Thursday, 4 February 2010
Dáil Eireann Debate
Minister of State at the Department of Agriculture, Fisheries and Food (Deputy Tony Killeen): The Ombudsman has submitted a special report, dealing with the lost at sea scheme, to the Dáil and Seanad in accordance with sections 6(5) and 6(7) of the Ombudsman Act 1980. The 1980 Act does not set out a procedure to be adopted by the Oireachtas in dealing with this matter. I am pleased to have the opportunity to make this statement to the House to set out my position on this matter.
As I stated last week, I hold the Ombudsman, her office and the work it does in the highest esteem. The investigation carried out by the Ombudsman and her team into this case has been forensic and painstaking and I compliment them on the time and effort put into compiling the report. I take this opportunity to offer my sympathy to the family in question and the very many families bereaved in this way, including some among the other applicants under the scheme. Many of these families have suffered sad loss and found themselves in difficult situations. This is an unfortunate reality of the fishing industry although, thankfully, the improvements in the quality of fishing vessels and the better safety equipment on board have improved the situation over time.
The lost at sea scheme run in 2001 was initiated by the then Department of Marine and Natural Resources, with responsibility subsequently moving to the then Department of Communications, Marine and Natural Resources in 2002. The Department of Agriculture, Fisheries and Food assumed responsibility for sea fisheries matters in October 2007. For the information of the House, I propose to set out a brief outline of the scheme, the context in which it was promulgated and the outcomes of the applications received. I will then explain why the Department does not agree with the Ombudsman’s findings and her recommendation that monetary compensation be paid in this case.
The lost at sea scheme was a limited scheme introduced in June 2001, with a closing date of 31 December 2001. The objective of the scheme was to enable qualifying applicants, who were otherwise unable to do so for financial or related reasons, to continue a family tradition of sea fishing. It was targeted at people who had been fishing and wanted to continue to do so. It was a bounded and time-limited scheme under which replacement capacity — gross tonnes and kilowatts — that would otherwise have had to be bought on the tonnage market was provided free of charge to qualifying applicants. The eligible applicants were those who lost a fishing vessel between 1980 and the establishment of the fishing boat register in 1990, but were unable to replace the fishing vessel for verified financial reasons. The scheme was intended to assist families to introduce a replacement for the lost vessel that would be owned and skippered by the applicant or an immediate relation of the applicant. The objective of the scheme was to allow fishermen or their immediate family members to get back fishing, rather than to award monetary benefit. It was expressly not introduced as a means for a person who tragically lost a family member at sea to obtain payment from the State for this loss.
The terms of the scheme specified further conditions relating to the use of the capacity after the applicant had been deemed eligible. The term “capacity” is used to describe the volume of a fishing vessel, in gross tonnes, and the power of the vessel, in kilowatts. Under EU Regulation 1438/2003, the total capacity of the Irish fishing fleet is limited to 88.7 gross tonnes and 244,834 kilowatts. When the new sea fishing boat register was introduced in 1990, all vessels registered at the time were, in effect, awarded the capacity of their vessels free of charge. Any vessel that had previously sunk or had otherwise been destroyed could not be registered. Any such owner looking to return to fishing would have had to buy a replacement vessel and the necessary capacity in order to do so. Capacity had become a valuable commodity over time because the overall capacity of the Irish fleet had been capped under the EU fleet management rules I have mentioned. While the Department had no role in the tonnage market that had developed, there were indications that capacity was changing hands for up to £4,000 per gross tonne when the scheme was introduced.
Records in the Department that were made available to the Ombudsman show that as far back as March 1999, there were contacts, meetings and correspondence on this issue between interested parties, including public representatives, individual vessel owners, fishermen’s representatives and producer organisations. It was argued that in a number of cases, the cost of purchasing replacement capacity was a factor in preventing families from getting back into fishing after losing a vessel. The records show there was support for and opposition to such a scheme from within the industry. Officials from the then Department of Marine and Natural Resources advised on the merits or otherwise of such a scheme and its conditions. Opinion was divided within the industry. Some parties felt it would be unfair to award free tonnage, in effect, to some people while others had to pay a high price on the tonnage market. Some other parties supported the proposed scheme. From an administrative perspective, it was important to ensure that any scheme could be strictly limited to those who met its criteria. When the decision to establish a scheme was made, the terms and conditions that emerged from the process of consultation necessarily reflected the views of all stakeholders, the public policy considerations and the EU and national legal requirements of the time.
The conditions of the scheme, as published, were submitted in full to the House last week in response to a parliamentary question. Two of the conditions are of importance in this context. The first of them states that the boat in question must be “shown, by reference to log sheet returns or other appropriate records, to have been in active and continuous use for a considerable period of years by the person concerned for sea fishing of a category now covered by the replacement policy rules, until its loss at sea”. The second condition states that “applications under the scheme must be received by 31 December 2001”. The various conditions, including those outlined last week, were rightly non-discretionary, objective and quite stringent. They were intended to ensure that only those who met the criteria in full were successful, only the immediate family could benefit from any capacity awarded, the benefit of capacity for the scheme was to allow the family to return to fishing, and the capacity awarded could not be sold or turned into a monetary amount. The scheme was launched in June 2001 with a closing date of 31 December 2001. At that time, the Department had knowledge of 16 cases in which fishing vessels were lost at sea during the relevant period. The owners of those vessels received written notifications of the new scheme and were invited to apply. Two such cases were ultimately successful. The scheme was intended for those who had been involved in the fishing industry and wanted to continue a family tradition of fishing, where the grant of capacity would enable the applicant or an immediate relation to return to fishing. The advertising was quite successful and the scheme, despite its tight restrictions, received a good response. There were 68 applications by the closing date, of which six were successful in meeting all of the conditions of the scheme and were awarded replacement capacity.
The scheme was aimed at people and families who had a tradition in fishing, had been actively fishing and wanted to return to fishing through the scheme. In light of the objective of the scheme, it was advertised widely in the major fishing trade papers in Ireland — the Marine Times, The Irish Skipper and Fishing News. The various fishing representative groups, including all the producer organisations, were asked to assist in the publicising of the scheme. A number of the 62 unsuccessful applications failed to meet more than one of the qualifying conditions. I emphasise that the scheme did not provide for the purchase of a replacement fishing vessel. The capacity given under the strict terms of the scheme could not be sold or otherwise traded or realised as a financial asset in the tonnage market. The scheme was launched in June 2001, ran for six months and closed on 31 December 2001. The complaint that is the subject of the Ombudsman’s special report was made by an additional applicant whose application under the lost at sea scheme was received in January 2003, over a year after the closing date. As the application by the family in question for replacement tonnage under the scheme was received on 7 January 2003, it was refused on the basis of being received over a year after the closing date of 31 December 2001. In addition, the lost vessel was not in active continuous service prior to its loss — for the purpose of the administration of the scheme, this was deemed to be a minimum of two years. In November 2004, the son of the owner who had been lost with the vessel complained to the Ombudsman that the decision to refuse his family’s application was unfair on a number of grounds, principally that the family had not been made aware that the scheme existed and that its circumstances were such that it should have qualified under the scheme in the first instance.
After extensive examination and correspondence between the various parties, the Ombudsman found for the complainant in her first draft report and decided to award substantial monetary compensation to the family. The Ombudsman concluded that the family did not meet at least two of the conditions of the scheme and that it had been adversely affected by the failure of its application. The Ombudsman found that the advertising of the scheme was not adequate and was a factor in the lateness of the application from the Byrne family. The Department believed that in view of the close-knit nature of the fishing community, it was appropriate in the circumstances to place an advertisement in the three major fishing publications in Ireland, to notify the fishermen’s representative organisations and to write to those involved in 16 known individual cases. The scheme was targeted at people who wanted to continue a family tradition of fishing themselves, or through an immediate relative, if successful under the scheme. There is no certainty that an advertisement in the national newspapers, which would have been much less targeted than publicity in the fishing communities, would have been a better way of reaching the target audience. I consider that there was not then, and there is not now, any way to be absolutely certain that every individual citizen is personally notified about every possible scheme. The scheme was aimed at people with a family tradition in fishing who had been active in fishing and who expressly wanted to return to it. Therefore, targeted advertising and communication channels, most commonly used by the fishing industry and fishing communities, were the most appropriate way to publicise the scheme.
