JOINT COMMITTEE ON AGRICULTURE, FISHERIES AND FOOD debate -
Wednesday, 12 May 2010

Lost at Sea Scheme: Discussion with Department of Agriculture, Fisheries and Food

Chairman

I welcome Mr. Tom Moran, Secretary General, Dr. Cecil Beamish, assistant secretary, and Mr. Paschal Hayes, principal officer, Department of Agriculture, Fisheries and Food, who are appearing before the committee to make a presentation to the committee on a special report by the Ombudsman on the lost at sea scheme.

Before I call Mr. Moran to make his presentation, I draw witnesses' attention to the fact that members of the committee enjoy absolute privilege but the same privilege does not apply to witnesses appearing before the committee. 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 by name or in such a way as to make him or her identifiable. I now invite Mr. Moran to make his presentation.

Deputy Michael Creed

On a point of order, before Mr. Moran begins, I wish to be associated with the Chairman's words of welcome. When we met initially to consider how this committee would discharge its responsibilities, as charged by the Oireachtas to investigate this report and make a recommendation, one of the objectives we set ourselves was that the committee would meet with and interview all those named officials in the report and all those officials who are identifiable by virtue of documentation released under the Freedom of Information Act who had dealings within the Department and with the former Minister and with others identified in the debate as having been critical to the creation and administration of the lost at sea scheme.

While I welcome Mr. Moran and his colleagues, there are ten officials who are identifiable in either the report or the documentation released. They are Mr. Joe Ryan, Mr. Dermot Donegan, Ms White, assistant secretary, Mr. Randal Plunkett, Ms Josephine Kelly, Mr. James Moloney, Mr. Raymond Taylor, Ms O'Mahony, Mr. Paul Dolan and Mr. Carroll. I understand the latter is probably retired but they are all critical witnesses. I understand the law, following the Carthy inquiry, as it relates to the compellability of witnesses. We do not have powers to compel witnesses to attend but if we are to engage in a serious way, it is critical that we engage with those officials and, obviously, with Mr. Moran and his colleagues who are present, but it will be difficult for us to carry out our functions without those officials.

I understood that when we communicated this request for witnesses today to Mr. Moran and the Department that was the detail we conveyed. I consider Mr. Moran and his colleagues as critical but absent colleagues to be as critical or, perhaps, more critical on the basis that they were present in the Department when the scheme was created and administered. We cannot discharge our duties if we do not have the appropriate witnesses appearing before the committee.

Deputy Seán Sherlock

On that point I anticipate that today we will have a statement from Mr. Moran and his colleagues which will not change the position the Department took in respect of this complaint which was made to the Ombudsman. I anticipate that the correspondence which was entered into with the Ombudsman by Mr. Moran and his Department will attest to their position and I imagine the statement today will reflect the position so there will be no change. From my perspective, there is a view that Mr. Moran and his officials are giving a view on a report in which they had no active part in terms of the timeframe around when the complaint was made. For example, if the report was drafted in November 2008, it could be argued that Mr. Moran and the officials appearing before the committee today had no direct impact or no direct involvement in the designation or design of the scheme when it was implemented. For us to get down to the nuts and bolts of the culture that existed within the Department at the time, it would be important for us to hear the views of those officials who were actively involved in designing the scheme. We are now getting a contemporaneous view from Mr. Moran and his colleagues. I have no problem with that but it should be extended so as to reflect the views of the officials who were at the coalface when the scheme was being designed. Anything short of that will leave this committee devoid of full and frank assessment in terms of being able to hear all the witness and all the parties who were involved in this vital issue.

Deputy Martin Ferris

I welcome the delegation. I support the two previous speakers. It is essential that we get to the bottom of the entire issue in the interests of public confidence and also in the interests of the Byrne family and the lost at sea scheme. That is of major importance because on reading the Ombudsman's report it is clear that some of the advice given was contrary to what actually happened. It is essential that we as public representatives have the opportunity to speak to those officials and question them on the advice given to the then Minister.

Deputy Bobby Aylward

I welcome Mr. Moran and his colleagues. There is an onus on us in our deliberations to compile a report and lay it before the Houses of the Oireachtas. As other speakers have said, there are officials named in the Ombudsman's report of whom we would like to ask questions. With no disrespect to the officials present who, I accept, are fully briefed on what happened, hopefully when they leave today we will have a clearer picture of what happened in respect of the scheme as presented. If we wished to call some of the witnesses named in the Ombudsman's report to clarify issues, would they be allowed appear before the committee at a later stage before the report is laid before the Houses of the Oireachtas?

Chairman

I ask Mr. Moran to make his presentation and respond to the request from the four Deputies.

Mr. Tom Moran

I thank the Chairman. If it is acceptable I will deal with those particular questions after I have made my opening statement.

Deputy Seán Sherlock

On a point of order, will Mr. Moran deal now with the points we have raised?

Chairman

Will Mr. Moran facilitate the Deputies?

Mr. Tom Moran

I will gladly deal with the issue. I understand the points being made by members.

The lost at sea scheme was initiated by the then Department of the Marine and Natural Resources which in 2002 became the Department of Communications, Marine and Natural Resources. In 2007 the Department of Agriculture and Food became the Department of Agriculture, Fisheries and Food. Therefore, when we took over the sector, the lost at sea scheme report was the subject of an active file and in gestation. We dealt with the work in progress and interacted with the Ombudsman, which led to the final report which the committee has been discussing. Therefore, the question was how the Department which had become responsible for the sector would deal with the Ombudsman in the position taken and with the assembled commentary in terms of the interaction that had taken place in the run up to production of the report. Therefore, we are dealing with the report of the Ombudsman which was submitted to the Oireachtas as part of the normal procedure in such a situation and taking a view on its findings. We have already made our position clear.

Many, if not all, of the officers listed by Deputy Creed no longer work in the Department of Agriculture, Fisheries and Food. It is a matter for the committee to decide how it chooses to work.

Deputy Michael Creed

Will Mr. Moran facilitate the attendance before the committee of those who are still in the Department?

Mr. Tom Moran

There are one or two, if any, but there will be no difficulty in having people appear before the committee. I am accompanied by Dr. Cecil Beamish, the assistant secretary in charge of the fisheries division of the Department, located in Clonakilty, and Mr. Paschal Hayes, the principal officer in charge of the division who would have dealt with the issue had he been in place at the time. I take the points made and emphasis again that the people in question are not now working in the Department. It is a matter for the committee to decide if it wishes to invite them to appear before it. I suggest we have our discussion and that it is a matter for the committee to decide whether it wants to have any other discussion.

Deputy Michael Creed

I suggest Mr. Moran assist the inquiry by identifying those who are still in the Department. We could then request them to appear before the committee. If Mr. Moran is aware of the locations in other Departments of the aforementioned ten named individuals, I suggest he inform us and we could then bring them here. I understand he does not have a difficulty with our request to bring the individuals concerned before the committee.

Mr. Tom Moran

I understand from where the committee is coming on the matter. However, I suggest that discussion be informed by the discussion we will have today. As always, we will facilitate the workings of the committee.

Chairman

I thank Mr. Moran.

Mr. Tom Moran

I am very pleased to have the opportunity to outline the Department's response to the special report of the Ombudsman on the lost at sea scheme and the reasons for its response to the report. On 14 December 2009 the Ombudsman submitted a special report to the Dáil and the Seanad, in accordance with subsections (5) and (7) of section 6 of the Ombudsman Act 1980. The Ombudsman took this action because the Department of Agriculture, Fisheries and Food had disagreed with the findings and recommendations she had made arising from her investigation of a complaint made by an unsuccessful applicant under the lost at sea scheme.

The Department and I have and always have had immense respect for the Office of the Ombudsman. It plays a very important role in public administration, acting as a safety net for those who may not have succeeded, for whatever reason, in obtaining their full rights or entitlements or perhaps not receiving a satisfactory service from a public body. Given the wide range of schemes and services operated by the Department and our extensive customer base, there has been considerable engagement with the Office of the Ombudsman since its establishment. We have always welcomed the opportunity to put right errors or omissions brought to our attention by the Ombudsman. The principles of good governance referred to by the Ombudsman in her various publications have always underpinned the Department's approach to service provision. We take our customer service obligations very seriously and where we fall short of our own high standards, we are happy to acknowledge that fact and put things right. The Ombudsman and her team have put a great deal of time and effort into undertaking the investigation as well as compiling the special report to the Oireachtas and, although the Department has disagreed with its findings and recommendations, I acknowledge its thorough and comprehensive nature.

I express my deepest sympathy to the Byrne family in this case and to the many families bereaved in a similar way, some of whom are among the other applicants under the scheme. The Department's position on the matter is in no way intended to imply disregard for the tragic loss of life they have suffered or the circumstances in which they have found themselves as a result of that loss. I hope the families concerned and the wider fishing community will accept the Department's assurances in that regard.

As I stated, the lost at sea scheme was initiated by the then Department of the Marine and Natural Resources which became the Department of Communications, Marine and Natural Resources in 2002. The Department of Agriculture, Fisheries and Food assumed responsibility for sea fisheries and related matters in October 2007. For purposes of this meeting I will refer to all three as "the Department".

I followed closely the previous meetings of the committee and the respective appearances of the Ombudsman, Ms Emily O'Reilly, and Deputy Frank Fahey. During those meetings committee members had an opportunity to review in considerable detail the background to the scheme and the manner in which it had been promulgated and administered. I intend to focus my remarks principally on the response of the Department to the recommendations suggested by the Ombudsman

Having considered the complaint made by Mr. Byrne and after extensive examination and correspondence between the various parties, the Ombudsman found for the complainant in her first draft report and decided to award substantial monetary compensation to the family. The Ombudsman clearly accepted in her report that the complainant's family did not meet at least two of the conditions of the scheme but raised issues relating to the design and publication of the scheme and whether these were factors in the Byrne family not being able to qualify for participation in it and concluded that the family had been adversely affected by them.

The Department's detailed responses to the Ombudsman's findings in this case have been set out in the lengthy and comprehensive correspondence reproduced in the special report. The former Minister of State, Deputy Killeen, and the Minister of State, Deputy Connick, have also dealt in considerable detail with the Ombudsman's findings in their respective contributions to recent Dáil and Seanad debates and I do not propose to revisit them in detail here. The application in this case was properly refused in the first instance, as it had been made more than one year late in respect of a scheme that had been open for participation for only six months. Accordingly, I am satisfied that there is no basis for the payment of compensation in the case, as recommended by the Ombudsman.

Since the conclusion of her investigation in November 2008, the Department has been engaged in correspondence with the Ombudsman on her findings in this case and proposal to award financial compensation. The Ombudsman has acknowledged that the Department of Agriculture, Fisheries and Food is free in law to disagree with her findings and refuse to implement her recommendations. The Department has a long record of accepting the recommendations of the Ombudsman and the decision, on this occasion, not to accept her recommendations was not taken lightly.

I hope that members of this committee and others will accept that the Department has come to its decision not to accept the Ombudsman's findings or recommendations in this case only after extensive analysis of the background papers relating to the scheme and to the particular case, and after taking account of all the issues surrounding it as well as the legal advice available. The decision not to accept the Ombudsman's recommendations on this occasion was strongly influenced by the potential financial consequences for this scheme, and numerous other similar schemes throughout the public service, of accepting a late application in these circumstances, that is, it being over a year outside the stated closing date of 31 December 2001.

As Accounting Officer of the Department, I am charged with the prudent use of currently limited public funds and I must account to the Oireachtas for that use. I must be satisfied as to the appropriateness of any moneys paid out by the Department. I am not so satisfied in regard to this particular compensation recommendation.

As Accounting Officer, I must also have regard to the potential precedent that might be set for other schemes, particularly in the Department of Agriculture, Fisheries and Food, as well as the potential impact on how services are delivered across the public service. The Department remains concerned that the recommendation in regard to this specific case could give rise to major financial liabilities arising from claims from others who were unsuccessful applicants under the scheme. The unsuccessful applicants could include any of the 62 unsuccessful applicants who applied within the timeline but who failed to meet one or more of the conditions of the scheme, or it could include persons unknown who might have applied had the timeline for application been extended for a further period. The Ombudsman's special report asserts that the recommendation relates to this case only and that the analysis, conclusions and findings flow from the particular circumstances of this case alone and so have no implications for other unsuccessful applicants. I cannot accept this assertion and it is not consistent with the legal advice available to me. Furthermore, it is not consistent with the Ombudsman's finding that the design of the scheme and the manner in which it was advertised were "contrary to fair and sound administration".

The scheme as applied in the Byrne case was the same scheme as was applied equitably, as the Ombudsman has acknowledged, to all the other applications received. The legal advice available to the Department on this specific point contends that setting such a precedent creates a considerable risk that the Ombudsman's recommendation in regard to monetary payment could result in other unsuccessful applications looking for the same relief. This is a risk that the Department was and is not prepared to take.

There were also successful applicants for the scheme who could not take up the fishing capacity awarded because of the strict conditions for its use thereafter. There were some who contacted the Department in the year immediately after the scheme had closed. There may well be others who might have thought of applying in the year after the scheme closed but argued that they did not on the basis that they knew the scheme was closed. I strongly believe that any relaxation in 2010, some nine years after the scheme closed, in the conditions of the scheme such as the admission of such a late application would certainly be the basis for further applications to extend the same concessions to others.

At this stage it is impossible to estimate precisely the financial outlay or potential liability that might be involved but there is no doubt that it could be substantial. The Department of Agriculture, Fisheries and Food operates a wide range of schemes and programmes, all of which have strict terms and conditions in order to ensure that public funds are being used appropriately and achieve their intended targets. They are always subject to a final closing date and require to be time bound. There are many other administrative schemes across Government that have application deadlines, terms and conditions. The importance of receipt of applications before a stated closing date is a fundamental aspect of public administration in this State. I can only reiterate that in this case the application was received over a year after the scheme was closed.

In summary, I reiterate that the complainants in this case did not apply for the scheme within the timeframe and were over a year late in applying. The family also did not meet some of the other criteria of the scheme. I cannot, therefore, see a basis for the findings or the payment of compensation.

Chairman

I thank Mr. Moran for his presentation. I call Deputy Creed, who has 12 minutes for a question and answer session. I ask members to adhere to the allocated time.

Deputy Michael Creed

I thank Mr. Moran for his presentation and co-operation with regard to the future attendance of other witnesses.

I have a number of questions and as time is limited I will be as brief as possible in my questions and if I get brief answers, we will make progress as quickly as possible.

Does Mr. Moran accept that much has been made about whether the Byrne family was active in fishing in 2001? Does he further accept that the decision to exclude the Byrne family's application had nothing to do with the issue as to whether they were involved in fishing in 2001?

Mr. Tom Moran

Should I gather questions and reply to them all together?

Deputy Michael Creed

No, this is a direct engagement between Mr. Moran and me.

Chairman

We can proceed whatever way the Deputy wishes. I gather he wishes to proceed this way.

Deputy Michael Creed

Yes.

Chairman

This is a question and answer session.

Mr. Tom Moran

Directly.

Chairman

Yes. That is what was agreed when the Ombudsman appeared before the committee.

