Liam Twomey (Fine Gael)
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It is appropriate, in light of what I am about to say, that we have just finished a debate on the 70th anniversary of the Constitution. Senators have spoken about what the Constitution means to the people of Ireland. Two sensitive cases which have made the news headlines over recent weeks have brought to our attention the abuse of citizens' constitutional rights by two Departments and two Ministers. The Minister for Education and Science, Deputy Hanafin, has decided that it is better to bankrupt the family of an autistic child than to provide a suitable educational service to that child. The Minister for Health and Children, Depuaty Harney, has decided that a child whose life is being endangered by spinal difficulties should have to wait until 2010 to get treatment. In the latter case, a decent and honourable individual has stepped in, fortunately, to make the HSE do what it should have done from the outset.

The case I wish to raise on the Adjournment concerns a fisherman in County Wexford who is also suffering at the hands of the State, which is using its power and money to crush him and his family. I ask the Minister of State responsible, Deputy Browne, who is from County Wexford, to do the honourable thing by dealing with the case of the man in his Department. I do not want to outline the complex details of the case, which we could discuss all afternoon. The basic point is that the man had an issue with the Department about the decommissioning of a fishing boat. When the Department decided to establish an independent inquiry, it asked an independent senior counsel to examine the man's case. The senior counsel decided that the man should receive compensation but, for some reason, the Department has initiated a judicial review rather than paying the compensation. If that is not an abuse of State powers, I would like to know what is.

The Department, with the consent of the Minister, established an independent inquiry to handle any complaints about the compensation scheme. The person whose case I am making submitted a claim to the inquiry, which ruled that he should be granted compensation. Why is the Department seeking a judicial review of a decision taken by a body it established? I contend that it is trying to crush the individual in question because it knows he does not have the financial resources and legal firepower to protect himself from the Department.

I do not want the Minister of State to tell me about nitty-gritty matters like dumping at sea, compensation or numbers of fishing days. The independent senior counsel and the Ombudsman have adjudicated on all such issues. The only body that seems to be acting out of order in this case is the Department. Rather than hiding behind the mistakes which have been made over the last 12 years, or feeling that it cannot walk away from this case without egg on its face, the Department needs to show some respect by paying the man in question the compensation to which he is entitled. It needs to bring the threatened High Court case to an end, as it would break the individual to whom I refer. This affair has been going on for the last seven years. The man in this case is expected to pay fees to tie up his boat. He is not sure if he can decommission the boat as things stand. It is not as if we are talking about a trailer or an old banger in his backyard — the boat in question weighs 180 tonnes. The Department needs to deal with this case in a way that is fair to the individual. When the Minister of State speaks I would like to know what is going on. I do not want to hear the background legal arguments. The senior counsel, the Ombudsman and people in the Department are more au fait with this and the independent individuals involved agree with this fisherman. I would like the Minister of State to make his contribution and if I have other questions I will put them at the end of his contribution.

Trevor Sargent (Dublin North, Green Party)
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Ba mhaith liom buíochas a gabháil leis an Senadóir Twomey as an cheist seo a ardú. It is a sensitive matter and in the context of a proposed judicial review I must be careful what I say. The Minister of State with responsibility for fisheries at the Department of Agriculture, Fisheries and Food, Deputy Browne, has asked me to apologise that he cannot be here. He is taking a keen interest in the matter.

Under the Terms of the EU Common Fisheries Policy, CFP, the primary mechanism for reducing fishing effort and finding a balance between the fleet size and available fishing entitlements is decommissioning. In Ireland it is widely accepted that there are too many boats chasing too few fish in most species.

This basic imbalance leads to problems such as pressure on fish stocks through over fishing which in turn has led to the new range of EU restrictions on fishing activity and effort; a volatile economic and financial environment for the boat owners, the fishers and the processors in the industry; and an underlying temptation to exceed fishing restrictions which can in some instances lead to legal actions against fishermen and by the EU against the Irish Government.

The central recommendation of a review carried out under the chairmanship of Mr. Padraic White in 2005 was that the Government should back a decommissioning scheme to remove 25%, that is 10,937 gross tonnes, of the whitefish fleet, polyvalent and beam trawl segments, and to reduce the scallop fleet to a level of 4,800 kW. There are overwhelming benefits to getting the fundamental imbalance adjusted between fleet capacity and fishing entitlements. It would result in a secure future, based on attractive economic returns, for those remaining in the whitefish and shellfish industries.

The economic analysis carried out for the White review demonstrated that whitefish stocks would have to be some 30% greater to yield a viable and attractive return for the boats now in the demersal sector. There is no prospect of the stocks and permitted fishing activity increasing by this amount in the foreseeable future. Accordingly, decommissioning is needed to provide a secure economic return for the boats remaining. This will lead to less pressure on fish stocks leaving the remaining boats to make a good living within the permitted fishing effort or allowable catches.

Council regulation (EC) No. 2792/1999 lays down the detailed rules and arrangements on Community structural assistance in the fisheries sector and specifies that to be eligible for a decommissioning grant, or scrapping premium, a vessel must meet the following criteria. The vessel must have carried out a fishing activity for at least 75 days at sea in each of the two periods of 12 months preceding the date of the application for permanent withdrawal; the vessel must be ten years old or more; the vessel must be operational at the time the decision is taken to grant the premium; and prior to its permanent withdrawal, the vessel must be registered in the fishing vessel register of the Community.

