Before I comment in detail on the Government's legislative proposals, I thank the committee for arranging the hearing and thank all others who contributed. While I was not present for all of the hearing, I watched it with one eye and tried to listen to it during the course of other meetings. I congratulate the committee. The hearings will prove most helpful to me when I take the Bill through the Houses in the coming weeks and months.
A pertinent question was asked as to why the Bill seemed to fall out of the sky this week. The heads of the Bill went to Government on 4 October last, five days after I was appointed to office and three or four weeks before I received my statutory responsibilities. It was on its way in January of this year but a number of issues arose and my officials and I took some time to go through the detail of the Bill before it went to Government last week. The Government decided that the Bill should be expedited and should come before the Houses as quickly as possible. It was expected that Second Stage would begin in the Dáil tomorrow but that will not happen. It will be a matter for the Whips to decide when it will come before the House and a matter for the committee and myself to decide when Committee Stage is taken by the committee.
The contributions by those representing the industry, the Naval Service, the European Union and the French fishermen were interesting. I will be more than pleased to have the opportunity to read the transcripts and, eventually, to read the committee report.
The Department of Communications, Marine and Natural Resources is not just about regulation, despite the perception that this is the case, particularly for its marine section. The Department also has a developmental role, which I like to highlight at all times. We are responsible for developing the industry in a sustainable fashion, whether with regard to sea fish or inland fish.
All those who contributed to the hearing and many outside this forum with an interest in and concern for the fishing industry will be aware that the industry is facing difficult times. High fuel prices are having a serious impact on the sector and it is important to bear in mind that the sector has also had to contend with progressively reducing quotas over a number of years. This reflects the reality that many important fish stocks around Ireland and elsewhere are under pressure. The fish around our coast are under pressure not just from the Irish fleet but from the fleets of neighbouring EU member states which have a right to fish in Irish waters.
With regard to high fuel prices, the industry representatives met with Commissioner Borg in July last, following which he made recommendations. He and I had a short discussion during the last Council meeting. We considered short-term and long-term issues which we will address. I gave a commitment that we would carry out a study on what needed to be done in the short-term. In the long-term, the Directorate General responsible for fish and the fisheries fund does not have sufficient resources to invest in research and development. Instead, the seventh framework which deals with science and technology should have that responsibility. Research and development should be an over-arching process in which all vessels can share to ensure they become more efficient and fuel-friendly, thus reducing their overall costs.
The scientists who deal with fisheries have detected evidence of the decline to dangerously low levels of many important fish stocks. In that respect, the species that has attracted most headlines is cod. This decline is not confined to Irish waters but to many other waters, notably in the north and the Baltic. The International Council for the Exploration of the Sea, ICES, is about to publish scientific advice for fish stocks for 2006. We expect that this will reflect the serious scientific concerns about stocks generally.
This advice will be followed next month by the Commission proposals for next year's quotas, which will come before the Council in December next. When all of these elements are available, I will be glad to discuss them further with the committee, if it so wishes, and with the industry, as is traditional, between the November and December Council meetings. This is the overall policy context against which today's hearings and other discussions must take place. The industry has shown a remarkable resilience throughout the difficult period it has undergone in recent times. Industry representatives have demonstrated a willingness to engage in constructive dialogue with the Department and the European Commission in attempting to identify the best way forward.
There is a general consensus that the greatest threat to the future viability of the sector is declining fish stocks. I encountered conflicting opinions on this issue during my time in the European Parliament and as a member of the EU fisheries committee. During that period, Ireland and the United Kingdom stated their desire to develop technical conservation measures. Their initiatives in this regard were appreciated by all members of the committee.
It is important to remember that we are all in this together and it is not a case of the Department versus the industry. We each have a responsibility as custodians to ensure there are sufficient fish stocks into the future. As a consequence of reductions in quotas, we must ensure we add value to the fish that are landed. To do so, we must ensure fisheries are managed and I am a strong supporter of this approach. Such management will not be effective if undertaken unilaterally by the Department. Rather, it must be done by way of bilateral agreements between the Department and the organisations that represent the industry.
Above all else, the downward trend must be reversed and the legislative proposals the committee is considering today must be viewed in the context of this common objective. They are intended to improve the implementation of EU fisheries conservation measures and the sustainable management of sea fisheries so as to enhance the future prospects of the industry and the coastal communities which depend on it. I am well aware that coastal regions are heavily dependent on the fishing industry where there is no alternative source of employment.
