Gerry Horkan (Fianna Fail)
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I welcome the Minister for Agriculture, Food and the Marine, Deputy Charlie McConalogue, to the House.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 1 and 11 are related and may be discussed together by agreement. Is that agreed? Agreed.

Lynn Boylan (Sinn Fein)
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I move amendment No. 1:

In page 12, line 26, to delete “on the balance of probabilities” and substitute “beyond a reasonable doubt”.

From the Dáil debates the Minister will be aware that Sinn Féin's position is that we will not support the Bill. We are not opposed to a penalty points system but it must be a fair system. We do not believe that this scheme is. The amendment essentially comes down to "on the balance of probabilities" versus "beyond a reasonable doubt". I will address this issue further in later amendments but for the purposes of these amendments when we are talking about points and serious infringements, they must be considered on the basis of "beyond a reasonable doubt". That is the basis of any law. For this reason, I support these amendments and I oppose the presumption of "on the balance of probabilities", references to which are littered throughout the Bill.

Charlie McConalogue (Donegal, Fianna Fail)
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I thank the Senator for amendments Nos. 1 and 11. The issue of the standard of proof to be used by the determination panel and the appeals officer being "on the balance of probabilities" has been raised by industry on a number of occasions, including on Committee Stage in the Dáil and on previous Stages in the Seanad. It was also raised during pre-legislative scrutiny. The legal standard of "beyond a reasonable doubt" is almost entirely confined to criminal trials and is not applicable to proceedings of a civil nature where the standard used is the balance of probabilities. This is the standard used for the points system and the legal position is that it is also the appropriate legal standard.

The standard of proof is ordinarily and overwhelmingly on the balance of probabilities in several cases. A higher standard of proof is required in criminal cases, which is that of proof beyond a reasonable doubt. This higher standard in the exercise of criminal jurisdiction is because so much more is at stake in a criminal case after a conviction, with a possible custodial sentence and the negative reaction of the public that is marked by being found guilty of a crime. The legal position further indicates that neither of the Crayden or O'Sullivan cases, which challenged a forerunner to this, SI 318/2020, was challenged successfully, and that the Supreme Court did not make any reference to "beyond a reasonable doubt" throughout those two judgments.The Supreme Court did not take issue with the balance of probabilities and the standard of proof in any of the statutory instruments it considered.

Lynn Boylan (Sinn Fein)
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I do not accept what the Minister is saying. I do think any industry would tolerate beyond reasonable doubt as to the balance of probabilities. I am sure the Minister is familiar, being from Killybegs, with the issues the fishermen are facing up there and the manner in which they have been policed. We will push the amendment.

Charlie McConalogue (Donegal, Fianna Fail)
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While I have described it and have compared it to the penalty points system for motor traffic offences, which again is the civil sphere, it is penalty points we are talking about here, not criminal convictions. That is why the balance of probabilities is being used in regard to defining a civil penalty, a civil penalty being the application of a penalty point on a licence. If after accruing a significant number of penalty points over a period of time you get to certain thresholds, then there are penalties in terms of suspensions. It is quite similar and akin to the road traffic penalty points system for drivers. If you drove home today and accrued two penalty points on your licence, that would be a civil offence. If gardaí stopped you for a more serious offence and it was in the courts, you are obviously in a criminal situation then.

We are the last country in Europe within the Common Fisheries Policy to introduce a penalty points system. There is an obligation on us to have a penalty points system as part of an effective control system for fisheries. At the moment the only system we have is the criminal system, so the only way to provide any type of sanction at the moment for any infringement that might happen on the water is for criminal proceedings to be taken against the fisherman or fisherwoman, for him or her to be brought to court and for there to be a conviction. There is nothing other than that. Obviously, the threshold would be much higher, as it always would be for anything that is criminal. We have been in a difficult position in recent years because we do not actually have what the European Union regards as an effective control system. We have a big gap because there are no penalty points.

It would be akin to doing away with the penalty points system for road traffic offences and saying that, unless the threshold is met whereby you end up in court, there are no sanctions in between. Ultimately, that deterrent factor and civil aspect within the control system would be gone. We are looking to introduce that civil band to control fisheries. It is an obligation on all member states to do that. There was an obligation on us to have had that done by 2012, so much so that the EU has taken legal proceedings against us for being non-compliant and for not having followed through on our obligations and responsibilities as a member state. Other countries within the Common Fisheries Policy have penalty points systems in place. Ireland is the only one that does not. Given it is a civil penalty and given this is about putting penalty points on a licence, were you to apply the same threshold that ultimately is used in the courts, then you do not really have an administrative system.

