I thank the committee for the opportunity to appear. Like every other Member, I have the utmost respect for the Office of the Ombudsman and for the present incumbent, Ms Emily O'Reilly. I have always found the office to be fair, particularly in its dealings with me in regard to this investigation. There are some aspects I will deal with later. It is a hugely important and significant office in our system. When I was Minister of State with responsibility for children, I brought the first memorandum to Cabinet for the appointment of an Ombudsman for Children. Anything I say does not disregard the office.
The accident that befell the Byrne family was most tragic and nothing I say can take that away no more than I can take away many other tragic accidents experienced by fishermen around the country.
I was appointed Minister for the Marine and Natural Resources in January 2000, halfway through the then Government's term of office. I chose to run the Department in an open way and to expand and pursue the developmental role of the Department marine sector. My objective was to deliver an action plan to exploit marine potential in this island nation.
I would like to address the false claims made in regard to this scheme. No financial compensation was ever paid out under the scheme and no financial compensation was ever intended to be paid to any fishermen in my constituency or in any other constituency. Those who seek to say otherwise seek to defame me or make false statements purely for political purposes. The media reporting on this matter and statements by members of the Opposition have been inaccurate throughout. This is borne out in the Ombudsman's Report which states, "I fully accept that successful applicants were granted replacement tonnage under the Scheme, rather than compensation". I will deal with this issue in detail later.
I wish to deal with the sequence of events in this matter. When I visited all the ports after I was appointed Minister for the Marine and Natural Resources, one common complaint I received was that fishermen who did not have a fishing boat on the national register when capacity, that is, the gross tonnage and engine power, became an asset in January 1990 because their boats had been lost at sea, were obliged to purchase the capacity they had lost to acquire a new boat and return to fishing. That anomaly was put right in the 1990 regulations. EU regulations were not breached by the issue of replacement tonnage in 2001, as has been falsely claimed in the Dáil, in this committee and by the Ombudsman. A change in regulations did take place with the introduction of the Fisheries (Amendment) Act 2003, after I had left the Department. Following the introduction of the new register in 1990 the new licensing policy stated that off-registered capacity could be used to introduce a fishing boat on to the register within two years of deregulation, or in any event after two years, otherwise the capacity would be lost to its owner.
A major omission in the new fishing boat licensing regulations was that no provision was made for retrospective off-register boats, in other words, boats that were not capable of being registered because they were not in the harbour on 1 January 1990. I decided that was unfair and iniquitous, and after prolonged discussion and negotiation with Department officials, I decided to make a policy decision to introduce a limited scheme to grant replacement capacity, that is, gross tonnage and engine power, to fishermen who were still involved in the fishing industry. That is the crucial point that has been lost in this debate since it started six years ago. The scheme was for fishermen who were involved in the fishing industry when the scheme was introduced in 2001. A critical point in my policy decision, which was expressly written into the terms of reference of the scheme, was that it was to sustain and maintain a family tradition in the fishing industry. That was to facilitate individuals and families who were still involved in fishing when the scheme was introduced in 2001. That is the critical point that was misinterpreted by officials in the Ombudsman's office during their investigation and which the Ombudsman refused to accept when it was vehemently pointed out by officials in the Department of Agriculture, Fisheries and Food and me following the issue of her draft report.
A letter dated 3 July 2008 to the Ombudsman from Mr. Tom Moran, Secretary General of the Department of Agriculture, Fisheries and Food states:
The sole objective and purpose of the scheme was to enable qualifying applicants, who were otherwise unable to do so for financial or related reasons, to provide replacement capacity for the purposes of introducing a replacement fishing vessel in respect of fishing boats lost at sea between 1980 and the establishment of the new fishing boat register in 1990, to continue a family tradition of sea-fishing in situations where immediate family members were engaged in the sea-fishing industry. The objective and purpose of the scheme was clear, transparent and unambiguous.
