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SELECT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate -
Wednesday, 15 Feb 2006

Sea-Fisheries and Maritime Jurisdiction Bill 2005: Committee Stage (Resumed).

I welcome the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey. I suggest we consider the Bill until 8 p.m. but suspend at 11.30 a.m. for the Order of Business, resume thereafter and break from 1.30 p.m. to 2.30 p.m. for lunch. We will suspend between 5.30 p.m. to 6.30 p.m. for another break. Is that agreed? Agreed.

SECTION 17.

As amendment No. 76 is an alternative to amendment No. 75, they may be discussed together.

I move amendment No. 75:

In page 24, lines 50 and 51 and in page 25, lines 1 to 5, to delete subsection (3).

The Deputy's intention in formulating the amendment was the subject of a discussion with Deputy Sargent. It involves an attempt to prevent the destruction of fish once confiscated.

That is correct.

We have drafted amendment No. 76 to meet the concerns expressed by Deputies Perry and Sargent on Second Stage.

Are we sure it addresses the issue fully? Given that we are dealing with conservation, it defeats the purpose of the legislation to destroy confiscated fish. How can the matter be dealt with?

If the fish have been caught, there is not a great deal we can do. It would be better if they were not caught in the first place. Deputies Perry and Sargent have expressed a desire that rather than destroy any fish caught, they should be preserved and used as food if possible. Amendment No. 76 is designed to ensure that will happen. We propose in page 25, subsection (3), line 4, to delete the word "destroy". While it does not quite amount to conservation, at least it is not waste.

The provision which allowed a fisheries officer to destroy fish confiscated from a detained boat was difficult to comprehend. It was a complete waste. What will happen in future?

Fish will be processed in the usual way.

Will a deduction be made once they have been processed?

Amendment, by leave, withdrawn.

I move amendment No. 76:

In page 25, subsection (3), line 4, to delete "destroy,".

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

I move amendment No. 77:

In page 25, subsection (1)(c), line 51, after “logbooks” to insert the following:

"containing details of the individual quota allocations for the boat and records of landings within the current year".

As I made this point under an eariler amendment, I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 78, 79 and 83 will be discussed together.

I move amendment No. 78:

In page 26, subsection (1)(i)(i), line 30, to delete “the persons on board” and substitute the following:

"such of the persons on board whose detention in respect of whom proceedings for an offence have been or are about to be instituted".

This relates to the powers of sea fisheries protection officers and the authority they have to stop boats, request explanations, inspect tracking and so on. Amendment No. 78 relates to section 18(1)(i)(i), which states, “if the boat is not in a port, take or instruct that the 25 boat and all persons on board be taken to port or order the master of the boat to take the boat directly to a specified port, and pending the taking of the steps required by section 20 or 21, as may be appropriate, detain the boat and the persons on board,”. The following wording, “such of the persons on board whose detention in respect of whom proceedings for an offence have been or are about to be instituted”, would be better. This would be aimed specifically at people the fisheries protection officer may suspect of acting illegally. The subsection is unconstitutional because it provides that all persons on board can be detained, even where it is clear that no offence will be alleged against all of them. This is far-reaching and probably unconstitutional and, therefore, it would be better to use the wording suggested in the amendment. It is intended that only those suspected of acting illegally will be charged.

Amendment No. 79 relates to a similar provision where a boat is detained at a port and can be brought to a more convenient port. This subsection should be directed specifically at a person or persons against whom a breach of the legislation is instituted.

Amendment No. 83 proposes the same change in section 19 where boats and persons have been detained, offences are suspected and the seas fisheries office applies to a District Court judge for an order authorising the continued detention of the boat and the persons. The section should specify the persons against whom proceedings will be instituted. It would be better not to run the risk of including an unconstitutional formula, which could be unfair to the fishermen involved.

I appreciate the Deputy's concern but this provision exists in law and its constitutionality has not been challenged up to now. My advice is that this is the only way forward. Until a charge is brought, it is not certain which person on board will be prosecuted. For example, the crew could have been involved in dumping fish caught illegally or some members of the crew may have failed to co-operate with the Naval Service or prevented a search and, therefore, they might be charged with obstruction. French boats sometime have a captain as well as a fishing skipper and this would not be immediately obvious. It may be necessary, in those circumstances, to charge both persons. The persons on board may be responsible for illegal fishing operations and it is, therefore, important to keep all options for prosecution open until a direction is made by the prosecutor, which is the Office of the Attorney General. To meet the concerns expressed by the Deputy, directions are always given rapidly by the AG's office. Officials are on call at weekends for that purpose. I agree with the Deputy that the skipper is usually in charge but it is possible that others could be charged. The skipper could obey the Naval Service's instructions and allow boarding but when naval personnel board the boat, crew members might obstruct them. It is important, therefore, to leave the option open. I ask the Deputy to withdraw the amendments because, if they were made, they could hamper prosecutions.

I will withdraw them on the basis that I will return to my legal advisers who felt this would be a fairer legal position and raise the issue again on Report Stage. My advice is that the amendments would be less onerous on a crew caught in this dreadful situation and that the situation overall would be fairer. Perhaps the Minister will also reflect on this.

Amendment, by leave, withdrawn
Amendment No. 79 not moved.

I move amendment No. 80:

In page 26, subsection (1)(i), between lines 34 and 35, to insert the following:

"(iii) The provisions of this subsection shall not obstruct persons so detained from reasonable access to communications in private or such access to facilities in or near the port in which a vessel is detained as may be reasonably afforded.".

The intention of the amendment is to make detention more humane for detainees and to afford skippers the opportunity to communicate with their families or solicitors. It is a reasonable request to provide this facility as a right.

It is a reasonable request but this is what happens and, therefore, there is no need to make this provision in the legislation. Persons on vessels are not in any way restricted from making contact with their lawyers and they have the right to do so under a variety of statutes. They usually wish to contact the agent handling the boat's affairs and not the lawyer, which is also their right. In many instances, foreign vessels are in regular touch with their home country or their diplomatic service in Ireland regarding detention. There has never been a problem in this regard. The persons have rights under our criminal law regime and no special provision is needed or required under the legislation. I assure the Deputy this is already the practice and that these rights are in place generally.

It would be helpful if this were written into the Bill to ensure that fishermen and others engaged in the industry are acquainted with their rights. It may be the case that this is the general practice but I am aware of cases where people were denied these rights. I refer, in particular, to in command of salmon fishing vessels who, when they were boarded, were denied all rights of communication. If this were instilled as a right in legislation, it would be of enormous assistance to fishermen, their crews and families and those with whom they work ashore.

Amendment put and declared lost.

I move amendment No. 81:

In page 26, subsection (4), lines 46 to 48, to delete all words from and including "(including" in line 46 down to and including "Síochána))" in line 48.

Section 18(4) states:

A sea-fisheries protection officer when exercising any powers under this section may be accompanied by other persons and may take with him or her, or those persons may take with them, any equipment or materials (including firearms or other weapons (where he or she or any of those other persons is a member of the Defence Forces or the Garda Síochána)) to assist the officer in the exercise of those powers.

The amendment proposes to delete the lines "(including firearms or other weapons (where he or she or any of those other persons is a member of the Defence Forces or the Garda Síochána))". This provision permits members of the Defence Forces or the Garda Síochána involved in the detention of a fishing boat to carry firearms during that operation. In confronting a fisherman who may be guilty of over-quota fishing or something similar, to have armed personnel coming on board goes beyond the norm. A garda who stops a motorist for speeding, for example, does not employ armed force. It would alleviate many people's concerns if this amendment were accepted.

I reluctantly removed a provision allowing the Navy the right, under the Sea Fisheries Acts, to fire on a vessel which attempted, for example, to ram a naval vessel or otherwise pose a threat to the life and welfare of members of the Defence Forces. I am not prepared to send sea fisheries officers or gardaí into a hostile environment without some means of protecting themselves. There is no question of precluding the Defence Forces or members of the Garda Síochána from carrying or using weapons in the course of their sea fisheries protection duties. That would not serve our own or other fishermen well, nor would it serve the members of the Defence Forces or the Garda well.

There are strict guidelines in regard to discharging weapons and it is for the commanding officer to decide on that matter in the particular circumstances if people are going about their lawful business and happen to go over quota or breach the fisheries legislation in some way, whether deliberately or inadvertently, they generally present no major danger to personnel. We must, however, cater for circumstances where a commanding officer must make a speedy judgment as to the possibility of danger. We must ensure that officers have the right to defend themselves. I cannot accept the amendment.

Yesterday we received a list of all the boardings of Irish and Spanish vessels in Irish waters. Effectively, this provision means that vessels can be boarded by armed personnel without any evidence of illegal activity, where their operators are merely going about their lawful business, fishing quite legally, and can offer only their log books for inspection. Should a person going about his or her business on a daily basis in any other walk of life be subjected to the same treatment? Would it be acceptable that a person delivering goods to a construction site, for example, could be subjected to a search by armed gardaí based purely on suspicion or speculation?

The vast majority of boardings have not resulted in prosecutions or detentions. However, this subsection permits armed personnel to confront decent, honest people in the course of their daily work. The Minister says he reluctantly deleted the provision to allow the Naval Service to fire on vessels if the necessity to do so arises. We are supposed to be living a democracy. People are being put in potentially life-threatening situations merely because they may be overfishing or fishing illegally. The Minister was prepared to allow security personnel to fire into their boats. That is ridiculous in this day and age.

That provision has been removed.

I know but the Minister observed that he removed it only reluctantly.

For the purposes of clarity and to assist Deputy Ferris, I refer to Commodore Frank Lynch's presentation to the joint committee on 12 October 2005. The commodore referred to the difficulties his personnel have encountered with certain vessels. I believe he referred to certain foreign vessels and circumstances in which he would have difficulty in arresting the operators. He mentioned the attempted ramming to which the Minister adverted. Perhaps it might assist Deputy Ferris if he were to read the transcript of Commodore Lynch's contribution.

I know what he said. I am responding to the Minister's comment that he removed this provision reluctantly.

I did so reluctantly because the Defence Forces and the Garda should have the right to protect themselves fully. I am not aware of any incident where Irish fishermen put the lives of Navy personnel in danger. However, Deputy Ferris's amendment would mean that armed force could not be used in any circumstances and I am not prepared to expose our officers to that danger. Ireland is a democracy, as Deputy Ferris observed, and we have a right to defend it. Most of us have reservations, deep suspicions and perhaps facts to back us up in regard to incidents involving EU boats engaged in illegal fishing and so on. I am not prepared to remove the right of the Defence Forces and the Garda to have the weapons necessary to defend themselves if they are obliged to board vessels in any type of dangerous circumstances. It would be totally irresponsible to do so.

Section 18 sets out the powers of sea fishery protection officers in regard to sea-fishing boats. Will the Minister clarify that the firing of live ammunition into a fishing vessel is completely banned?

However, the officers will be authorised to carry guns.

They will have a right to do so if the commanding officer decides the situation warrants it.

Is there no possibility that officers could fire on a boat in the process of detaining it? Would they be obliged to board it first?

They must board it first and could only discharge their weapons if they believed their lives to be under threat. The Garda and the Defence Forces have rules and regulations on the discharging of firearms.

This relates to the issue of drug trafficking.

One could board what one believes to be a fishing vessel only to discover it is not such a vessel.

The majority of boardings are made to check logbooks and so on and the reason for most boardings transpire to be unfounded. The Minister is saying that armed personnel will be able to board the vessels of fishermen who are fishing legally and doing nothing wrong.

No, I am not saying that. I am saying the right of personnel to carry arms when boarding a boat will exist if the circumstances warrant it. I am not saying that must be done on every occasion. I am sure on many occasions the commanding officer will consider it is not necessary and they will not go on board but I will not remove that right.

The position is clear from the section which contains the term "it may be" in two instances; it does not state "it shall be".

I wish to make two points. First, this provision means the Government is treating the fishing industry completely different from other industries. For example, with regard to a current controversy covered in the newspapers, if one had occasion to visit an illegal radio station, which perhaps the Minister's predecessor permitted to broadcast legally, even in that extreme case the implicit use or threat of force would not arise. The communications section of the Department could investigate whether a business is performing in accordance with the licence granted to it but officers would not arrive accompanied by members of the Garda and Army, although such a circumstance could arise. Why is there a need to include that specific provision?

Second, irrespective of what is included in this Bill — I tabled an amendment requesting the removal of the use of force — is it not the case that the Navy, under its operational instructions, always has the right to defend itself and our waters? That right will remain. It does not apply only to fishing boats but to all boats. The Navy has extensive rights, as does the Army, in maintaining our security and, for example, in ensuring this meeting room is secure. The Army has extensive powers to protect us on behalf of the people and to protect our territory. Given that is the position, is it not provocative to include these types of provisions in the Bill? If we are to start treating the fishing industry as an important industry that makes a contribution, is it necessary to include these types of provisions? I accept this industry covers a different terrain, that of the hunters gathers as mentioned yesterday. Deputy Ferris is probably right in what he said. What is the point of inserting such a provision when our security services have extensive powers, irrespective of the circumstances?

My view on this matter varies slightly from that of Deputy Ferris. In fairness, there was a hullabaloo over the Bill, as initially drafted, when it was suggested there could be firing into vessels but the Minister and his officials properly rectified that. However, we must be realistic. When we met representatives of the Navy they mentioned that a huge foreign vessel attempted to ram a Navy boat two or three years ago. The foreign vessel was bigger than our protection vessel. The view given was that if the foreign vessel had succeeded it could have sank the Navy vessel. All the naval vessel did was pursue the foreign vessel out of Irish waters beyond the 200 mile limit.

I have been dealing with the fishing industry for a long time in different capacities and I am convinced the fishing industry is not too concerned about this matter. It is not the case that members of the Navy or the Garda will board a vessel brandishing Uzis or pistols. If members of the Naval Service are 100 miles out at sea, they would be useless and toothless if it did not have basic protection. I am not advocating that its members board a vessel and demand those on board put up their hands and then frisk them. We must realise that approximately 70% of drugs that enter this country are brought in by sea. If members of the Naval Service boarded a vessel 100 miles or 150 miles off our coast and it transpired the vessel was carrying a valuable but lethal stash of cocaine or other drugs, it would amount to madness if they did not have basic protection. I could not support the notion that members of Naval Service, or members of the Garda in a minority of cases, would be that far out at sea without having such basic protection.

I have heard of only one instance in my career where there was an alleged abuse and over-reaction by members of the Naval Service on a boarding. By and large, they board and if no offence is detected, they go about their business. There are instances where our security forces, particularly our Navy, may be under threat. Therefore, they should carry the minimum basic protection and use it only if they have to. We must be realistic. I do not believe the fishing industry would create any fuss in this respect. In any country in the world — one can go back 200 to 400 years to the time of piracy — naval protection vessels must carry basic protection. They should not use it in a heavy-handed fashion but they may need to use it in the event of something going wrong 100 miles offshore. They might as well not patrol our waters if they do not carry basic protection.

Is Deputy Ferris pressing his amendment?

Amendment put and declared lost.

Amendment No. 99a is consequential on amendment No. 81a and amendment No. 105 is related, and therefore they may be taken together.

I move amendment No. 81(a):

In page 26, between lines 49 and 50, to insert the following subsection:

"(5) The master of a boat who fails to obey—

(a) an order for the boat to be stopped or to be manoeuvred in accordance with directions, or

(b) an instruction for the boat to be taken to a specified port, given by a sea-fisheries protection officer under this section commits an offence and is liable—

(i) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 2 years, or to both.".

This amendment accepts the principle of Deputy Eamon Ryan's amendment No. 105 — I note the Deputy is not here now — and incorporates the provisions in section 18 rather than in section 24 where they are currently included. They are more appropriate to section 18 and the amendment simply provides for them to be included in it.

Amendment agreed to.

I move amendment No. 82:

In page 26, lines 50 and 51 and in page 27, lines 1 to 11, to delete subsections (5) and (6).

The deletion of subsections (5) and (6) from section 18 was recommended by the members of this committee and it is agreed by the Minister for Defence.

Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
Amendment No. 83 not moved.

I move amendment No. 84:

In page 27, subsection (3), line 33, to delete "will be" and substitute "has been".

This amendment is in a similar vein to what Deputy Ferris said earlier in that it proposes the deletion of the words "will be" and their substitution with the words "has been". Will the Minister comment on it?

Section 19(3), as worded, is necessary because of problems raised in court where the 48-hour detention expires during a sitting of the District Court. The case might be mentioned to the judge but the application for the extension may not have been made to him or her. It is necessary to word the provision as it is worded.

As the Bill stands, an application by the prosecution can be forthcoming, as opposed to it having already been handed in. Does this not give the prosecution a free hand, so to speak?

It is subject to the court saying yes or no. The court has the final say. The prosecution can try but the court can always say it is not allowing it.

Is that not giving the prosecution an advantage as such?

I do not think so because it is the court, not the prosecution, that will decide the matter.

Yes, I appreciate that. It is a technical point.

It is. It is necessary to word it in this way. This issue has been raised in the courts and I would be reluctant to make a change.

Three amendments were grouped together. Unfortunately, I was delayed upstairs getting questions to the Minister out before a.m. The Minister will understand how one must sometimes do two tasks at once.

Is the Deputy speaking to the amendment?

I am speaking to amendment No. 84 with which amendment No. 105 was grouped.

I accept the principle of Deputy Ryan's amendment which is incorporated.

I just wanted the cleverness of the amendment to be recorded.

The Minister gave the Deputy full credit.

Without it, the Naval Service would have been left bereft of any prosecution services.

The Deputy should not go into that matter now because we spent half an hour discussing the Naval Service. We were very near resurrecting Queen Victoria.

Amendment put and declared lost.
Section 19 agreed to.
SECTION 20.

I move amendment No. 85:

In page 27, subsection (1), line 40, to delete "instituted" and substitute "instituted,".

This is to make the paragraph clearer. It would merely be a technical adjustment.

As a former teacher of English, the comma is not necessary.

Amendment, by leave, withdrawn.

Amendment No. 86 is in the name of Deputy Broughan but will be moved by Deputy Ferris.

I move amendment No. 86:

In page 27, between lines 41 and 42, to insert the following subsection:

"(2) As far as practicable following detention under the Act of 2003 or this Act, a person against whom proceedings for an offence have been or about to be instituted shall be afforded access (by electronic or telecommunication device means or otherwise) to legal advisers without unreasonable delay.".

As I stated previously, all of the measures the Deputy is trying to write into the Bill are already in place.

Amendment put and declared lost.

I move amendment No. 87:

In page 28, between lines 3 and 4, to insert the following subsection:

"(4) In setting the conditions of bail of a person against whom proceedings have been instituted before the proceedings have been determined, the judge shall, with a view to minimising such conditions have regard to the place of residence of the accused, the value of the asset which is detained, or the amount of security as shall be given in the event of conviction in respect of the offence or other relevant evidence as shall be adduced.".

This subsection is to ensure judges would set the minimum bail conditions in fisheries cases. In the recent past there have been instances where the judge wanted bail of €20,000 from an Irish skipper, although the State had an asset of €1 million tied up. There is a need for bail to be set at a realistic figure in order that people will be released on bail pending judgment in the case. Bail should be set at the minimum figure to allow fishermen to resume fishing and also to take cognisance of the fact that they have a substantial asset to support their application.

There is much merit in Deputy Ferris's amendment. In my experience, I am not aware of any fisherman or skipper who jumped bail. Most of the men concerned are married. They have connections, houses on shore and commitments. Jumping bail would be a rare occurrence. In certain cases, particularly those involving less serious offences, setting bail at an unreasonably high level and seeking big bonds is unnecessary, given that, as Deputy Ferris stated, tied up in the harbour there is a boat worth much more than the person's house on shore. Realism must be introduced.

This relates to the argument which I will not reopen about the type and severity of the offence. At times it beggars belief to see substantial bail bonds being sought. What is happening is that one is wasting a great deal of time in court and fellows with wigs and gowns are making money. To whose benefit is this? Is there widespread evidence that people are jumping bail, going missing or failing to turn up for their hearing? I am not aware of any such instance but perhaps I am wrong.

The advice available to me is that there might be slight confusion about the bond required and bail. The problem with Deputy Ferris's amendment is that one might have a difficulty — I would not go to the wall on this — if one started setting bail conditions on the basis of place of residence, whether it be Navan, Castletownbere or somewhere in the middle of Europe, particularly if one was seen to discriminate against other nationalities. That is just one aspect of the amendment.

The bond, provided for in the Bill, is usually provided by a bank for the owner who is partly benefiting from the alleged illegal fishing operations of which he or she is accused. Most arguments arise over the bond sought for the vessel, the catch and gear, and the sum covering the fine. That is one type of bond which is only for the release of the vessel. It is not concerned with the bail provided by the person charged, usually the skipper. The purpose of the bond is to make sure that if there is a default, the State will get the full benefit.

The advice available to me on the bail sought for the skipper is that in practice it is notional and that there is no need for it to be more than this as failure to appear at the trial can trigger the bond for the vessel. The advice available to me is that it would be unwise to provide special rules for one type of offence. The general rules of law on bail apply without qualification. Legally, the safest way to do it is the way provided for in the Bill.

Amendment put and declared lost.

I move amendment No. 88:

In page 28, between lines 3 and 4, to insert the following subsections:

"(5) Where a sea fisheries officer has, in exercise of the powers conferred on him, concluded that an offence has been committed which falls under the schedule set out in section 28, Table 1, he or she shall advise the master of the vessel that he or she has the right to elect to pay a fixed penalty as set out in section 28, if eligible.

(6) If the vessel on which the alleged offence is suspected of taking place is in a port at the time the Sea Fisheries Protection Officer forms his or her suspicion, and the owner elects to pay a fixed penalty in accordance with subsection (5) above, the Sea Fishery Protection Officer shall detain the vessel and all persons on board until such time as payment of the fixed penalty has been effected to the satisfaction of the Sea Fisheries Protection Officer.

(7) If the vessel on which the alleged offence is suspected of taking place is not in port at the time the Sea Fisheries Protection Officer forms his or her suspicion, and the owner elects to pay fixed penalty in accordance with subsection (5) above, the Sea Fisheries Protection Officer may detain the vessel and order the Master of the vessel to go directly to a specified port, pursuant to the payment of the fixed charge.

(8) A Sea Fisheries Protection Officer, if he or she is satisfied that payment of a fixed charge as previously agreed is not forthcoming, or if the Master is found to be ineligible or elects not to pay a fixed charge in respect of the suspected offence, the Sea Fishery Protection Officer may proceed in accordance with the provisions of the following provisions for proceedings to be instituted.

(9) In the event a fixed charge is applicable and a fixed penalty is selected and the amount of the fixed penalty applying has been paid to the satisfaction of the Sea Fishery Protection Officer, no proceedings shall be instituted against the vessel in question. Record of the imposition of a penalty shall be maintained by the Department.

(10) If a fixed charge has been duly paid in respect of an offence, and if no other offences are alleged, the vessel in respect of which the fixed charge has been paid and the persons on board shall be released.".

This amendment allows for administrative penalties in conjunction with a new table and schedule of fixed penalties. It is a critical amendment. It follows the amendment I proposed last night in respect of putting in place administrative sanctions as against criminal convictions. The Minister confirmed yesterday that there is no constitutional barrier to this procedure. It would save the State the millions of euro wasted in pursuing offenders through the courts. Administrative sanctions are not available for all offences and repeated offences would result in court appearances at which previous fixed penalties can be taken into account. The level of fixed penalties proposed is high and meets the test of being dissuasive and proportional.

This mechanism should be used to deal with administrative sanctions for minor breaches of the fisheries rules. If the offender does not comply with the penalty he should be brought to court. It is an ideal opportunity and, as stated last night, is in line with the practice in other European countries and the United Kingdom. The fishermen and other interested groups, including many Government backbenchers, support the proposal.

I urge the Minister to consider and accept this amendment in the interests of the industry and of justice. If there is a two-tier system, as there will be when we impose criminal rather than administrative sanctions on fishermen, we will effectively set tougher rules and sanctions for Irish fishermen compared with those in other EU countries.

The Minister asked last night for proposals. This is a proposal which is outlined in Table 117.

I support Deputy Ferris. This is a major proposal. When we travelled to mainland Europe, we heard reports about the varying level of fines for different offences in Europe. Our report included a graph showing the level of fines for different offences which tells the story clearly. As we speak there are factory ships off the coast taking tonnes of fish with no control. The value of fish taken from Irish waters each year by foreign fleet is estimated at €2 billion. The Minister ignores this. A level of control is required on foreign factory freezer vessels which can disregard fish and keep within the controls.

Deputy Ferris made the point that this is the core of the debate. First, we were told that failure to introduce the Bill would expose Ireland to heavy fines from the Commission. This is completely illogical. We already have the highest fines for fishery offences in Europe. The Chairman is in possession of a table which highlights that fact. The EU Commission acknowledged the fact in several of its Common Fisheries Policy scoreboards. The fine of €20 million against France has been much quoted but it is irrelevant because it relates to a case dating back to 1991 and refers to inadequate enforcement by France of existing legislation. The most recent Common Fisheries Policy scoreboard shows the Department has failed to adhere properly to existing EU reporting requirements, which is the case.

We have been told that it is unconstitutional to introduce administrative penalties for fisheries offences. However, when the Oireachtas Joint Committee on Communications, Marine and Natural Resources received independent legal advice, it found that this was not the case. Administrative penalties already existed in the Department. The EU Commissioner for Fisheries and Maritime Affairs is on record as stating that he favours a system of administrative penalties over criminal prosecutions for minor offences. A total of 86% of fisheries offences in Europe are dealt with in this way.

