Lost at Sea Scheme: Motion

I move:

That Seanad Éireann supports the findings and recommendations of the Ombudsman's Special Report on the Lost at Sea Scheme; and calls on the Government to implement these recommendations.

I welcome the Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Seán Connick, whom I met at the Joint Committee on Agriculture, Fisheries and Food when we discussed the Ombudsman's special report on the lost at sea scheme. The issue before us is a serious one which the House debated and on which it passed a resolution to refer it to the joint committee. I am pleased the matter was examined by the joint committee.

The Ombudsman has an important role to play in providing necessary safeguards in our system to ensure proper administration and fairness in administration by Departments and public bodies and appropriate behaviour by Ministers who are in charge of Departments. In his autobiography the former Taoiseach, Deputy Bertie Ahern, explained the reason he did not retain the former Minister for the Marine and Natural Resources, Deputy Frank Fahey, in his Cabinet. He stated that Mr. Fahey had got the Government "caught up in a bit of difficulty" about the lost at sea scheme and it seemed to be "a good time to get him out of the spotlight". While I do not wish to trivialise the matter, I agree with the former Taoiseach's assessment. It is a spot of bother and an important issue that the Ombudsman found that a Department and Minister chose to design and ring-fence a non-statutory, administrative scheme to benefit a select few individuals. The Ombudsman found that this was contrary to fair and sound administration, in other words, it was maladministration. Her finding against the Minister and Department is the reason we are debating this issue. The Government has politicised the matter by supporting the former Minister in undermining the Ombudsman and her report and calling into question, on spurious grounds, the validity of her findings.

Legislation was used to benefit individuals on a number of occasions in the past. Examinership legislation was introduced by the former Taoiseach, Albert Reynolds, to benefit Larry Goodman. The former Taoiseach, Deputy Bertie Ahern, introduced an amendment to the Finance Act in 1994 while Minister for Finance for the benefit of Ken Rohan in relation to his art collection. As Minister for Finance, the current Taoiseach, Deputy Brian Cowen, introduced the Markets in Financial Instruments and Miscellaneous Provisions Act 2007, which implemented changes that benefited none other than the former Minister for the Marine and Natural Resources, Deputy Frank Fahey, by ensuring his pension was backdated by two years to allow him to benefit from an increase in his ministerial pension entitlements. These are examples not only of maladministration but of misuse of power.

Some of the changes such as the examinership legislation and the provisions on art in the Finance Act contained a safeguard in that they were passed and vetted by the Oireachtas and had more general application. However, the lost at sea scheme was introduced for one or two individuals in the fisheries sector. It transpires that one of the individuals for whose benefit the scheme was designed was not eligible to benefit from it. It appears, however, that the Attorney General advised that the individual in question had a legitimate expectation that he would benefit because the Minister wrote to him indicating that was the case.

We also had the finding of the Moriarty tribunal that Charlie Haughey, on becoming Taoiseach in 1987, conferred a benefit on Ben Dunne by seeking a reduction in tax from the then chairman of the Revenue Commissioners. This concerned a family trust on which the tax demand was reduced by more than €23 million to only €16 million. There is a history and pattern of Ministers using their office to benefit individuals for various reasons. It was as a result of this pattern of behaviour by former Taoisigh and Ministers for Finance that Deputy Fahey believed he could do what he did with the scheme. He has been found out, however, by the Ombudsman which is highly embarrassing, not only for the former Minister but also for the Fianna Fáil Party and Fianna Fáil led Government. It is just another example of the type of unacceptable behaviour in office to which we have become accustomed and which has perhaps contributed to the difficulties in which the country finds itself.

The Ombudsman found that designing a scheme to allocate replacement tonnage for individuals who had lost a vessel at sea was desirable in principle. However, the scheme was designed and ring-fenced for the benefit of specific individuals and was never intended to have wider application. The Department opposed the introduction of the scheme because it saw the problems it could create in terms of limits on fishing as applied by the Common Fisheries Policy.

In her report, the Ombudsman states:

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

The two constituents of the then Minister benefited from more than 70% of the tonnage which was allocated. The former Minister said it was unfair and inequitable to apply the findings to the Minister and his officials. Having designed the scheme, the Minister sought to lay the blame on his Department. The Ombudsman found that in his involvement in ring-fencing and designing the scheme and directing it to be implemented, he was responsible.

The Joint Committee on Agriculture, Fisheries and Food examined this scheme. The committee examined the report. If it had found the Ombudsman had erred in the facts in her interpretation of the legislation or otherwise, that would have been grounds for setting aside her report and the recommendations. However, the committee examined each allegation and the defences put up by the former Minister who claimed the Ombudsman and her officials had misconstrued the scheme. In reality, it was the former Minister, Deputy Fahey, who had misconstrued the scheme. Even in the committee he continued to state that the scheme was for individuals who were still involved in fishing. The Ombudsman had to write to the committee to ensure this error of Deputy Fahey was corrected. Therefore, the very basis of his defence and his suggestion that there was some frailty in the report were found to be incorrect.

There was a suggestion that the scheme did not contravene EU regulations, which was also discussed at the committee. Of course, the scheme was never notified to the European Commission so the Commission never had the opportunity to suggest the scheme was fair, reasonable or otherwise.

