JOINT COMMITTEE ON AGRICULTURE, FISHERIES AND FOOD debate -
Thursday, 6 May 2010

Lost at Sea Scheme: Discussion with Deputy Frank Fahey

Chairman

Deputy Frank Fahey is in attendance to make a presentation on the special report by the Ombudsman on the lost at sea scheme. Before we commence proceedings, I point out the committee's role in this matter is to allow the Ombudsman and the Department to set out their positions. The committee met the Ombudsman on 21 April and plans to meet the Secretary General, officials and the current Minister of State at the Department of Agriculture, Fisheries and Food with special responsibility for fisheries to discuss the Department's position. The meetings are scheduled for 12 May and 19 May. Today's meeting is with Deputy Frank Fahey in his capacity as a former Minister for the Marine and Natural Resources to outline his position. On conclusion of these meetings, the committee will deliberate and report to both Houses of the Oireachtas. The committee is not entering into a detailed investigation. The Ombudsman has conducted a lengthy investigation and this is outlined in her special report.

The format of today's meeting will be same as when the Ombudsman attended. I will call Deputy Fahey to make his opening statement and I will then call on spokespersons and Government members. Each will be allowed a question and answer session for 12 minutes. I will then call other members who indicate to contribute. Each will be allowed ten minutes and members of the committee will be called first.

Members are reminded of the long-standing parliamentary practice to the effect that they 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.

Deputy Frank Fahey

I thank the committee for the opportunity to appear. Like every other Member, I have the utmost respect for the Office of the Ombudsman and for the present incumbent, Ms Emily O'Reilly. I have always found the office to be fair, particularly in its dealings with me in regard to this investigation. There are some aspects I will deal with later. It is a hugely important and significant office in our system. When I was Minister of State with responsibility for children, I brought the first memorandum to Cabinet for the appointment of an Ombudsman for Children. Anything I say does not disregard the office.

The accident that befell the Byrne family was most tragic and nothing I say can take that away no more than I can take away many other tragic accidents experienced by fishermen around the country.

I was appointed Minister for the Marine and Natural Resources in January 2000, halfway through the then Government's term of office. I chose to run the Department in an open way and to expand and pursue the developmental role of the Department marine sector. My objective was to deliver an action plan to exploit marine potential in this island nation.

I would like to address the false claims made in regard to this scheme. No financial compensation was ever paid out under the scheme and no financial compensation was ever intended to be paid to any fishermen in my constituency or in any other constituency. Those who seek to say otherwise seek to defame me or make false statements purely for political purposes. The media reporting on this matter and statements by members of the Opposition have been inaccurate throughout. This is borne out in the Ombudsman's Report which states, "I fully accept that successful applicants were granted replacement tonnage under the Scheme, rather than compensation". I will deal with this issue in detail later.

I wish to deal with the sequence of events in this matter. When I visited all the ports after I was appointed Minister for the Marine and Natural Resources, one common complaint I received was that fishermen who did not have a fishing boat on the national register when capacity, that is, the gross tonnage and engine power, became an asset in January 1990 because their boats had been lost at sea, were obliged to purchase the capacity they had lost to acquire a new boat and return to fishing. That anomaly was put right in the 1990 regulations. EU regulations were not breached by the issue of replacement tonnage in 2001, as has been falsely claimed in the Dáil, in this committee and by the Ombudsman. A change in regulations did take place with the introduction of the Fisheries (Amendment) Act 2003, after I had left the Department. Following the introduction of the new register in 1990 the new licensing policy stated that off-registered capacity could be used to introduce a fishing boat on to the register within two years of deregulation, or in any event after two years, otherwise the capacity would be lost to its owner.

A major omission in the new fishing boat licensing regulations was that no provision was made for retrospective off-register boats, in other words, boats that were not capable of being registered because they were not in the harbour on 1 January 1990. I decided that was unfair and iniquitous, and after prolonged discussion and negotiation with Department officials, I decided to make a policy decision to introduce a limited scheme to grant replacement capacity, that is, gross tonnage and engine power, to fishermen who were still involved in the fishing industry. That is the crucial point that has been lost in this debate since it started six years ago. The scheme was for fishermen who were involved in the fishing industry when the scheme was introduced in 2001. A critical point in my policy decision, which was expressly written into the terms of reference of the scheme, was that it was to sustain and maintain a family tradition in the fishing industry. That was to facilitate individuals and families who were still involved in fishing when the scheme was introduced in 2001. That is the critical point that was misinterpreted by officials in the Ombudsman's office during their investigation and which the Ombudsman refused to accept when it was vehemently pointed out by officials in the Department of Agriculture, Fisheries and Food and me following the issue of her draft report.

A letter dated 3 July 2008 to the Ombudsman from Mr. Tom Moran, Secretary General of the Department of Agriculture, Fisheries and Food states:

The sole objective and purpose of the scheme was to enable qualifying applicants, who were otherwise unable to do so for financial or related reasons, to provide replacement capacity for the purposes of introducing a replacement fishing vessel in respect of fishing boats lost at sea between 1980 and the establishment of the new fishing boat register in 1990, to continue a family tradition of sea-fishing in situations where immediate family members were engaged in the sea-fishing industry. The objective and purpose of the scheme was clear, transparent and unambiguous.

That is the reason the scheme was advertised only in the marine press and the fishing organisations were consulted and informed of the scheme. The Byrne family had not been involved in fishing since the tragic accident in the early 1980s, so they would not have qualified for the scheme even if their application had been made in time. Nothing which I say should be taken as in any way detracting from the tragic circumstances giving rise to this complaint and the terrible loss suffered by the Byrne family, which I sincerely acknowledge.

Mr. Jim Higgins, MEP, contacted the Ombudsman's office on behalf of the Byrne family. A complaint was made to the office in November 2004 but I was not contacted by the Office of the Ombudsman about this complaint until July 2007, six years after the scheme had been designed and implemented, four and a half years after the Byrne family application had been refused, and more than two and a half years after the Ombudsman had received the complaint.

On 11 May 2005, an official in the Ombudsman's office wrote to the Byrne family expressing the view that the scheme may have been deficient and flawed. The complaint was then only at the stage of preliminary investigation and no findings, even of a preliminary nature, had been made by the Ombudsman. It was wholly inappropriate and premature for an official to so describe the scheme and to communicate that to the complainant at that time, without the completion of a full examination by the Ombudsman and the hearing of submissions from all parties, including me. This represented a prejudgment by an official in the Ombudsman's office of the complaint in the absence of a full and fair examination and investigation.

It is clear from the critical letter from the Ombudsman's office dated 10 February 2005, that there was a fundamental misunderstanding on the part of the official involved with regard to the scheme's application to people still engaged in the fishing industry. I was not informed about the investigation and was not asked to explain my policy decision, which was critical to the scheme, until July 2007, two years and eight months after the Ombudsman's investigation began. At that stage, officials in the Office of the Ombudsman had made assumptions based on a misunderstanding of this policy decision. I repeat, the lost at sea scheme was introduced in 2001 to allow people in 2001 to maintain or sustain a family tradition in the fishing industry. Officials in the Office of the Ombudsman were not aware until they interviewed me in July 2007 that it was I who inserted the condition that capacity could not be sold or otherwise disposed of and that no financial gain should accrue to any applicant who was successful in the scheme.

I welcomed the Ombudsman's report in that it set the record straight on a number of false and serious allegations made against me. On page three of the report it is stated:

The Scheme did not provide financial support to successful applicants for the acquisition of a replacement fishing vessel itself and the replacement capacity, i.e., the gross tonnage and engine power granted under the Scheme had to be used by the replacement fishing vessel. It could not be sold or otherwise traded or realised as a financial asset in the tonnage market.

The Ombudsman's report goes on to state on page 9 in reference to a letter to the Ombudsman dated 20 July 2009 from the head of the legal services division of the Department of Agriculture, Fisheries and Food.

The letter of 30 July 2009 also suggested that notwithstanding the tragic circumstances of the case, it did not provide a basis to transform a mechanism dealing with tonnage for fishing vessels into a system of compensation. I fully accept that successful applicants were granted replacement tonnage under the scheme rather than compensation.

To add insult to injury, on the day after the Ombudsman's report was published with this finding, Mr. Jim Higgins, MEP, issued a press release that stated:

The scheme cost €2.8 million, yet only six applicants were deemed eligible and two of Frank Fahey's constituents got 75% or €2.1 million of the total funds. The other four successful applicants were left with the crumbs. If ever a Government-sponsored scheme stank of political cronyism then this scheme surely is a fine example.

That false allegation was repeated and embellished in the Dáil by Deputy Martin Ferris. As the Ombudsman stated, no compensation was given out under the scheme nor was a predetermined amount of fishing boat capacity awarded. I do not, and cannot, accept the findings of the Ombudsman to the effect that the way the scheme was designed was contrary to fair and sound administration. I agree with the decision of the Department of Agriculture, Fisheries and Food that payment of compensation is not warranted in this case. The scheme was expressly not introduced as a means for a person who had tragically lost a family member at sea, to obtain payment from the State.

I wish to clarify one other matter which the Ombudsman referred to when she was before the committee. A special report laid before the Oireachtas by the former Ombudsman, Mr. Kevin Murphy, did not lead to the outcome sought by the Ombudsman.

Chairman

I thank the Deputy. I now call Deputy Creed and he has 12 minutes.

Deputy Michael Creed

I welcome Deputy Fahey. It has been a rather torturous and scenic route to get here, but nonetheless it is to be welcomed that we have arrived. Perhaps I might deal with the final point made by Deputy Fahey as regards former Ombudsman Mr. Kevin Murphy's report on the issue to do with the Revenue Commissioners. I would say to Deputy Fahey that this report was dealt with within an Oireachtas committee and made a recommendation which was acceptable. That is the issue and it is what this committee has always sought to do.

There is a saying that the devil can cite scripture for his own purpose and Deputy Fahey has made great play of facts surrounding the financial compensation. However, it is worth putting on the record again the unsigned undated internal Department memo, referred to in Appendix 3 of the Lost at Sea report, on page 89, which states:

[A]cceptance of these boats as replacement capacity amounts in effect to the writing of a gratuitous cheque for £500,000 (assuming 200 tonnes @ £2,500 per tonne) to be allocated to a number of individuals and with a negative return to the State and the economy.

That forms part of the substantial volume of documentation that was available to Deputy Fahey in his time as Minister, when deliberating on this. Deputy Fahey claims, in some respects, to be vindicated from the Ombudsman's report and a number of her critical findings. These are as follows:

The Department of Agriculture, Fisheries and Food has failed to meet the standards required by fair or sound administration in their dealings with the family covered by this report.

It goes on to state:

The design of the scheme and the manner in which it was advertised were contrary to fair and sound administration.

It further states:

What is clear is that the actions of both the Minister and his officials resulted in a scheme which was too focused on known cases, and which wrongly excluded some deserving cases ... Its overall design was faulty ...There is clear evidence of poor record keeping practices leading up to the sign-off of the scheme, including a paucity of records, lack of written records of meetings and deliberations, a lack of written analysis of the various drafts of the Lost at Sea Scheme and limited records of the interactions and directions between the Minister and his officials.

The Ombudsman, Ms Emily O'Reilly, in her address to this committee said in page 13 of her submission:

In my view, it should only be in very exceptional circumstances that an Ombudsman's recommendation is not accepted and implemented. As my colleague, Ann Abraham, the UK Parliamentary Ombudsman said, last year, speaking to a House of Commons select committee, "Unless the Ombudsman has gone off her trolley, let us leave the findings undisturbed".

It is evident from Deputy Fahey's presentation this morning that he is clearly of the opinion that Emily O'Reilly is off her trolley. There is no middle ground, and that is clearly the implication. I want to get to the substance of this because time is critical.

Deputy Frank Fahey

Let me respond to those points.

Deputy Michael Creed

I shall but I want to make specific points. Those were more comments than points. These are the questions I want to ask.

Mr. Patrick Mullen and Mr. Tony Flaherty, two constituents of Deputy Fahey, were the substantial beneficiaries of the tonnage that was allocated, which had a commercial value. They received 75% of it. These men were not unknown in the Department. They had met with officials, hand-held by Deputy Fahey's constituency colleague, Deputy Ó Cuív, in March 1999. There is a memo available from Mr. Dermot Donegan, dated July 2000 on that in the documentation as well.

Apart from the fact that they are constituents, what is Deputy Fahey's relationship with those two gentlemen? When Deputy Fahey was Minister and contemplating this scheme, there was a case before the High Court, Kreis and Anvil. If the Minister's overwhelming concern was about justice, surely the first thing he would have done would be to put a hold or a stay on that case. While all this was going on, that case was proceeding through the High Court. Those are my opening questions.

Deputy Frank Fahey

First, in regard to what was described as "the torturous and scenic route", when the Ombudsman's report was issued, on the following day it was raised by the Opposition leaders in the Dáil. I shall quote from what the Taoiseach responded to Deputy Enda Kenny:

As for the other matter raised by Deputy Kenny, this is a matter for the Houses to decide on. It will be referred to the Joint Oireachtas Committee on Agriculture, Fisheries and Food for discussion as this is the obvious thing to do.

Deputy Creed insisted that rather than refer it to the committee, it should first be referred to the Dáil.

Deputy Michael Creed

That is not true.

Deputy Frank Fahey

When the Dáil debate was taking place, he described it as a charade. The Government clearly wanted this issue to be brought before the committee in the first instance, which is what I also wanted to see happen.

Deputy Michael Creed

That is not true.

Chairman

The Deputy will get his chance to come back in.

Deputy Frank Fahey

With regard to appendix 3 on page 89 of the report, the writing of a gratuitous cheque, when I received that memo which came from Mr. Tom Carroll, Secretary General of the Department, I was immediately alerted to the fact that I did not want this scheme to give any kind of financial benefit in any way, other than the ability to buy a boat for fishing purposes. Consequently, I examined the terms of reference which were given to me by the Department officials. The terms of reference stated that the tonnage could be sold. Immediately, in response to that I amended the terms of reference and I have circulated the actual memo, which by the way, the Ombudsman's officials were not aware of until the day they interviewed me in 2007. I amended the conditions on that day.

If one looks at the memo that I have circulated, dated 31 May, it states:

Letter from the Minister to representative organisations, informing them of the Scheme in the pocket file.

The revised terms of the Scheme, as amended by the Minister. Please note new provision that owners that received any financial benefit from the loss are excluded, and the capacity cannot be sold or otherwise disposed of.

In fact, when I got that memo I immediately acted to ensure that a gratuitous cheque could not be written out or that there could not be any financial gain. The tonnage was for the people who were successful in the scheme, they could not——

Deputy Michael Creed

The point, with respect——

Deputy Frank Fahey

I did not interrupt the Deputy.

Deputy Michael Creed

The clock is running down and I have only got 12 minutes.

Deputy Frank Fahey

I wanted to ensure that there was no financial benefit and I can assure the Deputy that a number of other people, including my constituents, who were lobbying for the scheme at the time, were very disappointed when I removed the condition that the tonnage could be sold. For one thing, it made it very difficult to bank the purchase of new boats, but I wanted to ensure that no financial benefit could accrue to anybody under this scheme. In the media, I have been lambasted the other way. It is as though I put in the condition that would amount to the writing of a gratuitous cheque.

With regard to the design of the scheme and the question of its being contrary to sound and fair administration, as I said already, I am satisfied that during the early months of the investigation by the Ombudsman's office, the officials involved thought they were investigating a scheme which gave compensation for every fishing boat lost and the lives that were lost at sea during the period from 1980 to 1990. That is not what the scheme was about. It was not intended to apply to every boat that was lost at sea. Therefore, the finding — and that is why I use the word "finding" — was not correct. A mistake was made by the officials in 2005 when they started the investigation of this scheme. I will go into that later if members so wish.

