This amendment is designed to meet a point of view which was expressed by some Members of the Seanad in seeking to delete the mandatory nature of the directives that the Minister shall from time to time give to the central board. It was felt that the mandatory exercise by the Minister of his power to give policy directions to the central board and to order the central board to transmit such directions to the regional boards was excessive and should be made discretionary. I agree with the view expressed by Members on Committee Stage in this respect, and now propose to incorporate in the Bill that Ministerial directives of this nature should be discretionary and should only be given to the central board if the situation warrants it and at the discretion of the Minister. All actions of the central board should not be dependent on the receipt of directions from the Minister.
Fisheries Bill, 1979: Report and Final Stages.
As one of the people who suggested an amendment such as this, I would like to thank the Minister for granting the amendment. The amendment is of benefit both to the Minister and to the central board. It would be against the spirit in which the Bill was conceived for the Minister to have this constant surveillance of the activities of the central board. It clearly would militate against the autonomy and enterprise of the board if the Minister were to be so required.
Amendments Nos. 2 and 12 are consequential and may be discussed together.
Amendment No. 2 and the consequent amendment No. 12 arose out of the Seanad debate on section 16 when Senator Cooney drew attention to the local authority code where it is laid down that councils, rather than the Minister, have the power to extend the period following which a member of a board would be disqualified for non-attendance at meetings. Senator Cooney suggested that a similar regime should obtain with regard to regional boards. I have considered the matter and the amendment meets the point made by Senator Cooney.
The period following which disqualification becomes effective was also discussed in the light of the local authority code which specifies 12 months for county council and six months for district councils except in the case of illness or some reason approved by the council. I have decided to retain the six months period in the case of the regional boards, and this period may be extended on the decision of the board acting in accordance with the conditions laid down. We will have a similar regime for the regional boards as is the case in urban district councils. The Minister will have the power to extend the period following which a member of the board will be disqualified for non-attendance at meetings. Senator Cooney wanted the same regime to obtain in the case of regional boards as in local councils, and this point of view was met in the amendment.
This is the controversial aspect of section 20 (4) which made for discussion in the Seanad and was the subject matter of many representations from various interested bodies. Although I subscribe, as I said on Committee Stage, to the view that the principle of what I was trying to do in the original subsection of the section is right, it would be impossible to carry into effect by reason of the fact that one could have excellent fishing areas and fishing resources in thinly populated areas where the required contribution might not be forthcoming. Obviously it is the fishery resource and potential which, in the last analysis is of paramount importance rather than the actual contribution. The original intention which I had in mind to help areas that were helping themselves is not practical. I hope that in the administration of the scheme that will always be borne in mind. The effect of the amendment is to remove that requirement which was originally there linking the amount of grants paid to regional boards for trout and coarse fishing development to the amount of voluntary subscriptions. That need no longer be taken into account. It makes for a greater degree of flexibility on the part of everyone concerned and meets the wishes of the Seanad.
Amendments Nos. 4, 5, 6, 11 and 13 are related and may be discussed together.
These amendments arise out of suggestions made by Senators on Second and Committee Stages. They involve an increase of fine for various offences from £1,000 to £2,000. It entails all the consequential amendments that have given rise to the amendments before the House and meets the wishes of the Seanad. They were unanimously expressed as being that when we were having indictable procedures in addition to district court procedures, the district court at £500 and the indictable proceedings at £1,000 was a little anomalous. The view was very strongly put that it should be increased substantially. I have decided to double it to £2,000.
I welcome the increase.
This amendment is to strengthen section 49 (1) which enables the court to direct the forfeiture of a licence of a person convicted of a fishing offence. This extra subsection, which is already a subsection of section 90 of the Principal Act, was omitted in error from section 49 of the Bill which amends section 90. In other words, it was not brought forward into the Bill and was an error on the part of the draftsman. The amendment covers the case where a person who is not a licence holder is convicted. The case of a person who is a licence holder is covered in section 9 of the 1962 Act. All we are doing is carrying forward a subsection of section 90 of the Principal Act which was there since 1959 and was omitted in error from section 49 in the drafting.
