Dáil Éireann díospóireacht -
Tuesday, 29 Sep 2020

Vol. 998 No. 2

European Union (Common Fisheries Policy) (Point System) Regulations 2020 (S.I. No. 318 of 2020): Motion [Private Members]

Deputy Pádraig Mac Lochlainn

I move:

That Dáil Éireann resolves that the European Union (Common Fisheries Policy) (Point System) Regulations 2020 (S.I. No. 318 of 2020) be and are hereby annulled.

On behalf of all the fishing organisations Sinn Féin has spoken to, we support a penalty points system being put in place - it is essential - but the system must be fair and just. It is important that I outline the history of how we got here this evening. Previous statutory instruments introduced by Ministers in the Department with responsibility for the marine were ruled illegal by the High Court on a number of occasions. The issue went to the Supreme Court and the challenges by the fishermen were upheld.

Subsequently, SI 89 of 2018 was put in place by the Minister for Agriculture, Food and the Marine, Deputy Creed, who signed it. In May 2018 the Dáil came to debate an annulment motion, just like this one, and for the first time in the history of the State, the Dáil voted to annul a statutory instrument. It was immensely significant, it had never happened before and has not happened since.

I will quote from some of the debate. The proposer of the motion, who deserves great credit, was the former Donegal Deputy, Pat the Cope Gallagher, who had been Fianna Fáil's spokesperson on fisheries and marine. He said:

The statutory instrument states that the determination panel and the appeals officer if such is the case would determine on the balance of probabilities. We do not accept this principle of a lesser burden of proof. It is grossly unfair to the individual to lower the burden of proof. We will be proposing a statutory instrument we have prepared under which, in both instances, the case must be proven by the State beyond a reasonable doubt in line with common law principles.

Hear, hear. He continued:

To put it in simple language, the proposed structure under this statutory instrument would be similar to An Garda Síochána detecting an infringement, being allowed to select the judges to adjudicate on the case and finally handing down the eventual judgment.

I will now quote the current Minister for Agriculture, Food and the Marine, Deputy McConalogue, during the same debate on 23 May 2018:

We need to take on board the needs of the fishing sector. We need to avoid the possibility of it being struck down in the courts again. The Department's track record in introducing a penalty-points regime has been poor. Given that on two occasions attempted statutory instruments were struck down following appeals to the Supreme Court reflects very poorly on the management of the issue heretofore.

Later, he said:

The key points that remain to be addressed relate to the burden of proof. The current approach in the statutory instrument deals with the balance of probability rather than having to prove beyond doubt, which is normally the case where a criminal sanction is being pursued. The role of the Sea-Fisheries Protection Authority, SFPA, permeates the statutory instrument at all stages, which was the basis on which the Supreme Court struck down the previous statutory instruments.

We can see the concerns expressed by the Fianna Fáil spokespersons. Deputy Dara Calleary, the former Minister for Agriculture, Food and the Marine, expressed his concerns about the "burden of proof, the rights of appeal, penalty points capacity and some sort of realistic appeals timeframe". He spoke of a sense of alienation and of how it was getting deeper. He said:

Many of these communities are dying on their feet. The way this issue has been handled is adding to the sense that marine issues are not a priority, not just for the Government but for the central government system full stop. If we deal with this collectively as an Oireachtas and deal with it in a progressive way working together, we can start addressing these issues and lay some sort of pathway to addressing that alienation.

I endorse those remarks 100%.

The motion was passed, making it an historic motion.

In fairness to Pat the Cope Gallagher, not only did he have this statutory instrument annulled in the days that followed, he produced a document - I have read through it - containing amendments to the instrument. I have it with me. He did that in full consultation with the fishing industry. His amendments would have solved the problem, but nothing was done and time drifted on.

We then come to 28 August 2020, when the Taoiseach, as acting Minister for Agriculture, Food and the Marine, signed off on SI 318 of 2020, which was almost identical to the 2018 statutory instrument. The core objections were not addressed. I found out about it on a Friday evening. At first, I thought it had to have been a misunderstanding because there was no way the Taoiseach would have done that without consulting the fishing industry. However, I found out the next day that he actually had done it. I still thought that he might have been misled and that he had not understood the full implications of what had been done.

My party put this annulment motion on the Order Paper, but we held back because we talked to the fishing industry, which was of the belief that, if it engaged with the new Minister, Deputy McConalogue, he would surely see the need to make Pat the Cope Gallagher's amendments to the statutory instrument. By the way, I emailed those amendments to the Minister, but I have still not received a substantive response.

The producer organisations then met the Minister, which believed that they could turn the situation around. They were bitterly disappointed with that meeting. Subsequently, they sent a letter to the Minister on 18 September in which they identified four issues. First, the burden of proof is based on the balance of probabilities. As we all know, a prosecution must be beyond a reasonable doubt. That is the threshold, except for fishermen. Second, the points remain on a licence even in the event of the person or persons being exonerated in court. Third, the points attached to a licence if the tonnage is sold on multiplies on the next person's licence. Fourth, people can only appeal to the High Court on a point of law. No substantive response has been received to that letter to the Minister.

We are debating this matter because, incredibly, the Taoiseach has signed a statutory instrument that is in clear defiance of everything Fianna Fáil as a party did in 2018. He actually voted for the historic motion on 29 May 2019. I appeal to the Government to do the right thing. In particular, I appeal to the Deputies of the Fianna Fáil Party. I could have read quote after quote after quote. I would invite anyone to read the Official Report. I would not challenge a word of what a whole ream of Fianna Fáil Deputies said in that debate. Everything they said was spot on. It was powerful stuff, yet here they are as a party. How will they stand over this? It is profoundly unjust.

While dealing with Brexit, I spoke to a senior fisheries spokesperson in recent days who stated that this was the greatest threat to our industry since the foundation of the State. We have seen the submissions the industry has made to the previous Oireachtas committee. The industry is deeply concerned. I appeal to the Government to do the right thing and re-engage. I hope that its Members will not vote this motion down tomorrow, but even if they do, there is still a chance to amend the statutory instrument. The Irish South and West Fish Producers Organisation has already made it clear publicly that it will challenge this instrument in the courts again, but it should not have to. We have already spent a fortune in the Department of Agriculture, Food and the Marine going to the High Court and Supreme Court defending the indefensible. Will it do so again? Will this matter go to the courts again? We can avoid that. I am not being party political. Let us use the template of Pat the Cope Gallagher's amendments. What is the Attorney General's view on them? Has the Minister sought his view on whether they are permissible? I have no doubt that they are. Has there been proper engagement on this matter?

How the situation has been handled by the Taoiseach is a scandal. I am shocked that a solution has not been found. We did not want this debate. We would never have tabled this motion for Private Members' business had the fishing industry not told us to go ahead because it was not getting anywhere itself.

Deputy Johnny Mythen

Fishermen form one of the most important sectors of our economy. They work in the most dangerous and, sometimes, the harshest of environments. The one thing they should not face is a points system that is not fit for purpose.

This motion is about fair regulations, the type of regulation promised in the programme for Government, which committed to implementing a fair EU points system. Nothing about SI 318 is fair, however. In no other EU member state does a system exist like the penalty points system in use in this State where the burden of proof is based on the balance of probabilities, points remain on a fishing licence even if someone has won the case in court, and the appeals system is not a true appeals system because the number of penalty points cannot be changed no matter the mitigating circumstances.

There have been many attempts to deal with this issue and one would assume that we as Oireachtas Members would be hearing in detail about how the High Court and Supreme Court judgments had been addressed and implemented in any new regulation. There are differences between the statutory instrument signed and then annulled in 2018 and this statutory instrument, but they are slight and, as such, the instrument leaves fishermen's livelihoods in peril. I have strong reservations about the constitutionality of this regulation. Were it not for the scrutiny of fishermen and Sinn Féin colleagues, we would not have had the opportunity to try to stop this sinking ship.

If the statutory instrument is not annulled, there will be more court challenges as sure as night follows day. If left unamended, it will damage coastal communities across the island, including those in my county of Wexford, from Rosslare to Kilmore to Duncannon. I appeal to the Government to do the right thing and treat the fishermen in a fair and equitable manner. I ask that all Deputies support this motion on annulling SI 318 in the name of fair procedures and justice for all.

Deputy Rose Conway-Walsh

I thank my colleague, Deputy Mac Lochlainn, for tabling this important motion.

