Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 22 Mar 2006

Vol. 183 No. 2

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

I welcome the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, to the House.

Sections 1 to 5, inclusive, agreed to.

Amendments Nos. 1 and 2 are cognate and may be discussed together by agreement. A change must be made to amendment No. 2 as a result of a printing error. The word "boat" should appear after "sea-fishing". Is the change agreed? Agreed.

I move amendment No. 1:

In page 11, line 27, after "fish" to insert the following:

", but for the avoidance of doubt does not include a sea-fishing boat".

I welcome the Minister to the House and look forward to his views on the amendment. There is some ambiguity here and the reference to a "sea-fishing boat" might clarify the matter.

I told the House that due to a printing error the word "boat" was left out of amendment No. 2 as printed. The House agreed that the word "boat" is included.

That is correct. However, there is ambiguity with regard to the two amendments.

In other words, the Senator does not want them discussed together.

I want them discussed and I would like to hear the Minister's reaction to them. There is a degree of ambiguity on which I would like the Minister to give an opinion.

The amendment is unnecessary, although I understand the Senator's intention. The term "sea-fishing boat" is separately defined in section 6, page 12 of the Bill, and is frequently used throughout the Bill. There is no question that references in the Bill to equipment or fishing gear can be held to include a "sea-fishing boat" because it is defined as a separate item to equipment. What the amendment seeks to achieve is already contained in the Bill. Therefore, the amendment is not necessary.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 6 agreed to.
Sections 7 to 11, inclusive, agreed to.

I move amendment No. 3:

In page 15, between lines 25 and 26, to insert the following subsection:

"(8) The master of an Irish sea-fishing boat may depart from the terms of any notice under subsection (7) where exceptional circumstances (such as force majeure, the safety of the crew or the safety of the vessel) so require.”.

We are all familiar with the concept of force majeure as it relates to the Department of Agriculture and Food in the context of exceptional circumstances. The Minister might outline his opinion on the fact that much grant aid, specification and regulation pertains to safety procedures on large and small boats. While I accept I am deviating to address issues that have recently come to my attention, what is the Minister’s opinion on the regulations and stipulations that crews of small vessels and fishermen must obey with regard to safety procedures?

Much outstanding grant aid, which can average €3,000 to €4,000, is not available to fishermen. Some fishermen in the north west are still awaiting grants for safety procedures despite having gone through the required process and complied with existing regulations. Will the Minister expedite the grant aid due to many fishermen with small vessels?

A common theme ran through many of the contributions on Second Stage of the Bill. Nobody had any real difficulty with the concept that where people break the law, they should be punished. The problem for many Members related to the type of penalties that were laid down, although I will not address that issue now as it will be dealt with during consideration of another amendment.

A number of the amendments put down by Senator McHugh seem to attempt to find ways around the law or ways for fishermen to get away with committing offences. The amendment under discussion is of that type. It appears to try to give an out to fishermen or to allow them to get around the law. I have no problem with fishermen having designated ports to which they should go. To accept the amendment would create a loophole and make it easier for fishermen to get around the law.

If the Minister does not accept the amendment, how does he propose to deal with the type of exceptional circumstances outlined in it, such as issues concerning safety or force majeure?

All three points are essentially related. The Bill introduces law and in some cases reintroduces law that has been in place since 1959. There was much discussion on Second Stage and in the other House as to how we might ensure that those who commit minor offences could be exempted or facilitated by not being put out of business as a result of relatively minor offences. As I said in the House on Second Stage, the way we tried to accommodate the concerns expressed at that time was to have graded fines based on the size of boats and so on. I introduced amendments in the other House which allowed for offences to be taken at District Court level, where such offences cannot be dealt with at present because of the two cases cited. Late in the Dáil session, I introduced a new provision whereby confiscation would not take place for first offences at District Court level.

I tried to meet the concerns expressed by Deputies and Senators on those matters. I have the same concerns as Senator Kenneally with regard to the difficulties that this amendment would create. I have tried to balance the need to have strong laws and disincentives available to sea-fisheries officers with the need to protect the lives and safety of people at sea.

Senator Kenneally made an eloquent plea on Second Stage, as did other Senators, on the need to provide safety measures for fishermen and the Senator spoke about the hazards fishermen face, which are acknowledged. In respect of this instance and in force majeure instances, section 36 specifically recognises the concerns, expressed by Deputies in the other House and Senators in this House, about the inherent dangers of working at sea by providing a defence against conviction for an offence where actions had to be taken in contravention of sea fisheries law to secure the safety of any person, sea-fishing boat or other vessel in peril at sea.

What Senator McHugh is seeking to achieve in this amendment has been dealt with in section 36. I refer to a case where a person can reasonably prove he or she disobeyed an order to go to a designated port or a particular place, or a direct order by sea-fisheries officers or the Naval Service and can show he or she needed to berth at a place closer to the vessel's location because, for example, a person on board was injured. I assume it is instances such as that, force majeure instances, to which Senators McHugh and Tuffy were referring. Once a person can make a case as a defence, it is up to the court to accept that or to make judgment otherwise. The spirit of Senator McHugh’s amendment is accepted and is provided for in a different way in section 36.

I wish to clarify a point for Senator Kenneally. In doing so, I am not saying he is alleging anything or telling me or my colleagues how we think. Fine Gael is not looking for short-cuts or any route other than that of obeying the rules and regulations. We are certainly not looking for loopholes whereby in certain instances a boat owner or fisherman could break the law. That is not the case.

I used the opportunity presented by moving the amendment, albeit in a roundabout away, to make my point. We are all agreed on grant aiding fishermen to improve vessel safety and other provisions in line with regulations on a specific instance basis and trying to ensure boats use the proper port or do the right thing, but when one speaks to fishermen on a daily basis there seems to be a complete lack of confidence in the overall monitoring of the marine sector. That is no disrespect to or a poor reflection on the work of the Department. I am not trying to undermine the role played by the king-pins in the Department and that played by the enforcement officers in enforcing the regulations. Fishing is not a black and white industry and that is where the problem lies. Many fishermen take issue with the fact that on the one hand they have to obey quotas within certain zones — Irish fishermen are obeying them — while the other hand, fishermen from other countries can disobey them. That is where a lack of confidence comes into the system. On a related matter, there is an awareness that there is very little monitoring and regulation of factory ships. I am not saying that is the de facto position, but there is an awareness and an appreciation that the same rules and regulations are not being enforced in terms of the operations of factory ships.

