Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 26 Mar 1997

SECTION 75.

Mr. Molloy

I move amendment No. 42a:

In page 37, between lines 39 and 40, to insert the following subsection:

"(3) The holder of licences specified under section 75(1) (a), (b) or (c) shall be obliged to apply within a specified period of time, for a licence under section 10 of this Act subject also to sections 11 to 16, inclusive, of this Act.".

The Minister is familiar with the situation which obtained in relation to the granting of licences which were subsequently deemed, by the High Court and the Supreme Court, to have been illegally granted. Under the terms of this section, is it now proposed to legalise operations which were deemed to have been operating illegally under those court decisions?

Mr. Gilmore

Any licence struck down by the courts will not be licensed under this Bill. Under section 75 it is proposed that existing licences will become licences under and subject to all the terms of this legislation for the remainder of the period for which they will run. A ten year licence issued five years ago will continue to run for the remaining five years under the conditions and terms of this legislation and will come up for renewal in the normal way. Deputy Molloy proposes that licence holders will have to apply de novo for a licence under this legislation. It is not reasonable to expect that existing and possibly long standing licence holders should have to apply again for a licence. Section 75 will place responsibilities on existing licensees to comply with the new aquaculture licensing regime and I consider that perfectly reasonable.

I intend to table a technical amendment to this section on Report Stage. The matter is contained in section 75 (2)(b), where the word "restriction" will be deleted and replaced by the word "repeal". Deputies will appreciate that this is purely consequential to amendment No. 6, which has been agreed and relates to the application of licensing requirements to hatcheries engaged in the culture of fish for the purposes of stocking and restocking of inland fisheries, lakes and waterways.

Mr. Molloy

The anomalous position is that the Department had granted licences for fish farms in the sea under section 15 of the 1959 Act but the Supreme Court ruled that the Department and the Minister did not have that power under the Act. The Minister said that any licences struck down in the court will not be deemed to be awarded a licence under the terms of this Bill when enacted, which means it shall only apply in the case of Vestobrooke Limited. How many fish farms located in marine waters have been authorised under section 15 of the 1959 Act?

Mr. Gilmore

The cases which were the subject of court proceedings related to specific licences and those which have been struck down by the court will not be licensed under this legislation. I do not have a figure for the number of licences issued under section 15 of the Principal Act but the number is substantial. I will endeavour to find a figure for Deputy Molloy before Report Stage. We propose that those licences will become licences under this legislation.

Mr. Molloy

The courts have determined that the Minister acted improperly in granting a fish farm licence under section 15. That ruling was not given on the basis of the circumstances of the case before the court but on the premise that he did not have authority under that legislation to grant a licence for a fish farm in the sea. The courts said that general principle must apply in any interpretation of section 15 of the 1959 Act. The Minister has confirmed that a substantial number of fish farms were licensed by previous Ministers under this provision and the courts have ruled that they did not have the power to do so. One can only come to the conclusion that the fish farms are operating outside the law. However, the Minister proposes to legalise all those operations in one fell swoop. Has he considered that the application of this section might be unconstitutional in view of the ruling of the Supreme Court which is the arbiter of such matters?

Mr. Gilmore

It is not for me nor, with respect, for Deputy Molloy to interpret decisions of the Supreme Court. Specific cases were brought to the High Court, the one mentioned by the Deputy was brought to the Supreme Court, and decisions were made in those cases. This Bill does not propose to give licences in those instances. Licences are held for shellfish and fin fish operations under legislation which pre-dated this Bill and they will now be brought under it.

I am not sure what Deputy Molloy is suggesting. His amendment proposes that all fish farms which hold licences issued previously will have to apply de novo for a licence. It seems unreasonable that people who hold licences should have to apply again under the new legislation. It is much more reasonable and is the normal practice where a Bill supersedes previous legislation that licences held under the old Act will become licences under the new legislation. That clearly does not include licences decided on by the courts.

Éamon Ó Cuív

I am not a barrister. To clarify the matter, if the implication of the Supreme Court decision is that licences which were not the subject of the cases were not valid, is it the case that a fish culture licence could not be granted under section 15 of the Principal Act because by definition that possibility would not exist? Only those licences which were validly granted would be considered granted, therefore anything not validated would not be validated by this Bill. If that is the position, that is fine.

