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Seanad Éireann debate -
Wednesday, 27 Nov 2013

Vol. 227 No. 13

Sea Fisheries and Maritime Jurisdiction (Fixed Penalty Notice) Bill 2013: Second Stage

I move: "That the Bill be now read a Second Time."

I welcome the Minister, who is always accommodating in the Seanad, and his officials. I am glad we have the opportunity to discuss the Bill, which concerns the criminal sanctions imposed upon our fishermen. Sea fisheries offences in Ireland are predominantly criminal in nature in terms of the sanctions that apply. That leaves Ireland as the only European maritime jurisdiction to rely exclusively on criminal sanctions. This Bill aims to correct this anomaly and to protect fishermen and the future of the industry.

The 2006 legislation, introduced by Noel Dempsey, was an outrageous item of legislation because it criminalised fishermen. I was openly critical of the legislation, as was Senator Denis O'Donovan. It was the wrong legislation at the wrong time and it did nothing to support genuine fishermen doing their utmost to earn a livelihood. Some 75% of the registered fishing fleet vessels in Ireland are under 10 m and it threw the very small fishermen in the same category as factory ships in terms of the sanctions imposed on the fishermen. That was wrong.

The Irish seafood industry supports coastal communities, directly supporting 11,600 jobs including full-time, part-time and casual employment in the fisheries, agriculture and seafood processing industries.

The Irish fishing fleet consists of 2,186 registered vessels, with 1,637, or 75%, of them under 10 m in length. There are 355 vessels between 10 m and 19 m, 36 vessels between 19 m and 22 m and 158 vessels over 22 m. Therefore, the majority of the Irish fishing fleet is made up of smaller vessels, with 75% being vessels under 10 m in length. Under the Common Fisheries Policy there is a requirement on all European member states to enforce an effective system of sanctions for dealing with breaches of community law. Notwithstanding this, the sea-fishing community in Ireland has been aggrieved at the use of onerous criminal penalties to control even minor breaches of technical regulations. All stakeholders accept the necessity to retain stiff penalties to control serious quota and environmental breaches but expensive and time-consuming criminal procedures are an inefficient way of dealing with minor technical offences and encouraging a culture of sea fisheries compliance.
For example, section 28 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 provides for stiff maximum penalties of up to €100,000 and these penalties, which may be imposed on conviction, are set out in a table of offences and punishments graduated in reference to the size of the contravening vessel. These fines are up to and including €100,000 for boats greater than 18 m in length. The penalties are stiff but in addition to those fines there is also the mandatory tying of a vessel, suspension and revocation of fishing licences and the forfeiture of catch and gear, which are a statutory consequence of almost all offences under the Act. Taken together, these impose extremely serious penalties, even for non-serious infractions.
This Bill recognises the serious quota breaches and environmental infringes which require the full rigour of fisheries enforcement. However, Ireland is now the only major maritime jurisdiction to retain an exclusive reliance on criminal sanctions to control sea-fisheries offences. The European Commission has consistently reiterated its position that administrative penalties are a more effective means of ensuring compliance with the Common Fisheries Policy in a cost-effective manner. Northern Ireland, England, Wales and Scotland have all introduced a fixed penalty notice regime since 2008.
The purpose of this Bill is to introduce a system of administrative sanctions to provide efficient punishment for minor offences, benefitting both the State and fishermen. Administrative fixed penalty notices would be introduced as a proportionate response to minor breaches of technical legislation, and that principle has been an established part of Irish constitutional jurisprudence since at least 1961. Section 103 of the Road Traffic Act 1961 provides that where a member of An Garda Síochána has reasonable grounds for believing that a stated offence has been committed, the garda may issue a penalty notice requiring the payment of a specific fixed charge.
The justification for bringing forward the 2006 legislation was constitutional and it could not be changed on the basis of advice from the Attorney General. However, the independent Oireachtas Library and Research Service has established that the following constitutional principles with regard to a system of administrative penalties exist. There is no prima facie objection to administrative levying of fixed charges or temporary professional suspensions and the process must be done on the basis of reasonable suspicion or some similar formula. If an administrative tribunal purports to make findings of culpability, there is the possibility of straying into constitutionally suspect considerations. The current legislative maximum for an administrative penalty is €1,000 and each single penalty falls below the ceiling. It is not constitutionally relevant for several infractions to be punished simultaneously, leading to a larger total fine. The alleged infracting vessel must always retain the right to appeal the fine or temporary suspension, and I have built in an appeals mechanism under the proposed legislation.
There is nothing peculiar to fishing that renders it materially different to other examples of administrative tribunal operating in other sections of society. Particularly, there is no reason a penalty points regime could not be instituted for minor fisheries offences. Therefore, the Bill aims to complement the fixed penalty notice system rather than replace the system provided for in the 2006 Act. The option of a hearing in court is retained as part of the primary legislation. The Bill will also satisfy the European Commission position, as it has again called on member states to ensure a system of sanctions that has a deterrent effect, amending where appropriate legislation so that sanctions have a dissuasive effect.
The aims of the Bill are outlined in the document and Senator O'Donovan will touch on them. They seek to improve and widen enforcement mechanisms, have an appropriate fine system to match infractions, deal with less serious offences through a new penalty points system and provide an exemption to the forfeiture of gear. For example, somebody at the moment could have a small vessel tied up for a relatively minor fishing infraction, meaning he or she cannot fish. Gear is confiscated as a secondary consequence and the person will also end up in court. There is a major cost to the State with this legal route, and there is also a major cost for the owners of the fishing vessel.
This Bill may not be perfect - I am not saying it is - but we have given it the best shot we could. We have met representatives of the fishing industry up and down the country. We were in the Minister's own beautiful county of Cork partaking in an array of public meetings. West Cork is a lovely part of the country that I visited with Senator O'Donovan, and we have also met fishing representatives from the offshore islands, Mayo, Donegal, Galway, etc.
This Bill will not solve the problems of the fishing industry, and I know the Minister is working towards dealing with quota issues, etc., but it will at least eliminate the criminal nature of small technical fishing infractions involving small vessels. In opposition, a Fine Gael Deputy, Mr. Jim O'Keeffe, who is no longer a Member of the Dáil, brought forward a very similar Bill, although I am proposing that we go further, reduce fines and introduce an appeals mechanism in order to satisfy the constitutional requirement as highlighted by the Oireachtas Library and Research Service.
I hope the Minister will this evening accept what we are trying to achieve in the Bill and at least come half way to meet us. As I stated on the Order of Business this morning when we discussed the quota issues, we all need to wear the green jersey over the next two to three weeks, leaving party politics outside the room. We must give the Minister, his officials and the Department our full support, and I hope the Minister will return the favour tonight by at least acknowledging what we are trying to achieve. We are willing to work with him in every manner in trying to ensure we can support the smaller fishing vessels, and particularly those 75% or 80% of vessels under 15 m in length. That would be a step in the right direction for the industry. Céad míle maith aige and I appreciate the Minister being here.