The commercial fishing industry provides an essential source of income for many people in communities along the coast of Mayo and elsewhere across the island. We have always asked that rules that are introduced be proportional and reflect the realities on the ground, but EU regulations are too often designed with member states with far larger and more industrialised fishing industries in mind. The blame in this case lies closer to home, though, with successive Governments mishandling the introduction of a system that works and is fair. This is despite the best efforts of fishermen throughout the country to engage constructively with the process.

The statutory instrument that Sinn Féin is trying to annul was designed by Fine Gael and opposed by Fianna Fáil in opposition and is now supported by Fianna Fáil in government. As such, it is no surprise that the electorate is turning away from Fianna Fáil, given that it changes its position so easily that it is impossible to know what one is voting for.

There are a number of serious issues with this statutory instrument, the most glaring being the fact that fishermen will not have the right to appeal to the High Court after a situation is dealt with by the determination panel and the appeals officer. This issue has been going on for so long that it has given enough time for a detailed review to be conducted by the EU in terms of modernising and simplifying the existing system. The EU has accepted that there are insufficient data to enforce the system accurately. The European Court of Auditors and a resolution by the European Parliament have all shown that the fisheries control system "has deficiencies and is overall not fit for purpose."

Despite the EU's recognition of the systemic weaknesses in the approach, the Government believes it is appropriate to design the system in such as way as to remove any legal recourse for fishermen, even when their livelihoods are taken away.

Deputy Louise O'Reilly

I thank my colleague, an Teachta Mac Lochlainn, for bringing forward this motion. I join him in highlighting that it should not be necessary. Putting forward a motion on this issue was the last thing we wanted to have to do. The fishing representative organisations understood that a lot of the heavy lifting had been done in this regard and that the argument was won. However, we have seen a complete about-turn on it from Fianna Fáil in government. Nobody will be surprised by that. Indeed, the fishing communities that I represent are neither surprised nor disappointed by it because they know that Fianna Fáil says one thing but will do another.

This motion is intended to be constructive. It was devised following consultation with the representative bodies - presumably the same representative bodies that Fianna Fail consulted before drafting the recent amendments. As somebody who did not grow up on the coast, I have been struck by the way in which people in the community work. The fishing community is a very solid, close-knit one but the people who are part of it have long come to expect disappointment from successive governments. They expect to be neglected and to be the last to have their concerns addressed. They know they are very low down on the list of priorities. What is happening here this evening is proof of that.

Fishermen in Skerries and Balbriggan do not have the largest fleets and they do not have a massive harbour but they are members of the fishing community and, as such, we have consulted them on this issue. They are not opposed to a penalty points system. They only seek a system that is fair and an appeals process that is fit for purpose. The fact that this is too much to ask of the Government says a lot to people in our fishing communities, their families and the people like me who represent them. I call on the Minister in my constituency, Deputy Darragh O'Brien, to do what he said he would do and to be as good as the word he gave as recently as two years ago. I hope he and his colleagues in government will support this motion and stand up for fishing communities.

Deputy Pat Buckley

I thank Deputy Mac Lochlainn for bringing this extremely important issue to the floor of the House for debate. It is rather strange that we are discussing it again in 2020. As Deputy Mac Lochlainn outlined, the statutory instrument referred to in the motion was annulled by the Fianna Fáil Party in May 2018, in accordance with the proposal put forward by former Deputy Pat The Cope Gallagher. Many speakers have made the point that fishers are not opposed to the introduction of penalty points but they want whatever system is introduced to be fair.

The point is often made in discussions in this House that a bad law is an unjust law. In this instance, families' livelihoods could be taken away from them on the basis of some absolutely ridiculous provisions. Specifically, the statutory instrument provides for the imposition of sanctions that would remove the livelihood of fishers for alleged infringements of which they may be found guilty on the balance of probability. Any such sanctions would require proof beyond a reasonable doubt in any other circumstance. One could not make it up. The Government is proposing that people should lose their livelihood on the basis of a probability or belief that they have done something wrong.

I was surprised to note that my fellow Cork East representative and then Minister of State, Deputy Stanton, voted against the proposal to annul the statutory instrument in May 2018. He and other Deputies in the area represent fishermen from Youghal, Ballycotton, Gyleen, Roches Point and all the way to Cobh. I appeal to the Government to do the right thing and address the need for fairness for fishermen and their families. We need to support this motion, annul the statutory instrument and get things done right.

Minister of State at the Department of Agriculture, Food and the Marine (Deputy Martin Heydon)

I am sharing time with Deputy Christopher O'Sullivan. I thank Deputy Mac Lochlainn and his party colleagues for affording me the opportunity to discuss this important motion. The EU's fisheries control regulation of 2009 established a community control system for ensuring compliance with the rules of the Common Fisheries Policy, CFP. One of the important measures introduced by the control regulation is a points system for serious infringement of the rules of the CFP, which is applicable to the licenceholders of fishing vessels and, separately, to the masters of those vessels. This part of the control framework was introduced to address concerns about the lack of a level playing field across the EU in fisheries control and the treatment of vessels from different member states. The rules are designed to ensure that fishing in EU waters is sustainable and that the long-term interests of fishers in coastal communities are protected by protecting this precious resource. The points system is intended to complement the normal sanctioning system in member states for serious infringements and promote a level playing field on control within the EU. These systems were due to be implemented in 2012.

Ireland is responsible for the control of all fishing activity by Irish and foreign fishing vessels in our 200-mile zone. The points to be assigned under the new statutory instrument will be applied to both Irish and foreign fishing vessel licenceholders who are held responsible for serious infringements committed within the zone. The idea of a points system is that it should be graduated and proportionate, with only repeated serious infringements resulting in the most serious penalties. Such penalties are, of course, completely avoidable through compliance with rules that are well established.

The new regulations have been a requirement of EU law since 2012. All other coastal member states have implemented the points system and Ireland is in breach of its EU legal obligations as a result of its failure to implement them up to now. As a result, the European Commission, under infringement proceedings, issued a reasoned opinion to Ireland in July 2020 and gave us three months to respond. The implementation of the regulations was already overdue but its urgency has been amplified by the issuing of the reasoned opinion. In addition, the Commission has formally suspended payment to Ireland of EU co-funding payments under the European Maritime and Fisheries Fund, EMFF, operational programme. This suspension will continue indefinitely until Ireland puts in place the necessary legislation and administrative systems to comply with the EU points system. Unless the regulatory lacuna is addressed immediately, we face an increasing financial cost to the taxpayers of this country. EU funds for control and enforcement available to Ireland under the EMFF amount to €37.2 million over the course of the programme. As of September 2020, €13.5 million in payments due had been withheld. A further recoupment claim due to be submitted later in 2020 will result in the amounts withheld rising to €24.5 million. As I indicated, a total of €37.2 million in funding is at risk for the full period of the programme.

SI 318 of 2020 presents an opportunity for us to fulfil our obligations under EU law while providing a fair and balanced points system that will ensure the stability of our fishing industry. The statutory instrument takes on board in full the findings of the related 2017 Supreme Court judgment that the procedures followed are fair and in accordance with best practices. It separates the detection and determination functions by putting in place an independent determination panel as well as an independent appeals officer, all of whom are legal professionals nominated by the Attorney General. Both the determination panel and the appeals officer must grant the licenceholder an oral hearing if he or she so wishes.

Under the new statutory instrument, the accumulation of points for persistent serious infringements of the rules of the CFP will lead to the suspension of a sea-fishing boat licence for a period from two months to one year. In extreme cases, persistent serious infringements could lead to the permanent withdrawal of the licence. It is important to note that the EU control regulation provides that if the licenceholder does not commit another serious infringement within three years from the date of the last such infringement, all points on the licence shall be deleted. The statutory instrument includes several but not all of the amendments sought as a result of consultations with the industry. The new arrangements are the minimum required to meet the tests of proportionality, effectiveness and dissuasiveness required under EU law. The adoption of the new instrument is also in line with the related commitment in the programme for Government.

Everybody in this House wants to see a strong and vibrant fishing industry that supports employment in fishing fleet, fish processing and ancillary activities in our coastal communities. SI 318 of 2020 is necessary to protect law-abiding operators, who make up the vast majority of those in the industry, and to preserve this precious and valuable resource for all Irish fishermen and for future generations. I am confident that the new enhanced points system provided for under the instrument will play a vital role in delivering on the CFP objective of ensuring proportionate, effective and dissuasive penalties for serious infringements and contributing to a level playing field in fisheries control across member states. The points system is necessary as an effective measure against the small number of operators, either foreign or Irish, who break the rules. It is necessary to protect law-abiding operators and preserve fish stocks. I urge the House to protect the future of our fishing industry by supporting the Government in this matter.