Could I ask the Minister why the period may not exceed one year? If somebody is found in commission of an offence as grave as this, why is the court prohibited from disqualifying him for more than one year? If the offence is a serious one why not disqualify him very severely, for seven years or for life? Is there a reason for that?
Does this mean that the licence cannot be restored? In other words, if a person is disqualified four months after he took out the licence he is disqualified for the remainder of the period and the Minister cannot restore the licence to him. Is this correct?
Within the period of the year, yes. That was the point that was made. If the House feels strongly that the court should have a wider discretion I would be willing to consider it.
I have no strong views on it at all. I was just querying it.
We are bringing in a new provision for a forfeiture after the third offence, which is a fairly strong provision. It is for the automatic forfeiture of a boat, gear and net, an automatic penalty as in the case of a driving offence. Does that meet the point?
That is fine.
Amendments Nos. 8 and 10 are related and can be discussed together.
This amendment is to meet a point of view expressed by Senator Whitaker on Committee Stage when he pointed out what appeared to be an anomaly in that for the very serious damage that could be done in the case of an aquaculture offence, running into substantial sums of money, we had confined the proceedings to summary proceedings and confined the penalty to a penalty on foot of a summary conviction. We are now bringing in, in addition to the summary proceedings and fine of £500 in that respect, an indictment procedure with a maximum fine of £2,000 on foot of a conviction on indictment.
I am pleased that the Minister has made this amendment which makes an offence under the subsection an indictable offence. Let me ask the Minister, how does the amendment leave the law relating to the taking of fish out of sea cages without the consent of the holder of an aquaculture or fish culture licence? The Minister may recall that I raised this point also on Committee and that he confirmed my worst fears by saying that the general law of criminal trespass does not apply, apparently, in such instances. He promised to bring in an amendment on Report Stage to cover that after he had concluded his consultations with the Attorney General. Does this amendment cover it or does it still remain in obscurity?
The point that Senator Whitaker is raising relates to the law of trespass basically. It is one that we are still pursuing with the Attorney General. It is not an easy one to resolve because the Attorney General has very strong reservations about having a section of this kind in the Bill. It is a legal approach and he feels it involves a fundamental change in the law of trespass. There are a number of other points in this whole area which were suggested in the Seanad. Senator Whitaker has just mentioned one which relates to the ownership of fish on a fish farm and the extension of the law of trespass to such a situation where damage has been done. It has also been represented to me that the courts should be in a position to issue compensatory fines in respect of damage to oyster or fish aquaculture installations. That was a further point. That relates to the criminal law and I am discussing it with the Attorney General at present.
At the moment, I am also taking up with the Minister for the Environment the whole question of the powers and responsibility of local authorities in regard to malicious damage to oysters or fish being cultivated or reared by persons engaged in aquaculture with a view to having compensation in respect of damage in this area brought in within the malicious injury code. It is anomalous that they are not included at present. We have here three areas: malicious damage which is the subject matter of a separate code and will involve an amendment of that code; we have criminal trespass which involves the amendment of the criminal law with the Attorney General and there is also the question of compensation to be given by the courts in respect of damage to oyster or fish aquaculture installations.
The one of these three which I am advised by the draftsman and the Attorney General I can do something about in this Bill—for practical reasons I want to do something because the other two aspects I have mentioned relate to the malicious injury code and to the criminal law—is on the question of compensatory fines. We can bring in an amendment to provide for fines that would cover compensation. That is the most effective way we can meet the matter which Senator Whitaker is concerned about. I propose to bring in such an amendment in the Dáil. It is in this way that we can help best to meet the point of view that has been expressed.
May I——
The Senator has already spoken and is only allowed to speak once on an amendment on Report Stage.
