Private Members' Business. - Fisheries (Amendment) Bill, 1994: Report Stage (Resumed) and Final Stage.
Tuesday, 28 June 1994
Dáil Éireann Debate
Minister for the Marine (Mr. Andrews): Arising from the Committee Stage amendment put forward by Deputy Sheehan I indicated that I would have a serious look at the figure proposed. I indicated too, that the £250,000 standing alone might be acceptable but that the  amendment as framed was clearly flawed. My subsequent advice is that the amendment is flawed and the reasons are clearly delineated. I asked Deputy Sheehan if he would allow me take the proposed amendment to Report Stage but he decided in his wisdom or otherwise——
Mr. Andrews: I accepted that. I have no problems about the efficacy of his entitlement to call a vote which he won fair and square. I thought I would have been allowed to go from Committee Stage to Report Stage on the basis of having a serious look at the proposed fine. I am prepared to reflect that amount in my amendment.
I made it clear that the formula proposed by Deputy Sheehan was seriously flawed and that the deletion of section 15 was essential. In section 15, at the bottom of page 9, line 50 it states “where the owner of a foreign sea-fishing ship has a concealed or hidden hold”. The offence applies solely to foreign boats which includes boats of other European member states. The provision would be in breach of Article 7 of the Treaty which prohibits discrimination on the grounds of nationality and would be struck down by the European Court. It also creates a combined offence of having on board a fishing vessel a hidden hold and under-sized nets. It does not state “or under-sized nets”. If the State failed to convince the court on either count no penalty could be imposed in respect of the other offence.
The amendment as proposed envisages confiscation of vessel on conviction for a second offence. Since the provisions of section 14 permit the State to seek confiscation of a first offence, this would be stronger in fact and in law. Deputy Sheehan's amendment provides for the confiscation of the vessel, all things being equal, on the second offence. If it is considered sufficiently grevious the Deputy's amendment would weaken the sanctions which may be imposed.
The amendment refers to the owner  of the vessel, without any qualification whatever thus reopening a loophole regarding the transfer of ownership which section 14 goes to great lengths to close. In proposing the amendment I fully sympathise with the spirit of the Deputy's proposals and have tried to honour the objective they seem to achieve.
Amendment No. 3 increases the maximum fine for secret holds from the original figure to a figure of £200,000 while the fine for having undersized nets goes up to £50,000. An owner convicted of both offences would face a combined fine of £250,000. In those circumstances the Deputy will appreciate I am readily accepting the spirit and intention of his original amendment, as it was my intention to do on being allowed to take it from Committee Stage to Report Stage. The intention is to provide the courts with good workable law and avoid the inclusion of provisions that serve, albeit unintentionally, to undermine the legislation they seek to enforce.
Amendments Nos. 1 and 3 meet fully the requirements of Deputy Sheehan's Committee Stage amendment. Amendment No. 3 proposes that in the case of orders under the section relating to capacity plans the fine shall not exceed £200,000 while in the case of orders under the section relating to undersized nets the fine shall not exceed £15,000. In addition, forefeiture will be a statutory consequence of conviction of an offence under the section dealing with undersized nets.
The original intention was to inflict damage on Spanish fleets, whose fishing practices I have continued to highlight since becoming Minister. The fine will apply to vessels from all member states and will not be directed solely at Spanish vessels. However, having regard to their fishing practices I have no doubt that Spanish vessels will suffer most. It is important to remember that many member states do not have vessels to the value of the fine. This is why I sought to keep the fine at a reasonable level; in other words, to ensure a balance. As  Deputy Byrne, whom I welcome back to the House——
Mr. Andrews: I too have responsibilities. The present system is rather loose and was proved so on that occasion. I have no doubt that the Government and future Governments will operate in a tighter fashion. Having regard to the way in which I met the requirements of Deputy Sheehan's amendment, I hope the Fine Gael Deputies will accept my amendments.
Notwithstanding the provisions of this Act or of any other enactment, where the owner of a foreign sea-fishing ship has a concealed or hidden hold and undersized fishing nets on board that ship that person shall be guilty of an offence and shall be liable in the case of a first offence to a fine of £100,000 and in the case of a second or subsequent offence to forfeiture of the sea-fishing ship.
The Minister proposes to alter my amendment slightly by proposing that ships with a hidden hold should be liable to a fine not exceeding £200,000 while ships using undersized nets should be liable to a fine not exceeding £50,000. As this meets the proposal in my amendment of a fine of £250,000 I will support these amendments.
