I spoke to the Minister for Agriculture, Food and the Marine, Deputy Coveney, and he explained that he could not be here to take the Topical Issue, due to the change in the Dáil schedule.
The second High Court judgment on the penalty points system, given yesterday, sets out very serious flaws in the operation of the system and how it has been implemented. It goes to the heart of how the statutory instrument that introduced the penalty point system was brought through the House. SI 3/2014 established the penalty point system and the Sea-Fisheries Protection Authority, SFPA, is the body responsible for its implementation. It was introduced in the House and passed without any debate or discussion.
The Oireachtas Joint Committee on Agriculture, Food and the Marine held a consultation only after the statutory instrument had been published. The SFPA came before the committee on 3 March 2014 to discuss how the penalty point system would operate. At the meeting, the same problem for which the High Court struck down the statutory instrument was raised. This is very significant. Deputy Michael McNamara said:
Any measure that applies EU law must be compatible with the Charter of Fundamental Rights ... anyone whose rights and freedom are violated has a right to an effective remedy - that is, a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
In yesterday's judgment, the High Court judge reiterated this point and said:
It is necessary to inform a licence holder that a panel will be convened to assess evidence of alleged infringements and whether to assign points to the licence.
This goes to the heart of the problem with the penalty points system. If it is agreed to apply points to a licence holder, there is an appeal mechanism, but the appeal takes place in secret with no representation by the person impacted by the penalty points. The High Court highlighted this as the inherent problem with it. It is very unreasonable to expect fishermen to go to this extreme, to take a case to the High Court to vindicate their rights, particularly given the inadequate scrutiny of these measures in the House and in the relevant committee. Many of the issues were flagged in the committee, but unfortunately the legislation had already been passed.
I read the transcript of the committee meeting and it seemed the SFPA was not too enamoured of the way in which the system was being established and had concerns about it. Several times during the committee hearings, I emphasised that these would have to be tested. This is a very bad way of making legislation and rules that impact on people’s ability to make a livelihood for themselves. In its evidence to the committee, the SFPA stated, “The key issue is that our job as a regulator is not the writing of the SI but the enforcement of the SI.” It went on to state:
It is the decision of the Department which wrote the SI, taking direct advice from the Attorney General's office on that specific matter. It is reasonable to question the validity of that approach. It is what is on the Statute Book. It has not been tested yet and is quite explicit.
This has very serious implications and shows that even the body charged with administrating the penalty points system had very serious concerns about it. If we had a proper, robust consultation and scrutiny system in the Oireachtas, we might have averted some of these problems and avoided forcing fishermen to go to the extreme of going to the High Court to vindicate their rights.