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Seanad Éireann debate -
Wednesday, 9 Feb 2022

Vol. 282 No. 10

Sea-Fisheries (Miscellaneous Provisions) Bill 2021: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I am thankful for the opportunity to introduce the Sea-Fisheries (Miscellaneous Provisions) Bill 2021 to the Upper House. By way of background, I advise Senators that EU Council Regulation No. 1224/2009, known as the control regulation, requires, inter alia, that member states implement a points system for serious infringements of the rules of the Common Fisheries Policy, CFP, committed by the master or skipper of a fishing vessel. The points system is intended to promote compliance with the rules of the CFP and seeks to deliver on the policy objective of ensuring proportionate, effective and dissuasive penalties for serious infringements and must contribute to a level playing field in fisheries control across all of EU member states. The points system was due to be in place on 1 January 2012, which is ten years ago, and the delay in implementing it is the subject of EU infringement proceedings against Ireland at present. A negative judgment from the European Court of Justice in any such proceedings could cost the State significantly in lump-sum and ongoing fines. Furthermore, serious financial implications arise from the non-implementation of the points system because as a condition of the EU contribution to Ireland’s European maritime and fisheries fund programme certain conditions must be fulfilled, including implementation of a points system for masters.

Turning to the main provisions of the Bill, in the context of the proposed masters points system the Bill replicates, insofar as is possible, the key provisions of the separate required EU points system for sea-fishing boat licence holders, the arrangements for which are set down in the governing EU regulations. The licence holders system has been implemented by means of an administrative system under secondary legislation, namely, the European Union (Common Fisheries Policy) (Point System) Regulations 2020, as amended. The scheme for masters proposed in the Bill insofar as far as possible follows the provisions of the existing licence-holder system, as I said, with regard to the list of serious infringements, the number of points assigned and the suspension thresholds provided for under the EU regulations. The period of suspension is determined by the number of points accumulated. The higher the number of points accumulated the longer the suspension. The accumulation of 18, 36, 54 and 72 points will trigger suspensions of two, four, eight and 12 months respectively. A master who has accumulated 90 points or more or received five suspensions shall effectively be permanently disqualified from taking control of an Irish sea-fishing boat or a foreign sea-fishing boat wherever it may be.

The masters points system proposed in the Bill also mirrors the provisions of SI 318 of 2020 as regards the licence-holders points system in other respects, including that the same independent determination panel and independent of appeals officer will determine on the balance of probabilities whether a serious infringement has occurred. Second, the procedures and timelines laid out in the Bill for the determination panel and the appeals officer to make their determinations are very similar to those provided for under that statutory instrument. Third, the master can request a oral hearing, both before the determination panel and also before the appeals officer. A decision of the appeals officer to assign points can also be appealed to the High Court on a point of law and last of all, points assigned to a foreign master will be notified to the relevant authorities of the relevant member state.

The Bill provides that the Minister of the day shall establish maintain a register of masters who are Irish citizens. A person cannot take charge of sea-fishing vessels unless he or she is registered and to do otherwise is an offence.

The Bill contains a section to facilitate the sharing of certain data between the Sea-Fisheries Protection Authority, SFPA, and the Revenue Commissioners. There are also various technical and miscellaneous amendments, most of which are primarily technical in nature and which correct typographic and reference areas in the errors in the Act. These amendments will improve the overall operation of the Act.

Senators should also be aware the general scheme the Bill was subject to thorough pre-legislative scrutiny by the Joint Committee on Agriculture, Food and the Marine in April and May of last year. The committee heard from key industry representatives. I appeared before it on two occasions as part of that process. I acknowledge and thank the members of the committee for their time and for a constructive discussion on the contents of the general scheme.

The Bill was initiated in Dáil Éireann and completed its passage through the Lower House last week. The following are certain key amendments made by the Dáil to the Bill. First, there was the inclusion of an option of using an electronic interface for serving of notifications or documents to masters. Second, provisions were inserted to ensure that points should be assigned to a master who commits serious infringements of the landing obligation or discards ban as required under EU law. In addition, the power of the Minister to set a fee for masters to pay when appealing to the independent appeals officer on a determination of the independent determination panel that a serious infringement had been committed has been removed.