I am not at all suggesting that anybody is off his or her trolley. I am respectfully saying that a mistake was made at an early stage in the investigation and that because I was not invited to make any comment on the policy issue for another two years, there was no way the officials could fully understand the situation. Another point is that the officials who were dealing with the scheme when it was introduced four or five years previously were all gone from the Department — or, certainly, the letters that came back from the Department were from other people of whom I was not aware.

On the question of Paddy Mullen and Tony Faherty, I will explain exactly what happened with regard to the scheme. The major pressure for this scheme came from Killybegs. I met several deputations and had a file on the scheme, which was never asked for by the Ombudsman and which I unfortunately destroyed afterwards. That file contained details of meetings I had with constituents of Deputy Creed and others all over the country.

Deputy Michael Creed

My constituency does not have any coastline.

Deputy Frank Fahey

I refer to people from west Cork. That file detailed the meetings I had. The major pressure for the scheme came from Killybegs and west Cork, from both of which a number of boats had been lost. There was also pressure from the two constituents of mine, Tony Faherty and Paddy Mullen.

If Deputy Creed happens to be lucky enough to be appointed Minister of State at the Department of Agriculture, Fisheries and Food, I can assure him that from the outset he will be having robust discussions with officials on policy changes that are required and which the fishing organisations want. Thus, there was nothing at all unusual about the discussions that took place between me and the officials. There was nothing unusual about the fact that the officials did not want the scheme. Their concern was that it would be widened to include, for example, instances in which a boat had sunk in a harbour and was rotten, but somebody would try to claim it had been lost at sea. They feared a raft of applications that were not genuine. I took the example of one accident off west Cork which had involved the fishing boats owned by the two Aran fishermen, in which both boats had been lost in the same accident on the same night with accompanying loss of life. I used that accident to prove my case to the officials.

Deputy Michael Creed

These were the two fishermen from Inis Mór?

Deputy Frank Fahey

They were the two; Paddy Mullen and Tony Faherty.

Deputy Michael Creed

One of whom, on a point of information, did not meet the terms and conditions of the scheme but did qualify.

Deputy Frank Fahey

I will come back to that.

I used the example of their accident and I asked them to give me details to prove the circumstances. That is where the documents which have been misinterpreted came from. They were to prove they had an accident, that they did have the proper quotas, capacity and so on, that they had genuinely lost boats, that they had not made a profit as a result——

Deputy Michael Creed

Will the Deputy yield for one supplementary question? I am concerned about the fact that I have only a short opportunity to speak.

Deputy Frank Fahey

Yes.

Deputy Michael Creed

In respect of the Deputy's endeavour to ring-fence the scheme to include only genuine cases, why did he not trawl through the Department's records? The Deputy's handwritten note on the memo from Joe Ryan on 10 November states: "I want to see how we can ringfence the ... genuine cases". Why did he not insist that there be a comprehensive examination of all files, rather than those which were known to him, such as those referring to the Inis Mór fishermen and a number of others?

Deputy Frank Fahey

I will answer that.

Deputy Michael Creed

This is a critical issue. What effort was made to define which cases were genuine? Did "genuine" mean the applicant was from Galway West?

Deputy Frank Fahey

I used the example of that one accident to show that there was a reasonable case for such a scheme, based on the fact that there had been accidents in which people had lost boats and could not replace them but were still working as deck-hands, skippers or whatever the case may be. The discussion that went on——

Deputy Michael Creed

The Deputy is answering points that are not in dispute.

Deputy Frank Fahey

To answer the Deputy's question——

Deputy Michael Creed

The Deputy is answering questions whose answers are not in dispute.

Chairman

Let him continue.

Deputy Frank Fahey

The Deputy made an allegation about——

Deputy Michael Creed

No; I quoted the Ombudsman's report.

Deputy Frank Fahey

All right. With regard to the number of cases, as I said earlier, the argument being put forward by the officials was that if we introduced a scheme we might have to deal with a large number of cases which could not be proven. There was a case in Donegal which we discussed in which a boat had sunk in the harbour and therefore had not really been lost at sea.

Deputy Michael Creed

The Deputy cannot have it both ways. He is now arguing that there were concerns about an avalanche.

Chairman

Allow Deputy Fahey to answer the question.

Deputy Frank Fahey

I was responding to a memo from the assistant secretary, Sarah White. I will quote what I said to the Ombudsman:

My overriding concern (and my intention in changing the policy) was to introduce a scheme which would allow genuine cases to be covered — regardless of how many cases that might mean.

My reference to "six to eight" was simply a reiteration of what I had been told at the time by my officials — they were indicative numbers only — no more than that——

Deputy Michael Creed

They were afraid of an avalanche.

Chairman

The Deputy will have his chance to reply.

Deputy Frank Fahey

——and had no influence on my input into the formulation of the eligibility criteria of the Scheme. In my submission to the Ombudsman I also stated:

I believe that it is also important for you to appreciate the timing/date context in which these communications took place. These discussions regarding "ring fencing" took place at a time when a decision had not yet been made on whether the policy should be changed to introduce a scheme. They were part of a discursive exchange with my Department regarding the pros and cons of changing the policy and introducing such a scheme before I had yet decided whether a change in policy should happen — demonstrating evidence of my full, proper and careful consideration of all matters before deciding on a policy change. Accordingly, to suggest that I might have wished to "ring fence" and allow only "6 to 8" cases to qualify under a scheme at a time when I had not yet decided on whether a scheme should be introduced at all, beggars belief and misrepresents my position.

Deputy Michael Creed

Why did he not trawl all the files?

Deputy Frank Fahey

In regard to the other issue raised by Deputy Creed——

Deputy Michael Creed

Why did he not trawl all the files?

Chairman

Allow the Deputy to answer the question.

Deputy Michael Creed

He is not answering any questions.

Deputy Frank Fahey

——on my relationship with Mr. Mullen and Mr. Faherty, I did not know these individuals before they came to me when the scheme was being considered. I have no relationship with them other than that they are my constituents. In fact, they were unable to purchase the right type of boat because the tonnage was not an asset. Paddy Mullen, who received the largest amount of replacement capacity, lost money on the scheme.

In regard to Deputy Creed's point that one of them did not qualify but was overruled, that happened 12 months after I left the Department. I had nothing whatsoever to do with it.

Deputy Michael Creed

However, Deputy Fahey corresponded with him prior to the scheme's introduction to tell him he was qualified.

Deputy Frank Fahey

The Deputy claims I overruled officials in that case, which involved an allegation by Jim Higgins, MEP. The decision in regard to Tony Faherty was made 12 months after I left the Department. I had nothing whatsoever to do with it and was not aware of it.

Deputy Michael Creed

It was because of correspondence from Deputy Fahey that the Department had to include him as a beneficiary when he did not meet the conditions of the scheme.

Deputy Frank Fahey

Deputy Creed is wrong in his allegation.

Chairman

We are six minutes over our time and the committee will suspend for a vote in the Dáil.

Sitting suspended at 10.50 a.m. and resumed at 11.05 a.m.

Chairman

I wish to inform Deputies Creed and Fahey that they have gone over their allotted time by seven minutes. Is it agreed that we will move on to Deputy Sherlock?

Deputy Seán Sherlock

I wish to speak on the issue of advertising and the Ombudsman's conclusions in this regard. First, I ask Deputy Fahey to address conclusion No. 2 of the Ombudsman's report, on page 81, which states:

The way the Lost at Sea Scheme was designed was contrary to fair and sound administration. The specific weaknesses in the design process included, lack of adequate research, lack of thorough documented analysis of the pros and cons of the various criteria and a failure to include provision for discretion in the vetting of applications.

In Deputy Fahey's own submission, he quoted from a letter dated 3 July 2008 to the Ombudsman from Mr. Tom Moran in which it was stated: "The objective and purpose of the scheme was clear, transparent and unambiguous".

The Deputy went on to say:

That is the reason the scheme was advertised only in the marine press and the fishing organisations were consulted and informed of the scheme. The Byrne family had not been involved in fishing since the tragic accident in the early 1980s, so they would not have qualified for the scheme even if their application had been made in time.

They would not have qualified for the scheme, therefore, even if their application had been made on time. My question goes back to page 81 where the Ombudsman says the advertising was inadequate. In conclusion No. 3 she states:

Given that this was a finite, once-off Scheme, aimed at a specific class of individuals the Scheme was not advertised adequately. The advertising process should have been more thorough, comprehensive and targeted. In addition some prospective applicants were put in a more advantageous position than others as they were written to directly by the Department and the Minister to inform them about the Scheme...

I have always approached the specific reference to advertising in the report on the basis that, ceteris paribus, the Byrne family would not reasonably have been in a position because of the tragic circumstances to read the marine press in the intervening years. Deputy Fahey stated the scheme was properly advertised but I cannot tally how he can justifiably say it was adequately advertised when, at the same time, it is stated some people were put in an advantageous position as a result of the scheme. On the one hand, he is arguing it was advertised adequately and that all comers who may have benefitted from the scheme could have benefitted from it but, at the same time, some people were put in a more advantageous position because as the then Minister he wrote to specific persons outlining the prospective launch of the scheme.

The Ombudsman also stated:

With regard to finding number 3 the former Minister, in responding to the Draft Investigation Report, objected, inter alia, to the suggestion that he was responsible for the advertising campaign. He said that this was a matter for the civil servants in the Department. Having said that, he also expressed the view that the advertising campaign was reasonable and satisfactory.

Perhaps this is an incongruous issue but I would like this cleared up. From a layman's perspective, if I made a complaint to the Ombudsman and I looked at this objectively, I would have seen that the Minister of the day informed certain persons prior to the launch of the scheme and if I was a complainant, I could have argued that the scheme was not adequately advertised at the time because if I did not read the marine press, there was no way a prospective complainant would have known about the scheme. I would, therefore, have been put at a disadvantage. The Ombudsman's conclusions are unambiguous in that regard.

What is Deputy Fahey's response to her conclusion that the scheme was "contrary to fair and sound administration"? Some people were potentially put in an advantageous position. Paragraph 5.17 states:

...A table was attached giving details of 16 owners who had requested replacement capacity, about whom the Division was aware and also giving details about their vessels. Draft letters were also attached for the Minister's signature to issue to Mr Paddy Mullen and Mr Tony Faherty informing them about the launch of the Scheme. A closing date of 31 December 2001 was set down for the Scheme...

Deputy Fahey needs to respond on this.

Deputy Frank Fahey

The answer to that is simple. The scheme applied to people who were involved in the fishing industry in 2001. As I said earlier, the fundamental misinterpretation for a number of years by the officials in the Ombudsman's office was that the scheme was a compensation scheme that applied to every boat lost at sea in the ten-year period. That was never the case. That is why a strong case was made by both the Department and myself that the scheme was to do with people who wanted to maintain and sustain a family tradition in the fishing industry in 2001. As with all other schemes advertised by the Department of Communications, Marine and Natural Resources then and by the Department of Agriculture, Fisheries and Food now, they advertise in all the marine and fishing newspapers because they are advertising to people involved in the fishing industry. It was for that reason it was irrelevant in regard to families who had got out of fishing many years before. It was for that reason the former Secretary-General, Brendan Tuohy, who is now retired, in a letter to the Ombudsman in 2006 stated——

Deputy Seán Sherlock

Is that letter in the report?

Deputy Frank Fahey

It is but I am not sure where. Mr. Tuohy stated:

The purpose of the request to the Maritime Safety Division in September 2000...was to ascertain an estimate of the number of lost fishing vessels...rather than to analyse the cases concerned for the purposes of devising a replacement capacity scheme. (...at that stage the Sea Fisheries Division were not drawing up a proposed scheme.)

It is clear from the Ombudsman's responses to the committee that her office did not make that distinction. Files in storage in the maritime safety division had no relevance to this scheme because unless the people were still involved in the fishing industry, these were clearly the people. Tom Moran, the former Secretary -General of the Department of Agriculture, Fisheries and Food said the scheme was to help people "to continue a family tradition of sea fishing in situations where immediate family members were engaged in the sea fishing industry". He said, the objective and purpose of the scheme was clear, transparent and unambiguous. It is for that reason fishery organisations were informed and consulted and advertisements were placed in the fishery papers. Had the Ombudsman's office come to me two or three months after the investigation started instead of two years and eight months later, I would have been able to explain exactly what was the policy behind the scheme.

The Deputy mentioned the conclusion on page 81, which states the way the scheme was designed was "contrary to fair and sound administration". He made a reasonable contribution on the day the Ombudsman appeared. He stated:

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.

There was no finding in the Ombudsman's report that there was maladministration of the scheme. The findings are on page 81. The word "maladministration" was used in the draft report sent to myself and the Department and, in my response to that, I stated:

I entirely reject your purported finding that the way the Scheme was designed and advertised amounted to "maladministration“ leading to an adverse effect on the Byrne family. Indeed, even if one were to accept your remaining purported findings (which I do not), this would not justify a finding of ”maladministration“ with the serious prejudicial connotations which that term gives rise to. There was (and is) no question of incompetence impropriety or dishonesty in the design or advertisement of the Scheme and to describe it as ”maladministration“ misrepresents and mischaracterises any shortcomings which your Office might find with the scheme (which are denied). In addition, I refer to the provisions of the Ombudsman Act, 1980 and, in particular, the ”actions“ as set out in Section 4(2)(b)(i)-(vii). Any finding of the Ombudsman in respect of an action must fall within that legislative provision. There is no legislative provision for a finding of ”maladministration“. The word ”maladministration” must be removed from your report and the purported findings therein.

The response from the Department of Agriculture, Fisheries and Food to the draft report included the following:

The Department absolutely refutes the finding of "maladministration" at number 5 of the Draft Report. In relation to the dialogue with the Minister prior to his instruction to proceed with the scheme, the Civil Servants involved set out clearly, as is on the record, their views in relation to the merits or otherwise of proceeding with such a scheme. In these circumstances the Civil Servants can only advise the Minister and that is what occurred in this instance.

If the finding is intended to relate to the administration of the scheme from the point at which the Minister had given his intention to implement the scheme, the Department, based on all the foregoing, considers the finding of maladministration a very serious charge. The Department cannot comprehend how this conclusion has been reached in relation to the implementation of the scheme. The Department is strongly of the view that the conclusion is excessive and unbalanced and not sustained by the body of the Report.

The finding in the draft report was removed and replaced by the following: "The way the Lost at Sea Scheme was designed was contrary to fair and sound administration."

In his contribution Deputy Sherlock asked the question to which I referred. The Ombudsman said it was the same thing. There was no finding of maladministration in the final report.

Deputy Michael Creed

There was.

Chairman

No interruptions please.

Deputy Frank Fahey

As far as I am concerned, it is not the same thing for the reasons I have outlined in the response I made to the Ombudsman.

Deputy Seán Sherlock

I am a layman, not a lawyer, but the English language is something I like to think I can interpret fairly well. To return to the conclusions, conclusion No. 2 of the Ombudsman's report was that the way the lost at sea scheme was designed was contrary to fair and sound administration. To my mind, that is to say it was not designed in a way that was fair to anyone applying to the scheme.

I asked a specific question on the advertising process. I accept Deputy Fahey has stated his position in that regard. How does he respond to the question I asked about the fact that some people were notified about the launch of the scheme prior to others?

Deputy Frank Fahey

I am sorry. I will deal with that.