Deputy Fahey stated persistently there was no finding of maladministration. In her intervention in the committee the Ombudsman specifically stated that she saw no difference between the term "contrary to fair and proper administration" and maladministration. On that point she found that the maladministration was in the drafting of the actual scheme. The maladministration applied to the Department in total, to the Minister as well as to the officials. She stated, "The difficulty I have is that I found maladministration in respect of the lack of fairness of the scheme". When she was asked to clarify the difference between maladministration and "contrary to fair and proper administration" she said they were the same.

I reiterate the extraordinary anomaly in all of this is that one of the two main beneficiaries of the scheme which the Minister sought to enrich did not qualify. That was confirmed at the committee. The lack of advertising was based on a misconception by the former Minister that a person had to be involved in fishing at that time and therefore there was no need to advertise it widely. The committee's report has a conclusion and analysis consisting of one paragraph: "The committee is of the view that the manner in which the scheme was advertised was not adequate but not to the extent that it could be considered contrary to fair and sound administration".

Therefore, the committee is substituting its judgment for that of the Ombudsman, which is not its role. There is no basis set out in its report for that conclusion. The reality is the committee's report does not, under any circumstances, reflect the debate, analysis and clear contradictions in the position which Deputy Fahey sought to advance at that committee. On each suggested frailty, fault or error in the report the Deputy was found to be wrong. It is my view that because the committee has not found any errors in the report and there is no evidence before the committee which would justify the calling into question of the report and the recommendations, there is no basis for rejecting the report as the committee proposes.

I propose, therefore, that this House upholds the findings and recommendations of the Ombudsman. She has made the point in subsequent public comment in regard to the committee that it did not carry out a full analysis and its report does not reflect the findings of the committee. We are examining enlarging the powers of committees and the Joint Committee on the Constitution is examining this issue. If the work of the agriculture committee is an example of how committees function in the Houses, where the Whip is applied, in this case the Government Whip, to ensure an outcome, then no reform of committees can make them fulfil a meaningful role in the Oireachtas.

I thank my colleague, Senator Regan, for bringing this very important motion before the House. He has taken a great interest in the matter and was a regular attender at the Joint Committee on Agriculture, Fisheries and Food when the report came before us for deliberation. It is not the first time this House has discussed the lost at sea scheme. Once again it is appropriate as we reflect on this report and the matters to which it pertains that we acknowledge the great tragedy suffered by the Byrne family in October 1981. That was almost 30 years ago but the tragedy and loss suffered by that family and others is enduring. We should remind ourselves of that sad fact.

It is 12 months since the Ombudsman presented her special report to the Oireachtas. The report has been the subject of much debate and a certain degree of division since its publication. We must acknowledge the fact that a special report by the Office of the Ombudsman is a rarity and this is only the second such report. When Dr. FitzGerald's Government put in place legislation in the 1980s to create the Office of the Ombudsman and the first position was taken up by Mr. Mills, we aspired to having an Ombudsman's office that would be a final recourse to the citizen when the State, through its various agencies, channels and Departments, did not give a fair hearing to such a citizen. Much good and useful work has been done and many very fine recommendations have been made by the Ombudsman's office down the years, but I stress that only two such special reports have been made. This is one of them.

The Ombudsman's findings and recommendations are clear. The office has ruled firmly in favour of the Byrne family and has highlighted serious concerns about the way in which the initial scheme of compensation was put in place. Serious allegations have been made about the application procedure and a recommendation was made that compensation of an unnamed amount be awarded to the Byrne family. We have to take this report with absolute sincerity and respond to it in a serious fashion. If, politically speaking, we decide it was a good idea to set up the Office of the Ombudsman and give the office extensive powers to investigate and make recommendations, as I believe everyone will agree it was, we cannot have it both ways. We cannot say the Office of the Ombudsman must be independent, impartial, powerful, given facilities to investigate and allowed to report, and then, should we decide to do so, simply ignore the reports. Unfortunately, that is what the Department and the Government is doing with this report.

We have had an extensive review of the report at the Joint Committee on Agriculture, Fisheries and Food. We interviewed a significant number of witnesses and met and interviewed the Ombudsman, Ms O'Reilly. Unfortunately, at the end of our deliberations, party politics took over and the Government used its majority on the Oireachtas committee to find against the Ombudsman. That was a disappointing intervention of party politics in what should have been a deliberately sensitive and important report.

Politics is at a very low ebb. As we know, the economy is in freefall, the public has lost a huge amount of confidence in the Government and, sadly, has also lost a huge amount of confidence in the political system and political parties. The way the Government has dismissed this report and used its majority on an Oireachtas committee to reject it adds profoundly to the cynicism in which politics is held. It also adds to the sense of despair the citizen would feel as to what assistance or recourse to intervention is available when the Government decides to shut down assistance and help as outlined in this report.

The way we respond to this motion is important in that sense. We must show clearly that, as a House of the Oireachtas, we are able to look at the bigger picture and at the impartial, non-political work done by the Office of the Ombudsman. We should be big enough to decide we would not cherry pick and say some of the Ombudsman's reports are okay because they do not contain political criticism but reports which contain a degree of political criticism and demand a higher standard of political accountability can be cast aside. That would be a very dangerous response by this House to what is not just a report by the Ombudsman but a special report laid before this House.