Like the officials in the Department, I have consistently taken the view that this scheme was properly and fairly administered by the then Department of Marine and Natural Resources, which was responsible for it at the time. The Ombudsman has indeed expressly acknowledged that she found no evidence to suggest that, once the scheme was launched, it was not applied equitably. In coming to my view on the Ombudsman’s report, I considered all relevant aspects and implications of the case. As a matter of course, I took legal advice, which was considered and acted upon. I continue to hold the view that in this case, there is no basis for payment in the amount proposed or any amount. In the first instance, the lost at sea scheme did not envisage any monetary awards. The capacity awarded to the successful applicants could not be traded, sold or otherwise disposed of for financial gain.
Deputy Tony Killeen: On the contrary, successful applicants had to provide a replacement vessel from their own resources, and pay for its running costs, to be able to make use of the capacity awarded. In the case of the family in question, no replacement vessel had been purchased and no immediate family member had continued in fishing in the 20-year period between the accident and the inception of the scheme. Given that the scheme was intended to allow families to continue a family tradition of sea fishing, it is difficult to see how it can be sustained that the family was disadvantaged by the failure of an application made 20 years later. The family, perhaps understandably, left the fishing industry for the subsequent 20 years after the sinking. In the exchange of correspondence, the Ombudsman contends that the substantial insurance pay-out received by the family was not relevant to her investigation or to the scheme. The compensation figure of €245,570 that was recommended by the Ombudsman was arrived at by means of the methodology and rates used in the 2008 decommissioning scheme. This completely separate and unrelated scheme involved being paid to voluntarily give up a working active vessel and its capacity, to pay to have it dismantled and to lose the future stream of income from it. In her special report, the Ombudsman outlines the basis on which she believes the amount recommended is reasonable.
At the Ombudsman’s request the Department provided calculations on the basis of those rates and the tonnage of the lost vessel on the understanding that this was a starting point in her consideration of an appropriate amount of compensation. The Ombudsman cites the average payments to the successful applicants under that scheme as being comparable. I do not believe that the situations are in any way comparable. In the case of the decommissioning scheme, the vessel owners had the expense of purchasing and maintaining a vessel. The rates payable under that scheme were intended to incentivise and compensate those owners to voluntarily decommission their vessels entirely and forego the income they would get into the future were they to continue to operate them. The Ombudsman is mistaken in her belief, as cited in her letter of 5 June 2009, that successful applicants under the decommissioning scheme had the option of selling on their vessel as the decommissioned vessel had to be scrapped at the owner’s expense and the tonnage could not be sold on or otherwise transferred. I reiterate that I am of the view that payment in the case investigated is not warranted in the amount specified or any amount in this case.
The Department remains concerned that the recommendation regarding this specific case would give rise to major financial liabilities arising from claims from others who were unsuccessful applicants under the scheme. The report asserts that the recommendation relates to this case only, that the analysis, conclusions and findings flow from the particular circumstances of that case alone and that it has no implications for other unsuccessful applicants. Following full consideration and on foot of legal advice, I do not accept that this assertion is consistent or logical.
The Ombudsman’s finding was that the design of the scheme itself and the manner in which it was advertised were “contrary to fair and sound administration” and that the Byrne family had been treated unfairly as a consequence. I do not accept this. The scheme as applied to the Byrne family was the same scheme as that applied, equitably, as the Ombudsman has acknowledged, to all the other applications received. The considered legal advice given to the Minister contends that it is inevitable that the Ombudsman’s recommendation regarding monetary payment may result in other unsuccessful applicants to this scheme seeking the same consideration and the material circulated by the Ombudsman yesterday confirms the view that this is the case.
I am not convinced that unsuccessful applicants would not pursue cases, were the recommendation to be accepted. Furthermore, some of the successful applicants for the scheme, who could not take up the capacity awarded because of the strict conditions, might seek to use the precedent created by any change in the conditions of the scheme, which would happen were the Ombudsman’s recommendations acceded to. In addition, those who contacted the Department in the year after the scheme had closed or who might have applied in that period also would seek to build a case on the basis of the Ombudsman’s recommendation.
While it is impossible at present to estimate precisely the financial outlay or potential liability that might be involved, there is no doubt that it is likely to be substantial and to have a serious financial impact. There are also, perhaps more importantly, implications for the operation of other administrative schemes across Government that have application deadlines. Members are familiar with schemes that operate to strict deadlines that are enforced and affect people’s daily lives directly. Deadlines are a fundamental feature of most schemes and are strictly enforced and adhered to generally in accepting or rejecting applications under schemes. Totally discounting the deadline in this scheme and accepting the validity of an application that was more than a year late, as the Ombudsman suggests, could have very wide and probably incalculable financial and other implications for public administration in Ireland.
Since the conclusion of the Ombudsman’s investigation in November 2008, the Department has been engaged in correspondence with the Ombudsman with regard to her findings in this case and her proposal to award financial compensation. In summary, I reiterate that the complainants did not apply for the scheme within the timeframe and were more than a year late in applying. The family did not meet some of the criteria of the scheme. The Department maintains its position that the scheme was scrupulously fairly administered, in that each applicant was treated fairly under the scheme within specific terms, rules and conditions. The Ombudsman acknowledges that there is no evidence that the scheme was not applied equitably. The scheme was advertised in a targeted way to the target audience, that is, those with a family tradition of fishing and who would return to fishing if successful under the scheme. Accordingly, there is no basis for the award of payment in this case.
As I stated at the outset and now wish to reiterate, I have the highest regard for the Ombudsman, for the Office of Ombudsman and for the Ombudsman’s team. The issue investigated and reported on by the Ombudsman is a very difficult one and has taken much time and effort on the part of both the Ombudsman’s office and the Department. I have taken on board the points raised by the Ombudsman regarding the design of the lost at sea scheme and I assure Members that relevant points will be taken into account in the design of any future schemes in this Department.
Deputy Michael Creed: At the outset it is important to reflect, as did the Minister of State, that at the centre of this report is a tragedy that took place on 31 October 1981. Francis and Jimmy Byrne and three crew members, namely, Tony O’Brien, James Lafferty and Des McGovern lost their lives in a tragic accident when the MFV Skifjord sank. During this debate Members should acknowledge what a great loss and personal tragedy this event was for the Byrne family and the families of the other crewmen, as well as the difficult position in which it left the Byrne family, whereby Mrs. Byrne was left on her own with eight young children to be reared.
This morning in this House, while defending the manner in which this debate is taking place, the Tánaiste falsely put on the record the suggestion that Members on this side of the House had sought the kind of debate that is taking place. She stated they did not request a committee hearing subsequent to a Dáil debate. For this reason, with the Ceann Comhairle’s permission, I wish to draw Members’ attention to the Official Report, 15 December 2009, vol. 698, p. 429, when Deputy Kenny stated: “I respectfully suggest to the Taoiseach that, at an appropriate time in the new year, the Whips might agree that there be a discussion on the loss at sea scheme report here in the Dáil and that it be referred to a committee for deeper analysis and consideration”. In the Official Report, 17 December 2009, vol. 698, p. 1012, I asked, “will the Taoiseach introduce a proposal to debate the issue in the House early in the new year and to refer the matter onwards to the Oireachtas Joint Committee on Agriculture, Fisheries and Food for further investigation?”
The debate in which Members are involved this afternoon is a sham. It constitutes a further erosion of the role the democratic assembly of the people should play in the nation’s affairs. It is a meaningless debate which lacks a substantial motion and which does not do justice to the report which has been compiled painstakingly over a long time by the Office of the Ombudsman. I expect two things. First, I expect the Tánaiste to come before the House and acknowledge that she misled the House. I would accept her bona fides that she did not do so deliberately. In addition, I also expect that the Tánaiste and the Government will now enable the Houses of the Oireachtas to proceed to a forensic analysis in the Oireachtas Joint Committee on Agriculture, Fisheries and Food on the detail of this report.
It is abundantly clear, from the raced manner in which the Minister of State delivered a long and detailed script, that there is no possibility of having the kind of scrutiny that is necessary. Highly serious issues are at stake and I welcome Deputy Fahey to the debate because at all stages, he has been anxious to defend his integrity on this issue. This parliamentary forum should be about a meaningful engagement with the former Minister, senior officials within the Department, the applicant at the centre of the complaint and the Office of the Ombudsman. Thereafter, the cards should be allowed to fall where they might and Members should be allowed to draw their parliamentary conclusions. However, what is being attempted in this debate is a circling of the wagons within Fianna Fáil and the Government. In this regard, I regret to note the absence from the Chamber of Members of the Green Party. That party made a complaint to the Standards in Public Office Commission about Deputy Fahey across a range of issues from the lost at sea scheme to others which have nothing to do with this report and on which I do not propose to dwell. Consequently, the Green Party is giving the Government carte blanche to deal with this matter in a manner that can only be described as akin to sweeping it under the carpet.
