Ombudsman Report on the Lost at Sea Scheme: Statements.

I welcome the Minister of State, Deputy Killeen.

The Ombudsman has submitted a special report to the Dáil and Seanad in accordance with section 6(5) and (7) of the Ombudsman Act 1980. The 1980 Act does not set out a procedure to be adopted by the Oireachtas in dealing with this matter. I am very pleased to have the opportunity to make this statement to the Seanad to set out my position on this matter.

As I have stated on a number of previous occasions, I hold the Ombudsman, her office and the work it does in the highest esteem. I have acknowledged in the Dáil that her investigation into this matter has been painstaking and extensive. I wish to take this further opportunity to record my sympathy with the family in question as well as the many other families who have lost loved ones to the sea.

The lost at sea scheme which is the subject of this report was conducted in 2001, initiated by the Department of the Marine and Natural Resources. Responsibility subsequently moved to the Department of Communications, Marine and Natural Resources in 2002. The Department of Agriculture, Fisheries and Food assumed responsibility for sea fisheries related matters only in October 2007.

For the information of the House, I will set out a brief outline of the scheme, the context in which it was promulgated and the outcomes of the applications received and will then explain why the Department disagrees with the Ombudsman's findings and her recommendation that monetary compensation be paid in this case.

The lost at sea scheme was a limited scheme introduced in June 2001, with a closing date of 31 December 2001, whose objective was to enable qualifying applicants, who were otherwise unable to do so for financial or related reasons, to continue a family tradition of sea-fishing. It was targeted at people who had been employed in fishing and wanted to continue fishing. It was a bounded, time-limited scheme under which replacement capacity, expressed as gross tonnes and kilowatts, that would otherwise have had to be bought on the tonnage market, was provided free of charge to qualifying applicants. The eligible applicants were those who had lost a fishing vessel between 1980 and the establishment of the sea fishing boat register in 1990, but who had been unable to replace the fishing vessel for verified financial reasons. The scheme was intended to assist families in introducing a replacement for the lost vessel that would be owned and skippered by the applicant or by an immediate relation of the applicant. The objective of the scheme was to allow fishermen or their immediate families to get back to fishing, not to award any monetary benefit. I emphasise that the scheme was not introduced to provide a means for a party, who had, however tragically, lost family members at sea, to obtain payment from the State for this loss.

The terms of the scheme also specified further conditions relating to the use of the capacity once deemed eligible. For the information of the House, "capacity" is a term used to describe the gross tonnes, GTs, which is a measure of volume, and kilowatts, kW, of power of a fishing vessel. The total capacity of the Irish fishing fleet is limited to 88,700 GTs and 244,834 kW under EU Regulation 1438/2003.

When the new sea fishing boat register was introduced in 1990, all vessels registered at the time were awarded the capacity of their vessels, effectively free of charge. However, any vessel that had previously sunk or had otherwise been destroyed clearly could not be registered. Any such owner looking to return to fishing would have had to buy a replacement vessel and the necessary capacity. In time, despite the fact that it was awarded free of charge, capacity became a valuable commodity because the overall capacity of the Irish fleet was capped under EU fleet management rules, to which I referred. Although the Department had no role in the tonnage market that developed, there were indications that capacity was changing hands for up to IR £4,000 per gross tonne at the time the scheme was introduced. By way of illustration, fishing vessels in the polyvalent general fleet segment, which is the largest segment in the Irish fleet, currently range up to over 500 gross tonnes. The need to source tonnage clearly would have been a significant additional financial burden on families wishing to replace their boats and continue fishing.

Records in the Department, made available to the Ombudsman, show a range of contacts, meetings and correspondence going back to March 1999, to and from interested parties in respect of this issue. These included public representatives, individual vessel owners, fishermen's representatives and producer organisations, POs. It was argued that there were a number of cases where the cost of purchasing replacement capacity was a factor in preventing families from getting back into fishing after losing a vessel. The records also show that there was both support for and opposition to such a scheme from within the industry. It is clear there was a view in some quarters that it would be unfair effectively to award free tonnage to some while by this time others had to pay a high price on the tonnage market. On the other hand, some supported the proposed scheme. The views of officials from the Department of the Marine and Natural Resources on the merits or otherwise of such a scheme and some of its conditions were also clearly recorded. The emphasis, from the administrative perspective, was on the importance of ensuring that any such scheme could be strictly limited to those who met the criteria of the scheme. Once the decision to have a scheme was made, the terms and conditions of the scheme that emerged from this process necessarily reflected the views of all the stakeholders as well as public policy considerations and EU and national legal requirements at the time.

Time constraints do not allow me to list all the published conditions of the lost at sea scheme, but I shall highlight two that I believe are central to the issue:

(1) The boat in question is shown, by reference to log sheet returns or other appropriate records, to have been in active and continuous use for a considerable period of years by the person concerned for sea fishing of a category now covered by the replacement policy rules, until its loss at sea.

(2) Applications under the scheme must be received by 31 December 2001.

These conditions were non-discretionary, objective and quite stringent and were intended to ensure that only those who met the criteria in full were successful; only the immediate family could benefit from any capacity awarded; the benefit of the capacity would allow the family to return to fishing; and the capacity awarded could not be sold or turned into a monetary amount. The scheme was launched in June 2001 with a closing date of 31 December 2001. It was aimed at people and families who had a tradition in fishing, had been actively fishing and wanted, through the scheme, to return to fishing. Given those objectives, it was advertised widely in the major fishing trade papers in Ireland, theMarine Times, The Irish Skipper and the Fishing News, and the various fishing representative groups, including all of the producer organisations, were asked to assist in publicising the scheme.

The Department had knowledge of some 16 cases at the time where fishing vessels had been lost at sea during the relevant period, and the owners of those vessels received written notification of the new scheme and were invited to apply. Two of these cases were ultimately successful. The advertising was quite successful and the scheme, despite its tight restrictions, was well responded to. Apart from the 16 cited above, a further 37 letters and information issued to persons who contacted the Department directly looking for information after the scheme was publicised. There were 68 applications by the closing date, of which six were successful in meeting all of the conditions of the scheme and were awarded replacement capacity. A number of the 62 unsuccessful applications failed to meet more than one of the qualifying conditions.

I want to emphasize that the scheme did not provide for the purchase of a replacement fishing vessel itself. The capacity given, under the strict terms of the scheme, could not be sold on or otherwise traded or realised as a financial asset in the tonnage market. The scheme was launched in June 2001, ran for six months, and closed on 31 December 2001. The complaint that is the subject of the Ombudsman's special report was made by one additional applicant whose application for the lost at sea scheme was received in January 2003, over a year after the closing date. That application, received on 7 January 2003, was refused on the basis of being over a year outside the closing date of 31 December 2001 and that the lost vessel was not in active continuous service prior to its loss. For the purpose of the administration of the scheme, this was deemed to be two years minimum.

In November 2004, the son of the owner, who had been lost with the vessel, made a complaint to the Ombudsman that the decision to refuse his family's application was unfair on a number of grounds, principally that his family had not been made aware that the scheme existed and that their circumstances were such that they ought to have qualified under the scheme in the first instance. After extensive examination and correspondence between the various parties, the Ombudsman found for the complainant in her first draft report, and decided to award substantial monetary compensation to the family. The Ombudsman concluded that the particular family did not meet at least two of the conditions of the scheme and that it had been adversely affected by the failure of its application.

