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Dáil Éireann debate -
Wednesday, 23 May 2018

Vol. 969 No. 5

European Union (Common Fisheries Policy) (Point System) Regulations 2018: Motion [Private Members]

I move:

That Dáil Éireann resolves that the European Union (Common Fisheries Policy) (Point System) Regulations 2018 (S.I. No. 89 of 2018) be and are hereby annulled.

It might be necessary to reaffirm my party's position for the Minister because the perception is being put about that we have a different agenda. Our agenda is that we do not oppose the introduction of the penalty points system, provided the system is fair and balanced. That is not the position as it was in the 2014, the 2016 or the 2018 statutory instrument.

The system that is being introduced must protect the rights of the individuals and respect and incorporate the previous judgments of the court. I will deal with those later if I have time.

This is the Government's third attempt. Previous attempts have failed. I will not necessarily refer to the Supreme Court unless I do so in my reply later on. Time has been wasted. We are told that the clock has almost stopped and that we will have difficulties with Europe. What has been happening since 2014? While the Minister might say there has been consultation and engagement, there has been little or no consultation or engagement. Indeed, we have always been available to meet and have raised this by way of oral and written questions and correspondence between the Minister and I. We are here today because there has been no engagement with me or very little engagement with the sector except in the margins of meetings held in the past.

I will zone in on six fundamental points. Section 5 refers to the determination panel while section 11 refers to the appeals officer. The statutory instrument states that the determination panel and the appeals officer if such is the case would determine on the balance of probabilities. We do not accept this principle of a lesser burden of proof. It is grossly unfair to the individual to lower the burden of proof. We will be proposing a statutory instrument we have prepared under which, in both instances, the case must be proven by the State beyond a reasonable doubt in line with common law principles. Anything less is not in keeping with our common law system. We speak about an administrative system as opposed to the judicial system to which we are accustomed.

Fishermen and fishing vessel owners should have the right to appeal to the High Court after this is dealt with by the determination panel and the appeals officer. The current position open to them under the statutory instrument is grossly inadequate. Basically, appeals can only be made on a point of law as per the Government or Minister's statutory instrument. A full right of appeal must be available to the individual. This is the most basic point of our common law in line with the UK and Malta. We talk about an administrative system as opposed to a judicial system to which we are accustomed. The current process, as outlined in the statutory instrument, is inadequate in respect of the rights of the individuals.

Another substantial point concerns the role of the Sea-Fisheries Protection Authority, SFPA, as outlined in the statutory instrument. It overlaps on different occasions between a detection function, which is the authority's statutory role, and one where it adjudicates, which is not its role. We are most concerned that this statutory instrument, as presented, does not put clear water between defining the independence of the determination panel and the appeals office beyond reasonable doubt. To put it in simple language, the proposed structure under this statutory instrument would be similar to An Garda Síochána detecting an infringement, being allowed to select the judges to adjudicate on the case and finally handing down the eventual judgment. These are three parts that should and must remain independent but are clearly not. The SFPA has three roles and a domineering role in the process directly and indirectly. I must admit that in the Minister's correspondence to me on 17 May, he referred to the administrative role of the SFPA but upon examining SI No. 89/2018, the role defined by this legislation for the SFPA is far more than administrative. I refer the Minister to section 5(10)(a), section 5(10)(b)(i) and section 5(10)(b)(ii) under which the SFPA has the authority to remove a member of the determination panel from office. This is hardly an administrative function by any stretch of the imagination.

I will now refer to the issue of penalty points. The Department eventually admitted that we have serious issues surrounding the multiplication of penalty points when sales of tonnage occur in more than one part. If someone decides to sell their vessel or is decommissioning it, the vessel has a capacity of 100 tonnes and the owner has three penalty points, if one breaks down selling the tonnage of 20 tonnes each to five different individuals, every one of those individuals carries those three penalty points or whatever number of penalty points are attached to it. This multiplier effect is still there despite what the Minister has said. Points can only be applied to capacity once and there should be no multiplier within the EU directive. Penalty points should be deleted when the case is taken to the High Court and is successful. I reference the point I made earlier whereby an individual must have the right to appeal to the High Court.

The timescales outlined in the statutory instrument are completely unrealistic in terms of fishermen's work schedules. We must realise that fishermen are at sea. They could be in the Porcupine Bank, off the north west of Scotland or west of four degrees east, where, fortunately, until now, they could fish mackerel. Unfortunately, we do not have the opportunity to debate Brexit. They could be there but how many days are they given? They are given ten days to appeal to the determination panel for an oral hearing. This does not make sense. The period of ten days allowed for making written submissions to the Department is not acceptable. These timeframes are completely unrealistic in the context of the lifestyles of our fishermen at sea. We are proposing that both of these timescales be extended to 30 days.

