Seán Sherlock (Cork East, Labour)
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Question 91: To ask the Minister for Agriculture, Fisheries and Food if his attention has been drawn to the report of the Ombudsman entitled Lost at Sea; and if he will make a statement on the matter. [3980/10]

Tom Sheahan (Kerry South, Fine Gael)
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Question 92: To ask the Minister for Agriculture, Fisheries and Food his views on the recently published Lost at Sea report of the Ombudsman; and if he will make a statement on the matter. [4247/10]

Tony Killeen (Clare, Fianna Fail)
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I propose to take Questions Nos. 91 and 92 together.

In her report, the Ombudsman stated she received several complaints in respect of the lost at sea scheme. She recommended that compensation should be paid to one family. Following further correspondence between the Ombudsman and the Department, the Ombudsman laid a special report before the Dáil and Seanad on 14 December 2009 outlining her findings and invited the Houses to consider the report and take whatever action they deem appropriate in the circumstances. I understand the matter will be debated in the House next week.

The Ombudsman concluded that the particular family's application did not meet at least two of the conditions of the scheme and that the family was adversely affected by the decision to reject its application. The Department's position has been consistently that it does not support the payment of financial redress in this case and that it handled the family's application fairly and in accordance with the terms of the lost at sea scheme as published.

The lost at sea scheme was a limited scheme introduced in June 2001 with a closing date of 31 December 2001, under which replacement capacity, gross tons and kilowatts that would otherwise have had to be bought on the tonnage market was provided free of charge to qualifying applicants who had lost a fishing vessel between 1980 and the establishment of the fishing boat register in 1990, but who had been unable to replace it for verified financial reasons. The scheme was intended to assist families to introduce a replacement for the lost vessel which would be owned and skippered by the applicant or by an immediate relation of the applicant.

"Capacity" is a term used to describe the gross tons, GTs, a measure of volume, and kilowatts, kWs, of power of a fishing vessel. The total capacity of the Irish fishing fleet is limited to 88,700 GTs and 244,834 kWs under EU Regulation No. 1438/2003. Under the so-called "entry-exit regime", capacity coming on to the Irish register must be matched by the removal of the equivalent capacity from the same fleet segment.

When the new sea fishing boat register was introduced in 1990, all vessels registered at the time were awarded the tonnage of their vessels, effectively free of charge. However, any vessel that had sunk or that had otherwise been destroyed clearly could not be registered. Any such owner seeking to return to fishing would have had to buy a replacement vessel and the necessary capacity, which in time became a valuable commodity because the overall capacity of the Irish fleet was capped under EU fleet management rules. By 2001, it was argued that there were several cases where the cost of purchasing replacement capacity was a factor in preventing families from getting back into fishing after losing a vessel.

The conditions of the scheme were intended to ensure that only genuine cases were successful and that only the immediate family could benefit from any capacity awarded.

Tom Sheahan (Kerry South, Fine Gael)
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Some cases were more genuine than others.

Tony Killeen (Clare, Fianna Fail)
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Under the conditions, any capacity awarded could not be traded, sold on or otherwise disposed of, and the vessel to which it applied had to be skippered by the successful applicant or an immediate family member. The success rate of only six from 68 applications received reflects the stringent conditions of the scheme. The case, which is the subject of the Ombudsman's report, was not one of these 68 applications and the application was received in January 2003 for a scheme which closed in December 2001.

It is important to take account of the conditions of the scheme as published to appreciate the Department's view and its position on the report. These included that the capacity of a vessel which was lost at sea before the establishment of the sea fishing boat register set up by the 1989 regulations would, as an entirely exceptional measure, be accepted as replacement capacity provided that the Department was fully satisfied, by reference to appropriate documentary evidence on several points, the first of which was that the applicant was the owner and skipper of a registered Irish sea boat which was lost at sea. Second, that the boat in question was lost at sea after 1 January 1980 as a result of an accident and that such loss has been verified by the emergency services or another independent source acceptable to the Department. Third, that the boat in question was 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. Fourth, that the lost vessel was the sole means, that is, the only vessel, of the applicant for engaging in sea fishing. Fifth, that the applicant was unable, for verified financial or related reasons, to acquire a replacement vessel, or any other registered vessel, before the introduction of the new register pursuant to the 1989 regulations. Sixth, that the applicant has been unable also, for verified financial or related reasons, since the inception of the new registration system, to acquire a fishing vessel to engage in sea fishing of the same class or description as was carried out by the vessel lost at sea, or any other sea fishing vessel which is subject to the replacement policy regime and, finally, that the applicant did not receive any financial benefit from the loss.