The Ombudsman's main criticisms of the scheme and her stated reason for recommending monetary compensation to the family involved were, essentially, that no element of discretion had been allowed for in its design and that it had not been adequately advertised. Her criticism of the advertising of the scheme is offered as the basis for disregarding the closing date in this instance. In her investigation report, she states that she has concluded that the way the scheme was advertised was too restrictive and could have been more comprehensive and targeted. This appears somewhat contradictory. The facts are that the scheme was well publicised, particularly within the fishing community which was its target audience. The family in question, although out of fishing for the previous 20 years, was still living in that fishing community. Some 16 known cases were written to and invited to apply for the scheme, of which only two were successful. Advertisements were placed in the three main fishing newspapers and fishermen's representative organisations were asked to help publicise it. Another 37 letters were issued to individuals who made enquiries either by letter or telephone but did not subsequently make an application. There is no certainty that an advertisement in the national newspapers would have been a better way to reach the target audience. While it would, perhaps, have been more comprehensive, it would have been much less targeted than publicity in the fishing journals and communities. I am satisfied, given that the scheme was aimed at people with a family tradition in fishing who had been active in fishing and who expressly wanted to return to fishing, that targeted advertising and using the communication channels most commonly used by the fishing industry and fishing communities were entirely appropriate ways to publicise the scheme. All told, a total of 68 applications were received by the closing date of which six were successful.

The Ombudsman has acknowledged that the family did not meet two of the conditions, but appears to suggest that if an element of discretion had been formally included, it would have been exercised in favour of the family with regard to both conditions. Normal administrative practices involve the exercise of a certain amount of discretion and common sense. Even if some form of discretion had been formally built into the scheme — I am not sure how that could have been done — it could surely not have been expected to be applied to an application received over a year after the closing date. Given that only six applications out of 68 met all of the qualifying conditions, it could equally be argued that all or many of those 62 unsuccessful applicants could have been successful if the application of the conditions was entirely flexible and discretionary.

I and the Department have consistently taken the view that this scheme, once decided upon, was properly and fairly administered by the Department of Communications, Marine and Natural Resources, which had responsibility for the scheme at the time. The Ombudsman has expressly acknowledged that she found no evidence to suggest that once the scheme was launched, it was not applied equitably. In coming to my view on the Ombudsman's report, I considered all relevant aspects and implications, including the legal aspects, and as a matter of course took legal advice which was considered and acted upon. I continue to believe that, in this case, there is no basis for payment in the amount proposed or any amount. In the first instance, the lost at sea scheme did not envisage any monetary awards. The capacity awarded to the successful applicants could not be traded, sold on or otherwise disposed of for financial gain. Furthermore, the successful applicants had to provide a replacement vessel from their own resources and cover for its running costs in order to be able to make use of the capacity awarded. In the case of the family in question, the lost vessel had not been replaced and no immediate family member had continued in fishing in the 20-year period between the accident and the inception of the scheme. That being the case, and given that the scheme was intended to allow families to continue a family tradition of sea fishing, the assertion that the family was disadvantaged by the failure of its application some 20 years later is difficult to stand over. In the exchange of correspondence, the Ombudsman contends that while the family had received a substantial insurance payout, this was not relevant to her investigation or to the scheme.

While holding the position that failure to meet both the closing date and another important condition of the scheme must rule out this or any application, I also want to take issue with the basis for the Ombudsman's proposed compensation figure of €245,570. In her special report, the Ombudsman outlines the basis on which she believes that the amount recommended is reasonable. The amount was arrived at by using the methodology and rates used in the 2008 decommissioning scheme, a completely separate and unrelated scheme which involved successful applicants being paid to give up a working active vessel and its capacity voluntarily, to pay to have it dismantled and to lose its future stream of income.

At the Ombudsman's request, the Department provided calculations on the basis of the decommissioning scheme rates and the tonnage of the lost vessel, on the understanding that this was a starting point in her consideration of an appropriate amount of compensation. The Ombudsman cites the average payments to the successful applicants under that scheme as being comparable. I do not believe that the situations are in any way comparable. In the case of the decommissioning scheme, the vessel owners had the expense of purchasing a vessel and maintaining it. The rates payable under that scheme were intended to incentivise and compensate those owners to decommission voluntarily their vessels entirely and forego the income they would get into the future from continuing to operate those vessels. The Ombudsman is not correct that successful applicants under the decommissioning scheme had the option of selling on their vessel. On the contrary, the decommissioned vessel had to be scrapped at the owner's expense and the tonnage could not be sold on or otherwise transferred. I reiterate my view that payment in the case investigated is not warranted in the amount specified or any amount in this case.

The Department remains concerned that the recommendation in this specific case would give rise to major financial liabilities arising from claims from others who were unsuccessful applicants under the scheme. The special report asserts that the recommendation relates to this case only, that the analysis, conclusions and findings flow from the particular circumstances of that case alone and have no implications for other unsuccessful applicants. Following full consideration and on foot of legal advice, I do not accept that this assertion is consistent or logical. The Ombudsman's finding was that the design of the scheme itself and the manner in which it was advertised were "contrary to fair and sound administration" and that the family concerned had been treated unfairly as a consequence. I do not accept this. The scheme as applied to this case was the same scheme as that applied — equitably as the Ombudsman has acknowledged — to all the other applications received. The considered legal advice given to the Minister contends that it is likely the Ombudsman's recommendation with regard to monetary payment may result in other unsuccessful applicants for this scheme looking for the same consideration. I am not convinced that some or all of the unsuccessful applicants would not pursue cases if the recommendation was accepted. Furthermore, some of the successful applicants for the scheme, who could not take up the capacity awarded because of the strict conditions, might seek to use the precedent created by any change in the conditions of the scheme as a result of the Ombudsman's recommendations being acceded to. In addition those who contacted the Department in the year after the scheme had closed, of whom there were several, or those who might have applied in that period, could also seek to build a case on the basis of the Ombudsman's recommendation.

At this stage, it is impossible to estimate the financial outlay or potential liability that might be involved with any accuracy, but there is no doubt that it is likely to be substantial and have a serious financial impact at this time. More importantly, there are also implications for the operation of other administrative schemes across Government that have application deadlines. We are all familiar with schemes that operate to strict deadlines that are enforced and have a very direct effect on people's daily lives. Deadlines are a fundamental feature of most schemes and are strictly enforced and adhered to generally in accepting or rejecting applications. Totally discounting the deadline in this scheme and accepting the validity of an application that was over a year late, as the Ombudsman has recommended, could have very wide and probably incalculable financial and other implications for public administration in Ireland.

