Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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Fishers all around our coast were shocked and outraged when they learned that the Taoiseach had signed off on the statutory instrument introducing regulations containing a penalty point system. Those fishers learned about this 11 days ago and I have spoken to many of them since. I was speaking to fishermen on Arranmore Island yesterday and they are absolutely shocked that the Taoiseach signed off on this when he voted against exactly the same statutory instrument in 2018. The Minister also voted against the proposal at that time. Both the Taoiseach and the Minister were right in how they voted on 29 May 2018.

The Minister will recall that, at that time, the then Fianna Fáil spokesperson on the marine, Pat The Cope Gallagher, introduced the motion. I have re-read what he had to say and he was spot on in his criticisms. Not only had he criticisms, he subsequently put forward amendments to the regulation that provided solutions to the problems he identified. The Dáil voted down a statutory instrument from a Minister for the first time on 29 May 2018 and it has not happened since, to my knowledge. The Dáil was right to do so because the contents of that statutory instrument and the one that has been passed in recent weeks were outrageous.

Imagine a scenario where a Garda issues penalty points to a driver. The driver says that he or she has done no wrong. The Garda then gets to select the judge who will hear the case and penalty points are still applied even though due process has not been exhausted. The driver then has no right to apply to a higher court. The same situation is happening here. The wording of the statutory instrument is incredible. It talks about decisions being made on the balance of probabilities. Under our common law system and Constitution, a person has a right to be presumed innocent until proven guilty. Those who are accusing a person, particularly when the State is the accuser, must prove his or her guilt beyond a reasonable doubt and yet the balance of probabilities is the standard under this statutory instrument.

There is also an issue around the Sea-Fisheries Protection Authority. A review is being carried out into that organisation but it is yet to be published so we do not know what recommendations it contains. There are serious concerns about the lack of accountability of the organisation.

We are going to give them the right not just to detect but to adjudicate, something that is unheard of in the justice system.

The Minister will know we have tabled an annulment motion which is almost identical to that tabled by former Deputy Pat The Cope Gallagher in 2018. We have held back on it in good faith and I have been asked by fishing representative organisations to give them a chance to meet the Minister and put their case. We believe that fair play can prevail. I am aware that the Minister will meet fishing representative organisations soon. I ask him to resolve this issue because, as he said eloquently in 2018, he knows this is wrong.

Charlie McConalogue (Donegal, Fianna Fail)
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Gabhaim buíochas leis an Teachta Mac Lochlainn for raising this issue today and giving me the opportunity to discuss it in the House. At the outset, I want to congratulate him on his appointment as marine spokesperson for Sinn Féin. Both of us come from the county of Donegal and will have fishing, the marine and aquaculture very much in our hearts and I look forward to working with him very constructively in that regard, as I know he does.

We are discussing the European Union Common Fisheries Policy points systems regulations which were signed into force on 26 August by the Taoiseach and acting Minister for Agriculture, Food and the Marine, Deputy Micheál Martin. The 2009 EU fisheries control regulation requires member states to establish points systems in respect of serious infringements of the rules of the European Common Fisheries Policy. These rules are designed to ensure that fishing in EU waters is sustainable and that the long-term interests of fishing and coastal communities are protected by ensuring that our precious fishing resource is protected.

The points system is intended to complement the normal sanctioning system in a member state for serious infringements and to promote a level playing field on control within the EU. These systems were due to be implemented, as the Deputy knows, by 2012. Ireland is responsible for the control of all fishing activity by Irish and foreign fishing vessels in our 200-mile zone. The points to be assigned under the new statutory instrument will be applied to Irish and foreign fishing vessel licenceholders held responsible for serious infringements committed in Ireland's 200-mile zone. These new regulations are a requirement of EU law and, as has been the case since 2012, all other coastal member states have now implemented this EU points system. Ireland has been found to be in breach of its EU legal obligations as a result of our failure to implement them before this point.

As a result, the EU Commission, under infringement proceedings, issued a reasoned opinion to Ireland in July 2020 and has given Ireland three months in which to respond. The implementation of these regulations were already overdue, but obviously the urgency has been amplified by that reasoned opinion. In addition, the European Commission has formally suspended payment to Ireland of EU co-funding payments under the European maritime fisheries fund, EMFF, operational programme. This suspension will continue indefinitely until Ireland puts in place the necessary legislation and administrative systems to comply with the EU points system. Unless the regulatory lacuna is addressed immediately, we face an increasing financial cost for taxpayers.

EU funds for control and enforcement available to Ireland under the EMFF are €37.2 million over the course of the programme. As of September 2020, €13.5 million of those payments have been withheld. A further recoupment claim due to be submitted later this year will result in the figure withheld rising to €24.5 million. A total of €37.2 million is at risk for the full period of the programme.

The new statutory instrument takes on board in full the findings of the related 2017 Supreme Court judgment that the procedures followed must be fair and in accordance with best practices. It involves a determination panel comprising three independent legal professionals who have been nominated by the Attorney General and offers a licenceholder the option of an oral hearing for the purposes of the determination. In addition, a decision may be appealed to an independent appeals officer nominated by the Attorney General and the licenceholder has the option of seeking an oral hearing at this stage.