Mr. Tom Moran

The primary consideration that excluded the Byrne family from participation in the scheme was the deadline, namely, the fact that it was submitted a year after the date the scheme closed. There were other aspects which would also have precluded them from the scheme, for example, that the boat was not in use for the required period prior to that.

Deputy Michael Creed

Therefore, the issue that one of the reasons they did not benefit was that they were not involved in the fishing industry in 2001, as asserted by a previous witness, was not of material consideration according to the criteria laid down for eligibility.

Mr. Tom Moran

The intention of the scheme was that those who intended to maintain or sustain a tradition in fishing, having lost a boat and therefore having lost capacity, would have the possibility of applying under the scheme.

Deputy Michael Creed

I note that in the eligibility criteria, which I have to hand, there was no specific requirement on the complainant to the Ombudsman to have been involved in fishing in 2001.

Mr. Tom Moran

That is my understanding.

Deputy Michael Creed

Condition (c) of the eligibility criteria states: "the boat in question is shown, by reference to logsheet returns or other appropriate records, to have been in active and continuous use for a considerable period of years by the person concerned for sea fishing of a category now covered by the replacement policy rules, until its loss at sea." Mr. Moran will be aware that in her evidence to the committee the Ombudsman likened that condition to that of a similar scheme being introduced for taxi drivers and to exclude a taxi driver on the basis that he or she had traded in one car for another would be inappropriate and that in the context of the design of the scheme this criterion was faulty. The Ombudsman in her evidence to the committee stated: "In relation to this "continuous use" provision, I would ask you to consider whether it would be feasible to devise a comparable scheme for taxi drivers where a driver would be deemed ineligible on the grounds that he or she had changed cars at some point while at all times maintaining the business." In the context of applying that to the Byrne family, they had been involved in continuous fishing and had changed their boat and upgraded their fishing facilities some months prior to the boat sinking. They were involved in continuous fishing and had just improved their fishing boat and are now, by virtue of the faulty design of the scheme, being excluded on condition (c). Does Mr. Moran consider that it a fair criterion and a fair application of that criterion in this case?

Mr. Tom Moran

They are two separate questions, one is in regard to the criterion and the other is whether it was a fair application of it. The answer to the first question is a matter of fact, namely, that it was a criterion of the scheme. The records show that 45 people failed on that criterion. In other words, it was not unique. The primary criterion——

Deputy Michael Creed

They might have failed on that criterion, but not in exactly the same circumstances that they were just changing their boat, or upgrading their facility, but continuously fishing. It is not possible to argue that the Byrne case is similar to 45 others on that basis.

Mr. Tom Moran

I am not saying that the Byrne case is similar to the others, but that 45 people failed on that particular criterion in the assessment of all of the applications. As to whether I think it is a valid criterion, my point is that it was in the scheme. It was one of the criteria that apply in the scheme and when it was applied in this case it was a factor. However, as I said, the primary factor which determined the decision on this was the lateness. It was over a year after the closure of the scheme.

Deputy Michael Creed

Does Mr. Moran accept that subsequently other late applications were accepted?

Mr. Tom Moran

I am aware of a particular case in which there was ongoing discussion with an applicant during the open period of the scheme. There was certain confusion about the registration and numbering of a boat. The conclusion was drawn by the party, if I am correct in this, that they had not got a right to be in the scheme on the basis of wrong information. When that was corrected it allowed for an application. However, it is not comparable.

Deputy Michael Creed

It is a simple "Yes" or "No" question. Were there other late——

Mr. Tom Moran

No, it is not a simple question.

Deputy Michael Creed

Were other late applications accepted, "Yes" or "No"?

Mr. Tom Moran

I do not believe it is a "Yes" or "No" question. I have given the answer to it.

Deputy Michael Creed

I believe it is a simple "Yes" or "No" question. Another late application was accepted. The fact that the late application was not successful is immaterial. In fact, it was accepted because it was one of those preferred few with whom the Department engaged in designing the scheme.

Mr. Tom Moran

I do not accept that. There was ongoing dialogue between the Department's officials and this particular applicant regarding the intention to apply, but there was confusion about the registration number of a boat. It was on that basis that the person, in possession of wrong information, concluded that they were not eligible. The wrong information was given by the State to the individual concerned and, therefore, they drew the conclusion that they were not participating. That person did not subsequently pass because it failed on other criteria.

Deputy Michael Creed

However, the late application was accepted.

Mr. Tom Moran

It was a late application in the circumstances that I have outlined.

Deputy Michael Creed

Circumstances alter cases.

Mr. Tom Moran

That is a matter of opinion. It was a late application in the context that I have just described.

Deputy Michael Creed

I am sure Mr. Moran will accept that a finding of maladministration or what is contrary to fair and sound administration is a quite serious finding with regard to any Department or scheme. In that context and the conclusion of the Ombudsman that the design of the scheme was faulty — she articulates that in a number of different areas and in a number of ways — does Mr. Moran not accept that, with regard to faulty design, and in correspondence of 22 September 2000 Mr. Paul Dolan in the maritime safety division identified that there were 120 cases of fishing vessels which had sunk at sea in the appropriate reference period for which a scheme was being designed, it was maladministration not to proceed with a thorough analysis of all those individual cases so he could design a scheme that was fair to every potential applicant, not just the hand picked few with whom the Department and the former Minister engaged in considerable detail in designing the scheme?

Mr. Tom Moran

I wish to make some comments on that. First, the Ombudsman has made her views known as part of the report and the Department has responded to that. The findings the Ombudsman made were that the design of the scheme was contrary to fair and sound administration. There is no reference to maladministration.

Deputy Michael Creed

There is in the report, if Mr. Moran wishes me to read it.

Mr. Tom Moran

The Deputy is correct that it is retrospective, and I have looked back into this. As I understand it, the scheme was an open ended scheme. From listening to some of the general debate, it is clear there are certain misapprehensions about it. It was never a monetary scheme or aimed at compensating anybody. It was aimed at giving people a licence to fish, as it were. When the shutters came down and one needed, effectively, the right to fish, this was to enable that. This was looking back in time to the period between 1980 and 1990 and seeing if there were boats that had gone down or had been lost which could subsequently get a licence to fish. In other words, it was an open ended scheme. At that stage, nobody would have known how many boats would have gone down. There was no register.

Deputy Michael Creed

I am sorry, but in the correspondence from Mr. Paul Dolan, who was consulted in constructing the scheme, he said that his review indicated that there were over 500 of these files open since 1980 and over 120 related to incidents involving fishing vessels. On 22 September 2000, therefore, it was flagged to officials in the Department by the maritime safety division that there were 120 fishing vessels in this category that had sunk in the reference period for which a scheme was being designed. Mr. Dolan goes to say that providing more accurate and detailed information for the sea fisheries division would likely require that all 120 files would have to be reviewed individually. Furthermore, he said that as the majority of these files were currently held in one or more storage areas throughout the building complex, his best guess was that this task would take some time to complete. The reality is that this task was never completed.

On the basis that this scheme was going to be ring-fenced, the Department was not going to look at those files in case it got a real handle on the Pandora's box it was opening. Was not the ring fencing, in essence, the maladministration? Was that not the ring fencing of justice? The Department was not going to bother looking at everybody who could benefit; it was going to look at the known cases, the handful. That was the ring fencing of the six or eight, which is referenced in numerous handwritten notes in the documentation released under the freedom of information legislation. The Department was not really concerned about having a fair and equitable scheme, but one designed for the handful.

Mr. Tom Moran

The scheme was open for a period and it was advertised.

Deputy Michael Creed

No, this was before any of that. This was in its design. The Department never trawled the 120 files to see how many of them would fit into the category it was dealing with.

Mr. Tom Moran

When one is designing——

Deputy Michael Creed

This is the maladministration; this is contrary to fair and sound administration.

Mr. Tom Moran

When one is designing a scheme, one does not necessarily design it based on specific cases and so forth.

Deputy Michael Creed

Touché. Is that not what happened?

Mr. Tom Moran

No. I am saying that the scheme was open for a period and advertised. Those who had lost boats in the period could apply and if they met certain criteria, they would be eligible to gain a fishing licence or tonnage.

Deputy Michael Creed

I will move on.

Chairman

Deputy Creed is over his time.

Deputy Michael Creed

I have two other questions. In correspondence on pages 21, 22 and 23 of the Ombudsman's report from Randall Plunkett, he refers to the possible cascade of cases and the major financial implications. There were 68 applicants for the scheme when it was advertised in such a limited fashion, and six were successful. Of the unsuccessful 62, six went to the Ombudsman and one was successful. Given the avalanche of publicity since then, the Office of the Ombudsman has confirmed it has received two telephone inquiries. This does not appear to accord with the Department's contention that there is an avalanche of complainants waiting in the wings to come forward if we find in favour of the Byrne family and that there are huge financial implications for the Exchequer.

Mr. Tom Moran

The position the Department has taken, which is outlined in the letter from Mr. Randall Plunkett, was taken on the basis of two fronts. One of them is the conditions of eligibility and the other is the risk of cascading, both within this particular scheme — but that is only one element — and beyond into other schemes run by my own Department and in other schemes run across the public sector. They are genuine concerns. As I said at the outset, we have thought seriously about this matter. It is not that any Department, including my own, would not take lightly an Ombudsman's report of this weight. It is that there are genuine concerns based on sound legal advice. The Deputy referred to Randall Plunkett's letter, but he will have seen, in the very first sentence or two, that that letter has been produced in conjunction with the Attorney General's office.

Deputy Michael Creed

Will Mr. Moran publish the Attorney General's advice?

Mr. Tom Moran

The Deputy knows the position concerning the publication of legal advice. The letter sets out precisely what the advice is. Just let me finish. That is a very serious letter. It indicates the seriousness with which we took this report. We took this report in the Department as work in progress. We have experience of running thousands of schemes. As members of the committee know, we spent €3.2 billion across a range of complicated schemes. They have deadlines that fall and there is absolutely no allowance after those dates. On 17 May, the single payment date closes. If one is late, one suffers penalties after that. If one is a month late for that, one will suffer a 100% loss of the single payment.

Deputy Michael Creed

As the Secretary General used that case, the Department writes to all farmers under the single farm payment. However, it chose to write to only 16 of the possible 120 that had been flagged to the Department by the maritime safety division. That is a telling observation. With regard to the single farm payment, the Department writes to 120,000 plus farmers — everyone on its records. With regard to this scheme, however, the Department was in dialogue with a handful, wrote to 16, but was aware that there were 120 cases. I rest my case.

They say the devil can cite scripture for his own purpose, and Mr. Moran referred to the Attorney General's advice. I refer to a further comment made by Mr. Randall Plunkett in the letter of 30 July. With reference to the criteria used to disqualify the Byrne family's application, he said: "What may be described as a technical failing on the part of the Minister and his officials, has given rise in your recommendation to a very substantial monetary award and this, on balance, appears to be disproportionate". He adds: "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, they might have been different".

It might be a question of degree because he refers to a technical failing, but is it not implicit in that that the game is up? If more time had been spent, one would have had a different scheme. He refers to it as a technical failing, but maladministration is the kernel of the issue.

Chairman

When Mr. Moran has finished we will have to move on because we are six minutes over the time.

Deputy Michael Creed

I have one final question.

Chairman

Will the Deputy ask it now?

Deputy Michael Creed

I would like to get the response to that question first.

Chairman

Very briefly.

Mr. Tom Moran

The point I am making is that we are where we are concerning a scheme. If one redesigns any scheme or does anything different, one could put people in or out, depending on how one redesigns it. If one had applied different approaches to any scheme the final outcome, in terms of the rules of a scheme, could be quite different. It is acknowledged that this scheme was applied fairly and equitably without any difficulty once it was promulgated and launched. That is said clearly in the report.

Deputy Michael Creed

One late application was accepted and one was refused.

Mr. Tom Moran

I gave the circumstances in which that particular one was accepted. I can clarify it even further, if the Deputy so wishes. I do not think they are comparable, but that is a matter of opinion. The view expressed there by Randall Plunkett is that, had various other circumstances been different at any given time, then obviously the final outcome may have been different, but that applies to all schemes. For example, in devising any scheme across any Department, including the agricultural schemes, if one restarted them one may not arrive at the same conclusion. That conclusion would include or exclude various people. One would have different criteria, income limits and farm sizes, so the way one designs it leads to a different outcome. If one redesigns that scheme, one could have a different outcome, which could have excluded not alone the date but also this particular application.

Deputy Michael Creed

May I pose a final question? I thank the committee for its indulgence and I will conclude on this. The Secretary General referred to the fact that we were not allocating monetary compensation and I accept that, notwithstanding what is contained in the unsigned, undated memo, which refers to the advice given to the former Minister. It states that acceptance of these boats is replacing capacity and amounts in effect to the writing of a gratuitous cheque for €500,000 to be allocated to a number of individuals with a negative return to the State and the economy. I have referred to the blind indifference to the 120 files that were flagged, and the fact that only 16 were written to. There is a question that 75% of the compensation, tonnage — lest people get up on their high horses — and kilowatts that were allocated went to Mr. Faherty and Mr. Mullen. May I ask about the extensive consultation that went on with Mr. Faherty and Mr. Mullen, and with regard to Mr. Faherty in particular? In the context of designing a scheme, is it normal for the Department to share working papers and documentation with individuals? They can go away with those papers, come back and say: "These particular criteria would not work in my case. They need to be amended".

In the context of the criteria that applied, some shenanigans developed regarding Mr. Faherty's letter of congratulations. He got a letter in October 2001 telling him he was successful. Then in April 2002, the Department said his award was deferred. What was the Department's state of knowledge with regard to two other boats, the MFV Day Dawn II, and MFV Olympiad? That had consequences for whether or not Mr. Faherty was a qualifying applicant.

Mr. Moran referred previously to the Attorney General's advice. That advice comes in specifically with regard to Mr. Faherty as well because his advice was sought on this issue. It seems that at a later stage the Department was prepared blindly to ignore the Attorney General's advice and approve it. This was notwithstanding the fact that there are considerable issues about whether Mr. Faherty met all the criteria. Did the Department hide behind the Attorney General's advice on the one hand, while on the other hand blithely ignoring it?

Mr. Tom Moran

All I can say on that particular point is that when I have the Attorney General's advice, and advice from my own legal unit in the Department, I take it very seriously. When that advice relates to taking risks with taxpayers' funds, which can extrapolate way beyond this issue, I would take it even more seriously. That is the basis for the position that the Department has taken since taking on this file. That is why the most recent set of correspondence in the report before the committee is from Mr. Randall Plunkett, our legal head, to the Ombudsman. It clearly sets out why we have taken the position we have concerning her recommendation. All the other exchanges in the report that have gone into the details, to which the Deputy referred, have been set out in the report. I would not be in a position to comment on that. I cannot speculate as to why various actions would have been taken in the run up to the scheme. I know, for example, how schemes would normally be devised. There is a lot of consultation. Discussions take place between Ministers, officials and various people with experience. Then one designs a scheme from first principles and publicises it. Otherwise, if one did not assess the environment or context, one would not necessarily have a successful scheme. That applies across all schemes. It is based on the experience which comes from many sources.

