Topical Issue Debate

Common Fisheries Policy

I spoke to the Minister for Agriculture, Food and the Marine, Deputy Coveney, and he explained that he could not be here to take the Topical Issue, due to the change in the Dáil schedule.

The second High Court judgment on the penalty points system, given yesterday, sets out very serious flaws in the operation of the system and how it has been implemented. It goes to the heart of how the statutory instrument that introduced the penalty point system was brought through the House. SI 3/2014 established the penalty point system and the Sea-Fisheries Protection Authority, SFPA, is the body responsible for its implementation. It was introduced in the House and passed without any debate or discussion.

The Oireachtas Joint Committee on Agriculture, Food and the Marine held a consultation only after the statutory instrument had been published. The SFPA came before the committee on 3 March 2014 to discuss how the penalty point system would operate. At the meeting, the same problem for which the High Court struck down the statutory instrument was raised. This is very significant. Deputy Michael McNamara said:

Any measure that applies EU law must be compatible with the Charter of Fundamental Rights ... anyone whose rights and freedom are violated has a right to an effective remedy - that is, a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

In yesterday's judgment, the High Court judge reiterated this point and said:

It is necessary to inform a licence holder that a panel will be convened to assess evidence of alleged infringements and whether to assign points to the licence.

This goes to the heart of the problem with the penalty points system. If it is agreed to apply points to a licence holder, there is an appeal mechanism, but the appeal takes place in secret with no representation by the person impacted by the penalty points. The High Court highlighted this as the inherent problem with it. It is very unreasonable to expect fishermen to go to this extreme, to take a case to the High Court to vindicate their rights, particularly given the inadequate scrutiny of these measures in the House and in the relevant committee. Many of the issues were flagged in the committee, but unfortunately the legislation had already been passed.

I read the transcript of the committee meeting and it seemed the SFPA was not too enamoured of the way in which the system was being established and had concerns about it. Several times during the committee hearings, I emphasised that these would have to be tested. This is a very bad way of making legislation and rules that impact on people’s ability to make a livelihood for themselves. In its evidence to the committee, the SFPA stated, “The key issue is that our job as a regulator is not the writing of the SI but the enforcement of the SI.” It went on to state:

It is the decision of the Department which wrote the SI, taking direct advice from the Attorney General's office on that specific matter. It is reasonable to question the validity of that approach. It is what is on the Statute Book. It has not been tested yet and is quite explicit.

This has very serious implications and shows that even the body charged with administrating the penalty points system had very serious concerns about it. If we had a proper, robust consultation and scrutiny system in the Oireachtas, we might have averted some of these problems and avoided forcing fishermen to go to the extreme of going to the High Court to vindicate their rights.

I thank the Deputy for his understanding about the Minister not being available. The imposition of points for the licence holder of a vessel involved in a serious infringement of the Common Fisheries Policy, CFP, is set out in Article 92 of Council Regulation (EC) No. 1224/2009 and the detailed rules for its implementation are set out in Commission Regulation (EC) No. 404/2011. These regulations place the obligation on the flag member state of the vessel to assign the points to the licence holder as a result of a serious infringement detected in that or any other member state's waters.

The European Commission has clarified, at Ireland's request, that its legal services have advised that it is the responsibility of the coastal member state to determine whether a serious infringement has been carried out by a vessel of another member state operating in its exclusive fisheries. It is also the responsibility of the coastal member state to advise the number of points to be assigned by the flag member state in respect of that serious infringement. The flag member state does not have discretion. This very welcome clarification confirms Ireland's interpretation of the EU legal framework.

The control regulations were introduced so that there is a common EU level playing field and to provide for an effective range of controls across EU waters. The intention of the EU points system is to have harmonised point sanctions for serious infringements across member states where the judicial and administrative sanctions can vary wildly between member states for the same offence. The points systems, thus, introduced an element of a level playing field for fishers.

In January 2014, SI 3 of 2014 gave effect to the requirements of Article 92 of EU Council Regulation (EC) No. 1224/2009 and Commission Implementing Regulation (EC) No. 404/2011, known as the control regulations. The statutory instrument set out a system for the assignment of points to the licence holder in an administrative system which was separate to the criminal proceedings against the master of the vessel as a result of the infringement. The points system, as required under EU law, applies to the licence holder where a serious infringement of the Common Fisheries Policy by a fishing vessel is detected.

The statutory instrument was prepared in close co-operation with the Office of the Attorney General. However, in the past two weeks the High Court has given judgment in two judicial review cases in which points were assigned based on this statutory instrument. These judgments were handed down yesterday and last Friday week. However, importantly, no order has yet been made. Both parties have been invited to make a submission to the court on the nature of the order to be made regarding the first judgment. The matter, therefore, continues to be before the court and, as such, is sub judice. It would not be appropriate to provide further comment on these cases here today.

It is necessary to deliver an effective system for the assignment of points to both licence holders and masters of fishing vessels where serious infringements are detected. This continues to be an obligation upon the State under the Common Fisheries Policy control regulations. Ireland has a pilot infringement case taken by the European Commission regarding the delay in implementing a points system for masters, which requires primary legislation and which is being prepared by my Department. It will be important that a points system is in place and is effective for both licence holders and masters, and the Attorney General's advice on the arrangements for licence holders taking account of the court judgments will inform the Minister's consideration of the way forward. As already stated, the matter is still before the courts and is sub judice, and it would be inappropriate to comment on the judgments.

I welcome the students from St. Eunan's College, Letterkenny, to the Visitors Gallery, who are here for a tour of the House. I thank the Minister of State for his response on the court cases that have taken place. Given that some of the issue is already in the public domain, it is appropriate to comment on it and address it in the House. As I outlined earlier, it is vitally important.

There have been several problems with the operation of the penalty points system since it has been implemented. Several times here and in the committee I have raised the issue of points that were issued to a Danish fishing vessel last year, and which the Danish authorities refused to allocate to the vessel when it was notified by the SFPA. This issue was raised in the committee in 2014. I asked whether the points system would come into effect in every coastal state at the same time and whether we were sure that a non-Irish vessel allocated penalty points here would receive them from the coastal state to which the vessel belonged.

Those issues have come home to roost now. They were addressed in committee at the time, when this system was being rolled out. I take on board what the Minister of State has said about this vitally important matter. When I spoke to the Minister earlier, he outlined to me that he will see what the judgment says and will amend the penalty points system, at the very least, if there is a requirement to do so. I think there will be such a requirement as it is automatic at this stage. I urge the Minister of State to make the point to the Minister that if this needs to be done, it must be the subject of proper consultation and it must be addressed by the Houses of the Oireachtas. Hearings need to be held by the committee when it is reconvened after the general election so that this matter can be scrutinised fully. These problems cannot be allowed to arise again. It is not fair and equitable for fishermen to have to take High Court cases to have their rights vindicated. This could have been got right in the first place. At this stage, it has to be got right second time around.

I will relate the Deputy's request to the Minister. I understand the Deputy and the Minister had a discussion on this matter earlier today. As the Deputy knows, the Minister is quite open to talking to people. I will certainly relate the points made by the Deputy to the Minister and the officials in the Department. Obviously, we will come back to this issue. The Minister will discuss it with the Deputy when the judgment has been received.