• You are here:
• Home /
• Reports /
• Investigation Reports /
• 14 December 2009 - Lost at Sea Scheme

14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report (Section 6. Evidence Gathered During Interviews)

6.1   Interview with the then Secretary General, Mr Brendan Tuohy

The purpose of the meeting with Mr Tuohy (who was Secretary General of the Department at the time my investigation commenced), was to enable my officials to outline the general procedures involved in formal investigations including the steps followed by my Office in ensuring that fair procedures are observed. Mr Tuohy assured my officials of the full cooperation of his Department during the investigation process.

6.2   Interview with Mr Joe Ryan, former Principal Officer, Sea Fisheries Administration Division

Mr Ryan worked as Principal Officer in Sea Fisheries Administration Division from November 1997 until December 2000, at which point he handed over responsibility for his work on the Lost at Sea Scheme to Ms Josephine Kelly. It was clear from the Department’s files that during the years following the establishment of the Register, pressure was being brought to bear to try and accommodate boat owners whose vessels had been lost at sea, prior to the establishment of the Register. Mr Ryan confirmed that this was the case and a small number of boat owners were taking the lead in this matter, including Mr Paddy Mullen and Mr Tony Faherty. This pressure manifested itself in a number of ways, through contacts from the owners themselves, industry representatives and various politicians making representations on their behalf. On occasion, Mr Ryan had to attend meetings with boat owners and political representatives to explain the Department’s policy position. The Department rigidly opposed any concessions.

Mr Ryan indicated that his contact with Marine Safety Division in September 2000 (see paragraph 5.3 above) was an effort to try and quantify the number of likely cases that might arise in the event of a Lost at Sea Scheme being introduced. When that Division indicated that detailed information was not readily at hand, he accepted the position.

As to why a starting date of 1 January 1980 was being mooted in terms of boats sunk after that date being possibly eligible under the proposed Scheme, he could not recall a particular rationale for choosing that date as the cut off point, although it may have been felt that a ten year period (1980-1990) was a reasonable limit and if one went further back this might give rise to administrative difficulties.

Following Mr Ryan’s note of 10 November 2000 (see paragraph 5.4 above), he was asked to review the situation following the Minister’s instructions. His recollection was that he did not discuss the matter at the time with Ms Sarah White, Assistant Secretary as she was heavily involved in other work in Brussels around that time so most of his dealings about the matter were with the then Secretary General, Mr Tom Carroll. Essentially, as the Scheme evolved, the drafting and revisions were carried out by himself and Mr Carroll.

In relation to the Minister’s instruction at the time that he wanted to “ringfence the 6 to 8 genuine cases”, Mr Ryan said he approached the design of the Scheme on a “first principles” basis and as such, he was not trying to base the Scheme around the cases that the Department was aware of. Some of those cases were ones which had been the subject of lobbying and others were known about for various reasons. He said he did not know what the Minister meant by “genuine cases” and he never discussed this matter directly with him. He believed that the Minister meant bona fide cases. He said he was not au fait with the details of the High Court case which was going on at the time involving the Kreis an Avel.

In commencing his work on drafting the Scheme Mr Ryan said his point of departure was the European Commission’s Multi-Annual Guidance Programme (MAGP) in relation to Ireland’s fishing fleet objectives. He worked on a tight and narrow basis and had regard to the first principles which governed overall licensing and did not look at the details of individual cases or examine those files available in his Division. He did not consider seeking more specific details on the files available to Marine Safety Division. He said he originally came up with three eligibility criteria (see paragraph 5.5 above) but Mr Carroll wanted more specific details stitched in. Regarding his notes of 12 December 2000 (see paragraph 5.5 above) and 18 December 2000 (see paragraph 5.6 above) the discussions which are referred to took place were between himself and Mr Carroll.

Mr Ryan confirmed that the series of hand-written amendments to his draft which were encompassed in his revised draft submitted by him on 19 December 2000 (see paragraph 5.7 above) were Mr Carroll’s amendments. Mr Ryan said he had not discussed those particular amendments with Mr Carroll but took them at face value. Mr Ryan said this was his last involvement in the drafting of the proposed Scheme.

6.3   Interview with Ms Sarah White, Assistant Secretary

Ms Sarah White, Assistant Secretary, had responsibility for the Sea Fisheries area from December 1994 up to March 2002. She indicated that there was continuous interest from public representatives with fishing constituents in relation to fishing policy matters. In relation to the proposed replacement capacity scheme, there were differing views on the part of the Fishing Organisations as there could be winners and losers.

