Banning fishing for Eels

It’s no great news…..that the Irish government is not in the best odour with anyone at the moment so far as its performance is concerned. It’s also fair to say that so far as Fisherman are concerned, this simply means that everyone else has come around to their pre-existing point of view. The latest notable change is the closing of the eel fishery in Ireland. However, it is the fact that the Irish government, alone of all governments in Europe, has reacted to the European Commission’s requirements to reduce the load on eel stocks by banning fishing entirely that raises questions as to whether or not this closure may now be open to challenge.

The possibile challenge comes from the fact that the State must now act in a proportionate way if it wants to interfere with any right – including those involved with the eel fishery.

This obligation comes from two main sources; the first, which has become much more sharply focussed in recent years in the decisions of the Courts, is from the Constitution; essentially the State cannot use a sledgehammer of a law to crack a nut of a problem if there is a less drastic way to solve the problem. So, for example, laws relating to criminal investigations and domestic violence have been shot down as being unconstitutional because they were disproportionate; there was a less extreme way to solve the problem and as a result, the law was simply out of order.

The newer source, however, is in the European Convention on Human Rights. As of the coming into force of the European Convention on Human Rights Act 2003 at the beginning of 2004, all public bodies – which, under that Act, includes any body carrying out any legislative or executive function of the State – must carry out its duties in accordance with the Act.

This seems quite abstract; it’s not. What it means is that the Irish State, in enacting and in policing the Directives from the European Commission, must do this in a way consistent with your rights under the European Convention. Those rights under the Convention include business and property rights. In decided Convention cases in the past, fishery rights have been included under just those headings.

Also, any interference with those rights cannot be disproportionate; it must be necessary in a democratic society, and can’t simply be the most extreme – and easiest for the State to enforce. Furthermore, the State must show it carried out some form of balancing of the aims to be achieved, the means used to achieve them, and the damage to the rights of those involved.

Part of the judicial or legislative function of the State is enacting and policing European Directives and Regulations. The Human Rights Act makes no exceptions for fisheries. In other words, the State can’t simply ride rough-shod over the rights of fishermen, but must act proportionately in enacting and policing what comes out of the Commission.

To return to the concrete example of the eel fishery; the Commission wants member states to reduce the catch of eels and thereby reduce the load on eel stocks. Fair enough; the State has to comply.

However, the Irish State is the only state in the EU – the only one – to simply ban fishing for eels outright. Other member states, including the UK, have managed to comply without simply closing down the eel fishery.

As has been pointed out in the Irish Times – hardly a traditional bastion of support for fishermen – this leads to the farcical situation where on rivers such as the Erne, which cross the border between North and South, fishing is allowed for eels on part of the same waterway but banned on another for no biological or scientific reason whatsover. After all, it’s not like the eels know where the Border is or pay any attention to it; if people going shopping in Newry don’t, why should the eels?

The question is whether the State can show banning fishing for eels outright is the only way in which they could have complied with the Commission’s demands; if not, if there was a way in which it could have done so without an absolute ban, there has to be at least a doubt as to whether that was proportionate or would pass muster under the Human Rights Act.

As the example of the Erne makes clear, if there was no need for an absolute ban on a different part of the same river, it’s hard to see how it can be claimed that there was no other way, given that they seem to have managed to find just such an alternative in Northern Ireland.

Of course, while the eel fishery is the most recent and arguably one of the clearer-cut examples, it isn’t the only one. There are many other areas where the State has clearly gone for the simple, extreme option, and has certainly seems not to have taken the route interfering least with the rights and interests of fishermen. There isn’t the space to go into those here; it’s enough to say that most fishermen could probably list them, chapter and verse, in their own case.

The real point of interest is that the State must carry out its business in accordance with the Human Rights Act; if it doesn’t, it’s acting unlawfully, and the decisions or actions of that public body may be ruled out of order and struck down.

Of course, nothing is certain, and the Courts may well give a fair bit of leeway to the State in going about its business; but at the least, it would be interesting to see fisheries challenge under the Human Rights Act, if only to make the State show its hand on how exactly it says it take the interests of fishermen into consideration in making its decisions.

For More information contact Dermot Conway on 021 4901000 or