Deputy Seán Sherlock

A question mark arises because the impression is given that some people were put in an advantageous position. I surmise that the Byrne family would contend that they were severely disadvantaged by the make-up of the scheme even though the Ombudsman acknowledges that they did not fit all of the criteria but she was working according to the principle of natural justice. Natural justice was well served if one's name was Paddy Mullen or Tony Faherty but it was not if one's name was Mrs. Winifred Byrne. That is something that needs to be addressed to allay the concerns of ordinary people.

Deputy Frank Fahey

As I indicated in my first contribution, it was clear in the letter of 10 February 2005, which was written to the Department by officials in the Ombudsman's office, that what the Ombudsman's office sought was a comprehensive list of all the boats that had been lost at sea. It was not investigating boats that had been lost at sea belonging to people who were still in the fishing industry. That is where the fundamental misunderstanding took place.

When I was interviewed two and a half years later by the officials and the Ombudsman, I was accompanied by a colleague who took minutes. He attended a meeting with me and three officials which included Mr. Whelan and Mr. Morgan, two senior officials, and one other. It became apparent to him very quickly that all three officials misunderstood the meaning and application of tonnage capacity as it was set out in the scheme. All three equated it to monetary terms. All three were surprised to learn that under no section of the scheme as it was laid out was monetary compensation ever an option.

The letter from the Ombudsman to the Byrne family claiming the scheme may have been seriously deficient and flawed made its way into the mainstream media but there was no answer to the following three questions. Why was such a premature statement made considering the Office of the Ombudsman had not spoken directly to me? Why was no consideration given to the ramifications of such a statement on me? As everyone knows, I was pilloried for five years because of that.

Deputy Seán Sherlock

With all due respect, to what meeting do the minutes refer? It is a contemporaneous record taken by a colleague of Deputy Fahey. It is not the minute of an official meeting.

Deputy Frank Fahey

It points to the fact that there was a complete misunderstanding of the purpose of the scheme. I will come back to Deputy's Sherlock's question about advertising.

Deputy Seán Sherlock

I know I have limited time.

Chairman

I will allow Deputy Sherlock to contribute again.

Deputy Frank Fahey

The advertising, therefore, referred to people who were still in the fishing industry. That point has never been accepted by the Ombudsman despite the fact that it was pointed out vehemently by the Department and me.

The case has been made for years regarding the 16 people to whom the Department wrote. If I were to release some of the letters I received from Opposition Deputies I would embarrass them. I will not do that because I do not wish this to become a political issue. Those cases were pursued for a number of years by Deputies from Border constituencies, some of whom are no longer Members. As Deputy Creed indicated, the file contained representations made about the two Aran fishermen by another Member of the House. The reason the officials decided to write to everyone on whom they had files was because they had previously made representations and they were clearly people who would be interested in the scheme. It was a limited scheme for people who had lost boats but who were still in the fishing industry. Therefore, it did not need to be advertised in the national newspapers or made available to people who were not still in the industry.

Deputy Seán Sherlock

Let us stick to the Ombudsman's report. Were the 16 owners notified then? Is it the case that all 16 were contacted and not just Paddy Mullen and Tony Faherty?

Deputy Frank Fahey

That is correct. All the owners who had been making representations in the previous years were contacted. That was normal. I made policy changes in other cases which were very much welcomed by the industry and have proven since to be good and beneficial.

A lack of records was mentioned in connection with the fishing industry. To this day the vast majority of discussion and negotiation with the fishing organisations is done across a table and a record is then made. I had discussions in Killybegs, Castletownbere, Rossaveal and other ports with people about the scheme. They were all still involved in the fishing industry.

Deputy Seán Sherlock

Deputy Fahey contends it is somehow coincidental that Mr. Paddy Mullen and Mr. Tony Flaherty happen to be his constituents, because there were 16 persons in total, many of whom were not constituents of his, who also benefited from a notification of the scheme.

Deputy Frank Fahey

It is simply that I took one accident, in which the two boats that they owned were involved. It is not that I picked those out as two people. Remember, this was ten years after many of those accidents had taken place. There was an issue within the Department to the effect that if we introduced a scheme which involved people going back for ten years, we would have applications from people claiming they had a boat that had rotted in the harbour and never replaced — and they had never gone back into fishing. It was feared that these types of applications would come in.

I mentioned in my interview with the officials that I was not concerned whether there were 20 or 50 applications. In fact there were many more applications, in my view, that should have qualified for this rather than the people who qualified. I did not have any involvement in the actual consideration of the applications that came in. Shortly afterwards I left the Department in any event.

Deputy Martin Ferris

The Deputy said he believed there could have been many more genuine applicants, who would have qualified within the criteria as set down, yet they were never notified. I take it that the——

Deputy Frank Fahey

I did not say they were never notified. Obviously, 68 people applied so therefore there were many others who felt that they qualified.

Deputy Martin Ferris

I am trying to make the point that in Deputy Fahey's words, there were many other applicants who would have qualified within the criteria laid down that did not get the preferential treatment the six people got.

Deputy Frank Fahey

No preferential treatment was given and the Ombudsman's findings did not state that.

Deputy Martin Ferris

I am putting the question. In his own words the Deputy is saying that there were other genuine applicants who should have qualified under the same criteria.

Deputy Frank Fahey

When I introduced the policy decision, its implementation was a matter for the officials, although I was involved in the drawing up of the criteria, mainly by disallowing the sale of the tonnage. My clear understanding was that considerably more people should have qualified for this scheme. I did not introduce it for six or eight, certainly not. I have kept some of the letters. One of the main people involved was from the west Cork fishing community, then a very prominent man in the fishing industry. He made most of the case to me in meetings and deputations about cases which should be included in this scheme. As I said in my interview with the Ombudsman's office, I did not care whether there were 20 or 50 cases, I wanted all the genuine people who had lost boats at sea, and who were still involved in the fishing industry not to have to go out——

Deputy Martin Ferris

The Deputy obviously did not get applications from all——

Chairman

Let Deputy Fahey answer the question and Deputy Ferris can then respond.

Deputy Martin Ferris

I want straight answers here. I am putting a straight question and I am not going to waffle. The Deputy said there were other genuine cases that did not qualify or did not apply for the scheme. I want to know why——

Deputy Frank Fahey

I did notsay they did not apply, but rather that they did not qualify.

Deputy Martin Ferris

He said they did not apply. The reason I am making the point that they did not apply was because it was not advertised properly.

Deputy Frank Fahey

I did not say people did not apply, but rather when I was drawing——

Deputy Martin Ferris

I would assume that if people applied who were qualifying applicants they would have been accepted.

Deputy Frank Fahey

As I have said, when drawing up the policy I was aware that there was a considerable number of people who would qualify for a scheme such as this. The fact that they did not, when they applied, I cannot comment on, but certainly 68 people applied and only six were successful. I never examined any file or tried to influence the officials in trying to decide who qualified, or who did not. As far as I was concerned, my interest was in righting a very serious unfair situation, whereby people who had lost their boats would have to pay a considerable amount of money to replace the tonnage and engine power they had to get in order to get a new boat and return to fishing. I wanted to identify the genuine cases. The numbers did not concern me, and as I explained adequately to Deputy Creed, this whole question of ringfencing has been completely taken out of context.

Deputy Martin Ferris

I want to put it on record that I fully support the principle of the scheme. I come from a fishing community and I know how people have lost boats and so forth. However, I am very concerned. A party colleague of Deputy Fahey told a meeting we had last week on this that the whole thing stank.

Deputy Fahey made a statement earlier to the effect that he had to be satisfied that somebody was still involved in actual fishing, and this was one of the reasons that ruled out the Byrne family. However, we were given evidence last week that one of the Byrne family was a deckhand on a boat. The application was ruled out on the grounds that it was late, yet another boat came in three months after being told it was late and was allowed to tender for tonnage. The Byrne family, however, has been discriminated against, despite the fact that a family member was a deckhand on a boat.

In the case of a fishing vessel, Cassandra, 28 tonnes and 160 kW were allocated to Mr. Thomas Doyle, who was a deckhand on a boat because he did not have a boat of his own. He qualified, but can Deputy Fahey explain this to the committee?

Deputy Frank Fahey

Yes, I can. In the case of the Byrne family, according to the Ombudsman's documentation, one member was a deckhand for a very short period after the accident. However, the accident took place 18 years before this scheme was introduced. The Ombudsman is quite satisfied in so far as I am aware that——

Deputy Martin Ferris

What were the criteria for that?

Deputy Frank Fahey

The Byrne family was not involved in fishing for a long number of years before the Lost at Sea scheme was introduced. Consequently, it did not qualify for the scheme.

Deputy Martin Ferris

I am asking what the criteria were.

Deputy Frank Fahey

The criteria are to be found in the Ombudsman's report where it is stated that part of the conditions included the continuation of "a family tradition of sea-fishing in situations where immediate family members were engaged in the sea-fishing industry". The scheme was introduced in 2001.

Deputy Martin Ferris

For how many years?

Deputy Frank Fahey

At that point when they were still fishing. As the Deputy said of Mr. Doyle, he was working as a deckhand on a boat, but he could not buy his own boat because he would have had to pay in the region of €2,000 to €4,000 to buy back the tonnage and engine power he had lost.

Deputy Michael Creed

That is the value of what the Minister was allocating. Therefore, it had a monetary value.

Deputy Frank Fahey

It had a monetary value if it could be sold, but as I told Deputy Creed earlier, it could not be sold.

Deputy Martin Ferris

Was it not two years, the length of time a person had to be engaged in fishing, in order to qualify?

Deputy Frank Fahey

There was a condition in the scheme, which was inserted by the Secretary General, to the effect that a boat had to be engaged in fishing for two years.

Deputy Martin Ferris

Or an applicant.

Deputy Frank Fahey

As I understand it, the Secretary General did not want a situation whereby someone could claim he or she was fishing for a very short period of time and try to qualify.

Deputy Martin Ferris

For the Deputy's information, that family had been fishing continuously, since pre-Famine times.

Deputy Frank Fahey

I am aware of that.

Deputy Martin Ferris

One member of the family was fishing for the two years which would qualify it for the two years under the 2001 criteria. That family has been discriminated against and that is the significance of this report. Deputy Fahey is said to value the Ombudsman's report as that of a person of integrity and honesty. She has recommended that outside the scheme some monetary compensation should be awarded to the Byrne family.

I wish to return to the issue of tonnage. Six applicants received tonnage: two from the Deputy's own constituency, two from Donegal, one from Mayo and one from Kerry. What type of tonnage was given out? Was is polyvalent?

Deputy Frank Fahey

I am glad the Deputy asked that question, and I hope he will have the good grace to withdraw the false allegations he made in the Dáil.

Deputy Martin Ferris

I am not finished yet; but we will come to that. Was polyvalent tonnage given out?

Deputy Frank Fahey

It was polyvalent tonnage.

Deputy Martin Ferris

Which allowed people to fish what?

Deputy Frank Fahey

It allowed them to fish for white fish, but there was also some possibility they could fish for mackerel and herring.

Deputy Martin Ferris

They were allowed to fish in that manner with polyvalent tonnage?

Deputy Frank Fahey

There was some possibility. It is a complicated area and I would need to——

Deputy Martin Ferris

However, they were allowed to fish for mackerel and herring. In fact, they were going outside the polyvalent sector.

Deputy Frank Fahey

There were some allowances — as there are still — in polyvalent fishing. The figure used to make up the €2.8 million which the Deputy falsely accused me of paying out was actually the cost of pelagic tonnage — that is, boats for fishing mackerel and herring — which, at the time, was stated to be worth €10,000 per tonne.

Deputy Martin Ferris

According to the Deputy's own words, the polyvalent tonnage allowed the applicants to fish mackerel and herring.

Deputy Frank Fahey

No. Polyvalent and pelagic tonnage are very different.

Deputy Martin Ferris

I am well aware of that, I assure the Deputy.

Deputy Frank Fahey

The equivalent value of pelagic tonnage, which was the basis of the false allegation made by the Deputy, was €10,000 per tonne, according to the journalist who wrote the article, whereas polyvalent tonnage, according to the Department and the Ombudsman, was valued at between €2,000 and €4,000 per tonne. The important thing is that the tonnage could not be sold or otherwise disposed of; it could only be used to go back out and fish. I reiterate that the Deputy should have the good grace to withdraw the allegation he made in the Dáil, which was that I paid out €2.1 million out of a total fund of €2.8 million to two constituents. No money whatsoever was paid out under this scheme and none was involved in the scheme.

Deputy Martin Ferris

What I quoted in the Dáil came from a newspaper. If it was not true, why did the Deputy not sue the newspaper?

Deputy Frank Fahey

That is my business.

Deputy Martin Ferris

Why did he not sue the paper? It is obvious why, if I may say so.

Is the Deputy trying to tell this committee that the tonnage and the kilowatts that were given out to six applicants were of no value?

Deputy Frank Fahey

It had the value that they could——

Deputy Martin Ferris

It had the value of allowing people — six boat owners — to make a decent living in the years from that date to now.

Deputy Frank Fahey

That is correct.

Deputy Martin Ferris

It increased the value of the vessels of which the tonnage and kilowatts were part.

Deputy Frank Fahey

No; it did not increase their value.

Deputy Martin Ferris

It did, of course. Boats are worth nothing without capacity in tonnage or kilowatts.

Deputy Frank Fahey

May I clarify that, Chairman? Again, what Deputy Ferris said was wrong. If they could sell the tonnage it would enhance the value of the vessel, but they could not sell the tonnage. The man who received the largest amount of replacement capacity, Paddy Mullen, who was the coxswain of the Aran Island lifeboat, has actually lost a considerable amount of money in this programme since he received the tonnage. If the Deputy wishes to bring him here and ask him about it, I am sure he would be happy to come. Given that he could not use the tonnage to get banking finance, he bought a boat which was not sufficient to do the job he wanted to do. He had a small number of days at sea in the first few years after receiving the tonnage. Thus, Paddy Mullen lost money on this scheme——

Deputy Martin Ferris

Was he able to borrow on the strength of it?

Deputy Frank Fahey

——as a result of not being able to bank adequately the tonnage he received because he could not sell it. It is incorrect to say——

Deputy Martin Ferris

Was he able to borrow on the strength of it?

Deputy Frank Fahey

——that it enhanced the value of the boat.

Chairman

Allow the Deputy to answer the question.

Deputy Martin Ferris

Was he able to borrow on the strength of it?

Deputy Frank Fahey

He was able to borrow on the strength of it but obviously he could not borrow sufficiently.

Deputy Martin Ferris

So he could not borrow without it but he was able to borrow on the strength of it. Thus, it did have a monetary value——

Deputy Frank Fahey

There is no question it had the value——

Deputy Martin Ferris

——as security for money he borrowed.

Deputy Frank Fahey

It had the value of enabling somebody to go back and purchase a new boat and go fishing. That was the whole purpose of the scheme. It was the wrong we wanted to put right. There is no question about it; it had a limited value, but it enabled people to go back into fishing, which was what was intended.

Deputy Martin Ferris

And make a decent living.

Chairman

Does the Deputy have any other questions? He has gone far over his time.

Deputy Martin Ferris

I have many questions left.

To return to the issue of capacity, I must ask a question for my own benefit. What is the situation of somebody who has a boat and has the tonnage that was given to him under the scheme, if he leases the boat?

Deputy Frank Fahey

He cannot lease the boat. It is not allowed.

Deputy Martin Ferris

He cannot?

Deputy Frank Fahey

No. It is not allowed to lease the boat or in any way dispose of or allow anybody else to use it. There could be a skipper on the boat, I am sure, but it is not allowed——

Deputy Martin Ferris

That is the point to which I am coming. Somebody could fish using the person's boat on his behalf.