That is the reason the scheme was advertised only in the marine press and the fishing organisations were consulted and informed of the scheme. The Byrne family had not been involved in fishing since the tragic accident in the early 1980s, so they would not have qualified for the scheme even if their application had been made in time. Nothing which I say should be taken as in any way detracting from the tragic circumstances giving rise to this complaint and the terrible loss suffered by the Byrne family, which I sincerely acknowledge.
Mr. Jim Higgins, MEP, contacted the Ombudsman's office on behalf of the Byrne family. A complaint was made to the office in November 2004 but I was not contacted by the Office of the Ombudsman about this complaint until July 2007, six years after the scheme had been designed and implemented, four and a half years after the Byrne family application had been refused, and more than two and a half years after the Ombudsman had received the complaint.
On 11 May 2005, an official in the Ombudsman's office wrote to the Byrne family expressing the view that the scheme may have been deficient and flawed. The complaint was then only at the stage of preliminary investigation and no findings, even of a preliminary nature, had been made by the Ombudsman. It was wholly inappropriate and premature for an official to so describe the scheme and to communicate that to the complainant at that time, without the completion of a full examination by the Ombudsman and the hearing of submissions from all parties, including me. This represented a prejudgment by an official in the Ombudsman's office of the complaint in the absence of a full and fair examination and investigation.
It is clear from the critical letter from the Ombudsman's office dated 10 February 2005, that there was a fundamental misunderstanding on the part of the official involved with regard to the scheme's application to people still engaged in the fishing industry. I was not informed about the investigation and was not asked to explain my policy decision, which was critical to the scheme, until July 2007, two years and eight months after the Ombudsman's investigation began. At that stage, officials in the Office of the Ombudsman had made assumptions based on a misunderstanding of this policy decision. I repeat, the lost at sea scheme was introduced in 2001 to allow people in 2001 to maintain or sustain a family tradition in the fishing industry. Officials in the Office of the Ombudsman were not aware until they interviewed me in July 2007 that it was I who inserted the condition that capacity could not be sold or otherwise disposed of and that no financial gain should accrue to any applicant who was successful in the scheme.
I welcomed the Ombudsman's report in that it set the record straight on a number of false and serious allegations made against me. On page three of the report it is stated:
The Scheme did not provide financial support to successful applicants for the acquisition of a replacement fishing vessel itself and the replacement capacity, i.e., the gross tonnage and engine power granted under the Scheme had to be used by the replacement fishing vessel. It could not be sold or otherwise traded or realised as a financial asset in the tonnage market.
The Ombudsman's report goes on to state on page 9 in reference to a letter to the Ombudsman dated 20 July 2009 from the head of the legal services division of the Department of Agriculture, Fisheries and Food.
The letter of 30 July 2009 also suggested that notwithstanding the tragic circumstances of the case, it did not provide a basis to transform a mechanism dealing with tonnage for fishing vessels into a system of compensation. I fully accept that successful applicants were granted replacement tonnage under the scheme rather than compensation.
To add insult to injury, on the day after the Ombudsman's report was published with this finding, Mr. Jim Higgins, MEP, issued a press release that stated:
The scheme cost €2.8 million, yet only six applicants were deemed eligible and two of Frank Fahey's constituents got 75% or €2.1 million of the total funds. The other four successful applicants were left with the crumbs. If ever a Government-sponsored scheme stank of political cronyism then this scheme surely is a fine example.
That false allegation was repeated and embellished in the Dáil by Deputy Martin Ferris. As the Ombudsman stated, no compensation was given out under the scheme nor was a predetermined amount of fishing boat capacity awarded. I do not, and cannot, accept the findings of the Ombudsman to the effect that the way the scheme was designed was contrary to fair and sound administration. I agree with the decision of the Department of Agriculture, Fisheries and Food that payment of compensation is not warranted in this case. The scheme was expressly not introduced as a means for a person who had tragically lost a family member at sea, to obtain payment from the State.
I wish to clarify one other matter which the Ombudsman referred to when she was before the committee. A special report laid before the Oireachtas by the former Ombudsman, Mr. Kevin Murphy, did not lead to the outcome sought by the Ombudsman.