Seanad Éireann - Volume 168 - 18 October, 2001

Law of the Sea (Repression of Piracy) Bill, 2001: Report and Final Stages.

  An Cathaoirleach: I remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.

  Government amendment No. 1:

    In page 4, line 11, to delete “(other than a boat propelled by oars)”.

  Minister of State at the Department of the Marine and Natural Resources (Mr. Byrne): During the debate last week the definition of “ship” was discussed. The Minister has decided that the deletion of “other than a boat propelled by oars” would improve the Bill. It will widen the definition of the section which now includes all boats, whether motorised vessels or manually propelled. I understand Senator Costello and others raised this issue. We are happy to propose the amendment.

  Mr. Costello: I thank the Minister of State for accepting the amendment. It improves the definition being discussed. I raised one other element in terms of the definition of a ship which is a submarine and asked whether it comes within the description. For example, section 3(1)(a) which deals with piracy refers to “. . . crew or passengers on board a private ship and directed against another ship. . . ”. Does an underwater vessel come under the definition? I accept the amendment and agree it is an improvement, but would “submarine” come within the definition if there was a hostile submarine that could have the same effect as a boat or a ship that is on the water?

  Mr. Byrne: A State ship is not included. I know where Senator Costello is coming from because in the area where I live there was great submarine activity. It has abated somewhat now but they are still there. A State ship is not included.

  Amendment agreed to.[395]

  An Cathaoirleach: We come to Government amendment No. 2. Amendment No. 3 is an alternative and both may be discussed together by agreement.

  Government amendment No. 2:

    In page 5, to delete lines 19 and 20, and substitute the following:

      “(ii) use of firearms or other weapons or anything capable of being used to endanger life or disable persons by such members or passengers,”.

  Mr. Byrne: This issue was debated at length on Thursday last. The Senators and the Minister agreed that a wording needed to be found which would ensure that any agents, objects or chemicals be covered which could possibly be used to endanger life or disable persons. The amendment proposed covers any possible article, tablet, chemical etc.

  Dr. Henry: I think last week the Minister, Deputy Fahey, thought I was picky about this issue. I am glad to see the Government amendment but I would prefer my amendment. The Minister accused me at one stage of playing games, which I certainly was not. I had a similar type of debate with the Minister on 13 June 2000 on the Merchant Shipping (Investigation of Marine Casualties) Bill. In this House we are supposed to have vocational representation and I always felt that the least we could do was make some use of our experience. It was stated that if it was suspected that the person in charge of the vessel which had been involved in an accident was under the influence of drink or drugs, specimens could be taken from the person. I asked that that be changed to specimens of blood or urine, and I did not ask that for my own entertainment. I asked it because that is the usual method in forensic medicine of acquiring specimens.

  I spent some time asking the Minister why he wanted such a broad definition of just specimens and he said it was because the Attorney General wanted it. I asked for descriptions of the conditions the Attorney General felt might be necessary to have such a broad definition and if he would be seeking liver biopsies. We got to such a state that another Senator from the Government side suggested we might want to take brain specimens in case the person had a brain tumour. Let me assure the House that this is not how a diagnosis is made of a brain tumour. That is why I tabled my amendment which was defeated.

  Within a short time a forensic pathologist asked why had I allowed this to happen because under the legislation someone accused of taking drink or drugs could perhaps provide toe nail clippings or some such specimen. I did not query the position last week for entertainment. Therefore, I tabled the amendment on Committee Stage. I wish to make it clear to the Minister of [396] State that I had good reason for tabling the amendment.

  The Government amendment looks fine and I am sure a great deal of care and thought went into wording it. However, I would prefer my amendment which is taken directly from the Firearms and Offensive Weapons Act, 1990, with which there has been no problem for 11 years. It is a good idea to follow legislation which has been tried and tested. There is very little difference between the amendments. Section 9(4)(a) of the Firearms and Offensive Weapons Act reads, “any flick-knife, or” (b) “any other article whatsoever made or adapted for use for causing injury to or incapacitating a person”. Given that such a useful phrase has been used for 11 years and has caused no problem, I find it difficult to understand why another phrase, which is very similar but not the same, is being inserted. I would like the Minister of State to accept my amendment to have consistency in the legislation.

