,000 tonnes between 1990 and 2005.

Other important concerns raised in the report include the average age of vessels in the fleet, which was 26.5 years, the rising cost of fuel, and new safety standards, which were thankfully made mandatory for all vessels over 24 metres from 1 July 2005. On the basis of current trends, Mr. White was right to recommend the current decommissioning scheme to remove 25%, or almost 11,000 tonnes, of the whitefish fleet and the reduction of the scallop fleet to a level just under 5,000 kw.

The report was rightly very concerned to ring-fence residual fleet capacity, a matter that must be addressed. Those reports from widely based committees in 2000 and 2005 rang alarm bells regarding sustainability and mentioned two thirds of fish stocks in European waters heading for extinction, a grave and disastrous situation. It also made proposals for the involvement of stakeholders in the decision-making process, something that certainly did not take place regarding this Bill or the farce surrounding it. Our visit to Killybegs and my knowledge of the other national fishery ports, including my own port of Howth, show that there has been no serious attempt to involve stakeholders.

As I mentioned in my introduction, today's debate takes place against the background of the recent letter of the Secretary General, Mr. Brendan Tuohy, which refers to ongoing serious allegations of illegal fishing and overfishing. An investigation is under way, led by the Garda bureau of criminal investigation, into allegations of very serious overfishing at Killybegs. Mr. Tuohy refers at length to other serious allegations made by Mr. Ciarán Crummy, who I believe was a skipper out of Howth. All that has taken place in the context of renewed international debate on serious overfishing, failure to observe quotas and fishing effort, as outlined recently in many important works, including Charles Clover's The End of the Line, which I recently read.

With 11% of EU waters and guardianship of 300,000 sq. miles of ocean, Ireland has a very special responsibility for marine ecosystems and fisheries management, and a well-regulated system of control is vital to its national self-respect. That is why I believe that our officials were right to address ongoing problems. I have said that I disagreed with some of the solutions, but their ambition to try to do something about matters was genuine, something that I also believe of the Minister.

A sustainable and profitable future for Irish fisheries is possible, but achieving it requires that all relevant stakeholders and the Government work together to tackle major challenges for the industry. It is clear that sustainability and profitability should be the two key guiding principles regarding the future direction of the Irish fishing industry. In the long term, it cannot be profitable if it is not sustainable, since it destroys the very stocks that it needs to function. However, an unprofitable industry will not be sustainable either, as short-term economic pressures will lead to overfishing and non-compliance with the fisheries management regime. Sustainability and profitability are complementary objectives to ensure an Irish fishing industry that is globally competitive and has a vibrant long-term future.

The issue of how to achieve high levels of compliance most effectively has been at the core of opposition to the Bill. It should have been part of lengthy discussions and consultations, in which I would have been delighted to participate. In many parts of the fishing industry around Europe, low levels of compliance with management rules have been a serious cause of unsustainability and the destruction of fishing stocks. It is clear from research carried out on the issue that enforcement alone will not guarantee high levels of compliance with management rules. Structural problems, including unprofitability, lack of trust in the current fisheries management system, a low probability of being successfully caught and prosecuted and very modest financial penalties also contribute to high levels of non-compliance.

Better enforcement is necessary for a more effective fisheries management system. However, trust and profit levels should also be addressed. Research undertaken by the strategy unit attached to Prime Minister Blair's Cabinet office found that in the UK, even if levels of fines and successful prosecutions were "10 to 20 times higher than they are at present there would still be significant illegal landing of fish." It is also true that many fishermen and fishing communities in general do not see non-compliance with fisheries management systems as criminal. The criminalisation of fishermen has been a major issue with fishermen's groups in the wake of publication of the Bill.

While I am bitterly opposed to any illegal activity that endangers the fish stocks of this island, in the international experience, the most effective route for implementing a workable and successful means of control seems to be to impose harsh criminal penalties only on the most persistent and extreme offenders. Other breaches should be dealt with by mechanisms such as administrative penalties, on-the-spot fines, and a transparent and predictable points system on licences similar to what happens to owners of motor vehicles found to be transgressing the law.

Fisheries enforcement agencies should establish more capacity in forensic accounting and more concentrated targeting of high-risk vessels. Tracking catches from the initial landing to production and through the distribution chain would prove a much more effective way of deterring illegal activity and encourage compliance. I acknowledge that the Bill addresses some of those issues. Such traceability throughout the entire system would bring about more profound changes in fisheries management and ensure greater accountability regarding declared catches and production.

Repeat and unrepentant offenders must be dealt with in the harshest terms, and criminal proceedings used in such instances. A key factor in establishing a fisheries management system with a high level of compliance is that there be a significant level of consultation and participation on the part of the fishing community itself and that it generate greater levels of trust among fishermen in management. It is in that area that we have failed most of all, since we have not involved stakeholders in the Bill before us.

Turning to the Bill itself, I welcome the Minister's comments on section 18(6), which allowed for shots to be fired directly at or into a boat by officers attending the scene. That clause was quite unusual in the powers granted to officers, which went well beyond the normal capability that officers have to fire warning shots or use force proportionate to the situation, especially when defending themselves from attack. It gave carte blanche to officers to fire live ammunition at or into vessels, which could have had grave and potentially fatal consequences. I welcome what the Minister said and note that Mr. Pichon, who came to us from Brittany, told us that under the French regime, if a vessel steams away from the French navy, it is never allowed back into national waters, also a very serious penalty.

In even a cursory reading of the Sea-Fisheries and Maritime Jurisdiction Bill 2005, the levels of indictable fines and penalties in chapter 4 seem disproportionate and out of kilter with other EU regimes. I am aware of the high value of hauls made by large pelagic vessels, but fines of up to €200,000 for a contravention relating to capacity plans of much smaller trawlers seem excessive.

