Thursday, 23 March 2006
Sea-Fisheries and Maritime Jurisdiction Bill 2005: Report and Final Stages.
I move amendment No. 1:
In page 11, line 27, after "fish" to insert the following:
", but for the avoidance of doubt does not include a seafishing boat".
I welcome the Minister and his official back to the House. It was timely and fortunate that I had the pleasure of meeting members of the fishing fraternity — the drift net and draft net fishermen — outside the gates following yesterday's Committee Stage debate. I am not sure the Minister met the group but I am sure Senator Kenneally went outside to meet a few of his constituents. The fishermen who protested outside the House yesterday were drawn from communities around the coast, from the southernmost part of County Cork up to Gola, Tory and Inch islands in County Donegal.
The fishermen I spoke to were aware that the legislation had been before the Seanad yesterday. They appealed for more common sense to prevail in the Government's approach to the fishing industry and welcomed the Minister's statement in the House that he intended, once the legislation was enacted, to broaden the debate on the marine industry and touch base with fishing organisations on how to move it forward. While exhaustive consultation is sometimes an evil, it is clearly vital in the case of the fishing industry if we are to determine how the sector is to be advanced.
The amendment seeks to avoid ambiguity by stipulating definitively that seafishing boats are not covered by the definition of the word "equipment".
As I explained on Committee Stage yesterday, the amendment is unnecessary because the term "seafishing boat" is separately defined in section 6 and is frequently used in the text. Having double-checked I am assured there is no question that references to "equipment" or "fishing gear" could be held to include a "seafishing boat". The Senator will be aware that the powers available to confiscate fishing vessels will be removed when this legislation is enacted. For these reasons, the amendment is not necessary.
I move amendment No. 2:
In page 15, between lines 25 and 26, to insert the following:
"(8) The master of an Irish sea-fishing boat may depart from the terms of any notice under subsection (7) where exceptional circumstances (such as force majeure, the safety of the crew or the safety of the vessel) so require.".
During our general discussion on a similar amendment on Committee Stage, I digressed a little to raise the grant aid available for health and safety features on vessels. The Minister responded positively, indicating that he would endeavour to expedite the matter as much as possible.
On the issue of force majeure, the definitions and legislation governing the fishing sector have created some grey areas. While it is important that the master of a ship informs enforcement officers of the quantity of catch and the port at which it will be landed, provision must be made to take account of changing circumstances, for example, the necessity to change destination in inclement weather conditions. Force majeure must apply when vessels are forced to deviate from their intended course. The concept of force majeure is widely used in the Department of Agriculture and Food. This was particularly true of the allocation of single farm payments in 2002 and 2003 when stocks were at low levels.
The Fine Gael Party favours strict legislation but seeks a level playing pitch for all players in the fishing industry. While it does not support special dispensations for those who break the rules, exceptional circumstances will sometimes force vessels to deviate from their specified routes. I ask the Minister to reconsider this matter, despite his refusal to do so on Committee Stage.
When we discussed this matter on Committee Stage, I noted that the amendments proposed then could provide for a way around the legislation, although I accept Senator McHugh's bona fides when he denies any such intention. We are trying to tighten up the legislation as best we can and the Minister has indicated that provision for this matter was made elsewhere in the Bill. I fear that an amendment such as the one proposed by Senator McHugh will not be used by some for the purpose intended but will be exploited for different ends. For that reason, it is preferable not to include it.
I did not quote the section concerned in my response to Senator McHugh when he raised this issue yesterday, although doing so may have been helpful. The proposed amendment would have the unintended effect of providing loopholes to people who want to exploit the law. A case recently brought before the courts and which is currently sub judice concerned an attempt to take advantage of a practice put in place to facilitate fishermen when their boats are detained in order to evade charges. I am afraid that some people in the industry have used every available loophole and have run to courts at every opportunity. The Senator's amendment would provide further opportunities for exploitation.
I accept the Senator's bona fides as regards his amendment but it would go further than necessary because section 36 of the Bill already provides for a defence which anyone may use. The section states:
Where an offence under a relevant provision has been committed by any person on board a sea-fishing boat, and where the master or owner of the boat is charged with having committed the offence, it is a defence for him or her to show that—
(a) he or she used due diligence to prevent the commission of the acts alleged to constitute the offence and they were done without his or her consent, connivance or default, or
(b) the acts were necessary to secure the safety of the boat or any other vessel or person in peril on the sea.
The Senator is trying to incorporate that in his amendment but it is already provided for in the Bill. Including it in a different format will only cause confusion, could create a loophole and would probably allow some lawyers to become rich by arguing that section 12 is in conflict with section 36. On that basis, I am not prepared to accept the amendment.
