Dáil Éireann debate -
Wednesday, 23 Oct 1991

Vol. 411 No. 5

Fisheries (Amendment) Bill, 1990: From the Seanad.

The Dáil went into Committee to consider an amendment from the Seanad.

Minister for the Marine (Mr. Wilson)

I move that the Committee agree with the Seanad in amendment No. 1:

In page 7, lines 6 to 13 deleted and the following subsection substituted:

"(1) (a) Every ordinary member of a society for a particular year shall, if ordinarily resident in Ireland, be entitled to vote at an election held in that year for members of the regional board for the region which includes the society's area but, in the case of the election for any year subsequent to the first election after the commencement of this Act, only if he had also been an ordinary member for any two other years since the previous election.

(b) Every former life member of Iontaobhas Iascaigh Intire Incorportha (The Inland Fisheries Trust Incorporated) who registered under section 58 (4) of the Fisheies Act, 1980, in the register of a regional board and who is ordinarily resident in Ireland on the date fixed under the Fisheries Act, 1980, for the receipt of nominations at an election held for members of the regional board by which the register is maintained, shall be entitled to vote at that election.

(c) This subsection shall not prejudice the operation of section 13 of the Fisheies Act, 1980.".

The amendment provides for the restoration to life members of the former Inland Fisheries Trust their entitlement to vote in the regional board elections free of charge.

The former Inland Fisheries Trust was dissolved under section 35 of the Fisheries Act, 1980. Section 58 (4) (a) of the said Act provided for persons who were life members of the former trust to be enabled to register free of charge with one of the regional fisheries boards on the register of trout, coarse fish and sea anglers as trout, coarse fish or sea anglers. Section 59 of the Act provided for the life members to enjoy certain benefits in relation to fisheries owned or managed by the central and regional fisheries boards.

Under the Fisheries (Amendment) (No. 2) Act, 1987, the registration arrangement for trout and coarse fish anglers ceased to exist. The registers became registers of sea anglers. Licences were introduced for trout and coarse fish angling and the electorate for the boards was to be comprised of licence holders as is the case in relation to salmon anglers. Accordingly the arrangement whereby life members could be included in the electorate free of charge was terminated. The 1987 Act provided however for the benefits relating to fishing on board waters to be continued and improved.

Since announcing my proposals last year to replace trout and coarse fishing licences with the new system as set out in this Bill I received several representations seeking to give some recognition in the system to the life members who, when there was very little support for inland fisheries, made contributions in order to develop inland fisheries. This is a recognition of that commitment in the past. Deputies Gilmore and Garland raised the matter during Committee Stage of the Bill and it was raised again on the Second Stage debate in the Seanad and I undertook to have a look at the matter. Having considered the matter I proposed this amendment on Committee Stage in the Seanad where it was warmly welcomed and agreed. It is a very simple amendment which should not delay the House.

In effect this amendment ensures that life members are entitled to vote in board elections whether or not they are members of co-ops. They will not however have any entitlements in relation to the election of co-op management committees or ballots unless of course they become ordinary members of the co-ops. Molaim an leasú don Teach.

Mrs. Barnes

I recognise what the Minister for the Marine is endeavouring to do in this amendment. Now that we are discussing an amendment to section 14 let me say on behalf of the Fine Gael Party that our concerns and opposition not just to this section but to other sections of the Bill must be raised. The terms of reference of the fisheries co-operatives are questionable because they are not within the terms of reference of co-operatives as we know them. It is questionable whether voting rights will be able to be conferred on members at all. Therefore, I am opposed to this amendment to section 14. We, on this side of the House, have consistently questioned and opposed the proposed co-operative structure and questioned the constitutionality and the terms of reference of the proposed structure. Being consistent with our opposition when the Bill was going through the Dáil, I am again placing on record our opposition to this section, as amended, and other sections. The proposed co-operative structure is of doubtful origin and I question also its constitutionality.

Mr. G. O'Sullivan

In the course of the debate in this House it was mentioned that life members should be included in the electorate free of charge. The Minister has now done that. Basically, this is a technicality because it would appear this was overlooked when the Bill was first drafted.

Since the Bill was debated in this House prior to the recess, developments have indicated serious flaws in it and it is only right and proper we should mention this during the course of the debate on this amendment which deals with elections and other aspects.

Mr. Wilson

We can deal only with the amendment.

Mr. G. O'Sullivan

I ask the Minister to postpone the proposed elections to the co-operatives, as envisaged in the Bill in order to give people the opportunity to encourage members to become involved. The new season will be starting soon and time is running out for people to become involved. A more serious aspect, and it again hinges on the elections to the co-operatives, is that its constitutinality is being questioned at present and I must put on record that there is serious doubt about the constitutionality of the Bill.