The motion puts before all of us a challenge to do the right thing politically. We must show each and every citizen of the State that an independent office such as the Ombudsman will be allowed to get on with its work, that politics will not have the final say and that party politics will not be used to make the final decision. Unfortunately, party politics was used to make the final decision at the joint committee. I would hope that in this more reflective Chamber of the Oireachtas colleagues would be prepared to see the bigger picture, to examine the wider consequence of a decision to reject the Ombudsman's special report and to try to act in a proper fashion.

It was at the Oireachtas committee when the Minister of State's former ministerial colleague and now former Member, Mr. Jim McDaid, said there was something of a stink about the whole compensation scheme, the way it had been implemented and the way the Byrne family had been treated. That was the commentary from a former Minister on the Government side who, I presume, had done extensive investigations into the whole process which has brought us to where we are. Most fair-minded people would be deeply unhappy with the way the Byrne family was treated. Most people for whom the bigger picture rather than party politics is the primary concern would feel that, once the Office of the Ombudsman investigates, deliberates, considers and reports on a matter, we should have the capacity to implement her findings.

The Ombudsman's report is spectacularly clear in its findings and recommendations. There is a moral obligation on us, as part of our broader efforts to renew politics and renew faith and confidence in political life, to accept the Ombudsman's recommendations and findings and to respond accordingly. That is the challenge to Senators and to this important House of the Oireachtas. I appeal to my colleagues on the Government side to try to act in the broader national interest and the interest of returning to politics some degree of decency and respect for the independence of the Ombudsman's office.

I do not intend to speak on this motion for any length as it has been adequately dealt with over many meetings of the Joint Committee on Agriculture, Fisheries and Food. There were many witnesses at those meetings, including Ministers, former Ministers and officials such as the Secretary General of the Department of Agriculture, Fisheries and Food, Mr. Tom Moran, and his predecessor, the former Secretary General, Mr. Tom Carroll, who was in position at the time and was a very credible witness. We also had the pleasure of Senator Regan attending our meetings and giving us his side of matters and very good legal advice as well. I compliment him on that because the advice came free and his profession does not usually give that kind of information for free.

On the best advice offered by those officials, we on the Government side voted not to accept the recommendations of the Ombudsman. I and every Member have tremendous sympathy for the Byrne family and their great loss, both personal and commercial. I say to those who tabled the motion that if we are to believe the polls, they may well be in Government sooner rather than later and it will be up to them to re-open this case and pay compensation as they see fit. Indeed, Senator Regan may well be the Attorney General, and I look forward to that.

I welcome the Minister of State, Deputy Connick, who has spoken on this issue before on behalf of the Department. I second the motion as proposed by Senator Eugene Regan. I do not have anything for or against anyone involved in this scheme. Although I do not see it as a conflict, I have in the past year or two become personally friendly with a member of the Byrne family. From what I know, I genuinely feel they have been wronged.

This matter is outstanding since 1981. I do not know whether the scheme was suspect but that belief has been hanging about and it was referred to again in the House today. If it were in any way suspect or tainted, that would be all the more reason to accept willingly the findings of the independent Ombudsman on this matter. The Ombudsman is above politics, is appointed by both Houses of the Oireachtas, and is a most neutral referee. I would assume there is no one above her in that respect. Her office invested much time, energy and resources in examining this matter fully. As I understand it, the office found the scheme was designed to discriminate against the Byrne family, who it seems have been very badly wronged by the State. The Ombudsman found that the scheme was contrary to fair administration and that there was maladministration. The lack of advertising was referred to. I was not involved in any way in meetings of the Joint Committee on Agriculture, Fisheries and Food, which considered this matter. However, let us be honest and state that its eventual decision was made totally on party-political lines. The committee found no errors in the report. As has been said, the Ombudsman does not take lightly the task of issuing reports. The report in question is only the second special report of the Ombudsman. The recommendations therein are very clearly in favour of the Byrne family. We cannot simply ignore or cast aside the report.

The Office of the Ombudsman should be the final arbiter. As I understand it, that was envisaged when the office was set up. In cases such as this, the Ombudsman was to be the final arbiter. It behoves Members of the Oireachtas to accept graciously the findings and recommendations in the report, which are totally clear.

I plead with the Government, at this late hour, bearing in mind that this matter was discussed before, not only to do the right thing but to do the honourable thing. There must be a way, even at this late stage, to deal with the matter properly and correctly. I have no doubt the Minister of State is a very fair-minded individual, as befits his office. I urge him to have this wrong righted, even at this stage.

I move amendment No. 1:

To delete all words after ‘'Seanad Éireann'' and substitute the following:

"notes:

the lengthy and detailed consideration of the Ombudsman's special report on the lost at sea scheme by the Joint Committee on Agriculture, Fisheries and Food;

the views of the joint committee, as set out in paragraph 5 of the committee's report; and

notes and accepts:

the decision and recommendations of the Joint Committee, as set out in paragraph 6 of the committee's report.''

I am very well acquainted with this story because I have spoken on it on a number of occasions in the House and at meetings of the Joint Committee on Agriculture, Fisheries and Food, although I am not a member of that committee. As Senator Carty pointed out, the matter has been debated comprehensively in this House and the lower House. It may be counterproductive to discuss it during Private Members' time at this stage.