I understand the need to legislate for all ills. Recently, a councillor from the south suffered a wrathful response for asking that a special dispensation be granted to an old man who drove his tractor to the pub for two pints. There has to be a level playing field because legislation cannot be passed to allow some people to drink two pints, while prohibiting others from doing the same.
We are at a crucial stage in terms of the future of the fishing industry. Some within the industry have flouted the law but they are a small minority. As a result of their wrongdoing, the fishermen who operate within the law are being punished.
Concerns arise with regard to the watchdog system. Calls have been made by gardaí for a right of independent appeal with regard to decisions made by the Ombudsman. I hope we can devise mechanisms so that law-abiding fishermen do not suffer at the hands of an overly-zealous enforcement system. The Department of Communications, Marine and Natural Resources needs such a watchdog mechanism and, while the Minister is ultimately responsible, he does not have eyes in the back of his head. I hope he can devise mechanisms to protect the fishermen who work within the confines of the law, as well as enforcement officers.
I move amendment No. 3:
In page 31, lines 43 and 44, to delete "2 months' and substitute "1 month'.
We discussed the length of prison sentences on Committee Stage. We propose to reduce the sentence from two months to one month. Our concern is that there may be instances of fishermen who make mathematical errors or mistakes when filling in log books, thus stepping outside the legal framework. Although we do not condone such actions, we do not want to turn fishermen into criminals.
There have been cases where fishermen have flouted the law but others do not consciously do so. It is not the same as a person who drives at 60 mph in a 30 mph zone and who knows he or she is speeding. For one reason or another, there will be instances where log books are not properly completed. We do not want to criminalise fishermen. A fisherman told me quite recently that the industry is under pressure and we are looking at a scenario where the fishing industry may go in the same direction as the farming industry. Many coastal fishermen, from the west of Ireland and Donegal in particular, have a tradition of emigrating to places such as the United States, and a criminal record will certainly not increase their chances of being let in. This was a specific example I was given. If laws are broken deliberately, the perpetrators must be punished. I am trying to replace the proposed two-month prison sentence with a one-month sentence, and to replace the €5,000 maximum fine with a maximum of €3,000.
We had a similar discussion yesterday and I explained at that stage that the maximum possible period of two months imprisonment provided for in section 24(1) matches the maximum possible fine of €5,000 which a court can impose for an offence of obstructing a sea fisheries protection officer in carrying out his or her function, as opposed to log book offences.
With respect to the point being made, one cannot obstruct a sea fisheries protection officer without knowing it. A person cannot inadvertently knock the officer overboard, prevent him or her from getting on board or lock oneself in a cabin to prevent an officer from seeing if a log book is completed. Such actions cannot be carried out unknowingly. In any circumstances, obstruction of a sea fisheries protection officer is the same as obstruction of a garda or any official of the State who has a job to do. It is a serious matter which should be deterred through substantial penalties and the liability to be arrested as provided for in section 24.
The provisions for two months imprisonment and €5,000 fine are the maximum penalties. Neither the sea fisheries officer, the Minister nor a civil servant will decide whether a person will receive the maximum penalties, as the courts will decide this, judging all the circumstances in the case. The courts can impose these as a maximum.
Section 25 deals with the maximum fine which a court can impose on summary conviction of a person for an offence. The courts have the right to decide the actual limit of the fine. If the offence is minor or inadvertent, the courts take this into account and can impose a fine of €100, €20 or €5, for example. The courts must have the freedom to impose conviction in any particular case by reference to the gravity of the offence in question and the particular circumstances in which it was committed.
Section 25 also prohibits and penalises assault on a sea fisheries protection officer. If the assault is serious, conviction and indictment would arise entailing a fine and/or imprisonment for a term not exceeding five years. This is correct because if we ask people to do jobs such as this which can sometimes be difficult and dangerous, protection must be provided through legislation. These people can then know they will be protected. Thankfully there have not been many incidents in the sea fisheries area where people have been assaulted. Not long ago there was a serious incident in the inland fisheries area where a life was lost. We must protect the people we are sending out to do these jobs.
A point has been made on a number of occasions regarding log books. It has been intimated that it is a minor detail if a person is discovered by sea fisheries protection officers not to have the log book filled in or the wrong figure or area put in. The industry has tried to portray this as mere omission, that it is not important and that people are getting tied up in bureaucracy, etc. I dismiss this type of argument. The log book is a fundamental part of the sea fisheries control and the conservation and protection measures, along with efforts made to ensure that everybody fishes within the limits set. It is part of a system to ensure that people are not overfishing or taking fish from fellow fishermen.