While the necessity to confront these difficulties is beyond dispute, it would be incorrect to contend that the problems facing the sea industry are overwhelming and insurmountable. Nothing could be further from the truth. I will return to this topic towards the end of my address. I emphasise the positive developments taking place and ask members to consider the backdrop. There has been some comment on opinions I allegedly expressed in the past. I never intended to criticise those who negotiated our entry into the EU or those who negotiated the Common Fisheries Policy, CFP, in 1983. These negotiations were undertaken in good faith. Those involved could not foresee the developments that took place in the Irish fishing industry in the subsequent 20 years. Had such foresight been possible, the situation may have been different. We must deal with the reality of the situation by making maximum use of the resources available to us.
One positive development was the reform of the CFP in 2002. Many hoped for a more significant transformation and that Ireland might be granted a greater percentage of the total allowable catch, TAC. For such to be achieved, however, some other country would have had to lose out and negotiations cannot be conducted on that basis. Nevertheless, progress was achieved in 2002 on stock conservation measures, with control enforcement given a much greater emphasis in the reformed CFP.
Other progress includes the EU agreement we secured for cod and hake recovery plans in Irish waters. Moreover, a €45 million decommissioning scheme for the white fish and shellfish sectors was recently announced. I look forward to the recommendations arising from the announcement last week of an important study into possible new quota management arrangements. In this context, I will be pleased to discuss with industry representatives how best we can manage other species. An obvious one is horse mackerel or scad. I look forward to discussions with the industry with a view to agreeing a management regime for scad before the end of year.
The recent launch of regional advisory councils which give Irish fishermen a voice in the shaping of future changes in the CFP is another welcome development. I am convinced that the input of the industry will be important and that this will not be a cosmetic exercise or smoke screen. I am certain their views and contributions will be taken into consideration by the Commission.
There are, therefore, a number of important developments taking place in the sector. I welcome the close consultation with industry representatives, including producers and processors. It is vitally important that there should be a two-way flow so that we work together in the best interests of the industry. Although fuel prices are historically high, some fish products, notably pelagic fish such as mackerel, are fetching good prices. It would be even better if those good prices were secured and the price of fuel was the same as it was this time last year. However, we must accept economic realities.
We are dealing with a complex and complicated sector where a variety of balances must be struck in devising the best way forward. This is true of the sea fisheries legislation being considered at today's hearings. Before dealing with the legislation, I wish to make some general observations on why it is and always has been important for the industry that there is a strong and effective fisheries control framework in place in Ireland, not only for Irish vessels but for all vessels fishing in Irish waters. Under the CFP, Ireland has a legal responsibility for fisheries enforcement in the sea around Ireland, which is ten times the size of our land mass. This area is fished extensively by many European fleets, being at one time the most prolific fishing grounds in Europe. I hope we will return to that situation in the future.
Fish stocks in Irish waters are under considerable pressure and if conservation measures and quotas are not effectively enforced, we will have further reductions within a short time. It is our own fleet that is most dependent on the security of stocks in Irish waters. If stocks are depleted through ineffective fisheries enforcement, we will be the first to see the effects of that. This would be the worst possible outcome for our industry and the coastal communities which depend so much on it. It is a vital necessity for the industry that there is a strong and effective legal framework for enforcement of all fleets, including our own, in our exclusive fishery limits. This is why the Government has set high standards in legislation and has, in the national interest, avoided any pressure to be dragged down to the lowest common denominator.
The Naval Service representative provided statistics to the committee to the effect that approximately 50% of the vessels boarded are Irish and 50% are foreign. It was interesting to hear this as I, like many others, was always of the impression that only Irish vessels were boarded and not foreign vessels. Perhaps it is a perception.
The Sea Fisheries and Maritime Jurisdiction Bill was published a few days ago, some 12 months after the Government decided on the heads of the Bill. It takes some time to put meat on the bones of such a measure. I have been mandated by the Government to seek an early adoption of the Bill. I look forward to working co-operatively and positively with the committee to have the Bill adopted as soon as possible. While the Bill will not come before the House tomorrow as originally intended, the committee members may take it that it will do so during the course of this session.
The Bill, which has some 70 sections, is a substantial document and is intended to modernise the legislative basis for fisheries. The current principal Act was adopted in the middle of the 20th century and has been subjected to a number of amendments. This Bill will consolidate some seven Acts which were enacted over a number of decades. After its enactment, the legislation will be made up of the Fisheries (Amendment) Act 2003 and this Bill.
The mid-20th century Act was designed for a fishing industry which primarily involved short trips by small Irish boats. As I have noted previously, the industry has changed beyond recognition since 1983. It now includes many multimillion euro businesses, large vessels operating in faraway regions and large non-Irish boats fishing in the waters around our coast. A number of such vessels have been particularly active in respect of landing whitefish in Ireland.