Deputy Christopher O'Sullivan

I thank the Minister of State for sharing time with me. I represent west Cork, home to Castletownbere Port, which is Ireland's premier whitefish port. At the outset, it is important for me to say that I am not happy with elements of this statutory instrument. It would, however, be misleading for me to say that I felt there was a realistic possibility of a replacement statutory instrument at this stage.

I will take this opportunity in the Chamber to outline some of the problems and issues I have with this statutory instrument. I hope the Minister of State, Deputy Heydon, and Minister for Agriculture, Food and the Marine, Deputy McConalogue, will listen to my concerns, the concerns of the fishing industry and the concerns of the Opposition, which have been pretty well made. They represent concerns made to them by the fishing industry. This is an opportunity because there is a host of massive challenges facing Ireland's fishing industry, an industry that sustains so many coastal communities. These challenges include Brexit, which is coming down the tracks at a rate of knots. This will impact Ireland with European vessels coming into Irish waters. There are so many challenges and I urge the Minister and the Minister of State to listen to my concerns and those of the fishing industry.

I will send more detailed submissions to the Minister on the issues I have with this statutory instrument but I take this opportunity to highlight three or four elements. Number one is the need for sufficient separation between the policing authority and the determination panel. The fact that the determination panel is selected by the Sea-Fisheries Protection Authority, SFPA, is insufficient separation. This needs to be addressed. The determination panel could be selected by the Attorney General or by the Minister.

I now turn to my second issue. I have great difficulty, as has the industry, with the fact that where a court of law deems an infringement has not taken place, or where the court of law acquits the licenceholder, the penalty points remain with the licence or the vessel. This is very hard for me and for the industry to understand and could be reversed.

My third concern is that where fishing capacity is transferred, the penalty points would transfer with each section of capacity transferred. Again, this is not consistent with what happens in other jurisdictions in Europe. This needs to be re-examined. It devalues the vessel, the licence and the capacity. It does not happen in other jurisdictions.

Finally, my point number four, which has been raised by other Deputies today, is the burden of proof. The burden of proof is heavily in favour of the policing authority and I do not feel this is the way the statutory instrument should be drafted. The points are to be assigned to a licence on the balance of probability as opposed to a higher burden of proof, such as beyond reasonable doubt. This needs to be re-examined.

Those are the four main issues, but there are other issues. I appreciate that at my invitation the Minister of State met and consulted members of the producing organisations but there needs to be more consultation. We need to keep that communication avenue open with the producing organisations and other representatives of the fishing industry. As I said earlier, I will not vote against the Government on this motion, and it would be misleading of me to send a message to the fishing industry that somehow there will be a replacement statutory instrument that better represents their concerns. I ask the Minister and the Minister of State to take my concerns and those of the Opposition on board, to open up the dialogue and communication, and try to come up with a better proposal. The challenges facing our fishing industry are humongous. We need strength and we need to be able to liaise with it and listen to its concerns.

Deputy Claire Kerrane

I commend my colleague, Deputy Pádraig Mac Lochlainn, on bringing forward this motion on behalf of the many fishing families across the State, who I am sure will be watching this evening and listening to all contributions.

I visited Arranmore Island recently as part of my role as party spokesperson for the islands. It was the first of a number of island trips I hope to make in the coming months to learn more about island life and, as a person from Roscommon which is very much inland, to understand adequately the life islanders live and the places they call home so I can represent them adequately. I had several meetings on that visit and I engaged with a number of sectors, all while socially distanced. One group in particular remains with me. It was three fishermen, two gentlemen who have fished for most of their lives, and one around my age in his 20s who faces an uncertain future but who still wants a future as a fisherman. I would not imagine that this is much to ask for. I was struck by two things about the fishermen. One is how sick and tired they are of the way they are treated, and the very obvious sense that they just cannot continue with things the way they are. There was also the immediate sense that for them fishing is not just a job but that it is has been passed on to them and is something they love, although very clearly becoming more and more difficult for them to continue. Then, here comes a most bizarre penalty points system, where if one does the crime one gets the points, but if found to be innocent the points remain the same. For many fishermen this will be the last straw. The fishermen I met told me of 54 fishing boats in the 1980s, but now just six full-time fishermen remain. The Government refuses to support them and their families while super-trawlers can travel the west coast from now until April to fish every species going, when our own fishermen are being driven out of their livelihoods and fined with penalty points.

Deputy Violet-Anne Wynne

I am pleased to be able to speak on this motion and to outline my sheer disgust that this statutory instrument was signed into law by the Taoiseach in the absence of his second Minister for Agriculture, Food and the Marine. While I understand that the Minister was not sitting in that seat when this statutory instrument was signed at the end of August I feel that he and his party have not thought this through. The issues faced here need to be addressed urgently.

Back in May 2018 the Minister, Deputy McConalogue, sat on this side of the House and supported a similar motion put forward by his Fianna Fáil colleague, former Deputy Pat the Cope Gallagher, calling for the annulment of the same system of penalty points. The Minister's own words are on the record of the House expressing the exact same concerns that we in Sinn Féin look to address today. That system of penalty points had been contested in the highest court in this land and was won. It was from this win that Fianna Fáil introduced the Private Members' motion to annul the system. That motion, along with an amendment put forward by Deputy Martin Kenny, was accepted by Fianna Fáil and voted on by the vast majority of this House at that time. Now, here we are two years later debating the same thing.

Most of the fishing community along with the main representative organisations in the industry agree with the need to introduce a penalty points system. The issue, however, is the burden of proof that is required. Again, the Minister, Deputy McConalogue, addressed this matter in May 2018. It is worrying that there can be a criminal prosecution on the balance of probabilities. If a decision is challenged in the courts and is won, the penalty points are kept on the licence. This is just complete madness. Imagine the public outrage this would cause if this was a driver's licence. The idea of a person being innocent until proven guilty is gone in this instance, and will cause real worry and concern in the House.

I put it to the Minister that this would be quite a simple motion to get behind. If the Minister, Deputy McConalogue, and his party colleagues were able to support a similar motion put forward by Fianna Fáil in 2018, then there is no reason the Government cannot support this one. I advise the Minister to err on the side of caution.

Deputy Pa Daly

I thank Deputy Mac Lochlainn for introducing this motion. I wonder what kind of scrutiny is undertaken by the Government coalition parties when they introduce regulations such as this. In July we had a situation where, under Covid-19 legislation, a change in the law was brought about to facilitate vulture funds, which was spoken against by all Fianna Fáil Deputies in the Chamber at the time, and yet they voted the other way. Now we have a situation where the regulations opposed quite strongly by all Fianna Fáil Deputies are now being proposed by them. I wonder is there any communication between the various Government parties before items like this are brought before the House.

Recently I met some inshore fishermen and we discussed the overall grim economic situation in which they find themselves. Despite Brexit and the Covid-19 pandemic, adequate supports have not been put in place for these fishermen.

The answer from the Government is to introduce regulations such as these on evidence that would not be sufficient for a warrant to search a person's house.

This is part of an overall trend by the Executive seeking out powers that are inappropriate, ramming them through or placing them within statutory instruments so that legislators cannot effectively scrutinise them. We have seen this in terms of legislation that has gone through these Houses. Rushed law makes for bad law. The concerns of the fishing community are being ignored here. This scheme has been pushed through in a lazy way that will inevitably cause problems. I remember dealing with the courts in Kerry and time after time cases on the Circuit Court lists were put back because of rushed legislation that had been challenged in the courts, causing delays. That is probably going to happen again with this.

Deputy Imelda Munster

I commend my colleague, Deputy Mac Lochlainn, on tabling this motion. Fianna Fáil's track record in the Department of Agriculture, Food and the Marine since coming to power has been an absolute shambles. When it comes to Fianna Fáil, U-turns, talking out of both sides of the mouth and breaking promises should not really surprise us but its U-turn on the penalty points scheme really takes the biscuit. When we were between the second and third Minister for Agriculture, Food and the Marine of this Government the Taoiseach sneaked in this statutory instrument. This scheme is seriously flawed. Indeed, the serious legal flaws in this scheme meant that it was scrapped by the previous Dáil, including Fianna Fáil. This same scheme was struck down in 2016 by the Supreme Court, as others have already said.