Deputy Seán Sherlock

I just heard Mr. Moran say that one designs a scheme from first principles and then one advertises it. My question relates to the scheme and the manner in which it came about. I am conscious of the fact that Mr. Moran is speaking in 2010 about a scheme which arguably he had no involvement in designing in the first instance. I am therefore asking questions about something that he may or may not be able to answer. I hope that he has a view, however, given that he is the voice of the Department in this context. On the scheme itself, is it fair to say that there were strident attempts by officials to prevent the scheme coming into existence in the first place?

Mr. Tom Moran

I take the point Deputy Sherlock made at the outset, and I agree. On the strident objections, having looked back on it, from what I can see there were views for and against and, ultimately, a ministerial decision on the launching of this scheme.

The views of the officials then have to be seen in the context of what was happening at the time. As the Deputy stated, and he is absolutely right, it is a long time ago. The lid had suddenly come down on tonnage or capacity limitation, often compared to any other lid coming down, such as with milk quotas. An EU limitation had accompanied that by law in the beginning of 2003. It meant that any increased capacity into that would have had to be paid for. Therefore, it was a zero sum game. If capacity is given, it has to come from somewhere. Somebody has to buy it, somebody has to surrender it or whatever else. Therefore it is not an open-ended ability to provide capacity or cover to anybody, whether he or she has had history in fishing as this type of case would have had or was a newcomer completely. There was a limitation. That, as I see it, was the origin of the official reticence, if you like, or the hesitance about increasing that capacity because it has to come from somewhere.

Deputy Seán Sherlock

In terms of the design of the scheme and when it came into existence, the Byrne family make their complaint and the Ombudsman concludes. The Ombudsman's report, on conclusions and recommendations, states:

In other words, my investigation considered not just the question of whether the Byrne family met the conditions of the Scheme, but also whether the design of the Scheme and the publication arrangements were factors in their not qualifying under the Scheme in the first place.

She speaks directly to the fact that they may not have met some of the conditions of the scheme, but the design of the scheme, once it came into fruition, is flawed.

Mr. Moran, in his correspondence, stated that the way in which the scheme was advertised was such that a fisherman reading the fishing press was akin to a farmer reading the Irish Farmers’ Journal. That is Mr. Moran’s view in a contemporary sense, but did he not consider that the Byrne family may not have had the heart to look at the fishing press in the intervening period from when the tragedy happened and that it is quite likely that they would not have had notice by virtue of the fact that they would not have read the fishing press. Mr. Moran cannot make the assumption with 100% certainty that if they were interested in fishing or if they had an active part in fishing, they would have read the fishing press. He cannot make that assumption and no Department official, past or present, can make that assumption. Therefore, the Ombudsman, in respect of her view on the advertising component of the scheme, is vindicated in her position, notwithstanding the fact that she acknowledges that they did not meet at least two of the criteria.

Mr. Tom Moran

On the publication, let me put it this way. There are a couple of matters of fact in the Ombudsman's findings. One of those relates to the date and the other to the period of ownership of the boat, and so on. Then there is an element of opinion — and this is in the realm of opinion — that it was not widely enough promulgated. It was promulgated in three specialist fishing publications. One of the conditions of the scheme would have been that the potential beneficiaries would have either been in or been intending to come back into fishing, in other words, that they would have been looking at, if not involved in, the fishing sector.

It is a matter of opinion that it could have been more widely promulgated in various other mediums. It was discussed and it was promulgated with the producer organisations. It would have been an issue at the time in the fishing community. One of the things I have learnt since taking over the fishing area, on top of the agricultural area, say, in 2007, is that the fishing community itself is very close-knit. It knows a hell of a lot of what is going on in the complex world of fishing regulations. If something is promulgated in the fishing press, if it is targeted at people who are either in or intending to come back into fishing, and if the word has gone out through the fishing organisations which is another arm of communication, it is a reasonable view to take that the matter is properly advertised.

I take Deputy Sherlock's point that it is a matter of opinion. One can say that about any scheme. One could ask: should it not have been publicised in the national press, on radio, television — wherever one draws the line. However, the view was taken at the time that such was a sufficient advertisement and promulgation. That view was taken, and it is an opinion as to whether it was successful or not. Clearly, the Department at the time took the opinion that it was the right thing to do and looking back on it, it would appear to be a reasonable position.

Deputy Seán Sherlock

What I conclude from that is that there is the balance of two opinions, from an objective point of view, whether one takes the Ombudsman's point of view that the scheme was inadequately advertised or whether one takes the view, because, as the Secretary General is promulgating here, that there is a close-knit fishing community with a specialised press, that there is a clear assumption that everybody will read that and be made aware of the terms of a scheme when it is so advertised.

What we are concerned with here is the fact that the Ombudsman has a special position in relation to the queries and complaints that the average citizen makes. Whether we take the balance of the view of the Ombudsman or whether we take the balance of the view of the Secretary General, who, arguably, had no act or part in the designation or design of this scheme in the first instance is a matter of conjecture. However, I speak to the conclusions the Ombudsman made, in point 3 in her report. It states:

Given that this was a finite, once-off Scheme, aimed at a specific class of individuals the Scheme was not advertised adequately.

If we take the weight that is the Ombudsman's office, do we then take in good faith her conclusions in this respect if she further states:

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 when it was launched. Overall, the manner in which the Scheme was advertised was contrary to fair and sound administration.

Those are her conclusions. It is deemed, arguably, that she has no vested interest. As somebody who has no vested interest who is looking at this objectively, do we, if we are not to undermine her office, take this in good faith? I suggest that we do. However, if somebody, who was, as she states, a prospective applicant, "were put in a more advantageous position than others as they were written to directly by the Department", did that not put the complainants at a disadvantage? Did it put some persons to whom the Department wrote in a more advantageous position in respect of this scheme, thereby undermining the level of fairness attaching to the scheme? Is it the case that, as the Ombudsman states, the manner in which the scheme was advertised was contrary to fair and sound administration?

Mr. Tom Moran

The method of advertising was in line with normal custom and practice at the time in the context of releasing information into the sector. With regard to the fact that the people in question did not see the advertisements, a long period had elapsed between the tragedy and the scheme being advertised. Again, I do not really want to comment on the tragedy because I have made my sympathies known in that regard. One could draw certain conclusions in respect of people not seeing advertisements. If someone did not see an advertisement in the Irish Independent and if a decision was taken to place an advertisement in that newspaper only, one could draw the conclusion that the advertising campaign should have been wider in nature. It is a matter of opinion.

The decision at the time on how to advertise was not only in line with custom and practice, I have no doubt that it was also in line with the constraints that existed in the Department in respect of spending on advertising. One takes a view — it is a matter of opinion. Like the Deputy, I respect the Ombudsman's view on this matter. She has taken the view that it was not properly promulgated. The Department has continually stated that it was promulgated in line with normal custom and practice, using three organs of specialist press and through the producer organisations. That is really as far as I can go on that one.

Deputy Seán Sherlock

Will the Chairman indicate how much time is left to me?

Chairman

The Deputy is already one minute over time.

Deputy Seán Sherlock

In deference to colleagues, I will leave it at that.

Chairman

I thank the Deputy and appreciate his gesture.

Deputy Martin Ferris

I have in my possession a copy of the advertisement relating to the scheme from Fishing News. If I hold up the page, Members will see the exact dimensions of the advertisement. Does Mr. Moran not accept that the Byrne family had suffered a bereavement, that many of its members were no longer involved with the fishing industry and that, as a result, it is more than possible that no one from the family saw the advertisement to which I refer?

Mr. Tom Moran

Again, that is a matter of opinion.

Deputy Martin Ferris

It is a matter of fact for many people. I come from an agricultural background and members of my family are involved in agriculture. By choice, none of them reads the Irish Farmers’ Journal. The point I am making, therefore, is that it is a matter of fact rather than opinion for some people.

Was what was done in the context of initiating and ring-fencing this scheme ethically correct? Was it ethically correct, for example, to consult those who ultimately benefited from the scheme prior to its being rolled out?

Mr. Tom Moran

In general, the elaboration of a scheme prior to its launch would involve a great deal of consultation and people's views would be elicited. The files indicate that prior to the launch of the scheme, people had been in contact with the Department regarding the possibility of such a scheme being established.

Deputy Martin Ferris

Was it ethically correct to hold selective meetings at which those who ultimately benefited from the scheme, the Minister and departmental officials were present? Apparently up to 120 people were contacted and made aware of the scheme. Two of the main beneficiaries of the scheme were involved in the consultations and helped, through their contributions, to frame the scheme.

Mr. Tom Moran

When the scheme was launched, there was a six-month period during which applications could be made. As we have just discussed, information relating to the scheme had been promulgated——

Deputy Martin Ferris

Will Mr. Moran, the Department's most senior official, answer the question I have asked? Was it ethically correct for the Minister and departmental officials to engage with two of the main beneficiaries of the scheme? I am seeking a yes or no answer.

Mr. Tom Moran

We are not speaking out of a particular context, we are discussing a particular issue. It is not as if it is without context to ask me a general question regarding my opinion on whether something was ethical. On the origins of the scheme, I am indicating that there was a great deal of debate, both within the Department and with producer organisations. In addition, there was contact with people who have previously been in touch with the Department in respect of the establishment of a scheme.

The opinion as to whether something was ethical would depend on the context, the level of consultation involved, etc. If one tries to move the discussion out of the particular context we are discussing and if one imagines what might happen if one were intent on providing, for example, grant aid in respect of slurry tanks, one could well discuss with a range of people involved in the agricultural sector matters such as when would be the best time to install such tanks, the level of need, etc. One discusses the matter with organisations, experts or co-op advisers. One builds up a level of knowledge around the matter. However, the key point is that one would then have an open scheme and that one would not be selective in respect the applications that could be made for inclusion under it.

Deputy Martin Ferris

The precise criteria for the lost at sea scheme emanated from the meetings to which I refer. Mr. Moran can explain it any way he likes and I accept that he is in a difficult position because he was not involved with the relevant section of the Department at that point. In a letter dated 10 November 2000, it was indicated by the Department that papers submitted to the Minister by Mr. Faherty and Mr. Mullen had been carefully considered. These men were the two main beneficiaries of the scheme and when they submitted papers, the Department had serious reservations. Some 75% of the actual tonnage and kilowatts went to those two individuals, who had a direct line to the then Minister and who had a role in framing the criteria relating to eventual scheme. Anyone considering this matter in an impartial way, could not but form at least a suspicion that the outcome of these meetings was crucial to determining the precise criteria of the scheme that was put in place. I take it Mr. Moran has read the recommendations issued by the Department at the time to which I refer.

Mr. Tom Moran

Yes. The committee has engaged in various discussions on this matter and I will await its eventual views on it. It is not for me to comment on ethics or otherwise. We have given serious consideration to the framing of the scheme and are of the view that it was designed not around any particular cases but from first principles. It was left open for a lengthy period in order that people could submit applications.

Deputy Martin Ferris

Some 62 applied for inclusion under the scheme and of these, 16 were contacted in writing. Letters informing them that they would qualify for the scheme were sent to a number of people. This was prior to the scheme actually being drawn up and launched. Does Mr. Moran think that the circumstances leading to it being ring-fenced first at eight and then six determined what came afterwards? The Byrne family, through no fault of its own, did not have the benefit of seeing the advertisement and applied late. I refer to questions put to the former Minister by Deputies Sherlock and O'Sullivan and myself at last week's meeting. The lead up to this was one had to be fishing in 2001 to meet the criteria of the scheme. Deputy Fahey replied: "As far as I am aware that was the situation". Deputy O'Sullivan then stated: "That point alone naturally would preclude them from qualification" to which the former Minister replied: "Yes, that was the entire point that was misunderstood by the Ombudsman's office, namely the point of the scheme". The scheme's criteria mentioned nothing about applicants having to be engaged in fishing in 2001, yet the former Minister who made the decision and his Department stated that was the case. The only reason the family was precluded is its application was late.

Mr. Tom Moran

The Ombudsman made it clear in her findings that the Byrne family did not qualify under two criteria. As regards the people fishing at the time, I hope I made it clear in an earlier answer that it was intended for people who were still fishing or who intended to go back fishing——

Deputy Martin Ferris

Which the Byrne family wanted to do.

Mr. Tom Moran

——and to maintain or continue a tradition, which they would have been when their boat went down during the period. I made that clear earlier. That is my understanding of it.

Deputy Martin Ferris

It is evident on the basis of the statements of Deputy Fahey and Mr. Moran to the committee that the only thing that precluded them from meeting the criteria was their application was late. Yet, we know another late application was accepted but that person was refused because he did not meet other criteria. When we commenced these proceedings, one Government Deputy said this issue was a heavy weight on his shoulders and it stunk to high heaven. I do not want to go down that road. Along with every other member, I want justice for the Byrne family. The fact that they did not see an advertisement in a newspaper has prevented them from getting justice because they did not know about the advertisement until six or eight months later. They then made an application under the scheme. When another boat owner applied, he was told clearly his late application would not inhibit him acquiring tonnage if he met the remaining criteria. There was a double standard.

Deputy Seán Sherlock

The Ombudsman stated to the committee that the Department had accepted a late application dated 11 April 2003 under the scheme. She obtained the background papers and stated:

It appears that the application was accepted by the Department on the grounds that the complainant said he had been in contact by telephone with the Department on a number of occasions before the closing date but was given incorrect information, which made him decide at the time that there was no point in submitting an application. The Department decided that it would be unfair not to accept his application. I understand that the application was ultimately unsuccessful.

There is a double standard in this regard.

Mr. Tom Moran

I tried to deal with the question of the late application earlier. This related to a person who had been in contact with the Department. Deputy Sherlock's summary is correct. There was confusion over the registration of a number, which the person took to put them out of the scheme. The circumstances were different in this case.

Deputy Ferris has made it clear what his objective here in this is. My concern is the one set out in the most recent correspondence where I am concerned about the wider implications——

Deputy Martin Ferris

Mr. Moran is concerned about a precedent.

Mr. Tom Moran

I am concerned about precedent not just within this scheme——

Deputy Martin Ferris

Mr. Moran made it quite clear in his presentation that the Department was concerned about a precedent and the effects it could have on its finances.

Mr. Tom Moran

And on other Departments. I am just concerned about that and I have strong legal advice which gives rise to that concern. That is where I am coming from.

Deputy Martin Ferris

I have a strong moral conscience which says that if Mr. Moran and the Department are more concerned about the financial implications than justice, it is a sad state of affairs.

Mr. Tom Moran

My concerns are about extrapolation of this in regard to the deadline, in particular, for this and other schemes both within this Department and in a wider context.

Deputy Bobby Aylward

I am glad to have the opportunity to question the departmental officials because we must report to both Houses on the basis of what they tell us and, therefore, this meeting is important.

I refer to the terms of reference and criteria when the scheme was set up. Of 68 applicants, only six were successful. Were the terms of reference too narrow or focused? Was this intended in order that only a few would qualify out of 68 applicants? Deputy Fahey, the then Minister, set up the scheme but departmental officials were reluctant to go with any scheme at that stage. It was only on the insistence of the then Minister that the scheme was set up with the intention of compensating people who genuinely lost boats at sea.