I assure the Minister of State that Fine Gael will use every parliamentary tactic available to it to ensure that the Office of the Ombudsman is not undermined in a shoddy manner. It is abundantly clear that the Office of the Ombudsman is anathema to Fianna Fáil, in the same way as the freedom of information legislation. There have been recent examples of attempts by Fianna Fáil to emasculate the operation of the freedom of information legislation because it shines a light where that party would prefer darkness to prevail to enable its members to engage in stroke politics behind closed doors. This debate is an exercise in circling the wagons, in attempting to avoid a thorough and detailed investigation and to prevent the truth from coming out.
The office has done itself some justice in the manner in which it has dealt with this complaint. It also is important to acknowledge that by the end of 2008, approximately 72,000 valid complaints had been handled by the Office of the Ombudsman.
On only two previous occasions has this House been tasked with considering a report and playing a role in assisting a resolution of an intractable problem under the terms of the legislation establishing the Office of the Ombudsman whereby it has failed to resolve an issue in engagement — and intensive engagement there has been — with various Departments or agencies covered by it. On one of those occasions the Revenue Commissioners were involved. It is important to acknowledge that even in that case the recommendation in respect of the individuals involved was that a payment of €600,000 was appropriate. Although the case was initially referred to the Ombudsman by the Revenue Commissioners, they have not complied with the letter of the findings. What we are seeing over a period of time is an attempt to undermine the efficiency, effectiveness and public confidence that the Office of the Ombudsman enjoys.
God knows ordinary citizens will wait a long time before the front gates of Government Buildings are open for them to have access to make complaints to the Government when they feel they have been treated poorly in their engagements with public services. Bankers and developers all have access under the cover of darkness and in broad daylight to Government Buildings. On many occasions they walk out with billions of taxpayers’ money for their rescue. The only recourse that John or Joan Citizen have when they feel aggrieved is the Office of the Ombudsman. Fianna Fáil and the Green Party are circling the wagons to quash the findings of the Ombudsman’s report. Treading on little people is disgraceful and will do untold damage to the Office of the Ombudsman.
The precedent established in how the House dealt with the issue of the report on the Revenue Commissioners is also interesting. It was dealt with under scrutiny and cross-examination by the Joint Oireachtas Committee on Finance and the Public Service, which made two telling conclusions. These were that the findings in the case should be honoured and that all future findings in Ombudsman’s reports should equally be honoured. Both of these findings are being thrown to the wind because we have not yet fully complied with the original case by the Revenue Commissioners and we are again thumbing our nose at the Office of the Ombudsman. That is not good enough and begs the most fundamental questions as to why.
The report into the complaint is most interesting. The Minister of State laboured the point that this was never about financial compensation. I acknowledge that originally the scheme itself was not about financial compensation.
Deputy Michael Creed: Deputy Fahey will have his day and I wish he would volunteer to come before a committee. I have never stated the original scheme was about financial compensation but the issue is about financial compensation now because to the complainant there is no tonnage on offer. The resolution to this difficulty as promulgated by the Office of the Ombudsman is based on the decommissioning scheme and proposes a payment in the region of €245,000. The honourable thing for the Government to do would be to abide by the findings.
It is abundantly clear that there are fault lines in the records of the Department which clearly delineate where Deputy Fahey stood on this issue in respect of ring-fencing, a term used by Deputy Fahey, and the views of officials. At this stage, it is not for this House to get into the merits or demerits of the lost at sea scheme per se. What we must do is deal with the findings and learn from them. Appendix 3 is one of the most interesting appendices of the report. It states:
We know the outcome of the scheme was that it did benefit a number of individuals, two of whom received 75% of the compensation available and happened to be constituents of the former Minister, Deputy Fahey. The issue is not so much about whether a scheme should have been proceeded. It is most accurately summed up in correspondence released under the Freedom of Information Act. This is a letter dated 19 February 2001 which was sent by Mark Lochrin of the Irish Fish Producers’ Organisation to the then Minister, Deputy Fahey. It states: “The view of this Organisation is that you should proceed with the proposed concessions. Our only question: Is Justice to be ring-fenced?”. This goes to the kernel of what is at stake.
When he was Minister, Deputy Fahey took the initiative of communicating with a handful. The Department took the initiative of corresponding with upwards of 16 people. Where the charge of maladministration stands up is that the Department had access to all of the records on boats that were sunk. Initially a tentative inquiry was made to establish this information and the Ombudsman’s report contains correspondence to the effect that it would be an enormous job of work to collate all of the information in a manner that was discernible for the purposes of the scheme and it was not done.
The question of whether justice is to be ring-fenced is what is at stake. The words “a handful of genuine cases” echo again and again through the correspondence in the Ombudsman’s report. We know it was ring-fenced. We know from the Ombudsman’s report that it was unfairly ring-fenced.
The Ombudsman’s report is damning in its findings on the advertising of the scheme. Is it reasonable to expect a widow-woman who lost her husband and son to be a regular reader of fishing publications? Is it not reasonable to expect that she would have been corresponded with about the terms of the scheme? The Department had those records available to it. These are the critical questions on which the former Minister, Deputy Fahey, has repeatedly muddied the waters and for which there are no clear answers.
I have read correspondence from the Secretary General and the former Secretary General at the Department of Communications, Energy and Natural Resources, which had responsibility for the marine, in which they state that the floodgates would open; that justice would be delivered to ordinary people and that floodgates would open. Justice is never at too high a price and the floodgates argument does not stand up anyway because in the cases brought to the Ombudsman’s attention, which I believe amounted to nine or ten, the Ombudsman found in favour of only one. The fear that it would cost the State an arm and a leg does not stand up.
We have to step out of the straightjackets that are restricting our vision on this matter. We have to deliver justice whatever it might cost. I do not believe this would cost a fortune and to do otherwise than to forensically analyse the matter by bringing all of the players before an Oireachtas committee would seriously undermine public confidence in the Ombudsman’s office. I repeat my opening remarks, which I am sure the Minister of State will convey to his colleagues, that this side of the House will use every parliamentary tactic available to it to ensure this matter is referred to the Joint Oireachtas Committee on Agriculture, Fisheries and Food.
Today, I have requested the Chairman of that committee to have the matter considered. I hope Deputy Fahey will volunteer to appear before the committee rather than bedragged there kicking and screaming. Let us have the full and open discussion we require.
Deputy Seán Sherlock: I do not want to begin with a litany of platitudes or patronising comments but we must recognise the suffering and hardship endured by the Byrne family. We must also have regard for the loss of three crewmen and the father and uncle of Mr. Danny Byrne, the complainant. It is important that we keep the Byrne family to the forefront of our minds when speak on this matter. However, the manner in which the Minister of State sought to question the family’s motivation is utterly degrading. In his contribution to the debate, he stated:
The Minister of State has no right to adjudicate on the motives of that family nor to introduce spin and revisionist views on this historical case. I have also seen correspondence from the Department of Agriculture, Fisheries and Food which sought to undermine the role of the family. Nobody in this Chamber knows exactly what the Byrnes were going through but today we are debating the maladministration of a scheme and the Ombudsman’s role in investigating it. In the preamble to her report on the Byrne case, the Ombudsman states: “I found that the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration.” Let there be no attempt by anybody on the Government side of the House to undermine the family or the historical record.
The matter at hand is one of natural justice and whether the Byrne family received due recognition for its complaint or an appropriate response from the agencies of the State. As an Opposition Deputy, the Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Trevor Sargent, filed a complaint over the role of the former Minister for the Marine and Natural Resources, Deputy Frank Fahey, in this affair with the Standards in Public Office Commission, SIPO. While SIPO rejected the complaint, the Minister of State, Deputy Sargent’s action demonstrates that certain Members who are now in Government recognised the maladministration inherent in the scheme. The Ombudsman found the scheme to be “seriously deficient and flawed” and the European Commission was never informed of the scheme’s existence.