What the fishermen in my constituency from Clogherhead right the way up to Carlingford want is fairness. That is all they are asking for - fairness. They are not opposed to a penalty point scheme but it must be fair. The main issue raised by fishermen locally is that there is no right to appeal under this statutory instrument, except to the High Court on a point of law. The scheme proposes to enforce sanctions on the balance of probabilities which is too low a standard of proof given that the result of sanctions could be the loss of livelihoods for our fishermen. Penalty points will also remain on a licence even if a fisherman is exonerated in court. Those points will remain attached to the licence quota which will have knock-on effects where a quota or part of a quota is sold on. If sanctions of this type were imposed on motorists or any other group in society, we would not stand for it. Why are unfair and unjust rules for fishermen considered to be okay by this Government? It is difficult to understand how the three Government parties can stand over such a flawed system. Fishermen are sick and tired of being treated like second-class citizens by successive governments and this scheme is further evidence that this attitude lives on in the new coalition. SI 318 must be annulled.

Deputy Holly Cairns

I congratulate the Minister on his appointment. Third time lucky, I hope. I welcome this motion which allows us to reverse a poor decision which was made without consultation with the fishing sector. Ireland is required to enact some form of a points system and I do not think anyone disputes that. However, the Government’s approach has resulted in a process that lacks common sense and puts a further burden on small fishing communities and families.

In late August the Taoiseach, then acting Minister for Agriculture, Food and the Marine, signed this new system into law. The Irish South and West Fish Producers Organisation and other representative organisations were dismayed at this development because there was no consultation with industry and many found out about it via an official email a few days later. The Government’s scheme flies in the face of due process. There are very limited rights to appeal, decisions can be made on the balance of probabilities and even if an appeal is successful, penalty points still remain on a licence. This is poor law-making that erodes confidence in systems that are supposed to be about ensuring better practices.

The people of west Cork were further confused by the fact that a Fianna Fáil Taoiseach, who had previously condemned this statutory instrument, was the one who signed it into law. While Fianna Fáil Members will point to differences between new and previous regulations, these are largely technical in nature. They concern the extension of time periods and alterations to oral hearings but the core issues remain. After the announcement, commitments were made by the Taoiseach and the new Minister for Agriculture, Food and the Marine to meet with representatives for the sector but this looks and feels like tokenism. There is little point in meeting to discuss concerns after signing this into law. Where was the proactive engagement?

Our coastal and island communities deserve better. Fishermen and women should be central to creating a viable and fair process. This points system is another example of the disconnect between the Department and the sector. The Government’s tie-up scheme was deeply unpopular with the industry too as it did not address its needs. It was clear when the scheme was announced that it was not fit for purpose. Representatives of fishing communities contacted me highlighting that it was not sufficient to cover their costs. Fishing is an expensive livelihood in terms of overheads like maintenance costs, insurance and safety fees. Their concerns were reflected in reports that very few took up the scheme. The only way successful and progressive policies can be developed is in genuine partnership with the communities and businesses affected. I am particularly concerned for smaller fishing groups which, despite practising the most sustainable fishing, are often overlooked. At a time when we are all making changes to the way we do business, the Department should be open to more proactive measures to help an industry that is vital to so many coastal and island communities.

Another issue of concern is the lack of accountability in the Sea-Fisheries Protection Authority, the organisation which will administers the points system. We are a waiting a review of that body and until that is released, it seems ill-judged to give it additional powers. Again, we all acknowledge the need for a points system. Not only is it necessary under EU regulations, but it is an important tool to prevent illegal, unreported and unregulated fishing. These practices put the livelihoods of honest fishermen and women at risk and need to be tackled but there are fairer and better ways than this. We need a system that makes sense, is fair and transparent, one that island communities can buy into and can have faith in. This motion gives us a chance to hit the reset button.

This discussion also allows us to focus on the fishing sector, which is too often relegated behind other industries in the Department of Agriculture, Food and the Marine. We need to support sustainable, small-scale fishing and to do that, we must immediately address the lack of basic infrastructure. Too many small piers dotted around our coastline and islands are falling into disrepair and lack basic amenities like slipways. They urgently need investment to preserve the livelihoods of local fishing families and the practice of truly sustainable fishing. I refer to the kind of fishing that has existed in rural and coastal Ireland for generations which is more environmentally friendly and which will keep families living on islands and in other coastal and rural areas. Funding for piers comes in limited form from the Departments of Agriculture, Food and the Marine and Housing, Planning and Local Government through to local authorities. Having been a member of the coastal management committee on Cork County Council, I have first-hand knowledge of under-investment in piers. At the very first meeting I had to point out that everyone fighting for the same minuscule amount of funding was counterproductive and that we should instead focus on getting more much-needed funding for piers. I have called for small piers to be made a priority for funding streams for marine infrastructure to support sustainable fishing communities. The fishing sector has been severely impacted by the pandemic. Since March fishing communities have been calling for greater support due to the significant drop in markets. I have sought a fisheries task force to help the sector and communities through measures such as tailored social protection mechanisms and consumer campaigns. I am making that call again today.

This motion highlights serious issues with the penalty points system and allows us to correct a mistake. I urge all Deputies, especially those who represent coastal and island communities, to support it.

An Leas-Cheann Comhairle

With the permission of the House, I will allow Deputy Sherlock to come in now. He missed his slot earlier. Is that agreed? Agreed.

Deputy Sean Sherlock

I apologise for being late. The record of the House already shows that Fianna Fáil had quite a strident position on this when in opposition. Without reprising all the issues here tonight, which is unnecessary, I hope that there will be consistency in the approach it takes now. I hope Fianna Fáil will be consistent with its approach in opposition. I just wanted to put that on the record.

Deputy Bríd Smith

This feels a bit like Groundhog Day for this statutory instrument and, indeed, for the EU Common Fisheries Policy. I am unsure what has changed since the High Court and the Supreme Court struck down this statutory instrument, or what has changed since Fianna Fáil and its coastal representatives voted this down in 2018 in a declaration of support for our fishing communities. Let me say, from this side, that we support this motion and believe the statutory instrument is a blunt instrument which is discriminatory and unjustifiable in its application. If it was wrong in 2016, 2017 and 2018, it is wrong now.

While fishing communities throughout the country are right to be outraged and to feel betrayed by Fianna Fáil and the Taoiseach over this, that does not mean we are opposed to the regulation of the fishing industry or that we oppose quotas for saving the world's oceans from environmental collapse. I am in favour of a quota system and I am well aware that fishing and the way the quota systems work go well beyond what science and nature tell us is unsustainable, and are leading to the ruination and devastation of ocean life. I am also aware that we constantly set quotas above what science tells us is sustainable.

The truth is the Common Fisheries Policy, to which this statutory instrument is attached, is not protecting fish stocks or the greater biodiversity of our oceans. There is and there has been a crisis in our fishing communities and a crisis in our oceans, and both are a by-product of the greater crisis on this planet. When people say the EU fisheries policy has decimated our fishing communities, they are often derided by economists, who tell us to look at the statistics that tell us we have more people employed, we have a greater tonnage of fish catch and we have exported more wealth generated by the fishing industry than we did before we entered the European Union. The reality is that, behind those statistics, the type of employment has changed for the worse, the ability of fishing communities to survive and thrive has changed for the worse and the sustainability of fishing fleets and methods have changed for the worse.

The crisis in fishing is a symptom of a global crisis in our environment, a crisis driven by the same reason and the same basis: the production for profit, regardless of the impact on nature or on human beings. The interests of large agri-food business corporations drive the unsustainable extraction of the earth's wealth and resources, while the interests of the giant oil and gas corporations drive the heating of the globe and the acidification of our oceans.

The European Union policy fits into this matrix despite its claims to the contrary. This debate is not whether people support a system of regulation to protect fish stocks or do not. It is about whether they stand with the small fishing communities or whether they want to pretend that a system of penalty points and unaccountable authority will save the worlds oceans. It will not. It will, in fact, accelerate the trend of driving smaller fishing communities out of business and stacking the cards in favour of the mega-trawlers and the giant agri-food industry. We support the motion.

Deputy Verona Murphy

Council Regulation (EC) No. 1224/2009 requires that actions be taken to ensure compliance with the rules of the Common Fisheries Policy. Clearly, enforcement action is necessitated by our membership of the EU and SI 318 sets out that enforcement action for Ireland. The enforcement is the imposition of penalty points for serious infringements of the Common Fisheries Policy. There are three issues I would like to raise. First, should the implementation of the penalty points system be done by way of primary legislation? It is setting up new competent authorities such as the Sea-Fisheries Protection Authority and the determination panel to deal with the system, and it is delegating serious powers to these bodies.