The industry is now substantially regulated at EU level within the Common Fisheries Policy. The Bill is designed to fill a major gap in the Acts in respect of the implementation of the EU Common Fisheries Policy, following litigation which resulted in the impugning of certain secondary legislation which was not covered by the current Acts — the Vincent Browne case. We must amend the legal framework to have regard to these realities and the outcome of those court cases and to modernise our systems and structures so that we implement best practices in fisheries management and control.
While I do not intend to focus in detail on the Bill, many witnesses who spoke before my submission have done so. Hopefully, we can deal with the issues raised in the course of this meeting and over the coming weeks.
I want to turn to the burning question of fines and forfeitures, which has been identified for specific attention at today's meeting. Recently, there has been a strong emphasis on measures to strengthen the fisheries enforcement service of the Department and this process has been accelerated. At the outset, one must note that no one is guilty until so proven. Despite the fact that investigations have been underway for 12 months in parts of the country, everyone involved is innocent and no one should rush to any conclusions. While quite a number of European Court of Justice proceedings in which the EU Commission has taken action against Ireland in respect of failures to implement the Common Fisheries Policy are forthcoming, the resolution of issues is underway. We have established a land-based inspectorate, an independent sea fishing boat licensing authority, and have instigated the decommissioning programme to remove 25% of the whitefish fleet and to reduce the capacity of the shellfish fleet, predominately in the scallops sector. The revision of the legal framework that implements the Common Fisheries Policy at national level is considered to be a necessary element for delivering a strengthened fisheries service.
The European Union Common Fisheries Policy sets out certain basic principles which must be attended by all member states to enable those states to enforce the duties which are mandatory for them under the Common Fisheries Policy at national level. The basic regulation is EU Regulation 2371/2002 and the control regulation is EU Regulation 2847/93. Under the Community regulations, a person who commits a breach of the law must be deprived of any financial benefit of his or her actions. Given the considerable value of fish which can be landed from one trip and the potential level of financial penalties, European law states those breaking the law must take account of this reality. It is also important to note that the penalties for fishery offences are financial. I am not aware of any country in which imprisonment is a possibility.
This leads me to the question of administrative sanctions. I was most impressed to listen to the European Commission's representative, Mr.Gallizioli, as he reflected the Commission's views, whatever members thought. Possibly, that can be teased out during the course of the evening. I am most anxious to obtain further information from the Commission. It would appear from what he has said that administrative sanctions are the preferred choice for minor offences. I underline minor offences because everyone from the Department and the industry agrees that the criminal law is there to deal with anything of a serious nature.
The presentation was most interesting. While I knew this was the practice in other countries, and I will deal with it, we may have a problem with our Constitution. However, if we have a Common Fisheries Policy, the legislation, fines, forfeitures and administrative decisions should be even-handed throughout all Europe. Some countries impose higher penalties than others and I believe our practices may be average.
While we have this opportunity, we should examine the nature and detail of the financial penalties for fisheries offences. In 2003, the average fine in this country for infringement was under €5,000 per individual prosecution, in respect of 26 successful prosecutions. In 2004, the average fine imposed by the courts was €5,500 per individual prosecution. The EU report on serious infringements for 2003 shows the average fine varied from member state to member state and involved a wide range of penalties. For example, in Britain, an average fine amounted to €77,922. The industry has lobbied that the levels of fines and forfeitures applicable to fisheries offences in Ireland are excessive. The maximum possible levels of fines for the main fishery offences have not been amended since 1994 and in some cases not since 1983.
In the context of proposing a revision of the maximum fines which may be imposed by the courts under the legislative framework, the following principles must be taken into account. The basic European rules about deterrent and dissuasive systems are that people fishing illegally should not benefit from the activity under the obligations of the fisheries policy. The current regime, including forfeitures, is designed to be a deterrent and dissuasive. Any change should be justified objectively on clear policy grounds and would need to demonstrate that it furthered the deterrent and dissuasive requirement of the Common Fisheries Policy.
The increases in maximum fines which are stipulated in the Bill have been set by the Government. Any changes to them will be a matter for the Government to decide. I will be the conduit between the committee and the Government and will deal with these issues during the passage of the Bill. The fines and forfeiture structure in the Bill is intended to reflect the principle to which I have referred. These are maximum fines that may be applied for any particular offence. Like all other legislators, I want the fine or penalty to reflect the crime. It can be assumed that the courts will set the level of fine in the majority of cases, as has been the practice in the past. Normally it is set significantly below the maximum level, but that is a matter for the Judiciary to decide. While I do not wish to transgress that principle, I am quite free to express my views as to what the maximum fines should be. Ireland is among a number of EU member states which face legal proceedings brought by the Commission for alleged failures in fisheries control. I will make the details available to members later on.