I acknowledge the efforts by the Minister to ensure the conservation of our fishing stocks. Marauding trawlers understand only one language, fines and confiscation  of their vessels. I am sorry that the Minister has not made these penalties mandatory because, regardless of our best intentions, this fine will not have the effect it should have if it is not mandatory.
During the past 30 years I witnessed the rape of our fishing grounds through indiscriminate fishing by foreign trawlers. Before our accession to the European Union those trawlers would have been described as foreign, today they are regarded as European trawlers. I welcome the deletion of the word “foreign” by the Minister on the grounds that it would probably inhibit a prosecution against a vessel from another EU country. While I admire his courage in doing this, he has failed to deliver the killer punch. The only language the owner of these vessels understand is confiscation of the vessels used to carry out these offences. Nobody should be fooled into thinking that an offence of this type is an isolated case. Our fishery protection boats have arrested a number of these trawlers and brought them into my home port of Castletownbere. The fines imposed on the owners of these trawlers could be described as peanuts. While it is all right to believe that everything will be in order if we introduce this fine, will the Minister inform the House whether the judges will impose it and implement forfeiture of the vessels of offenders when it is not mandatory?
We will fail in our efforts and the accusing finger will be pointed at us by generations to come if we do not cement the law ensuring that it is illegal for such people to operate fishing vessels with secret holds, ravaging and plundering the fishing stocks off our coasts, so badly needed for our economy.
It was interesting to hear the Taoiseach state he was 100 per cent behind the preservation of whales but is he 100 per cent behind the preservation of such a valuable industry to the future of all our coastal areas? We must remember we are now the only island nation in Europe, Great Britain having been joined to the Continent by the Channel tunnel. It cannot be over-emphasised that the fishing  industry is of paramount importance for the future benefit of the people of our coastal hinterland. We have one of the richest fish breeding grounds worldwide, in the north atlantic ocean, in the waters off our coastline. Alas, there is no point in endeavouring to develop that fishing industry or in maintaining it has a future unless we ensure its preservation to the nth degree. I know that for years under-sized fish have been scooped up in illegal nets by marauding trawlers off our western and south western seaboards. How can we ensure the preservation of decent black sole, plaice, pollock, hake, mackerel, crayfish, or any species of fish that have inhabited our waters in such numbers unless we ensure total compliance with the law?
The Minister has fallen short of delivering the killer blow. He should accept that forfeiture of offending vessels should be mandatory when they contain a hidden or concealed hold. No Minister for Fisheries or the Marine in any other European Union member state today is so gullible as to believe that such fishing vessels are being passed by their senior Departmental officials before being issued with a licence. I cannot understand why the Minister stopped short of rendering the forfeiture of offending vessels mandatory, thereby ensuring the preservation of our fishing stocks for future generations.
I admire the Minister's courage and tact and do not doubt his ability within the Council of Fisheries Ministers. I know he upholds his bailiwick there but he should go the whole hog and agree that forfeiture of such vessels be mandatory. Sympathy has been expressed for fishing skippers when apprehended and brought to justice within our jurisdiction but there should be no sympathy for people who set out indiscriminately to destroy an industry so vital to our economy. That is why forfeiture, as a statutory consequence of conviction should be mandatory and stipulated in the Minister's amendment No. 3. If the Minister does so, there will be no more hidden holds in foreign vessels. In turn, this will lead to a new fishing fleet for our young skippers  from confiscated vessels. In addition, under-sized fishing nets will not be deployed scooping up baby fish which are sold at lucrative prices on Continental markets for paella and other dishes.
It amazes me that we are so native in adopting every European directive enacted by the European Parliament while observing different member states flouting the same laws. How can any country stand over the sale of illegal fish in public markets on the Continent whereas, when our fishery officers catch a fish dealer selling under-sized fish here, he is apprehended and immediately subjected to our laws? How can people in Spain, Portugal, France and Germany get away with this type of behaviour while we continue to be good Europeans?
Mr. Sheehan: I have no doubt that Deputy Coughlan will row in with me this evening even though she differed from me on the last occasion. In his wisdom, the Minister will see fit to introduce the mandatory forfeiture of such offending fishing vessels. There is no point in beating about the bush unless one roots out the rabbit. The Minister has an opportunity and should remember that it only knocks once.
For the sake of the Irish fishing industry and the beleaguered fishermen who are getting the rough end of the stick from other European fishermen they encounter off our coasts the Minister must insert the word “mandatory” in amendment No. 3. I am sure his officials will be only too pleased to do so to put an end to the piracy and stop the plunder of our fish stock and secure the future prosperity of that industry.