Under section 12(6), someone only gets five days to provide additional information. This should be changed to 20 days. Many fishermen are at sea during fishing season as opposed to doing paperwork in offices. We are of the belief that when requested by an individual, an oral hearing should be granted to them.

This matter cannot be forced on fishermen or the fishing sector. I am not here representing the large vessels, as has been said by Government and Government representatives. This pertains to all vessels, small and large, if there is an infringement. To peddle the story that we are only interested in the larger boats is very unfair. The Government has circumvented me and talked to others about it. The Chief Whip, Deputy McHugh, is from Donegal. He is a Deputy when he is in Donegal and Chief Whip when he is in Donegal. Those of us in Donegal are telling him that we cannot understand why the Minister is doing this. It does not make sense. It is a case of speaking with forked tongues but that is nothing new for the Minister of State. I am disappointed he is not here today in his capacity as a Deputy from Donegal to defend the rights of these individuals but, of course, that is the way some of these people operate. Worse still, blaming officials in the Department of Agriculture, Food and the Marine for this, and the Government is not really that anxious to do it, is wrong. If we are really serious about something, the Minister carries the can. If we support the Government, we will support it and not speak with forked tongues.

However much they might know about fisheries, a spokesman for the Government is reported to have said in a newspaper today that we did not engage. We have engaged and we have consulted. We have a statutory instrument ready to hand over and circulate that I believe will accord with the Supreme Court ruling. I have worked closely with all of these in respect of this. We have that draft statutory instrument ready. When I look at the Supreme Court ruling, and the Minister might refer to paragraphs 47, 51 and 52 of the Supreme Court ruling when he responds, it shows very clearly that the last statutory instrument did not comply and I am quite satisfied that this one will not comply either. I look forward to hearing from the Minister but I can tell him that he has a party on this side of the House that fully supports the principle of this but it must be fair, equitable and balanced. We are ready to engage with the Minister after this statutory instrument is rescinded.

I commend Deputy Gallagher's work on this issue. I know he has been liaising consistently with officials in the Department of Agriculture, Food and the Marine and the Minister to try to find a more satisfactory outcome that meets the needs of all concerned. We need to take on board the needs of the fishing sector. We need to avoid the possibility of it being struck down in the courts again. The Department's track record in introducing a penalty-points regime has been poor. Given that on two occasions attempted statutory instruments were struck down following appeals to the Supreme Court reflects very poorly on the management of the issue heretofore.

As Deputy Gallagher outlined, we recognise the need to introduce a penalty-points system but it needs to be fair and proportionate. Too often the fishing sector has been in adversarial mode with the Department of Agriculture, Food and the Marine and the Minister, which must change. We need to have proper consultation and engagement, involving, if possible, a partnership approach with the stakeholders involved. Deputy Gallagher has been very much to the fore in trying to achieve an outcome that addresses the concerns while complying with the regulations.

The key points that remain to be addressed relate to the burden of proof. The current approach in the statutory instrument deals with the balance of probability rather than having to prove beyond doubt, which is normally the case where a criminal sanction is being pursued. The role of the SFPA permeates the statutory instrument at all stages, which was the basis on which the Supreme Court struck down the previous statutory instruments.

The multiplication of points and tonnage is logical. If five penalty points are associated with a certain level of tonnage and that tonnage is sold in three lots, the full five points should apply to each of the three lots, rather than being applied proportionately with the level of tonnage involved.

We also need to address the issue of the timeline involved in appeals and the right to an oral hearing. It is time for the Minister to engage further with Opposition parties and Deputy Gallagher, as fisheries spokesperson for our party, to try to find an outcome that will be acceptable to all while meeting the needs and obligations of the State. In order to do that, the Minister should withdraw this statutory instrument and take on board the concerns expressed, make the amendments suggested by Fianna Fáil and issue a statutory instrument that better meets the needs of the sector while ensuring we are compliant with our obligations.

I also congratulate Deputy Gallagher on introducing this motion. If we, as a Parliament, did not scrutinise this statutory instrument, the third statutory instrument in a series, we would be accused of being grossly derelict in our duties. However, when we did so, all we got were briefings from the Department that my party was endangering the country's future and would bring all sorts of fines down upon us. How much was spent on fighting cases in the Supreme Court over the previous two statutory instruments that were struck down which led us to this situation? How much time was spent trying to get to this statutory instrument, which should have been spent on engagement with Deputy Gallagher and the industry in an attempt to resolve the situation before it came to this?

We have until Tuesday for the Minister to lay out some sort of pathway to resolve this, taking into account the very fair issues outlined by Deputy Gallagher regarding the burden of proof, the rights of appeal, penalty points capacity and some sort of realistic appeals timeframe, bearing in mind the people we are dealing with, the pressure on their time and the fact that this is not a desk job. Being a fisherman is the furthest from a desk job imaginable. Their ability to respond to appeals or to charges needs to be factored in.