In summary, I reiterate that the complainants in this case did not apply for the scheme within the timeframe. They were over a year late in applying and they did not meet some of the criteria of the scheme. The Department maintains its position that the scheme was scrupulously and fairly administered, in that each applicant was treated fairly under the scheme within specific terms, rules and conditions. The Ombudsman has acknowledged as much. The scheme was advertised in a targeted way to the target audience — those with a family tradition of fishing and who would return to fishing if successful under the scheme. Administrative schemes must be operated and seen to be operated in an equitable and transparent manner. I suggest to the House that it is a relatively short step from flexible and discretionary to arbitrary. Accusations of the arbitrary application of the scheme and favouritism have been levelled already in regard to some of the successful applicants, suggestions I utterly reject. Accordingly, there is no basis for the award of payments in this case.

As I stated, I have the highest regard for the Ombudsman, her office and team. The issue investigated and reported on by her is a very difficult one. It has taken a lot of time and effort by the Ombudsman's office and the Department to deal with it. I have taken note of the points raised by the Ombudsman about the design of the lost at sea scheme. Relevant points will be taken into account in the design of any future schemes in the Department. I am satisfied that the principles of fair dealing in the design and administration of schemes are and will continue to be core tenets of the Department's customer service plan.

I thank the Minister of State. What is interesting is that he makes it clear that those who contacted the Department in the year after the scheme closed to applications were several in number, which means that perhaps it was not advertised as widely as he might have thought. Six months is a short timeframe in which to make an application, particularly when the period began on 1 July and many do not pay attention to such matters in the summer months.

Will the Minister of State explain whether the Ombudsman examined how the successful applicants fitted into the criteria for the scheme and whether she considered the 62 unsuccessful cases? Did she make a comparison between the successful and unsuccessful cases to find out if there was much of a variation between the applicants? Did she examine all 68 cases, particularly the cases of late applicants? I ask this question to ascertain whether there are the continuity and fairness across the criteria to which the Minister of State referred. It would be useful to have an independent view on these applications.

I have raised a specific case with the Minister of State in regard to the payment of compensation in respect of a fishing vessel in County Wexford. A fisherman applied for compensation to an independent review group set up by the Department of Agriculture, Fisheries and Food and headed by a senior counsel. The individual concerned was successful in receiving compensation from the independent review group but the Department did not accept its decision and, in fact, took its own independent review group to the High Court where it did not win. It then applied to have the case taken to the Supreme Court. When I raised the issue, the case was just about to go before the High Court and the Minister of State was able to get away with not saying too much because he was able to claim the matter wassub judice. If a person is seeking compensation for decommissioning a fishing vessel and the Department can drag that person through the High Court and the Supreme Court, in effect, it will win because it will break the applicant who does not have the resources available to the Department. In a sense of fairness, I ask the Minister of State to reconsider this case which I hope to take up again at some future point.

I do not accept some of the excuses used by the Minister of State such as that people can retrospectively take the Department to court, although I accept there is a risk of a precedent being set if an applicant is successful, as it would open up a range of other cases. However, the case I dealt with was not similar to any other; it was simply a matter of the Department obstructing this one individual and taking the case all the way through the courts. I am always concerned when the dead hand of government is used to block the rights of citizens. The role of a Minister is to facilitate in the decisions of Government bodies and allowing the average citizen the necessary flexibility.

In response to the Ombudsman's report I hope the Minister of State will not focus solely on the individual applicant dealt with in the report. What he must try to achieve is transparency for the ordinary person reading about the matter, whether inThe Irish Skipper or one of the other fishing journals. When people read his response, they want to see the level of transparency to which I referred and perhaps him to ask the Ombudsman to review the 68 cases in which applications were made within the timeframe laid down and make comparisons between them to show that fairness and transparency were applied.

There is also a strong political element to this issue, of which the Minister of State is aware. Concerns have been raised that the criteria and their application might have benefitted certain individuals. There is a need to make absolutely certain that such a charge cannot stand up. The Minister of State should reopen the 68 cases to the Ombudsman to enable her to engage in a full and proper review. I also ask the Minister of State to examine the case to which I referred. I am sure he is aware of it and can access the file in the Department. Perhaps he could prevent the individual concerned being dragged through the Supreme Court. If he examines the file, he might do me the courtesy of contacting me to explain how many similar cases there are which would warrant the Department going all the way to the Supreme Court, having been beaten in the High Court and having rejected the recommendations of one of its own independent review bodies with regard to the decommissioning scheme. I accept the decommissioning scheme is completely separate and understand from where the Minister of State is coming in regard to it. However, as I said, there is bad stink about some aspects of the scheme which are being discussed among fishermen and those with an interest in this issue. For the sake of the integrity of the Department, as well as for the political integrity of the Ministers involved, both now and in the past, we should consider giving all of the files to the Ombudsman, to let her give an independent view on these matters and clear them up once and for all.

Gabhaim buíochas as an deis labhairt ar an rún seo sa Seanad. Tá áthas an domhain orm seans a bheith agam ráiteas a dhéanamh ar thuarascáil an Ombudsman. This is my first opportunity to speak in my new role in Seanad Éireann with the Minister of State, Deputy Tony Killeen, present. I look forward to working with him until June 2012.

As Senator Twomey said, we all acknowledge the great work done by the Ombudsman and her office, which is top drawer. The investigation carried out by her and her team into this specific case has been to the highest standard.

As the newly appointed spokesperson on fisheries, I am delighted to contribute to the debate. In recent months I have had the opportunity to meet and work with a number of fishermen in my own county of Louth at Clogherhead's Port Oriel, a great resource for the country, one we should develop further. Clogherhead's prawn festival, for example, is restarting this year after a lapse of 14 years. I look forward to working with those involved. I attended the launch of that festival a number of weeks ago by Clogherhead Tourism Council. We should be focusing on the tourism potential of areas like this. Other towns and villages throughout the country have taken on this mantle, including Carlingford in north County Louth which has transformed itself as a tourist hub for customers North and South. It is an example of how people and businesses in the South can appeal to businesses in Northern Ireland and how people in Northern Ireland can do their business North-South as opposed to the current position in terms of all business being South-North. The Government should strategically consider the development of places like Clogherhead.

As the Minister of State, Deputy Killeen, indicated the lost at sea scheme was a limited scheme introduced in June 2001, with a closing date for applications of 31 December 2001. Many people were misled or, sadly, chose to be misled in regard to how the scheme worked. The scheme was specifically targeted at people who had been fishing and wanted to continue fishing. It is important to remember that it was a bounded, time-limited scheme which was intended to assist families obtain a replacement for a lost vessel which would be owned and skippered by the applicant or an immediate relation. The objective of the scheme was to allow fishermen or their immediate family, including women involved in fishing, to return to fishing and not to award any monetary benefit which, as articulated by the Minister of State, is key.

When the new sea fishing boat register was introduced in 1990 all vessels registered at the time were awarded the capacity of their vessels effectively free of charge. However, any vessel that had previously sunk or had otherwise been destroyed clearly could not be registered. Any person or team of people wishing to return to a career in fishing would have had to buy a replacement vessel and have the necessary capacity, which in time would become a valuable commodity because the overall capacity of the Irish fleet was capped under EU management rules.

The Minister of State mentioned earlier that the scheme, when introduced, was opposed and supported within the industry. Opinion was divided, which I can understand. It seemed unfair to be seen to be awarding free tonnage to some while others had to pay a high price for their tonnage. I reiterate the point made in this House and in the Dáil that, from an administrative perspective, it was important to ensure the scheme could be strictly limited to those who met the necessary criteria. Once the decision to have a scheme was made, the terms and conditions that emerged had to reflect the views of all stakeholders, national legislation and any EU rules.