Deputy Frank Fahey

The person must have ownership and must be the person who is fishing using the boat. Obviously, if there are people working on the boat, that is an issue——

Deputy Martin Ferris

So the owner can put somebody in charge to skipper the boat for him?

Deputy Frank Fahey

The conditions were quite clear, if the Deputy wishes to read them.

Deputy Martin Ferris

They are. They allow the owner to have a skipper to fish for him.

Deputy Frank Fahey

Clearly, the owner must be the person who is fishing.

Deputy Martin Ferris

Not necessarily on the boat.

Deputy Frank Fahey

Of course he has to be fishing on the boat.

Deputy Martin Ferris

That does not even make sense.

Deputy Frank Fahey

The Deputy would probably try to bin the rules, given his record.

Chairman

I ask the Deputy to refrain from——

Deputy Martin Ferris

When it comes to bending the rules, I would come second to Deputy Fahey any day.

Chairman

I ask Deputy Ferris to continue. Does he have any other questions to ask? No? Then we will move on, as the Deputy's time has elapsed.

Deputy Bobby Aylward

I welcome Deputy Fahey to the committee. He is here to clarify his intentions during this period, especially in light of the report of the Ombudsman. There is an onus on us to listen to all the witnesses that come before us, and our duty is to put this report before the two Houses of the Oireachtas, so it is important that we get the full facts and try to analyse the situation as best we can.

I hope we are not losing track of why we are here. We are not here for political gain or other reasons, although accusations seem to be flying around the room. That is not how we should proceed. We should try to fulfil our obligation, which is to put a report before the two Houses of the Oireachtas.

I have a few questions for the former Minister. I sympathise with the Byrne family on the tragic loss they have suffered. The reason for the Ombudsman's report was the complaint received from this family about the lost at sea scheme. My question concerns the criteria laid down and the narrowness of the scheme. Why were the terms of reference of the scheme so narrow, so that only six people out of a total of 68 who applied were accepted? I have not heard a satisfactory answer to this. I am from an inland county, but in the south east — in Dunmore East in particular — there were people who thought they should have qualified, although I do not know whether they applied. However, they did not qualify, which was wrong. The terms of reference of the scheme were too narrow. It should have been open to more people, and more people should have received compensation.

The two main reasons for the refusal to accept the Byrne family into the scheme were that their application was 13 months late and that they had not been involved in fishing in the 18 years since they had lost their boat. I accept these reasons for their exclusion under the scheme; they would have been excluded even if they had applied in time because they were no longer engaged in fishing. However, there are question marks over the issue, because the family did fulfil some of the criteria. Their boat was lost in 1982, which was within the time period specified, under tragic circumstances. The family claim they did not know of the scheme at the time it was advertised, even though it is sometimes hard to know what one did not know. The scheme was advertised in three fishing papers but not nationally. Thus, there are question marks over whether the family should have been accepted under the scheme.

The Ombudsman's officials who did the investigation——

Deputy Tom Sheahan

These are not questions, it is a commentary.

Deputy Bobby Aylward

Does the Deputy want to take my time?

Chairman

I ask the Deputy to continue.

Deputy Bobby Aylward

If you have a problem, I will give it to you.

Chairman

The Deputy should speak through the Chair.

Deputy Bobby Aylward

I am addressing the Chairman and I do not have to speak to you.

Chairman

He is entitled to 12 minutes, just as Deputy Aylward would if he was his party's spokesman.

Deputy Bobby Aylward

I do not think he should interrupt me.

Chairman

Do not interrupt.

Deputy Bobby Aylward

I want to ask three questions just to satisfy the Deputy and prevent him from becoming anxious. First, was the lost at sea scheme in breach of EU regulations? Second, why did the Department write to 16 people? I find it strange that 16 people were notified when others who should have benefited from the scheme were not. The question has already been answered but I think it was selective to write to 16 people. Third, did Deputy Fahey overrule officials in regard to one of the successful applicants who qualified for the scheme?

Personal allegations and innuendoes have been made against Deputy Fahey and now is his opportunity to respond. Two fishermen from his constituency qualified. Did he show favouritism to these individuals and four others from outside the constituency? It should be clarified that the two constituents qualified for the scheme.

As far as I am concerned, the Office of the Ombudsman did not know the full facts of the scheme while it was conducting its investigation. It approached the matter from the point of view of gratuitous payments instead of considering the basis of its introduction, which was tonnage and the power of the boats involved. It was only in 2006 that Deputy Fahey indicated to the Ombudsman that the scheme was intended to give families an opportunity to resume fishing rather than being for monetary gain. I have the greatest respect for the Ombudsman and her office and we have to arbitrate on her recommendation and the Department's response. I hope we will be able to do this once we have heard from all the witnesses.

Deputy Frank Fahey

I was surprised to learn that only six people qualified because I had predicted a much larger number. I can only assume that some applicants did not meet all the criteria. The Department wanted to limit the scheme in order to avoid abuse. It was concerned that a huge number of applications would be made by people who wanted to enter the scheme for spurious reasons. When these discussions were taking place, the condition that tonnage could be sold was still in place. It is my view that the scheme became less attractive once I took out that condition. One or two of the fisheries organisations expressed concern that the tonnage could be sold for monetary gain. I was anxious that all genuine cases involving people who lost boats at sea and were still fishing would come into the scheme. The Department wanted to protect against applications which were not genuine and the terms of reference were therefore quite tight. I believe that is the reason only six people qualified.

The scheme was not in breach of EU regulations, although a concern was expressed in the Department regarding an area on which I personally did considerable work, namely, that the multi-annual guidance programme, MAPG, of the Irish fleet was over the limit allowed by the EU. We were at the time holding discussions with the European Commission on reducing the fleet's capacity. The scheme was not in any way contrary to EU regulations until a change in the law in 2003. The Ombudsman could not recommend that tonnage should be given to the Byrne family because the new rules introduced that year forbade her from doing so.

In regard to the 16 notifications, the people on whom the Department had files and who had been complaining for years about the injustice against them were notified. In the course of the 18 month period during which we considered whether to introduce a scheme, I not only held meetings with fishing organisations but also formally wrote to them to inform them of the scheme so they could tell people about it and input into it. In addition, we advertised in all the marine newspapers. I had nothing to do with the decision to write to the aforementioned 16 individuals. As members will see from the documents I have circulated, that was done on the basis of a memorandum dated 31 May 2001 which mentions a "draft letter for issue by the Minister in respect of owners who have made representation to him". It is the protocol in every Department that a Minister replies to representations made directly to him or her, especially if they pertain to his or her constituency.

If any proof is needed that I did not show favouritism to my own constituents, it is in the answer I gave to Deputy Creed. If I wished to favour two of my constituents, I would not have removed the ability to sell tonnage because that made a major difference to the scheme. As any fisherman knows, tonnage is used for fishing but its value comes from the ability to sell it on the tonnage market. I disappointed a lot of people by removing that condition, including the aforementioned two constituents. I can put my hand on my heart when I say that I was not interested in benefiting anybody with this scheme. I was interested in introducing a scheme which would deal with a situation which was unfair to a number of small fishermen around the coast who had been affected by an arbitrary decision which provided that if they had a boat in a harbour in January 1990, they could sell the tonnage the following day. However, if they had the hard luck not to have a boat in the harbour they had to buy what they lost in order to return to fishing. That was the innately unfair arrangement which I sought to remedy. If I had to make the decision again, I would make the same choice.

Deputy Bobby Aylward

Did Deputy Fahey overrule officials regarding one individual?

Deputy Frank Fahey

That was the subject of one of the allegations made by Jim Higgins, MEP. He even wrote to the Taoiseach about it. It seems a question arose regarding whether Tony Faherty qualified for the scheme. This issue arose at least 12 months after I had left the Department. He did not come back to me about the issue and I did not make any representation on his behalf. I was unaware that the incident occurred. It is yet another false allegation against me.

Deputy Michael Creed

The point was that in the Deputy's capacity as Minister for the Marine and Natural Resources, he wrote to Mr. Faherty on 31 October 2001 to inform him that he qualified under the scheme. However, he did not qualify and it was on the basis of the legitimate expectation created by that letter that he subsequently had to be included.

Deputy Frank Fahey

I shall clarify that issue. When the tonnage became an asset in 2000, the regulation allowed a two-year window within which people could apply to re-register their tonnage if for any reason their boats were incapacitated, off-register or lost at sea. That was the reason the Department decided to allow applicants a six-month window from the time the decision was taken to introduce the scheme until the end of the year. That letter, which was dictated and fully authorised by the Department and simply given to me for my signature, indicated to people that they qualified for the scheme, subject to certain conditions, as their cases were addressed. That letter went out to all the people who qualified for the scheme.

Deputy Bobby Aylward

When officials from the Office of the Ombudsman were investigating between 2004 and 2007, did they understand the full criteria and the terms of reference of the scheme? Until Deputy Fahey pointed it out to them, they seemed to be under the illusion that they could award monetary compensation instead of tonnage, something that was overruled by the EU in 2003.

Was the Ombudsman right to include the family in the decommissioning scheme? This seems to me to have had nothing to do with the scheme that was under the control of Deputy Fahey. I would like to hear the Deputy's comment on this more than anything else.

Deputy Frank Fahey

The officials from the Office of the Ombudsman became aware in 2005 that it was not possible for the Department to accede to the Ombudsman's request that tonnage would be given to the Byrne family, due to the fact that the regulations had changed at the beginning of 2003. There are extensive letters from the Department to the Office of the Ombudsman explaining that it was not possible to provide replacement tonnage to the Byrne family. A letter went from the Office of the Ombudsman to the Department on 10 February 2005. It is clear from that letter that the investigation at that stage was about why there was not a full trawl of all boats that were lost at sea. That had nothing to do with the lost at sea scheme.

In 2005, when I handed the officials from the Office of the Ombudsman the memo that I have circulated today, it was the first time they saw it. They were clearly not aware until then that I was the person who took out the condition that tonnage could not be sold or that there was no compensation involved.

Deputy Bobby Aylward

They were not aware of that until that day. They were investigating the thing without being aware of these rules.

Deputy Frank Fahey

I specifically asked them what tonnage meant.

Deputy Bobby Aylward

The officials from the Office of the Ombudsman were investigating for two years without being fully aware of the rules of the scheme. That is probably important.

Deputy Frank Fahey

This is one of the problems. There was an investigation being carried out since November 2005, before I was ever asked for my explanation on my policy decision. I am quite satisfied that my policy decision was not understood.

While nobody from the Office of the Ombudsman ever contacted me, I did contact that office on several occasions, asking that the incorrect allegations being made against me about paying compensation would be clarified. I was told that it was not the business of the office to correct stuff in the media, even though officials there accepted it was not accurate.

Nobody who qualified for the lost at sea scheme qualified for the decommissioning scheme. The decommissioning scheme was brought in back in 2006 to enable people who were still involved in the fishing industry to get out of it. The Ombudsman asked the Department officials to provide a calculation on the compensation the Byrne family might get if they had been fishing and had qualified for the lost at sea scheme and the decommissioning scheme. The compensation decided by the Ombudsman that should be given to the Byrne family was based on all those factors.

Deputy Bobby Aylward

That was €245,000.

Deputy Michael Creed

Was that because the 2003 regulations did not allow the Ombudsman to allocate tonnage? That option was not open to her.

Deputy Frank Fahey

I do not know, but the Ombudsman was within her rights to recommend that compensation be given. I am simply pointing out that the basis on which that decision was made was simply not correct.

Deputy Tom Sheahan

There have been conflicting statements from Deputy Fahey today. He said that the scheme did not represent monetary gain nor was it an asset, yet just a while ago he conceded that there was a massive benefit to the two main benefactors. If somebody was to gift a single farm payment to a farmer, he could go and buy the farm with it. That is a parallel to what happened here. It enabled Mr. Mullen and Mr. Faherty to fish to the tune of €500,000 and €360,000 gross value, respectively, every year for the rest of their lives.

Deputy Frank Fahey

Could the Deputy explain how he arrived at those figures?

Deputy Tom Sheahan

I include the tonnage and the value of the tonnage. It enabled them to fish to that value for the rest of their lives. The Deputy stated earlier that he was surprised there were not more qualified people, but he wrote in the memo that it was to be ring-fenced for the six or eight applicants.

In his opening address to Deputy Creed, he stated that he had robust exchanges with officials in his Department on this scheme. How robust would they have been? Does Deputy Fahey think it is appropriate to design a scheme based on approaches and representations from politicians without looking at the 120 files that were never checked? While some people seem to be hung up on the advertisement of the scheme, the Deputy actually stated that it did not need to be advertised. How does he come to that conclusion?

Deputy Fahey wrote to Mr. Faherty in October, yet the closing date was 31 December. He wrote to him and congratulated him on being successful before the closing date of the scheme. I have the qualifying criteria that Mr. Faherty did not meet. Deputy Aylward asked if the Deputy overruled officials in respect of one applicant. Mr. Faherty did not qualify. The conclusion of a meeting on 10 April 2005 was that Ms Kelly said that the Department of Communications, Marine and Natural Resources would have to seek advice from the Office of the Attorney General on the question of whether the nature of Mr. Faherty's part-ownership of the vessel impacted on his compliance with the criteria of the scheme. The Attorney General adjudicated that he could not qualify, because his was a part-ownership. Yet, whereas the Attorney General disqualified him, Deputy Fahey qualified him. I go back to Deputy Aylward's question about Deputy Fahey overruling people in regard to this scheme. The Attorney General came to the conclusion that Mr. Flaherty was a part owner of a vessel and that this disqualified him, yet Deputy Fahey saw fit to qualify him.

Deputy Frank Fahey

I will deal with this matter again. The whole issue arose 12 months after I left the Department. We can get the exact dates. The whole issue of Tony Flaherty----

Deputy Tom Sheahan

On what date did the Deputy leave the Department?

Deputy Frank Fahey

I left the Department in June 2002 following the general election. The whole issue of whether Tony Flaherty was qualified or not arose in 2003. I repeat, for Deputy Sheahan's benefit, that I was not aware of the whole issue; he did not approach me and I did not make representations. I was then Minister of State at the Department with responsibility for labour affairs. I was not aware of any of the discussions that took place until all of this arose several years later. It is not correct to state that I overruled officials in regard to Tony Flaherty. I did not.

With regard to a number of the other things the Deputy claims I said, I did not say them. I did not say there was no need for advertising. I want to deal with the point made by Deputy Sheahan that tonnage was valued at €4,000 per tonne and the beneficiaries were able to fish to the value of €340,000 and €500,000 per annum. Again, with no disrespect to Deputy Sheahan, that shows a fundamental misunderstanding of tonnage and its value. What the Deputy has done is to make up the value of the tonnage, if the tonnage were to be sold on the tonnage market, and suggest that if that tonnage had been capable of being sold and the value of the tonnage was €400,000, the person who got the tonnage would have got €340,000 or €500,000. It is not correct — in fact, it is totally inaccurate — to suggest the value of that tonnage was €300,000 a year and €500,000 a year. If it was, we would all go fishing.

Deputy Tom Sheahan

They had the capacity to fish that tonnage at €4,000 per tonne when it is landed on the quay.

Deputy Frank Fahey

That is not correct.

Deputy Tom Sheahan

I was referring to the gross value. Deputy Fahey can take out all the costs and everything else. They were making a very good living out of it. I equated it to——

Deputy Frank Fahey

I suggest Deputy Sheahan talks to some of the people in the fishing industry. They will explain to him how he is getting it wrong.

Deputy Tom Sheahan

Has fish no value? Were they going out for the craic?

Deputy Frank Fahey

I am not suggesting that. I am simply stating that the Deputy's synopsis is completely wrong.