Some reports have indicated that the Attorney General, who is quite in the news at the moment, expressed some concerns about this new penalty-points regime at the end of March. Given that he has already referred to one item of legislation going through this House as a "dog's dinner", I am not quite sure what term he would use for this. Maybe there should be some sort of liaison with his concerns brought to the Opposition's attention so that we could all find a collective arrangement to deal with those concerns.

While it is good that the Minister, Deputy Creed, is taking responsibility for marine issues and is bringing them to the Cabinet table, he needs backup. He has justifiably spent a huge amount of time travelling abroad establishing new markets for beef and fish. However, issues such as this are being left to the last minute in this kind of manner. Consideration should be given to having a Minister of State with responsibility for the marine, as Deputy Gallagher had some time ago, in order that these issues do not arise at the last minute.

Many of our smaller fishing communities feel completely alienated from the work of this House and the European Union. They feel they have paid the price of Ireland's membership of the European Union since we acceded to the European Economic Community in 1973. We need to use our collective imagination as representatives, and as policymakers and use the new opportunities that are there in terms of Brexit but also in terms of other issues, such as our response to climate change and tourism, to respond to that alienation and to tell our small fishing communities that they have a viable future and that we respect their right to play a part in this Republic. That sense of alienation is getting deeper. Many of these communities are dying on their feet. The way this issue has been handled is adding to the sense that marine issues are not a priority, not just for the Government but for the central government system full stop. If we deal with this collectively as an Oireachtas and deal with it in a progressive way working together, we can start addressing these issues and lay some sort of pathway to addressing that alienation.

I thank Deputy Gallagher and the other Deputies concerned for providing me with the opportunity to update the House on certain matters relating to the European Union (Common Fisheries Policy) (Point System) Regulations 2018, SI 89 of 2018.

Nine years ago, following a European Court of Auditors review of the enforcement of fisheries law, it was agreed by Ministers at EU level that a minority of vessels were not respecting the rules and were, through reckless overfishing, endangering the long-term sustainability of fish stocks on which all fishermen rely. After much debate, the 2009 EU control regulation was agreed by the Council of Ministers. The deadline for its introduction in member states was 1 January 2012, more than six years ago.

The control regulation provided for a points system for serious infringements targeted primarily at the licence and therefore the licenceholder. The primary purpose was to try to ensure a level playing field for those fishermen who were respecting the rules. The new EU points system is designed to complement and not replace national sanctions and ensure a level playing field across the EU.

This regulation requires effective and dissuasive sanctions complemented by a points system for serious infringements. Serious infringements are activities that contribute to overfishing and depletion of fish stocks. They include landing illegal "black" fish, not accurately declaring what was caught, falsification of records, concealing, tampering with or disposal of evidence and obstructing officials carrying out an investigation. Crucially, this EU points system is applicable to all fishing vessels that fish in the Irish 200-mile zone, both Irish and foreign.

Ireland introduced the EU points system for licenceholders in 2014, by way of secondary legislation, SI 3 of 2014. It operated for a period but, as the Deputies have pointed out, it was challenged successfully in two cases by licenceholders who had been assigned points for serious infringements.

The High Court judgments were appealed to the Supreme Court, which examined the provisions of the 2014 statutory instrument. One of the key issues was that points should only be assigned following conviction in the courts. The Supreme Court judgment of Mr. Justice O'Donnell states, "In my view it is clear that such a system of points allocation [that is, the stand-alone system] is permissible under European Regulations." The Supreme Court judgment found that it is permissible to have a stand-alone points system pursuant to a statutory instrument so as to enable timely and effective implementation of the EU points system for sea fishing boat licenceholders. The Supreme Court stated:

The possibility of points being allocated to a licence and remaining on that licence even after transfer, is likely to add to the dissuasive effect of the regime for enforcement of fishing rules. The possibility of points being allocated even before criminal proceedings are completed, or even though the outcome of the criminal proceedings may be an acquittal, is not a reason to conclude that the stand alone system is incompatible with the European Regulations since that outcome will, if anything, increase the possibility of enforcement of the rules, and in dissuading operators and licence holders from permitting breach of them. A stand alone system of points allocation certainly does not weaken enforcement. It can also be truly said to be complementary to the existing enforcement regime since it enhances enforcement and therefore compliance. In my view it is clear that such a system of points allocation is permissible under the European Regulations.

