JOINT COMMITTEE ON AGRICULTURE, FISHERIES AND FOOD díospóireacht -
Wednesday, 2 Jun 2010

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

Chairman

I welcome the following: Mr. Tom Carroll, former Secretary General of the Department of the Marine and Natural Resources; and from the Department of Agriculture, Fisheries and Food, Ms Sarah White, deputy secretary general; Mr. Joe Ryan, principal officer; Mr. James Moloney, assistant principal; Mr. Paul Dolan, assistant principal; Mr. Dermot Donegan, higher executive officer; and Ms Josephine Kelly, principal officer. I thank the witnesses for appearing before us. They will be aware that the joint committee is engaged in a series of meetings on the Ombudsman's special report on the lost at sea scheme. On conclusion of these meetings, the joint committee will make its deliberations and report back to the Houses of the Oireachtas. I understand Mr. Carroll wishes to make an opening statement. I will then call each spokesperson as well as one member from the Government side, each of whom will be allowed to put questions for 12 minutes. Other members who indicate may then speak and will be allowed ten minutes.

Before I call Mr. Carroll to make his presentation, I draw witnesses' attention to the fact that members of the committee enjoy absolute privilege but the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House, or an official by name or in such a way as to make him or her identifiable.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of evidence they give before the committee. If they are directed by it to cease giving evidence on a particular matter but continue to do so, they will be entitled thereafter only to qualified privilege in respect of their evidence. Only evidence connected with the subject matter of these proceedings is to be given and the delegates are asked to respect the parliamentary practice to the effect that they should not criticise or make charges against a person in either House, a person outside the Houses or an official by name or in such a way as to make him or her identifiable. I now invite Mr. Carroll to make his opening remarks.

Mr. Tom Carroll

I am surprised to find myself before a committee again some ten years after leaving the public service. I hope to be of as much help as I can to the committee. My remarks will be brief. As a general statement and not surprisingly, I find myself in broad agreement with the position adopted by the current Secretary General of the Department, Mr. Tom Moran, who now has responsibility for the fisheries function, for which I had responsibility until September 2001. While I do not wish to go over ground which is already well trodden, a number of points have not been dealt with adequately to date. These relate mainly to three of the four planks of the Ombudsman's findings, as set out at page 81 of the lost at sea report. They concern record keeping, the design of the scheme and the advertising of the scheme.

I will deal first with record keeping. Even if the Ombudsman is correct in her conclusion on record keeping, which I do not believe is the case, this in itself would not provide a basis for making compensation payments. I make the general point regarding both the design and advertising of the scheme that this was not a redress scheme, whereby the State was setting out to right some major wrong it had done to a class of individual or where it had deprived individuals unfairly of some significant rights. The State, in this case, was making a gratuitous concession in respect of a long-established scheme. In these circumstances, and having regard to other relevant criteria such as economy and efficiency, I am not convinced there was any obligation on the State to go to the lengths implied by the Ombudsman to ensure absolute equity by having an exhaustive research and advertising effort.

As regards the design of the scheme, this was not rocket science. The issue was an old chestnut which kept coming around. We were drafting a minor exception to a major long-established system where accumulated knowledge and first principles were the guiding factors. There was no need, so to speak, to do a PhD in the matter. Moreover, the scheme was put out for consultation and tweaked as it was finalised.

Normally, when designing a scheme of this nature, one would look at specimen cases or a sample of cases. Given that the final number of applicants was 67, it is clear that having 16 cases on hand was more than adequate to design the scheme. The Ombudsman's contention on page 65 of the report that this was inadequate is not soundly based.

As regards the advertising and promulgation of the scheme, I have two observations to make. First, I was very surprised at the major emphasis the Ombudsman placed on the fact that some prospective applicants were put in a more advantageous position than others by being written to directly to inform them when the scheme was launched. In my long experience in the public service it has always been the practice in cases such as this to write to those people who are on file as having raised the matter previously. This is regarded as good public service practice. Any advantage a person may gain in this context arises from the fact that he or she has been actively on the case and seeking out opportunities.

Second, I have to demur from the conclusion the Ombudsman reached on pages 69 and 70 on the role and stance that producer and representative organisations might play in the promulgation of schemes such as the lost at sea scheme. I hope I am not being unfair in summarising that conclusion, which seems to imply those organisations would almost suppress or conceal the fact of the existence of a scheme from a family that might benefit so as to protect their members' interest. My experience of the fishing sector was that, where the question of loss of life at sea was concerned, the fishermen and fishing organisations were unstinting in their support for families and in the search-and-recovery efforts. I have no doubt that had any family been regarded by industry representatives or individual fishermen as a potential applicant under the scheme, they would have raised it with the family if they believed it would not have been aware of the scheme's existence. In matters such as this, the fishing sector has always acted with a generous spirit.

I speak on behalf of all my former colleagues in saying that we have the utmost sympathy for the Byrne family, both in respect of the terrible tragedy it endured in 1981 and in respect of its having been caught up in the fallout from the adoption and implementation of the scheme. I assure it that our motives and stance on this matter should not be seen as our showing any lack of concern for its case but, rather, as the balancing of competing general policy requirements and individual needs where the outcome can often be felt as harsh in particular circumstances.

Deputy Michael Creed

I thank all the officials in attendance, in particular Mr. Carroll, who is now retired. It is in the true spirit of the public service that they are present. I am sure they are all aware that since the Abbeylara judgment, we have difficulty with regard to the compellability of witnesses. The delegates' attendance, which could not have been made compulsory, is truly appreciated.

Bearing in mind the Chairman's opening remarks on privilege, I am sure the witnesses are aware they now have absolute privilege in respect of any evidence they wish to give. This was not always the case for witnesses before committees. This changed recently and witnesses should be made aware of it in advance of their attendance rather than merely on the day of their attendance.

I thank Mr. Carroll for his brief opening remarks. He entered the Department in 1988. His evidence to the Ombudsman would suggest there was a pretty chaotic system with regard to the fisheries section at that time. By 1990, there was a register in place and an established policy of replacing tonnage. The scheme, as proposed, would have endangered all the work Mr. Carroll and his officials had completed in the two-year period to bring order to the chaos. Is it correct that there was, among all the officials present, considerable hostility towards the principle of the compensation scheme? We have documentation and memos related to the scheme.

Mr. Tom Carroll

I do not accept the term "hostility". Our job was to advise the Minister on the consequences and implications of making concessions on the scheme. It was a matter for the Minister, who was ultimately responsible, to make a decision. We were opposed to the scheme for obvious stated reasons, including the fact that there clearly remained over-capacity and over-fishing in the Irish fleet. We believed anything that added to that problem was contrary to overall policy objectives and national objectives. Consequently, we strongly advised against the adoption of the scheme.

Our experience would show that once one opens a scheme and makes a concession for one set of people, other people tend to get into the queue for similar types of concessions. We believed it important to try to persuade the Minister to hold the line on this. We were giving the advice we were paid to give in the public and national interest to the Minister. He took a different view and was perfectly entitled to do so.

Deputy Michael Creed

While I accept Mr. Carroll's view that the term "hostility" may be inappropriate, the former Minister, in his evidence to this committee, described the exchanges as robust. The officials in the Department were opposed — let us not use a stronger or weaker term — to the principle of the scheme and the Minister was in favour of it. Mr. Carroll was opposed to it because he had succeeded in putting some order on a regime that was, prior to his arrival, "somewhat chaotic", as he described the regime in evidence to the Ombudsman.

Page 52 of the Ombudsman's report refers to the terms and conditions of the scheme and to redrafting in which Mr. Carroll was involved: "Mr Carroll made the point that the Scheme was an administrative one and he felt that if the Byrne family had applied on time there may have been scope for adopting a flexible interpretation of the condition but by the time the final decisions were being made on individual applications, he was not in the Department." Is that an implicit criticism of the interpretation of condition C by those in the Department when the Byrne family application was submitted? I refer to the requirement for "continuous use", of which the Ombudsman has made considerable play. The Ombudsman made the point that if a taxi driver changed his car during the course of his being a taxi driver, it would not comprise grounds for disqualification.

Is Mr. Carroll saying that, in respect of the two criteria the Byrne family did not meet, namely, that one meet the deadline and that one fulfil requirement C on continuous use, the Department should have interpreted the application differently and that he would have done so had he still been in the Department?

Mr. Tom Carroll

I cannot put myself in an hypothetical position and state what decision I would have taken had it been my job to take it. One would have had to have considered all the circumstances of the time.