It was provided that the capacity of a fishing vessel lost at sea would be accepted as replacement capacity for licensing purposes only if it would be used for the purposes of sustaining or maintaining a family tradition of sea fishing. Any capacity accepted as replacement capacity must, therefore, be used for the purposes of introducing a replacement for the lost vessel which would be owned and skippered by the applicant or by an immediate relation of the applicant. Any capacity from a lost vessel so used could not be sold or otherwise disposed of.

Applications under the scheme had to be received by 31 December 2001. These conditions were intended to ensure that only genuine cases were successful, and that only the immediate family could benefit from any capacity awarded.

Seán Sherlock (Cork East, Labour)
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The Minister's response is utterly disingenuous. Would he not acknowledge the fact that justice has not been served for the Byrne family, who had no way of knowing the terms of the scheme and no way of benefiting by way of tonnage under the scheme for the reasons outlined by the Ombudsman? She found that the advertising process was utterly inadequate and the family had no way of benefiting from the scheme as a result. Would the Minister acknowledge that her decision to grant compensation was based on her acknowledgement of the wrong that was done and that there was no way the family could benefit from tonnage?

The Ombudsman found that some prospective applicants were put in a more advantageous position than others as they were written to by the Department and the Minister to inform them of the scheme when it was launched. The Minister must respond on this matter. Third, the very fact that the Ombudsman deemed it necessary to place the report before the House must be significant. The Government side of the House is disregarding and disrespecting the decision of the Ombudsman and the Minister must answer for that.

Tony Killeen (Clare, Fianna Fail)
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I am happy to respond to the points raised by the Deputy. With regard to the family not knowing and therefore not benefitting, the scheme was advertised in a number of industry publications - the Fishing News in June 2001, the Irish Skipper in July 2001 and in the Marine Times in August 2001. It is a matter of opinion as to whether advertising in the trade papers is the appropriate way to proceed, but that is what was done. There is a conflict of viewpoint in that regard. The Ombudsman also spoke about a discretionary element, which is something on which people would have very diverse and conflicting views.

With regard to the Deputy's point that a number of people were notified, the Department had in its records at that time information relating to 16 cases. The 16 people in those cases were notified. It should be borne in mind that only two of those 16 were successful so it cannot be said that the Department wrote to people and they were subsequently successful. I also understand that the Department notified the representative organisations at the time. A very strong case can be made on this issue. The final point made by Deputy Sherlock was that I am disregarding the Ombudsman's report. I am taking full account of that report. I have a difference with it regarding interpretation at various points, but that remains the position.

Tom Sheahan (Kerry South, Fine Gael)
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Personally, I have good time for the Minister and I respect him. It must kill him to stand here and try to defend what happened with this lost at sea issue. He is trying to defend the Department and his predecessor. I imagine that does not sit well with him.

Brendan Howlin (Wexford, Labour)
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A question for the Minister.

Tom Sheahan (Kerry South, Fine Gael)
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We do not know what the consequences will be. I agree with Deputy Sherlock that the Office of the Ombudsman is being called into question here. It is an independent constitutional office and this is the second time in 25 years that it has put a report before the Oireachtas. The last occasion involved a Revenue Commissioners case and the Government of the day had to agree with the Ombudsman's recommendations and settle with the aggrieved party. Where does the Office of the Ombudsman stand now, given the attitude of the Government to this report? Serious deficiencies and flaws have been outlined in the Lost at Sea report by the Ombudsman. In what regard does the Minister hold the report? Deputy Sherlock has said he is disregarding it. I remind the Minister that there are 60 other families, who did not send a complaint to the Ombudsman.