In relation to her note of 11 November 2000 (see paragraph 5.4 above) she could not recall if she had any follow up discussions with the Minister at the time. She indicated that there was no note of any such discussion on the file. For the last quarter of 2000 and 2001, she had to spend a lot of time in Brussels on EU business.

Regarding her note to Mr Ryan dated 14 November 2000 (see paragraph 5.4 above), she said she could not recall the details of the High Court case. She said that there were genuine issues in relation to some of the cases which had come to the Department’s attention and it was her recollection that the then Minister had his own views on what he saw as being genuine cases at the time. She felt that he had wanted to licence those boats of which he was aware. There was a concern within the Department that there were other cases in the woodwork and there was a profound concern of the risk of setting a precedent.

Ms White indicated that the drafting and revision of the various drafts of the Scheme had been conducted, in the main, by Mr Ryan and Mr Carroll. She could not recall having been briefed in relation to the final stages of the drafting process.

Ms White indicated that she did not believe she was the author of the undated and unsigned memo opposing the proposed Scheme (see paragraph 5.10 and Appendix 3) but she expressed the view that it appeared from its format that it may have been written by Mr Carroll. She took a general approach from the Department’s point of view in relation to the proposed Scheme, by making it clear the risks that existed in policy terms.

When the Minister gave his direction on 30 January 2001 (see paragraph 5.10 above), she could not recollect having discussions with him about that particular matter although, as part of her normal work, she would have spoken regularly with the Minister. Ms White interpreted the reference in the Minister’s memo to “PO’s agreement” to being a reference to a Principal Officer and she felt the memo could only have made sense if interpreted that way. She felt that from a practical point of view, once the Scheme was publicly advertised one could not guarantee that other cases, not known to the Department at the time, would arise. There is always the danger that it would be like an iceberg with a lot unseen beneath the surface.

While Ms White suggested in her note of 8 May 2001 to the Minister (see paragraph 5.15 above), that he might wish to discuss the Scheme proposals she could not recall having had follow up discussions with him on the matter at that stage.

In relation to the two late changes to the Scheme (see paragraph 5.16 above), Ms White could not recall when precisely this happened or who was responsible for them.

Ms White was aware that in advertising the Scheme, it was going to be put in the trade papers and details would be disseminated through the industry and she had no difficulty with this approach. She felt there was a certain onus on the fishing organisations to spread the word about the Scheme.

By the time the Scheme was made public, Ms White said she was happy, from an administrative and equity point of view, that the Department had something in place. In relation to the Minister’s position on the Scheme Ms White indicted that she could not obviously look into the Minister’s heart, but, going on what he expressed and articulated, she knew that he had concerns for “the little guys who were struggling” and that no doubt he knew some of them personally and wanted genuine cases of hardship dealt with. She made the point that over the years a number of politicians, across a range of parties, would have shared the Minister’s views and had been pressing for concessions.

6.4   Interview with Mr Tom Carroll, former Secretary General

Mr Carroll came to the Department in 1988 as an Assistant Secretary with Sea Fisheries as part of his brief. He was appointed Secretary General in 1994 and retired  in September 2001. Mr Carroll indicated that when he arrived in the Department, the general situation in relation to fishing policy was somewhat chaotic but by 1990, the Department had succeeded in establishing a clear policy based on the replacement concept. The nature of the Irish fishing industry was that this policy was subject to recurring attack and while it would always be very difficult for the Department to hold the line, the Department would do as much as it could.

Mr Carroll agreed that the officials were negatively disposed towards a change in policy as was envisaged under the Lost at Sea Scheme, but the then Minister was particularly tenacious on the issue. While he himself would not normally have been involved in such detail on the matter, he had to step in during Ms White’s absences in Brussels. He was also getting messages indirectly from the Runaí Aire (Private Secretary to the Minister) about the matter.

In relation to the detailed redrafting he had done (see paragraph 5.9 above), he said his aim was to confine the Scheme. In this regard he would probably have had brief discussions with Mr Ryan about the matter. He said Mr Ryan was taking a general overview, they did not have regard to specific cases and it was not a matter of trying to include or exclude anyone in particular other than to try and make the Scheme as restrictive as possible.