The principal weakness or failure in the Byrne case was that it did not apply on time. If it had done so, interpreting the conditions of the scheme would have been a matter of discretion. It would be wrong of me to say I would have taken a certain decision in those circumstances because I was not there, and I am not there now. It is easy to state hypothetically what one might or might not have done.

Deputy Michael Creed

Would Mr. Carroll accept that the interpretation at the bottom of page 52, that if the Byrne family had applied on time there may have been scope for adopting a flexible interpretation of the condition, is reasonable? To me, it is reasonable to assume the interpretation could have been different.

In the Ombudsman's findings on page 81, the Ombudsman clearly states the Byrne family application did not meet two conditions of the lost at sea scheme, one of which concerned the concept of continuous use. One view on this is that the conditions could have been interpreted differently.

Mr. Tom Carroll

It was an administrative scheme. In any such scheme, there is always some scope for discretion in interpreting the rules, depending on the number of applications and having regard to all of them and the possible consequences. It would have been open to take that interpretation but I am not saying the Department ought to have done so.

Deputy Michael Creed

The second reason the Ombudsman identified for the Byrne family's application not being accepted was that it was late. Does Mr. Carroll accept that there is evidence that at least one other application was accepted late?

Mr. Tom Carroll

I have no knowledge whatsoever of what happened subsequent to my leaving the Department.

Deputy Michael Creed

It is clearly established and accepted by Mr. Carroll's successor, Mr. Moran, that an application, albeit an unsuccessful one, was accepted late. There could have been a more flexible interpretation of one condition as there is precedent for accepting late applications. That seems to support the Ombudsman's findings in respect of the Byrne family.

There are two findings here, one of maladministration in the Department and the other in respect of the Byrne family. There is a precedent on the late application issue and there is a possibility of a different interpretation of continuous use.

Mr. Tom Carroll

Deputy Creed is asking me to put myself in the position of the person who has current responsibility for managing this file, which I cannot do.

Deputy Michael Creed

In Mr. Carroll's opening statement, he said he did not accept that the Ombudsman's findings in respect of compensation were fair because it was never about compensation. Will he accept that at this late stage after the establishment of the register, it was not possible to offer the Byrne family tonnage? The reason a scheme which was originally about allocating tonnage then moved to a financial compensation package, in terms of the Ombudsman's report, was that given the maladministration and the fact that the Byrne family application was treated differently to others, a mechanism had to be found to address the grievance of the Byrne family that the Ombudsman upheld in respect of the administration of the scheme. It was within the remit of the Ombudsman to offer a financial compensation.

Mr. Tom Carroll

That is a matter for the Ombudsman.

Deputy Michael Creed

However, Mr. Carroll's view is that this was not a reasonable conclusion.

Mr. Tom Carroll

I have been involved in many hard cases over the years. When the register was established in 1990, there were a number of hard cases that emerged that could not be accommodated, some far more meritorious than this case. I was involved in some cases which went to the courts but lost, costing the persons involved much money. They happened to be on the wrong side of the line when the boom came down, which happens with schemes of this nature.

In 1990 we had to bring in controls and limits. These were announced on a particular day. Some people were in the process of acquiring a boat and, as far as I can recall, because it was not in the timeframe, they lost out. There are always hardship cases when a new scheme is introduced.

Deputy Michael Creed

I have one last question in respect of Mr. Carroll's contention that the scheme was not about compensation, which I accept. Appendix 3 of the Ombudsman's report contains an unsigned, undated but filed memo which states:

Acceptance of these boats as replacement capacity amounts in effect to the writing of a gratuitous cheque for £500,000 to be allocated to a number of individuals and with a negative return to the State and the economy.

Tonnage did have a value in the marketplace. I accept the minister put a stipulation on the scheme that it could not be traded by the scheme's beneficiaries. It did, however, have a collateral value in respect of securing bank loans against it and earning an income. To claim the scheme was not about commercial value when this memo claims otherwise does not sit comfortably with the idea that it was about compensation per se.

With the benefit of hindsight, does Mr. Carroll accept there was an excessive concentration by the Department on the handful of known cases? As the Minister put it in his handwritten notes in the memos, the scheme was to be ring-fenced for the six or eight known cases. The correspondence on file from Paul Dolan dated 22 September 2000 identified 120 cases which could have been beneficiaries of a scheme. Does Mr. Carroll accept it was an error or even maladministration on the part of the Department not to write to all of the 120 cases?

Mr. Tom Carroll

Not at all.

Deputy Michael Creed

Yet an implicit advantage was given to 16 people, some of whom were the Minister's constituents and who were the beneficiaries of 80% of the tonnage allocated. By not writing to everyone concerned, will Mr. Carroll agree the Department fuelled the impression there was a twin-track process?

Mr. Tom Carroll

I dealt with that point in my opening statement. It has always been the case that if some announcement is being made about a scheme, the people on file who have been pursuing an issue with it will be informed. That is a long-established practice. The advantage that accrues from them being notified is that they are first movers in the game. They are active on the case. Ministers and diligent public servants will always contact the people affected.

Deputy Michael Creed

To use an analogy, 17 May is the deadline for farmers to apply for their single farm payments. The Department writes to 130,000 farmers, not just those who are the subject of a parliamentary question. There was a memo from Paul Dolan stating 125 files were affected by the scheme. Was it Mr. Carroll's excessive zeal to ring-fence the scheme because the Minister was going to have his way? Was it decided not to write to 120 persons who might be beneficiaries because this could upset the register and the arrangements under the multi-annual guidance programme?

Mr. Tom Carroll

The marine causality records are covered by an entirely different branch of public administration legally and organisationally. The staff concerned with the scheme would be concerned with the fishing board licensing files.

Deputy Michael Creed

These were 120 files which dealt with the sinking of fishing boats. The lost at sea scheme dealt with fishing boats that sank. What is Mr. Carroll's view on that?

Chairman

Deputy Creed has gone beyond his time. Does Mr. Carroll want to answer the Deputy?

Mr. Tom Carroll

I cannot accept that the decision taken not to look at all those files was motivated by a desire to limit the scheme. I totally reject that claim.

Deputy Bobby Aylward

I too welcome the officials, particularly those who have retired and have attended the committee of their own free will. There was no obligation on them to do so. The committee has been asked by the Dáil to investigate the Ombudsman's report on the lost at sea scheme and produce a report to be presented to the Houses of the Oireachtas. We are trying to gather information to put that report before the two Houses. We are looking at the Ombudsman's report and what she says about maladministration. Does Mr. Carroll find it offensive that the Ombudsman in her report refers to maladministration of the scheme?

Mr. Tom Carroll

The Ombudsman is entitled to her view and we have to respect her opinion. The findings on maladministration are harsh, and are not justified by the facts. If there are defects on the files as regards this issue, they are only minor. I have to accept responsibility for that because all the staff concerned in this area — most of them are here — are exceptionally talented and hard-working. All were under extreme pressure of work and had more to do than could have been reasonably expected. Sometimes the files are not perfect, but they are adequate. I would have been under continuous pressure from the staff around me to augment resources, but I did not have the resources to give to them. I do not agree with the Ombudsman's conclusion and believe it is harsh.

Deputy Bobby Aylward

The Ombudsman's report was really on the Byrne family. The reason for exclusion was because it was late in applying. As was already mentioned, one other case was accepted after the deadline that set a precedent. That case was not successful. The Byrne family would have grounds for making a case because its application was refused.

Another aspect related to continuation of fishing, and the fact that the Byrne family was not engaged in fishing at the time the scheme was introduced and had not been since the boat had gone down. That is another issue I should like to ask about, as regards the conclusion to which the Ombudsman came in respect of the compensation. Tonnage could not be awarded at that stage because of the EU regulations introduced in 2002 and so she opted for monetary compensation under the scrappage or buy-out scheme. I want to ask Mr. Carroll about the Ombudsman's decision to go for this option and her recommendation of €244,000 or whatever, based on figures on loss of earnings compiled by the Department. What is his opinion of the Ombudsman's methodology in arriving at this conclusion, and does be believe she was right? There was no monitoring involved. It was all a matter of tonnage and capacity. Then she sought to change the scheme to give a monetary reward to the Byrne family. I do not want to throw questions at Mr. Carroll, in particular. Any of the officials can answer, if they so wish.

Mr. Tom Carroll

The case for compensation flows from the Ombudsman's judgment that there was maladministration. If the original scheme could not now be offered, then some other mechanism would have to be found. I can make no judgment on the methodology that ought to be applied in making that assessment. I have no knowledge of these schemes at the moment, or the restrictions on them.

