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.
