JOINT COMMITTEE ON AGRICULTURE, FISHERIES AND FOOD debate -
Wednesday, 21 Apr 2010

I have received apologies from the Chairman, Deputy Johnny Brady, and Deputies Thomas McEllistrim and Eamon Scanlon. Unfortunately, the Chairman has been caught up in the grounding of aeroplanes. He is in Madrid and is on his way back. That is why he cannot be present today. I am standing in for the Chairman today.

I welcome Ms Emily O'Reilly, Ombudsman. I also welcome Mr. Patrick Whelan, director general, and Mr. Tom Morgan, senior investigator, of the local authority section of the Office of the Ombudsman. They are present to make a presentation to the committee on the special report by the Ombudsman on the lost at sea scheme.

Before I call on Ms O'Reilly to make her presentation I draw everyone's attention to the fact that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before it. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

The format of today's meeting was agreed at a special meeting to arrange procedure. First, I will call on the Ombudsman to make her opening statement. I will then call each spokesperson and a member of the Government side. Each speaker will be allowed to partake in a question and answer session for 12 minutes. I will then call on any other members who indicate their wish to speak. Each of them will be allowed ten minutes.

The appearance of the Ombudsman sets a precedent for the committee, although one of her predecessors attended a committee meeting. I have the greatest of respect for her office, neutrality and position. I regularly recommend people to contact her office when no satisfaction is available at constituency level. I am delighted the Ombudsman is present and that I have an opportunity to meet her. I look forward to her presentation.

I thank the Chairman for his warm and welcoming comments which I deeply appreciate. I am accompanied by Mr. Pat Whelan, director general of my office, and Mr. Tom Morgan, senior investigator. I very much welcome this opportunity to appear before the committee to explain why I upheld a complaint I received from the Byrne family and recommended that compensation be paid to them following my investigation of their complaint regarding the lost at sea scheme. I have also followed the debates in the aftermath of the laying of my special report last December following the rejection of my recommendation by the Department of Agriculture, Fisheries and Food.

This was a long and complex investigation which involved the receipt of a number of detailed reports from the then Department of Communications, Marine and Natural Resources and the Department of Agriculture, Fisheries and Food which took over the relevant functional area. In addition, my office examined all the relevant files and interviewed all the key parties involved in the drafting and implementation of the lost at sea scheme as well as members of the Byrne family. My special report on the matter ran to more than 100 pages.

I ask the committee to bear with me as I attempt to raise and clarify what I see as some of the key issues in the investigation as well as some matters which arose during the debates. The case has also given rise to a wider debate on how Ombudsman special reports should be handled by the Houses of the Oireachtas and I propose to comment on this issue as well.

In speaking to the committee today I am mindful that my office has been working since 1984 on behalf of members of the public who feel they have been unfairly treated by public bodies. By the end of 2009 my office had handled approximately 73,800 valid complaints. In doing its work my office has established a hard-fought reputation for impartiality, objectivity and independence. My officials, some of whom have been with the office since its establishment, have a vast knowledge of public administration and wide experience in evaluating the merits of individual complaints and in deciding which complaints stand up and which do not. My office is scrupulous in ensuring it treats public bodies as fairly and impartially as it treats complainants.

As members are aware, this is only the second time ever that my office has deemed it necessary to lay a special report before the Houses of the Oireachtas. I do not need to remind the committee that there is a huge political and public debate raging in this country at the moment about financial regulation and there is a near unanimous view that to be properly effective it needs to be thorough, ensure accountability, impose sanctions where necessary without fear or favour and it needs to be free from outside interference in fulfilling its role on behalf of the public and in the public interest. My office concerns itself with administrative accountability and, to my mind, members of the public need to be assured my office is also being properly effective.

When a new complaint crosses my desk, whether it is simple or complex, of major or minor consequence, I ask one very basic question every time. Has this person been treated fairly? When I seek the answer to this question I may need to examine the details of legislation and the terms of non-statutory schemes, and analyse how decisions were made and what evidence was brought to bear in making those decisions. The breadth and depth of my investigation will be as wide and deep as I need it to be so that I can answer that basic question. In many cases the response of the public body at the outset may simply be that the rules are the rules and suggest that one need go no further. I believe that equity demands a more robust stress test than that. That is why, for instance, many EU related support schemes in the agriculture sector provide for the application of the principle of force majeure in assessing applications for benefits or supports. It is a recognition that while rules and regulations are necessary, there will always be unforeseen circumstances which may arise in an individual case which demands a flexible and equitable application of the rules. I get many complaints from public representatives which concern people who, on the face of it, were validly denied an entitlement but, when I probed the whole circumstances, I felt that they none the less had been unfairly treated. That is, fundamentally, why we have an Ombudsman.

I will give just two examples to illustrate the point. I received a complaint from an elderly farmer of limited means who was a participant in the rural environment protection scheme, REPS. He complained to me that he had been treated unduly harshly by the Department because of his removal of a small section of hedgerow. The farmer had removed the hedge to allow his local GAA club to install netting and carry out remedial works as suggested by its insurers. The hedge was replaced by a new one once the works were completed. On realising that he had possibly contravened the terms of the scheme, he subsequently applied to the Department for permission to carry out the work. The Department's regional inspector issued a refusal some four months later and as a result a 100% penalty was imposed. The penalty imposed was substantial and amounted to €6,000. The farmer then appealed the decision at local level and another regional inspector refused the appeal without viewing the site. The farmer then submitted a further appeal to the Agriculture Appeals Office which also refused his appeal.

When I examined the case I discovered that the new hedgerow which was planted would give greater biological diversity than the one removed and noted that there was no benefit to the farmer in having the hedgerow removed. It was also clear that the farmer would never have contemplated removing the hedgerow were it not for the fact that he felt obliged to accommodate his neighbours, his local GAA club. While it was clear to me that the Department had a certain amount of sympathy for the complainant, it felt somewhat constrained in what it could do having regard to the terms of REPS. While a strict interpretation of the terms and conditions of REPS would support the decision to refuse the appeal, I felt that the case was exceptional so I asked that the Department review the decision. I also indicated that I considered that the penalty imposed, more than €6,000, on an elderly farmer of limited means was disproportionate. The Department agreed and dropped the penalty.

In another case, a family was pre-approved for a grant to enable them to install a chair lift for an elderly and very ill relative. However, they neglected to secure a tax clearance certificate from the builder in advance of the works being carried out, as stipulated by the relevant regulations. They were then told the grant would not be paid. By this stage, sadly, the elderly man had died. Following my office's intervention, which challenged the basic unfairness of what had happened to the family, the grant was paid and the regulations were subsequently changed to put the onus on the builder to supply the tax certificate.

What those cases illustrate is that it is fair and reasonable to consider all aspects of a complaint before forming a view as to whether it has merit or not and that rules and regulations must be tested for fairness when in operation and not just when they are on the drawing board. Above all, they should not be applied so rigidly or inflexibly as to create inequity.

I believe the complaint of the Byrne family has considerable merit and I now want to turn to some specific aspects of that complaint. As will be apparent from the evidence presented in my report, the former Minister wanted to bring in a scheme and his officials did not. The Minister said he was aware of cases on the ground which he felt were deserving of support. Some fishermen had been pressing for such a scheme for years and some had even gone so far as to take legal action against the Department. The Minister instructed that the scheme should go ahead but, no doubt in view of the opposition of his officials and some of the producers' organisations, stated in his instruction, "I want to see how we can ring-fence the 6 to 8 genuine cases including those before the High Court (if they are in the genuine category)". This appears to be a reference to cases which were known about in detail in the sea fisheries administration unit of the Department and which it had been dealing with over the years. These cases were known because they were the people who had been pressing their cases or had their cases presented by their political representatives. At no stage during my investigation could I find any records which attempted to define a genuine case and at interview the officials involved seemed not to have a clear view as to what precisely was meant by this. The officials said they framed the scheme based on their knowledge of the sector and EU policy. They also made it clear that once the decision was made to bring in the scheme, they wanted it to be as confined as possible. For his part the former Minister said he felt there were genuine cases which deserved to be considered and these included two potential applicants he met on 5 February 2001, four months before the lost at sea scheme was publicly launched. At that meeting he discussed the likely criteria of the proposed scheme.

The sea fisheries administration division was aware that the marine safety division held files on marine accidents, including those incidents where vessels were lost at sea during the period relevant to the lost at sea scheme. When the marine safety division told the sea fisheries administration division that the files were in deep storage and were not readily available, no attempt was made to access those files to inform the drafting of the lost at sea scheme following the Minister's decision. Of those files that had been opened since 1980, only about 120 related to incidents involving fishing vessels and not all of those would have involved vessels sinking at sea. A thorough inspection and analysis of those files would not have been a particularly onerous task.

Furthermore, when the scheme itself was being drafted, there was no attempt to commit to writing the pros and cons and likely impact of the proposed eligibility criteria of the scheme. This contrasts with the detailed records on the Department's files setting out the opposition of various officials to the introduction of the scheme. My report provides clear evidence that the officials knew full well that cases would emerge following the launch of the scheme of which they had no detailed knowledge, but in drafting the scheme the primary aim seems to have been to make the criteria as restrictive as possible and allow no discretion or appeals mechanisms to provide for an equitable consideration of all applications. This was particularly important in view of the fact that this was a once-off, time-bound, non-statutory administrative scheme aimed at a particular cohort of potential applicants.

When the scheme was launched, those potential applicants known to the sea fisheries administration division were written to and invited to apply while the files on other cases of vessels lost at sea languished in deep storage. In all, 68 applications were received and only six were successful.

It appears clear from the Department's records that the only three successful cases which the Minister and the Department had been aware of in advance included a person involved in legal action against the Department and the two applicants who met the Minister in February 2001 and who had been comprehensively engaged with throughout the process. The other three successful applicants were among those not known within the sea fisheries administration division before the public launch of the scheme.

Apart from the closing date issue, which I will deal with separately, the Department said the Byrne family application did not meet condition (c) of the eligibility criteria. It states: "the boat in question is shown, by reference to logsheet 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 Department interpreted "a considerable period of years" as meaning at least two years. The late Mr. Byrne bought his first boat in 1975 and bought a replacement boat in July 1981 which sank in October 1981. Because condition (c) related to "the boat in question", the fact that Mr Byrne swopped one boat for another meant that the Byrne family's application could be deemed ineligible. This was an arbitrary and unreasonable condition based on an effort to make the scheme as confined as possible, regardless of the overall merits of the applications.

By contrast, I am aware of one successful applicant who had a boat that sank in 1983 but who, because he had used that particular boat for five years, was deemed eligible. He had been informed of the scheme by the Department and was invited to apply. Another successful applicant was also so informed and his boat was in use from July 1980 to November 1983, one year more than provided for in the condition set by the scheme. In regard to the continuous use provision, I ask members to consider whether it would be feasible to devise a comparable scheme for taxi drivers whereby a driver would be deemed ineligible on the grounds that he or she had changed cars at some point while at all times maintaining the business.

The scheme was advertised in Fishing News on 22 June 2001, The Irish Skipper in July 2001 and the Marine Times in August 2001. The Department said this was adequate advertising but I do not agree. The 16 or so potential applicants known to the sea fisheries administration division were notified directly by the Department or the Minister once the scheme was launched and invited to apply, so there was no danger they would not have become aware of the scheme. All other potential applicants would have had to have read one of the three advertisements in the specialist magazines to have become aware of the scheme. The Byrne family had lost their boat in 1981 and were not aware of the scheme at the time of its launch, which is not entirely surprising.

The Department had two other late applications apart from that of the Byrne family and the Department estimated that they received around five further telephone queries from other potential applicants who were informed they had missed the deadline. In recent weeks, I became aware that the Department had accepted a late application under the lost at sea scheme dated 11 April 2003. I obtained the background papers and it appears the application was accepted by the Department on the grounds that the complainant said he had been in contact by telephone with the Department on a number of occasions before the closing date but was given incorrect information, which made him decide at the time that there was no point in submitting an application. The Department decided it would be unfair not to accept his application. I understand that the application was ultimately unsuccessful.