Article 2.28 of the treaty now allows the Commission to re-enter a matter where judgment has been given against a member state to seek to impose penalties for continued failure to comply with the ruling of the European Court of Justice. Members are aware that France was fined recently for its failure to correct deficiencies in the control system. The European Court of Justice has determined fines in the case against France involving a sum payment of €20,000 and a penalty of €57.57 million for each period of six months from the date of the judgment. The judgment has not been fully implemented. Any failure, even one that arises from the judgment of domestic courts, to provide for a dissuasive and deterrent regime or to ensure that offenders are brought to account may ultimately result in further legal proceedings under Article 2.28. Such proceedings may involve the levelling of substantial penalties on a member state. The purpose of this provision is to compel member states to address any shortcoming in the systems identified by the European Court of Justice. We are anxious to avoid any changes in domestic law which might result in the weakening of the regime.
The Bill provides that the maximum fine for an infringement of a logbook regulation, which is the most commonly detected offence, be increased from €25,000 to €35,000. This is a reasonable increase on the level established in 1994. If we were to take 1994 and attach an index to it, I would expect a fines Bill to be introduced by the Minister for Justice, Equality and Law Reform in the next year or the lifetime of this Government. Such a Bill would apply across the board, not just to sea fisheries, and fines would increase based on the consumer price index or some other basis each year. If it was to be introduced here, the fines would be possibly much higher than that.
The fine proposed for fishing without a sea fishing boat licence has been increased from €12,783 to €100,000. Hopefully, this will not affect too many people. Irrespective of which side of the debate one is on, fishing without a licence must be regarded as a serious offence and the level of the fine reflects this. In considering the maximum penalty, we must pay regard to the considerable variation in the size of vessels, from small in-shore vessels to much larger craft. It is important to have a sufficiently high level of penalty to enable a judge to deal with this offence. A judge does not necessarily have to impose the maximum fine but the fine or penalty must fit the crime.
Regarding vessels which operate abroad and do not call to an Irish port to off-load their fish for foreign sale, the size of the catch will be a relevant factor if a vessel is prosecuted in this jurisdiction and the catch is not available for forfeiture upon conviction. Questions were raised about the reasons for treating foreign vessels differently. I have an issue with this provision and it was one of the first questions I asked. The penalty sufficient to cover the value of the catch is essential if we are to adhere to the requirements of EU regulations. I will do my utmost during my time in this Department to make a case at European level for common fines in all member states. We should ensure commonality throughout Europe with regard to the Common Fisheries Policy because the level of fines varies greatly between member states. We can dine á la carte and examine fines in some member states but it is difficult to compare all of them on a broad basis. Fines in Ireland are less than those in the UK — both in England and Scotland. In some cases, the fine for a summary offence in the UK is approximately €75,000 or approximately £50,000 and there is no maximum fine set for offences with an indictment. The highest average UK fine in 2003 was approximately €80,000, which reflects the maximum fines applicable to many offences. The average fine imposed in Ireland in 2003 was €4,972, while the average fine in the EU was €4,664.
The Bill will maintain the long-standing status quo regarding forfeitures by providing for forfeiture of fishing gear as a statutory consequence of conviction on indictment and forfeiture of unlawfully caught fish. I am extremely anxious that we move on this issue and I will raise the matter at either the forthcoming Council meeting or the following meeting. Ireland has a basic obligation under EU law to apply a level of forfeitures to indictable offences that acts as a deterrent and sets a proportionate penalty.
I raised the issue of administrative sanctions when I had a general look at the Bill and I still strongly believe that we must have appropriate penalties for minor offences and free up the time of the gardaí and sea fisheries officers. I will pursue this issue vigorously. The industry made a strong case for the introduction of administrative penalties and sanctions. While they have advantages and the potential to deal quickly and expeditiously with offences, I understand from legal advisers that there is a substantial legal issue regarding the implementation of such a system in Ireland. I was interested to hear the view of the Commission's legal representative on withdrawing licences for a period, which should possibly be looked at. In the case of most fisheries offences, EU regulations require that penalties act as a deterrent, be dissuasive and involve depriving the wrongdoer of the benefit of his or her actions. However, legal advisers tell me that Article 34.1 of the Constitution poses a problem if I wish to introduce administrative sanctions. Article 34.1 states:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
One may immediately ask what the difference is between a minor fisheries offence and speeding. Even if administrative sanctions existed, this is not necessarily conclusive. A court of law would be open to anyone who was not prepared to accept an administrative sanction. I am very anxious to pursue this matter and see if there is anything I can do within the law and the Constitution following today's presentations, particularly those made by the representatives from the Commission.
