The row over the Sea Fisheries and Maritime Jurisdiction Bill is expected to take a further twist this week with a decision by the Joint Oireachtas Committee on the Marine to publish its independent legal opinion.
The legal opinion, which states that there is no constitutional impediment to a scheme of administrative sanctions for fisheries offences, will be laid before the Oireachtas as a public document.
The Bill is back before the Select Committee on Communications, Marine and Natural Resources this week.
The legal opinion prepared for the Oireachtas committee by senior counsel Eanna Molloy is at odds with advice which Minister for the Marine Noel Dempsey and Minister of State Pat the Cope Gallagher say they received from the Attorney General.
The two Ministers said the Attorney General has constitutional difficulties with switching from a criminal to administrative penalty system for fisheries management, as favoured by the European Commission.
Mr Dempsey re-emphasised his view in a letter to joint Oireachtas committee members last week, when he said "fishermen who are honest and comply with the law [and this, I believe, is the majority] have nothing to worry about in this Bill".
The Minister was responding to 11 questions put to him by the joint Oireachtas committee on foot of the legal report prepared for them by Mr Molloy. The legal summary, which has been seen by The Irish Times, says the European Commission prefers an administrative system, and says the Constitution allows for it under Articles 15 and 37.
Many schemes of administrative sanctions have passed constitutional challenge in the Supreme Court, it says, and there are on-the-spot fines without criminal penalty for road-traffic offences, litter pollution and inland fishery regulations.
"Criminal process should be reserved for systematic criminal intent, and not fishing ventures having to cope with unpredictable weather and hazardous sea conditions," Mr Molloy says in his summary.
He highlights some of the inequities in the current fisheries management system where the implementation of the quota system devised in Ireland "markedly discriminates against individual Irish fishermen".
Mr Molloy says this is because other EU member states do not sub-divide their state quota of fish beyond producer organisations. Therefore, Naval Service patrols cannot detain foreign vessels which they suspect to be engaged in over-fishing.
