Joint Committee on Agriculture, Food and the Marine debate -
Tuesday, 11 Mar 2014

European Union (Common Fisheries Policy) (Point System) Regulations: Sea-Fisheries Protection Authority

Chairman

I welcome Dr. Susan Steele, chairperson, Mr. Micheál O'Mahony and Mr. Andrew Kinneen, members of the Sea-Fisheries Protection Authority, and I thank you all for coming before the committee to brief us on SI 3 of 2014 concerning the European Union (Common Fisheries Policy) (Point System) Regulations for 2014.

By virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of the evidence you are to give this committee. If you are directed by the committee to cease giving evidence in relation to a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

I now call on Dr. Steele to make the authority's opening statement.

Dr. Susan Steele

We welcome the invitation to attend today's meeting of the Joint Committee on Agriculture, Food and the Marine to discuss SI 3 of 2014, which establishes Ireland's system for issuing points to the licence holders of fishing vessels in serious infringements of the Common Fisheries Policy. We would like initially to describe the context of this fisheries offences point system, then we propose describing the EU obligations and finally, how this will be implemented within Ireland.

Beginning with the context, the point system for licence holders is just one tool in a tool box to deal with non-compliances which might be detected by the sea fisheries protection officers.

The Sea-Fisheries Protection Authority's legal obligation and primary strategy is to promote compliance and deter non-compliance for the benefit of lawful fishermen and the support of sustainable commercial fisheries. We want to spend our days and nights at work preventing non-compliance, rather than dealing with non-compliance. To put it another way we want to stop the behaviours of fishermen who are infringing, not to spend our time catching infringement. So while we will focus on this system today for dealing with non-compliances, we ask the committee members to see how these points fit within an overall compliance strategy within which we operate.

A further necessary context here is that of the system of sanctions within the implementation of regulations and the pursuit of compliance. Sanctions for non-compliances are a normal part of implementing regulations in any walk of life. Sanctions for infringements serve two main roles; they primarily exist to deter would-be infringers from infringing in the first instance and they exist as a form of punishment for the actual infringers. The Sea-Fisheries Protection Authority is committed to being a fair regulator and that requires a graduated and proportionate system of sanctions, reflecting the extent of wrongdoing. We are firmly of the view that there is a substantial difference between the proverbial sheep and lamb. Sanctions can only serve their primary deterrent purpose if they are allocated in a measured way, sparingly with maximal effect.

By way of final context, points for serious infringements are not something that should concern the law-abiding fishermen, nor the fishermen who might have a once-off minor administrative problem. This system is something which will impact profoundly on those whose fishing vessel licence is repeatedly used to disregard in a deliberate and premeditated manner the laws of our State set down by these Houses. From our work with the fishing industry we are aware of the difference between those who break the rules repeatedly and deliberately as part of their business strategy and those who break the rules through poor judgment in a moment of time.

Mr. Andrew Kinneen

I would like to continue our chairperson's statement by giving the European context for the points system. As a member state of the European Union, Ireland implements the Common Fisheries Policy where there exist various obligations for fishers and also for member state authorities within that regulatory framework. For the purpose of today's discussions there are four particularly relevant European Union regulations. I refer the committee to European Council Regulation No. 1005 of 2008 and European Council Regulation No. 1224 of 2009.

These regulations contain general provisions requiring that sanctions for fishery non-compliances should be effective, proportionate and dissuasive. The control regulation requires member states to ensure that any enforcement sanction effectively deprives those responsible for any illegal fishing of any economic benefit derived from the infringement, and that sanction take into account the value of the fishery products and-or the assessment of the impact on the fishery resource and the marine environment concerned. The control regulation additionally sets down that one component of the required sanctioning system in the case of certain serious infringements must include the imposition of points for licence holders. Ireland is meeting this obligation through SI 3 of 2014.

A key part to implementation of this system is to understand what is a serious infringement. The EU Commission established the concept of a serious infringement and a points system for serious infringements with the aim of ensuring compliance with the rules of the CFP and a level playing field in all EU waters. Everyone is agreed that there has been an absence of a level playing field when it comes to applying sanctions to serious infringements. There is a great variety within the member states on what sanctions are applied and how they are applied. The European regulations therefore created a defined list of infringement categories that might be considered as serious infringement, if they are sufficiently grave. Therefore, in order for an infringement to be considered "serious" it must fall into one of the defined categories and be sufficiently serious.

The competent authority in the member state is required to make a judgment of the gravity taking into account criteria such as the nature of the damage to the stock, the value of the fish taken, the extent of the infringement or repetitive misbehaviour. There are 12 categories of serious infringements which attract points. They are listed individually. We also have an annex, with the paper supplied, which goes into detail. To characterise them generally they try to capture infringements where a person operates on the public resource without an entitlement; that is, the person does not have a licence, takes under-size fish or does not respect limitations, quotas and so on. While I will not go through them individually, I ask the committee to be aware that is the general theme.

Each of the 12 categories is ascribed a defined number of points in the implementing rules for the control regulation. When an infringement falls into one of those categories, and is deemed to be sufficiently grave to be regarded as a serious infringement, the authorities are obliged to allocate that number of points to the licence holder. The annex makes a reference to the serious infringement and the points that go with it. The number of points to be allocated is set down for each category and there is no discretion for the authorities once an infringement has been deemed serious. The annex will provide full details of what points are applied to each of the 12 serious infringements

The deterrent effect of points on non-law abiding licence holders is two-fold. There is the potential cumulative effect of points assigned. The European Union regulations set down that when 18 points have been accumulated the licence should be suspended for a period of two months. This is not discretionary. The vessel would then go back to fish with those 18 points still on the licence, and any further points would result in further and longer suspension periods. Specifically at 36 points, where another threshold is reached, there should be a further four months suspension. If the licence continues to be associated with serious infringements the accumulation of 54 points should result in eight months suspension, and 72 points should result in a one year suspension, if repeated serious infringements continue to be associated with that licence, despite four previous suspensions, then the requirement is that the licence be permanently withdrawn. The EU regulations set out that points remain on the licence for a period of three years after the last serious infringement. Thus even if the points from one serious infringement are almost three years old, a subsequent serious infringement would add new points and prolong the duration of the earlier points assigned for a further three years. There is a specific provision in the EU scheme, for licences with more than two but less than 90 points, for two points to be deleted from a licence if the vessel were to undertake to fish in certain favourable manners. The voluntary actions which might result in this deletion are as follows.