I now want to turn to the issue of the level of redress I recommended in this case. There has been much misinformed comment on this issue during the debates on my special report. The statutory authority granted to me to recommend redress in any given case is set out in section 6(3)(b) of the Ombudsman Act 1980. This provides that, following an investigation, I may recommend to a public body that “measures or specified measures be taken to remedy or alter the adverse effect of the action”. My general approach is to assess the scope and nature of the adverse effect suffered by the complainant and if I find that this has arisen from unfair or unreasonable action on the part of the public body, I must then decide what redress is appropriate in the circumstances. As can be seen from the 1980 Act, it does not impose limits on my office in deciding on the type and extent of the redress that may be recommended. However, I am always conscious of the need to ensure that, in quantifying redress, any recommendations are fair and proportionate. To do otherwise would be to undermine the authority of my office.

The underlying principle that I bring to bear is to restore the complainant to the position he or she would have been in had the public body acted properly in the first place. This is a basic principle that has also been applied by the Irish courts in assessing appropriate redress. It is also a principle applied by the European Court of Human Rights in Strasbourg.

In the present case, the Byrne family had sought to be granted the tonnage that had been denied it by having its application rejected. I accepted the Department's argument that this was not an achievable outcome, having regard to EU restrictions limiting member states' fishing capacity. My view was that the only alternative was to recommend financial compensation, provided that the sum to be paid would be calculated on a fair and objective basis and would not be based on arbitrary criteria. That is why I felt that, for the purpose of the calculation of redress, the 2008 decommissioning scheme could provide a fair and objective methodology to arrive at a redress figure given that this scheme was designed to compensate certain fishermen, including those who had re-entered the fishing industry through the lost at sea scheme, who were now willing to surrender their tonnage and leave the industry.

The sum arrived at, based on calculations presented to me by the Department, was €245,570. To put the recommended compensation in context, I was aware that under the decommissioning scheme a total of €41.1 million was paid to 46 successful applicants, which yielded an average payment of more than €893,000 per applicant. That scheme provided for some tax concessions to successful applicants. If the Byrne family had re-entered the fishing industry in 2002 by means of the lost at sea scheme and left it in 2008, the recommended sum would equate to annual net income of €40,928, which is not an unreasonable amount in the circumstances.

It was suggested at various points in the debates that I did not understand the lost at sea scheme because I had recommended financial compensation for the Byrne family and that it was inappropriate for me to reference the decommissioning scheme as the Byrne family was not an applicant under that scheme. I hope I have clarified the basis for and rationale behind the amount of redress I recommended. I stand over the recommendation and firmly believe it is fair and reasonable.

It has been suggested that if my recommendation in the Byrne case is accepted and implemented, this will lead to a flood of other claims from other failed lost at sea applicants. I see no objective evidence to support such a claim and indeed such an eventuality is most unlikely. As I have indicated previously, I received 11 complaints or inquiries from persons claiming they were unfairly denied benefit under the scheme but only the Byrne family's complaint was upheld. Furthermore, since the special report was published last December and the subsequent widespread publicity about the matter, my office received only two telephone inquiries from potential applicants and no complaints have been received from either potential or rejected applicants.

It has also been suggested that acceptance of the recommendation would have widespread implications for all other administrative schemes throughout the public sector. I do not find this claim to be credible. This present recommendation relates to one complaint and one scheme and is based on its unique individual merits.

As the committee will be aware, when I consider that a public body's response to a recommendation is unsatisfactory, my only recourse is to make a special report to each House of the Oireachtas under sections 6(5) and 6(7) of the Ombudsman Act 1980. The legislation is silent as to what may happen after I submit such a special report and this current case has given rise to debate as to whether there should be some form of agreed process by which such special reports should be further considered by the Houses of the Oireachtas.

The lost at sea report is only the second ever special report laid before the Houses. On the previous occasion, a special report was laid by Mr. Kevin Murphy and, as a result of Oireachtas intervention and deliberation by the Oireachtas Joint Committee on Finance and the Public Service, the recommendations in the 2002 special report, Redress for Taxpayers , were accepted by the Revenue Commissioners.

On 9 March, I spoke at an Institute of Public Administration conference on good governance, during which I touched on this matter. I posed the question of how the role of ombudsman fits into the wider arrangements for Government and how Government should act to support the ombudsman in fulfilling his or her statutory role.

It may seem odd to raise those questions 30 years after the passing of the Ombudsman Act, 1980, and 26 years after the Ombudsman's office was set up. However, I pointed out that this type of situation has arisen only once before in all those years. A solution in that case was eventually found. So far, no solution to the Byrne case has emerged. There is no clarity on how, in principle, such a situation should be resolved in future. We must go back to first principles to find a solution that will apply in all such cases in future.

I made the following points on that general issue in my conference speech. The ombudsman model followed in Ireland is, essentially, the Scandinavian model. The ombudsman, who acts in the public interest as part of the overall system of checks and balances, is viewed as representing or protecting the people from any excess or unfairness on the part of Government. In this model, the status of the ombudsman is a key factor. He or she is a person of integrity and competence who is given significant powers to act independently and to adjudicate on complaints about how public bodies and Government operate. In investigating complaints, the ombudsman acts in an inquisitorial fashion rather than the adversarial fashion of the courts.

The ombudsman follows the usual rules of constitutional justice and fair procedure. Following an investigation, the ombudsman makes findings and, where relevant, recommends redress. Those recommendations are not legally binding on the public body concerned, but come with a strong persuasive dimension — so much so that it is rare that an ombudsman recommendation is rejected.

The ombudsman must earn the respect of the public and of Government by showing that investigations are conducted fairly, independently and sensibly. It is a measure of the status of the ombudsman that it is unnecessary to make his or her recommendations legally binding. In principle, Government will want to act on ombudsman recommendations because the people expect that. Otherwise, in rejecting an ombudsman recommendation, Government will be viewed as acting as judge in its own case and as rejecting the need for checks and balances.

At that point, in the Scandinavian model, parliament enters the picture. The ombudsman reports to parliament at least annually and has access to a parliamentary committee that scrutinises his or her work and, where necessary, supports the ombudsman. In effect, there is a contract of sorts between parliament and the ombudsman. On the one hand, the ombudsman goes about his or her business with independence, integrity and a sense of fairness. On the other, although parliament will carefully examine how the ombudsman conducts his or her business, and may require the ombudsman to explain or justify a recommendation or findings, it will generally support the ombudsman in ensuring that his or her recommendations are accepted and implemented by Government.

In this model, parliament does not offer blind support and loyalty to the ombudsman. Although it is predisposed to accepting that the ombudsman, as an independent statutory office holder, will have acted properly and reasonably, support in a particular case is likely to follow a critical engagement in which any issues related to the actual case are thrashed out with the ombudsman.

That is the type of model on which the Irish Ombudsman's office was expected to operate. It fits well with the model of government set out in the Constitution. Our Constitution envisages a parliamentary democracy operating on the basis of the traditional division of powers between the Legislature, Executive and Judiciary. It envisages the Executive power of the State as exercisable by or on the authority of the Government, which acts collectively and which is "responsible to Dáil Éireann". That model of government is posited on notions of checks and balances, and accountability. Above all, it is the function of parliament to act as a check on the Government and to ensure that it is held to account and not allowed to act in an arbitrary fashion.

In my speech, I questioned whether the model of government set out in the Irish Constitution operated as intended due to the dominance of the whip system which dilutes the ability of Parliament to hold the Executive to account. I suggested that with the exception of the election of a Taoiseach, almost all important decisions are taken by the Executive and rubber-stamped by Parliament.

The 1980 act does not prescribe what should happen when an ombudsman recommendation is rejected by a public body and a special report is laid. That is not necessarily a problem, as many aspects of how the ombudsman functions are not prescribed in law. One would expect, based on the ombudsman model adopted here in 1980, that Parliament would refer special reports to an appropriate committee, and that the committee would scrutinise my report in some detail, invite me and key personnel from the relevant Department to appear before it, and decide whether to ask the relevant Minister to accept my recommendation and implement it. One would expect the relevant Minister to heed the conclusion reached by the committee. That is no more than is envisaged in the Scandinavian model of how a state ombudsman scheme should work.

When the 1980 act was passed, the Oireachtas saw no need to be prescriptive on the matter of the handling of special reports, because it envisaged the process working along the lines of the Scandinavian model. If that approach was to continue, it is questionable whether there would be any need to change the 1980 act. When I sent my report to the Oireachtas, I did not think it necessary to spell out how it should be treated, as I had at all times envisaged that it would be subjected to impartial and rational debate.

The point of having an ombudsman is that complaints are investigated by an independent, experienced, professional and authoritative office. Logically, unless an investigation of equivalent weight is conducted elsewhere, or the investigation is shown to have somehow erred in law, the investigation findings and recommendations should be accepted. Only in exceptional circumstances should an ombudsman recommendation not be accepted and implemented. As my colleague Ms Ann Abraham, the UK Parliamentary Ombudsman, said last year at a House of Commons Select Committee: "Unless the Ombudsman has gone off her trolley, let us leave the findings undisturbed." I realise that the broader question of how to handle future Ombudsman special reports should be settled on another day, and will ultimately be decided by the Houses of the Oireachtas. Perhaps consideration of the current Ombudsman Amendment Bill will provide an opportunity for debate on the issue.

I am not blind to the fact that the divisions of opinion on this case have broken down on party political lines, due to the fact that a former Minister was one of the parties involved in the lost at sea scheme. In the heat of the debate, people have lost sight of the fact that my findings relate to the officials and the former Minister. I had no difficulty with the decision to introduce the scheme; with many elements of the criteria that the Minister introduced himself; or with the way in which all the applications of which I am aware, apart from that of the Byrne family, were processed. I have said that in my report.

I always recognised that the matter might break down on party political lines, but I felt duty bound to try to get a fair hearing for the Byrne family. I ask everybody to try and approach the matter in a calm, reasonable and objective manner and consider the case on its merits. As committee members and public representatives, I know members deal with complaints from constituents on a regular basis. I ask committee members to ask themselves, as I ask myself when I get a new complaint, whether this family has been treated fairly.

I do not wish to get sidetracked today on the improved arrangements that might be put in place in future for special reports. The issue before the committee today is whether my recommendation should be implemented by the Department. My office asks the committee to address the specific issue with a view to ensuring that the Byrne family receives justice for the adverse effect they have suffered.

In light of all that has transpired since I presented my special report in December, I hope the committee will make a judgment on this complaint, and make a formal report and recommendations, as the Committee on Finance and the Public Service did on the redress for taxpayers case. The committee's recommendations, as in that case, should be supported by reasoned arguments. I am supplying the committee with a copy of the committee's report on the redress for taxpayers case.

I thank the committee for its patience and for allowing me to articulate my views on the matter.

Thank you. I see that Ms O'Reilly's colleagues do not wish to add anything at this point.

We begin with the spokespersons for each party. This is a questions and answers session so questions can be put to Ms O'Reilly which she will answer as asked.

I welcome the Ombudsman and her officials to the committee. It is important to remember that we are here because of a tragic drowning accident almost 30 years ago, in which Francie Byrne and his son Jimmy, aged 16, along with three other crew members, lost their lives off the Donegal coast. The whole saga has developed from that.

I welcome the fact that, as the Chair said, we are engaged in a process that will allow us to reach a conclusion on the Ombudsman's report as laid before the Oireachtas, as provided for in legislation. It is only the second time this has happened. On the previous occasion, the matter was resolved after the report was referred to an Oireachtas committee. I hope this committee can play a similar role in resolving the impasse between the Ombudsman's office and the Department of Agriculture, Fisheries and Food, or the Government, as the case may be.