We are not talking about a grey area where certain rules can be considered differently. What fishermen are seeking in the fishing sector is common sense. I know people who write legislation but how does one legislate for common sense? I was at a mass recently where a priest said from the altar that common sense is most uncommon. We have a job to do in terms of legislation, but we must appreciate that we have ambassadors within the fishing sector who want to obey the rules, have a sustainable industry in the long run and work with the Department and with legislators. We should be working closer with them in terms of seeking their advice and their guidance. There are many proactive people in the fishing lobby and in the fishing representative organisations.

This legislation is bad news for the industry. There may be a glimmer of light at the end of the tunnel with the early spring not having been as bad as previous years.

The Senator must stick to the amendment — he has strayed considerably from it.

In the Acting Chairman's field of health matters, she may find she digresses as well. This is not a single issue rather it concerns minor discretions and the punitive outcomes therefrom concern many fishermen. The Fine Gael Party is not willing or interested in going down the road of letting people off the hook or enabling them to slip through loopholes. I thank the Acting Chairman for her indulgence.

I neglected to refer to a point made by Senator McHugh on safety. I refer to the grant aid allowed for safety equipment on boats and so on. That is administered by Bord Iascaigh Mhara. If there are delays or specific areas of concern and the Senator advises us of them, we will refer the cases to Bord Iascaigh Mhara.

I appreciate Senator McHugh's point about the lack of confidence in the sector as do my civil servants working in this area. The Senator was not criticising the Department when he said there is and has been a lack of confidence in the monitoring of the sector by the Department. I do not make a great secret of the fact that I am not happy with the number of sea-fisheries officers in place to deal with the huge volume of work that must be undertaken in this area. That is why we made a strong case to the Department of Finance last year, which was happily accepted, to allow us to double the number of sea-fisheries officers. That increase in staff is currently taking place and they will move into the sea-fisheries authority. I accept that everybody wants to know the regulations are being applied in an even-handed manner and assure the Senator that is being done.

There is a certain amount of self-serving by some people in the fishing industry. There is much anecdotal talk of what is and is not being done, of sea-fisheries officers discriminating against Irish trawlers and so on as a justification for some of the illegal activities they are carrying on themselves — let us be blunt about that. However, the assurance I want to give this House, as I gave to the other House, is that the Department is absolutely committed to trying to ensure that sea fisheries law will be applied even-handedly as it has been in the past.

Every effort is being made to apply the law even-handedly. The sooner this fact is accepted by some individuals operating in the fisheries industry, the easier it will be for the vast majority of genuine operators in the business. Various fisheries organisations requested a meeting with me and the Minister of State, Deputy Browne, to discuss the future of the fishing industry during the run up to the debate on the Bill in both Houses. At that time, I clearly indicated we would meet to discuss the future of the fishing industry and to try to mend some bridges as soon as the Bill passed through both Houses and into law. I gave this commitment in the other House and as soon as the Bill passes through this House and into law, such a meeting will be arranged to ensure we look to the future, rather than the past, which we have tended to do as a result of our deliberations on the Bill itself.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 15, subsection (8), line 27, after "the" to insert "seventh".

I appreciate the sentiments expressed by the Minister. I will not digress as we are focusing on the same issue, which is discretions. I am a firm believer in listening to the views of the person on the street in respect of every industry. If one was to ask 1,000 people living in coastal areas what was their main concern, the general response would be that we sold out our fishing industry in 1973. A second group of people would reply that if we did not take the route we took in 1973, the structural investments in this country would not have come about. The debate between these two schools of thought will continue.

Fishermen constantly tell other members of the public that Norwegian, Spanish and Danish boats fish in Irish waters. Last night, a man informed me that Czech boats can be found fishing in Irish waters, although I am not sure if this is true. What mechanisms are proposed at EU and national level to deal with foreign boats which are exceeding the quotas and working outside their territories and in zones where they have no right to be? I am aware that whistleblowing is a dangerous word to throw around, although it has been raised in respect of nursing homes. Could a whistleblowing mechanism, whereby people could inform on foreign boats committing indiscretions in Irish waters, be introduced to protect the Irish fishing industry?

I do not believe the fishing industry was sold out in 1973 but I do not expect many people across the political spectrum would disagree with the view of the fishing industry and the person in the street that ensuring a good deal for Irish agriculture was the priority in 1973. As a result, our eye was taken off the ball in respect of the fishing quotas we received. The situation has remained largely unchanged despite valiant efforts to change it, although a measure of success was achieved a few years ago. Much larger fishing quotas could be given to Ireland.

The quotas we received in 1973 were sufficient for the kind of fishing in which we were engaged. The need for larger quotas has arisen as a result of the significant growth in Irish fishing over the past 30 years. Irish fishermen became much more effective as a result of a considerable amount of hard work on their part and large grants to upgrade their boats. What was practically a cottage industry in 1973 has now become a major industry, which is very sophisticated and could handle larger quotas. We must accept this.

In respect of discretions and protecting our quotas, foreign fishing boats must notify the authorities before they enter Irish waters. If I recall correctly, they must notify the authorities on a two-hour basis when they are in Irish waters and must again notify them when they are exiting Irish waters. Foreign boats are subject to the same search procedures as Irish boats. I am aware that people either believe that it is wrong to allow foreign boats to fish in Irish waters or that it is illegal for such boats to fish in Irish waters but certain foreign vessels have legal access to our 200-mile zone. Every foreign boat in our waters is subject to two-hourly satellite monitoring, which notes its identify and location. The Air Corps overflies the 200-mile area every day, using the two aircraft we possess, and the Naval Service boards vessels, so nobody should assume that foreign boats are not monitored or are not entitled to fish in Irish waters. Some foreign boats are entitled to fish in Irish waters.