For example, if a fishing vessel was not obliged to carry a VMS monitoring system - smaller vessels are not so obliged - but undertook to do so, as a show of good faith that they would change their behaviours, that would be recognised. If the licence holder volunteers the vessel for a scientific campaign to improve gear selectivity, which would obviously help conservation efforts, that would be recognised. If the licence holder adopts a reduction of 10% fishing opportunity for a year, in other words take a hit themselves by way of pay-back for the damage caused by their misbehaviours in not complying with the CFP, that would be recognised. If the licence holder joins an eco-labelling scheme with the focus on well-managed sustainable fisheries, that would be recognised. The committee may be familiar with these where the Marine Stewardship Council or others go into detail on the fishing methods and the efforts made to minimise discards or to use conservation-friendly gears. One of these voluntary methods could be used to delete two points in a three year period.

In addition to potential suspension or withdrawal for repeat offenders there is a further deterrent effect for licence holders subject to points. The EU regulations set out an explicit obligation for points to accompany the licence if the vessel is sold, and for potential licence sellers to inform would-be purchasers. In an Irish context this is relevant to the sale of fishing capacity and the sale of any capacity associated with a licence will bring the number of points with every portion of that capacity to a new licence.

Thus there is likely to be an immediate marked effect of devaluation of the potential market value of vessel capacity with points assigned to it. Obviously such an effect would be realised only if any of the capacity associated with the licence were to be put up for sale.

Mr. Micheál O'Mahony

Having set out the EU scheme, I will describe how the statutory instrument established the points system within this State. Some terminology used within the Common Fisheries Policy, CFP, is the concept of a flag state, the state in which the vessel is registered, and the coastal state, the state which has jurisdiction over the waters in which the vessel fishes or lands. One basic principle of the CFP is that the flag state issues licences or authorisations while the coastal state has the primary obligation for control and enforcement within its waters. The matter of points, therefore, straddles the obligations of the coastal state and the flag state.

Arising directly from the extent of non-Irish fishing in the Irish exclusive economic zone, EEZ, Ireland's fishery control obligations as a coastal state are far in excess of its obligations as a flag state. SI 3 of 2014 covers all vessels fishing in waters under Irish jurisdiction and Irish vessels wherever they fish. Thus three scenarios arise: Irish vessels with serious infringements in Irish waters; non-Irish vessels with serious infringements in Irish waters; and Irish vessels with serious infringements in non-Irish waters. The process begins with the detection of an infringement by a sea-fisheries protection officer, usually an officer of SFPA or the Naval Service. This typically takes place during an inspection at sea or at landing, but might also arise in the context of administrative cross checks, for example fishing logbook data against vessel monitoring system, VMS, data or fish sales records. SFPA is then required to assess if the infringement is serious. This is determined by whether it is within one of the categories and is sufficiently grave.

If an infringement is deemed serious, SFPA would then notify the licence holder of that decision and the resultant intention to assign the associated number of points. At this stage, there exists a decision by SFPA, an associated proposal to apply points to that licence and a notification of that proposal. No points have yet been assigned. The licence holder can appeal this decision within 21 days of the notification by SFPA. The statutory instrument provides for a specific appeals officer, the administration of which is a matter for the Department of Agriculture, Food and the Marine. The appeal should normally be decided within 28 days. If the appeal is upheld then the points will not be assigned. If the appeals period expires, or the appeal is not upheld, then the proposal to assign points stands. SFPA would then inform the licensing authority of the flag state of the occurrence of the serious infringement and the associated need for the assignment of points to that licence.

Non-Irish vessels in Irish waters are subject to the same procedure, with notification by SFPA to the flag state authority of the intention to assign points, notification to the licence holder or skipper of the intention to assign points and, if exercised, the right of appeal by the non-Irish licence holder to the Irish appeals officer. Following that process the SFPA would inform the licensing authority of that flag state of the points to be assigned to that licence.

The third category mentioned at the outset, an Irish vessel in non-Irish waters, is also provided for in the statutory instrument, whereby SFPA, upon notification by the coastal state of a serious infringement by an Irish vessel outside of Irish waters, would inform the Irish licensing authority of the points to be assigned. In that context, the natural justice and appeals considerations rest with the coastal state, and SFPA would act only following the expiration or exhaustion of those.

A key consideration in all of this is the assessment of whether an infringement within one of the 12 categories is deemed by SFPA to be serious or not. We are emphatically of the view that sanctions have maximal effect if they are used in a proportionate manner. Would-be offenders should be aware that more serious infringements have more serious consequences. Accordingly, SFPA has drafted procedures to inform this decision-making process. Our priority is to have a system that minimises subjectivity and maximises consistency, fairness and probity, and ensures a proportionate outcome.

We specifically envisage the assessment of seriousness to rest with an internal multi-person group, which might include representatives of the Naval Service and-or other expertise where appropriate. We have taken legal advice on our draft procedures and we await final outcomes of those considerations. The statutory instrument provides for publication of guidance around criteria under which the level seriousness is assessed and we intend doing so once we have finalised them.

The decision to regard an infringement as serious, and thereby liable to the assignment of points to the licence, is a separate process to all other sanctions that may apply. It may well be the case that, in addition to points for the licence holder, a prosecution of the skipper might also be considered appropriate in the case of serious infringements. That decision would follow the presentation of a case file to the Director of Public Prosecutions. Such a prosecution would take its own due course through the Irish courts and might result in conviction or acquittal of the skipper, but the decision to apply points to the licence holder would stand regardless of such outcomes.

Dr. Susan Steele

SFPA welcomes this broadening of the tools available to us to ensure timely, proportionate outcomes in serious infringements. It is our aim that this tool be applied fairly and to the benefit of the Irish fishing industry. This system will protect the valuable Irish marine resource by stopping repeat offenders. We are conscious of the responsibility this extra tool brings with it and we aim to be transparent, fair and proportionate in our workings within the system. In a time of limited staff resources the implementation of this system is a challenge for the SFPA but in the journey to compliance this is an extremely important tool. We welcome the committee's feedback and comments.

Chairman

I thank each witness and invite questions from the members.

Senator Brian Ó Domhnaill

I welcome the members of SFPA. Is it expected that this new system will run concurrently with or in addition to the current criminal sanctions in place? The European Commission wants to move towards a more even system across the EU and this is probably a step in that direction with Ireland going down that road. Ireland is probably one of the only European countries, particularly the maritime jurisdictions, which relies predominantly on criminal as opposed to administrative sanctions. Spain and Portugal use predominantly administrative sanctions. Spain is one of the biggest fishing communities in the EU. The Minister acknowledged in the Seanad that there is a Bill which might be incorporated into new legislation. Has there been any discussion between the authority and the Department officials on the drafting of that legislation?