Mr Carroll indicated that he could not recall the details of the High Court case involving the Kreis an Avel at the time but he was certain that he did not take it specifically into account in drafting the Scheme. He made the point that the Department faced many legal challenges and it was a matter for the people dealing with the court cases to deal with those matters.

In relation to the Minister’s reference to “genuine cases” (see paragraph 5.4 above) Mr Carroll said that he had no specific knowledge of those cases and had an open mind on them. He made the point that with the advent of FOI, the Ombudsman Act and the use of judicial review there was no longer a tolerance for making ad hoc decisions to suit particular people and he welcomed that development. His own approach to the drafting of the Scheme was that he did not seek to acquaint himself with individual cases.

In relation to his amendment to item (c) of the Scheme (see paragraph 5.9 above), which was directly relevant to the case of the Byrne family, Mr Carroll said that as far as he was aware the Byrne case was the only one in which there was a complaint relating to this clause. His intention in re-drafting it was to exclude a case, for example, where someone had fished for two days and their boat had sunk. The matter was really one of interpretation of that condition. He said the Department was drafting a minor exception to an established policy. As far as the Department was concerned the determining factor was that the Scheme was to be restrictive. He made the point that the condition had not been challenged by the industry organisations when they were consulted and it did not cause problems during the application stage, given that the Byrne family submitted a late application. 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.

Regarding the unsigned memo opposing the proposed Scheme (see paragraph 5.10 above and Appendix 3), Mr Carroll could not say for certain if he wrote it and indicated that he may have dictated it to Ms White. However, he indicated that the memo reflected the considered Departmental view at the time.

With regard to the Minister’s memo of 30 January 2001 (see paragraph 5.10 above) Mr Carroll was of the view that the reference to “PO’s agreement” was a reference to the Producers Organisations. He said that at the time the note jarred with him as it could have had no effect in that once the Scheme was out it was out and it was not possible to be certain about the level of applications. He made the point that the responses of the Producers Organisations would have been expected to be varied as there were people in the fishing industry at the time who had paid big money for replacement boats and they would have opposed granting further capacity to others.

As regards the consultations between the Maritime Safety Division  and Sea Fisheries Administration Division (see paragraph 5.3 above), Mr Carroll emphasised that Marine Safety was entirely separate within the Department of the Marine and had been set up in 1987 on transfer of the function from another Department. It had an entirely separate administrative and legal function. He would not accept the argument made by the Ombudsman that the files held therein should have been consulted in drawing up the Scheme.

Following the mixed reaction of the industry to the proposed Scheme Mr Carroll could not recall any discussions with the Minister on this point. In Mr Carroll’s view, the Minister’s mind had been made up that the Scheme should go ahead.

With regard to the suggestion that the scope of the advertising of the scheme was not very wide, Mr Carroll said that the cost of advertising would be important in a small Department. His view was that the fishing community was very tight knit and that the fishing trade papers were the equivalent of the Farmer’s Journal. He believed that the scope of the advertising was adequate in the circumstances.

6.5  Interview with Mr Frank Fahey, T.D., former Minister for the Marine and Natural Resources

Deputy Frank Fahey was Minister for the Marine and Natural Resources for the period from January 2000 to June 2002. He said he came into the job as that government was in mid term. He went around all the fishing ports in order to immerse himself in the job. He believed that the fishing sector was skewed towards a regulatory regime and that precedent was very important in policy terms. He believed that the development approach had been stymied and he formed the view that the regulatory regime introduced in 1990, under which tonnage became an asset, was arbitrary and did lead to an anomalous or unfair situation in some, but not all cases. He felt some cases for concessions were dubious in nature. He was also quite clear that he would not be doing anything regarding those boats which had sunk in the harbour or the docks (implication being that there could be dubious circumstances) as, in principle, this would be completely unfair.  He was most anxious to hone in on good genuine cases to make his arguments within his own Department to illustrate the point, and he picked the cases of Mr Faherty and Mr Mullen as examples.

As Minister at the time, he had received representations from all over the country, including from Donegal, Galway, Cork and Kerry. He was already aware from Éamon Ó Cuív TD and others about the issue. He wanted the most convincing case possible and Mr Faherty and Mr Mullen were his test case. He said he had several meetings with his officials and he was required to take account of their views. He cited meetings with officials such as Mr Donegan and Ms White but indicated that these meetings were not documented to any degree.