I am informed that, under Article 34, a defendant, when facing a potential penalty above certain limits, is entitled to have the matter dealt with by a jury trial in an open court with the full protection of law. Other countries on the Continent do not have our constitutional system. Those governed by civil law have a different approach and it must not be assumed we could adopt the same. We will reach conclusions concerning the matter during the passage of the Bill.
The State is not obliged to have administrative sanctions in place. I am advised there could be a problem in that the required level of sanction could trespass on the exclusive role of the courts in the administration of justice, exposing the rules to legal challenges. No protection would arise from Article 29.4.10° of the Constitution. From a legal perspective, moving to administrative penalties without being obliged to do so by EU legislation would render any measure I might place before the Houses vulnerable to challenge. We can discuss this matter in more detail when we reach the relevant section.
Comparing our level of fines with our near neighbour, the United Kingdom, it is approximately the same as the European average. If there is to be a level playing pitch and we are not to be dissuasive, will the common denominator be the lowest or highest or should we find the average and involve the European Union? The Common Fisheries Policy has basic rules but each country must have its own provisions for forfeitures, fines, etc. Other member states impose higher fines than Ireland and the number of fines is greater in most member states than is the case here. None of us wants the fines set at a low level, as if they are not dissuasive, they are not in anyone's interest. Whatever else they may be, fines must be dissuasive. I assure the committee and the industry that I will continue my efforts to work for a level playing field in the EU so that penalties are equal across the board and set at a dissuasive level. We must take account of the constitutional and legal difficulties associated with administrative systems but we can examine this issue.
I have taken up much of the committee's time but I wish to refer to the fleet's decommissioning. We had no choice, particularly in the case of boats of the demersal fleet, all of which experienced difficulty in this respect. Vessels over 18 metres in length and 15 years of age will have an opportunity to apply for the decommissioning scheme. The fish they would have caught will be available to the 75% of the fleet remaining, which will hopefully give them better economic opportunities than they have at present. It is necessary to manage the fisheries. As we land precious stock species that fall within the quota regime, it is vitally important that we manage them properly. I have responded to this matter and appointed a Danish-UK consortium to determine what changes could be made in light of international experience. We can handle the horse mackerel issue but I am anxious to have the consortium in place before 2006 as, if it is not in place by the beginning of January, we will have lost a full year.
A number of those making presentations referred to water content, particularly in respect of pelagic fish being pumped onto tankers and then to factories. This situation does not arise in other countries with heavy dependencies on pelagic fish, namely, Scotland and Norway, where the fish are pumped directly into factories and a weighing system is used. Our method disadvantages the Irish pelagic industry. First, from a quality point of view, were we to weigh the fish on the quayside and then put them into dry tankers, their quality would be affected in the hoppers. Second, going from minus five or zero degrees to ambient temperature and back again and then being held for a number of weeks in tankers is unacceptable.
When this was brought to my attention after my appointment, I realised the system in place meant Irish pelagic fisheries were at a disadvantage. Prior to the December Council, the officials and I presented the credible case that Ireland was at a disadvantage. This culminated in 24 Ministers agreeing to accept my recommendation that, in countries where factories were not on quaysides and it was necessary to transport fish, they should be weighed in factories. This is the current framework and is a major step forward. I gave a commitment that I wanted to ensure it would be a tonne for a tonne and not 0.75 for a tonne when everyone lost. I hope this ensures we will have a system similar to those of other countries. The perception that this is still an issue is wrong as it has been, by and large, resolved.
While the industry faces many challenges, the Department is not sitting around with any single producer or processor and will not allow the industry to collapse. We will continue to take the necessary decisive steps to position the Irish fishing industry where it needs to be in this new century. We now have a safe, modern fleet that is in balance with the fishing resource and is economically viable in the long term. I am satisfied we are on the road towards achieving this objective. I fully acknowledge the pain suffered over the years as a result of the reduction in quotas based on scientific advice. I have been told by fishermen that scientists do not have all the information but the fact of the matter is that the regional advisory councils, RACs, will have inputs from both the scientific and industrial areas, which will be an important contribution.
I thank the committee for convening these presentations and assure its members I wish to work with them. I look forward to reading the transcripts and to the committee's report. If the proposals are reasonable and practical, I will try to accommodate them as much as I can. I thank the Chairman as, going by constituencies and unless he has plans to represent the country as a whole or the south of Ireland, he has no vested interest. He is almost landlocked and could be the Luxembourg of Ireland.