A real Appeal?

In 2003 the Fisheries (Amendment) Act was added to the ever increasing list of Statutes that have plagued fishermen. This one appeared, at the outset, to be a little different in that it sought to sign Ireland up to the UN Convention on the Law of the Sea, created an independent Licensing Authority for fishing vessels and an Independent Appeals system in relation to decisions of the Licensing Authority.

The significance of this rests not only with the day to day problems encountered by fishermen in dealing with the licensing Authority but it took on new significance at the introduction of the ‘two year use it or lose it rule’.

This rule has cost fishermen dearly. However, the real difficulty arises in the practical realities of dealing with the consequences of the two year use it or lose it policy.

Restriction as to additional arguments

Under the Act a fisherman has 30 days from the date of the decision to file an appeal. In addition the Act also provides that the appeal must state in full the grounds of the appeal and the reasons, considerations and arguments on which they are based. This therefore has the effect of a fisherman being precluded from bringing any new argument that may arise as a result of something they discover after the appeal.

It also would appear, notwithstanding decisions of the Appeals Officers, that there can be no assistance given where for example, an appointed Surveyor is ill and does not issue a Certificate of Competence in time to satisfy a licence condition.

In addition the Act specifically and deliberately prevents any future elaboration or submission in relation to the appeal notwithstanding the practical difficulties of dealing with a fisherman who has been away fishing and comes home to find himself left scrambling to put together an appeal which could cost that fisherman hundreds of thousands of Euros.

There is no doubt that as a mechanism it is as divorced from reality and common sense. It leaves the Appeals Officers often dealing with cases where they are prevented, by Statute, from delivering justice.

European Convention on Human Rights

Since the enactment of that Statute we have subscribed to the European Convention on Human Rights and this has a dramatic effect on this Act. There are two basic rights recognised (or in the case of fishermen accorded):

1. The right to an independent appeal
2. The right to an effective remedy.

It is without doubt clear that Section 7 ignores these two rights and that the Section is in breach of the Convention but also Common Sense. Coupled with the Constitutional Right to Property and the fact that the ‘two year use it or lose it rule’ is only a Policy introduced by the Minister and I suspect that there could be many fishermen who may have legitimate grounds for complaint for the consequences they have had to put up with as a result of this Act.

Dermot Conway
contact Dermot at 0214901000 or dermot@conways.ie