An Ceann Comhairle

I am sorry to interrupt the Deputy but he is obviously straying very far from the amendment before the House. I should remind the House that the amendment replaces section 14 (1) of the Bill as passed by this House. The new subsection proposed to be inserted slightly rephrases the original subsection and includes a new provision relating to the entitlement to vote of former life members of the Inland Fisheries Trust Incorporated. We cannot have a rehash of the principles of the Bill all over again. We are at present involved in considering a Seanad amendment under Standing Orders 137 and 138. These Standing Orders limit our discussion to the amendment before us and its acceptance with or without amendment, or indeed rejection, if the House so thinks fit.

Only amendments that are strictly relevant or consequential upon the amendment can be considered. Accordingly, any mechanism of recommittal or extension of the debate is not appropriate at this time. Furthermore, the suggestion of a recommittal motion may only be made prior to the order for Fifth Stage which in this instance has long since passed. The Fifth Stage has long since passed. I would ask Members to confine their remarks to the amendment before us. We cannot have a reopening of the various aspects of the Bill or indeed its constitutionality.

Mr. G. O'Sullivan

Certainly, a Cheann Comhairle, I bow to your ruling on this issue. However, I would not be doing my duty as a public representative if I did not put on the record of the House the aspects of the Bill that we opposed from the start in 1987.

An Ceann Comhairle

I now call Deputy Gilmore.

Mr. Dukes

On a point of order, Sir, if I may interrupt Deputy Gilmore for the moment, you have indicated, Sir, what the procedures are under Standing Orders for dealing with this and you have said we are limited to a discussion of the acceptance with or without amendment of the amendment and the section as amended by the Seanad or its rejection. Is it not the case, Sir, that in doing that we are entitled to look at the section that is being amended and to look at the meaning and the substance of the section that is being amended? If Members of the House have doubts about the propriety or suitability of the section it is proposed to amend we are entitled to express those doubts.

An Ceann Comhairle

That is so but we have no amendment before us at present.

Mr. Dukes

I am sorry, Sir, we have an amendment before us.

An Ceann Comhairle

We have no amendment to the amendment.

Mr. Dukes

No, but we have an amendment to the section, Sir.

An Ceann Comhairle

We are dealing with an amendment to the section only.

Mr. Dukes

Yes, Sir, and we are then in a position to speak about our doubts about the amendment to the section and the section itself.

Mr. Gilmore

As the Minister for the Marine rightly states, the specific issue of the granting of voting rights in elections to the regional fisheries boards to former life members of the Inland Fisheries Trust was raised by me during the course of Committee Stage. I think it is proper that the former life members of the Inland Fisheries Trust should be entitled to vote in elections to the regional fisheries boards. However, the amendment from the Seanad gives rise to two questions. The first aspect arises from the presentation again of section 14 as amended by the Seanad to this House and the second aspect arises from the timing of the presentation of this amendment to us. Both of these aspects need to be considered by the Minister when he is replying and before the Bill goes to the President for signature.

Essentially, section 14 is about elections to regional fisheries boards. These elections, as I understand it, are due to be held in December of this year. Normally, the Minister would make the necessary statutory instrument for the holding of these elections before the end of October. The problem that arises now is that section 14, which we are dealing with at present, defines the electorate for the elections to the regional fisheries boards. Given the paperwork that will necessarily have to be undertaken to get registers, nominations and ballot papers ready for any such election, it seems unlikely that the elections to the regional fisheries boards can proceed when they are due at the end of December. In any event, the fisheries co-operatives to be established under this Bill are not due to be formally set up until 1 January 1992, by which time the elections for the regional fisheries boards will have taken place if they are held when they are due to be held. At that stage the members of the co-operatives and the former life members of the Inland Fisheries Trust, with whom we are immediately concerned, will have been prevented from voting.

That point leads to the second issue——

An Ceann Comhairle

I hope that the Deputy will not stray too far from the amendment.

Mr. Gilmore

I am not straying at all. I am sticking strictly to the question of holding the regional fisheries boards elections and the definition of the electorate for those elections, which is what this amendment is about.

The second issue it gives rise to, concerns the constitutionality of the Bill. During the earlier Dáil debate on the Bill, and I am not going to be repetitive——

An Ceann Comhairle

We have already——

Mr. Gilmore

No, I am not going to. I am sticking strictly to the amendment.

An Ceann Comhairle

I have restricted other Deputies in this regard.