Gerry Horkan (Fianna Fail)
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I thank the Minister for the comprehensive response. Would Senator Boylan like to come back in?

Lynn Boylan (Sinn Fein)
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I would like to respond because as I said, we are not opposed to a penalty points system. The Minister makes the comparison with the road traffic penalty points system, but my understanding is that if you appeal the penalty points in the court, you are allowed to have those penalty points quashed, whereas when we get to amendment No. 6, the right to allow the innocent to clear his or her name, you are not able to clear your name. In comparing it to the driver penalty points system, it is a penalty points system in that the threshold is lower than it would be in a court case. However, when it comes to a person clearing his or her name, it appears that is where the comparison stops. Therefore I will push amendment No. 1.

Charlie McConalogue (Donegal, Fianna Fail)
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The difference is that while penalty points for drivers are ultimately part of the criminal system, the penalty points system for fishermen is not. It is purely administrative. There is a requirement on us to have such a system within the European situation. There are appeals mechanisms but they are not in the courts. They are through determination panels, so a person can appeal, but he or she does not go to court to appeal it. That person stays within the administrative situation, so he or she is not in the criminal justice system, and that person appeals the application of penalty points to his or her licence and seeks their removal. There is that opportunity, outside of the courts and in a different appeals system, to seek leave to appeal and to have that appeal heard. There is also the opportunity within the legislation for an oral hearing. Each one of those opportunities is through the determination panel.

In parallel with this administrative system, the old criminal system will still stay in place and is still there, so if a misdemeanour or a breach of the control or the obligation to stay within the rules is so serious that the control authorities believe it merits a separate criminal charge, that can happen in parallel and can be done separately. While the penalty points administrative system will not have a criminal stream in the vast majority of instances, the two could go in parallel. There is an appeal system within the administrative system for penalty points, and that can be appealed on a point of law to a court in terms of whether the procedure was followed properly. If that point of law were to be found in favour of the fisher, then it would fall, but it would be only on a point of law that it could be appealed.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 3 to 5, inclusive, 7 to 10, inclusive, and 14 to 16, inclusive, are consequential on amendment No. 2. Therefore, amendments Nos. 2 to 5, inclusive, 7 to 10, inclusive, and 14 to 16, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Lynn Boylan (Sinn Fein)
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I move amendment No. 2:

In page 12, line 41, to delete “an Irish” and substitute “a European”.

My points will address all the amendments in this grouping. It seeks to delete "an Irish" and substitute it with "a European". This amendment comes from the same place of concern for the sector that it is being unfairly treated at a time when the Irish fishing industry is under huge pressure. This legislation has significant issues as it is but it flies in the face of fishermen and fisherwomen who are out fishing beside the other European boats with larger quotas, less scrutiny on landings and a perception they have an easier time of it from their authorities. If penalty points are to be applied fairly, then surely they should apply to all European citizens and not just Irish citizens as this legislation sets out.

We have been told by the Attorney General that we cannot discriminate against European citizens in legislation. One example is the development of the renewal energy supports scheme where there was a proposal for part of a corporate-led development to offer a portion of a renewable energy project for investment to local residents, then to people in the county, and then State-side. People would be able to buy a small share in their local windmill. That was dropped on the pretence it would discriminate against EU citizens' right to invest, yet here in this Bill we see a distinction between legislating for Irish citizens and for EU citizens. Therefore we are seeking clarification. Does it not discriminate to focus on Irish citizens and single them out in a European framework? Does it leave the Minister open to a protracted court battle? Could the French and Dutch fishermen and fisherwomen in Irish waters be subject to the same penalties? That is the rationale behind the replacing of the word "Irish" with the word "European" throughout the Bill.

Charlie McConalogue (Donegal, Fianna Fail)
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I thank Senator Boylan. The effect of these amendments, if they were taken together, would appear to be to expand the scope of the penalty points system for masters provided for under the Bill currently to encompass masters who are citizens of another member state as distinct from Irish citizens. The amendments would require in effect that the Minister would have to set up a register to cover all masters from all EU member states and then that the Sea-Fisheries Protection Authority, SFPA, would have to assign points to masters who are citizens of other member states.

In this regard it should be noted that the Bill provides that points assigned to a master who is a national of another member state should be notified to the competent authority of that member state. The notification to that competent authority in another member state should include the identity of the sea fishing boat to which the infringement concerned relates; the name, address and any other identifying details available relating to the master of the sea fishing boat; the particulars of the serious infringement that has happened; and the number of points applicable for that infringement.The obligation, therefore, is on Ireland's SFPA to notify its corresponding bodies in the other member states of the offence that has taken place under the Common Fisheries Policy.

