This is a drafting amendment, as are all the other amendments.
Fisheries (Amendment) (No. 2) Bill, 1978: Committee and Final Stages.
The parliamentary draftsman proposed that it was unnecessary to have these words included.
Amendment No. 5 will correct that situation.
I wanted to raise a point there, a Chathaoirleach, in regard to the offence provided for by the new section 222A which carries with it, as a consequence, the possible forfeiture of the actual boat involved. I suppose section 4 is probably the best section on which to raise that.
Would the Minister explain this?
The explanation really refers back to amendment No. 2 in which we deleted that the provisions of Part XIII of the Principal Act should apply. In fact Part XIX of the Principal Act shall apply to the fines and forfeitures. Part of the Principal Act indicates the manner in which the fines are to be disposed of and what to do with the boats if they are forfeited. There is no change from what was contained in the 1959 Act in regard to the disposal of the assets or the fines.
Table II, where the parties opt for summary trial, provides the penalties in such an event. Granted the accused person cannot opt without the consent of the Minister, the Attorney General and the justice concerned. He has not an automatic right of option. I can see a lot of situations where, for procedural reasons, there would be a temptation to use the provisions of subsection (2) and accordingly Table II would apply. Is the sanction sufficient there? I suppose the people at whom the authorities want to get will not give their consent to the summary procedure but the penalties for some of the summary matters are small. The maximum monetary penalty is small—not exceeding £500. We all know that where there is a maximum provided for the norm is usually very far below the maximum because the maximum is merely an indication to the court. Having regard to the magnitude of this offence, the maximum here is insignificant.
I concede that to keep the matters within summary jurisdiction the forfeiture provisions have to be comparatively light, but the forfeiture provisions are restricted to fish unlawfully caught or gear used in the commission of the particular offence. As I said here on Second Stage, there could be serious difficulties of proof, certainly with regard to the gear. The fish may be self-evident because they may be undersized or of the wrong species. That is where the offences cover that type of catch.
I wonder if the Minister is satisfied that the provisions on summary conviction are adequate and if he is satisfied that they are the very maximum that can be permitted. It would seem to me that if the summary procedure is with the consent of the defendant, as it has to be, then his consent will allow more severe penalties to be imposed or would allow more severe penalties to be provided for. In effect, the normal summary status of the district court is being ousted by these various consents and once that status is ousted much more severe penalties could be provided for.
We have to bear in mind that the Bill is proposing a very substantial increase on the existing level of fine. One could argue indefinitely whether even £500 was large enough. On balance I think the Minister considered that £500 would be a sufficient deterrent in cases of summary trial. If there is conviction on indictment we have the much larger fines which are mentioned in the other tables. In view of the fact that the Attorney General has to consent to a summary trial, I am sure the House will agree that the steps proposed will act as a very serious deterrent even for those who may wish to commit what are considered minor offences under our fishery laws. The fines and the forfeiture provisions will be quite severe for the type of minor incidents that will be brought before summary trials.
This is a new section and it brings in a very serious penalty indeed in that it provides for the forfeiture of a fishing boat on the occasion of a second or subsequent conviction, provided that the boat at the time of the commission of the offence is owned or partowned by a person who was the owner or part-owner of the boat on the occasion of the committing of the original offence or offences. In other words, what we are now providing for is that in the case of a second fishing offence under section 4 the court may in its discretion order the forfeiture of the boat.
This is potentially an immense penalty and under some of the sections it could apply to Irish-owned boats. I wonder if it is right to include Irish-owned boats within the possible consequences of this section. I think a distinction can be made between the pattern of a boat owning here and in continental Europe in that there they are owned by large combines and wealthy industrial groups whereas in this country, generally speaking, the pattern of ownership is the individual skipper who owns his own boat. Some of these offences could be of a quasitechnical type. I think it is wrong for our own boats to be placed in the same category as foreign boats and be liable to forfeiture. From the point of view of the individual skipper, forfeiture means his total livelihood is gone. For a very large commercial company it could probably mean just the loss of one of the fleet.
I would be glad to know what happens with regard to the forfeited boat, how it is to be disposed of. I take it that it would be under Part XIX of the original Act but perhaps the Minister would enlighten us on that. I would be glad to hear his views as to whether he thinks Irish boats should be excluded. I would plead with him to exclude Irish boats from the forfeiture provisions.