Everybody in this House has the deepest sympathy for the Byrne family of Donegal on its loss. Everybody would like to see it receive compensation and a vehicle put in place that would allow it to draw it down. Having said that, I reject outright the comments of Senator Regan to the effect that the lost at sea scheme was devised by a Minister in such a way as to benefit a small number of his constituents, to the disadvantage of everybody else. That has been rejected and it is most unfair to the former Minister, Deputy Fahey, to keep trotting out this charge against him.

It is in the Ombudsman's report.

I am coming to that report. I have studied it very closely. The Ombudsman is a very important and respected official in this State. However, as I stated before, that does not make her infallible. The Ombudsman can be wrong and I believe that, in this report, she is badly wrong. I am entitled to say that. She was badly wrong in the report she issued recently on the health issue. Anybody who listened to the Minister for Health and Children, Deputy Harney, during a television debate at the time in question will have heard that report soundly rebuffed. Everybody would have to concede that. Let us be clear that we are not talking about angels; we are all human and all can err. The Ombudsman has erred in her report. This is my view and I am entitled to it.

The lost at sea scheme was devised to help people with business problems on foot of tragedies at sea and to get those businesses back into operation. It was not about compensationper se. There had to be a cut-off date. Senator Regan, being a legal man, will know that a cut-off date must be honoured. If it is not honoured, it opens up every scheme introduced or to be introduced by a Government to post hoc appeals. In such circumstances, late applicants could ask that a scheme be reopened.

It did not apply to the ministerial pension of Deputy Fahey.

I did not interfere with or interrupt Senator Regan and I demand the same respect.

Senator O'Sullivan has the floor.

The joint committee studied this matter in great detail and witnesses of the highest integrity and calibre were invited to appear before it. The committee decided, by majority, to reject the report. Now we are saying it is politicised. It takes two to tango in politics. If all the Fine Gael members vote one way and all the Fianna Fáil members vote the other, is it because Fianna Fáil or Fine Gael has politicised the matter? Is it the result of the system we have?

With regard to politicisation, I vaguely recall a difference of opinion between a former Ombudsman, Mr. Michael Mills, and the then Taoiseach, Mr. Charles J. Haughey, over a certain matter. The outcome was that Mr. Mills was reappointed. The contretemps was dealt with in a much more low-key fashion than the one pertaining to the lost at sea scheme, which has become a big political football.

We must be careful. The Ombudsman has responsibilities. We have received two controversial reports from her. She, like ourselves, is trying to do the best she can for people. I concede immediately that she has done tremendous work for people, both individuals and the community at large. Anyone in politics will know that. When I was a county councillor, I had recourse to her office on one occasion as a last resort and found her approach to be professional and excellent.

I am not happy this issue should be politicised further. I am not happy Deputy Fahey's name should continue to be vilified when he has been cleared in every right-thinking person's mind.

Considering that we are talking about politics, it has been reported in the media that the Ombudsman may have a political future after she leaves office. I am stating a fact. Perhaps the Ombudsman will want to clarify that position now——

Is the Senator attacking the Ombudsman now? Are we dealing with the report or the Ombudsman?

That is the third time the Senator interrupted me.

All these difficulties will be exacerbated if there is a political dimension to them, or a suspected political dimension. The same applied to Mr. George Lee when he was targeting the Government for months in advance of his becoming a Fine Gael candidate, which the dogs on the street knew would occur. When he became a candidate, he had his job well done. I am not saying the Ombudsman is in that position but she might do well to clarify her position on foot of speculation about her political future.

That is shocking politicisation of the Office of the Ombudsman.

It would help this debate and be of service to her office.

She was appointed by Mr. Charlie McCreevy.

It would be of service to the body politic.

Under the Standing Orders of the House, that comment should not be allowed to stay on the record. Senator O'Sullivan just made a political charge against the Office of the Ombudsman. I like Senator O'Sullivan and get on well with him but believe his speech was absolutely shocking. I could not disagree more with it.

I welcome the Minister of State, Deputy Connick, my neighbour.

The Ombudsman's report and the subsequent debate at meetings of the joint committee outlined fundamental flaws in our current political system. Senator O'Sullivan praised the work done by the Ombudsman, yet a very detailed report produced on the lost at sea scheme, which identified significant errors in the way the Byrne family was dealt with, was completely ignored by the Oireachtas owing to a party-political vote on foot of the whip being used at a meeting of the Joint Committee on Agriculture, Fisheries and Food. I reject absolutely the notion that the Ombudsman is adopting her position for political purposes, as mentioned by Senator O'Sullivan. Her role is very important and significant within the overall political system. The Ombudsman examined the facts as they were presented and, contrary to what Senator O'Sullivan stated, her contention in the report that the scheme was improperly advertised was upheld by the Joint Committee on Agriculture, Fisheries and Food. One of the most fundamental aspects of her report was upheld by the committee. Far from being the issue relating to Deputy Fahey's role being discharged, the position remains somewhat clouded.

Other than having read the report and observed some of what occurred at the Joint Committee on Agriculture, Fisheries and Food, I do not know a great deal about this matter. It seems patently obvious, however, that the former Minister, Deputy Fahey, used the lost at sea scheme to sort out a couple of his constituents. The bottom line is that almost 30 years ago a man and his son drowned following an accident off the coast of County Donegal and the Byrne family has suffered a great deal in the intervening period. In politicising this matter and voting down or not accepting the Ombudsman's recommendations at the Joint Committee on Agriculture, Fisheries and Food, the Government has brought all of us into disrepute. The Byrne family has suffered enough.