I accept that some mistakes are made, and people can argue their case. The notion that forgetting to fill in the log book or pages going missing, which occurs frequently, is a minor matter is akin to saying that people forgetting to fill in a tax return or completing it fraudulently is also minor. We should not pass any heed on that idea. The Senator mentioned farming, an area in which there have been many complaints. I have seen forms where people looking for headage payments, for example, made very simple mistakes on the form and lost thousands of euro, or perhaps their entire income, for a year or two years because the form was not filled out completely. The EU is not singling out the sea fisheries industry on this matter, which should be noted.
I do not wish to minimise the issue. The idea has been mooted on a number of occasions and I did not get the opportunity to address it before. It is not a minor matter, as the log book is a specific EU Common Fisheries Policy requirement for all member states and everybody working in the industry. It is a basic tool to ensure the Common Fisheries Policy is being implemented. It is a serious matter for it to be interfered with or ignored, excepting the fact that people sometimes can make mistakes. In many circumstances purported mistakes are clear attempts to circumvent fishery control.
I am singing from the same hymn sheet as the Minister in terms of obeying the law. The introduction of sanctions to make people adhere to the law will protect the overall industry. I wish to raise two issues, the first being due process. There is a fear that due process will not occur in many cases. What will due process be in terms of identification of a ship that is working outside the realms of quotas or tonnage, for example? What is due process in terms of malpractice, and how will such ships and their captains be identified?
A few weeks ago there was an intensive intelligence operation in County Louth. The PSNI and the Garda Síochána worked for months on a particular case, and they did not come on site until months of investigation and due process were complete. Is this similar to what will occur within the fishing industry? It is easy to identify a boat at sea, and there are sufficient surveillance measures to do this. Will enforcement officers board a boat on suspicion of illegal activities? I am considering the rights of fishermen who work within the law, and I call for the protection of these fishermen carrying out their business in a proper fashion.
My second concern relates to the air of suspicion hanging over fishermen. What mechanisms are in place to protect the rights of fishermen who work within the law? We must work more on them. The Minister said there would be an exhaustive consultative process but I am trying to anticipate problems that will arise in the future and of which we should take note. These involve the protection of fishermen's rights and could take us into a whole new legal realm. The gardaí cannot enter a premises, a building or a farmyard without a search warrant so I fear the future legal implications of this provision.
I move amendment No. 5:
In page 34, line 5, after "and" to insert "may be subject".
I will try not to deviate from the point but I am trying to provide as much information as I can in anticipation of the debate that will take place in the future. This amendment was discussed on Committee Stage yesterday and the Minister refused to accept it. However, I ask him to reconsider.
I cannot accept the amendment because it could call into question the automatic forfeiture by the court of fishing gear under section 28(6)(b) on summary conviction for a second or subsequent offence. Only a court can convict for an offence, taking into account the circumstances of the case. Apart from the protections any fisherman has as a citizen of the State, if the Bill is enacted and a fisherman has reason to believe he is being unduly hounded or the victim of malpractice on the part of sea fisheries officers who board his boat or otherwise harassed he not only has the option of the courts but that of the Ombudsman. Appropriate appeal systems will be available to deal with such cases. The Senator will see that section 49 of the Bill provides for specific complaints procedures allowing people to pursue such matters. The Senator's point is dealt with in the Bill as it stands.
I move amendment No. 6:
In page 38, line 3, after "appealable" to insert the following: "save for an appeal to the High Court on a point of law".
This amendment was also discussed on Committee Stage. I refer again to the rights of the majority of fishermen who go about their daily business without breaking the law and who invest substantially in their fleets. Those fishermen have been facilitated by the Department of Communications, Marine and Natural Resources with substantial grant aid and work long, hard hours to make repayments on substantial mortgages on their boats.
The debate has gone pear-shaped against a backdrop of extreme frustration in the fishing industry over the belief that it has become an industry of contradictions. On one hand substantial European grant money and national Exchequer funds have been invested in the fleet, in addition to fishermen's own investments. On the other hand quotas have been introduced and days at sea have been reduced, as has fishing effort. Some measures were necessary on grounds of sustainability but competing with other European countries for a level playing field in terms of days at sea and fishing effort causes frustration. There is not a level playing field where the rights of Irish fishermen are concerned.