I appreciate the intention of Senator McHugh's amendment, which is to give people the maximum amount of notice. However, giving people at least seven days' grace before a notice restricting or prohibiting sea fishing would effectively undermine the State's ability to properly manage the State sea-fishing quotas and sea-fishing effort under the Common Fisheries Policy. The State must be able to act very quickly to prevent the exceeding of the quotas or fishing effort, for which the State could be penalised under the Common Fisheries Policy. The management of quotas and fishing effort is akin to a tightrope balancing act. If this amendment was accepted, it would probably be detrimental to the Irish fishing industry.

I am aware that Department officials try to allow the maximum amount of fishing before closing down the fishing effort in a particular area. If they were forced to give seven days' notice, this would take place much more frequently in order not to exceed the quota. A considerable amount of fishing can take place in seven days and a considerable amount of precautionary measures would be taken. There would be a considerable amount of stop-start activity in the fishing industry because officials would decide to close down efforts seven days early if they were found to be within 100 tonnes or 1,000 tonnes of a quota in a particular area because there are so many vessels operating which could exceed their quota in the next seven days.

Everyone agrees that the system is not perfect but what is being proposed in the Bill is better than giving seven days' notice. Each vessel has one day's grace between the notices being served and having effect, which permits the maximum degree of flexibility and least amount of disruption to fishermen. It is therefore better to leave the system as it is.

Amendment put and declared lost.
Section 12 agreed to.

I move amendment No. 5:

In page 18, subsection (13)(a), line 48, to delete “it.” and substitute the following:


by sending such notification to—

(i) the address at which the holder is ordinarily resident, and

(ii) the address at which the holder carries on business, where the two are different."

This is a straightforward amendment which seeks to ensure that notification of a fine or otherwise goes to both the business address and the home address.

The appropriate end point for sending notifications to the holders of authorisations under section 13 will depend on the business arrangement of the holders, some of whom may have agents dealing with their business correspondence. As this will be known to the Department in its ongoing dealings with the holder, it is not considered necessary to amend the Bill as suggested by the Senator. It is better to have the flexibility that applies at the moment.

Amendment put and declared lost.

I move amendment No. 6:

In page 19, subsection (14)(b), line 17, to delete “or” where it secondly occurs and substitute “and”.

I cannot accept the amendment as this section includes three separate sets of circumstances to allow for revocation. It would not make sense, therefore, to combine paragraphs (b) and (c) by substituting “and” for “or” between them as it would reduce the number of options available.

Amendment put and declared lost.

I move amendment No. 7:

In page 19, lines 34 to 36, to delete subsection (18) and substitute the following new paragraph:

"(18) The Minister may authorise in writing such officers of the Department as he or she considers necessary to grant authorisations on his or her behalf and to add to or alter authorisation conditions and terms.".

This amendment goes back to the original point about resourcing enough officers to carry out certain instructions on behalf of the Department. In terms of recent high-profile activity, there is a whole issue around who authorises instructions and who carries them out. I am sure the Minister is aware of the high-profile case to which I am alluding, but I do not want to put it on the record of the House. There are anomalies attached to how a writ is issued in regard to an infringement or indiscretion. Should there be better mechanisms in place to ensure best practice when authorisations or instructions are being issued by the Department?

The proposal in the original Bill when it came before the other House was that the Secretary General should issue the authorisation. A strong view was expressed by Members on all sides of the House that the Minister should issue these authorisations. The Bill was amended to this effect.

The Senator's amendment proposes to add the words "and terms", which is neither necessary nor appropriate. There is no reference to "terms" anywhere in section 13 of the Bill as amended and passed by the Dáil. This subsection is merely about the authorisation of officers and it puts the onus for making appointments back on the Minister and the political system rather than on the administrative system.

The amendment includes the words "in writing" to which the Minister did not refer. It states "The Minister may authorise in writing such officers". Would this be preferable?

In such cases, the authorisations are always in writing. This must be the case to use for proofs in court and so on. It is not necessary to state this in the subsection.

Amendment put and declared lost.
Section 13 agreed to.

Amendment Nos. 8 and 9 are cognate and will be discussed together.

I move amendment No. 8:

In page 21, subsection (3), lines 12 to 15, to delete paragraph (b) and substitute the following new paragraph:

"(b) in relation to fish, the master and owner of the boat concerned commits an offence, and the buyer, handler, weigher, transporter, processor, person storing or documenting and seller of the fish, where he or she could reasonably have been aware that the fish in question contravened a regulation, each commits an offence.”.

Given the history of the legislation and the fact that more than 200 amendments were tabled in the Dáil, the Bill has been debated at length among the fishing and non-fishing fraternity because of the concerns about criminality. There is a realisation among the fishing fraternity that if laws are broken, tough sanctions must be imposed.

However, in regard to the grey area of the fishing industry, there may be legitimate force majeure reasons for certain indiscretions, and people are worried that serious criminal charges may be brought against fishermen. There is a major concern that gear will be confiscated. Comparisons were drawn with someone driving at 60 km/h in a 30 km/h zone in Trim and having his or her car confiscated. It is difficult to measure certain aspects, but the concern among fishermen is that their gear will be confiscated for minor indiscretions and the culpability will rest with boat owners. The whole area of criminality is a fear fishermen face and it has been debated at length in both Houses. There is confusion in this regard because the Attorney General seems to have a different view on the issue of administrative and criminals sanctions and Joe Borg, the EU Fisheries Commissioner, seems to be coming from a different school of thought.

There is a danger that once the legislation is enacted, the horse may have bolted. I know the Minister has given a commitment to further debate the marine sector. The enactment of this legislation and the possibility fishermen may be faced with criminal charges is a worry we should acknowledge. We should consider the possibility of administrative sanctions as opposed to criminal ones for minor indiscretions.