Has SFPA any view on whether it will be more advantageous given the new penalty points system in place across Europe and whether Ireland should follow quickly by bringing in legislation to have a layer of medium level, administrative sanctions rather than a sea-fisheries protection officer going out? The sea fisheries protection officer can issue a warning but is precluded from issuing an on-the-spot fine. The case must ultimately go to court, even for a relatively minor infraction. Then there is the additional consequence of the gear and the catch being confiscated. There are additional penalties and the court fine. The District Court can deal with only certain cases because it depends on the catch and the gear, and it clogs up the court system. There is a multitude of issues.

There is a need to be very harsh and severe on serious fishing infractions because it is a natural resource and if there are vessels out there that are flouting the law they must be dealt with aggressively. However, there are relatively minor offences such as having a few extra boxes of fish on board and markings not being right, and they are referred to in this statutory instrument. What is SFPA's view on that?

The witnesses may not have with them today figures on the number of confiscations and infractions dealt with by the Sea Fisheries Protection Authority in 2012 and 2013. Perhaps they did not expect this question. If the information is not available perhaps it can be passed on to the committee later. Would the witnesses foresee more buy-in from fishermen if a medium layer existed?

Deputy Martin Ferris

The witnesses stated they would welcome feedback and comments. I see this as another nail in the coffin of Irish fishermen and women. Every debate we have had since I came to the House in 2002 has been about regulation and the criminalisation of fishermen and women. Now it is about penalty points, or whatever one wants to call this. No Government has ever dealt with the problems facing fishing communities, which are a lack of quota, the fact the initial negotiations were disastrous and the continuous attempt to criminalise the industry and the decent and honourable people who brave the elements to feed their families. This is a continuation of it. It will make it more and more difficult for people to remain in the industry.

At the start of our meeting we had a discussion on the situation facing the inshore fleet and fishermen. People have not been to sea since the second week of December. They have no income whatsoever. They cannot obtain social welfare because they are categorised as self-employed. Some crew members have had to go to community welfare officers with cap in hand to try to get a few bob to feed their families. Today we have heard about more restrictions on people trying to put food on the table.

I have known fishermen all my life. I have been part of the industry. I know very few who would be considered cowboys. The overwhelming majority are honourable and decent people and they are being ground down by successive Governments which have failed in their responsibility to protect an industry which could be so beneficial. I have been critical of the Sea-Fisheries Protection Authority in the past. My judgment has not changed with regard to what has been presented today.

The witnesses stated their priority is to have a system which minimises subjectivity. The implementation of these rules is subjective and it is up to an SFPA officer to decide whether an offence is serious or not. A person's livelihood is determined by the subjectivity of the officer in question. In many areas there has not been a very good relationship between the SFPA and the fishing community. I do not cast any aspersions on any individual member of the SFPA, which initially was charged with a responsibility without any terms of reference. We spent three years trying to find out to whom the SFPA was accountable, and we had to drag the information out of the Minister and the Department. For years we were told the SFPA was accountable to nobody but now we have found out it is accountable to this committee.

It was stated this is one tool in the box. What are the other tools the SFPA has in mind with regard to infringements? As I stated, whether an infringement is serious is subjective. Is it deemed serious by an individual SFPA member or does the matter go to a committee? It was stated that points stay on licences for three years after the last infringement. I do not believe anyone here does not have penalty points for driving. Three years after the actual infringement the penalty points are removed. What the witnesses have stated is these penalty points will remain on the licence for three years after the most recent infringement. This makes no sense. It makes the bloody thing worse. If somebody decides to sell his or her boat and licence the penalty points will be transferred to the purchaser. What guilt is associated with somebody who buys a licence that he or she must take penalty points for an infringement by a prior owner? It is an absolute disgrace how this can be stood over and defended.

One has 21 days to appeal a decision. What access does one have to the courts? Nothing in it states one has access to the courts. Even if one had access to the courts what fisherman or woman could afford to go to the High Court to challenge a decision taken by the SFPA? Where would they get the resources if such recourse is available to them? How could they afford to pay a barrister and a solicitor when they cannot put bread on the table? It is another effort to destroy what is left of a very small and shrinking industry. It will do absolutely nothing to protect the rights and entitlements of our coastal and fishing communities.

Deputy Thomas Pringle

I thank the members of the SFPA for their presentation. Penalty points have become accepted throughout the country with regard to driving offences. It is a concept which people can understand. I agree with much of what Deputy Ferris stated on the difficulties faced by the fishing industry with regard to keeping itself going and people continuing to make a living. I have some concerns about the regulations produced and I have a number of questions on them.

In the presentation it was stated the reason the Commission will introduce the penalty points system is to ensure compliance and a level playing field in all EU waters. This is a Commission regulation instructing the implementation of these penalty points. Will they be introduced in all coastal states simultaneously? Will they all come into effect in each coastal state at the same time? Are we sure if a non-Irish vessel is allocated penalty points here that they will be allocated by the coastal state to which the vessel belongs? How do the witnesses see this working and what systems are in place to ensure it will work on an EU-wide level? In the past it has been notoriously difficult to obtain information from other coastal states on the quota situation for vessels fishing here and to properly implement the Common Fisheries Policy regulations on such vessels. This has led to a situation where approximately 85% of boardings and inspections by the SFPA take place on Irish vessels. In my opinion it is more likely to stop vessels on which it has quota information rather than inspecting a vessel on which it has absolutely no quota information.

It was stated the system would minimise subjectivity and would maximise consistency, fairness and probity. Concern has been expressed to me about the variation in how individual fisheries officers treat boat owners and boats during inspections. The individual fisheries officer conducting the inspection will not have the right to assign the points.

I wonder how the three-person committee from the SFPA will operate. What information will be available to the assigning body in the SFPA? Will the fact that there are points on the licence be a factor in determining the seriousness of the issue? Will there be due process for a person to whom points are assigned?

The witnesses referred in the presentation to prosecutions that took place outside the penalty points system. This is also covered in the regulations section under matters relating to points assigned. If a person has been assigned penalty points for an offence that is under investigation and then is prosecuted for a criminal offence but the court finds that no offence has taken place, the points assigned remain on the licence. I think that is totally contrary to natural justice. That should not be in the regulations. If one is of the opinion that this is set out to punish fishermen who have been targeted, this section would show that this is the case. It is beyond any form of justice that somebody found innocent of an offence would retain on his or her licence the points assigned for the offence. I would like the witnesses comment on that.

I have not seen the reference to the criminal offences in the Commission regulations, and I wonder where the authority comes from. However, what is covered in the Commission regulations - and the SFPA probably has no leeway in this regard - is that a person to whom a licence with penalty points is transferred or who buys a licence with penalty points retains the penalty points on the licence. It is not the vessel that has caused the offence, but the owner or skipper who has committed the offence. It seems bizarre that the penalty points should be transferred with the vessel and the fishing effort. Somebody with a clean record could buy a vessel or a fishing effort that has 34 points against it. If the person gets two more points in the following six months, he or she faces suspension. I do not think that is just. Will the witnesses set out the rationale for that?