The Supreme Court found that the 2014 statutory instrument procedures were not adequate. That statutory instrument set up, in effect, a single decision-making process with the onus of disproof on the licenceholder and did not comply with fair procedures. This is addressed in the current statutory instrument we are discussing. It reverses the onus on the licenceholder contained in the 2014 statutory instrument and places the burden of proof on the control authorities. It provides for the separation of the detection of a serious infringement by the control authorities and the determination by an independent determination panel of whether, on the balance of probabilities, a serious infringement has occurred. The determination panel now comprises three independent legal professionals nominated by the Attorney General. The licenceholder may request an oral hearing of the case. The SFPA provides a purely supportive administrative role, appointing the Attorney General's nominated professionals and providing all reasonable facilities and services to the panel. These practical services do not cut across the independence of the determination panel.

This 2018 statutory instrument provides for an independent appeals officer to review the decision of the determination panel and he or she may, at his or her discretion, decide to conduct an oral hearing. The accumulation of points for persistent serious infringements of the rules of the Common Fisheries Policy will lead to the suspension of a sea-fishing boat licence for periods from two months to one year. In extreme cases, persistent serial and serious fisheries infringements could lead to the permanent withdrawal of a licence.

Deputies will be aware that, on 17 May 2018, the European Commission issued a letter of formal notice against Ireland for non-compliance with the required EU points system for licence holders of sea-fishing boats and a separate system for skippers of vessels. It has given Ireland two months to submit observations before deciding if it will proceed to pursue the infringement with the European Court.

There are also serious financial implications with regard to the EU co-funding of Ireland’s EMFF operational programme. The EU is committed to contributing €37.2 million towards the €44.5 million cost of EMFF control investments. This EU contribution represents 83.6% of these costs. The Commission is withholding payment of these moneys and is moving to formally suspend payment. To date, a €2.7 million claim has been withheld and a further €4 million claim is about to be suspended. Ultimately, Ireland will lose the entire €37 million unless we fully comply with these legal requirements. This is the stark reality of what may happen should this House vote to annul SI 89 of 2018.

The points system is necessary as an effective measure against the minority - foreign or Irish - who break the rules. It is necessary to protect the vast majority of our law-abiding industry and preserve the fish stocks for all fishermen and for future generations. That is a good enough reason to support this statutory instrument; the danger of jeopardising almost €40 million in EU funding by playing to the gallery is another. The majority of fishermen in this country want to see points applied to those who commit serious infringements, jeopardising the future for everyone. A vote to annul this statutory instrument would be a vote for that small minority of serious offenders who want to act with impunity. I urge the House to protect the future of our fishing industry and to reject the motion.

I wish to share time with Deputy Pearse Doherty.

I move amendment No. 1:

To insert the following after “hereby annulled”:

“and calls on the Government to introduce regulations that will provide redress to the courts in circumstances where the complainant is not satisfied with a sanction made under the regulations, in order to give effect to the ruling of the Supreme Court of Ireland on this matter.”

I thank Deputy Gallagher for putting forward the motion. The issue, which has been around for some time, concerns penalty points for fishermen. It is important to state that it is appropriate that penalty points would be applied to fishermen who are in breach of the rules. Everyone agrees with that and we need to see it happen. We want to see a statutory instrument which can bring that into effect in a way that is measured and that works for everyone involved in the industry, including fishermen.

The document which has been produced contains many parts that we take issue with. In the first few pages, one of the first things we come across is the issue of proof and the fact that this will be based on the "balance of probabilities". This is one of the fundamental issues for most people. We deal all the time with individuals who are in some way slightly on the wrong side of regulations. Many fear that, at times, they could be treated badly if they have a past record and may have breached a rule such that each time they start over, it could be held against them and they might not be treated as fairly as if it was their first time to be outside a regulation. Many people would have an issue with that and it is where the problem with the balance of probability arises. The balance of probability is a very loose way of looking at this and it needs to be re-examined.

There is also the question of the independence of the determination panel because it is so closely linked to the SFPA which is a problem for some. Ultimately, the decision as to whether there is a serious breach is going to be in the report that comes from the SFPA and that report comes to the determination panel, which is made up of three members who are appointed by the SFPA. There are questions to be asked and it is only fair that the Minister uses this opportunity to clarify the situation.

Another issue that alarms me concerns the oral hearings. The document, on page 6, states, "The Determination Panel, having regard to the interest of justice, may decide at its discretion, whether or not to conduct an oral hearing for the purposes of the determination." Many of us deal with the Department of Social Protection, the Department of Agriculture, Food and the Marine and sections where there are meetings and a requirement to go before determination panels to sort out issues. In all cases, there is an automatic right to have an oral hearing and the fishermen can go in to make their case. It would be more than appropriate that this is looked at again to ensure they can make their case and that the oral hearing is acceded to in all cases.

Deputy Gallagher referred to the timeframe of ten working days. To make a request for a hearing within ten days is too tight a timeframe and I believe it needs to be broadened out considerably in the interests of fair play for everybody involved.

