Seán Barrett (Dún Laoghaire, Fine Gael)
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Question 68: To ask the Minister for Agriculture, Fisheries and Food when he will introduce administrative sanctions for minor fisheries offences here in view of the recent EU decision to implement administrative sanctions on a harmonised basis throughout Europe; and if he will make a statement on the matter. [43886/08]

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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Ireland has a very important position as custodian of some of the largest and richest fishing waters within the EU, but also in our location on the edge of the Atlantic Ocean. Ireland continues to maintain high standards in the enforcement of regulations within the exclusive fisheries zone, using the resources of the Naval Service, the Air Corps and the Sea-Fisheries Protection Authority.

The systems for dealing with infringements of the Common Fisheries Policy vary greatly from member state to member state and useful comparisons are not easily drawn. Many continental legal systems are different from that of Ireland and lend themselves to an administrative fines and penalties structure. Previous advice from the Attorney General in this regard indicated that under the Irish legal system, the types of penalties which Ireland is obliged to apply under the Common Fisheries Policy would be viewed as criminal in nature and, therefore, could only be administered by the courts by virtue of Articles 34, 37 and 38 of the Constitution.

Under the Sea Fisheries and Maritime Jurisdiction Act 2006, the position is that all sanctions are purely financial in nature. The Act simply sets down the maximum fines that may be applied. No minimum fine is set and it is a matter for a judge, taking into account the specific case, to determine the fine levied. The Act also applied for the first time a scaled approach to setting maximum fines whereby the maximum fines set for smaller vessels are less than for larger vessels. In that respect, the 2006 Act sought to guarantee a degree of proportionality for fines, based on vessel size, a factor which did not exist in the previous legislation.

Administrative fines for fisheries offences could be introduced in Ireland if the infringements and appropriate sanctions were set down in European law. I welcome new proposals which have been brought forward by the EU Commission with regard to introducing a new overall control regulatory framework. These proposals will be examined carefully, including from a legal perspective, to consider if their provisions will support the introduction of administrative sanctions in Ireland.

We have always argued that control levels need to be raised across the European Union if we are to protect the future of stocks in all Community waters and fishing communities throughout the Community who are wholly dependent on those stocks. It is clearly in the interests of the Irish fishing industry and fishing communities that there is strong and effective implementation of the quotas and other conservation measures on all fishing vessels fishing stocks in our zone. I am committed to this in the interest of our fishermen and consequently welcome this proposal for a new control and inspection regulation, including efforts to introduce a harmonised system of sanctions.

Charlie O'Connor (Dublin South West, Fianna Fail)
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Thank you. I call Deputy Jim O'Keeffe, followed by Deputy Sheehan.

Jim O'Keeffe (Cork South West, Fine Gael)
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Can I ask the——

P J Sheehan (Cork South West, Fine Gael)
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Excuse me. I nominated the question.

Charlie O'Connor (Dublin South West, Fianna Fail)
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I do not want to get involved in a dispute between colleagues.

P J Sheehan (Cork South West, Fine Gael)
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As the person who nominated the question, should I not be entitled to speak first in the debate?

Charlie O'Connor (Dublin South West, Fianna Fail)
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I suspect so. However, I thought there was an agreement between the Deputies. That is why I called the other Deputy.

P J Sheehan (Cork South West, Fine Gael)
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I am going to insist on going first.

Charlie O'Connor (Dublin South West, Fianna Fail)
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That is fine. I am happy to facilitate that.

P J Sheehan (Cork South West, Fine Gael)
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I thank the Acting Chairman. That is more like it.

Charlie O'Connor (Dublin South West, Fianna Fail)
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Thereafter, I will take Deputy Jim O'Keeffe's contribution. I make the point that the Chair was innocent in this regard. The Deputy should proceed.

P J Sheehan (Cork South West, Fine Gael)
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Does the Chair receive the list of nominating members?

Charlie O'Connor (Dublin South West, Fianna Fail)
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The Deputy should proceed.

P J Sheehan (Cork South West, Fine Gael)
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I advise him to get it in future, because this has caused disagreement.

Charlie O'Connor (Dublin South West, Fianna Fail)
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I thought there was agreement between both Members.

P J Sheehan (Cork South West, Fine Gael)
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No. While he has an opportunity to speak, I nominated the question one week ago.

Charlie O'Connor (Dublin South West, Fianna Fail)
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The Deputy should proceed.