During the debate in the Committee on Communications, Marine and Natural Resources, Mr. Jason Whooley of the South and West Fishermen's Organisation pointed out that, in the current era of high operating costs, a fine of €50,000 is sufficient to put many fishing operations out of business completely. Mr. Whooley also made comparisons between penalties for licence offences in Spain and Ireland. In the former, it was €1,463, and in the latter it is currently €21,400. Log-book offences in Denmark carried a €393 penalty, while in Ireland the figure was €8,455. Conservation offences carried a fine of €2,398 in the UK and €23,125 in Ireland. Mr. Whooley and the fishing organisations made reasonable points regarding why sanction regimes throughout fishing countries should be reasonably standardised. Fishing industry representatives have raised the issue of graduated sanctions, with on-the-spot fines followed by more serious sanctions, culminating in a major deterrent fine, forfeiture and even imprisonment for recalcitrant repeat offenders. I stress that the industry itself has asked for that. It would be worth examining a points system, as proposed for the United Kingdom, and perhaps an automatic administrative penalty system where the costs of infringement are well known and transparent.

A common criticism of the Bill in the fishing community since it was published is that fishermen would be criminalised for relatively minor offences and that this compares unfavourably with the civil law European Union states which have a system of administrative penalties for lower type business and competition regulatory offences. Section 40 makes a major change in the prosecution of sea fishery offences where provision is made for the transfer of prosecution from the Attorney General to the Director of Public Prosecutions. There have been significant discussions of administrative fines regarding the powers of regulatory agencies in recent times. The Irish Financial Services Regulatory Authority, for example, has powers to levy administrative fines of up to €5 million under the Central Bank and Financial Services Authority of Ireland Act.

Last year, the Minister, Deputy Dermot Ahern, asked his officials at the time to try to model a penalty regime for ComReg on powers similar to those of IFSRA. Some legal commentators have asked whether the IFSRA administrative fines are compatible with Article 38 of the Constitution which confers the administration of justice in criminal matters to the Judiciary. However, as the Labour Party leader noted in a letter on the matter to the Taoiseach, Deputy Bertie Ahern, on 6 October 2004, there may well be a category of administrative penalty which can be imposed by a lay regulator, as is done at EU level, without breaching the Constitution. The Taoiseach replied on 1 December 2004 to my party leader that there is already provision in our legislative code for the imposition of sanctions that arise in administrative proceedings, and the Taoiseach quoted the Stock Exchange, the Law Society, the Medical Council etc., with a right of appeal to the High Court. The Taoiseach appears to confirm, therefore, that a system of administrative penalties could be imposed, perhaps through the seafood control manager.

One of the most disturbing aspects of the recent appearance of the Naval commodore at the Joint Committee on Communications, Marine and Natural Resources was the questions that arose over the monitoring of non-Irish vessels. More than 57% of vessels with hulls of more than 15 metres operating in the Irish zone were foreign vessels. There were 1,700 boardings of vessels by the Irish Navy so far in 2005, which led to 94 warnings and 33 detentions. Of those, 68 warnings were given to Irish vessels and 18 of the 33 detentions were of Irish vessels. Commodore Lynch noted, however, that there were significant difficulties in monitoring the quotas of non-Irish vessels. Many of those, for example, the Spanish vessels, belong to co-operatives where quotas were shared in a complex manner only the vessel's home government could hope to understand and monitor. In any event, Commodore Lynch said that the Naval Service "does not have the means to police the quotas of other countries". He further stated: "That is not our role".

The problem revealed by Commodore Lynch's very detailed and helpful exposition to the Joint Committee on Communications, Marine and Natural Resources is not addressed in this Bill, and perhaps it should be examined. Irish fishermen and fishing communities have a legitimate, long-standing complaint about the cavalier manner in which foreign vessels can over-fish with impunity, devastate pressurised species and simply steam off home. We believed the establishment of the EU fisheries control agency at Vigo — the Minister of State will remember I advocated that it should be located in Killybegs — would lead to a level playing pitch throughout EU waters but the reality until now appears to discriminate severely against our fishing industry. Surely it is possible to give the fishing monitoring service at Haulbowline a wider role in this Bill to liaise closely with the agency at Vigo, when it is up and running, and other EU navies to provide clear and transparent monitoring of all vessels in the Irish zone. Perhaps we should have a section in the Bill referring to that, something our civil servants might examine.

Section 41 introduces a major new development with the introduction of a seafood control manager who will be appointed by the Secretary General of the Department and whose job will be to inform the prosecutor of any contravention of the Sea Fisheries Acts of 2003 and 2005 and any other food safety law breaches. The seafood control manager is also charged with the promotion of compliance with the Sea Fisheries Acts and the provision of policy advice to the Minister and the Secretary General of the Department.

As the Minister of State is aware, serious concerns have been raised about the independence of this office. The appointment is made by the Secretary General and is responsible to the Secretary General and while I have no wish to cast aspersions on our hard-working civil servants, the seafood control manager will be appointed and be responsible to a non-elected official. Where is the accountability in that regard? The Minister of State mentioned earlier an independent agency but could we not use this Bill for that? Why come back to the Dáil? Why not use the Bill as it stands to make the seafood control agency a type of independent regulator for the industry which would do its job in trying to protect stocks, manage the industry and be fair to everybody. At the meeting of the Select Committee on Communications, Marine and Natural Resources I raised with the Minister of State the possibility of the role of the seafood control manager evolving into a regulatory-type body and, therefore, I welcome his references this morning.

I want to refer briefly to other areas of concern which I hope to address also by way of amendment on Committee Stage. Section 11(1) refers to contravention of an obligation imposed by an EU regulation but given the Vincent Browne Supreme Court ruling, surely there is an obligation on the State to ensure that such a regulation is also codified in Irish law. The impact of the Vincent Browne case and the creation of indictable offences under statutory instruments that were struck down is the major reason the Secretary General of the Department gave for the urgent necessity to introduce this Bill. The Department maintains that no regime is in place currently but having spoken to fisheries leaders who came before our committee and who have been around the House in recent days, the reality appears to be that there is an ongoing regime of hearings, cases and serious punishments, despite the infirmity of the regulations as revealed in the Vincent Browne case.

Concerns have also been expressed about the notice of the expected port of landing under section 12 and the notice of the revocation of an authorisation to fish by the Minister where unexpected difficulties arise for a master or owner, for example, if they must go to a different port because the boat is in difficulties or whatever. We may need to insert a clause to that effect in the Bill. The provision for destruction of fish in section 17(3) seems unnecessarily wasteful and problems may occur in future with the immunity provisions for sea fisheries protection officers in section 26.