Other issues that jump straight out include the period relating to appeals. The period allowed to make an appeal under the regulation, at 20 working days, is too short. There needs to be a recognition that we are dealing with fishermen who are out at sea much of the time and we need to find a way of dealing with these issues.

There is also the question of criminal proceedings and what role the courts might have, an issue to which we refer directly in our amendment. There is a feeling, from the fisherman's point of view, that if all else fails, they can go to the court, have a proper hearing and put their case, particularly if they cannot put it anywhere else. If they are refused an oral hearing, however, and the determination panel and the appeals office find against them, where have they to go? They have nowhere to go.

That is the issue. They need to know that in the interests of fair play, they can go to court, put their case and have it heard. At least they then will feel there is a sense of fair play. At present, the fishermen to whom I have spoken, and they are all around the country, are of the same view, that is, that the odds are stacked against them. If we wanted to do this fairly we would make sure to represent the fisherman first. We understand there is an obligation under EU regulations but the first port of call is to ensure the fisherman is looked after in all of these cases.

The only place we see anything about this is where it states that criminal proceedings are not valid. It states "points assigned to a holder of an Irish licence remain assigned regardless of any criminal proceedings pending, or the outcome of any such proceedings, in respect of the serious infringement concerned." This is a draconian way of dealing with an industry that is on its knees and needs help. This is an opportunity for the Minister to rectify that by withdrawing the statutory instrument and it is in the interests of fair play that he find a solution that works for everyone.

The statutory instrument also states that an appeal may be made to the appeals office not later than 20 working days from the day of notification of the proposal by the Sea-Fisheries Protection Authority to assign the points to the fisherman. Again, 20 days is too short a timeframe in which to get it done and this provision needs to be looked at again. It states the appeals officer may decide, at his or her discretion, whether to conduct an oral hearing. Again, there needs to be a sense of fair play here. All people are looking for is the sense that common justice will apply. It goes on to state:

The Appeals Officer shall confirm that the points shall be assigned to the holder of the licence where on the balance of probabilities, he or she considers that the alleged serious infringement in respect of which it is proposed to assign points—

(a) did occur,

and occurred according to the regulations.

The fishers who are doing their best, who want to and are playing by the rules fear that if they make a mistake, they will be dragged over the coals and made an example of. That is not fair. I do not know who wrote the statutory instruments or where they came from but it seems what we have now is a copy-and-paste job, with a few little changes, of what was rejected by the Supreme Court. That is the issue. We need to come up with something that looks after the people out at sea who are trying to get their livelihood from this industry, which is under pressure so much of the time.

The statutory instrument also states a person may appeal to the High Court on a point of law only. If it is not only on a point of law it is only on the process. People need to be able to go to court on the overall problem they have encountered and to have their full case heard and they need to know they will get fair play. If that is not going to happen, the statutory instrument is not up to what we need.

Ba mhaith liom mo bhuíochas a chur in iúl don Teachta Gallagher as an rún seo a chur os comhair an Tí tráthnóna agus tá áthas orm go bhfuil deis agam píosa beag caint a dhéanamh ar shon mo pháirtí faoin rún seo a bhaineann leis an gcóras pointí pionóis ar iascaireachta a chur i bhfeidhm ag an Rialtas. Ní seo an céad uair atá iarraithe ag an Rialtas é seo a dhéanamh ach mar atá a fhios againn agus mar atá sé ráite ag an Teachta Martin Kenny agus na cainteoirí roimhe seo, bhí ar na cúirte bogadh isteach an uair deireanach agus a rá nach raibh an rud a bhí á dhéanamh ag an Rialtas bunreachtúil. Fad agus a táimid ag plé cúrsaí bunreachta, le tamaill anuas, léiríonn sé an tuiscint atá taobh istigh den Roinn agus an Rialtas ó thaobh go bhfuil an Rialtas ag cur leasú dá reachtaíocht chun tosaigh ar an dara lámh tríd an statutory instrument ina raibh na cúirteanna ag rá nach raibh sé dlíthiúil.

Penalty points for fishing offences have long been an issue of controversy and that has been caused in no small part by the Government and its arrogance and utter disregard for fishermen, their industry and the courts. In March 2016, I was proud to table a motion in this House on a statutory instrument signed by the then Minister, Deputy Coveney. He was attempting to impose a penalty points system at that time but it was struck out. It was the very same statutory instrument, seeking to reintroduce a points-based system, which the High Court had found to be unconstitutional as it operated under the assumption of guilt. It says a lot about the mentality of the Government and the Department, and of the way they see fishermen, that they brought forward a statutory instrument in this way and which our courts found did not meet the criteria in the Constitution. In ainneoin breith na cúirte, tá páirtí an Aire chun an reachtaíocht seo a shíniú ar aon nós. Mar sin sháraigh sé ceartaí iascairí agus na cúirteanna fosta agus bhí tús áite tugtha ar polasaí an Rialtais thar achan nith eile. Sin an fadhb mhór atá anseo, go bhfuil an tús áite sin tugtha do pholasaí an Rialtais in áit tús áite a bheith á thabhairt do iascaraí atá ag obair agus ag iarraidh a bheith i mbun a slí beatha.