I take great pleasure in seconding Senator Ó Domhnaill's Bill during Private Members' time. It is an old issue with me and I could write a thesis on the Sea-Fisheries and Maritime Jurisdiction Act 2006. Some of the effects and implementation of that Bill have hauntedme since that time, although on Committee Stage we managed to make 113 amendments. Some of those were technical or Government amendments. There was widespread revolt against the measures that, as Senator Ó Domhnaill termed it, criminalised fishermen for relatively small offences. To be technically correct, the Bill was not the first to introduce criminal sanctions, as the Fisheries (Consolidation) Bill 1959 had criminal sanctions for various offences.

To say that there would never be criminal sanctions for serious fishing breaches would be a joke. We will never have that utopian situation. We have a problem out there and while this Bill is not a panacea for all of the ills we face in the fishing industry, it will address some of them. The former Minister gave me and others who are no longer Members of this House, a clear commitment that after three years, if certain aspects of the Bill were not working or were too severe and draconian, he would revisit it. That did not happen. The Fine Gael Party at that time gave clear commitments, particularly to the lobbyists from coastal communities that, once in office, it would revoke the entire Bill. I do not think that is possible. However, it is possible to ameliorate some of the severe measures in the legislation and to ensure that relatively minor offences are dealt with fairly. Indeed, at the time of the debate on the legislation, on the suggestion of myself and others, the idea of the District Court dealing with minor offences was introduced.

I have been involved with the fishing industry since I was a garsún and my family has been involved all the way back to my great, great grandfather's time. I have never seen such a droch mheas or lack of belief in the future of the fishing industry. I am not being political in saying this or criticising the Minister. There is a general level of despair which is growing, mainly because of the issue of quotas, which I will not go into now because the Leader has promised a debate on it before Christmas. There are grave concerns about the future for small, inshore fishermen and the damage that SACs will do to them. There is a lack of trust among fishing organisations in politicians generally, Ministers in particular, including the current Minister, and the Department. That must be healed if at all possible. If the Sea-Fisheries Protection Authority really wanted to implement the full letter of the law of this Bill and of the legislation that we as Oireachtas Members hold guard over, every fishing vessel from Killybegs to Kerry, Cork and around to Howth would be tied up. Fishermen acknowledge that and they recognise that the SFPA operates as a "good cop" in as far as it can. However, the situation is very serious.

The Minister has to go to Europe again in December to negotiate on the quotas. It is like the three-card trick - we win one, we lose one and we see what Europe will give us. The fishing industry is supporting approximately 12,000 jobs, directly and indirectly. There was a plan in the 1990s to develop our aquaculture industry with a view to producing 25,000 tonnes per annum. I am not going to dwell on that tonight because it is another day's work. There is absolutely no doubt that some of the measures in the 2006 Act must be revisited. I hope that when the Minister responds to this debate, he will at least accept the thrust and principle of this Bill.

The easiest thing for me, having lost my Dáil seat in 2007 and having been hammered by the fishing communities of West Cork, would be to fold my tent up and move on but that is not the way I should represent the people of coastal communities. I have met representatives of many fishing organisations while touring the country with Senator Ó Domhnaill, visiting Donegal, Ros An Mhíl, Waterford and Cork, among other places. The absolute frustration and lack of belief in a future for the fishing industry we encountered is very concerning. This is true of the big-boat fishermen, the inshore fishermen and those operating the processing factories. At one stage, there were 11 or 12 processing factories along our coast but now there are only four. I would don the green jersey with the Minister in the context of extracting better quotas from Europe. I also believe that we would enhance our exports of fish by having value-added processing onshore, thus creating more jobs and making the industry viable.

Fishermen get extremely frustrated when they are tied up in port - as happened on Kilmore Quay recently, with several boats tied up - while at the same time off our coastline foreign vessels are catching species of fish which Irish boats are prohibited from catching, or for which they have severely restricted quotas. That is a very serious issue although I do not wish to dwell on it now.

I support what Senator Ó Domhnaill has said in this debate. I will not repeat ---

The Senator does not have time to repeat it. His time is up.

The main message for the Minister tonight is that we are putting this Bill forward in good faith and are hoping to persuade him that a review of the 2006 Act is necessary. Such a review is overdue and I look forward to the Minister's response in that regard. There are serious problems facing the fishing industry which are festering and growing. They must be addressed at some stage. Now is not the time for those issues but I look forward to a comprehensive debate on them soon, as the Leader has promised. This Chamber, now that it has been saved, should be used more frequently. Debates should not be pushed out to the end of the year. I asked several times earlier this year for a debate on these issues but because of the Irish Presidency, I bowed to the fact that the Minister was extremely busy. I now hope that we will have a number of debates on key fisheries issues before Christmas or, failing that, early in the new year. That can only foster better relationships between fishermen and the Minister, all other politicians and the Department, by proving that we are all trying to do our best for the guys who are out there, working hard to make a living in very difficult circumstances.