Deputy Tom Sheahan

What are the figures? Deputy Fahey said earlier — we can go through the transcripts — that it was of value and enabled them to make a good living.

Deputy Frank Fahey

Once they had got their replacement tonnage and bought their boat, they were then allowed to go fishing and were given a quota which was based on the capacity of the boat. Of course they had value in their ability to go fishing while not having to buy back the tonnage they had already lost. That is a totally different situation from the calculations given by Deputy Sheahan.

Deputy Martin Ferris

The boat is valueless without the tonnage.

Deputy Tom Sheahan

I am glad we have addressed the value aspect of this. Can Deputy Fahey enlighten me as to how on 31 October, two months before the closing date of 31 December, he could write to an applicant to tell him they had been successful before the closing date?

Deputy Frank Fahey

As I said in my opening statement and a number of times since, following the introduction of the new register in 1990, a new licensing policy stated that off-register capacity could be used to introduce a fishing boat onto the register within two years. That was a two-year window which applied after 1990. The Department decided, to be fair and to ensure that people were given an ample opportunity to get into the scheme, to give a six-month window, so it put the closing date at the end of December. However, it was not as if there was a defined amount of tonnage to be given out, that everybody applied and that decisions were then taken at the end of the application period. That was not the situation, even though this has again been misinterpreted by some people. The situation was that they applied for the actual tonnage they had lost.

I had nothing to do with that decision, its timing or, indeed, the letter, other than that I signed it. The Department decided to reject and approve applications as they came in during that period. I simply signed the letter, as Minister of State, to the people who made representations to me, and I did so because of the window that existed. It was not as if they were approved before the closing date. They were simply given back the amount of tonnage and engine power they had lost.

Deputy Tom Sheahan

Deputy Fahey continues to dispute the Ombudsman's conclusion that this scheme was full of maladministration and that the Byrne family, in the words of the Ombudsman, were treated unfairly by Deputy Fahey.

Deputy Frank Fahey

As I said, the finding of the Ombudsman's report was that the scheme was designed contrary to fair and sound administration. There was no finding that there was maladministration in the scheme. That is a very important point to me personally. I am delighted the Ombudsman and her office saw fit to change the finding from the draft report——

Deputy Michael Creed

The Ombudsman told this committee there was no difference between maladministration and——

Deputy Tom Sheahan

She said Deputy Fahey treated the Byrne family unfairly.

Chairman

The Deputy is over time. I call Deputy O'Sullivan.

Deputy Tom Sheahan

Deputy Fahey has not answered the question.

Deputy Christy O’Sullivan

Many of the questions I intended to ask have already been asked. I can understand how, at the time, Deputy Fahey or anyone in that position would have seen fit to introduce a scheme such as this. It was to try to undo a wrong that had been done. If a person's boat was lost at sea, that person's whole livelihood and the tonnage was gone down with it. In that respect, the situation was very unfair.

The disappointing part of the whole situation, looking back, is that the scheme did not produce the result it was set up to produce. I know many people in my constituency were disappointed they did not qualify as they felt they should have qualified. When their applications came into the Department, however, it ruled they were not qualifying applicants. From that perspective, I am disappointed.

When Deputy Fahey discovered that only six applicants had qualified, what was his attitude? Did he question this or meet with his officials to ask if something was wrong?

Deputy Frank Fahey

Again, I had no involvement in the actual assessment of the applications that came in. I was not aware of the number. I had no involvement in regard to the outcome. People certainly came to me to express their dissatisfaction that they had not been included but, at that stage, I had done what I had done. It was a policy decision. I did not get involved in the issue any further and I left the Department a few months later.

I agree with Deputy O'Sullivan. It was my intention that a wider scheme would have benefited genuine cases where people had lost their boats at sea and were still in the fishing industry.

I share the Deputy's view that more people should have qualified.

Deputy Christy O’Sullivan

With the benefit of hindsight, Deputy Fahey's opinion is that more people should have qualified at that time. As for removing the clause whereby the tonnage could not be sold or traded in any way, Deputy Fahey has explained his reasons for that. In hindsight, however, does he believe that was the proper decision at the time?

Deputy Frank Fahey

Yes, very much so because tonnage is an asset. My intention was to allow people who were working as deckhands or skippers or who were involved in some way in the fishing industry and who could not buy their own boats to so do. That was the scheme's sole purpose. Consequently, when Mr. Tom Carroll wrote the memo to me, to which Deputy Creed referred, in which he pointed out that the allocation of tonnage that could be sold amounted to the writing of a gratuitous cheque, I immediately perceived that this was not what I had in mind. At a late stage, as the terms of reference were fully agreed by then, that is, on 31 May 2001, I circulated a memo in which I changed that clause to read that there could be no financial benefit from the loss——

Chairman

Please, I ask those members who wish to talk to leave the meeting room.

Deputy Frank Fahey

——and that the capacity could not be otherwise sold or disposed of. I am absolutely satisfied that I made that decision because that is the false allegation that has been made against me since then.

Deputy Christy O’Sullivan

In respect of another criterion for qualification, it is correct that one would be obliged to be fishing in 2001?

Deputy Frank Fahey

Yes, the scheme was intended for people who were in the fishing industry on its introduction in 2001.

Deputy Christy O’Sullivan

Has it been clarified that a member of the Byrne family was fishing during that period? Is Deputy Fahey now aware——

Deputy Frank Fahey

Again, the Byrne family application was received one year after the scheme's closing date. I was not involved at all, other than having been made aware since on foot of my inquiries that the Byrne family had left the fishing industry shortly after their boat sank in 1982.

Deputy Christy O’Sullivan

May I take it this would mean they were not fishing in 2001?

Deputy Frank Fahey

As far as I am aware, that was the situation.

Deputy Christy O’Sullivan

That point alone naturally would preclude them from qualification.

Deputy Frank Fahey

Yes. That was the entire point that was misunderstood by the Ombudsman's office, namely, the point of the scheme.

Deputy Christy O’Sullivan

I have a problem in this regard because Deputy Ferris stated they were fishing at the time of the scheme.

Deputy Martin Ferris

Sorry?

Deputy Christy O’Sullivan

The Deputy stated that a member of the family was fishing in 2001.

Chairman

Members should speak through the Chair, please.

Deputy Martin Ferris

Deputy McGinley mentioned here last week——

Deputy Christy O’Sullivan

In 2001. That point would be worth clarifying.

Deputy Martin Ferris

——that, in fact, a member of the Byrne family has been fishing in every decade.

Deputy Christy O’Sullivan

Were that point clarified, it might help members to make up their minds on this issue.

Deputy Andrew Doyle

I thank Deputy Fahey. Members should come to a conclusion regarding the Ombudsman's recommendations, notwithstanding that there may have been a trawl, if members will pardon the pun, in the manner in which the Ombudsman carried out the business of investigating the appeal. In a letter dated 30 July 2009 from Mr. Randall Plunkett, the head of the Department's legal services division, he made the point:

It is a matter of fact and one recognised by the Ombudsman in her findings ... that the Byrne family did not comply with the Scheme conditions in two regards.

One was that they were out of time by calendar and the second was that the boat owned by the late Mr. Byrne "had not been operated by him for a considerable period of years for sea fishing of a category covered by the capacity rules". Mr. Plunkett went on to comment on that point:

the Scheme conditions were those fixed at the time and with the benefit of hindsight, it is possible to state that had further research been carried out by the Department and had more time been spent in formulating the conditions of the Scheme that they might have been different.

This pertains to the issue of that boat not being continually fished.

As for the advertising, a letter dated February 2005 from the Ombudsman's office to Ms Eithne Whelan noted that the maritime safety division had identified 120 files of boats that had sunk over a 20-year period and that this could have been refined. The Ombudsman's office then went on to request that a file be presented containing all vessels lost between 1980 and 1990. In this regard, the Ombudsman considers that it could have been better investigated and that once 16 people had been given the information, all concerned could have been given the information.

I wish to clarify a key point about qualifying. The Department's head of the legal services division stated: "The thrust of the Scheme was a genuine attempt to assist persons to get back into fishing where there had been a strong family involvement in fishing, rather than just ... monetary compensation." That is a mile away from the contention that it was for individuals and families who still were involved in fishing. These are two interpretations of what was the thrust of the scheme. The Ombudsman based her conclusions on the memo dated 30 July 2009 from the head of the legal services division, which stated it was to assist families where there had been a strong family involvement in fishing. No one can dispute that the Byrne family had a strong family involvement in fishing. I wish to clarify whether Deputy Fahey accepts that the Ombudsman's conclusions were based on the two reasons, as outlined by Mr. Plunkett, as to the reason the Byrne family did not qualify. She determined both of them to be unfair and her conclusion states: "In the circumstances, [this is to get over the point about the compensation and the money aspect] I consider that the appropriate remedy for the adverse effects suffered is monetary compensation."

The Deputy has accepted that it was an asset and that it had a value, in that it pertained to the ability of someone to fish to earn a living. If I interpreted the Deputy's earlier comments correctly, he has also accepted that it was not the case that the Ombudsman was trying to include the Byrne family in the decommissioning scheme. Instead, she used the formula of the decommissioning scheme to calculate the compensation amount. It was not that she was trying to group the Byrne family and much confusion and muddying of the waters has taken place on this point, namely, that it was only the formula that was used. Had she used another methodology and reached an arbitrary sum without mentioning the decommissioning scheme, it would have been on the basis that she considered the appropriate remedy for the adverse effect to be monetary compensation. It is as simple as that.

One then turns to the question as to the reason the Department or the Government ultimately decided not to consider this to be a reasonable conclusion, given that there would be no cascade effect as the Department already had identified that there only had been 120 cases over a 20-year period and that the Department itself noted that this scheme was designed for cases in which there was a strong tradition in fishing.

Deputy Frank Fahey

I reiterate what I said previously. As Deputy Doyle noted, the Ombudsman gave two other reasons the Byrne family did not qualify for the scheme. I am simply explaining a misunderstanding on the policy decision that I took. I know what was the policy decision and am clear in that regard. If one examines the Minister's speech in the Dáil, he reiterated a number of times that this scheme pertained to people who still were involved in the fishing industry. It cannot be any more clear than what is contained in the letter I have quoted a number of times. It was for members who were engaged in the sea fishing industry when the scheme was introduced in 2001. There is no argument about that.

Regarding the compensation, the Ombudsman is entitled to make whatever decision she sees fit. As the Minister pointed out in his speech in the Dáil, though, the scheme expressly was not introduced as a means for a person who tragically lost a family member at sea to obtain payment from the State. As suggested by the legal officer for the Department of Agriculture, Fisheries and Food, who was supported by the Attorney General, in the 30 July 2009 letter just cited, notwithstanding the tragic circumstances of the case, it did not provide a basis to transform a mechanism dealing with tonnage for fishing vessels into a system of compensation. This is essentially the only issue I have.

The lost at sea scheme was never a scheme of compensation. It was a scheme of replacement tonnage. Due to a misunderstanding at an early stage of the policy issues surrounding the scheme, the Ombudsman's office took a view that the scheme was about compensation. As I have repeatedly stated, I see no reason to pay compensation to the Byrne family in this instance.

Chairman

Is Deputy Doyle finished?

Deputy Andrew Doyle

No.

Chairman

The Deputy only has a few minutes left.

Deputy Andrew Doyle

I am not known for going over time. Deputy Fahey stated every aspect of the scheme was administered by the Department. The Ombudsman accepts and has no problem with the practice whereby Ministers give direction and initiate schemes. When the Ombudsman received a circular to the effect that the scheme was to assist people with a strong family involvement in fishing, she was entitled to take that as the criterion. She is not compensating people. This is a monetary remedy, as she calls it, for the adverse effects suffered. For a host of reasons, it is like any award to anyone who has justice denied him or her.

As to drawing the conclusion that this was a monetary compensation in a scheme that was never meant to be monetary, it was seen as the best way to remedy an adverse effect for justice denied. This is how the Ombudsman has interpreted it, as she is entitled to do. The Department is also entitled to interpret it, but the issue has been continually muddied by statements that the scheme was never about compensatory awards. It never was and, once clarity was given to the Ombudsman in the initial stages of the investigation, she was not in the slightest bit confused. However, people are trying to confuse the issue.

Chairman

Does Deputy Fahey not have a reply?

Deputy Frank Fahey

I have already replied.

Deputy Andrew Doyle

Does the Deputy not accept that the Ombudsman was entitled to reach a conclusion on the basis that it was not a question of people still being actively involved in fishing, notwithstanding anything stated by Deputy Ferris or others? The response by the head of legal affairs was that the scheme was to assist people where there had been a strong family involvement. Does the Deputy not understand why the Ombudsman reached her conclusion? She received a circular.

Deputy Frank Fahey

The policy I introduced was misunderstood by the officials in the Ombudsman's office. This scheme was not about compensation despite the fact that the man who brought it to the Ombudsman's attention in the first case issued a press release the day after her report came out. He had been telling the Byrne family and media outlets that the scheme was about compensation. He stated that €2.1 million was paid out of a total fund of €2.8 million. For the past six years, I have had to put up with this incorrect information. The scheme was not about compensation, which the Ombudsman admitted in page 9 of her report, where she stated: "I fully accept that successful applicants were granted replacement tonnage under the Scheme, rather than compensation." The Ombudsman was within her rights to recommend that compensation be paid, but the Department does not accept the recommendation, as it will tell the Deputy.

Deputy P. J. Sheehan

I welcome Deputy Fahey. It is nice to see that he has at least attended to listen to the facts of the sad predicament surrounding the lost at sea scheme. Why did the former Secretary General state in his interview to the Ombudsman concerning this scheme that Deputy Fahey was particularly tenacious on this issue? Does the Deputy agree with his then Cabinet colleague, Deputy McDaid, who told the committee a couple of weeks ago that there was a bad odour about the scheme? Considering the findings that this scheme was contrary to fair and sound administration, what would Deputy Fahey do differently were he to redraft the scheme tomorrow morning? Would he ensure that a family like the Byrnes from County Donegal, who had been involved in the fishing industry for generations, would be included?

I have a number of other questions. Deputy Fahey was the Minister in charge of fisheries when he introduced this compensation scheme. Had he any knowledge of the list of boats lost at sea in the 1980-89 period? Why did he pick out 16 people contacted by his Department? Perhaps the Department did not have records and fell down in that respect. How did he expect the late Francis Byrne's widow, who was left with a young family, to purchase a replacement fishery vessel and tonnage when she had no financial way to do so? Her son was a deckhand for a few years after the family boat sank, showing that the fishing tradition of the Byrne family was ongoing.

I draw the Deputy's attention to the Ombudsman's recommendations. She stated: "I am 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." The fault lies with the Department. Why was the scheme not advertised in the Donegal Democrat, the local Donegal newspaper? Why confine it to a few select fishing periodicals?

The Ombudsman also stated:

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. 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.

It would not have created a precedent under the decommissioning scheme for the Byrne family to be given the borrowing power to replace the boat tragically lost at sea. The Ombudsman stated that the calculated sum should be submitted to the Ombudsman's office for consideration with an explanation as to the methodology used in arriving at the proposed amount and continued, "On receipt of the Department's calculation I will then proceed to recommend a specific compensation figure". That was to be the end of story as far as this sad episode is concerned. The Ombudsman also recommended the Department should "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".

That sums up the case. I do not blame the Minister alone but also the Department. There were anomalies on both sides but two wrongs do not make a right. All I say now to the Minister is that he should act on the recommendations given him by the Ombudsman.

Chairman

He is no longer a Minister. I wish to make that clear.

Deputy P. J. Sheehan

I know that but he could do the honourable thing——

Chairman

The Minister will attend the committee in a couple of weeks.