Mr. Gilmore

I appreciate that, and I am staying strictly with the amendment. If you bear with me, you will see the relevance of what I am saying and that I am sticking with the definition of the electorate, which is what the amendment is about.

As I said, during the earlier debate I did warn that some sections of the Bill may be unconstitutional. I have now been supported in that view by a legal opinion obtained by the National Anglers' Representative Association which has been forwarded to me and, I presume, to other Members of the House. That opinion clearly states that the Bill will transform fishing, which has been a perfectly innocent and legal activity heretofore, into a criminal act subject to penalties unless the angler complies with the decision of the so-called co-operative society, of which he or she may or may not be a member. I raise this issue because if the amendment before the House now had been accepted by the Minister when I proposed it on Committee Stage — and the Minister would need to address this matter——

Mr. Wilson

The Deputy did not table it.

Mr. Gilmore

No, but I put it to the Minister very strongly that this should be included in the Bill. There were several occasions on Committee and Report Stages when the amendment could have been accepted by the Minister, and if it had, Deputies would not be back in he House now, on the eve of holding elections to regional fisheries boards, to consider the major questions of whether those elections can proceed and, if they do, whether the elections will be properly held in that a substantial section of the electorate, namely, the members of the co-operatives and the former life members of the Inland Fisheries Trust, may be prevented from voting. I should like the Minister to give consideration to the two aspects on which I have spoken, namely, the holding of elections and the constitutionality of the Bill.

Mr. Garland

I should first like to thank the Minister for including former life members of the Inland Fisheries Trust as eligible voters. Indeed, I declare an interest in that I am a life member of the Inland Fisheries Trust.

Mr. Wilson

Welcome to the democratic process.

Mr. Garland

Thank you, Minister. I should like to basically agree with what has been said by other Deputies, and I put on record my grave doubts about the constitutionality of the Bill, particularly in regard to sections 9 and 13.

Mr. Dukes

Surely all Deputies would agree that former life members of the Inland Fisheries Trust should be facilitated in this way, although I am bound to say that the concept of a former life member is one that leaves me a little puzzled. However, we all understand what the Minister has in mind.

Mr. Gilmore

They will be voting in the Dáil elections next.

Mr. Dukes

Only for your party, Deputy Gilmore.

The House is now considering the election of members to the fisheries boards, which, of course, have statutory functions under previous legislation and functions given to them under this Bill. Until now they have operated on a basis that has been uncontested legally, that is, we have all agreed with the functions they have been given up to and including the time the Bill came before us. I must point out that several of my Opposition colleagues and myself have doubts about the functions that are being given to the fisheries boards now. As I said during the Second Stage debate, it seems that in some respects they are becoming instruments with which to wreak the Minister's will on the co-operative societies.

The question concerning co-operative societies is much more difficult. It seems that fisheries boards, which are now composed to some degree of members elected by the societies, could become tainted with the suspicion of unconstitutionality if a part of the process that elects their members is tainted with that suspicion. It seems that the status of the so-called co-operative societies, as provided for in the Bill — because I do not believe for a moment that they are co-operative societies — is suspect.

I do not intend to go into the details of that matter because I am very much aware of the restrictions on this debate but, basically, the co-operative societies will be called "co-operative" because the Minister tells people they must co-operate on specific terms or else they will have no status. I cannot imagine that being the proper status for a co-operative society.

The societies are being given functions in areas in which they seem to have no title to exercise functions. They are being given functions to restrict the activities of individuals in areas in which they have no title to restrict those activities because they are not the possessors of any of the things they claim to be giving out or allowing people to do. Therefore, the coopeative societies seem to have a very doubtful status. They seem — a little like the Fianna Fáil Party — to be only slightly constitutional, and thus any election of fisheries boards on that basis would in itself be tainted with unconstitutionality.

For that reason, this amendment — taking it all together and without the slightest disrespect or ill will intended towards former life members — should be rejected.

Mr. Wilson

I wish to take up points made by Members of the House.

First, in relation to the question of constitutionality, I had the Bill at all Stages examined by the Attorney General, a distinguished lawyer in his own right and now a judge in the European Court. He had no doubt whatsoever about the Bill's constitutionality. Consequently, I set my mind at rest in relation to the aspect of constitutionality.

Deputy Barnes and Deputy O'Sullivan raised a point in relation to constitutionality. The postponement until now of the consideration of this amendment from the Seanad occurred because Deputy O'Sullivan in particular and the Opposition in general — although I think one could exclude Deputy Garland — refused to take this simple amendment before the summer recess. For several days I appealed to the Whip, hoping to have made available to me the few minutes necessary to put the finishing touches to the Bill. That did not happen. I regarded that as nihilism, negativism; an obstructionist tactic for its own sake.