Page 68 of the Ombudsman's report goes to the heart of the issue. It states, "Because of the contrasting views of the Minister and his officials about the decision whether or not to have a Scheme my overriding impression is that once the decision was taken by the Minister to proceed, all those involved (officials and the Minister) [that is important] lost sight of the broader need to bring principles of equity to bear in framing the Scheme criteria."

The Ombudsman, in her speech to the IPA on 9 March, said: "The saga began with maladministration and has ended, to date at least, with poor governance." She went on to state: "It is possible that the Government's response in this case is a 'one off' prompted, as many observers have suggested, by a sense of loyalty to a colleague, the former Minister for the Marine and Natural Resources, who devised the scheme along with his officials, following representations from constituents and others and against the initial advice of his Department officials."

In other words, this is a cover up. The criteria, terms and conditions of the scheme were specifically designed exclusively to benefit a handful of cases. The former Minister repeatedly uses the term "ring fencing" for genuine cases. Was the scheme deliberately restricted to include only that handful of cases? Was that its raison d’être?

I will not use the phrase "cover up". I have no difficulty with the fact that the former Minister went against the advice of his officials on setting up the scheme. It is his prerogative; that happens time and time again. The difficulty arose in the clash between the Minister's enthusiasm for the scheme — on good grounds, as representations had been made and he was aware of hardship cases — and the Department's outright objection to the introduction of the scheme which it believed would interfere with European Union regulations and the overarching policy on regulation of the fishing fleet.

When one thing butted up against another, the result was blindness to equity. The officials went along — as they had to — with the Minister's wishes. However, they still wanted to ensure that the scheme did not interfere overly with the Department's aims and objectives, particularly in relation to the regulation of the fishing fleet and tonnage in accordance with EU legislation. They were determined to keep the scheme as tight as possible.

The people who applied for the scheme were not aware of that. I will use the analogy of the swan: it glides along nicely, but underneath the feet are flapping furiously. When people such as the Byrne family eventually learned of the scheme, they were not aware of the clash and the reluctance of Department officials to go ahead with it. They took it as read, and they saw that they fitted the criteria. They could not understand, therefore, why they were not allowed in.

Such schemes will always involve regard to equity. They will always allow appeals to be made and things to be considered in the round. The Byrne case, however, was not considered in the round. When the Byrne family attempted to hook up to the scheme, the doors were closed to them. Unfairness also arose from the fact that a distinction was made between two types of people. There was a clear inequity between the people who the Department knew about — I am not talking only about the gentlemen who made direct representations to the Minister — and who were lucky enough to have their files to hand, and others, such as the Byrne family, whose cases were in deep storage.

If someone was lucky enough that the Department had their files close by, they were contacted and did not have go to the Marine Times or The Irish Skipper to find out about the scheme. However, if someone was unlucky enough that their files were in deep storage, they would not find out about the scheme unless they happened to see the advert in those newspapers.

When the Byrne family eventually heard of, or read about, the scheme — however they learned of it — the deadline had passed. The Department should have responded by saying that it was arguably its own fault that the files were not readily to hand and that it did not look for them and that the scheme was not advertised for long enough. It should have said that it would make an exception and allow the family to participate in the scheme.

It was not the Byrne family's fault that they did not know about the scheme. They did not get the favoured treatment that other people got — again, I do not refer simply to the Minister's constituents.

It is at the heart of my finding that the Department carried out insufficient research on the scheme's parameters in drawing it up. That created inequity. If the Department had looked at all the files, it would have seen what the likely application load was and might have designed the scheme around that. It may also have found the Byrne case and corresponded with the family.

Page 23 of the Ombudsman's report contains what I believe is the last official correspondence, from Randall Plunkett, that the Ombudsman's office received from the Department. It advances one reason given by the Department, the Minister and the Secretary General for not accepting the application: the likely "cascade" of cases in the event that the recommendations in the Ombudsman's report, as they apply to the Byrne family, were to be accepted.

Apart from one other late case, which the Ombudsman brought to our attention this morning, as she became aware of it only after the report was published, there have been, from my recollection, 68 applications, of which six have been successful.

I am slightly confused about the number of people who subsequently contacted the Ombudsman's office. I believed that it was six, but it may have been 11. Of all those who contacted the office, either formally or informally, only one case — the Byrne case, which is the subject of the report — has been upheld.

Statistically, if that represents the likely number of successful applications, the argument that there would be a "cascade" of applications hot on the foot of the Byrne case being upheld does not stand up to real scrutiny.

The lost at sea scheme got a great deal of publicity during and after our investigation. We would have expected people who felt that they had been unfairly denied access to the scheme to have contacted us, but relatively few people did. Two people contacted us after the investigation, and only a handful did so beforehand. None of those cases, apart from the Byrne case, were upheld. We can find no evidence that there would be a "cascade" of applicants if the case was upheld. The Department has not received applications from a "cascade" of disgruntled people.

To return to my point about research, if the Department was concerned about a "cascade" there was even more onus on it to open all the files and assess the likely number of applications. We are talking about a finite number: only so many fishing trawlers sank and were lost during the relevant period. As my report states, it would not have been too difficult for the Department to go to the files and find out the numbers. The Deputy is right: as my report states, and as I have said this morning, there was no "cascade".

The correspondence from Randall Plunkett, head of the legal services division in the Department, is the last official correspondent that is referred to in the report. It states:

I do not wish to diminish the standing of the findings of the Ombudsman where she states that elements of the Scheme design "were contrary to fair and sound administration", but the possible cascade from what might be described as minor administration failings, may well give rise to a major financial liability.

Does the Ombudsman take this implicitly to suggest the Department accepts the finding with regard to administrative failings but that its sole concern at present, given this is the ultimate correspondence, pertains to the financial consequences that would flow from an acceptance of the case?

Generally speaking, the Department denied it was guilty of maladministration although it may have allowed for small bits and pieces here and there. Its major argument was that there was going to be, as the Deputy observed, a cascade of complaints and that there would be a huge financial cost to the State. However, I never have been able to find any evidence of this and anyone who thought he or she had been unfairly treated would have been well aware by now of the scheme and would have applied. However, this did not happen. Sometimes, on conducting an investigation and issuing a report on a matter, we may well get a cascade, but certainly not in this case.

I join in welcoming the Ombudsman before the joint committee. I will not address the aspects of her presentation pertaining to the constitutional aspects of her office as that matter should be left for another day. I believe that today's meeting of the committee should deal specifically with the Byrne case and the complaint made by the Byrne family. I wish to get a sense of where the Byrne family were coming from in the first instance. I wish to establish whether their primary motivation in the first instance was compensation or the replacement of tonnage. I ask this question because both the Minister, in his statement to the Dáil on 4 February, and Mr. Plunkett seek to convey the clear impression that somehow, the primary motivation is a compensatory package. However, to my mind the Byrne's primary motivation was the replacement of tonnage. I wish to get a sense of the particular provisions under which Mr. Byrne made the complaint in the first instance and I ask the Ombudsman to articulate what they were. First was that the special circumstances of his family's case were not properly considered by the Department and that the lost at sea scheme had not been properly advertised. The Ombudsman should speak a little more on that issue. In addition, the Department wrote to a number of potential applicants at the time and it already had records of the lost at sea. As for the records concerning the lost at sea, is the term "deep storage" the Ombudsman's own or is it a term that is used by departmental officials? It suggests to me that the Byrne family felt there should have been some record of the loss of the Skifjord and therefore that they should have come within the criteria. I wish to establish in layman’s terms the reason that was not the case.

On the question regarding advertising, the Department argued that anyone who is interested in fishing of course would be reading the Marine Times or The Irish Skipper and the other publication and that word would have got around. Another comment was made to the effect that the budget for advertising was not enormous, the Department had to be mindful of the public purse and so on. However, the fact is that the Byrne family did not see it. For the reasons outlined, they had been out of fishing for many years and obviously were not in the loop at that point. However, this goes back to what I stated previously about the clash between the Minister rightly wanting to put in place a scheme and the Department’s wish to make it as restrictive as possible. I believe that had the Department really wanted everyone to know about this, it would have advertised more widely. A few years ago, the Government wanted everyone to know about Eircom shares and I do not believe anyone could have come to me and claimed he or she did not know anything about it. The advertising took place on a 24/7 basis——

——as it was in the Government's interest to sell the shares and so on and it wanted everyone to know about it. It appears to me as though this was restrictive advertising. When the drift net fishing people were being compensated a few years ago, I can recall quite a lot of advertising in that regard in the national press and so on. However, the point is that the people did not see it. A comment also was made that the producer organisations would spread the word but I do not think they would have considered it to be in their interests necessarily for more people to enter the industry. In any event, they did not see it. I revert to the point I made on whether they should have been penalised for not seeing it when other people, because their files were not in deep storage, were lucky enough to be corresponded to directly and consequently, they were not obliged to see the advertising.

There were two criteria under which they did not qualify. The first was that they were out of time although one person did appear to get in even while being out of time. The second criterion pertains to the fact that they had not continuously fished in that boat. However, I make the point and judgment that this was not equitable. As I stated in my address to members earlier, it would be a bit like depriving a taxi driver of a benefit or of access to a scheme because he changed from a Carina to whatever, while still maintaining the business. As I understand it, Mr. Byrne did not stop fishing but simply changed boats. He had been fishing in that boat for just two years when it sank with the result that he, his son and another crew member were tragically killed.

On the compensatory issue, the Ombudsman's report states on page 82 that:

Because the Scheme has long since expired and because of subsequent developments in relation to Ireland's sea-fishing capacity, it would be inappropriate to attempt to apply the terms of the Scheme by way of a remedy — even though this is precisely what the Byrne family is seeking. Besides, I could not recommend that the Department apply the terms of this scheme to the Byrne family in circumstances where their application did not meet at least two of the qualifying conditions.

Given this scheme has long since expired, I seek to establish, in layman's terms, the reason the Ombudsman did not allow for tonnage to be divvied out, the reason she took a decision to award compensation and the reason she used the decommissioning scheme as the criterion.

The Department's objections to the scheme, in the first place, had to do with maintaining the appropriate levels of tonnage and abiding by EU regulations in that regard. If one applies for tonnage on the fishing register one has to withdraw tonnage and so forth. Really, we did not want to add to the problems that already existed in relation to doing this. The compensation arises from the Ombudsman Act and redress, and restoring a person to the place he or she would have been had he or she not been disadvantaged through the maladministration of a public body. We thought long and hard about this because it was very difficult and we decided to look at the decommissioning scheme and to use that as a way of assessing what redress the Byrne family should get.

The Minister, in his speech to the Dáil stated that given that the scheme was intended to allow families to continue a family tradition of sea fishing, it was difficult to see how it could be sustained that the Byrne family was disadvantaged by the failure of its application some 20 years later. After the sinking, he said, the family was seen, perhaps understandably, to have left the fishing industry for the subsequent 20 years.

There is an issue of quota here. We would support the fact that compensation was paid. The Ombudsman will correct me if I am wrong, but even if she could have recommended that tonnage should be given to the family, this could not have been done, in any event, because of the expiration of the scheme, quite apart from the restrictions on tonnage.

Yes, exactly, and the point has been made by the former Minister and the Department that the Byrne family somehow did not suit the scheme since they had been out of fishing for a long time — and it was intended for families with a long tradition in fishing who wished to get back to it. The point in relation to the scheme was that all the family had to do if it got the tonnage was to ensure that a direct family member bought a boat and started to use the tonnage. A family member was willing and able to do that. We also know that the widow of another fisherman, who had tragically died at sea, was awarded tonnage, but she did not have a family member who could avail of it. She actually came to us and we said, "No, sorry", and she had to give the tonnage back. She was very disappointed and may have taken legal action, subsequently. The point was, however, that the Department and the former Minister consistently said that the Byrne family was out of fishing, and this had nothing to do with them. In relation to this woman, however, who did get the tonnage, that family too, was demonstrably out of fishing, since she could not get any of the family members to take it up.