Second, SI 318 provides that the Sea-Fisheries Protection Authority will set up a determination panel to investigate infringements and allot penalty points when it determines that a serious infringement has occurred. This determination panel will determine whether a serious infringement has occurred or not on the balance of probabilities. This is a civil standard of the burden of proof whereas, given the penalty being imposed is in the nature of that imposed for a criminal offence, the burden for the determination panel should at least be somewhere between a balance of probabilities test and the criminal standard of "beyond reasonable doubt".

The third issue is that the determination panel can, in effect, impose what would be considered a major sanction. Other legislation allowing for such sanctions in the case of removal of a licence from those such as auctioneers is primary legislation, and a major sanction such as the removal of a licence must be confirmed by the High Court. If a fishing boat is about to acquire the maximum number of points such that it cannot fish, and taking into account that the sanction follows the ship, this should also require the confirmation of the High Court. There should be nothing less than primary legislation to ensure the rights of fishermen.

I remind the House that fishing is an indigenous coastal and rural activity that employs in excess of 12,000 people in areas otherwise starved of employment, other than in tourism. Rural harbours such as at Killybegs, Howth, Kilmore, the Hook and Duncannon are all in areas were local fishermen contribute greatly to the tourist attractions, and they are areas which have the finest seafood restaurants this country has to offer. It is not by accident that Wexford and many coastal counties have their fair share of award-winning seafood restaurants; it is down to the hard labour of both the fishing and hospitality sectors.

There is good reason that I express these concerns, given this comes from personal experience of a penalty points system being introduced in another sector. In that case also, the imposition of penalty points served as enforcement for serious infringements, something that was welcomed within the sector as it was felt it would serve to implement a standard across the sector for all to abide by. The penalty points regime in that case would, if applied, have seen 12 points close a business for a period of 30 days. That points system had credibility until three points were applied for the non-wearing of a name tag by the receptionist in a business. The case went all the way to the High Court, where it was settled, but that saw the withdrawal of the penalty points provision in that sector.

We must ensure that, as the fishing sector is a rather small cohort, it is never personal between enforcers and fishermen, which is another good reason for requiring that the removal of a licence be affirmed by the High Court. In reality, all that has been requested is fair procedure and due process in the appropriate manner. In this case, that is above "reasonable doubt" and closer to "beyond a reasonable doubt". I ask that the House would consider it in that light. The people who engage in fishing activity do so in all weathers and in often horrendous conditions to put food on our tables. They need nourishment, not punishment. We must support and not discourage them, and unfairness is never a source of encouragement.

Deputy Noel Grealish

This penalty points issue is appearing before us at regular intervals and it fails to be fit for purpose each time when challenged. It is high time the Minister and his Department came up with a proper plan to deal with this. Council Regulation (EC) No. 1224/2009 of 20 November 2009 has been in place for more than ten years and the Department should have dealt with it properly a long time ago. None of the fishing organisations, big or small, is happy with the way this is written, so it looks like it will be challenged and will most likely fail again. It is a waste of everybody's time.

In my own constituency, there is a fisheries harbour and four offshore islands which are involved in fishing. When the joint Oireachtas committee published its report on sustainable, rural, coastal and island communities, which was launched on Inis Oírr in January 2014, the islanders were at first encouraged by the recommendations about fishing on the islands. They set up a representative group of island fishermen from Donegal, Mayo, Galway and Cork, the Irish Islands Marine Resource Organisation, IIMRO.

I am sorry. I will have to finish. I am out of breath, having run to the Chamber. I will hand over to the next speaker.

An Leas-Cheann Comhairle

We will come back to the Deputy. Deputy Michael Collins is sharing time with Deputies O'Donoghue and Danny Healy-Rae.

Deputy Michael Collins

I thank Sinn Féin for bringing forward this excellent motion. There is a centuries-old legal dictum applying in our Irish common law system, overlaid by the requirements for the administration of justice under Bunreacht na hÉireann 1937, that no person can be a judge in his or her own case.

Accordingly, it is not the duly appointed judges of Ireland who prosecute people for alleged infringements of the law but the statutory, separate and independent Director of Public Prosecutions, who presents all relevant and admissible evidence before our courts. Our judges, sometimes sitting with juries, listen to the admissible evidence and then decide whether an accused person committed the alleged offence. The test governing the guilt or innocence of an accused person is that the prosecutor must prove guilt beyond reasonable doubt, following which, in the event of a conviction, the accused person is sentenced in accordance with the law, generally by way of a fine or the imposition of a prison sentence.

The EU penalty points legislation dating from 2008 was introduced into Irish law by means of a statutory instrument by the Fianna Fáil leader, an Taoiseach, Deputy Micheál Martin, supported by Fine Gael on 26 August 2020. This instrument seeks to implement in Irish law the provisions of the 2008 EU Council regulation, which is legislation that was initially put forward and designed to deal with the problems of illegal, unreported and unregulated fishing. Once the competent authority has decided an infringement is serious, the SFPA must proceed to impose a penalty on the unfortunate owner of the offending fishing boat. In Ireland, the possible penalties to be imposed by the SFPA in the event of repeat offences being committed include the confiscation of a sea fishing boat licence.

Although we in Ireland might think that imposing a penalty as enormously damaging and punishing as the confiscation of a sea fishing boat licence should only be considered on the basis of proof and when a case is proven beyond a reasonable doubt, our Fianna Fáil and Fine Gael Government has sadly chosen to grant the power to destroy a fishing boat owner's livelihood and the livelihoods of crew and support staff through the confiscation of the fishing licence on the basis of an offence having been proved to have been committed on the balance of probability. I can think of no other area of our lives in which such an extraordinarily severe penalty can be imposed on the basis of a probability and in circumstances in which the detective, the prosecution barrister, the expert witness, the judge and jury, and the person imposing the sentence are one and the same. This is shocking beyond belief in our democracy.

In May 2018, the Dáil voted down a Fianna Fáil motion to have the statutory instrument annulled. This motion was tabled by the then Fianna Fáil Deputy, Pat the Cope Gallagher. I therefore ask every Fianna Fáil Deputy why, within two months of entering government, the Fianna Fáil Taoiseach, who had been acting as Minister for Agriculture, Food and the Marine for only seven days, did a dramatic U-turn and signed a statutory instrument which the party voted against entering law when in opposition? The chief executive of the Killybegs Fishermen's Organisation, Seán O’Donoghue, criticised the move the Taoiseach made during his short term as acting Minister holding the agriculture, food and the marine brief. The system signed into law by the Taoiseach on 28 August by statutory instrument does not allow for the right of appeal except through a court of law and penalties can remain on a licence should a case be thrown out.

An Ceann Comhairle

I thank the Deputy and call on Deputy O'Donoghue.

Deputy Richard O'Donoghue

Deputy Michael Collins has five minutes.

Deputy Michael Collins

I have a few more minutes.

An Ceann Comhairle

I am sorry. Mea culpa.

Deputy Michael Collins

Patrick Murphy, chief executive of the Irish South and West Fish Producers Organisation, which represents 490 fishermen and their families, spelled this out starkly when he said that the recent decision by the then acting marine Minister, Deputy Micheál Martin, to sign contentious statutory penalty points legislation for fishing breaches into law was dismaying. Mr. Murphy said that two members of his organisation challenged this legislation in the High Court and won. He said that the then Minister, Deputy Creed, tried again to introduce this flawed legislation with little change in 2019.

In west Cork, fishing groups were promised a meeting with the Taoiseach by one of his own backbenchers. Of course, there was no meeting. Yet again, we saw empty promises made by a Government which was seemingly trying once again to criminalise fishermen and fisherwomen. When this meeting with the Taoiseach was promised to take place I assumed and read that changes would be made to the statutory instrument. It was only after attending the AGM of the Irish South and West Fish Producers Organisation that I found out this meeting had not materialised. In my view, the fishermen of west Cork were hoodwinked and that the plan was to hope that we would all keep our mouths shut, take our eye off the ball and turn our backs on our fishermen. Tonight's motion, if passed, will not allow this to happen.