Sinn Féin is not opposed to a system of penalty points for fishing offences in accordance with our obligations under European regulations but any such system must be fair and equitable. They are the key test for all of this. The system must respect the individual rights of fishermen and must not unfairly impact on their livelihoods and those of fishing crews. It must be a regime which allows for natural justice to occur and to be seen to occur and must, therefore, allow for recourse to the justice system. That is the test my party has to a system that is to be introduced or is before us, such as the one we are debating this evening. This statutory instrument, unfortunately, fails these tests and that is why it needs to be rescinded.

It is beyond comprehension that any proposed regime would not allow redress in the courts in circumstances where a complainant is not satisfied with the sanction imposed under the regulations. Deputy Martin Kenny spoke at length on the restrictions on one's ability to take a case to the High Court, such as the provision that it must be on a point of law. It is my party's view that such a provision is needed to give effect to the ruling of the Supreme Court on this matter and to deliver a system which is fair to all who are subject to it.

I am in a privileged position to represent the constituency and the people of Donegal, in which there are many fishing communities. I know only too well the challenges and the hardship that many of those involved in the fishing industry face daily. The idea that a Government would seek to introduce a penalty points system that is not only unjust but is punitive and discriminates against fishermen is not surprising, given its track record on the matter, but it is nevertheless shameful and unforgivable. Mar sin, tugann Sinn Féin ár dtacaíocht don rún seo atá os comhair an Tí inniu agus molaimid go ligfidh gach Teachta Dála don rún seo rith tríd an Teach fosta. For too long our fishing communities have been let down by successive Governments. Indeed, they have been abandoned and criminalised by the powers that be. I ask all Deputies to show that Members of this House hear their concerns, support them and support their right to pursue their livelihoods without fear or favour. That is why we need to rescind this statutory instrument.

I am glad to have the opportunity, on behalf of the Labour Party, to contribute to this debate, which centres on the implementation of SI 89 of 2018, the European Union (Common Fisheries Policy) (Point System) Regulations, which appears to supersede SI 125 of 2016 which was signed into law on 1 March 2016 by the predecessor of the current Minister. There has been a significant amount of debate on this issue and the Minister has put forward his views on putting in place a system that derives from the Common Fisheries Policy and the application of an EU regulation from eight or nine years ago.

I find it astounding that we have reached this impasse now. At the last hour we are putting in place a penalty points system that appears to be permitted under the EU regulations. The critical issue lies with the format in which it is going to be implemented in this country. There are a number of issues, but it is important to implement this. There should be a points system where people transgress, and there have to penalties to take cognisance of the nature of the transgressions.

Central to the application of any such system has to be a right of access to the courts if a person feels aggrieved by the imposition of a penalty. The Minister said we can have that on a point of law. That is his "out" in respect of the application. I did not realise this was coming up today. There is huge amount in it. I looked at the statutory instrument, which the Minister, Deputy Creed, sent to us, in the past hour. I think balance of probabilities will be hard. There will be a determination body with three members. The Minister assures us that they will be selected independently, but the SFPA will be involved in the selection and can get rid of them if it is unhappy with them.

If we are going to have a system, it will have to be robustly independent. It has to not just appear to be independent, but has to be seen to be independent. Perception becomes reality. If people feel aggrieved by that, they will rebel against it. It is very hard to see, in this context, how a quasi-judicial tribunal, which the determination body of three independent legal assessors will be, can work. These are given constitutional recognition under Article 37 of the Constitution. Normally, they work on the balance of probabilities. That is intended here but in respect of this, where reasonable doubt is intended to be the criminal standard to apply, it will be very difficult to set it up. Therefore, it would be better to give people right of access to the courts straight away.

I can see where the Minister is coming from. There is going to be a determination body, then a right of appeal and eventually time will run out. The three years will be gone because it is from the date of the detection of the offence that the penalty is applied, not the date of a successful prosecution. That is an issue. I cannot see how a tribunal can be set up in that way. It is not going to be easy. I refer to points of natural justice - nemo judex in sua causa and all of those things. Anywhere there is a criminal penalty or sanction involved, people are entitled to those protections. They are laid down constitutionally in our laws and we cannot deviate from them irrespective of whether we find that administratively simpler or whatever. We have to maintain those.