Deputy Bobby Aylward

From the very beginning the officials were against the scheme being introduced, it would appear, when this was first mooted by the Minister. It was only at the Minister's insistence that a scheme was introduced. Some 86 cases were looked at, in the event, but only six were successful. The other issue was about contacting the 16 families involved. It seemed to be wrong that 16 people were being notified about this scheme, whereas there were many more who were not contacted.

I want to ask, too, about the fact that the Byrne family did not know about the scheme until a year after the event. What is Mr. Carroll's opinion of that? Should they have been aware of it? They come from a fisheries area and were involved in fishing. Advertising of the scheme has also been criticised to the effect that it was only notified in two small circulation newspapers within the fishing community. It has been suggested that the scheme was not publicised properly. What is Mr. Carroll's opinion on the advertising of the scheme, and would the family have reason for knowing such a scheme was in place?

Mr. Tom Carroll

The Deputy has raised a good many points. Advertising of the scheme was adequate, and Ms Kelly can comment on it. I cannot make a judgment on whether the Byrne family should have been aware of the scheme. From a general perspective, it was in more than two newspapers. Standard practice in fishing administration is to place advertisements — and there would be news reports and so on — in all the fishing media and to circulate all the fishery organisations. That is long-established standard practice for promulgating fishery schemes. That is more than adequate in a scheme such as this. Ms Kelly might add to this.

Ms Josephine Kelly

The scheme was advertised in the Marine Times, the Fishing News and The Irish Skipper. That would have been the practice with the fisheries section of the Department at that time, when dealing with issues relating to fishing. Details of the scheme were also made available to the fishing organisations, the producers’ organisations and the IFO. When one reads the details of the scheme, that is not an irrational approach, because the scheme says the replacement vessel must be skippered by the applicant or an immediate relative. Someone who has moved into another activity would not have the necessary qualification to skipper a vessel. The scheme also says that the replacement capacity would be used for the purposes of sustaining and maintaining a family tradition of sea-fishing. It is all about fishing and the fishing sector.

The scheme was advertised, taking into account normal practice and the issues around that.

Ms Sarah White

I endorse the assessment given by Ms Kelly and Mr. Carroll. I was assistant secretary with responsibility for the sea fisheries' brief from December 1994, having succeeded Mr. Carroll when he became Secretary General. I held that brief until spring 2002.

Ms Kelly's analysis underlines the point that this was advertised in a bona fide manner in the organs that would have been most widely disseminated, not just in the fishing towns and villages, but quite widely around rural Ireland. It was somewhat analogous to advertising in the Irish Farmers’ Journal. The bona fide decision at the time, which was in line with our general approach to disseminating schemes, decisions and activity, focused on two means of communication, namely, the fishing press and the fishery organisations. Our general experience before and afterwards was that those mechanisms provided the best and most widespread means of disseminating issues, opportunities and decisions to the fishing community and fishing families.

Deputy Bobby Aylward

In the interests of fair play and justice, would the Byrne family have a case where 16 families were picked out and notified in writing, while other families were left out?

Ms Sarah White

I endorse what Mr. Carroll has said. Those 16 families were active, through both political means and on their own behalf, to pursue in a perfectly legitimate way concessions to which they felt they were entitled in respect of tonnage, licences and so on. As Mr. Carroll pointed out, one would inevitably communicate with them. There was a direct communication with the fishing organisations which would capture pretty much all potential applicants. It is striking that there were in excess of 60 applications for the scheme at the end of the day. This suggests that there was fairly widespread familiarity and understanding that this was being promulgated.

Deputy Bobby Aylward

This is a very controversial scheme and there were many allegations and innuendos, in particular coming from politicians who wanted to make hay out of it from a political point of view. Do the officials feel it was a controversial scheme and do they think it was administered correctly? We have to provide a report to the Houses. It does not matter what recommendations we make, as it will still go back to the Department as to whether compensation can be paid. What advice will the officials give this committee for our report? Will they recommend that we should stand over the Ombudsman's recommendations?

Deputy Michael Creed

The Deputy must be joking.

Chairman

No decision will be made today. I ask the officials not to answer that question.

Deputy Bobby Aylward

Sorry Chairman, I will withdraw that.

Mr. Joe Ryan

The issue of scheme design was mentioned and whether the criteria were being drawn up to favour a selected few. I was the principal officer in the section at the time. It fell to me to design the scheme in consultation with Mr. Carroll, the Minister having given us direction to do so. We did not draw up the terms of this scheme so that it would not suit a limited number of known cases. We did not draw up the criteria by reference to any case at all.

As Mr. Carroll and I explained when interviewed at the Office of the Ombudsman way back, we worked from first principles in determining a reasonable set of criteria for administration of a scheme of this nature. I sent a note to the Secretary General on 12 December 2000, which was a submission proposing the criteria for the scheme. There were three criteria expressed in very general terms and which would leave it open to anybody who had lost a fishing vessel to apply under the terms of the scheme. We were not working by reference to six or eight known cases, or trying to limit the terms of the scheme to six or eight known cases. In the same memo, I specifically referred to a need to notify the industry of this policy change, so that anybody who was in a similar situation would be in a position to make an application under the scheme. The notion that there was a favoured few in the background and the terms were being crafted so that these people would benefit just does not wash. It was not the way we did business.

Deputy Michael Creed

There was a memo sent by Mr. Ryan on 10 November 2000 to Ms White and to Runaí an Aire. The Minister has a handwritten note at the foot of that which stated that he wanted to see how we could ring-fence the six or eight genuine cases before the High Court. There is a further handwritten note, which states "Mr. Ryan, as per Minister's instructions, please review urgently the scope for ring fencing the criteria." I cannot make out the signature. That appears to contradict categorically what would have been in Mr. Ryan's memo, because we are now talking about developing criteria to ring-fence.

Mr. Joe Ryan

We had to interpret in some sense what the Minister intended by the reference to ring fencing. I interpreted that as meaning that the Minister intended that the scope of the scheme should be kept fairly tight. I never took it literally to mean that the six or eight cases mentioned were to be the only cases that could possibly benefit under the scheme. When I went ahead and presented three proposed criteria in my memo of 12 December, they were expressed in general terms and clearly were not linked to the known cases on hand in the Department.

Ms Sarah White

I agree with Mr. Ryan. The former Minister would have made it clear that the use of the phrase "ring fence" was not designed to confine it to particular cases. If we can be accused of being loose with language, then that would be one thing, but "ring fence" in our heads was about a scheme that was not open ended and would not result in some kind of floodgate scenario. It was certainly not about confining the scheme to a particular number of cases. The use of the phrase "ring fence" is a matter of interpretation to some extent, but it is very clear that both the Minister and I, who used the phrase in the written note on top of Mr. Ryan's memo, were using the term in exactly the same way, which was to design a scheme that was not open ended.

Deputy Bobby Aylward

In his evidence here, the former Minister said that he drew up the terms of reference but the administration of it was left to the officials. An allegation is being made that he was in favour of his own constituency and this must be put to bed. The Minister set up the scheme and its terms of reference, but it was then up to the officials to administer that scheme and provide it to the six or eight people who applied for it. That has to be acknowledged here.

Ms Sarah White

I will ask Mr. Ryan to comment. I would absolutely endorse that. From a policy perspective, the Minister indicated his wish to have such a scheme. We worked to design such a scheme. The Minister approved the design of the scheme. The implementation of the scheme was a matter for the Administration, as is the case with all policy implementation. It was for us to promulgate, advertise, conduct due process on the applications and so on. That analysis is absolutely right.

Deputy Michael Creed

Is it normal to send drafts of the scheme and its terms to two applicants before the scheme is launched?

Chairman

Deputy, you cannot come back in.

Deputy Bobby Aylward

Deputy Creed is eating into my time.

Ms Josephine Kelly

The Department sent a copy of the draft scheme to the producer organisations and to the IFO and asked for their views. The producer organisations and the IFO would make such a proposal available to their members to determine a response to the Department. That would not be unusual.

Deputy Bobby Aylward

Will the officials clarify whether representations were made by other political parties in regard to the scheme? The report indicates no finding of malpractice in respect of the operation of the scheme. Will the officials comment on this?

Mr. Tom Carroll

As I said, the processing of applications from fishermen, and political representations on their behalf, for the granting of tonnage in respect of sunken boats was a continuing one. Once a new Minister was appointed, one could bet there would be a line-up of the usual suspects — I do not say that in a pejorative sense — looking for concessions. As I recall, there were such representations from all political parties, but they were mostly not accepted.

On the Deputy's second question, as I understand it, the Ombudsman has not suggested that there was any illegality, impropriety or anything of that nature in the behaviour of officials or the Minister. She has a conclusion of maladministration, a curious term, but not of malpractice.