As articulated by the Minister of State, the conditions which were objective and quite difficult to meet were intended to ensure that only those who met the criteria in full were successful, that only the immediate family could benefit from any capacity awarded, that the benefit of capacity for the scheme was to allow the family to return to fishing and that the capacity awarded could not be sold or turned into a monetary amount, as can happen with other schemes. Some 16 fishing vessels were at the time lost at sea, the owners of which received written notification of the new scheme and were invited to apply. The scheme was focused on those who had been in the fishing industry and wanted to continue a family tradition of fishing and where the grant of capacity would enable the applicant or an immediate relation to return to fishing. The advertising was quite successful and the scheme, despite its tight restrictions, was well responded to. As stated by the Minister of State and Senator Twomey, 68 applications were made, of which six were successful.

The scheme was aimed at people and families who had a tradition in fishing and was widely advertised in the major fishing trade, includingThe Marine Times, Irish Skipper and Fishing News. The 62 unsuccessful applications failed to meet one or more of the qualifying conditions. I want to reiterate the point that the scheme did not provide for the purchase of a replacement fishing vessel.

I noted when reading the report during the past few days that in November 2004 the son of the owner, who had been lost at sea with his vessel, had complained to the Ombudsman on two grounds: his family had not been made aware of the scheme's existence and their circumstances were such that they ought to have qualified under the scheme in the first instance. I recall, as a graduate of law in UCD, being taught on the first day that the most fundamental of legal rules is that ignorance of the law is no defence. Sadly, this same principle applies to this scheme. Following exhaustive examination and correspondence between the various parties, the Ombudsman found in her first report for the complainant. This appears at odds with the views of different Departments which had studied the report. The Ombudsman concluded that the particular family did not meet at least two of the conditions of the scheme and that advertisement of the scheme was not adequate despite it having been advertised in the three major fishing publications in Ireland. Also, the fishermen's representative organisations were notified of its existence and had communicated that information to the 16 known cases, which appeared to me to be the most appropriate approach in the circumstances. There is no 100% assured way of ensuring everybody eligible under a scheme is notified of its existence. We, as public representatives, are well aware of the considerations in terms of hitting one's target audience be it in respect of public meetings or clinics. All considerations, including how, when and where, must be examined fully.

The Ombudsman has expressly acknowledged that she found no evidence to suggest the scheme once launched was not applied fairly and equally. The compensation figure of almost €250,000 recommended by the Ombudsman was, as pointed out by the Minister of State, arrived at using the rates used in the 2008 decommissioning scheme, which is a totally different and separate scheme. I will not reiterate the specifics of that scheme given they have been already articulated by the Minister of State. Suffice to say that I concur with his views on the matter.

The Minister of State set out 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". I do not accept this. The Ombudsman's desire for flexibility makes sense. We are all agreed on the need for flexibility in all schemes. However, how flexible is flexible in regard to this matter? Does that mean dropping one, two or three criteria and, if we do so, will any applicant be eligible under this scheme?

Deadlines are a fundamental feature of most schemes and need to be strictly enforced and adhered to when accepting or rejecting applications under schemes. Transparency is key. As stated by Senator Twomey, transparency in regard to deadlines and criteria in specific schemes like this is key for delivering the transparency we all wish to see. Totally discounting deadlines by more than 12 months and accepting as valid an application more than one year late, as has been suggested by the Ombudsman, would have extremely wide and incalculable financial and other implications for all Departments, semi-State agencies and schemes. To what will we be leaving ourselves open if we drop deadlines and accept as valid applications made one year late?

I welcome the opportunity to speak on this important report before the House as a result of the decision of the Office of the Ombudsman to present a special report to the Oireachtas for consideration. As I understand it, this is only the second time since the foundation of the Ombudsman's office that such a report has been placed before the Oireachtas, which illustrates the extent and seriousness of the matter before us for consideration.

The phrase "lost at sea" is emotive. Every time we use that phrase we reflect on the many people, in the main from the fishing community, who have down through the years lost their lives in tragic accidents at sea. On this occasion we must remember with sadness the Byrne, O'Brien, Lafferty and McGovern families, all of whom lost family members in a tragic accident in October 1981. The genesis of this debate, and of the Ombudsman's investigation, is the complaint by the Byrne family that the scheme put in place by the then Minister, Deputy Frank Fahey, was unfair, inappropriate and unbalanced. It is significant that the Ombudsman has raised profoundly serious questions about the scheme.

Yesterday in the Dáil, much time was spent discussing the behaviour of one Minister, but what we are debating is every bit as serious, if not more so. We are asking fundamental questions. Was a scheme designed to suit a predetermined number of people? Was it designed by a Minister basically to provide assistance only to his constituents? I do not wish to be judge and jury in this matter and neither is the Ombudsman's office judge and jury, but serious questions have been asked and they must now be answered.

It has been argued by the Fine Gael Party leader, Deputy Enda Kenny, and our party's agriculture spokesperson in the Dáil, Deputy Michael Creed, that the Ombudsman's report should come before the Joint Committee on Agriculture, Fisheries and Food for deliberation. The presentation of the Ombudsman's report is helpful in summarising chronologically the events that have brought us to this point. We must go further, however, because a one-off debate on the report is simply not sufficient. We have used the words "transparency" and "accountability" so many times in this House and elsewhere, but a much more detailed discussion and analysis of the report will be necessary to provide a proactive response to the concerns of the Byrne family and others. That is why it is so important for the Government to consider having the report debated in full at the relevant Oireachtas committee.

The Ombudsman's findings are pertinent. I respect the point made by the previous speaker that the Office of the Ombudsman does not define or determine facts in a judicial fashion, as a court might do. The Ombudsman's office does, however, carry out investigations, asks questions, consults with the affected parties and makes strong recommendations, which are not legal findings. Important information and significant key findings have been presented by the Ombudsman, Ms O'Reilly's, office in this particular case. Poor administration by the Department has been highlighted as a matter not just to be noted but also, hopefully, to be acted upon through further debate and deliberation.

I may be paraphrasing, but the report stated that the design of the scheme and the manner in which it was advertised was contrary to fair and sound administration, and that there were poor record-keeping practices. That is a serious observation by the Ombudsman's office. The report's findings highlight the opposing views between the Minister and some of his key officials as regards the scheme's genesis, design and operation. The report also notes the Minister's determination to put the scheme in place notwithstanding some problems that had been highlighted by officials. In addition, the report comments on the way the scheme was initially designed and eventually put in place. I am paraphrasing again, but it observes that the actions by the Minister and his officials resulted in a scheme which was too focused on known cases and wrongly excluded some deserving cases. It said the overall design was faulty and left no scope for the exercise of discretion in the event of further deserving cases coming to light. That must be of concern to us.

There is strong evidence to suggest that an unfair advantage was applied to a very small number of applicants. The report found that the Byrne family at the centre of the complaint was adversely affected. Meanwhile, 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. I stress that I am not the final judge or arbitrator, but that finding paints a grave picture of suspicion that the scheme was designed for only a small number of people and that it was not an open, transparent and fair process.