When I saw the list of offences set out in the Commission document it seemed clear-cut, and I find it strange that it could be subjective. Subjectivity leaves it open for one person to have points assigned while somebody else does not. It would not be transparent. I would be interested to hear how the procedures protect the SFPA from alleged subjectivity.

Deputy Tom Barry

I am not a fisherman, but I understand how sanctions operate in the agricultural industry. Has the SFPA conducted a survey of fishermen to establish their views on the Commission document and whether it is a good idea? If a survey has been conducted, does the SFPA have the results? If not, will it undertake to survey fishermen on it?

The regulations must work for ordinary fishermen. I know that one of the most significant problems faced by those in agriculture is that penalties might have been applied harshly. Fishermen, like farmers, should not go around in fear but need to be encouraged. I believe a level of discretion is required. Let me comment on some of the points raised in the presentation. Mr. Kinneen stated: "The control regulation requires member states to ensure that any enforcement sanction effectively deprives those responsible for any illegal fishing of any economic benefit derived from the infringement, and that sanction take into account the value of the fishery products..." Does that mean the value to the fisherman or the value of the product landed onshore? There are 12 categories of serious infringement. I do not know the definition of "valid licence". Is fishing without a valid licence a minor or serious infringement? In the course of the presentation he referred to concealing, tampering with and disposing of evidence. Would that be obvious, or is it possible that a fisherman might forget to hand up something? I do not like the reference to a fisherman who has obstructed the work of officials. I know what it means - that a fisherman has deliberately obstructed an official - but I have seen officials who would consider that they know the outcome before they investigate the situation. It drives me nuts when I see somebody do this. I am not casting aspersions on anybody, but that is the point I am trying to make. Is there a code of conduct for inspectors? Is it updated regularly, and has the SFPA surveyed fishermen to find out whether they are happy with the code of conduct and whether they feel it is working with them or against them?

The points remain on a licence for three years, which is a very long time. I feel the system could be reviewed if it is found not to be working. Is it meant to be a slap on the hand to remind a person to move back into line? I believe a three-year period is too much. If a licence holder invests in monitoring systems or green provisions for his vessel, this will cost extra money. They have been fined, and while a two-point reduction is slight, I think it could be a little higher. However, I completely disagree with the retention of the points on the licence when the vessel is sold. Do the sons bear the sins of the fathers?

Is there equity between states, and does this fall within the remit of the ombudsman? The fear is that the SFPA will be investigating itself. That is a concept that has been under scrutiny. I am uneasy about the regulations because I do not like to see regulations that could be burdensome. I would not like to be associated with adding more hassle to the life of a person who is trying to make a living. I agree with Senator Ó Domhnaill on the need for an intermediate layer so that an infringement could be dealt with immediately without having to go to court.

Does the SFPA have a log of all the vessels it inspected in 2013? I want to establish whether some vessels are targeted and face frequent investigations. Are some vessels stopped every week or month while others are virtually not inspected at all? I have examples of this in another area in which I have worked. The frequency of calls tells an observer what is happening. In the analysis of vessels that were stopped last year, how many of these incidents led to convictions? Did a judge make a statement that it had gone too far? Before the SFPA asks for more powers in this regard, we need to know that the application of the rules is fair. I must qualify my comments by saying that I am not involved in the fishing industry, so if some of the points I have made seem totally off the wall, I ask that I be given some leeway.

Deputy Michael McNamara

I wish to raise a question on an issue that Deputy Ferris flagged - that of access to a court. This statutory instrument is applying EU law and any measure that applies EU law must be compatible with the Charter of Fundamental Rights. Under the justice provisions of the charter, anyone whose rights and freedom are violated has a right to an effective remedy - that is, a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

The administration of the appeals mechanism is a matter for the Department of Agriculture, Food and the Marine. Is the mechanism sufficiently independent to satisfy the charter, given that the appeals officer answers to the Minister and the enforcement body answers to the same Minister?

Deputy Noel Harrington

I thank the Chairman for allowing me to contribute even though I am not a member of the committee. I welcome Dr. Steele, Mr. Kinneen and Mr. O'Mahony to the meeting.

I will commence by making a general point. The sea fishing industry has dealt with the SFPA for some time. It could be acknowledged that they got off to a rocky start but now they share a mutual respect. The industry has respect for the work done by the SFPA and the authority has respect for what the industry must go through in terms of regulation and its work environment. It is also important for the delegation to confirm - and I hope it is true - that the instrument does not confirm any new infringement or illegality. The fishing industry is very familiar with the infringements that they must work with and avoid.

I have read the instrument and have been left with quite a few questions and concerns. It is necessary, in a European context, to level the playing field between Irish vessels and visiting fleets. Nothing drives people more apoplectic than the overseeing of these regulations. However, there is a perception - rightly or wrongly - that the Irish fleet has been dealt with more harshly than visiting fleets. That may not be true. I know that most of the arrests and detentions relate to visiting fleets or vessels. All fishermen want a level playing field and an ability to compete with visiting fleets as equals, under the regulations.

I shall outline an issue that has been touched on already. Options are available to the SFPA with respect to how it enforces infringements, if detected. There may be a court procedure if points are applied. Anybody is entitled to go through the courts to have his or her rights vindicated. I am concerned, however, that the points still apply even if a master is found innocent by the courts. Has the SFPA taken legal advice on natural justice regarding the matter? Has it taken advice from the Attorney General? Does the authority expect the matter to be tested?

Up to now, when an infringement occurred it was open to the SFPA to go to either the District Court or the Circuit Court. There was no other choice; the master would have to make a court appearance. I am unclear whether it is the master of the vessel or the capacity that will now be penalised. Will capacity be measured by tonnage or kilowatts? How will the penalty be administered? Will it involve the sale of portions of the capacity or fractionalisation? As mentioned in the presentation, the move would have a detrimental effect on the market value of the capacity. In the past it was the master of the vessel who was penalised for an infringement. There has been a sea change in who bears the penalty for an irresponsible fishing activity. Is the SFPA concerned in this regard?

How will competent authorities in other countries administer penalty points? Clearly, we may not ever see a visiting vessel again if it is assigned points. Will it accumulate points, while it is in European Union waters, if it has an irresponsible master? Will the SFPA or the Department be notified when further infringements or points are assigned to the vessel? It is important that the Irish fishing industry is clear that this is not just a matter for it to deal with. The way the matter is dealt with is critically important.