There were two elements to the Ombudsman's report, namely, findings and recommendations. If the Government is serious about maintaining the functions of the Office of the Ombudsman, it must reappraise how it deals with reports that are produced by that office. We either have an independent Ombudsman or we do not. If, for whatever reason, the majority party, and perhaps the minority party, in government does not agree with the Ombudsman, there is no point in accusing her of being affiliated to Fine Gael or stating, as Senator O'Sullivan did, that she has political aspirations.

I never mentioned Fine Gael.

The Senator compared her directly to Mr. George Lee.

There appears to have been a Freudian slip on Senator Phelan's part because I did not refer to Fine Gael.

Senator O'Sullivan also stated that it was reported in the media that the Ombudsman has political aspirations. His comments are beneath contempt and he should not have made them. The Ombudsman has fulfilled her role in an admirable way. Even though the Government has ignored her report, she has remained in her position.

This is the second report to be produced by the Office of the Ombudsman and laid before the Oireachtas. I understand the previous report, which related to a matter involving Revenue, received a better reception from the Government. I cannot understand how the Government can stand over the Ombudsman remaining in her position if it is going to ignore the recommendations contained in a report she has produced. The Ombudsman was appointed to her position by the then Minister for Finance, Mr. Charlie McCreevy, who was a member of a Fianna Fáil-Progressive Democrats Government. The Ombudsman has done her job very well but her report is being ignored.

The comments from the Ombudsman following the decision of the Joint Committee on Agriculture, Fisheries and Food not to support her report are quite damning. She stated that in this instance the Government was allowed to be the judge in its own case. That is what happened. The Government colleagues of the former Minister, Deputy Fahey, voted at the Joint Committee on Agriculture, Fisheries and Food to exonerate him when a cold examination of the facts quite clearly indicates he should not have been exonerated. There was something very wrong with the way the lost at sea scheme was operated within the Department.

The independent person who was appointed to protect the rights of citizens, regardless of whether that person has any political affiliations, produced a report with the assistance of her staff. That report clearly indicated there was something wrong with the relevant scheme, and because Government members on a committee of these Houses then voted it down, we are supposed to leave the matter at that.

In the context of suggestions that this is a political attack on Deputy Fahey, if he had not taken the relevant decisions in respect of the scheme in question, no one would be attacking him. Even former Members of the Lower House, such as Dr. Jim McDaid, have admitted that there was something wrong with the way the scheme was implemented.

Deputy Bertie Ahern also made such an admission.

I was not aware of that fact but Dr. McDaid certainly indicated there was something significantly wrong with the way the scheme was operated. Surely it is time to acknowledge the suffering the Byrne family has endured. It is also time for the Government to accept that something went awry in the administration of this scheme. To restore some credibility to the relationship between the Government, the institutions of the State and the Office of the Ombudsman, we should not fly in the face of the findings and recommendations of a detailed and carefully considered report. As stated and as far as I am aware, the report is only the second of its kind to be laid before the Houses by the Ombudsman. Perhaps the Minister of State, Deputy Connick, might indicate that the Government is undergoing a change of heart in respect of this issue.

I welcome the Minister of State. The debate on this matter relates to the fact that theMFV Skifjord sank in October 1981 and that five people, Mr. Francis Byrne, his 16 year old son, Jimmy, and three other crew members died. Mr. Byrne left behind a widow, five sons and three daughters. Where is the humanity in this debate? The debate has become a political football that is being kicked around, principally by Fine Gael and Fianna Fáil. This matter should have been settled before the moving of the motion. I do not believe the debate in which we are engaging will lead to it being settled.

Will the Minister of State ensure the matter in question is dealt with, especially in view of the fact that Mr. Byrne's widow has been obliged to live with her grief for 29 years? For almost ten years, issues relating to it have been raging back and forward. The Ombudsman produced a 105-page document in which a clear recommendation is made. To a large extent, I appreciate Fine Gael's position in respect of this matter. I share the view of a previous speaker, however, that the party is, unfortunately, using it as a political football.

The Ombudsman has made it absolutely clear there was maladministration involved in the lost at sea scheme. One can dress it up whatever way one likes but maladministration involves a lack of integrity and, therefore, corruption. This was not a good scheme. In fact, it was an appalling scheme.

Like previous speakers, I do not wish to revisit the entire matter. I wish to place on record, however, a view expressed by the Department on 10 November 2000. I refer to a letter which states that the skippers, Mr. Faherty and Mr. Mullen, of theMFV Joan Patricia and the MFV Spes Nova,both of which were lost at sea, be informed that, regrettably, it is not possible to accept the capacities of their vessels as replacement capacities. Speakers on the Opposition side referred to these two vessels in the context of the 75% of tonnage allocated under the scheme going to the Galway West constituency. The letter to which I refer states that the overriding problem in respect of accepting the two vessels for the scheme is where it would stop. That is precisely the same language with regard to the Byrne family’s vessel, the MFV Skifjord. Having attended all the meetings of the relevant committee, I am of the view it is imperative for the political system to ensure the Byrne family are dealt with in a fair and equitable manner.