The British minister with responsibility for fisheries launched a 12-week consultation process aimed at introducing administrative penalties ranging from €200 to €2,000 in respect of minor fishery offences. The main objective quoted in the British consultation document on administrative sanctions is to improve enforcement by providing a means of sanctioning which, in comparison with the existing system, could be applied more rapidly and effectively, increase transparency and reduce costs and uncertainty for fishermen. This would effectively decriminalise some infringements.

It is a pity that our Minister held no consultations whatsoever. If, even at this stage, he would consider engaging in consultations, it would help to deal with this problem. He could involve all the vested interests in the industry in a consultation period. The Minister seeks to have this Bill in place by next week but ignores the question of why Ireland is the only country in the European Union to criminalise its fishermen.

Those in the industry to whom I have spoken totally support measures to conserve fishery resources because the sustainability of fish stocks is critical to the future. They are aware of that because they are all business people. They would welcome a five-year business plan. They are major investors and will not burn out the entire industry overnight.

There are those who breach the law but, as we said yesterday, if that is the case, why have the Government and the Department failed to act with the fishery officers and bring about action? Under existing legislation, the Minister has ample power to deal with those who break the law. It is very unfair to castigate those who own fishing vessels as criminals or accuse them of abusing the law.

The Minister should consider that Deputy Ferris's amendment is line with the level of fines for different offences elsewhere in Europe. The Minister said yesterday that he has no regard for what is happening in Europe. Prior to this we incorporated European legislation into our law but this contravenes many aspects of European law.

Factory ships remove €2 billion worth of fish from Irish ships and we do not know what is being taken out. To meet their quotas, these fishermen select and grade the fish and throw some back into the sea. The Common Fisheries Policy is mismanaged. What the Minister is trying to do in the Bill represents the thin end of the wedge and will not solve the problem because he already has the powers to deal with it. Perhaps he can explain why he deems it urgent to deal with the Bill when he is not dealing with serious illegal activities off the Irish coast by enlisting the help of the sea fishery officers.

Some ports may not be policed. Sea fisheries officers may not be on rostered on duty. Deputy Ferris's amendment is critical. The Minister said he was looking for proposals. There should be serious criminal sanctions and we are talking about administrative sanctions for minor offences. I ask the Minister at least to agree a timeframe for consultation.

On a point of clarification, does Deputy Perry accept he was quoting from the committee's papers and not mine? These documents were from the joint committee and were sent to the select committee for its use. Was Deputy Perry quoting from the Brussels document dated 30 May 2005, COM(2005)207, which is the final document? It is the communication from the Commission to the Council and the European Parliament, reports from member states on behaviours in 2003 which seriously infringed the rules of the Common Fisheries Policy.

That is the document from which I quoted.

I was unable to accompany the Chairman on his famous trip to Brussels. The document referred to outlines how the original 15 EU states — with the exception of Ireland and the UK which are not civil law countries — have administrative systems in place. These systems are a reasonable approach towards ensuring that fisheries are conducted in a legal manner. Ireland has a grave difficulty with regard to this system, as demonstrated by yesterday's discussion and as reiterated by Deputy Perry. Irish fisheries are at serious risk from some of the countries referred to in the European legislation.

The proposal is a modest one. The Minister asked for contributions from this side of the House regarding how the proposal might work. It is very difficult for the Opposition to propose categories of penalties, although Deputy Ferris's other amendment refers to this. It is the business of Government to decide those things. Amendment No. 88 proposes a step-by-step process by which the sea fisheries officer can check with the Department's register to ascertain if penalties are to be imposed, whether the vessel has a history of previous offences and the level of the penalty to be imposed. The vessel can then be detained by means of normal procedures until the fixed penalty can be paid and there is no risk to the State. The normal detention process would then take effect, depending on whether the vessel is detained at sea or in port. Section 8 of the Bill provides that the State may proceed with action in the District Court if a previously promised fixed payment is not forthcoming within a certain time. From the point of view of the fishermen of Ireland and their families and from our point of view, if the fixed charge is paid, no criminal proceedings or criminal record will result. Minor misbehaviour or an inadvertent breaking of a fisheries regulation will not then result in a criminal record. The penalty is paid and the vessel is released.

The steps outlined in Deputy Ferris's amendment propose a reasonable process for proceeding with an administrative penalties system. The Minister accepts the view of the Attorney General which is also the view of our legal counsel, that the proposal is constitutional. The Minister says it is not suitable for this industry but we maintain it is. This is a simple procedure which could be used. There is no reason for the Minister not to accept this modest amendment which answers some of the requirements he put to us last night.

I refer to Deputy Ferris's amendment. The fishing industry as it stands is facing a dilemma. I represent fishermen and fishermen's organisations and there is a question about the future. The big worry is the future strategy for the industry. If there is a strategy it certainly is not very clear to the fishing industry or to me as a public representative. The Bill proposes the establishment of a sea fisheries protection authority and a sea fisheries protection consultative committee, which is to be welcomed. I wonder how these bodies will create a sense of balance and certainty for the industry. Fishermen have made significant investments but different signals are being given by the Government and by Europe. I welcomed the implementation of the policy by the coalition Government of 1997-2002, which included the expenditure of in excess of €60 million and €40 million on boat safety, a total of €100 million delivered by grant aid to the whitefish fleet whose main port is Castletownbere. Many fishermen incurred significant borrowings and this is the reason the industry is nervous. It is very important that the industry is not dismantled.

The Irish fishing fleet cannot be entirely blamed for diminishing stocks. There is over-regulation by Europe and by the Department. Reference has been made to extreme criminal sanctions. In case I am misinterpreted again, I have no problem with criminal sanctions because they have been in existence since before I was thought of and they must remain for serious offences. I am aware of the extensive borrowings undertaken by fishermen because I used to work as a solicitor. They are faced with rising fuel and insurance costs, they are a distance from the market place, and our rightful national cake, the fish in our waters, is being shared with other EU countries. Another worrying issue for the industry is that the price of good quality fish has been stagnant or has dropped. If one goes to a good quality fish restaurant in Dublin, the price of John Dory or monkfish will be ten or 12 times more per ounce than the price paid to the fishermen. There is something radically wrong and a real need for a strategy for the industry. I do not wish to quote too many examples but I have met fishermen from Kinsale, Castletownbere and Dingle who have told me they do not know where they are going. If we do not sift the chaff from the grain, we will do damage to the industry — if there is an industry in the future. This is a serious concern of mine and of the industry.

This Government brought in a decommissioning policy worth €40 million which I lauded and accepted but it has been exhausted. A total of 15 or 16 boats have been decommissioned in my area. They have been dismantled and their quotas are gone.

I have seen at first hand young fishermen and skippers deciding there is no future in fishing for their family. Whatever about ten or 20 years' time, I question what the industry's prospects are for the next five years.

In principle, I support the thrust of Deputy Ferris's amendments. Perhaps some tweaking could be done but we are ad idem on where we are going. Given all the difficulties faced by the industry, what is this committee saying, together with the Government and the European Union? Do we want them or not? Although it is an island, Ireland accounts for only approximately 1.5% of the entire EU fish quota system. The European stock markets will not collapse if our fishing industry suffers. There are big issues here.

I am genuinely concerned about the future of the industry. I have first-hand evidence of what is happening from meeting fishermen daily in my walk of life and as a public representative. That concern permeates the industry from Donegal to Wexford, Galway to Kerry and wherever else fishing takes place along the coastline. There is great uncertainty among fishermen who go out to earn an honest day's living.

Recently, off the coast of Kerry, when the mackerel season was closed and quotas were full, a fisherman discovered on his radar a shoal of what he thought were pilchards, which is a non-quota species. In his desire to make a few euro to cover the cost of diesel and his crew — the pilchards would not cover much more — he shot his trawls and hauled in 500 boxes of pilchards. Included in the catch, however, was 5% to 7% of mackerel, so the fisherman was in trouble straight away. He could not use a camera to determine the species or gender of the fish to be caught. As far he was concerned it was a haul of pilchards but some mackerel were also included, which is not uncommon. That fisherman did not set out of break the law premeditatedly by fishing for mackerel but there are many such difficulties, as I mentioned yesterday.

Ice and water a needed to keep pelagic fish fresh. Fishermen coming ashore must guesstimate whether they have 90, 100 or 150 tonnes of fish as well as reckoning what part of the overall weight could be made up of water. They have only a 4% margin of error either way, which is difficult to work out unless they count the fish or weigh them. A fishery officer may be told that 100 tonnes of mackerel or herring have been landed but if one is out by 10%, which is not a big margin of error, one will be heavily fined. Such fishermen are being treated the same as those who, as has been alleged recently, premeditatedly interfere with the GPS system or land many fish furtively and with malice aforethought in an undesignated port. The fish are brought to factories by people who know they are committing a crime. They may be taking a risk because they are concerned about their mortgages but it will always be wrong and cannot be condoned.

Many fishermen leave their families to go out in difficult conditions, including heavy seas. If a trawler sinks off Mizen Head or Donegal and fishermen are missing, there is a hue and cry in the media. Everyone is upset but they never think of the dangers facing fishermen every day they go to sea. Some 90% of fishermen want to earn a decent living, pay their mortgage and rear their children decently in the hope they will go through college. In ten or 15 years' time, however, I do not think the children of today's fishermen and women will be involved in fishing. We must be careful to give the right signal to the industry.

I am at the ripe old age of 50, unfortunately, and I cannot turn the clock back. I have been involved in the fishing sector since childhood but over the past 30 to 35 years I have never seen the industry in such a state of crisis. Fishermen may as well tie up their boats because they are spending fewer days at sea, often due to adverse weather conditions. In recent times, boats were unable to leave the harbour at Castletownbere for seven consecutive weeks due to bad weather. Fishermen are facing such impediments and problems but at the same time we must be fair to the industry. The sector requires confidence to proceed but at the moment we are not providing that confidence. I am worried we are giving a signal that the fishing industry is in a downward spiral and has no future. If we do that we may as well sell off the remaining quota, park the boats and import tins of mackerel and other fish from Spain, Japan or elsewhere. That would be a very sad day for Ireland and for the fishing industry.

The Government has slandered Irish fishermen. I ask the Minister, Deputy Noel Dempsey, to consider whether that slander has created the necessary environment for the Bill to be accepted by fishermen, who are the main stakeholders. That slander has generally related to the view propagated by the Minister that taxpayers will be faced with EU fines totalling millions of euro because of the activities of Irish fishermen. The Minister has said that is why he must have the Bill in its present form. The Minister should withdraw that slander, however, because the more one investigates the facts, the more one finds that the person who has possibly exposed Ireland and Irish taxpayers to fines from Europe is the Minister and his own Department.

It is important to clarify that background in order to get at the truth, which is worth investigating. I have checked the two decisions taken against Ireland in 2004 and 2005. They are two decisions of the European Court based, I presume, on the slander the Minister is spreading about Irish fishermen. The first decision relates to fishing off Norway and landings from Irish vessels in Norway. The Commission sent a formal notice to Ireland seeking information. The judgment states:

As it was not satisfied with the reply provided by Ireland, the Commission addressed a reasoned opinion to Ireland in which it called on the member state to adopt the measures necessary for compliance with that opinion within two months. . . . .

No. 11 — As Ireland did not reply to that reasoned opinion, the Commission decided to bring the present action.

How could Irish fishermen be responsible for the bringing of that action when the Minister and his Department did not comply with the requirement of the European Commission concerning the data it sought?

The other case was even worse in that it was baldly and plainly based on the fact that Ireland — the Minister and his Department again — failed to provide data on fishing effort to the European Commission. To cap it all, in its report at the end of last year it stated that France, Ireland and Portugal failed for the third consecutive year to transmit any data about their fishing effort.

I do not know what difficulty the Minister has in sorting out his Department to ensure that the information sought by the Commission is furnished to it. I do not know what explanation he has for the judgments that have been entered against Ireland because of the failure to transmit the data. He should not, however, publicly abuse Irish fishermen because of his failures and those of his Department. Unfortunately, the Dublin media swallowed the story hook, line and sinker and reports, opinions, analyses and leading articles continue to propagate this slander against Irish fishermen. The Minister's first job should be to clear the air and to admit the failures and deficiencies of his Department in this regard. If he does so, the fishermen will be more prepared to accept whatever measures are necessary in this Bill.

There is no doubt that certain measures are necessary. Some fishermen are cowboys. My understanding is that the existing law gives the Minister adequate powers to deal with these individuals. The Minister suggests he needs stronger legislation and needs to close loopholes. Fine Gael fully supports him in that. There is no problem with regard to closing loopholes or putting in place the most severe penalties against the cowboys operating in the industry. That is not the issue of concern to the 95% who are decent, ordinary fishermen trying to pursue their careers and livelihoods in a difficult and dangerous environment in which, each year, people die or suffer serious injuries as they attempt to cope with the elements. Someone quite close to me was recently affected in this way.

No one can deny what I am saying. We need a regulatory regime backed by legislation that will keep fishermen compliant with the rules, with an acceptance on their part that if they, for one reason or another, break those rules, they will be dealt with fairly, equitably, justly and reasonably. That goes to the nub of the issue. Fishermen do not want to be hauled up before the courts at major expense in respect of minor or technical breaches of the law. Under pressure yesterday, the Minister admitted that he needs the new legislation to set up the sea-fisheries protection authority which will deal with Brussels and provide all the data his Department should have been providing in the past. That is fine but he should not pretend that this has anything to do with the fishermen. It involves clearing up deficiencies and operating more effectively at official level.

We now come to minor and technical offences. The Minister has admitted that the Attorney General never stated that administrative penalties are unconstitutional. In constitutional terms, therefore, everything is fine. The Minister says he is satisfied with the Bill and that it is up to the Opposition to produce an approach. However, the Opposition has already put forward a number of amendments. My colleague, Deputy Perry, tabled a number of amendments to open the door, so to speak. Deputies Ferris and Broughan have also tabled amendments and Fianna Fáil backbenchers have spoken in support of them. We now reach the nub of the issue. Is the Minister prepared to open the door or is he just leading us on, telling us to produce amendments that he will consider and then reject? Is he prepared to have minor and technical offences dealt with in Ireland in the same way they are dealt with in the rest of Europe? That is the bottom line. If the Minister is open to that, a solution can be found. There are a number of ways of arriving at such a solution. We can specify it in the Bill and in regulations or we can provide enabling provisions. There is no difficulty in dealing with it at legislative level. I accept that detailed discussion and consultation will be needed on defining what constitute technical and minor offences. Opposition and Fianna Fáil backbenchers are up for it, but is the Minister? That is the point.

Let us take an honest approach. Is there an opening which will allow an amendment to this legislation, whether in detail or in principle, so that administrative sanctions relating to minor and technical offences — such as those already in place in other parts of the European Union and proposed to be introduced in the UK — can be introduced? Is the Minister insisting that Ireland should be the odd man out in Europe and that it will be the only country that will not have such a regime in place? As Deputy O'Donovan, my colleague from west Cork, noted, fishermen feel strongly that they are being unjustly treated. They believe they were unfairly slandered, which was the case. They do not suggest that they are angels in regard to how they run their business but they want to be treated fairly and in the same way as their competitors in other parts of the European Union. That is all they ask. If the Minister is up for it, we will find a way. If not, we are wasting our time.

We agreed to suspend at 11.30 a.m. for the Order of Business and we will return immediately afterwards.

It would be useful if Deputy Jim O'Keeffe remained to listen to my reply. He has repeated what he said last night and I responded to him then. Must I waste the committee's time going over the same business again? I will do so, if asked.

The Minister has clearly not been listening. New information has been produced. Are we talking to the wall?

The Deputy produced nothing new.

Does the Minister want me to give him copies of the judgments? Can he read them or would he bother doing so? Is he at all concerned about the situation?

We will suspend until after the Order of Business.

Sitting suspended at 11.28 a.m. and resumed at 12.28 p.m.

We shall resume with our discussion on amendment No. 88. Deputy Eamon Ryan had a comment to make and I have noted the names of other Deputies who wish to make a contribution. Several amendments deal with administrative penalties and we have agreed to vote on those rather than debating each in turn. I am advised by the clerk that I cannot stifle debate on any amendment. With the co-operation of the members, we have agreed that these amendments will be disposed of by vote. Deputy Ryan will speak on amendment No. 88.

I will reiterate what I stated yesterday. I do not have any problem in principle with establishing provisions for administrative sanctions for minor offences. However, I do not see detailing of minor offences and suitable administrative fines that I could support in any amendment before me. I do not have any objection to this amendment, in terms of establishing the procedures by which such administrative sanctions could be used, but if we are to do so it behoves us between now and Report Stage to establish in more detail what exactly is a minor offence to which an administrative sanction would apply. We can then consider it.

Regarding what Deputy Jim O'Keeffe stated about people calling other people names, it seems the most important aspect involved is science, and not criminalising or slandering fishermen. Unfortunately, Deputy O'Keeffe is not a member of the committee and has not heard the scientific presentations we heard over the past three years. The Chairman will agree that the scientists deliver a dramatic annual report of crisis and real concern regarding stock reduction and availability.

Such scientific concern was radically increased this January when the Marine Institute came before the committee. This goes back to the core of the problem. It stated that our scientists, and international scientists in ICES, no longer believe or have faith in the landing figures and, as such, the scientific numbers presented. This is not a situation where this Government or anyone on this committee is making false accusations on the basis of individual instances. There is widespread concern that the broad policy leads to a demise in stocks and that no one officially involved across the board believes the landing statistics.

If we ignore that scientific advice and reality we do not do the fishing industry any favour. Dr. Paul Connolly of the Marine Institute made a presentation to the committee in January which I thought was very telling. In discussing some of the measures we considered introducing to conserve stocks, such as closed boxes to protect cod in the Irish Sea, the scientists made a strong statement that the efficacy of those measures was diluted because of political interference to water down the provisions originally proposed. Scientists suggested one course of action and we as politicians, on the basis of vested short-term interests, diluted and removed provisions. The end result was that those measures did not work.

The cod stocks of the Irish Sea are at crisis level. We may have to shut down all fishing to protect that stock. The lesson from that is to listen to the scientists and, as politicians, not to water down their recommendations. They are stating loud and clear that they do not believe the landing statistics, and not in only a single instance. The international body of scientists, ICES, states it does not believe the landing figures.

For clarity, is that landing figures for all European countries?

Yes. We ignore the science in this issue at our peril. I have no problem supporting a motion which allows for the provision of administrative sanctions. I have yet to see a measure where it would be applied appropriately. I thank the Chairman.

I thank the Deputies opposite for the observations they made. We spent a long time discussing this amendment last night and I spent a long time responding. I will not go back through my response in detail. However, a number of issues pertinent to the amendment are worth stating. I will make some comments on the amendment itself. Leaving aside the principle of administrative fines, the level of on-the-spot fines proposed in this amendment would not deter anybody. It certainly would not be dissuasive, and would not meet EU criteria for deterrent and dissuasive legislation. For that reason alone, even if I were to accept the principle of the amendment, I could not accept the Deputy's schedule for on-the-spot fines.

I have statistics on declared over-fishing which indicate that any of the on-the-spot fines proposed would be approximately 10% of the possible value of any illegal catch. A fine of 10% of the value of an illegal catch makes a mockery of any attempt to impose sanctions. In one case from 2005, the value of the illegal catch was €440,000. The on-the-spot fine proposed here is €6,000 for a first offence. In another case, the value of the illegal catch was €570,000. Taking into account the size of the vessel, the on-the-spot fine proposed would be €1,000. In a case involving two pairs of trawlers, the value of the illegal catch was €1.75 million. According to the amendment, the on-the-spot fine would be approximately €1,000 per trawler. Regardless of the principle, this amendment and schedule would fall on any judgment of its being a deterrent or dissuasive measure.

Regarding some of the other comments made, once again I will state that in every public and private utterance I made on wrong-doing and criminality in the fishing industry, I made it clear that I did not mean all fishermen but some or an extremely small number. I stand over that until I find otherwise. I will not accept Deputy Jim O'Keeffe's effort at bluster on this to take away from the Fine Gael position, which is that it will withdraw this Bill if it ever gets into power. I will not accept his assertion that I slandered the fishing industry or fishermen generally.

The situation is that illegal activity is taking place. The sooner we stamp it out and have the powers to stamp it out, the better it will be for the industry, and for the honest and hard-working fishermen who, while they may not like the Bill, are increasingly coming to the view that if everybody is treated even-handedly there will be much less trouble and fewer problems for them. I agree with them in that regard.

With regard to overfishing, it is not merely a case of imposing fines. Somebody who overfishes his or her quota is taking fish from his or her fellow fishermen. There is a perception that some of the big boys are doing this and, as a result, we are obliged to close down the fisheries earlier than perhaps people would expect. For those who do not have the facility to go out as often as others or to catch their quota within a certain period, once we close down the fisheries, they cannot fish. That is depriving them of their livelihood. Like me, I am sure the Deputies opposite do not want that.

I have acknowledged from where Deputy O'Donovan is coming on a number of occasions. Although he is a party colleague, I would say the same of some other Deputies opposite who have tried to be constructive on this. I do not believe we should have spent as much time on this Bill as has been the case. It is distracting us from the more important developmental role we should adopt. When we complete our deliberations on the Bill, I hope we can do as the Deputy suggested. I have given a commitment to the committee that we will discuss further development. I do not accept arguments made by others that we have not done anything, that we are lax, etc. I could talk about the development of the fisheries harbours and the level of investment on the part of the State.

Deputy Jim O'Keeffe referred to safety and the tragedies that have occurred. Up to the mid-1990s, they were an all too frequent occurrence in the fishing industry in Ireland. People lost their lives on a regular basis. From the mid-1970s onwards, the Government invested heavily in the whitefish fleet. More recently, we committed €45 million to a decommissioning programme to try to ensure that those who want to remain in the industry will have livelihoods into the future.

Investment in and development of infrastructure, including in fish harbour development, etc., is at its highest level ever. As Deputies are aware, developments are taking place at Rossaveal, Clogherhead, Dunmore East, Castletownbere, Greencastle, etc. I do not accept criticism in respect of this matter. Much has been done but there is more to do in this area and the Department and I want to proceed in that regard. However, we must put our house in order.

Deputy Jim O'Keeffe was highly critical and political in his remarks and I will not respond in a political way. However, I accept that we have not been perfect in the implementation of the Common Fisheries Policy and that there have been difficulties. We tried to respond to these by increasing personnel and paying greater attention to that area. We will try to continue our work — as we are doing in the Bill — in that regard.

Another member referred to not criminalising fishermen. I certainly do not want to make a criminal of any honest, hardworking and decent fisherman. However, there are some criminals involved in the industry. Members on all sides accept that criminal activity exists and it follows, therefore, that there must be criminals. I have heard a number of spokespersons from the fishing industry say that there is criminal activity which needs to be stamped out. They, as spokespersons of the representative organisations, accept that. We must put in place legislation that will deal with the criminals. There is no point introducing wishy-washy legislation because of a perception that the majority of fishermen are nice individuals who will not break the law, who will abide by the Common Fisheries Policy, etc., and that, as a result, we do not need develop the law in this area. We need legislation to deal with the minority of individuals responsible for causing the problem.

We know of the 41,000 plus tonnes of mackerel in Scotland which was part of a sophisticated scam involving approximately €40 million worth of fish. We know from the Marine Institute report, on which I am sure Deputies have information, that there were no log books in respect of 31 out of 117 Irish whitefish trawler trips. Four or five different trawlers could have been involved in that. In the case of 86 of the trips, the quota species was under-reported by a factor of four or five. These are not minor details, they are serious breaches and we must be in a position to deal with them.

I am willing to respond positively to Deputy O'Donovan's suggestion and give a commitment that when this legislation is enacted and when we can truly say our house is in order in respect of our laws, we should sit down with representatives of the industry and discuss its future development. It would be much easier for the Minister of State or I to be in a position to inform the Commission that our house is in order and that we believe it is seriously committed to the Common Fisheries Policy and to ensuring that the latter is policed. It would also be good to be able to state that our fishermen should not be put at a disadvantage, that our fishing industry will accept the Commission's bona fides in that regard and that we want to ensure everybody is treated equally. If, at that stage, the Commission wants to say that it has no problem with mandatory fines and that it will make the administrative fines mandatory in Europe, then we can go down that route. However, we cannot do so at present.

Is the Minister saying that he accepts the principle of administrative fines and that system of such fines could run side by side with criminal sanctions for offences that are minor in nature? Is he saying that he has been on the road to Damascus, that he has finally seen the light and that he accepts that administrative fines are genuine? Having spoken to some men on the pier in Howth, I tried — from my knowledge of the industry — to consider what would constitute fair sanctions. Without the expertise at this table, it is difficult for an Opposition party to devise appropriate sanctions for offences. In light of that difficulty, would the Minister be prepared to accept a principle?

Amendment No. 88 in the name of Deputy Ferris is a modest and reasonable proposal on the steps that could be taken to implement an administrative fines system. Amendment No. 116 in my name seeks that a guarantee for the industry be included in the Bill. It states:

Nothing in this section shall prevent the Minister from bringing forward a table of administrative penalties including on the spot fines, penalty points and graduated fines under the auspices of the Sea-Fisheries Protection Authority.

In other words, I propose that the Minister would at least give a guarantee. He seems to have accepted the principle — on which I commend him — that administrative fines are constitutional, that they may not be unsuitable and that they could be a good way to interact positively with the industry and encourage people to pursue the legal path in the context of an expanded policy.