Deputy Tom Sheahan

I will try to avoid waffling and confine myself to asking questions. Was it normal practice, during Mr. Carroll's tenure, for the Department to write to interested parties prior to a scheme being introduced to make them aware of the conditions of the scheme?

Mr. Tom Carroll

In the case of schemes of that nature in the fishing sector, we would normally issue them in draft form as part of good public service practice. That is what we did in this case.

Deputy Tom Sheahan

Before there was a draft, there was communication with two specific applicants at constituency level informing them of how they might qualify for the scheme. There is a note from Ms Kelly in the documentation, dated 22 May, which states:

We should write to the representative organisations informing them of the decision and receive criteria. Please also write to individuals [this part is asterisked] who have indicated interest, asking them to show how they comply with the scheme.

They were told how they might comply with the scheme before the draft was even brought forward.

Ms Josephine Kelly

The relevant note was intended to progress the scheme after it had been decided officially that it would commence. The purpose of the note was to ensure the scheme was advertised and made available to industry representatives and that those who had expressed a view or contacted the division asking about the scheme would be contacted and made aware of it. That is normal practice.

Deputy Tom Sheahan

My point is that the conditions of the scheme were discussed with these applicants in terms of how they might comply. Moving on, is it normal practice to write to successful applicants prior to the closing date of the scheme to congratulate them?

Ms Josephine Kelly

The scheme was open for six months, an unusually lengthy period for this type of scheme. There was no set amount of capacity specified for the scheme. The criteria were set down and the applications made under the scheme were judged against them. Applicants were not competing against each other. The issue was to determine, based on analysis and the information provided, whether applicants complied with the terms of the scheme. Once it was determined that they were in compliance, there was no good reason not to inform them.

Deputy Tom Sheahan

To inform them of what?

Ms Josephine Kelly

To inform them that they were successful under the terms of the scheme.

Deputy Tom Sheahan

Even before the closing date, not knowing what could possibly come up before then.

Ms Josephine Kelly

The closing date was not relevant in terms of the assessment of applications. The criteria were clearly set down, applications were received and assessed against the criteria. I emphasise that there as was no specific amount, applicants were not competing against each other for a set provision. That is not how the scheme worked. The criteria were clearly set out and applicants who complied with them would be accepted; otherwise, their application would be rejected.

Deputy Tom Sheahan

I cannot accept that, nor did the Attorney General. One of the successful applicants to whom the Department wrote, prior to the closing date of the scheme, informing him of his success later — I do not know why it was later — became aware that he was a part owner of another vessel, which disqualified him automatically. The Attorney General informed the Department that one of the applicants did not qualify because it had been proved that he was part owner of another vessel, yet he was written to and informed of his success. It was on these grounds — that he had been informed in writing that his application was successful — that the Attorney General advised that his application would have to be accepted, while noting that it should not have been. There is malpractice and maladministration.

Ms Josephine Kelly

Let me refer to the facts of the case. The relevant applicant made an application under the scheme and on the basis of the information supplied and the checks done by the division at the time——

Deputy Tom Sheahan

Which turned out to be false

Chairman

The Deputy must allow Ms Kelly to speak.

Ms Josephine Kelly

On the basis of the assessment made, it was determined that the applicant was successful and he was informed on that basis. Subsequently — it was well after the scheme was closed — it came to the attention of the division that some of the information supplied by the applicant was not correct and that he may have owned a vessel which was licensed and registered. As soon as that information was made available to the division — I reiterate that it was only received in March 2002 — it acted immediately to get legal advice in ensuring correct procedure was followed. The applicant was advised of the situation in writing and staff of the division subsequently met the applicant and his solicitor. We subsequently presented all the facts of the case to the Attorney General's office and sought legal advice. As I left the division at that point, I cannot comment on any further action taken. During the period I was head of the division, the procedure followed was, as I see it, absolutely proper.

Deputy Tom Sheahan

Why was the applicant not disqualified on the basis of providing false information?

Ms Josephine Kelly

As soon as the information was made available, the Department contacted its legal adviser — the Attorney General — and followed the procedure recommended by him, namely, advising the applicant of the situation. There was a subsequent meeting with the applicant and his legal advisers at which they made a particular case.

As is normal with good administrative practice, that case had to be examined, which included getting legal advice on it. The Department collected all the relevant information it had at that time and made a fairly detailed submission to the Attorney General's office. Effectively, as soon as the letter issued, I was moved from that area and so was not further involved in any of the cases, including this one. While I understand there were detailed discussions between the Attorney General's office and the Department, I had no further involvement.

Deputy Tom Sheahan

I thank Ms Kelly. This scheme also was communicated to the fishing bodies and their representative bodies. While I have not got a copy to hand, one response stood out greatly while I was going through the paperwork. One representative of the fishing bodies asked, perhaps facetiously or with tongue in cheek, how does one ring-fence justice for six or eight. I am not certain who it was but it struck——

Mr. Joe Ryan

It was Mark Lochrin of the Irish Fish Producers Organisation, IFPO.

Ms Sarah White

While Ms Kelly is looking for the reference, I note I do not quite understand the import of the Deputy's question. I recall that question in the response of Mark Lochrin, as head of the IFPO. I am not sure what he had in his head and do not think that we can interpret it in particular.

Ms Josephine Kelly

I believe I understand and will read from his response. He wrote: "The view of this Organisation [that is, the IFPO] is that you should proceed with the proposed concessions. Our only question: Is Justice to be ring fenced?" He went on to state "The establishment of an Appeals mechanism to cater for these cases, for cases such as these has been an issue for years." He continued by discussing the appeals cases. While I did not write this letter, having read it now my interpretation is that the point he was making was that at that time, there was no appeals mechanism in respect of the licensing of fishing vessels. It was a point for him and he had been seeking such an appeal system in the context of the licensing, which is the point he is making here. Obviously, as the Deputy is aware, legislation was introduced subsequently in 2003 in which a new sea-fishing boat licensing authority was established that includes an appeals system.

Deputy Tom Sheahan

Ms Kelly has stated that we have moved on. I imagine the same kind of tracking and checking would be performed on a scheme ten or 20 years ago as would be the case today. I imagine the process would be the same. Could it happen today that people would lie on applications for schemes on foot of which they would receive awards prior to the closing date of the scheme? What would happen approximately 15 months later, if such lies were discovered? These are just lies to me. Why were the lies not found out? Were the applications not assessed or administered properly? I refer to lies such as claiming one did not have a boat or claiming to be the registered owner of a boat. Would this happen today?

Ms Josephine Kelly

I refer to the particular case. The relevant applicant argued that he had not lied on the application form and that he was not the beneficial owner of the relevant vessel. Therefore, he would argue that he had not lied, as the Deputy called it.

Deputy Tom Sheahan

Sorry, misinformed.

Ms Josephine Kelly

Yes. Moreover, all those issues were put to the Attorney General's office to get proper advice on the interpretation and the proper procedure to ensure that what was done was fair and equitable. I assume, certainly in any scheme in which I have been involved, that we always would try to be fair and equitable and in the case of uncertainty, we would seek relevant advice.

Chairman

I advise the Deputy not to use the word "lies".

Deputy Tom Sheahan

I will say "untruths".

Chairman

That is better but I ask him to withdraw it.

Deputy Tom Sheahan

I will withdraw that and will say "untruths". I apologise and thank the Chairman. These untruths were not detected in the application and hence the applicant was successful.

I will finish with one further question. I refer to a letter dated 22 September 2000, that is, 15 months before the closing of the scheme, in which Paul Dolan sought from the sea fisheries division a list of sea fishing vessels sunk between 1980 and 2000. While I am reading between the lines, that would entail a great deal of hard work. This took place in September 2000, 15 months before the closure of the scheme. Those files were sought and it was indicated that there could be up to 120 files, it would take some time and there might not be any results. Is this the manner in which business is done?

Mr. Joe Ryan

I made the request to Mr. Dolan's side of the house——

Deputy Tom Sheahan

I beg Mr. Ryan's pardon. He made the request to Mr. Dolan.

Mr. Joe Ryan

—— as he was in the maritime safety end of things at the time, asking what records they would have of fishing vessels lost at sea. It is important to put this in a timeline. At that stage, it was August or September 2000, which was well before a decision even had been made to have a scheme. The only reason I approached him was to try to get some quantum on what exposure we might have, were a scheme to be introduced. The message came back that the information was not readily available and would not necessarily be complete. In those circumstances, I decided not to pursue the matter because at that stage no final determination had even been made that a scheme of this nature would be established. That is how it worked in that situation.