The Byrne family has been treated abysmally by the agents of the State, with the notable exception of the Office of the Ombudsman. There can be no doubt that the Ombudsman dealt with the complaint in a manner that was conducive to the powers vested in her office. However, the Department of Agriculture, Fisheries and Food clearly has decided to ensure that the family will not gain redress. As a Legislature, we are left for only the second time in the history of this State with a scenario that has completely undermined the role of the Office of the Ombudsman.
By its decision to reject the Ombudsman’s findings, the Government has undermined the confidence of citizens that they can successfully resolve their complaints and severely compromised the independent statutory role vested in that office by this Legislature. For the Labour Party, this is a case of ensuring that the organs of the State are not undermined or demeaned in any way. We must not neglect the significance of a rejection by the Government of the Ombudsman’s report. That the report has been laid before the Houses, presumably as a last resort, speaks volumes about the contempt this Government holds for any independent arbiter whose role is laid out under statute.
What hope can the ordinary citizen have that a complaint will be adjudicated upon fairly if a decision can be rejected by the Government of the day for reasons of political expediency? The Byrne family has been subjected to the ignominy of seeing a report which offers redress and a measure of natural justice rejected for the sake of that same political expediency. I have studied the correspondence between the Department and the Ombudsman’s office. It is clear even to a layman that the Department is engaged in a parsimonious exercise and will do anything to abdicate its responsibilities. The Minister of State’s lengthy speech clearly demonstrates that attitude. The essence of his argument, namely, that he rejected the findings of the report out of hand, could have been expressed in ten seconds.
I seek justice for the Byrne family and an acknowledgement of the Ombudsman’s report. It is insufficient to make statements on this issue. If this House is to conduct its business properly, we must refer the report to the Joint Committee on Agriculture, Fisheries and Food. It is critical that we afford the Ombudsman an opportunity to present her findings to that committee. We must also be able to hear from all interested parties in order to understand the issue fully.
We in the Labour Party propose that the House would adhere to the recommendations of the Ombudsman. I accept it is not within our gift in the context of this debate to apply her findings and deliver some degree of natural justice to the family. Accordingly, I propose that we facilitate the Ombudsman at a meeting of the Joint Committee on Agriculture, Fisheries and Food, so that she and her office may be afforded an opportunity to outline further her findings and to enable the members of this House to come to a satisfactory conclusion on the matter.
It is vital that no one, be it an official of the Department, or a Minister or Minister of State, has the right or entitlement to subjectively question the motives of the family as to whether they would continue to fish, whether they should have read certain industry newspapers to search for advertisements, or whether that was taken as a given, because as the Minister in effect said, it was a small community and they should have known that the scheme was available. It is not for the Minister to decide on the motivations of the family or to comment on them in 2010 in the context of a scheme that was in place from 1980 or 1981 to 1989.
What is at stake is the role of the Ombudsman and the decision and findings of that office. The Ombudsman clearly stated that there was maladministration and that the scheme was not properly advertised. She made a decision to grant redress for the reasons outlined in the report. The issue is whether the Government decides to take on board the views of an independent arbiter, which has a statutory function. We are plunging ourselves into dangerous territory if we decide for the second time to reject a report of the Ombudsman.
This is the tribune of the people but decisions taken by the tribune of the people have to be subjected to an independent arbiter. We are in dangerous territory if we go the route of rejecting an Ombudsman’s report. We all have to be subject to scrutiny on decisions by branches of the State. That is why I feel strongly that the Ombudsman must be brought before the committee so that we have another opportunity to explore further this decision.
Deputy Martin Ferris: As the two previous speakers indicated, we are talking about a tragic event where two of the Byrne family and three of their crew lost their lives. We must not lose sight of that tragedy and other tragedies that occur at sea. Our deepest sympathy goes to the families of all victims.
The fact that the Ombudsman has felt that she needed to submit this report to the Oireachtas is sufficient proof that her description of the lost at sea scheme as “seriously deficient and flawed” is warranted and that the Byrne family was treated unfairly in regard to their claim for compensation following the loss of two members of the Byrne family and three crewmen when their boat the Skifjord sank in 1981.
The Byrne family only applied to the scheme a year after applications had closed, but they argued that the scheme, which had been advertised in the fishing press, should have been publicised more widely. Another problem arose because, despite the tragic nature of the incident and the fact that it was widely reported, the Department of the Marine and Natural Resources claimed to have no record of it. That was apparently why the Byrne family was not notified of the scheme being established. I cannot comprehend how a Department was not aware that five people drowned or that a boat was lost with such tragic circumstances. I do not think anyone believes that. Is the Department telling us that it has no list of boats lost at sea or knowledge of the tragedies that occurred as a result of some of those losses? I do not believe that. I do not say that lightly. I do not believe one word of it. Is it credible that five people were lost yet there is no record of it?
On the question of the advertising of the scheme, how in the name of God can one assume that people who have left the industry as a result of having lost their vessels would automatically read the fishing press every month? There is no basis for that assumption. In many cases, when people leave the industry they do not have recourse to the fishing press. The Ombudsman agreed with the Byrne family in its complaints on all of those issues and also concluded that because of the way in which the scheme was designed, that it was applied inequitably. On that basis she recommended that the Byrne family be compensated and a figure of just under €250,000 was calculated as the amount of compensation. However, that was rejected by the Department even though it was officials within the Department who had arrived at that compensation figure.
The scheme itself, while it did provide compensation for the successful applicants reflects much of what is wrong with the manner in which fishing is managed or rather mismanaged in this State. It was only necessary in the first instance in order that people who had lost their boats could access replacement tonnage despite the restrictions placed on the size of the fleet by the new system of regulation that came into place in 1990. When the scheme was proposed there was a view within the Department that it might facilitate certain people to access quota while others would be forced to pay for it or would be unable to get any. The then Minister, Deputy Fahey, overruled those objections. The manner in which the scheme operated only heightened that concern.
Apart from the failure to advertise more widely, the Ombudsman found that some of those who applied were in fact contacted in writing in order to inform them of the existence of the lost at sea scheme. Who took the decision to write to certain people but not others about the existence of the scheme? We need to know the answer to that question. Many of those who are aware of the situation would be prepared to say that it was due to political cronyism at its worst; to write to the people who support the party and to forget the rest.
There is also the claim that two constituents of the Minister responsible, Deputy Fahey, had originally suggested the establishment of the scheme. We need to know if this is true. The two people in question received €2.1 million out of a total of €2.8 million available under the scheme. It is also claimed the criteria were changed in order that one of the two people would qualify, despite being found not to meet the criteria laid down in the first place. We need answers again on this.
Of the 67 applicants between June 2001 and the closing of the scheme on December 31, only six were accepted. A total of €2.8 million was paid out to the six successful applicants to buy replacement tonnage. Two of the then Minister’s constituents received 75% of the total funds. It was later discovered that although the scheme did not close until December 31 2001, Deputy Fahey had written to his two constituents in October congratulating them on being successful prior to the closure of the scheme. How can that be explained? However, it was also found that one of those persons did not qualify but he appealed and his application was accepted in 2003 with one of the reasons cited for the award being the fact that the Minister’s letter of congratulations had created the reasonable expectation that he would receive compensation.
Is it any wonder that the political establishment in this State is viewed in coastal communities with such distaste? Is it any wonder that officials in the Department with responsibility for the marine are looked upon in communities such as the one in I which live as people who are not with it and who are subject to allegations and perceptions of corruption when we see what is before us today? I come from a coastal community and we have buried people who lost their lives at sea. My neighbours and friends have worked in the most difficult circumstances to put food on the table and they see €2.1 million being given to constituents of the then Minister, despite one of them not meeting the qualifying criteria but subsequently being awarded a payment because the Minister congratulated him before he had received it.
The Ombudsman’s report on the Byrne family’s application highlighted that it was being processed before the 2003 decision in the case I mentioned. How can the former Minister explain that to the family and to Opposition and Government Members? How could somebody who did not meet the qualifying criteria be compensated on appeal after the Byrne family’s application had gone in?
These issues were raised previously and referred to in a number of press reports. They were also mentioned in this House by Deputy Sargent in June 2006 during an extensive survey of Deputy Fahey’s property holdings. Deputy Sargent specifically mentioned the fact that two of then Minister’s constituents had received a large share of the compensation. He went on to call on the then Taoiseach, Deputy Bertie Ahern, to sack Deputy Fahey, which I recall drew a somewhat blunt response from him who told him to “Put up or shut up”. The claim regarding the two individuals was contained in an article in Ireland on Sunday two weeks later, which stated that the two people concerned had suggested setting up the scheme in the first place and that the criteria governing applications were changed to facilitate one of those persons.
