Secondary legislation giving effect to an EU regulation covering serious infringements of common fisheries policy rules has been described as ‘not fit for purpose’ by Independent TD, Thomas Pringle.

TDs from across the house have also tabled a Notice of Motion calling for SI 125 2016 to be annulled.PenaltyPoints.jpg

Big haul of herring alongside MFV Vigilant (March 2015)                                   Photo John Cunningham

In a statement, the deputy outlines his Parliamentary Question to marine minister, Simon Coveney, which he said he had set down on foot of concerns expressed by Donegal fishermen.

 ‘Coveney in his response admitted the new fishing Penalty Point Statutory Instrument he signed on March 1 of this year, is inherently flawed. The Minister gave an extensive reply to my PQ in which he indicated he will introduce primary legislation which in his own words he claims will give a sound legal basis to a scheme that implements the EU points system for licence holders.

‘If the Minister is planning to introduce primary legislation, he’s confirming the fact that the existing new Statutory Instrument is not for purpose.’

SI 125, 2016 replaces a previous government order that was the subject of two High Court challenges. The High Court made formal orders striking down as ‘unconstitutional, provisions of a penalty point system for fishermen who engage in illegal, unreported or unregulated fishing.

The State was found to have failed to recognise the absence of principles and policies to introduce a novel way of determining serious infringements through the imposition of penalty points on holders of fishing licences.

According to SI 125, 2016, Points assigned to a holder of an Irish licence remain assigned, regardless of any criminal proceedings pending, or the outcome of any such proceedings, in respect of the serious infringement concerned. 

Industry reacts

“It is inconceivable that anyone would draft legislation [that] allows penalty points to be applied to an Irish fishing licence after they have been acquitted in Court,” remarked Francis O’Donnell, CEO of the Irish Fish Producers Organisation.

“What is worse is that a minister has signed this in view of the High Court decision. The Irish fishing industry was not consulted on this issue which allows the Sea Fisheries Protection Authority to apply points to a licence holder even though they have not committed any offence.”

The chief executive added it was an “incredible and pernicious development” in Irish fisheries, and was “mind boggling” that anyone could stand over this legislation.

Recognising the legal obligations on Ireland to introduce a penalty point system, O’Donnell however said he was “totally frustrated and disillusioned” at the approach being taken:

“Our objections and questions arise from a sincerely deep-seated frustration at the processes which have been ignored, and the tenet of the original SI which has now been struck down and the tenet of the new SI that is almost identical.”

A letter from the IFPO to Minister Coveney and seen by Inshore Ireland, sets down fourteen questions.

I would like you to answer directly to me and my board who have been excluded from this process but will ultimately have to pick up the pieces in the coming months. 

Speaking to Inshore Ireland, Francis O’Donnell said he had been given a “white wash” reply that amounted only to slightly more than a reworked press release.

State concern

In his reply, Minister Coveney said, inter alia, that fishermen should be assured that the State was taking seriously their concerns that a fishing industry could be maintained for them and future generations:

‘The conservation of this precious and valuable resource is in everyone’s interest and is vital for the future of the Irish fishing industry.

‘You will appreciate that an effective regulation implementing the EU Points system for foreign and Irish fishing vessels who commit serious offences in our 200 mile zone is necessary to protect the vast majority of our law abiding industry and to preserve the fishing resources for all Irish fishermen and for future generations.’

Penalty points were introduced in 2014 and are similar ‘in principle’ to that for driving offences. A fishing licence holder may accumulate points over a period of time, eventually leading to the licence being suspended. In extreme cases, ‘persistent serious infringements’ could lead to the permanent withdrawal of a licence.

Statement to Inshore Ireland

‘The Sea-Fisheries Protection Authority (SFPA) is reviewing its procedures for implementing the points system for serious infringements of EU fisheries law following the introduction of the new legislation governing the system in Ireland. It will be publishing guidance notes over the coming weeks after consultation with the Sea Fisheries Protection Consultative Committee and the finalisation of the necessary appointments to the points determination panel.’