I want to touch on a sensitive issue that can be subjective. For example, one could step on board a vessel and claim that one fish is undersized, and, as such, represents an offence. Nobody will say it is a serious offence, but what if somebody does? What if an SFPA official decides that it is an offence? What if there is a pre-determined issue, as mentioned before? The fishing industry is small. The SFPA officers, the naval officers and those in the industry are familiar with each other and I do not have to explain the analogy. Where are the safeguards? What happens if an over-zealous official or somebody else steps beyond the subjectivity and natural justice that has been referred to in the presentation and the regulations? That is a great concern of mine.

I am very unclear about the possibility or probability of points being deleted over a period. The matter was only touched on in the presentation. We are all familiar with the provision in the Road Traffic Acts whereby points can be deleted after a period. The matter is unclear in terms of these regulations. Is it possible or likely? It has been mentioned that good behaviour and proactive measures can be undertaken by a master, but the issue still seems very difficult.

With regard to court procedures, it is open to the SFPA to refer a matter to the District or Circuit Court. Is there a possibility that these regulations will be tied in with the proposal? The matter is in the programme for Government, and a Bill to amend the sea fisheries legislation on administrative sanctions is scheduled to be taken during this session of the Dáil. Will it determine how the SFPA works with the industry? It all boils down to how the regulations can be notified to the industry and whether they will give it confidence that there will be justice and equality in how it is dealt with, not the opposite.

Chairman

I thank all Members for their questions. With regard to the last point made by the Deputy, the heads of the proposed legislation may come before the committee, which will form part of our work programme. The members of the delegation have been asked a series of specific questions. They have also been asked to comment on opinions, but I am not sure whether they want to do so.

I seek clarification on the list of 12 offences that are subject to the penalty points system. What power or jurisdiction, if any, has the SFPA currently got over non-Irish vessels found guilty of any of those infractions? What additional information sharing is envisaged upon implementation of the statutory instrument? The witnesses can answer the queries as they see fit. Perhaps Dr. Steele could commence.

Dr. Susan Steele

I thank everyone for giving us a considered reading of the matter and for their comments. The message from the SFPA is that we understand the hardships in the fishing industry. We understand the difficulties with the weather in recent months and we understand the problems in the industry. In any shared resources it is important to have fair and effective seeking of compliance. The role of the SFPA is key in this area. We will go through the questions and take them in order. I will pass to Mr. Andrew Kinneen and Mr. Micheál O'Mahony. I thank the Senator who asked how points can be assigned and yet there can be a different outcome in the courts. I will hand over to Mr. Micheál O'Mahony. The key issue is that our job as a regulator is not the writing of the SI but the enforcement of the SI.

Mr. Micheál O'Mahony

There were various themes which arose in the questions. I do not want to generalise the questions but to pick recurring themes and that was certainly one. These points apply in parallel to the current system of criminal sanctions. They exist independently of those criminal sanctions. That is what is set out explicitly in the SI. That is a Government decision. It is the decision of the Department which wrote the SI, taking direct advice from the Attorney General's office on that specific matter. It is reasonable to question the validity of that approach. It is what is on the Statute Book. It has not been tested yet and is quite explicit.

By way of direct answer to the question posed initially by Senator Brian Ó Domhnaill as to how these points relate to the current criminal code, they exist in parallel. It may well be that the licence holder is at home in bed when the infringement occurs. Before the SI was put in place, the system was for the skipper potentially to face a criminal sanction for the infringement that occurred with the vessel. Now a further party, the licence holder, is brought into the sanctioning system. The reason that is the case is that there is an explicit obligation in the EU regulation which provides that the member state shall establish a points system to sanction the licence holder. They are brought into the loop explicitly by the EU regulations and this SI gives effect to that and the SFPA's statutory obligation is to implement the SI. I hope that answers the direct question about the separateness of the two processes.

Mr. Andrew Kinneen

I will respond to the general theme of questions from committee members on administrative sanctions, proportionality of sanctions and the uniqueness of the criminal sanction system in Ireland as against what might be in other member states, the level playing field issue and what part points play. Currently there is no provision in Irish law to apply administrative sanctions to fisheries offences. That is a general statement. I understand that it is under consideration as the Chairman has said. What comes to pass will obviously come to the SFPA in our role as a regulator and so on. We have spoken to colleagues in our parent Department on this subject. We have offered examples in other member states where we have seen this type of administrative sanction work successfully and we have also tried to point out some of the pitfalls where in other member states it is rubber-stamping misbehaviours on the part of certain fishermen and they continue with impunity and their misbehaviours. We have tried to offer that information in discussions with our colleagues. We await the outcome of the work of the Oireachtas and what might come out of it. Obviously, we will be faithful to whatever comes out of the statute. We are mindful for the full suite of tools that are appropriate when trying to get a fishing industry to work with very complex technical regulations and to manage a shared public resource.

We were asked what other strategies or tools are in the box. We try to speak to fishermen and we try to listen to them. We have had a number of what I would characterise as "town hall" style meetings. These have been very successful engagements with fishermen on the concerns they have, particularly with new regulations or aspects of the regulations or aspects of our behaviour as regulators. We have a code of standards with regard to inspections and how we carry them out. It has not been updated recently but I take the point made and it is an issue we will look at. We have the benefit of a consultative committee which advises us on the burden of regulation. That committee is made up of individuals from all sectors of the industry, fishing industry, aquaculture, primary fishing industry, inshore and so on, appointed by the Minister. The committee advises us on the burden of regulation and feedback from the industry on how we are doing our work. I am pleased to hear the acknowledgment from one Deputy that we have managed to develop a better relationship with many of the people we are trying to work for in that regard.

With regard to administrative sanctions, we are aware of their benefit and aware of some of the pitfalls in it. With regard to the points system, the idea behind it is that where some member states are operating administrative sanctions without having any dissuasive effect on illegal fishing, the points would apply and make repeated misbehaviour become a serious issue where the primary licence of the vessel comes into play. That is the level playing field effect that the regulation seeks to satisfy.

Mr. Micheál O'Mahony

One of the recurring themes has been that of subjectivity and analogies with the road traffic points with which we might have greater familiarity. In our view, analogies with the road traffic points system are generally unhelpful in this context and are generally misleading. The road traffic points are for minor infringements with decision making power at the roadside, frequently in lieu of prosecution and with concepts such as double or quits, or double or nothing, if one appeals. None of those things apply here.

These points are for serious infringements. They have no impact whatsoever on the likelihood of a prosecution. We do not envisage any pier-side decision making ability. We have been given one number of points to apply for a serious infringement - we cannot double or quits that. It is a fixed obligation in the EU regulation. We are happy to answer questions but some of the questions appear to be drawing analogies from the road traffic points system which is possibly not the best way of looking at these points. These points are for serious infringement, they are for a different spectrum of infringements. We have talked about the administrative sanctions, concepts which should apply at that lower order infringement. This is for the serious infringements. As a member state, Ireland is specifically obliged to have a dissuasive system of sanctioning that should explicitly include a points system for licence holders.

