Two Year Use it or loose it rule runs into further problems
After my recent Article in relation to issues concerning the rule and its operation, I was instructed to challenge the operation of the rule and, indeed, the very legality of the rule in light of its effect and the fact that the European Convention of Human Rights as well as the Charter of Fundamental Freedoms, both applied.
Having issued the proceedings it transpired that there has been a significant problem with the process for some considerable time and it would now appear that there is a significant trawl to be carried out by Fishermen to ensure that they are not missing out on a second chance to save their lost capacity.
The 2003 Fisheries Amendment Act
This Act created the appeals process from the decision of the Sea Licensing Authority. When the then relevant Ministers created the 2003 and then the 2006 Policy Directives introducing and then amending the two year loose it rule, it was the right of every Fisherman to appeal that decision to an Appeals officer who was created by the 2003 Act.
There are, at any time, two appeals officers. These Appeals officers are created by Statute and then individual appeal officers are appointed in due course.
It has been the convention to appoint Barristers to this position.
Term of Office
Each Appeals officer is appointed to the position for a specific term.
It transpires that one of the Appeals officers term expired in 2009 not withstanding that he was still hearing appeals in 2011.
The consequences are clear – anyone who received an adverse decision within the time frame, is entitled to have that decision set aside and at worst have a re-hearing of the appeal.
Steps to be taken
Firstly, you should ascertain when your appeal was filed, when the hearing took place (if there was a hearing) and the date the decision was published.
Secondly, it is vital that if you fall within the time frame that you would take steps to commence the process of having the decision to have your capacity set aside, reversed.
Thirdly, I have said before that given the value of capacity (in sow instances it is the entire capacity of a vessel), you should seek representation.
While there is more information concerning this development, clearly there are limits as to what can be covered in an Article.
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