The purpose of the decommissioning scheme for the demersal and shellfish fleets is to establish a better balance between fleet size and available fishing entitlements. Ireland's fishing fleets, like those of all our European partners, are governed by the rules of the CFP, a complex policy that incorporates a significant volume of legislation. Ireland's fisheries are subject to a range of management measures put in place to ensure the sustainable exploitation of fish resources. These obviously impact both nationally and at an individual level, and significantly affect how each fishing vessel or fisherman may conduct business. There is a complex range of instruments employed under the CFP to manage fishing within the EU.

The uncertainties facing the demersal and shellfish sectors because of quota and effort restrictions have been compounded by a range of other factors. The cumulative effect is the realisation that there is no real economic future for some of the participants in these sectors unless a large proportion of the fishing capacity can be taken out in order that those remaining can look forward to working in a fishing industry with good economic prospects. A national decommissioning programme is seen as the best way of taking out the necessary fishing capacity.

Following the review of the decommissioning needs of the whitefish and shellfish fleet by Mr. White in July 2005, the scheme to withdraw capacity permanently from the demersal and shellfish sectors of the Irish fishing fleet, commonly referred to as the fishing vessel decommissioning scheme, was launched on 5 October 2005. The closing date for receipt of applications was 1 November 2005. Some 64 applications were received on time by BIM, which was the implementing authority for the scheme. Successful applicants were approved for decommissioning in two tranches in November 2005 and February 2006. Grant aid was paid in two instalments, 50% on administrative decommissioning, that is the surrender of the sea fishing boat licence and de-registration of the vessel, and 50% on physical destruction of the vessel. Council Regulation (EC) No. 2792/1999 of 7 December 1999 sets down the detailed rules for the payment of grant aid for decommissioning of fishing vessels. The scheme was drawn up in full compliance with the terms of the EU regulation. Under the terms of the decommissioning scheme there is a right of appeal to an independent appeals officer appointed by the Minister, a non-statutory arrangement.

An updated analysis undertaken in the Cawley review in 2006 indicates that whitefish stocks generally, and available quotas in particular, would have to be some 45% greater to yield a viable return for the vessels now in the demersal, whitefish and nephrops sector. On this basis, and taking into account the current capacity of the polyvalent and beam trawl segments of the fleet, the Cawley report recommended that in total 14,318 gross tonnes should be decommissioned of which 3,178 gross tonnes has been scrapped to date. Thus the revised target for the planned decommissioning scheme is set at 11,140 gross tonnes.

The person involved applied for the decommissioning of his vessel. BIM wrote to the applicant on 1 September 2006 advising him that he had been unsuccessful in his application because he had not met the minimum criteria of the scheme. The applicant appealed this decision and on 5 September 2007 the appeals officer granted his appeal. In all the circumstances and conscious of the State's legal obligations under EU law the Minister has taken further legal advice in the matter. In that context the case has been re-examined. I expect this matter will be the subject of litigation and I expect it will be dealt with fully in the courts. Accordingly I am not in a position to discuss this matter further at this stage.

Liam Twomey (Fine Gael)
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Only two paragraphs of the Minister's response related to the matter I raised. I am sorry to say we are no better off. Of the 64 applicants how many were refused? How many are in the same position as the one I raised? This is a case of the State being unhappy with the outcome and taking the person to court knowing he does not have the resources to challenge the State in the High Court. The State is denying people their rights. The Government established the independent commission and appointed an independent senior counsel. Why can it not accept her decision? She has no vested interests in this case but the Government did not like the outcome. How many more cases like this are there?

Pat Moylan (Fianna Fail)
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The Minister of State outlined at the end of his speech that this matter is going to the courts.

Liam Twomey (Fine Gael)
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The number of cases is not a matter for the courts. If there are 64 applicants——

Pat Moylan (Fianna Fail)
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Senator Twomey's adjournment debate request was on a specific case.

Liam Twomey (Fine Gael)
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We should know how many similar cases there are if the Minister is taking this person to court.

Trevor Sargent (Dublin North, Green Party)
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I regret I do not have that information. I am prepared for this debate, which——

Pat Moylan (Fianna Fail)
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The Senator has referred to a specific case.

Liam Twomey (Fine Gael)
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If there is only one case, it will cost more to take it to the High Court than to pay compensation. That is typical of the conduct of the Health Service Executive and the Department of Education and Science.

Pat Moylan (Fianna Fail)
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The Minister of State has dealt with the issue as comprehensively as he could, given that it is before the courts.

Liam Twomey (Fine Gael)
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We cannot use the courts as an excuse. I heard another Senator make many comments on what the courts and the Director of Public Prosecutions should do. We are right to expect answers from the Department on this case.

Pat Moylan (Fianna Fail)
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In the courts, everyone is given ample opportunity to defend his or her case.

Liam Twomey (Fine Gael)
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The State will ensure the person in question does not have the opportunity to do so.