If you have the power to hit people over the head whenever you want, you don’t have to trouble yourself too much figuring out what they think is going on, and therefore, generally speaking, you don’t,” says the anthropologist David Graeber.
From Voisinage, Rockall to Penalty Points (among others), anyone looking in from the outside would likely conclude, in line with Graeber’s argument, that “the power to hit people over the head whenever you want” is a core feature of how the Irish Government approaches and manages Irish fishermen and women.
Though the effects of Voisinage remain uncertain, and, aside from Iceland reminding everyone that it has an outstanding claim not to the rock, but to the waters surrounding it, Rockall appears, for now, to once again have become a “dead letter” insofar as any commentary on the matter from the Irish Government is concerned, there appears no let up to the challenges in sight for the Irish fishing industry.
This month, fishing representatives expressed extreme frustration with the Minister’s latest proposal on a penalty points system for Irish fishermen and have said they are “appalled” by the Minister’s proposal which, they say, once again allows little recourse to appeal for fishermen and would mean that points remain on a licence even if a fisherman is found to be innocent.
During a Cabinet meeting on July 4th, Minister for Agriculture Food and the Marine, Michael Creed, announced an intention to table a statutory instrument (SI) on penalty points for fishermen, for serious breaches of EU fisheries legislation, highlighting that €6million in EU funding for the Irish fishing sector has been suspended by the European Commission due to a failure to put a system in place. The Minister also stated that the Commission had given notice of an intention to take infringement proceedings against Ireland for the same reason.
Fishing representatives and Opposition parties, however, have highlighted that, to date, all efforts by the Government to introduce a penalty points system for fishermen have failed on account of the manner in which the Government has attempted to devise the system.
The Government’s earlier penalty points system was successfully challenged by fishermen in the Courts – where the system was found to be unconstitutional and out of line with fair procedure. On account of a lack of provision for appeal to the Courts, a third SI was annulled by the Oireachtas last year and was the first SI in the history of the State to fall in such a vote.
In response to the Minister’s latest announcement, Fianna Fáil TD, Pat the Cope Gallagher, who had put forward alternative legislation last year, expressed surprise at the Minister’s plans to table an SI, without having consulted with the Opposition.
Fishing industry representatives who met with the Minister following his announcement, expressed deep anger at the Minister’s latest proposal and handling of the entire penalty points system issue, describing the meeting with the Minister as ‘shocking’. Indicating the Minister signified an intention to take some, but not all recommendations raised last year by Opposition parties, in the formulation of the latest SI, representatives have highlighted that they are not against the introduction of a penalty point system in principle.
However, they have said they will not accept a system whereby no appeal to a higher court can be made, the Sea Fisheries Protection Authority (SFPA) is administratively connected to the internal appeals processes and points remain on a fisherman’s licence even if he or she have been exonerated from committing an offence.
Speaking with the Skipper, the IFPO’s Mr Francis O’Donnell said: “It’s so frustrating that we are back here after four years. The Irish fishing industry has no issue with penalty points. We have a major issue with how Ireland is trying to implement them.
“We are again faced with a system whereby a vessel owner has no ability to appeal the decision to apply the points other than on a point of law to the High Court, the internal appeals process is still handled by the SFPA and, most of all, if a court finds the vessel or skipper totally innocent of having committed any fisheries infringement the vessel and skipper still has the points assigned.
“It’s actually hard to believe that Ireland wants to place itself above the courts and that, as citizens, Irish fishermen have continually been challenged with this issue.”
“I have said it before and I will say it again, why would anyone want to penalise a citizen who has not committed a crime?!”
Stressing their readiness to challenge any system that does not provide fishermen recourse to an appeal and whereby points remain on a licence even if someone has been cleared of any offence, Mr O’Donnell said, “I can speak for all of the Producer Organisations, non-affiliated vessels, persons and categories when I say that we will fight this on every front.
“There is no place in Irish society where legislation is designed to punish people that have done nothing wrong. We simply won’t stand for this.”
Though the Minister and Department have insisted that, under EU rules, the Government must implement a penalty point system for Irish fishermen, fishing representatives have emphasised that the manner in which it has attempted to do so, thus far, is not the only option available to the Government.
Mr Hugo Boyle, CEO of the Irish South and East Fish Producer’s Organisation has highlighted the UK, which has a similar legal system to Ireland and thus faces similar challenges in interpreting and implementing rules coming from Europe, operates a penalty point system which, though imperfect, contains elements that could be used as a template for a more reasonable system in Ireland.
For instance, relating to jurisdiction, the UK’s 2013 Guidance for the application of a points system for serious infringements states:
“The relevant fisheries administration shall be responsible for the determination and application of points in respect of serious infringements committed by or in relation to a relevant fishing boat arising as a result of a conviction and sentence in a criminal court in their jurisdiction”.
In relation to the application of points it states:
“The relevant fisheries administration will only consider an infringement committed by or in respect of a relevant fishing boat to be a serious infringement if criminal proceedings have been brought in respect of the infringement, and the natural or legal persons responsible for the infringement have been convicted of an offence arising from such an infringement”.
And further states:
“Infringements which are not themselves determined to be a serious infringement, but are subject of criminal proceedings as offences linked to another serious infringement detected at the same time, will not attract points.
” Perhaps most crucially, and in line with the manner in which most justice systems work, under the UK system points are not applied until conviction:
“Points will be applied from the date on which the serious infringement(s) was/ were committed and shall be applied to the licence following conviction for the offence.”
Since the Minister’s announcement, fishing organisations have over the past weeks been working with Opposition parties and it is understood that “progress” is being made with the Minister on the issue. At the time of going to print, the Minister has yet to table the SI and looks unlikely to do so until the next parliamentary sitting.