Mr. E. Byrne: Having played such a key role in supporting my colleague on  Committee Stage, I feel obliged to row in with Deputy Sheehan. I do not know whether it was a pun when he suggested that Deputy Coughlan should be rowing in the same boat or whether they would be in different boats going in different directions.
Mr. E. Byrne: I arrived on the scene just in time to join in that key decision to defeat the Government for the first time on a Bill. I am pleased to see Deputy Coughlan on the back benches. I am sure she is heading for promotion. The person responsible for the mess, Deputy Lawlor, is not present. Perhaps he will come into the House when the division bells ring.
We should not play down what is involved in concealment and the use of hidden holds on ships. In this case we are trying to get a penalty to fit the crime. We must view sea pirates in a different light. We are dealing with international fraudsters — either ship owners or skippers — who conceal fish in secret holds. The Minister should be realistic about this difficulty. It is reprehensible that any skipper or ship owner could presumably bring his ship into shipyards and have huge sections of the underbelly or the hull of the ship sealed off to conceal the fraud of circumventing the quotas system.
Mr. E. Byrne: I did not see “The Cook Report”. I am trying to visualise the amount of time, effort and money ship owners must go to to weld in huge holds to hide large quantities of fish. The profits from such an operation must be enormous. We should not underplay or be romantic about this on the basis that they happen to be fishermen operating in deep waters. There are international laws and international quotas and ship owners and  skippers, like everybody else, are obliged to live within the law. If people go to such incredible lengths to conceal holds in ships a severe penalty should be imposed. That was the reason I was happy to support Deputy Sheehan's amendment and the reason I am happy to support him again tonight.
I am an urban dweller who is not familiar with the fishing industry but there appears to be a systematic planned campaign by wealthy ship owners or skippers to spend large sums of money with a view to reaping huge rewards. As an island nation with an undeveloped fishing industry a responsible move by us would be to make the penalties severe. Any international trawler or trawlers of any member state, coming into our waters and behaving like modern pirates should be liable to a severe fine and possible confiscation.
Mr. Bradford: There is no need for me to repeat what was said in tour de force fashion by Deputy Sheehan but I would like to be associated with his comments. The basis of his argument is that regardless of what is laid down in law a difficulty will always remain, as we have seen heretofore, that the law as applied in the court may be watered down to such an extent that it does not reflect the wishes of the legislature. Deputy Sheehan highlighted the fact that in many cases the sympathy extended by the court to the offending party or parties resulted in them escaping any severe penalties.
There will always be the possibility through the Minister's amendment No. 3, which the Minister has so generously called “the Sheehan amendment”— we have the Donnelly visas, the Morrisson visas and now we have the Sheehan amendment — that next month or next year the level of fine we suggest will not be imposed on the offending parties. That will mean that Irish waters will be good for illegal fishing.
In his contribution, Deputy Sheehan expressed the views of people living in coastal communities that the strongest possible measures will have to be taken to bring to an end the illegal fishing which  is almost closing our Irish fishing industry. Desperate problems require desperate remedies. While Deputy Sheehan's amendment would have a profound effect so far as the Judiciary is concerned it may well be the only way of making an impact on those who have designs on continuing to fish illegally in our waters.
Deputy Sheehan asked if there was any prospect of introducing an amendment to amendment No. 3. In the event of the Minister's amendment being accepted is there any possibility of examining in six or 12 months time the effect of it, the number of cases which came before the courts, the results of those cases, the number of people who, on conviction, were fined £200,000 and the extra £50,000? I fear that while fines of £200,000 and £50,000 can be imposed, offenders may end up paying fines as low as £20,000 or £30,000 which would not be a sufficient penalty. How severe must the penalty be to ensure that illegal fishing, which has damaged our fishing industry so profoundly, will be brought to an end?
While I fully accept that the Minister's amendment will strengthen the Bill as originally drafted, the removal of the word “mandatory” will leave an opening. Perhaps the horse will bolt through the stable door and we will be back to square one where people will see that there is an advantage to be gained in fishing illegally in our waters and continue on their merry way.
I await the Minister's response to Deputies Sheehan and Byrne because before we could contemplate a watering down of the amendment passed at the Select Committee we need to be reassured that the Minister's amendment will work and that we will not read that people were fined £2,000 to £10,000 because of extenuating circumstances. Without making provision of mandatory sentencing this remains a possibility, unfortunately.