  Mr. Costello: I second Senator Henry's amendment. She makes a logical point that the definition taken from the Firearms and Offensive Weapons Act, 1990, which has stood the test of time, should be accepted. The Government amendment reads, “or other weapons or anything capable of being used to endanger life. . . ”. Two different words are used here, one of which is to endanger life or disable, whereas Senator Henry's amendment reads, “adapted for use for causing injury. . . ”. One can cause injury without endangering life. It could be a threat or one could incapacitate someone. Perhaps both are better expressions. The phrase “endanger life” is not as strong. The phrase “causing injury” is the threat of what the weapon could do. The phrase “incapacitate a person” is probably a better phrase than “disable a person”. The choice of verbs is probably better in Senator Henry's definition.

  Mr. Byrne: I am happy with the amendment the Government proposes because it incorporates everything Senator Henry has in mind. I take this opportunity of complimenting her, and indeed all Senators, because it is in our interest to put through this House the best legislation possible. Suggestions made by Senators must be taken into consideration and I would like to think we have done that.

  There is very little difference between the amendments. Given a small element of bias, I believe my amendment may be a little stronger than Senator Henry's amendment. She is certainly going in the same direction and I take on board everything she says. However, I believe my amendment is strong enough and incorporates her concerns. It is probably because she raised the issue that we agreed to table this amendment. I believe it will make for better legislation, for which I thank her.

  Dr. Henry: Forgive me for saying so but the Government has started making up meanings of [397] words and descriptions, which I find very foolish. That is why it would be better to include something which has worked satisfactorily for the past 11 years. This legislation has been used and has anyone heard of its being challenged? The word “incapacitating” is better. The Minister of State says there is very little difference between the amendments. If someone wants to refer back to the ranch perhaps it will be considered all right to accept this wording. I am not trying to be difficult but, given that there have been no court challenges to the wording which has existed for 11 years, why not take that wording?

  While I am sure a lot of work and care went into making up the wording, perhaps I should have phoned the Minister of State's Department and said that as we already have perfectly satisfactory wording on the Statute Book why not use that. However, following the bashing I got last week, I was reluctant to contact the Minister, [398] Deputy Fahey. Of course, I could have contacted his officials who were perfectly reasonable and charming. I believe my amendment, which is copied, is better. I thank the staff of the House for helping me because when people found out what I wanted everyone was most helpful. If something has worked it is a good idea to try to stick with that formula.

  Mr. Byrne: The Senator has made a very strong case. It is the Government's job to enact the best legislation possible. I understand what the Senator is saying, which was reiterated by Senator Costello, in regard to injury rather than endangering lives or disabling a person. Given that we received advice from the Attorney General, perhaps the Senator will accept that we will give the matter further consideration in the Dáil. However, I cannot withdraw the amendment.

  Amendment put.

    Bonner, Enda.

    Cregan, John.

    Farrell, Willie.

    Fitzgerald, Tom.

    Fitzpatrick, Dermot.

    Gibbons, Jim.

    Glynn, Camillus.

    Kett, Tony.

    Kiely, Rory.

    Leonard, Ann.

    Lydon, Don.

    Mooney, Paschal.

    O'Brien, Francis.

    Ó Fearghail, Seán.

    Ó Murchú, Labhrás.

    Quill, Máirín.

Níl

    Burke, Paddy.

    Caffrey, Ernie.

    Coghlan, Paul.

    Cosgrave, Liam T.

    Costello, Joe.

    Cregan, Denis (Dino).

    Henry, Mary.

    Jackman, Mary.

    Keogh, Helen.

    Manning, Maurice.

    O'Toole, Joe.

    Ross, Shane.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Costello and Henry.

  Amendment declared carried.

  An Leas-Chathaoirleach: Amendment No. 3 is in the name of Senator Henry. As amendment No. 2 has been accepted, that amendment cannot be moved. Amendment No. 4 is in the name of Senator Costello. Amendment No. 5 is related so the proposal is that we discuss amendments Nos. 4 and 5 together, by agreement.

  Amendment No. 3 not moved.

  Mr. Costello: I move amendment No. 4:

    In page 6, lines 1 and 2, to delete “€3,000 (£2,362.69)” and substitute “€10,000 (£7,875.64)”.

These two amendments relate to the considerable discussion that took place here on Committee Stage when it was expressed on all sides of the House that some change in relation to the fines and prison sentence provided for in the legislation would be desirable.