I accept that Senators from all sides of the House try to do their best for fishermen. However, I cannot accept the fact that we have Fianna Fáil Members here trying to change a law which their party introduced when in government. They criminalised fishermen themselves; they have recognised that fact and now that they are in opposition, they want to change their own legislation. I respect them for doing that. They have admitted that their own Minister made a mistake but they had to vote with their own Minister, as we do with ours. Indeed, we have had to support some difficult measures in recent years. The fact remains that Fianna Fáil is the party that criminalised fishermen for the offences that are mentioned in this Bill. Senators Ó Domhnaill and O'Donovan have said that they have visited the fishing communities all over the country and I believe that is why this Bill has been put forward. Those communities are livid because of the 2006 Act.

I am grateful for the opportunity to speak on this Bill, coming as I do from the south east of Ireland, where we have quite a sizeable fishing industry. I am aware of the significance of the fishery regulations and the impact they can have on the fishing communities all over the country. As Senator Ó Domhnaill rightly said, when in opposition in 2010, Fine Gael brought forward a Bill which proposed the introduction of administrative sanctions for minor fisheries offences. This Bill was rejected by the then Government, led by Fianna Fáil, on the grounds that it was unconstitutional and undesirable. That Bill has been referred to today as if it represented manna from Heaven. However, the programme for Government contains a commitment that this Government will "replace the criminal sanctions system for minor fisheries offences with an administrative sanction system to bring Ireland in line with other European jurisdictions". As I understand it, the Minister is preparing a Bill to amend the Sea-Fisheries and Maritime Jurisdiction Act of 2006.

This will address the programme for Government commitment. Government Senators oppose the Bill on the basis that it contains provisions which are considered flawed. The Bill provides any offence may be subject to a fix-penalty notice with a fine set at €400 for the first offence and €800 for the second. The Bill the Minister intends to bring forward will contain an amendment for the system of fixed-penalty notices for minor fishery offences. It will also propose that the on-the-spot fines will be used in place of the current criminal process for fisheries offences, both small and large, and sets out fines at low levels. This Private Members’ Bill is not confined to the minor offences nor does it distinguish between offences that ought to be tried and those which might be dealt with summarily. The fixed penalties set out in the Bill do not meet the criteria set out by the EU as they are disproportionate and dissuasive. There is a real danger that this Bill could create a lax fisheries control regime for both Irish and foreign vessels operating in our waters. This would be damaging to our fishing industry which is entirely dependent on sustainably managed fish stocks. The Bill would also infringe the rules of the Common Fisheries Policy and see the European Commission re-open an infringement case against the State as it did in 2003 and 2005 to address control failures.

The Minister is amenable to introducing his own legislation to address this Private Members’ Bill’s objective. Being a politician, however, I cannot resist pointing out that Fianna Fáil is trying to rectify legislation that it introduced which criminalised fishermen.

I welcome the Minister to the Chamber. While I am not opposed to the general objectives and thrust of this Bill, the detail is another matter. Seafood exports are worth €415 million to the economy, a little known fact among the public. Senator Ó Domhnaill has drawn our attention to the fact that 11,600 people are directly employed in this sector. Many of the areas where these jobs are located do not have an extensive employment base outside of this industry. Senator O’Donovan pointed to the frustration among fishermen disqualified from fishing due to quotas watching foreign vessels on the horizon fishing those very stocks. Illegal overfishing is not victimless as it impacts on fishing communities, law-abiding fishermen and future quotas. It is right and proper that there is a robust system of penalties in this regard.

This Private Members’ Bill proposes criminal sanctions on foreign fishing vessels which enter exclusive Irish fishing areas and administrative sanctions for first and second fisheries offences by way of prescribed notice as opposed to criminal sanctions. As the Leader pointed out, in 2006 the then Minister, Noel Dempsey, from that renowned fishing port of Trim, County Meath, saw fit to introduce legislation in this area against the advice of the then Opposition. Now Fianna Fáil wants to reverse his legislation.

Due process in criminal proceedings takes a long time. This adds to the frustration of those who believe they are abiding strictly to the law. This Private Members’ Bill proposes making dealings with minor fisheries infringements much quicker. While I welcome this general thrust, the Minister cannot accept the Bill’s details. He has committed to bringing forward separate legislation which will address the commitment in the programme of Government for the introduction of an administrative system of sanctions in this area. It is ironic to point out, however, when in opposition, Fine Gael proposed a similar Bill to this which the Labour Party supported but it was rejected by the then Fianna Fáil Government.

The fixed-penalty notice provisions in this Private Members’ Bill are not necessarily confined to minor offences which is contrary to the objectives of the Common Fisheries Policy. Penalties must be proportionate, effective and, most importantly, dissuasive. A Supreme Court ruling last month confirmed that penalties must be sufficiently severe to comply with EU regulations. The Bill’s proposed on-the-spot fines may not comply with the constitutional mandate that all offences should be tried by a court of law. The Minister has proposed he will deal with this when he introduces similar legislation.

We thank the Opposition for belatedly introducing this Bill. The Minister will not accept it in its current form but will introduce similar legislation in this regard.

Céad fáilte roimh an Aire. Is díospóireacht iontach tábhachtach í seo agus is maith an rud go bhfuil an Bille seo tugtha chun cinn ag Seanadóir Ó Domhnaill agus Seanadóir O'Donovan. Ach mar adúirt an Ceannaire, an Seanadóir Cummins, tá sé cineál áiféiseach go bhfuil Fianna Fáil ag tabhairt Bille chun cinn agus go bhfuil coinsias faighte acu anois agus iad in san bhFreasúra, tar éis gur iad a thug isteach an Bille a rinne corpáin de na hiascairí i 2006.

