Seán Connick (Wexford, Fianna Fail)

I thank those Senators who have spoken so far for their contributions and I understand more Senators will contribute. I thank the Senators who gave me their best wishes on what is my first occasion to address the Seanad. I look forward to a long working relationship with Members on all sides of the House.

On 14 December last the Ombudsman submitted a special report to the Dáil and the Seanad in accordance with section 6(5) and 6(7) of the Ombudsman Act 1980. The Ombudsman took this action because the Department of Agriculture, Fisheries and Food disagreed with the findings and recommendations she made arising from her investigation of a complaint from an unsuccessful applicant under the lost at sea scheme of 2001. The 1980 Act does not set out a procedure to be adopted by the Oireachtas in dealing with this matter and therefore we are all in uncharted territory in that regard. The one previous instance in which an Ombudsman made a special report to the Oireachtas was a completely different type of case which affected a particular group of taxpayers.

I echo my predecessor, now the Minister for Defence, Deputy Tony Killeen, in placing on record my respect for the Ombudsman and the work done by her office. It is clear that she and her team have carried out a detailed and forensic examination of the complaint in question and although I disagree with her findings, I compliment her and her team on the time and effort that has been put into compiling this report. I also place on record my deepest sympathy for the family in question and the very many families bereaved in this way, some of them among the other applicants under the scheme. My own county of Wexford, which also has a strong fishing tradition, has seen many such sad events, even in recent years.

The background to the lost at sea scheme has been set out already in this House in some detail by my predecessor and therefore I will refer only briefly to the conditions of the scheme, the context in which it was promulgated and the outcomes of the applications received. I will then explain the reason the Department does not agree with the Ombudsman's findings and her recommendation that monetary compensation be paid in this case. The scheme was initiated within the Department of the Marine and Natural Resources. Responsibility subsequently moved to the Department of Communications, Marine and Natural Resources in 2002. The Department of Agriculture, Fisheries and Food only assumed responsibility for sea fisheries related matters in October 2007.

The lost at sea scheme was a limited scheme introduced in June 2001, with a closing date of 31 December 2001, whose objective 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. This scheme was targeted at people who had been and wanted to continue fishing. It was a bounded, time-limited scheme under which replacement capacity, that is, 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 had lost a fishing vessel between 1980 and the establishment of the fishing boat register in 1990 but who had been unable to replace the fishing vessel for verified financial reasons. The scheme was intended to assist families in introducing a replacement for the lost vessel that would be owned and skippered by the applicant or by an immediate relation of the applicant. The objective of the scheme was to allow fishermen or their immediate family to get back fishing. It was not introduced to provide a means whereby a family who tragically lost family members at sea could obtain payment from the State for this loss.

For the information of the House, "capacity" is a term used to describe the gross tonnes, GT, 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 gross tonnes and 244,834 kilowatts under EU Regulation 1438/2003.

When the new sea fishing boat register was introduced in 1990, all vessels registered at the time were awarded the capacity of their vessels effectively free of charge. However, any vessel that had previously sunk or 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 over time became a valuable commodity because the overall capacity of the Irish fleet was capped under EU fleet management rules to which I have already referred. 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 at the time the scheme was introduced.

Records in the Department and made available to the Ombudsman show a range of contacts, meetings and correspondence going back to March 1999 between interested parties on this issue. These contacts included public representatives, individual vessel owners, fishermen's representatives and producer organisations. It was being argued that there were a number of cases where the cost of purchasing replacement capacity was a factor in preventing families from getting back into fishing after losing a vessel. The records also show that there was both support for and opposition to such a scheme from within the industry and that officials from the Department of the Marine and Natural Resources advised on the merits or otherwise of such a scheme and some of its conditions. Opinion was divided within the fishing industry. From the administrative perspective it was important to ensure any such scheme could be strictly limited to those who met the criteria of the scheme. Once the decision to have a scheme was made, the terms and conditions of the scheme that emerged from this process would necessarily have reflected the views of all the stakeholders as well as public policy considerations and EU and national legal requirements at the time.

The scheme, as published, included among its conditions that:

The boat in question is 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. Applications under the scheme must be received by 31 December 2001.

These conditions were intended to ensure only those who met the criteria in full were successful, that only the immediate family could benefit from any capacity awarded and that the benefit of capacity for the scheme was to allow the family to return to fishing and that 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. The Department had knowledge of 16 cases at the time where fishing vessels had been lost at sea during the relevant period and the owners of those vessels received written notifications of the new scheme and were invited to apply. Two of these cases were ultimately successful. The scheme was intended for those who had been in the fishing industry, wanted to continue a family tradition of fishing and where the grant of replacement capacity for their lost vessel would enable the applicant or an immediate relation to return to fishing.

The advertising was quite successful and the scheme, despite its tight restrictions, was well responded to. 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, through the scheme, to return to fishing. Given the objective of the scheme, it was advertised widely in the major fishing trade papers in Ireland, including the Marine Times, The Irish Skipper and the Fishing News, and the various fishing representative groups, including all of the producer organisations, were asked to assist in publicising the scheme.

The scheme was launched in June 2001, ran for six months and closed on 31 December 2001. 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 itself. The replacement capacity awarded under the strict terms of the scheme could not be sold on or otherwise traded or realised as a financial asset in the tonnage market.

The complaint that is the subject of the Ombudsman's special report was made by one additional applicant whose application under the scheme was received in January 2003, more than a year after the closing date. The application, received on 7 January 2003, was refused on the basis of being more than a year outside the closing date of 31 December 2001 and also that 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 two years minimum.