  As I recollect, the Minister made the point that it was the Attorney General's function to bring all cases on indictment to a Circuit Court. It would appear that the appropriate place for as many cases as possible to be dealt with would be in the lower courts, the courts of summary jurisdiction, rather than on indictment to the higher courts. It would save the Exchequer expensive legal charges and matters could be dealt with more expeditiously. It was made clear that one had to specify a fine and that the Attorney General had agreed that the fine should be €3,000. I am not sure how infallible the Attorney General's discretion is in this matter, but if the Attorney General is the person who has the sole jurisdiction it is not inappropriate to suggest a different minimum or maximum fine and a different maximum penalty. I understand the Attorney General has come up with this figure of €3,000. This is the first time it has appeared. I have no [399] idea what criteria he used to come up with it. It is £2,362.69, so I am sure he had some difficulty in putting that together.

  This is probably one of the last occasions we will have both the euro and the punt specified in a Bill, but €3,000 is less than £2,500. This legislation deals with serious offences including boarding a ship, mutiny, seizure of property, ramming, etc. They are all serious offences committed either on the high seas or in inland waters and I would have thought the Attorney General would have been intent on allowing the greatest flexibility possible in terms of the summary courts dealing with cases that come before them. From that point of view, an amount considerably in excess of €3,000, perhaps €10,000, and doubling the prison sentence from six months to 12 months would be more appropriate. A prison sentence of 12 months would be appropriate because that is the maximum sentence that can be imposed in the District Court for a single offence. If there is more than one offence, the District Court can impose a sentence of two years. We should accept the advice of the Attorney General in this matter and if this House or the other House is of the view that the District Court is the appropriate court to deal with as large a number of offences as possible, for the variety of reasons I have mentioned in terms of cost, expediency and time, why not adjust the fine and the prison penalty to accommodate that?

  Dr. Henry: I second the amendment. Like Senator Costello, I also spoke last week in favour of trying to deal with as many cases as possible in the District Court because the costs to the State are much lower in that court but we ran into a degree of misunderstanding with the Minister because he said that in 20 years in politics he had rarely experienced the attitude he had witnessed that day, either in the Dáil or the Seanad, but he did state:

    Every week of the year the Attorney General brings prosecutions in the fishing industry. They are all indictable offences brought before the Circuit Court for much higher levels of fine. There is no problem here. I, therefore, fail to understand the reason we are wasting time.

He later stated:

    . . . there is no need to worry that the fine for a summary offence is confined to €3,000. Every day in this jurisdiction, under fishery offences, the Attorney General brings fishing boats into harbour. They are indictable offences brought to the Circuit Court.

The confusion, therefore, did not necessarily arise on these benches but from what the Minister said to us. I tried to make myself as clear as possible. I said later that I was dismayed that the Attorney General always takes cases to the Circuit Court, [400] which costs so much more than the District Court. There may have been a level of misunderstanding, but our basic concern was to ensure that as many cases as possible should be brought to the District Court but also that the fine be realistic. Even the Minister agreed that a fine of €3,000 seems low in this day and age. It is not mandatory to enforce a higher fine, a lower one could be imposed. The amendment seeks to provide for a more realistic upper level.

  Mr. Caffrey: I proposed a similar amendment on Committee Stage. It sought to remove summary jurisdiction offences from the legislation but, given that there should be a mechanism for dealing with what would be regarded as minor offences, I accepted it would be inappropriate to completely remove this provision. The amendment creates an indictable offence but I understand the maximum fine a District Court can impose is that provided for in the legislation, so if it was to be accepted, primary legislation would have to be amended. However, I support amendment No. 5, which seeks to increase the maximum imprisonment from six to 12 months. Had my amendment been accepted on Committee Stage, provision for a summary conviction would be removed from the legislation.

  Mr. Byrne: The Bill provides for the following penalties for piracy offences: on summary conviction a a maximum fine of €3,000, or £2,362.69, and-or up to six months imprisonment, or on conviction on indictment, an unlimited maximum fine and-or imprisonment for terms not exceeding 20 years. Penalties for obstruction, failure to comply with a reasonable requirement of, or giving false information to, an authorised officer are, on summary conviction, a maximum of €3,000 and-or up to three months imprisonment and on conviction on indictment, a maximum fine of €6,000, or £4,725.38, and-or up to two years imprisonment.

  It will be open to the Attorney General to decide in each case whether it will be taken to the District Court or there should be an indictment, with the commensurate higher penalties. My Department has received further advice from the Office of the Attorney General. Article 38.2 of the Constitution provides that minor offences may be tried by courts of summary jurisdiction. Severity of punishment is the principle criterion for determining whether an offence is minor. Accordingly, a penalty for an offence that is to be dealt with under summary conviction must not be too severe, otherwise the offence could not be designated as a minor category one and could not be dealt with by the District Court.