Section 28(5) appears to refer to the forfeiture of catch and fishing gear for Irish vessels. Again, that appears to be very unfair. Under section 41(6), the seafood control manager should also be required to report periodically to the relevant Oireachtas joint committee, which currently is the Joint Committee on Communications, Marine and Natural Resources. There is also a criticism that section 42 is too restrictive on the directions the Minister may give to the registrar general of fishing boats.

I warmly welcome Part 3 on the maritime jurisdiction of the State, including the exclusive economic zone and exclusive fishing limits. Section 54 incorporates Part V of the United Nations Convention on the Law of the Sea 1982 — Articles 55 to 75.

We discussed yesterday the short Bill the Labour Party has brought forward, the Mercantile Marine (Avoidance of Flags of Convenience) Bill 2005. That legislation seeks to insert section 91(1) of the UN Convention on the Law of the Sea into Irish law. The key point is that any vessel reflagging to the flag of another country would have to be able to have a genuine connection with the country to which it was reflagging. On a point of clarification, did the Minister of State say yesterday that he would support that Bill on Second Stage?

Photo of Pat GallagherPat Gallagher (Donegal South West, Fianna Fail)
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I said I would not oppose it in Private Members' business.

1:00 pm

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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I thought the Minister said he would support it in Private Members' business. The Bill is an opportunity to bring the rest of the UN convention into Irish law and would greatly strengthen our powers in many aspects.

I have outlined the views of the Labour Party. We oppose the Second Reading of the Bill under discussion because it raises many contentious and serious issues which have not been addressed. The presentation of the Bill was disastrous in that it was published suddenly with a total lack of consultation. We accept the need for a serious control regime because sustainability and profitability go hand in hand. There will not be any profitability without sustainability. However, concerns have been expressed worldwide about the sustainability of our marine ecosystems and resources.

The fundamental problems with the Bill include the levels of fines and penalties in Chapter 4, the lack of consistency with the regimes of our EU partners, the genuine concerns raised by representatives of fishermen and maritime communities about criminalisation, the failure of the Common Fisheries Policy in monitoring and the issue of the role of the seafood control manager. Those are serious issues on which there should have been wider consultation in the preliminary discussion of the Bill. For that reason, I oppose the Bill. I have other minor concerns about the Bill but the circus surrounding its publication is a valuable lesson in how not to produce and bring important legislation to and successfully through the Oireachtas.

Photo of Martin FerrisMartin Ferris (Kerry North, Sinn Fein)
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I propose to share time with Deputies Cowley and Eamon Ryan.

Photo of Séamus KirkSéamus Kirk (Louth, Fianna Fail)
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Do the Deputies propose to share the time equally?

Photo of Martin FerrisMartin Ferris (Kerry North, Sinn Fein)
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Yes.

Photo of Séamus KirkSéamus Kirk (Louth, Fianna Fail)
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Is that agreed? Agreed.

Photo of Martin FerrisMartin Ferris (Kerry North, Sinn Fein)
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The first issue that arises in regard to this Bill is the virtually unanimous opposition that has been voiced across the fishing sector and which has been reflected in this House by representatives of different parties. I commend the Chairman of the Joint Committee on Communications, Marine and Natural Resources, Deputy O'Flynn, on his role in highlighting the deficiencies of the legislation and in seeking the advice of senior counsel in taking those concerns, which are shared by committee members, to Europe.

This Bill is before us on the pretence it is urgently required to protect Irish taxpayers from massive EU fines. This is not the case. Another pretence is that it merely represents a consolidation of existing legislation and serves to correct loopholes in the law arising from a number of Supreme Court cases. This too is untrue. This legislation is evidence of the craven bankruptcy of the fishing policies of this and preceding Governments for many years. It presents fishermen as criminals and seeks to doubly criminalise them. It represents the failure of successive Governments to give any attention to the needs of the fishing industry and amounts to the selling out of one of our most valuable natural resources. The entire approach of the Bill is to discriminate further against Irish fishermen, who catch only 10% of the fish around our coasts. It goes further in setting staging sanctions in place in criminal law which are a recipe to drive decent fishermen underground or leave what was once a proud and noble industry.

It is significant that of the 16 MEPs elected in this country in the 2004 European Parliament election, 14 have signed a letter sent to Deputy O'Flynn, supporting the committee in calling for changes to be made to reflect the grave concerns expressed. In particular, the signatories contend there must be proportionality and fairness in the sanctions imposed by EU member states for fishing violations. They also point out that despite the claims made by defenders of the Bill, the sanctions it contains are not being imposed by the EU. They observe that the sanctions aspect of the Bill is "the sole responsibility of the Irish authorities, on a proposal from their Civil Service".

The fishing sector is clearly outraged by the proposals. In representations made to other Deputies and me, the most common theme is that the fishing industry sees the legislation as a further attempt to criminalise fishermen. Apart altogether from the level of fines that are proposed, fishermen are outraged by the provision contained in section 18 of the Bill for naval patrol vessels to fire live ammunition into fishing boats. I welcome the commitment given by the Minister in this regard today. Most of us have seen the photograph in this morning's newspapers of the Minister for Defence, the toy soldier, aiming a gun at the public. This was the experience for many of us involved in the fishing industry in the 1980s, particularly off the west coast.

The fishing organisations have also stressed that they are not opposed to conservation measures. From my knowledge and experience as a fisherman, the best people to conserve our fishing stocks are fishermen themselves. Those involved in fishing lobsters off the west coast have used notching as a means of conserving the industry. In my own area of Tralee Bay, fishermen are to the forefront in conserving stocks. There would be no stock left were it not for the efforts of fishermen, who are best suited to engage in and have an appreciation of conservation. They of all people have most reason to wish to see stocks preserved because if they are destroyed, it is the fishermen who will suffer as their industry is forced out of existence.

Fishermen do not accept, however, that they and their communities should bear the major part of the responsibility for stock management. Unlike other member states, the fishing organisations here do not even have a statutory involvement in stock management. They also rightfully believe that the major reason stocks in Irish waters have been depleted is the disproportionate part of the quota that may be taken by vessels from other member states. That is evident to those of us who live in coastal communities such as my own in the south west. Foreign vessels and vessels of convenience are taking the stocks from our waters with impunity. The Minister of State comes from a coastal community and must be aware of this. In addition to this problem is the existence of a massive imbalance within the Irish fleet in favour of one large operator which seems to have been allowed swallow up a greater part of the Irish quota at the expense of smaller operators who are finding it increasingly difficult to survive.