If that is the case, the Minister should accept Deputy Ferris's modest proposal, as well that in my name, which is to include a commitment to administrative penalties in the legislation. I presume that the Minister will take the Bill on Report Stage. I hope that, by then, he will have employed the skills of the officials who are present with him today to draw up an administrative parallel system similar to those transportation and traffic laws with which everyone is familiar. I am aware that it is difficult to implement some of the traffic provisions, to judge by the problems encountered by the Minister for Transport, Deputy Cullen, regarding on-the-spot fines, penalty points, cameras and so on. However, such measures must be implemented because people are being killed in significant numbers. We have succeeded to some extent in respect of traffic. I presume that Report Stage will be taken within the next week or so. Will the Minister give a commitment to the effect that when he enters the Dáil, he will be in possession of a proposed scheme for administrative penalties?

I will briefly mention two other points. While the Minister correctly noted that a vision for the industry is required, we have been waiting for it for some time. I would have liked my party to have been in Government after the 1997 and 2002 elections. I hope it will be in Government after the forthcoming election because I cannot do anything for the people I represent without being in power. This is one of the difficulties. As the Minister is aware, one gains no kudos for being in Opposition. When Fianna Fáil was in Opposition from 1994 to 1997, I recall that its members were extremely cranky and obstructive.

They were. It was incredible.

We produced 47 policy documents.

My point is there have been three Ministers——

Deputy Broughan——

The Chairman should allow me to finish my point. The Minister made a good point, to which I wish to respond.

Before the Deputy does so, he should note that my responsibility is to manage the passage of Committee Stage of the Bill.

This is a key point.

I cannot so do, however, if Deputies bring up the past. Can we stick——

I am discussing the present.

Deputy Broughan and I have got on reasonably well for the past four years. We could well be in Government together after the next election.

Anything could happen.

Will the Deputy not stick to the issue?

At present, a Government consisting of Fianna Fáil, the PDs and the Green Party appears to be emerging from this Bill.

Deputy Broughan should note that no alternative is visible.

Three Ministers have been responsible for this portfolio. The former Minister for Marine and Natural Resources, Deputy Fahey, had an entire Department.

I must stop the Deputy there.

I simply want to make the point that——

The Deputy must desist.

——the Minister raised the issue of fishing. He stated——

The Deputy has strayed from the point.

Nine and a half years have passed——

The Deputy has strayed beyond Lambay Island.

We have lost——

Does the Deputy want me to outline all the initiatives undertaken by the Government in the past nine and a half years?

Effectively, this Department has been run by the three amigos, namely, the former Minister for Marine and Natural Resources, Deputy Fahey, as well as the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, and his predecessor, Deputy Dermot Ahern. Nine and a half years later, no vision exists.

The committee visited Killybegs.

I must move the debate forward.

The Chair should allow me to finish because this goes to the heart of the issue concerning administrative penalties.

The Government spent €50 million on the harbour in Killybegs.

The committee visited Killybegs. I saw the harbour and I acknowledge that much work was done.

As for the whitefish fleet, the Deputy must have noticed all the fine boats that came——

I have been aboard them.

——to Dublin Port and to Cork. They were quite impressive.

Yes. However, other things have not happened. For example, there is a lack of harbour masters and offices.

My point is that the fishermen from Killybegs stated that we should have a vision for fisheries and not put forward the impression that it is a sunset industry. The endemic view among people who dealt with fisheries is that of a sunset, rather than a sunrise, industry. The fishermen want a sustainable, sunrise industry. All members agree that there could be a sustainable industry. Unfortunately, such a vision was not articulated before the introduction of the Bill. We could have adopted the carrot and stick approach. At present, however, the Government proposes the employment of a heavy stick before the introduction of any sort of carrot.

Given that the Minister has taken an interest in this industry, I hope he will continue to be responsible for it during the remainder of the Government's term of office. This would facilitate some coherence and members would not be obliged to try to educate someone else. My main point is that I understood the Minister to have accepted the principle of administrative penalties.

The Deputy should examine the record. I clearly stated that, when the Bill has been passed, I, along with the Minister of State, would be prepared to meet representatives from the industry to consider the future. I am also prepared to discuss the possibility of administrative fines with the Commission. If the Commission makes them mandatory, we would be obliged——

The Minister would be obliged to introduce new legislation. He would be required to return with another fisheries Bill.

I have been informed that this is not necessarily the case. If such a practice became part of the Common Fisheries Policy, it would apply.

Why will the Minister not include a guarantee within the Bill? It could consist of two lines to the effect that the Minister may introduce administrative penalties.

Because I have not yet been convinced.

The Minister does not accept it.

Order, please. Deputy Broughan should allow the Minister to speak.

The Deputy need not refer to Damascene conversions.

I know the Minister's position. That is fair enough.

I thought we were entering settled waters but the Minister has pulled back. His comment to the effect that he will talk to the interest groups involved is not significant because that is what any Minister should do. This is also true of his willingness to talk to the Commission. He mentioned that passing the Bill would make things easier for him. While members spend their days and nights trying to make life easier for the Minister and his colleagues, that is not the legislation's purpose. If there is a directive, similar to the nitrates directive or a regulation with direct application — I am never sure which is which — it will of course apply.

The Minister has not responded to what I felt to be the constructive approach adopted by the Opposition and others to the effect that it will be possible to deal with the issue of minor and technical offences by way of administrative sanction if he opens the door. However, he has not yet done so.

I will not do so. While the Deputy can discuss this all day, I will not amend the Bill. If the Opposition members consider themselves to be so knowledgeable in this respect, I will consider any amendment tabled by them. There has been much hot air and talk expended about this matter and I have not seen anything worthwhile. To be fair, Deputy Ferris has produced an attempt to deal with the position. I thought I had made it clear that the proposed on-the-spot fines would be laughed out of court. I do not mean to be disrespectful to Deputy Ferris. He at least made an effort to set down in writing what he considers to be a reasonable approach. While I disagree that it is reasonable, at least he made the effort. However, we cannot continue——

The Minister is aware that I will not be tabling any amendments. However, if an amendment were to be introduced on Report Stage, in the form of a new section that would enable the Minister to introduce administrative sanctions as part of the Bill, either immediately or in the future, would the Minister consider it?

Out of respect for any member, I will consider any amendment tabled to assess whether is reasonable, workable and legally possible. I would obviously be obliged to take advice from the Attorney General. At present, I have some legal advice. The only circumstance in which I can envisage a change is if the Council or Commission were to make regulations which mandate penalties that would be directly applicable throughout the EU and in respect of which all states would be obliged to acquiesce. If the Commission or Council opted for administrative fines, we would be obliged to follow suit. While members may spend the effort in devising approaches, I will not do so.

Opposition members have tried to be as constructive as possible, notwithstanding the occasional political response that has been drawn from us. However, we want a decent Bill and do not wish to unduly delay proceedings. The only outstanding issue concerns administrative sanctions for minor and technical offences. As I noted earlier, there are different ways of dealing with this. It can be spelled out in the Bill or an enabling section can be provided. If such sanctions are to be enabled, an enabling section must be included within the Bill to allow the Minister to so do. It cannot be introduced after the Bill's passage through the Houses. This is my last effort to effect change on Committee Stage because as the Chairman has asked us to move on to other aspects of this Bill. I urge the Minister to open the door on this or to at least indicate that he will consider doing so.

There is no point saying that if the Commission makes administrative fines mandatory, he will introduce them. They are mandatory. There is no point saying that the Opposition can come up with different versions and that he will examine them. The Minister is obliged to examine any amendment that comes before him. Is there any political will on his part to allow for the introduction of administrative sanctions in any shape or form? If there is, we will find a way. Spelling it out would probably be a complex way of proceeding and would require some time. It could be done by way of an enabling section. Another suggestion is that the officials could be made available to help in drafting something that could be agreed by all sides. There are many possibilities but they are dependent on the Minister opening the door. That is the issue. Will the Minister open the door to allow this to be done? If he is not prepared to do so, we are wasting our time.

I would welcome it if the Minister were to allow a consultation process for administrative and graded sanctions and for the decriminalisation of certain offences. Deputy Jim O'Keeffe referred to the introduction of an enabling section. Will the Minister indicate if he would consider including such a section? He said he would consider administrative sanctions if the Commission made them mandatory. The Minister knows better than anybody that this will not happen. As members are aware, 86% of all EU fisheries offences are now dealt with by way of administrative sanction. Even the Commissioner said this would be his preferred option. We could have administrative sanctions running parallel to criminal sanctions, which could be very effective for dealing with minor infringements. The Minister has been presented with an opportunity to improve the legislation immeasurably.

The issue of forfeiture of gear relates to another section. This could be dealt with by seafood control managers, who will make up the proposed autonomous control body. The Minister could propose that by January of next year he will come up with a series of graded offences which would improve the Bill considerably. The proposed consultation on the part of the Minister with the fisheries bodies, vessel owners and the aquaculture sector could also take place.

I appreciate the Chairman's endeavour to treat everyone fairly. In the past I travelled throughout the country trying to gain election to the Seanad. I hope I will not be obliged to do so again. I visited Castletownbere, Dingle, Rossaveal, Killybegs and Kilmore Quay. At that time, there was criticism of the Minister and of Government policy on fisheries. Major changes have occurred since the mid-1990s when, on my visit to Castletownbere, I saw 35 or 40 year old clapped out trawlers. When the whitefish fleet protested peacefully recently in Cork Harbour, it was obvious that there were many magnificent boats out there. I hope that will continue to be the case and that things will improve in general. This is a critical stage for the fishing industry.

I propose to table an amendment to section 28 on Report Stage. I do not want the Minister to respond to it now. It is a proposal for consideration that I have discussed at length with some of my colleagues and with representatives of the fishing industry. I am not sure if it is possible for a member of a Government party to table an amendment. I will do so and we will see what happens. I am not opposed to the Bill and neither is the fishing industry. The wording of my proposed amendment is as follows:

As soon as maybe, following the passage of this ACT, and no later than 1st January 2007 the Minister shall prescribe and publish a list of fishery offences under the Sea Fisheries Acts 2003 and 2006 to be administered by means of fixed penalties. This list shall contain a precise description of each fishery offence and the associated monitory level of the fixed penalty. Prior to publishing the list the Minister shall consult both the Sea-Fisheries Protection Authority defined in Section 42 and the Sea-Fisheries Protection Consultative Committee defined in Section 49.

(a) The Minister may amend the list from time to time following consultation with the Sea-Fisheries Protection Authority and the Sea Fisheries Protection Consultative Committee.

(b) The fixed penalties for the listed fishery offences of the Sea Fisheries Acts 2003 and 2006 will not preclude the application of any other penalties as prescribed in this Act for serious and repeated sea fishery offences.

Section 28(1)(b), Page 33 Line 3, to delete “and to the forfeiture specified in subsection (5)” and replace with “may be subject to the forfeiture specified in subsection (5)”.

Section 28 (5)(a) (b) to delete (a) lines 38 to 40 and replace (b) line 41 to 45 with the following “In the case of a conviction under Section 8 and 9 and in the case of a conviction under any provision mentioned in a table it may order the forfeiture of all or any fish and fishing gear found on the boat to which the offence related.”

In respect of paragraph (b) of the proposed amendment, as with road traffic offences dealt with in the District Court, repeated offences cannot be condoned and must be dealt with accordingly. I will circulate copies of the proposed amendment to members and the Minister.

I have no desire to cross swords with the Minister but I am concerned that the European Commission might be allowed to impose something on us rather than our being allowed to approach it with proposals. Commissioner Borg stated that his preferred option would be to introduce administrative penalties. We met many of the European fishing interests — including not only Irish MEPs but also their counterparts from Scotland, Malta and Spain — at short notice.

In response to an amendment tabled by Deputy Ferris, the Minister stated that a person might catch €500,000 worth of fish illegally and might only be fined €1,000. That is not acceptable but we must consider the effects of confiscating someone's catch and gear. I am aware of three or four cases recently in the Wexford area where those accused successfully defended their cases in the courts. In such circumstances, the catches were unnecessarily wasted and I do not know who paid compensation. The automatic confiscation of catches and gear in all cases is unfair but I agree that it should apply in more serious cases. Any good garda will know his community and, likewise, a fisheries officer in Castletownbere, Rossaveal, Killybegs, Kilmore Quay or wherever will be familiar with the genuine, hard working fishermen and also with those who previously flouted the law and who will do so again. Fisheries officers can point to repeated offenders and recommend that they go before the Circuit Court or another court. There is room for manoeuvre here.

I thank the Minister for providing a window of opportunity but I would like his offer to be more firm. I am suspicious of the notion that the European Commission would mandate us to do this. Great Britain is moving in that direction. Ireland is the only country out of 25 in the European Union that does not have fixed administrative penalties. The preferred option of the Commission is administrative-style fixed penalties and it is up to the Government to decide which penalties to implement in regard to fishermen. If we criminalise all fishermen, we will send a message to the industry that it has no future.

Will Deputy O'Donovan make some copies of his proposed amendment during the lunch break for circulation to members?

I have given out a few copies. I will ensure that the Minister receives one. The proposed amendment is an attempt to address the matter and nothing more.

It refers to section 28. We will deal with it at a later stage.

Yes. It is an attempt by me, in conjunction with some of my colleagues and the fishing industry, to address this issue.

I understand that. It can be discussed when we deal with the section.

I have copies here if they are in short supply. Every member should receive a copy. The text of the amendment was prepared by the fisheries organisations. There is no difficulty with circulating it.

Everyone, including the Minister, should receive a copy.

I will arrange for it to be circulated.

Am I correct in saying that the problem with amendment No. 88 lies with the schedule of administrative sanctions rather than the content? Subsection (9) states, "In the event a fixed charge is applicable and a fixed penalty is selected and the amount of the fixed penalty applying has been paid to the satisfaction of the Sea Fishery Protection Officer ..." From his reply, it appears that the Minister does not have a difficulty with the principle involved but that his problem lies with the schedule of administrative sanctions. I proposed the amendment on the basis that it contains a mechanism by which we can deal with administrative sanctions. The Minister may have difficulties with the accompanying schedule. That is fine. We can examine it. I urge the Minister to accept the principle of the amendment, as tabled.

To clarify matters, I stated earlier that after the Bill is passed I will engage in consultations on this matter with the Commission and the sea fisheries industry. That is basically it. I stand over what I said previously in regard to the question of administrative fines and I have heard nothing yet that would change my mind in that regard. I received legal advice on the matter. I wish to be clear and fair to members. I do not wish to leave anybody with the wrong impression.

Am I correct in stating that the Minister indicated he would be prepared to invite members to bring forward, for Report Stage, amendments relating to administrative sanctions that contain proportionate, effective and dissuasive penalties in respect of some sea fishery offences?

The Minister indicated he would not accept any amendments relating to administrative sanctions.

He did not indicate that. I know what the Minister said. Was what I said regarding his earlier statement correct?

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Broughan, Thomas P.
  • Ferris, Martin.
  • O’Keeffe, Jim.
  • Perry, John.
  • Ryan, Eamon.

Níl

  • Dempsey, Noel.
  • Fitzpatrick, Dermot.
  • Kelly, Peter.
  • McEllistrim, Thomas.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Malley, Fiona.
Amendment declared lost.
Section 20 agreed to.

The time is 1.25 p.m. We agreed that we would suspend at 1.30 p.m. until 2.30 p.m. and at 5.30 p.m. until 6.30 p.m. and that we would continue until 8 p.m. Rather than starting on a new amendment, is it agreed to suspend until 2.30 p.m.? Agreed.

Sitting suspended at 1.25 p.m. and resumed at 2.30 p.m.

We will resume.

Amendments Nos. 96, 98, 112, 117 and 125 in my name deal with administrative sanctions.

When we come to those amendments——

For convenience I will move and withdraw them.

I thank the Deputy.

SECTION 21.

I move amendment No. 89:

In page 28, subsection (1), line 17, to delete "detain the boat further" and substitute "release the boat".

The boat should be released pending the outcome of an appeal. If there was a derogation or certain conditions applied perhaps the boat could be released pending the outcome of an appeal.

An appeal triggers a rehearing of a case in the Circuit Court. Obviously, in that circumstance it is necessary to continue the security that applied during the initial hearing whether by way of security or detention of the vessel. This is merely restating current law. It is a very rare occurrence that the vessel is detained as security. The usual procedure is that bonds are put in place and that satisfies the court.

The effect of this amendment would be that many people would decide they had nothing to lose by appealing cases because bonds and everything else would be gone. For that reason I cannot accept the amendment.

Amendment put and declared lost.

I move amendment No. 90:

In page 29, subsection (2)(a), line 3, to delete “his/her” and substitute “his or her”.

This is a typographical amendment.

Amendment agreed to.

I move amendment No. 91:

In page 29, subsection (2)(a)(i), line 8 to delete “maximum”.

This amendment seeks to correct a flaw in the Bill which might suggest in setting a bond for a vessel that a judge would have to put a bond in place for the maximum penalty. The deletion of the word "maximum" allows for the judge to use his discretion. Subsection (2)(a)(i) would then read “payment of the fine ordered ...”

With regard to the judge, discretion has been given to somebody appointed by the Government to a judicial position. DeputyFerris's amendment is good because it gives the total discretion to a Government appointee as a judge of the courts. In most cases the judge has discretion. There are very few court cases where the judge would not have discretion. He should have discretion.

The wording in subsection (2)(a)(i) is in the current legislation, that is section 235 of the Fisheries (Consolidation) Act 1959, No. 14, as replaced by section 14 of the Fisheries (Amendment) Act 1978, No. 18. Regard must be had to the level of fine which could be imposed but the wording in this amendment is such that a bond, including the maximum fine, is not necessarily required. The subsection also contains the words “which may be ordered”. They allow the judge concerned to consider the fine that is likely to be imposed in the particular case and conviction for the offence or offences in question when fixing the amount of the bond required. What the Deputy might be trying to achieve in this amendment is the intent of the section as is and has been and is readily understood by the court. The only other point I would make is that judges would not consider themselves to be nominees of the Government. Once appointed to the Bench they take an independent view. It is not the same as a sea fisheries control officer or whatever. The intent of the amendment, broadly speaking, is contained in the section.

Does that satisfy the Deputy?

Amendment, by leave, withdrawn.
Section 21, as amended, agreed to.
SECTION 22.

Amendment No. 93 is an alternate to amendment No. 92 and it is proposed to take the two together by agreement.

I move amendment No. 92:

In page 29, subsection (1), lines 41 to 44, to delete paragraph (c).

Section 22(1)(c) states, “in the event of such fine and costs, if any, not being paid within the said time, such fine and costs, if any, may be recovered by distress and the sale of such boat, including the capacity thereof”. That is a severe penalty. The purpose of this amendment is to prevent the State from forcing the sale of a boat or selling the tonnage and megawatts associated with the boat. I ask the Minister to delete paragraph (c) to protect the integrity of the boat and because it is an extreme measure.

I support Deputy Ferris's amendment. Deputy Perry and I discussed deleting the quota constraint. If we compare the fishing industry with other businesses, the basic implement used by fishermen can, under paragraph (c), be sold out from under them. That is a severe penalty. If a liquidation occurs in most other businesses, matters could come to that through someone — this has been the case in the past with small businesses — owing money to the Revenue and so on. There is a direction in paragraph (c) in respect of the recovery of fines and costs in respect of offences which permits the sale of the implement out from under the owner. The latter, as already stated, is a harsh penalty. I urge the Minister to examine the two amendments.

I support the amendment, the purpose of which is to prevent the State from forcing the sale of a boat for failure to pay a fine. The circumstances must be exceptional in such cases. If people do not have any other way of paying a fine, what will happen?

It must be remembered that we are not just dealing with Irish fishermen and that the provision will apply across the board. This provision has been in the legislation since 1959 and it arises where a boat has been detained and where, for one reason or another, a security has not been provided. The benefit of a bond for enforcement purposes is that the fines can be obtained immediately from the bank providing the bond. Where there is not any security for the vessel, which has been detained up to the time of conviction and detained further after conviction, the redress for payment of the fine is against the vessel per se. If we have no means of getting the fine once it is imposed, that would cause major difficulties.

A recent example concerns a Spanish vessel detained in Dingle in respect of which the owners did not consider the provision of a security worthwhile. A fine was imposed. There was no bond in place and the only remedy was to sell the vessel, which was not worth much. The licensed fishing capacity of the boat was worth thousands of euro, far more than the vessel itself, but the capacity had been sold by the owners who were getting out of the fishing industry. Only the fabric of the vessel, not the value of the capacity, could be taken.

What we are trying to do in this section is to ensure that an owner of a boat cannot avoid the financial consequences of illegal fishing by forfeiting an old boat in lieu of a fine and selling on the fishing capacity attached to that boat for another purpose. That would defeat the purpose of the section. The case in Dingle to which I refer — I will not name the vessel, although I will give the Deputies the name if they wish — was in Irish-Spanish ownership. That is the type of case the section is designed to counteract.

I accept the merits of the Minister's argument regarding Spanish fishing vessels and unscrupulous people with obsolete vessels who sell on the tonnage. This is also applicable to Irish fishermen, many of whom are struggling to survive. That point was made vividly this morning by Deputy O'Donovan. What will happen if a penalty or fine is imposed on an Irish fisherman who does not have the means to meet it? There is probably a way around this problem. Perhaps a charge could be put on a boat or the tonnage and megawatts associated with it until such time as the fine is paid but the vessel should not be sold. The State will be placed in a position where it may be obliged to sell tonnage associated with Irish trawlers or to sell trawlers that belong to Irish fishermen. Some provision should be made to protect against that and also to safeguard the integrity of vessels.

Is it not the case that there is a provision in the Merchant Shipping Act whereby a vessel can be sold? On two occasions since I was appointed as my party's spokesperson on this area, vessels entered Dublin Port, the crews of which had not been paid. SIPTU and its sister international union, the International Transport Workers Union, having been contacted by the crews, effectively had the ship arrested by the harbour master, Captain Connellan. I understand the ships were then sold and the crews got their wages. Some people in the Department are aware of those cases. Is there not a legislative provision in respect of shipping or maritime generally? Why is it necessary to include this provision in the Bill, given that this is an extraordinary penalty to impose on a fishing vessel? I understand that bulkers, carriers, etc., were involved in the cases to which I refer but we appear to have the power to seize a vessel where debts are to be discharged.

There are provisions in the Merchant Shipping Act but we are dealing here with sea fisheries. The phrase "may be recovered by distress and the sale of such boat" is used in the section. It is not a compulsory measure but it represents a clear marker that these offences will be dealt with in a serious manner. It has been in place since 1959. We can argue the case with some people about its effectiveness up to now but removing that threat would weaken the Bill. For that reason, I will not accept the amendment.

Amendment put and declared lost.

I move amendment No. 93:

In page 29, subsection (1)(c), lines 43 and 44, to delete “(including the capacity thereof)”.

Amendment put and declared lost.

I move amendment No. 94:

In page 30, subsection (3), line 15, after "him" to insert "or her".

This is a drafting amendment.

Amendment agreed to.

Amendments Nos. 95, 104, 106, 185, 186 and 209 are cognate and it is proposed to discuss them together by agreement.

I move amendment No. 95:

In page 30, subsection (4), line 19, to delete "€5,000" and substitute "€3,000".

This amendment proposes to reduce the fine from €5,000 to €3,000. Under the regime of fines, the Minister indicated that he might consider an administrative mechanism to deal with minor infringements. Perhaps he might comment on that.

The maximum fine for summary offences across the board in legislation is €5,000 and we would not impose one below that level. It is a maximum fine but it does not have to apply in each case.

There is discretion in that regard.

Yes, that is the maximum fine.

I will withdraw my amendment.

The benefit of the provision is that when the Bill is enacted, more cases can be dealt with in the District Court as opposed to having to be dealt with in the Circuit Court if a higher fine applied.

This matter could be dealt with by way of an administrative fine when the Minister has had his final conversion.

The Deputy can live in hope.

Amendment, by leave, withdrawn.
Section 22, as amended, agreed. to.
SECTION 23.
Amendments Nos. 96 to 98, inclusive, not moved.

I move amendment No. 99:

In page 30, subsection (1)(i), line 30, to delete "and" where it secondly occurs and substitute "or".

This is a technical amendment.

I will stay at the captain's wheel.

The skipper is sitting across from us and the captain is sitting at the top of the table. This is like a Spanish boat.

No, a French boat.

This is a technical amendment. It proposes in line 30 to delete the word "and" where it secondly occurs.

I agree with what the Deputy proposes.

Does the Minister agree with me?

My God, that is a first.

Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.

I move amendment No. 99a:

In page 30, subsection (1)(b), line 46, after “Part” to insert “(other than section 18)”.

Amendment agreed to

Amendment No. 103 is related to amendment No. 100, amendments Nos. 102 and 103 are alternatives to amendment No. 101, so amendments Nos. 100 to 103, inclusive, may be taken together.

I move amendment No. 100:

In page 31, subsection (1)(d)(i), lines 5 and 6, to delete “section 17(1)(g) or 18 (1)(f)” and substitute “section 17(1)(i) or 18(1)(g)”.

The Deputies opposite noticed inaccuracies and tabled amendments to correct them. These are amendments to correct typographical errors in references to provisions in two of the other sections.

Amendment agreed to.

I move amendment No. 101:

In page 31, subsection (1)(d), to delete lines 9 to 14.