Under the statutory instrument, the accumulation of points for persistent serious infringements of the rules of the Common Fisheries Policy will lead to a suspension of a sea fishing boat vessel for a period of anything from two months to one year. In extreme cases, persistent serious infringements could lead to the permanent withdrawal of a licence. It is important to note that the EU control regulation provides that if the licenceholder does not commit within three years from the date of the last serious infringement another serious one, all points on the licence will be deleted.

The new statutory instrument includes a number of, but not all, amendments sought as a result of consultations with industry. The new arrangements are the minimum required to meet the test of proportionality, effectiveness and dissuasiveness required under EU law. I am confident that the new enhanced points system will play an important role in delivering on our Common Fisheries Policy objective of ensuring proportionate, effective and dissuasive penalties for serious infringements and will contribute to a level playing field in fisheries control across member states.

The points system is necessary as an effective measure against the small number, either foreign or Irish, of those who break the rules. It is necessary to protect the vast majority of our law abiding fishermen from the few who might and would incur repeated serious infringements and put in jeopardy fish stocks for law-abiding fishermen for future generations. I am very aware of the concerns that have been raised by the sector, and will meet representatives to discuss them in due course to listen to and discuss the rationale behind the need for this statutory instrument.

Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I thank the Minister. I wish him well in his brief and look forward to working with him constructively. He is, like me, from a coastal county and knows well the concerns of fishermen and the sense that they have been criminalised. The Department of Agriculture, Food and the Marine has been focused on enforcing rather than facilitating and supporting our fishing community to take the maximum wealth possible from our seas in order to have sustainable communities all around the coast. I am really alarmed at the range of fishermen in every sector I have spoken to who have no confidence in those at senior levels in the Department. A huge gap of distrust has built up. That is the problem with this statutory instrument.

The Minister and his colleagues rightly challenged this two years ago and did something unprecedented in the history of the State, namely, voting down a statutory instrument and asking the Government and the then Minister, Deputy Creed, to go back to the drawing board. Over two years later they have still not listened to the concerns of fishermen.

I understand the Minister will meet representatives of fishing organisations early next week. It is imperative he addresses the real and genuine concerns of fishermen. I have yet to meet a fisherman who has said to me that he or she does not believe there should be penalty points. They all support the principle of penalty points but there has to be fair and natural justice and the right to appeal must be in place as it is for any other citizen who is accused of an offence. The High and Supreme Courts have rejected the propositions drafted by the Department on a number of occasions. The Dáil has rejected its proposition. When the Minister meets fishing representative organisations and listens to their constructive ideas, a solution can be found to meet everybody's concerns.

I look forward to his meeting with representatives. I am acting in good faith in not pushing our annulment motion but if we do not see a genuine attempt to address these concerns, we will have to put the motion before the Dáil eventually. I hope that will not happen.

Charlie McConalogue (Donegal, Fianna Fail)
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As I said, I will meet the sector next week. The Deputy and I both value their voice, contribution and what they have to say on behalf of the fishermen they represent. They very much recognise the need for an statutory instrument. My party engaged thoroughly with them at the time in terms of their concerns and they were discussed thoroughly in the Dáil. The statutory instrument which has been signed takes on board some of the amendments proposed, including two in particular. Others which had been proposed were adjudicated as not being in compliance with ensuring that we can meet the requirements we are obliged to meet in order to comply with our obligations under the EU Common Fisheries Policy.

As I said, all other member states have already put a penalty points system in place. We are now being fined and in the past two months alone, that has escalated significantly following the reasoned opinion from the EU. It is important that we address this issue.

On the Supreme Court decision which found against the previous statutory instrument, the grounds on which it found against that statutory instrument have been addressed in this statutory instrument, which primarily focused on the need for the appeals part of the statutory instrument to be distinctly separate from the Sea-Fisheries Protection Authority, SFPA, and this statutory instrument achieves that.

It has been drafted very much in line with ensuring that it complied with the previous Supreme Court decision and to meet and address all of those issues. The Supreme Court was only concerned with the administrative penalty point system which has been proposed and this statutory instrument takes on board what the Supreme Court would have found to have been at fault and had adjudicated upon. It also needs to ensure that we meet the key tests under European law. These are to ensure that we meet the tests of proportionality, effectiveness, and dissuasiveness, as required under EU law which are the reasons it is drafted in this way. I look forward to discussing with the stakeholders, and with Deputy Christopher O’Sullivan, in particular, who has been liaising with me on this. I also value the role former Deputy Pat The Cope Gallagher would have played in respect of this issue in the past. It is essential that we have a good workable statutory instrument that meets our EU requirements and protects fishermen to ensure that we protect those who are complying with the law and that the system that oversees this is fair. I will be meeting these groups and will be listening to their concerns and working with the sector to meet the challenges of Brexit in the period ahead, which is a real risk indeed. Gabhaim buíochas.