In the current atmosphere of distrust and concern, many fishermen are genuinely convinced that there are those within the Department who see this legislation as a means of forcing more of them out of business. In such a scenario, will we be left with one factory ship registered here, dividing the Irish quota with large operators from other member states? Is that what those who drafted this Bill want to see? It is the view of fishermen throughout the State. It is my view and that of Sinn Féin. Current policy is having a devastating effect on traditional fishing activity.

As pointed out by fishing representatives, this Bill should not only be opposed but the debate on it should lead us to question the entire basis under which the fisheries sector is regulated, or rather misregulated. Sinn Féin has pointed out for years the scandalous terms under which our fisheries were sacrificed in the early 1970s as part of the negotiations for EEC membership. One of our potentially most valuable resources was in large part given away, to the extent that the value of fish taken from our waters by other EU fleets since accession outweighs the value of all direct payments received from the EU since 1973. The last calculation I saw for this, some three years ago, put the value of that catch at €40 billion. These facts were completely ignored by a certain journalist who wrote in praise of this Bill some weeks ago and accused fishermen and political opponents of the Bill of being opportunists.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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That is the spin that came from a certain Department.

Photo of Martin FerrisMartin Ferris (Kerry North, Sinn Fein)
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We are in a situation where the Irish fleet is given a quota far below that to which it is entitled given the proportion of EU fishing waters nominally under the sovereignty of the State. Furthermore, the fishing sector is not earning its full potential because of the numbers of unprocessed fish that are exported rather than being processed here. All these issues must be addressed domestically. That is impossible, however, until the Government goes to Brussels and insists on a complete and radical reform of the Common Fisheries Policy. Such a reform should place stock conservation on a proper footing and ensure our fisheries are not at the mercy of those who are happy to fish them out and then move on. The fishermen of Irish coastal communities have nowhere to which they can move their operations. They cannot get licences to fish off the west African coast.

It is vitally important for the future of the fishing industry that this Bill be defeated. I hope those on the Government benches who share the concerns of Opposition Members will vote in accordance with their convictions and those of the fishing representatives who have made their views on this well known. I pay tribute to the Chairman and members of the Joint Committee on Communications, Marine and Natural Resources who have voiced their concerns strongly and sought legal advice on the issue. I hope common sense will prevail. I appeal to the Minister of State, as a public representative from a coastal community, to adhere to the will of the people of his and other communities.

Jerry Cowley (Mayo, Independent)
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Coming from a coastal community, like Deputy Ferris, I am aware of the great dependence of my constituents on the sea for their livelihoods. The Sea-Fisheries and Maritime Jurisdiction Bill's proposals are perceived by many as overkill. While I accept the Minister claimed that much of the Bill was drafted before he took office, it still cries out for some rationality. Many have expressed outrage at the proposal for the Naval Service to shoot at trawlers that fail to stop when requested. Section 18 allows fisheries protection officers to shoot at or into a boat that ignores warning shots and refuses to heave to or fails to comply with an order to port. I welcome the Minister's statement that this section will be amended to take the gun out, so to speak. I wonder will he take the gun away from the Minister for Defence, Deputy O'Dea, pictured in newspapers this morning pointing a gun at the public. While there is a great need for fish stock conservation, it seems the small operator will be hit more.

I recognise the efforts of the Joint Committee on Communications, Marine and Natural Resources. Deputies O'Flynn, Perry and others travelled to Brussels to discover the Bill's proposals did not emanate from there. The draconian elements were actually proposed by the Government. This was a useful fact-finding exercise. That boats can be confiscated sounds very heavy-handed. It must be examined if conservation can be enforced in a different manner with the same results. It must also be remembered that the fines from Brussels are not of a criminal sanction. The Bill's proposals are excessive with no consultation between the Department of Communications, Marine and Natural Resources and the fishing industry. While it is important to keep an eye on proposals from the EU, it is equally important to keep an eye on what proposals are being made by the Government.

There was a great need to help those using drift-net and draft-net fishing methods. There was an expectation that they would be bought out. However, this cannot happen unless everyone is treated equally. An individual fisherman catching 50 salmon would have to pay the same licence fee of €325 as one catching several hundred salmon. If a buy-out was introduced, all operators would have to be treated the same.

The Government feels the best way to manage our fisheries is through quotas. However to single out the drift-net and draft-net fishermen to bear the brunt of the conservation measures is unjust. The Minister's comments on quotas further grinds the small operators into the ground, killing them off by slow strangulation. Lowering the quotas and reducing times allowed for fishing targets our coastal communities, depriving them of an opportunity to make a living. The small operator is getting the tough end of the wedge.

The set-aside scheme to conserve stocks was proposed under which fishermen would be compensated for fishing losses. The Government claimed it would introduce the proposal if there was some means to measure the scheme. The criteria for measuring the scheme and counting fish stocks in rivers were fulfilled. However, the scheme proposed by the Government depended on owners of private fisheries putting money into the scheme. This was promised to fishermen in 2002 but it still has not been implemented. The Government failed to act on its own scientific advice in this regard.

Moves are afoot to abolish the regional fisheries boards which must be properly debated. The review of the inland fisheries sections recommends the establishment of an advisory board. This centralisation of the fisheries board is akin to what happened with the abolition of the health boards, removing democracy from the whole system. Power is being taken back from the regions to central Government. We cannot throw out the baby with the bath water. We must ensure democracy is not removed from the system.

A review of the boards was carried out two years ago. Why is it only now that it is coming to light? Why is the Minister responding in this way without any adequate notice to anyone involved in the industry? It seems to be a fait accompli to have one board for the entire country with sub-boards which will have no real say like the Health Service Executive. They will be accountable only to central Government but not to the people.

While the fisheries boards are doing a good job in managing stocks, they do not have the adequate resources they need. If the fisheries go back to the stakeholers, will the resources follow to ensure the same protection of fish stocks? This is another example of increased centralisation, resulting in the reduction of local democracy. This will take away affordability from ordinary anglers. The fisheries boards appear to be underfunded. Their abolition is not panacea to address underfunding. This process will take five years. If all this comes to pass, what of the employment prospects of the fisheries boards' employees, particularly when there are barely enough resources to keep the show on the road now?