I fully accept Senator McHugh's bona fides and what he said earlier about his party not wanting to see any way around the law but he will forgive me for thinking a couple of his amendments, including this one, seem to suggest that. This issue is not really about fishermen but about transporters, processors and so on. I have heard of many incidents over the years where lorries have arrived at ports under the cover of darkness when there is nobody around and unloaded fish which are undocumented. There may be some genuine cases but I have never come across any.

I would have thought it was open to people to go to court to argue their point if they believed they were not aware of what was going on. I would not like us to send out a signal that we are, in any way, trying to be soft on these people who are causing the problems in the industry.

I wish to reiterate what Senator Kenneally said in this regard. In 2002 when the major review of sea-fisheries and sea-fisheries control took place, the Commission decided to move more seriously against countries which were not adequately protecting and applying the Common Fisheries Policy. An area on which it is focusing in the context of Ireland and other countries is the various links of the chain from the trawler to the shop where the fish is sold. The purpose of this section is to put that into law so that, as Senator Kenneally mentioned, people cannot land fish in the dead of night in ports in which they do not have permission to land it. I understand up to 15 lorries can arrive at a port, unload fish and disperse quickly to various locations. In addition, there is a fairly well-known practice where the drivers of those lorries travel certain distances and then, usually in the dead of night, other drivers take control of the lorries so that if they are stopped at a later stage by the authorities, they are able to say they only picked up the lorry at a certain point and do not know from where the load came. They have a reasonably legitimate way of getting out of being fined or otherwise. This provision is to stop that type of activity and the sellers of fish from selling fish illegally caught. From now on, if one handles, weighs, sells or transports fish, one must have the documents to prove they were legally caught and that one is not doing anything illegal.

On the amendment, section 14(4)(b) states: “In any proceedings for an offence under the section it shall be for the accused to show (as the case may be)”. The Bill provides for the point about which Senator McHugh is worried, namely, that in the circumstances “it was not possible to know or not reasonable to ascertain that a regulation was being contravened”. If a transporter, seller of fish or otherwise does a deal with somebody and papers are presented which look legal, he or she will be in a position to go to court, produce the documents, etc., and make his or her case before the court. An individual will have the opportunity to do that under the Bill. The amendment is unnecessary because what the Senator is trying to achieve is already covered by section 14(4)(b).

Section 14(4)(b), which Senator McHugh is trying to amend, looks strict but, as the Minister said, one can make a defence. On the point the Minister made, would it not have been better to include the wording that “the person took all reasonable steps to ensure...” in section 14(4)(b)? A considerable onus is being placed on the individual to prove he or she could not have known. It would have made it a bit easier for the individual if the Minister had included not only the wording that in the circumstances “it was not possible to know”, etc., but that he or she “took all reasonable steps”. If the section provided that an individual could go into court and state he or she did A, B and C, it would make it easier for the accused to provide a defence, which would have to be a reasonable one.

What is outlined in section 14(4)(b) may be a different way of stating it but it is what the Senator suggests. I do not believe it is unreasonable to expect that people involved in a trade or business should exercise due diligence in their affairs, whether buying, selling or weighing fish. If they can show they exercised due diligence by checking the documentation which they know others should have, a court would accept that. There must be some onus on people involved in this or any other business to take reasonable steps to indicate they have shown due diligence. That is well covered in the section.

The section states that one must show it was not possible to know. That is a much greater onus than having to show one took all reasonable steps. The Minister might look at this before Report Stage and incorporate a provision for a person who had taken all reasonable steps. That way the accused could provide a defence. A person could take all reasonable steps but it could be possible to know beyond that.

This is already covered, the phrase "or not reasonable to ascertain" is included. If someone bought fish without documentation and went to court, he would be caught. If someone bought the fish and asked for the documentation, took copies of it and subsequently discovered the fish were illegally caught and the documents were fraudulent, any reasonable court would accept the steps he had taken. It would be reasonable to argue that it was not possible to know the documents were forged or that a regulation was being contravened. That is a standard provision in legislation of this kind. It offers a defence but it does not totally exonerate the person concerned from making reasonable checks. The onus should fall on the person to make such checks and that is what the Bill provides. The wording is sufficient.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 14 agreed to.

I move amendment No. 9:

In page 22, subsection (3), lines 40 to 43, to delete paragraph (b) and substitute the following:

"(b) in relation to fish, the master and owner of the boat concerned commits an offence, and the buyer, handler, weigher, transporter, processor, person storing or documenting and seller of the fish, where he or she could reasonably have been aware that the fish in question contravened a regulation, each commits an offence.”.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 29; Níl, 18.

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Daly, Brendan.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McHugh, Joe.
  • O’Toole, Joe.
  • Phelan, John.
  • Ross, Shane.
  • Ryan, Brendan.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and McHugh.
Question declared carried.
Amendment declared lost.
Section 15 agreed to.
Section 16 agreed to.

I move amendment No. 10:

In page 25, lines 24 to 30, to delete subsection (3).

The section provides, among other matters, that a sea-fisheries protection officer may confiscate fishing gear from a vessel. Subsection (3) states:

Where a sea-fisheries protection officer detains in his or her custody under this section any sea-fish and the sea-fish is likely to become unfit for human food before the matter can conveniently be dealt with by any court, he or she may produce the sea-fish to a designated officer (where he or she is not a designated officer), and, if authorised so to do by the designated officer, shall sell or otherwise dispose properly of the sea-fish.

While we all agree that the law must be enforced when it is being flouted, a level playing field is required. It is widely believed that this is not the case, particularly as regards large factory ships. Common sense practice must apply in the approach to confiscating fishing gear. We do not seek loopholes or ways to flout the law for those who commit offences.

I do not understand the point of deleting the subsection as it is common sense to dispose of confiscated fish and get the best possible price for them. Who will receive the proceeds of any such sale? If a fisherman is subsequently found not guilty of breaking the law, will the proceeds of the sale be returned to him?