It should also be noted that, under the Bill, the same determination procedure applies regardless of whether the master concerned is an Irish citizen or a national of another member state. In each case the independent determination panel and independent appeals officer, where relevant, determine whether a serious infringement has occurred for which points should be applied. In each case the master concerned may apply to the High Court on a point of law, as I mentioned in my response to the previous amendment, in respect of a decision of any appeals officer. It is only when this determination procedure has concluded that differing procedural requirements apply in respect of the assignment of points, depending on whether the master concerned is an Irish citizen or a national of another member state.

I should also point out that a similar approach to that which I have just outlined is taken in the context of the separate points system for licenceholders as provided for under the European Union common fisheries regulations. That licenceholder system has been operational since January of last year. Senators will recall from the debate on Second Stage that, more generally, the scheme for points for masters now proposed in the Bill follows inasmuch as possible the provisions of that existing and separate licenceholder system in respect of the list of serious infringements, the number of points assigned and the suspension thresholds as provided for under EU regulations.

The relevant procedures in the Bill, as I have just summarised, are the most appropriate means of ensuring the effectiveness of the masters points system. Were these amendments acceded to, I believe that the result would be seen as contrary to the intent of the EU objective. Masters who are nationals of other member states could have points assigned to their licences by the Irish authorities but could shortly thereafter potentially have points assigned to their licences by the competent authorities of other member states. A master could therefore conceivably accumulate points in multiple member states, each operating separately, without ever reaching the relevant thresholds for suspension or disqualification. The EU points system for masters would not be able to function in an effective, proportionate or dissuasive way if multiple member states were to assign points in respect of masters who are nationals of other member states. That is the clear implication of these amendments, and such an outcome would undermine, in my view, the effectiveness of the system at both national level here and EU level.

The Bill follows the approach set down in the EU control regulation in respect of licenceholders by providing for each member state to assign points in respect of its licenceholders and for masters who are its citizens. In that regard the Bill requires the Minister of the day to establish and to maintain a register of masters who are Irish citizens by providing for the necessary notification requirements to competent authorities of other member states, as I have set out and where required.

For those reasons I cannot accede to these amendments. There is a system in place that is European and common across the EU. For Ireland to set up our own separate and independent system simply would not be feasible, practical or compliant with our obligations under the Common Fisheries Policy. Such a system would be separate from the requirements on Ireland and other member states and would not have any coherence or organisation. Were we to take a different approach from the one into which we are feeding now, for it to work and to have any practical effect, it would have to be introduced at European level and the same system would have to be applied to every member state because everybody has to work from the same system. If an Irish skipper or master were found to have committed an infringement in other waters, we would be notified and we would keep the points record in that instance, and vice versa. If, however, there were multiple people keeping multiple records and they did not all join together, it simply would not work or be practical. A proposal such as Senator Boylan proposes, therefore, would have to involve going back to the drawing board at European level and changing the structure.

Lynn Boylan (Sinn Fein)
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I do not accept the Minister’s arguments. The Irish fishing industry has been treated very differently from the rest of the European fishing industries in respect of the competition they are up against.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 3 to 5, inclusive, in the names of Senators Boylan, Gavan, Ó Donnghaile and Warfield, cannot be moved as a result of the decision on amendment No. 2.

Lynn Boylan (Sinn Fein)
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I move amendment No. 6:

In page 14, lines 35 to 37, to delete all words from and including “regardless” in line 35 down to and including line 37 and substitute the following: “subject to the outcome of any criminal proceedings in respect of the serious infringement concerned. Where a Master or Owner is found not guilty in such criminal proceedings, then the Authority shall take such steps to remove any record of the assignment of penalty points as if they had never been assigned in the first place. This shall include notifying the licensing authority to ensure the points are removed from the capacity.”.

This amendment goes back to what we said earlier about the ability of someone to clear his or her name. It is down to due process. The amendment seeks to change the Bill such that, even in the event of a successful appeal against a conviction on the balance of probability, the points remain on the licence and, in effect, the conviction remains. I am still calling, even at this late stage, on the Minister to pause this scheme, revisit it and make it fair and lawful. I cannot fathom why the Government is standing over a section that provides that even if an individual is found innocent of an alleged breach in court, the penalty points applied under this legislation would not be deleted. We see this as a matter of due process and urge the Minister to reconsider our concerns about this.