All Fianna Fáil, Fine Gael and Green Party Deputies who represent coastal communities and who claim to represent the fishermen who fight the high seas and who have faced a mammoth task day in and day out with little or no support for decades, whether they claim to support those in the bigger trawlers or the inshore fishermen, should not support further destruction of fishermen's livelihoods by backing the party lines. I urge them to stand by their fishermen whether from west Cork or any other part of Ireland. If those Fianna Fáil and Fine Gael Deputies toe the party line tonight and turn their backs on these fishermen and fisherwomen and their families, it will not be forgotten for decades to come.

Deputy Richard O'Donoghue

This motion is very opportune as we struggle towards the Brexit deadline. There is 7,500 km of coastline in Ireland. Ireland's total package of agreed fish quota for 2020 is 195,000 tonnes. This is worth an estimated €275 million to the Irish industry. The fishing industry supports 16,000 jobs including 9,000 directly and 7,000 indirectly.

It was very interesting to note this week that Michel Barnier is very concerned about Ireland's position after Brexit. The EU's chief negotiator on Brexit said "Without a doubt, Ireland is the Member State most affected by Brexit." He also said "the UK has not shown any willingness to seek compromises on fisheries." Ireland needs agreement on the average 34% of Irish landings which are taken from UK waters. This is the voice of the EU but, in what is a box-ticking exercise, the Taoiseach has been adamant that a penalty points system which will cripple our fishing industry is to be introduced through a statutory instrument. My job as a politician is to question why a points system would be forced on our fishermen when they are struggling. The appeals process under this system does not remove the penalty points even if they are not warranted. In conclusion, there must be room for a proper appeals system.

Ireland has a 200-mile fishing zone. This must be protected as it is a very valuable resource for our country. The Common Fisheries Policy for the period 2021 to 2027 states that small-scale coastal fishery regions will receive more beneficial treatment. Surely this is all about Ireland.

Deputy Danny Healy-Rae

I thank Sinn Féin. I will support its motion because there is no question but that this is absolutely ridiculous. It is like putting the cart before the horse. If the system involved people being brought to court and being fined or given penalty points at that stage, that would be fine. This is not the case under this system. The Taoiseach has signed a statutory instrument and, if fishermen are held up on the high seas and get penalty points, no matter what they do and no matter what court they go to, those penalty points will not be removed.

The Minister, Deputy McConalogue, is from Donegal and he understands this perhaps better than any of us. Two or three years ago his party opposed this measure. Pat the Cope Gallagher vehemently opposed it. We all supported him when he left the Chair to make the case for the fishermen. I will make the case for the fishermen along the coast of Kerry from Dingle to Cahersiveen, Renard, Kenmare and Sneem. They have a lonely and difficult job. When they fight and overcome everything else, the weather may overcome them. It is a seriously hard job. We do not have gold, oil or diamonds in this country but we have fish and we should be entitled to fish fairly and to have fair laws applied.

We are all Irishmen here. I cannot understand why the last Minister and Government tried to bring this in. Deputy Michael Collins, Martin Ferris and I met the Minister, Deputy Creed, and laid out to him that we were not going to take what he was proposing. Why has the Taoiseach done this? To whom are we beholden? Is Europe putting on pressure? Will the Minister tell us what is going on because there is no reason Irishmen should get penalty points and be penalised without the chance to fight their case in a court of law? It is very wrong.

I call on Deputy Griffin and the Minister, Deputy Foley, who claim credit for everything in our county but the weather these days, to come out and do something about this and to stop it before it goes to a vote. If they vote with the Government they will blow the fishermen out of it. Will the Government cop on before it is too late and see that what it is doing is wrong? It is unfair and it is not democratic.

Deputy Michael McNamara

I will be brief. I am from east Clare. There is a distinct divide when it comes to fishing. Not much sea fishing goes on in east Clare. What little of it is left it is all along west Clare.

There is a great imbalance in the fishing industry and among most of the people the Minister represents, whether farmers or fishermen. It is chiefly about their inability to take on a system. There are big players in the agrifood business. For one reason or another, the Department of Agriculture, Food and the Marine often gives way to them. Then there are numerous small producers, whether fishermen or farmers, who go out and produce an amazing product but they do not get the reward for it. Sometimes they believe that they are being penalised and that the system is against them. The idea of taking a judicial review is not something they can consider. They do not have access to the High Court, although the big players do. The weak suffer what they must and the strong do what they can. I believe that is very much what happens in the Department. I am not saying it is the fault of the Minister, but it is the way it is.

I will wait and listen but I want to know how the penalty points system that the Minister has introduced differs so substantially from the penalty points system that the Fianna Fáil Party had annulled. There may be differences and I am willing to listen to them. I hope the difference is not around an ability to take judicial review proceedings in the same way that it was for small publicans. If they were shut down for a day, they were to take a judicial review. That is simply not realistic. People need fairness. People need to be able to produce a product that they have produced for generations in an ecologically sustainable and environmental way, as inshore fishermen and small farmers do in Ireland. They need to get a fair price. Instead of being put to the pin of their collars by regulations of the Department, they need to be supported and assisted.

Deputy Catherine Connolly

I thank Sinn Féin for bringing the motion. I support the motion. It is embarrassing to be here and to listen to the argument from Fianna Fáil Deputies who have supported the bringing in by the Taoiseach of the statutory instrument on 28 August. It seems little different from the previous one that was annulled by the Supreme Court and before that by the High Court in another situation. It is embarrassing because we need leadership. We need a change of direction from Covid-19. We need to realise that we have to support our rural communities and support sustainable development in every sense of the term. Fishermen are an integral part of the food chain. I wish we were holding a discussion on how to support them. They take the view they are isolated, and I can absolutely see why.

I represent Galway West with my colleagues. We have the Aran Islands, Inishbofin and a long coast. I can tell the Minister that the sense of alienation being referred to is palpable in respect of the fishing industry.

I am all for sustainability. I am not for overfishing. I cannot say it better than Deputy Bríd Smith said earlier. We do not have policies that are sustainable. On top of that, we bring in a punitive system that the Minister referred to in his speech as being proportionate, dissuasive and effective. It is none of those things.

I wonder at what stage sense will prevail. At what stage will this Chamber listen and, as a result of listening to sensible points being put forward by such an array of speakers, do something about it? Let us get rid of this statutory instrument. Let us learn from the Supreme Court and the High Court. Most of all, let us learn from the fishermen who are telling us this is not possible, fair, just or proportionate.

The four major points have been mentioned already. These include the burden of proof, the points remaining despite exoneration in the court, the multiplying of the points if the quotas are assigned, and the restriction of access to the courts under the appeals system except on a point of law. How can that be justified?

When I look at it, I reckon what has happened is that the Government has got to the point where it can no longer say to the EU that Ireland has failed to comply with what it was supposed to have done since 2009, or with a little leeway since 2012. Here we are eight years later. The co-funding has stopped. It is rising by millions although I cannot remember the precise amount. I did not get a copy of the Minister's speech. The Minister mentioned the money that has been stopped and that is rising. The Government has got itself into a pickle again because it needs the money from the EU and it needs to be seen to do something, but in reality it is not doing anything. Worse than that, it is dispiriting for the fishermen listening to this debate to realise the complete absence of leadership. A little would go far with them. I thank Sinn Féin again for bringing the motion.

Deputy Thomas Pringle

I pay tribute to Sinn Féin for bringing forward this motion. It is certainly doing what it is designed to do, which is basically to put Fianna Fáil in the spotlight given what the party and the Taoiseach have actually done. There has been much speculation of what his motivation was and so on. Unfortunately, I believe his motivation was partly to protect the Minister. If the Taoiseach introduced the measure, it would not come down on the Minister for Agriculture, Food and the Marine and he would not have to do it when he came to the Department. The Minister can now wash his hands of it and say it was not he who did it and so it has to stay.

For the first time ever in the history of the State a Government law was rejected in 2018 on this penalty points issue. The rejection was put forward by the Minister and the Fianna Fáil Party. Now, we see that the Fianna Fáil Party has brought it forward and implemented it. It is interesting because I was speaking to several fishermen today on this. They genuinely could not figure out how this could happen. They asked how could Fianna Fáil say one thing and do something else. I pointed out there was an election in between. Fianna Fáil is now in government. Those in Fianna Fáil will say anything in opposition and when they go into government they will do the exact opposite. It has really brought it home to these fishermen that this is actually what happens. I hope it will bring it home to many people that this is what is happening here. The Minister can say whatever he wants in opposition, and when he goes into government, he can then do whatever he wants. He can do the exact opposite and no one bats an eyelid.

The Government will pass this through the House because it has the numbers. This is despite the Minister's party colleague acting as if he were in opposition while in government and saying how terrible this is and how much it will impact on the poor fishermen in west Cork. Yet he will vote with the Minister to ensure it is implemented. That is the sad reality of it.