Miss Coughlan: While Deputy Sheehan's amendment was well intentioned we were, unfortunately, unable to accept  it. We did however, accept the ethos behind it. While I do not want to detract from his fame — perhaps he will not want to be as famous when he gets the blame for the fines that will be imposed — the Minister's amendment meets his concerns. The Deputy is seeking mandatory forfeiture. We have had many debates in this House on the question of mandatory sentencing but we have not been able to provide for it. This begs the question as to whether we are being fair and making good law?
If a division is called on this amendment we would send the wrong signal. We are at one in terms of our disgust about illegal fishing, My views are not at variance with those of any Member of the Opposition because I, as a representative of Donegal South West, have to deal with this matter on a daily basis. The Minister's amendment is acceptable and the cumulative effect will be a fine of £250,000. This will tie the hands of those who fish illegally. For many a day we have encountered cases where the owners of Spanish boats relinquished ownership once they were arrested. As a consequence they could not be charged with a second offence which would have resulted in forfeiture. That matter is being addressed in the Bill.
We should accept the amendment because if we are not happy that the Judiciary are not adhering to our intentions we can return to the House and tighten the legislation. I am very happy with what has been proposed tonight. We can all play politics with the amendment but this matter is far too important to call a division. We should send a strong signal that we are united on this issue. If Deputy Sheehan or any other Deputy is unhappy that the Judiciary are not adhering to the Bill it will be up to us, as legislators, to impress upon the Minister, whoever that may be, the need to provide for mandatory sentencing.
Perhaps the Minister will allay our fears by indicating that this fine will make life difficult for those who plunder our waters. As we are all aware, secret holds are not provided for decorative purposes  but for another reason. The Minister has done tremendous work at European level in addressing the problems of illegal fishing. I ask Deputy Sheehan to consider the possibility that the wrong signal may be sent if this amendment is not accepted. I am sure that if the Minister could introduce a further amendment to provide for mandatory sentencing he would do so as he is as committed as the rest of us to resolving this problem. What signal will we be sending if this amendment is not accepted even though we all agree with the ethos behind it?
Mr. McGinley: This amendment has generated considerable interest particularly in fishing areas. The feedback is that there would be widespread acceptance of an amendment the purpose of which was to impose a more meaningful fine for such offences. We should not lose sight of the fact that we are dealing with two specific offences, the first of which is the provision of a secret hold in a fishing vessel. As Deputy Coughlan said, a secret hold is not constructed for decorative purposes. It is provided for the specific purpose of illegal fishing and the violation of regulations. Unless we are prepared to tolerate piracy on the ocean waves this practice has to be wiped out. One method of doing that is by introducing substantial and adequate fines.
In this amendment Deputy Sheehan proposed a figure of £250,000 for a first offence. I understand that the Minister is now proposing a figure of £200,000. At least it can be said in his favour that he has gone a long way towards meeting the figure suggested by Deputy Sheehan and that he has responded positively. I would go further and suggest that there should be a minimum fine of £200,000 or £250,000. The word “minimum” should be incorporated in an amendment. We would not then be at the mercy of the Judiciary who would not be able to impose whatever fine they liked up to £200,000 or £250,000. Why can we not have a minimum fine of £200,000 or £250,000? As we are all aware, the owners of foreign registered fishing vessels which are towed into our ports either  get off or are fined in court. I would be in favour of confiscation if a captain of a fishing vessel is caught a second time because the current rates of fines do not seem to have any effect, offences are repeated on a daily basis.
The second specific offence relates to undersized fishing nets. I am sure my view reflects that of fishing communities right along our coast in that owners of vessels who go to the trouble of getting undersized fishing net meshes propose to take what they lawfully can within their quota as well as the young fish which ensure the continuation of the species. Some of those people come to our shores having fished out their waters and unless we put a stop to it our rich fishing grounds will end up the same as the coastlines along the countries from which those fishermen come. The Minister has gone some way to alleviate the problem, but the fine should be at a minimum of at least £200,000. In this way we would do a great service to our fishing community. Deputy Coughlan and I met a deputation of fishing interests from Donegal this evening and they outlined their concerns about the crisis facing the industry. This is an opportunity for us to show them that we understand their difficulties. I support the amendment and I hope it will be possible to incorporate the word “minimum.”
Mr. Andrews: I addressed the original amendment by positively responding to the amount of the fine proposed, but unfortunately, I am now called on to alter my amendment by either inserting the amount of the fine as a minimum or mandatory figure.