Deputy Tom Sheahan

This would have pre-empted Ms White's note to the Minister that asked — I am abbreviating again here — where it would stop. In respect of this entire scheme, the Department appears to have had a big fear about where it would stop. If I am citing Ms White correctly, her point was that it should be discussed before a final decision was made. While that is off the top of my head, is that assertion correct?

Chairman

Ms White should answer that question, after which we must move on.

Ms Sarah White

The Deputy's recall is very good. I certainly did use the phrase "where will it stop", perhaps a little colourfully. As always, it was not about a fear but about a genuine concern to which Mr. Carroll has adverted, which often was the case in respect of decisions on fisheries policy, licensing decisions and so on, that there was likely to be any number of what might not necessarily be genuine cases but a fairly long queue of people who would look for concessions of one kind or another. I am not saying this in a hard-hearted way. The backdrop to all of this is a business that is highly dangerous and very difficult in which many people have struggled over the years. It often has been marred by dreadful tragedy. Moreover, the dreadful tragedy of the sinking of the Skifjord also is the backdrop to all of this, that is, the loss of three crewmen, Mr. Byrne and his son.

While making such comments, it was never done in a bureaucratic functionary manner. It always was to draw attention to the fact that of their nature, were such schemes open ended or were there a risk of setting some kind of precedent, one could end up with something with hundreds of applicants or factors one would be obliged to assess. So, in using the phrase, "where will it stop", it really was underlining the point that was made by Mr. Carroll, by Mr. Ryan and by me, that in proposing or designing a scheme, it needed to be designed in such a way that it was not simply open ended.

Deputy Christy O’Sullivan

I thank the officials for attending to try to throw some light on a situation that has been ongoing for a while. In particular, I thank Mr. Carroll for coming out of retirement to be present. It is nice to meet him for the first time, although I have heard a little about him.

Prior to the scheme's introduction, a boat lost at sea went to the bottom, as did its associated tonnage. Was this not the situation?

Mr. Tom Carroll

If the boat was registered and sunk post-1990, the tonnage would have been retained by the owner.

Deputy Christy O’Sullivan

What about before that?

Mr. Tom Carroll

Before 1990, there was a sort of open-ended policy on entry into the fishing sector. It needed to be reined in. The problem arose in respect of people who did not get on the register for the new system in 1990. There were many cases of vessels lost at sea, people being caught mid-stream in buying a vessel, etc. At the time, extraordinarily difficult cases needed to be dealt with. Given the gross overcapacity of the fleet at the time and the consequences of not dealing with that issue, a tough line needed to be taken.

Deputy Christy O’Sullivan

I will put it another way. If somebody involved in fishing prior to 1990 lost his or her boat and, as occurred in some cases, lives were lost, how was that person to return to fishing?

Mr. Tom Carroll

In the normal course of a vessel being lost and the owner surviving, he or she will replace it with another vessel.

Deputy Christy O’Sullivan

How would the tonnage be obtained?

Mr. Tom Carroll

There was no difficulty with tonnage pre-1990.

Deputy Christy O’Sullivan

Did owners need to purchase the tonnage or was it automatically returned?

Mr. Tom Carroll

There was no requirement or limitation. Generally speaking, it was more or less an open door approach to entry into the fishing fleet, although some limitations applied to the pelagic sector. Until 1990, anyone in the white fish sector could buy a fishing vessel and bring it into the fleet.

Deputy Christy O’Sullivan

Was it not the purpose of the scheme to return to fishing someone who lost a boat and tonnage?

Mr. Tom Carroll

Its purpose was to deal with a situation in which boats were lost at sea between 1980 and 1990 and the fishing interests concerned were not able to return to the industry before or after 1990. A limited exception was to be made in respect of such persons.

Deputy Christy O’Sullivan

I thank Mr. Carroll for the clarification. The officials at the time were not in favour of the scheme, but did the Minister's attempt to right a wrong not have merit? Since people caught between those years were trying to return to fishing, was there not merit in the scheme from that point of view? Why were the officials against the scheme?

Mr. Tom Carroll

There is always merit from the perspective of the individual adversely affected by decisions. One can understand the interest a Minister would have in trying to support such applicants. On the other hand, one must consider the overall scheme of things and the consequences. In this case, the overcapacity in the fishing fleet was clear. Letting extra tonnage and people into the fleet meant the State would need to put its hands in its pocket to remove fishing vessels sooner or later.

Deputy Christy O’Sullivan

With all due respect, we are letting in people who——

Chairman

Allow Mr. Carroll to finish.

Mr. Tom Carroll

Numerous people were caught when the restriction was introduced in 1990. We had an open door policy until the shutters were suddenly brought down. Many people were caught, including those who, having left the country for a few years, wanted to return. Even if they had always been in the industry, they were not allowed to return to it unless they bought a fishing vessel and tonnage. Nothing was stopping them from returning beyond the absence of tonnage being an additional financial cost.

Deputy Christy O’Sullivan

Under the criteria set down, someone who left and returned would not qualify because he or she would have needed to have been fishing in the intervening period. What the Minister was trying to do was return the people actively involved in fishing to the industry with which they had been associated for all of their lives. The scheme was not thrown open to everyone. People who went abroad would not have qualified under the strict criteria set down.

One of the criteria was that a member of the family needed to be involved in fishing after the boat's loss. How would the Department have gone about establishing this or would it have taken someone's word for it?

Deputy Michael Creed

It was not part of the scheme.

Deputy Christy O’Sullivan

It was part of it.

Deputy Michael Creed

It was not. Did the Ombudsman not write——

Deputy Edward O’Keeffe

Could someone clarify that?

Chairman

Deputy Creed, we have invited these people to this meeting. Some of them have come out of retirement to answer our questions.

Deputy Christy O’Sullivan

It was stipulated that a family member needed to have been involved in fishing before a family could qualify under the scheme. I am open to correction.

Mr. Joe Ryan

The requirement was for the successful applicant to skipper the boat himself or herself or to be able to provide an immediate family member to do so. In terms of involvement in fishing, the requirement was to provide data showing that the fishing vessel lost at sea had been actively in use up until its loss. There are two slightly different elements to the Deputy's comments.

Deputy Christy O’Sullivan

What if a member of the family was not involved in fishing, yet the family still qualified?

Mr. Joe Ryan

The purpose of the scheme was to maintain and sustain the family's tradition of fishing. The expectation was that there would be ongoing involvement in the industry, but it was not a formal term of the scheme that someone needed to be actively involved in the industry at the time of application.

Deputy Christy O’Sullivan

That clarifies my question.

Deputy P. J. Sheehan

I welcome the officials and ex-officials to this meeting. I would like to ask them a few questions. Regarding the Minister's reference to genuine cases, Mr. Carroll stated he had no specific knowledge of them and had an open mind on them. He pointed out that, with the advent of freedom of information requests, the Ombudsman Act and the use of judicial review, there was no longer a tolerance for making ad hoc decisions to suit particular people. He welcomed this development. His approach to the drafting of the scheme was that it did not seek to acquaint itself with individual cases.

Had his section of the Department any detail of the vessels lost at sea? Were they actually fishing? If a record was kept, why was the Byrne family not notified of this scheme, which was initiated ten years after that family's fishing tragedy? Surely the Department with responsibility for the marine should have a record of every fishing vessel lost off the Irish coast for the past 30 years. Mr. Carroll made the point that the scheme was an administrative one and that if the Byrne family had applied in time there may have been scope for adopting a flexible interpretation of the conditions. However, by the time the Byrne family applied the final decision was made on individual applications. I am amazed the Department was so naïve to think it did not have a record of the Byrne family tragedy. There is something very wrong and it is no wonder the Ombudsman found in favour of the Byrne family when she saw these glaring irregularities in the Department. A separate section of the Department, the marine safety division, had more than 500 files, of which 120 related to incidents involving fishing vessels. There is no need to doubt the Department had the facts and figures of the Byrne family case. That needs clarification. The Ombudsman states:

The decision to go ahead with a Scheme was made by the Minister. From my examination of the Department's files I found only one very short written instruction from the Minister to his officials conveying his decision. In this short instruction he also attempted to set out the broad parameters on which the Scheme should be drafted. The instruction stated:

I want to see how we can ringfence the 6 to 8 genuine cases including those before the High Court (if they are in the genuine category) and what the implications are for the MAPGs. I want to licence those boats if we can do this.

Following further subsequent expressions of concern by officials in relation to the proposed Scheme, the Minister issued one further very short written instruction on 30 January 2001 stating;

Go ahead with Proposals subject to conditions laid down in most recent memo subject to PO's agreement that there are no further cases in addition to those we are aware.