It is uncanny to see Fianna Fáil’s new-found conscience now that it is in opposition when its Minister, Noel Dempsey, originally criminalised fishermen.

It is opportunism of the highest degree that it decided to organise public meetings with fishermen around the State to bring this forward when it is in opposition when it should have done the right thing when in government. The Bill must be taken in its broader aspect and I know the Minister's bona fides on this issue, that he has done his best on the European quota scenario in Ireland. However, we must go back to 1973 when we started in the quota system to see how the Irish fishing fleet has been decimated, particularly the smaller vessels along the western coast. In my home area of Rossaveal we used to have a thriving fishing community with lots of boats fishing out of Rossaveal and the Aran Islands and smaller ports. Fish factories employed up to 200 or 300 people. Those fish factories are very seasonal now and employ very few people.

We need to take a broader view on where we are going with the fishing industry. There has been a major imbalance in how the quota has been shared out nationally. That must be laid at the door of the previous Fianna Fáil Administrations which had scope to change how the quotas were divided among the bigger and smaller players in the industry. Many previous Ministers could have done much to revitalise the fishing industry along the western, south-western and south-eastern coasts by having a better division of the quota which would have given the smaller polyvalent vessels a better chance to take in and land more fish that would have been processed here on the island of Ireland.

We all know we have an ageing population of fishermen in Ireland. Young people are not being drawn into the industry because it is so hard to make a living and is very dangerous. Sinn Féin supports fishermen and their families in making a decent livelihood for themselves. That is where the debate should be focused. We do not support the Private Members' motion because it is blatant political opportunism from Fianna Fáil. The real issue for fishermen is quotas and the dumping of millions of tonnes of perfectly healthy fish into the sea. This is a ludicrous practice which should have ended years ago and we welcome the fact that there have been moves at a European level to tackle this, although it is taking a very long time.

Sinn Féin welcomes the EU's commitment that the practice is to end within six years. It was ludicrous to allow millions of tonnes of fish to be dumped back into the sea because of EU bureaucracy while Irish fishermen were coming under more pressure from the EU because of low fish stocks. It is imperative that the stated six-year target is met and preferable that the practice be phased out before then. The end of this practice is crucial for the survival of European fish stocks and the Irish fishing fleet. Steps must be taken to ensure there is effective policing of this issue and the illegal practices of non-Irish fleets in Irish waters.

The recent briefing, Unknown Waters, by the New Economics Foundation, NEF, makes a case for making the industry more sustainable, profitable and capable of promoting employment. It said:

We know nothing about the health of half of our fish stocks. Lax government controls and enforcement means 30% to 40% of the fish we land comes from illegal, unreported or unregulated sources.

NEF and others argue that this issue can be addressed by assembling adequate data on fish stock and the proper enforcement of laws that prevent over-fishing.

We forthrightly opposed the imposition of criminal sanctions in the 2006 Bill. They were wrong then and are wrong now. The Government promised, in opposition, to get rid of these criminal sanctions and replace them with administrative sanctions. I welcome the commitment that the Minister is examining that and will bring forward a Bill to that end, but it is taking a long time and the fishermen need swifter action. There will be legacy issues of a number of the cases that are in court and must be dealt with, people who have, under the present regime, been hauled before the courts because of minor administrative infringements on the regulations. One of the most significant issues we have with the Bill is that there is no recourse to the courts for an appeal and that is a weakness, which is why we will not support it. We need to change the criminalisation of fishermen.

Instead of looking at the fishing industry as a negative, we need to examine what we can do to revitalise coastal communities and make our ports viable again. The Oireachtas sub-committee is making recommendations such as having a specific heritage licence for the smaller traditional vessels which would allow them to fish free of quota. We have mentioned that before and it should be examined. The levels of quota they would use would be relatively small but it would revitalise the industry and the communities where those people live.

I welcome the Minister to the House to debate this very important issue pertaining to the Irish fishing industry. Ireland has 7,500 km of clean coastline which contributes €700 million in national income and supports 12,000 local jobs. It is vitally important that this resource be protected when necessary from abuse by a minority. The programme for Government includes a commitment to introduce a system of fixed penalty notices for minor fishery offences. This will bring Ireland into line with other European countries.

I commend my colleagues on the other side of the House on taking the initiative and publishing their own Bill but agree with the Minister that the sanctions contained therein do not present a sufficient deterrent. The effectiveness of these deterrents is particularly important as illegal fishing can impinge upon those working in the sector, and may have long lasting consequences for fishing stocks and the communities which are dependent on all operators acting fairly. By moving to replace criminal sanctions with an administrative sanction scheme I anticipate that, similar to road traffic offences, those working in the industry will have a very clear understanding of the range of offences and the consequences of any infringements. Such a system will take time and consideration before it can be put in place.

I agree with the Minister that any sanctions must be capable of acting as a real deterrent. This is particularly important where an income or a profit may be likely to derive from an illegal act. The quotas which apply have been hard won by the Minister and his Department to benefit the whole of the fishing community. With the demand for quality seafood products increasing it is important that produce from Ireland remains on the shelves. In previous years Ireland was made to pay, by means of annual deductions from the national quota, for undeclared landings of mackerel. A recurrence in a buoyant market could be detrimental to the fishing sector.

The Bill removes the automatic confiscation of fishing gear on conviction. The removal of such a provision would further diminish the effectiveness of the sanctions against illegal fishing. It is important to remember that this sanction is only applicable upon conviction of a criminal offence. This sanction is not overly harsh. In many professions, similar sanctions restraining individuals are applied. For instance if a solicitor contravenes the professional code, his or her practising certificates may be withdrawn. If an individual chooses to jeopardise the livelihood of others and the sustainability of fishing stocks, real and effective sanctions are the only means of protecting this resource for everyone else.

I thank the Minister for coming to the House and acknowledge the positive work his Department has been doing in this area, particularly for his part in bringing all parties to the point of agreeing to the phased introduction of a ban on discards from January 2014 and negotiations on quotas. It is vital to support the smaller fishermen along our coastline. I welcome the fact that the Minister is working on reforming the penalties system and look forward to those proposals coming before the House in due course.