Mr. G. O'Sullivan

On a point of order, I wish to state that there were very good reasons that the amendment was not taken before the recess, and they are borne out this morning.

Mr. Wilson

If Deputy O'Sullivan is setting himself up as a constitutional expert——

Mr. G. O'Sullivan

No, I am not; far from it.

Mr. Wilson

——then perhaps I would accept his thesis, otherwise I do not.

In my few general remarks I shall cover the point made by Deputy Gilmore, who also raised the question of constitutionality. I paid particular attention to the points made in the House when the Bill was passing all Stages. It was for that reason that I recorded Deputies Gilmore and Garland being in favour of this amendment. But, due to pressures of work and so on, perhaps it would have been better had I tabled the amendment seeing that Deputy Gilmore did not do so——

Mr. Gilmore

The Minister is the Minister.

Mr. Wilson

——despite the fact that he indicated he was fully committed to it. Therefore, he was somewhat remiss in his duty as a public representative in not tabling the amendment at that time.

Mr. Gilmore

Would the Minister come on.

Mr. Wilson

Deputy Garland raised the constitutional position to which I have adequately replied.

Mr. Gilmore

If the Minister wants me to do the job for him I will.

Mr. Wilson

I fail to understand what Deputy Dukes means by former life members; he made some play out of words there. There is now no trust so that people who were formerly members of the Inland Fisheries Trust are no longer members because the trust no longer exists. The word "former" is quite a simple English word. For example, Deputy Dukes was a former leader of his party, a good one, who supported a good Government, a good party in Government, and gained four seats for his party.

(Interuptions.)

Mr. Wilson

I beg the Houses' pardon — five. Former leaders have proved to be good for their parties.

Mr. McCormack

That party will soon have another one.

Mr. Wilson

If that kind of support were available now Fine Gael might gain a few more seats at the next general election, even aspire to the status of the Fianna Fáil Party in this House.

Mr. McCormack

There will soon be a former leader over there.

Mr. Wilson

Please, my ambitions are strictly limited.

While I am pleased that the Fisheries (Amendment) Bill, 1990, has passed all Stages in the Dáil and Seanad I am disappointed to have to say that the system of fisheries co-operative societies provided for in the Bill would have been established by now but for a gratuitous refusal by Opposition parties to take a simple Seanad amendment before the summer recess. The trout angling season for 1991 is over. Consequently, the potential for selling share certificates for the current year is very limited. Such a position means that, with the regional board elections due in December 1991 — as Deputy Gilmore pointed out — the electorate, for the purpose of electing a management committee, voting on the share certificate requirement and electing representatives to the regional fisheries boards, will be very limited. In this regard I have been approached by all the fisheries interests — and now by the Deputy concerned — seeking the postponement of the elections to the regional boards. This implies the postponement of the elections and ballots of the co-operatives for one year to allow adequate time for co-operatives to be properly established and give anglers every possible opportunity to purchase share certificates.

Having considered the many representations made to me I am pointing out the difficulties which would exist if the elections were to go ahead in December 1991. I have reluctantly come to the conclusion that, in the interests of having successful and effective elections/ballots to co-operatives, it will be necessary to postpone the regional board elections for one year. That does not mean we are postponing the setting up of the co-operatives; they will be on schedule.

It is my intention to lay a draft order postponing the board elections before both Houses of the Oireachtas. Such an order shall not be made until a resolution approving the draft order has been passed by each House in accordance with section 15 of the Fisheries Act, 1980. I am pleased with the interest, even the enthusiasm as shown in correspondence, with which the proposals have been received. I am appealing to the spokespersons in this House, in the social and economic interests of the country, to support wholeheartedly this new, refreshing approach to development.

I commend the amendment to the House.

An Ceann Comhairle

Does the House agree with the Seanad in amendment No. 1?

Mrs. Taylor-Quinn

It is interesting to note that the amendment deals in particular with the position of former life members of the Inland Fisheries Trust because the Minister has not clarified to any great extent exactly what is their position rather than their entitlement to vote at board elections. He very clearly specifies that they will not be entitled to vote in the election of committees to the co-operatives. He has not specifically clarified their position in relation to membership of those co-operatives. While it is specifically stated that they will not be able to vote in co-operative elections their membership of or involvement in co-operatives at any other level has not been clearly specified.

One must welcome the overall idea of those former life members of the Inland Fisheries Trust being afforded an opportunity of voting in fisheries boards elections. However, this amendment is indicative of something very fundamental in relation to the Bill, in particular to section 14, that is that all the flaws obtaining within and without the section and their inherent dangers may be subjected to a constitutional challenge. The Bill may be referred by the President to the Supreme Court which is, of course, entirely a matter for her.