The integrity of the Ombudsman is at question in this. That is my principal concern and not all the political nonsense that has surrounded this issue. The political system has failed the Byrne family and I and my party believe this matter must be dealt with. It absolutely will not be dealt with by means of a vote on the motion. I regret that the matter is being used to drive a wedge between the Government parties. It is clear where my party stands. Deputy Sargent, in a letter to the Joint Committee on Agriculture, Fisheries and Food, asked on behalf of my party to ensure that this issue was dealt with at the committee. It happened that there were the various different reports at the committee. We examined it in detail. I was of the view, which I expressed quite clearly at the committee even though I am not a member of it and did not have a vote on it, that we should come to a conclusion on this and that the issue in this report should be dealt with fairly and equitably.

I agree with the views opposite that the integrity of the Ombudsman is not in question here. That is not the issue. As Members have said, the Ombudsman has submitted her report. I quote from her media release:

While the Department is free in law to reject the Ombudsman's recommendations, this is only the second time in the twenty-five year history of the Office that this has happened. The first occasion was in 2002 in a case involving the Revenue Commissioners, which, with the assistance of the Oireachtas, was ultimately resolved to the then Ombudsman's satisfaction.

On behalf of the Green Party, I met Ms Emily O'Reilly and she suggested that we would bring it to the Joint Committee on Agriculture, Fisheries and Food. That has happened but, unfortunately, the matter did not end there. It should have ended there.

I ask the Minister to take on board what I am saying, that this should end after tonight and that the Government of which the Green Party is part would come to a conclusion of this issue. It is vital that the political system is seen to work and that the integrity of the Office of the Ombudsman is upheld.

I will not vote against the motion as put forward by the Opposition, but at the same time I feel it is being used as a political football here and I regret that. I really wish that accommodation had been found at the level of the Joint Committee on Agriculture, Fisheries and Food because that is what the committees are for.

I cannot plead often enough that accommodation is found for this matter, that we bring it to a conclusion honestly in memory of Mr. Francis Byrne, his son and the other members of the crew, and that we bring closure to this on behalf of the Byrne family. While we are in a difficult financial position, this will not make or break the Government. We need to find a conclusion and bring closure. That is what I ask the Minister of State, Deputy Connick, todo.

I welcome the Minister of State, Deputy Connick.

In all of this, as has been touched on, is the sad fact that people lost their lives in the seafaring tragedy in the early 1980s. I note that has not been lost in all of the discussion and debate that has surrounded this controversial issue.

I also regret that I agree with the view that this has become now a political football. While I have the greatest of respect for the legal expertise and motivation of Senator Regan, since I returned to this House I note that it has been his consistent position to seek out what he believes to be low standards in high places, specifically if it is directed at this Fianna Fáil-Green Party Administration. He is right and proper in calling political parties in government to account. I have no quibble with that whatsoever. However, it seems on occasion — with respect, it is a little like the boy who cried wolf — that if one keeps shouting loud enough and often enough, either people will stop listening to you or, alternatively, if one fires enough mud, some of it might stick.

I restate that I have the greatest of sympathy for the family involved and the trauma that they have been going through over such a long period. In this issue, which it seemed on the face of it had been resolved and which, as Senator Ó Brolcháin stated, is still in the public domain, there is the continuing trauma that the family must be experiencing and the level of expectation that they must have each time this issue comes up that now, maybe this time, it will be resolved.

The scheme, when it was introduced, was not about money; it was about tonnage. Second, the charge has been repeatedly made against the former Minister, Deputy Fahey, by Senator Regan and others that he was somehow acting corruptly, incorrectly, and was in a favoured position to favour political supporters of his in Galway. These are serious charges. They are political charges and therefore quite legitimate, but they are serious nonetheless, and they have been rebutted repeatedly. Also, there is the question of where would the advantage have been. The scheme was not about money. Also, departmental officials consistently rejected the view that the family were to be compensated.

Irrespective of who is in the job, the Ombudsman is a well respected position and its integrity is rarely, if ever, questioned. It is the destination of last resort. For those who are desperate having, in their eyes, tried and had their application to the system rejected, this is the way forward and the Ombudsman is the last resort.

Despite the fact — Senator Ó Brolcháin referred to it, we read about it and the Ombudsman herself has said it — that there were only two instances over the past number of years where recommendations were turned down, the fact is there is nothing inherently wrong with the Ombudsman's recommendations being turned down but the impression given is that, because the Ombudsman stated that it was so, it must be so. In all of this, I and many others wish this issue had been resolved, and I thought it had been through the committee.

I leave the House with this thought. I wish Senator Regan well. He will be a member of a party that will form the next Government and I and others will await with great interest how he will address this long-running controversy when he is in a position in government to see all the files. I am sure he has seen them already. I am sure that the system has been open and transparent because it has been debated so long and so often. It will be interesting to see ultimately what decision will be taken collectively by a Fine Gael-led Government on this issue. I finish as I started, wishing that there was some way that this family could be compensated for the loss with which they will continue to live long after this has gone out of the political debate.

I too express my deepest sympathies to the Byrne family, who have been to the forefront of the minds of all, regardless of party politics, in this difficult case and issue.