The Ombudsman referred to an interview with Mr. Carroll, the former Secretary General, on page 51. How specifically designed was the scheme? It seems to me that it was not a wide ranging scheme, but was very much targeted towards certain individuals. Mr. Carroll agreed that the officials "were negatively disposed towards a change in policy" as was envisaged, but the then Minister was particularly tenacious on the issue. The Ombudsman in her speech, stated that the Minister instructed that the scheme should go ahead but "no doubt, in view of the opposition of his officials and some of the producer organisations....I want to see how we can ringfence six to eight genuine cases including those before the High Court".

On page 101 of the report, Deputy Fahey in his response to some of the deliberations stated that his use of the word "ringfence" should be interpreted as his wish to ring fence the scope of any scheme to only genuine bona fide cases. Further use of the word "ringfence", he said, was in response to a note from a person. The impression here is that really and truly natural justice was not served. If it was really designed to have a broad scope, then the Byrne family would have quite easily fitted in under the criteria, which as they existed or were administered, had been designed with certain individuals potentially in mind.

It was very deliberately restrictive and the officials have acknowledged that. They say they set about designing the scheme without any particular people in mind, and I have to accept their bona fides in that regard. The former Minister said that he was using the two people who had come to him as a template for a hardship case. Ultimately, 68 people applied, six were awarded tonnage. Of the only three people which were known about, two had been making direct representations while the third was involved in a legal action with the Department.

For the purposes of understanding can I clarify the difference between maladministration and contrary to fair and sound administration? I am not being facetious in asking that question, but on page 18 of the report the Ombudsman refers to "maladministration" while on page 81, in terms of the recommendations, it is stated that the scheme was operated contrary to fair and sound administration.

I thank the Ombudsman for her presentation, this morning. Obviously, we are all very conscious of the tragedy surrounding the Byrne family and the terrible loss. Many of us from coastal communities will argue against the discriminatory way the family has been treated as a result of a decision taken by the former Minister and his officials. Reading through the lost at sea report and in listening to the Ombudsman's speech I find no record of any attempt to define what was or was not a genuine case. She has quoted, quite elegantly, from her viewpoint, that the reputation of the Ombudsman is for impartiality, objectivity, independence and crucial fairness. At no time has she found any criteria that would prescribe what a genuine case was. From my reading of the report and from the Ombudsman's presentation today, the ringfencing was determined by meeting people from within the sector, who were beneficiaries as a result of lost at sea "compensation" for want of a better word.

It also seems evident from the report that there was a conflict between sections and the Department and the Minister of the day and that the persuasions came about as a result of meetings with two of the beneficiaries of the scheme. Will the Ombudsman elaborate for the committee on the meetings that took place in March 1999 between the then Minister, Deputy Fahey, Mr. Flaherty and Mr. Mullen?

On the Deputy's first point, we could not find any indication as to how the criteria for the scheme were arrived at. Neither could the officials in discussions they had with Mr. Morgan and Mr. Whelan point to what they meant by genuine cases. I believe the former Minister had a sense that there was an injustice. When the EU fishing register was introduced in 1990 it was very difficult to get on it, subsequently, unless an operator was willing to withdraw tonnage. If a person did not want to withdraw tonnage because his or her boat had sunk, then he or she was really stuck. The Department was very much holding out against the pleas being made by various people including those individuals in relation to that. Perhaps I could invite Mr. Morgan to talk about that meeting with the former Minister, Deputy Fahey.

There was a subsequent meeting in February 2001. The former Minister stated to us that he felt these people would fall within what he would see as a genuine hardship case. He was cognisant of the fact that the officials were adamant they did not want a scheme. From his point of view, the purpose of the meeting was to articulate their case and to show it was a case of genuine hardship. In that context, he debated with them the possible criteria of a scheme that may come in at a later stage. That is the background.

I am trying to get my head around the situation. The Byrne application was ruled out because it was out of date and because the boat was changed. Ms O'Reilly described it very eloquently when she compared that to a taxi driver changing his car. The man had been involved in fishing since 1975 and when he changed his boat, both he and his son and three other crew members were lost at sea a few months later. I cannot understand how any Minister or Department would penalise somebody because of those circumstances. The person was a full-time fisherman and his family were involved in the industry for quite some time, yet they were discriminated against on the basis of the time factor.

Department officials have stated in reports and in the media that they did not want somebody to receive compensation who had only started fishing for two weeks, following which their boat sank, so they decided on two years. However, if there had been an appropriate appeals mechanism, that issue would have arisen. If an effort was genuinely made to enable everybody to get into the scheme who was potentially eligible for it, then that is one of the criteria which may well have been dropped for the Byrne family. On the face of it, that seems quite arbitrary and unfair.

If somebody is denied a benefit in the first instance under many agricultural or social welfare schemes, there are certain statutory appeals mechanisms set up where they can restate their case. They can come to us at the very end of the process for most of these schemes. Somebody else could examine the wider circumstances of the case and see the inherent unfairness in it. In this case, we are not talking about somebody who had started fishing for a couple of weeks, whose boat sank and whose family then looked for tonnage. We are talking about somebody who had been fishing for a long period of time and who had simply changed his boat.

That is correct. The applicants made telephone contact before the deadline for applying to the scheme had expired and they claimed they were given incorrect information, so they did not bother applying. They later applied a month or so after the Byrne family applied. Their application was ultimately successful, but the point I was trying to make was that they were allowed to apply for the scheme.

We deemed that there had been maladministration in the manner in which this family's case was handled. Under the terms of the Ombudsman's Act, I can recommend redress. We discussed what would be the appropriate redress and decided it would not be tonnage due to EU quota limits and because it was against departmental policy to award additional tonnage in those circumstances. We tried to find a rational and appropriate mechanism for awarding tonnage and then we looked at the terms of the decommissioning scheme. We asked the Department to come up with figures that might be appropriate to people decommissioning in those circumstances, and that was the figure they chose.

I made the point that there were two classes of people and one class of people received favourable or preferential treatment. If a person was fortunate enough to have the file close at hand in the Department, then that person was contacted by letter and did not need to know anything about the scheme in advance and did not need to see the advertisement in the newspaper. However, if like the Byrne family, the person was out of the loop and the file on the person's tragedy was "in deep storage", as per the language used by the Department, then the person had no way of knowing about the scheme unless he or she happened upon the advertisement in the trade newspapers. However, the family were arguably no longer reading the newspaper because they were out of fishing due to the tragedy that had happened to their father and brother.

We deal with every case on an individual basis. We have dealt with many cases in regard to the REP schemes where the money people were due to get has been denied to them because they have been deemed to have broken an agreement they entered into with the Department of Agriculture, Fisheries and Food. When we examine their cases, sometimes we find there has been an illness or something has happened in the family that would have made it impossible for them to comply with what they had agreed to in regard to the REP scheme. In such cases, we have gone back to the Department and said that, in that case, we believe it is unfair to deny the person the particular benefit because of the particular circumstances. This does not necessarily apply to everybody who is late or ill. We take it on a case-by-case basis.

Very few people got into this scheme and many did not, and several of the latter came to us. We examined their cases and did not uphold them for various reasons. We cannot generalise from a particular complaint. What we are looking at in every complaint that is sent to us is whether it is fair and whether equity has applied. In this case, we do not believe it was applied because, as I said, the Department treated people differently.

The overarching aim of the scheme was to enable the keeping up of a family tradition in fishing. The test of that was whether the person who was awarded tonnage could find a family member who would be able to buy a boat, take up the tonnage, start fishing and start a business. In the Byrne case, the family had one family member who was willing to do that. In another case that came to us, a woman who was given tonnage but could not avail of it because she had no family member who was willing to go into fishing had to give it back.

On the very good question about the decision to award compensation, whereas the scheme provides for tonnage, the Deputy asked why we recommended a monetary sum when tonnage itself does not encapsulate monetary compensation. This is a real dilemma for the Ombudsman in considering this case. The basic point is that the scheme allows for the award of tonnage but, in taking up that tonnage, clearly, the person involved in the fishing activity has the opportunity to trade in a business and hopefully to make a profit and a living out of that. It is an entry back into the market. The dilemma we faced, as the Ombudsman has explained, is that it was not open to the Ombudsman to recommend tonnage in this instance because there was a cap on that, and we readily accepted that position.

The basic issue for the Ombudsman is how to address the adverse affect the family had suffered and what remedy would put them back into the position they would have been in if they had been treated properly in the first place. That is why the Ombudsman went to the Department and asked it to calculate what the decommissioning scheme would actually produce in this case. In a sense, the recommendation for €250,000 was meant to compensate the family for the fact they were unable, because of their non-admission to the scheme, to take up the tonnage at the time. In a sense, what it is doing is trying to put them back in the position they would have been if they had applied. However, one could not turn the clock back on the tonnage issue because that was gone. That was the——

On a further point, in regard to the issue about when we considered the question of whether we could press the Department to grant tonnage, while I do not want to get too bogged down in detail, paragraph 3.6 of the report, on pages 34 and 35, notes that the Department at the time explained to us that when the lost at sea scheme was introduced, a particular regulatory regime was in place. This was subsequently tightened up at EU level in 2002, so the ground had shifted and there was a greater barrier to the granting of tonnage at that stage. This was a further reason we felt we could not push that point.

I welcome the Ombudsman, Ms O'Reilly, as well as Mr. Whelan and Mr. Morgan. This is only the second time an Ombudsman's report has come before a committee such as this. I welcome the opportunity to clear some air on this very topical matter which has been discussed at a lengthy recent meeting.

I am only an ordinary person and I would like the answers to a few simple questions. In all investigations, I am a great believer in the four Ws — who, what, when and why. In the Ombudsman's opinion, who demanded the creation of this scheme? Who was seeking this scheme? Who designed the scheme? Who was described as particularly tenacious on this issue by the former Secretary General? Who advised against the scheme in its proposed format? Who were the beneficiaries of this scheme? Who was the ultimate determining judge for all matters involving this scheme? Who was the judge, jury and executioner of this scheme?

What was the purpose of the scheme and what was the role of the Minister in this scheme? When was the scheme devised and when was it completed? Why was the scheme devised and why was it so rushed that it led to a lack of adequate research of the files held in the Department? Why was the scheme so time-bound? Why was the scheme a non-statutory scheme? Why was the scheme considered contrary to fair and sound administration?

Why are we here today discussing this issue? Was it such a perfect scheme that it adhered to all the administrative guidelines and the law? Did it give a fair and equal opportunity to all citizens? How does the Department of Agriculture, Fisheries and Food justify the position of total rejection of the findings of the Ombudsman that have exposed so many failings in its drafting, processing and delivery of the scheme?

I particularly note the words of the former Secretary General in his interview with the Ombudsman's office. Page 52 of the Ombudsman's report states that Mr. Carroll "felt that if the Byrne family had applied on time there may have been scope for adopting a flexible interpretation of the condition but by the time the final decisions were being made on individual applications, he was not in the Department". When we consider all those factors, we know why we are discussing this issue today. It is only fair that the Department reconsiders its position and considers making a substantial offer, without prejudice, to the Byrne family.

The Ombudsman's report states that she is "satisfied that the Byrne family's circumstances were of a type which ought to have benefited under the Scheme and indeed, probably would have, had the Scheme been broader in scope with an appropriate discretionary provision and had it been more widely advertised". I totally agree with the Ombudsman on that. The report goes on to state:

In the circumstances, I consider that the appropriate remedy for the adverse affect suffered is monetary compensation. However, I recognise that were I to recommend a specific figure at this stage this might be seen as arbitrary by either the Department or the complainant, or indeed, both.