As Deputy Coughlan stated, the question of mandatory sentencing and fines is complex, and, in the circumstances, I would appreciate if the Opposition would withdraw its request to insert the word “mandatory” in the legislation because it would create difficulties to which I cannot respond this evening. The Deputies are asking the courts to adopt an inflexible attitude to the application of justice, which is not a proper course of action in the circumstances. I would be pleased  to respond within a specified time to a parliamentary question or a review, as requested by Deputy Bradford, on the manner in which the fines of £200,000 and £50,000 are working. A report in that regard could be placed in the Library for the benefit of Members of the Oireachtas.
Mandatory fines have a poor record in terms of conviction levels. In circumstances where a court believes an injustice would be done by imposing a mandatory sentence, it might be unwilling to convict the person involved. Courts are uneasy about imposing mandatory sentences as a matter of practice and, as a matter of ascertainable fact, the discretion and independence entrusted to the courts would be undermined by mandatory sentencing. This is a complex area. The amendment does not seek mandatory sentencing. It proposes a fine of £250,000 to which I am responding positively. However, I have been requested this evening to introduce a mandatory sentence in this regard. That complex area might be more properly addressed on another occasion.
On taking up office I undertook to examine the question of undersized nets, secret holds, the abuse of quotas and so on, and to take draconian measures in that regard. This legislation has done that, particularly section 14, which requires that the court, having regard to the circumstances of the case before it, should order the forfeiture of a vessel on the first offence if necessary.
I discharged my promises to the fishing industry in relation to forfeiture of vessels and fines as requested by a Committee of the House and proposed by Deputy Sheehan. Having regard to the question of proportionality, the balance of justice and the need to be seen to be evenhanded in the application of the law, this penalty might be deemed on judicial review to be excessive. Furthermore, this amendment will not only apply to the predators to which Deputy Byrne referred, but to all members of the Euopean Union. The significance of that must not escape the House's attention. This provision would apply not only to the  Spaniards, but to all other member states.
I would appreciate if the Deputy would meet me in the spirit in which I met his original amendment, withdraw this amendment and accept mine. I will undertake in due course to respond to a parliamentary question on the operability of the fines proposed. The question of a mandatory sentence is too complex to address on this occasion, but it could be addressed by way of amending legislation based on a review of the operability of the present legislation.
Under the provisions of the Bill, the Minister made an effort to improve the position of the fishing industry. My point is similar to that made by Deputy Sheehan. The proposal to increase the fine to £2,500 is sensible as we all know money is made from illegal fishing. The only possible way to control illegal fishing is by imposing increased fines. The old fine was in the region of £500, but it was not imposed and age-old poaching continues. Recently some people were imprisoned for three months for killing a rabbit. Poaching of our inland and coastal fish is disgraceful. I have heard and read of threats to public representatives who highlighted illegal fishing. I appeal to the Minister to accept the proposed fine of £2,500.
Mr. McGrath: I agree with Deputy Clohessy's amendment. In my locality we have seen an increase in the number of attacks on fishery protection officers and officers trying to enforce fishery regulations. We should move towards imposing a substantial fine. The amendment to increase the fine from £1,000 to £2,500 is worthwhile and I hope the Minister will accept it.
Mr. Andrews: Section 16 provides penalties for assaulting a fisheries officer. The purpose of Deputy Clohessy's amendment proposed by the Opposition is to increase the fine on summary conviction from £1,000 to £2,500. The proposed penalty of £1,000 is the maximum fine that can be imposed by the District Court. I pointed that out to Deputy Molloy who tabled a similar amendment on Committee Stage. After I explained to him why it was not possible to accept his amendment, he withdrew it. I cannot accept this amendment. Section 16 provides the following penalties for assaulting or obstructing a fishery officer: for an assault on summary conviction a fine not exceeding £1,000 or imprisonment up to 12 months or both, which is quite considerable; on indictment, such a fine as the court may impose or up to five years imprisonment or both, and for obstruction, on summary conviction a fine not exceeding £1,000 or imprisonment up to 12 months or both. Section 16 provides penalties for assaulting or obstructing a fisheries officer. The penalty proposed for a summary conviction for assault is £1,000. The reason for proposing this amount is that it is the maximum fine that can be imposed by the District Court.
I am conscious of the work carried out by fishery officers and the need to provide them with adequate protection, in so far as the law can protect them in the course of their duties. In many instances they have been subjected to the most appalling physical violence. That is not acceptable to this Government nor will it be to any future Government. The penalties offer the fullest protection the law can provide but I do not want to under-estimate the role these officers play in the protection of our fisheries. They do an exceptional job in a courageous fashion and the Deputy's amendment was put forward in that spirit. I cannot accept it because of the rules of the District Court as distinct from those I might wish to apply. My hands are bound.