I was at a committee meeting and did not hear what has been said. I hope what I say is not a repetition of what Senator Whitaker brought up. I understand the point the Minister makes, that by increasing the fines it will act more as a deterrent to anybody poaching on oyster operations. At the same time it has been drawn to my attention, and perhaps the Minister will comment on this, that we seem to be giving special rights in regard to salmon. While salmon may be the king of the fish and the source of all wisdom and oysters only the source of pearls, whether they are perils or pearls, I am wondering why one fish can get the very favourable deterents applied to it and the other cannot.
There are certain ways of approaching the point put by Senators Mulcahy and Whitaker. The law of criminal trespass is one for the criminal code. The Attorney General is very strong in his view that it would not be appropriate to have such an amendment here. The other point of the malicious injury claim which is, I agree, an anomaly is a matter for the malicious injury code. That is, unfortunately, the way the law is compartmentalised, and it has to be that way to some degree. The only way I can help is by bringing in some method of compensation in respect of the owner of an oyster or fish aquaculture installation. This is what I will do. I can, within the fisheries code, bring in what are called compensatory fines. This will mean that, in addition to the ordinary punitive fine, fining the person for what has been done, the court will be empowered to make a consequential order compensating the owner in respect of the amount of damage done. We have this under consideration with the Attorney General, and I propose to bring in a suitable amendment on Committee Stage in the Dáil to meet that aspect.
This is an amendment which is consequent on a number of amendments which were introduced on Committee Stage enabling sea anglers to be registered on the register of coarse trout and sea anglers. There was an omission. We did not include section 53 in the amendment which we advanced. It is merely consequent on what we had already decided. It is quite clear now that as far as sea anglers are concerned this was the main concern of the Seanad on Committee and Second Stage. They are in precisely the same position now as coarse fishermen and trout fishermen. They all stand as one together.
I am not being facetious when I say that they do not quite so stand. They do not stand in the same relation to trout anglers and coarse anglers but, in fact, in relation to trout and coarse fish. There is a serious flaw in the drafting of this which goes right through the Bill and will have to be taken up in the Dáil. If one looks at page 51 one finds, for instance, in section 53 (1);
each regional board shall establish and maintain a register to be known, and which is in this Act referred to, as a "Register of Trout, Coarse Fish and Sea Anglers".
Senator Mulcahy spoke about the inequity of discriminating between fish and getting the salmon to look down on the oyster. We should at least distinguish between the angler and the fish. To any student of English, the phrase "register of trout, coarse fish and sea anglers" confounds fish with flesh. It is interesting that that should remain and should stand thus in view of the fact that the person who drafted the amendment seems to be scrupulously aware of this distinction. The amended sentence which is to be found on the same page involves line 24. It says "To substitute ‘angler, or as a coarse fish angler or as a sea angler'". It will specify which of the following categories he wishes to be registered as, namely as a trout angler, as a coarse fish angler or as a sea angler. In other words, the draftsman was very much aware that there was a difference between trout and trout angler. That distinction is not respected in the margin, where there is "Register of Trout, Coarse Fish and Sea Anglers" and it is not respected in line 15 and 16 where there is "Register of Trout, Coarse Fish and Sea Anglers". On page 6 it is not respected as there is reference to "Register of Trout, Coarse Fish and Sea Anglers". There is a serious drafting deficiency and I draw the Minister's attention to it with all respect.
As one who does not tend to the puristic knowledge of the English language, as does Senator Martin, but as one who would like to have good plain English written in, I will certainly have a look at the suggestion that has been made. Part of the trouble arises from the unfortunate phrase "coarse fish". I have been racking my brains and I would like ideas on what we could call coarse fish other than coarse fish, because it is an appalling appellation to inflict on the poor unfortunate species. I will have a look at the matter with a view to having some continuity of language and definition and, above all, plain language before the Dáil debate.
I would like to congratulate the Minister for tabling the amendments. The Bill is the better for them and the Seanad can be proud of the amount of work put into this and the improvements brought about in the Bill.
I thank Senators for their very constructive approach to the discussion and for their contributions. I agree with Senator O'Brien that it is a better measure now by reason of that discussion and constructive approach by Senators.