Subsequently, Deputy Fahey made a complaint to the Committee on Procedures and Privileges about what had been said about him but he failed to secure the necessary support to censure Deputy Sargent who, in December 2006, made a complaint to the Standards in Public Office Commission specifically citing the lost at sea scheme as one of the reasons to investigate the then Minister, along with his involvement in the Corrib gas pipeline and the allocation of 14,000 tonnes in quota to the Atlantic Dawn. This trawler, using a national asset, is currently fishing off the west coast under the name of a Dutch consortium.
Deputy Martin Ferris: I am stating a fact that the Atlantic Dawn, which was given 14,000 tonnes in quota, is currently fishing off the west coast. I have been reliably informed about this and it is using a national asset, its tonnage, to procure Irish fish for a Dutch consortium.
It is clear from the Ombudsman’s report and all the other issues surrounding this scheme, including those to which I have referred, that a full investigation needs to be carried out into all aspects of the way in which the lost at sea scheme operated. My colleague, Deputy Ó Caoláin, other Opposition spokespersons and I met Emily O’Reilly in her office yesterday. She told us she did not take the decision to publish this report lightly. Her job is to investigate issues of public concern involving the State and the very least she deserves when it is found there are questions to answer is that they be taken seriously.
On the basis of the contribution of the Minister of State to this debate and the response of the Tánaiste and Minister for Enterprise, Trade and Employment on the Order of Business earlier, I regret that the integrity of an independent body is being challenged by the Government in the House. We need a full, thorough and, as Deputy Creed said, forensic investigation into everything in this report and we need to offer the opportunity to the Department, the former Minister and the current Minister to appear before the committee to explain the terrible wrong that has been done to the Byrne family, the way the scheme was prosecuted by the then Minister and the Department, the way the scheme differentiated between people in coastal communities and why certain people received letters and were invited to submit their applications while others were totally and absolutely ignored. All the facts need to be established promptly.
The Department’s decision to rule on the Byrne family’s application was wrong. The reason the application was late was due to irresponsible advertising in fishing newspapers, which did not take into account that a family no longer involved in the industry might not become aware of the scheme. It is unbelievable that the Department said it did not have knowledge about the sinking and loss of life on the boat. The treatment of the Ombudsman by the Department and the Government in this tragic case was disgraceful and it has blatantly attempted to undermine the integrity of her office. The perception in our communities about the workings of the Department and the cronyisn associated with certain people needs to brought out in the open and people need a through and clean explanation.
Yesterday, I wrote to the Joint Committee on Agriculture, Fisheries and Food requesting that Emily O’Reilly and her team be invited to appear before it in order that we can conduct a forensic examination. The other Opposition spokespersons have done the same. This must be debated by a committee of the House and the people who did wrong in this case need to be brought to book.
Deputy Frank Fahey: All of the allegations made by the Deputy from Kerry are totally and completely untrue. I was appointed Minister for the Marine and Natural Resources in January 2000, halfway through the Government’s term of office. I chose to run the Department in an entrepreneurial way and expand and pursue the developmental role of the Department in the marine sector. My objective was to deliver an action plan to exploit the marine potential of this island nation.
One common complaint in all ports I visited was that fishermen who did not have a fishing boat on the national register when capacity — that is, gross tonnage and engine power — became an asset in January 1990, because their boats had been lost at sea, were obliged to purchase the capacity they had lost in order to acquire a new boat to return to fishing. That anomaly was put right in the 1990 regulations. EU regulations were not breached by the issue of replacement tonnage in 2001, as has been falsely claimed, including by Deputies today. A change in regulations did take place with the introduction of the Fisheries (Amendment) Act 2003, after I had left the Department.
The issue was raised at meetings with various fishing organisations and individuals throughout the country, particularly in Killybegs, Ros a’ Mhíl and Castletownbere. Following the introduction of the new register in 1990, the new licensing policy stated that off-register capacity could be used to introduce a fishing boat onto the register within two years of deregulation; otherwise, the capacity would be lost to its owner. Off-register capacity means capacity that is no longer in use because it was constructively lost, broken up, unseaworthy or no longer engaged in fishing. In the lost at sea scheme, a six-month window was provided to enable people to apply for registration in the same way. Thus, Deputy Ferris is totally wrong in the allegation he made in this regard.
A major omission in the new fishing boat licensing regulations was that no provision was made for retrospective off-register boats. I decided this was unfair and iniquitous, and after prolonged discussion and negotiation with Department officials, I decided to make a policy decision to introduce a limited scheme to grant replacement capacity — that is, gross tonnage and engine power — to fishermen who were still involved in fishing industry. This is the crucial point that has been lost in this debate since it started six years ago. This scheme was for fishermen who were involved in the fishing industry when the scheme was introduced in 2001.
One of the issues brought to my attention by the scheme was that no formal marine accident investigation mechanism existed in the Department. In June 2002, I established the Marine Casualty Investigation Board as an independent body. The board was set up to provide a new legislative and procedural review to regulate the area of marine casualty investigation in Ireland. A critical point in my policy decision, which was expressly written into the terms of reference of the scheme, was that it was to sustain or maintain a family tradition in the fishing industry. This was to facilitate individuals and families who were still involved in the fishing industry when the scheme was introduced in 2001, and renders irrelevant many of the allegations that have been made here. This is the reason the scheme was advertised only in the marine press and the fishing organisations were consulted and informed of the scheme. The Byrne family had not been involved in fishing since the tragic accident in the early 1980s, so they would not have qualified for the scheme even if their application had been made in time. Nothing I am saying should be taken as in any way detracting from the tragic circumstances giving rise to this complaint and the terrible loss suffered by the Byrne family, which I sincerely acknowledge. I agree with all other speakers that this family suffered a terrible tragedy in 1982.
Jim Higgins MEP contacted the Ombudsman on behalf of the Byrne family. A complaint was made to the office in November 2004 but I was not contacted by the Office of the Ombudsman about this complaint until July 2007, six years after the scheme had been designed and implemented, four and a half years after the Byrne family application had been refused, and two and a half years after the Ombudsman had received the complaint.
On 11 May 2005, an official in the Office of the Ombudsman wrote to the Byrne family expressing the view that the scheme may have been deficient and flawed. The complaint was then only at the stage of preliminary investigation and no findings, even of a preliminary nature, had been made by the Ombudsman. It was wholly inappropriate and premature for this official to so describe the scheme and to communicate this to the complainant at that time, without the completion of a full examination by the Ombudsman and the hearing of submissions from all parties, including myself. This represented a prejudgment by an official in the Ombudsman’s office of the complaint in the absence of a full and fair examination and investigation.
It is clear from the critical letter from the Ombudsman, dated 10 February 2005, that there was a fundamental misunderstanding on the part of the official involved with regard to the scheme’s application to people still engaged in the fishing industry. I was not informed about the investigation and was not asked to explain my policy decision until July 2007. At that stage, officials in the Office of the Ombudsman had made assumptions based on a misunderstanding of this policy decision. I repeat, the lost at sea scheme was introduced in 2001 to allow people to maintain or sustain a family tradition in the fishing industry.
Officials in the Office of the Ombudsman were not aware until they interviewed me in July 2007 that it was I who inserted the condition that capacity could not be sold or otherwise disposed of and that no financial gain should accrue to any applicant who was successful in the scheme. I inserted that condition into the scheme, after the memo to which Deputy Creed referred about a gratuitous cheque for £500,000, because I wanted to ensure nobody would benefit financially from the scheme.
Deputy Frank Fahey: ——which enabled the people who were successful to go out and buy a fishing boat and return to fishing. It is interesting to note that a number of the people who qualified for the scheme have lost money on it since then.
The Ombudsman’s report stated that the appropriate remedy for the adverse effects suffered by the Byrne family was monetary compensation and that the calculation methods set out in the 2008 decommissioning scheme, as applicable to others who were successful under the lost at sea scheme, should now be applied to the Byrne family. I cannot accept the recommendation that the Byrne family — who did not qualify and should not have qualified for the scheme in the first place — should now be paid financial compensation. This would be contrary to the most fundamental principles of the scheme.