The subsection provides for a formal mechanism for the proper disposal of illegally caught fish, which are obviously perishable. It re-enacts the previous subsection (3) of section 231 of the Fisheries Consolidation Act without the provision for the destruction of fish, which was deleted by Dáil Éireann so as to avoid wasting food. This makes eminent sense and I do not know why anybody would want to amend it.

As regards proceeds from the sale of fish, the value of the fish applies towards the fines levied. If there are no fines, the money realised from sale at normal market value is returned to the owner.

Amendment put and declared lost.
Section 17 agreed to.

Amendments Nos. 11 and 12 are related and may be discussed together by agreement.

I move amendment No. 11:

In page 27, lines 22 to 28, to delete subsection (4).

We seek the deletion of this subsection on the grounds that anomalies may arise in terms of the powers given to enforcement officers. Subsection (4) states:

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

It is to be hoped that a case will not arise in which enforcement officers board vessels in an intimidating manner while carrying guns or other weapons. In other industries, are there cases where enforcement officers carry guns when addressing issues with which their Departments are unhappy?

We are in danger of over legislating in the areas of fishing and farming. It could yet transpire that enforcement officers enter the lands of farmers who spread slurry outside a certain period or spread too much phosphorus. Fishermen who work within the law fear that they will be randomly boarded by officials accompanied by gardaí, even where there is no evidence of legal wrongdoing. I too have concerns on the prospect of armed gardaí boarding vessels and would like clarification on the nature of the weapons involved.

I do not see any reason to delete this subsection. There was much debate on Second Stage regarding a provision for firing into vessels. Some Members made a fuss about that matter, although I did not have a problem with it. I foresee circumstances where such actions will be necessary because some fairly unsavoury characters can be met at sea.

Gardaí, Defence Forces personnel and people who are normally entitled to carry arms are highly trained and will not approach fishermen in an intimidating manner. On occasion, however, they may need arms to protect themselves and this should be provided for in the Bill. I expect that such powers would be used sparingly.

I have made my views known on this matter. Senator Kenneally is correct with regard to the power for the navy to fire into fishing vessels. Against my better judgment and to meet the concerns which were expressed, I agreed to the deletion of that section of the Bill. I hope it does not return to haunt those Members who pushed this issue and used it to hold up the Bill. It is now being addressed in other legislation. If any member of the Garda Síochána or a navy or sea-fisheries officer loses his or her life because of the deletion of the section, I hope those who advocated its deletion will apologise to the bereaved families.

We should not ask members of the Garda Síochána, sea-fisheries officers or Naval Service personnel to expose themselves to danger. This section does not make it compulsory to bring arms onto a boat if gardaí or Naval Service personnel board alongside sea-fisheries officers. Subsection (2) clearly states that a sea-fisheries protection officer "shall avoid the use of force except" in certain circumstances. The decision to bring arms on board fishing vessels will always be at the discretion of the commanding officer. If a Naval Service vessel orders a fishing trawler to heave to and the command is obeyed without resistance, armed personnel would be unnecessary in most cases. However, where attempts are made to evade or if the commanding officer, in his or her professional judgment, believes the crew needs protection, this must be provided for.

On the issue of farming regulations, Senator McHugh himself remarked on the difficulties of life at sea and the treachery of the weather. Equally, sea-fisheries officers can find it dangerous to enforce the laws passed by the Houses of the Oireachtas. We cannot ask them to do so with one hand tied behind their backs, which would be the case if this subsection was deleted. We do not send unarmed gardaí to stop bank robberies. Neither should we send unarmed personnel into dangerous scenarios where they could be injured or killed. Something may happen 200 miles out to sea, and, for example, sea fisheries officers, Naval Service officers or gardaí boarding a boat that is running drugs when it is meant to be fishing may be shot or thrown overboard. We cannot expect people to enter such a scenario. From that point of view I have had no intention at any stage of tying the hands of Naval Service or Garda personnel when they are doing their jobs. I ask the Senator to withdraw the amendment.

I am fully appreciative of the Minister's points. If, for example, the Garda gets wind of a bank robbery, it will send special well-armed personnel into the bank with good preparation. I require clarification of whether armed officers will board boats without any indication of malpractice or illegal activity. Will law-abiding fishermen going about their business be subject to random raids by armed members of the forces? It is intimidating and there is a lack of equality over the broad plane of industry. Do armed gardaí go into a bank that is not being robbed when staff are working? I would like some clarification on whether such armed searches go on randomly or if they will take place on boats where there has been indication of malpractice or illegal activity.

It would be at the discretion of the commanding officer, who will make a professional judgment as to whether the law is being broken and if by boarding a boat, personnel would be in danger. As the commanding officer makes the judgment, it cannot be laid down in law. It depends on the professionalism of the commanding officer. If he or she feels a danger exists, the personnel must have a right to be armed going on board in order to protect themselves.

I have not heard of significant complaints, although the power exists already, as does the power to fire on boats. I have not heard any complaints in this debate regarding any abuse of this power, or that raids are being carried out and people intimidated. The discretion must be there, and it should be left there.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 12:

In page 27, lines 29 to 40, to delete subsection (5).

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 18 agreed to.

I move amendment No. 13:

In page 28, subsection (3), line 13, to delete "will be" and substitute "has been".

This section deals with the 48-hour period whereby a boat or trawler would be impounded pending a court order for a further time. If there has been malpractice or indiscretion this is not a problem. The section also stipulates that crewmen must be released after 48 hours. I have tabled this amendment with regard to the timeframe of the court order for further detention being made. The legislation states "will be made" after the 48 hours and I wish to substitute "has been", which indicates it is prior to the 48-hour period.

I do not propose to accept this amendment. We have been advised by the Office of the Attorney General that section 19(3) of the Bill is necessary as worded because of the problems which have arisen in court, where the 48 hour detention of a sea-fishing boat expires during a sitting of the District Court. While the matter might be mentioned to the judge, the formal application for an extension of the detention may not have been made to him or her. This is required to comply with the advice of the Attorney General.