That is a brief summary of what the Ombudsman said, but we are duty bound to recognise that we cannot simply close this chapter of the report. I appreciate that under the legislation which established the Office of the Ombudsman, the State is not obliged to respond to every finding of that office, or to act on every suggestion that is made by it. It should be noted, however, that the vast majority of recommendations in the Ombudsman's annual report are accepted either in whole or in a modified version by whatever Department is the subject of a complaint. That is how such reports have been acted upon over the past two decades.

The only fair and reasonable step to take now is to have a much wider trawl, if Senators will excuse the pun, of the report, as well as its background and findings, at the Oireachtas Joint Committee on Agriculture, Fisheries and Food. It is the least which the affected families can expect. They have endured not only personal loss, but also financial distress for more than 20 years. If we are talking about trying to build a new political environment of fairness and equity, which generates public confidence, then this type of report must be acted upon in so far as possible. The minimum requirement is to have a lengthier debate to investigate the Ombudsman's findings in this case. The natural vehicle for such work is the joint committee. I ask the Minister of State to ensure that his senior colleagues in Government will allow the report to be debated at that forum in the near future.

Ba maith liom fáilte a chur roimh an Aire Stáit, an Teachta Tony Killeen, agus tréaslaím leis as ucht an sár obair atá á dhéanamh aige.

I am conscious at the outset that this debate concerns a tragic loss of life at sea, which should inform all our deliberations. That is more important than any other aspect that will be raised here. Fishing has always been a dangerous occupation. I congratulate the former Minister, Deputy Frank Fahey, on taking the initiative in introducing a scheme which was designed to assist survivors and bereaved families of those who had drowned. It aimed to give them an opportunity to continue in fishing despite the major setback of losing their loved ones. I am glad we are having a very reasoned debate here. I compliment the speakers on the other side. A cursory reading of the Official Report of the debate in the other House shows that it degenerated very quickly into a political boxing match. There was more heat than light in it. Much of the argument on the Opposition side was based on statements issued by Mr. Joe Higgins, MEP, which are proven to have been entirely incorrect and which have never been withdrawn by him in respect of statements he made about the then Minister, Deputy Fahey. It is unfortunate that Mr. Higgins MEP would not even at this stage admit that the statements he made on that occasion were entirely erroneous.

There are two elements in the debate. The first issue is whether the scheme was administered properly or not. The second issue is whether the Ombudsman was correct in proposing to include people retrospectively in a scheme even though they did not comply with all the necessary regulation during the period when the scheme was operational. I wish to deal with the second issue first.

Like every other scheme and every form or support that the State implements, this scheme was conditional. In other words successful applicants needed to be able to tick all the boxes in order to qualify. While the timeframe was quite limited, the Department did its best to disseminate the information in the proper way by targeted advertising in trade publications and fishing magazines and through the fishing organisations. We have all learned from the waste in which we indulged when we had a looser economy. One needs to trim down. There is no great advantage in placing big advertisements in the back of theSunday Independent, which would be read by less than 1% of those affected, when one could target the particular group by placing the advertisements in specific magazines or periodicals that were going to be read by the people with a natural interest in the scheme. There is no doubt in my mind that advertising was the correct way of doing it. There was no hidden agenda and no going behind closed doors. It was pretty well known. I know fishermen as I know farmers. If farmers have any inkling that a grant or some other support might be available for something, they will be onto it before it is even properly promulgated by the Department. They do not need to wait around to see advertisements in the back of the Sunday Independent to find out about it. Fishermen are the very same.

I again express my sincere sympathy to the Byrne family over their great loss and naturally we all have a human response to this issue. However, if the exception were to be made for them or any other applicants, it would create a very serious precedent not only in the operation of the lost at sea scheme, but it could also generate a plethora of retrospective applications for support under a myriad of State schemes run by all Departments, including the Departments of Education and Science, Health and Children, and so on. It is necessary to balance the human element with the fact that, like all schemes, it was operated and regulated under rules and a regime that needed to be followed in order to qualify.

Another point was very confused at the time Mr. Higgins, MEP, made his complaints. The scheme was never intended to provide monetary compensation to anybody. There was never a question of financial compensation. It was designed to assist families still in the fishing business at the time the scheme was introduced and to make up for their loss of capacity to fish. They were being offered a limited scheme to grant replacement capacity if they were still involved in the industry. This capacity, or tonnage, could not be sold or traded for gain and suggestions to the contrary are completely wrong. People have suggested to me that it was like a milk quota. This was not the case. A farmer could sell a milk quota, which has a realisable value. This just provided an opportunity to continue fishing. Many of those who took up the offer have since lost money. It was not a money-making or grant-endowing scheme at any stage.

There is no evidence of any wrongdoing or deviation from regulation in the administration of the scheme during the time when Deputy Fahey was Minister or thereafter. It is amazing how the general public was given the impression that a limited number of families were given a bonanza, as was suggested in one newspaper. At the time I believed that people were getting money and that was the idea that was abroad, but it is absolutely erroneous. The regulations were tight and a number of families qualified. It was as simple as that.

I come to the other aspect of the argument, namely, the Ombudsman's position. The Ombudsman has a very important and difficult job. I have the utmost respect for both the position and the present incumbent. It would be part of the job description of Ombudsman to be caring and to look to support those most in need who are suffering the greatest trials and tribulations. That is what one would expect of an Ombudsman. That needs to be weighed up by the Government in the wider context of what is good for the overall wellbeing of the State. The Ombudsman, like anybody else, can be wrong. In this case the Government had no option but to make the decision it made. I do not agree with Senator Bradford, whose contributions I always respect. There is no great value or merit in continuing this type of debate, sending it back into the committee for discussion, having more stewards' inquiries into it or bringing it back to the Ombudsman. Overall it is a very sad story. It has been exacerbated by mischief making by Mr. Higgins, MEP. We should draw a decent veil over it, in respect for those who have died and move on.

Ba mhaith liom fáilte a chur roimh an Aire Stáit. Is mian liom "go raibh míle maith agat" a rá leis as ucht an jab atá ar siúl aige ar ár son sa Bhruiséil agus áiteanna ar fud na tíre. Go n-éirí leis. Mar is eol don Aire Stáit, I come from a fishing town, Dingle, and when going to school half of my class were from the fishing community. Anybody of my age from a town like Dingle or Killybegs will remember long nights with winds blowing and howling, and waves crashing in on the pier and in through the harbour's mouth, with families waiting along the harbour wall wondering whether their boats would come back in. There is nothing as devastating as the loss of a fishing vessel and the loss of a life. I saw that many times while growing up and it is never forgotten. It teaches one a considerable amount. Above all else it teaches one enormous respect for the profession of fishing and the great investment and risk that goes with being dependent on fishing as part of a fishing family. I say that because in all these matters I am very biased towards the fishing industry. Two years ago I was a lone voice in the Oireachtas arguing against the Government and the east coast-south Dublin approach to destroy a centuries old tradition of salmon fishing in a manner that was not necessary and could have been done differently.