P J Sheehan (Cork South West, Fine Gael)
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I asked the Minister for Agriculture, Fisheries and Food "when he will introduce administrative sanctions for minor fisheries offences here in view of the recent EU decision to implement administrative sanctions on a harmonised basis throughout Europe; and if he will make a statement on the matter".

While the Minister made a statement on the matter, I wish to raise the use of administrative sanctions in fisheries law. Every country in the European Union has harmonised laws in respect of fishery offences, which are administrative, rather than criminal sanctions. Ireland is the only country in Europe to introduce criminal sanctions against its fishermen and this is not in line with European law.

The Minister should take cognisance that the eminent lawyer and senior counsel, Dr. Gerard Hogan, appeared before the Joint Committee on Agriculture, Fisheries and Food this morning to discuss the constitutionality of administrative sanctions which apply under the Sea-Fisheries and Maritime Jurisdiction Act 2006. His advice to the joint committee's members was that Ireland is not doing the right thing by criminalising its trawler skippers because they might have an additional box or two of monkfish or cod in their catch. How can a trawler owner be responsible for whatever is in a net after two or three hours trawling? In the efforts towards conservation, such an owner is supposed to dump the fish back into the sea because he or she could face a criminal charge were they to be landed. What conservation efforts are served by dumping dead fish into the sea when half the world starves? The Minister is on cloud nine when operating this law of criminalisation. He is criminalising the trawler owners. They have been criminalised for the past ten years and cannot even travel to the United States because they have a criminal indictment against their names.

When will the Minister abide by the advice the joint committee received today from Dr. Gerard Hogan? When will the Minister put in place the necessary legislation to make all fisheries offences administrative, rather than criminal in nature?

Charlie O'Connor (Dublin South West, Fianna Fail)
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The Minister should reply, after which I will allow Deputies Jim O'Keeffe and Sherlock to make brief contributions.

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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This is not the first time I have heard Deputy Sheehan raise this issue at either the Joint Committee on Agriculture, Fisheries and Food or this Chamber. I indicated in my reply:

Previous advice from the Attorney General in this regard indicated that under the Irish legal system the types of penalties which Ireland is obliged to apply under the Common Fisheries Policy would be viewed as criminal in nature and, therefore, could only be administered by the courts by virtue of Articles 34, 37 and 38 of the Constitution.

It also is important to note "administrative fines for fisheries offences could be introduced in Ireland if the infringements and appropriate sanctions were set down in European law". The Attorney General is the legal adviser to the Government and this issue was raised and discussed at length by Members in 2006. At that time, the Attorney General's opinion, which has been reiterated subsequently, is that it was not possible. I am sure the Joint Committee on Agriculture, Fisheries and Food will bring to my Department's attention the advice offered to it today by Dr. Hogan, who undoubtedly is a distinguished senior counsel. One measure to be welcomed is that the European Commission has introduced a draft regulation on controls to be implemented by January 2010. Naturally, the Government will seek the Attorney General's legal advice on this Commission proposal.

Jim O'Keeffe (Cork South West, Fine Gael)
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Does the Minister accept that a scheme of fixed penalty sanctions is not contrary to Ireland's obligations under the Common Fisheries Policy, as was alleged during the debate on the Sea-Fisheries and Maritime Jurisdiction Act? Second, does he accept Ireland now is the only major maritime nation to rely exclusively on criminal penalties for policing fisheries offences? Third, does he accept Ireland also is the only country in which gear and catch are forfeited as a mandatory statutory consequence in nearly every incidence of fisheries infraction, no matter how minor?

Does he not then accept that there are ways to deal with this matter if the political will to so do existed? There are two ways in which to deal with it. The first is for Ireland to be part of an EU-wide regulation, whereby each EU member state is obligated to implement that EU regulation. This approach should be pursued, although it might take some time. The other way to deal with it is through the introduction of a fixed penalty approach, in a manner similar to the introduction of same in many other European countries and in the United Kingdom in particular. This has been introduced in Scotland and is being introduced at present in Northern Ireland. While taking into account the provisions of Article 37.1 of the Constitution, why is Ireland not following this approach? It is the same basis on which fixed penalty fines have been introduced for minor and technical offences under the Road Traffic Acts, Local Government Acts and the Litter Pollution Act 1997; there is a clear precedent for so doing. The Minister should confirm that he would look favourably on an argued approach that permits the introduction of such fixed penalty administrative fines in Ireland. I always have argued that such fines are quite capable of being introduced under our Constitution.