Amendment put and declared lost.
Section 19 agreed to.

I move amendment No. 14:

In page 28, subsection (1)(a), line 20, to delete “instituted” and substitute “instituted,”.

I may seek clarification on this amendment as it could be redundant.

The amendment inserts a comma which is deemed unnecessary.

Amendment, by leave, withdrawn.
Section 20 agreed to.

I move amendment No. 15:

In page 28, subsection (1), line 47, to delete "detain the boat further" and substitute "release the boat".

With regard to the right of appeal on the further detention of a boat, there is a fear among members of the fishing community that they could be embroiled in a legal logjam. It would be unfair on people working in the Department to use the term "procrastination", but there is bureaucracy within the Department of Communications, Marine and Natural Resources. It is evident in every Department, including the Department of Agriculture and Food and the Department of Health and Children. As a result of such bureaucracy, there is a fear of further detention of boats, and that this could be a problem in the long term.

I would welcome the Minister's clarification on this, and I sympathise with Senator McHugh's proposal. As we well know with our court system, God knows how long it can take for an appeal to be heard. It is not beyond the realms of possibility that a fisherman would win the appeal, but would have been without the boat for a period of three, six or 12 months while waiting for the appeal. This may arise even if the fisherman was not guilty of an offence in the first place. The legislation may be unfair to the fisherman in this case, and the Minister might clarify this.

What is feared by the Senators does not happen in reality. In most cases, an appeal triggers a hearing in the Circuit Court, and it is clearly necessary to continue the security which applied during the District Court proceedings. This is done through financial bond or detention of the sea-fishing boat concerned. Most of the time, the person concerned can provide a financial bond, which is sufficient and continues through the Circuit Court proceedings.

I am advised that it is a rarity for a boat to be detained so the bond enables a person to go about his or her lawful business while the appeal process is in train. However, there may be a small number of cases where a person, for one reason or another, is unable to enter into a bond, in which case it will be necessary to detain a boat. The Attorney General advises that the Bill must provide for the detention of sea-fishing boats in cases where no satisfactory financial bond is provided. Not to do so would make a nonsense of the law. The fear that both Senators have is addressed by the financial bond.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 21 agreed to.

I move amendment No. 16:

In page 30, subsection (1)(c), lines 20 and 21, to delete “(including the capacity thereof)”.

This amendment deals with fines not paid within the required time. The Bill reads "in the event of such fine and costs (if any) not being paid within the said time, such fine and costs (if any) may be recovered by distress and the sale of such boat". It is a worthwhile amendment because it observes the principles of force majeure. We seek a general provision, not one that includes the capacities of boats.

The principle of ensuring a real deterrent in the law applies here. Section 22(1)(c) of the Bill necessarily refers to the capacity of the sea-fishing boat. That ensures the State will not be left with mere boards, which may not even have scrap value, while the defendant retains a valuable asset which can otherwise be disposed of. In a recent case an owner did not enter into the financial bond to which I referred in the discussion of the previous amendment and allowed a useless sea-fishing boat, whose capacity had been disposed of, to be forfeited to the State. The State ended up with nothing but the liability for disposing of it. If a defendant pays the relevant fine, the sale of his or her sea-fishing boat will not arise. The provision will act as a deterrent and must be retained in the Bill.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Amendments Nos. 17, 18 and 20 are cognate and amendment No. 19 is related. By agreement, they may be discussed together.

I move amendment No. 17:

In page 30, subsection (4), line 46, to delete "€5,000" and substitute "€3,000".

We want people who break the law to be penalised but a fine of €5,000 is harsh for many offences. We propose a reduction to €3,000. I am reminded of a man from Donegal, whom I met yesterday, who received the grant of planning permission yesterday from the Minister's previous Department, the Department of the Environment, Heritage and Local Government. As politicians do — we enjoy advising people on their entitlements — I asked if he had received his grant. He said he had but that he had also been fined €5,000. That is a story for another day but €5,000 is a massive amount of money for somebody starting to build a house, especially for a minor indiscretion.

Section 24 states that where a person commits an offence and is liable on summary conviction, he or she is liable to a fine not exceeding €5,000 or to imprisonment for a term not exceeding two months, or to both. Amendment No. 19 seeks to reduce this to one month.

These sections bring our legislation into line with most legislation as revised. The limit of €5,000 is an upper limit on a fine which a court may impose on summary conviction of a person for an offence. I underline the word "may" because it is not compulsory but a matter for the court to decide within that limit. We are simply setting the maximum amount that can be levied. The courts use their discretion by reference to the gravity of the offence and the circumstances in which it was committed. The Senator will appreciate that the other House amended a different section of the Bill to allow discretion in the courts over the confiscation of gear. The level of the fine is not mandatory but brings the maximum to the level in most other legislation.

Can the Minister clarify the words on page 30, lines 43-45: "Where the master of a boat fails or refuses to comply with a request made to him or her under subsection (3), he or she commits an offence and is liable on summary conviction to a fine not exceeding €5,000." Did the Minister say "may" or "is"?

It states "is liable on summary conviction to a fine not exceeding €5,000". The fine can be anything from one cent up to €5,000 and is not mandatory.

I thought the Minister put the word "may" on the record.

It is not automatic that a person convicted will be fined the maximum €5,000.

Amendment put and declared lost.
Section 22 agreed to.
Section 23 agreed to.

I move amendment No. 18:

In page 31, subsection (1), line 43, to delete "€5,000" and substitute "€3,000".

Amendment put and declared lost.
Amendment No. 19 not moved.
Section 24 agreed to.
Amendment No. 20 not moved.
Sections 25 to 27, inclusive, agreed to.

Amendments Nos. 21 and 22 are related and may, by agreement, be discussed together.

I move amendment No. 21:

In page 34, subsection (2), line 5, after "and" to insert "may be subject".