It further states:

Accordingly as a first step and with a view to devising a rational and reasoned approach to the calculation of compensation I recommend that the Department of Agriculture, Fisheries and Food use the calculation methods set out in the 2008 Decommissioning Scheme, as applicable to others who were successful under the Lost at Sea Scheme. The calculated sum should be submitted to my Office for consideration with an explanation as to the methodology used in arriving at the proposed amount. On receipt of the Department's calculations I will then proceed to recommend a specific compensation figure.

I know — I am sorry about that.

The report continues: "I recommend that the Department carefully consider my comments and findings about record-keeping practices in this particular case with a view to putting in place improved arrangements to ensure better accountability for decision making, particularly in relation to interactions between Ministers and officials." It concludes that "the design of the Scheme and the manner in which it was advertised was contrary to fair and sound administration" and that "based on my analysis of all the evidence available to me I am satisfied that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme and that they should be granted a remedy for the adverse affect they have suffered as a result of these shortcomings in the Scheme".

I believe that 15 individual trawler owners were notified of the scheme before it was ever put into practice. Why did the Department officials or the Minister not give the Byrne family that opportunity?

Some of the questions may have been rhetorical.

My report makes the dynamic clear. To be fair to the officials and to former Minister, Deputy Fahey, the officials acknowledged that they did not want the scheme in the first place, and the former Minister was insistent that it happened. That led to a situation in which the officials ensured, in devising the scheme, that it was very restrictive.

The Byrne family lost out because there was no room in the scheme, as there is in virtually every other scheme, for someone to cast another eye over the case, to take into account the particular circumstances and to decide whether the family had been treated fairly. There was poor advertising, and only certain people were lucky enough to have their case in a file rather than in deep storage. Those people did not have to look at the Marine Times, as the information was all there for them. The people who were unfortunate enough to have their files in deep storage, and who did not read the Marine Times and The Irish Skipper religiously, could not possibly have known about the scheme.

People who heard about the scheme or learned about it from an advert would not have known about the divisions and dissent between the Minister and the officials that were going on behind closed doors. As I acknowledged, that happens every day of the week, and there is nothing wrong with it. However, people would have taken the scheme at face value. They would have believed that the scheme offered them the chance, if their boat sank between 1980 and 1990, to get back into fishing and to get tonnage.

However, those people did not know that there was a real resistance to allowing anybody into the scheme. When the Byrne family eventually found out about it, they would have expected that it would apply to them even though they were late. They would have thought that the Department wanted to help people like them, that it would make some allowance as they qualified for the scheme and that it would see the unfairness in not allowing the family in because they did not see the ad in time. That did not happen, and that is where the maladministration occurred.

When the scheme was drawn up, it did not allow for an appeals system. Everyone abided by the strict letter of the law. However, as I constantly say as an Ombudsman, I consider issues outside the rules and regulations. There would otherwise be no need for an Ombudsman; there would only be judges.

It was clear to me that the Byrne family were disadvantaged and treated unfavourably while other people got preferential treatment. That was fundamentally unfair, and the family deserves to be compensated. The one chance they had to get back in to fishing was denied them.

The Byrne family was not treated fairly. The Ombudsman has, as she has set out, taken that approach to the case.

On 4 February 2010, the now Minister for Defence, Deputy Tony Killeen, stated: "The objective of the scheme was to allow fishermen or their immediate family to get back fishing, not to award any monetary benefit."

However, it is all about the money. The two main beneficiaries of the scheme received 85 gross tonnes and 126 gross tonnes respectively. At the time, tonnage was valued at £4,000 per tonne. The beneficiaries were therefore able to fish to the value of £340,000 and £500,000 respectively per annum.

I am not sure that many committee members will agree, but I believe that the Ombudsman's recommendation of redress of £245,000 is totally inadequate, when one considers that the main beneficiaries were effectively able to go to the bank and raise funding as they were guaranteed income from the scheme. That is where the fundamental unfairness lies. The Minister and former Minister have stated that the issue was never about money, but it was all about money.

Has the Ombudsman consulted the Department on the payment of compensation to the Byrne family? Have there been discussions on that? I take it the Ombudsman believes the family should be paid immediately. Am I right to assume that?

Where are we with that now? We are having this inquiry here. With all respect to the committee and my colleagues, any decision we might make, when it is forwarded to the Department and the Minister, will not have the clout to put the Minister and the Department in a position in which the redress will have to be paid.

Just for clarification on that, we agreed that we will have a hearing. We will hear all the different bodies concerned. We will then put a report before the two Houses of the Oireachtas. That is the criteria we are following here. That is what we are doing. It has been agreed that we will put a report before the two Houses of the Oireachtas.

On 4 February last, the then Minister of State categorically disagreed with the Ombudsman's assumption:

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.

That was a very direct comment on the part of the Minister of State. I thought it was critical of the Office of the Ombudsman. The Minister of State's criticism of that office should be redressed. He continued by reiterating his view that "payment in the case investigated is not warranted in the amount specified or any amount in this case". One has to say that fear seems to be leading the Department. As the then Minister of State said, "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". The Ombudsman has reiterated two or three times today that she does not consider it possible that further cases will emerge.

I wanted to highlight the view expressed by the then Minister of State, Deputy Killeen. It should be nipped in the bud. I felt from the outset that it is all about money. It was all about money for the former Minister when he looked after two of his constituents. Has Deputy Fahey been in contact with the Office of the Ombudsman since it produced its report? Deputy Fahey not only abused, attacked and threatened Members of the House regarding this scheme, regarding the Ombudsman's report and anything we may have to say regarding same. I am using privilege here.

I am using privilege here. When I was on a radio station, I did an interview regarding the lost at sea scheme. I was warned by the producer before I went on to be very careful because Deputy Fahey is mad for litigation. Actually, one of the Members here was assaulted by Deputy Fahey in the House.

It is open to any Department or public body to reject any recommendation I make. The Department believes my claim that there was maladministration does not stand up. It believes the advertising was sufficient. It believes the rules are the rules, the Byrne family did not abide by them and that is the end of it. I am not unaware that there is a political dimension to this. I suppose we took a great deal of time on this investigation, partly because we were in different territory. Normally, when we deal with a case of alleged maladministration, we are dealing with the officials — the bureaucrats and the bureaucracy. In this case, we were also dealing with the actions of the former Minister because he had — completely appropriately — involved himself in a very detailed way in this scheme. We could not disentangle what he had done from what the officials had done. The maladministration applies to the Department in total — to the Minister as well as the officials. I take at face value what people say to me. I am not aware of what goes on outside of that. I would be stupid to ignore the fact that there was a political dimension in this. I cannot say what that amounted to, but it was certainly there.

I am talking about the way the Oireachtas responded to the report. It immediately started to break down along party lines. We were aware from the start that this might happen. When I bumped into a Deputy a few weeks ago, we talked about this. I asked the Deputy whether, over the past 26 years since the day the Office of the Ombudsman started to operate, he could ever have envisaged a situation in which the Oireachtas might vote against a report being sent to a committee. He said he could not. I do not think anybody could have expected that. It was unprecedented. It led to the wrangling that subsequently happened. As I have said on a couple of occasions, it put me and my office in a position where we did not wish to be. We get our business done, on behalf of the people and the public bodies, by being impartial and independent. It was uncomfortable for all of us to enter into the territory into which we had to enter. We operate by engaging the trust of everybody — the people, the public representatives and the public bodies. When people start to dispute things along party political lines, that drags us in as well. That is not a good place to be.

In 1996, the Constitutional Review Group chaired by T.K. Whitaker recommended that the Ombudsman should become a constitutional office and should be put on a par with the Office of the Comptroller and Auditor General, the reason being, if one places financial accountability and regulation up there, one should place administrative accountability and regulation on a par with it. Then, the subsequent all-party committee which dealt with the report accepted that recommendation but it has not happened. I do not believe there is anything especially malign about this, it may be simply torpor within the system or whatever. However, this episode has brought the matter into sharper focus.

To stray a little from the point, bad or poor administration can cost money. I refer to the debacle over the long-stay charges in respect of nursing homes which the Supreme Court eventually decided were illegal. That cost the State a good deal of money and there was maladministration and a failing to match the regulations with the primary law, something this office pointed out on several occasions.

I offer my apologies for having to leave. I too welcome the Ombudsman and her staff. I wish to put several questions. Does the Ombudsman accept that she was completely mistaken in her belief, as set out in the letter of 5 June 2009, that successful applicants under the decommissioning scheme had the option of selling on their vessels? If so, does she not accept that this raises an issue about the use of this scheme to calculate a compensation payment to applicants?

Is it possible that if a payment was made to the Byrne family, which was more than one year late in applying to the scheme, it could lead to claims from other unsuccessful applicants for a relaxation of the conditions? The scheme failed to pay out to several others as well as we know from the Ombudsman's comments today. The Ombudsman mentioned another widow who was allocated a certain tonnage but because she had no capability to harvest it. The Ombudsman refused that particular lady. How can the Ombudsman justify recommending the Byrne family to be included in the scheme?

Does the Ombudsman not accept the Minister's argument that deadlines are a fundamental feature of most schemes and that to discount totally a deadline and accept the validity of an application that was more than one year late could have very wide, probably incalculable, financial and other implications for public administration in Ireland? We are all aware of such occurrences on a regular basis. Let us consider the sports lottery grant. Certain people may be up here in person with their application several hours before the deadline closes with a receipt but may be denied, as has been the case with many other schemes over the years. How could the Ombudsman possibly be aware of the implications for unsuccessful applicants in respect of all time-bound State schemes which could arise from the precedent of relaxing the six month time limit in this scheme by more than one year? Any Government that responds to the Ombudsman's recommendations would have to take account of the wider implications for taxpayer moneys. Is there any suggestion that the Ombudsman Act does not proscribe what should happen when an Ombudsman recommendation is rejected by a public body? Is the Ombudsman suggesting there is a shortcoming in the legislation? Did the Ombudsman brief members of the Opposition on this report?

When I was informed there would be a Dáil debate or statements on my report, I realised I would not be involved in it. Therefore, I contacted the Minister for Agriculture, Fisheries and Food and the leaders of the main Opposition parties and I invited them to be briefed. Every party was invited, including Government and Opposition parties. The Minister declined my invitation and the Opposition Members accepted it. The Minister of State was in the Dáil when the accusation was made, to which I took great exception, that I had acted non-independently and non-impartially. He stated that he realised he too could have had a briefing from me and that he had no issue with my briefing Opposition spokespeople. The reason I did so was to ensure certain statements made which people had misunderstood could be rightly understood. I stated that I did so across the board and I invited the Minister as well but he declined my offer.

I refer to the woman who had applied for and was given tonnage but who had to give it back because she could not get a family member to trade. The Deputy asked why I did not uphold her complaint. Was that the question?

All along I have been saying people should be treated equally. In the case of everyone who applied and received tonnage the criteria was that there was a qualifying family member. It was the same for everyone who got the tonnage. The woman in question got tonnage but did not qualify because she did not have a qualifying family member. Everyone was treated the same. When I refer to the inequity in the system I am referring to what happened before the scheme got underway. Certain people whose files were close-by, who were known to the Department or who corresponded with it were informed about the scheme, whereas people whose files were in deep storage could not possibly have known about it unless they happened to read those particular newspapers. Two classes of people were being treated differently. However, the family member rule applied across the board to everyone.

They were informed the scheme would happen. When the Minister first suggested the scheme should be introduced, the Department was horrified and questioned how many would apply for it. They were aware of a certain number of cases, I understand some 16 cases, because the files were readily to hand. However, other files existed, including those of the Byrne family, that were in difficult-to-access places within the Department. They were in deep storage. They may have been out in containers somewhere. I do not know where they were but the division which had those files stated it would be very difficult to access them; not impossible, but difficult. The Department did not pursue that line. It was only when we became involved that it found the Byrne file in the first place.