I have known the Ombudsman for many years. I knew her when she worked as a journalist in this House. I hold her in the highest respect. Before I get into the meat of the Minister of State's speech, I ask him to take this back even though I know this is not within his remit. The real issue here, if I take politics out of it, is that we do not have any method of dealing with a report from the Ombudsman coming back to the Oireachtas. If this were the first time that happened, there might be some excuse for it, but it is not the first time; we have dealt with this before. I can recall a situation where somebody appealed against a decision of the Revenue Commissioners and the matter came before the finance committee.

There are a number of issues to be considered. It is not our job to second guess the Ombudsman one way or another. Neither is it the case that the Ombudsman is necessarily always right. We should not show bias in our approach. The Ombudsman makes the point that the scheme was well intentioned. The complaint was that it had been arbitrarily applied. The Minister of State has outlined why, in his opinion, that is not so. Both he and the Department are entitled to their opinion. What is interesting is that the Ombudsman found that it had been unfairly applied. Incidentally, it is right that the Department should state its case. I do not have a great need to pick holes in what the Minister of State said in that regard. His job is to defend his Department and say how it did its job. He believes, obviously, that it was done correctly. Having said that, that does not mean he is right; he may well be wrong. It also means that perhaps different standards and benchmarks should apply.

The Ombudsman found it to be unfair and has found in favour of the complainant. She made two points. She said the scheme was inadequately advertised and that there was no discretionary element. The Minister of State has proved, by the strength of his argument, that there was no discretionary element, while indicating to the House, in effect, that there should not have been since there were certain immutable and inflexible conditions involved.

There is an interesting element involved and I know from where the Ombudsman is coming. The Minister of State has not dealt with this aspect, although I am not blaming him for not dealing with it. There has been a series of court cases in recent times dealing with judicial reviews, in which the courts have concluded that there was no clear evidence of a discretionary element being exercised. I am referring to the exercise of discretion in the formation of a judgment. The word "discretion" can give the wrong impression, inferring that people can do as they like, but that is not what is meant in this case. In the Ombudsman's use of the word, she means there was no indication that discretion had been used in coming to a judgment. The Minister of State can agree or disagree, but this should be brought to the attention of his ministerial colleagues, as it applies to every single scheme and is why we do not have computers instead of Departments. It is why we pay civil servants, Ministers and politicians to make judgment calls. One cannot have schemes that are so hidebound that there is no formation of a judgment or, in the Ombudsman's words, "discretion". I emphasise that the use of the word in this case does not mean doing business.

I cannot comment on the challenges posed and allegations made against the previous Minister of State or Minister. I would not even attempt to go there and it is not my business. However, it is my business to examine the arguments made. The Minister of State has said that in coming to her judgment on the quantum of money suggested the Ombudsman based the figure on the decommissioning scheme which, as he rightly pointed out, has no relationship to the other scheme. However, that is not an argument, as she had to use a benchmark. I have read that statement three times and believe it weakens the Minister of State's argument. If I was in his position, I would not have said it. He was doing fine until he came to that part because if she did not give some indication as to how she had come to that amount of money, we would all have been asking whether she had just plucked the figure out of the air. Therefore, the Ombudsman went for the only figure she could and that was appropriate. I am not saying it is the correct amount of money, but we must recognise that she used certain structures, benchmarks and guidelines in coming to her conclusions, which is significant. The Minister of State has said also that the Ombudsman seemed to base her conclusion on an assumption that if there had been discretion, it would have been granted to the family concerned. I do not know whether that is the case and have not seen it. It is a big step to make.

The Minister of State has made a cogent and plausible case on behalf of his Department, which I am not trying to undermine. However, I want to tell it as I see it. I have not received a briefing on the matter; I am giving my personal response, nothing more. Nonetheless, the Ombudsman has done a good job of work.

I shall conclude with the point with which I began. We put legislation together which deals with all of the various steps taken in the operations of the Ombudsman. The final one is to the effect that if the Ombudsman is unhappy with the way in which his or her proposals are being dealt with by a Department or Government agency, he or she can report the matter to the Oireachtas, but at that point we stopped in a lacuna. The Minister of State and I have been over this ground in another place many times. Surely, where mediation or arbitration is involved, we should always say the matter should be brought to a conclusion and that there should be closure. However, we have left a gap in the legislation that does not result in closure. I do not even mind whether such closure involves a free vote in the House on whether we should accept the Ombudsman's position, which would be no reflection on anybody. I say to the departmental officials present that if the Ombudsman happens to be right on this occasion, it does not mean the Department has acted dishonourably, unethically or immorally. It just means it made a mistake, in the view of the Ombudsman. It is akin to going to court. Many walk out of court believing they have not received justice. One gets law when one goes to court; when one goes to the Ombudsman, one still gets law. The Department does a very fine job. I complimented the Minister of State on the job it did in Brussels before Christmas, but that is not what we are at in this instance. It is about looking at structures. The problems are more for us as legislators rather than for the Departments because we should not be here trying to work out who was right and who was wrong. That, in effect, is to ask us to second guess the procedure we initiated. The final step is that, if the Ombudsman cannot bring closure, as we wish her to, she reports back to us on the matter.

There should be a way to bring closure to a matter, probably by means of a Oireachtas joint committee. The Joint Committee on Finance and the Public Service generally deals with the Ombudsman. Such issues should be dealt with in a way that would obviate the need for us to break down along party lines. Committee members should make an honest judgment, which would not be a reflection on anybody involved. It would simply bring closure. Those of us who have been involved in mediation, arbitration and such methods during the years know that, ultimately, while one might know one is completely in the right, matters might not go in the way one expects. In most of the great arguments in Irish life both sides, while holding opposing viewpoints, are absolutely certain they are completely right and they will always hold that position. In issues before the Ombudsman it is simply about bringing closure, taking everything into account. I ask the Minister of State to take away this most important point, to table a brief amendment to the legislation to allow the final step to be taken to ensure closure.

I welcome the Minister of State. He made a very comprehensive speech, with parts of which I wholly agree. I am delighted to note that he holds the Ombudsman in very high esteem. He has complimented her on the investigation she has carried out, which is very important.

I accord my sympathy to the family in question and the many families which have suffered bereavement during the years in tragedies at sea. Such tragedies have affected families in my county and all along the entire coastline. The tragedy we are discussing dates back to 1981. It took a long time — the best part of 20 years — for it to receive official recognition.

There was a closing date to the scheme. Based on my professional experience before entering the Oireachtas, departmental scheme closing dates always cause problems. This family is aggrieved that its application was not in before the closing date and I have every sympathy for those involved. However, closing dates exist for a reason and they must be adhered to, or every scheme would continue for long periods and no end would ever materialise. I am aware that in the case of the Department of Agriculture, Fisheries and Food when closing dates were first mooted problems arose and extensions were given. Eventually a time came when a closing date was set and if one was late, a certain percentage was taken off one's entitlements for every day missed up to a ceiling of 20 days.