I will be brief. I want to express my solidarity with my colleagues, Senators Ó Domhnaill and O'Donovan on the legislation as it is a major irritant to the fishing industry, particularly because owners of small vessels have been equated with larger sea going vessels in the context of criminals sanctions imposed. I know that arguments have already been made. Section 28 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 provides for stiff maximum penalties. The fines are extremely onerous, up to €100,000 for boats greater than 18 m in length. The current system seems unfair and inequitable.

The Bill recognises that serious quota breaches and environmental infringements require the full rigour of fisheries enforcement. Ireland, as I am sure the Minister is already aware, is the only major maritime jurisdiction in Europe to retain an exclusive licence on criminal sanctions to control sea-fisheries offences. Why is Ireland the only major maritime jurisdiction to retain an exclusive reliance on criminal sanctions? I am sure the Minister will address my question in his response.

Northern Ireland, England, Scotland and Wales have all introduced a fixed penalties notice regime which dates back to 2008. As the Minister will be aware, the purpose of the Bill is to introduce a system of administrative sanctions to provide efficient punishments of minor offences, benefiting both the State and fishermen. Therefore, the Bill aims to complement, through the fixed penalty notice system, rather than replace the system provided for the 2006 Act retaining the option of a hearing in court. We believe that the Bill satisfies the European Commission's position that member states are again asked to ensure a system of sanctions that has a deterrent effect and to amend, as appropriate, their legislation so that sanctions have a dissuasive effect. We argue that the current regime does not lead to sanctions having a dissuasive effect and is an unfair and inequitable imposition, particularly on the small operators in the fishing industry. Go raibh míle maith agat.

I call Senator Conway, he has six minutes.

I welcome the Minister to the House. He is doing a phenomenal job trying to increase employment in the fishing industry and engaging with Europe as proven by his successful negotiations, on our behalf, last December. I have no doubt that he will return with good results this December. We are all concerned about the potential cut in quotas and wish him well in his endeavour.

I thank the Opposition for tabling the Bill and bringing the matter to the attention of the House. The Minister is well aware of the issues. It is worth pointing out again, although I do not like to revisit the past, that the existing sanctions were introduced by the former Deputy Noel Dempsey when he was a Minister. The legislation tries to tidy up and recognises, in the House, the damage that has been done and that fishermen were criminalised. The Government is committed to tidying up the matter. The Minister is committed to sorting out the problem and will bring forward legislation.

I do not blame the Opposition for using Private Members' time to highlight the issue because I have no doubt that they are extremely embarrassed by their past actions while in government. I do not blame the Senators but I blame their party and its leadership who facilitated the sanctions.

I agree with a lot of the sentiments expressed by all Members, including Members across the floor, particularly on processing issues. I would like to see a lot more jobs in the fish processing sector. We could create thousands of jobs if we processed the fish caught off our shores and exported a somewhat finished product as opposed to just exporting the fish.

The Minister comes from an area that has a proud fishing tradition and I refer to Crosshaven and all along the Cork coast. I have no doubt that he is committed to maximising the return from fish caught off our shores. I am sure that he will correct me if I am wrong but I think just over 1% GDP is generated by fishing. That figure should be a lot higher for an island. Fish is one of our natural resources that needs to be maximised. Successive Governments have failed to invest in the fishing industry or actively support job creation initiatives. I would go as far as to say that we need a tax incentive scheme. The term "tax incentive scheme" are dirty words to some because of what went on for the 14 years when Fianna Fáil was in government but they should not be. We should examine the introduction of tax incentives in order to encourage proper processing and promote fish related industries. It would mean that fish caught off our shores could be brought to our shores for processing as opposed to travelling to France and other areas.

Ireland must play to its strengths in agriculture, the fishing industry, dairy exports and so on. The fish sector merits a significant concentration, investment and, if needed, tax breaks to increase the 1% GDP to 3% GDP. Thousands of jobs could be created if we go about it right. I wish the Minister well in his endeavours, particularly in the negotiations due to take place next month.

I thank the Senator and I call the Minister to respond to the debate.

I thank Members for the opportunity to attend this evening. I shall make a couple of general points in response to some of the comments before addressing the Bill itself.

I shall commence by referring to the fisherman missing off the south-east coast, off Kilmore Quay. His name is Mr. Patrick Barry, a lobster fisherman and father. The search continues and our thoughts are with his family and the rescue services trying to locate him. Unfortunately, it is another difficult situation for a fishing family.

I wish to counteract some of the pessimistic comments made about the future of the fishing industry that I heard here this evening. The end of the year is always a difficult time, particularly for the white fish or demersal fleet. Every December we negotiate quotas and then we work together with the industry to decide how to use the quota on a monthly basis throughout the year. Often times we use a lot of quota earlier in the year and run out of it towards the end of the year. However, the industry makes the decisions on how to use the quota allocation throughout the year. December is always a difficult month in terms of fishing quota because we will have run out of some of the total allowable catch quota and fish stocks. At this time of year the fishing industry is always frustrated and we are feeling it at the moment. It is important that we look at quotas in the round. Last year seafood exports from Ireland increased by 17% in value. That is a much more impressive growth than what has happened in the dairy and beef sectors or any other sector in the food industry. It increased by 17% in one year.

This year and last year the raw value of quota that was negotiated for Ireland surpassed the €200 million mark. We have never reached that level before. We face challenges in the seafood and fisheries sector but we are doing very positive things at present. The greatest frustration for fishermen is relative stability and who gets a percentage of available quota in waters that Ireland has the responsibility for. Of course we want to take some quota from Spanish, French, Dutch and British interests, and others. Everybody who understands the system knows that relative stability is not going to change anytime soon unless we can get a majority of countries and Ministers in the European Union to support change. Sadly, that is not likely to happen. Therefore, we must focus on what we can change for the fishing industry and we are doing that in a number of areas. Let me give the example of a new quota species. Ireland has two thirds of Europe's quota in boarfish which I hope will be dramatically increased in December. We secured a significant portion of the quota and are working to add to its significant value.

