Tony Killeen (Clare, Fianna Fail)

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.

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