This amendment relates to the table of fines in section 28, and specifically to the provision in subsection (5) which states:

Where a person is convicted on indictment of an offence specified in a Table, in addition to any fine the court may impose under this section——

(a) in the case of a conviction under section 8 or 9, it may order the forfeiture of all or any fish and fishing gear found on the boat to which the offence relates...

The phrase "The forfeiture of all or any fish and fishing gear found on the boat" raises a concern about when do we know that an indiscretion has taken place, if at all, and what discretionary powers officials have to board boats and decide at a whim that all fishing gear and fish must be confiscated if they do not have significant evidence. While my amendment contains specifics, what are the Minister's thoughts regarding the section in general? Will we be able to put in place safety measures to protect fishermen if they are not breaking the law or working outside quotas or zones?

Sea-fisheries officers and naval officers may form a judgment and decide to initiate a prosecution if they believe someone is in breach of sea-fisheries law, but they cannot make a decision that a person is automatically guilty and confiscate the gear and catch at that stage. Rather, they will prepare the case for court, where a decision will me made on the confiscation of fishing gear.

As the Senator knows, there was a lengthy debate in the other House on this matter. We altered the legislation to address the point made by the Senator so that where the offence is relatively minor, an indiscretion or whatever else and is a first offence, the courts may decide that they will not confiscate catch and gear.

If a person returns to court for a second or third alleged offence, there is obviously something wrong with the person in question or his or her systems. If the court decides that there are offences, there will be an automatic forfeiture of fishing gear. This provision must remain. Adequate deterrents must be available, which is a cornerstone of Common Fisheries Policy enforcement and sea-fisheries protection.

If the matter is relatively minor, as outlined in the Senator's case, and the District Court decides it results from a genuine error or indiscretion but not a serious breach of law, there will be no confiscation. However, if the person returns for a second or third time, confiscation will be automatic. The principle of the Senator's amendment was accepted, as we acknowledged that genuine mistakes might be made. We have allowed for this in the Bill but cannot go any further.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 34, lines 26 to 36, to delete subsection (5) and substitute the following:

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

Amendment put and declared lost.

I move amendment No. 23:

In page 35, lines 23 to 49, to delete Table 1 and substitute the following:

"TABLE 1 — Fines — Provisions of Chapter 2

Reference Number [1]

Provision [2]

Category* [3]

Fine on conviction on indictment not exceeding amount specified below [4]

1 (a)

Section 11, 14 or 15 in so far as it relates to a contravention relating to capacity plans of a sea fishing boat,

Category 1


Category 2


Category 3


Category 4



Illegal nets or other equipment, or

Category 1


Category 2


Category 3


Category 4



any other contravention or failure of compliance.

Category 1


Category 2


Category 3


Category 4



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

Category 1


Category 2


Category 3


Category 4



Section 12 or 13

Category 1


Category 2


Category 3


Category 4


*Category 1: fishing vessels with a waterline length <10 metres;

Category 2: fishing vessels with a waterline length >10 metres and <18 metres;

Category 3: fishing vessels with a waterline length >18 metres and <24 metres;

Category 4: fishing vessels with a waterline length >24 metres.".

It is difficult to imagine what it would be like for a fisherman and his crew to have someone board their boat on the grounds that there may have been an infringement of the law. That the fisherman may go through the ordeal of having his gear and boat confiscated and being arrested and held for a period of up to 48 hours is a genuine concern. We need to clarify how we can be seen to support an industry if we are prepared to take crewmen and confiscate their boat and gear on the grounds of suspicion.

As the Minister said, these issues could be cleared up in the District Court, but a lot of time will be wasted by going through that process. For example, bluefish fishermen have already exceeded their quotas for this year. Time is important for fishermen. We need to deal with those who are flouting the law, but the men who are acting within best practice, guidelines and regulations may see officers with firearms boarding their vessels, have their gear and boats confiscated and be detained for a period of 48 hours when it may transpire that, due to some numerical mistake on a log book, they may not have broken the law.

To put this matter in perspective, it seems that farmers may face six months in prison if they do not comply with the nitrates directive, a parallel I used previously. What process must the farmer go through? Must the farmer stop farming during the trial period, as it were, in which it will be determined whether he or she complied with the directive? The answer is "No" but fishermen who may be innocent must stop fishing.

Senator Kenneally is wagging his head like a little pup and thinks this is nonsense but it is not. Fishermen who may be innocent could step off their boats, go to the District Court and find that six weeks of their time and effort has gone. This is my concern regarding the Bill.

This is an area of the Bill on which I have a difference of opinion with the Minister in terms of what we are doing, as many of the sanctions being laid down, particularly in respect of some of the smaller operators, are far too severe for silly minor offences. Such offences can happen even with the best will in the world. I will not rehash my comments on Second Stage when I gave a number of examples.

The matter relates to the administrative sanctions, which we must introduce at some stage. There is no hindrance to doing so, as it has already been done in the fishing industry regarding inland fisheries. We must move in that direction. I am not speaking about the large operators, rather the smaller ones in the context of minor offences. I had hoped we could have moved in that direction on Committee Stage or Report Stage. The Minister was reluctant to do so and I accept that he would have been required to return to the other House. I also accept his previous commitment that once this Bill is enacted, he will sit down with the various fisheries organisations and, between them, come up with some realistic level of sanctions with which we could all be happy.

I gave a number of examples, such as how an angler is treated compared with a salmon driftnet fisherman. For the same offence, the sanctions are completely different, which is an issue we must address. This is my major bugbear with the legislation and I ask the Minister to address it. I thank him for the commitment given to meet with sea-fisheries organisations after the Bill is enacted to find a solution acceptable to everyone.

We have had a long debate on the amendments before us. I accept the points made by both Senators on relatively minor offences. The sea-fisheries organisations do not accept that we have sought to meet the concerns of those who make genuine mistakes. When the same mistakes are repeatedly made I become sceptical that they are genuine. Some people overfish by a small margin but do so on a consistent basis and this must be taken into account.

I have made an effort to grade fines as much as possible. Senators should not become overly emotive on the issue of naval officers being armed. We have dealt with the amendment that addresses this and the officers are not armed when they board a vessel unless it is necessary.