The Ombudsman’s report goes on to state, with reference to a letter to the Ombudsman dated 20 July 2009 from the head of the legal services division in the Department of Agriculture, Fisheries and Food:
We heard the same from Deputy Ferris today. I ask him to withdraw his false allegation as soon as I am finished. There was no funding in this scheme and there was no money paid out to my constituents or anybody else.
Deputy Frank Fahey: It could not be sold or otherwise disposed of. The figure he is talking about is the value of pelagic tonnage and this was not pelagic tonnage, it was entirely different and nothing like as valuable, even if it could be sold.
Deputy Frank Fahey: As the Ombudsman stated there was no compensation given out under this scheme. There was no predetermined amount of fishing boat capacity awarded under the scheme. The suggestion that was made again today by Deputy Creed that 75% of compensation went to two constituents is a ludicrous one.
Deputy Frank Fahey: I have welcomed the Ombudsman’s report in that it has set the record straight in regard to the false and defamatory allegations made against me by Jim Higgins and others, including Deputy Ferris.
This issue has been ongoing since 1994. I have had to put up with the sort of complete misrepresentation that we have heard today about what was involved in this scheme. There was no 75% of any compensation given to anybody. The Ombudsman’s report states on page 9 that she accepted gross tonnage was made available by way of replacement capacity and not compensation. It is not correct to say any scheme was ring-fenced. I was most anxious to ensure everyone had an opportunity. It was not correct to say specific individuals were written to. Anyone who had made representation to the Department in the years previous to the scheme, and there were many, were all contacted to tell them the scheme was being considered.
I have had to put up with many of the allegations made today for six years. They were mainly made by Jim Higgins MEP. They are wrong and anyone who reads the report of the Ombudsman, particularly the quotations I cited from pages 3 and 9 of the report, will see they are wrong. My good name has been vindicated by the Ombudsman against the false allegations made against me.
Deputy Frank Fahey: The Taoiseach offered to Deputy Creed to bring this matter to committee but because he wanted to keep the political football going, he decided to bring it in here and have it dealt with in this way. I am happy to defend myself in this situation and the participation——
Deputy Michael Creed: I quoted from the record of the House on 15 December and 17 December, where both Deputy Kenny and I sought a debate in this House that would refer the report to the committee. I ask Deputy Fahey to acknowledge that.
Deputy Frank Fahey: The Ombudsman has reached conclusions and the Ombudsman legislation states those conclusions should be placed before the Oireachtas. I welcome this report. It has set the record straight about the false and defamatory allegations made against me over the last number of years.
I am reminded of the quotation by Franklin D. Roosevelt when I look at the way in which Jim Higgins MEP has tried to destroy my good name: “Never let the facts destroy a good story and repetition does not transform a lie”.
Deputy Tom Sheahan: From the outset, Deputy Fahey has talked about facts. I only deal with facts and everything I am going to say can be substantiated. Before I start, however, I would like to say the name “Stroke” Fahey is wasted on Deputy Fahey’s colleague from County Galway. Deputy Fahey is neither qualified nor able to come in here and criticise officials in the carrying out of their duties when one sees that Deputy Fahey showed no regard or respect for the officials in his own Department. I am surprised at the absence of one of those officials today. She has played a starring role in the whole debate.
I will start by quoting from correspondence from Mark Lochrin to the Minister. It stated that the establishment of an appeals mechanism to cater for cases such as these had been an issue for years. In this instance, according to the correspondence, the Minister was obviously convinced as to the reasonableness of their case by persons of influence and very rightly proposed to act. Mr. Lochrin asked, however, why only for these. He argued the case for an appeals mechanism available to all, as pertained in most other sectors, was irrefutable.
The documents I have show that the first mention of the scheme was in March 1999, when the Minister of State for Arts, Heritage, Gaeltacht and the Islands, Deputy Éamon Ó Cuív, attended a meeting with Mr. Tony Faherty and Mr. Paddy Mullen. The two gentlemen were seeking credit for replacement capacity purposes — tonnage — for two vessels they owned that had sunk in November 1983. Department officials advised them under policy rules this was not possible. Deputy Ó Cuív indicated that reluctantly he accepted the Department’s position. He recognised the adverse precedent it would set.
The next mention of the two men making representations to the Department is of the then Minister, Deputy Fahey, seeking a meeting with two officials to discuss the possibility of allowing replacement capacity, in particular, in the case of his constituents. Under the Standards in Public Office Commission regulations, an office-holder should, inter alia, act only by reference to, and dedicate the resources of his office in furtherance of, the public interest and not be influenced in their official duties by personal considerations. When Deputy Fahey said he wanted to see how he could ring-fence the six or eight genuine cases, one must ask how the then Minister could come to his conclusion about genuine cases when the 120 files were never studied by anyone in his Department or by him. How could he reach that conclusion?
There is a note from Joe Ryan, sea fisheries administration division, where he agrees that the circumstances surrounding the Mullen and Faherty claims are deserving of sympathy and help and that they have the benefit of being well documented and backed up. One could say this is a coincidence.
The note to the Minister continued, however, that the overriding problem is where this would stop. It stated that in addition to the six that were known about, plus others involved in the High Court case, it could safely be assumed any number of individual cases would seek the same treatment and it would be advisable to discuss them prior to the Minister making a decision. A handwritten note from the then Minister, Deputy Fahey, stated: “I want to see how we can ring-fence the six or eight genuine cases . . . what the implications are . . . I want to licence those boats if we can do this”. This was to the point.
Regarding the sunken boats capacity, I will read an extract from a note. It states: “Piecemeal changes in policy in response to special pleadings from individuals where these changes would run totally contrary to policy objectives, give large unrequited gains to these individuals and open up numerous other equally ‘meritorious’ claims, cannot be recommended”. However, a handwritten note by the then Minister on the bottom of this note states: “Go ahead with proposals subject to conditions laid down”.
Another document relates to a meeting between two potential applicants and Deputy Fahey. The applicants referred to a proposed condition that was causing them a problem. How did they know the conditions a long time before the scheme was even announced? According to the applicants, the condition in question was raising money from financial institutions. This document is staggering and points to major personal considerations and political interference by the Minister.
I also have a document in which the Department wrote to the fish producer organisations informing them of the scheme. Most damning is a telephone call made by Mr. Eddie Sheehan of Castletownbere. Correspondence regarding that call states:
Deputy Tom Sheahan: According to this document, Mr. Sheehan “advised that there is strong feeling at local level and a group of fishermen are coming together to take the Minister to court for not applying licensing policy in a fair and even handed manner”. A note from Ms Kelly states: “I explained that any significant change in policy in relation to licensing and registration of fishing vessels was discussed with industry representatives”. This was a warning from the representatives that they would be taking the Minister to court.
The next document in the ombudsman’s report to which I would like to refer regards the use of capacity for replacement purposes. It is a letter from the Minister’s secretary to Ms Kelly. It states: “Draft letter for issue by the Minister in respect of owners who have made representation to him”. The attached asterisk is explained at the bottom of the page — the two owners were Mr. Paddy Mullen and Mr. Tony Faherty. How the former Minister can say that everything was above board, I do not know.
What occurred and has been highlighted by my colleagues was tragic. The Byrne family did not qualify. The first qualifying criterion in the fishing vessels lost at sea scheme for replacing capacity requires the applicant to be the owner and skipper or a registered Irish sea fishing boat. This condition exempted the Byrne family because the poor man was lost at sea with his son. His wife was at home trying to raise eight young children, so the family could not qualify. The scheme was designed and ring-fenced — I will use the former Minister’s own words — for six or eight people.
Deputy Tom Sheahan: I also wish to raise another matter. Of 17 applications from County Donegal, only one was successful. Of 14 applications from County Kerry, only one was successful. Of four applications from County Galway, two were successful. They were constituents of the then Minister. If he maintains that everything he did was right, then the Ombudsman must be wrong. Like my colleagues, I invite the former Minister to appear before the committee to have an honest, open and frank debate. Either he is wrong or the Ombudsman is wrong.
Deputy Brendan Kenneally: I welcome the opportunity to comment on the Ombudsman’s report on the lost at sea scheme. An attempt to vilify Deputy Fahey for the way in which he introduced the scheme and for the way in which it was subsequently conducted has been ongoing for many years. Deputy Sheahan has surprised me, as he is continuing along the same lines. That is unfair because Deputy Fahey, the former Minister, has set out exactly what he did and how the scheme operated over the years. It is obvious that he acted with complete integrity throughout the affair and he has rebutted every argument made against him this afternoon. I do not know why the Opposition and Fine Gael in particular want to maintain this tack, which that party commenced.
