Brendan Kenneally (Fianna Fail)

I also wish to welcome the Minister to the House. To date, this measure has prompted widespread debate at the Joint Committee on Communications, Marine and Natural Resources. Many stakeholders have attended that committee to give their views on the proposed legislation. The Bill has been extensively aired in the Lower House and there has been much media coverage. It has provoked a wide debate within the fishing industry itself. It is not often that so much publicity is afforded to a piece of legislation, although the Finance Bill does attract a large number of speakers, albeit for a short period. The Bill before us, however, seems never to have been out of the public eye. That must tell us it is controversial legislation and I believe parts of it are flawed. I have no problem with the Bill per se and the necessity for it but I am deeply unhappy with some sections of it. I have already made it clear to the joint committee and I repeat now that it appears to me there are elements in the Department of Communications, Marine and Natural Resources who want to wipe out the fishing industry and force people off our waters and away from their livelihoods. Why this should be so I do not know; they have no feel for what is one of our oldest trades and sustainers in this country.

The computer sector for instance is cosseted and comforted at every turn, but there was little talk of that particular industry when fishing was keeping body and soul together in this country as far back as famine times. In one area of my own constituency, up to 3,000 people were employed in the hake fisheries two centuries ago. Let us not dispense with all our history just to satisfy a few city-bound civil servants.

One of the most extraordinary measures I have seen in any legislation since I became a member of the Oireachtas in 1989 was in section 41 of the original Bill, which referred to a seafood control manager who would be answerable not to the Minister of the day but to the Secretary General of the Department. This was a blatant attempt to sideline the Minister as much as possible. I know this measure has changed since, because of comments and suggestions I and others have made about it, but it tells us something of the mentality of the people we are dealing with, who could draw up such a piece of legislation in the first place. It was totally undemocratic and I am terribly unhappy with the mindset of some of the people involved in the Department.

We were told originally that this legislation had to be enacted by 31 December 2005 or we as a country would be in deep trouble with the European Union and would face even greater fines than at present. This is because of the outcome of the Browne and Kennedy cases, but we must remember that those particular cases have implications for other Departments as well — to which the Minister referred — and I do not see them getting as worked up as this Department.

Any EU penalties to be imposed will relate to what went on beforehand and are only arising because of the mismanagement of the Department for many years. There was no effective control on the fishing fleet at all by the Department and it was grossly inefficient in supplying data to the European Union. Essentially it was not doing its job. However, the Department was very effective in one area, namely catching the small fisherman, and the kindest thing which might be said about that is that the Department was choosing soft targets. It was taking the easy way out.

When the commander of the Irish Naval Service came before the joint committee, I took issue with him because I was aware of an incident that had happened a few days previously at Portally Cove, a few miles from Dunmore East. A man there was hauling a few lobster pots and not only was he approached by the fisheries officers in their own vessel, but an Irish Naval Service ship was there too. That was overkill and the Naval Service would have been much better employed out at sea catching the people who were doing real and substantial damage to our stocks.

I put this to the commander and he said that if the Naval Service is requested to assist, it will. This is total nonsense, as the fisheries officers would have been more than capable of dealing with what was obviously a minor incident. It appears to me that in official circles there is no real will to go after the real culprits who are wreaking the greatest damage.

This piece of legislation is an attempt by the Department to cover up the inadequacies within its system for a long time. The bigger boats and the super trawlers are causing the damage, not the individual small boat owners who take what can only be described as a handful of fish in a season. The Department and its agents out on the water need to get their priorities right, but as in so many facets of our lives, it is the weakest and most vulnerable who take the hit, those who can least afford it financially, or who have the least advice and defence available to them. I hold no brief for the big boys who are visiting as much wrong on the small operators as they are on the fishing industry as a whole across Europe.

There has been a great deal of debate about the constitutionality or otherwise of the introduction of administrative sanctions. The position is that the punishment for commercial fishermen does not fit the crime, whereas the punishment for angling and other leisure fishing does fit the crime. I should not use the word "crime" in that context at all because one of my biggest concerns is that we are making potential criminals of honest, hardworking small-time fishermen, when it is the bigger operators who are at fault.

Not too long ago, a person could go through life without ever attracting the official attention of the Garda or other law enforcement agencies. Now we have to look over our shoulders every day of the week as more and more simple acts have been made criminal offences. Now it seems taking a handful of fish from the water can turn a law-abiding citizen into a criminal and a bankrupt overnight. That cannot be right. There seems to be something very basic about this, particularly in the year when we are about to celebrate the anniversary of our first steps towards freedom, self-determination and the principle of cherishing all the children of the nation equally. Perhaps it is only a pious aspiration after all. Certainly some fishermen might be led to believe that.

I know of one fisherman who, a couple of years ago, was found with a couple of salmon which he had caught illegally. Tough luck — he should be dealt with for that — but what was his penalty? He was fined €300, his nets were confiscated and he lost his licence, which deprived him of his livelihood and income for three years. After the three years, when he applied to the fisheries board to have his licence restored, he was refused as there is a limit of 173 such licences in the Waterford district. All of those had been taken up and his only chance of getting his licence back in the future is if someone is caught in a similar situation. It is like the sub on the sideline hoping the centre-forward will break his leg so that he can get a place on the team.

Even a lorry driver caught drink-driving will almost automatically get his licence back after a year or two. This is not exactly equality, is it? One can compare that unfortunate professional fisherman to the angler who caught a similar few salmon illegally. He received an on-the-spot fine of €80, but he did not lose his job as a carpenter, fitter, doctor or, as we are told, one of those buying up stretches of fishing water, the legal profession. We can almost compare the treatment of those unfortunate fishermen with the starving peasants in the middle ages who had the temerity to hunt the king's deer to feed their children and were lodged in prison for their efforts to maintain their families.