Why were the facts of the Byrne case not put before the then Minister? I am amazed the Department was so naïve. The report states:

I take this to mean, in the words of Mr Tom Carroll, former Secretary General, that "it was not a matter of trying to include or exclude anyone". The officials say the Scheme was drafted from their general knowledge of the industry and Departmental and EU policy and a desire to make the Scheme quite confined.

If the Department had so many facts, how was it unable to judge? The report refers to the then Minister:

He said he was anxious to ring-fence genuine cases and if this meant 50 cases ending up being eligible then he would not have been concerned as long as they were genuine.

What is more genuine than the Byrne case in the report of the Ombudsman? I draw the attention of the committee to the memo of 10 November 2000, in which Mr. Joe Ryan stated:

Any concession to the owners of lost or sunk vessels could be expected to lead to demands from owners of other fishing vessels which were not for various reasons (inactivity, unseaworthiness, late application etc.) put on the new Register. Such approaches would be difficult to refuse, as these owners could claim to have as good a case as owners of vessels which no longer existed when the new Register came into operation.

Chairman

Deputy Sheehan must give time to the officials to answer the questions. He should concentrate on questions.

Deputy P. J. Sheehan

The Byrne family indicated to the Department that they found out about the lost at sea scheme in 2002. They submitted their application on 31 December 2002. The sea fisheries administration division, which was responsible for designing and implementing the scheme, ultimately had detailed information of 16 cases that had come to its attention for a variety of reasons. Why was the Byrne case completely forgotten? It was one of the most genuine cases that could be considered under the lost at sea scheme. This does not make sense. At this late hour I advise the Department to take cognisance of the fact that the Byrne family were ignored.

Chairman

The Deputy's time has expired.

Deputy P. J. Sheehan

I doubt I have ten minutes exhausted.

Chairman

It is time for the officials to reply.

Deputy P. J. Sheehan

Can I get replies to what I said?

Mr. Joe Ryan

I dealt with the point Deputy Sheehan made about ring fencing and the design of the scheme. We approached it on a general basis by drawing up criteria of general application. I need not go over that ground again.

The other point made by the Deputy concerned notification and whether the Department should have drawn on the cases in its archives on the maritime safety side. Was it necessary to identify every case for the purposes of scheme design and subsequently for notifying people? The Department took the view that it was not necessary and that in proceeding in the way we did — advertising in three publications referred to earlier — we had given sufficient notice to people involved in the fishing industry or connected to it. The Deputy's point that there should have been a specific individual notification to the Byrne family could apply to many others who lost vessels at sea. We overtook that point by the general approach and by ensuring there was widespread publication through the fisheries journals. We regard that as adequate to ensure there was knowledge of the scheme so people could apply for it.

Mr. Tom Carroll

I agree fully with Mr. Ryan's response. I dealt with our work on the scheme in my opening remarks. We did sufficient research to establish the scheme and there was sufficient promulgation of the scheme to ensure that, by and large, it would come to the notice of anyone with an interest. It is unfortunate it did not come to the notice of the Byrne family. I have dealt with many schemes over the years and there are always people who apply after the closing date and say they were ill, abroad or that they missed it. Generally, if one does not meet the deadline of a scheme that is the end of the matter.

Deputy P. J. Sheehan

Why were certain individuals directly notified? The Department had a register of fishing vessels lost at sea. I am sure the Department was not so naive as to think that a case of the calibre of that of the Byrne family could be overlooked in the Department. The Ombudsman's office stated that there was a case to be considered for the Byrne family. Why is the Department so adamantly ignoring the Ombudsman's decision?

Mr. Tom Carroll

I no longer have any responsibility in that matter.

Deputy P. J. Sheehan

I know Mr. Carroll does not.

Mr. Tom Carroll

I fully understand the stance the Department has taken because one cannot lightly depart from the terms of a scheme and it may have implications for other schemes. That is a matter for the current personnel. The Secretary General, Mr. Tom Moran, has come before the committee and has explained that in full. I read his presentation and the account of that meeting and I thought he presented a particularly strong case. I no longer have responsibility in this matter and it is not for me to make a judgment on what I would do if I had responsibility for it now.

Deputy Andrew Doyle

In Mr. Carroll's earlier remarks he distinguished between the decommissioning scheme and the compensation in so far as the compensation was based on a tabulation of how the decommissioning scheme was calculated. Efforts have been made to state that this scheme was never about money, but the money the Ombudsman recommended was on the basis of earnings lost through being denied the ability to enter the lost at sea scheme. When Mr. Carroll was asked by Deputy Aylward whether he agreed that it was not a scheme about money, he clarified the position, which has been confused all along.

There is one critical point in what has happened. In his contribution, the former Minister of State stated that when the scheme was introduced in 2001, it was to facilitate individuals and families still involved in fishing. From what I heard today, and from Mr. Plunkett's recommendation, the thrust of the scheme was a genuine attempt to assist persons returning to fishing where there had been strong family involvement in fishing rather than merely providing monetary compensation. The former Minister of State also stated that the boat in question had been sunk for 20 years, and that the application for the scheme was 20 years after the tragic loss of Mr. Byrne and his crew. However, the application was one year late.

Mr. Plunkett, in his memo, homes in on the two reasons the Ombudsman found the Byrne family was unfairly denied acceptance into the scheme. One reason was that the family did not apply on time and the Ombudsman contended this was because advertising was not full, fair and comprehensive and Mr. Carroll has contested that. The second reason was that the boat had not been in continuous use for two years, and that a replacement boat had been used; even Mr. Plunkett stated that with the benefit of hindsight it is possible to state that had further research been carried out by the Department and more time spent formulating the conditions they might have been different. He acknowledged that may have been a weakness in the criteria, and he is in the legal affairs division.

Mr. Plunkett continued to state the cascade had been clarified and that out of 68 applications six were successful. It was calculated there was a maximum of approximately 120 cases which might qualify for the scheme. The cascade was known; it is not that there was an unknown level of possible applicants. Given the success rate of applicants of approximately one in 11, it was highly unlikely that there would be a huge burden on the Exchequer. The Ombudsman came to the conclusion that there was poor administration or maladministration, but that was already acknowledged, as Mr. Plunkett mentioned a possible cascade from what might be described as minor administration failings.

It is being contested robustly here that there was no maladministration or poor administration. It may be contested but to me it seems that in reacting to the Ombudsman there are a few excuses as opposed to facts. The Ombudsman determined that the Byrne family should have been allowed enter the scheme but for two reasons, and that being denied for those reasons was unreasonable. She concluded that an award should be made because of that denial. The Department, the former Minister of State and the Government have decided to refute that.

The waters have been muddied by declarations that this was never about money; it was not, and if the Byrne family had been given its tonnage it would not have sought or been awarded money. A key point is whether the scheme was for people still involved in fishing or for those who had a tradition of fishing. What is put forward by way of defence of the position taken by the Department and the Government is contradictory.

Mr. Tom Carroll

I hear what the Deputy is saying and he has presented it very eloquently. He has reflected the conclusions of the Ombudsman, which, unfortunately, the Department does not accept and I agree with the Department. Our contention is that the Ombudsman's report is not soundly based and does not stand up to scrutiny. That is the nub of the problem. Has a sufficient or compelling case been presented by the Ombudsman? In my professional view, as a civil servant of long standing who has dealt with many cases of this type, the case presented is not good enough. It is well argued and well presented but it is limited in substance.

We can go through the individual arguments, which have been tossed around here and my colleagues have dealt with many of the issues. If the Ombudsman had presented a case that was even 50:50 the Department would be in a difficult position but on a scale of one to ten the Ombudsman's case hardly scores two. From my analysis it is not a strong case. Every element of that case is tenuous. I have no vested interest in this matter. I have every sympathy for the Byrne family and personally I would love to do something for it if I could but I cannot.

The reason the Department is taking this position is not because of a particular agenda. It is solely based on the merits of the case presented. That is my professional interpretation. I respect the position taken by the Ombudsman and Deputy Doyle's interpretation and support of it but I cannot agree with it.

Deputy Andrew Doyle

I accept there is no vested interest. I try to be objective on this but I must state that when I read Mr. Plunkett's response to the Ombudsman's decision and recommendations I find the legal defence to be full of holes, with respect. It is better than two out of ten or 50:50. The head of the legal affairs division, in defending against the Ombudsman's case, stated at the beginning of a letter dated 30 July 2009 that the Department had consulted very closely with the Office of the Attorney General prior to issuing that reply. That is the final piece of correspondence prior to the Ombudsman's report being laid before the Oireachtas. That defence of the Department's position is weak. I will conclude on that because I can say no more.