There is no change from the existing position under the 1959 Act where the second offence is committed. The District Court had the power to confiscate the boat and this applied to Irish boats as well as it applied to any foreign boat. Of course, most of the cases that come before the courts are cases where there is illegal entry and that, of course, would not apply to an Irish boat. In the other sections Irish boats could be included.
Our membership of the EEC, as the Senator will agree, would debar us from introducing legislation which discriminated against the foreign boat in those circumstances and relieve the Irish-owned boat of the penalties which were proposed. Because of the discrimination aspect it would not have been possible for the Minister to introduce a Bill which introduced a particular penalty for a foreign boat in one instance which would not apply in the case of an Irish-owned boat. It applies to Irish boats under the existing section 223 of the 1959 Act, so the principle is not new.
On the disposal of boats which might be forfeited, what are the mechanics?
That is contained in Part XIX that I have mentioned. It is in section 317.
I welcome the severity of this measure because despite Senator Cooney's argument that some of these offences are technical is it not notorious that the skippers of boats who are found in violation of territorial waters and in violation of fishing laws and conventions plead ignorance or technical unawareness of the rules? Is it not also notorious that the flagrant flouting of the law around our coast really does call for extremely severe measures? The fines and the impounding of tackle and so forth in the past has reached a derisory stage and the tackle could be bought back for next to nothing the following day. In fact, the law itself was being consistently flouted.
The provision for forfeiture of the boats is welcome and is to be approved. I do not see any more than the Minister does, but perhaps Senator Cooney could point out, how one could discriminate between foreign and Irish boats in this connection. That would seem to be an extremely difficult thing to do but certainly the severity of the offence is not to be mitigated by any appeal that the offence is just, as they would say, technical. If the offences are technical then the onus is on them to learn the techniques and not violate them.
The section provides for confiscation at the discretion of the court of the fishing boat used in the commission of the offence in the case of a second conviction only where an indictable offence has been committed. It would not, of course, apply in the summary case. So we are talking about a very serious transgression of the fishery laws.
An indictable offence is the carriage of certain nets on board without necessarily fishing and this is why I say that an Irish boat could have the wrong nets on board and suffer possible forfeiture of the boat itself. I want to emphasise that I am speaking for the small individual skipper, the man who owns the boat himself. He is the man I think should be exempt. If under the EEC rules we cannot distinguish between Irish-owned and other European boats, that is that. The plea I am making is not to excuse illegal fishing but to exempt Irish-owned boats from this draconian penalty. I agree with Senator Martin that the offences are serious and should attract draconian penalties but I would like to make an exception for our own. I hope I will be forgiven for this parochialism.
I do not think it possible, as the Senator accepts, to concede to his suggestion.
Am I right in thinking that under the terms of the Principal Act if a boat is forfeited it is open to the owner of it to buy it back?
The Minister has certain discretion under section 317. It has been the practice where gear was confiscated that the owners were able to bid for the purchase of their own equipment. This, in fact, is the practice and is something which I am sure many people might question nowadays because of the seriousness of some of the offences. It is a matter where the Minister would exercise discretion.
This is a new section. Perhaps the Minister would give some explanation as to the purpose of this section.
Section 9 amends Chapter II of Part XIII of the Principal Act by the insertion after section 223 of that Act of the new section 223A which enables the Minister under subsection (1) by order to prescribe and adopt any necessary measures for conservation of fish stocks and rational exploitation of fisheries. This section re-enacts section 35 of the 1962 Amendment Act under which conservation orders are made at present, but it does not contain the provision in that section 35 that orders may only be made pursuant to international agreement. Section 35 was enacted when limits were 12 miles and a lot of waters of interest to us were high seas and hence the need for international agreement. However, now that we have 200-mile limits that provision if no longer necessary.
Can we unilaterally make such order or in practice will it mean that any order that might be made by the Minister under this section will only be made following agreement in Brussels?
As the Senator is aware, Brussels is striving to arrive at a common fisheries policy and it would be the long-term intention that any such orders would be made in agreement with the partners in the EEC. I am not certain whether the Minister would be debarred from making such orders at the moment without the consent of the EEC partners. I would imagine the Minister would have power under this section to make conservation orders which he deemed necessary. In the interest of harmony and the development of the fishery policy it would be most unlikely that the Minister would proceed in any way which would contravene the wishes of our colleagues in the EEC in matters of conservation. The wish among all member states is to arrive at a common policy.