Charlie McConalogue (Donegal, Fianna Fail)
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Concerns were raised about this section in the context of the equivalent provision in the licenceholder system and then in pre-legislative scrutiny of the general scheme of the Bill. The issue of points being removed where the master is found not guilty in criminal proceedings in respect of the infringement was raised. This proposal would involve both systems being interlinked. They would not stand alone from each other. There would be separate systems involving separate standards of proof between the points and the criminal prosecution. That would lead to confusion and conflation of evidence and render evidence inadmissible. In addition, the legal advice is clear that points, under EU regulation, are intended as additional to criminal prosecution. Accordingly, it could not be argued that Ireland has both criminal and points systems, as required under EU regulation, if we were to operate the system in a manner whereby the criminal proceedings completely eclipsed the points system and therefore made it redundant.

For those reasons I cannot accept the amendment.

Lynn Boylan (Sinn Fein)
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I just do not accept that if somebody can go to the courts and have a conviction overturned on the balance of probability, the points would remain on his or her licence. I will press the amendment.

Charlie McConalogue (Donegal, Fianna Fail)
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The penalty points system is an administrative and not a criminal system. There are appeals systems in place within this new penalty points system. If somebody who has points assigned to them feels that the law has not been properly followed, he or she can appeal that on a point of law to the courts. If the point of law is found in his or her favour, the case falls in that instance if it was not followed properly. What Senator Boylan is suggesting, however, is that where there is a criminal process in parallel to the penalty points process, if there is not a criminal conviction in the courts for that same offence, the penalty points should fall too. That would then mean that the administrative system, the penalty points system, would be completely subject to what would happen in the courts on the criminal side. Effectively, it would mean that no administrative system would be in place. While it is possible to appeal on a point of law something that happens on the administrative side, there is a requirement on us to have the two systems running in parallel. If we were to tie the two together, one would be subjugated by the other. If we were to take that approach, we would not be meeting our obligations as a controlled authority and a State under the Common Fisheries Policy and we would not be meeting our obligations to put in place a penalty points system. The European Commission has taken proceedings against us for being the only remaining EU member state that has not done this, and for being ten years late in doing it. The Commission would have to continue to pursue those proceedings against us in the European courts for being non-compliant. That is the situation that would face us were we to accept Senator Boylan's amendments.

Lynn Boylan (Sinn Fein)
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There are parallels with the penalty points system for driving. If you go to the courts and are successful, the penalty points are removed from your licence.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 7 to 10, inclusive, in the names of Senators Boylan, Gavan, Ó Donnghaile and Warfield, cannot be moved as a result of the decision on amendment No. 2.

Lynn Boylan (Sinn Fein)
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I move amendment No. 11:

In page 18, line 20, to delete “on the balance of probabilities” and substitute “beyond a reasonable doubt”.

Lynn Boylan (Sinn Fein)
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I move amendment No. 12:

In page 18, to delete line 25 and substitute the following: “(b) involved a serious infringement and not minor in nature giving due regard to all of the facts of the case, and".

Amendments Nos. 12 and 13, which will be discussed later, are similar. Amendment No. 12 seeks to delete the provision that an appeal can only be taken based on a point of law. Sinn Féin believes that law the Minister is proposing is fatally flawed. Restricting an appeal to a point of bad law is unacceptable. We ask that the Minister remove this from the Bill.

Charlie McConalogue (Donegal, Fianna Fail)
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This follows on from discussions we have had. This amendment relates to the appeals officer and confirms that the points shall be assigned when he or she considers that the alleged infringement is of a serious nature. The serious infringement referred is defined in the 2020 statutory instrument for licence holders, as well as in this Bill for masters.

The legal position is that the amendment confuses EU and Irish law, as well as civil and criminal law, and the difference between serious and non-minor offences in Irish law. The two standards referred to are entirely different and the amendment serves only to confuse the issue. Accordingly, this proposal was not accepted in the context of SI 318/2020, as regards the licence holder penalty points system. With the same logic, I do not propose to accept it in the context of this Bill either for a masters' penalty points system.

Lynn Boylan (Sinn Fein)
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I move amendment No. 13:

In page 18, lines 38 and 39, to delete “on a point of law”.

This relates to the same point as amendment No. 12.

Gerry Horkan (Fianna Fail)
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When is it proposed to take Report Stage?

Denis O'Donovan (Fianna Fail)
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Next Tuesday.

Gerry Horkan (Fianna Fail)
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Is that agreed? Agreed.