Mr. Clohessy: A large amount of money is made from illegal fishing on our shores and inland. This occurs regularly and fishery officers complain about it frequently. Will the Minister consider this amendment in the Seanad?
Mr. Andrews: I do not wish to mislead the Deputy or the House. I could easily say that I would consider it in the Seanad and it would be a simple way out of the matter, but I am bound in law not to consider it having regard to the maximum fine being £1,000 on summary conviction.
Mr. Andrews: I accept the spirit in which the amendment was put forward, but it would be a matter for another occassion and possibly another Minister to decide the rules and regulations and fining maximum fines in the District Court.
|Reference Number||Section of Principal Act||Fine||Forfeiture|
|4||Section 223A of the Principal Act (conservation of fish stocks and rational exploitation of fisheries).|
|(a)||Orders under the section relating to capacity plans.||Fine not exceeding £200,000.||Forfeiture, as a statutory consequence of conviction of the offence under the said section, of—|
|(a) any fish,|
|(b) any fishing gear,|
|(i) on the boat to which the said offence relates, or|
|(ii) in any other place where they may be.|
|(b)||Orders under the section relating to undersized nets.||Fine not exceeding £50,000.||Forfeiture, as a statutory consequence of conviction of the offence under the said section, of—|
|(a) any fish,|
|(b) any fishing gear,|
|(i) on the boat to which the said offence relates, or|
|(ii) in any other place where they may be.|
|(c)||All other orders under the section.||Fine not exceeding £20,000.||Forfeiture, as a statutory consequence of conviction of the offence under the said section, of—|
|(a) any fish,|
|(b) any fishing gear,|
|(i) on the boat to which the said offence relates, or|
|(ii) in any other place where they may be.|
An Ceann Comhairle: The Bill must be recommitted in respect of amendment Nos. 4, 5 and 12 as they do not arise out of Select Committee proceedings and I suggest those amendments be discussed together.
Section 28 of the Fisheries (Amendment) Act, 1962 makes it an offence to purchase salmon and trout without a dealer's licence. The amendment proposes to extend the provision to include eels and molluscan shellfish which would include oysters, mussels, clams and abalone. The amendment will also consolidate Part X of the 1959 Act — the Principal Act is defined as the Fisheries (Consolidation) Act, 1959 — which deals with salmon, trout, eels and molluscan shellfish. Consequently, section 28 of the 1962 Act can be repealed as proposed. The penalties specified for an offence in the original section are also being revised upwards. Again this is being done in the spirit of the views expressed by Deputies.
Section 28 of the Fisheries (Amendment) Act, 1962 introduced restrictions on the sale of salmon and trout. It made unlawful the purchase of salmon and trout by any person who was not a holder, or the authorised agent of a holder, of a Part X licence which relates of salmon, trout, eels and mulluscan shellfish. Certain exceptions were made where salmon and trout were bought for specified bona fide purposes. Authorised agents needed to produce documentary evidence of authorisation when requested by an inspector. Penalties were also imposed for giving false and misleading information. These provisions are ancillary and supplement the provisions of section 154 to 163, inclusive, of the 1954 Act. It was considered that it would be better placed in the 1959 Act so that all provisions on licensing can be found side by side. The intention is to consolidate all  licensing matters in the Fisheries (Consolidation) Act, 1959.
Mr. McGrath: I accept this amendment and welcome the inclusion of eels as one of the types of fish for which one must have a Part X licence. It is a welcome amendment to the original Act of 1959 which will make life much easier for many fishery enforcement officers particularly in the midlands.
One of the purposes of the Bill is to extent restrictions on the sale or possession of salmon and trout to include eels and molluscan shellfish. The purpose of these amendments is to include references to molluscan shellfish in a number of cases where it is lacking.
This is a drafting adjustment required on foot of changes to section 159 in Committee to require a licence for each premises from which salmon, trout, eels or molluscan shellfish are sold. At present multiple outlets are required to have only one Part X licence and to keep only one register while owners of single outlets have to pay the same fee for their one outlet. The administrative costs for the fishery boards of checking the outlets of the multiples are substantially greater than for checking one shop. In the  interest of justice it is appropriate that the fee should be extended unit by unit in the context of multiple outlets. The change will make the implementation of the Part X licence provision more equitable and just. The licence costs £60 which, given the profits from the sale of the product, is not large. I have no doubt this amendment will find favour with the body of the House.