At the moment there is a conservation order with regard to herring off the Donegal and north-west coasts which, as the Minister is aware, is causing some controversy. The fishermen there feel that their livelihood is being taken away from them, not because of anything that they did but because of the plundering of stock carried out by other trawlers and they are of the view that if the waters were reserved for them, the amount of fishing they might do now would not interfere with the regrowth of the stocks in question. That is why I ask if this section means anything by itself or whether it must be read in the context of our European obligations.
There would be cases where the Minister would have discretion to take unilateral action in coastal waters where there were stocks which were only of interest to Ireland. The Minister would have power under this section to make conservation orders which would apply in those areas.
There is an extension of powers here.
To an extent this is not really an amendment because it seems merely to involve the bringing forward of section 17. We are deleting section 17 and bringing it forward to section 10. I wonder what is the purpose of this.
It is considered more appropriate to insert section 17 between section 10 and section 9, making a new section 10. Section 17 (1) provides for the taking of powers to enable the Minister to regulate sea fishery operations for the purpose of carrying out the Convention on the Conduct of Fishing Operations in the North Atlantic as specified, or any convention amending or replacing that convention. All regulations would be subject to the consent of the Minister for Tourism and Transport. The convention has been signed but not ratified by Ireland because of the lack of powers to implement it fully. Subsection (2) prescribes for a maximum fine not exceeding £500 on summary conviction for contravention of any of such regulations.
What could be the possible interest of the Minister for Tourism and Transport?
The type of things that the convention obliges the contracting parties to do are the following: require all fishing vessels and their boats and gear to be marked for identification purposes and to carry a national flag; prescribe the lights and signals to be used by fishing vessels when fishing as a fleet, additional to those laid down in the rules relating to signals for preventing collisions at sea.
What new powers are involved?
This section extends the powers of sea fisheries protection officers for the purposes of enforcing Chapters II and III of Part XIII of the Principal Act and in particular those powers to detain a sea-fishing boat to include any such boat found in a port. The existing text of paragraph (g) of subsection (1) of section 233 refers only to boats found to be committing offences while they are at sea. A small amendment is made to paragraph (a) to copperfasten the requirement to stop when ordered to do so. In fact it is extending the powers to boats actually in the port. Because of the way the 1959 Act is written, it applied to boats actually at sea.
This is the insertion of the word "a provision of" before the word "Chapter" in line 17. It is a drafting amendment.
This is a new section, a totally new power, giving right of detention for 48 hours on the order of a district justice or peace commissioner if he is satisfied that a contravention of the Principal Act has taken place. At the end of the 48 hours the boat has to be released and each person on board the boat has to be released unless an order providing for his further detention has been made under the said section. I take it that is under section 234 by the district court. We are getting into a tricky area here in taking these powers. I appreciate the practical necessity for having such powers of detention and I have no doubt that the Minister and the Attorney General have given some consideration to the constitutional implications in providing for the detention of persons, in fact the keeping of persons in quasicustody. One can say that it is analogous to other provisions in our legislation which provide and provided in the past for the keeping of persons in custody on a satisfactory suspicion being held by certain officers that certain unlawful things have been done. I raise these points because this is a novel provision and I would be glad if the Minister would indicate that these considerations have been taken into account.
This is a new provision and a very necessary one. Great difficulty has been experienced over the years but particularly in recent years since the activity in this area of protection has increased substantially and that difficulty is in establishing the extent of the illegal fishing being carried out. One must bear in mind that the protection personnel have to board the offending vessel and this can often be very difficult in bad weather and very dangerous. With the development of modern trawlers and the deep freezing plants which are on board it is often very difficult to establish what exactly is in the hold because it is frozen solid. The size of the boats has increased enormously since the conception in 1959 and to do a thorough examination at sea, often in bad conditions, is very difficult with the large vessels. It is considered appropriate that the offending vessel or the vessel suspected of having committed an offence should be obliged to come to port and be detained for 48 hours to enable adequate inspection of the vessel—its contents, its catch and its gear—to be carried out in proper conditions and in order to have it done efficiently and effectively. At present the boat may only be detained if proceedings are being instituted. So, there is very solid ground for including this new provision.
I do not dispute the need for it but I raise the constitutional implications of detaining persons in that situation. I am sure these have been adverted to.
As the Senator knows, there are precedents in other aspects of the law about detention.