I welcome this opportunity to contribute to the debate on the Ombudsman's special report on the lost at sea scheme. This issue has been extensively debated, both in this House and in the Dáil, as well as having been thoroughly analysed and considered by the Joint Committee on Agriculture, Fisheries and Food. I contributed to the debate in this House in March and was also one of a number of witnesses who appeared before the joint committee during its consideration of the Ombudsman's report.

In the course of my contribution to the joint committee, I had been following the proceedings of the committee with great interest and I have read the committee's report and, in particular, noted and agree with its conclusions and recommendations. The committee is to be commended for the diligent manner in which it went about its work over the course of a number of meetings, to which a number of relevant witnesses were invited, including the Ombudsman herself.

When appearing before the committee in June, I stated I did not propose to cover all the ground already covered by previous witnesses, and I do not intend to traverse that ground today. However, there are a few important points I want to make about the process which has, ultimately, led to today's debate.

I want to pick up Senator John Phelan on the fact that he mentioned that we ignored the report. Nothing could be further from the truth. From my appointment on 23 March, this is one of the first issues I had to deal with in my new ministry. I read the report extensively, along with thousands of other pieces of paper and documents. I spent many hours with my officials debating the pros and cons of this case. I have spent a great deal of time on this matter, preparing for either the debates here or my appearance before the Oireachtas committee, and it is wrong to say the report was ignored.

When the Ombudsman published her special report on 14 December last, she invited the Houses of the Oireachtas "to consider my report and to take whatever action they deem appropriate in the circumstances." She also acknowledged that her findings were not binding on the Department and that it was free in law to reject her recommendations. Its response to her recommendations has been articulated on several occasions — in this House and the Dáil by me and my predecessor, Deputy Killeen, and by senior officials of both my Department and the former Department of the Marine, including my Department's Secretary General, during their dealings with the joint committee and in correspondence with the Ombudsman's office.

Having been invited to consider the Ombudsman's special report, the Dáil and the Seanad considered the report in February. In the course of the Dáil debate there were calls for the report to be referred to the Joint Committee on Agriculture, Fisheries and Food. The Taoiseach confirmed to the Dáil that he had "no difficulty with the relevant committee dealing with any of these matters" and went on to say, "If the Ombudsman wants to come before that committee in order to discuss the matter, that is fine." During Private Members' time in this House there was a further extensive debate on the report.

At its meeting on 31 March the joint committee decided to consider the Ombudsman's special report and report to both Houses of the Oireachtas thereon. The committee held a series of five meetings with relevant witnesses between 21 April and 16 June. At the conclusion of these meetings, it wrote both to the Ombudsman and the Secretary General of my Department and asked that they engage in dialogue with a view to reaching a compromise. In response to this request the Ombudsman's office and the Department discussed the possibility of finding a compromise. However, as the committee concluded, "The respective positions of the Office of the Ombudsman and the Department of Agriculture, Fisheries and Food, as articulated before the Committee, are irreconcilable". The respective positions of the Ombudsman and my Department are set out in the committee's report and, as acknowledged in the report, "both parties have been consistent in their stance".

In this regard, it is worth recalling the Department's position which was based on a careful examination of all aspects of the matter and legal advice sought and taken. It is that the scheme was properly devised; that its terms and conditions were clear; that it was properly advertised in a targeted way to its target audience, namely, the fishing industry and related coastal communities, and in accordance with custom and practice for fishery-related schemes at the time; that it was scrupulously fairly administered, as the Ombudsman has acknowledged; that the application in this case was properly refused in the first instance as it was more than one year late for a scheme which ran for only six months; that there was no compelling case the applicants should receive any award under or on foot of the scheme; that there was no basis for the payment of compensation in this case, in the amount recommended by the Ombudsman or any amount; that there was a risk of undermining the administration of the wide range of schemes and programmes operated by the Department, all of which had strict terms and conditions, as well as many other administrative schemes across government that had application deadlines, terms and conditions. The Department's concerns are supported by the specific legal advice obtained. It is for these specific reasons that the Department has disagreed with the Ombudsman's finding and the recommendation for payment of compensation. As I have mentioned, the Department's view is supported by the specific legal advice available to it.

There is a genuinely held view that the Ombudsman's recommendation in this case could give rise to major financial liabilities arising from claims from other unsuccessful applications under the lost at sea scheme that may well undermine other departmental and public service schemes. My Department's position in this regard was addressed extensively during the joint committee's consideration and the basis for my Department's concerns about the potential precedent that might be set for other schemes was clearly articulated on that occasion. I am satisfied that it is clear from the information provided for the Ombudsman, the Dáil, this House and the Oireachtas joint committee, supported by the Department's files, that the scheme was carefully developed and fairly administered. I commended the committee for its work. It has performed a very useful function in teasing out the various issues and by providing a public forum in which such issues of public interest can be debated.

As this was only the second occasion on which the Ombudsman had published a special report, there was no prescribed procedure by which such reports should be considered. The Ombudsman Act 1980 is entirely silent on what, if anything, the Houses of the Oireachtas should do with any special report laid before each House. In this regard, I agree with the joint committee's view that "the process for consideration of such reports should be clearly set out" and note that it has "agreed to recommend to the Committees on Procedure and Privileges of both Houses that Standing Orders should be amended to provide that future special reports of the Ombudsman should be considered by the relevant Oireachtas committee on a specific referral motion by the House or Houses concerned".