Mr. Tom Moran

It was clear from the files at the time the criteria were set up to try to deal with the need for genuine access to tonnage. It is true in the debates that led to the devising of the scheme that it was very clear that the officials wanted it to be restricted because of the fact that there was a limit on the amount of tonnage available within the sector. There was an EU ceiling on it and any tonnage put into the system would have to be accounted for by tonnage taken out, which would ultimately cost money. I emphasis that this tonnage could not be bought or sold. This was simply a facility to allow people who were going back into fishing to fish. It was not monetary compensation and that needs to be understood as well. However, if fishing capacity is taken out of a capped limit, somebody somewhere has to hand back fishing capacity and that is where the cost arises. That is why a limit was imposed.

Deputy Bobby Aylward

That is fair enough. The Ombudsman became involved in this because of the Byrne family. They met the criteria of the scheme in that they lost a boat tragically in 1981. Family members lost lives, which has no bearing on this, but, unfortunately, that happened. The reason the Ombudsman became involved is they felt they were unfairly treated under the scheme and the only option they had to was to go to her. The Ombudsman and her officials investigated the scheme and made a recommendation that compensation should be paid to the Byrne family. Mr. Moran stated the scheme was set up to provide tonnage and not monetary compensation for those who wanted to get back into fishing. Does Mr. Moran think the Ombudsman's findings were right? She rejected five claims and only recommended one, the Byrne family one. Her reasons for accepting the Byrne family claim were that the family did not see the advertisement in time and, therefore, did not hear about it until after the closing date. However, they fit the other criteria. Their boat was lost in 1981. Another reason for the original rejection of the claim was that the Byrne family were no longer fishing, but according to the information we received from the Ombudsman today, that was not a requirement. Was the overriding factor in rejecting the Byrne claim the potential financial consequences for the Department? We are talking about a family that suffered a loss, but was the Department more concerned about the financial consequences rather than the loss to the family?

I understand the Department's view that a potential precedent would be set if the Byrne family received compensation. Other families could then apply and insist they had a right to financial compensation, which would have a major impact. Is it the financial liability that is the big issue here, rather than the family?

Mr. Tom Moran

I would like to address a couple of points. The first finding of the Ombudsman was that the application did not meet at least two of the conditions of the scheme. Those two related to having the ownership of the boat and the deadline. Therefore, as I understand, it was not the question of whether they were involved in fishing at the time of the application, because there was an intention to get back into fishing having been out of it as a result of the loss. The reason the Department is taking the position it is taking is primarily to do with the concerns we have over the extrapolation of these findings into this and other schemes, beyond the Department. The committee will understand that we must take a balanced view of these matters and that without that concern, it might be a different view.

When this committee takes its view and deals with our concerns I will be very interested in hearing how it has addressed those concerns. In the current climate, when there are such strictures on State finances, we as public servants must be very careful in accepting decisions or recommendations that go far beyond what can be afforded by the Exchequer. That is a primary concern and is set out in our reason we have dealt with the report in the way we have.

Deputy Bobby Aylward

The Ombudsman used the words in her report "contrary to fairness and sound administration" and "malpractice". This a serious judgment by an Ombudsman whose neutrality we respect. Was she right to use those words, which seem to taint the Department? What is the Department's response to these allegations or statements in her report? Why would she say this or why did she use such language? What is the Department's reaction to this taint on it due to the use of this language?

Mr. Tom Moran

The words she used in her findings were "contrary to fairness" etc. I would take that very seriously. We do not accept that. The Department, at the time and since, in its various iterations has not accepted that finding. We have set out clearly in our response why we do not accept that finding. The two issues on which the application was disqualified related to fact. Whether one agrees with the criteria or whether they should have been there is another issue. The criteria were there and two of them were not met. Therefore, the application was not valid. The third element, the promulgation and advertising of the scheme, is a matter of opinion and we had that discussion earlier. We do not accept that opinion of the Ombudsman. The Department takes a different view.

Deputy Bobby Aylward

Does the Department totally refute the charge of malpractice?

Mr. Tom Moran

Yes, as does the Ombudsman. From the point the scheme was up and running and launched, the Ombudsman says it was applied equitably and without difficulty.

Deputy Bobby Aylward

The Ombudsman went on to recommend a monetary award and the decommission scheme. Does Mr. Moran think she was right in that regard? We are aware that once the European Union had decided on quota, that ruled out any more tonnage being made available. The Ombudsman went on to look at the decommission scheme in place to decommission boats and remove them from the system. She used the criteria or Department's own recommendation in that regard, of approximately €45,000 or maybe €24,000 a year — I am not sure of the figure — to arrive at a compensation figure of €245,570 to cover the period of ten years and provide compensation. What is the Department's opinion of that? Did that go beyond her investigation of the lost at sea scheme, which was a completely different scheme?

Mr. Tom Moran

I can understand fully where the Ombudsman was going in this regard. She had taken a view and we had disagreed with that view for the reasons clearly set out. The Ombudsman then went further and took the view that monetary compensation should be paid to the people in question. The Deputy is absolutely right. There was no monetary element whatsoever, nor could there ever be, in the lost at sea scheme, because if one succeeded and got tonnage, it could not be sold. One had to use it or lose it. The Ombudsman was faced with a situation, having come to her conclusion — which I fully respect — whereby she had to devise a mechanism. She looked at the decommissioning scheme for that. The Department has taken the view that is not the appropriate means to calculate any kind of a monetary compensation in this case and we have set out the reasons for that. In order to participate in the decommissioning scheme, one would have had to have a boat and to get rid of it and one would have had to have been working it for a number of years prior to that. We do not think that is the appropriate means of calculating compensation.

Deputy Bobby Aylward

Why did the Department only write and notify 16 individuals that the scheme was in place? Why did it only write to 16 when there were 68 applicants in total and perhaps some more who never knew about it? Also, with regard to the Ombudsman's report, it suggested that the investigating officers did not know for up to two years that the scheme was not paying monetary compensation. The officers were investigating the scheme for the Byrne family, but it took a year and a half to realise that no monetary compensation was being paid out and that only tonnage was being given. It was only when they were notified of this by Deputy Fahey that they realised there was no monetary compensation. I would like to hear Mr. Moran's comment on that.

Chairman

Has the Deputy any other questions or can we wrap it up?

Deputy Bobby Aylward

Let me have a response on that and then I have a final question.

Mr. Tom Moran

I understand those 16 people had been in contact with the Department in the run-up to the scheme. They had been agitating for some kind of action because they wanted to get back fishing.

Deputy Bobby Aylward

Does Mr. Moran think it was fair that other people were not notified? Some 68 cases or so were buried in the archives. Is it fair that only 16 of those were notified?

Mr. Tom Moran

They were the ones who were in touch with the Department. The fact that 68 people then applied demonstrates the advertising and promulgation campaign had an effect. With regard to the Ombudsman's investigation and the investigators being unaware there was no monetary compensation involved in the scheme, the Office of the Ombudsman has done a meticulous job on the report. Significant work has gone into it, which is why we have taken it so seriously. I would not comment on its efficacy or the manner in which the report was done, as it would not be right for me to do that. This report was presented in good faith and a significant amount of work has gone into it. We are responding to it in good faith and with the kind of concerns that I have outlined with regard to the wider exposure of the taxpayer.

Deputy Bobby Aylward

It is important to clarify this because the committee will be writing a report on this matter. An investigation was carried on for two years by departmental officials but they did not understand the full consequences as regards money.

There has been a blight put on Deputy Fahey's character as a Minister. He commissioned and set up the scheme. However, once the scheme was commissioned, he had no hand in it. The decision as to who was awarded compensation was nothing to do with the Minister. The departmental officials adjudicated on the applicants. At the last meeting and under parliamentary privilege, allegations were made against the former Minister which have not been withdrawn. The character of the then Minister, Deputy Fahey, is being assassinated here and that is wrong. I ask Mr. Moran to make a clarification. The allegation is that two people from the former Minister's constituency were awarded 75% of the compensation and four people from outside. I ask the officials to clarify that once the scheme, the criteria and terms of reference, were set up, the Minister had nothing to do with the adjudication as to who was awarded compensation. This is very important to clarify. The man's character should not be assassinated as it was under privilege in this room.

Mr. Tom Moran

My understanding is that once the scheme was up and running and launched, it was operated in the same way as any Department scheme is operated. The Ombudsman has confirmed this was the case, that there was absolutely no issue involved in the way the scheme was operated.

Deputy Tom Sheahan

Am I correct in saying Mr. Moran had no input into this scheme?

Mr. Tom Moran

That is correct.

Deputy Tom Sheahan

Is Mr. Moran of the view that the Ombudsman is off her trolley, so to speak?

Mr. Tom Moran

I would not say that at all. I have commented on the Ombudsman's report being an excellent report.

Deputy Tom Sheahan

The Ombudsman stated at this committee:

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."

Everybody has complimented the Ombudsman and her report and then they are picking holes in it and saying she is wrong. She is an independent body. She has made her recommendation that the findings should be undisturbed. Does Mr. Moran agree?

Mr. Tom Moran

I complimented the Ombudsman. I have said in the past the way in which we deal with the Ombudsman shows nothing short of respect for the independence of her office. I think the report is an excellent report and it is fully comprehensive. I have also outlined why we have taken the position we have taken with regard to the findings. I have been clear on that. When a report is made, it is a matter for the Ombudsman, if it goes that far, to present that report to the Oireachtas and this has been done. It is a matter for the Oireachtas as to how it deals with the report. It has been discussed in both Houses and also at this committee. I look forward to seeing the outcome of the deliberations of this committee.

Deputy Tom Sheahan

Regarding the possibility of an avalanche of claims pending the outcome of this investigation, the Ombudsman also stated:

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

The claim that there could be an avalanche of claims, depending on the recommendation or the implementation of the Ombudsman's report, is actually knocked on the head by the Ombudsman in that statement. Yet, the Department is still of the view this is a possibility.

Mr. Tom Moran

That is a matter of opinion and the Department's opinion is informed on that particular point by the advice of our own legal unit and indeed, by the Attorney General's office and this has been set out in the report. I take the point. I know the Ombudsman has that view that it is limited to this scheme. However, there is another view which is backed by legal advice which informs the concerns that we have. This is the reason we have taken the position we have on the report.

Deputy Tom Sheahan

Mr. Moran stated that a late application was accepted but that it did not qualify for the scheme due to non-compliance. It was a late application which was accepted but it did not qualify due to incorrect information about the number of the boat.

Mr. Tom Moran

No. I may not have been clear. I hope I am making myself clear. The issue in that case was that a potential applicant was in contact with the Department, based on a boat, the registration number of which was the source of confusion and misinformation. The information had been given by the State about the registration number of the boat. The person, on that basis, took the view that he could not participate in the scheme. That information turned out to be incorrect — the person was therefore misinformed — and that person was deemed to be eligible. It was not a late application as such in that sense. The person subsequently did not qualify on other criteria.

Deputy Tom Sheahan

Mr. Moran also stated the scheme was administered equitably. How was it that some of the applicants were written to by the Minister of the day two months before the closing date congratulating them for being successful in their applications, if the scheme was administered equitably?

Deputy Bobby Aylward took the Chair.

Mr. Tom Moran

The Ombudsman's report states, "I have found no evidence to suggest that once the scheme was launched, that it was not applied equitably". I refer to the Ombudsman's report and the independence of the Ombudsman in this regard.

Deputy Tom Sheahan

Is this par for the course for other current departmental schemes, that before the closing date, applicants would be contacted and congratulated for being successful?

Mr. Tom Moran

No, it would not be normal.

Deputy Tom Sheahan

How did it happen that in the application for the replacement capacity for fishing vessels that one of the questions asked of Mr. Faherty was, "Have you acquired and-or registered any vessels since your vessel was lost at sea?" The answer is, "I have not registered a sea vessel, sea fishing vessel, since the MFV Joan Patricia was lost at sea“. I refer to the completed questionnaire which asks, ”Has the applicant required registered any vessels since lost at sea?“ The answer is, ”No.“ A sentence with an asterisk explains, ”He owns the MFV Day Dawn II but this vessel is in the specific category“. The checklist for considering applications states, ”The applicant should have been unable, for verified financial or related reasons, to acquire a replacement vessel or any other registered vessel, before the introduction of the new register“. On the question of whether the criterion was met, it states ”Yes“. It continues, ”he acquired the MFV Day Dawn II in 1989 but this is in the specific segment, whereas the MFV Joan Patricia was in the polyvalent segment”. That was a significant reason for the application to be put in the bin. It specifically states, “the applicant should have been unable, for a verified financial related reasons, to acquire a replacement vessel, or any other registered vessel”. The person in this case qualified even though he said in his application he had not acquired another vessel. Deputy Fahey, who was no longer a Minister after the 2002 general election, was very quick to point out that it was after that date that the Attorney General said that Mr. Faherty did not qualify because he was a part-owner of another boat. Deputy Fahey strongly made the point that he was gone from office at that stage — it was the Department’s baby. The Attorney General gave a direction to the effect that Mr. Faherty did not qualify because he was a part-owner of a boat. I cannot understand why his application was accepted by the Department. Perhaps Mr. Moran can enlighten me somewhat.

Mr. Tom Moran

I cannot. I will come back to the Deputy and the committee on that.

Deputy Tom Sheahan

They are the facts.

Mr. Tom Moran

I am not——

Deputy Michael Creed

And the Attorney General's advice.

Deputy Tom Sheahan

The Attorney General stated that Mr. Faherty did not qualify under that. Deputy Fahey pointed out that he was gone from office and that it was the Department which deemed that Mr. Faherty qualified.

Acting Chairman (Deputy Bobby Aylward)

Time is up.

Mr. Tom Moran

My understanding is that the case in question is a completely different one to one which is the subject of the Ombudsman's inquiry.

Deputy Tom Sheahan

It is all about qualifying criteria and, as Mr. Moran has said, equitable administration.

Mr. Tom Moran

I was quoting the Ombudsman when I said there is no evidence to suggest that the scheme was not applied equitably after it was launched.

Deputy Tom Sheahan

I have such evidence. I am saying that it was not applied equitably because of what happened in this case. As Deputy Fahey pointed out, it was the Department — not him — that made the ruling in this case. I believe the Department is hiding behind the Attorney General's advice, which is something that happens regularly. As mere mortals, we cannot access the advice of the Attorney General. We discovered, following a freedom of information request, that the guidance given by the Attorney General was that Mr. Faherty did not qualify but the Department deemed that he did qualify and sanctioned his tonnage and capacity.

Acting Chairman (Deputy Bobby Aylward)

Can Mr. Moran answer that?

Mr. Tom Moran

It is not a question of hiding behind the Attorney General's advice. The Deputy is familiar with the position in relation to the publication of legal advice. The concerns we have are set out in the report, in the letter from Randall Plunkett. As I have said, that was drafted following consultation with the Attorney General. That is the basis of the Department's concern. It is not a question of hiding behind anything at all. It is a question of the proper management of taxpayers' money.

Deputy Tom Sheahan

The Department received information from the Attorney General, but then ignored it.

Acting Chairman (Deputy Bobby Aylward)

We have gone some minutes over time.

Mr. Tom Moran

That is a separate issue altogether.