Our quota currently is about 60,000 tonnes. In the past, all of that boarfish would have either been dumped over the side or gone into fishmeal, at a value of €70 or €80 a tonne. We are now developing markets that can secure €400, €500 and €600 a tonne for that product. There are exciting and interesting things happening in fishing.

We have also invested heavily in terms of adding value. The reason for the increased value for seafood exports in Ireland is because we are adding more value to fish that are caught in waters here in Ireland through grading, processing, packaging and so on before we export. The processing sector is where significant numbers of jobs have been created in towns like Killybegs and others.

We are also encouraging more foreign landings into Ireland, which I know is a frustration for some fishermen, to allow us grade and process those fish here. The blue whiting story, for example, off the north-west coast has hugely exciting potential which is delivering much capital investment in terms of processing facilities for blue whiting. That is very valuable to our fishing industry. Obviously, I would like to see Irish boats catching more fish within the rules and in a sustainable way but the second best option, if we cannot catch the fish, is that boats that are catching fish that are not under Irish flags would land it into Irish ports where we will process and grade their fish for them, and create employment doing that. That is happening in an exciting way.

There are positive developments in this sector. There is a future, and what is probably the most radical Common Fisheries Policy that we have seen in 30 years has been negotiated and agreed under the Irish Presidency. Finally, we have a plan to rid ourselves of the scourge of the discarding of fish. About 1.2 million tonnes of fish is caught in Irish waters and landed to market. There is probably another 400,000 tonnes of fish caught in Irish waters and dumped over the side dead. We will end that. We are changing the quota system now from a landed catch quota to a catch quota and there will be an obligation to land everything one catches, with some flexibilities and exceptions that can allow management systems deliver that on board fishing trawlers.

There is a good deal happening in seafood, processing, adding value, packaging and grading. We are doing everything we can to help the fishing industry, in terms of the catch industry, to secure as much fish as they can within sustainable rules. If I have credible science that suggests we have to ease off on a stock or we will lose that stock, it would be irresponsible of me to ignore that, and I will not ignore it even if we have to make unpopular decisions in the short term to build up stocks in the medium and long term.

In the past two years with help from the Marine Institute, BIM and the rest of the team that negotiates on behalf of the industry we have done a good job in terms of quota allocation on the basis of science. We got a much better outcome than many people predicted going into those negotiations. This year, however, the science is very negative, particularly around the whitefish and demersal sector. There are very worrying recommendations in terms of reductions in stocks such as haddock in the Celtic Sea and prawns in the Irish Sea. We have to compile a scientific argument if we are to change those recommendations. I will do everything I can to try to do that.

On a more personal note, since the day I was elected to the Dáil I have wanted to be a Minister for the marine because of my background and how I have grown up. The idea that I am somehow disconnected from the fishing industry is something I hope is not the case. If fishermen feel that way, certainly I regret that is the case. I speak to my colleagues in the European Union about this on a fairly regular basis. I do not know any other senior Minister who sits around the Cabinet table in the European Union that gives the kind of access I give here to the fishing industry and fishing organisations who meet me and contact me by telephone on a regular basis. In fact, on the way here I got a text from the head of one of the fishing organisations updating me on mackerel and relationships with Norway, the European Commission and so on. If there is truth in what Senator Denis O'Donovan has said I regret that and will try to change it, but I hope that is not the case.

In terms of the Bill, I appreciate the work of Senator Denis O'Donovan and Senator Brian Ó Domhnaill in drafting this legislation and accept that it was done with a view to introducing an improved regime for the appropriate control of fishing activity. I believe that all in this House want to see a strong and vibrant fishing industry that supports employment in our fishing fleet, fish processing and ancillary activities in our coastal communities. I also consider that there is general support in the House for the introduction of a simplified system of fines to deal with minor fishery offences. When in opposition, Fine Gael brought forward its own draft of such a Bill and today we have a Bill brought forward by Fianna Fáil.

Since my appointment as Minister for Agriculture, Food and the Marine I have sought to develop a good understanding of the issues and constraints that have impacted on setting fines for fishery offences. I have held detailed discussions with the Attorney General on how a system that gives the option of avoiding a court hearing may be put in place for minor fishery offences. I am now working with the Attorney General on legal issues to enable the preparation of a Bill amending the Sea-Fisheries and Maritime Jurisdiction Act 2006 to introduce a system of fixed penalty notices for minor fishery offences. This proposal follows the commitment in the programme for Government that criminal sanctions for minor fisheries offences would be replaced with an administrative sanction scheme. Following advice from the Office of the Attorney General to the effect that an administrative sanction scheme would not be appropriate, I am now working to introduce a system of fixed penalty notices in respect of minor fisheries offences which, in fairness, is what the Fianna Fáil Bill is seeking. The Attorney General has given her support for this approach and is the first to do that for some time. I am awaiting legal advices on the technical content of such legislation. The intention is that fishermen who have committed minor fisheries offences will have the option of avoiding a criminal conviction.

The scheme I am working to develop is broadly similar to the approach set out in the Bill before the House. However, the complications with the Bill under discussion today, and indeed with the previous Fine Gael Bill, relate to ensuring that any new regime does not undermine effective enforcement of fisheries law, is compliant with the provisions of the EU control regulation and does not breach the provisions of the Constitution, particularly Article 38 and Article 40.3.2°.

It is important to understand that any action the State can take is constrained by the obligation to act within the rules of the Common Fisheries Policy and the Constitution. The Common Fisheries Policy is applicable across all member states and determines that sanctions must be set at a deterrent level which must be effective, proportionate and dissuasive. It is, in any case, in the interests of our own fishing industry that effective controls are in place. To do otherwise would see the waters under Irish control become a soft target for inappropriate fishing.