If everyone is equally informed and is aware of a scheme, then one cannot make exceptions. One must consider the complexities and the issues around the particular scheme. For example, everyone knew about the Eircom shares and everyone knows about child benefit allowances and so on, with the result that missing a deadline could be a significant issue. In this scheme two classes of people were treated differently. One received favourable treatment but not through anything they had done. Their files happened to be close at hand. Other people, such as the Byrnes, were treated unfairly. Through no fault of their own their files were in deep storage and they could not have known about it. They were out of fishing for a long time because their father and brother had died. I understand Mr. Byrne's wife was not keen for any of her children to go into fishing in the immediate aftermath of that tragedy. However, time moved on, a family member was willing to continue the family tradition of fishing and, when they heard about the scheme, they attempted to apply. They took the scheme at face value and took the view that it fitted their case. Their dad and brother died on a fishing trawler that went down in the years between 1980 and 1990 and the scheme was clearly aimed at such people.

No. Many Ombudsman offices were up and running by the time Ireland introduced its Ombudsman legislation in 1980 and when the office started off in 1984. The office was modelled on the originators of the species, the Scandinavian countries. In the Scandinavian countries the process was carried out using recommendations. If a recommendation was accepted, it was brought to the parliament which then considered it and made a recommendation to the relevant public body. I do not believe the framers of the legislation believed it was necessary to spell it out since they thought it was understood what should happen because it was modelled on Scandinavian countries.

Yes, under the Act I can talk to anybody who can assist me in an investigation. I tend not to meet the complainants, for example. This is the first time I have met or spoken to any member of the Byrne family because there has to be somebody at the very end of the process who will look dispassionately at a case, and who has not been influenced by personalities to the good, or to the ill. Even though they made many attempts to contact me, it was Mr. Morgan, Mr. Whelan and other officials who met with them. I did not want to be influenced from sympathy or anything else, and wanted to be as dispassionate as possible.

I accept that. I was not aware the family was here. We shall pass on our condolences and respects. Through the Acting Chairman, I have a question not for the Ombudsman but for Deputy Tom Sheahan. It is very unfair to accuse anybody of assault. I hope that if he has evidence he will pass it on to the Garda.

It is up to Deputy Sheahan to withdraw it. I asked him to, but he did not. It is up to him.

There are two more members offering and then there are people from outside the committee who want to speak as well.

I welcome the Ombudsman and her officials. There has been something of a deliberate attempt to distort and muddy the waters here. In her opening comments the Ombudsman makes a comparison between the public debate on the banking crisis, the regulatory question and the need for independent accountability. She says the investigation needs to be thorough, ensure accountability and impose sanctions, as well as finding in favour, where necessary. I believe an attempt has been made in that the Ombudsman has sought to address what she concluded to be a wrongdoing on the family, by way of monetary payment. This is allowed for in the Act, but the lost at sea scheme did not involve direct monetary compensation. Both the Secretary General in his response to the Ombudsman and Mr. Plunkett in his, refer to two points. One is the insurance paid to the family and the second is the decommissioning. I presume that every family that had a boat lost at sea received compensation by way of insurance, so it is unfair to use that as an argument in the first instance. It is worrying that two officers of that Department, the Secretary General and the head of legal affairs, would actually seek to use it.

By making reference to the 2008 decommissioning scheme, in hindsight had the Ombudsman said the skippered boat had a quota of X tonnes and had it been operational until such time as it was replaced it would have yielded that amount, and had she forgotten about the decommissioning scheme, she would have arrived at a compensation figure contrary to that argument. Mr. Moran says twice that the direct application of the 2008 decommissioning scheme rates is not appropriate. He goes on to say the Byrne family would not have been eligible for the decommissioning scheme. That is obvious. This is distortion of the facts by two staff officials and the senior official in the Department of Agriculture, Fisheries and Food.

We intend to have the Department officials before the committee. They need to answer to the committee because these are not people glancing in and out of this whole matter. These are the people responsible for responding to what the Ombudsman ultimately decided should be the compensation for the family involved.

I have two other quick questions. Apart from a tailored scheme that benefited the Goodman group, in the way the export credit refunds operated in the late 1980s and early 1990s, I am not aware of any other tailor-made scheme which was so minutely ring-fenced for such a small cohort of qualifying cases and there is no definition in the Ombudsman's report of what they were. There are no pros and cons. Is the Ombudsman aware of any other examples?

In her speech, which Deputy Creed referred to, she mentioned that the saga began with maladministration and has ended to date, at least, with poor governance. Perhaps she might elaborate on what she means by poor governance.

I was speaking specifically about the manner in which the Ombudsman's report was dealt with. I said in my address today that there was a contract between the Office of the Ombudsman and the Oireachtas. My appointment goes before the Oireachtas. I greatly value the role of the Oireachtas both in its support of my office and through the suggestions from individual Oireachtas Members on behalf of their constituents. In fact the value I place on this was exemplified a few years ago when I set up a specific scheme to enhance that relationship and improve communications between political representatives and my office to allow more representations to be made on behalf of constituents, because in that sense we are both in the same game. In that sense I was very disappointed when that contract as such, broke down, when I sent my report to the Oireachtas. At the very least I am very glad to be here now, but I should have expected that to have happened at the start. For the Oireachtas to vote as it did and not even allow my report, initially, to come to this point was very disappointing. This is not about me as an individual or my office. It is about everybody in the country who needs access to the Office of the Ombudsman. I have to ensure my office is always robust and that it is listened to and can be effective. If people see that it breaks down at this point, then obviously that diminishes the trust in the contract and this could potentially diminish the office's potential to help the people that have recourse to it, year in year out.

That is the point I wanted the Ombudsman to highlight. Ultimately, notwithstanding all that went on there were only two criteria under which the Byrne family application did not qualify. The first was that it was late. The Ombudsman determined that not everybody was given what any objective person would believe to be sufficient time. The second was that by changing vessels and not having fished for two years — yet having continually fished for more than two years — the family was ruled out. This was a technicality, despite which in the interests of fair play, the Ombudsman came to the conclusion she did. She recommended a method as the only way the family could be compensated. That is where we are at and it is no more complicated than that. We have had serious resistance by both the Department and others, at political and other levels, from actually having this case aired and brought to a point where it could be determined why those findings and that recommendation were rejected by the Department. That is not a question for the Ombudsman, but rather a summary of where we are and why we are here.

It is sad that we have had to come to this, after almost literally pulling teeth to get to a level where we could reduce matters down to their nuts and bolts. Was the finding of the Ombudsman reasonable and was the compensation, as determined, reasonable. That is the issue. Why has it been rejected by the Department? That is the end of it.

I welcome the Ombudsman, Ms Emily O'Reilly, and her officials. I apologise for missing part of the meeting due to a vote. Many questions have been asked and they have been answered in an honest and fair manner. My question, which might already have been dealt with, relates to the advertisement in the Marine Times, the Fishing News and the Irish Skipper. The Ombudsman obviously believes that was inadequate and that it should have been placed in more newspapers and perhaps on the radio and so forth. However, given that the fishing community is reasonably small and interconnected, I would have expected the information that the scheme was to be implemented to have passed around by word of mouth. Will the Ombudsman comment on that?

I am familiar with members of the fishing community as I live in Howth. Many people in Howth fish and there are great connections between them and Castletownbere and so forth. I am familiar with the fishing industry and acknowledge that it is quite a tight-knit community and that news travels around it. However, the point is that the Byrnes were out of the loop for whatever reason. They did not hear about it. Again, to repeat the point I made earlier, there were certain people who did not have to be in the loop either and did not have to read the newspapers in which the advertisements were placed to be told about the scheme. They were directly informed about it because the files were there. It is as simple as that.

I welcome the Ombudsman and her staff. I apologise for missing part of the meeting owing to a vote in the Seanad but at least the Ombudsman will be relieved to note the Upper House is still in existence.

All Members who contact the Ombudsman's office do so when the normal political and administrative channels have been exhausted. We do so to make representations in cases where somebody has technically erred or breached a regulation or is technically beyond the scope of a scheme, and we call on the Ombudsman to make a recommendation or to suggest redress on what I would call humanitarian grounds. Some of my colleagues have stated that the Department is correct to say that rules are rules and so forth, but we contact the Ombudsman because while we accept that rules are rules, we ask her to try to ensure there is a slight bending of a rule or regulation based on various facts or background. That is what this case is about. We accept there was a deadline and that applications were late but our view is that an exceptional case has been presented and must receive a response.

The Ombudsman said in her opening statement that only in very exceptional circumstances is an Ombudsman's recommendation not accepted and implemented. Does she consider that exceptional circumstances have applied in this case to have allowed the non-acceptance and non-implementation of her report? The Ombudsman and her predecessors have made hundreds of recommendations in reports on all types of administrative issues to various Departments. Presumably, the majority has been accepted and the Ombudsman states that it should be only in very exceptional circumstances that her recommendation would not accepted. Was this a genuinely exceptional circumstance which the Government used? Was a mistake made? If it was not an exceptional circumstance, why does she believe her recommendation was not accepted?

I do not believe the circumstances were exceptional. They were different in the manner in which I have outlined. It is rare enough that we would forensically examine the actions of a Minister as well as the administrators or public officials, who are usually the people we examine. That made it different. In many ways, however, it was not different. We were still looking at the basic principles of equity and fairness. Deputy O'Sullivan asked if we had taken legal advice. We had not. The reason is that, in many ways, this was not exceptional or different. This was, in a sense, bread and butter stuff. We were examining a scheme and it was a sequence of whether it was fair, if it was not, why not, and the reason being there was no equity, people were treated differently and so forth. That happens time and again in different schemes. In that sense it was not exceptional. Therefore, in the normal course of events these are not the circumstances which would propel a report to the Oireachtas.

There were other political issues. It is not appropriate for me to talk about them. We have already seen the heat that has been generated in this room today. It is a very uncomfortable space for me and my office to occupy because we rely on communal trust, impartiality and independence to get us across the line. I greatly value, as did my predecessors, the support of the Oireachtas. We have had it at difficult times for the office. I also greatly value, and this is not plámás, the role the office plays in bringing to me the complaints of constituents who feel they have been badly treated by a public body. One of the first things I did when I took this office was research the connections between the office and public representatives and make it easier for public representatives to bring complaints to me. That is how much I value the office, but it is a two-way street.

In the cases I illustrated at the beginning of my address to the committee relating to the REP scheme and the person who was looking for a grant to provide a stair lift for a very ill relative, in both cases those people had broken the rules and regulations. What I looked at was the equity and fairness. In both cases the relevant public body decided to accept my recommendation and pay the benefit and so forth. That happens very often. Mr. Tom Morgan deals with agriculture cases and sometimes I believe he performs miracles when he can persuade the Department not to bend the rules but to be flexible in its interpretation. Children have a great way of summing up a situation. They say: "Mum, Dad, it is not fair." They get it, and when one looks at this case, it is just not fair.

First, I assure the Chairman that I have not been assaulted. The Byrne family is from Donegal but I do not know them, have not met them or spoken to them. Second, Deputy Sheehan, Deputy McGinley and perhaps Deputy Creed and I are the longest-serving Members of the House here. As Members of the House we actively set up the Office of the Ombudsman to serve and protect the people, be they individuals or the population in general. Third, as the only person here who was in the Cabinet at the time, I assure the Chairman and the Ombudsman that members of the Cabinet are not ogres but ordinary men and women, fathers, mothers, brothers, sisters, husbands, wives, partners and so forth. They try to make decisions which are in the interests of the population in general. When I was in Cabinet this scheme was regarded as a very good one. I welcomed it. It was marvellous because it was provided to help people who had fallen into these circumstances.

Having made those general remarks, I must ask why we are here and questioning the Office of the Ombudsman. I read all 107 pages of the report. I have not attended a committee meeting for five years. The reason is that I have never felt so strongly about something. However, I felt I had to attend this meeting and make my views known. The scheme stinks. There is an odour from it. I do not like it, it is not in the interest of the body politic and it is certainly not in the interest of the families involved.