Deputy Tom Sheahan

Sorry, how can Mr. Moran say that the Lost at Sea scheme is a separate issue? The Department received advice from the Attorney General, but it was ignored.

Mr. Tom Moran

Okay. I am afraid I cannot comment on that case because I need to check it.

Deputy Tom Sheahan

I hope Mr. Moran will revert to the committee.

Mr. Tom Moran

I will.

Deputy Tom Sheahan

I appreciate that.

Acting Chairman (Deputy Bobby Aylward)

Can Mr. Moran come back to us on that question?

Mr. Tom Moran

I will come back to the Deputy on it.

Acting Chairman (Deputy Bobby Aylward)

That is grand.

Deputy Christy O’Sullivan

I thank Mr. Moran for his detailed statement and his comprehensive answers to the questions which have been asked. He has confirmed the concerns I have had for some time about the setting of a precedent with regard to other schemes. A few people have contacted me to say they are interested in this situation, having been barred from schemes because of late entry and for other reasons. They think this case will have a bearing on where they go from here. Mr. Moran has commented on that. I would like to ask about the legal advice the Department sought on this matter. The Ombudsman said the last time she appeared before this committee that she did not seek legal advice. Does Mr. Moran think it would have been prudent for her to have done so? Is the Department aware that the Revenue Commissioners were unable to agree with three of the Ombudsman's recommendations? Can Mr. Moran comment on why that might have been the case? It is obvious that there must be some reason the Revenue Commissioners were unable to go with the three recommendations. I would like a comment on that.

Can Mr. Moran comment on why so few people qualified for this scheme? I would have thought it would have had a wider base. Quite a few people in my constituency have lost boats at sea. I would have thought they would have filled the criteria. When their cases were examined in detail by the Department, obviously they were found not to be suitable. Perhaps Mr. Moran will comment on that. Can he confirm, on the basis of the Department's records, that the then Minister, Deputy Fahey, specifically requested that compensation be provided in the form of tonnage rather than money? I understand he went further by providing that people who were actively fishing at the time of the application, rather than those who had left the fishing scene, be considered. I am looking for answers to the few questions I have asked.

Mr. Tom Moran

We received legal advice, as we are required to do before we take a decision that may have implications for taxpayers and for the Exchequer. We need to be very careful, particularly in the current climate. We received legal advice on this important issue. We took the report seriously. It is unusual for the Ombudsman to present a report of this nature. It is obvious that we considered it with the utmost seriousness. We took legal advice on the final recommendation. That is why we have the position we have. I cannot comment on the question of whether the Ombudsman should have taken legal advice. It is not my place to comment on how the Ombudsman's office works. The difference is that whereas the Ombudsman is making a recommendation about something, the decision to go in that direction has to be taken by the Department and the State.

Deputy Christy O’Sullivan

Can Mr. Moran give his opinion on whether it would have been prudent for the Ombudsman to have taken legal advice on such a serious matter?

Mr. Tom Moran

I honestly would not have an opinion. I would not offer an opinion on how the Ombudsman should do her business. It would not be appropriate for me to do that. I honestly do not know why the Revenue Commissioners did not proceed with the three cases. The Revenue Commissioners would have considered all the pros and cons in the same way as any other arm of the State. I can only comment on——

Deputy Christy O’Sullivan

Would it be fair to say it could see serious implications to adopting the Ombudsman's recommendation?

Mr. Tom Moran

I do not know why. What I do know from my own experience is that when there is a recommendation or suggestion and an action is taken thereon, one must consider the wider implications, both within one's own area and beyond. That is why we have to operate with a certain amount of caution. We cannot simply take decisions that have implications far and beyond the issue we are dealing with. That is the basis on which we have taken the line we have on this report.

As to why only three people were accepted, the criteria were quite strict and tight. Of the 68 applications, 52 were unsuccessful. Thirty-seven of them were rejected based on one particular criterion, 49 based on the next, 45 based on the next, 11 based on the next, 39 based on the next, and 37 based on the next. People failed in respect of multiple combinations of criteria. The rules were strictly applied in order to target those at whom the scheme was aimed, in other words, people who had lost a boat and were in fishing and wanted to return to it after the date on which the lid came down in terms of capacity. It was deliberately aimed at targeting those who were suffering from the existence of the capacity limit.

Deputy Christy O’Sullivan

The final question related to the confirmation the then Minister requested. I refer to tonnage rather than a monetary payment. Was that a factor?

Mr. Tom Moran

I can check that.

Deputy Christy O’Sullivan

Did the then Minister request any further criteria?

Mr. Tom Moran

Looking back on the papers, as we have done in detail, we noted the elaboration of a scheme involved the contribution of very many officials and the then Minister. An addition was made before the scheme was finally drawn up stipulating it would relate only to tonnage. I believe I am correct that, at the time, the then Minister made that addition. It was not about money although it was wrongly regarded as such by some; it was about capacity. The capacity element was included at the request of the then Minister.

Deputy Michael Creed

Tonnage had a value.

Mr. Tom Moran

Tonnage did not have a value because it could not be sold.

Acting Chairman (Deputy Bobby Aylward)

If any colleagues of Mr. Moran wish to comment, they may do so.

Deputy Christy O’Sullivan

Deputy Ferris referred in the Dáil to money.

Deputy Martin Ferris

I made it quite clear, and it would have been quite clear to you if you had listened to me.

Acting Chairman (Deputy Bobby Aylward)

The Deputies should not talk across the floor to each other, they should talk through the Chair.

Deputy Christy O’Sullivan

I wanted clarification. I believe the Deputy referred to a payment €2.1 million out of a fund of €2.8 million. There was no fund. He was speaking in monetary terms but it was a question of tonnage.

Acting Chairman (Deputy Bobby Aylward)

That has been clarified.

Deputy Christy O’Sullivan

It has not been clarified by Deputy Ferris.

Acting Chairman (Deputy Bobby Aylward)

The Deputies should not begin to address each other.

Deputy Christy O’Sullivan

Perhaps Deputy Ferris will clarify the matter.

Acting Chairman (Deputy Bobby Aylward)

Deputy Ferris may do so, but within the time allowed to Deputy O'Sullivan.

Deputy Martin Ferris

I quoted a figure from the newspaper referring to the monetary value of the tonnage if it were sold. Quite clearly, to say the tonnage is valueless is to misrepresent the matter. The tonnage had a value in terms of capacity. Capacity means the quota with which one could fish. Tonnage could be used to procure bank loans, etc., and to say it had no value is not accurate.

Acting Chairman (Deputy Bobby Aylward)

That concludes the clarification.

Deputy Christy O’Sullivan

There is only one way of clarifying that. May I conclude?

Acting Chairman (Deputy Bobby Aylward)

The Deputy's time is up.

Deputy Christy O’Sullivan

The one way to clarify it is to refer to the record of the House. That will do me.

Deputy Michael Creed

I suggest that Deputy O'Sullivan read the report.

Mr. Tom Moran

Lest I did not make myself clear, I repeat that the then Minister instructed that the tonnage in question could not be sold.

Deputy P. J. Sheehan

I am a little puzzled about the omissions and irregularities associated with the lost at sea scheme. The Byrne family, if allocated tonnage under the scheme, could have proceeded to purchase another fishing vessel, after which it could be compensated under the decommissioning scheme. Is that true or false?

Mr. Tom Moran

That is true.

Deputy P. J. Sheehan

Therefore, the case now rests with the Department in that it did not allocate to the Byrne family the tonnage that was so tragically lost at sea when the family boat went down, resulting in the loss of four lives. We could be talking until the cows come home but it is clear that the Department, when it did not consider the Byrne application for tonnage, robbed that family of the value of the tonnage it could have decommissioned under the decommissioning scheme had it wanted to.

The Ombudsman states this is the first time in 25 years that a decision of her office was questioned and not upheld. There have been only two occasions on which a decision was questioned. One related to financial matters and it was ironed out in a debate in the Oireachtas. This is now the only case in which the Ombudsman's valued decision has not been recognised by the Department. That is an insult to the integrity of the Office of the Ombudsman. It suggests there is something sinister behind the Department's decision and that the Byrne family is the victim. The family definitely did not get the same chance as the other applicants to the scheme. There were 16 potential applicants notified directly by the Department of the establishment of the scheme. Surely the Department had the records for every vessel lost within the period covered by the scheme. The owners of every vessel lost should have been notified. Why was the scheme only advertised in relatively minor papers that may not have been in circulation in Donegal? Why was it not advertised in the Donegal Democrat? Why was it not advertised in some national newspaper that was circulating in Donegal? The case is clear. The Byrne family has been treated very badly by the Department. In the eyes of the public the onus rests with the Minister for Agriculture, Fisheries and Food to make compensation to the Byrne family. They were entitled to their tonnage and they were debarred from getting it. There was no point in them purchasing an alternative fishing vessel because they would get no tonnage for it and they would have to buy the tonnage. Therein lies the tale. They had a fine boat that, unfortunately, was lost at sea to which was attached the tonnage for which they should be compensated.

Unfortunately, there were shortcomings in the Department that were clearly identified in the Ombudsman's report. A dereliction of power by the Department was clearly shown in not adhering to the recommendations of the Ombudsman that compensation would be paid to the Byrne family according to the conditions I outlined. It is clear from Mr. Moran's reply that having considered the complaint made by Mr. Byrne and following extensive examination and correspondence between the various parties the Ombudsman found for the complainant in her first draft report and decided to award substantial monetary compensation to the family.

The Ombudsman clearly accepted in her report that the complainant's family did not meet at least two of the conditions of the scheme but raised issues relating to the design and publication of the scheme and whether they were factors in the Byrne family not being able to qualify for participation in the scheme. The Ombudsman concluded that the family had been adversely affected by those factors or shortcomings in the Department. I appeal to Mr. Moran to act the gentleman in this case and to advise the Minister to accept the recommendations of the Ombudsman's report. It is evident that there were shortcomings in the Department and that the Byrne family were inhibited from benefitting under the scheme. The only course of action for the Department is to accept the recommendations of the eminent Ombudsman, Ms O'Reilly, and clear up the issue once and for all.

The Byrne case is the only outstanding case in the lost at sea scheme. Once a decision is made in this matter all the cases will be closed. It will not break the country economically. We were able to send €1.5 billion to Greece to bail them out. In the name of heavens what we are talking about is only peanuts as far as this case is concerned.

I urge Mr. Moran to reconsider his statement, which is a good one. I give him credit for that. It pinpoints that there is a doubt in his mind about the reliability of the Department's procedure and the decision made by the Ombudsman. Therein lies the case. On behalf of the Byrne family, I respectfully ask Mr. Moran to reconsider his verdict. Two wrongs do not make a right. The Department was wrong in that the conditions were not specifically applied. The only thing the Byrne family did wrong was not to apply in time, but they were not aware of the scheme at the time and they were not aware of the consequences of the scheme. Therefore, that clears their share of the blame but the Department is still shrouded in the obvious cover-up of something sinister in the scheme that I do not like. I appeal to Mr. Moran to reconsider his decision on humanitarian grounds and once and for all to make a favourable decision on behalf of the Byrne family.

Mr. Tom Moran

I accept many of the points. I listened carefully to what Deputy Sheehan has said. The only point I would make is that, first, we have already dealt with the reasons the application fell outside the scheme. They were acknowledged by the Ombudsman. As to the role of the Ombudsman and why the Department should take the position it takes on her report, all I can say is that it is not something that was done without serious consideration. The reasons the position was taken have been set out in the report and in my earlier intervention. We are concerned about extrapolation, precedent and risk to taxpayers' funds. We are taking a balanced view. I very much look forward to the deliberations of the committee.

Perhaps the concerns we have, backed as they are by legal advice from the legal unit and the Attorney General, are ill-founded. I look forward to hearing other views. I assume that is what the process is about. The Ombudsman has acknowledged that the Department, or any Department, is not bound in law to do anything with the report, which is submitted to the Oireachtas for it to do what it chooses. The response is that the specialist committee, the Oireachtas Joint Committee on Agriculture, Fisheries and Food is examining the matter. That is all I can say. I have already dealt with some of the questions asked by Deputy Sheehan.

Deputy Eamon Scanlon

Was the tonnage received by successful applicants under the lost at sea scheme beneficial when it came to the decommissioning of vessels?

Mr. Tom Moran

As I understand it, if, having benefitted under the lost at sea scheme that capacity was attached to a boat and it could subsequently be decommissioned as part of the new scheme.

Deputy Bobby Aylward

According to Deputy Fahey, who appeared before the committee last week, such boats could not be decommissioned.

Mr. Tom Moran

If they met all the other criteria for the decommissioning scheme then my understanding is that the boat could be decommissioned.

Deputy Bobby Aylward

That needs clarification. Two witnesses are saying two different things.

Deputy Eamon Scanlon

My question is whether any of those people who benefitted under the scheme qualified for decommissioning.

Mr. Tom Moran

I will get that information for the Deputy. I do not know off-hand. I will get back to the Deputy.

Senator Pearse Doherty

Does Mr. Moran believe the scheme was set up by the Minister through instructions to his officials to ensure it would benefit his own constituents?

Mr. Tom Moran

There is no basis for that assertion. The position of the Department, in its various iterations back to the time of the Department of the Marine and Natural Resources, and the Department of Agriculture, Fisheries and Food since 2007, is that the response to that allegation has been set out in the report.

Senator Pearse Doherty

Would it be usual for an official within the Department to record the minutes of a meeting to the effect that the Minister then suggested that Ms White, who we know to be an official in the Department, and Mr. Dermot Donegan, the signatory of the minute, should meet with the Minister the following week to discuss the possibility of allowing the replacement, in particular in the case of his constituents? Would it be usual for the Minister to direct officials to meet with him to ensure a scheme was devised, according to my reading, to benefit his own constituents?

Deputy Bobby Aylward

That allegation cannot be proven.

Senator Pearse Doherty

It is a minute of the meeting.

Deputy Bobby Aylward

Yes, it is a minute. It is wrong to make the allegation that the scheme was devised to help the Minister's constituents.

Chairman

Please, Deputy Aylward.

Senator Pearse Doherty

The minutes of the meeting suggest the then Minister, Deputy Fahey, suggested Ms White, an official in the Department, and Mr. Dermot Donegan should meet him to discuss the possibility of allowing the replacement, in particular, in the case of his constituents. The Secretary General may not have evidence, but I have just referred to an official departmental document signed by a departmental official. Is that statement false?

Mr. Tom Moran

All documentation surrounding the scheme was made available to the Ombudsman.

Senator Pearse Doherty

Is the minute false?

Mr. Tom Moran

I cannot see it. I would have to look at it. I am sure it is not false.

Senator Pearse Doherty

I will read it again. It states: "The Minister then suggested that Ms White and myself should meet with him next week to discuss the possibility of allowing the replacement, in particular in the case of his constituents". Is that a false record of the meeting in question?

Chairman

Is that in the Ombudsman's report?

Senator Pearse Doherty

It is a document received under freedom of information legislation, which was obviously a basis for the Ombudsman's report. Does Mr. Moran believe this to be a false statement from an official in the Department?

Mr. Tom Moran

I do not doubt the Senator, but I do not believe the statement is false. I take in good faith what the Senator has stated.