I am not in a position to support the draft Bill being introduced here today for the reasons I will outline. I want to make clear, however, that I do intend to bring forward new legislative proposals that introduce the option of a fixed penalty notice for minor fishery offences and, hopefully, we can do that before Easter.

In terms of this Bill, there are significant problems with the approach proposed that undermine the option of accepting it here today with a view to introducing amendments as it progresses. The main issues of concern are the following. Section 3 of the Bill proposes the introduction of a fixed penalty notices for a "relevant offence". The offences are not specified and it is for the Minister to identify and prescribe those offences in a table. There is a fixed penalty notice of €400 for a first offence or €800 for a second offence, both are maximum, to be paid within 28 days from the date of the notice. A third or subsequent offence "shall" be dealt with by way of prosecution under sections 38 and 39 of the 2006 Act. Section 39 of the 2006 Act deals with prosecutions by the DPP, in other words, indictable offences.

Section 38 deals with summary prosecutions by the Minister of offences other than those specified in a table. This suggests indictable offences are intended to be dealt with in the first instance by way of a fixed penalty notice for a first and-or second offence. Further, as these offences are to be prescribed in a table, they cannot be dealt with under section 38 which is confined to offences in a section of the Bill other than those specified in a table. Section 3(6)(c) clearly envisages the issuing of a fixed penalty notice "for multiple fisheries offences" arising from the same incident. This approach has a high risk to fall foul of the requirements of EU law.

The appeal system is set out in detail. The Bill provides for the appointment of an appeals committee in line with procedures adopted by the Minister after consultation with various semi-State bodies and industry, including the Killybegs Fishermen's Organisation, the Irish South and West Fishermen's Organisation and the Inshore Fishermen's Organisation. When an appeal is determined by the appeals committee, that determination is to be sent to the Minister with its reasons. If the appeals committee finds in favour of the appellant, it shall make a recommendation to the Minister as to the action to be taken in relation to the notice. The Minister can accept or reject the recommendation and while the Minister's decision is final, the Minister may consult various bodies, including the fish producer organisations to assist with his or her deliberations.

The approach taken in the Bill is that fishery offences are criminal offences, but these are dealt with through an administrative procedure. This approach would not conform to the provisions of the Constitution, particularly Article 38 and Article 40.3.2o. The reason for this is that the provisions in the Bill exclude the courts from dealing with these offences. The Minister is the prosecutor and judge. Further, the appeals system is not through a court of law but a committee. The system envisaged is purely an administrative one in which the Minister is the prosecutor, judge and jury.

In terms of the Bill, it is proposed to introduce an amendment to remove the forfeiture of gear as a consequence of conviction. The amendment also removes the forfeiture provision in respect of fish found in any other place other than the fishing boat. In simple terms, if illegally caught fish are found in a cold store on land or being transported in a truck, they could not be subject to forfeiture. The analogy is that a criminal involved in a bank robbery could only have the money stolen confiscated when the money is found in his or her car. The Irish courts have determined that the requirement for forfeiture is a proportionate response to Ireland's obligations under EU law in the enforcement of the Common Fisheries Policy. The rules of the Common Fisheries Policy require that the penalties be effective and dissuasive, in addition to being proportionate. The removal of the requirement for the forfeiture of fishing gear and restricting forfeiture of fish to those on board a vessel would significantly reduce the penalties imposed for a conviction for a serious fishery offence. That is not the direction in which we need to go.

Instead of effectively addressing illegal fishing, the Bill risks promoting a culture of non-compliance where those detected would be confident that penalties imposed would be lower than the economic benefit from the illegal fish caught during the fishing trip. In its current form, the Bill would remove the current deterrent arrangements in place that protect against illegal fishing and risk promoting increased illegal landings and other unacceptable fishing practices by fishing vessels from all member states and third countries and any such Irish vessel operating in the rich fishing grounds inside Ireland's 200 mile zone. I do not believe that this would be in the interests of the vast majority of law-abiding fishermen, both Irish and foreign, and it would make illegal fishing a more attractive option for operators around our coast, many of whom have no association or links with our fishing communities. I am confident that it is also not the intention of the Senators who have proposed the Bill to achieve such an outcome. I believe our ambition - that of those proposing the Bill and that of those in my Department who are going to bring forward a new Bill - is similar. My objective is to give fishermen who are responsible for a minor fishery offence the option to pay a reasonable fine, proportionate to the offence, and in that way avoid a criminal conviction. Any such system may only legally be applied to minor fishery offences and should only be considered for such offences if we are serious about protecting the rich fishing grounds in our 200 mile zone which we control. Most importantly, strong dissuasive sanctions should be applied to operators responsible for serious fishery offences, otherwise we are at nothing. If we do not protect the stock into the future, we will continue to see a shrinking fishing fleet and fewer people will enter the industry.

The law is and has to be applied equally to the thousands of vessels which operate in our waters, irrespective of the flag member state of the vessel. The existing legalisation provides for graduated maximum penalties based on vessel size and the forfeiture of catch and gear. These sanctions apply equally to Irish, Spanish, French, Dutch, British or any other operator found to have infringed the rules in Irish waters. They must and will remain for serious offences.

Much work has been carried out in recent years at EU level in the area of control and enforcement of fisheries. Last year Ireland implemented the provisions of Council Regulation 1224/2009 - the control instrument which provides for an effective system of control, inspection and enforcement to ensure compliance with the rules of the Common Fisheries Policy. In line with Ireland's priorities, these new regulations promote a level playing field in controls across the European Union. There was a view in the past and there is a view to a certain extent today among many in the Irish fishing fleet that the controls are not applied evenly, but I can assure Members that we are doing everything we can - I believe this is shown by the data - to provide a level playing field in enforcing the rules, irrespective of whether the operator is Spanish, Dutch, British or Irish. This has led to the introduction of the electronic reporting system, as well as legislating for the weighing of fishery products, certification and verification of engine power, landing declarations, rules for sales notes and so on. The EU regulations require financial sanctions to be at least five times the value of the fisheries products obtained in the committing of a serious infringement and at least eight times the value in the case of repeated serious infringements. This proportionality requirement means that a fixed penalty notice would not meet EU requirements for serious infringements unless we were proposing to enforce massive fines, which clearly I do not believe is on the table.