Martin Ferris (Kerry North, Sinn Fein)
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I refer to a point being made on the Sea-Fisheries and Maritime Jurisdiction Act 2006 in which it was stated that administrative sanctions would not be constitutional. My recollection is that this issue arose after the legislation had been passed, on foot of pressure from backbenchers in the Minister's party, as well as many approaches made by Opposition Members.

Charlie O'Connor (Dublin South West, Fianna Fail)
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Is that the Deputy's question?

Martin Ferris (Kerry North, Sinn Fein)
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It was stated that it could not be done on advice from the Attorney General. The advice received by the joint committee from Dr. Hogan completely and absolutely contradicts this position. Deputy Jim O'Keeffe made the point at the meeting that it depends on how one puts the question and I concur with this. Members believe the question was put with a preconceived answer in mind. For minor offences, sanctions can be introduced on a fines basis, or whatever is necessary, through amending the Act or through other measures to which Deputy Jim O'Keeffe also has referred. This issue must be revisited. If there is sincerity and if the political will exists on the Government side of the House to deal with the issue, this can be done. Obviously however, if such political will is lacking, it will not be done. My point is the Government's bluff must be called in this regard.

Seán Sherlock (Cork East, Labour)
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On a point of order, did the Minister state the EU has not sought any regulation in this regard to harmonise the situation?

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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No.

Charlie O'Connor (Dublin South West, Fianna Fail)
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While I am unsure whether that is a point of order, the Minister should respond with the final word in this regard.

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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First, I wish to correct Deputy Ferris by stating there is no lack of political will or sincerity on this side of the House in respect of this or any fisheries issue. Neither he nor I is in a position to give a detailed response to Dr. Hogan's legal opinion. Professor Hogan is a eminent constitutional lawyer. As I stated to Deputy Sheehan, no doubt the committee will forward that particular advice to our Department and we will seek the Attorney General's advice.

Deputy Jim O'Keeffe has had numerous discussions with the Minister of State, Deputy Tony Killeen, in this regard.

Jim O'Keeffe (Cork South West, Fine Gael)
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That is correct.

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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According to the Minister of State, Deputy Killeen, Deputy Jim O'Keeffe put forward some constructive proposals on this matter and I thank him for them.

Jim O'Keeffe (Cork South West, Fine Gael)
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May I wish him well?

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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Yes.

I repeat the advice available to me, that the possibility of introducing a Minister's sanction was comprehensively considered, including examination of practice in other member states, at the time of the passage of the Sea-Fisheries and Maritime Jurisdiction Act 2006 through the Oireachtas. The position taken by the Minister at the time was based on the legal advice from the then Attorney General and has been confirmed by the Attorney General, Mr. Paul Gallagher SC.

It is an important issue. I will be meeting the European Commissioner for Maritime Affairs and Fisheries, Mr. Borg, before the end of the week. We will be discussing a range of fisheries issues with him prior to the December Council and also ongoing issues, and this will obviously be an issue.

The European Commission has introduced a draft regulation on control to be implemented by January 2010. The proposal provides for a penalty points system. I reassure all Deputies who have contributed to this question that the proposal will be sent to the Attorney General's office for legal advice on the elements in it which set sanction levels for offences. Naturally, we will report back to each of the individual Deputies who have been consistent in their representation and their articulation on this particular issue.

P J Sheehan (Cork South West, Fine Gael)
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Will the Minister give me an assurance today that he will give this matter urgent attention on account of the forthcoming Lisbon treaty referendum rerun? The fishing community all over the country voted "No" on account of that the last time and it will be of vital importance to get their confidence back.

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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In the many meetings that the Minister of State, Deputy Killeen, and I have had with individual Members of the Oireachtas and with the Federation of Irish Fishermen, these issues have been raised. Indeed, we have raised them subsequent to our meetings with the fisheries' representative organisation.

Naturally, when the advice of Professor Hogan is received by us from the Oireachtas committee, we will ask the Attorney General, who is the legal adviser to the Government, to give that——

P J Sheehan (Cork South West, Fine Gael)
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Bring in legislation immediately.

Brendan Smith (Cavan-Monaghan, Fianna Fail)
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I am not going to state that I can bring in legislation immediately. The Government is advised by the Attorney General and that advice will be forthcoming.

P J Sheehan (Cork South West, Fine Gael)
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The Minister can help.