Senator Pearse Doherty

Given that Mr. Moran believes the statement I cited is not false, he accepts that the then Minister instructed two of his officials to meet him to discuss allowing his constituents, in particular, to have a replacement.

Mr. Tom Moran

What I am saying is that I have no reason to doubt that what the Senator has in his possession is a document from the then Department.

Senator Pearse Doherty

Obviously, I do not work in a Department and have not had an opportunity to be a Minister. Was it acceptable for the then Minister and his officials to meet individuals who were clearly benefiting from the scheme — the constituents of the former Minister, Mr. Faherty and Mr. Mullen, to whom the minute refers — to discuss the criteria for the scheme which had not been implemented or advertised at that point? Would such circumstances arise today? In other words, would a Minister and officials sit down with the potential beneficiaries of a scheme to discuss terms and conditions which were being drafted?

Mr. Tom Moran

As I stated, when a scheme is being drawn up, the terms and conditions are discussed far and wide. Consultations take place with the various farming and fishing organisations and so forth to obtain a comprehensive view and try to achieve the objective set. Ultimately, the Minister sets the political objective and the dialogue between the Minister and the officials leads to a view. Inevitably, differences of opinion, nuances and so on arise from time to time. Ultimately, however, it results in a scheme that best suits the objective of the Government of the day.

Senator Pearse Doherty

Mr. Moran has indicated we must always place this matter in context. Let us do so. The then Minister notified his officials to ring-fence a scheme for six or eight individuals. It is not, therefore, a broad scheme but a limited one which could potentially benefit six to eight individuals. This was done in a hand-written note from the then Minister. To take a hypothetical scenario, if, tomorrow morning, the Minister for Agriculture, Fisheries and Food indicated that he wanted to meet two out of six or eight potential beneficiaries of a scheme to discuss the criteria under which the scheme was to be established, would it be right or wrong for such a meeting, attended by the Minister and departmental officials, to take place?

Mr. Tom Moran

In the precise way in which it is described, I would not be overly comfortable.

Deputy Frank Fahey

Let me clarify a point. I clearly stated at the committee and in the Dáil that I had used the example of an accident off west Cork involving two fishing boats from the Aran Islands and asked for documentation to prove that there were legitimate cases which had been lost at sea and that the people concerned were still fishing. There has never been any question or doubt about this. I did not on any occasion ask officials in the Department to introduce a scheme for two constituents. That was never an issue, nor was it a finding of the Ombudsman's report.

Senator Pearse Doherty

I am satisfied with the Secretary General's answer. We have clarification.

On the Ombudsman's report, numerous items of correspondence were issued by the Department to the Ombudsman and four reports have been produced. The primary reason for refusing the application of the Byrne family to participate in the scheme was that it had been made after the deadline. Although the Department submitted four separate reports to the Ombudsman and numerous correspondence thereafter in response to subsequent requests for information, it did not at any time inform the Ombudsman that an application had been accepted after the deadline, indeed after the application from the Byrne family had been received. Does Mr. Moran believe it was correct to withhold this information from the Ombudsman, given that this was the primary reason for the Department's decision to refuse the application made by the Byrne family? The Ombudsman's report was completed without the knowledge that a late application had been accepted, albeit in exceptional circumstances. Was it appropriate that the Department did not share this information with the Ombudsman?

Mr. Tom Moran

I have no reason to believe any information was withheld from the Ombudsman. I am working on the basis that all files were made available to the Ombudsman.

Senator Pearse Doherty

Should the Department have been more forthcoming, given that the reason provided for refusing the Byrne family's application was that it had been submitted outside of the specified timeframe? Should the Department have informed the Ombudsman that an application had been accepted, not only more than one year late but three or four months later than the application made by the Byrne family? On the basis of trying to get to the bottom of this issue and to be honest and open, should this information not have been forthcoming from the Department in any one of its four reports or items of subsequent correspondence issued to the Ombudsman's office?

Mr. Tom Moran

As I stated, the Department's dealings with the Ombudsman in this matter were honest, open and transparent. All files were made available and numerous interviews took place with relevant people, all of which are documented in the report. I have no reason to believe anything was withheld.

Senator Pearse Doherty

I am not saying it was withheld and if I used words to that effect, I withdraw them. Mr. Moran does not believe it was necessary for the Department to volunteer the information to which I referred, given that the reason given for refusing the Byrne family's application was the delay in submitting the application. Was this not an important piece of information in relation to the report the Ombudsman was compiling?

Mr. Tom Moran

That is not what I am saying. What I am saying is that all the information was made available to the Ombudsman. All of the files were opened and there was a complete, full, open and transparent interaction with the various officials involved.

Senator Pearse Doherty

Opening the files and asking the Ombudsman to trawl through them in chronological order is one thing — we know from statements in the report that files were sketchy, that there were notes on the bottom of files and so forth — but volunteering the information in any one of the four reports from the Department to the Ombudsman is a different matter. If the Department believes it was unnecessary for it to volunteer the information, that is fine, but I believe it should have been volunteered. Does Mr. Moran believe, even now, that it was right the Ombudsman completed her report without the knowledge that a late application had been accepted by the Department? In hindsight, should the Department have volunteered the information in one of its reports?

Mr. Tom Moran

It is not a question of hindsight. I have outlined my understanding of what the case involved and made that as clear as I can. It was a totally different set of circumstances from the one being discussed. I do not know whether it was discussed with the Ombudsman in the course of the interviews. I reiterate, however, that all of the information on this scheme was made available to the Ombudsman. Why would it not be, given that the policy of the Department is to co-operate 100% with the Ombudsman?

Senator Pearse Doherty

Mr. Moran accepts that this information was not submitted to the Ombudsman in any of the four reports. The Ombudsman stated before this committee that it was only in the weeks prior to our meeting that she had been made aware that a late application had been accepted by the Department.

Mr. Tom Moran

If that is something the Ombudsman said, I do not have any reason to doubt her.

Senator Pearse Doherty

As we noted, one individual was able to overcome the criterion concerning the closing date for applications under the scheme. Does Mr. Moran accept that some of the other criteria were also bent or that applicants were able to overcome them?

Mr. Tom Moran

I would have thought that the question of the deadline would always be a primary criterion. We are talking about a year after the closure of the scheme. Senator Doherty will understand that all of us, civil servants and elected Members of the Oireachtas, are always dealing with deadlines, regardless of what they are. If a deadline that is way beyond a year is pushed out further, that is a primary criterion. I do not believe, from looking at the case the Senator has just referred to, that it is comparable, because there was ongoing dialogue and misinformation on the registration number.

Senator Pearse Doherty

We also know, as Members of the Oireachtas and senior civil servants, that when criteria are set, these are implemented to the letter of the law. Where it states that an application has to be received by 31 December, if the criterion is to be applied and it is not received by that date, regardless of the correspondence that had ensued beforehand, the criterion must stand. If an application is accepted after that date, then the applicant does not fulfil the criterion and the Department, rightly I believe, has allowed this issue to be bent in this matter. The problem I have is that the same facility was not afforded to the Byrne family, but I want to move on in relation to other applications.

Chairman

The Senator has exceeded his time. I allowed him time for Deputy Fahey's intervention.

Senator Pearse Doherty

In several other cases tonnage was awarded under this scheme, for example, the Rising Sea. Was any information provided to the Department before that applicant was granted tonnage to indicate that the family concerned was in a position to avail of the scheme, since we know that they were not? On other applicants who were awarded tonnage, what monitoring was done to ensure that they are in compliance with the scheme?

In correspondence with the Ombudsman signed by the Secretary General, he stated that the family had not been involved in the fishing industry for the past 20 years. What evidence did he have to make that claim? That is a claim which was repeated by Deputy Fahey before the committee where he talked about the documentation available to him at the time. I just wonder what documentation was being referred to. I understand that new information has come to light, and that is fair enough.

Mr. Tom Moran

That is a good question in relation to the monitoring. The Sea-Fisheries Protection Authority, SFPA, monitors the implementation of the conditions the tonnage recipient must adhere to. The situation is monitored on an ongoing basis.

On the other boat to which the Senator referred, the normal checks would have taken place. I refer him, again, to the comments by the Ombudsman — because this is the report we are discussing — who said that the scheme applied once it was launched, and that there was no problem with it.

Senator Pearse Doherty

Mr. Moran indicated that the monitoring was done to ensure that the tonnage recipient continued to fish, but the actual scheme talks about the fact that he or she needs to own and skipper the boat in question, or an immediate family member has to do this. We are only talking about five boats now, because as we know, the Rising Sea was not able to avail of the scheme. Does Mr. Moran know whether the five are still in compliance with that condition to the effect that they themselves, or immediate family members, skipper — or has that condition also been allowed to bend, somewhat?

Mr. Tom Moran

I am told there is ongoing monitoring of those who benefited and the criteria are checked on that basis. The SFPA is involved in that monitoring process.

Senator Eugene Regan

There is a bad word that I have used in this debate, namely, maladministration. The former Minister sees red when I mention this word. Mr. Moran has said there was no finding of maladministration by the Ombudsman. I make no distinction between maladministration or contrary to fair and sound administration, and neither does the Ombudsman. In a letter from her to the Secretary General of the Department, dated 5 June 2009, she says: "My finding of a 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." She mentions "maladministration" further here, on page 18 of the report, as well as on page 59.

There could hardly be any doubt in the Secretary General's mind that this was her finding, when she expressed this in a letter to him in June 2009. Will Mr. Moran accept that this was her finding?

Mr. Tom Moran

We have not accepted that. In a response to the Ombudsman, we said we did not accept that. However, I am just quoting from her findings, and rather than referring to the correspondence I am talking about Nos. 1 to 4, inclusive, of her findings. The first finding says two of the conditions of the Lost at Sea scheme were not met and the second said the scheme was contrary to fair and sound administration. That is the finding that I was basing my——

Senator Eugene Regan

This is a letter to the Secretary General. It is part of the report, appendix (D), which has been sent to us, and she clearly indicates that she has made a finding of maladministration. She makes no distinction between that and "fair and sound administration".

Mr. Tom Moran

In commenting on the draft report, a letter the Deportment sent back to her appears in appendix 4 of the report.

Senator Eugene Regan

I appreciate Mr. Moran's position and the fact that he does not agree with her. All I am asking is whether he accepts that this is the view she took of this scheme, as expressed in this letter to the Secretary General.

Mr. Tom Moran

I do not doubt what the Ombudsman has said in her report.

Senator Eugene Regan

One of the primary objections to the findings of the Ombudsman is the implication, the precedence. We accept that in the Ombudsman's report and recommendations, she does not make law, nor does she create precedent in law. Is that not correct?

Mr. Tom Moran

The Ombudsman has made a report to the Oireachtas.

Senator Eugene Regan

It is about administration. It is not precedence in a court of law, but rather principles of good administration that are at issue. When we talk of principles we are not talking about creating precedence in law.

Mr. Tom Moran

No, we are talking about administrative precedence that we might have. The concern of the Ombudsman in presenting a report to the Oireachtas is one thing, but how we respond to that, in the event, is not set out in the law.

Senator Eugene Regan

The implications Mr. Moran is concerned about relate to this and other schemes across the whole Administration which may have financial implications. Let us deal with the other schemes, which have not been the subject of an Ombudsman's report which says that the design of a particular scheme is flawed. I cannot see how, in relation to those schemes, there can be any precedent, administrative or otherwise, created. Would that be a fair point?

Mr. Tom Moran

No, by definition we have taken the advice given to us, which says that there is a risk in that regard. I take it that is an opposing view, given the Senator's background as a member of the legal profession. The view of the committee may be to accommodate different opinions, but I am saying that this was the advice which was made available to us, within the Department and from the Attorney General. That is why the last letter from the Department to the Ombudsman, was written by Mr. Randall Plunkett, head of our legal unit, in conjunction with the Attorney General. This is the advice that was open to the Department, while I appreciate the Senator may take an opposite view.

Senator Eugene Regan

The point I am making is that if schemes are not found to be flawed it can hardly appear that one can have a claim under such schemes. In relation to the Lost at Sea scheme, the Ombudsman has clearly clarified the narrowness of the scope for further claims, and she has dismissed a number of them.

Does Mr. Moran accept in terms of the financial implications either in this scheme or others, that it is not a consideration which goes to the merits of the Byrne family case to the Ombudsman, and her findings on the merits?

Mr. Tom Moran

Is the Senator saying it is not a consideration?

Senator Eugene Regan

The impact it would have is an extraneous consideration to the merits of the case. In other words, if the Ombudsman had made the same findings and awarded €10, the Secretary General would not have the same concerns about this matter.

Mr. Tom Moran

No. The Department has already responded to the detailed findings of the Ombudsman in the report. They are set out very clearly in the correspondence. They dealt with the specifics of her findings. Having regard to the conditions she acknowledges were not met in the scheme, there is concern within this scheme and beyond. That is not to say that the concern focuses on the precedent, as if everything else is accepted.

Senator Eugene Regan

I accept that, but the implications are the Department's primary concern, and they do not go to the merits of the case on the finding of the Ombudsman that the scheme in which the Minister and the Department were involved was flawed. In her draft investigative report, she said that it was clear to her from his interview and the documentation on file that the Minister would have been anxious to ring fence the cases of Mr. Faherty and Mr. Mullen and the High Court action and that they would all be successful. That is the kernel of the issue. That is where she found the scheme to be flawed. Looking at the merits of her findings and recommendations, the financial implications and the implications for other schemes have nothing to do with that examination of the merits.

Deputy Frank Fahey

On a point of information, there was no finding in the Ombudsman's report that the scheme was flawed.

Senator Eugene Regan

The former Minister will have an opportunity——

Chairman

He is entitled to come in on a point of order.

Deputy Frank Fahey

The term "flawed and deficient" was in a letter that was sent to the Byrne family before any preliminary findings were made by the Ombudsman. There was no finding in the Ombudsman's report, of a preliminary nature or otherwise, that the scheme was flawed.

Senator Eugene Regan

In respect of the value of the benefit conferred on a select few individuals in this scheme, Mr. Moran mentioned that one could not put a price on it because the replacement tonnage could not be sold. However, it is like the milk quota as it is allocated and it has the capacity to generate a stream of income if used properly and efficiently. Therefore, it has a value. Does Mr. Moran accept that it has a value to those to whom it is granted?

Mr. Tom Moran

In so far as it is a production right of sorts, it has an income value attached to it. However, it has no monetary value in the sense that it cannot be bought or sold. Somebody allocated the tonnage cannot then sell it and gain money from it. They have to use it and make money from it.

Senator Eugene Regan

There is confusion in language here. Deputy Fahey indicated that it had no value, and he spoke to one of the gentlemen in question who said that he lost money on it. We are confusing price, which could be determined if it had a sale value at the time, and the value from the stream of income that would be generated by this replacement tonnage. Is that correct?

Mr. Tom Moran

It is conferring the right to produce on the people. They must have the capacity to do that and a value can be taken from it. It is not something that they could be given and then sell the next day for monetary value. That is the point I was making.