This amendment relates to the clause that allows for the imposition of a fine of €5,000 for not giving another person's name to a sea fisheries protection officer. Such a fine is excessive. Furthermore, it is unacceptable to put such an onus on a person aboard a vessel who refuses, for whatever reason, to give the names of other people on board.

I cannot accept this amendment. The section is merely a restatement of an existing provision in section 231 of the Fisheries Consolidation Act 1959 and in section 15 of the Fisheries (Amendment) Act 1994. It is an essential enforcement power and parallel powers exist under the inland fisheries law. We cannot allow a situation where a captain of a ship or another person refuses to give the names of people on board a vessel because it would make it impossible to pursue and enforce the Act. I cannot, therefore, accept the amendment.

In his reply, the Minister effectively read my amendment No. 102. I understand the reason my colleague, Deputy Ferris, wants to withdraw subsection (1)(d). Subsection (1)(d)(ii) states: “name and address of any other person is lawfully requested of him or her by a sea-fisheries protection officer”. My amendment proposes to delete the words “is lawfully requested of him or her” and substitute the words “on board is lawfully requested of the master of a sea-fishing boat”. The Minister has said that it is fair to ask the master to give the names of the persons on board as he would know his crew. However, to subject an ordinary fisherman to such questioning is probably ultra vires. Given what the Minister said, will he accept amendment No. 102?

No, it is not possible to accept it. It relates to the point about our friends, the French skippers, masters and so on. It is a matter for any person lawfully requested to give his or her name. The power to request the name applies to situations other than on board a vessel. This relates to the point I made yesterday about the chain of criminal activity. This is a reference to offences by persons transporting, off-loading or in possession of fish which is suspected of having been caught illegally. This provision has a wider remit.

This provision could only apply to our jurisdiction but, as worded, it could apply to a wider remit. Would it not be preferable to try to tie it down and agree that it is fair to ask the master of a vessel to supply information?

This provision refers to section 17 which deals with premises as well as circumstances on board boats. It has a wider remit than this section. It deals with quaysides, lorries, roadways and so on.

I will withdraw my amendment in favour of amendment No. 102.

Amendment, by leave, withdrawn.

I move amendment No. 102:

In page 31, subsection (1)(d)(ii), lines 9 and 10, to delete “is lawfully requested of him or her” and substitute the following:

"on board is lawfully requested of the master of a sea-fishing boat".

Amendment put and declared lost.

I move amendment No. 103:

In page 31, subsection (1)(d)(ii), line 11, to delete "section 17(1)(g)” and substitute “section 17(1)(i)”.

Amendment agreed to.

I move amendment No. 104:

In page 31, subsection (1), line 16, to delete "€5,000" and substitute "€3,000".

Amendment, by leave, withdrawn.

We now come to amendment No. 105.

This amendment was dealt with by way of ministerial amendment No. 81a which amends section 18, the latter being the more appropriate section for this purpose. I accepted the intent of the amendment.

Does anyone wish to move the amendment?

No, I do not wish to move it.

May I ask a question? We hear a great deal about penalties, fines and the criminal element involved in fishing. In the past decade, has any fisherman — on foot of an offence relating to fishing and not any other offence — been incarcerated in this jurisdiction?

I want to get the procedure right in the event that a question about it arises later. Is the Deputy referring to amendment No. 105?

Yes, and amendment No. 104, which deals with the same matter.

Is it not possible to proceed to amendment No. 106 in order to deal with this matter?

I am advised that I cannot do so. I am obliged to deal with the amendments individually.

Is it not possible to complete the discussion on amendment No. 105?

No one moved amendment No. 105.

So the amendment falls.

Amendment No. 105 not moved.
Section 24, as amended, agreed to.
Amendment No. 106 not moved.
Section 25 agreed to.
SECTION 26.

I move amendment No. 107:

In page 32, line 7, after "faith" to insert "and intended to be in accordance with law".

Section 26 refers to the immunity of sea fisheries protection officers, which is dealt with in existing fisheries legislation, and states:

A sea-fisheries protection officer or a person acting under the orders of a sea-fisheries protection officer is not liable in any proceedings for anything done in the purported exercise of the powers of a sea-fisheries protection officer under this Part if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

Those are the two conditions. On the previous occasion on which we dealt with maritime legislation of this nature, I tried to have inserted a similar type of amendment to the effect that immunity can only exist if the action is lawful. We are providing people with wide-ranging immunity in this instance. Looking at it from the viewpoint of the master and crew, who may feel they have been treated unfairly, the sea fisheries protection officer has wide legal protection. In my view it may be too wide in that the section states, "... for anything done in the purported exercise of the powers of a sea-fisheries protection officer under this Part if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it". Each of them would have to be examined by a judge in court. It would be wise to say that any of the actions must be in accordance with this Bill and previous Fisheries Acts. If that is not inserted, the person would be acting ultra vires. The amendment aims to copperfasten the powers of a sea fisheries protection officer under this Part but it must be done in accordance with the law.

A Minister of State, Deputy Browne, accepted one of my amendments to pollution legislation concerning the powers of officials. The amendment enters that caveat concerning section 26.

I will not be accepting this amendment, although I accept the Deputy's bona fides in tabling it. It is, however, unnecessary to qualify the phrase "in good faith", which is used in most legislation in respect of the enforcement powers of gardaí and others. We must maintain a balance. Earlier, we were given two or three different kinds of defence to alleged wrongdoers to try to be fair to them. It is important that a balance be struck. Equally, it is important to have a balance concerning people going about their jobs in good faith, trying to implement the law to the best of their abilities and not acting maliciously. If they act maliciously, they can be dealt with. They cannot do things willy-nilly. The Deputy correctly referred to acting in good faith but they must also act on the basis that there are reasonable grounds for doing whatever they are doing, even when they are enforcing the law. That is a double-lock for enforcement orders that will prevent people from exceeding their powers or acting in a malicious manner.

As the Minister knows, there is the famous triple-lock mechanism which must be activated before we send Irish troops abroad. Perhaps there should be a triple-lock in this instance. I will withdraw the amendment but I may return to the matter on Report Stage.

Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.

I move amendment No. 108:

In page 32, subsection (2), lines 39 to 41, to delete paragraph (d).

This amendment strikes out a power in the Bill whereby if a District Court judge dismisses a case for whatever reason, the State could then re-enter it in the Circuit Court. Effectively, we are allowing cases to be tried twice, which is excessive. If a District Court dismisses a case, obviously that is being done on the evidence presented and that should be end of the matter. It may even be challenged from a constitutional viewpoint. I ask the Minister to take cognisance of the amendment.

I support Deputy Ferris because there is a double jeopardy here, which should not be allowed. If a case has been struck out in the District Court, how could one possibly utilise the same charge again in any further proceedings? It seems bizarre and ultra vires. We should not insert such a provision into the Bill. It does not apply solely to fishing matters but to everything.

I am advised that the striking out of proceedings in the District Court, before the hearing of evidence, often arises due to a technical or procedural point but that does not prevent the matter from being brought up in the court again in its proper form. We are not, therefore, talking about double jeopardy or evidence being heard, although most people have a right to appeal in any event. We are talking about the striking out of proceedings before any evidence is heard, so there is no double jeopardy involved.

Amendment put and declared lost,
Section 27 agreed to.
SECTION 28.

Amendments Nos. 109, 110, 114, 118 and 120 are related. Amendments Nos. 112 to 114, inclusive, are alternatives to amendment No. 111. Amendment No. 119 is an alternative to amendment No. 118. Therefore, amendments Nos. 109 to 114, inclusive, and 118 to 120, inclusive, plus the amendments to amendments Nos. 118 and 120 may be discussed together.

I move amendment No. 109:

In page 33, subsection (1), line 3, after "specified" where it firstly occurs to insert the following:

"in respect of the category of sea-fishing boat mentioned in that column".

This amendment is consequential to the substitution of the revised table 1 and table 2 in section 28, which provides for the gradation of the maximum fines by reference to different category sizes of sea fishing boats. Members will be aware that there was quite an amount of discussion about this on Second Stage and before the committee.

Over the Christmas period and into January, we examined this carefully to meet the concerns Members had about smaller vessels being caught for what was being termed as "unfair levels of fines". We have had the debate on administrative fines, of which I believe we have disposed. We came forward with a new suggestion in this regard which means the fines are now based on the size of the vessel.

It is worth stating again that the amounts involved in respect of smaller vessels are now generally one fifth of the fines level in the Bill. For medium-sized vessels, the fines are approximately one half and, in most cases, for larger vessels, there have been reductions of between 20% and 50%. They are maximum fine levels. The gradation of the fines based on vessel size has been drawn up taking account of the requirement in EU law that member states have in place a system of dissuasive fines and sanctions. We are probably sailing close to the wind with some of the reductions. I thought Members opposite would have welcomed them more fully.

The automatic confiscation of catching gear only applies to Irish vessels. That must be changed to allow the issue to be decided at the discretion of the courts. Proportionality is required and the fines and penalties in the Bill must be reduced. The Minister has gone some way on this but not far enough. The underlining principle must be that only serious fisheries offences attract serious penalties.

My amendment No. 110 states: "In page 33, subsection (1), line 3, after ‘and' to insert ‘may be subject'", while my amendment No. 111 states:

In page 33, lines 35 to 45, to delete subsection (5) and substitute the following:

"(5) Where a person is convicted on indictment of an offence specified in a Table, in addition to any fine the court may impose under this section, it may order the forfeiture of all or any fish and fishing gear found on the boat to which the offence relates.".

These amendments are critical because forfeiture should not be automatic but at the discretion of the judge who can decide on action depending on the severity of the offence.

The level of fines set out in the Bill are disproportionate and out of sync with the EU average. What is needed are administrative fines, which we have discussed. The Chairman got advice on this. The issue is whether administrative sanctions can be brought in. As there is one law for Irish vessels and a different one for Spanish vessels, the judge has no discretion. That is something on which the Minister could concede.

Deputy Ferris is withdrawing amendment No. 112. Would he like to discuss amendment No. 113?

Amendment No. 113 seeks to remove the provision for the automatic confiscation of gear and catch for cases in the Circuit Court. Sometimes it could be much more valuable than the fine imposed. Again, it is double jeopardy and the further penalisation of the fishing vessel and those working on board.

I support Deputies Perry and Ferris on this issue. Both amendments try to achieve the same objective, namely, to give some discretion where there is a conviction on indictment so that forfeiture would not be automatic, as it is in the Bill. The Minister said earlier that judges have a job to do and that they are independent. We are independent. We have a separation of powers system, like the United States, and it is right and fitting to give judges discretion in this regard given that fishing gear is such a significant part of the profession.

Without going into the issue again and regarding the discretion of the courts and so on, after the lunch break I spoke to a fishery officer who I know for many years and who is working in another part of the country and, therefore, does not interfere with my area, the south west. He said that in many instances, they do not want to drag fishermen into the Circuit Court. If the administrative fines system is not possible — I am still not giving up on it — why not have a system like that which applies in respect of most other charges, including even in criminal charges, where a person is brought before the District Court and arraigned? One would have two or three days to consider the matter.

In the case of a serious charge where significant overfishing of the quota occurs, why could it not be decided to deal with it on a summary basis as in many other cases such as street violence or assault? If the judge is of the view that it could be dealt with summarily and the parties agree, it is simpler and quicker than going to the Circuit Court. It is ludicrous that we do not use the easy route rather than starting at the top. A fishery officer could say to the District Court judge that it is a serious case, that it is the second or third time the person has offended and that it should be tried in the Circuit Court where there are stiffer penalties and greater sentences.

With all the talk in the media, has any fisherman ever been incarcerated for overfishing or for a fishing offence other than assaulting a fishery officer? I am not aware of any fisherman who has been imprisoned for three or six months because of a serious fishing offence.

On Deputy O'Donovan's last question, no fisherman has been imprisoned because it is not contained in the code nor do we intend to include it for fisheries offences. The Deputy is right that a fisherman could be imprisoned for assault of a fishery or naval officer.

I will reiterate the second point because I do not know if we are talking at cross-purposes and about different sets and codes of activities. Any illegal fishing by a foreign vessel within Ireland's exclusive fishery zone, which we must police, is prosecuted in like manner to an Irish vessel found fishing illegally in that area. There is no distinction between the two. If one is fishing illegally, the same penalties apply.

Does the judge not have discretion on the confiscation of gear, in that he has no discretion in the case of an Irish vessel but has discretion in the case of a foreign vessel? Is that not correct?

No, there is no discretion.

Is the Minister sure? I was led to believe that the judge had discretion on the confiscation of gear.

I accept that the Deputy was, and many people are under that impression because it has been stated and restated. However, the legal position is that any illegal fishing by a foreign vessel within Ireland's exclusive fisheries zone is subject to prosecution in like manner to an Irish vessel found fishing illegally and the same penalties apply. If a foreign vessel is found loitering with intent, misbehaving or whatever in Irish waters but is not found fishing illegally, then the confiscation does not apply and it is up to the court. There is discretion in that case. Any illegal fishing——

That is an interpretation. How did the Minister get that? Is he messing around? What does he mean by that? If they were not fishing, what would they be doing?

They could be harassing our fishermen, as they do frequently, trying to prevent them from fishing or getting to the location of the fish, or such activity.

Returning to the general point that has been made by Deputies, the reason all of us are coming under such pressure to move away from automatic confiscation of fish and gear is because it is such a critically important element in ensuring that the penalties imposed for illegal fishing are dissuasive and a deterrent, as they must be because of the basic obligation imposed on the State under EU law. The levels of forfeiture that apply to indictable offences act as a considerable deterrent and set a proportionate penalty. All the legal advice available to me is that the automatic forfeiture provision is probably the most critical element of the penalty structure in that it ensures that the penalty in its totality is dissuasive.

I have heard Deputies on all sides of the House speak about this. I remember legislation that was supported by every party — Deputy Broughan, in particular, would remember it because it dealt with drug offences — which involved a mandatory penalty with a rider that the judge could take into account specific circumstances. That discretion has been used by the courts in probably 95% of cases to reduce the mandatory sentence the Oireachtas clearly wanted in that legislation. I am much happier that people, when they are caught, would have a good idea that at a minimum they will lose the economic benefit of whatever illegal fishing they have done. For that reason, I am even more determined that this aspect will not be changed.

For the information of the House, in 2003 the average catch value forfeiture was €5,460 for Irish fishermen and €6,575 for non-Irish fishermen. In 2004 it was €6,580 for Irish fishermen and €19,525 for non-Irish fishermen. In 2005, the figures were almost equal — €6,250 for Irish fisherman and €6,300 for non-Irish fishermen. The average gear value forfeiture in 2003 was €2,777 for Irish fishermen and €2,470 for non-Irish fisherman. In 2004 it was just over €1,900 for Irish fishermen and €10,750 for non-Irish fishermen and last year it was €840 for Irish fishermen and €3,500 for non-Irish fishermen. For the past few years virtually the same number of confiscations took place between Irish and non-Irish fishermen.

What happens to the confiscated gear? How is it dealt with subsequently?

The general practice is that people have the opportunity to buy it back and the State gets the value of it.

To what does the figure €2,470 relate?

The €2,470 relates to the gear confiscated from non-Irish fishermen in 2003.

Is that the average value?

It is the average value of the gear.

Those figures would indicate that the offences detected and the value of the catches in particular in the case of the Irish boats — I am not too concerned about foreign vessels — are relatively small, which is probably positive news considering all one hears. I was a little puzzled by what the Minister said previously that a pair of trawlers might have €1 million worth of fish. Unless the fish were made of gold, it would be nearly impossible for the catch to be of that value. Given that the average value of the catch on an arrested boat is probably less than €5,000, these are not hanging offences. Obviously, it would depend on the species and whether they were undersized fish or a protected species. If it were €5,000 worth of mackerel or monkfish, however, while I do not condone such an offence, it belies the impression that there are guys bringing in €1 million worth of fish day after day. Those are not the facts and these statistics support this.

On the other point raised earlier, if it is true that Europe is condemning us for not supplying these details, why have these details not been supplied to the Commission? The Minister's response supports the argument we are trying to make in this committee, namely, that many of these offences are relatively small. If a fellow was caught with €500,000 worth of valuable fish, then that confiscation would be a serious dent in his pocket. As the Minister spoke of the average, I would go further and state that many of these offences involve less than €1,000. Examples would be the fellow who came into Castletownbere with two boxes of monkfish or the fellow with a few pilchards.

What happens to the catch when it is confiscated? Is it destroyed or is it canned and sent to the Third World? Are we just wasting it or what happens? If fish are caught, is it not a shame to throw them out? We might make good use of them. One should penalise the fisherman but not let good food be wasted.

I agree with the Deputy on the latter point and that is what is done as much as possible at this stage. He makes his first point well and I have been making it all along in this legislation. Ordinary, decent, honest fishermen do not have much to fear from the provisions of this Bill. We are not trying to do a job on such fishermen who make a mistake through the circumstances the Deputy referred to previously where they put down their nets and happen to go over quota. I am trying to do something about those who land €40 million worth of fish into a Scottish fish factory and who come into Irish ports at the dead of night and land €100,000, €300,000, €500,000 or €1 million worth of fish.

I accept what the Deputy said. Both of us can feel vindicated in our positions, as I am sure can the fisheries organisations. The legislation is necessary to remove criminals from the industry so that honest fishermen can earn a decent living.

The guy who lands €40 million worth of fish illegally in Scotland or Norway should be dealt with severely.

Everybody agrees.

If a fisherman is over quota and the value of the fish is only €4,000, his catch and gear are confiscated and he is dragged through the courts. I can outline at least a dozen examples of fishermen who were fined €50,000 for being as little as €500 over quota. These men should be protected and helped, not the guy who makes €40 million. A few weeks behind bars rather than heavy fines might be more appropriate for serious offenders.

Cases can be taken in the District Court where lower fines can be given to look after the small operators to whom the Deputy refers. The legislation, when it is enacted, will provide for the more minor, technical cases to be taken in the District Court.

The committee will now discuss amendments Nos. 118 to 120, inclusive.

As a direct response to the committee, Deputy O'Donovan and others in my party and the industry who lobbied on this, we have introduced new graded fines. I ask the committee to look on them as an honest effort to meet the concerns raised.

I call Deputy Broughan to discuss his amendment to amendment No. 118.

I welcome the Minister's return to the drawing board. The Bill, as drafted, was farcical. The Minister stated significant cases will be taken shortly and he referred to the record of the courts. As Deputy O'Donovan pointed out, forfeitures averaged a small amount and the penalties involved were harsh. The 1959 Act was upgraded but the Minister has not given more discretion to judges regarding different sized boats in the fleet, which is regrettable. The new penalties, however, are a welcome step forward.

When conducting research for my amendments, I read COM (2003) 782, which the Chairman has quoted extensively, and the reports of member states on behaviour that seriously infringed the rules of the Common Fisheries Policy in 2002. Penalties, other than administrative sanctions, were used but they were harsh. I welcome the Minister's efforts to go at least part of the way by providing categorisation of boats. My amendment proposes a fairer system which puts boats in two categories.

If administrative penalties were provided for, together with the categorisation of boats, people would say it was a reasonable day's business. Domestic fisheries organisations have provided us with information regarding Dutch factory ships that breach the Common Fisheries Policy right, left and centre by grading fish on board and using special outlets, which means their discards cannot be detected. It is extraordinary. The Scottish Executive's fisheries policy is entitled A Sustainable Framework for Scottish Sea Fisheries. It contains a proposal for administrative penalties. I do not know why the Minister has failed to produce a similar policy document in the 15 months he has been in office but none was produced by previous regimes either. Padraig White did valuable work when he produced a great report in 1999, which has been my bible. He also did work for the Minister regarding scallop fishermen, which was also helpful.

Irish people have a great feel for this subject, as most people are within 70 or 80 miles of the sea no matter where they live, but it is extraordinary that more information is not available. The Minister is feeding us with information that is not on the public record. However, Scotland, which is not an independent state, has a good fisheries policy. There is a dearth of information and it is difficult for Opposition Members to comment on penalties and amounts. The Minister is providing us with information for the first time about fundamental issues. Despite the dearth of information, the proposed penalties, together with administrative sanctions, will result in a much better regime, but it would still be correct to reduce the penalties and that is why I tabled my amendment.

I welcome the Minister's approach and the proposed lesser penalties and graduated fines. However, he is only half way on the road to Damascus and I would like the journey to be completed.

Damascus is a long way away. I will ensure I do not fall off my horse.

Meath horses are steady. I am bemused by the argument that smaller vessels can do less damage and I do not buy it. For example, if a 65 ft. vessel sails into an area in which cod is protected and catches a full load of cod, it can do severe damage. The size of the boat should not necessarily be a factor in whether the punishment should be light or severe. This proposal does not grasp the nettle on the penalties issue.

Has an effort ever been made to include fishing industry representatives in the partnership talks? I heard recently that the farming community had bailed out of the partnership talks because of problems with the nitrates directive and so on. Perhaps they are correct. Were fishing industry representatives ever included in the talks? This is a huge issue, as sometimes fishermen appear to be outside the loop. They should have a say in such talks. I discussed the matter with the previous Minister of State, Deputy Gallagher. In my area the mussel industry has been closed for one year because of the presence of toxins. The industry is crippled, with people losing money, their jobs and so on. Can the Chairman, please, advise me on the matter?

The Minister has indicated several times today that fruitful discussions will take place following the passage of the Bill and has asked for the support of the committee. We are also discussing amendment No. 119.

It is like closing the stable door after the horse has bolted.

We have discussed amendments Nos. 109 to 114, inclusive, and amendments Nos. 118 to 120, inclusive.

Amendment agreed to.

I move amendment No. 110:

In page 33, subsection (1), line 3, after "and" to insert "may be subject".

Amendment put and declared lost.

I move amendment No. 111:

In page 33, lines 35 to 45, to delete subsection (5) and substitute the following:

"(5) Where a person is convicted on indictment of an offence specified in a Table, in addition to any fine the court may impose under this section, it may order the forfeiture of all or any fish and fishing gear found on the boat to which the offence relates.".

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Broughan, Thomas P.
  • Ferris, Martin.
  • O’Keeffe, Jim.
  • Perry, John.
  • Ryan, Eamon.

Níl

  • Dempsey, Noel.
  • Fitzpatrick, Dermot.
  • Kelly, Peter.
  • McEllistrim, Thomas.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Malley, Fiona.
Amendment declared lost.
Amendments Nos. 112 and 113 not moved.

I move amendment No. 114:

In page 33, subsection (5)(b), line 41, after “any” to insert “other”.

Amendment agreed to.
Amendment No. 115 not moved.

I move amendment No. 116:

In page 34, between lines 24 and 25, to insert the following subsection:

"(8) Nothing in this section shall prevent the Minister from bringing forward a table of administrative penalties including on the spot fines, penalty points and graduated fines under the auspices of the Sea-Fisheries Protection Authority.".

We have had a long deliberation on this issue. It is the one of the core issues remaining in the Bill which many fair-minded people would consider deficient. Much work has been done to try to tease out the issue and at this stage the legislation is probably the most scrutinised legislation we have had in the history of the Dáil.

To clarify the Minister's position, administrative penalties are constitutional, but may be unsuitable for some elements of the industry. He says, and everybody around the table agrees, there has been some criminal behaviour by a minority. This must be dealt with through the full rigours of the law, and we accept that. We all want a transparent penalty system for sea fisheries. The majority of people in Rossaveel, Castletownbere, Howth, Killybegs, Kilmore Quay, Dingle, Fenit or any other important port would give the same response.

Through this amendment I want to give the Minister an opportunity, He has had a Damascene conversion overnight, following agitated meetings between some backbenchers and the Taoiseach and between him and the Taoiseach, and we now have a changed——

How stands the amendment?

We have arrived.

We agreed before lunch that we would not discuss——

There has been a conversion and the Minister has been baptised into administrative penalties. He has had a Pauline conversion. He should step forward with us. This is the key and crunch point. It is also the crunch for the seven infamous Fianna Fáil Deputies who have voted down each of the Opposition's valiant attempts to introduce such penalties. Those infamous names will be recorded on every quay wall in the country. They will be remembered——

I am trembling at the thought.

Is Deputy Broughan one of those?

They will be remembered as the "criminalistion of fishermen seven", six desperate Fianna Fáil Deputies and one desperate Fine Gael Deputy. I am giving the Minister the opportunity to protect those Deputies and himself.

How stands the amendment?

I am trying to make a point. The Minister has a chance——

The Minister has spoken on this already.

I am entitled to speak on this.

Yes, but the Deputy agreed before lunch——

The point is, the Minister has had a conversion, whatever happened overnight, and is now in favour of administrative penalties. My amendment suggests that he should come a step further and agree that administrative penalties be included in the Statute Book for fisheries from now on. He has moved part of the way with regard to criminal sanctions and penalties but he should include a reference stating that nothing in the section shall prevent him from bringing forward at a later stage regulations on administrative penalties and placing the proposal in the Library. We could then call for a debate on it and follow procedure under the 21-day rule. Therefore, this amendment gives the Minister the opportunity to have definitive administrative penalties. It is a key point and the Minister has the choice to do it.

The Minister may have the best will in the world, but he has a very busy portfolio with communications and has the Broadcasting Bill and other legislation to deal with. Time is running out and little time remains to do the amount of work that must be done. As a sign of good faith, the Minister should accept this amendment and insert it following section 28(7)(c) to say clearly that the Department has accepted the rationale as put forward here by Deputies Perry, Ferris and me that there is a role for administrative penalties in fisheries and that he will do it. This would show that the Minister is prepared to implement in law what he has said.