I was to ask the question posed by Deputy Doyle concerning the fact that if a fisherman's boat Patrick goes down and he replaces it with a boat called Tom, would he qualify for the scheme? There are so many questions to be asked about the scheme that, as I said on one radio programme, it actually stinks.

I am present to express my opinion on the scheme. Many members of the Fianna Fáil party have reservations about it. The only question I really have to ask today is why we are present at all. We must accept that we, as public representatives in the Oireachtas, have set up the Office of the Ombudsman in the public interest. It does not rest easy on my shoulders that we have gone through all this rigmarole and have ended up where we are today. I recommend that we accept the recommendations of the Ombudsman.

We are here at the request of Ms O'Reilly to appear before the Oireachtas. There was some politicisation of the issue at the beginning for reasons that have nothing to do with the Office of the Ombudsman but the committee agreed to invite the Ombudsman. This committee usually agrees on matters. It is very seldom that it does not and this occurred only once in the two years for which I have been a member. We are here for the good of agriculture and fisheries. That is why Ms O'Reilly is present, partly through her own request and partly because the committee agreed to invite her, on the second attempt, I must admit.

Although I am not a member of the committee, coming from Donegal South-West I have a deep interest in this unique case. I acknowledge the presence of Mrs. Byrne and members of her family in the Visitor's Gallery. I welcome the opportunity to talk to Ms O'Reilly.

There were several terrible sea tragedies in Donegal in the 1970s and 1980s, including the sinking of the Carraig Una, resulting in the loss of life, and the Evelyn Marie, also resulting in the loss of life. The third tragedy, which was probably the biggest and which remains in our minds to this day, was the loss of the Skifjord, resulting in the loss of five lives. The latter tragedy was unique because the Skifjord was the largest fishing vessel in the Irish fleet to be lost at sea.

I find it almost impossible to believe that, when the scheme was introduced, staff in the Department of the Marine would not have been aware of the loss of the Skifjord. It was commented on widely and there was considerable publicity at the time of the tragedy. It was the biggest fishing boat in our fleet ever to have been lost at sea. When it came to informing people, the family in question was overlooked.

Looking at the applications submitted under the scheme, I note there were a number of categories. Some people were written to individually by the Department. We have not yet found out whether it was the Minister or the Department that wrote letters inviting a number of people to apply. There were a number of others involved before the scheme was accepted at all. They were very much involved in setting it up and they were written to. I am sure they got official help in filling their application forms.

I do not know how the other applicants among the 68 were notified or what the procedure was but I do not believe it was beyond the powers of the Department to have one of its two arms, the sea fisheries administration division and the marine safety division, go to the other to find out the number of boats lost during the period covered by the scheme. Thus, each and every person involved could have been written to. The number would have been less than 100. Instead of adopting this approach, an advertisement was placed in a select few newspapers, including the Marine Times. I have the advertisements to hand. They were probably designed to conceal the scheme rather than let people know about it. To any reasonable person, they were just a fig leaf. A family such as the Byrne family, which due to the tragedy was not involved in the fishing industry at the time in question, could have been buying the papers and would have missed the fact that the scheme was in existence.

The Byrne family continued in the fishing industry after the loss of the Skifjord. A few members of the family were involved in the industry for a number of years thereafter. The family’s participation in the fishing industry dates back to pre-Famine times and covers six generations. It is, therefore, not new to the industry. There were two families in Donegal synonymous with the fishing industry, the Byrnes and the McCalligs. It is a tragedy that the loss of a father, son or brother brought the long Byrne tradition to an end.

When the scheme was introduced, it was certainly unjust that a family that had served the industry for such a long time and had built it up in every part of the county should not have been included. Would the correct approach not have been to send a notice to all the families concerned informing them of the existence of the scheme and their entitlement to apply? The information was in the Department.

When fishermen were given tonnage they were not given money, but tonnage is a valuable commodity because one cannot fish without it. If the Byrne family decided to go fishing and purchase a boat, that was only part of the expense involved. To purchase tonnage cost €4,000, €5,000, €6,000 or €7,000. No family who went through what the Byrnes went through could afford to go back fishing. The Byrnes were part of a long tradition dating back 150 years and they experienced a tragedy.

I am reflecting what has been said in my part of the country in Donegal. The Ombudsman's report has generated widespread interest and much sympathy. There is no closure for the Byrne family as yet and the case is open. The family has lost two members and other members have been involved in fishing since then. If the recommendations of the Ombudsman were accepted, it would not bring complete closure for the family regarding the tragedy but it would go as far as possible towards doing so.

I echo what my colleague from another political party stated, namely, that this committee could do great justice for a family that has suffered so much and which has contributed so much to the fishing industry by recommending that the Ombudsman's recommendations be adhered to.

We appreciate what Ms O'Reilly' office has done. This is the second time her recommendations have been rejected. In one instance there was a satisfactory resolution. I do not understand what is contained in the report that is preventing us from accepting the recommendation in the case in question.

That is my point. The Department knew where to look for information on other potential applicants to the scheme but chose not to. Therefore, people were treated inequitably. I did not know the history of the Byrne family's involvement in the fishing industry. It was most interesting and I thank Deputy McGinley for outlining it.

I welcome Ms O'Reilly and her team and commend them on this detailed comprehensive report. I also commend the Byrne family. It is seldom I agree with Deputy Jim McDaid but after reading this report, I do. The lost at sea scheme stinks to high heaven. Two issues are present: one is political and the other concerns fairness and justice for the Byrne family, and unfortunately they are intertwined. At this point political parties are trying to protect a former Minister from accusations of what I believe to be seriously questionable activity at the time when that Minister designed and developed the lost at sea scheme. I shall go into that presently.

Much is due to the Byrne family. Many people come up against obstacles like this, see something that is not fair or right, know it is unjust and perhaps have a stamp at trying to find justice, but they give up after a while. I am glad to see the Byrne family have continued their pursuit through the Office of the Ombudsman and I hope we are now seeing a chink of light.

Deputy McDaid asked why we were here. The Cathaoirleach is right. We are here to listen to the Ombudsman's views and hear her answers to our questions, but we are also here because the report has not been accepted by the Government. It is a travesty that the report has not been accepted and that compensation has not yet been paid, nine years down the line.

I have a number of questions regarding the report and in respect of information that came to light since it was drafted. Ms O'Reilly mentioned this in her opening comments. In his dealings with the Ombudsman's office, the Minister continually states the scheme has been applied equitably since it was launched. The Ombudsman agrees with those comments. She mentioned that another application was received after the Byrnes made their application and the Department allowed it to be assessed. One of the two reasons for the Byrnes' application being refused was the delay — we heard from other Deputies that it was more than a year late. One application, concerning the MFV Claire Marie, was received a number of months later than that of the Byrnes, on 26 February 2003. In the letter available under freedom of information legislation it is stated: “We have decided exceptionally to afford you the opportunity to make retrospective application under the Lost at Sea Scheme, which, as you know, closed at the end of 2001.” This letter was dated 26 March, more than a year after the scheme closed and later than the date on which the Byrnes made their application. Does the Ombudsman still believe the contention in her original report stands, namely, the scheme was applied equitably since it was launched, given that the Department made an exception for the MFV Claire Marie but did not make the same exception for the Byrne family?

As I stated, I am aware of the two issues present, that of justice in the way the scheme was operated and also that the Minister was involved so directly. I believe he drafted the scheme in cahoots with a number of individuals who would benefit from it. There are serious questions now in regard to the former Minister's role in that action and this matter has been referred to the Standards in Public Office Commission, SIPO. Has that office been in contact with the Ombudsman's office in that regard?

I welcome that this committee, of which I am not a member, is dealing with this issue but the Government has refused to adhere to Ms O'Reilly's recommendations. If it were to be the case — I hope it will not — that it continues to refuse to agree to implement the recommendation the Ombudsman's office made in this regard, what effect would this have on the office in the long term? I understand it is the right of Government to decide not to abide by the recommendation. However, Ms O'Reilly spoke about the support of the Oireachtas and of colleagues and about the position of impartiality of the office. If there continues to be no action on this by the Government or the Department, will it have an effect on the office and on those people who might seek redress through the office in the future? Much energy and expertise have gone into the report, yet it may not be acted upon.

I have a final question which concerns the scariest piece of documentation. Ms O'Reilly's report referred to the Minister's comments or direction to his officials on ring-fencing the "six to eight genuine cases". One reads that and then reads the Minister's arguments as to why he used the term "ring-fence" and from where the "six to eight" figure came. It becomes somewhat confusing. When one has the document in front of one, however, one can see the handwritten documentation from the Minister and the official, stating that the Department should not go ahead with the scheme. The two cases we know to be the Fahertys and the Mullens are referred to and there are six others. The Minister refers to the "six to eight" which, in my view, must be the Fahertys, the Mullens and six others and gives a direction to the officials, stating, "I want to license those boats". There are very serious questions for the former Minister in this regard. That is the unfortunate issue in all of this. If it were merely the officials who had drafted a scheme that was shoddy and unfairly administered, I believe we would have had justice for the Byrne family by this time, but, unfortunately, the former Minister had his hands stuck right in the middle of this. It is clear that he directed a scheme that was solely designed to benefit a number of individuals and, unfortunately, a protectionist mode has kicked in within the Oireachtas to protect the former Minister. The Byrne family is in the middle of that.

I hope we will see redress and that this committee can bring an end to this long and sorry saga. I would like to hear the Ombudsman's views, especially on the questions I posed.

In fairness, as a committee we agreed to ask Deputy Fahey to attend. There will be an opportunity for everybody to come in again, in public session, to ask questions of Deputy Fahey when he attends the meeting. We are not trying to hide anything. We will have the Deputy in and will also have the officials and the current Minister in attendance.

Senator Doherty had three questions for Ms O'Reilly.

In respect of the person who applied late, the Department took the view that because it had had telephone contact and had been given incorrect information before the scheme expired, it would let that person in. That is something I learned relatively recently and that is what I know.

The Senator asked what will happen if this report is rejected. I hope it is not rejected. I have made my case in respect of the basic unfairness and inequity of the scheme and I hope the report will be accepted and that such a recommendation to the Department will be made by this committee. In a sense, the battle my office has put in has had a positive effect in that I believe it has focused attention on the role of the office, the job we do and its importance. There may be a war or battle analogy to be made in that regard. However, the reason I had to raise my voice — as I said, I did not feel particularly comfortable doing so — was because I needed to protect not my office, but the people who come to it. There are high stakes. One runs the risk of being slapped down or being told one is going too far, or whatever. Without sounding pious, I believe I am not here for myself and my officials are not here for themselves. We have careers and ambitions and all that, of course, but fundamentally we have a job to do that is specified in the Ombudsman Act. The moment we start to protect ourselves and look inwards and forget the only reason we are there is the day we will start to go bad and stop doing our job. I am very pleased there is now this level of engagement around the matter and around the engagement of the Office of the Ombudsman generally.

I refer to the relationship between the Minister and the officials. It is no secret — officials and the Minister are very candid about this — that there was a good deal of dissent between them. The officials were trying to protect the regulatory system as they saw it and they did not want anything that would interfere with that, while the Minister was looking to people who were coming to him in good faith maintaining they had been hard done by. This clash caused the inequity, the unfairness and the flawed scheme. As I suggested to Senator Paul Bradford earlier, it was not exceptional. In some cases one could quite clearly see maladministration and where people had been treated unfairly. However, it was exceptional in the degree to which we had to look at the actions of the Minister as well as officials because the Minister wanted the scheme and was very much involved in drafting it and so on. We could not disentangle his actions from those of the officials and this is why I have made my recommendations and findings. I have stated explicitly that they apply to the Minister and the officials but, in any event, he is in overall charge of the Department.