Senator Eugene Regan

Something has just been pointed out to me since Deputy Fahey interrupted. The concluding remarks on the report on page 78 state that the overall design of the scheme was faulty and left no scope for the exercise of discretion in the event of further deserving cases. That answers the point the Deputy made.

We know that one other applicant made it past the deadline. We know that there can be excusing circumstances, whether it is in court or in administrative cases, where deadlines cannot be met. Does Mr. Moran accept that the Byrne family did not have sight of the scheme by reason of the restricted advertising? I am not interested in whether the restricted advertising was appropriate, but the objective situation in which they found themselves where they could not have applied for the scheme because they did not know about it. Would that not be classified as an excusing circumstance which would merit consideration by the Department?

Mr. Tom Moran

Not in itself, no. I would not accept that for one minute. All Departments have been involved in schemes of various types. If we accept the principle that just because somebody was not aware of the scheme and so can apply later, then where do we draw the line? That could be applied to any scheme for people who did not read the specialist press or the national press. How do we draw the line when somebody comes along a year after a scheme was announced and claims that they did not know? I can understand the situation of people who did not know, but we cannot say that this is an excuse for not applying. It is unfortunate but it applies to every application. People have to know the date by which they do things.

Senator Eugene Regan

Mr. Moran talks of the principle of that issue. Deputy Fahey mentioned that at the last hearing on this. However, at this very time, Deputy Fahey wrote to the former Minister, Mr. McCreevy, seeking a change to secure a ministerial pension and the extension of a deadline by two years. The law was changed to facilitate Deputy Fahey in 2007. He got a commitment from the Minister, who said that a change of this nature would require an amendment to the legislation, and that if suitable legislation arose to accommodate the change, he would use it to make the amendment, although he could not guarantee that such an opportunity would arise. The Minister stands on the principle of deadlines——-

Deputy Frank Fahey

On a point of information——

Senator Eugene Regan

——yet at the very same time, he seeks preferential treatment and special pleading for his own case in this matter.

Deputy Frank Fahey

On a point of information, that issue was brought to my attention by the Department of Finance and it arose because of a discrepancy between the old scheme that existed for ministerial pensions when I became a Minister, and the new scheme that was subsequently brought in. As I qualified under both schemes, it was purely a technical issue that had been overlooked in the initial legislation and which was put right in the subsequent legislation. As usual, it is an effort by Senator Regan to try to distort the facts. It is a fairly pathetic effort to raise the issue in a context with which it has no connection whatsoever.

Senator Eugene Regan

That letter was written to the Minister in December 2001. The application for a pension by the former Minister was made around two years after the date of the entitlement——-

Deputy Frank Fahey

The implication suggested by the Senator is completely untrue and is typical of the Senator's style of operation.

Chairman

We are considering the Ombudsman's report so I ask Senator Regan to stick to that report.

Senator Eugene Regan

It is important because it brings us back to the principles of good administration.

Deputy Frank Fahey

It is the reason the Senator is afraid to face the electorate in the next election.

Chairman

Please, Deputy Fahey.

Senator Eugene Regan

If the Deputy is not nice to me, I will change my mind.

Deputy Frank Fahey

I hope he does.

Senator Eugene Regan

This is about the principles of sound administration. I know the Department officials are concerned about the level of compensation, but the level of compensation determined by the Minister is proportionate to the gravity of the offence, which was an offence of designing a scheme to facilitate a select few. The Ombudsman saw through the scheme conceived by Deputy Fahey. Is it not correct that the Department officials were bullied into this scheme?

Deputy Bobby Aylward

This sounds like a trial of Deputy Fahey. Our role is to examine the Ombudsman's report. We are not here to be judge and jury for Deputy Fahey. We are here to examine the report, not to take on Deputy Fahey's good name. This judge and jury style should not be allowed.

Chairman

Please, Deputy.

Deputy Bobby Aylward

We are putting Deputy Fahey on trial. That is not what we are here for and I must clarify that.

Chairman

I will clarify something. My understanding is that pension rights were changed also for other Opposition Deputies when they were Ministers. I call on Mr. Moran.

Deputy Bobby Aylward

I want to speak.

(Interruptions).

Deputy Martin Ferris

The Chairman is letting in his party colleague.

Chairman

I will allow the Deputy to speak.

Deputy Martin Ferris

We are here for one reason, to get justice for that family.

Chairman

That is right but people are trying to bring in pensions, which is wrong. I fully agree with Deputy Ferris. I call on Mr. Moran.

Deputy P. J. Sheehan

We should be treated the same way as other members——

Chairman

Deputy Sheehan had his time. I ask Mr. Moran to finish by answering Senator Regan and then there will be supplementaries for ten minutes.

Mr. Tom Moran

I will not comment on the last point because I believe it has been dealt with and it is not within my remit. I believe I made it very clear that our concern in this matter, which is important, is without any disregard for the family in question. In my case, since we took over the fish sector in 2007, I personally got to know the fishing sector generally. It is a difficult business and is often put in the same category as farming but it is difficult. We have nothing but respect for the hard work and the people involved. It is absolutely without any hint of disregard for the families, some of whom I believe are present. As Accounting Officer and as public servants, our concern is for the precedent value. It is set out and I shall not reiterate it. It is found in the last letter, in appendix E on page 20 of the report from Randall Plunkett where we set out our concerns.

The question was asked as to why we are here. That is why we are here. We have given our view as to why we are here. The committee, following its deliberations, will take a view and obviously we will have regard to the views of the committee, as we would to any other comments on the matter. We have treated the report with the utmost respect. I have not commented negatively in any way about any of the work that was done in pursuing it and would not do so. We have a concern and that concern must also be respected.

Deputy Michael Creed

I have two questions. The Department administers a host of schemes to some of which the Secretary General made reference, such as the single farm payment, REPS, etc. One of the guiding principles for the terms and conditions that apply is the Department's latitude, which is described by the term force majeure. In other words, if a person did not dot the “i”s and cross the “t”s with regard to the examination discretion was built into the administration of all the schemes, as covered by that term. Is it not reasonable to expect that same principle of force majeure would apply in respect of the administration of this scheme? If it had been applied, notwithstanding the design concerning which the Ombudsman made findings, the late application — which I believe was allowed to another party under force majeure — could have applied here. The condition in respect of “continuous use” is a stand-up case that screams, “this is injustice”, and can be remedied only by virtue of the default in the scheme, namely, force majeure.

Mr. Tom Moran

If we were to grade criteria, although there is no base to grade them, the deadline is a key one. The deadline is more than a year after the scheme closed. As regards force majeure, there is an entire range of law governing this concept, especially in EU law. It does not mean only that somebody can make a case. It is a different issue and has to be provided for in the actual measure. Over the years, since all of this although not because of it, the Department has built up a whole range of appeal systems. We have a statutory appeals office and all our schemes have a built-in mechanism for people to make appeals. We treat that seriously. What we are dealing with in this case is the scheme as it was, the criteria as set out, promulgated and applied fairly. One cannot therefore retrospectively apply conditions to that scheme that might apply in other areas and schemes. The fact is the conditions were not met, which was acknowledged by the Ombudsman.

Deputy Michael Creed

I do not mean this personally but I do not accept that. I am a lay person but I have seen force majeure applied in respect of an entire host of departmental schemes where terms and conditions had not been met. The lay interpretation is that the question was asked whether it was just and fair to waive the factor of non-compliance. That discretion is applied and I believe it would have been right and proper in this case also were it not for the faulty design of the scheme and the preoccupation with applying it to known cases — the handful, the six or eight. This ring-fencing was the apparent guiding principle of the scheme. That goes back to the 120 cases which were brought to the attention of officials in the Department early on which were never investigated. The fact was that officials wrote to 16 and consulted with fewer than that number. It was a faulty design and there is no getting away from that in the context of the Ombudsman’s findings.

I have a concluding question. In her report, for which it is obvious she interviewed various officials, the Ombudsman stated there was never an attempt to define what was a genuine case. In the period during which the scheme applied, when boats were sunk, what was a genuine case? It was all about genuine cases, or was it? Was it about the handful of cases that were on the inside track? The Ombudsman made reference to this in her speech to the committee stating, "These cases were known because they were the people who had been pressing their cases or had their cases presented by their political representatives".

That should not be the be-all and end-all in terms of what determines the Department's state of knowledge about a genuine case. The opportunity to define that condition was lost when the Department declined the opportunity to trawl the 120 cases presented to it. It is the failure to have a first principle. Mr. Moran repeatedly mentioned that this was designed from first principles. However, the failure in first principles was not to define what was a genuine case. After that, let the dice fall where they will and whoever qualifies on the basis of being a genuine case will be beneficiaries. That is the weakness in first principles.

Mr. Tom Moran

I would have thought the design of the scheme moved from first principles. There were 120 cases of incidents in the maritime safety division but those might or might not have been relevant.

Deputy Michael Creed

Exactly, so why not check them?

Mr. Tom Moran

They might not have been complete. There was no way of knowing there were 120. There might have been 140 or more because there was no record at the time of boats having gone down.

Deputy Michael Creed

There were 120 cases.

Mr. Tom Moran

There may have been many more. That is my point.

Deputy Michael Creed

This was at least the starting point for the Department. There were 500 files, 120 of which were defined to concern fishing vessels that had sunk within the prescribed period with which the Department was dealing. However, for some unknown reason, the Department never bothered to define a genuine case. One can go back to the first principles on which the Department appears to be hanging its coat in defence against the Ombudsman's finding. The Department never bothered to define a genuine case and because it did not seem to be interested in so doing, it cannot say that the genuine cases were the 16 to which it wrote, that lesser number or handful with which the Minister was concerned. Genuine cases were never defined within the Department. No effort was made to trawl through the information the Department had at its disposal in that regard. This betrays the line it has taken to the effect that this was designed on the basis of first principles.

Mr. Tom Moran

I understand the Deputy's point. All I can say is that the criteria were set and applied equitably and transparently. Looking back on it, no limits were placed on how many could apply or might succeed.

Deputy Michael Creed

There was no definition of "genuine case".

Mr. Tom Moran

The criteria attempted to set out what was a genuine case. Thereafter, it was open and there was no limitation on how many might succeed.

Deputy Michael Creed

Yes, but they were framed on the basis of known cases, that is, the 16 cases referred to and the handful in the then Minister's constituency.

Deputy Tom Sheahan

I will be brief. During his submission to the joint committee last week Deputy Fahey noted that there had been robust exchanges with departmental officials. I appreciate that Mr. Moran had no part in them, but the Ombudsman stated:

The Minister instructed that the scheme should go ahead but, no doubt in view of the opposition of his officials and some of the producers' organisations, stated in his instruction, "I want to see how we can ring-fence the 6 to 8 genuine cases including those before the High Court".

She also stated:

At no stage during my investigation could I find any records which attempted to define a genuine case and at interview the officials involved seemed not to have a clear view as to what precisely was meant by this. The officials said they framed the scheme based on their knowledge of the sector and EU policy. They also made it clear that once the decision was made to bring in the scheme, they wanted it to be as confined as possible.

Does Mr. Moran have a comment to make on this?

Mr. Tom Moran

No, I have explained what was meant by the comment "confined as possible". It was in the context of an overall cap on the capacity available to the country. As this had been defined at EU level, one could not willy-nilly create more capacity. That was the danger.

Deputy Tom Sheahan

However, Mr. Moran has stated there was no cap on the number of potential applicants.

Mr. Tom Moran

No, there was no cap.

Deputy Tom Sheahan

Does that not fly in the face of what has been said?

Mr. Tom Moran

The criteria were set, the scheme was published and there was a six-month window when the scheme was open. However, once the scheme was published, no limitation was placed on the number of applicants. If people had applied and met the criteria, they would have received whatever was due to them.

Deputy Tom Sheahan

The Ombudsman stated before the joint committee that once the scheme had been brought forward, the officials wanted it to be as confined as possible.

Mr. Tom Moran

That was because, as I understand it, they were concerned about the overall limitation on capacity.

Deputy Michael Creed

Was this an indulgence to the then Minister? Given Mr. Moran's comments and all of the available documentary evidence, it appears as though the officials were not happy. The scheme contravened the multi-annual guidance programme, MAGP, at European level and, ultimately, the departmental officials threw their hats at it. They could not derail the then Minister's intention which I believe was well intentioned in principle. However, his mistake was becoming over-involved in the minutiae of the application of the scheme. The departmental officials eventually threw their hats at it and decided that as they would be unable to derail the scheme, they would attempt to trip it up in some other way in order to confine its application. This is where the finding of maladministration, contrary to sound and fair administration, comes in in that the departmental officials considered it to be a bad idea because of the European legislation governing the matter. This was writ large by all of the departmental officials. They were unhappy with the idea and this is documented. However, once the then Minister over-ruled them, they then moved into overdrive to ensure the scheme would not become a Pandora's box and discredit the Department at European level. While they would indulge the then Minister, his two constituents and a handful of others, they were dammed if they were going to open up the scheme to everyone. That was the purpose of the officials, having lost the first round of the battle with the then Minister.

Mr. Tom Moran

Since 1990 people had been obliged to buy tonnage. Consequently, this was an exceptional measure which pertained to tonnage that would be allocated to persons who had lost capacity and a boat. By definition, some would have paid money for fishing capacity and there would be this exceptional measure. Consequently, it would have been perceived as an exceptional rather than as a wide measure. Unquestionably, it is clear from the papers that the intention was to confine it. By definition, it was an exceptional measure under which an enormous number of people could not have been brought in. Milk quotas were mentioned. On their introduction in 1984, there was a reference period of two or three years beforehand, during which time the milk one milked on one's own farm determined one's quota. During that period, however, people suffered calamities such as animal health diseases or even from human health problems, if the poor old devil in question was sick. When the scheme was introduced, exceptions were made, but by definition, they would have to be——

Deputy Bobby Aylward

Were these force majeure payments?

Mr. Tom Moran

No, they were provided for under the scheme. However, they would have to be exceptional measures. This scheme was confined and exceptional. That is the reason there was a move to restrict it and not to have it as open-ended as——

Deputy Michael Creed

That is the reason the Department did not define "genuine cases".

Deputy Bobby Aylward

On the subject of tonnage and the equation to monetary value, it should be noted that members are simply taking figures and putting forward monetary values of €300,000 to €500,000 for those who received an award under the scheme. However, one must realise this was only for tonnage and that the recipients were obliged to go out and fish. The families concerned were obliged to buy a boat in the first instance. They had to borrow money from a bank and then pay it back from their earnings. Consequently, it is not factual to equate the tonnage granted to monetary values; one is simply using the numbers to make a case.

The joint committee by now has heard witnesses for three days, only one of whom, the Ombudsman, has stated the scheme was contrary to fair and sound administration and involved malpractice and faulty design. While these are all grand words, no other witness, including those appearing before the joint committee today, has accepted this. The job of the committee is to report on the issue. I do not yet accept that all of the comments are right because only one witness has made them. Thus far, although I acknowledge witness will appear for one further day, the other witnesses have said something else.

I refer to the 68 applicants who were excluded under the criteria laid down, as set out by Mr. Moran. On the establishment of a scheme, a set of criteria and terms of reference are drawn up and they were excluded under the terms of reference laid down. The Byrne case is different, in that the Ombudsman produced a special report to the effect that the Byrnes had been unaware of the scheme. I will not go back into this again, as it is a different case and the one on which members must decide in the joint committee's report.