I take this opportunity to again thank Deputies for a robust and constructive discussion on the contents of the Bill on all Stages. While we have had our differences in certain regards to aspects of the Bill, I have no doubt that those on all sides in the Dáil and in this House are committed to the timely introduction and implementation of an effective, proportionate and dissuasive masters points system.

I will now provide an overview of the detailed provisions in the Bill. Section 1 clarifies that the Act of 2006 means the Sea-Fisheries and Maritime Jurisdiction Act of that year. Section 2 amends section 2 of the Act of 2006 insofar as certain definitions provided for thereunder are concerned. Section 3 then amends section 12 of the Act of 2006 to provide clarity around the publication of a notification in Iris Oifigiúil as provided for thereunder. Sections 4 and 5 amend sections 13 and 15, respectively, of the Act of 2006 to provide for certain miscellaneous and technical amendments.

Section 6 inserts into Part 2 of the 2006 Act a new chapter 2A titled “Regulation of Irish Fishing masters” and provides for the establishment of a points system for masters of fishing vessels as required by EU law. The Minister shall establish and maintain a register of Irish citizens who are masters of sea-fishing boats, to be called the Irish fishing master register, and the points assigned to each such master. The control authorities, they being the SFPA and the Naval Service shall have access to and may examine the register for control purposes only. It shall be an offence for an Irish citizen to take charge or attempt to take charge of an Irish sea-fishing boat or a foreign sea-fishing boat unless he for she is registered.

Also under section 6, the accumulation of points will result in the suspension of a master from the register, that is, he or she will be prohibited from taking control of an Irish sea-fishing boat or a foreign sea-fishing boat, wherever it may be. When points are assigned to a master on the register, the Minister shall notify him or her of certain matters. A master who has been suspended or removed from the register is required to immediately inform the sea-fishing boat licenceholder who engages or proposes to engage him or her as master of such suspension or removal.

Sections 7 and 8 amend sections 16 and 17 of the Act of 2006, respectively, to provide for certain miscellaneous and technical amendments. Section 9 provides for the transfer of certain data between the SFPA and the Revenue Commissioners, as I outlined earlier. Such data sharing already occurs in respect of other public bodies, for example, between Revenue and the Department of Social Protection. Section 10 amends section 28 of the Act of 2006 to provide clarity on certain drafting matters identified therein. Sections 11 and 12 amend sections 37 and 54 of the Act of 2006, respectively, to provide for certain miscellaneous and technical amendments.

Section 13 amends the Fisheries (Amendment) Act 2003 to, inter alia, rectify a lacuna to the effect that there is at present no legal impediment to a minor applying for a sea fishing boat licence. That will address that issue. Section 14 provides for certain amendments to Regulation 7 of the European Union (Common Fisheries Policy) (Point System) Regulations 2020. Section 15 provides standard provisions for the Title, citation and commencement of the Bill.

My firm view is that an efficient and effective masters points system is necessary to protect law-abiding masters, who make up the vast majority of those in the industry, and to preserve this precious and valuable resource for all Irish fishermen and for future generations. I am confident that the masters points system proposed in the Bill will play a vital role in delivering on the Common Fisheries Policy objective of ensuring proportionate, effective and dissuasive penalties for serious infringements and, importantly, in contributing to a level playing field in fisheries control across member states. The points system is necessary as an effective measure against the small number of masters, either foreign or Irish, who break the rules. It is necessary to protect law-abiding operators and preserve fish stocks.

I commend the Bill to the Seanad and look forward to a constructive discussion on Second Stage this afternoon.

I welcome the Minister to the House. No fishing representative would like to see any sort of penalty points or other system that might in any way adversely affect their work. However, I note the European Commission has issued a reasoned - I like the word "reasoned" - opinion against Ireland for failure to implement the system by 1 January. It states "2012" but that might be an error.

It crossed my mind that what the Minister is dealing with is probably a fait accompli. We are in Europe, even though sometimes many fishing trawler owners have some difficulties with that. A question put to me by some of the fishermen is: how sure can we be that these regulations and this penalty points system will be enforced by other major countries in Europe, such as France and Spain?

The Minister mentioned the master of the vessel a few times. Is that equivalent to the skipper or to the owner, or is it a different situation? If it is the case that the master - I usually look on masters as being of big ships such as merchant ships - or the skipper ends up with a maximum of 18, 36, 54 or 72 penalty points for whatever reasons, and nobody wants to end up in that situation, can that vessel still fish under another master or skipper? If it cannot, that is a serious problem. I note the Minister is nodding and that is a reasonably good indication of where he stands on it.