There needs to be continued protection of our fisheries with adequate resources. How will the IFA, anglers, the tourism industry and others affected have their say when the boards are replaced with the new authority? Will it be the same rationalisation process experienced by the health services at the expense of democracy? I would like the Minister of State to answer these questions if possible. The Bill is an over-reaction and I agree with the necessary amendments that are to be tabled to take the gun out of the legislation, so to speak.

Photo of Eamon RyanEamon Ryan (Dublin South, Green Party)
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I support this Bill, and we must address what is one of the worst and largest environmental scandals in this country and Europe, namely, the depletion, collapse and pillage of our fish stocks. Each year scientists and the relevant committee indicate the state of these stocks. The latest update was provided last year before a decision was made on the 2005 quota, with the state of various stocks being quoted.

Irish Sea cod was deemed to be harvested unsustainably and overfished and a recommended zero quota. Irish Sea haddock was deemed harvested unsustainably and overfished and had a recommended quota cut of 10%. Whiting in the Celtic Sea was deemed harvested unsustainably and overfished, with a recommendation of cutting to the least possible quota. Celtic Sea sole was deemed harvested unsustainably and overfished, with a recommended quota cut of7%. Plaice was deemed at increased risk and overfished, with a recommended quota cut of 54%. Hake was deemed to have an unknown stock status and be overfished, with a recommended quota cut of 14%. In Donegal, cod was deemed harvested unsustainably and overfished, with a recommended zero quota. The mackerel quota was recommended to be cut by another 30% because of unsustainable harvesting.

Such findings put us in a difficult position, and the Minister of State has my sympathy because it puts him in a tough position. It is a time of retrenchment in an industry which affects the Minister of State's constituency, and he has my sympathy and support in his actions. He has my support in this Bill, although I am interested to see what amendments are tabled. We must address the scandal and begin to set the fishing industry on the correct course so it has a sustainable long-term future.

I do not wish to criminalise anybody involved in fisheries, as the current system does to a certain extent. It has also criminalised the political system. Nobody is accusing the Minister of State on the issue of vessel licences for very large boats as he was not here at the time. There is no question of his involvement in it.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Minister of State's colleagues have questions to answer.

Photo of Eamon RyanEamon Ryan (Dublin South, Green Party)
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In the view of almost everybody who examines it, the process in which certain large vessel licences were allowed stinks. The massive transfer of good public money to individual fleet owners in this regard was an utter scandal. The proposals we pushed through in the Oireachtas to separate the licensing and control from what could facilitate political corruption is welcome. All sides of this House would surely agree on this.

It is remarkable that this Bill is required. We are spending a fortune on fisheries protection. Taking into account just the naval and air service and leaving aside court, administrative or departmental costs, we are spending approximately €100 million per annum on fisheries protection. This is to land a fishery stock valued at the quay at approximately €200 million. Half the money we receive from landing the stock is spent on protection. It makes sense to use such money correctly. Everyone will admit unofficially that there is a free-for-all in the industry for various reasons. There is no regulation or proper control and we must introduce it.

The public wants this although certain individuals may not. The majority wish to see this money well spent. We spent the last five or six years spending about €55 million in public money building up new vessels at a time when we knew the service would have to contract. We also issued licences for specific stocks at the same time. We have recently spent €45 million decommissioning vessels. This is indicative of the madness afoot in our fisheries policy and the Common Fisheries Policy. The sooner this is recognised and addressed rather than having certain vested interests protected, the better. We would do the public a favour by doing so.

The Vincent Browne case is an important issue and I am concerned this Bill does not address that issue in a manner that will stand up legally. I am told that the case has significant consequences in the fisheries and a range of other areas. It may require a referendum if we are not able to unpick in a legislative manner the problem analysed by the Supreme Court. I am concerned about the mechanism used in sections 14 and 15 which in a sense replicates the conditions under European fisheries regulations into Irish regulations. These are claimed to be supplementary measures. Perhaps the Government's lawyers are contending that these mechanisms will work in a clever legal way. I am concerned whether this will be so or whether further action might be needed. This is one of several concerns I have about the Bill.

I agree with issues raised by some Deputies and would look to amend the Bill. However, in principle I support it. One change I wish to see made is a move to administrative sanctions. It makes sense to remove lawyers from the equation and I would like to remove lawyers from many aspects of the way in which society is run. There is much cost and difficulty involved in this and it makes sense to move towards administrative sanctions in some way. Article 31 of the European regulations on the issue state that: "Member states shall ensure that appropriate measures be taken, including administrative action or criminal proceedings, in conformity with their own national law". It lists in some detail the ability to impose fines, seizure of vessels etc.

The Minister of State has contended that Article 34 of the Constitution requires us to turn to European law as it supersedes the Constitution and directs us that administrative sanctions can be applied. I do not believe the European Union will do so as European regulation is consistent in being subject to national law. If the Minister of State is willing to take a legal route in solving the issue brought about by the Vincent Browne judgment, he may take a legal risk on this issue. I am interested to see details of the judgment on the matter from the lawyers in the Office of the Attorney General.

The provisions of Article 34 of the Constitution state that justice should be administered by judges in courts established by law except in special and limited cases that may be prescribed by law. Our job as legislators is to set the law and I would be happy to set a legislative precedent stating that we see this case as legally special where it is more appropriate to have administrative sanctions. This is supported in some detail by European regulations. I would like to hear the view of the Supreme Court judges that would argue that they are the only people who could possibly make judgment or allow forfeiture, fines, etc.

It is about time that we as politicians took responsibility for leadership. It is difficult for us to do so in committee because of Abbeylara and other judgments but we can do it through legislation. The Supreme Court can then decide if our remit is being exceeded. Our actions would be backed up by European legislation. My colleagues in the committee and I believe this change would make sense as we must speed up the process and make it more definite, cheaper and easier to administer. Rather than having a representative go to Brussels to plead for a special case to go to Irish courts to impose administrative sanctions, we should instead try the legislative route. If it fails in the courts, so be it.