My final point pertains to the vendetta on the part of people who are coming here with a hidden political agenda——

Chairman

I want to allow Mr. Moran to respond.

Deputy Bobby Aylward

Individuals have been coming here who are not even members of the joint committee because of a vendetta and a personality clash——

Chairman

Deputy, please allow Mr. Moran to respond.

Deputy Bobby Aylward

Members must stick to what they must do, which pertains to the Ombudsman's report.

Chairman

Please stick to that job. I call Mr. Moran.

Deputy Bobby Aylward

I was obliged to say what I said.

Mr. Tom Moran

I have no comment to make on it.

Chairman

Absolutely not.

Deputy Martin Ferris

The point that must be cleared up concerns monetary value versus tonnage. Effectively, tonnage equates to quota. By way of analogy, in being here the monetary value of a Deputy is €90,000 a year, but were he or she not here, he or she would not receive €90,000. Consequently, without tonnage, one can make nothing.

Deputy Bobby Aylward

Members also must pay taxes.

Deputy Martin Ferris

As must fishermen. As for the two boats in the constituency of the former Minister, Deputy Fahey, one had a figure of 126 tonnes plus kilowatts, while the other had a figure of 85 tonnes plus kilowatts. It constituted substantial capacity that allowed them to fish in two sectors, not one. They used to fish in just one sector, but they received permission to fish in another also.

People who were earning their livelihoods in the industry lost boats at sea. I agree the lost at sea scheme was a good one, but I am not happy with the way in which it was implemented, the criteria and restrictions applied and the manner in which people were treated because they were unfortunate enough not to have bought the The Skipper or the Fishing Times.

The scheme had a monetary value and no one can say otherwise. In terms of tonnage, what are the consequences where a boat is lost at sea? It is insured on the basis of the value of its tonnage. No one should try to mislead the House, therefore, by stating the scheme did not have a monetary value.

One family was penalised, whereas another was allowed to apply under the scheme at a later date. The Secretary General cannot get away from the fact that his Department allowed one family to apply after the other, allowed it to go through the process and then eliminated its application because it did not meet the criteria, not because it had applied late. The other family was penalised because it had been late in applying, despite the fact it had applied before the second family.

Mr. Tom Moran

I have already taken up this matter.

Senator Eugene Regan

A Department memo, referred to on page 44 of the report, reads: "Piecemeal changes in policy in response to special pleadings from individuals where these changes would run totally contrary to policy objective, give large unrequited gains to these individuals and open up equally 'meritorious' claims, cannot be recommended". The Department was opposed, therefore, to facilitating a few individuals. A handwritten note by the former Minister reads: "Go ahead with proposals subject to conditions laid down in most recent memo". The end result was exactly what the Department did not want and ran contrary to policy objectives. Mr. Moran has remarked that the scheme was designed for first principles, but does he understand why the Ombudsman smelled a rat? The Department did not want individuals to be facilitated in this manner because doing so would have run contrary to general policy and, by extension, the public interest, but that was exactly what it got by direction of the Minister.

On page 46 there is a reference to to specific discussions on the criteria to be used. An undated and unsigned memo relates to a meeting held in Galway between Mr. Paddy Mullen and Mr. Tony Faherty and the then Minister, Deputy Fahey. It is entitled, "Questions Needing Clarification Re: Paddy Mullen and Tony Faherty and Replacement Tonnage," and teases out a number of issues regarding their possible eligibility under the lost at sea scheme as drafted at the time. Where are the general principles? I understand where the Department was coming from, but the then Minister was working to another agenda, of which the Department was well aware because of its stated disagreement with it. Ultimately, it agreed with the then Minister's agenda and, at his insistence, two people received more than 70% of the replacement tonnage which was exactly what the Department did not want to see happen.

Mr. Moran must understand why people and the Ombudsman considered the scheme to be flawed and that there had been maladministration. It seems the Department was bullied into ring-fencing the scheme for the few individual cases that, according to it, did not conform with policy objectives.

Chairman

Mr. Moran can respond. We will then hear from Senator Doherty.

Mr. Tom Moran

I do not propose to comment. We have dealt with these matters, but I take Senator Regan's point.

Senator Pearse Doherty

I want to deal with the criteria to be met by those who had applied, those who were successful and the exceptions made by the Department in the application of the criteria laid down. Does Mr. Moran accept that, in the case of Mr. Faherty and the Joan Patricia, the Department was well aware, as is evident from its checklist, that the individual had acquired another boat, the MFV Day Dawn II, which was in breach of the criteria laid down, yet awarded him tonnage under the scheme?

Mr. Tom Moran

That was the point on which I said I would revert to the committee. I will check the information and get back to the Senator.

Senator Pearse Doherty

Does Mr. Moran accept that departmental officials awarded tonnage to this individual and that the Attorney General later advised that it should not have been awarded?

Mr. Tom Moran

I will revert to the Senator on that question also.

Senator Pearse Doherty

Regarding the case of Ms Carmel Kelly and the Rising Sea, does Mr. Moran accept that, although she was unable to fulfil one of the conditions laid down under the scheme, namely, that she or an immediate family member had to skipper the boat, she was awarded tonnage?

Mr. Tom Moran

I do not understand the question.

Senator Pearse Doherty

Does Mr. Moran accept that Ms Kelly was awarded tonnage under the scheme, despite of the fact that she was unable to meet the condition that she or an immediate family member had to skipper the boat?

Mr. Tom Moran

Yes, that is true.

Senator Pearse Doherty

Was an exception made in this case prior to the tonnage being awarded? If the Department accepted the fact that no one in her immediate family could skipper the boat, how was it able to award the tonnage?

Mr. Tom Moran

There was compliance with the criterion on usage.

Senator Pearse Doherty

Was her application checked to determine whether she could satisfy that criterion before she was awarded tonnage?

Mr. Tom Moran

The conditions read:

The capacity of a fishing vessel lost at sea will be accepted as replacement capacity for licensing purposes only if it is to be used for the purposes of sustaining or maintaining a family tradition of sea fishing. Any capacity accepted as replacement capacity must therefore be used for the purposes of introducing a replacement for the lost vessel which will be owned and skippered by the applicant or by an immediate relation of the applicant. Any capacity from a lost vessel so used may not be sold or otherwise disposed of.

Is that the issue?

Senator Pearse Doherty

No. Perhaps I am not formulating my question clearly enough. I understand the criterion; it is not in dispute. My question is whether departmental officials sanctioned the application of the individual in question to avail of the replacement capacity under the scheme despite the fact that she was unable to meet the criterion read by Mr. Moran? Was her compliance with the criterion checked prior to notification from the Department that she had been awarded the tonnage?

Mr. Tom Moran

Ms Kelly had two years in which to find a family member to skipper the vessel. Since she was able to do so, the application lapsed.

Senator Pearse Doherty

Therefore, there was an exception made, in that the Department allowed her two years to find an immediate family member to skipper the boat. Is it not the case that the two-year period is not provided for in the criteria?

Mr. Tom Moran

The two-year use it or lose it rule applied as part of the original arrangements.

Senator Pearse Doherty

She or no one else needed to prove——

Mr. Tom Moran

She had two years to do so.

Senator Pearse Doherty

I understand, but no one who applied to participate in the scheme needed to satisfy that criterion prior to or during the application process. He or she would have had a further two years to satisfy it.

Mr. Tom Moran

No. As I understand it, someone would have used the capacity and that this would have been subject to the checks mentioned involving the Sea-Fisheries Protection Authority. In this case, the person concerned——

Senator Pearse Doherty

Yes, but applicants would not have needed to prove to the Department that they satisfied the criterion during the application process. Rather, they had two years in which to satisfy it. Is this Mr. Moran's instruction to the committee?

Mr. Tom Moran

That was a criterion that applied after the award. When it was made, it was one of the criteria relating to the use of the awarded capacity.

Senator Pearse Doherty

Does Mr. Moran agree that, after the award was made, the Department interpreted the criterion and allowed the two-year rule to take effect? There was no mention of such a period during the advertisement of the scheme up until the closing date. Only after the tonnage had been awarded did the two-year rule take effect. It was an interpretation of the criteria.

Mr. Tom Moran

I will pass that question to an expert.

Mr. Paschal Hayes

The conditions of the scheme are listed from (a) to (g). These were the tests applied to applicants. The condition on skippering the vessel was a licensing condition rather than one attached to qualifying under the scheme. In the case to which Senator Doherty refers, the person applied, met the conditions from (a) to (g), was awarded capacity and had to skipper the vessel herself or find an immediate family member to skipper it in order to satisfy the licensing condition. She was unable to do that.

Senator Pearse Doherty

That condition did not have to be satisfied prior to the application or prior to when it was granted. It had to be satisfied afterwards.

We accept there was a late application. The exception was made to one of the criteria laid down in the scheme from (a) to (g).

Mr. Tom Moran

I have outlined the circumstances surrounding that particular case. They are not comparable.

Senator Pearse Doherty

I am not asking Mr. Moran to make a comparison. Regarding the MFV Joan Patricia, which we have documentation for, an exception was made to the criteria, namely, the criterion for ownership of another vessel. I ask Mr. Moran to confirm an exception was made to the criteria in respect of the closing date. We have the letter that says the Department agreed, exceptionally, to afford the person the opportunity to make an application retrospectively. I ask Mr. Moran to confirm that on this occasion, the second incident we know about, exceptions were made to the criteria of the lost at sea scheme.

Mr. Tom Moran

Does this concern the MFV Claire Marie?

Senator Pearse Doherty

Yes.

Mr. Paschal Hayes

My understanding is that the owner of the MFV Claire Marie had been in telephone contact with the Department with a view to getting the vessel admitted to the scheme. There was confusion in respect of the registration number of the vessel and the ships register, which is held by the Revenue Commissioners. The owner was given information that the registration number belonged to another vessel and that he was not entitled to apply. It became clear this information was not correct at the time and the case was made that in view of that fact the vessel should be admitted under the lost at sea scheme.

Senator Pearse Doherty

I am asking the departmental officials to accept an exception was made to the criteria in the scheme with regard to the closing date.

Mr. Paschal Hayes

In the context of how I described it happening.

Senator Pearse Doherty

There was an exception and I contend that, in respect of another criterion that applied to Mr. Tony Faherty, another exception to the rules was made. We will wait for a response at a later stage.

Mr. Paschal Hayes

It is a technical point and we were looking for an opportunity to give both committee members a detailed response on this. We can follow up on this later. Condition (f) of the scheme reads: "the applicant has been unable also, for verified financial or related reasons, since the inception of the new registration system, to acquire a fishing vessel to engage in sea fishing of the same class or description as was carried out by the vessel lost at sea or any other sea fishing vessel which is subject to the replacement policy regime". My understanding is that the vessel to which Senator Doherty refers was fishing in the specific segment that was not subject to the replacement policy regime.

Senator Pearse Doherty

My interpretation of what Mr. Hayes is saying is that it was on advice from the Attorney General, who said the decision by the Department was incorrect in that regard. Does Mr. Hayes accept that?

Mr. Paschal Hayes

The reason I am saying it is technical is that this gets into segmentation of the fleet and the segments involved in the replacement policy regime. My understanding is that the vessel to which Mr. Doherty refers was fishing in the specific segment that was not subject to the replacement policy regime at the time.

Senator Pearse Doherty

The advice of the Attorney General was that replacement capacity should not have been made available to that individual and that vessel.

Mr. Paschal Hayes

We must revert to Senator Doherty on that point.

Senator Pearse Doherty

Does Mr. Hayes not have this information to hand? This is a major point of the lost at sea scheme. After the advice of the Attorney General was provided, documentation was issued to the individual that put the matter on hold. Then there was an affidavit and documentation from chartered accountants. A decision was made by the Department to grant tonnage on the basis that there was an expectation the individual would have been granted something because of the letter sent by the then Minister, Deputy Fahey. Is Mr. Hayes telling me he does not know what the advice of the Attorney General was or that the Attorney General called into question the granting of tonnage?

Mr. Paschal Hayes

Without the files to hand, it is difficult to provide the answer. Senator Doherty obviously has a good grasp of what happened. From memory, it seems that following the advice the applicant submitted an affidavit stating he did not have a beneficial interest in the vessel in question.

Senator Pearse Doherty

My final question concerns the files of the Department. I will paraphrase Deputy Fahey and I apologise if I am inaccurate. He questioned why the Ombudsman did not come to him to discuss the matter at an earlier stage because he had a large file on the lost at sea scheme, which he has since destroyed. If the Minister has a file on the case, is it usual for him to destroy the file or are copies of the file available in the Department? How does this work? I am not familiar with the workings of the Department and the Minister. How can the Minister have a separate file to what is in the Department and how can the files be destroyed?

Chairman

Can Senator Doherty please turn off his phone? It is interfering with the recording system.

Mr. Tom Moran

A Department file is a Department file. They are treated according to long-practised arrangements. In recent times they have been open to freedom of information requests. I assume Senator Doherty asked Deputy Fahey about the papers he has. I could not comment on that.

Senator Pearse Doherty

We did not have the opportunity to do so. Are no files missing from the Department that may have been destroyed? Were departmental files not contained in the files destroyed by Deputy Fahey?

Mr. Tom Moran

There is no question of destroying departmental files. Departmental files are special things and are treated and handled in a particular way. This includes what is included in a file and how it is kept.

Senator Pearse Doherty

Does the Minister have a separate file? I do not know how this works. Does the Minister of the day have a separate personal file for the meetings he has with constituents or others? Are other files given to the Department or are all files on this scheme departmental files?

Mr. Tom Moran

The departmental file is the official file on any issue. I cannot comment on what piece of paper the Minister might have. What is a file? If people take notes on a piece of paper, is that a file paper? An official file exists on all of these issues, which is kept by the Department and is open to scrutiny under freedom of information legislation.

Chairman

They are available in the Department at all times.

Mr. Tom Moran

They are kept there for subsequent reference.

Senator Pearse Doherty

Is other documentation held as a personal file?

Mr. Tom Moran

I cannot comment on other documentation. I know the way my Department deals with files and it takes them very seriously. Nothing is taken off or put on. There is no question of files being destroyed.

Deputy Michael Creed

I refer to Mr. Hayes's response to Senator Doherty's question on the MFV Day Dawn II. The eligibility criteria would have hung on whether Mr. Faherty had a financial interest, be it ownership or involvement, in another fishing vessel in the interim, in other words, on whether he had gone back to sea. However, that he had lost his boat meant he was unable to go back to sea. Where in all of this does the issue of the MFV Olympiade come in? According to my information, a bill of sale for the boat, although I do not have documentary evidence, shows Mr. Faherty had an interest in it.

Mr. Paschal Hayes

As I outlined, responding to specific questions without having the files in front of me is difficult.

Deputy Michael Creed

Will Mr. Hayes revert to us with the details?

Mr. Paschal Hayes

Yes.

Chairman

On behalf of the joint committee, I thank Mr. Moran and his officials for their presentation and answering the questions raised.

The joint committee adjourned at 3.10 p.m. until 11 a.m. on Wednesday, 19 May 2010.