Fishing industry up in arms over penalty points u-turn
Taoiseach and acting Minister for Agriculture, Food and the Marine, Micheál Martin, has enacted ‘highly controversial’ penalty points legislation with zero fishermen consultation and in spite of stridently opposing it while in opposition.
“This is quite simply a scandalous and very misguided step,” commented Seán O’Donoghue, chief executive of the Killybegs Fishermen’s Organisation.
“We have made our point regarding the penalty points measure on numerous occasions and we were fully supported by Fianna Fáil while in opposition.
Level playing field
The KFO is not against the penalty points regime which is an EU requirement but says “there must be an equitable manner of administering this”.
Page 70 of the Programme for Government commits to ‘implement a fair EU points system in order to protect fish stocks and ensure the release of suspended EU funding’.
“The signing of the Statutory Instrument by the Taoiseach has come completely out of the blue. Putting it mildly, it is neither fair nor reasonable, and runs contrary to the Programme for Government of introducing a fair system.”
Fishermen nationwide are “apoplectic” and the KFO leader is calling for an amendment to the Statutory Instrument.
“Offending parts must be removed, such as the burden or proof to be changed to beyond reasonable doubt, no right of appeal to the High Court except on a point of law.”
And if a fishermen is successful in the High Court, the penalty points will still remain on the licence.
Background
SI 318/2020 brings into effect a penalty point system for Irish vessels fishing in Irish and other EU member states’ waters, and ‘foreign’ Community vessels fishing in Irish waters.
The Sea-Fisheries Protection Authority (SFPA) is the appointed body who will assign the penalty points and will also establish a ‘Determination Panel’ to determine whether a serious infringement has occurred.
The panel will comprise three ‘independent professionals’ nominated by the Attorney General and appointed by the SFPA. Their decision will be by simple majority.
If requested by the licence holder, the panel will hold an oral hearing for the purposes of determination.
Where an SFPA official detects an alleged serious infringement, he/she shall prepare and forward a report to the Authority who will send the report and any material collected to the Determination Panel for determination if a serious infringement has occurred.
The SFPA shall, at the same time, furnish the fishing vessel licence holder with a copy of the material. The licence holder will have 30 working days from the date of notification to make submissions to the Determination Panel.
The Determination Panel may look for additional information from the SFPA or the holder of the fishing licence relating to the issue under determination.
The Determination Panel shall communicate their determination and reasons to the SFPA and the licence holder.
If the licence holder is deemed to have committed a serious infringement, the SFPA will assign the points in relation to Irish vessels. In the case of a foreign vessel, it will notify the foreign licence holder of the decision.
Where the holder of the foreign licence is not contactable, the master of the vessel will be notified that the flag Member State concerned will be advised of the detection of a serious infringement.
The SFPA will then notify the Licensing Authority after the period allowed to make an appeal has expired whether an appeal has been made and in the case where an appeal has been made and was unsuccessful.
Points retention
Points assigned to the holder of an Irish licence remain assigned regardless of any criminal proceedings pending or the outcome of any such proceeding.
Upon notification, the Licensing Authority shall record the points assigned to the licence holder relating to the Irish sea-fishing boat concerned. Points notified to the Licensing Authority shall be recorded as applying from the date of detection of the serious infringement concerned.
Points notified to the Licensing Authority will be recorded against the fishing capacity of the Irish sea-fishing boat concerned and remain so attached even if the boat or the capacity (or any part thereof) is subsequently de-registered or transferred, unless any or all of the points have been deleted.
Points assigned to the fishing capacity associated with the licence will remain attached regardless of any transfer, division or sale of that fishing capacity, or any de-registration of the Irish fishing vessel concerned.
Where fishing capacity from more than one Irish fishing vessel – in respect of which points are assigned – is combined and used for the purpose of an application for an Irish licence relating to another Irish fishing vessel, the total number of points assigned in respect of those first-mentioned boats shall transfer to the holder of the new licence.
The Minister for Agriculture, Food and the Marine will appoint an Appeals Officer/s nominated by the Attorney General who are practising barristers or solicitors of not less than five years standing.
An Irish or foreign licence holder can appeal to the Appeals Officer not later than 30 working days from the date of the notification of the proposal by the SFPA.
Where a SFPA Officer has reasonable grounds for believing that a person is committing or has committed an offence under Regulation 14, he/she may serve a notice in writing (‘fixed payment notice’) on that person. That person then has 28 days to pay the SFPA the €200 notice.
This instrument adopts the requirements of Article 92 of the Council Regulation (EC) No 1224/2009 of 20 November, 2009, and Title VII of Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011.
In June 2018, a motion to rescind a Statutory Instrument giving effect to a penalty point system for serious fishing infringements received majority Dáil backing. This was the third government attempt to introduce a new system of sanctioning fishermen, in line with an EU directive under the Common Fisheries Policy.
Reasoned opinion
On July 2, the European Commission sent a ‘reasoned opinion’ to Ireland for failing to fulfil its obligations under Council Regulation (EC) No 1224/2009. This Regulation sets down a Community control system to ensure compliance with the rules on establishing a point system for fisheries-related serious infringements committed by masters and licence holders of vessels flying the flag of Ireland.
The Commission considers that Ireland ‘has not established a system that assigns an appropriate number of points to masters of fishing vessels who commit serious violations of the common fisheries policy rules’.
The opinion adds that Ireland has ‘failed to put into operation the current national legislation implementing the point system for licence holders.’
Ireland was given three months to address the issues; failure to do so, the Commission could decide to refer the case to the Court of Justice of the European Union.