163A—(1) Subject to the provisions of subsection (2) of this section, a person who is not the holder, or the agent duly authorised in writing in that behalf of the holder, of a Part X licence for the time being in force and who buys salmon, trout, eels or molluscan shellfish shall be guilty of an offence and shall be liable on summary conviction to a fine, not exceeding £1,000 in all, of an amount not exceeding £500 together with an amount not exceeding £50 for each salmon, £50 for each kilogram of eels or molluscan shellfish and £10 for each other fish in respect of which the offence is committed and any fish in respect of which the offence is committed shall, as a statutory consequence of conviction, stand forfeited.
(b) the bona fide purchase of salmon, trout, eels or molluscan shellfish, by or on behalf of any person for use for catering purposes in premises in which he carries on the business of a hotel, restaurant or guest house or of providing board and lodging or meals for reward if the purchase is made from—
(ii) a fisherman who is lawfully engaged in taking and killing salmon, trout, eels or molluscan shellfish, as the case may be, and who (where the purchase includes any salmon or eels) is the holder of a fishing licence which is for the time being in force and is available for use for the taking and killing of salmon or eels, as the case may be, in the fishery district in which the salmon or eel, as the case may be, is taken or killed,
(I) obtains from the fisherman a statement in writing containing his name and address and (where the purchase includes any salmon or eels) the number of his fishing licence and stating that the salmon, trout, eel or molluscan shellfish, as the case may be, is of his own lawful capture and
(3) A person who is buying salmon, trout, eels or molluscan shellfish and purports to be acting as an agent of the holder of a Part X licence shall produce  on demand by the inspector his authorisation to act as such agent and if he refuses or fails to produce his authorisation or, on the production thereof, refuses or fails to permit the inspector to read the authorisation there and then, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.
(4) A person who when the production of his authorisation aforesaid is lawfully demanded of him under this section does not produce the authorisation shall be deemed to refuse or fail to produce his authorisation within the meaning of this section.
(5) Where, pursuant to subsection (2) of this section, a person (in this subsection referred to as the vendor) selling salmon, trout, eels or molluscan shellfish, to another person gives to that other person a statement in writing which, or any part of which, is, to the knowledge of the vendor, false or misleading, the vendor shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.
Mr. McGrath: I thank the House for allowing us to debate this amendment which proposes to make it an offence to be in possession of an eel fishing net. I tabled this amendment following discussions with fishery officers, rank and file gardaí and Garda officers in my locality. They feel it would strengthen their hand considerably if they were in a position to prosecute people found in possession of eel fishing nets without being able to justify having them. I am aware that the 1959 Act provides that possession of nets in the vicinity of a waterway can lead to a prosecution. I want to broaden that provision to include possession of eel nets in any location, bearing in mind that if I am suspected of being involved in house breaking and am found in possession of house breaking implements, it is possible to prosecute me. I am referring here to people who have eel nets, many of whom are known to be involved in illegal eel fishing and some of whom would have been prosecuted already. I am aware of one person who has a shed full of eel nets, many of them probably stolen, and under the law as it stands, he is entitled to keep them. This has led to people passing nets to others who fish for them and are paid a few pounds for the eels taken. In my area some young people were given eel nets to fish and sold their catch, with tragic consequences. We need to deal with people, many of whom use the money they make from their illegal eel fishing for subversive purposes. Recently in my area a considerable cache of arms was seized and I have no doubt that many of the people involved take part in illegal eel fishing. They are involved with subversives and perhaps facilitate others in that regard.
I know the amendment may not be perfect in its drafting and I can see difficulties with it — for example, a fishery  officer who has eel nets would be liable for prosecution under it. The wording may need to be tightened up but I would ask the Minister to accept it in principle because the practitioners on the ground believe their hands would be considerably strengthened by such a regulation.
Mr. Andrews: The Bill as drafted deals with this point. While the spirit and intention of the proposed amendment is understandable, nevertheless it lacks perfection and legal purity. In the circumstances it would be neither practical nor appropriate for me to accept it. The reason for the amendment is understandable as it has proved difficult to obtain convictions against known eel poachers some of whom store eel fishing gear, ready for use. There are restrictions in sections 95 and 96 of the Fisheries (Consolidation) Act, 1959, on the possession or control of nets in the vicinity of a lake or a river but the onus of proof is on the defendant to show he did not intend to use the net illegally.
