Sea Fishing Boat Licence Appeal under Section 7 of the Fisheries
(Amendment) Act 2003
Carmel Kelly
Appellant
and
Department of Marine and Natural Resources
Respondent
Facts
The facts are not at issue in this case.
On 31st May 1986 the Rising Sea was lost at sea. Tragically, the Appellant’s
husband, Mr. Brendan Kelly drowned. He had owned 50% of the vessel with a Mr.
Brian Murray, who survived.
A “lost at sea” scheme was set up by the Minster whereby vessels lost at sea may be
replaced by a vessel of equal capacity. The wording of the scheme limited this
replacement provision
“only if it is to be used for the purposes of maintaining a family tradition of sea fishing.
Any capacity accepted as replacement capacity must therefore be used for the
purposes of introducing a replacement for the lost vessel which will be owned and
skippered by the applicant or by an immediate relation of the applicant. Any capacity
from a lost vessel so used may not be sold or otherwise disposed of”
In December 2001 the Appellant and Brian Murray made a joint application under the
“lost at sea” scheme. Mr Murray’s application was not successful but the Appellant’s
application was. She was informed by way of letter of 6th October 2004 that she could
introduce replacement capacity of 26.81 GT and 57 Kilowatt but under a policy
directive, introduced on 17 November 2003, she must do so within a two year period
or otherwise the capacity would be lost. She was reminded that the replacement
vessel must be owned and skippered by her or by an immediate relation of herself.
Whilst the Appellant was able to own a vessel, she was not qualified or trained to
skipper the vessel herself and did not have an immediate family relation who could
take on this task. She met on a number of occasions with representatives of the
Respondent who advised her that the definition of immediate relation could extend to
a niece or nephew however she was advised that she was not permitted to sell the
capacity to a third party and come within the scheme.
A letter dated 16 January 2003 issued by the Respondent to the Appellant advising
her that she was “not permitted to sell or otherwise dispose of any capacity” from the
vessel in question.
On 6 October 2006, the Respondents issued an offer of licence however it was
conditional on the criteria that the capacity be transferred to only an “immediate
relation.”
Appeal
The Appellant submits firstly that the condition that only an immediate relation of the
Appellant can own and skipper the vessel is contrary to the European Convention of
Human Rights in that it is a breach of the right to property under article 1 of the
ECHR.
The Appellant submits that if there is a legitimate aim in “sustaining or maintaining a
family tradition of sea fishing” then the Respondent could have satisfied this purpose
without the disproportionate measure of not permitting the Appellant to sell or
otherwise divest her interest in the replacement capacity to someone other than an
immediate family relation
The second issue is that of the two year time limit. However a preliminary ruling on
the first point was sought in the oral hearing of the appeal. The Appellant
submissions state that the issue of the time limit was only to be determined in the
event that the Appellant was successful in the first point. I do not propose therefore
for deal with the time limit point in this appeal. Although it is perhaps worth noting that
when the appeal was brought (on 6 October 2006 – the day that the licence offer was
made) the Appellant was given a year to accept the terms of the offer. The appeal
process intervened until its determination now.
Issue
This issue for this Appeal is firstly whether the Appeals Officer has jurisdiction to
provide the relief sought.
The relief sought by the Appellant is that the “lost at sea” scheme should be
interpreted in a manner which is compatible with the European Convention for
Human Rights and that the wording of the scheme should be altered to strike down
that portion which makes it a condition that the vessel must be owned and skippered
by an immediate relation of the Applicant.
Preliminary Observation
Initially I wish to point out that no argument has been raised in this appeal as to
whether the “lost at sea scheme” has or does not have statutory footing. Section 3(2)
of 2003 Act stipulates that the “law in force includes policy directives as the Minister
may give from time to time.” However what is unclear is whether this extends also to
“the lost at sea scheme”.
It is unclear as to what the status of the “lost at sea scheme” is, on what footing it
stands or whether other schemes were introduced and what status is.
What is clear is that in order to benefit from the “lost at sea scheme”, an applicant
must have applied prior to 31 December 2001 however there is nothing in the papers
furnished by either party to indicate when this scheme was introduced. Reference is
made in the opening paragraph of the document entitled “Fishing Vessels Lost at
Sea – Criteria for Considering Applications for Replacement Capacity” to 1989
Regulations. However no regulations were issued in 1989 dealing with replacement
capacity of vessels lost at sea.
However, as this point was not raised by the Appellant I have assumed that this is
conceded (perhaps indeed the Appellant is seeking to rely on the scheme). For the
purposes therefore of this decision, the “lost at sea scheme“ is also deemed to be
part of the law of the State.
Determination
On the substantive point raised by the Appellant I find that it is not open to an
Appeals Officer to interpret the wording of the lost at sea scheme by severing a
portion of its wording. Such discretion is not permitted by the 2003 Sea Fisheries
(Amendment) Act.
The law governing the jurisdiction of an Appeals Officer is in section 6 of the 2003
Act.
Section 6 (3)
An Appeals Officer shall be independent in the exercise of his or her functions under
this Act subject to—
(a) the law for the time being in force in relation to sea-fishing boat licensing,
including, in particular, the legal obligations of the State arising under any law of an
institution of the European Communities or other international agreement which is
binding on the State, and
(b) such policy directives in relation to sea-fishing boat licensing as the Minister may
give in writing from time to time.
(4) A policy directive given under subsection 3(b) may require certain prohibitions or
conditions to be imposed in relation to sea-fishing for the purposes of protecting,
conserving or allowing the sustainable exploitation of living marine aquatic species.
(5) Subsection (3)(b) shall not be construed as enabling the Minister to exercise any
power or control in relation to any particular case or group of cases with which an
Appeals Officer is or may be concerned.
(6)Where the Minister gives a policy directive under subsection (3)(b), a notice of
such directive and details of it (including reasons for giving the directive) shall, as
soon as practicable after the directive is given, be laid before each House of the
Oireachtas and published in Iris Oifigiúil.
The Appellant submits that this Appeals Officer should modify the wording of the lost
at sea scheme because it is contrary to European Convention on Human Rights as
implemented by the European Convention on Human Rights Act, 2003.
This argument is rejected.
The obligations under the 2003 European Convention on Human Rights Act are
clear.
Section 2 (1) of the European Convention on Human Rights Act, 2003, states that the
Courts shall interpret its obligations in a manner consistent with the State's
obligations under the convention.
Section 3 puts a mandatory obligation on every organ of the State to perform its
functions in a manner compatible with the State's obligation under the Convention
provisions:
However it is not for any body other than a Court which can interpret legislation to
ensure consistency with the ECHR.
No body other than a Court can “modify” the wording of a statutory scheme so as to
redact a portion of it from the remainder of the scheme. To find otherwise so would
be ultra vires the powers of an Appeals Officer as set out in the 2003 Fisheries Act.
If it were possible to interpret the scheme without altering the wording of it to ensure
consistency with ECHR obligations, then all State organs, including the Licencing
Authority and this Appeals Officer would be compelled to do so. However this is not
what is being urged. The Appellant’s relief is confined to one remedy, namely to alter
the plain meaning of the wording of the scheme and this, an Appeals Officer does not
have the jurisdiction to do.
Decision: Appeal is refused
25 September 2009
Emile Daly B.L.