Our coastline is a national resource which is both a heritage and an industry and fishermen are left frustrated with this legislation over the fact that investment handouts are being made but quotas reduced and tonnage taken away. In addition to that a small minority of fishermen have been breaking the law, as acknowledged by the Department of Communications, Marine and Natural Resources, and the vast majority of fishermen will suffer as a consequence. The Department is between a rock and a hard place because it must legislate against criminality.
I am calling for mechanisms to protect law-abiding fishermen, as I have consistently done throughout the debate. This amendment proposes the right of appeal to the High Court. The Minister said on Committee Stage that it was provided for in another section but any measure that offers protection for law-abiding fishermen should be adopted. Senator Kenneally, on first reading the amendments we tabled on Committee Stage, accused us of trying to bend the rules and looking for loopholes but that is not the case. As legislators, we are all between a rock and a hard place. Fianna Fáil backbenchers and we on this side all have problems with the legislation, even though it is an important Bill. We have all agonised over it, as it seems they have for some time in the Department. The Attorney General has even been involved. The Bill is not straightforward or easy. Neither is the matter as simple as my making outlandish statements about protecting innocent people at all costs, only to fail to introduce measures. They must be introduced but there must be balance and common sense.
The Minister's proposal yesterday was the light at the end of the tunnel, that is, to engage in a healthy ongoing consultation process with the fishermen's organisations. This matter does not relate only to sea fishermen. There is a plethora of issues with respect to fishing, such as angling tourists and drift-net fishermen who have specific interests, aquaculture and salmon fishermen. The only way forward is to roll out an exhaustive consultation process with the key people in the fishing industry. Everyone in the industry has an interest in it, whether it is someone with a B&B who looks out on Mulroy Bay and sees a salmon cage or someone else. The industry has a future and it is our responsibility as legislators to represent its members who wish to continue therein.
I second the amendment. It is unusual that the section allows for the prosecutor to appeal the dismissal of proceedings. I do not know whether this provision is in other legislation but I have not seen it previously. However, I am sure that I have seen similar wording to "an appeal to the High Court on a point of law" in other legislation brought to the House by the Government. Why can these words not be inserted in this Bill? The Minister says that what the amendment intends to provide for is the case anyway but stating that something is not appealable is definitive. If that is the position, why not spell it out?
Many provisions available to people are not put into all legislation passed by the House. Once a right is given, we do not keep rewriting it, as we would be left with unmanageable chunks of legislation. The amendment is unnecessary. Under current legislation, a Circuit Court judge is free to refer a point of law to the High Court by way of a case stated. If such a referral is not made, the decision of the Circuit Court judge is final in respect of the facts and any appeal, whether it is against a conviction or dismissal. However, any aggrieved party could seek a judicial review of a Circuit Court decision by the High Court on legal grounds. There is no need to specify this in legislation as it is an existing right. For this reason, I will not include the provisions of the amendment in the Bill.
I acknowledge Senator McHugh's comments on the significant investment in the fishing industry by the State and fishermen. Considerable efforts have been made in different areas to try to ensure we have a modern fishing fleet with the necessary equipment, an aim the Government has strongly supported. The difficulty is that perhaps the EU did not commence its fishery protection measures in time. Now that everything has become so efficient from a fishing point of view, scientific advice indicates that we are in serious danger of depleting our stocks below conservation levels across a range of species. We can ignore that advice and decide not to do anything about the matter, but all of the investment will be useless in four or five years time and probably less in respect of some species. The alternative would be to lower the quotas, which would cause a problem for the fishermen in the short term, have more stringent fishery protections and hope that we can conserve stocks for a longer period of time.
The message must get through to the cowboys in the industry that they cannot hope to get away with depleting stocks and exceeding conservation limits willy-nilly. I agree with Senator McHugh that we must stamp out those activities. The industry and fishermen's organisations must take the lead, as they cannot be led by the nose by people they know in their heart of hearts are abusing that position and causing problems for genuine fishermen. If they do not stand up against such people, there will be no future for anyone in the industry.
I look forward to meeting with the fishermen's organisations to talk about the future and how we might ensure that people abide by the law, quotas are respected and people are helped to survive and make decent livings. It will not be easy to do so unless everyone agrees on a shared vision for the future and puts this matter to the forefront of the debate, particularly over the next four or five years. According to the scientific evidence I have seen, we are speaking about a window of four or five years in which to try to salvage an industry in the long term.
This legislation is required to ensure that the Irish or foreign people — I accept the points made by Senators on this matter — who do not share this vision and want to abuse their positions because they may have more efficient equipment or better methods of fishing are not allowed to do so to the disadvantage of everyone else. The sooner we sit down to develop a shared vision, the better. It will require leadership, not just mine or that of my Department but also that of the fishermen's organisations and fishermen themselves. I hope that leadership will be forthcoming.