Deputy Broughan must agree in fairness that Deputy Ferris withdrew amendments dealing with administrative sanctions. We had a long discussion on the matter at the previous meeting and debated it for one and half to two hours at this meeting. I asked for the Deputy's agreement while we were waiting for a vote not to engage in a long debate again on the same issue. Will he agree now? I am trying to finish our business, as is the Deputy, but he will point out to me that we are not making progress.

Things changed overnight. The Minister has accepted the principle.

Can I depend on the Minister to repeat what I understand——

The Chair can depend on me to cut this nice and short. I will speak for myself. Deputy Broughan does not speak for me. If he wants to go to the bother of reading the record of the committee, he can but he has no right to misrepresent anything I said. He can dream his dreams, but he is incorrect in most of what he said.

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Broughan, Thomas P.
  • Ferris, Martin.
  • O’Keeffe, Jim.
  • Perry, John.
  • Ryan, Eamon.

Níl

  • Dempsey, Noel.
  • Fitzpatrick, Dermot.
  • Kelly, Peter.
  • McEllistrim, Thomas.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Malley, Fiona.
Amendment declared lost.
Amendment No. 117 not moved.

I move amendment No. 118:

In page 34, to delete lines 26 to 40 and substitute the following:

Reference Number

Provision

Fine on conviction on indictment not exceeding amount specified below

(1)

(2)

(3)

Category 1 — sea-fishing boat of less than 12 metres in length overall

Category 2 — sea-fishing boat of 12 metres or more but not exceeding 18 metres in length overall

Category 3 — sea-fishing boat of more than 18 metres in length overall

1.

Section 11, 14 or 15 in so far as it relates to—

(a)a contravention relating to fish storage capacity of a sea-fishing boat,

€20,000

€50,000

€100,000

(b)illegal nets or other equipment, or

€20,000

€40,000

€80,000

(c)any other contravention or failure of compliance.

€10,000

€20,000

€35,000

2.

Section 8(2), 9(3) or 10(2).

€20,000

€50,000

€75,000

3.

Section 12 or 13.

€10,000

€20,000

€35,000

I move amendment No. 1 to amendment No. 118:

To delete the third, fourth and fifth rows of the Table and substitute the following:

1.

Section 11, 14 or 15 in so far as it relates to—

(a)a contravention relating to fish storage capacity of a sea-fishing boat,

€10,000

€25,000

€50,000

(b)illegal nets or other equipment, or

€10,000

€20,000

€40,000

(c)any other contravention or failure of compliance.

€5,000

€10,000

€17,500

2.

Section 8(2), 9(3) or 10(2).

€10,000

€25,000

€34,500

3.

Section 12 or 13.

€5,000

€10,000

€17,500

Amendment to amendment put and declared lost.
Amendment put and declared carried.
Amendment No. 119 not moved.

I move amendment No. 120:

In page 35, to delete lines 2 to 16 and substitute the following:

Reference Number

Provision

Fine on conviction on indictment not exceeding amount specified below

(1)

(2)

(3)

Category 1 — sea-fishing boat of less than 12 metres in length overall

Category 2 — sea-fishing boat of 12 metres or more but not exceeding 18 metres in length overall

Category 3 — sea-fishing boat of more than 18 metres in length overall

1.

Section 4(12) (fishing without or in contravention of sea-fishing boat licence).

€20,000

€50,000

€75,000

2.

Section 25(3) (fishing in contravention of conservation regulations).

€20,000

€50,000

€100,000

3.

Section 27(5) (failure to return to port immediately on order of sea-fisheries protection officer).

€20,000

€50,000

€100,000

I move amendment No. 1 to amendment No. 120:

To delete the third, fourth and fifth rows of the Table and substitute the following:

1.

Section 4(12) (fishing without or in contravention of sea-fishing boat licence).

€10,000

€25,000

€37,500

2.

Section 25(3) (fishing in contravention of conservation regulations).

€10,000

€25,000

€50,000

3.

Section 27(5) (failure to return to port immediately on order of sea-fisheries protection officer).

€10,000

€25,000

€50,000

The Minister's amendment reduces fines for the various categories of offence. My amendment to the amendment seeks to reduce them further.

Amendment to amendment put and declared lost.
Amendment put and declared carried.
Section 28, as amended, agreed to.
SECTION 29.

I move amendment No. 121:

In page 35, lines 41 to 50 and in page 36, lines 1 to 15, to delete subsection (2).

Section 29 updates and replaces section 14 of the Act and provides for the forfeiture of boats used in the commission of certain sea fisheries offences. Repeal of section 14 is provided for in section 4. The section allows for draconian sanction in the event of reoffending, even if the person convicted is not the person who committed the original offence.

Under section 29(1)(b)(i) a vessel may be forfeited where the conviction is a second or subsequent conviction on indictment for an offence under any of the sections referred to in section 29(1)(a) and committed on board the same boat within 3 years of the date of the commission of the previous offence and whether the person convicted is or is not the same person on each occasion, or the ownership has changed between the commission of the first and second or subsequent offences. This is a severe measure.

It also proposes that:

.... if the court is satisfied that there are reasonable grounds for believing that the change of ownership has been effected in order to evade a possible forfeiture of the boat upon a subsequent conviction the onus shall be on the owner to furnish to the court sufficient evidence showing, to the satisfaction of the court that—

(i) neither the legal or beneficial ownership of nor any legal or beneficial interest in the boat remains with the owner or a part owner of the boat at the time of the previous offence, and

(ii) the sale, assignment or transfer of the boat was done in good faith and for valuable consideration reflecting the market price or worth of the boat when it was acquired,

and where such evidence fails to satisfy the court, the court may, at its discretion, in addition to any other fines and forfeitures to which the person may be liable, order the boat to be forfeited.

While there may be good reasons for this proposal, it casts doubt on the integrity of boat owners. A vessel will have a logbook containing details of a change of ownership. As such, it should not be necessary to require an owner to prove to a judge that ownership was not changed to evade court proceedings.

The Minister proposes to delete the section.

That is correct.

This was one of the parting gifts outlined in the valedictory speech of the sadly missed Minister of State, Deputy Gallagher, last Thursday. He described the forfeiture of boats under the conditions outlined by Deputy Perry as a draconian sanction on small-scale fishermen. The Minister of State listened to the views of Opposition Deputies and it is to him that we owe the proposal to delete section 29. I thank the Minister for retaining the proposal.

Amendment, by leave, withdrawn.
Section 29 deleted.
SECTION 30.

Amendments Nos. 122 and 124 are related and may be discussed together.

I move amendment No. 122:

In page 36, lines 30 and 31, to delete "or any boat under section 29”.

The amendment is consequential on the deletion of section 29.

Amendment agreed to.
Question proposed: "That section 30, as amended, stand part of the Bill."

This section would have the effect of having no requirement to account for the value of catch and gear seized as part of the total value of the fine and costs imposed. The effect of the amendment would be to ensure that any value of the catch and gear would have to be accounted for as part of the costs of the penalty imposed, which is what I seek. It is clear that no obligation for the forfeiture arises when it falls as a statutory consequence of conviction.

I am in favour of the section.

Question put and agreed to.
SECTION 31.

I move amendment No. 123:

In page 36, line 38, to delete "statutory".

This amendment is intended to exclude the statutory confiscation of catch and gear, which should not be the norm.

I do not accept the amendment. As I outlined in great detail, forfeiture is a necessary part of the consequences of a conviction.

Amendment, by leave, withdrawn.

I move amendment No. 124:

In page 36, lines 39 and 40, to delete "or 29”.

Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendments Nos. 125 and 126 not moved.

Amendments Nos. 127, 139 to 175, inclusive, 220 and 221 will be discussed together.

I move amendment No. 127:

In page 37, subsection (5), line 39, to delete "Seafood Control Manager" and substitute "Minister".

This amendment is consequential on the proposed substitution of the original section 41. Deputies will recall that this section provided for the appointment of a seafood control manager in the Department of Communications, Marine and Natural Resources and comprehensive provisions for the establishment and functions of the independent statutory Sea-Fisheries Protection Authority. The amendment allows the Minister for Communications, Marine and Natural Resources to bring proceedings under section 32(5), pending the establishment of the authority and, on the establishment day of the authority to be appointed by the Minister under section 41, the function under section 32(5) will transfer to the authority by virtue of section 45(2) of the Bill. It is a consequence of changing the Bill in terms of the concept of the seafood control manager and moving towards a fully fledged agency.

Has the Minister covered amendment No. 139?

Yes, I have.

Has the Minister addressed the other amendments in this grouping?

Yes. These are all of the new sections to the Bill.

We will proceed to discuss amendment No. 1 in the name of Deputy Broughan to amendment No. 149. Does the Deputy wish to speak to his amendment?

Are we discussing the fisheries authority?

We are discussing Deputy Broughan's amendment to amendment No. 149.

Amendment No. 149 relates to the membership of the authority. Subsection (13) states:

A member of the Authority shall not, for a period of 12 months following his or her resignation, removal or retirement from the office of member of the Authority, accept any office, consultancy or employment, where he or she could or might use or disclose information of a confidential or commercially sensitive nature acquired by him or her in the exercise of the functions of the Authority.

I have often considered introducing a Private Members' Bill on this matter. I refer to a situation where an official working in the public sector could on leaving his or her job get a job in part of the industry he or she was regulating. We have had a couple of spectacular examples of this in local government. The Minister will be aware of a recent outrageous case concerning the former county manager of Dún Laoghaire-Rathdown County Council who, soon after leaving his post, took a job with a development company he had been invigilating. In the not too distant past the manager of South Dublin County Council did the same thing. This rule should also apply to us. We had serious regulatory concerns about making laws such as this. It should not be possible for a Member to leave the House and go straight into a job in a business which has been regulated. I have long held the belief we should be obliged to do something else.

This is a general point. We should seriously examine this matter at some stage, especially as it affects the Civil Service. It is mainly Secretaries General whom I have noticed doing luminous and important work soon after the seven-year period expires. That is fair enough, but in this case, especially if the job is within the employees' previous sphere of influence, the proposed 12-month rule should be extended to two years. This does not apply to the fisheries area alone or the proposed new authority.

There is also an amendment to amendment No. 150.

I shall use this opportunity to ask a broad question about the authority, the concept of which I support. Dr. Beamish suggested this at a discussion we had some years ago on the salmon management regulations on the control of sea lice. At the time we said we needed a separate external regulatory authority. The point was made that we should also have a sea fisheries authority.

The Department has a dual role in that it acts as a development agency for fisheries, while at the same time we expect it to act as the controlling agency. It is difficult to fulfil this dual role. In a sense, there is a conflict of interests between the two. The solution suggested is welcome in terms of separating the control procedure from the Department in order that the authority would be fully independent and concentrate exclusively on control issues.

I have a number of questions for the Minister on the implications of this change, in that the role of the Department has been significantly reduced with the transfer of responsibility for ports to the Department of Transport, which makes sense. The primary issue concerning Dublin Port and other ports pertains to transport and therefore it makes sense for the function in this regard to be transferred to the Department of Transport.

The removal of the control function to a separate agency is making the focus of the Department of Communications, Marine and Natural Resources much narrower and this may behove a change in the overall Cabinet structure to reflect more accurately the reality of the new roles. The focus on the marine may shift closer to the Navy in terms of defence matters, but that involves a broader picture.

What is the role of other outside agencies such as Bord Iascaigh Mhara?

We must suspend for a vote in the Dáil Chamber.

Sitting suspended at 4.35 p.m. and resumed at 4.55 p.m.

Before the suspension, we were discussing amendments Nos. 127, 139 to 175, inclusive, 220 and 221 plus amendments to Nos. 145, 149, 154, 157 and 170. Deputy Eamon Ryan tabled an amendment to amendment No. 150. Does he wish to discuss it?

While I welcome what is being done here, it may, perhaps, raise broader questions on the structures in the Department and related outside agencies and, if we are removing its regulatory role, call into question the best location for the Department. It might be more suited to be under the Naval Service within the Department of Defence or within the Department of Agriculture and Food. Further development strengthens the case for such a review. It is important that when we are carrying out such a major review that there be an examination of other outside structures, particularly as the Marine Institute and Bord Iascaigh Mhara exist as important supplementary agencies in the sea fisheries area. This is a good time to look at the purpose and role of to see if there an overlap between its work and that of other agencies.

I hope the Minister will consider accepting the amendment. When we establish a consultative committee to assist the new authority, we should not cement in place industry structures that will not give the best advice possible. Although Ireland is a small island with a small fleet, there are a large number of representative groups and we are legislating for that into the future as if it will always be the case. It would make more sense to have fewer groups. If we are designating the membership of such an authority, there should be broader scope for consultation.

Amendment No. 1 to amendment No. 150 seeks to recognise the possibility of broader consultation. The Minister will be able to nominate three people but the Bill should direct that he consider people from the NGOs and environmental lobby groups, such as Dr. Simon Berrow from the Irish Whale and Dolphin Group, who has done extensive work in the fisheries area. Dr. Berrow would be a valuable addition to any consultative committee.

In terms of protection of fish stocks and the marine, it is not just the industry that has an interest in the issue. We must move away from the narrow interpretation of interest in our fish stocks. The public has an interest in the preservation of our environment and this is a major threat to it. It may not attract much attention because it is underwater and away from our shores but the loss of environmental diversity in this area is extremely harmful. I would hate to see a consultative committee so narrowly defined, with only industry representatives and a small number of others serving on it. It should include people from academic, environmental and NGO backgrounds who would be a valuable addition to a consultative committee. They would expand its role from industry perspectives to a scientific one, which is an important part of the industry.

Section 49(5) in the Minister's amendment takes a narrow and old-fashioned approach to the question of who has an interest or a say and should be on such a committee. I hope he will consider my amendment even if he wishes to amend it. I hope, however, he will take the view that a consultative committee should extend beyond the industry.

For Deputy Broughan's information we are debating amendments Nos. 127 to 175, inclusive.

I had to slip out to meet an important delegation. This grouping is not a satisfactory way to do business. It is deliberately confusing because we cannot discuss each amendment. Until now we have proceeded fairly. Setting up a new State agency is a fundamental development which was not in the original Bill. It should be incumbent on us to go through these amendments, setting up the agency, one by one. Were it in the original Bill we would have had a chance to deal with it in that way. This was lobbed in as a ministerial amendment.

It was included in response to many calls from Opposition Deputies on Second Stage.

I accept that but we saw it only when the pink book containing the Minister's amendments was published.

That was on 20 January.

I refer to the amendments. This is so complicated that it is easy to miss an amendment. In general terms if we have decided on this——

The Bills Office first created the grouping.

I realise that. I am concerned because approximately a quarter of the amendments are included here.

I apologise but I must follow the procedure.

I appreciate that and know the Chairman wants to get the Bill through.

I am acting according to what is printed in front of me.

I know that but the Chairman is just trying to get rid of the Bill.

Deputy Eamon Ryan has raised an important question and I support his amendments on this consultative committee. The interesting feature of the debate over the past month is that most of the country is interested in this issue. This is obviously the case for the coastal communities which I and others represent because people's livelihood and lifestyle are at stake. There is, however, a wider interest. This is probably thanks to the Marine Institute and its director, Dr. Heffernan. Many people have the map showing our territorial waters and are aware of the State's responsibility for them.

Deputy Ryan's point is well made, that the ordinary members of the public and particularly people from academic and environmental backgrounds have an interest in this. Under amendment No. 150 on membership of the authority, we might try to include people who have the wider interests at heart. The Minister could include a senior member of the Marine Institute on his three person panel and people from academia, the media and so on. It could be more balanced in respect of the public. The Minister might consider this.

I am glad to see that in amendment No. 145 under "Functions of Authority" section 44 (1)(g) the Minister has included “to collect and report data in relation to sea-fisheries and food safety as required by the Minister and under Community law,” because we need as much information as possible. I wanted to extend that to include a new subsection (h) containing an idea I put forward in the first amendment. I propose that there be a sustainability impact assessment year on year, within “the exclusive economic zone and exclusive fishing limits of the State” and that it would be the function of the sea fisheries protection authority to bring that information to the Minister, who would bring it to the House for an annual debate on our sea fishery resources. That would be a reasonable request to make of the authority.

The second of my amendments to this amendment proposes that the new authority would "exchange information with other national and EU Sea Fisheries Protection Authorities". The Scots already have such an agency. I am not sure about Spain but I assume it, like other countries, has one too. Through this exchange of information we could build up a Community-wide picture.

Deputy Eamon Ryan also raised an interesting point about the ongoing functions of BIM. Its representatives came before this committee once during my time here. How will this authority impact on BIM? It might be logical to incorporate BIM within an overall agency. We could have extended BIM's role into this area or vice versa.

Why did the Minister decide on this approach? We on this side of the House called for an independent regulator, which would be fairer and better for sea fisheries than having a civil servant within the Department carrying out this function. It would extend the debate and the responsibility for our fisheries into civic society. Where does the Minister see this authority fitting into the overall structure?

Deputy Eamon Ryan also referred to the role of the Department. I would like to see a Department of the marine in 14 months time, no matter who is elected. This Government made the right decision in 1997 to create a Minister of State with responsibility for the marine. It could also be brought in under the aegis of the Department of Defence and assume responsibility for the Naval Service too.

There was a logic to creating the sub-Department and it has put through some good legislation in the past two and a half to three years. While I have criticised some actions, we passed six or seven Bills on the protection of the marine environment, particularly in respect of pollution which was valuable. The next Government should consider having a dynamic Department of the marine. All the issues surrounding the Bill can only be addressed by having a full Minister at the Cabinet table. It would be regrettable if when we ask questions after the passage of this Bill the Minister simply passes the responsibility to the fisheries protection agency.

I refer to the Minister's amendment No. 148. It is important to include directions but it should be possible for us to discuss the role of the agency. The electorate and its representatives must be in control.

I support Deputy Eamon Ryan's point on amendment No. 150 about the complaints procedures. My party emphasises the protection of the rights of the workers who will staff the new agency. I presume some will come from the Department initially. I welcome the Minister's protective provisions on redundancy payments, minimum notice, unfair dismissals and so on in the Act. I commend the Minister on ensuring that the staff will be in a strong independent position. I tabled a few minor corrective amendments to bring this up to date.

As I said, we welcome this significant development and commend the Minister for introducing amendment No. 157.

Amendment No. 1 to amendment No. 157 would delete paragraph (d), which would prohibit members of local authorities from becoming members of the proposed sea-fisheries protection authority. I have tabled similar amendments to other Bills down the years. I accept that Members of the Oireachtas and Members of the European Parliament should not be allowed to be members of the authority as they might clearly have a conflict of interest, but we are often too restrictive about what local authority members can do. For example, a councillor who specialised in maritime affairs should not be excluded from being a member of the new authority. I made a similar point during the passage of another Bill on harbours and during our consideration of other Bills that set up new agencies, such as the Bill that set up Comhairle a few years ago. As a firm believer in local government, I consider it critical that we have as strong a local government as possible. I see no reason why councillors who do not have an executive function in a maritime county could not serve on the new authority.

I remind Deputy Broughan that he should also speak to the amendments up to amendment No. 220.

I am looking through the list of amendments and I will speak to any that are in my name.

Amendment No. 2 to amendment No. 157, which would delete subsection (4), deals with the same issue as the previous amendment. We should give local authorities members a greater role. As the Minister will know, the policy of my party — I almost said "Government", which I hope we will form at some time — is to abolish county managers and replace them with people who are elected. We will put that to the people in a year's time or in three months' time or whenever the election is held.

Most of the Minister's other amendments, which relate to matters such as disclosure and superannuation, seem to be acceptable. Chairman, up to what amendment does this group go?

This group includes amendments Nos. 127, 139 to 175, inclusive, and amendments Nos. 220 and 221.

Most of the remaining amendments in the group, which deal with matters such as the premises and seals of the authority, seem to be fairly standard. They make further provision for the functions that will be covered by the new agency.

As I have pointed out, we need to know where BIM will now stand and how independent the agency will be. I also have a concern about whether we will ever be able to get answers about fisheries, given that when other regulators such as ComReg have been set up the Government has then said that it can no longer answer questions on such matters. I hope we can somehow guard against that. I agree with Deputy Eamon Ryan that the consultative committee should have the widest possible membership, which should include academics, environmentalists and so on.

By way of trying to be helpful, I will respond briefly to the debate. Deputy Broughan asserted that the period governing disclosure should be extended from one year to two years. I would not accept that as a general rule, but as the sea-fisheries protection authority will be a regulatory body I can see merit in his amendment No. 1 to amendment No. 149. Provided there is no difficulty with the drafting, we will go with that amendment. We will accept the principle, therefore, if we cannot accept the amendment on Committee Stage, we will table a similar amendment on Report Stage.

On the composition of the proposed sea-fisheries protection consultative committee — I do not want to dress it up as anything more than a consultative committee — I am anxious that the number of members should not go beyond 14. In light of the points that have been made, I will have a look at the composition of the consultative committee as outlined in amendment No. 150. I will not go beyond 14 members, but I will table an amendment either to insert some kind of standard provision requiring that the three persons nominated by the Minister have a particular expertise or, alternatively, to reduce the number of members from other sectors to accommodate members from the research community and so on. I will try to facilitate that, but I will probably go for the former option rather than the latter.

Deputies are right to ask where BIM will stand after the Bill is passed. BIM has never been involved in the enforcement and policing of sea-fisheries, whereas the sea-fisheries protection authority will be a separate authority to deal with such matters. BIM is involved in training and development in the industry and it also has grant giving powers. I do not propose to change that, but I take the point that Deputy Eamon Ryan made about BIM's role in food research and marketing and so on. We will reconsider that point.

On the issue of research, Deputy Broughan suggested that the new sea-fisheries protection authority should publish reports on the scientific advice and so on. However, such matters are more proper to the Marine Institute and ICES and that will continue to be the case.

As regards responsibility, the new authority will be responsible directly to the Houses of the Oireachtas through their committees, although the Minister will be responsible for securing money for it and for its general supervision. Without getting too philosophical about the issue, I believe that although this committee has generally been pretty good on such matters- I am not simply plámásing the committee — the committees do not undertake enough scrutiny of the activities of the bodies we have set up. They do not call the bodies to account in the way that they should.

In response to Deputy Broughan's other point I can only say that just as we do not allow members of the Garda to hold public office as a member of a local authority or to be elected in any other capacity, sea-fisheries officers will be in much the same kind of position. It would not be a good idea to adopt the American system of electing everyone to everything as it is not a good system. I favour having local authority members on boards and so on but they should not be part of an enforcement authority, such as the proposed sea-fisheries protection authority.

The Minister is right to say that the consultative committee should not be able to control the new authority, but he is also right that there is a question about what should be the broader responsibilities of the Department's agencies. We will now have a broad structure consisting of a research agency, a control agency and a development agency. I do not see what food marketing has to do with development. That is probably not a bad structure, but it perhaps prompts a question about the role of the Department. The Department will be very much slimmed down, given that research, control and development are some of its main responsibilities. What will be the long-term effect of the changes on the Department?

The Department will still have huge responsibilities under the Common Fisheries Policy and it will continue to put in place general policy directions. It will also deal with the governance and accountability issues of the different agencies, so there will still be a need for a Minister who is responsible for those. There is no doubt that the areas under the direct control of the Department will be narrowed under the Bill, but it is often suggested that various Departments should focus on policy making.

Another continuing responsibility that I should not neglect to mention is the matter of inland fisheries, which need further development. As we discussed earlier, most members of the committee would agree that we need a more general review of how we might develop the marine sector, which includes not just fisheries but marine leisure and offshore development. The Department will still have a number of areas of responsibility, including for international issues, but I accept the Deputy's point that the amendments will narrow the Department's remit a bit more.

With regard to the complaints procedure concerning amendment No. 151, in my time we set up quite a few agencies such as, for example, the Pensions Board and Comhairle. Let us imagine that a skipper and crew feel hard done by after an issue has been resolved in the courts or through the imposition of an administrative penalty and wish to complain about the performance of the agency. At present, as the Minister stated, one or two people from outside the authority would consider the complaint and furnish a report to the authority, which will have regard to it.

That strikes me as being similar to the complaints procedure that we had for the Garda Síochána. We are awaiting the establishment of the Garda ombudsman commission, and most people are delighted that we are finally introducing it, although it does not go as far as many people wished. Many agencies have had semi-internal complaints procedures that have not really worked. Essentially, what I want to ask is whether it might be possible to give the Ombudsman, Ms Emily O'Reilly, and her staff, or the Office of the Information Commissioner, the remit.

I am not sure whether provision is made in this regard. Can it be included? I know that the Ombudsman is in charge of maladministration. If anyone is maltreated by a Department or local authority, Ms O'Reilly and her staff become involved and do great work for the country. Do we need something a little stronger? I accept that representatives of all the agencies should be hauled into these rooms from time to time. I believe that we have met representatives from Bord na Móna only once during my time on the committee. That is through no fault of the Cathaoirleach, since we have done our best, given all the issues that have arisen. It is very difficult to invigilate. For example, representatives of Bord Gáis——

Therefore, many things have happened and events have controlled matters. I refer here, for example, to the Sea-Fisheries and Maritime Jurisdiction Bill 2005 before us. Since we are dealing with the legislation, a free-standing Act could have set up this agency. Do we have a strong enough complaints procedure and if we had crew members or others involved in fishing — for example, people on the pier or in transport who felt that they had got a very raw deal from the agency — where could they go? Will it simply be some kind of internal complaint that goes absolutely nowhere and achieves nothing? Is there any way, even at this stage, that the Minister might re-examine the position before Report Stage to see whether we could have a stronger, more transparent system? Could we employ the Ombudsman and give her office and that of the Information Commissioner a role in the area?