That was not the case in this instance and a closing date was stipulated. I find it difficult to understand and I disagree with the Ombudsman's view on the matter of advertising. The scheme was advertised in various fishery bulletins of which the fishery industry, a small knit community, would have been aware. That part of the report is somewhat difficult to understand. As the Minister of State rightly stated, the scheme was advertised inThe Marine Times, Irish Skipper, and Fishing News. All the fishing representative groups were aware of the scheme as were the producer organisations. They were all asked to publicise the scheme and I believe they did so. A significant number of applications were received and several were unsuccessful: a figure of 62 was provided by the Minister of State. Such applications failed to meet the criteria. I do not understand the point of view of the Ombudsman in this case. The period of time allocated for the application was adequate. The scheme ran for six months from June 2001 until 31 December of that year. The application submitted by this family did not arrive until January 2003. I feel sorry for the family but I do not know what can be done at this stage.

I listened to my colleague, Senator Bradford, who is always very reasonable. He offered the view that this should be discussed in depth at the Joint Committee on Agriculture, Fisheries and Food but I disagree with him fundamentally in this regard because the sooner closure is brought to this matter, the better. We should not give false hope to people who may take the view that while the matter is under discussion, they may be entitled to some compensation eventually. Such a measure serves no purpose and prolongs the pain for the people concerned. There is no basis at present for such a suggestion. I compliment the Minister of State on the way in which he has handled the matter today and in the Lower House.

I welcome the Minister of State. I step into the breach for my colleague, Senator Michael McCarthy, who is unavailable and I will speak on behalf of the Labour Party on this matter. It is important to keep the Byrne family to the forefront of our minds on this matter. At issue is the matter of natural justice and whether the Byrne family received due recognition for its complaint or an appropriate response from the agencies of the State was forthcoming. When he was an Opposition Deputy, my constituency colleague, the Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Sargent, filed a complaint concerning the role in this affair of the former Minister for the Marine and Natural Resources, Deputy Frank Fahey, with the Standards in Public Office Commission, SIPO. While SIPO rejected the complaint, the Minister of State's action demonstrates that certain Members now in Government recognised that a problem existed.

The Ombudsman found the scheme to be seriously deficient and flawed and the European Commission was never informed of its existence. The Byrne family has been treated abysmally by the agents of the State, with the notable exception of the Office of the Ombudsman. However, the Department of Agriculture, Fisheries and Food has decided to ensure that the family will not gain redress. For only the second time in the history of the State, we are left with a scenario in which the role of the Office of the Ombudsman has been completely undermined. As a result of its decision to reject the Ombudsman's findings, the Government has undermined the confidence citizens held that they could successfully resolve their complaints and it has severely compromised the independent statutory role vested in that office by the Legislature.

For the Labour Party, this is a case of ensuring that the organs of the State are not undermined or demeaned in any way. We must not neglect the significance of a rejection by the Government of the Ombudsman's report. That the report has been laid before the Houses, presumably as a last resort, speaks volumes about the contempt this Government holds for any independent arbiter whose role is laid out under statute. What hope can the ordinary citizen have that a complaint will be adjudicated upon fairly if a decision can be rejected by the Government of the day for reasons of political expediency? The Byrne family has been subjected to the ignominy of witnessing a report which offers redress and a measure of natural justice rejected for the sake of that political expediency.

It is clear from the correspondence between the Department and the Ombudsman that the Department is engaged in a cost saving exercise and will do anything to abdicate its responsibilities. The Labour Party seeks justice for the Byrne family and an acknowledgement of the Ombudsman's report. It is critical that we afford the Ombudsman an opportunity to present her findings to the Joint Committee on Agriculture, Fisheries and Food. Also, we should have the opportunity to hear from all interested parties to understand the issue fully.

It is important that the following statement from the Ombudsman is read into the record of the House. If this has been done previously I offer some apology, but I intend to include it in my contribution. The Ombudsman stated:

My role as Ombudsman is to ensure that our public administration system deals properly and fairly with members of the public and this is a task which I am committed to fulfilling, without fear or favour, in line with the statutory authority which has been granted to my Office by the Oireachtas.

My decision to make a special report in this case was not taken lightly. It is my statutory duty under the Ombudsman Act, 1980 to decide what is fair and reasonable in relation to each complaint that comes before me. Where a remedy is warranted I take great care to ensure that my recommendations are both appropriate and proportionate. The credibility of any Ombudsman depends on his or her ability to deliver adequate and appropriate remedies to people who have been treated unfairly. My investigation of the Byrne family's complaint has been painstaking and forensic. However, in this case, despite my best efforts, the Department of Agriculture, Fisheries and Food continues to dispute my findings and recommendations and I have been unable to resolve the impasse. My only option when this arises is to seek the intervention of the Oireachtas. It now has the task of deciding who is right and who is wrong in the context of good administration and fairness to the complainant.

The Labour Party proposes the House should adhere to the recommendations of the Ombudsman. I accept it is not within our gift to apply its findings and deliver some degree of natural justice to the family. It is not for the Minister of State to decide on the motivations of the family or to comment on them in 2010 in the context of a scheme that was in place from 1980 or 1981 to 1989. However, what is at stake is the role of the Ombudsman and the decision and findings of the office. The Ombudsman clearly stated that there was maladministration and that the scheme was not properly advertised. She made a decision to grant redress for the reasons outlined in the report. The issue is whether the Government decides to take on board the views of an independent arbiter which has a statutory function. We should not reject a report of the Ombudsman so easily.

It is with great sadness I read this report. I understand this is the second time such a report has come before the Houses of the Oireachtas in the histories of the State and the Ombudsman. The facts of the matter are clear. Compensation was awarded to a small number of families during a small period. The title of the scheme, the lost at sea scheme, is appropriate. It was not a good scheme. The Ombudsman has stated clearly that "the design of the scheme and the manner in which it was advertised was contrary to fair and sound administration", which is disturbing. We need to reflect on that position.

The scheme has obviously been discontinued and I am glad it has been. My heart goes out to any family that has lost people at sea. There were a number of complaints made to the Ombudsman and one, relating to the Byrne family, was upheld. A recommendation was made by the Ombudsman's office. Roughly 75% of the compensation available at the time was made available in my constituency, Galway West, which is the same as that of then Minister, Deputy Fahey. Irrespective of the position, this does not look good and needs to be justified. I am not sure it can be.

With regard to the scheme's implications for the Byrne family, the Government is making decisions. I urge it to take as much heed of the report as is possible. It should reconsider the report. The Byrne family, in particular, should be compensated, as recommended in the report. Fairness and natural justice should be evident in regard to the matter.

I have had cause to liaise with the Ombudsman in that I have advised many people to bring their cases before her office. The office is a very fair and important one and it exists for a reason. When the Ombudsman goes to such great lengths to produce a report such as the one in question for the Houses of the Oireachtas, we must pay heed to it. I am not being prescriptive as to how we should pay heed to it. I urge the Minister to take the report very seriously. To have democracy, we need to ensure proper checks and balances are in place. We have to read statements. I fully trust the Ombudsman, Ms Emily O'Reilly, regarding the fact that elements of the scheme were contrary to sound administration. We must take this very seriously and act upon it.