  From time to time the Attorney General gives directions as to what he considers to be the maximum summary fine. That may be provided for in legislation. The Office of the Parliamentary [401] Counsel to the Government and Departments must observe these limits in drafting legislation. The current maximum in new legislation, such as this, is €3,000. Previously, the maximum was £1,500. Consequently, I do not propose to accept the amendment.

  Amendment No. 5 proposes to raise the maximum prison penalty upon summary conviction to 12 months. Our advice is that, in general, six months should be the maximum. This would be more in line with the maximum fine of €3,000, therefore, I do not propose to accept the amendment.

  Senator Costello referred to minor versus indictable offences. The Attorney General will make decisions on this aspect. If the offence is serious it will be tried in a higher court where the appropriate maximum penalties would apply. The Office of the Attorney General wrote to my Department on this matter and stated:

    As you know, the maximum monetary penalty on summary convictions was set at £1,500 by this office in 1994. Having regard to the need to provide a rounded figure in euro and taking account of the 18% inflation between autumn 1994 and the present and the view of this office that the figure of £1,500 in 1994 as the maximum summary fine was on the cautious side, the Attorney General is of the view that €3,000 is not excessive as the appropriate figure as a maximum penalty for a summary offence.

    Subject to the above advice it is a matter for the Departments to consider the appropriate maximum monetary penalty for summary offences in each individual case.

That is within the €3,000 parameter.

  Mr. Costello: The Minister of State relies on the advice of the Attorney General as though he is infallible in determining how the legislation operates. The result of this will be that all cases will be dealt with by way of indictment, as has been the case heretofore. We are concerned with relatively serious offences here, including ramming of ships, cutting fishing gear and any act of piracy. In most cases indictment is the likely end result but surely our function as legislators is to seek to ensure that legislation operates as effectively as possible and that where a court of summary jurisdiction can function, the penalties provided should be flexible enough to enable it to do so.

  Given the penalty of a fine of €3,000 and-or six months imprisonment, it will be interesting to ascertain in a couple of years the number of cases that were tried in the District and Circuit Courts. It is likely that very few will be tried in the District Court because of the penalties to be applied. They may be dealt with there at first but not in the final instance.

[402]   I accept that the Attorney General must operate under constitutional constraint and that cases must be dealt with in terms of the severity of penalty to be applied. These principles should be taken into consideration when devising penalties, which is what these amendments seek to do. As it is, these are not severe penalties in terms of the offence, which should be the case.

  I accept the Attorney General has raised the fine of £1,500 to approximately £2,500, which appears to be reasonable. However, these amendments are concerned with maximum amounts which are still small, indeed meaningless, by comparison with the returns that can be made by fishing pirates in what is a multi-billion pound industry. I am not happy about it. Could the Minister look at it again, with the Attorney General, to see what could be done to improve things or is the Attorney General adamant on this matter? This is the first time in six or seven years that the fine has been changed. The last time was in 1994 when it was £1,500. I would appreciate a reply from the Minister.

  An Leas-Chathaoirleach: This is Report Stage and the Senator has exercised his right of reply. I should put the question now, but if the Minister of State wishes to make a point he may.

  Mr. Byrne: It is not proposed that this Bill will redefine what constitutes a minor offence or an indictable one. That is not the reason the Bill came into being. I accept that the hearts of the three Opposition Senators here are in the right place, but we need to accept that, as natural justice suggests, a minor offence is simply that and should be dealt with in a District Court. An indictable offence should be tried in a more senior court. That is absolutely essential. As the Senators make their case strongly and well, though I will not accept the amendment, I am prepared to increase the period of time referred to from six months to 12 months.

  Amendment, by leave, withdrawn.

  Mr. Costello: I move amendment No. 5:

    In page 6, lines 2 and 3, to delete “6 months” and substitute “1 year”.

  Amendment agreed to.

  Bill, as amended, received for final consideration.

  Question proposed: “That the Bill do now pass.”

  Minister of State at the Department of the Marine and Natural Resources (Mr. Byrne): I thank the Senators for their contributions. It is pleasant that this Bill was initiated in this House. Whatever the fireworks of last week, when more people become involved and take sufficient interest, it makes for better legislation. The Senators are here and they are sufficiently [403] interested. Together our efforts have made for a better Bill. I am prepared to accept that not I, the Minister or anyone else on the Government side has a monopoly on knowledge or right. We are prepared to accept things that are proposed to us when they are better. For that reason I thank Senators.