Tony Killeen (Clare, Fianna Fail)
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I assure the House and both Deputies that I have the height of regard for the Office of the Ombudsman and the work it does. I have no difficulty defending the Department and I also have no difficulty accepting that either I or the Department is wrong if that happens to be the case. In this instance, the Department has clearly stated that it was scrupulous in administering the scheme. Each applicant was treated fairly, and the Ombudsman accepts this contention. She states in the report that she has no evidence to suggest that this was not the case and she accepts the Department's assurances on this point. That is very important. It is not just a case of defending the Department. What the Ombudsman says in that regard is very clear. Where there are differences of opinion, they relate to conditions of the scheme. I hold a strong view about the closing date and conditions of schemes generally; it is not just the Department's view.

Seán Sherlock (Cork East, Labour)
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To suggest it was incumbent on every applicant to read the fishing press is a disgrace. In this situation, a father had passed away as well as three crew and a brother. Does the Minister think their extended family would be reading the fishing press? What we are seeking here is natural justice. This is borne out by the fact that the Ombudsman, an independent arbiter, has made a ruling in the case. On this basis, we are seeking to press the Department for a change of heart so this family can benefit from natural justice, as well as other people who might be adversely affected by this scheme.

Tom Sheahan (Kerry South, Fine Gael)
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Has the Minister sought legal advice from the Attorney General on this matter and the report? Has he calculated the potential financial liabilities for the State not only in this case, but in the cases of the other 60 applicants who have not complained to the Ombudsman?

Brendan Howlin (Wexford, Labour)
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A final reply from the Minister of State.

Tony Killeen (Clare, Fianna Fail)
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The advertising issue is a matter of opinion and, clearly, Deputy Sherlock and I take opposite views on it. I am not sure that people in any community necessarily read the advertisements in the daily newspapers, for example, which is another medium where advertisements might have been placed. It is highly unlikely. I certainly do not-----

Michael Creed (Cork North West, Fine Gael)
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They did not get a telephone call from the Minister to tell them the scheme was available either.

Brendan Howlin (Wexford, Labour)
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The Minister without interruption.

Tony Killeen (Clare, Fianna Fail)
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It is also important to bear in mind that this information was made available to the fishing organisations and to the only cases that were on file in the Department. Interestingly, only one in eight of those cases actually qualified under the terms of the scheme.

Seán Sherlock (Cork East, Labour)
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Certain people got a heads-up from sources about the scheme.

Tom Sheahan (Kerry South, Fine Gael)
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Lines were sold after the draw had taken place.

Brendan Howlin (Wexford, Labour)
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Allow the Minister to make his final reply to the very serious questions.

Tony Killeen (Clare, Fianna Fail)
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I appreciate that point but the argument cannot be brought to any conclusion because it is impossible to know where one would need to have put this information to ensure that everybody received it. However, had the Department been aware of 16 cases, as it clearly was, and had it not informed the people concerned that this scheme was in place, a case could be fairly made that information was available to the Department which it had withheld from people. Frankly, I do not see how the Department could have informed people of whom it was not aware in the first place, and I certainly do not see how it could defend not telling the people of whom it was aware. That point is absolute rubbish and does not withstand any type of examination.

With regard to the tragedy that befell this family and all 68 applicants in this case, and quite a number of others who did not apply for a variety of reasons, it is incumbent on all of us to take a sympathetic view. would be a wonderful world if we were able to design a scheme under which-----

Tony Killeen (Clare, Fianna Fail)
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-----it will be possible to pay compensation on those criteria. It is not possible to do that.

Michael Creed (Cork North West, Fine Gael)
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What about the Attorney General?

Tony Killeen (Clare, Fianna Fail)
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On the question of taking legal advice on the issue, not only did I take it but it is outlined in the Ombudsman's report.

Tom Sheahan (Kerry South, Fine Gael)
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I asked a question about the Attorney General's advice which was never answered.

Tony Killeen (Clare, Fianna Fail)
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It is in the letter.

Brendan Howlin (Wexford, Labour)
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The Minister of State specifically replied to that, but the Deputy was on his feet at the time and was not listening.