Many problems have been laid out in respect of the penalty points. They are the same problems that arose in 2018 when the previous regime was rejected and before that in turn when the courts struck down the measures. They include the issue of the burden of proof, the assignment of the quota and how the penalty points will pass on, even if a boat is sold and the tonnage is split up among four different boats. The penalty points will go with them as well. That is a real problem. This is hampering the system. The fact that there is no appeals system or a restricted appeals system is a problem as well. That causes ongoing problems for fishermen.

Article 90 of the EU control regulations states that the competent authority of the member state is required to determine the gravity of the infringement in question, taking into account criteria such as the nature of the damage, its value, the economic situation of the offender and the extent of the infringement. Where is the economic situation of the offender taken into account with these penalty points? It is certainly nowhere I can see. That is the crux of the problem and that is why fishermen are so opposed to it.

Many fishermen do not believe they can ever get a fair hearing from the Minister, the Government or the Department of Agriculture, Food and the Marine. The Department and the Sea-Fisheries Protection Authority, SFPA, are part of the problem as well. There is no sense among the fishing community that they will get a fair hearing from the Department or the SFPA. That is the crux of the problem when it comes down to it. We will have ongoing problems dealing with fishing control and regulation. We are seeing ongoing problems because the fishermen do not have any faith in the bodies. The Minister will argue that it is always this way in fishing and that fishermen do not want it this way, but that is not the reality of the situation. The reality of the situation is that if fishermen believed that these bodies could work on their behalf and that they could have a frank and open discussion, then the Minister would go a long way towards making the system work. Unfortunately, the debate this evening will highlight the situation, but the Government will use its numbers to ensure that the penalty points stay and fishermen are going to have to live under that system in future.

That is what will happen and fishermen will have to live under that system in the future too.

Minister for Agriculture, Food and the Marine (Deputy Charlie McConalogue)

I acknowledge Sinn Féin and its motion. I apologise to Deputy Mac Lochlainn and a few of his colleagues who spoke at the start of the debate for not being able to be present for their contributions. I heard it while I was in transit but I would like to have been here in person, although the Minister of State, Deputy Heydon, was. I thank everybody for the many contributions on the motion. Many Deputies took the time to take part in the debate and to give us the benefit of their views, and it has been a worthwhile debate in that regard.

This is an important issue that my party took seriously when on the Opposition benches. That is why I, as the then Opposition spokesperson for agriculture, food and the marine, alongside the then Deputy Pat The Cope Gallagher, who was our spokesperson on fisheries, tabled a motion in the House in respect of the penalty points statutory instrument introduced in 2018, seeking amendments and making a clear request, for which we got the support of the House, to have those amendments considered. The amendments were considered in that period of two years and legal advice sought on how the SI might be amended in a way that would take on board the fishing sector's concerns and, at the same time, leave us compliant with our obligation for a control authority in the Common Fisheries Policy to have a system of policing our seas and ensuring that the Common Fisheries Policy was being implemented and overseen.

The SI, which was signed into law by the Taoiseach at the end of August, took on board two of those amendments, in respect of the need for a right to an oral hearing with the determination panel and the appeals officer and of the opportunity for additional time for making submissions and for seeking those appeals. The other amendments that were proposed, having been legally considered, were determined not to be possible to accommodate in the SI while keeping us compliant with our obligations under the Common Fisheries Policy and implementing the regulation, which had been outstanding since 2012.

I acknowledge Deputy Christopher O'Sullivan's engagement with producer organisations and his input to me over the past period, as well as the many other Deputies who have spoken to me about the matter. I also acknowledge the meeting I had with producer organisations where we discussed this in detail and where I offered them the opportunity to come forward with further submissions to me that they wished me to consider if they believed that an argument could be made that our obligations could be complied with and the requests accommodated. That door is still open. Our obligation is to ensure we implement and follow legal advice on the statutory instruments we bring forward and I will outline some of the key considerations that have informed the content of the statutory instrument, which was brought forward at the end of August.

I know that everyone in the House wants there to be a strong and vibrant fishing industry that supports employment in our fishing fleet, fish processing and ancillary activities in our coastal communities. My Government colleagues and I, although we are here discussing this issue, are all very aware of the important moment this is for the fishing sector in respect of Brexit and ensuring the best outcome and that the sector is protected in that regard. As the Minister of State, Deputy Heydon, outlined earlier, the conservation of fishing resources is in everyone's interests and is vital for the future of the Irish fishing industry. An effective regulation implementing the EU points system is necessary to protect the vast law-abiding majority of industry to preserve the precious and valuable resource in our waters, for our fishermen and future generations.

The delay of more than eight years in implementing a points system needs to be addressed, particularly given that the European Commission has commenced formal infringement proceedings for non-implementation of the points system with potentially very significant fines that Ireland may have to pay as a result. The Commission has also warned that up to €37 million in EU funding for the fishing sector may have to be suspended indefinitely until Ireland complies with the requirements of EU law and implements a points system. One of the main issues of contention in respect of the application of points has been the possibility of points being assigned outside of our courts system. The 2017 Supreme Court judgment found in favour of the State's position that it is permissible to have a stand-alone system separate to a prosecution through the courts and that it is permissible to provide for a stand-alone system pursuant to a statutory instrument. The judgment is clear on this as the court understands that criminal prosecutions could take at least two years, making the points for licenceholders ineffective in many cases because points are to be applied from the date of detection and lapse three years from that date.

It has also been suggested that the licenceholder should have a right to a full rehearing of the case before the High Court. The legal advice I have is clear that under the Constitution, the High Court has "full original jurisdiction" and can hear all matters of law brought before it. The legal advice is that it would be highly anomalous, if not unprecedented, to provide such a full High Court rehearing of a matter first governed by the procedures set down in the 2020 SI. In addition, it would delay the application of points, which would run against the timeline set down in the EU regulation that points apply for three years, with a commencement date of the date of detection. To that extent it would hinder the effective implementation of this EU law and would not meet Ireland's obligations to implement these EU provisions. The High Court retains a supervisory and review capacity that provides for an appeal on a point of law to the High Court, which is entirely in keeping with statutory review and appeal procedures of this nature. Accordingly, the legal advice is that while the High Court retains the constitutional authority to enjoy full original jurisdiction over any legal proceedings, this authority has been circumscribed by the specific appeals mechanisms set down in primary and secondary legislation, which overwhelmingly limits just High Court appeals to reviews on a point of law.

The issue of points following capacity was raised. Where points have been built up on a licence in respect of serious infringements and a further serious infringement would result in a suspension of the licence, it is essential that the points are managed so as to dissuade further serious infringements. The SI provides that the points cannot be negated through being subdivided by the licenceholder and distributed in reduced numbers among different fishing vessels. A proposal from industry that would allow points to be subdivided by the subdivision of capacity among fishing vessels, so that each vessel would hold a smaller number of points, was examined but was not accepted as it was deemed that it would undermine the effectiveness of the system and not meet the objective of the EU regulation.

The issue of the standard of proof to be used by the determination panel and the appeals officer was also raised. The legal standard "beyond a reasonable doubt" is almost entirely confined to criminal trials and is not applicable to proceedings of a civil nature, where the standard used is the "balance of probabilities". This is the standard used for the points system and is an appropriate legal standard.

The issue of points for licenceholders being removed where the master or owner is found not guilty in criminal proceedings in respect of the infringement was also debated. This proposal would involve both systems being interlinked and they would not stand alone from each other. There are separate systems involving separate standards of proof between the points and a criminal prosecution. It would lead to the confusion and conflation of evidence and render elements inadmissible. In addition, the legal advice is clear that points under EU regulation are intended as additional to a criminal prosecution. Accordingly, it could not be argued that Ireland has both criminal and points systems, as required under EU regulation, if we operated the system in a manner whereby the criminal proceedings completely eclipsed the points system.

Deputies also raised the issue of infringements and the points to be assigned in that regard. An annex of the EU implementing regulation sets down the details of the infringements and the points to be assigned. Furthermore, the EU regulations on this matter are very prescriptive for licenceholders, leaving little room for further negotiation. Fixed at EU level, for example, are the list of serious infringements, the number of points to be assigned for each such infringement, the periods of suspension and disqualification, the deletion of points after three years and the deletion of points in certain other circumstances. The issues being raised by industry representatives were previously raised on a number or occasions, including with current and former Deputies. All such proposals were carefully examined and any that were considered acceptable from a compliance and legal perspective were accepted and incorporated into 2020 SI. As I outlined, these relate primarily to an unqualified commitment to an oral hearing, should the licenceholder request one, and an extension of certain timescales, such as for a licenceholder to make written submissions to the determination panel and appeals officer.