The subject of appeals and natural justice was raised frequently. The decision in writing the SI, taking direct advice from the Attorney General's office, particularly around the wherewithal of an individual fisher to challenge the bureaucracy of the State, was to have an accessible appeals system. The decision was to have a specific appeals officer provided for within with the SI. That appeals officer is designed around accessibility as opposed to invoking the machinery of the courts and the expense of that machinery, to provide an accessible and natural justice recourse for the fishermen. No points will be applied until the fisherman has had recourse to that natural justice. There will be notification with intent to apply and then a right to appeal that intent. That is what is envisaged. There is a specific mention of the potential of going to the High Court. However, we do not see that as being realistic for individual fishers but it is in place should they remain dissatisfied.

The policy decision has been to put in place this accessible appeals officer. The provision certainly gives recourse to natural justice. This appears to be the case at the outset, at least, but it has not yet been tested.

The independence of the points procedures from the criminal court proceedings, if they arise, represents a policy decision made on the best advice from the Office of the Attorney General. It is not something that comes from the SFPA. It is a considered decision. The points stand alone. The skipper and licence holder are regarded as separate and there are obligations within EU regulations that are being implemented separately in regard to them. They have not yet been tested or challenged.

Mr. Andrew Kinneen

To add to my colleague’s comments on the natural justice aspect, this is novel in terms of the operation of sanctions applied on infringements of the fisheries policy. We are conscious that we are accountable to this committee, and are very happy to be so. As members know, we will always appear on request or by any other means. We have made a formal statement to the committee on our wish to be proportionate and apply this measure correctly. It will be a disaster if we make a mess of it. If we increase the sense of injustice within the fishing industry, our chances of promoting compliance and getting people to stick to the regulations will be greatly diminished.

Beyond the points appeals mechanism, there is a complaints officer handling the work of the SFPA in the application of its statutory functions. I refer to the section 49 complaints officer. The mechanism is open to any member of the industry who believes we have used the very real powers ascribed to us incorrectly or inappropriately. This form of recourse is independent of the legal route. The legal route is always available as it is the independent right of every citizen. One can question or protest over the manner in which we do our work. We are very mindful of that.

As Mr. O’Mahony says, this particular statutory instrument came into law in January, and it is now early in March. As far as we are aware, no serious infringement has been detected since it was put in place.

Deputy Martin Ferris

To what fishermen does it apply?

Mr. Andrew Kinneen

The provision is not only for Irish fishermen but for all European fishermen. Particularly in the context of the SFPA, all people who fish inside the Irish 200-mile limit, regardless of nationality, are covered. Therefore, we have a duty of responsibility to ensure they are compliant with the CFP.

The danger of subjectivity and bias was referred to. Subjectivity comes into play because there is a prescribed schedule of offences. Where the non-recording of fish is concerned, one might be talking about the non-recording of 20 tonnes of fish or a box of fish. The offence is the same in Community law but it is the dual quality of being listed as both a serious infringement and a grave offence that comes into play. This is where the element of subjectivity applies. One offence relates to markings on a fishing vessel. There is a huge difference between a 100m vessel operating 50 miles off our coast without markings that can be identified by the Naval Service or Air Corps and an inshore fishing boat that has not got a bit of paint on the wheelhouse. The offences are the same under Community law but the gravity is totally different in each case. That is why there must be a system of evaluation. That is the thinking on subjectivity. There is a fairly well-defined framework in Community law and in the statutory instrument on how we should operate. The points to which I refer are ones in respect of which people may appeal our decisions, and they may do so if we have not followed procedure.

As we said in our opening statement, we are drafting our procedures and trying to get the right expertise around the table such that we will consistently make the correct and proportionate decisions. We will be putting those on our website so there will be no cloak-and-dagger activity behind closed doors. That is the intention. We are not at the final stage of publishing those at present.

Senator Ó Domhnaill asked for statistics. We do not have the exact statistics on detentions. There are between 20 and 30 per year.

Deputy Barry asked a very interesting question on how often we inspect a particular vessel and the outcomes. In the past, we had a repetitive system of inspection of vessels, not only in Ireland. Irish vessels come into Irish ports, and Castletownbere vessels come into Castletownbere. Therefore, there is repetition. We are now entering a system of risk-based inspection. This is a very important era for us as an inspection service. We are not making this up; it is coming to us through the same control regulations that result in all such arrangements. We will have to examine indicators under the remote monitoring mechanisms to determine whether a vessel is fishing in a closed area or whether its behaviour is not consistent with that of the rest of the fleet. We are obliged to show we are targeting that type of vessel rather than making the easy choice of meeting somebody who comes to port. These sorts of measures are entering the system at present.

Mr. Micheál O'Mahony

There was a recurring theme of querying the detail that would be applied in these provisions. Detail was sought on why there is a period of three years, why certain obstructions are included and why the three-year clock suddenly gets reset when there is a new serious infringement. The answer to all of these questions is that this is what is laid out in the EU regulation; there is no discretion whatsoever given to us. I can read out the relevant parts of the regulations. On the three-year period, it is stated, “If the holder of a fishing licence does not commit, within three years from the date of the last serious infringement, another serious infringement, all points on the fishing licence shall be deleted.” Therefore, the three-year clock results in a complete reset, regardless of the-----

Deputy Martin Ferris

From when?

Mr. Micheál O'Mahony

From the last offence.

Deputy Martin Ferris

It is from the last offence; that is the difference.

A point was made about penalty points offences such as road traffic offences. I and other members made the point that a road traffic offence which results in the imposition of a penalty is such that the relevant period commences from the day on which the points are imposed. In the case of fisheries, it is proposed that the period should begin from the date of commission of the last in a series of offences.

Mr. Micheál O'Mahony

I need to be clear: we are not proposing this. It is set out in the 2009 regulation. We are tasked with implementing it through this statutory instrument. It is written in European regulations.

Deputy Martin Ferris

Does Mr. O’Mahony believe it is just?

Mr. Micheál O'Mahony

I am not sure whether my personal opinion is appropriate.

Chairman

I did make that point. The sea fisheries and maritime jurisdiction (amendment) Bill, whose heads will probably be referred to this committee, is to provide for a points system for skippers of fishing vessels found to have infringed the CFP and to introduce fixed penalty notices for minor offences. As I understand it, the statutory instrument concerns serious offences, but the discretion that might be included in the amending legislation might involve a system more akin to the penalty points system applicable to road traffic, whereby points are eliminated after two years. If one accumulates 12 over a certain period, one is off the road. Perhaps such a system for minor offences can be applied in the fishing industry.