We are looking at the control of our seas. Recently we had that unusual so-called "historic" event where the Russians were to launch missiles in Irish fishing waters. It was not the Minister for Foreign Affairs but apparently the fishers who prevented that event happening. That is what is being claimed. On a serious point, have our Naval Service vessels the capacity to control our international waters? It is my view, as somebody who lives in Cork South-West and from my experience of the fishing industry which would be reasonably well established, that our Naval Service's capacity to police our international waters is not adequate. If it is not, what proposals are there to augment the Naval Service vessels to make sure that not only are we policing our own but others are being policed? Maybe that is for the Minister for Defence.

In the past year during a particular storm, there were approximately 40 nearly-ocean going trawlers, some of them 40 m long, sheltering in Bantry Bay, which is known as the best bay in the whole of Europe. It boasted of containing the entire British fleet in the past. My worry is that this accusation has been made, and I am in these Houses since 1989, that traditionally Irish fishermen have been neglected at the expense of Europe. I do not want to go back over history but we got a poor quota. We are now in a situation again, as the Minister will be aware, where there is a proposal to decommission other vessels. Our fishing industry has contracted severely. I remember when there were five or six fishing boats in Schull. Kinsale, Union Hall and Castletownbere - all those ports - had many more fishing vessels and more people working in the industry 40 years ago than there are now. I am not sure whether it is a good or a bad indication. I note also that this is EU driven. I have no problem with it being implemented by the State, in compliance with EU laws and regulations, but I would like to see a level playing field.

Another point, which may not be directly related but which is interesting, is that we talk about the carbon footprint, taking stuff across the world from A to B and bringing in beef from Brazil or wherever. Recently I was in a reputable shop - I will not say whether it was in Cork or Kerry - and I was thinking of buying a 0.5 kg of prawns, which I usually would not be getting. I noticed to my dismay that they were imported from Ecuador. If we are getting fish from Ecuador, I would be very concerned about the future of our fishing industry.

I honestly believe we cannot reverse what has been done in Europe. There has been a case made against us. I do not want to see any fishing vessel or the fishing industry being further penalised in any way. That would be detrimental to our industry. The Minister's heart is in the right place and he visited Castletownbere. The Minster is from Donegal and has first-hand experience from places like Killybegs of what goes on in the fishing industry. My only appeal is that we get fair play and that the fishing industry, which has, in many ways, been suppressed and is getting smaller and tighter, is protected and does not suffer as a result of any EU regulation or system that might adversely affect the industry in the future.

I welcome the Minister to the Chamber and acknowledge he is bringing forward important legislation to, in many ways, bring clarity to this industry regarding how the penalty points will work. We have been talking about this for a significant period of time and there is a feeling out there that we need to put a fair and appropriate scheme in place. That is what fishermen and women are talking to me about continuously. We realise that there has to be legislation and regulation but it has to be fair. That is the ultimate point.

When you look at the legislation, it deals with the penalty points and how they can be distributed and the effect they will have on the master and the effect they will have on the master's licence going forward.

Senator O'Donovan touched on the point that we must ensure this will apply across the board and everybody is going to be brought into the net, pardon the pun. That is a real issue. In the briefing notes I received regarding this point, one of the issues was how the foreign investors are going to be dealt with in the proposed penalty point regime. The Minister might clarify how that is going to tie in with the legislation and how foreign vessels will be policed in Irish waters. Will they have the same issues when the points are being sent to their jurisdictions? I do not think there is a European register of all masters and what points pertain to their licences at present, although I may be wrong on that. The Minister might confirm the position. We have no idea what penalty points have been applied to foreign vessels or what disciplinary action has been taken against them when they are fishing in European waters. If we had clarity and knew which vessels penalty points had been applied to, it might give some reassurance on the issue of what foreign vessels are getting away with. That is an issue on which we need some clarity.

The Minister might also clarify how this system will work with regard to UK vessels. There have been issues around Brexit, quotas and the transfer of fishing entitlements. It seems to me the UK is now somewhat outside the net. Where do UK trawlers come into the equation? How can the European Union have a system that will give confidence to the Irish fishing industry that the UK masters are not outside the proposed regulations at European level? That is a significant point. People in the industry want fair play and want to know everyone is playing by the same rules. If we had that assurance, it would go a long way towards ensuring that these issues are taken on board.