I thank the Minister and his staff for their diligence and help during the passage of this legislation. I also thank Opposition spokespersons and those who contributed on Second Stage.
A long time seems to have passed since the Bill was published. There were extensive discussions on the Bill at meetings of the Joint Committee on Communications, Marine and Natural Resources. This Bill was debated in the Dáil and the Seanad and has been immeasurably improved since the legislation was first presented. I would like to see other measures in it but I appreciate the Minister's commitment to meet with fishing organisations to discuss the future of the industry.
Anyone who habitually breaks the law should be dealt with severely by the courts and no Member would suggest otherwise. Those who habitually break the law are causing problems in the industry but minor offences could be dealt with in another way.
We are faced with many dilemmas in the fishing industry, the greatest of which is balancing conservation and sustainability with livelihoods. Fishermen came to Leinster House yesterday from the area in which Senator Kenneally resides, from Mizen Head, from the west coast and Gola Island, Inch Island and Urris in north Inishowen. These fishermen spoke of surviving and of their traditional way of life with which we must strike a balance. The Minister is a smart man and realises that life in the fishing industry is not black and white. I believe the fishing industry has a great future and enough people in the industry wish to strike a balance with conservation. Fishermen must take the lead through their representative organisations. Some, such as the crab fishermen in north-west Donegal, produce scientific research with Trinity College and UCG on their own initiative.
I spoke to a man with triplets, three four year old sons. He told me he wishes to see them grow up to be fishermen though he does not necessarily want three Government grant-aided boats.
I thank the Minister and his staff. I am not as familiar with the debate as the other spokespersons, I am not my party's spokesperson and I came to the debate quite late. I am concerned that this legislation is stricter than that of other countries but I welcome the Minister's commitment to engage in dialogue with the industry. The legislation should be monitored and reviewed if necessary.
I thank the Senators for their co-operation in bringing the Bill to its conclusion. This Bill updates and consolidates sea-fisheries legislation dating back to 1959. When it is signed into law it will provide for the implementation of the requirements of the EU Common Fisheries Policy. The Bill signals the need for proper conservation and management of sea-fisheries. While some may suggest we are too severe, we cannot ignore the scientific data that exist.
Since the Bill was published many Senators, including Senator Kenneally, have made suggestions to improve it. Many of these were taken on board as the Bill grew from 71 sections and two Schedules to 104 sections and three Schedules. The major additions were to the sections on the sea-fisheries protection authority, moving fisheries protection from the political realm and the Department's remit to an almost independent regulator. It is important that Departments with responsibility for promoting particular sectors should focus on this task, with regulation provided by independent regulatory authorities.
I reiterate the necessity for the Department's commitment to the sustainability of sea-fisheries and, in particular, to the coastal communities that depend on the sea, to which Senator McHugh referred. I hope the industry representatives can work with us to ensure we make progress. I am committed to working at EU level to secure better EU controls and penalties for illegal fishing and stronger measures to address the matter of foreign factory ships. We need a better method of monitoring and controlling foreign vessels in our waters. This weakness must be addressed.
I also thank the members of staff of the House for their co-operation in arranging debates on this Bill. I do not wish to finish on a negative note but in almost 20 years in the Dáil I have rarely seen such a concerted and organised campaign against legislation. This applies more to contributions made in the Dáil than the Seanad. I have rarely seen such misinformation from those opposed to the Bill, mainly outside the Houses. A robust debate is healthy in any democracy but certain limits should not be breached. During the course of this debate certain remarks made were out of order and very unfair to the civil servants dealing with this Bill. I am not referring to Members of this House.
As a politician and a Minister I am accountable to the Houses of the Oireachtas. I have no difficulty accepting criticism and can stand here and defend myself. However on a number of occasions during the passage of this Bill a number of people, although not in this House, went over the top with personalised attacks on civil servants in my Department dealing with this area. This is unfair and should not happen. I was also annoyed by anonymous attacks on civil servants by people outside the Houses in newspapers and other publications. This was out of order. I will take the political flak but our civil servants and the integrity of the Civil Service should not be attacked in that way. I regret that it happened.
I do not want to finish on a negative note. I thank everybody in this House for dealing with this Bill efficiently, effectively and fairly and I look forward to having it signed and, on foot of the requests that have been made, meeting the fishermen's organisations and the wider communities in coastal areas to plot a way forward that will ensure sustainable communities into the future.