For me, the question is where will we go from here in terms of the Ombudsman and the future conduct of that office. I understand it to be the case that, in the UK, if there is a dispute between an ombudsman and a Department or so on, the matter goes before a parliamentary committee.
Deputy Brendan Kenneally: The Ombudsman found against the Revenue Commissioners when they brought the issue to that office. They paid part of the compensation agreed at the time, in and of itself an indication that Revenue had admitted that it had been in the wrong. The issue went before our Committee on Finance and the Public Service.
Deputy Brendan Kenneally: The Ombudsman’s decision received cross-party unanimous support. Unfortunately, the then Government fell and a new Committee on Finance and the Public Service came into being. It also supported the decision and a report was laid before the Dáil in February 2008.
Deputy Brendan Kenneally: To the best of my knowledge, the report has no statutory basis. Perhaps the House must consider this situation. How do we want the Ombudsman’s office to operate? Should it continue to operate in the same way?
Deputy Brendan Kenneally: Some of us may feel the decision by the Ombudsman was right and others may feel it was wrong. Many questions surround the decision in this case because it refers to compensation and a monetary figure. The scheme was not about that and instead dealt with tonnage.
As legislators we must consider whether we must change the legislation to see if other structures could be put in place and if we should strengthen the position of the Ombudsman to where a Department would have to accept the decision put forward by the Ombudsman or if we revert to a position in other jurisdictions in that we could send it to a parliamentary committee. There is no point in saying we should do this or that at the moment as we must work within the legislative structures we currently have.
I know from Deputy Fahey’s comments and what the Minister of State has said that there are very grave reservations in the Department on what has transpired and the precedent that may be set for the future. As a Legislature we must consider the system as it operates from now on, not only as regards this case but with regard to the case I previously mentioned. If we do not act, we will wonder about the operation of that office in future.
Deputy Dinny McGinley: I can vividly recall that terrible tragedy in October 1981 when the Skifjord was lost with the loss of five lives. It was the third such tragedy off the Donegal coast during the 1970s and early 1980s. Two of those who were lost were from the same family, Francis Byrne and his young son Jimmy, who was 16 years old. Three others were also lost — Des McGovern, Jimmy Lafferty and Tony O’Brien. Unfortunately, the remains of two who perished in that awful disaster — those of Francis himself and Des McGovern — were never brought ashore.
I remember being at St. Conal’s Church in Bruckless on that October night in 1981, when the remains of young Jimmy were brought in. I also remember Mrs. Byrne and her eight young children, aged from two years to 17, coming to the front seat of that church. It was a sad spectacle, with a widow and eight young children, none of whom had reached the age of majority. Mrs. Byrne lost a husband and son in that tragedy.
I am not against the scheme in principle and when there is a loss at sea, people ought to be compensated and tonnage ought to be replaced. I have absolutely nothing against that but I have everything against the underhand way in which the scheme was carried out. In plain political language, it has every indication and manifestation of a political stroke, nothing more and nothing less.
As a representative of that constituency, I was angry that when the family eventually found out such a scheme existed, it was out of fishing because it could not buy a new boat. The family members had been out of fishing for many years before the scheme was announced but that does not mean some would not get back into fishing if they had the opportunity. The scheme was announced and closed a year afterwards. The family approached the Department dealing with marine and fisheries matters but the people there told the family they had never heard of the Skifjord tragedy. What kind of a Department is that and what sort of people are working in it? The family had insult added to injury; not alone would the Department not accept a late application but the family was told that the Department personnel had never heard of the tragedy in which five young Irish men — fathers and brothers — were drowned at sea.
That is enough for me to know what was behind the scheme. It is obvious that the scheme had two tracks, an inside track and an outside track. It was a tailor-made scheme for certain people and they had to cover themselves. Crumbs were given out but the major benefits of the scheme went to favoured people. I do not care what denials comes from anyone on that side and that is how I see it. It angers me that the Department is carrying on in that way.
I have been a Member of this House for almost 30 years and I have had many dealings with the Department. I do not say it lightly when I say it is one of the most difficult, mysterious, non-transparent, enigmatic and opaque Departments that I know of, and there are 15 of them. Nothing is as it seems; it is smoke and mirrors. What we are discussing today is just the tip of the iceberg of what has been going on in the Department through the years.
Fishing licences — very valuable assets — have been given out, along with grants and quotas, on a political basis. That cannot be contradicted. Licences and quotas have been politically-traded commodities. I can put it in no other way. There is a culture of nods, winks and nudges running through the Department and what we are discussing today is only one example brought to light by the determination of the Byrne family, which has suffered a grievous loss, and the diligence and support of the Ombudsman. I salute the Ombudsman for taking up this case and following it diligently on behalf of this family, which has lost so much to the seas and the fishing industry.
We will bury this report this afternoon and the shutters are down again in the Department. I will not blame the officials sitting beside the Minister of State. They are just officials and can go between Departments while subject to political direction. The gates have been closed and locked and the report will be obfuscated. We have had perfunctory statements in the Dáil this afternoon for an hour or two; after that the report will be buried and things will proceed as normal.
It is not acceptable to me and I hope it is not acceptable to anybody on this side of the House. I do not know whether I will be here but I look forward to the day when some courageous Minister will go into that Department, open it up and see what is contained in the files and in the bowels of that Department. It should be opened and made transparent. Nothing should be given out on a political basis in this country and everybody has rights. We are all citizens of the country but that has not been the way the Department has been ruled.
I seldom agree with Deputy Ferris on many issues but I agree with him on this. The Department is badly in need of reform. I hope somebody will come along and do it before I leave this House. I look forward to it.
Deputy Fahey, who was a Minister of State at the time, has said he has been vindicated. I also went through the Ombudsman’s report and neither the Deputy nor the Department has been vindicated. There was maladministration in the Department. The report states there was poor administration, with Department officials failing to meet the required standards by fair or sound administration in the dealings with families covered in this report.
It was also stated that the design of the scheme and the manner in which it was advertised was contrary to fair and sound administration. If I were the Minister, I would be very concerned with a finding like that coming from the Ombudsman.
I am sure the officials here were opposed to the scheme because they saw it for what it was. They had to go along with the wishes of the Minister of the day. I do not expect any of the officials to admit it because if they did they would be looking for another job. That is the way it is. They are loyal to the Minister of the day and that is the way it goes, but we see through it. The Minister of State was determined to push ahead with the scheme, regardless of the consequences. There were people on the inside track and people on the outside track. My constituents were unfortunately on the outside track, because they were not from the right constituency.
The report mentions “faulty design” and “unfair advantage to some applicants”. These are the findings of the Ombudsman. The report found the family at the centre of the complaint was adversely affected while some prospective applicants were put in a more advantageous position. Is that the way to conduct the public affairs of a republic? The report states that some people were written to directly by the Department and the Minister of State to inform them about the scheme when it was launched. When my constituents, who suffered so grievously, went to the Department the officials had never heard of them nor of the terrible tragedy that they suffered. That beggars belief.
I hope that this report will not be buried at 3.30 p.m. when this debate comes to an end. There is a majority on the other side of the House but, as has been said, “A majority has no right to do wrong”. Members of the other side of the House will know who I am quoting when I say that. He was one of the great chiefs who used to sit over where the Minister is currently sitting now. A majority has no right to do wrong. The Government had a majority in the House this morning and it voted 68 to 63 to bury the report. If this does not go to a committee, I will be looking for a judicial inquiry and to have the issue opened up. We need to get the truth out and then reform the Department in the process.
Deputy Niall Blaney: It is only right that we recognise the great loss that occurred in south west Donegal, when five members of the fishing community there lost their lives. It is a pity that those people had to be caught up in this inquiry. No matter what inquiry takes place, it is important that facts are established and that we do not deal with fiction. Unfortunately, some fiction has crept in here.
The Ombudsman invited spokespersons from the Opposition parties, namely Sinn Féin, Labour and Fine Gael, for a briefing on a report this week in advance of this debate. If this is the case, maybe Deputies Creed, Sherlock or Ferris might explain what that was about.