The EU control regulation requires member states to implement a points system for serious offences. The number of points that must be applied to the licence holder of a fishing vessel for each serious offence is set down and when the accumulated points reach a certain level, the licence for the fishing vessel is suspended or may potentially be permanently revoked. I am finalising the arrangements for the introduction of the EU requirement for licence holders and have discussed them with the fishing industry. The EU control regulation requires that a similar system be introduced in each member state for skippers of fishing vessels. The regulation leaves it to member states to devise the scheme for skippers and, accordingly, I intend to bring forward legislation to implement this requirement. I plan to combine legislation to deliver on this EU requirement with legislation to implement an on-the-spot fine system for minor fishery offences.

The proposed legislation involving on-the-spot fines will apply only to minor fishery offences. I hope we can secure support for such a system across party lines in the House because it is the right thing to do. I would also like to secure industry support for this form of penalty for minor offences. I have advised the industry, in general terms, of my intentions and so far have received a positive response. I have asked my Department, in working with the Office of the Attorney General, to expedite the preparation of draft legislation to deliver on this approach. It is my intention that the Bill will be prepared as soon as possible and following the receipt of detailed advice from the Attorney General. I expect that the Bill will identify a finite range of fishery offences to which penalty notices for on-the-spot fines can be applied, having regard to such criteria as the benefit to the offender and repetition of the offence.

I hope that, in the interest of trying to progress this issue politically, Fianna Fáil Members will withdraw their Bill knowing that a Bill will be introduced within the next few months, which they will be able to scrutinise. I have explained, probably in too much detail, why I cannot support the current legislation. It is not legally sound, although I support the sentiment behind it. We are working with the Attorney General to come up with legislation that is legally sound and that can ensure fishermen are not turned into criminals for minor fisheries offences while, at the same time, ensuring we have appropriate penalties for crimes in order that we have a level playing field and fishermen respect the rules under the new Common Fisheries Policy. If we do not have that, we will have a free for all and nobody in the fishing industry wants that because as happened to cod in the Irish Sea, we will overfish it and spend decades trying to replenish stocks.

We have a good Common Fisheries Policy now which will be a challenge to implement but which will produce exciting results for the industry. We will introduce, as we have committed to in the programme for Government, a system of fixed penalty notices for minor offences and I hope to introduce that legislation before Easter but certainly before the summer. It is my intention to do so before Easter if I can.

I thank all the Senators who contributed to the debate. The fishing industry at times is not overly represented in either House and by bringing the Bill forward, we are trying to highlight an anomaly that is undermining the industry and that needs to be rectified and legally clarified. I fully acknowledge, as do my colleagues, that most sections in the 2006 legislation were accepted by the Labour Party and Fine Gael but they opposed the criminal provisions in it. Senator O'Donovan introduced many amendments to the legislation but, unfortunately, the then Minister with the full backing of his civil servants was unwilling to change the criminal sanctions. Politically, it was the wrong thing to do. I blamed the former Minister, Noel Dempsey, at the time and I said it publicly on many occasions. It was wrong then and it is wrong now but we are in opposition.

I was asked by Senator O'Donovan to examine this issue as my party's Seanad spokesperson on agriculture, food and the marine. This was my first opportunity to do so. We consulted industry stakeholders and we introduced the Bill. We have gone further than the Private Members' legislation introduced by Fine Gael in 2009 by providing for an appeals system. The Bill may not be perfect and there may be constitutional issues that need to be addressed. However, we do not have civil servants or the advice of the Attorney General to guide us when drafting legislation.

I acknowledge the Minister's constructive contribution and his acknowledgement that there is a need to do something about this. For example, the issue of a small fishing trawler facing the possibility of a criminal sanction for a minor offence while factory ships overfish needs to be addressed. During our discussions, we met young fishermen who have left the sector because of the threat of criminal sanctions under this legislation. We want to encourage young people into the industry and none of them should be faced with criminal sanction or be forced to leave the industry because of this.

I thank the Minister for his constructive response. I did not expect him to accept the Bill but I am grateful that at least he accepts the thrust of the legislation. I very much look forward to the Government Bill and we will scrutinise it carefully because that is our job. As the Minister mentioned, we did not highlight the specific measures to be covered under the penalty points system because that should be left to the discretion of the Minister of the day and his or her officials rather than a party in opposition. It would be wrong for us to do that and that is why we left it up to the Minister in the Bill. It is only right that he or she would draw up those tables. It is up to him or her or the Department to decide by way of regulation or otherwise the severity of sanctions based on a penalty points system. I look forward to this provision in the Government Bill.

Given the Minister's acceptance of where we are coming from, we will not divide the House on this Bill. In opposition, we have a responsibility to scrutinise but we also have an obligation to be responsible and to try to work with the Government and merge into one lane to benefit an industry. That is what we are trying to do. It is not right to punish us as individuals for what happened in 2006. I was not a Member of the House and Senator O'Donovan tried his best to amend the legislation at the time. Those who were responsible may not be in either House now. It would be grossly wrong of us not to do anything about it because of what we have said publicly and what was said in 2006. This is a genuine effort to try to do something about it. We will work with the Minister and if his Bill embraces the thrust of what we have proposed, he will have Fianna Fáil's support for it. I will withdraw my Bill based on the Minister's contribution.

Bill, by leave, withdrawn.

When is it proposed to sit again?

Leathuair tar éis a deich maidin amárach.

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