Another loophole needs to be addressed in the European arena. We have a free-for-all in the fishery world where larger boats can travel long distances. It is almost impossible for national regimes to know the individual quota of a boat or the allocation it has. This system allows a Spanish boat off the south-west coast of Ireland effectively to fish at will. The only sanction it may have is if the net mesh is the wrong size or some similar issue. This will not cost it, and it will get away with massive overfishing that it may land off Ireland and in the boat's native waters.

Until this loophole in the Common Fisheries Policy is addressed, we will continue to have a free-for-all. This does not just apply to Spanish boats. One hears stories of large new pelagic trawlers which could be taking a load of fish worth up to €2 million in their cargo hold. We need fines of up to €200,000 to impose some type of sanction against these boats. I have heard stories of these boats sailing from off south-west Cork, bypassing Killybegs as they head to land in Norway or Scotland. The people in charge of these boats know they can circumvent the quota management system there. This is why the Minister of State's home port of Killybegs is quiet at the moment. We should address that issue and our own housekeeping.

The Commission is currently taking action against Ireland on seven infringements of European fisheries legislation. The French Government was recently fined up to €57 million for a similar infringement of regulations. We are facing such penalties here. The people will see us as doing no service if we ignore this issue and do not ensure that we have the very best of legislation to implement European laws. The greater and more important long-term issue is that the people will see us as having utterly failed if we allow the continued plundering of stocks that must be nurtured for the fishing community in the long term and also the Irish, European and international populations. I intend to support this Bill subject to the amendments that might be tabled on Committee Stage and others.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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The issue of fisheries has been to the fore of the discussions of the Joint Committee on Communications, Marine and Natural Resources, of which I have the honour of being chairman. The second meeting of the committee discussed reform of the CFP and the then forthcoming TAC and quota negotiations at the December Agriculture and Fisheries Council. The meeting lasted four hours and we heard from the then Minister for Communications, Marine and Natural Resources, Deputy Dermot Ahern, departmental staff, fishery industry representatives, BIM and the Marine Institute. The joint committee has been exercised by fisheries.

Since my appointment as chairman, I have come to understand the pivotal role fishing plays in the sustainability and development of Ireland's peripheral coastal fishing communities. I am an advocate of trying to ensure that these communities survive and thrive. I do not have any deep sea fishing vessels in my constituency of Cork North-Central. I have no vested interests in the fishing industry.

This Bill was considered in detail at an all day hearing of the joint committee on 12 October. As part of my research, I discovered that the base legislation dealing with fisheries was the Merchant Shipping Act 1894, when Queen Victoria was the English monarch. This legislation was consolidated with the Fisheries (Consolidation) Act 1959. In 2005, this Bill rewrites and updates Part xiii, which deals with fisheries. I welcome this move but have certain reservations. Only a few weeks after the bicentennial celebration of Nelson's victory at Trafalgar we find an Irish Bill proposing to allow the firing of a gun at or into a boat. When I recently mentioned this in Brussels, there was astonishment that Ireland would propose such legislation, and particularly at the thought that a gun could be fired into or at a vessel of another member state. I welcome the Minister's intention to remove this provision from the Bill. Perhaps we could let Queen Victoria rest in peace.

I echo what the industry put on the record when it presented to the joint committee and the position of the vast majority of the committee's members, which has been expressed by a number of Deputies today. Fishery offences and infringements of the rules of the Common Fisheries Policy must be sanctioned and cannot be tolerated. I want it to be understood in the clearest terms that no one condones illegal fishing.

I mentioned Brussels a moment ago. Following the hearings on 12 October, the joint committee agreed to have a delegation visit Brussels to explore the EU's thinking behind the enforcement of the CFP and how this has impacted on the legislation proposed. The visit was informative. We met Commissioner Joe Borg's chef de cabinet, members of the European Parliament's Fisheries Committee, Irish MEPs and Commission officials. We discovered two central issues, namely, Commission or competency creep and proportionality. This Bill is not proportional, which is a key issue the Minister must address before he takes it on to Committee Stage.

As mentioned by my colleagues on the opposite benches, the Commission's reports highlight the principle of proportionality. A total of 86% of all fishery offences are dealt with by administrative penalties across the EU. The Bill proposes to rewrite Part xiii of the 1959 Act and we therefore have the opportunity to introduce legislation to put in place a fishery management, control and enforcement regime than could be the best in Europe. My concern as an elected legislator is that what will be enacted in this legislation will not be fair and proportional. In my reading of it, I do not believe the Department is adhering to the proportionality principle.

In correspondence from the Department pertaining to a commentary on the need for this Bill, I note a justification proffered that member states have strong, effective, dissuasive, transparent fisheries management and enforcement systems. I also note from the Commission's documentation that contrary behaviour should attract proportional, effective and dissuasive penalties imposed by national authorities. The one difference between the Department and the Commission's document is the word "proportional".

What is Commission or competency creep? I was unaware of it prior to going to Brussels. I recommend that all Deputies who are committee members visit Brussels more often and see at first hand how the work taking place in the EU impacts on the legislation we consider in the Dáil. I am echoing some of the points the Acting Chairman has been making for a long time. Commission or competency creep can best be seen in section 14 where the Minister can, by regulation, prescribe measures in respect of the CFP on those who buy, handle, weigh, transport, ship, land, process, store, document or sell fish. The Commission has sought to creep the competency of the CFP from the sea to the land. Through this section, the CFP has come ashore, grown legs and begun chasing processors.

Categorically speaking, there should be no place for those involved in anything to do with illegal fish, namely, undersized fish. However, there is a world of difference between illegal fishing and the catching of illegal fish. I agree with Deputy Eamon Ryan that we must introduce Irish legislation to criminalise those who catch or are involved with undersized fish. From this benchmark, there must be administrative sanctions for lesser offences. We must be proportional, set the mark for the worst offence and work downwards. This legislation sets the bar as high as possible for relatively minor offences and then pushes into the stratosphere the sanctions to be imposed for serious offences. This is as unreal as the Commission's expansion of its competency.

Last night I read the European Court of Justice judgment in case No. 304/02 Commission v. France. In paragraph 73 of the judgment, I found that the court knew about proportionality, as it held:

Accordingly, in light of the detailed evidence submitted by the Commission, the information adduced by the French Government is not sufficiently substantial to demonstrate that the measures which it has implemented so far as concerns the taking of action in respect of infringements of the fisheries rules display the efficacy, proportionality and deterrence necessary to meet its obligation to ensure the effectiveness of the Community system for conservation and management of fishery resources.