The procedure is in addition to a person's right to turn to the courts or the Ombudsman. It is fairly routine stuff meant, in some senses, to allow a person who has a complaint to raise it and have it dealt with quickly and efficiently. It could relate to something such as a personality clash between a sea fisheries officer and the skipper or owner of a boat. That would go to a third party and be judged without prejudicing any other rights if it were a serious event. In section 66(b), it also states that the number of complaints made under section 50 in that year and the decisions of the authority regarding the complaints must be included in the annual report. That will give the committee a good idea if it is working.

What is it?

It is an initial attempt.

I take the point that the other agency to be left out is the proposed new inland fisheries one, which makes obvious sense. There is another block. The Department's main role will be communications, travelling to and from Brussels and keeping in contact with BIM, the Marine Institute and the new agency regarding policy. On that basis, what sense does it make to decentralise the Department to Clonakilty, which is quite far from access to Brussels and nowhere near the Marine Institute or BIM? I do not know where the new agency will be located. Does the Department's role in respect of policy co-ordination with those outside agencies require it to be located somewhere central, with easy access to Brussels and the other bodies?

It is a very effective way of doing things.

We must wait until the next episode, which will begin at 6.30 p.m. We must conclude the discussion on this, since we have amendments Nos. 128 to 138, inclusive, to address. I hope that we will be able to make tremendous progress between 6.30 p.m. and 8 p.m.

Sitting suspended at 5.25 p.m. and resumed at 6.30 p.m.

Have we finished discussing the amendments now, given that we have dealt with amendments Nos. 127, 139 to 175, inclusive, 220 and 221?

I tabled amendment No. 140 to section 41 to delete the words "Secretary General" and substitute the word "Minister". However, copies of the report will go to both the Minister and the Secretary General. With regard to accountability, as the Minister says, the Secretary General is responsible to the Minister who is answerable to the Dáil.

A second point concerns the fact that the seafood control manager should not be open to legitimate legal action. Such a provision removes a vital and fundamental right from aggrieved parties. However, I welcome the appointment of such an officer and the fact that he or she is to be statutorily independent.

Will sea fisheries inspectors be redeployed and come under the control of the new office in the monitoring of infringements and breaches of the legislation? Will the Minister also deal with my earlier point about the seafood control manager not being open to legitimate legal action?

That section has been removed from the Bill to be substituted by the section dealing with the Seafood Control Authority.

Will the chairman or CEO or an appointee designated by the Minister be in charge?

It will be a public appointment. The authority will comprise three people, much like ComReg or the Commission for Energy Regulation, CER.

I also tabled an amendment to have the following subsection inserted on page 42 of the Bill, between lines 33 and 34:

"(4) If satisfied, after considering the objection and any submission received, the Minister shall issue directions, including policy directions, to the Registrar General so as to remedy any matters giving rise to, or likely to give rise to, anomalies.".

This would widen the scope of the Bill to allow the Minister to give policy directions to the Registrar General in order that any anomalies could be corrected and not repeated.

To which amendment is the Deputy referring?

Is the Deputy talking about amendment No. 179?

I believe it is amendment No. 179.

We are only considering amendments up to amendment No. 175. The Deputy will have an opportunity to talk about amendment No. 179 later.

Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.

I move amendment No. 128:

In page 38, subsection (2), line 9, after "appealable" to insert the following:

"save for an appeal to the High Court on a point of law".

It is unfair to give the State the power to appeal a decision of the District Court to a higher court when the defendant can only appeal to a higher court on a point of law. The State has more than enough powers of appeal.

Is the Minister accepting this amendment?

There may be a misunderstanding on the part of the Deputy. Any party can seek a case dated from the Circuit Court on a point of law if necessary. Judicial review is also available to prevent a procession of proceedings. All appeals to the Circuit Court from the District Court are final. I think what the Deputy is suggesting is covered in the Bill. It does not give any extra powers to the State.

If the State is unhappy at the District Court's decision to dismiss a case, it can appeal the decision to the higher courts. The subsequent decision of the Circuit Court would not be appealable.

One cannot say that the State cannot appeal. If we want to apply things in an even-handed manner, we would have to ensure that nobody else can appeal either. It is not possible to tie the hands of the State behind its back. This provision is there. It allows the State to appeal to a higher court, but it also ensures that if someone is not satisfied——

If the State is unhappy at a District Court decision to dismiss a case, it can appeal the decision to a higher court. Is that correct?

There is no further appeal from the decision of a Circuit Court judge in this case.

Except on a point of law.

Is that not unfair? Someone that would be heavily summonsed could not appeal the decision to a higher court. The decision of the District Court can be appealed by the State. There is no appeal to the subsequent decision of a Circuit Court judge. The Minister is closing off the appeal at the Circuit Court.

The appeal is being closed off at the Circuit Court for the person charged. That is final.

Closing off the right to go to a higher court than the Circuit Court is in breach of the——

A judicial review could always be brought. I will have a look at it. I understand the point the Deputy is making.

I would like the Minister to come back with it. I am not saying that every decision will go to the High Court. If a massive injustice was done, someone got a huge fine and could not appeal beyond the Circuit Court, a judicial review would be quite impossible.

I will have a look at it and I will get back to the Deputy on Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 33 stand part of the Bill."

Deputy Perry has been making a substantive point about the decision being final and not appealable. That seems to be oppressive and the Bill would be better off without it. That is why I am asking for it to be deleted.

The promise made by the Minister to Deputy Perry goes some way towards meeting my concerns.

Question put and agreed to.
Sections 34 and 35 agreed to.
SECTION 36.

Amendment Nos. 129 and 130 are related and may be discussed together.

I move amendment No. 129:

In page 39, subsection (1), line 4, after "State" to insert the following: "including a person who is a representative of the EU Fishery Control Centre".

This goes back to the first discussion we had on coming to grips with the European presence in our waters. The provision states that the purpose of the charge or any proceedings arising out of the charge may, in lieu of being served on the defendant, be served on a person specified in the direction who is ordinarily resident in the State. If we wanted to take legal against a co-operative or a corporate owner in Spain or Holland or wherever, would there be some mechanism to do this through the EU Fishery Control Centre? The foreign owners are subject to our law, which is fair enough, but if we needed to pursue them on a certain issue arising from a particular case, such as the allegations of undetected illegal gear, are there any mechanisms to do that? Is there any way we could transmit the documents to the miscreants concerned? Can we utilise the fishery control centre to do that when it is up and running?

I know what the Deputy is getting at, but these two amendments are not appropriate. The purpose of section 36, which restates the necessary 1970 Act provisions, is to deal with non-resident defendants. It effectively ensures service of trial documents on them so that the court proceedings are not stymied. It merely provides for a trial document in the case of a defendant who is not resident in the State, and where service cannot be made on the defendant in the State, to be served on a representative of the defendant who is resident in the State.

The Commission polices the members states. We must police our own fishermen, but the Commission polices the member states. If we felt we were not getting the co-operation required in the case mentioned by the Deputy, it would be open to us to get it through the Commission.

Amendment, by leave, withdrawn.
Amendment No. 130 not moved.
Section 36 agreed to.
Section 37 agreed to.
SECTION 38.

I move amendment No. 131:

In page 39, paragraph (d), line 45, to delete “she” and substitute “it”.

Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39.

I move amendment No. 132:

In page 40, lines 15 to 18, to delete subsection (3) and substitute the following:

"(3) For the purpose of giving jurisdiction under the Sea-Fisheries Acts 2003 and 2006 any act which is an offence under those Acts and triable summarily shall, if committed by or on board a sea-fishing boat—

(a) be deemed to have been committed in any place in which the accused person may be, or

(b) which was within the exclusive fishery limits when the act was committed or when the accused person was arrested, be deemed to have been committed in a district court district abutting on that portion of those limits in which the boat was when the act was committed or the accused person arrested, as the case may be.”.

What is the impact of the amendment? It adds significantly to the section.

It replaces subsection (3) of section 39. Given the legal advice, it was felt that the original subsection in the Bill could have created serious difficulties because it was not as clear as it should have been as to the appropriate place in the State in which to take proceedings for an offence at sea. The amendment seeks to clarify that aspect and make it simpler and more direct.

Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.

Amendments Nos. 133 to 138, inclusive, are related and may be discussed together.

I move amendment No. 133:

In page 40, subsection (1), lines 19 to 22, to delete all words from and including "The" in line 19 down to and including "33” in line 22 and substitute the following:

"The Government, on the request of the Attorney General, may by order appoint a day from which the Director, subject to subsection (2), is the prosecutor in lieu of the Attorney General, of an offence under a section specified in a Table”.

The purpose of this substantive amendment proposed by the Attorney General is to make it clear that it is the Attorney General who could request the Government to make the necessary order to transfer to the Director of Public Prosecutions responsibility for the prosecution of the sea-fisheries offences specified in a table to section 28 of the Bill.

Amendment No. 134 is needed to make it clear that it is the Attorney General who will deal to a conclusion with any proceedings in train when a Government order is made under section 40 to transfer the prosecution functions. The proceedings in question could relate to the offences under this Bill or offences under the provisions of the Fisheries Acts 1959 to 2003, which are being repealed in this Bill, and not concluded before this Government order is made.

Amendment No. 135 covers serious offences specified in the table to section 2 of the Fisheries (Amendment) Act which have not come to light or which have not been prosecuted at the time of the operation of the Government order. Amendments Nos. 136 to 138, inclusive, are consequential on the previous amendments.

As we are transferring prosecutions, a number of changes must be made to the Bill. The amendments seek to ensure that nothing falls through the cracks when this happens.

The Minister has argued the case for the expanding of section 40 through amendments Nos. 133 to 138, inclusive. I am opposed to the section on the basis that this is a major change connected to the idea of criminalisation. Despite the establishment of the DPP's office, it was felt through the years that these offences came within the remit of the Attorney General because they constituted a very grey area.

This is closely related to the debate on administrative penalties. Our predecessors, including all the fisheries Ministers during the history of the State, were reluctant to embark on this course. When the DPP's office was established, some of our predecessors took a deliberate decision not to include fisheries within its remit because they felt this would give the wrong signal that the industry was being criminalised, which is why I considered ways to amend this aspect of the Bill.

It is a fundamental change. While I understand the Minister's explanation with regard to each of the amendments, I am not sure he has made the substantive point as to why there is a case to have this change included in the Bill at this time when it was not done before. The Minister's predecessors and Opposition Members, in the years since the Common Fisheries Policy came into existence and the DPP's office was established, decided that because they did not want to criminalise fishing, particularly with regard to the issues surrounding administrative penalties, they would not go down this road.

It is a significant change, which we need to invigilate. On balance, I am not convinced the Minister has made the case for it. I oppose the amendments.

Section 40 provides that the Attorney General will continue to a conclusion any court proceedings taken by him in relation to indictable sea-fisheries offences which have not been completed when the prosecution function is transferred to the DPP. Does the Minister feel he has a stronger case if proceedings are transferred to the DPP? Is this a more effective way of getting convictions through the courts and will the number of convictions increase due to this change? Deputy Broughan made the point that this is a major shift with regard to who will take action and that cases will in future be filed by the DPP's office. Does the Minister know of any shortcomings in the Attorney General's office? Why is he making the change?

The Deputies should not read more into this than is necessary. The change did not happen before because the opportunity did not arise. Originally, it was felt that the Attorney General should prosecute because, to a certain extent, going back 30 to 40 years, there was an international dimension to sea-fisheries offences. This is a sensible proposal to ensure that all prosecutions are made by the experts in prosecution, namely, the DPP's office, which generally prosecutes for indictable offences. This will streamline the system and help with the overall thrust of the Bill to try to keep together the sequence of any breaches of the Bill.

Deputy Perry raised the question of court proceedings. I do not think it will make such proceedings easier or more difficult but the transition arrangements are in place. Any court proceedings taken prior to the enactment of the Bill will be carried through before the transfer to——

Will sea-fisheries officers or gardaí compile the book of evidence?

It depends on who has carried out the investigation. As the Deputy will be aware, in some cases, particularly the ones we discussed yesterday, gardaí are involved and it is they who will prepare the book of evidence. In other cases, as appropriate, it could be the sea-fisheries officers, the Naval Service or perhaps a combination of gardaí, sea-fisheries officers and the Naval Service.

Are they all recognised within the DPP's office as authorised officers in this regard?

Yes, they are all permitted to provide evidence.

Amendment put and declared carried.

I move amendment No. 134:

In page 40, subsection (2), line 24, after "proceedings" to insert the following:

"in respect of an offence under a section specified in a Table or a Table to section 2 of the Act of 1978".

Amendment agreed to.

I move amendment No. 135:

In page 40, between lines 28 and 29, to insert the following subsection:

"(3) Any proceedings for an offence under a section specified in a Table to section 2 of the Act of 1978 which have not been instituted on the commencement of an order under subsection (1) shall be taken in the name of the Director. Accordingly, for the purposes of those proceedings, the reference to the Attorney General in section 2 of the Act of 1978 is to be read as a reference to the Director and section 18 of the Act of 1978 does not apply.”.

Amendment agreed to.

I move amendment No. 136:

In page 40, subsection (3)(a), line 33, after “Table” to insert “or a Table to section 2 of the Act of 1978”.

Amendment agreed to.

I move amendment No. 137:

In page 40, subsection (3)(b), lines 37 and 38, to delete “of Public Prosecutions”.

Amendment agreed to.

I move amendment No. 138:

In page 40, between lines 43 and 44, to insert the following subsection:

"(5) In this section—

"Act of 1978" means Fisheries (Amendment) Act 1978;

"Director" means Director of Public Prosecutions.".

Amendment agreed to.
Question, "That section 40, as amended, stand part of the Bill," put and declared carried.
SECTION 41.

I move amendment No. 139:

In page 40, to delete lines 44 to 47, to delete page 41 and in page 42, to delete lines 1 to 19 and substitute the following:

"CHAPTER 5

Sea-Fisheries Protection Authority

41.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Chapter. That order shall be laid before each House of the Oireachtas as soon as may be after it is made.".

Amendment agreed to.

Amendments Nos. 140 to 142, inclusive, cannot be moved because amendment No. 139 has been accepted.

Amendments Nos. 140 to 142, inclusive, not moved.
Section 41, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 143:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"42.—(1) There shall stand established, on the establishment day, a body to be known in the Irish language as An t-Údarás um Chosaint Iascaigh Mhara, or, in the English language, the Sea-Fisheries Protection Authority, in this Act referred to as the "Authority", to perform the functions assigned to it by or under this Chapter.

(2) The Authority shall be a body corporate with perpetual succession and shall have a seal and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(3) The Authority shall have all such powers as are necessary for or incidental to the performance of its functions under this Chapter.".

Amendment agreed to.

I move amendment No. 144:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"43.—Subject to this Chapter, the Authority shall be independent in the exercise of its functions.".

Amendment agreed to.

I move amendment No. 145:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"44.—(1) The principal functions of the Authority are—

(a) to secure efficient and effective enforcement of sea-fisheries law and food safety law,

(b) to promote compliance with and deter contraventions of sea-fisheries law and food safety law,

(c) to detect contraventions of sea-fisheries law and food safety law,

(d) to provide information to the sea-fisheries and seafood sectors on seafisheries law and food safety law and relevant matters within the remit of the Authority, through the Consultative Committee established under section 49 or by any other means it considers appropriate,

(e) to advise the Minister in relation to policy on effective implementation of sea-fisheries law and food safety law: the Minister shall consider any such advice for the purposes of Chapter 2,

(f) to provide assistance and information to the Minister in relation to the remit of the Authority,

(g) to collect and report data in relation to sea-fisheries and food safety as required by the Minister and under Community law,

(h) to represent or assist in the representation of the State at national, Community and international fora as requested by the Minister, and

(i) to engage in any other activities relating to the functions of the Authority as may be approved of by the Minister.

(2) The Authority, subject to the approval of the Minister given with the consent of the Minister for Finance, may—

(a) for the purpose of carrying out its functions under subsection (1) make arrangements with or enter into agreements including Service Level Agreements or contracts with the Minister for Defence or, with the consent of the Minister for Defence, the Naval Service and the Air Corps of the Permanent Defence Forces, in respect of those functions for which they were responsible immediately before the establishment day or other functions of the Authority as may be appropriate,

(b) enter into agreements or make arrangements with any other Minister of the Government, or any other person, for that other Minister or person to perform on behalf of the Authority (with or without payment) any of its functions,

(c) enter into agreements or make arrangements with any other Minister of the Government or the Food Safety Authority of Ireland for the Authority to perform on behalf of that Minister or that other Authority (with or without payment) such functions as may appropriately be performed by it in connection with its functions under this Chapter.”.

I move amendment No. 1 to amendment No. 145:

In subsection (1), after paragraph (g), to insert the following:

"(h) to assist the Minister annually in preparing a Sustainability Impact Assessment of sea fisheries for the exclusive economic zone and exclusive fishing limits of the State (as defined in sections 54 and 55) for presentation to the Houses of the Oireachtas,”.

Amendment to amendment put and declared lost.

I move amendment No. 2 to amendment No. 145:

In subsection (1), after paragraph (h), to insert the following:

"(i) to exchange information with other national and EU Sea Fisheries Protection Authorities,”.

Amendment to amendment put and declared lost.
Amendment agreed to.

I move amendment No. 146:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"45.—(1) The administration and business in connection with the performance of any of the functions transferred by subsection (2) are transferred, on the establishment day, to the Authority.

(2) The functions vested in the Minister or Secretary General by or under—

(a) sections 28(3) and 33(3) of the Radiological Protection Act 1991,

(b) sections 16(1), 31, 32(5) and 39, and

(c) the regulations mentioned in Schedule 3,

are, on the establishment day, transferred to the Authority.

(3) The Minister shall consult the Authority before making regulations under subsection (1), or an order under subsection (2), of section 32 of the Radiological Protection Act 1991.

(4) The Authority is an official agency, in lieu of the Minister, in respect of the enforcement of food safety law, for the purposes of the Food Safety Authority of Ireland Act 1998.

(5) Anything commenced before the establishment day by or under the authority of the Minister may, in so far as it relates to functions transferred by this section, be carried on or completed on or after that day by the Authority.

(6) Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is the plaintiff or the prosecutor and the proceedings have reference to functions transferred by this section to the Authority, the name of the Authority shall, in so far as the proceedings relate to any functions transferred by this section, be substituted in those proceedings for that of the Minister or added in those proceedings as may be appropriate and those proceedings shall not abate by reason of such substitution or addition.

(7) Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is a defendant and the proceedings have reference to any functions transferred to the Authority by this section, the Authority shall not be substituted for the Minister in those proceedings notwithstanding the transfer of functions under this Chapter.

(8) Every document (including any certificate or licence) granted or made in the exercise of a function transferred by this section shall, if and in so far as it was operative immediately before the establishment day, have effect on and after that day as if it had been granted or made by the Authority.".

Amendment agreed to.

I move amendment No. 147:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"46.—(1) The following are transferred to the Authority on the establishment day—

(a) all property and rights relating to such property held or enjoyed immediately before that day by the staff, administration or business transferred to the Authority under section 45 or section 53, as the case may be, or any trustee or agent acting on their behalf, and

(b) all liabilities incurred before that day by the staff, administration or business so transferred, or any trustee or agent acting on their behalf, that had not been discharged before that day, and, accordingly, without any further conveyance, transfer or assignment—

(i) that property, real and personal, shall, on that day, vest in the Authority for all the estate, term or interest for which, immediately before that day, it was so vested in the staff, the administration or business so transferred, as the case may be, but subject to all trusts and equities affecting the property subsisting and capable of being performed,

(ii) those rights shall, as on and from that day, be enjoyed by the Authority, and

(iii) those liabilities shall, as on and from that day, be liabilities of the Authority.

(2) Every right and liability transferred to the Authority by this section may, on or after the establishment day, be sued on, recovered or enforced by or against the Authority in its own name and it shall not be necessary for the Authority to give notice to the person whose right or liability is transferred by this section of the transfer.".

Amendment agreed to.

I move amendment No. 148:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"47.—(1) Subject to subsection (3), the Minister may give such general policy directions in writing to the Authority in relation to its functions as he or she considers appropriate.

(2) The Authority shall, subject to the performance of the functions specified in section 44(1), implement any direction given under subsection (1).

(3) Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to individual cases or groups of cases with which the Authority is or may be concerned or in relation to the performance in particular circumstances by the Authority of a function assigned to it by or under this Chapter.

(4) A copy of any direction given by the Minister under subsection (1), along with a statement of the reasons for giving the direction, shall be laid before each House of the Oireachtas and published in the Iris Oifigiúil as soon as may be after it is given.”.

Amendment agreed to.

I move amendment No. 149:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"48.—(1) The Authority shall consist of at least one but not more than 3 members.

(2) (a) The person who holds, immediately before the establishment day, the position of Seafood Control Manager in the Department, is deemed to be appointed as a member of the Authority, with effect on and from the establishment day for a period of not less than 5 years, subject to such terms and conditions, including remuneration and superannuation arrangements, as the Minister with the consent of the Minister of Finance may fix.

(b) The person referred to in paragraph (a) shall be eligible to apply for reappointment as a member.

(c) In the event that the person—

(i) fails to be re-appointed as a member, or

(ii) resigns or is removed from office under subsection (10),

he will be deemed to be the Seafood Control Manager in the employment of the Authority, subject to the same terms and conditions as regards grading, remuneration and superannuation arrangements as applied to him immediately prior to his appointment as a member of the Authority under subsection (2)(a).

(3) A member of the Authority (other than as provided for in subsection (2)(a)) shall be appointed by the Minister.

(4) A member of the Authority shall be appointed to hold office in a full-time capacity for a period of not less than 3 years and not more than 7 years on such terms and conditions, including remuneration, as the Minister, with the consent of the Minister for Finance, may fix.

(5) Where there is more than one member of the Authority, the Minister shall appoint one of them to be chairperson of the Authority on such terms and conditions, including remuneration, as the Minister may fix, with the consent of the Minister for Finance, to hold office in a full-time capacity for a period of not less than 3 years and not more than 7 years.

(6) The chairperson of the Authority shall have a casting vote in the case of decisions to be taken by the Authority in the event of a tied vote.

(7) Where the chairperson of the Authority is unavailable to perform his or her duties, he or she, or if he or she is unable to do so, the Minister, shall appoint a member of the Authority to be an acting chairperson to assume the duties of the chairperson for a defined period not exceeding 12 months.

(8) With the exception of the person appointed under subsection (2)(a), a person shall not be appointed as a member of the Authority unless the Public Appointments Service, after holding a competition on behalf of the Authority, has selected him or her for appointment as a member.

(9) With the exception of the person appointed under subsection (2)(a), a member of the Authority, including the chairperson, whose term of office expires by effluxion of time shall be eligible for re-appointment to serve a second term, subject to a limit of serving not more than 14 years on the Authority.

(10) A member of the Authority may—

(a) at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon the date of receipt of the letter, whichever is the later, and

(b) be removed from office by the Minister if, in his or her opinion, the member has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour and the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for such removal.

(11) The Authority may act notwithstanding a vacancy or vacancies in its membership.

(12) A member of the Authority shall not hold any other office or employment in respect of which emoluments are payable.

(13) A member of the Authority shall not, for a period of 12 months following his or her resignation, removal or retirement from the office of member of the Authority, accept any office, consultancy or employment, where he or she could or might use or disclose information of a confidential or commercially sensitive nature acquired by him or her in the exercise of the functions of the Authority.

(14) Notwithstanding subsection (13), a person who was a member of the Authority shall not be precluded from holding office or engagement in any employment in the Civil Service or any statutory regulatory body or from acting as a consultant to the Authority, the Minister or any other Minister of the Government on the basis that the period referred to in that subsection has not expired.”.

I move amendment No. 1 to amendment No. 149:

In subsection (13), to delete "12 months" and substitute "two years".

Amendment to amendment agreed to.
Amendment, as amended, agreed to.

I move amendment No. 150:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"49.—(1) The Minister shall, for the purposes of consultations and liaison with the sea-fisheries and seafood sectors and other relevant interests on matters relating to the functions of the Authority, establish a body to be known in the Irish language as An Coiste Sainchomhairleach um Chosaint Iascaigh Mhara or, in the English language, the Sea-Fisheries Protection Consultative Committee (referred to in this Chapter as the "Consultative Committee") and appoint the members of the Consultative Committee.

(2) The Consultative Committee shall have the following functions—

(a) to inform the Authority of concerns and views of the sea-fisheries and seafood sectors regarding the functions of the Authority,

(b) to seek to keep the sea-fisheries and seafood sectors generally informed of the applicable sea-fisheries law and food safety law, as well as of the standards, guidelines, practices and procedures operated by the Authority in relation to the enforcement of that law,

(c) to advise the Authority on keeping the burden on the sea-fisheries and seafood sectors generally of compliance with that law to the minimum possible consistent with the essential purposes and the effective enforcement of that law,

(d) to advise the Authority of its views on the fairness and consistency of the operations of the Authority,

(e) to seek the delivery of a high standard of service by the Authority.

(3) The Consultative Committee shall have no function in relation to detailed operational matters or individual cases or groups of cases with which the Authority is or may be concerned.

(4) The Minister or the Authority may consult the Consultative Committee on any matters arising in relation to the functions of the Authority.