SI 297 of 2003, a copy of which I have with me, was introduced to bring in administrative sanctions for inland fisheries. The Attorney General who approved that document at the time is the same Attorney General who, according to some reports, says that cannot be done today. I cannot understand why there should be a constitutional problem about this today. This is not just a case of the left hand not knowing what the right hand is doing, it is that the left hand does not seem to know what the left hand did a short time ago.

We already have administrative sanctions in the fisheries area. I realise that the Minister, Deputy Noel Dempsey, said at the joint committee that a constitutional issue was not involved, but some of the statements that have emanated from his Department and elsewhere have cast doubt on the matter and we need to have this clarified. The fishing industry faces major problems. We must create a sustainable industry while protecting vulnerable stocks. Nobody condones over-fishing or has a problem with severe measures being introduced for those who are severely flouting the law, nor do I. The Department has been aware of these people for many years and has done nothing about it, but those fishing in a small way are the ones who are hardest hit because they are the easiest to catch.

There should be a proportionality and fairness in this Bill but, unfortunately, there is not. I realise an attempt has been made to bring in graduated penalties and that has to be welcomed, but we need to go a step further. I will give some further examples of recent occurrences. I am aware of a fisherman who had a couple of boxes of fish over his quota a few years ago. He was dragged through the Circuit Court, convicted and given a criminal record. The whole exercise cost him in the region of €30,000. Before he went into court, he had a clean record, but the judge had no discretion under our laws and the man emerged a criminal.

I usually agree with mandatory sentencing, particularly in the case of those thugs who tried to take over Dublin city centre last Saturday. I am concerned judges will be too soft with them because they are not subject to mandatory sentencing. However, that is a subject for another day. If mandatory fines in this matter were listed on an administrative basis it would solve this problem.

I am aware of a letter sent by a member of the legal profession to the Chairman of the Joint Committee on Communications, Marine and Natural Resources, Deputy O'Flynn, in which details were given about a fisherman who operated out of Howth on a particular occasion in extremely poor weather conditions and, unfortunately, whose wife was ill at the time. He was also short a member of the crew and was fishing in a relatively small 50 ft vessel. Everything about the man's nets and catch were legal and everything else was totally above board. However, on his return to port on the day in question the vessel was boarded by fisheries officers. Unfortunately, due to his difficulties he had failed to fill out his log book fully. While some log book offences can be very serious, this was a minor technical matter. However, the case had to be taken to the Circuit Court. The State brought in its solicitors and barristers and this man had to do the same. He was convicted and, as a result, his gear and catch were confiscated and a heavy fine totalling €50,000 was imposed on him, which did not include the cost of the State's legal team.

The solicitor pointed out to the Chairman that on this occasion, the judge's hands were tied. The Oireachtas had sent out the message that the judge must deal with the man in a non-discretionary fashion, which meant the penalty imposed on him exceeded his net income for the previous year. That cannot be right. I am reminded of feudal days when the king's deer were as inviolate as a handful of salmon in the hands of a professional fisherman today. Our hands are not tied. We make the law and it is essential to take the right action when we have the chance to do so on this occasion.

Picture a situation in any other facet of Irish law where a man gets what amounts to €100,000 punishment. He would have to be a major criminal and a danger to society. I know many fishermen who could be subject to those penalties and who are otherwise the most law-abiding people one could find. Attempts are being made to bring some of these offences within the ambit of the District Court. However, there is an upper limit to what the District Court can deal with and the confiscation of gear means that almost all of the cases would be above that limit, and we are back to the Circuit Court again.

Administrative sanctions are used throughout almost all of Europe and the British recently published a proposal for their administrative system. As a member of our committee, I travelled to Brussels a couple of months ago to discuss our proposals under this legislation with interested parties and get their views on it. Commissioner Borg is on record as favouring administrative sanctions. We met with his chef de cabinet who made it quite clear that is the preferred option. We were also told the Commission could not impose its will on Ireland and it is a matter for ourselves.

I raised with him the situation we have at present, whereby Irish fishermen are treated differently to foreign fishermen in our ports, in that a judge must confiscate Irish fishermen's gear if they are found guilty. This is not the case for foreign fishermen. He told me that was a matter for our domestic legislative process, which is fine. However, when I put it to him that we reverse it and confiscate the gear of foreign fishermen and not Irish fishermen, he told me the EU would have to intervene and could not allow it to happen. This proves our regulations, as currently designed, are weighted against our own people.

The Minister indicated that once this legislation is enacted, he is prepared to sit down with fishing representatives and draw up a list of administrative sanctions. However, he has not given any commitment that they will be implemented. He promised to give it serious consideration and that is to be welcomed. The Minister has the opportunity to do so now, as he could meet with representatives of the fishing industry between now and either Committee or Report Stage. Part of his reluctance to do so may be that he would have to return to the Dáil with any changes made. However, he would have cross-party support in the Dáil for any alterations agreed with the fishing industry and little time would be needed to put through the amendments.

I am unashamedly on the side of small fishermen in this instance and if there is any humanity in the departmental officials and the Minister to whom they are supposed to be subject, this situation will have to change and the entire area of criminality in the fishing industry reviewed forthwith. I hope the Minister will take on board some of the points I made and both right a serious wrong and prevent further abuses.