  There is, as everyone here accepts, a need to protect the lives and livelihood of fishermen pursuing their legitimate interests in our offshore area. This Bill will enable us to do that. Living, as I do, on the Hook Peninsula in County Wexford I recall the ramming of the Orchidee by the Agena, a French vessel. Two fishermen who lived in my constituency were lost. I was heavily involved in events subsequently because I live among fishermen and it was very frustrating not to have a mechanism whereby the incident could be investigated. Having followed it up for a long time we eventually had the case tried in the French courts. It was cumbersome and the result was an indictment of the crew of the Agena but, unfortunately, the courts left it at that and no penalty was imposed.

  Due to that and other incidents we are now on the road to putting that mechanism in place. This is a good day's work for the Seanad, it is a good day's work for the Oireachtas and it is a good day's work for the country. Mar sin, ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí go léir.

  Mr. Caffrey: I thank the Minister of State and the Minister for the Marine and Natural Resources for dealing with this relatively small but important Bill. A considerable amount of time – over two days – was spent deservedly on it. We began with some misconceptions as to the purpose of the Bill. In light of what happened on 11 September, all legislation of this nature seems to suggest efforts to deal with acts of terrorism. This Bill was not designed to do that and we have been reassured that legislation is coming through that will address the issues we raised the last day in relation to that sort of activity and the potential for major outrages at sea. Many Senators dealt with the potential for disaster that exists, which is especially obvious when we think of Sellafield and the reprocessing facility that has been commissioned there.

  When we got down to the nitty gritty of the Bill and discovered its real purpose we eliminated many superficial issues and dealt with its reality. I am glad the Minister saw fit to accept many of our amendments and I thank him for that. It is legislation that will help the seafaring community and relieve them of many of the worries they have had over the years due to harassment and other acts on the sea.

  Dr. Henry: The Minister of State has just given a vivid example of why legislation like this is needed. I do not live anywhere near the sea, I only live near a canal, but this Bill is very [404] important and was badly needed. It is good that it was initiated in this House. It is important that it is well recognised that this House is not, and never should be, a rubber stamp. We are supposed to use our collective and individual wits when looking at legislation. I thank the Minister of State for the kind words he said about us today.

  Mr. Costello: I would like to be associated with the remarks that have been made and I thank the Minister of State for the manner in which he has dealt with us today. It has certainly been refreshing considering the rather rough debate which took place on the previous occasion.

  Mr. Byrne: I missed a lot.

  Mr. Costello: It was quite exciting, but there were some misunderstandings. The main problem on the last occasion was that we tried to do too much in one day. We attempted to take all Stages in one sitting and, of course, when that is attempted it does not give a proper opportunity for reflection. Points raised on Second Stage and on Committee Stage are not teased out properly and it was worthwhile to postpone our final deliberations until today. I am glad the Minister of State has accepted the amendments he has. Perhaps he would look again, as he indicated, at Senator Henry's amendment so that its wording might be incorporated somehow into the final text.

  I raised the issue of submarines and it is one that may not have been looked at sufficiently. It could arise in terms of the difficulty of suppressing piracy at sea. It could be incorporated during the Dáil debate. I thank the Minister of State and his staff for their assistance.

  Mr. Bonner: I too congratulate the Minister on bringing the Bill to Report and Final Stages. As usual, he dealt with matters in a practical and sensible way. I can see why he could not give way to Senator Costello regarding amendment No. 4, which sought to increase the fine from €3,000 to €10,000. I doubt the severity of the increase. I accept that the difference between €6,000 and €12,000 would have more major consequences for somebody.

  Mr. Costello: There is sufficient severity there.

  Mr. Bonner: I am questioning how the Senator arrived at a figure of €10,000 given that he accused the Office of the Attorney General of being off the rails regarding the figure of €3,000. I appreciate that the Minister has given Senator Henry a commitment that he may accept amendment No. 3 in the other House.

  Like the Minister, I was not here on the last day we dealt with the Bill, so I obviously missed quite a bit. I congratulate the Minister, Deputy Fahey, and the Senator who deputised for me, [405] Senator Tom Fitzgerald. He feels that this Bill is primarily for the Dingle fishermen and the fishermen of the south-west coast. It is known that they have serious difficulties in that region, particularly with the Spanish trawlers. The Minister and his officials made a great effort to bring this very important Bill to the House, which has significant consequences for our fishermen.

  Question put and agreed to.