I am aware of the tragedies referred to by the Deputy. As he pointed out, there are many difficulties in imposing a blanket ban on the possession of eel fishing nets. For example, as eel fishing expires on 31 December each year and these licences are generally renewed in March, April and May, the proposed amendment would make illegal the possession of nets by fishermen in the intervening period. It would also cause difficulties to those who repair or transport eel fishing nets in that possession of eel fishing nets would be illegal unless they happened to be licensed to fish. Most eel fishing nets used here are imported and therefore transport companies carrying such nets could be breaking the law. I am sure it was not the Deputy's intention to introduce such a proposal.
It is expected that the new provisions in the Bill will lead to a severe curtailment of activities of eel poachers by making it very difficult for them to move illegally caught eels. The Deputy's firm purpose of intention is laudable and praiseworthy, particularly having regard to his experience,  but, as he said, his amendment is effectively flawed and for that reason as well as the other reasons I have enumerated, I cannot accept it.
Mr. McGrath: I thank the Minister for his kind words. At drafting stage I realised the difficulties I would encounter in having such an amendment accepted. Perhaps the Minister and his officials would consider another way to deal with this matter — for example, people who have been convicted for fishing illegally could be prevented from holding nets again, although that may impinge on a person's freedom to hold a licence again. People with a large quantity of nets, many of them stolen, do not mind if they lose five or ten nets. They are immune from prosecution. I understand the Minister's argument but perhaps he would ask his experts to consider the matter with a view to introducing a regulation or including in this legislation in the Seanad a provision that would strengthen the hand of the Garda and the fishery officers.
Mr. Andrews: I will not undertake to amend the measure in the Seanad but I will consider the operation of the new legislation to see how it is working and if after a period it proves to be defective I will reconsider the matter. I cannot give the Deputy any undertaking on the type of amendment he requires.
This amendment arises from discussions with fishery officers, rank and file gardaí and senior Garda officers. I mentioned in the House that fishery officers and gardaí, after painstaking work, brought  to court a number of people for illegal possession of eels and in the course of evidence being taken the people involved presented a person from County Cavan who had a legitimate licence and claimed that the eels which were seen being taken from a lake in County Westmeath, were merely eels in transit. He stated that they were his eels and they were put into Lough Ennell to give them a drink of water while in transit. Thankfully, the learned judge disregarded the evidence.
Cases arise on occasion whereby people in possession of eels are accompanied by a licence holder who may have a licence in County Mayo, Clare or elsewhere and are in possession of eels in County Westmeath. This is a difficulty. I can see difficulties also with my amendment. For example, if the part-time licence holder dealer is not within five miles of the fisherman's premises or the lake, how does one get the eels to him? Perhaps a distance of five miles is too narrow a radius. What we need to stamp out is the kind of practice whereby somebody with a licence in counties Clare or Mayo may claim that the eels found in his possession in County Westmeath are a legitimate catch held by him. My amendment is probably flawed but the Minister will appreciate the spirit of what I am saying on the need to strengthen the hand of fisheries officers and the Garda to enable them to track down the offenders bearing in mind their associations.
Mr. Andrews: The Deputy is being extremely reasonable in the sense that he recognises the difficulties in meeting his proposals. There is a very serious difficulty with the proposed amendment which would cause considerable problems for licensed fishermen. There are many licensed fishermen who live more than five miles from where they fish. There is also the question of the sale of the catch of eels which, under the proposed amendment, would require dealers to go to the fishermen and buy the eels as they are caught. This would be impractical and would impede unnecessarily the development of the eel fishing industry.
Should it be decided — and this may console the Deputy — that a restriction  on the movement of eels by licensed fishermen would be necessary, it is possible at any stage to include that as a condition of the authorisation, the breach of which would attract a fine of up to £1,000 plus the forfeiture of any fish and gear. As the Deputy has said the difficulty is in the drafting of the amendment. The intention is well meaning but in the circumstances I cannot accept it.
Mr. McGrath: It is appreciated that the Minister realises the difficulties involved but I ask him again to look at the issue and perhaps at some stage the movement of eels caught illegally will be curtailed.
This could be an extremely lucrative industry. It is estimated that £4 million worth of eels are exported live annually. If we were to process the eels in some way we could increase their value manifold. We should also bear in mind that this would create much needed employment. It is very important then that we protect what is a growing industry, a very lucrative industry with even more potential. Any regulations that can be brought forward to make it easier for legitimate eel fishermen to make their living and thereby bring prosperity to the country would be welcome.
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