Mr. Gilmore

I can only deal with the facts, not hypotheses.

Chairman

We are into hypothetical cases again. This committee cannot legislate for things which may or may not happen. I have said this consistently during the discussion on the Bill, Deputy, but you have consistently returned with the same line. It has become so repetitive that I wonder what is your game plan.

Éamon Ó Cuív

We are looking for clarification on a simple point.

Chairman

You will not get clarification on hypotheses. This committee is not here to interpret the law.

Mr. Gilmore

Some court cases struck down certain licences which will not be revived. A substantial number of operations hold licences under other legislation. Deputy Molloy asked how many licences are held under section 15 of the 1959 Act. I do not have the exact figure but a substantial number are held under section 15 of the 1959 Act and section 54 of the 1980 Act. They will become licences under the new legislation and will remain so for the rest of their life. If, for example, a ten year licence was issued eight years ago, it will be two more years before it comes up for renewal.

Mr. Molloy

A number of licences are held under section 15 of the Fisheries (Consolidation) Act, 1959. The Supreme Court ruled that section 15 should not be construed as applying to a part of the sea and, for that reason, it held that the Minister of the day did not have the power under section 15 of the 1959 Act to grant licences to place fish farms in the sea. All those licences are, therefore, in contravention of the law. Only some cases were brought to the courts and they were struck down on the basis of this decision. The Minister said a substantial number of licences are held under this section and that he will allow them to continue in existence, which could be ten, 15 or 20 years. A plethora of fish farming operations, which were illegally granted permission by previous Ministers, will be allowed to continue in operation and the terms of this Bill will not apply to them until their current licences expire, although the Supreme Court has stated they were improperly issued. That is extraordinary.

Chairman

We are getting into dangerous waters because we are not here to interpret rulings of the Supreme Court or the High Court. I ask the Deputy to refrain from doing so. I will not ask the Minister to reply. I cannot understand this line of discussion.

Éamon Ó Cuív

I presume the only licences continuing in existence are those which were properly issued under section 15 and that any licence which is not valid will not be validated by this Bill.

Chairman

That question has been asked three times. I cannot understand this line of discussion.

Mr. Gilmore

I do not want to interpret court decisions in particular cases. Licences are held by licence holders.

Chairman

You have already said that three times.

Mr. Gilmore

If somebody does not hold a licence or it was struck down by the court, it does not roll over under this section. The only licences which roll over are existing licences.

Éamon Ó Cuív

Perhaps I should rephrase the question.

Chairman

This is like a court case instead of a committee meeting. I ask Deputy Molloy if he is pressing the amendment.

Éamon Ó Cuív

This is an important issue and I have questions to ask.

Chairman

You are being disorderly and disruptive and you have been like that for three committee meetings. You have put the same question three times.

Éamon Ó Cuív

I want to clarify an important point.

Mr. Molloy

Deputy Ó Cuív is entitled to ask questions.

Chairman

The Deputy is not entitled to ask the same question three times.

Éamon Ó Cuív

I am not asking the same question. I am trying to clarify a point.

Chairman

Is Deputy Molloy pressing the amendment?

Mr. Molloy

I want to ask the Minister questions.

Chairman

Enough questions have been asked.

Mr. Molloy

How can you determine that?

Chairman

It is my right as Chairman to determine that.

Éamon Ó Cuív

People do not understand this section. I accept what the Minister said.

Chairman

There is no confusion here. You have been disorderly for the past three meetings and I will not accept that.

Éamon Ó Cuív

I have been trying to ask questions.

Chairman

The amendment is not in your name.

Éamon Ó Cuív

Does that stop a Member from contributing to the debate? I am entitled to contribute to the discussion on the amendment.

Chairman

I have already given sufficient time for a debate on the amendment. I will now put the question.

Mr. Molloy

The Department is au fait with the Supreme Court decision. How can it ignore the terms of that decision and state these licences are valid when the Supreme Court ruled that the Minister of the day did not have the power to grant them?

Mr. Gilmore

The Department is not ignoring the Supreme Court decision but complying with it. The Supreme Court decision related to a specific case.

