President Michael D Higgins has turned down an appeal made to him by lawyers for four mussel fishermen to refer controversial new legislation on access to Irish inshore waters to the judiciary.
The legislation restoring access by Northern Irish vessels to Irish waters within the six nautical mile limit was voted through the Dáil last week.
It was signed into law by Mr Higgins yesterday.
In a letter to lawyers for four mussel fishermen - who won a Supreme Court case in 2016 challenging the legality of the “voisinage” or reciprocal access to waters - the President’s secretary general Art O’Leary explained that Mr Higgins may only refer a Bill to the Supreme Court “in circumstances where there is a question” that it, or part of it, “may be repugnant to the Constitution”.
The letter did point out that individuals or groups could still take a case to the courts to challenge the constitutionality of legislation.
The fishermen’s legal advisers are still awaiting a response from EU Commissioner for Maritime Affairs and Fisheries Karmenu Vella over their concerns that the legislation was passed without understanding the real impact on the Irish fishing industry.
“We have no problem with Northern Irish fishermen in Northern Ireland making their living, if this was what this was all about, ”one of the four fishermen, Gerard Kelly of Greencastle, Co Donegal, said.
"Mr Kelly had gone on hunger strike outside the Dáíl last week to try and highlight the issues"
Mr Kelly had gone on hunger strike outside the Dáíl last week to try and highlight the issues to politicians and halted his action after the legislation was finally passed.
“Our problem is that this new law gives sufficient loophole to international companies who might register in Northern Ireland and could then gain access to our inshore waters at a time when the stocks cannot take this amount of effort,” Mr Kelly said.
“The key phrase in the legislation is “owned and operated in Northern Ireland” which is not clearly defined," he said.
“We are not just talking about the impact of increased effort on the mussel fishery, but about the impact on inshore stocks such as Razorfish and clams.”
Vessel length will be restricted when a new ban on trawlers over 18 metres inside the six-nautical-mile zone comes into force in 2020.
The Sea Fisheries (Amendment) Bill, which was voted through by 72 votes to eight, has been flagged as reinstating the voisinage (informal neighbourhood) arrangement in place between Northern Ireland and the Republic from 1965 to 2016.
Access by Northern Irish-registered vessels to Ireland’s baseline to six-mile limit was suspended in 2016 after Mr Kelly and three colleagues won their Supreme Court case.
The court ruled then that Northern-Irish registered vessels had been unlawfully allowed to harvest mussel seed in Irish territorial waters.
The fishermen contended available mussel seed had dropped from 30,000 to 2,400 tonnes in 2012, and the court heard from a shellfish expert who noted the mussel seed fishery was “sustainable” with some good practices, including fishing seed later in the season to reduce mortality, until 2003/2004.
These “good practices” could no longer exist, the expert noted, after Northern vessels had entered the fishery.
The legislation to restore “voisinage” had been in abeyance until the recent detention of two Northern Irish fishing vessels in Dundalk Bay by the Naval Service. Although the two vessels had pleaded guilty and were released without conviction, Taoiseach Leo Varadkar had described it as a “really regrettable incident”. The Democratic Unionist Party had accused the Government of trying to implement a “hard border” at sea.
Mr Varadkar did state it would be helpful if the British government gave assurances that it would not itself withdraw from the 1964 London Fisheries Convention (LFC). Britain declared two years ago that it intended to leave the convention, which preceded the EU Common Fisheries Policy, this July. (2019).
The Irish Fish Producers’ Organisation has argued that the new legislation may give all European parties to the LFC the right of access to Irish waters from six miles into the baseline even after Britain leaves.
A British government spokesman said that “we have always been clear that the voisinage arrangement exists separately from the LFC” and Britain’s withdrawal from it has “no legal effect on voisinage”.
“For this reason, there will be no requirement for Britain to alert other member states in the LFC to any change in Irish legislation”.
British government fisheries spokesman Lord Gardiner of Kimble stated in the House of Lords on March 11th that a number of representations were made by the British government since 2016 to restore “voisinage”.
He said that Mr Varadkar had “committed on March 1st” to “changing the law to restore the status quo to what it was before 2016, and has indicated that he is confident the legislation can be passed quickly”.
“The Minister for Agriculture, Food and the Marine, Minister Creed, has made similar commitments,” the House of Lords was told.
Mr Creed has denied that the amended legislation has anything to do with Brexit, but elements within the fishing industry believe his decision to push through the Bill before Britain leaves the EU is tied into efforts to guarantee future access by Irish vessels to British fishing grounds after Britain withdraws from the Common Fisheries Policy.