I asked what sanction exists for non-Irish fishing vessels in the context of the serious offences that are included in respect of the 12 awardable points.

Dr. Susan Steele

I was just looking through which questions we have dealt with and which we have not, and there are a number. Mr. Kinneen is happy to take that key question.

Mr. Andrew Kinneen

I might sweep up a couple of other aspects and perhaps Mr. O'Mahony will support me on this one.

As I stated earlier, we have an obligation for the behaviour of all those fishing inside the 200 mile limit of the State. We have a responsibility to see that they are compliant with the rules of the Common Fisheries Policy. That gives us jurisdiction in terms of exercising control or regulation of those fishing vessels and that is achieved through co-operation with the Naval Service, the Air Corps and work we do in the ports, and also through the evaluation of fisheries data streams that come to us. We are now getting electronic logbook data streams, vessel position data streams and shared intelligence from other member states on aspects of fishing, etc. There is also a Community-wide system in place for the reporting of infringements under IUU regulation, which is another area we should not go into.

A member of the committee asked how will we be sure that other member states will apply the points that should be applied, and it is a good question. First, when we detect an infringement by a fishing vessel under the flag of another member state and it satisfies the criteria for a serious infringement, we will formally inform that member state. In other words, there will be a written record of that. The Commission is anxious that there would be a level of transparency to see that the member states comply with the requirements of this and in this regard, the European Fisheries Control Agency has a central role. One of its statutory mandates is to ensure a level playing field in fisheries in Europe. We participate in the administrative work of that agency and it would be one of the questions on which we will ensure there is a high level of transparency because we are on a hiding to nothing if we do not have that as such.

Mr. Micheál O'Mahony

If I could jump in to support Mr. Kinneen there, on this issue of inter-member state transparency there is a specific obligation to maintain a register of infringements for every member state, and that should include the list of points allocated for those infringements for their flag vessel. Even if the infringement was in Irish waters and we were the assignor of the points, the non-Irish national register of infringements should indicate the presence of those points. That is what is written in the regulation.

One of the issues we have brought before this committee previously is this issue of inter-member state transparency. In our submission on reform of the Common Fisheries Policy, one of the items we hit as hard as we could was this issue of transparency. The DG MARE - European Commission - goes to every member state auditing their compliance with the CFP obligations and those reports are only made available to the member states. That is completely different from what is done on the other side of our house, the food safety side of the house, where the European Commission comes to the member state, audits the compliance of the member state and then publishes that on the Internet in the public domain. We believe there should be transparency in those reporting structures. It is something for which we have been looking for some time. We believe that would allow us to then answer more directly the committee's questions as to what is happening in the other member states.

Deputy Martin Ferris

The authority stated it is taking legal advice on its draft procedures and awaits the final outcome of those considerations. The draft procedures are not legal as of yet.

Mr. Micheál O'Mahony

The SI does not obligate us. It allows us to create procedures.

Deputy Martin Ferris

To implement it.

Mr. Micheál O'Mahony

Sorry?

Deputy Martin Ferris

Is it that the SI allows the authority to implement it?

Mr. Micheál O'Mahony

The SI provides that we take into account what is set out in the EU regulations about seriousness and that we take into account criteria that we ourselves set down. We are setting down those criteria and we intend publishing them. We are currently finalising legal advice on those criteria and we would then publish them on our website so that there would be a deterrent effect. As a result, fishermen would know that if what they do falls into those criteria, then the outcome for them will be points on their licence. We have not finalised those criteria.

Deputy Martin Ferris

Has the authority received legal advice on them?

Mr. Micheál O'Mahony

We sent them for legal advice and have some preliminary legal advice. It is not final legal advice. We are awaiting that.

Deputy Martin Ferris

When is it hoped that will be done?

Dr. Susan Steele

It can be difficult to say in these situations because we had to wait until the SI was completed before we were able to work on that part of it. Our aim is to have it within weeks. As the committee will be aware, however, sometimes when legal advice can come back one needs to change or clarify areas, and that might extend it outwards.

Mr. Micheál O'Mahony

We might have to tweak them and then get legal advice on the tweaks.

Dr. Susan Steele

The sooner the better.

Deputy Martin Ferris

Will the authority furnish us with a copy of the draft procedures and the legal advice?

Mr. Andrew Kinneen

Not wishing to be unhelpful to the Deputy, the SFPA would be privy to the legal advice. We would be happy to-----

Deputy Martin Ferris

Is it not available to us?

Chairman

Generally, legal advice would not be.

Deputy Martin Ferris

As overseers of the SFPA, would we not be entitled to see that legal advice?

Mr. Andrew Kinneen

The committee would certainly be entitled to see the procedures that we complete and we will be happy to share them and answer questions on them with the committee.

On some of the issues we are trying to work out, the aspects of natural justice and how it applies in Irish law are the issues being considered. Although we are not privy to the advice from the Attorney General's office that our parent Department got, we are aware that it was a long question for consideration and as a result, Ireland, as a member state, was under considerable pressure from the Commission to catch up on other member states to put in place this points system. It is a somewhat difficult issue and we are trying to make a good job of it.

Deputy Thomas Pringle

I have a couple of questions. Mr. Kinneen stated we have been put under pressure to catch up with other member states. Have other member states already implemented this points system?

Mr. Andrew Kinneen

Yes.

Deputy Thomas Pringle

Is there already a system in place by which points will be transferred and shared with other member states?

Mr. Andrew Kinneen

Yes.

Deputy Thomas Pringle

That answers one of my questions.

This SI is now law. If somebody is detected with a serious infringement today, can he or she have penalty points applied even though there are no procedures in place to decide it and there is no appeals officer appointed?

Mr. Micheál O'Mahony

There is an appeals officer. We were notified last week that the Department of Agriculture, Food and the Marine has appointed an appeals officer.

Deputy Thomas Pringle

There are no procedures in place for the SFPA.

Mr. Micheál O'Mahony

That is correct.

Deputy Thomas Pringle

What happens then?

Mr. Andrew Kinneen

We appreciate the situation. What will happen is the legal process, if it arises, will go ahead independently in any case. It is not a question that the offences will not be addressed, in Irish or other Community law. That will go on independently of this.

The consideration of whether it attracts points will have to come into play at some stage as well but there will be a question over them until we have everything, such as the procedures, in place. An individual would be in an invidious position to appeal against our decision, if we have not put up our procedures.

Deputy Thomas Pringle

Could it be a number of months?

Mr. Andrew Kinneen

No. It will be weeks rather than months because we recognise the seriousness of the situation.