(5) The Consultative Committee shall consist of not more than 14 members as follows—

(a) 5 persons from the sea-fishing catching sector,

(b) 2 persons from the inshore fishing sector,

(c) 2 persons from the seafood processing sector,

(d) 2 persons from the aquaculture sector, and

(e) 3 persons nominated by the Minister.

(6) A member may resign from office by written notice given to the Minister and the resignation shall take effect on the date specified in the notice or on the date on which the Minister receives the notice whichever is the later.

(7) The Consultative Committee may act notwithstanding a vacancy or vacancies in its membership.

(8) The Minister may appoint a person to fill a casual vacancy which arises in the membership of the Consultative Committee due to the death, resignation or removal of a member and the person so appointed shall be appointed in the same manner as the member who occasioned the casual vacancy.

(9) The Minister in appointing members of the Consultative Committee, shall ensure, in as far as is practicable, an equitable balance between men and women in the composition of the Consultative Committee.

(10) The Minister shall appoint the chairperson and deputy chairperson of the Consultative Committee from among the members of the Consultative Committee referred to in paragraphs (a) to (d) of subsection (5) for such period as is specified in the appointment and may reappoint a chairperson and deputy chairperson for a further specified period or further specified periods. The chairperson or deputy chairperson ceases to be the chairperson or deputy chairperson on ceasing to be a member of the Consultative Committee.

(11) The Minister may remove from office a member of the Consultative Committee in the following circumstances—

(a) where, in the opinion of the Minister, the member has become incapable through ill-health of being a member of the Consultative Committee,

(b) for stated misbehaviour,

(c) in the case of a person appointed to represent a sector referred to in paragraphs (a) to (d) of subsection (5), where the person is no longer a representative or

(d) where removal of the member appears to the Minister to be necessary or desirable for effective performance by the Consultative Committee of its functions.

(12) The Consultative Committee shall arrange its business as it sees fit.

(13) Members of the Consultative Committee shall be paid by the Authority such allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

(14) The Authority shall provide all reasonable facilities and services as may be required by the Consultative Committee for the performance of its functions.".

I move amendment No. 1 to amendment No. 150:

To delete subsection (5) and substitute the following:

"(5) The Consultative Committee shall consist of not more than 14 members who shall be nominated by the Minister. The committee shall include representatives from sea-fisheries, inshore fisheries, the seafood processing industry, the aquaculture sector, non governmental organisations with an interest in marine issues and independent and educational marine research institutions.".

I gave an undertaking to look at this issue before Report Stage.

Amendment to amendment, by leave, withdrawn.
Amendment agreed to.

I move amendment No. 151:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"50.—(1) The Authority shall appoint one or more persons from outside the Authority ("Complaints Officer") to—

(a) duly consider, and

(b) furnish a report to the Authority on, any complaint duly made under this section by or on behalf of a member of the

public in relation to the enforcement of sea-fisheries law or food safety law.

(2) The Authority shall have regard to the report of the Complaints Officer under subsection (1) and shall advise the complainant and the Complaints Officer of its decision in the matter.

(3) A complaint shall not be considered under this section if—

(a) it relates to any matter the subject of proceedings before a court or other tribunal,

(b) it is the subject of a complaint to the Ombudsman or an appeal to the Information Commissioner, or

(c) it is not made to a Complaints Officer within 28 days after the subject matter of the complaint arose.”.

Amendment agreed to.

I move amendment No. 152:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"51.—(1) The Authority may, with the approval of the Minister given with the consent of the Minister for Finance, appoint such and so many persons to be members of its staff as it considers necessary to assist it in the performance of its functions.

(2) The terms and conditions, including terms and conditions as to remuneration and grading, of persons appointed under subsection (1) shall be determined by the Minister with the consent of the Minister for Finance.

(3) The Authority may perform such of its functions as it may deem proper through or by any member of its staff (including any person who is made available to it under section 62(1)).”.

Amendment agreed to.

I move amendment No. 153:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"52.—(1) The Authority may appoint members of staff of the Authority to be seafisheries protection officers for the purposes of enforcing sea-fisheries law and food safety law for such period as it sees fit.

(2) The Authority may, in agreement with any body established by or under statute, authorise persons who are officers of that body, to—

(a) perform such functions of a sea-fisheries protection officer under seafisheries and food safety law, or

(b) assist a sea-fisheries protection officer in exercising such functions, for such period and in such circumstances or area, to such extent and subject to such conditions as it may specify in the authorisation.”.

Amendment agreed to.

I move amendment No. 154:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"53.—(1) The Minister shall designate officers of the Minister who are sea-fishery protection officers immediately before the establishment day to be transferred to the Authority on the establishment day.

(2) The Minister may designate such and so many of his or her other officers to be transferred to the Authority.

(3) Staff transferred in accordance with subsection (1) or (2) are deemed to be in the employment of the Authority.

(4) Save in accordance with a collective agreement negotiated with any recognised trade unions and staff associations concerned, an officer of the Minister transferred to the staff of the Authority under subsection (1) or (2) shall not, while he or she is in the service of the Authority, receive a lesser scale of pay or be made subject to less beneficial terms and conditions of service (including those relating to tenure of office) than the scale of pay to which he or she was entitled or the terms and conditions of service (including those relating to tenure of office) to which he or she was subject immediately before his or her transfer.

(5) In relation to persons transferred in accordance with subsection (1) or (2) to the staff of the Authority, previous service in the Civil Service shall be reckonable for the purposes of, but subject to any exceptions or exclusions in—

(a) the Redundancy Payments Acts 1967 to 2003,

(b) the Minimum Notice and Terms of Employment Acts 1973 to 2001,

(c) the Unfair Dismissals Acts 1977 to 2001,

(d) the Terms of Employment (Information) Act 1994,

(e) the Organisation of Working Time Act 1997,

(f) the Parental Leave Act 1998,

(g) the Carer’s Leave Act 2001,

(h) the Protection of Employees (Part-Time Work) Act 2001 and

(i) the Protection of Employees (Fixed-Term Work) Act 2003.”.

I move amendment No. 1 to amendment No. 154:

In subsection (5)(b), to delete “1973 to 2001” and substitute “1973 to 2005”.

The reason for my two amendments to amendment No. 154 is that the citation is incorrect because of section 1 of the Civil Service Regulation (Amendment) Act 2005 and other relevant legislation.

Amendment to amendment agreed to.

I move amendment No. 2 to amendment No. 154:

In subsection (5)(c), to delete “1977 to 2001” and substitute “1977 to 2005”.

Amendment to amendment agreed to.
Amendment, as amended, agreed to.

I move amendment No. 155:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"54.—The Authority may, from time to time, engage such consultants or advisers as it may consider necessary to assist it in the discharge of its functions and any fees due to a consultant or adviser engaged under this section shall form part of the expenses of the Authority.".

Amendment agreed to.

I move amendment No. 156:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"55.—No action or other proceedings shall lie or be maintainable (except in the case of wilful neglect or default) against—

(a) a member of the Authority or a member of the staff of the Authority,

(b) a person authorised by the Authority under section 52(2)(a),

(c) a person engaged by the Authority under section 54, or

(d) a person made available to the Authority under section 62,

arising from a failure to perform or to comply with any of the functions conferred or obligations imposed on the Authority by or under this Chapter.".

Amendment agreed to.

I move amendment No. 157:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"56.—(1) Where a member of the Authority—

(a) accepts nomination as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a representative in the European Parliament,

(c) is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she shall thereupon cease to be a member of the Authority.

(2) Where a member of the staff of the Authority—

(a) accepts nomination as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a representative in the European Parliament, or

(c) is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to the European Parliament to fill a vacancy,

he or she shall thereupon stand seconded from his or her employment by the Authority and shall not be paid by, or be entitled to receive from, the Authority remuneration or allowances in respect of the period commencing on such nomination or election or when he or she is so regarded as having been elected, as the case may be, and ending when he or she ceases to be a member of either such House or such Parliament.

(3) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a member of the Authority or a member of the staff of the Authority.

(4) A person who is a member of a local authority shall be disqualified from becoming a member of the Authority while he or she is a member of such local authority.

(5) The Authority shall not employ or otherwise retain in any capacity a person who would otherwise be disqualified under this section from becoming a member of the Authority while that person would be so disqualified.

(6) Without prejudice to the generality of subsection (2), that subsection shall be construed as prohibiting, among other things, the reckoning of a period mentioned in that subsection as service with the Authority for the purposes of any superannuation benefits.”.

Amendments Nos. 1 and 2 to amendment No. 157 not moved.
Amendment agreed to.

I move amendment No. 158:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"57.—The Authority shall, following consultation with the Minister and the Minister for Finance, draw up a code of conduct in respect of controls on interests and ethical behaviour to apply to all members of the Authority and all members of the staff of the Authority.".

Amendment agreed to.

I move amendment No. 159:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"58.—(1) Where a member of the Authority, a member of the staff of the Authority, or a consultant, adviser or other person engaged by the Authority, has a beneficial interest in, or material to, any matter which falls to be considered by the Authority, he or she shall—

(a) disclose to the Authority, and in the case of disclosure by a member of the Authority where there is only one member, that member shall disclose to the Minister, the nature of his or her interest in advance of any consideration of the matter,

(b) neither influence nor seek to influence a decision in relation to the matter,

(c) take no part in any consideration of the matter, unless there are compelling reasons requiring him or her to do so,

(d) if he or she is a member of the Authority, withdraw from a meeting of the Authority for so long as the matter is being discussed or considered by the Authority, and unless there are compelling reasons requiring him or her to do so, shall not vote or otherwise act in relation to the matter, and

(e) prepare and furnish in advance to the Authority or Minister, as appropriate, a statement in writing of the compelling reasons aforesaid.

(2) For the purposes of this section, but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if—

(a) he or she or any connected relative, or any nominee of his or her or any connected relative, is a member of an undertaking or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection,

(b) he or she or any connected relative is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter,

(c) he or she or any connected relative is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates, or

(d) any connected relative has a beneficial interest in, or material to, such a matter.

(3) In subsection (2), “connected relative” means, in relation to a person to whom that subsection applies, the person’s spouse or partner, parent, brother, sister, child or a child of a spouse or partner.

(4) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter, by reason only of an interest of his or her or of any undertaking or of any other body or person mentioned in subsection (2) which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering, discussing or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.

(5) Where a question arises as to whether or not a course of conduct, if pursued by a person, would be a failure by him or her to comply with the requirements of subsection (1), the question shall be determined by the Authority or, where there is only one member of the Authority, in the case of that member, by the Minister.

(6) Particulars of the determination under subsection (5) shall be recorded by the Authority in the minutes of the meeting concerned or by the Minister by letter addressed to the Authority.

(7) Where a disclosure is made to the Authority or the Minister pursuant to subsection (1), particulars of the disclosure shall be recorded in the minutes of any meeting concerned or by the Minister by letter addressed to the Authority.

(8) Where a person referred to in this section, other than a member of the Authority, fails to make a disclosure in accordance with this section, the Authority shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(9) Where a member of the Authority fails to make a disclosure in accordance with this section, the Minister shall decide the appropriate action (including removal from office) to be taken.".

Amendment agreed to.

I move amendment No. 160:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"59.—(1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a member of the Authority, member of the staff of the Authority or a consultant, adviser or other person engaged by the Authority, unless he or she is duly authorised to do so.

(2) In this section, "duly authorised" means authorised by the Authority or by some person authorised in that behalf by the Authority for the purposes of this section.

(3) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 3 months, or to both.

(4) (a) In this section, “confidential information” means that which is expressed by the Authority to be confidential either as regards particular information or as regards information of a particular class or description.

(b) In expressing information to be confidential, the Authority shall have regard to the requirement to protect information of a confidential commercial nature.

(5) Nothing in subsection (1) shall prevent the disclosure of information in a report made by or on behalf of the Authority to the Minister.

(6) The Third Schedule to the Freedom of Information Act 1997 is amended by the insertion in Part I at the end thereof—

(a) in column (2) of “Sea-Fisheries and Maritime Jurisdiction Act 2006”, and

(b) in column (3) of “Section 59”.

Amendment agreed to.

I move amendment No. 161:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"60.—(1) The Minister shall, with the consent of the Minister for Finance, make a scheme or schemes for the granting of superannuation benefits to or in respect of a member of the Authority ceasing to hold office.

(2) Every scheme made under this section shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme and different times and conditions may be fixed in respect of different classes of persons.

(3) The Minister may, with the consent of the Minister for Finance, make a scheme amending or revoking a scheme under this section, including a scheme under this subsection.

(4) If any dispute arises as to the claim of a member of the Authority to, or the amount of, any superannuation benefit payable in pursuance of a scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance for determination by him or her.

(5) A scheme under this section shall be carried out by the Minister in accordance with its terms.

(6) No superannuation benefit shall be granted by the Minister to or in respect of any member of the Authority ceasing to hold office otherwise than in accordance with a scheme under this section or as otherwise may be approved of by the Minister with the consent of the Minister for Finance.

(7) A scheme under this section shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

Amendment agreed to.

I move amendment No. 162:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"61.—(1) The Authority shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such members of the staff of the Authority as it may think fit.

(2) Every scheme made under this section shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme and different times and conditions may be fixed in respect of different classes of persons.

(3) Every scheme made under subsection (1) may, with the consent of the Minister for Finance, be amended or revoked by a subsequent scheme prepared, submitted and approved under subsection (1).

(4) A scheme made under subsection (1) submitted by the Authority to the Minister shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Authority in accordance with its terms.

(5) No superannuation benefits shall be granted by the Authority nor shall any other arrangements be entered into by the Authority for the provision of such a benefit to or in respect of a member of the staff of the Authority otherwise than in accordance with a scheme under subsection (1) or otherwise as may be approved of by the Minister with the consent of the Minister for Finance.

(6) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance for determination by him or her.

(7) A scheme under this section shall be laid before each House of the Oireachtas by the Authority as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(8) Superannuation benefits granted under schemes under this section to persons who, immediately before the establishment day, were officers of the Minister and the terms and conditions relating to those benefits shall not be less favourable to those persons than those to which they were entitled immediately before that day.

(9) Where, in the period beginning on the establishment day and ending immediately before the commencement of a scheme under this section, a superannuation benefit falls due for payment to or in respect of a person who was transferred to the staff of the Authority under section 53, the benefit shall be calculated by the Authority in accordance with such scheme, or such enactments in relation to superannuation, as applied to the person immediately before the establishment day and, for that purpose, his or her pensionable service with the Authority shall be aggregated with his or her previous pensionable service and shall be paid by the Authority.".

Amendment agreed to.

I move amendment No. 163:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"62.—(1) The Minister may make available to the Authority, on a request being made by the Authority, such staff, premises, equipment, services and other resources as the Minister may determine from time to time in consultation with the Minister for Finance.

(2) The Authority shall, on request from the Minister, pay to the Minister such sum or sums as the Minister may specify to be the expenses incurred by the Minister in making available to the Authority such staff, premises, equipment, services and other resources under subsection (1).”.

Amendment agreed to.

I move amendment No. 164:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"63.—(1) In each financial year there shall be paid to the Authority out of moneys provided by the Oireachtas a grant of such amount as the Minister, with the consent of the Minister for Finance and after consultation with the Authority in relation to its likely work programme and expenditure for the financial year (and after taking into account any other resources including monies available to the Authority), may sanction towards the expenses of the Authority in the due performance of its functions.

(2) In determining the grant payable to the Authority under subsection (1), the Minister shall have regard to the obligations of the State under the common fisheries policy or other international agreement in so far as the due performance of the functions of the Authority is concerned.”.

Amendment agreed to.

I move amendment No. 165:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"64.—(1) Subject to subsection (2), for the purpose of meeting expenses properly incurred by the Authority in the due performance of its functions under this Chapter, the Authority, with the consent of the Minister and the Minister for Finance, may make regulations imposing fees to be paid by such classes of persons as may be specified by the Authority in the regulations.

(2) Regulations under subsection (1) may provide for the following—

(a) rates of fee payable,

(b) the keeping of records and the making of returns by persons liable to pay fees,

(c) the collection and recovery of fees, and

(d) such other matters as are necessary or incidental to the procurement of the payment of fees.

(3) Fees shall be payable to the Authority at such time and at such rates as may be prescribed in regulations made by the Authority under subsection (1) and different rates may be prescribed in respect of different classes of persons liable to pay fees.

(4) Fees payable under the regulations mentioned in Schedule 3 shall, on the establishment day, be payable to the Authority and may be altered by regulations under this section.

(5) The Minister may, with the consent of the Minister for Finance, direct the Authority to pay into the Central Fund or the growing produce thereof, such sum as he or she may specify, being a sum that represents the amount by which the gross income received by the Authority in each financial year exceeds the gross expenditure incurred in the administration of its office in that year.

(6) The Authority may recover, as a simple contract debt in any court of competent jurisdiction, from any person by whom it is payable any amount due and owing to it under this section (including fees payable under regulations mentioned in Schedule 3).

(7) The Public Offices Fees Act 1879 does not apply to any fees payable under this section.".

Amendment agreed to.

I move amendment No. 166:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"65.—The Authority may, for the purpose of the performance of its functions, borrow money (whether on the security of its assets or otherwise), including money in a currency other than the currency of the State, but shall not do so without the consent of the Minister and the Minister for Finance.".

Amendment agreed to.

I move amendment No. 167:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"66.—(1) The Authority shall keep in such form and in respect of such accounting periods as may be approved of by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of moneys received or expended by it, including an income and expenditure account and a balance sheet.

(2) Accounts kept in pursuance of this section shall be submitted, not later than three months after the end of the financial year to which they relate, by the Authority to the Comptroller and Auditor General for audit and, immediately after the receipt of the Comptroller and Auditor General's report on the accounts, a copy of the income and expenditure account, the balance sheet and of such other (if any) accounts kept pursuant to this section as the Minister, after consultation with the Minister for Finance, may direct and a copy of the Comptroller and Auditor General's report on the accounts shall be presented to the Minister who shall cause copies thereof to be laid before each House of the Oireachtas.

(3) As soon as practicable, but not later than 3 months after the end of each financial year, the Authority shall, in writing, report to the Minister in relation to the performance of its functions in that year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas within 3 months of its receipt by him or her.

(4) The report under subsection (3) shall, in particular, indicate—

(a) the extent to which the Strategy Statement of the Authority was implemented in that year,

(b) the number of complaints made under section 50 in that year and the decision of the Authority in relation to the complaints, and

(c) the results of any review by or on behalf of the Authority of the cost effectiveness of its operations.

(5) The Minister may give directions in writing to the Authority in regard to the format and content of a report under subsection (3), but such directions shall not require the Authority to include in such report details which could, in the opinion of the Authority, be prejudicial to the performance of its functions.

(6) The Authority shall give to the Minister such information relating to the performance of its functions as the Minister may request provided that such information would not, in the opinion of the Authority, be prejudicial to the performance of its functions.

(7) The financial year of the Authority shall be the period of 12 months ending on 31 December in any year and, for the purposes of this section and section 63, the period commencing on the establishment day and ending on the following 31 December shall be deemed to be a financial year.”.

Amendment agreed to.

I move amendment No. 168:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"67.—(1) The Authority shall adopt and submit to the Minister a statement of strategy within 6 months after the establishment day and at least every 3 years from the submission date of the first statement.

(2) The statement of strategy shall—

(a) comprise the key objectives, outputs and related strategies, including use of resources, of the Authority,

(b) be prepared in a form and manner in accordance with any directions issued from time to time by the Minister, and

(c) have regard to the need to ensure the most beneficial, effective and efficient use of the resources of the Authority.

(3) The Authority shall publish a statement of strategy adopted by it and shall lay a copy before each House of the Oireachtas.".

Amendment agreed to.

I move amendment No. 169:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"68.—Subject to section 66, the Authority may publish any reports on matters related to its functions.”.

Amendment agreed to.

I move amendment No. 170:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"69.—(1) The member of the Authority, or where there is more than one member of the Authority, the chairperson of the Authority, shall, whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, attend before and give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Authority is required by or under statute to prepare,

(b) the economy and efficiency of the Authority in the use of its resources,

(c) the systems, procedures and practices employed by the Authority for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting the Authority referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) From time to time, and whenever so requested, the Authority shall account for the performance of the functions of the Authority to a Committee of one or both Houses of the Oireachtas and shall have regard to any recommendations of such Committee relevant to its functions.

(3) In carrying out it's duties under this section, the Authority shall not—

(a) question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy,

(b) provide information that might facilitate the commission of an offence, prejudice a criminal investigation or jeopardise the safety of any person, or

(c) be required to account to a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State.”.

I move amendment No. 1 to amendment No. 170:

In subsection (3), to delete paragraph (a).

Amendment No. 1 to amendment No. 170 relates to subsection (3)(a) of the latter, which deals with the accountability of the officials in the new agencies. It is really concerned with the authority of the committee and the ability of officials to question or express opinions on the merits of any policy of the Government or on the merits of the objectives thereof. It is an old amendment which I have tabled in respect of several Bills, arising from my experience on the Committee of Public Accounts and various other committees. It is difficult to be able to give a full account to a committee without having a clear view of the agency’s direction.

We have already discussed this matter.

Is that correct?

Yes. All these issues have already been discussed. At present, the committee is simply completing its consideration of the amendments.

The committee did not discuss this amendment. It was skipped.

We have had the discussion. We will now make the decision.

I understand. I did not notice at the time that it had been skipped.

I do not want to engage in a discussion.

This is the kind of amendment which is tabled by members when in Opposition and which is duly ignored when such members are in Government.

Amendment to amendment put and declared lost.
Amendment put and declared carried.

I move amendment No. 171:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"70.—The Authority may, for the purposes of providing premises necessary for the performance of its functions, purchase, lease, equip and maintain offices and other premises with the consent of the Minister and the Minister for Finance.".

Amendment agreed to.

I move amendment No. 172:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"71.—(1) The Authority shall, as soon as may be after its establishment, provide itself with a seal.

(2) The seal shall be authenticated by the signature of—

(a) a member of the Authority, or

(b) a member of the staff of the Authority, authorised by the Authority to act in that behalf.

(3) Judicial notice shall be taken of the seal of the Authority and every document purporting to be an instrument made by and to be sealed with the seal of the Authority (purporting to be authenticated in accordance with this section) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.".

Amendment agreed to.

I move amendment No. 173:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"72.—(1) The Authority shall keep itself informed of the policies, objectives, resolutions and guidelines of any public authority the functions of which have, or may have, a bearing on the matters with which the Authority is concerned.

(2) In this section, "public authority" means the Minister, the Council and Commission of the European Communities and any other public authority inside or outside the State which, in the opinion of the Authority, has functions that have, or may have, a bearing on matters with which the Authority is concerned.".

Amendment agreed to.

I move amendment No. 174:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"73.—The Authority may provide services (including services of staff) to the Minister or to another person on such terms and conditions (including payment for such services) as may be agreed and the Minister or the other person concerned may avail of such services.".

Amendment agreed to.

I move amendment No. 175:

In page 42, before section 42, but in Chapter 5, to insert the following new section:

"74.—In this Chapter—

"food safety law" means—

(a) food legislation (within the meaning of section 2(1) of the Food Safety Authority of Ireland Act 1998) relating to the safety and hygiene of fish or fishery products, and

(b) the legal obligations of the State in relation to fish or fishery products arising under any law of an institution of the European Communities or other international agreement which is binding on the State (whether or not such legal obligation is the subject of regulations under the Act of 1972 or any other enactment);

"local authority" has the meaning assigned to it by the Local Government Act 2001;

"sea-fisheries law" means—

(a) the Sea-Fisheries Acts 2003 and 2006 and instruments made by the Minister under the Acts, and

(b) the legal obligations of the State in relation to sea-fisheries arising under any law of an institution of the European Communities to give effect to the common fisheries policy or other international agreement which is binding on the State (whether or not such legal obligation is the subject of regulations under the Act of 1972 or any other enactment).”

Amendment agreed to.

We will now discuss amendments Nos. 176 to 179, inclusive, together.

I move amendment No. 176:

In page 42, before section 42, to insert the following new section:

"CHAPTER 6

Administrative Penalties

42.—(1) As soon as may be following the passage of this Act, the Minister shall prescribe a system of administrative penalties which may be applied to breaches of the Sea Fisheries Acts 2003 and 2006.

(2) Administrative penalties for breaches of the Sea Fisheries Acts 2003 and 2006 will not preclude the application of any other sanctions as allowed for in this Act for serious and repeated sea fishery offences.

(3) The system of administrative penalties may include—

(a) on the spot fines,

(b) penalty points in relation to licensing offences,

(c) graduated fines,

(d) fines levied in proportion to percentages of individual boat fishing catches, individual annual turnover and corporate annual turnover.”.

This amendment gives members another opportunity to put their positions on record. I tried to locate an appropriate place in the Bill for it. Deputy Ferris included it at a fairly early point, while others included it in the sections containing tables of penalties. I thought that administrative penalties could be included in a more definitive form by inserting a new chapter. The amendment states, "as soon as may be [by which I mean pronto] following the passage of this Act, the Minister shall prescribe the system of administrative penalties which may be applied to breaches of the Sea Fisheries Acts 2003 and 2006.” Such penalties “will not preclude the application of any other sanctions as allowed for in this Act for serious and repeated sea fisheries offences”. I then specified some measures that I thought were appropriate following earlier discussions on the Bill, such as on-the-spot penalties, some sort of penalty point system, graduated fines and — more controversially — fines levied in proportion to percentages of an individual boat’s catch or turnover. In the case of a company, it could apply to its corporate annual turnover. This could constitute a quite stiff penalty, albeit an administrative one.