Deputy P. J. Sheehan

——and agree that something must be done to compensate these unfortunate people who are the victims of circumstances they did not create.

Chairman

The Minister has two minutes to reply.

I apologise for calling Deputy Fahey "Minister" but there have been very many Ministers here.

Deputy Frank Fahey

Deputy P. J. Sheehan mentioned that I was particularly tenacious about the scheme. I was particularly tenacious about a whole series of policy initiatives I wanted to take, and took, when I went into the Department of the Marine in order to assist the fishing industry around the coast which at the time was under severe pressure. I took many policy decisions, changing policy in order to encourage the developmental role of the Department and try to be supportive of the fishing industry right across the spectrum. I was no more tenacious about this scheme than I was about several others.

The Deputy quoted Deputy McDaid. I hope that, to anybody who wants to hear a fair assessment of what this scheme was all about, my explanation will prove that the comments made by Deputy McDaid were entirely wrong. He clearly did not understand what the scheme was all about.

Deputy P. J. Sheehan

He did.

Deputy Frank Fahey

I did not pick out 16 people to write to, as the Deputy stated. The Department took a decision to write to all those people on whom they had files open at that stage in regard to boats that had been lost at sea.

Deputy P. J. Sheehan

Why was the Byrne family not included? It was a shallow mission.

Deputy Frank Fahey

I will answer that question in the following way. The Deputy asked me what I would do differently if I was designing the scheme again. If I was designing a scheme to pay compensation for every fishing boat lost at sea, to cover the loss of the boat and the loss of lives, I would design an entirely different scheme which would have an entirely different set of criteria. That is not the scheme I was designing then.

The case the Deputy makes for the Byrne family, which I accept very genuinely, is not what the lost at sea scheme was about. These are two entirely different issues. That is the reason I can put my hand on my heart——

Deputy P. J. Sheehan

In what way?

Deputy Frank Fahey

I can put my hand on my heart and say I have acted with absolute integrity and honesty in regard to this scheme from the very first day. I did not try to exclude anybody from it or include anybody in it. I tried to do what I believed was right in putting right a very serious wrong that had been done to quite a number of fishermen around this coast, as a result of the new regulation brought in in 1990.

Deputy P. J. Sheehan

I have a final comment, through the Chair.

Chairman

The Deputy is way beyond his time. I will take a final question.

Deputy P. J. Sheehan

Deputy Fahey agrees that some kind of error was made in the Department and the Byrne family was not included in the 16 letters that were sent from the Department. Why were they not included?

Deputy Frank Fahey

Because——

Deputy P. J. Sheehan

They were victims of circumstances in the period from 1980 to 1989.

Deputy Frank Fahey

The terms of reference of the scheme concerned people who were involved in the fishing industry in 2001 when the scheme was introduced.

Deputy P. J. Sheehan

How could they be involved in 2001 when they had lost their boat, tonnage and everything and had no methods of replacement?

Chairman

We must move on. The Deputy is way beyond his time. Does any other member of the committee wish to comment before I bring in those who are not members?

Deputy Michael Creed

I wish to speak again after the non-members.

Chairman

The Deputy will have a supplementary. I call Senator Regan.

Senator Eugene Regan

The Ombudsman has produced a comprehensive report whose findings apply to both Deputy Fahey and the Department. In his presentation today, the Deputy portrays himself as the victim in all of this. He has been misunderstood by the press. The Ombudsman and her officials have misunderstood the scheme he put in place. He is totally innocent concerning the manner in which he dealt with the entire issue.

The essential defence, or clarification if one wishes to so call it, the Deputy makes in his presentation is that he was treated unfairly by the Ombudsman and adverse findings were put forward initially in a letter to the Byrne family. If the Deputy was dissatisfied with that there was an alternative, legal, judicial review course of action which he did not take. However, his essential point is that the lost at sea scheme was not a compensatory scheme and he states this throughout his written submission. This misses the whole point because what the Ombudsman is doing here, according to her role under the Ombudsman Act, is to examine administration and have an additional check on administration to ensure that people are treated fairly by Government and the organs of the State.

The Deputy suggested the Ombudsman misunderstood. On page 26 of the report it is stated, "The scheme did not provide financial support to successful applicants for the acquisition of a replacement fishing vessel itself and the replacement capacity granted under the scheme had to be used by the replacement fishing vessel and could not be sold on or otherwise traded or realised as a financial asset in the tonnage market". It seems to me she understood the scheme perfectly. She understood perfectly how and why the scheme was conceived by the Deputy.

The first issue is one of first principles. The Ombudsman is looking at administration. Deputy Fahey tackled me outside the Seanad when I spoke on this subject, saying I had used the term "maladministration". He said today there was no finding of maladministration. He said, rather, he was vindicated by the report of the Ombudsman. The phrase "contrary to fair and sound administration" is found throughout the report, on pages 4, 6, 9 and 81. The finding on page 67 is "it fails to meet fundamental principles of good administration" and, on pages 78-79, "paid insufficient attention to the basic principles of good administration".

Administration is either good or bad. The prefix "mal-" means bad. If the administration is not good then it is bad. The Deputy is insulting our intelligence by suggesting that when the Ombudsman states "contrary to fair and sound administration" that finding is not equivalent to maladministration. She said as much to the committee. In the report she sent to the Oireachtas she used the term "maladministration" and on page 18 states, "where I make a finding of maladministration as has happened in this case". On 9 March she made a speech entitled, In the Public Interest: Lessons from the Ombudsman's Experience, in which she stated:

The last Financial Regulator was excoriated for not doing his job adequately, for allowing himself to be captured by the system he was supposed to monitor, for not rooting out maladministration in the banking system and thus failing to serve the public interest. My Office has done in its area of responsibility [she was talking about the lost at sea scheme] precisely what the Financial Regulator was accused of not doing in his [field].

What part of the report does Deputy Fahey not understand? There is a finding of maladministration, or that what was done was contrary to sound and fair administration, which is the same.

On page 77 of the report the Ombudsman pointed out that the case was unusual in that it embraced the actions both of a Minister and his officials, stating, "Having regard to my remarks above, my findings below apply to both the Minister and his officials". This is not surprising, given that the entire scheme was initiated by Deputy Fahey following representations made by two constituents, according to page 39 of the Ombudsman's report. The scheme was discussed with them and criteria——

Deputy Frank Fahey

That is not correct.

Senator Eugene Regan

Deputy Fahey will have an opportunity to reply. I am providing him with the references in the report. The scheme was discussed with the two constitutents concerned and the criteria amended to suit them, according to pages 45 and 47 of the report. They two were personally notified of the scheme prior to its implementation. Deputy Fahey has made reference to the one condition he changed, but he changed others to suit the two people concerned.

Despite the fact that the findings are deemed to apply to Deputy Fahey, not just the Department, he dissociates himself from it. He has tried to get out of this. On page 64 of her report the Ombudsman states:

In my Draft Investigation Report I had expressed the view that it was clear to me from his interview and the documentation on file that the Minister would have been anxious to ringfence the cases of the MFV Joan Patricia and the MFV Spes Nova and that of the Kreis An Avel, which was the subject of the High Court case. These cases were ultimately successful under the Scheme.

Clearly, the Ombudsman is of the view that Deputy Fahey designed the scheme with his two constituents in mind and ring-fenced it.

Chairman

I ask Senator Regan to conclude because Deputy Fahey wants to reply and there are only two and a half minutes left.

Senator Eugene Regan

I do not want him to use up my time, as he has done in other cases.

Chairman

It is not Senator Regan's time; there is a ten minute question and answer slot.

Senator Eugene Regan

I am entitled to do so within ten minutes available to me.

Chairman

It includes provision for a reply from Deputy Fahey.

Senator Eugene Regan

The Ombudsman stated in her report, "In commenting on the Draft Investigation Report, the former Minister said it was unfair and inequitable to apply my findings to both the Minister and his officials". Having conceived it, Deputy Fahey bullied the Department into adopting a scheme it did not want to adopt and he is now trying to dissociate himself from the finding of maladministration or contrary to fair and sound procedures.

With regard to the remedy proposed, it is a complete red herring to say it was not a financial compensatory scheme. That is nonsense. The reality is that under section 6(3)(b) of the Ombudsman Act, the Ombudsman is entitled to award compensation or decide what is fit when there is a finding of maladministration. The Ombudsman has made this clear before this committee and in her report.

I do not understand why Deputy Fahey does not get it. The finding of the Ombudsman was that this was a flawed scheme, yet it is not Deputy Fahey who is on trial here today but the committee and the Oireachtas. The role of the Ombudsman is fundamental to proper administration and it is incumbent on us to uphold her findings.

Deputy Bobby Aylward

On a point of order, how is the committee on trial?

Chairman

We are not discussing angel dust or anything like it. We are not on trial.

Deputy Bobby Aylward

That allegation cannot be made.

Chairman

It is not a case involving angel dust.

Deputy Michael Creed

On a point of order, that is an outrageous comment which the Chairman should withdraw. He is supposed to rule impartially.

Chairman

I withdraw it. Deputy Fahey has a minute and a half.

Deputy Frank Fahey

I would prefer to have much more than a minute and a half to put my side——

Chairman

I will allow the Deputy more time.

Deputy Frank Fahey

——and correct the totally wrong and incorrect interpretation Senator Regan has put on the Ombudsman's report.

Senator Eugene Regan

I gave Deputy Fahey all of the references.

Chairman

Please let him reply.

Deputy Michael Creed

Senator Regan has obviously touched a nerve.

Deputy Frank Fahey

My statement was on the misunderstanding of officials in the Ombudsman's office about what the scheme was about in the period from 2004 to 2007. It is clear from the Ombudsman's report which I welcomed — it is a very comprehensive report, much of which I accept — that there is no finding of maladministration. I am not sure whether Senator Regan was present when I explained that point. In fact, the finding was removed following the submissions which I and the Department made in which we objected to the use of the word "maladministration". That was changed and the findings of the report are now significantly different.

Senator Eugene Regan

There is no difference.

Deputy Frank Fahey

It is unfair that the Ombudsman has continued to use the word "maladministration" and used it before the committee, given that she agreed to remove it from the findings of her report following her acceptance that it was having an adverse affect on the people involved. It is very unfair that in the speech mentioned by Senator Regan, on radio and before the committee the Ombudsman has returned to using the word. I repeat that the word has serious prejudicial connotations. Any finding made by the Ombudsman in respect of an action must fall within the legislative provisions of the Act. There is no legislative provision for a finding of maladministration. In my submission to the Ombudsman I stated the word "maladministration" had to be removed from her report and the findings made therein and it was. It is unfair to me personally. I have never been involved in any activity that could be described as incompetent or dishonest; these are the prejudicial connotations in using the word "maladministration".

In the Seanad Senator Regan stated there had been a finding in the Ombudsman's report of maladministration. I simply corrected the Senator and told him there had been no such finding.

Senator Eugene Regan

The Deputy is wrong. It is all over the report, as I explained.

Deputy Frank Fahey

The Senator is a tough operator. I was correcting the record for him. With regard to the other issues mentioned by him, the correspondence and meetings with the two fishermen concerned from Aran, I have adequately explained the reasons. I used one accident, off the coast of west Cork, to prove there was a need for a scheme such as this. If the allegation made by Senator Regan was true — that I was trying to assist and give an advantage to these two constituents — I certainly would not have removed the clause which ensured no one could make a financial gain or sell on the tonnage. Therefore——

Senator Eugene Regan

The Deputy made changes to the conditions at their request and behest.

Chairman

Please allow Deputy Fahey to reply.

Deputy Frank Fahey

I want to clarify the matter. I have a document which I will show Senator Regan after the meeting. They requested that the tonnage be capable of being sold prior to a ten year period. I changed it in order that it could not be sold at all.

Chairman

The Deputy has continued beyond his time. We must move on.

Deputy Frank Fahey

In fact, I did the opposite to what had been requested by the two constituents.

Senator Niall Ó Brolcháin

I would like to introduce the word "resolution". I have received numerous representations from the Byrne family, as most of the Deputies and Senators present probably have. We should not lose sight of the reason we are here. The Ombudsman has put in front of us a report on the specific case of the Byrne family. Having dealt with many cases during the years involving the Ombudsman, I know the process can be very harrowing for families which encounter great difficulties. The Byrne family lost two family members at sea, as well as a ship. That the matter has dragged on for many years cannot be good for the family. It is important, therefore, that we do not allow it to drag on further and bring it to a conclusion.

An interesting point was made by Deputy Ferris which I checked with members of the Byrne family, that it has been fishing continuously since the 1980s. That is crucial, as it appears the decision was made on the basis that the family had ceased fishing in 1982. Between the jigs and the reels between the Ombudsman and the Department, etc., it seems some crucial facts have been lost. The one crucial fact which has emerged today is that the Byrne family has been fishing continuously, as someone said, since Famine times. I have been assured the family was fishing in the 1980s, the 1990s and the 2000s. I remember Padraig Byrne serving on the Atlantic Dawn which was not commissioned until just before the scheme was put in place. This is new information which should be verified.

It has been stated clearly that in 2002 Deputy Fahey ceased to be Minister of State with responsibility for this issue. There are no departmental officials present.

Chairman

That will happen next week.

Senator Niall Ó Brolcháin

It is crucial that we quiz the departmental officials to ascertain whether they have this information, as we need to find a resolution.

The Ombudsman is a person of great integrity. Therefore, we should not treat the report lightly. Years of work have gone into it and it is the first report which the Ombudsman has brought before the Houses. It would be a grave mistake to dismiss it out of hand. While we must take the points she makes very seriously, at the same time it is crazy to engage in a witch hunt against Deputy Fahey who ceased to be the Minister of State responsible in 2002.

We should consider the matter from a humanitarian perspective, that of the Byrne family. The reference to tonnage and money is a red herring. If we consider the matter constructively, a solution to the problem could be found which would allow all sides to come out with integrity. I hope that will be the finding of the committee. The Byrne family are my concern and should be the concern of everyone. Having to continue experiencing this process must be very harrowing for them.

Was Deputy Fahey aware that members of the Byrne family had been fishing in the 1980s, 1990s and the 2000s? If he was not so aware, I cannot understand how he could have acted.

Deputy Frank Fahey

That statement was made by Deputy Ferris. I do not have the documentation before me, but my recollection is that the Byrne family did not return to fishing after this terrible tragedy, although one member of the family worked for a number of months afterwards as a deckhand. Mrs. Byrne was anxious that her family would not go back. I read this in the documentation which I am sure we can obtain. This is the first time I have heard the Byrne family was involved in fishing in the 1980s, 1990s and since. If that is the case, it would have been put forward before today. That statement was made by Deputy Ferris, but the evidence I have is that after the tragedy the family was not involved in the fishing industry.

Everybody in County Donegal involved in the fishing industry was fully aware of the lost at sea scheme which was advertised in the newspapers and discussed high and low. A considerable number of applications were received, while representations were made by Deputies.

Chairman

We need to suspend, as there is a vote.

Deputy Frank Fahey

I will make one final point. The Ombudsman's report makes certain recommendations. Like everyone else, I respect the Ombudsman. In addition to the fact that the application was a year late, there was also the policy decision taken.

Sitting suspended at 1.05 p.m. and resumed at 1.50 p.m.

Chairman

The next speaker is Senator Doherty, who has ten minutes.

Senator Pearse Doherty

Deputy Fahey said the Byrne family was not eligible because none of the immediate family was fishing in the period immediately before the scheme. One of the successful applicants was Ms Kelly from County Donegal, whose boat was the Rising Sea. Is it true that she was not able to take up the offer because she had no immediate family member to skipper the boat, as required by the criteria of the scheme?