Deputy Thomas Pringle

I have two quick questions, as I do not wish to hold up the committee. The Chairman outlined the proposed legislation for the penalty system for minor offences. Will that work in parallel with the one for serious offences or will it be in addition to that for the serious offences under this regulation?

Mr. Micheál O'Mahony

These are two non-overlapping concepts.

Deputy Thomas Pringle

Are they completely separate?

Mr. Micheál O'Mahony

They are two separate spectrums of the infringement.

Dr. Susan Steele

Also, our role is as enforcers, and that legislation is being drafted at present.

Chairman

The intention there is to decriminalise minor offences.

Deputy Thomas Pringle

What if somebody gets penalty points for a minor offence?

Mr. Andrew Kinneen

That would be a separate matter, if that is the decision of the Oireachtas.

Mr. Micheál O'Mahony

The EU obligation is to have points for serious offences.

Deputy Thomas Pringle

Is there an obligation in the regulations to implement serious points for masters of vessels as well which will be in addition to this?

Mr. Andrew Kinneen

That is correct.

Mr. Micheál O'Mahony

That would be in addition to this, for the same type.

Deputy Thomas Pringle

Will the points for minor offences and the points for serious offences for masters of vessels be the same?

Mr. Andrew Kinneen

No.

Deputy Thomas Pringle

A master of a vehicle could accumulate serious points and minor points, running in parallel and he could end up in the courts.

Mr. Andrew Kinneen

Yes.

Chairman

If minor offences are being created that are no longer criminal or serious offences in this respect, and then there are criminal offences, that might be something that needs to be examined.

Deputy Thomas Pringle

One could be accumulating points left, right and centre.

Chairman

That is another road we could go down. Deputy Harrington has a further comment.

Deputy Noel Harrington

I have one or two questions about getting the information on this to the industry. Does the authority intend to or has it had any consultation with the industry, either through the producer organisations or the publications, or how does it propose to bring to the attention of the industry the effects of this statutory instrument? How will the introduction of electronic logbooks impact with respect to the statutory instrument in terms of the international dimension to this?

If the authority finds that a person has amassed so many penalty points that his or her licence is permanently withdrawn, does that mean that such capacity is taken from the fleet as well? Is that clearly set out in the statutory instrument or is it intended to do that? In such circumstances, would the fleet reduce by that capacity, or what would happen to such capacity?

Chairman

Those are very relevant points.

Dr. Susan Steele

Yes. I will start by addressing the question on the communications process. In any type of change like this, a clear communications process is vital. When our internal procedures are clarified and finalised we will use different methods of communicating with the industry. It will be done through publication of those and through a good deal of information that will be given by the officers on the ground directly to the fishing industry. That will occur and then there will be a series of articles and information sessions that will tie in with that. It will go through a communication process, once it is finalised. It is very important to us.

I note Deputy Ferris has left and I was going to answer his question about what are the other tools in the toolbox. Sanctions are at the very far end of enforcement. We would work out ways through education, communication and working with the fishing industry. Nobody wants to be in a position where we would have to impose sanctions and enforcement actions but, unfortunately, in some cases it is a vital method. I was going to list those in terms of the toolbox but I would point out that communication about this measure will be one of the tools in the toolbox.

Mr. O'Mahony might respond to the question on the electronic reporting system, ERS, and logbooks.

Mr. Micheál O'Mahony

One of the potentially serious infringements is the non-recording of catches and the tool described for the recording of catches is the ERS for vessels over 12 m. If one does not record one's catch on the ERS and it is deemed to be a serious non-recording, that would be subject to the assigning of points. To answer the Deputy's question directly, I do not see the ERS as being a particular driver of points.

Deputy Noel Harrington

The electronic logbook is a relatively new practice. Is its use widespread throughout all the coastal communities of the European Union? Is it the standard now?

Mr. Micheál O'Mahony

Yes, for vessels over 12 m to 15 m. We have been very active in driving compliance by Irish and non-Irish vessels in the Irish exclusive economic zone. I can emphatically state that it is the standard in the Irish EEZ. We do not have any tolerance for any vessel not using the electronic log book system in the Irish EEZ, subject to logbook requirements.

Dr. Susan Steele

Deputy Harrington asked a final question about what would happen to the capacity if a licence was withdrawn? Mr. O'Mahony might address that.

Mr. Micheál O'Mahony

We do not issue licences. If an appeal were not upheld or if the decision to assign points stands, we would notify the licensing authority, which is an independent authority within the Department of Agriculture, Food and the Marine, of those points. The licensing authority would assign those points and would then deal with the outcomes should they arise. We cannot answer that particular question. I would point out that the only way that this points system gets to that endgame is by repeated serious infringements, even if one has been put off the water once, twice or three times. Withdrawal of a fishing licence is continually used in the case of serious infringements. The outcome the Deputy mentioned is one that would follow repeated serious infringements and not one into which anyone could simply stumble.

Deputy Noel Harrington

In terms of the European context, they are reducing the capacity of the European fleet and it used to be done by way of compensation.

Mr. Micheál O'Mahony

Article 131 of regulation 404 of 2011, which is open to interpretation, seems to speak to the issue of the permanent withdrawal of a licence, but it is a question for the licensing authority.

Dr. Susan Steele

I believe we have covered all of the questions and we would be happy to answer any more that members may have.

Chairman

I think you certainly have. You raised a concern that the list of offences and offenders would be publicly available in the same way across Europe, so that knowledge sharing would not be just subject to the information on a particular member state, and that is vitally important for this system to be applied in an even-handed way and to be seen to be applied as such. There is often a feeling that we can be good boys and be compliant, while others do something different and get away with it. For example, a vessel that has been put off the water for two periods because it has accumulated 36 points is back in Irish waters and we might not know that, nor might the Sea Fisheries Protection Authority know that, which is very important.

It is a fairly significant statutory instrument. It has a lot of implications for the Irish fleet. That what why we asked the witnesses to attend the committee. I thank you for your full, frank and very knowledgeable insight into the statutory instrument, by way of your opening statements and subsequent answers to questions and queries that have been asked by members of the committee. I should have stated at the start that this is Ms Steele's first time before an Oireachtas committee as chairperson, and I wish you well. The privilege warning at the start is part and parcel of what we have to do in every meeting. Members genuinely appreciate your contribution and assistance.

We will be keeping a watching brief on this. We would like to get publication of the procedures when they are finalised, as well as the methodology of the appeals process. I know the name is already available. When the heads of the Bill are being published, we may write to you or ask you to attend to engage with us on it. Commitments were made that minor offences would be decriminalised and the penalty points system seems to be a reasonable way to address that. Thank you once again.

The joint committee adjourned at 5.10 p.m. sine die.