I am confused about this. This would be a quasi-judicial administrative body going to operate to a criminal standard. I concur with Deputy Gallagher's observation that all bodies contained in the statutory instrument must be robustly independent. There should be no crossover in respect of roles or inputs. There should be none of that. He made reference to the SFPA having the power to choose or remove the determination officers. No such power should be vested in the SFPA. We have to move away from that. On the time for appeals, there are 30 days for a social welfare appeal. That is for people who are arrested at home at an identifiable address. I am not an expert on fishermen - other than the boats on Lough Ennell or Owel, which is different from fishing the high seas - but some of these people are working from various addresses or working at sea and may not come back for several days or nights. The five days, therefore, would be gone.

There are a number of points that can be addressed easily by the Minister. As one of my Labour Party colleagues said, I am eager to ascertain the nature of Deputy Gallagher's rationale for rejecting this. It is historic. Statutory instruments have been subject to a virtual nod and wink policy in this House. I have spoken on this on a number of occasions and said that it is not appropriate that statutory instruments be used. I refer particularly to where significant issues of policy implementation are being addressed by a secondary legislation route. They should be subject to scrutiny by debate. It is hard to envisage putting in place an administrative framework for the imposition of a criminal sanction by virtue of a stand-alone quasi-judicial body and perhaps it would be safer to have access to the District Court secured.

Deputy Gallagher has done us a service. Forgetting the nature of what is going on here, but there are significant elements of legal implications and impositions in statutory instruments. They have been whooshed through with nods and placed in libraries and all over the place. It is a bad practice and it should not be done. They have been subject to court interventions on numerous occasions. I can see why; I know the background to this with the 2009 regulation. It facilitated the implementation of a points system. We seem to have been dilatory in getting this in place. I know about the Supreme Court judgment in December where the State was found against on a number of issues of a technical nature. It permitted the State to implement a stand-alone system. It appears to be of an administrative nature rather than separate to a prosecution through the courts and such a system could be facilitated by the statutory instrument system.

I will not argue with Mr. Justice Donal O'Donnell. He is a leading Supreme Court judge and probably one of our finest jurists. He indicated that it should operate efficiently and appropriately. The veil of constitutionally guaranteed legal protections which one has would have to envelop any system put in place. An oral hearing in respect of an appeal is an absolute prerequisite if we are to have a system. This is very important. We have it in agriculture where we are setting up a new system and debating it even now. It is very important in the interests of the wider fisheries industry also. Money will be withheld and we will have EU infringement proceedings from the Commission.

The Minister, Deputy Creed, Deputy Gallagher, the Fianna Fáil Party and any other interested parties should get together immediately and reach an amicable compromise in respect of what needs to be done. Any more delay will see Ireland subject to daily fines once the EU Commission moves to the formal infringement proceedings, as the Minister of State, Deputy McEntee, said. Once that happens, money and scarce resources will be wasted. Ireland must comply fully with its obligations under EU law. We have had proceedings in 2014, 2016 and now in 2018. Let us put our heads together and resolve this once and for all. I support that move.

I call Deputy Thomas Pringle, who is sharing his time.

I am sharing time with Deputy Mick Wallace.

I thank Deputy Pat The Cope Gallagher for bringing forward this motion, which is vitally important. The motion calls for the rescinding of Sl 89 of 2018, which sets up a penalty points system within the fishing industry. The previous scheme had been challenged through the courts and found to be wanting and this is the replacement. I wonder why we cannot get this right, and it points to very serious problems within the Minister's Department.

One of the things I find very disingenuous about the Government's reaction to this motion is the pretence that things are urgent and time is of the essence in setting up the penalty points system. The Government has had years to do this properly. In fact, the Minister, in his response to a question from me about this last November, stated that it has been going on since 2009. We are eight years down the road now and we are being told that this is a matter of urgency. A couple of hundred million euro is dependent on it being done now and we cannot rescind the statutory instrument. I think Fianna Fáil was in Government in 2009 and failed to deal with this also.

Granted it was cancelled by the courts and perhaps that could not have been foreseen, although I have my doubts about that. The original scheme was struck down by the courts because it did not contain fair procedures capable of being written into the system from the very start.

This always seems to happen with fishing, which is interesting. I might be wrong, but it seems to me that there is no other aspect of the Government work that relies on the courts to sort it out. Indeed, the parent Department that fisheries is under can now work without the courts at all and I wonder when that will get through to that Department. The Minister will say that is because all fishermen are confrontational but I do not believe they are any more confrontational than farmers. When this issue is sorted out, perhaps there is work for the Minister to do to figure out why the courts are such an integral part of our fishing industry.

This is the third attempt we have made to deal with the penalty point system. One wonders why it takes three attempts to deal with a system that is largely laid out in European legislation. There are many things wrong with this system. How is it that an application for an appeal is allowed up to 20 working days but an application for an oral hearing of an appeal has to be made within ten working days of that date? Surely 20 working days would not be too long or cumbersome for the State but it would make a huge difference for a skipper or boat owner. Different dates will lead to difficulties; there are five, ten and 20-day limits within the statutory obligations.