Inshore Ireland sent questions to DAFM arising from a general press statement (March 18) issued by Minister Coveney regarding the penalty point system:

Having regard to Regulation 404/2011 Article 126 (1): ‘The number of points for serious infringements shall be assigned in accordance with Annex XXX to the holder of the fishing licence for the fishing vessel concerned by the competent authority of the flag MS.’

1) Minister Coveney statement:

(a) ‘In the majority of infringement cases, the licence holder is a different person or legal entity to the person on the vessel (the skipper) who commits an offence and who will be prosecuted. Therefore, there is no connection between the assignment of points to the licence holder and the prosecution by the Courts of offences under fishery law.’

Inshore Ireland: 

This implies ‘the person on the vessel’ could be separately prosecuted?  

  • If so, on what grounds if not for ‘infringement offences’ imposed on the licence holder and outlined in Annex XXX?
  • If so, what are the sanctions and where are they noted in the Act/Reg/SI?

DAFM reply:

‘The Minister’s statement is accurate as the person on the vessel is always the person prosecuted on the grounds that he is alleged to have committed a criminal offence under the Sea Fisheries and Maritime Jurisdiction Act 2006. The sanctions for such offences are a matter for the Courts alone. Such prosecutions have nothing to do with the sanctions regime provided for in EU Regulations 1224/2009 and 404/2011. Therefore, the last two bullet points do not arise.’

2) Minister Coveney statement:

(b) ‘In the revised system the infringement is only alleged until the new Determination Panel consider the evidence and this evidence is provided to the licence holder, who may make a submission to the DP before the panel consider the matter, thus re-balancing the burden of proof.’

Inshore Ireland:

Is this not a contradiction given:

‘8(1) Subject to paragraph (2), points assigned to a holder of an Irish licence remain assigned regardless of any criminal proceedings pending, or the outcome of any such proceedings, in respect of the serious infringements.’

DAFM reply:

‘In the event that there is a criminal prosecution, as the Minister has made clear, there is no connection between the assignment of points for a serious infringement and a prosecution for a fishery offence. The fact of a criminal prosecution or its outcome, has no bearing on the assignment of points.’

3) Minister Coveney statement:

‘The EU regulation requires that points be assigned from: (a) the date OF THE DETECTION of the serious infringement and will remain on a licence for three years from that date.’ Whereas: 404/2011 Article 126 4 states: (b) ‘The points are assigned to the holder of the licence on the date set IN THE DECISION assigning them’

Inshore Ireland: 

Is (a) correctly transposing (b)?

DAFM Response:

‘Minister Coveney’s statement is correct as points are assigned to the licence from the date of detection and this is wholly in compliance with EU law. Regulation 404/2011 is an implementation regulation of Regulation 1224/2009. Article 126 must be read in conjunction with Article 125.

‘Article 125 refers directly to the setting up the system for the assignment of points under Regulation 1224/2009. Article 92.4 (1224/2009) refers to the date of committing the serious infringement. Therefore that is the date the application of points under Irish law must apply from, and not the date of the assignment of the points. Article 126 (404/2011) refers to the administrative act of assigning the points i.e. the date the decision is made. Clearly points cannot be assigned until the Determination panel (or, where relevant, the Fisheries Adjudicator) has made that determination.

The answer is that a) correctly transposes b).

4) Minister Coveney Statement:

‘….the position is that points will remain ‘in suspense’ pending the outcome of an appeal. If the appeal fails, then the points assigned under the old regulation will be abolished. In any event, they will not be acted upon in advance of the judgment and will not be combined with any new points assigned under the new regulation.’

Inshore Ireland:

Does this statement not again contradict 8(1) above?

DAFM reply

‘For the reasons set out at 2) and 3), the answer is that there is no contradiction.’