On the subject of advertising schemes, I accept the recommendation of the joint committee that "all future administrative schemes should be advertised in the national newspapers". I also welcome the committee's conclusion that it is "not persuaded by the Ombudsman's views in relation to the design of the scheme" and, consequently, that "the Committee is not in a position to recommend acceptance of the Ombudsman's special report to the Houses of the Oireachtas". I commend the Government's counter motion to the House.

I thank the Minister of State for outlining his position. He adopted this position when he addressed the joint committee in June, when he stated, "I am confident that a fair and objective examination by the committee of all the written and oral evidence placed before it over the past two months will show that the Department's position is both fair and reasonable." As I pointed out to him at the time, while he had suggested he welcomed the outcome of the committee's deliberations and looked forward to reading its report, he had already decided that he was not going to entertain the Ombudsman's report.

A charge has been laid against me in raising this issue. I am not making this up; I am quoting essentially from the Ombudsman's report. The Ombudsman is an independent officer in an independent office which has analysed and investigated an issue brought to her attention. She has followed fair procedures in acquiring the necessary information and coming to a considered view. I am on good ground in raising the issue of the Ombudsman's report and asking why the report should be dismissed out of hand by the Government.

Senator O'Sullivan made a political attack on the Office of the Ombudsman, which is a disgrace. It proves that there is an agenda being followed by the Government to undermine the Ombudsman because she has seen fit to point to a scheme designed by a former Minister which was flawed, unfair, unreasonable and constituted maladministration. This is what has got up the noses of members of the Government and why, as in all cases, they defend their own.

Senator Ó Brolcháin has stated this issue has been turned into a political football. It is a political issue. As the Green Party is very much involved in the Government, it cannot dissociate itself from what is happening and the way in which the Ombudsman's report has been dealt with. This is unfinished business and one cannot simply state it is a political football. Fine Gael is raising a legitimate issue — the Ombudsman in an independent report has made findings and recommendations on fair and reasonable grounds and not one iota of the facts or interpretation or the views expressed by her has been found to have been made in error by the committee. In fact, the committee endorsed her fundamental finding that the scheme had not been properly advertised, yet it failed to draw the logical conclusion to concur with the Ombudsman that it was unfair and an example of poor administration.

Recently, the Ombudsman stated:

In its published decision on the Lost at Sea Special Report the [Joint] Committee [on Agriculture, Fisheries and Food] said it accepted that the way the Lost at Sea Scheme was advertised "...was not adequate, but not to the extent that it could be considered contrary to fair and sound administration...". The Committee went on to conclude that it "...is not persuaded by the Ombudsman's views in relation to the design of the scheme." In effect, the Committee has substituted its own judgement for the Ombudsman's; its report contains no further analysis or stated rationale for the foregoing conclusions. Indeed, its entire analysis runs to a single paragraph. It appears to the Ombudsman that the Committee has taken a view based, not on an objective and critical analysis of the report, but on the basis of the party whip system. This does not constitute a rational and objective engagement on the particular case.

That is the problem with the work of the committee. It has, effectively, ignored the analysis, the debate and the findings and drawn a conclusion which is consistent with Fianna Fáil policy. At least the Minister of State has been straight about the situation. The Government was never going to accept this report but was going to support the Minister of State's colleague Deputy Fahey, come what may, as has always been done in the past. Whether it was Charlie Haughey, Bertie Ahern or Willie O'Dea, Fianna Fáil supported its own. That is where the problem arises.

That is not the case.

I expected more from the Green Party, although I know it is committed to supporting the Government in matters financial. This is a fundamental issue of principle and I ask the Government to reconsider its position. It is a political issue that can only be resolved by the politicians in this House.

Amendment put.

Senators

Vótáil.

A division has been claimed on the question: "That the amendment be made." Tellers Tá are Senators Diarmuid Wilson and Niall Ó Brolcháin; tellers Níl are Senators Maurice Cummins and Eugene Regan.

The Seanad divided by electronic means.

I announced the incorrect tellers on the Government side. Tellers Tá were Senators Diarmuid Wilson and John Carty; tellers Níl were Senators Maurice Cummins and Eugene Regan. Does anyone object?

Senators

No.

Is it possible to change the tellers after they have been announced?

I received the agreement of the House. Senators did not have a problem with the change.

I ask for a clarification for future reference because a similar incident occurred several weeks ago.

I can put the question again.

I propose we have a manual vote.

Amendment again put.
The Seanad divided: Tá, 26; Níl, 19.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Dearey, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Hanafin, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Mooney, Paschal.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Walsh, Jim.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Twomey, Liam.
  • White, Alex.
Tellers: Tá, Senators John Carty and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Amendment declared carried.
Question put: "That the motion, as amended, be agreed to."
The Seanad divided: Tá, 27; Níl, 21.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Dearey, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Mooney, Paschal.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O'Brien, Francis.
  • O'Donovan, Denis.
  • O'Malley, Fiona.
  • O'Sullivan, Ned.
  • Ormonde, Ann.
  • Walsh, Jim.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.
  • White, Alex.
Tellers: Tá, Senators John Carty and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Question declared carried.
Sitting suspended at 6.45 p.m. and resumed at 7 p.m.