I thank the Acting Chairman. I am not a member of the committee but I am pleased to be afforded the opportunity to contribute. I became involved in this issue during the first debates as one of my party's spokespersons in the Seanad. I welcome the members of the Byrne family here to the Visitors' Gallery. Like my colleague Deputy McGinley and all the other speakers, one's human reaction is very strong. We need to try to bring closure for the family on this very difficult issue and, clearly, that is proving to be problematic.

I welcome the Ombudsman and her team. As a councillor and Senator for many years I have had recourse to the Ombudsman's office. I have found it to be remarkably useful and I have obtained many good results from it. That said, I am not altogether certain we are in that situation today. I am unsure whether the experience of the past eight weeks or so has reflected very well on our activities, those of the Office of the Ombudsman or the body politic in general. I will limit my remarks but regardless of whoever said what, this or that, there are lessons to be learned. One must have a robust interface every now and again as the Ombudsman stated. We have touched off each other on this issue and lessons must be learned. I am prepared to learn them and I trust others are as well.

The Acting Chairman has been very fair in his reference to allowing Deputy Frank Fahey an opportunity to address the committee. This is very important because several overt remarks have been made here about him, to which I object very strongly and against which I am prepared to argue at the appropriate time. Less satisfactory has been the amount of innuendo about Deputy Fahey, which is much harder to answer and much less honourable. One of my colleagues stated that he has reservations about the scheme. I have no reservations and I have studied the scheme from top to bottom. I have also studied the Ombudsman's report from top to bottom and I may hold some reservations about that which I will address. It is very important that no individual should be subjected to an inquiry by innuendo. I look forward to Deputy Fahey's opportunity to make his case here.

Many people believe the scheme was innovative and courageous. I hope the day will never come when as politicians we discourage our Ministers from standing up to officials when they believe an issue is important enough. Had Ministers not been sufficiently proactive to take on their officials on certain issues we would not have free education now, which was introduced under Donogh O'Malley.

I will put some specific questions and I will be brief. Is the Ombudsman satisfied that her officials fully understood the intricacies of the Lost at Sea scheme and that they consulted fully before taking a position on the Byrne case? Did the Ombudsman personally authorise all correspondence that issued from her office in respect of the Byrne case? Will the Ombudsman confirm whether a letter issued from her office in May 2005 in which it is stated that the scheme was flawed and deficient? I am asking for this to be confirmed or denied. I have not seen sight of this letter but I understand it exists. Was the 2005 statement that the scheme was flawed and deficient a considered finding of the office at that early stage or did it reflect the opinion of one individual? Was it an ongoing process at the time? Why was contact not made with Deputy Frank Fahey, the former Minister, until July 2009 in this case when he is obviously central to it? I have been unable to be fully tuned in today because I was voting and I had to attend another committee but I believe I heard the Ombudsman state that the scheme was maladministered and flawed. I will stand corrected if she did not say this but it is not in the final report. Is my understanding correct?

I did not answer anyone else's questions. Was there an adjustment to and a final withdrawal of a statement to that effect from the report following a discussion with Department officials?

I wish to put a final, general question. Clearly, we wish to see closure for the Byrne family but this creates problems in two respects. If there is closure for the Byrne family and the Ombudsman is prepared post hoc to allow someone to avail of the conditions of the scheme, where does one go with the other 68 involved? According to the scheme, the family were clearly late applicants. Has the Ombudsman not contemplated what some judge in England referred to as the appalling vista of creating a precedent for all inter-departmental state offices here? Could it open up something worse than the Army deafness case? Would we need to examine the cases of people who should have been allowed late applications for social welfare, education, health and so on?

I refer to the Senator's first comment to the effect that Ministers should be free to challenge their officials and that, at times, very good things have come out of such challenges such as the late Donogh O'Malley's free secondary school education scheme and so on. I have no issue with this and I have never stated that I have. I have no difficulty with Ministers engaging robustly with officials, disagreeing with them or going against their advice. This takes place all the time, sometimes to the good and sometimes to the bad and it is the way of things. However, the difficulty I have is that I found maladministration in respect of the lack of fairness in the scheme. Some people benefited from it but certain people were enabled to benefit from it in different ways. As I have stated several times during the course of the meeting, some people were directly corresponded with and informed of the scheme and others were not because their files were in deep storage. I have no issue with the scheme and I have no difficulty with the Minister taking issue with his officials but when a scheme is rolled-out, it should be done on a fair basis and everyone should be made aware of it on the same basis. That was not done in this instance. Some 16 people were written to while others such as the Byrne family were not communicated with because their files were in deep storage. This is why I have a difficulty with the scheme. I have no difficulty with the Minister's right to introduce it as such.

I refer to the matter of late applications, how any finding might apply to other schemes and the possibility of an appalling vista. We deal with public bodies all the time and people apply for benefits from those bodies. We have been dealing with this for the past 26 years. We examine each individual case to establish where it is right and proper to uphold a closing date and to determine other areas where there should be flexibility. The appalling vista scenario has not emerged at any point in the past 26 years regarding this type of scheme. As I said in the report, no evidence has been shown and we have found no evidence that there would be a flood of cases in the wake of this scheme. Given the publicity the lost at sea scheme received in recent years and since its publication, if there was a cascade of cases we would have had evidence of that, but we have no evidence of it. In addition, eight or nine people came to us to claim they had been wrongly excluded from the scheme. For various reasons we did not uphold their complaints and that was the end of that, apart from one case where legal action might be taken.

I was asked if I stand over and sign every letter which is sent. As my office deals with some 3,000 complaints every year I do not do that. Under the terms of the Ombudsman Act I can delegate authority to my officials to do certain things on my behalf. On the letter referred to, we operate through engagement, mainly on an informal basis, with a Department or public body.

A complainant comes to us, we examine the case, we take a preliminary view and put it to the public body or Department who then reverts to my office. It might say we are wrong about certain things or it has certain thoughts about the case. There is further engagement and so on. It is the same when I have my information commissioner hat on. I might take a preliminary view of whether records should be released. I communicate this to whoever has made the application or to the public body and it returns to me. The particular letter was sent at a particular point in time.

Deputy Sherlock asked if there is a difference between "maladministration" and "contrary to fair and unsound administration". I said there is not.

Having listened to all of the contributions, I have one question. I concur with the point made by Senator O'Sullivan and with the Ombudsman's reply. One of the critical issues is the right of a Minister, at any given time, to overrule or act contrary to advice given, and is something upon which we should not trespass. As the Ombudsman said, sometimes good comes from that and perhaps public policy is not best served, but it is not something upon which we should trespass in respect of this issue.

It appears to me that the principle upon which the former Minister decided to introduce the scheme was his preserve, which is as it should be. With hindsight, the mistake made was the constant reference, as it stated in the Ombudsman's report and by the former Minister, to ring-fencing or limiting the application of the scheme to "a handful of known cases". That is where the scheme, which was well-intentioned, began to go off the rails. Page four of the presentation states:

For his part the former Minister said he felt there were genuine cases which deserved to be considered and these included two potential applicants that he met with on 5 February 2001, four months before the lost at sea scheme was publicly launched. At that meeting he discussed the likely criteria of the proposed scheme.

The Minister could have said to his officials that there was a legitimate grievance on the part of those who lost boats at sea and could have asked them to devise a scheme which will deliver justice. It was the subsequent hands-on approach by the Minister and the endeavour to ring-fence the scheme, as if justice could be ring-fenced, that was the mistake in the scheme, if, with hindsight, we are to draw any conclusions.

As did the fact that the close consultation which took place with the two cases in the former Minister's constituency — to whom the report refers — resulted in them getting 75% of the tonnage allocated. I concur with Deputy McDaid in that respect. While the principle was good, unfortunately the close association and hands-on approach by the former Minister after he decided on the scheme in principle is what has given us the debacle we have. Had he asked his officials to devise a scheme, to go into the marine investigation unit and trawl through every possible file we would not be discussing this matter. If they were to correspond with one family they should have corresponded with all families, and have an even approach across the table. It was the former Minister's excessive zeal, in terms of looking after the interests of two constituents and the ring-fencing of scheme which created difficulties. There was such hostility from officials that he may have felt, for one reason or another——

Sight was lost of one of the fundamental principles of good administration, which is equity. Everybody should be treated equally. Most of the focus has been on the two individuals but 16 people in all were written to because they did not do the necessary research to find out who else might fall into this category. I have no issue with the scheme. There was a perceived injustice which Minister was trying to alleviate, but it had to be alleviated for everybody on a fair basis, rather than in the manner in which it was done.

Could I ask one other question which is not specifically on the Byrne case? It concerns the office. Ms O'Reilly commented, in her address to the IPA and today, about the model of the Office of the Ombudsman which we have, namely, the Scandinavian model which depends on the moral authority of the office. To date that has worked very effectively. Does Ms O'Reilly think it is premature at this stage to draw conclusions about the legislation which underpins her office, as it is silent in respect of processes to be followed once a report has been laid before the Houses of the Oireachtas?

It has worked for 26 years without a hitch. People have understood it but it has become somewhat stuck now. The people who framed that legislation did not feel they had to spell out what needed to happen as it was understood in regard to the model. However, time moves on, people forget and generational amnesia can set in. There may be a case for putting something into the amendment to spell it out more. In a sense the Ombudsman can work best by being fluid and having a general understanding of what should happen, rather than rigid diktat. It is the nature of the work we do. There may be a case for making it more explicit but my office and my predecessors have always held the view that what was in it was sufficient. Clearly, it may not have been in this case but at least we have arrived here today, which means the system has worked, albeit by the scenic route, as I said.

I have a concluding remark. The Ombudsman, through this report, has endeavoured to seek natural justice. Deputy McGinley has summed up the arguments in terms of the human factors. Nobody in this committee would disagree with him that the rules of equity and fairness, as this scheme was devised, did not apply to the Byrne family. I hope that natural justice is restored to this scheme and the Byrne family. I also hope that the Oireachtas, in examining the powers of the Ombudsman, would proceed with caution. If it is the case that there should be a reversal of the decision and a recommendation is made which seeks to compensate the Byrne family, which I hope will be the case, then we want to ensure that no changes are made in haste which will have us at this juncture again, except in a different set of circumstances. I call for caution. My experience of the Ombudsman's office is that it works well because the assumption under which we operate when we take a case to the Ombudsman is that fairness will prevail and the decision is recognised as a completely independent decision that all parties can accept. If there is a change of heart in this case, we should proceed with caution thereafter.

The manner in which evidence was given today and the questions that were answered by the Ombudsman have transparently illustrated the lack of fairness in the scheme and its implementation. In the interests of justice and fairness, the recommendation on monetary compensation to the family is the only viable way to go to right this injustice. No matter how we look at this, the criteria that were used against the Byrne family, about the application being late and that the boat that sank with such a tragic loss of life was only at sea for a short time, did not take into account the involvement of the skipper and the owner of the boat in the fishing sector since 1975. That was overlooked and it is a huge injustice. As Deputy McDaid said, it stinks. It stinks in the body politic that something like this could reach this stage without being dealt with. The Ombudsman's report should have dealt with it, and the Department, Government and Ministers involved should admit their mistake.

I commend the Ombudsman for her report, which is fair and balanced.

Our report will be put before the Houses of the Oireachtas so it will not stop in the Department. It will be debated and our recommendations will be put forward.

This was a fair and open discussion. I thank the Ombudsman and her officials for the presentation and for answering our questions. By her frankness, she has enhanced the office and I am delighted that ours was the first committee she appeared before. Perhaps an arrangement could be put in place whereby a presentation is made to the Oireachtas annually. We will discuss that when the Chairman returns and make a recommendation to the Committee on Procedures and Privileges.

We intend to invite the Minister and the appropriate officials from the Department, and Deputy Fahey, as former Minister, to further meetings on this issue and to report to both Houses of the Oireachtas in due course.