I thank all the Senators who participated in the debate for their views on this matter. I sometimes believe it is a lot easier to respond to a debate in the Dáil where debates tend to be extremely political and where it is possible to respond in almost entirely party-political terms. I frequently find in the Seanad, as I do today, that the contributions of Senators are very considered. In so far as possible, they look behind the scenes and raise questions that are actually very difficult to respond to. One can well understand why somebody in government might prefer that there were no Seanad. When I come to the House to consider legislation, Senators, for whatever reason, be it related to interest or time, consider issues deeply and propose amendments. I hardly ever came to the House with legislation without accepting amendments and driving everybody mad elsewhere.

I find myself in disagreement with many of the points Senators made on the lost at sea scheme. However, one fundamental point was made in virtually every contribution, namely, that there is not a prescriptive outcome provided for in the original Ombudsman legislation of 1980 with regard to what happens following the referral of a report to the Houses of the Oireachtas. This is a great weakness and it was outlined in considerable detail by Senator O'Toole and others. Perhaps the Oireachtas will address it at some point.

I will try to address the specific points of individual Senators. Senator Twomey asked about the extent to which the Ombudsman examined all 68 cases. I do not know the answer but certainly agree with the Ombudsman's assessment that her examination of a case and everything relevant thereto is thorough and painstaking. I find it very difficult to imagine that an Oireachtas committee or any other body charged with responsibility in this area would find it possible to do a better job than has been done.

I have tried to set out in my opening contribution the key points on which I disagree with the Ombudsman. The principal one relates to closing dates of schemes, irrespective of what schemes they may be. Every Member in each House understands Senator O'Toole's point on people waiting on the quay wall and praying for the safe return of family members, friends and relations who are on a trawler engaging in one of the most dangerous occupations in the country. He referred to the kind of heartbreak this brings to families.

One difficulty with the lost at sea scheme relates to the entitlement to conclude that an element of what is provided for involves the making available of some kind of compensation to people who have lost families in the tragic circumstances that apply to the Byrne family and many others. A huge part of me would want to find a way to do that for the Byrnes and many other families but other considerations that come into play create difficulties.

The manner in which the Ombudsman went about examining these issues seems extraordinarily thorough and professional but that does not address the point being made. Senator O'Toole said very eloquently that it as possible that the Ombudsman could be as wrong as the Minister. I came into the Department fairly late in the day and examined all the material and reached a conclusion as fairly as I could thereon. With regard to Senator Twomey's question, I do not know the extent to which the Ombudsman considered the other 67 applications. However, with regard to the one in question, nobody could dispute the thoroughness of her consideration.

Senator Twomey referred to a case concerning the decommissioning scheme. It is entirely inappropriate to this debate and, in any event, it is not sorted at Supreme Court level. Suffice it to say the Senator was making the important point that solving difficulties through the courts is both expensive and, for many reasons, not very desirable. He also made the point there is a political element to this debate that would make it very difficult for the Oireachtas to adjudicate were it its role. It simply is not the role provided for in the legislation.

Senator Carroll outlined the issues that arise in legal terms in a way that explains better than I can what exactly is being dealt with in this instance. My training is not in this area. The Senator's contribution was very helpful in this regard.

Senator Bradford said this is only the second occasion on which the Ombudsman has referred such a report to the Oireachtas. Many will not be aware that in the previous case, which arose during my tenure, although I was not a member of the committee, the resolution was anything but straightforward. One could not say it was resolved in a manner along the lines outlined by the Ombudsman. Perhaps, therefore, the Oireachtas should be considering the next step, which is not clearly provided for.

Many questions arise over the administration of the scheme. What appears clear from the Ombudsman's report is that there is no question about the administration of the scheme which was designed and set up. It is inevitable that a scheme in gestation since early 1999 and which finally came into play two years later would be subject to the input of very many people. Representatives of the fishing industry, in its various guises, had an input and some were opposed and some were in favour of the scheme. Various other interested parties had an input, as did Members of the Oireachtas. The scheme was naturally informed by the input of a series of people, including Department officials, who had views thereon.

The point is often made that a small number of people were written to and informed about the scheme. The records appear to indicate that 16 people were written to and that only two of them were successful. The choice the Department would have had at the time would have been either to write to the people it knew about to let them know about the scheme or not tell those to whom it knew the scheme applied about it. In such circumstances, it is considerably better to tell the people to whom one knows the scheme applies about its existence rather than run the scheme and perhaps run the risk of them not finding out about it. That is a difficulty.

The difficulty points to another shortcoming in the era in question, namely, that there was no real means of having a definitive list of boats lost at sea. The then Minister, Deputy Fahey, addressed this when he set up the operation that deals with this area, which is now under the Department of Transport. One of the issues raised was how families feel they have been left out and disadvantaged by the system, and that there was not even a record of their loss.

Senator Bradford also referred to the Ombudsman legislation and the Oireachtas procedure. No more than anybody in the House, I wish I were in a position to compensate all the families who have lost in this manner.

Any files in the possession of the Department which were requested by the Ombudsman were sent forward. One of the difficulties is at that stage one is dealing with a massive amount of documentation, not all necessarily filed in a manner that makes it easy to do the job that the Ombudsman must do, and it was a very difficult job to do in that regard.

Senator Ned O'Sullivan also mentioned the tragic human circumstances of which we all must be cognisant and the fact that it is a dangerous occupation. He mentioned there was a reasoned debate, although I think he attributed particular views and statements to the wrong MEP. My recollection is that he may have been referring to Mr. Jim Higgins, MEP, rather than Mr. Joe Higgins, MEP, but that is a slip of the tongue that one could easily make. He also made the point about the targeted advertising.

I mentioned already one of the points made by Senator O'Toole on where the legislation hangs and at the end there is not a clear place to go to, and that does seem to be something that needs to be addressed. He made the point quite strongly that the Ombudsman might be right or wrong, or I might be right or wrong, and that is an important point because some kind of resolution in those circumstances would seem to be desirable.

He also mentioned issues in the courts. Unfortunately, in the fishing industry many issues are decided in the courts by injunctions and by all kinds of procedures, and that is probably not a healthy way to do business.

The Senator also made the point, of which I was very cognisant, that the part of my address where I referred to the quantum of the award and took issue with it, weakened the argument. I tried to make the point that the really major consideration was the closing date and the fact that the integrity of schemes depend to such an inordinate extent on the integrity of closing dates, and then went on to deal with other ancillary matters arising from the Ombudsman's report. There are other important points which in the time available I did not manage to address but which require to be addressed. However, the Ombudsman did an extraordinarily good job.

I am informed that I am needed for a Dáil vote. I will make a brief reference to the points made by Senator Carty on the integrity of closing dates, with which I agree.

Senator Ryan made a number of points on the Ombudsman's findings which are important. I want to assure him that there is no intention on my part, or the part of Government, to undermine the Ombudsman. I strongly believe that were this to become a political football in the way that the current proposals would have it, it would do irreparable damage to the Office of the Ombudsman, and that anything that is happening currently certainly does a great deal less damage.

Senator Ó Brolcháin mentioned that the Ombudsman believes it is not a good scheme. He also made a point on the compensation in Galway West. It is important to bear in mind that there was no finite amount of compensation and that the outcome depended entirely on the size of the boat, and that is where the capacity came from. It was based on the size of boat rather than any other consideration.

Sitting suspended at 1.05 p.m. and resumed at 2 p.m.