In cases of the transfer of the entitlements to fish, the points will be assigned on each part of the transfer, which is crazy. For example, if four points have been assigned to a vessel and it is then sold and the tonnage is split between a number of vessels the four points will apply to each part of the transfer. It is simply amazing, really, that the Department would allow this to happen. Surely the Department knows how vessels are sold and tonnage is split up, or indeed the Sea-Fisheries Protection Authority, SFPA knows. Yesterday the Department said that it had nothing to do with enforcement or criminal applications within the procedure. The SFPA obviously has sole responsibility, so it should know all about it. In the case of criminal proceedings, it is possible for it to be found a couple of years later that nothing happened but a boat would still have penalty points for it. It does not make any sense. The Minister has pushed this through without consulting with Members of this House or the Oireachtas committee. I have been raising this issue for a number of years at the Oireachtas Joint Committee on Agriculture, Food and the Marine, and the first I heard of it was when it was put on the agenda. The Minister has not consulted with anyone about this.

I really wonder whether the Department actually wants to make a system that works and is acceptable to everyone or whether it wants to have everything its own way. I believe that is at the root of the problem. Time is running out. That is not the problem of fishermen or the owners of vessels; it is clear that it is the responsibility of the Department. There is a matter of justice involved in this process, which is not at dispute. All anyone wants is a system that allows for a fair hearing and I do not see any proposals from the Minister that includes that.

The Minister should take the points system back to the drawing board and design a system that will work for fishing communities to ensure that we have a system that is fair to everyone. If he cannot do that without losing out on funding from the EU, the only person to blame is himself, as well as his Department.

The substance of the new statutory instrument does not give one confidence it would survive another High Court challenge with respect to the fairness of proceedings. The Minister, instead of introducing primary legislation or substantially altering the statutory instrument, has acted in haste and is using the threat of fines and withdrawal of funds from the EU as a stick after the fact to force this through. This is not to criticise the penalty points system in itself; it is a necessary system which is important to the enforcement of the Common Fisheries Policy and, critically, to restore and maintain fish stocks above levels capable of supporting maximum sustainable yield.

Things get murky at this point. The debate here is not really getting to the crux of the matter. Fish stocks are plummeting and overfishing is a reality in Ireland. Fish quotas are in place because there is a limited number of fish in our waters. We cannot increase the fish quotas until the fish stocks increase. The fish stocks cannot increase until we tackle the real issues facing fish stocks. We need effective legislation to tackle fishing operators who overfish. That means taking on major industrial polluters who warm the waters around our island and further afield. It means taking on the agricultural industry over eutrophication and water extraction on our rivers. It means shutting down all coastal salmon farms that spread sea lice and forget to report salmon escapes. It means doing something to tackle the domestic use of harmful cleaning detergents, to tackle sewage discharge and anything that contributes to global warming.

Sadly, the Government is largely responsible for much of the overfishing. During the December 2017 negotiations on total allowable catch, TAC, for commercial fish stocks, where comparative scientific advice was available, 57 TACs were set above advice, amounting to over 206,000 tonnes of excess TAC. This is continuing the trend of permitting overfishing in EU waters, with Atlantic TACs set 9% above scientific advice on average. The Irish Government secured a TAC 18% in excess of available scientific advice, impeding the transition to sustainable fisheries in the EU and endangering the future of jobs in this industry.

According to the Sea-Fisheries Protection Authority, the level of non-compliance with regulations within the Irish fishing fleet is consistently low and most of the people in the industry want to work within the law. On the other hand, the infringement rate in Ireland is so low in comparison to other EU countries - nearly ten times lower in some cases - that one wonders if Irish fishermen are the most law abiding in Europe or if they are getting a free ride. Whatever about the inadequacy of the statutory instrument, most of the infringements are for pretty straightforward offences. The most recent report from the SFPA cited 23 incidents arising from inspections that led to 42 infringements being investigated. These were mostly to do with inadequate log book record keeping. Giving the inspection officials from the SFPA the benefit of the doubt for a minute, and presuming they know what they are doing, if one gets penalty points on one's licence and one does not want to be struck out, the obvious thing to do is to obey the regulations. The Minister had secured the quotas that will ensure that there will be no livelihood in the industry in years to come due to overfishing. Why should one not keep doing Government-mandated overfishing, keep one's head down and wait for the points to expire?

A few powerful players in the industry have found a mechanism to get the penalty points system thrown out again and again, and the Department is not responding to the issue in a way that does not put the whole points system at risk, and is acting in a rushed and irresponsible under the pressure of fines and withdrawal of funding from the EU. At the same time, it is difficult for people to have much faith in the spirit of the Common Fisheries Policy regulations when the Government is securing quotas that endanger the whole industry in the long term.