If the House were to vote to annul SI 318 of 2020, this would leave a significant vacuum in the law in this area and impact how Ireland would respond to the EU Commission in respect of the infringement proceedings taken against Ireland and the withholding of EU funds under the European Maritime and Fisheries Fund, EMFF. This would be acting in a way that would show irresponsible indifference to the consequences, not only for the fishing industry, but also for the public purse and for Ireland’s reputation as a member of the European Union.

I have clearly outlined the process that has taken place in examining the proposals and amendments suggested in 2018. I have outlined those that have been taken on board and the reasons the others were not taken on board. This is the best and most balance statutory instrument that can be had that ensures we are compliant with our obligations under EU regulations to apply a penalty points system.

Deputy Pearse Doherty

It did not take the Minister long to learn the Department line. The Minister claimed there is "irresponsible indifference" coming from Deputy Mac Lochlainn, who I commend for bringing forward this motion to the House. The Minister's party colleague drafted the alternative statutory instrument two years ago and brought a motion forward to this House to annul what was nearly an identical statutory instrument, which also penalised fishermen in the Minister's constituency and further afield. That was the first time ever for a statutory instrument to be struck down, yet today the Minister claims that it is "irresponsible indifference".

The reality is this is a kick in the teeth to fishermen across the coast of this State, many of whom are in our county of Donegal. These same fishermen who the Minister wants to impose this regime of penalty points upon see their livelihoods being stolen from them by an overburdensome suite of regulations. They understand, particularly in the inshore sector, the difficulties in not having adequate quotas and they see how super trawlers trawl through the fish off our coasts. These European super trawlers are allowed to plough through the pots of these fishermen, yet when the Naval Service inspectors go on board the super trawlers, they are given hours of warning. They catch thousands of fish, only to dump them again because they are a few millimetres too small. These fishermen understand the need for preservation and conservation but they do not understand the fact that the Minister has brought in and stands over this statutory instrument, which is ridiculous.

Deputy Martin Kenny

This statutory instrument has been debated in this House many times and we are back here again. The reality is this Government is doing exactly the same as the last Government did. It is ignoring rural and coastal communities and it is destroying them. People often wonder what fishermen stand for and when ordinary workers from all over the country look at fishermen they see people who risk everything to go out and try to survive.

This statutory instrument says that this Government is once again going to back the big shot as opposed to the small coastal communities and fishermen who are struggling to survive. Somewhere in the Department or elsewhere, it has been decided that the small fishermen need to be pushed out and that they are not sustainable. This is another element in making that happen. The Government will not give them quotas, it will not give them a chance and it has pushed them into the ground. This statutory instrument will mean their vessels can be boarded and fishermen can receive penalty points with no recourse whatsoever. The points are there whether the fishermen win or lose the case. It is completely arbitrary and wrong.

When he was here, former Deputy Pat The Cope Gallagher made a strong point of that and in fairness to him he fought that corner. It is deplorable that his colleague from the same constituency is doing the exact opposite. I am incensed at how the Minister has come to this position that he thinks it is OK to do this to fishermen in his constituency and the length and breadth of all the coastal communities around Ireland. It is completely wrong and the Minister knows that.

Somewhere or other, this policy has been put in place by people who are faceless and who do not come into this Chamber and those people need to be stood up to. If the Minister is going to make a mark as a Minister for Agriculture, Food and the Marine, he needs to make that stand. He needs to stand up to those people who stand for something that is not really what we are about but that is about something different, namely looking after vested interests. It is time the vested interests were set aside and the ordinary people were given a chance. The recognition and reference of that will be if the Minister does the right thing by the coastal communities and the small fishermen around the country. The first thing the Minister needs to do is make sure this statutory instrument is set aside because it is wrong and the Minister knows it.

Deputy Pádraig Mac Lochlainn

This is a sorry saga. I will give the Minister genuine advice across the floor. He urgently needs to get a grip of the people who run the marine section in the Department of Agriculture, Food and the Marine. In all of my eighteen and a half years in politics, I have never come across such wall of distrust between those who a Department are supposed to represent and the Department itself. I have spoken to fishermen and fisherwomen up and down the coast since I took on the role of Sinn Féin spokesperson for fisheries and the marine.

In every single sector, including inshore fisheries, which the Minister knows well, whitefish fisheries, pelagic fisheries and offshore fisheries, they have a huge distrust of those who run the marine section of the Department of Agriculture, Food and the Marine. They had to take them to court twice and they were vindicated. They went to the highest court in the land. These people in the Department spent a huge amount of taxpayers' money and they lost again and again.

Fianna Fáil brought forward a motion, led by former Deputy Pat The Cope Gallagher, which represented a huge moment because a statutory instrument was voted down for the first time in the history of the State. I read over every single speech that was made, line for line, when we put this annulment motion on the Order Paper and I read them again today. If the Minister reads back what he said and what every single Fianna Fáil spokesperson said that night in comparison with what he has said tonight, he will see that it is like two different people were speaking. It is shocking.

I cannot convey to the Minister how angry these fishing representatives are, many of whom have supported Fianna Fáil through thick and thin over the years. They said to me that we should hold back on this annulment motion, that they would get a meeting with the new Minister because he is from Donegal and that he will understand more than anybody the need to address this issue. They said the Minister would engage with former Deputy Pat The Cope Gallagher on the amendments he brought forward to the previous statutory instrument. Those amendments would have solved the problem, addressed the concerns of the fishing industry and built trust at last between those who put their lives at risk to earn a living all around our coast and those who run this Department. It would have been a big and important moment but here we are again tonight.

The Minister's speech reads almost identically to what the former Minister, Deputy Creed, said two years ago. He gave a deeply alarmist speech, lecturing those across the Chamber and talking about the financial cost of the amendments. What about the cost of going to the Supreme Court or the costs for the Irish South and West Fish Producers Organisation, which will be forced to take a legal case again, which it may well win? This should not be necessary.

One of the comments made by the former Minister, Deputy Calleary, was that we need a Minister of State for the marine. That is what he said in 2018 and he referred to former Deputy Pat The Cope Gallagher and his track record. The Minister needs somebody who will get a grip of this Department. The Minister himself will be overwhelmed with all of his immense responsibilities in agriculture. Yet again, the marine section of the Department will be allowed to run riot on its own with no Minister or Minister of State to hold it to account. It will have warned the Minister of all sorts of unintended consequences and told him about the views of Attorneys General and of legal views. It will bamboozle him with all of this.

Yet when one looks at a report from the European Union itself in July of this year, it is very clear that the systems in place all across Europe bear little resemblance to this one. This is a system where on the balance of probabilities somebody can be convicted and have his or her livelihood taken away, whereas if the Minister or I were stopped by a garda, we would have the right to go to a court and would be presumed innocent until proven guilty. If we were found innocent those penalty points would be removed and they would not take effect because the burden of proof would be beyond reasonable doubt. Whoever wrote that script for tonight and said to the Minister that it is acceptable that the balance of probabilities is an acceptable threshold is letting him down and failing him.

The Government may well vote tomorrow night in total defiance of every word said by every one of those Fianna Fáil Deputies. I read through every line spoken by those Fianna Fáil Deputies two years ago and there is not one with which I disagree.

Charlie, I will say that - apologies, I am speaking to the Minister but if I am informal it is because we know each other as Donegal representatives - these representatives of fishing organisations feel betrayed, and if the Government votes against this tomorrow night, the Minister will have a major job to do if he is to reach out to the fishing industry and break down the wall of distrust. He will have to stand up to the senior officials in his Department. It is the view of the people in the fishing community that they are being criminalised and treated like second-class citizens. The Minister must know that from speaking to them. The Minister's actions will only entrench their view even more and push the gap further.

We are an island nation and we have a large marine resource. We should be enriching coastal communities and not criminalising them. These are the implications of the decision being made by the Government. Whatever way he votes tomorrow night, the Minister must urgently reflect on the need to stand up to those officials and make a stand as a Donegal man against those officials on behalf of the people he represents.

Question put.

An Ceann Comhairle

In accordance with Standing Order 80(2), the division is postponed until the weekly division time on Wednesday, 30 September 2020.