While a portion of the amendment is welcome, overall it implies a much more fundamental difficulty in the Bill. It will be very difficult for us on this side of the House to support it.

Mr. Gilmore

I should like to make a brief comment arising from the Minister's reply. Postponing elections is becoming a way of life for the Government. We have had already the postponement of the local elections. We do not know whether the elections to urban councils and so on will take place or what is the position in regard to them. Apparently, another election is to be postponed today.

Mrs. Taylor-Quinn

And another was postponed last year.

Mr. Gilmore

We have now the postponement of the elections to the additional regional fisheries boards. That is a very bad practice and principle to engage in or apply.

Mr. Dukes

We had the postponement of a general election last week.

Mr. Gilmore

It is wrong of the Minister to suggest that the difficulty in which he now finds himself, on the one hand trapped between his desire to establish the so-called co-operatives and, on the other, adherence to the normal date for the holding of elections to the regional fisheries board, was caused by the Opposition parties. The Minister got himself into this hole. Several times during the debate on the Bill, we on this side of the House made it clear that if the Minister simply abolished the rod licence and forgot about trying to replace it with a kind of back door method of raising money for fisheries, he would not be in this position.

An Ceann Comhairle

I must now put the amendment.

Mr. G. O'Sullivan

Arising out of the Minister's remarks that I held up the enactment of the Bill, I can only say I am glad I did so.

This document covering the regulations governing the co-operatives was received by us only last week and fishery interests had not received it. My prime reason for delaying the enactment of the Bill was because the relevant interests had not had a chance to study the regulations governing the co-operatives. I am not a lawyer but that was my reason for doing so.

Mr. Wilson

The Deputy thought that one up.

Mr. Dukes

It was the Minister who backed away from taking the amendment before the recess.

Mr. McCormack

This amendment deals with voting rights of former members of the Inland Fisheries Trust, in itself a welcome proposal. Four years after this Bill was introduced, irrespective of the desire to see an end to the famous or infamous rod licence issue, as legislators, we will be responsible for whatever type of Bill becomes law. The Minister, the people with whom he had so much discussion and so on, in the end will not be responsible. Rather it will be the legislators who will be held responsible. Irrespective of my great desire to see an end to the rod licence issue we are aware that this legislation is a complete whitewash, for political reasons, to abolish the rod licence rather than the Minister having abolished it altogether and begun afresh with something else.

As a Member I am very reluctant to be recorded as somebody responsible for the enactment of this legislation. I take the Minister's word that he sought the advice of the Attorney General and that, according to the Attorney General, the Bill is not unconstitutional. I am in no position to argue with that. I presume the Cabinet collectively studied the advice of the Attorney General and were satisfied.

I am not at all satisfied that we, the Members of this House, should be responsible for writing into legislation something over which there is a doubt. The abolition of the licence comes after four years of debate and we will be held responsible for whatever new legislation is introduced. We must place on record our doubts about the legality of the Bill. It is a complete whitewash and farce for political reasons, although of course we will be happy if it gets rid of the rod licence.

Mrs. Barnes

Without wishing to delay unduly this long saga, I should like to respond briefly to some of the Minister's remarks. We on this side of the House must reject any suggestion of our being obstructionist or that we have been deliberately delaying the passage of this Bill. We almost begged the Minister for the guidelines again and again because we wished to work constructively and productively on the Bill. The doubts which we have about the efficacy of the Bill are shared by outside interests, the people who will have to live with it and administer it. If there is a question as to the constitutionality of the Bill, we must explore that possibility. We engaged in principled opposition because of our doubts as to the constitutionality of the co-operatives.

Fine Gael oppose the amendment. In doing so we are symbolically opposing the Bill on the grounds which we have explained fully during its passage through both Houses.

Mr. Dukes

I do not wish to accuse the Minister of being less than careful in his approach to the Bill and I am prepared to accept that the Minister and the then Attorney General, now a Judge of the Court of Justice of the EC, went through it in some detail to satisfy themselves as to its constitutionality. I should like to remind the Minister, lest he become too comfortable in his skin about it, that the then Minister for Agriculture and the then Attorney General in 1966 apparently were satisfied as to the constitutionality of the provisions of the Marts Bill of that year which was subsequently struck down by the courts on the grounds that the powers it gave to the Minister were too arbitrary. This Bill gives arbitrary powers to the Minister to transfer in turn arbitrary powers to these co-operatives. It is very likely to be suspect and the Minister should be a little less comfortable than he is.

Question put and declared carried.