Deputy Seán Sherlock: On a point of order, we had an open briefing with the Ombudsman, where she outlined the contents of the report which were laid before the Houses of the Oireachtas, no more, no less.
Deputy Niall Blaney: I thank Deputy Sherlock for that information. However, being in an independent position, the Ombudsman should have spoken to spokespersons from all sides of this House, and not three political parties.
Deputy Niall Blaney: Deputy Creed has had his say and he will listen to me when I am having mine. If he sticks to the facts, we might get somewhere on this. The Ombudsman invited the Deputy and two other Members of this House to a meeting. Why was the Ombudsman not acting independently in calling for that meeting? It was not an independent meeting because all parties were not represented at it.
Deputy Niall Blaney: That was a fair comment. I question if it is unusual for an officeholder of such independent standing to make such an invitation. That is a relevant question. The Department of Communications, Marine and Natural Resources informed the Ombudsman that the sole objective and purpose of the scheme was to enable qualifying applicants, who were otherwise unable to do so for financial and other reasons, to provide a replacement capacity for the purpose of introducing a replacement fishing vessel, in respect of fishing boats lost at sea between 1980 and the establishment of the new fishing boat register in 1990, in order to continue a family tradition of sea fishing in situations where immediate family members were engaged in the industry. The objective and purpose of the scheme was clear, transparent and unambiguous.
The Ombudsman’s report also states that the scheme did not provide financial support to successful applicants for the acquisition of a replacement fishing vessel and the replacement capacity. I am referring to the gross tonnage. The Ombudsman further states she fully accepts that successful applicants were granted replacement tonnage under the scheme, rather than compensation. If she accepts that, why turn around and bring compensation back into the agenda again?
Acting Chairman: I ask the Deputy not to cast reflections on the Ombudsman or to personalise the office in any way. The Office of the Ombudsman is independent of the Dáil and has its own way of going about things. I ask the Deputy to be careful.
Deputy Niall Blaney: I accept that. I accept the independence of the Ombudsman, even if I do not understand the conclusions of this report. I fully accept that there was no compensation involved in the scheme, yet one of the recommendations is to give compensation.
The real issue is the fact that former Deputy Jim Higgins acted in the way he did. He took his own interpretation of the lost at sea scheme and he did not check any of the facts, but then sent it on to the Ombudsman for investigation. I fear that much of this non-factual information was believed. I wonder if the former Deputy was the problem, because as far as I can see, the Byrne family in Donegal were misled by Jim Higgins MEP to the point——
Deputy Niall Blaney: The reality is that no individual received financial assistance under this scheme. The investigation was set up in the belief it was the case and it has now been established not to be the case. We have had fairytale investigations in this House in the past and I do not believe we should start another.
Minister of State at the Department of Agriculture, Fisheries and Food (Deputy Tony Killeen): Among the points made by Deputy Creed was that the matter should be referred to the relevant Oireachtas committee for a thorough and detailed examination. It would be difficult if not impossible to undertake a more thorough and detailed examination than that of the Ombudsman. Deputy Creed may be surprised I agree with him on one point. In view of how this issue has been handled, there is a danger the Office of the Ombudsman may be undermined in a shoddy manner. Rather than dealing with the issues, at this early stage of this debate——
Deputy Tony Killeen: ——it is descending into a political football. It does not need to. I remind Deputy Creed that the legislation was introduced by a Fianna Fáil-led Government, contrary to what he said. He also made a reasonable point that in the previous case the hearing committee did not lead to the outcome sought by the Ombudsman. That is accurate, unlike much of what was said in the Chamber.
Deputy Tony Killeen: The point is made that in this instance if the report is not complied with in full it undermines the Office of the Ombudsman. Why did that not happen in the previous instance? Deputy Creed also warned against selective quotations. The difficulty for all of us is that we have little time.
Deputy Tony Killeen: I ask him to look at the rest of the appendices, particularly section F, with regard to what he quoted. He also referred to advertising and claims the former Minister muddied the waters. The former Minister holds a particular view. Deputy Creed must recognise that people are entitled to hold a view and it does not have to be the same view as that of others. I hold the view that the advertising campaign was reasonable and well directed. I am not sure that if it was in all the daily newspapers, the family concerned or others who should have known about it would have had a better chance. I do not accept that is the case and I am entitled to hold that view. I am entitled to say it. A number of speakers have contended I am not entitled to have a view or to express it. That is a dangerous development.
Deputy Tony Killeen: Deputy Creed also made the floodgates argument and suggested we should step out of the straitjacket. Is he sure that is the appropriate thing to do in these or other circumstances?
I refer to the points made by Deputy Sherlock and the extraordinary attack with regard to what he claims was my attack on the motivation of the family. The motivation of the family is entirely irrelevant. I set the terms of the scheme before the House and the facts with regard to how it was considered by the departmental officials then and now. I will return to this point presently.
Deputy Sherlock also suggested the Ombudsman found maladministration. That is at variance with what the Ombudsman said in her report. It is worth looking at what she said on this point. Deputy Sherlock also made the point that this carry-on undermines the Office of the Ombudsman. If we confine ourselves to the points made by the Ombudsman and set aside our personal views, which is very difficult for me and everyone else, we can examine the nub of the issue. However, this is very different to much of what has been said today. The point made by Deputy Creed about previous experiences is relevant in that regard. The Department of Agriculture, Fisheries and Food routinely works with the Ombudsman, probably to as great an extent as any other Department. The Department routinely accepts and complies with the findings of the Ombudsman, as do many other Departments. Any attempt to suggest that is not the case is inaccurate.
Deputy Tony Killeen: Deputy Sherlock made an extraordinary point, that I could have rejected this report in ten seconds. Deputy Sherlock is suggesting I do not have the right to say anything. If I said that he would have quickly suggested I was insulting House by refusing to explain further.
Deputy Tony Killeen: The Deputy went on to suggest I was questioning the motives of the family. I was explaining the context of the scheme and how it would seem to apply to the family. We must be careful not to ignore the imposition of a totalitarian, Trotskyite approach so that I do not have the right to hold an opinion or have the temerity to comment. We must be careful because this is a House of Parliament. Anyone can hold a view and can enunciate it and should not be shot down for holding it or enunciating it. Deputy Sherlock could usefully examine the provisions of the 1980 Act, particularly in respect of the role of the Oireachtas in these matters.
Deputy Martin Ferris referred to tragedies, as we all have done. A competition to outdo each other in this regard would be unseemly and unfair to the families involved. Deputy Ferris seemed to be under the impression that the Department arrived at the compensation figure but that is not the case. That applies to a different scheme, as set out in the report. In 1990 everyone received tonnage free of charge. That was the beginning of the scheme.
Another point was why the Department contacted 16 individuals. The Department could only contact the people it knew about and it is interesting that only two of the 16 individuals qualified. Had the Department not contacted those who were known, we would be in more trouble.
Deputy Ferris also claimed the Department is corrupt or that some officials are corrupt. I am not sure what he meant and it is something he should address at a future date. He sought a forensic examination but in my view this has already been completed.
Deputy Frank Fahey took the opportunity to clarify matters. Regarding Deputy Niall Blaney, I have no difficulty with the Ombudsman briefing Opposition Members. We have much interaction with the Office of the Ombudsman in any event and I am aware I could have had a briefing.
Deputy Brendan Kenneally referred to an important point about the 1990 Act, that there is no procedure to deal with these matters. Deputy McGinley referred to constituents and that one incident was the third such tragedy in a short period of time in his area. In some senses I am taken by Deputy McGinley’s point that it would be wonderful if we could find a way to compensate all of these people for their losses. Unfortunately, the scheme we are talking about was not set out in that manner. I understand his point when he suggests distress was added to when officials in the Department did not know about the Skifjord case but that is unfortunately the case. Some of what Deputy McGinley said was grossly unfair to officials. It was not what Deputy McGinley intended and it was important that he excluded officials present.
It is important to remind all Members that Ministers routinely meet constituents and officials all the time. Much of the time, Ministers meet officials about cases referred to them by colleagues in this House. Quite frequently these representations are from the Opposition benches. We must be very careful that we do not set up barriers that are artificial and that cannot be sustained by the realities of life.
Deputy Sheahan also referred to taking the Minister to court and that is not unusual in this sector. Deputy Sheahan was also under the impression the family could not have qualified because two members had drowned. That is incorrect. A relative of a large tranche of the family could have qualified and did in some cases.
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