In November 2004 the son of the owner, who had been lost with the vessel, made a complaint to the Ombudsman that the decision to refuse his family's application was unfair on the grounds that his family had not been made aware that the scheme was in place and that their circumstances were such that they 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 particular family did not meet at least two of the conditions of the scheme and that it had been adversely affected by the failure of their 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 complainants. The Department was of the view at the time that given the close knit nature of the fishing community, placing an advertisement in the three major fishing publications in Ireland, notifying the fishermen's representative organisations and writing to 16 known individual cases was appropriate in the circumstances. The scheme was targeted at people who wanted to continue a family tradition of fishing and would continue that tradition 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.

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 fishing. Targeted advertising and communication channels most commonly used by the fishing industry and fishing communities were, therefore, the most appropriate way to publicise the scheme.

I am convinced, as is the Department, that this scheme, once decided on, was properly and fairly administered by the Department of Communications, Marine and Natural Resources, which had responsibility for the scheme at the time. The Ombudsman has expressly acknowledged that she found no evidence to suggest that, once the scheme was launched, that it was not applied equitably.

In this case, monetary compensation is not warranted. In the first instance, the lost at sea scheme did not envisage any monetary awards. The replacement capacity awarded to the successful applicants could not be traded, sold on or otherwise disposed of for financial gain. On the contrary, the successful applicants had to provide a replacement vessel from their own resources as well as pay for its running costs in order 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 their application 20 years later. Indeed, after the sinking the family were seen, perhaps understandably, to have left the fishing industry for the subsequent 20 years. In the exchange of correspondence, the Ombudsman contends that while the family had received a substantial insurance payout this was not relevant to her investigation or to the scheme.

The compensation figure of €245,570 recommended by the Ombudsman was arrived at by using the methodology and rates used in the 2008 decommissioning scheme, a completely separate and unrelated scheme. 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. It seems to me that the situations are in no way comparable. In the case of the decommissioning scheme, the vessel owners had the expense of purchasing a vessel and maintaining it over a period of years. Successful applicants under the decommissioning scheme were paid to voluntarily give up a working active vessel and its capacity, to pay to have it dismantled and, indeed, to lose its future stream of income and the rates payable were intended to incentivise this. Under the lost at sea scheme successful applicants had to provide a replacement vessel from their own resources but would not have also had to purchase replacement tonnage for it.

The Department remains concerned that the recommendation in regard to this specific case could give rise to major financial liabilities arising from claims from others who were unsuccessful applicants under the scheme. The Ombudsman's special report asserts that the recommendation relates to this case only, that her analysis, conclusions and findings flow from the particular circumstances of this case alone and, therefore, have no implications for other unsuccessful applicants. This assertion appears neither logical nor consistent on the consideration of the full facts of the case and the legal advice available to me.

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 this family had been treated unfairly as a consequence. This assertion is not supported by the facts. The scheme as applied in this case was the same scheme as that applied equitably, as the Ombudsman has acknowledged, to all the other applications received. The considered legal advice obtained by the Department contends that it is inevitable that the Ombudsman's recommendation in regard to monetary payment may result in other unsuccessful applications for this scheme looking for the same consideration.

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 if the Ombudsman's recommendations were acceded to. In addition, those who contacted the Department in the year after the scheme had closed or who might have thought of applying in that period, but did not do so for whatever reason, would also seek to build a case on the basis of the Ombudsman's recommendation.

At this stage, it is impossible to estimate precisely the financial outlay or potential liability that might be involved but there is no doubt that it is likely to be substantial and have a serious financial impact at this time. There are also, perhaps more importantly, implications for the operation of other administrative schemes across Government that have application deadlines. Deadlines are a fundamental feature of most schemes across the public service and are strictly enforced and adhered to generally in accepting or rejecting applications. Totally discounting the deadline in this scheme and accepting the validity of an application that was more than a year late, as the Ombudsman recommends, 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 in regard to her findings in this case and her proposal to award financial compensation. The Ombudsman has acknowledged that the Department of Agriculture, Fisheries and Food is free in law to disagree with her findings and to refuse to implement her recommendations. Notwithstanding this, she decided to submit a special report to the Oireachtas on 14 December last. In submitting her special report, the Ombudsman has requested that the Houses consider her report and take whatever action they deem appropriate. The Ombudsman Acts are silent on a next step or a specific role for the Oireachtas in such cases.

Senators will be aware that the special report was debated in the Dáil on 3 February last and in this House on 18 February and that no recommendations were made for further action by the Oireachtas in the matter. It was suggested in the Seanad that the Ombudsman Acts should be revisited with a view to addressing the apparent lacuna in respect of the resolution of disagreements between the Ombudsman and any other party. Senators will also be aware that the Oireachtas Joint Committee on Agriculture, Fisheries and Food today decided to invite the Ombudsman to appear before it to discuss her special report. The Department and I fully respect that it is a matter for Oireachtas committees to order their business and decide what issues they examine and how and when they do so.

I reiterate that the complainants in this case did not apply for the scheme within the timeframe and were more than one year late in submitting an application. The family did not meet some of the criteria of the scheme. The Department maintains its position that the scheme was administered with scrupulous fairness in that each applicant was treated fairly under the scheme within specific terms, rules and conditions. The Ombudsman acknowledges there is no evidence that the scheme was not applied equitably. It was advertised in a targeted way to the target audience, namely, those with a family tradition of fishing who would return to fishing if successful under the scheme.

I have the highest regard for the Ombudsman, her office and team. The issue investigated and reported on by the Ombudsman is difficult and has taken considerable time and effort by her office and the Department. There are far-reaching implications for this scheme and other such administrative schemes. I am convinced the Department's position is reasonable having regard to all the circumstances of this case.