Deputy Frank Fahey

I am not aware of the details of any other scheme. According to the Ombudsman's report, another boat qualified but there was nobody to fish in the boat so the owner did not take up the offer.

Senator Pearse Doherty

That was the case of Ms Carmel Kelly and the Rising Sea. She did not have an immediate family member to skipper the boat prior to the application. How did the Department ensure her application fulfilled the criterion that another family member had to be fishing prior to the introduction of the scheme?

Deputy Frank Fahey

As I said earlier, I did not have any involvement in the examination of applications or in their approval or rejection. I had no knowledge whatsoever of the applications.

Senator Pearse Doherty

Does the Deputy acknowledge that one of the six boats was unable to avail of tonnage because there was no immediate family member to work on the boat?

Deputy Frank Fahey

I have read that in the Ombudsman's report but I have no specific knowledge of the case.

Senator Pearse Doherty

Does Deputy Fahey believe it happened?

Deputy Frank Fahey

I do not know.

Senator Pearse Doherty

I can tell the Deputy that it did happen. The criteria which the Deputy says should have been applied to the Byrne family were not applied to Ms Carmel Kelly. Why is there a double standard in the application of the rule that there had to be an immediate family member to work the boat?

Deputy Frank Fahey

That is a question for the Department.

Senator Pearse Doherty

We will ask the Department. Deputy Ferris provided information to the effect that two individuals in the Byrne family were working in the fishing industry in the 1980s, the 1990s and in 2000-01. Did the Department query whether any of the Byrne family was involved in fishing prior to the scheme?

Deputy Frank Fahey

That was irrelevant because the Byrne family applied a year too late. The application was ruled out for that reason.

Senator Pearse Doherty

If the Byrne family was a year late how can the Deputy justify the fact that the application of the MFV Claire Marie was accepted, even though it was received later than that of the Byrne family, which was sent in December 2002 though the file was opened in January 2003? The letter stated: “We will afford you the opportunity to make a retrospective application under the lost at sea scheme.” Given that the criteria were relaxed for the Claire Marie should they not also have been relaxed for the Byrne family, were the family to meet all the other criteria?

Deputy Frank Fahey

What is the date of that letter?

Senator Pearse Doherty

It was issued on 26 March 2003.

Deputy Frank Fahey

I had left the Department at that stage. I only heard of that case when it came up at the committee last week.

Senator Pearse Doherty

Deputy Fahey said it would be irrelevant if documentation could be provided showing that the Byrne family was involved in fishing at the time the scheme was introduced because its application was late. However, another late application, later than that of the Byrne family, was received and assessed. If we can show that the Byrne family was involved in fishing at the time the scheme was introduced does the Deputy believe it is fair to reject its application, given the fact that the family was not aware of the scheme?

Deputy Frank Fahey

I made a policy decision based on all the evidence I had seen in the preceding years. I do not accept what the Senator is saying. I do not believe the Byrne family qualifies for compensation in any respect.

Senator Pearse Doherty

I am not asking about compensation. Deputy Fahey said that everyone involved in the fishing sector in Donegal was fully aware of the scheme. If documentary evidence shows that the Byrne family was involved in fishing at the time the scheme was introduced, will the Deputy retract his statement and confirm that it was possible the Byrne family was not aware of the scheme?

Deputy Frank Fahey

It is a hypothetical question.

Senator Pearse Doherty

It is not a hypothetical question. If documentary evidence shows that the family worked in the industry——

Deputy Frank Fahey

It was a decision of the Department of Agriculture, Fisheries and Food to reject the recommendations of the Ombudsman.

Senator Pearse Doherty

I am not talking about the Ombudsman.

Deputy Frank Fahey

I introduced a policy decision and have come before the committee to explain and defend that decision.

Senator Pearse Doherty

That is the key point. The Deputy has made an accusation against the Byrne family. He said that if they were involved in the fishing industry the family members would have full knowledge of the scheme. If we can prove they were working in the sector at the time, such as on the Atlantic Dawn, the MFV Veronica or any other boats they claim to have been working, will Deputy Fahey acknowledge that some people in the sector who were eligible for the scheme may not have been aware of it because they had not seen the advertisements?

Deputy Frank Fahey

Obviously, these people were not aware of the scheme but that is their problem because the scheme was advertised.

Senator Pearse Doherty

Will Deputy Fahey acknowledge that the Department of the Marine had records of the sinking of the boat at the time of the accident?

Deputy Frank Fahey

I asked Department officials to check with the marine survey office to get an idea of the number. I did not ask for information about specific cases and the Department did not look for such information. This was a long time before any decision was taken as to whether a scheme should be introduced. When the scheme was introduced it was for people involved in the fishing industry at the time. This is the first time I have heard that the Byrne family was involved in the fishing industry in the 1970s, the 1980s and 1990s.

Senator Pearse Doherty

The Deputy seems to be agreeing that if the Byrne family can show it was involved in the fishing industry it shows that some people were not aware of the scheme, even though it was advertised in the fishing magazines.

Deputy Frank Fahey

In a recent case a person who had made a late application for a grant for a new house took the case to the High Court but the court decided in favour of the Department. There are many cases in which people are not aware of schemes or are late in applying but it does not change anything.

Senator Pearse Doherty

The Deputy made a statement to the effect that everyone in the fishing industry in Donegal would have known about the scheme. However, the Byrne family was involved in the industry at the time.

Deputy Frank Fahey

Why has the Senator not come forward with this information before? I have said what I said today on many occasions. I have said it in the Dáil and at other times and I am surprised that Senator Doherty is now pursuing the matter based on information which has been provided by Deputy Ferris.

Senator Pearse Doherty

I am pursuing the matter because I want to be told the reasons the Byrne family was refused. I acknowledge that Deputy Fahey was not the Minister at the time but he said the family was refused because it was late in applying. However, the Claire Marie provides a precedent for retrospective applications in exceptional circumstances so there is no reason for the Byrne family’s application not to be dealt with accordingly. He also said the family was refused because the Department believed it was not involved in the fishing industry immediately before the scheme was introduced. If documentary evidence proves otherwise, does the Deputy now believe the family’s application should have been assessed? Does he believe they should have been asked if they were involved in the industry?

Deputy Frank Fahey

All the evidence available to me since the issue came up suggested the Byrne family was not involved in the fishing industry.

Senator Pearse Doherty

To what evidence does the Deputy refer? Did he or his officials ask the family?

Deputy Frank Fahey

I left the Department in 2002. The documentation suggests the Byrne family retired from the industry after the accident. One member continued for some time but had stopped at the time of the scheme. The Senator's questions are now a matter for the Department, not for me.

Senator Pearse Doherty

All the documentation and the information from the Standards in Public Office Commission suggest the Department was playing fast and loose with the rules. I talked to Deputy Fahey earlier, and other Ministers have put on public record, that the late application was the reason for the refusal. I have shown that the Department allowed the late application involving the MFV Claire Marie. It was a condition of the scheme that the boat needed to be owned and skippered by the applicant, yet Ms Carmel Kelly was granted tonnage under the scheme which she could not take up because there was no immediate family member. There are serious questions to be answered on how the Department was satisfied that an immediate family member was fishing before the scheme was introduced.

There is the case of Mr. Thomas Doyle. Let me read the letter the then Minister, Deputy Fahey, sent to Mr. Patrick Mullen, which states that the replacement vessel be owned and skippered by the applicant or one of his immediate family relations. I question what evidence is available to show that Mr. Thomas Doyle met that condition for the boat he listed on his application form, or that an immediate family member is skippering that boat. It is widely known in the community that he is not skippering that boat, that he is skippering the boat of his relative and that no immediate family member is skippering the boat listed in the application.

Deputy Frank Fahey

I dealt with the policy issue. I agreed the terms of reference but from the time that applications were received in the Department, I had no further involvement. One of the reasons that the Department has indicated clearly that it cannot accept the Ombudsman's recommendations is as Senator Doherty pointed out, namely, there would be many more who could make a legitimate case that they should also be included. I think it is clear from what Senator Doherty states that the Department was correct in reaching the decision not to open the issue again.

Senator Pearse Doherty

The point I am making is that in some of the applications that were granted, the Department knew full well that the applicants would not be able to take up the tonnage, as in the case of Ms Carmel Kelly and the MFV Rising Sea. In relation to Mr. Thomas Doyle, I believe that the criteria were not being applied fairly and we have correspondence of a meeting between the then Minister, Deputy Fahey, and the Tánaiste, Deputy Mary Coughlan, and Mr. Pat the Cope Gallagher, MEP, in relation to this individual.

Deputy Fahey states that as the then Minister, he gave no direction in terms of the application, yet he stated quite categorically that he wanted to ring-fence the six to eight genuine cases. Alongside that note, is a note from Department officials that states that the official agrees that the circumstances surrounding the Mullen and Flaherty claims are deserving of sympathy. It then goes on to say that the overriding problem is where it would stop in addition to the six other cases they knew about. They talk about two cases and then refer to six others and then the Deputy talks about ring-fencing six to eight cases.

Chairman

We are way beyond our time.

Deputy Frank Fahey

As I pointed out earlier, that discussion took place at a very early stage. In the discussions I was having with officials, there was no decision taken to introduce a scheme at that stage. It was part of the discussion that took place around my anxiety that all genuine cases were included and the Department's concern that there could be a massive number of applications.

Senator Pearse Doherty

The Deputy refers to "all genuine cases" and six to eight cases. Does Deputy Fahey refute the comments by Mr. Dermot Donegan in his correspondence of 19 July 2000, where he states that the Minister then suggested that Mrs. White and himself should meet him next week to discuss the possibility of allowing the replacement, in particular in the case of his constituents? It all boils down to the fact that Deputy Fahey created a scheme to the benefit of two individual constituents. He wanted to ring-fence it to the number of people that were known by the Department. He did not give two hoots about the Byrne family who were eligible. Different criteria were used time and time again, perhaps not by the then Minister, because he was not in the Department at the time, but by officials to block them from that opportunity.

Deputy Frank Fahey

I have absolutely refuted that suggestion. I have proven today that is not the case.

Senator Pearse Doherty

Does Deputy Fahey refute Mr. Donegan's suggestion?

Deputy Frank Fahey

I want to put it clearly to Senator Doherty that if I had wanted to assist my two constituents, I would not have taken away the most significant element of the scheme which was of benefit to them.

Senator Pearse Doherty

I want to have a point clarified.

Chairman

Will the Senator be brief as he has gone four minutes over his time?

Senator Pearse Doherty

Does Deputy Fahey refute the minutes in relation to the MFV Joan Patricia on the use of replacement capacity? Does he refute those minutes dated 19 July 2002, signed by Mr. Dermot Donegan, which state that the Minister instructed him to meet Mrs. White to discuss the possibility of allowing replacement, in particular in the case of his constituents? Does he refute that?

Deputy Frank Fahey

Yes, I do. I had no interest in simply looking after two applications.

Senator Pearse Doherty

So he is wrong.

Deputy Frank Fahey

I had an interest in looking after every applicant, including a number in County Donegal, who had made a case ——

Senator Pearse Doherty

Is this a false statement by an official of the Department?

Deputy Frank Fahey

—— including the Killybegs Fishermen's Organisation which had made a case for a number of people to be included in the scheme.

Senator Pearse Doherty

Is this a false statement by an official of the Department?

Chairman

A final supplementary, Deputy Creed. Ten minutes supplementary questions.

Deputy Michael Creed

Deputy Fahey has made play on words of maladministration or contrary to fair and sound administration, but I think that point has been well and truly dealt with. I ask Deputy Fahey if he would accept that following the line of questioning by Senator Doherty, that that clearly is the evidence, that the woman who was allocated the quota could not take it up, people who were late who were subsequently allowed in, others who were late were not allowed in at all, this is the ringing proof of the quotations in the Ombudsman's report that stated that the design of the scheme and the manner in which it was advertised were contrary to fair and sound administration, and its overall design was faulty. Would he accept that is the proof that some people who were late were in and some people who were late were locked out? Some people got a quota that they could not take up and should have been excluded from the scheme. Some people got letters telling them that they were beneficiaries when they could not meet the criteria, but they were subsequently approved. It was a mish-mash. It was flying by the seat of your pants and designed in a faulty manner. Does the Minister accept that?

Deputy Frank Fahey

No, I do not accept that assertion. I am quite categorical that when the policy was introduced and the terms of reference were set, the matters which were of concern to me were adequately dealt with. I have no control over how the situation was dealt with after I left the Department.

Deputy Michael Creed

Deputy Fahey is sticking to his guns and he fluctuates between his role as Minister and the policy. However, we see his thumb print of involvement in individual cases, as minuted in notes on 19 July 2000 by Mr. Dermot Donegan that refer to meeting with constituent to see how that case could be resolved. That documentary evidence is available to anybody who wants to see it. If Deputy Fahey's role was purely on the policy side, surely it was incumbent from a policy point of view that we would have clean hands on this issue, that the Department would communicate with all 120 cases for which it had files and would write 120 letters instead of 16. Will Deputy Fahey confine his reply to policy? Would that not have been the appropriate policy response, given that there are adverse finding against both Deputy Fahey and his officials from the officials' point of view if Deputy Fahey says, "I had nothing to do with this"?

Deputy Frank Fahey

After I left the Department, the cases to which the Deputy refers were raised.

Deputy Michael Creed

I am asking the Deputy for his opinion. If he thinks his role was policy and the officials' role was administration, if we make that distinction, does he not believe with the benefit of hindsight that the mistake in terms of giving effect to the policy decision he took was that officials did not write to all 120 applicant cases?

Deputy Frank Fahey

As I stated earlier and there is not point in going back to this situation, this scheme was ——

Deputy Michael Creed

It is a "Yes" or "No" answer. Should the officials have written to everybody?

Deputy Frank Fahey

No, they should not, because the scheme was not about 120 boats which had been lost at sea.

Deputy Michael Creed

How does Deputy Fahey know the circumstances of those 120 boats?

Deputy Frank Fahey

As I said, the scheme applied to people who were in this fishing industry in 2000.

Deputy Michael Creed

Those files were never trawled.

Deputy Frank Fahey

There were many files regarding boats which, for instance, had gone out of service, and there was no point in writing to those people. There were files on boats which were rotting in harbours and we had one such instance that caused a great deal of discussion.

Deputy Michael Creed

May I put it to the Deputy ——

Deputy Frank Fahey

Whatever efforts the Deputy wants to make to try to twist this around to something else, it was exactly the scheme that was introduced. With due respect, what Senator Doherty has come up with is a number of cases that were at issue after I left the Department. I have no responsibility for those issues.

Senator Pearse Doherty

On a point of information, Deputy Fahey was in office when it was granted to the Rising Sea and another vessel. I question whether the same criteria were being applied as were being applied later in terms of the applications. The Deputy was in the Department at those times.

Deputy Frank Fahey

May I add that when the applications came in, I had no involvement whatsoever with them. The assessment of the applications was completely done by the officials. The issues that arose after 2002——

Senator Pearse Doherty

No. The question was how the MFV Rising Sea was eligible for the scheme given that the owners could not provide an immediate family member to take up the tonnage. They could not before and they could not do it afterwards.

Deputy Frank Fahey

I am sure the departmental officials can answer that question. I did not have any involvement, no more than any Minister. No Minister is involved with applications for any grants. If the case is made that a wrong decision was made by politicians, perhaps it is brought to the Minister's attention but none of these applications was brought to my attention. I had no involvement in decisions taken to reject or accept the applications. I had no knowledge of them for a number of years afterwards until this became an issue with the Ombudsman.

Deputy Michael Creed

Deputy Fahey appears to be shifting his position.

Deputy Frank Fahey

No, I am not.

Deputy Michael Creed

Deputy Fahey should let me finish.