Like previous amendments, this amendment provides the Minister with a final opportunity to come forward with a system of administrative fines or to agree to them in principle. The Minister and his officials could then get down to the nitty-gritty details and could perhaps present members with a system of administrative penalties by next Monday or Tuesday. This would mark the point whereby the Minister was truly converted.

Has the Minister's opinion changed since the committee spoke at length on this topic earlier?

Absolutely not.

Amendment put.
The Committee divided: Tá, 4; Níl, 7.

  • Broughan, Thomas P.
  • Ferris, Martin.
  • Perry, John.
  • Ryan, Eamon.

Níl

  • Dempsey, Noel.
  • Fitzpatrick, Dermot.
  • Kelly, Peter.
  • McEllistrim, Thomas.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Malley, Fiona.
Amendment declared lost.
SECTION 42.

I move amendment No. 177:

In page 42, subsection (1), line 26, to delete "in such form as he or she considers appropriate".

This amendment would deprive the Registrar General of Fishing Boats of the power to maintain the register of fishing boats as he or she sees fit and would establish an obligation to maintain the register in a particular form as outlined in amendment No. 178. The latter would oblige the Registrar General of Fishing Boats to make the register available to the public by means of publication on the Internet. It would ensure that the general public has access to what is proposed by amendment No. 177.

I am not sure what Deputy Ferris is attempting to achieve in amendment No. 177. The form of the register of fishing boats is a purely administrative matter and is subject to any EU or international obligations applicable, so I am not sure what is intended in amendment No. 177.

Amendment No. 178 is also unnecessary because the register of fishing boats is available on the Department's website at www.dcmnr.gov.ie. The register is a public document and is available for inspection by citizens.

Section 42(1) stipulates that the register "shall continue to be maintained by the Registrar General of Fishing Boats in such form as he or she considers appropriate". It is my intention to ensure that the register of fishing boats is made available to the public and not just as the Registrar General feels appropriate. The issue should be on more concrete terms. Amendment No. 178 states: "The Registrar shall make the Register of Fishing Boats available to the public by means of publication on the Internet." This determines the certainty of the intention.

The Deputy's amendment is unnecessary in that the register is already available on the Internet.

As the Registrar General considers appropriate.

We are discussing two different matters. I am not sure what the first amendment means but the second amendment seeks for the register to be made public and transparent, with which I agree. People are and should be able to refer to the register. It is a public document.

Amendment, by leave, withdrawn.
Amendment No. 178 not moved.

I move amendment No. 179:

"(4) If satisfied, after considering the objection and any submission received, the Minister shall issue directions, including policy directions, to the Registrar General so as to remedy any matters giving rise to, or likely to give rise to, anomalies.".

Section 42 provides for the continuation of the national register of fishing votes, which is to be maintained and updated by the Registrar General of Fishing Boats or the deputy registrar general confirmed in office or newly appointed under this section, and the appointment of local registrars for certain ports.

While the matter is tightly framed, the narrow restrictions placed on the Minister's powers of licensing by the 2003 Act have given rise to a series of anomalies. The Minister has delegated his functions in respect of the registration of boats. My amendment would widen the scope for the Minister to lay down policy directions for the Registrar General so that anomalous situations can be corrected and not repeated. The Minister should examine the important issue of boat licensing as the Minister of the day would be out of the loop in this matter.

It is right and proper that I am out of the loop. An independent person subject to law and general policy directions should be responsible. We previously received complaints, some that were justified but others that were not, about licences given in certain areas but not given elsewhere. People were accused of doing their friends favours. It is only right that the decision on the individual application for an asset as valuable as a fishing licence that is strictly controlled at EU level should be made by someone outside the political system and who applies the same rules in a transparent and open manner. The Deputy's amendment would have the effect of repoliticising the licensing authority and its decisions. In effect, it would negate the power of the Registrar General. It would not be appropriate for him or her to be second guessed but I am sure the Deputy is not advocating such.

The Deputy raised the issue of anomalies. The Registrar General or the Minister — in a general sense and not in the case of a particular licence — can make a direct decision on a matter. If the anomalies are policy matters, the Minister has the power to change the policy generally, with which the Registrar General must conform. I am sure that it is not the Deputy's intention but his amendment would have the Minister and the political system making decisions on individual licences again. This would not be a good idea.

If there is a difficulty and someone must appeal a case or seek arbitration, is there an arbitrary body to deal with it?

Appeals officers are available.

Is that provision included in the Bill?

It is included in section 3 of the 2003 Act.

The Minister could enshrine it in section 42 of this Bill given that he has given the section such prominence.

It is incorporated in the 2003 Act.

What type of appeal process is provided?

A person dissatisfied with the decision of the registrar can appeal and state his or her case. The appeals officer is independent of the licensing authority.

The Minister may not have the information with him but has there been any situation in which someone's appeal in respect of the issuing of a licence was successful?

There have been successful appeals. I am unsure of the number.

Is it like an ombudsman's office or such?

To my knowledge it is fairly non-bureaucratic.

How effective is it?

The officer's decision is final. It probably is not for the person whose appeal is not upheld. For example, if someone appeals to An Bord Pleanála and his or her appeal is upheld, the board is the best body in the world but if the appeal is not upheld, the board is the worst body.

Is there anything else the Minister can do on Report Stage to reassure people whose difficulties are not being resolved? I do not wish to take anything from the Registrar General and the matter should be above political interference. The Minister stated he can only give directions on policy issues. Does this not give significant power to the Registrar General, a single person?

We could have a philosophical discussion on this matter. As Fianna Fáil has been in power for a long time, we are often accused of doing all types of things. People want fair, open and transparent processes. They do not want administrative decisions or decisions made by politicians. A regular claim is that lottery grants should not be within the power of Ministers.

In a situation such as fishing boat licensing we are discussing a public good or resource. People would like to know that persons receive these licences on merit. I do not have any evidence to suggest this method is not working, not working well or the appeals system is not a good one. The people who operate the appeals system are lawyers.

Deputy Perry can examine the 2003 Act to satisfy his curiosity.

Amendment put and declared lost.

I move amendment No. 180:

In page 42, subsection (6), line 46, to delete "continues" and substitute "continue".

Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.

Amendments Nos. 181 and 184 are cognate and may be discussed together. Is that agreed? Agreed.

I move amendment No. 181:

In page 43, subsection (1), line 4, after "law" to insert the following:

", or other international obligations which are binding on the State,".

These are drafting amendments, providing for completeness and specifically covering UN or other non-EU international obligations. This is already provided for in section 43(2) as well as section 44(g) but this amendment adds completeness.

Amendment agreed to.

Amendments Nos. 182 and 183 are cognate and may be discussed together. Is that agreed? Agreed.

I move amendment No. 182:

In page 43, subsection (4)(a), line 23, after “issued” to insert “by the Registrar General”.

This amendment refers to the Registrar General and clarifies the certificate required. Amendment No. 183 suggests, in page 43, subsection (4)(b), line 25, after “registration” to insert “issued by the Registrar General”. This delegates more responsibility to the position of Registrar General. The adjustment is somewhat technical but the section, which states that a certificate of registration shall be issued in respect of a boat entered in the register, would be improved by my amendment. If accepted, the section would refer to the certificate issued by the Registrar General being carried on board the boat in respect of which it is issued.

I understand what the Deputy is trying to achieve with his amendment. The only person who can issue such a certificate is the Registrar General and I am advised one does not need to specify that this is so.

Would this not give more authority and validation to the document?

No, the Registrar General is the only person that can issue this document. The Deputy's amendment is unnecessary.

Does it not give credence to the appointment, if such an important delegation of responsibility is granted to the role? There is ambiguity as the Bill stands because it merely refers to being entered in the register. The Registrar General will sign this document. I have not seen the type of document that will be issued.

It will be clear that the document is issued by the Registrar General.

I know that the Minister has given major responsibility to the Registrar General. What I suggest is a technical adjustment.

I have not seen the document but I will try to be helpful. Perhaps it is similar to what the Companies Office provides when one registers a company, with all formalities entered on the document.

Yes, possibly.

Amendment, by leave, withdrawn.
Amendment No. 183 not moved.

I move amendment No. 184:

In page 44, subsection (6)(c), line 8, after "law" to insert the following:

", or other international obligations which are binding on the State,".

Amendment agreed to.
Amendment No. 185 not moved.
Section 43, as amended, agreed to.
Sections 44 to 46, inclusive, agreed to.
Amendment No. 186 not moved.
Section 47 agreed to.
SECTION 48.

I move amendment No. 187:

In page 45, line 33, to delete "65” and substitute “64”.

Amendment agreed to.
Section 48, as amended, agreed to.
Sections 49 to 51, inclusive, agreed to.
NEW SECTION.

I move amendment No. 188:

In page 46, before section 52, to insert the following new section:

"52.—(1) The contiguous zone of the State is that portion of the sea not included in the territorial seas of the State which lies between the baseline and the outer limit of the contiguous zone.

(2) The outer limit of the contiguous zone is the line every point of which is at a distance of 24 nautical miles from the nearest point of the baseline.

(3) The State may exercise in the contiguous zone such rights and duties as are provided for in international law.".

This is the first of three amendments that seeks to clarify the maritime jurisdiction of the country, furthering the definitions of the exclusive economic zone and the exclusive fishery limits of the State. This first amendment seeks to add a phrase often used in international law, namely, "the contiguous zone".

Section 51 states that our territorial sea is the 12-mile limit from the nearest point on the baseline but many international conventions, and particularly the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and the UN Law of the Sea convention, define contiguous zones. These are home zones, some 24 nautical miles from the baseline. Under the 1958 convention and the UN Law of the Sea convention, the State has the absolute right to exercise territorial control.

In other amendments I refer to the limits of our State. We have not incorporated this into legislation and these three amendments, which run together, provide the Minister with opportunity to advance the clear entitlements of our State over the seas.

The Marine Institute recently provided a briefing, pointing out that the State is at least ten times bigger than the land mass. This appeared in articles by the Independent group of newspapers and referred to our territorial seas as being more than 1 million sq. km. It would be useful to define our contiguous zones. Classic law books, such as Symmons'Ireland and the Law of the Sea and Kelly’s The Irish Constitution both refer to contiguous zones. Amendment No. 188 is a definition we are entitled to exercise, given the pressures we have been subjected to by other fleets. I urge the Minister to consider section 52.

I am delighted to be able to respond positively on this point. There has been contact between my legal adviser and that of Deputy Broughan. This amendment is acceptable to us and I thank Deputy Broughan for his work in formulating this useful addition to our law, which will also prove useful with other legislation.

I thank the Minister, the Department's legal adviser and officials at the Department. This will be helpful in matters other than fisheries.

Amendment agreed to.
Section 52 agreed to.
Section 53 agreed to.
SECTION 54.

I move amendment No.188a:

In page 47, subsection (1), line 8, to delete "to this Act".

Amendment agreed to.

I move amendment No. 189:

In page 47, subsection (3), line 14, to delete "the" where it firstly occurs.

Amendment agreed to.
Section 54, as amended, agreed to.
NEW SECTION.

Amendments Nos. 190, 191, 194 and 195 are related and will be taken together.

I move amendment No. 190:

In page 47, before section 55, to insert the following new section:

"55.—(1) The continental shelf of the State is the area beyond and adjacent to the territorial seas and prescribed for the purposes of section 2(3) of the Continental Shelf Act 1968.

(2) Over that part of the continental shelf that lies outside the exclusive economic zone, the State has the sovereign rights and jurisdiction and other rights and duties referred to in section 54(4) insofar as they relate to the seabed and its subsoil or are reasonably incidental thereto, and includes, for purposes prescribed by the Minister, the waters above such seabed.

This amendment is related to the previous one. We define the exclusive economic zone of the State as being 200 miles and we define the exclusive fisheries zone within that 200 miles. As far as we can see, we have not defined the continental shelf. It lies beyond the 200 mile limit. We must assert the control of the State. This is an opportunity to do so as this is not only a fisheries Bill, but a marine jurisdiction Bill.

The 1968 Act refers to the general powers exercisable within the economic zone. However, the Bill does not clarify what rights are exercisable on the shelf. It simply states that any rights over the shelf are vested in the Minister. The 1968 Act seems to lack provisions for exercising general control over the shelf, such as charging people for laying cables or any other work in our national territory. It is limited to exploration and exploitation. It is in the interests of the State to define those rights exercisable in the continent shelf and do so in the most expansive manner possible.

The shelf goes well beyond the 200 nautical mile limit. Legislation must provide for a clear assertion of rights well beyond that limit and harmonise the shelf regime with the rights under section 54. Most people would agree that had we not been oppressed for as long as we were by our neighbours, particularly in early modern times, we would have been a great maritime people. That is absolutely beyond question when one examines the 16th and 17th centuries when our maritime industry was smashed by the occupying English Government. At long last we are returning to being a true maritime people, and as part of that we should have clarity.

The amendment states that the "continental shelf of the State is the area beyond and adjacent to the territorial seas and prescribed for the purposes of section 2(3) of the Continental Shelf Act 1968." As that Act seems to be deficient, I propose the following in section (2) of the amendment: "Over that part of the continental shelf that lies outside the exclusive economic zone, the State has the sovereign rights and jurisdiction and other rights and duties referred to in section 54(4) insofar as they relate to the seabed and its subsoil or are reasonably incidental thereto, and includes, for purposes prescribed by the Minister, the waters above such seabed.”

We will debate the role of the Department before the next general election. My party will request that there be a separate Department of the marine, as was the case previously, and that a dynamic Minister be put in charge. We feel the basis of the turnaround would be clearer in law if we had a clear definition of the continental shelf. I ask the Minister to take the amendment on board.

Regarding amendment No. 191, a legal question is raised on whether the seas, the exclusive economic zone and the continental shelf are part of the State. It is surprising that over the years that area of the State was not defined in law as such, albeit that the land area is defined by the 1921 treaty. Section 56 of the Bill, which does not apply as currently worded to the exclusive economic zone, states that offences committed in the territorial seas fall within the jurisdiction of the State. That is a partial answer.

Section 63 of the 1968 Act provides that some, but only some, acts in the continental shelf area are deemed to be in the State. It is in the interests of the State to have as expansive a definition as possible of the State. In any event, such a philosophically basic question should not be a matter of inference. It should be clear. If we see ourselves, as we increasingly do, first and foremost as the guardians of all life, massive resources and, in the context of this Bill, fishery stocks in that territory, we should accept amendment No. 191, which states: "the territorial seas, the exclusive economic zone and the continental shelf of the State are part of the State and, unless otherwise provided by law, the law of the State shall apply in and in relation to such areas."

I cannot accept these amendments. I do not disagree with the general thrust of what Deputy Broughan stated. However, these amendments deal with much more complicated matters than the amendment I accepted. What the Deputy proposes is worthy of a separate Bill, and perhaps a separate study by the committee. It involves a great deal of international law, including United Nations law. While I do not disagree with the thrust of what the Deputy states, this Bill is not appropriate for it. I cannot accept these amendments in the context of this Bill. An argument could be made that the Department of Foreign Affairs should take a Bill of such magnitude and nature. I am interested in exploring it further but not in this Bill. It would give rise to complications.

If the Minister brings forward legislation, as he indicated he might, it may be useful to include natural resources.

I agree with the Deputy. We should legislate on this at some stage.

Amendment, by leave, withdrawn.
Section 55 agreed to.
Amendment. No. 191 not moved.
Section 56 agreed to.
SECTION 57.

I move amendment No. 192:

In page 48, lines 13 and 14, to delete subsection (2) and substitute the following:

"(2) This section does not apply to an offence under—

(a) the Dumping at Sea Acts 1996 to 2006,

(b) the Maritime Security Act 2004,

(c) the Sea-Fisheries Acts 2003 and 2006, or

(d) the Sea Pollution Acts 1991 to 1999.".

Amendment agreed to.
Section 57, as amended, agreed to.
Section 58 agreed to.
SECTION 59.

I move amendment No. 193:

In page 48, subsection (1), line 24, after "seas," to insert "the".

Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.

Amendments Nos. 194 and 195 have been discussed with amendment No. 190.

I move amendment No. 194:

In page 48, between lines 37 and 38, to insert the following subsection:

"(3) Section 2 of the Wildlife Act 1976 is amended by substituting for the definition of "the territorial seas of the State" the following:

"‘territorial seas of the State' means the portion of the sea which is defined by section 50 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 as the territorial seas of the State;”.”.

Amendment agreed to.

I move amendment No. 195:

In page 49, subsection (6), line 11, to delete "subsection” and substitute “subsection (2)”.

Amendment agreed to.
Section 60, as amended, agreed to.
Sections 61 to 63, inclusive, agreed to.
SECTION 64.

I move amendment No. 196:

In page 51, lines 29 and 30, to delete "renew a sea-fishing boat licence".

Amendment agreed to.

I move amendment No. 197:

In page 53, line 12, after "with" to insert ", or a record of a permitted derogation form,".

Derogations should be allowed to provide owners time to bring non-critical items up to standard. Amendment No. 203 is linked with this. Regarding amendment No. 197, section 64(9)(c) states: “Where a code of practice published by the Minister relating to the safety and sea-worthiness of a sea-fishing boat of a class to which paragraph (b) does not apply requires a survey to be carried out of a sea-fishing boat or of such class for the purpose of establishing whether or not such boat complies with the requirements specified in the code of practice, the licensing authority shall not grant or renew a sea-fishing boat licence in respect of a boat unless a declaration of compliance”. The amendment would insert “or a record of a permitted derogation form” after the reference to the “declaration of compliance”. The amendment also relates to sea-fishing boat licensing, which goes back to the 2003 Act. Derogation should be allowed under certain conditions and for non-critical items.

I understand what the Deputy is trying to do. However, it would be dangerous and loose. This amendment suggests that derogations from a code of practice on sea-fishing boat safety may be permitted. Where such permission is granted, the sea-fishing boat licencing authority may grant or renew a sea-fishing boat licence. However, it is not the function of the licensing authority to permit derogations to the code of practice. The drawing up of codes of practice is a matter for the Marine Survey Office of the Department of Transport, which office has drawn up a code of practice for the safety of sea-fishing boats less than 15 m long. The Deputy seems to be suggesting a code within a code. Any flexibility regarding compliance is specified in the code. The Marine Survey Office will assess whether amendments to it are warranted from time to time. That is the safest way forward. The Deputy will agree it is very important to maintain the relevant standard to ensure the safety of all sea-fishing boats in use.

Amendment, by leave, withdrawn.

I move amendment No. 198:

In page 53, line 19, to delete "of".

This is an amendment to remove an unnecessary word.

Amendment agreed to.

I move amendment No. 199:

In page 54, between lines 12 and 13, to insert the following:

"(c) A decision to refuse the grant or renewal of a sea fishing boat licence under the provisions of this section shall be open to appeal by the applicant or licence holder in accordance with the provisions of the Act of 2003 as related to the issuing of a licence by the Registrar General of Fishing Boats.”.

This amendment would allow a person in respect of whom the registrar has refused to renew a licence the same right to appeal as a new applicant.

The renewal of a licence is virtually automatic, except where there is specific key information on changes to the original status of the boat such as new ownership or capacity. It is not proposed to extend the appeals facility to refusals to renew sea-fishing boat licences. A refusal requires a new licensing decision, for which there is an appeal provided for under section 7 of the Act of 2003. Subsection (8)(c) gives the option to the sea-fishing boat licensing authority to revoke or suspend a licence in the event of contravention of sea-fishing boat licence requirements. Subsection (10)(c) provides for an appeal against such revocation or suspension to the District Court where a person’s livelihood is at stake. What the Deputy is trying to achieve is covered by the legislation.

Amendment, by leave, withdrawn.

I move amendment No. 200:

In page 54, to delete lines 15 to 20 and substitute the following:

"(a) entered in the Register of Fishing Boats maintained under section 42 of the Sea-Fisheries and Maritime Jurisdiction Act 2006,

(b) required by regulations under section 44 of that Act to be so entered, or

(c) exempt from such registration by regulations under that section;”.

Amendment agreed to.

I move amendment No. 201:

In page 54, subsection (2), line 33, to delete "commencement of this section" and substitute "passing of this Act".

Amendment agreed to.
Section 64, as amended, agreed to.
Section 65 agreed to.
SECTION 66.
Amendment No. 202 not moved.

Amendments Nos. 203 and 204 are related and may be discussed together.

I move amendment No. 203:

In page 55, paragraph (b), to delete lines 30 to 35.

According to section 5, the licensing authority is not liable in any proceedings for anything done in good faith in the exercise of its powers to grant or renew sea-fishing boat licences or maintain the register of fishing boats, but legal action should be open to any citizen who believes an incorrect decision has been made. Does the Minister agree that the section gives the licensing authority an exemption from proceedings?

My amendment is similar to my proposal on the powers and authority of the fishery protection officer. The Minister referred to actions carried out in good faith but I use a phrase taken from other legislation, namely, "and intended to be in accordance with law". While I am sympathetic to Deputy Perry's intentions in seeking to have the provision removed, I found that was the best way to deal with the matter.

To clarify the matter for Deputy Perry, action can be taken against a decision. We are protecting the public officer who makes a decision in good faith from personal liability.

Can the licensing authority be brought to court?

With regard to the decisions it makes, yes.

Naturally, I do not expect a civil servant to be held liable but the Bill, as it stands, frees the licensing authority from liability.

In effect, the person making the decision represents the authority. If the individual concerned makes a decision maliciously or in bad faith, he or she will have no protection but if it is made in good faith and based on the information to hand, an applicant will have a right to appeal or take an action in court. However, he or she will have no right to sue the deciding officer.

In what Act is that incorporated?

The 2003 Act.

Will the Minister double check and return to the matter on Report Stage, or is he satisfied it is provided for in the Act?

I am satisfied it is covered. It is a general provision to protect any authority.

Amendment, by leave, withdrawn.
Amendment No. 204 not moved.

Amendments Nos. 205 and 206 are related and may be discussed together.

I move amendment No. 205:

In page 56, paragraph (c)(iii), line 16, to delete “and” and substitute “an”.

Amendment agreed to.

I move amendment No. 206:

In page 57, paragraph (i), line 6, to delete "29" and substitute "28".

Amendment agreed to.
Section 66, as amended, agreed to.
NEW SECTION.

Amendment No. 207 has already been discussed with amendment No. 3.

I move amendment No. 207:

In page 57, before section 67, but in Chapter 3, to insert the following new section:

"67.—(1) This section applies where a person applies to the Minister, under section 21 of the Mercantile Marine Act 1955, to register a ship under the law of another country, the ship concerned being one that—

(a) is registered at a port in the State, and

(b) regularly proceeds to sea from a port in the State to any other port in the State or to a port in any other Member State.

(2) The Minister may on the application of a person to whom this section applies, consent to such registry by that person if but only if—

(a) that person is a national of a Member State or a body corporate established under and subject to the laws of a Member State,

(b) the port at which it is proposed to register the ship is a port within a Member State.

(3) In this section, "Member State" means a Member State of the European Union and also includes the Channel Islands and the Isle of Man.

(4) In deciding under this section whether to consent to registration or not of a ship, the Minister shall—

(a) have regard to the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on the 10th December 1982, which entered into force on the 16th November, 1994, and which was ratified by the State on the 21st June, 1996,

(b) have regard in particular to the need to ensure that the registry in the State of a ship will not be closed or transferred to a port outside the State in any circumstances that would amount to breach by the State of the Convention, and

(c) ensure that no recognition is given to the documents of registration issued by any other state to a ship in circumstances where no genuine link, within the meaning of the Convention, between that state and any ship concerned might exist.

(5) A person who registers a ship under the law of another state in contravention of this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months, or to both,

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years, or to both.

(6) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributed to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) is guilty of an offence and is liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.".

I did not get a chance to explain why I had tabled this amendment during the discussion on amendment No. 3. It proposes a new section concerning the Mercantile Marine Act 1955. As the Minister knows, the amendment arises from the controversy before Christmas concerning Irish Ferries, where a ship controlled by an Irish company was reflagged to greatly disimprove the terms and conditions of the workers on board, particularly non-EU workers. It is an ongoing issue so in subsection (1) of the new section proposed in amendment No. 207 I tried to say where it applies to ships registered under section 21 of the Mercantile Marine Act 1955 at a port in the State and which use a port in the State. It is similar to the Irish Ferries situation. The Minister might remember in one of last year's maritime Bills we took a section into Irish law and at that time I attempted to do something similar to this. As the Minister knows, the key point of subsection (4) of the proposed new section is paragraph (c): “that no recognition is given to the documents of registration issued by any other state to a ship in circumstances where no genuine link, within the meaning of the Convention” exists. The UN Convention on the Law of the Sea lays down that for a country to fly a flag it must have a genuine link with that state, not just a brass plate, say, in Cork if a boat was reflagged from, for example, Italy on to our register. The amendment goes on to specify the penalties. We had this issue before the Minister’s time, with the then Minister, Deputy Dermot Ahern. The expansion of the register is the responsibility of the maritime development body which has now gone to the Department of Transport. On the expansion of our flag, I am not sure how many boats we have now, we always had 30 or 35——

We have discussed this. I went back over the record and amendments Nos. 3, 207 and 222 were discussed together.

I did not take part in that discussion.

The Deputy did take part. Amendment No. 3 was his and he withdrew it.

I did not.

Could the Deputy conclude? I am trying to be as fair as I can.

I know but I am entitled to put forward the amendment, which is significant.

The Deputy withdrew amendment No. 3.

I did not withdraw amendment No. 207.