There is the word "proportionality" again. That seven cases have been initiated by the Commission against Ireland and the Department has made members of the joint committee aware of the Commission's case against France and that, in terms of some of the cases taken against Ireland, there is created a potential significant exposure to the State.

Is the main reason the Commission has taken seven cases against us because our legislation imposing sanctions for fisheries offences is so appalling that the Department must propose this legislation? Alternatively, is it the truth that the Department has at an operational level been poor in how it manages the control, monitoring and enforcement required by the CFP and that, in the main, has been legislated for by this Oireachtas at the rate of nearly one new or amending Act every two years? The Department comes to the Oireachtas with a proposal for stronger and more draconian legislation. I want to ensure we have a regime in place that covers Ireland's obligations under the CFP. I do not want Ireland to be continually exposed to the European Commission identifying deficiencies which as a member state Ireland must address.

Since 2000 the Oireachtas has passed the Fisheries (Amendment) Act 2000, the Fisheries (Amendment) Act 2001 and the Fisheries (Amendment) Act 2003 and we are now dealing with Sea-Fisheries and Maritime Jurisdiction Bill 2005. In terms of legislating for fisheries this Oireachtas is becoming a serial legislator. It is almost an annual event, like the budget. Will the Department ever get it right?

I will consider the matter of the Supreme Court rulings in the Browne and Kennedy cases, which in addition to the European Commission actions against Ireland, the Department are using as part justification for the need for this Bill. I do not dispute that the Supreme Court rulings have created an obligation to amend legislation. This is not confined to the Department. The Supreme Court judgments in the Browne and Kennedy cases have serious implications for all Departments. However, if all Departments take the same attitude as the Department of Communications, Marine and Natural Resources in how they seek to comply legislatively with the Supreme Court rulings, then the electorate will wreak havoc come the general election.

As Deputy Perry stated, the Supreme Court judgment in the Kennedy case ruled:

If s[ection].223A were considered an appropriate basis for the statutory instrument it would, as pointed out by Keane CJ, in Browne v. Ireland. be used to circumvent s[ection] 224B (quite apart from any consideration of s[ection] 3(3) of the Act of 1972).

This is interesting in the context of the Supreme Court judgment in the Browne case which held:

[T]hat it was not open to the Minister to use the mechanism of s[ection] 223A of the Fisheries (Consolidation) Act 1959 (inserted by s[ection] 9 of the Fisheries (Amendment) Act 1978, amended by s[ection] 4 of the Fisheries (Amendment)Act 1983) to create an indictable offence by means of statutory instrument as a method of giving effect to Council Regulation (EC) No. 894/97 of 29 April 1997 as amended by Council Regulation (EC) No. 1239/98 of 8 June 1998.

The spin emanating from Leeson Lane is that as a result of the Supreme Court judgment, there is no effective fishery law and Ireland is leaving itself swinging in the wind. This is untrue and must be nailed right here and now. Why did the Department sit on its hands since 2003 when the Supreme Court found a deficiency in section 223A, the very section that was again found repugnant in 2005 in the Kennedy case? Is the Department slow to learn a lesson? Why did the Department have to wait a full two years to be told again by the Supreme Court that section 223A was deficient before it brought this Bill forward?

The defect found by the Supreme Court was that if it is required to give effect by statutory instrument to an obligation of an EU policy or an EU legislative provision, it must be referenced by an Act of the Oireachtas. As my colleagues have said, this applies to every Department. To put about the spin that because of the Supreme Court judgments in the Browne and Kennedy cases, we have no effective fisheries law is patently dishonest.

The hearings of the Joint Committee on Communications, Marine and Natural Resources on 12 October highlighted the fact that in proposing this radical rewriting of Part XIII of the 1959 Act, the Department consulted no one. This is astounding and has been made all the more incredible when it was known that the Department did not subject this Bill to regulatory impact analysis. I know of no other Department or division of a Department which would behave in such a fashion, ignoring a complete industry together with undermining the viability of peripheral coastal communities without any regard to consultation. Partnership means nothing to the administrators of our national fishery.

This Bill has a unique place in legislation proposed to the Dáil for consideration. It is very rare to find a Bill that proposes too little and too much at the same time. It has too little to address the legitimate concerns of the fishing industry and to give Ireland an effective and functioning fishery control regime and too much to address the Supreme Court judgment and Ireland's obligations under the Common Fisheries Policy.

I want to consider the EU general principle whereby a member state cannot discriminate on the grounds of nationality. I am aware of how European Court of Justice case law has moved out this principle so that member states can impose greater obligations on their own nationals than they can enforce on nationals of other member states. This is called "gold plating" and as a legislator, I want this to stop. I do not support the provisions contained in this Bill whereby Irish fisherman will have, as a statutory consequence of conviction on indictment, automatic forfeiture of gear and catch, while foreign fishermen will have the privilege of the Irish court deciding if they will forfeit their catch and gear. This Bill proposes to continue this discriminatory practice and amendments should be brought forward to change this. I ask the Minister of State to bring forward those amendments on Committee Stage.

The joint committee agreed to go to Brussels and Deputy Broughan was present when this was agreed. No member of the Fianna Fáil party has stated they will oppose the Bill. As Chairman of the joint committee I proposed to bank the questions. I informed Deputy Broughan that the Fianna Fáil party would not go offside on this measure but would endeavour to persuade the Minister to make significant changes to the Bill and that we would not be voting through the lobby with the Deputy. I wish to put this on the record of the House because Deputy Broughan gets carried away on occasion.

Our committee has taken the unusual step of engaging the services of a senior counsel to advise us on this legislation and to advise us on the proportionality and administrative sanctions. The committee will lay this independent advice before the Minister on Committee Stage of the Bill.

Deputy Broughan seems to think we were in a circus in Brussels. I think it was a wonderful opportunity to meet the Irish MEPs and the EU Fisheries Committee. The Irish MEPs will appear before the joint committee to engage in a discussion on the Common Fisheries Policy. The EU Fisheries Committee members will also be invited to attend a general discussion on uniformity, proportionality and other matters of common interest to all EU countries.