Ms Sarah White

We are trying to be helpful. I note, however, that Mr. Plunkett is the legal adviser in the Department of Agriculture, Fisheries and Food. I was assistant secretary general of the Department of the Marine and Natural Resources and am now in the Department of Communications, Energy and Natural Resources. We cannot speak on behalf of Mr. Plunkett other than endorsing our general agreement with what his Department has concluded, as Mr. Carroll has done. We would not advance the debate by discussing Mr. Plunkett's conclusions.

Deputy Michael Creed

Returning to the issue of maladministration, I presume the principle of the scheme was that successful applicants were compensated like for like for losses of polyvalent or pelagic tonnage. Was that the case for all six successful applicants?

Ms Josephine Kelly

Yes. The applicants, in so far as I was aware, were given capacity for the type of fishing they had undertaken before their vessels were lost at sea.

Deputy Michael Creed

Which is the more valuable, pelagic or polyvalent tonnage?

Ms Josephine Kelly

The refrigerated seawater, RSW, pelagic segment capacity has the highest value. To the best of my knowledge, nothing was granted in respect of the RSW pelagic segment.

Deputy Michael Creed

Can Ms Kelly confirm, either now or later through the clerk to the committee, whether the sectoral tonnage given to the Joan Patricia and Spes Nova, which I understand were the Faherty and Mullen boats, replicated the tonnage these vessels fished? According to my information, they were given pelagic tonnage although they were involved in polyvalent fishing.

Ms Josephine Kelly

They were given polyvalent capacity, although I probably cannot be definitive on this. The rules stated that if a vessel was more than 65 ft. in length a history of fishing for pelagic was required. They would still be given polyvalent capacity but their history in fishing for herring and mackerel would determine whether they had a preclusion in their licence for these fish.

Deputy Michael Creed

Further to Mr. Ryan's comment, I wish to ask Mr. Dolan about the memorandum dated 22 September 2000, which was clearly sent in reply to either a verbal or a written communication about ongoing deliberations. He may not have been privy to these deliberations but he wrote in the memorandum that his review indicated more than 500 files had been opened since 1980, 120 of which related to incidents involving fishing vessels. Is he aware of the reason this information was sought?

Mr. Paul Dolan

I was not at the time but I became aware of it subsequently.

Deputy Michael Creed

Given that the request for information predated the decision to introduce the scheme, a legitimate inquiry was made to support the opinion shared across all officials in the Department that it was not a good idea and to convince the Minister it could extend to include 120 sunken boats. When the battle was subsequently lost in regard to the principle of the scheme the officials decided, in their collective endeavours at ring fencing, that it was best not to trawl these 120 cases and to deal only with the 16 cases in respect of which active representations had been made.

I accept we all need some assistance in interpreting the written word and that we should not get hung up on dictionary definitions but themes that keep cropping up are flood gates and ring fencing. When the battle on the principle of the scheme was lost, the Department went into overdrive to minimise the damage it feared would ensue. It had information that the scheme could include 120 people but decided to ring-fence compensation to a handful. The memorandum could not have been clearer in its reference to 120 incidents involving fishing vessels.

Mr. Joe Ryan

I made this approach to the maritime safety side to get information on the number of fishing vessels lost at sea and, if possible by correlating other records, the capacity attached to these vessels for the purpose of estimating the exposure the scheme's introduction would entail in terms of tonnes and kilowatts. When my maritime safety colleagues told me they could not readily collate the data or be confident of its completeness, I did not pursue the matter.

The Deputy suggests that we decided to park the issue because we did not want to find out the figures but I assure him that was not the case. When we began to draw up the terms of the scheme and its criteria with the Minister, we did not need to know the details of each and every case. We approached it on a general basis by reference to our knowledge of the industry, overall licensing policy and so forth, and came up with a set of three, initially, and six, ultimately, criteria which would define whether people could qualify for tonnage under the scheme. It was not the case that we were trying to push away the information that existed. We genuinely felt we did not need this information for the purpose of defining the scheme.

Deputy Michael Creed

On the basis of equity and leaving aside the scheme's definition, the Department had information on 120 readily identifiable persons with whom it could correspond. Even if they were not put into the matrix when devising a scheme from first principles, does Mr. Ryan think it was a mistake not to write to these 120 individuals?

Mr. Joe Ryan

I genuinely do not. It comes down to a judgment of whether the arrangements made for giving notice of the scheme were adequate. Obviously there is a divergence of views between the Ombudsman and the officials who were involved at the time. We hold to the view that the arrangements were adequate. The people who were written to had actively pursued their cases over several years in the hope of returning to the fleet. That, combined with the general notification given, seems to us to have been sufficient and adequate notice in the circumstances of the scheme.

Deputy Michael Creed

To make an analogy, the Department writes to the 130,000 farmers affected by the single farm payments scheme. That would appear to be a more equitable principle than selectively inviting a number of candidates, albeit balanced by the fact that an advertisement was published in newspapers.

Ms Sarah White

With all due respect, those are not entirely analogous. The Department of Agriculture, Fisheries and Food does not write to every farmer about the energy crop scheme. The single payment is an administrative transfer from Brussels which applies to every farmer, pretty much. The two are not comparable in any way.

Mr. Tom Carroll

A few weeks or months back I completed an application form for the single farm payment on behalf of my mother and brother. That scheme is totally different. One must tick boxes to specify the amount of land one has and the amount of crops grown and to confirm that one meets the conditions required by the scheme. It is a requirement of the scheme that one meets these conditions annually and, if there are any changes, one must notify the Department. This is a specific requirement with which one must comply to receive an annual payment. Thus, I do not see the Deputy's analogy as valid. I accept the Deputy's reason for stating it but it is not accurate.

Deputy Michael Creed

Why was a request made to the maritime safety division?

Mr. Joe Ryan

It was to try to find out the quantum of exposure if a scheme of this nature was introduced. We were trying to find out how many fishing vessels had sunk and what their capacity was so that we could see exactly how much tonnage and how many kilowatts would be availed of if a scheme was introduced which gave people the benefit of tonnage.

Deputy Michael Creed

The fear in the Department of the flood gates opening, which is a term used by somebody involved — perhaps by Mr. Plunkett — does not stand up to scrutiny. Even if the Department had been more even-handed — a phrase I do not use in a deliberately offensive way — and had written to the Byrne family, we would not be here today discussing this because they would have had the same opportunity as everyone else, which would have obviated their reason for being late in their application. Do the officials not accept that this is at the heart of the Ombudsman's finding? The Department had the information about 120 boats that went down, which included the Byrne family boat, and correspondence with all of those people would have put everybody in the know with regard to the scheme.

Even leaving aside the fact that the family was not notified, the flood-gate argument does not stand up, because even though 16 were corresponded with, 68 applied, of whom six were successful. Even with all the oxygen of publicity, Mr. Moran indicated that there have only been one or two inquiries to the Department about the scheme. It does not stand up that there is an avalanche of people out there waiting to get in.

Mr. Tom Carroll

My job in the Department as Secretary General was to watch proposals emerging that might erode policy and cause difficulties down the line. My experience suggested a concern about this scheme which was not necessarily to do with flood gates opening. When a scheme has been tightly lidded for many years but is then opened up for one reason, other equally meritorious groups may spring up pressing for similar concessions, which would cause its own difficulties. Let us be correct here: we were trying to stiffen the Minister's back in resisting the demands being put on him with regard to this scheme. However, he made his own decision, as he was perfectly entitled to do. Thus it is incorrect to conclude, based on the fact that so many applied under the scheme and only so many were successful, that we were wrong to put forward the flood-gates argument. I will let Mr. Ryan handle the other point.

Mr. Joe Ryan

There are two elements to what the Ombudsman had to say about research on these files. The first is with regard to needing information for the scheme. To some extent I dealt with this earlier. We took the view that we did not need to know the ins and outs of every case to design the criteria for the scheme.

The second point the Ombudsman makes with regard to the fact that we did not dig out the details of these cases is that it meant we could not write to each owner of a sunken vessel of which we had a record. The question is whether the arrangements we made for publicity were sufficient in these circumstances. We think they were.

Deputy Michael Creed

I compliment Ms White on her response about the energy crop scheme. It has taken me a while to come back with an answer on it. If a farmer misses out on the energy crop scheme one year he may re-apply the following year, but if a person missed out on the lost at sea scheme once there was no second chance. That is the problem. Perhaps the analogy does not entirely stand up, but this was a once-off scheme; if one was locked out, one was locked out forever.