Deputy Frank Fahey

Deputy Creed might like to shift my position but he will not.

Deputy Michael Creed

Deputy Fahey said he was surprised there were not more applications and beneficiaries but the handwritten note of Deputy Fahey instructs the Department on how it can ring-fence the scheme to the six or eight genuine cases. Deputy Fahey cannot have it both ways. He cannot say he wanted a scheme that embraced everyone with a grievance and that he wanted to put this up in lights and tell everyone with a slim chance of being a beneficiary to apply so that the Department can adjudicate in a fair and impartial manner. His micromanagement of the scheme amounted to six or eight genuine cases. No effort was made to define a genuine case in any documentation. The Ombudsman, Ms Emily O'Reilly, 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 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.

If Deputy Fahey's defence is that he made the policy decision and it was up to the officials to deal with administrative design, the Ombudsman is saying Deputy Fahey was involved in the detail of the design of the scheme, the beneficiaries of which ultimately were two constituents of Deputy Fahey who he met on 5 February to discuss the detail of it and the likely criteria to qualify. Two of these beneficiaries received 75% of the scheme.

Deputy Frank Fahey

They did not receive 75%.

Deputy Michael Creed

It was 71% or 72%.

Deputy Frank Fahey

They did not receive that either.

Deputy Michael Creed

Deputy Fahey is splitting hairs. He knows the point I wish to make and it is correct. The Minister cannot say it was a scheme for everyone but design it for a handful of known cases and refuse to consult the 120 files in his Department. He cannot say he knew definitively they would not benefit. All it would require was a letter and a stamp informing people that the Department was designing a scheme and inviting people to apply if they believed they could benefit under the criteria. The Minister designed it around known cases — specifically the two constituents he met — communicated further with the chosen 16 and did not care a tuppenny damn about the 120 files in his Department. No one disputes the principle of the scheme but the then Minister was involved in micromanagement, which channelled the scheme to benefit a handful. This flies in the face of all Deputy Fahey said about having a large scheme to include everyone.

Deputy Frank Fahey

I would like to answer that.

Deputy Bobby Aylward

On a point of order, there is an allegation Deputy Fahey designed the scheme around two people in his constituency. That is false.

Deputy Michael Creed

That is what the Ombudsman said.

Deputy Bobby Aylward

Deputy Fahey can answer that.

Chairman

Members should let Deputy Fahey reply.

Deputy Frank Fahey

I have already dealt comprehensively with the points made by Deputy Creed but I will deal with them again. In the process of deciding on a policy decision, I had quite an amount of discussion and negotiation with officials as to the desirability of the scheme. The section referring to ring-fencing six or eight cases happened at an early stage in discussions on whether we should introduce a policy change. I was very much involved in those discussions with officials. I wanted to ensure we brought in the correct scheme and in response to the view of officials that there were a small number of genuine cases but a large number of spurious cases would be proposed, in response to the memo referring to a small number of cases, my response using the word ring-fence should be interpreted as my wish to ring-fence or restrict the scope of any scheme to only genuine, bona fide cases. My use of the word "ring-fence" was in response to a note from Ms Sara White, assistant secretary, on 11 November 2000 in which she expressed concern regarding any such scheme or where claims thereunder would stop. I was aware of my officials' concern that the scheme could open floodgates on applications and their wish to limit the numbers but this did not unduly concern me. My overriding concern and my intention in changing the policy was to introduce a scheme that would allow genuine cases to be covered, regardless of how many that would amount to. My reference of six to eight was simply a reiteration of what I had been told at the time by my officials. These were indicative numbers only, no more than that and had no influence on my input into the formulation of the eligibility criteria of the scheme.

Yes, I was intimately involved in the preparation of the policy change ——

Deputy Michael Creed

And design.

Deputy Frank Fahey

Yes, I had an input into the design of the scheme but once the terms of reference were agreed and following the changes made to restrict the scheme by way of the non-sale of tonnage and the scheme was advertised, I had no more involvement in the investigation of applications received. I stand over the involvement I had regarding this scheme and I stand over the way the scheme was researched. I reject the idea that I gave any advantage to anyone. I took the example of one accident that happened off the coast of west Cork and I asked the people involved to prove it was a genuine accident, that they had lost tonnage and that they had not been able to get their boats back. They were pushing for tonnage that could be sold. In the document they presented, which I looked at and which the Secretary General commented on in response to a question this morning, I removed the condition that tonnage could be sold.

Deputy Michael Creed

The scheme was announced in 2001. There was much to and fro between constituents, would-be applicants outside the constituency and officials. On 22 September 2000, while this was going on in the Department, Mr. Paul Dolan was in the maritime safety division of the Department. He was asked about issues relating to the scheme and made a point about the information on file in the Department about the number of boats that had sunk. He stated that providing more accurate and detailed information for the sea-fisheries division would likely require that all of the 120 files would have to be reviewed individually. Furthermore, he stated that as the majority of the files were held in one or more storage areas throughout the building complex, "my best guess is that this task would take some time to complete". Deputy Fahey could not have known the detail of those 120 cases and whether they would qualify, notwithstanding his encyclopaedic knowledge of this area. Would it not have been advisable, from the point of view of policy, to trawl the cases to see how many might have qualified? There was repeated advice to the Minister that this could open the floodgates but he did not carry out a comprehensive search. Would it not have been advisable to write to every one of the people who were on file when the scheme was designed? This would have provided a safety net and ensured a fair, even-handed approach. Those people could be notified of the scheme and invited to fill in an application form if they felt they were entitled to. It would only have cost the price of a stamp.

Deputy Frank Fahey

May I respond?

Chairman

Briefly. I will allow one more supplementary from Deputy Ferris.

Deputy Frank Fahey

When Deputy Creed becomes a Minister he will find that no Department forensically establishes every applicant for a scheme. The Minister sets the general terms of the policy and the terms of reference of the scheme. The scheme is then advertised appropriately, targeting the people whom we want to apply.

Deputy Michael Creed

It is advertised to the people we want to apply.

Deputy Frank Fahey

The people we wanted to apply were those who were still involved in the fishing industry and who had lost boats at sea.

Deputy Michael Creed

These were the people with whom Deputy Fahey had consulted.

Deputy Frank Fahey

As pointed out by Mr. Brendan Tuohy, there was no necessity to undertake a trawl to establish every possible person who might have qualified for the scheme.

Deputy Michael Creed

There were people Deputy Fahey wanted to apply and others he did not want to apply.

Deputy Frank Fahey

That is not the way application processes are dealt with in any Department. One tries to establish what one wants to achieve and advertises accordingly. We advertised in the fishing papers to reach people in the fishing community. I introduced a number of schemes where the fishing organisations were involved and I allowed them to have an input into the policy. I am satisfied that the way the scheme was designed and its target audience were correct.

Chairman

I call on Deputy Ferris for a last question.

Deputy Martin Ferris

Did the former Minister have any meetings with one or more of the beneficiaries of the scheme when he was drawing up the policy for the scheme?

Chairman

Is that the only question?

Deputy Bobby Aylward

I have a question.

Chairman

I allowed ten more minutes but that has stretched to 25. However, I will take supplementaries — has Deputy Ferris finished?

Deputy Martin Ferris

I have not finished.

Deputy Frank Fahey

I will take all the supplementary questions members have.

Deputy Martin Ferris

Is it true that Deputy Fahey and departmental officials had several meetings with two constituents of his prior to the policy being determined? Does he accept that the scheme was restrictively advertised in the Marine Times and some other newspapers and that people who did not regularly read those papers could have missed it?

Deputy Frank Fahey

The two people referred to came into my office on a number of occasions to make representations. I consulted with them and used their accident as an example. Officials warned me that such a scheme was open to abuse and might lead to a plethora of applications so I put a number of questions to the two men to enable me to determine how an accident could be proved and whether the right tonnage applied.

Deputy Martin Ferris

These are two of the Deputy's constituents.

Deputy Frank Fahey

Yes. As I stated to officials from the Office of the Ombudsman, I used this example to prove to myself and to the Department that there were genuine cases where boats were lost at sea and had not been replaced by people who were still involved in the industry. As the documentation shows, my constituents put forward a case to sell the tonnage but I decided that such a provision should not be allowed.

Deputy Martin Ferris

In the initial meeting with Mr. Tony Faherty he asked for an upgrade from an aquaculture to a polyvalent licence, as he had lost his boat, the MFV Joan Patricia, in 1983. Deputy Fahey’s advice was that he would have to get replacement capacity.

Deputy Frank Fahey

Where is the evidence of that?

Deputy Martin Ferris

It is in a letter. It reads:

I was contacted by the Minister on behalf of a constituent, Mr. Tony Faherty, who currently holds a licence for aquaculture and will wish to upgrade his licences to polyvalent licences. I explained that Mr. Faherty would be required to remove the equivalent capacity from the current sea fishing boat register. The Minister then informed me that Mr. Faherty was the owner of a boat that went down in 1983 and the capacity of that vessel should be used as a replacement.

I have no problem with this. Deputy Fahey knows where I live and that I have seen a lot of tragedies arising from the loss of boats in my lifetime. I will not castigate him for making representations on behalf of his constituents or for designing a policy around their experiences. However, I will castigate him for restricting the scheme to between six and eight people. The losers are families——

Deputy Frank Fahey

My intention was to make the scheme wide enough so that everybody who deserved compensation qualified for it. The Ombudsman has identified an issue between officials and myself. I wanted a scheme which accommodated genuine cases but officials wanted it to be as tightly controlled as possible so that there would not be abuses. I tried to ensure we got the right scheme. I received representations from all over the coast but I put one example on file to prove there were genuine cases. I examined a number of strong cases in Donegal, west Cork and Kerry but I used one accident to persuade officials that a scheme should be introduced. That accident involved two boats, belonging to Mr. Tony Faherty and Mr. Paddy Mullen.

Deputy Martin Ferris

When did the MFV Joan Patricia go down?

Deputy Frank Fahey

In 1982 or 1983.

Deputy Martin Ferris

Where did she sink?

Deputy Frank Fahey

The two boats sank off west Cork.

Deputy Martin Ferris

That is my point.

Deputy Frank Fahey

The other question was on advertising. Every scheme promoted by the Department, including those for licences and quotas, has been advertised in the three or four marine newspapers in the same way as this scheme. Nobody in the fishing industry had any difficulty about the Department's way of advertising schemes in that period. I understand the same applies today.

Senator Eugene Regan

Nothing that has been said today was not put to the Ombudsman by Deputy Fahey before she came to her conclusions. Nothing that has been said today suggests her findings and recommendations should be ignored. In Appendix D she writes: "My finding of maladministration arises from my conclusion that, having regard to the nature and purpose of the scheme, its design lacked equity and it was not properly advertised." What she is really saying is that the scheme was rigged for Deputy Fahey's two constituents. He consulted with the constituents and discussed the very criteria of the scheme with them. He can dress it up as he likes but this scheme was designed for his two constituents. As it turned out, they were the main beneficiaries of the scheme and he cannot suggest he would have been happy if 100 had qualified.

The Ombudsman quotes the Minister for Transport, Deputy Noel Dempsey, as saying: "The most important part of the job of a public representative is ensuring through our work that the system works for every citizen, not just the ones who come to our clinics." The former Minister, Deputy Fahey, rigged the scheme for a very select few and acted against the public interest in doing so.

Deputy Frank Fahey

That was not a finding of the Ombudsman.

Senator Eugene Regan

I quoted the finding in question.

Deputy Frank Fahey

The Ombudsman made no finding against me in regard to the two constituents. She outlined the process that took place. I put my case clearly to her and her officials and I am satisfied that, by and large, they accepted the case I made. I agree with some of their conclusions while I disagree with others but I was happy with the Ombudsman's report.

Senator Eugene Regan

In that case we can adopt the report. We do not need to spend any time on it.

Deputy Frank Fahey

I could be here for ever more and Senator Regan would not be convinced.

Senator Eugene Regan

I am very open-minded.

Deputy Frank Fahey

The Senator is not open-minded. He will never be convinced of the bona fides of my case, whereas other members might be. He is trying to twist a number of things but he will not succeed.

Senator Eugene Regan

I base my case on contemporaneous documentation which shows Deputy Fahey rigged the scheme

Deputy Bobby Aylward

We heard some information today that we had not previously heard, such as the fact that a member of the Byrne family was engaged in fishing in the 1980s, the 1990s and 2001. That puts a different complexion on things and will have an impact on the decision we arrive at.

The Ombudsman received more than one complaint. She refuted five but upheld one, in respect of the Byrne family, and that is why we are meeting today. Most speakers have focused on Deputy Fahey and suggested he was corrupt when bringing in the scheme. They refer to two people in his constituency but I am sure more people from his constituency were there.

Deputy Martin Ferris

There was one from Kerry.

Deputy Bobby Aylward

I am sure there were people from Kerry and Donegal, Dunmore East in Waterford and off the Wexford coast. There is an insinuation that the scheme was designed for his constituents but there is no proof. The last speaker said the scheme was "dressed up" but he is dressing things up to suit his own cause. When the Ombudsman was before this committee she said she was happy with the way Deputy Fahey had handled the scheme. She made no reference to Deputy Fahey setting the scheme up to suit two constituents. Anybody who suggests otherwise needs to prove it.

Deputy Frank Fahey

I have had to put up with all kinds of scurrilous allegations for a number of years, mainly from members of Fine Gael but added to by Sinn Féin under privilege in the Dáil and Seanad. I have had to put up with false allegations about this scheme but those allegations are entirely untrue. There has been an attempt to row back on them today but it has only resulted in new allegations being made. I am absolutely satisfied that the way the scheme was handled and the policy I took were proper and correct. I have no regrets whatsoever about the way it was done.

Deputy Tom Sheahan

A Cabinet Minister of the time told me the lost at sea scheme was excellent but that "Fahey hijacked it for two of his own boys". The former Minister said allegations had been made against him but they were all upheld by the Ombudsman's report. One line stands out — the one which suggests to the former Minister that "it would be advisable for us to discuss prior to you making a final decision". That screams "Stop".

Senator Pearse Doherty

Deputy Fahey makes much of the question of ring fencing but my question relates to the part where he says: "I want to license those boats, if we can". Officials definitely interpret that as referring to six or eight boats.

The former Minister says he has no regrets over how the scheme was handled, advertised or administered. If the Minister could be convinced that the Byrne family was in the fishing industry prior to the scheme being announced, and if he could be convinced that for some reason they did not see any of the three magazines in which the weekly advertisement was placed, would he believe, in hindsight, that it was a pity the family was not notified? If it can prove it was involved in the industry and had applied at the deadline it would have been eligible for replacement tonnage. It is likely that the aims and objectives of the scheme — to maintain the family tradition of fishing which dates back to the time of the Famine — could have been upheld.

Deputy Frank Fahey

The main reason the Department rejected the application of the Byrne family was that it was made 13 months after the closing date. I have tried to explain that there was a policy element to this which was not understood by the Office of the Ombudsman in the early years of the investigation. There is no doubt in my mind that the Department's decision regarding the payment of compensation in this case is right and I support it.

I regret the fact that Deputy Tom Sheahan, a first-time Deputy, abused the privilege of this House at the last meeting. He has abused it again today and it shows him in a very poor light. If Deputy Sheahan wants to name the ministerial colleague to whom he referred he should do so outside the House and I will deal with the Deputy accordingly.

Chairman

On behalf of the joint committee I thank Deputy Fahey for his presentation and for answering questions. The committee will adjourn until next Wednesday, when we will hear from departmental officials.

The joint committee adjourned at 2.40 p.m. until 11.30 a.m. on Wednesday, 12 May 2010.