I would not be anxious that those others would be disturbed by this one.
This is a drafting change.
Again, it is a drafting arrangement.
The word "summary" is now considered unnecessary by the draftsman; it should not have been included.
Again, it is a drafting amendment.
This is a similar amendment.
Could we ask the reasons for this amendment? This is slightly more than a drafting arrangement.
I am informed that in the context of the section as it is written these words should have been included here and that it was merely a drafting point. Has the Senator any doubts about it?
I just wondered why it was necessary to specify a "port in the State". It seems to be substantially the order of what was in the Bill. I wondered what the purpose of the change was.
This is not a substantial change. It is included in paragraph (b).
I think paragraph (b) refers to a situation where there has been an order in the District Court and the Attorney General then wants to exercise his rights under the 1967 Act. It provides for further detention of the boat for a further week; but the point is, is not the boat already in detention or on bail, so to speak, under the following subsections—"at a specified port" for the purpose of the proceedings?
I am informed that it is the former that is used in the original Act in section 234 and were it to apply properly the same ports should be specified in this section as well. There is no change in the meaning because of the inclusion.
This is just a necessary drafting change.
Nearly a piece of tautology.
There is a new amendment. I am not sure whether the House has been made aware of it.
Additional Government amendment:
In page 9, lines 64 and 65, to delete "appear before any court" and to substitute "attend before any court when such attendance is required".
Again, it is a drafting amendment.
Has much use been made of the provisions of subsection (2)?
As the Senator knows, I am standing in here. I am informed there has been some use of it. I am not in a position to give him any greater detail than that.
Presumably it has been effective enough to get people to come back for trials. The experience has not been the same with regard to offences on the land, of people getting bail and committing further offences while on bail?
I do not think so, because the history has been that there have been very few second offences where these trawlers, especially foreign trawlers, have been involved.
It is just a typographical error.
Under the present regime, who brings prosecutions?
The Attorney General.
The DPP is excluded and has always been excluded from the prosecution of fishery cases?
This is a more appropriate legal formula of the words to convey the same meaning.
This is just a drafting amendment.
On this Stage I would like to repeat our welcome for the Bill and our welcome for the increased penalties which it proposes. Many of the amendments have been typographical or drafting. In fairness to those who are responsible for producing Bills for the House it is unusual and rare to see amendments of this type in such numbers having to be put before the House. I say that in tribute to those responsible lest anyone might think there has been less than satisfactory attention or workmanship in this particular measure. The fact that we are in this position is an indication that this has been an extremely rushed measure. It is regrettable that it had to be rushed because the need for it has been known as long ago as December last when the proceedings in the court signalled that there was going to be need for it. Nevertheless, we have it and we are grateful for it. All we can hope is that it will be effective in keeping pillaging foreign trawlers from our waters. We hope that the fish stocks will grow and will provide for our fishermen, primarily and principally, a way of living provided that a proper fishing policy, including fishing fleet, marketing and so on, are provided for them by the Government.
I would like briefly to thank the House for the reception it has given to this Bill from the Minister for Fisheries. I would like to state that the House knows that the High Court decision which necessitated the introduction of this Bill was made known only at the end of March and all the implications of new legislation had to be thoroughly examined and the details of the new Bill put together in a very short space of time. The thanks of the House is due to those officials who worked so assiduously on this new legislation which we all agree was urgently required following the High Court decision. In my capacity as Minister for Defence, with responsibility for the Army, and particularly the naval functions of the Army involved in enforcing the fishery protection laws, I trust that this Bill, when it is finally passed, will make their task much easier to carry out and much more worth while because much of their effort is being frustrated at present due to the law as it stands. Therefore, there is an urgent need for this Bill to be put on the Statute Book. Again, I would like to thank the Seanad and those who have spoken on the Bill. I am particularly grateful for the quick passage they have given to it.
Perhaps I could add a rider to Senator Cooney's remarks as I was unavoidably absent last week. Coming from the western side of the country, I particularly welcome this Bill and the much more severe penalties which are long overdue because the law was a laughing stock in this regard. I only hope—and I say this in a lighter vein—that this strict legislation of the Government will not lead to retaliatory action by the French Government if the Minister chooses to throw a mackerel line out over the boat this summer because we would not like to see him hauled into a French court and particularly we would not like to see the boat confiscated.
The Minister will be very careful where he casts his line.