Joe O'Toole (Independent)

Ba mhaith liom fáilte a chur roimh an Aire Stáit. Is mian liom "go raibh míle maith agat" a rá leis as ucht an jab atá ar siúl aige ar ár son sa Bhruiséil agus áiteanna ar fud na tíre. Go n-éirí leis. Mar is eol don Aire Stáit, I come from a fishing town, Dingle, and when going to school half of my class were from the fishing community. Anybody of my age from a town like Dingle or Killybegs will remember long nights with winds blowing and howling, and waves crashing in on the pier and in through the harbour's mouth, with families waiting along the harbour wall wondering whether their boats would come back in. There is nothing as devastating as the loss of a fishing vessel and the loss of a life. I saw that many times while growing up and it is never forgotten. It teaches one a considerable amount. Above all else it teaches one enormous respect for the profession of fishing and the great investment and risk that goes with being dependent on fishing as part of a fishing family. I say that because in all these matters I am very biased towards the fishing industry. Two years ago I was a lone voice in the Oireachtas arguing against the Government and the east coast-south Dublin approach to destroy a centuries old tradition of salmon fishing in a manner that was not necessary and could have been done differently.

I have known the Ombudsman for many years. I knew her when she worked as a journalist in this House. I hold her in the highest respect. Before I get into the meat of the Minister of State's speech, I ask him to take this back even though I know this is not within his remit. The real issue here, if I take politics out of it, is that we do not have any method of dealing with a report from the Ombudsman coming back to the Oireachtas. If this were the first time that happened, there might be some excuse for it, but it is not the first time; we have dealt with this before. I can recall a situation where somebody appealed against a decision of the Revenue Commissioners and the matter came before the finance committee.

There are a number of issues to be considered. It is not our job to second guess the Ombudsman one way or another. Neither is it the case that the Ombudsman is necessarily always right. We should not show bias in our approach. The Ombudsman makes the point that the scheme was well intentioned. The complaint was that it had been arbitrarily applied, The Minister of State has outlined why, in his opinion, that is not so. Both he and the Department are entitled to their opinion. What is interesting is that the Ombudsman found that it had been unfairly applied. Incidentally, it is right that the Department should state its case. I do not have a great need to pick holes in what the Minister of State said in that regard. His job is to defend his Department and say how it did its job. He believes, obviously, that it was done correctly. Having said that, that does not mean he is right; he may well be wrong. It also means that perhaps different standards and benchmarks should apply.

The Ombudsman found it to be unfair and has in favour of the complainant. She made two points. She said the scheme was inadequately advertised and that there was no discretionary element. The Minister of State has proved, by the strength of his argument, that there was no discretionary element, while indicating to the House, in effect, that there should not have been since there were certain immutable and inflexible conditions involved.

There is an interesting element involved and I know from where the Ombudsman is coming. The Minister of State has not dealt with this aspect, although I am not blaming him for not dealing with it. There has been a series of court cases in recent times dealing with judicial reviews, in which the courts have concluded that there was no clear evidence of a discretionary element being exercised. I am referring to the exercise of discretion in the formation of a judgment. The word "discretion" can give the wrong impression, inferring that people can do as they like, but that is not what is meant in this case. In the Ombudsman's use of the word, she means there was no indication that discretion had been used in coming to a judgment. The Minister of State can agree or disagree, but this should be brought to the attention of his ministerial colleagues, as it applies to every single scheme and is why we do not have computers instead of Departments. It is why we pay civil servants, Ministers and politicians to make judgment calls. One cannot have schemes that are so hidebound that there is no formation of a judgment or, in the Ombudsman's words, "discretion". I emphasise that the use of the word in this case does not mean doing business.

I cannot comment on the challenges posed and allegations made against the previous Minister of State or Minister. I would not even attempt to go there and it is not my business. However, it is my business to examine the arguments made. The Minister of State has said that in coming to her judgment on the quantum of money suggested the Ombudsman based the figure on the decommissioning scheme which, as he rightly pointed out, has no relationship to the other scheme. However, that is not an argument, as she had to use a benchmark. I have read that statement three times and believe it weakens the Minister of State's argument. If I was in his position, I would not have said it. He was doing fine until he came to that part because if she did not give some indication as to how she had come to that amount of money, we would all have been asking whether she had just plucked the figure out of the air. Therefore, the Ombudsman went for the only figure she could and that was appropriate. I am not saying it is the correct amount of money, but we must recognise that she used certain structures, benchmarks and guidelines in coming to her conclusions, which is significant. The Minister of State has said also that the Ombudsman seemed to base her conclusion on an assumption that if there had been discretion, it would have been granted to the family concerned. I do not know whether that is the case and have not seen it. It is a big step to make.

The Minister of State has made a cogent and plausible case on behalf of his Department, which I am not trying to undermine. However, I want to tell it as I see it. I have not received a briefing on the matter; I am giving my personal response, nothing more. Nonetheless, the Ombudsman has done a good job of work.

I shall conclude with the point with which I began. We put legislation together which deals with all of the various steps taken in the operations of the Ombudsman. The final one is to the effect that if the Ombudsman is unhappy with the way in which his or her proposals are being dealt with by a Department or Government agency, he or she can report the matter to the Oireachtas, but at that point we stopped in a lacuna. The Minister of State and I have been over this ground in another place many times. Surely, where mediation or arbitration is involved, we should always say the matter should be brought to a conclusion and that there should be closure. However, we have left a gap in the legislation that does not result in closure. I do not even mind whether such closure involves a free vote in the House on whether we should accept the Ombudsman's position, which would be no reflection on anybody. I say to the departmental officials present that if the Ombudsman happens to be right on this occasion, it does not mean the Department has acted dishonourably, unethically or immorally. It just means it made a mistake, in the view of the Ombudsman. It is akin to going to court. Many walk out of court believing they have not received justice. One gets law when one goes to court; when one goes to the Ombudsman, one still gets law. The Department does a very fine job. I complimented the Minister of State on the job it did in Brussels before Christmas, but that is not what we are at in this instance. It is about looking at structures. The problems are more for us as legislators rather than for the Department's because we should not be here trying to work out who was right and who was wrong. That, in effect, is to ask us to second guess the procedure we initiated. The final step is that, if the Ombudsman cannot bring closure, as we wish her to, she reports back to us on the matter.

There should be a way to bring closure to a matter, probably by means of a joint Oireachtas committee. The Joint Committee on Finance and the Public Service generally deals with the Ombudsman. Such issues should be dealt with in a way that would obviate the need for us to break down along party lines. Committee members should make an honest judgment, which would not be a reflection on anybody involved. It would simply bring closure. Those of us who have been involved in mediation, arbitration and such methods during the years know that, ultimately, while one might know one is completely in the right, matters might not go in the way one expects. In most of the great arguments in Irish life both sides, while holding opposing viewpoints, are absolutely certain they are completely right and they will always hold that position. In issues before the Ombudsman it is simply about bringing closure, taking everything into account. I ask the Minister of State to take away this most important point, to table a brief amendment to the legislation to allow the final step to be taken to ensure closure.