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.