Let us be honest, there will be concerns, to say the least, about these proposals. We all realise there is regulation of everything one does in life but as long as that regulation is applicable to everyone, we can get by.

I thank the Minister for coming to the House to discuss this matter. There are four key issues I want to raise with him. I am relying heavily on the report from the Library and Research Service. It is a resource available to us and I do not think the members of the service ever get thanked enough for the informative work they do. Their digest of this Bill is particularly helpful because it encapsulates many of the concerns that have been brought to the attention of many people.

The first issue relates to the questionable fairness of the allocating points system. The standard of proof required threshold is based upon balance of probabilities rather than culpability beyond a reasonable doubt. In its pre-legislative scrutiny, the joint committee identified the potentially problematic nature of a determination panel concluding on the balance of probabilities as evidenced by the report of the authority, rather than a threshold for proof required. All alleged serious infringements are made by means of a written report by the authority. Section 6 of the Bill provides that a determination panel will be established "for the purpose of determining ... whether a serious infringement has occurred and whether a person was, at the time, the master of the sea-fishing boat". In addressing an appeals process, an appeals officer will be assigned at the authority. A period of 30 days is available in which to submit an appeal to the appeals officer. The appeal must be in writing from the master and is subject to a fee which is yet to be determined. The issue raised during pre-legislative scrutiny was that the Bill does not address concerns regarding the balance of probabilities providing the required threshold of proof, nor how existing reports and-or points may or may not be considered in the authority’s assessment of further alleged infringements. That is the first issue that came up in comparing what came up in pre-legislative scrutiny with what is now in the Bill.

The second issue is the weighing of fishery products in-factory. The committee's pre-legislative scrutiny report, according to the digest of the Bill, states the Bill as published does not cover or address this issue.

The third issue relates to the application of penalty points to EU and non-EU vessels. There was particular concern that UK vessels in Irish waters were going to be advantaged. Senator Lombard already raised this matter. The Bill does not provide for assigning penalty points to or having a register of points assigned to foreign nationals. Instead, a provision in the new section 15 being inserted into the 2006 Act via section 6 states that points assigned to a foreign master will be notified in writing to the authorities in the relevant member state. The UK is not specified. Thus the Bill does not provide for the authority dealing with serious infringements by UK fishing masters in Irish territorial waters in the same way as provided for other EU member states. I am happy to be corrected on that if I have misinterpreted the legislation.

The fourth issue is fair administration and SFPA capacity and resourcing with regard to the register of penalty points. At the pre-legislative scrutiny stage, the committee stated the Bill did not have provisions for organisational capacity or resourcing for the SFPA.

Those are just four issues. I know other issues have been raised. The Bill digest encapsulates some of the key issues exercising certain communities throughout the country. I hope the Minister is in possession of information to articulate how some of these issues are to be dealt with. There is no doubt but that we must protect our fishing reserves and there needs to be sustainability in the sector. There is, alas, no doubt that jobs in the sector are threatened. There are no two ways about that. It is important that we ensure support for the jobs and a just transition and we want to make sure the Bill does that. There has been talk of this being a fair and appropriate scheme, that there has been weighting of it in the Bill and that it is not too onerous on fishermen, particularly those who are sticking to the rules and not taking the Mick, if you will. Those are the points I wanted to make.

I thank Senators for their contributions. One of the key things that came through in two or three of the contributions was the issue of beyond reasonable doubt. I will touch on that matter first. The standard of proof used in the determination of an appeals officer is the balance of probability. It is a matter that has been raised throughout the progress of this Bill. It has not only been raised here today; it was also raised in the Dáil and in committee. I reiterate that the legal standard of beyond a reasonable doubt is almost entirely confined to criminal trials and is not applicable to proceedings of a civil nature, where the standard used is the balance of probabilities. The legal position is that the balance of probabilities is the appropriate legal standard for the masters points system. The standard of proof is ordinarily and overwhelmingly on the balance of probabilities in civil cases. A higher standard of proof is required in criminal cases, that of proof beyond a reasonable doubt.