Concerning Senator McHugh's point, no boat or fishing gear is confiscated on suspicion. If naval officers believe the law has been breached a 48-hour detention period allows them to verify suspicions and prove to the court prima facie evidence of a breach of regulations. Once a bond is posted, equivalent to the value of the illegal catch, the detainees are free to go unless the court orders otherwise. The court rules on this matter and evidence must exist. This is reasonable and is comparable to gardaí raiding warehouses for illegal cigarettes. Such places would be sealed and guarded until the truth can be established.

Concerning Senator Kenneally's comparison between sea anglers and sea fishermen, I have no problem accommodating a minor breach and dealing with this promptly. However, I must also deal with the reality that large-scale operators are acting illegally to the detriment of genuine fishermen, about whom the Members are concerned. These large-scale operators are causing problems and taking fish that should be left to smaller operators. All Senators and Deputies accept this reality and the Bill must address this large-scale illegal activity.

This Bill must be enacted urgently. After the Bill is enacted we will meet with the sea-fisheries organisations and attempt to find some compromise. However, I will not facilitate those who are criminally involved in gaining an advantage, thereby putting the livelihoods of our fishermen at risk. Therefore, I will not change any provisions on fines in this Bill as they are necessary to ensure a real deterrent exists for those acting in a criminal manner. Those who operate genuinely and make mistakes, as referred to by Senators McHugh and Kenneally, may be accommodated in the future.

Amendment put and declared lost.
Section 28 agreed to.
Sections 29 to 31, inclusive, agreed to.

I move amendment No. 24:

In page 38, subsection (2), line 3, after "appealable" to insert the following:

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

This section may lead to one being guilty until proven innocent. Many high-profile examples can be cited of people convicted despite their innocence. Section 32(2) states "The judge of the Circuit Court on an appeal under subsection (1) may vary, confirm or reverse the order and his or her decision is final and conclusive and not appealable.” A decision on a person’s innocence or guilt is made within a defined period of time. A 48-hour period is insufficient to determine a person’s guilt. We should include my amendment to cater for this fact.

The principle of the amendment is dealt with because the judge of the Circuit Court is free to refer a point of law to the High Court. If there is no point of law to refer to the High Court the decision of the Circuit Court judge on a conviction or dismissal of a case is final. While the wording of the section may appear blunt, one has the right to bring a point of law to the attention of the judge and request the judge to state a case to the High Court.

Amendment, by leave, withdrawn.
Section 32 agreed.
Sections 33 to 73, inclusive, agreed to.

I move amendment No. 25:

In page 59, between lines 29 and 30, to insert the following new subsection:

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

From what the Minister has said it appears he will examine further avenues for progressing this debate and going back to a consultative stage with the fishing organisations. That is welcome. There is a belief that this process of deliberation was not exhausted as it should have been. On the policy directions that could remedy any matters that might give rise to anomalies in the future, this amendment is worth consideration on the grounds that there will be anomalies and submissions. We must progress collectively. The Department and all parties must work for the fishermen. It is important that the Minister consider this amendment.

As we are on the last section, I move that we conclude Committee Stage now.

Is that agreed? Agreed.

The purpose of this amendment was unclear until the Senator spoke. The Senator's point is general rather than confined to this area of the register of fishing boats. I reiterate what I have said on meeting with those in the industry and discussing in detail its future. If there are anomalies, as the Senator refers to them, we can deal with them at the time. The amendment refers to objections and submissions, but these are not mentioned in the section. The registrar of fishing boats, with the assistance of local registrars, has the job of maintaining and updating, as necessary, the register of fishing boats without the need for ministerial intervention. That is a long stated position.

This Bill and the Fisheries (Amendment) Act 2003, which is being amended here, sets out the role of the Minister, which is to set policy. That is important. The registrar general has to implement that policy. The amendment would involve confusion between the policy-making role and the executive role and could result in a Minister becoming involved in individual licensing cases. The purpose of the setting up of the register of fishing boats was to remove any political influence and interference in this process. It has worked well and the rows that occurred occasionally over the past 20 years about one area of the country being looked after better than another and licences being issued are largely in the past. Everybody in the industry believes that the licensing regime is based on set criteria and that is how it should remain. It is not desirable to change that and therefore I do not accept the amendment.

Amendment put and declared lost.
Sections 74 agreed to.
Sections 75 to 104, inclusive, agreed to.
Schedules 1 to 3, inclusive, agreed to.
Title agreed to.
Bill reported without amendments.

As I understand it no amendments are to be proposed on Report Stage, therefore, I propose that we take Report Stage now.

Report Stage was scheduled to be taken tomorrow. If it is in agreement for consideration to look at some amendments for Report Stage we would be prepared to take it at the time allocated, namely, 2 p.m. Would that give enough time to circulate the amendments?

It is listed for 2.30 p.m. tomorrow. Does Senator McHugh mean this afternoon or tomorrow afternoon?

We need time to submit amendments for Report Stage.

I do not understand the procedure.

We must have time for the amendments to be tabled and there might not be enough time for the staff to circulate them.

I suggest that Report Stage be taken this afternoon if possible.

We must make a definite decision on this. There was an allocated time and if time is sufficient for the amendments——

We had a slot from 2 p.m. to 3.30 p.m. today for Committee Stage. Report Stage would probably not take that long. Perhaps we could take Report Stage at 3 p.m. if the Opposition agrees.

If the officials have the capacity to circulate the amendments——

Does the Opposition have many amendments?

We have a few.

If there are several amendments, to be fair to the staff, they would have to be printed and circulated.

The amendments would be similar to those taken on Committee Stage.

I have been informed that the Leader wants Report Stage taken tomorrow.

That is fine. I propose that Report Stage be taken at 2 p.m. tomorrow.

Is that agreed? Agreed.

Report Stage ordered for Thursday, 23 March 2006.
Sitting suspended at 1.40 p.m. and resumed at 3.30 p.m.