In his memo of 19 July to Ms O'Malley, Mr. Ryan and Ms White, Mr. Donegan stated that he had been contacted by the Minister on behalf of a constituent and outlined what had happened at the meeting. This was after he thought he had successfully thwarted the Minister's efforts with regard to Mr. Faherty and Mr. Mullen. In the third bullet point he states "The Minister then suggested that Ms White and myself should meet with him next week to discuss the possibility of allowing the replacement, in particular in the case of his constituents" — who ultimately were the beneficiaries of most of the tonnage allocated under the scheme. Did that meeting actually take place?

Mr. Dermot Donegan

I am sorry but I cannot remember.

Deputy Michael Creed

I can understand that.

Mr. Dermot Donegan

At that time I dealt with queries from many Deputies on behalf of many constituents and I did a similar report for every one of them.

Deputy Michael Creed

If I am not mistaken, these two gentlemen had previously had representations made on their behalf at the behest of the Minister's constituency colleague, Deputy Ó Cuív. That is referred to in a memo from Mr. Ryan dated 30 March 1999. Mr. Faherty and Mr. Mullen had been around the houses. They had obviously gone first to their geographically closest representative, if my understanding of Galway West politics is correct — that is, Deputy Ó Cuív. Due to the competitive nature of multi-seat constituencies, they then went to Deputy Fahey. Mr. Ryan might equally have thought, in March 1999, that he had thwarted Mr. Faherty and Mr. Mullen, but they were persistent, and I take my hat off to them; obviously it worked for them. However, it did not work for Mr. Byrne, which is why we are here.

There is one thing I wish to clarify, although it is probably not documented. What was happening within the Department with regard to this scheme, the ultimate beneficiaries of which were six applicants, while 75% of the allocation went to Mr. Faherty and Mr. Mullen? A reasonable conclusion is that there was an excessive concentration on the known cases that could deliver such a result. How extensive was the lobbying process and the ministerial involvement? I do not know whether this should be directed at Mr. Donegan or Mr. Ryan.

Mr. Joe Ryan

I will be happy to deal with it. My time in the sea fisheries administration section was from the autumn of 1997 to the end of 2000, and in that three-year period we received representations on a fairly constant basis from people who had lost vessels at sea. There were others apart from the two gentlemen to whom the Deputy refers.

Deputy Michael Creed

Was that confined to the 16 people to whom letters were ultimately written? Was it the case that over three years there were 16 representations?

Mr. Joe Ryan

Probably in or around that, yes.

Deputy Michael Creed

That does not sound like a lot.

Mr. Joe Ryan

They were the people who were actively pursuing the matter with us at the time, as Mr. Carroll said earlier. They thought they had suffered an inequity by not being given their tonnage and were pressing the point quite strongly. It is true that I attended a meeting with the Minister, Deputy Ó Cuív, and the two gentlemen concerned, in March 1999. We had correspondence from other people in the south west and other places, all on the same thing, in effect, "We want our tonnage". The Department's adamant line in response to this, which is indicated in my note of the meeting in March 1999, was that we would not make any concession on it because of the fears we had about the implications for multi-annual guidance programme, MAGP, ceilings, and so on.

That gave rise to the belief in the Department, as members have seen from the correspondence in the second half of 2000, which culminated in the decision that there ought to be a scheme. When that decision was made it fell to me to draw up the criteria for the scheme. The Deputy used the expression, "an excessive concentration on known cases". In drawing up the criteria I did not rely on any particular known case, or any case at all. They were drawn up in general terms and were applicable to anybody who had lost a vessel at sea in the period in question and fell within the criteria as we defined them. They did not exclude anybody and were not designed to cater for any particular group of six or eight or 16 or whatever number one might come up with. That was not the way it was done.

Ms Sarah White

I want to reinforce and support Mr. Ryan's account. It underlines, above all, the probity and integrity with which this issue was approached by my team of officials and by Mr. Ryan, whose reputation is renowned in the Civil Service for precisely that.

Chairman

I invite Deputy Sheehan to put questions.

Deputy P. J. Sheehan

On 12 December 2000 Mr. Joe Ryan sent a memo to the Secretary General, Ms Sarah White, entitled "Capacity of lost fishing boats". The memo expressed serious concerns about possible repercussions but suggested how a scheme might be produced based on a number of criteria. The criteria suggested in the memo included, "That the vessel concerned is established to the satisfaction of the Department to have been lost at sea after the first day of January 1980". Surely the Byrnes' fishing boat comes under that category because it was lost in October 1981.

Chairman

Is there a question?

Deputy P. J. Sheehan

That is the first point. "The vessel is established to the Department's satisfaction to have been actively engaged in sea fishing until it was lost at sea". That is clearly evident in the Byrne case. "The owner of the vessel was unable, for reasons which are accepted by the Department as being bona fides, can acquire a replacement vessel before the inception of the new registration system". The memo further stated. "It was also suggested that there be consultation with the industrial representative organisations so that any others in similar circumstances could put their cases to the Department".

I come to my primary question. We know of approximately ten cases of boats which sank between 1980 and 1989. Surely it was not beyond the bounds of capability of the Department of the Marine to notify the owners or the representatives of these ten vessels. There were only ten and they should have been incorporated in the scheme because it was for any vessel that was lost at sea after 1 January 1980. What more need I say? There is a clear indication that the Department erred completely in not notifying the ten people concerned. Can the delegates answer my question?

Chairman

That is a valid question.

Ms Sarah White

I support previous statements and comments made by us on this matter. Advertising and communication mechanisms were put in place. I cannot accept there was an issue about writing to specific vessel owners. Everybody regrets what happened in the Byrne case. There is no doubt about that.

Deputy P. J. Sheehan

Ms White regrets that.

Ms Sarah White

The backdrop to all this is an appalling tragedy. The reality is the scheme was disseminated and promulgated through a variety of means. One could argue it is very surprising they did not come to hear about it. I say that in a personal way but would defend the way the scheme was disseminated and communicated. It was widely known up and down seaboards that this scheme was available and that people could apply.

Deputy P. J. Sheehan

The Department knew there were ten boats between the period——

Chairman

We know what the Deputy means. He asked this question before.

Deputy P. J. Sheehan

The Department knew of ten cases of boats which sank between 1980 and 1989. Surely it would not have been a great effort for the Department to notify those ten owners.

Mr. Joe Ryan

They were the cases we notified. As I understand it, the Department ultimately wrote to 16 people, including those ten known cases.

Deputy P. J. Sheehan

The Department did not write to the Byrne family but it must have had a record of them.

Mr. Joe Ryan

We may be slightly at cross purposes. The cases to which I refer in paragraph 5, from which the Deputy is quoting, are the cases which were known to the place where I was working, the sea fisheries administration division. The Byrnes' case was on record in the records held by our maritime safety colleagues. The point we discussed earlier was that in sending out notice, we did not access those files. We expressed the view that we did not think it necessary in the circumstances, that alternative arrangements were made to disseminate and promulgate the scheme. That is where the matter stands. The Ombudsman has taken the view that the advertisement was inadequate. We take a different view on the point.

Chairman

On behalf of the committee——

Deputy P. J. Sheehan

Through the Chair, I seek further clarification on this from Mr. Ryan. On 12 December 2000, he sent a memo to the Secretary General, entitled "Capacity of lost fishing boats". Mr. Ryan stated emphatically in that memo that he was aware of the ten cases of boats which sank between 1980 and 1989. Why were those cases not notified by the Department? It notified six.

Mr. Joe Ryan

I think I have answered that question. We notified the people.

Deputy P. J. Sheehan

Do I take it the Byrne family got notification?

Chairman

I thank the officials for their participation and for answering the questions.

Deputy P. J. Sheehan

I wish to follow up on this. Had the Department a record of the boats that were lost between 1980 and 1989?

Mr. Joe Ryan

We had details of certain vessels that were lost at sea. As I explained a few moments ago, these are the people who were in correspondence with us, looking for credit for their tonnage. The Byrne family were not among those people who wrote to us nor were they among those written to by the Department.

Deputy P. J. Sheehan

That was because the Byrne family had no money to purchase tonnage. If they had they would have done so. Surely they should have been incorporated into the lost at sea scheme. The Ombudsman is right in her findings and the sooner the Department owns up to that the better.

Mr. Joe Ryan

I cannot really comment further on that.

Chairman

I thank the officials for their participation, for answering the questions and giving their time to attend today's meeting, assisting the committee on this process. I thank in particular Mr. Carroll, who has been retired for many years, for his attendance.

The joint committee adjourned at 3 p.m. until 11.30 a.m. on Wednesday, 9 June 2010.