I refer to EU document COM (2003) 782 which outlines reports from member states which have seriously infringed the rules of the Common Fisheries Policy in 2002. Belgium was guilty of 49 serious infringements with an average fine of €1,143, Denmark had 442 infringements with an average fine of €622, Germany had 118 infringements with an average fine of €820, Spain had 1,785 infringements with an average fine of €2,126, France had 288 infringements with an average fine of €2,367, Ireland had 26 infringements with an average fine of €11,978 and the United Kingdom had 125 infringements with an average fine of €8,795. The House can see the need for uniformity of sanctions across the EU. Greece, Spain, Portugal, Italy and the UK have the largest fleets with a total of 68,392 vessels out of the 76,942 vessels registered on 1 January 2003. Ireland has 1,437 vessels, or 1.8% of the European fleet. Ireland received 0.38% of the sanctions, yet has the highest level of fines. There is a clear need for uniformity across the EU in levels of fines imposed. This was clearly the view of the EU official, Mr. Gallizioli, who appeared before our committee on 12 October and stated that the Commission believes "an administrative system is better than a criminal system."

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I listened to this debate with great interest. The major question that occurs to me is: who is in favour of this Bill? I have seen the most half-hearted presentation of a Bill by any Minister in the presentation from the Minister of State, Deputy Gallagher. Clearly his heart is not in it.

At some stage I thought I detected from the Opposition benches behind me some strong semblance of support for this Bill in the contribution of Deputy Eamon Ryan of the Green Party. Despite his strong rhetoric in favour of the Bill, he spoiled it all by stating that he was very much against the fact that there was not provision for administrative sanctions as that is the central issue in the Bill. While I understand that, coming from the green corner, he had to make those noises, even he voiced a strong objection to a Bill that does not contain the central feature that anybody with an interest in this industry wants and that he also wants.

Then we heard the main contribution from my colleague, Deputy Perry. On behalf of the Opposition, he set out clearly and unequivocally that Fine Gael is utterly opposed to the Bill in its present form. Fine Gael, in Government, will repeal this Bill. That was largely supported by the spokesmen from the Labour Party and from the Technical Group. Then we heard possibly the strongest criticism of the Bill so far from the Fianna Fáil Chairman of the Oireachtas Joint Committee on Communications, Marine and Natural Resources. I also am aware, from comments made locally in my constituency, of the opposition of Fianna Fáil backbencher and constituency colleague, Deputy O'Donovan.

Who is in favour of this Bill in its present form? Why are we debating the Bill as it is presently formulated? My first simple message to the Minister of State, Deputy Gallagher, is to go back to the Government and tell it nobody in this House, which is the supreme Legislature, is in favour of this Bill as presently formulated. We will adjourn this debate shortly. There will be an opportunity for consideration. I suggest that opportunity should be used for two purposes: first, to withdraw the Bill; and second, to come back to us with a reformulated Bill.

No doubt anybody with an interest in this industry recognises there is need for a Bill. As the principal Opposition party, we accept that. We want a sustainable fishing industry. We want a legal framework which will work and to which our fishermen can give adherence. We accept that following the Supreme Court judgments there is a need for a Bill. We want a Bill with some vision about the development of the industry. We do not want a Bill that crucifies our fishermen, which really is the effect of the Bill as presently formulated.

I accept that the Minister of State speaks reasonably about his willingness to consider amendments. Since he has been forced apparently by the Government to bring this Bill as presently formulated before this House, his reasonableness is not what counts. What counts is the willingness of the Government to take on board the major issues that arise in the context of this Bill and the proper way to do that is for the Government to withdraw the Bill and allow the Minister of State to come back to this House with a new Bill that takes those provisions on board.

The Bill contains a chapter on restriction, a chapter on licensing, a chapter on penalties, a chapter on forfeitures of catch and a chapter on forfeiture of vessels. One can sum it up under the headings of restriction, penalty, confiscation and forfeiture. That is not the message that should come from this House to our fishing industry.

In the few minutes available to me before we adjourn I will focus on the central feature of the Bill on which all parties are agreed, the Bill does not provide for administrative and graded sanctions to decriminalise fishing offences and it must do so. That is the central issue on this Bill and I do not think anybody in this House will disagree with me. Why does the Bill not include that?

The Minister of State quoted the provisions of the Constitution. I accept that under Article 34 of the Constitution, "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution", but while it provides "save in such special and limited cases as may be prescribed by law," that is more to do with the issue of hearings in public. Currently in many instances we have a system whereby, with the consent of an offender, administrative sanctions can be applied. Why can we not have a similar system for our fishermen? Why is the message "please stop treating us as criminals" that comes loud and clear from Mizen Head to Malin Head not taken on board by the Government in the context of this major fisheries legislation?

No doubt this legislation hardens and fastens the criminalisation rules as far as fishermen are concerned and in some instances it is utterly draconian. Despite the expressed good intent of the Minister of State, surely he does not think he can convince this House, let alone the fishermen, that increasing a fine by 800%, from approximately €12,000 to €100,000, is a minor matter. What thinking gives rise to that kind of approach in the Bill?

As has been pointed out by colleagues in this House, we have something to learn from the other members of the European Union. There is a natural long-standing tendency for us to follow the UK system of legislation. I accept we are part of the common law system and on independence we inherited a corpus of legislation. Our system is much the same and there is an understandable tendency to follow on with that system. At the same time, we have been long enough in the European Union to know that there are benefits from the European system. The European system, the old Code Napoleon or the continental law system, has major advantages in many ways. It has particular advantages in the way it deals with fishermen.

Like everybody else in this House, I will not proclaim that all our fishermen are angels as far as the law is concerned. I do not think anybody will suggest that. There needs to be a legal framework to ensure that when they err and stray over the legal line they are dealt with, but let us ensure that it is reasonable. I will come back to that matter.

I am stunned by the following issue that has emerged here and has been touched on by a number of colleagues. How can we justify a system which discriminates against our own Irish fishermen as opposed to fishermen from other member states of the European Union? Often I have seen cases where nationals of other member states of the European Union bring to court a claim that they are not being treated as well as we are being treated, and sometimes with justification, but I have never come across the opposite situation where the Government brings before the House a provision, which I accept may be a continuation of an existing provision that should have been challenged previously, that we treat our own fishermen worse than fishermen from other member states.

Debate adjourned.