Michael Creed (Cork North West, Fine Gael) | Oireachtas source

I ask the Senator to reflect on that matter in the context of his broader point. It is worth reflection.

The Senator's amendment seeks to limit the application of the proposed section 10(1)(a) to persons resident in Northern Ireland. At the time of confirming the voisinagearrangements in the 1960s, there was also reference to the requirement to be permanently resident in the Six Counties. With the passage of time, however, we must acknowledge the changed realities within which we operate. Not least of these changes is that citizens of EU member states, including Ireland, have the right to reside in any part of the EU. Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship, established by the Maastricht treaty in 1992.The Senator's proposed amendment is also not compatible with the reality of the corporate nature of ownership of sea-fishing boats, which is not unique to the Irish sea-fishing fleet. As stipulated in the Treaty on the Functioning of the European Union and reinforced by the case law of the Court of Justice of the European Union, the freedom of establishment, and the freedom to provide services, guarantee mobility of businesses within the EU. I would ask the House to recall that this Bill seeks to remedy findings arising from court proceedings taken through the High Court and the Supreme Court. In his judgment at the High Court, Mr. Justice Birmingham noted matters of which the House will wish to be aware. Excerpts from his judgment include, "The structure of the fishing industry in Europe and indeed in Ireland has evolved in the half century since the exchange of letters occurred."

He went on to say:

It may well have been the case that in 1964 boats were owned and operated by individuals and that it was realistic to think in terms of permanently resident individual fishermen. However, almost 50 years on, where vessels are larger and more sophisticated, corporate ownership is now the norm, as is illustrated by the fact that the corporate plaintiffs are each the owners of a vessel. It seems to me that the arrangement entered into is robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time.

The Supreme Court accepted the High Court’s analysis of the arrangement. The following is a quotation from Mr. Justice O’Donnell’s judgment:

In particular I agree that reciprocity is only required at the general level of fishing, and is not required at the level of each species. I also accept that the arrangement must be a flexible one if it is to permit the fishing now carried out. The corollary is however that the present fishing is not within the precise terms of the 1965 correspondence.

I could not accept an amendment which would, in the current circumstances, be illegal to impose. While the Bill proposes to restore access to Northern Ireland boats to fish, under the terms of the voisinage arrangement this access is subject to the same conditions that apply to Irish sea-fishing boats. It is my intention to introduce an amendment on Report Stage to specify this conditionality of access to give further assurances to the House that there is no question of preferential treatment for Northern Ireland vessels while fishing in our zero to six nautical mile zone. I stress again that it is important to remember that this Bill is about reinstating arrangements under existing neighbourhood relations. We can still go North, and by virtue of the Supreme Court decision, they cannot come South. They have not changed the rules for us when we go North. We are only looking to restore that which existed prior to October 2016. Regardless of Brexit or anything else in the context of the Good Friday Agreement, and in the context of harmonious relationships North and South, it is only right and proper that we would restore that reciprocal arrangement.

It is about choices. The Senator made the point about residency but he had earlier made the point about somebody on the Northern Ireland register being resident in Donegal. That is not unique. Neither is it the case that corporate ownership is exclusive to those on the register in Northern Ireland. If we were to exclude corporate ownership as a principle for access to the zero to six nautical mile zone, it would impact on our own sector, perhaps more so.