In considering previous statutory instruments, the Supreme Court did not in either the Crayden or O'Sullivan cases make a single reference to beyond a reasonable doubt throughout the two judgments. The Supreme Court did not take issue with the balance of probabilities standard of proof in any of the statutory instruments it considered. Thus there is no support in the Supreme Court judgments for the proposition that the standard of proof on the basis of the balance of probabilities should be raised to the criminal standard of beyond a reasonable doubt.

I thank Senator O'Donovan for his contribution. There is an obligation on all member states. The Senator made the point that it is important these rules are applied consistently across all member states of the EU and asked what assurances can there be that other member states are enforcing them. The first challenge is that we are the very last member state to put a system in place. We are ten years later doing so than the legal obligation required. There has been much engagement and many chapters to this over that period of time. There is an obligation on all member states to have a penalty points system in place and then to enforce it. The overall competent authority for overseeing that is the European Commission, as well as the European Fisheries Control Agency.

I nodded when I was being asked whether a boat could be fished with a different master in the event that one master has received a penalty. That will not impact on the capacity of the boat to be fished as long as the second master has a valid licence and authorisation.

Senator O’Donovan went on to make a point in respect of ports where fishing happens less now. Boats tend to be larger now than they were ten, 20 or 30 years ago. Since the Common Fisheries Policy and the principle of relative stability were established in the early 1980s, quota share among various member states has remained stable, Brexit notwithstanding. Obviously, Brexit has had a sideways impact on the overall relative stability among other member states, but since the early 1980s, despite many Common Fisheries Policy reviews, the percentage allocated to each member state has remained stable.

Following Brexit, member states' national quotas were impacted to varying extents. Our national quota will decrease by 15% between now and the end of 2026. The same is true of Germany, while the figure is somewhat lower for France, at 8% of its national quota. This is something we have been forthright about and I have fought the battle at European level in that context, but it is very much a result of the Brexit negotiation, in which fisheries was one of the key battle points for the British Government. One third of the fish we were catching was in British waters and, in the event of a no-deal scenario, we would not have had access to those waters to catch one third of the total fishing catch on which our fleet depends.

Another issue that has restricted fisheries somewhat over the years relates to the move to fishing according to maximum sustainable yield so as to ensure we do not overfish in a way that leads to the stock becoming depleted and endangered, which would have the side effect that the stock would not be available to be fished in the years ahead. A number of stocks that were under pressure, having been overfished in years past, have been closed in order that they will be given time to recover. In the case of the stocks we fish, we do so in a careful way, in accordance with science, to ensure we do not take any more fish than the stock can provide for. Overall, what this means for fishing activity at ports is that the capacity of boats now tends to be larger and we have to manage the fish stock sustainably, within an individual percentage allocation for each member state. Obviously, we have always fought, and will continue to fight, the battle to increase our allocation and percentage but that is always difficult to achieve.

Senator Lombard asked whether the system will apply to all vessels and, in particular, to UK trawlers or masters. It is a European Common Fisheries Policy, so it applies to EU member states. Ideally, it would apply outside of that as well, but that will be subject to negotiation with third countries. When the UK was a member of the Common Fisheries Policy, it had its own point system, which worked in sync with the other EU point systems, but it is outside of that now. Every year post Brexit, there have been challenges in respect of negotiating quotas with the UK and, likewise, issues such as this are subject to negotiation. As we all can see, that engagement can be a difficult process. As a starting point, in any event, it will apply to all EU member states and I fully accept we should engage with other countries outside of that in order that everyone takes a responsible approach, with systems that talk to one another, to try to ensure that uniform rules will apply, with commonality in respect of how they are monitored and implemented.

Senator Hoey asked about the threshold of proof, which I have dealt with, and about the capacity of the SFPA and the Naval Service to oversee and enforce the regulations. I have increased significantly the resources to the SFPA over recent times and it is important that we have an enforcement authority that can carry out that role well. Likewise, in respect of the Naval Service, the recent review of the Defence Forces will be important in informing of us about that. It is important that all boats be held to the same threshold and that standards be enforced for all boats that fish in our waters, regardless of their positioning within our 200 mile zone.

I think that covers most of the questions. I thank Senators for their engagement on Second Stage and look forward to further engagement as the Bill is brought through the House.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 15 February 2022.
Cuireadh an Seanad ar fionraí ag 2.36 p.m. agus cuireadh tús leis arís ag 4 p.m.
Sitting suspended at 2.36 p.m. and resumed at 4 p.m.
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