Mr. Molloy

Is it not true that Ministers for the Marine granted licences for fish farms in the sea?

Chairman

I ask the Deputy to respect the Chair. Are you pressing the amendment?

Mr. Molloy

I protest that we are not being given an opportunity to discuss this matter with the Minister.

Chairman

Your protest is noted.

Mr. Molloy

You seem to have a different agenda, perhaps you want to go home. This is important legislation.

Chairman

I am prepared to stay here until 10 o'clock tonight.

Mr. Molloy

Many people are interested in the points I am making. I have received a lot of correspondence on this issue which you will not allow me to discuss.

Chairman

If Deputy Ó Cuív would stop interrupting and repeating questions we might be able to make progress. Deputy Molloy to ask a final question.

Mr. Molloy

How can the Department ignore the terms of the Supreme Court decision that it did not have the power to grant these licences? I know the Minister is implementing the Supreme Court decision in relation to the case which came before it, but surely the judgment had implications outside that specific case? Other Ministers sought the Dáil's permission to introduce and pass legislation as quickly as possible because of a Supreme Court decision that something they thought was valid was not valid. However, in this case we have totally ignored the Supreme Court decision. That is extraordinary. I hope the Minister will be able to tell us the Department's stance on this issue. How can it justify legalising these licences and allowing people to enjoy the benefits?

Chairman

The Deputy is repeating what he has already said three times.

Mr. Gilmore

There were court cases in relation to particular operations and licences, one of which Deputy Molloy specifically mentioned. The Department and I are complying with the decisions of the court in relation to those cases, as we are required to do. Licences have been issued under previous legislation. They are not mythical licences but real licences governing existing fish farming operations.

Mr. Molloy

In defiance of the Supreme Court.

Mr. Gilmore

They are real licences. I am not aware of any challenge to any of those licences. The provision in the legislation means they will become licences under the new legislation which provides a higher standard of control, environmental standards, penalties and a completely new regime for aquaculture licences. That is a reasonable way to proceed. Deputy Molloy's amendment proposes that all licence holders would have to apply for a licence de novo. Will Deputy Molloy say if he is proposing that operations with 2,500 jobs are to be closed down while the licence applications are being considered? What does he propose if a licence is refused under the new legislation? Will people be compensated and by whom? What will happen to jobs and investment in this area? There is nothing new about this. These operations are licensed under existing legalisation. Deputy Molloy is effectively saying that those operations should be closed down, that 2,500 people should be put out of work——

Mr. Molloy

The Minister of State should read the amendment.

Mr. Gilmore

—— and that people should apply again for licences.

Éamon Ó Cuív

If a section 15 licence is struck down by the courts, would this not validate it? If the Minister of State can answer that question it will put my mind at rest.

Mr. Gilmore

If a section 15 licence or any licence is struck down by the courts, that is the end of the matter.

Mr. Molloy

An application for a licence under this Bill shall be made within a specified period. It does not say to withdraw all licences now. It is up to the Minister to specify the period within which people would have the opportunity to make an application under the legislation. Surely it should be our intention — and the intention of the Minister of State in particular because he introduced the legislation — that all fish culture operations should comply with the requirements laid down in legislation. However, the Minister of State is allowing a substantial number of operations to operate outside the terms of this legislation and to continue to operate under the terms of a previous Act which the Supreme Court said the Minister did not have the power to grant. I have been reasonable; the Minister of State should determine the time. It would recognise the fact the Department made a mistake in issuing these licences, that it was beaten in the courts and ignored the Supreme Court decision. We are legitimising this operation.

Chairman

That line of discussion is totally out of order.

Amendment put.

The Select Committee divided: Tá, 5; Níl 12.

Tá
Byrne, Hugh. Fox, Mildred. Leonard Jimmy.	Molloy, Robert. Ó Cuív, Éamon.

Níl
Bell, Michael.	Crawford, Seymour.
Boylan, Andrew.	Finucane, Michael.
Browne, John (Carlow-Kilkenny).	Fitzgerald, Brian.
Broughan. Tommy.	Gilmore, Éamon.
Byrne, Eric.	Ring, Michael.
Costello, Joe.	Sheehan, P.J.

Amendment declared lost.

Question, "That section 75 stand part of the Bill", put and declared carried.