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.