He presumed that he did discuss the Kreis an Avel case with his officials and he indicated that he may have met the owners, as he would have met a lot of people in Killybegs (where the Kreis an Avel was based). However, he could not be certain as he could not precisely recall. He believed that at the time there were in all, around 100 cases on the go.  While he could not recall the Kreis an Avel court case, he would have been aware that the principle, from the Department’s point of view, would be that as the Department’s 1990 regulatory position was being challenged in the courts, any question of introducing a Lost-at-Sea-style-Scheme should be put on hold for fear it would impact on the Department’s court argument.

Following Mr Joe Ryan’s memo of 10 November 2000, Ms Sarah White wrote a note dated 11 November 2000 (see paragraph 5. 4 above), expressing sympathy for the cases of Mullen and Faherty but advising against any concession in view of the High Court case and the distinct possibility of further cases emerging. There was a discussion between him and Ms White at the time. His recollection was that she said that there was a case but that if a change was made, it could open the floodgates. There was a discussion about genuine cases and he was quite clear what those cases were, namely, those who had lost boats and had made efforts to get back into fishing - families who wanted to have their own boats and were still involved in fishing. He would have been making the point that there was only a limited number of cases. He mentioned a case which he knew of where a fisherman had got back in by buying new capacity so he would have been automatically excluded. He believed that if the Lost at Sea Scheme was advertised, then the genuine cases would come through.

With regard to the then Minister’s note in which he indicated he indicated his wish to “ringfence the 6 to 8 genuine cases” (see paragraph 5.4 above), he said he got that figure from the information the Department was giving him but in the long run, he was not overly concerned if they ended up with 50 cases as he was working on the principle. He believed that by using the word “ringfence” he was thereby overcoming the Department’s argument about opening the flood gates. He was aware of cases which he did not envisage being successful under the Scheme e.g., where a boat had simply been abandoned. The terms of reference for the Scheme was to cover the issues which arose in the discussions with his officials. The aim was to include people who were affected by the 1990 changes and since then, were still in the fishing business. In his view these were people who had been caught by an arbitrary decision, because of the tonnage requirement, they were then still fishing but could not own their own boat.

As regards any difficulty with giving concessions to people while a court case was ongoing, he recollected that he did consult a legal advisor and was told that the introduction of a Scheme would lead to the dropping of the court case.

In terms of further research being carried out in advance of the launch of the Scheme, he said that the normal thing was to advertise a Scheme and give a closing date. Once the policy decision was taken and the terms of reference established, then the Minister was no longer involved. The reason the fishing organisations were contacted, given copies of the draft Scheme, and consulted, was that he wanted to gauge their views and also they would be aware of people who were still fishing and affected by the loss of their boats.

While it was not possible to precisely predict the scale of applications which would be received, he felt this would not have had ramifications for the MAGP (Multi-Annual Guidance Programme). He believed the 1990 restrictions were arbitrary and discriminatory and he had talked on the matter with a few Ministers whom he believed were like-minded. It was his belief that there would not have been too many cases. He was quite clear that he and the Department could see through the cases that were not valid. He said that he did not believe that they ran into the hundreds. His compromise with the Department was to bring in the genuine cases and by definition leave the 1990 restrictions intact. He said he used Faherty and Mullen cases as “guinea pigs” and basically asked them to give him proof i.e. they should prove to him why they should be considered in any proposed Scheme. In this regard he said that he “bounced off them” the types of questions that his officials had put to him in earlier discussions about the draft Scheme.

With regard to the Producers Organisations he could remember that some would have been unhappy if it turned out that under the Lost at Sea Scheme tonnage could be sold (as was allowed under the original draft of the Scheme) as that would be deemed unfair by those who had purchased their tonnage and, of course, it could also affect the market value of existing tonnage.

In relation to his meeting on 5 February 2001 with Mr Paddy Mullen, owner of the sunken vessel Spes Nova and Mr Tony Faherty, owner of the sunken vessel Joan Patricia (see paragraph 5.13 above), he said they used to come into his clinics. Mr Mullen was also coxswain of the Aran lifeboat and he would have issues relating to that for the Minister. He said they were not given copies of the draft Scheme at the meeting but he would have told them what was in it. Messrs Mullen and Faherty were concerned about the 10 year condition for sale of tonnage under the draft scheme and wanted that deleted so that those who were allowed go back fishing in their own boats would be allowed sell their tonnage as soon as they wished.

He referred to the Sunken Boat Capacity note (see paragraph 5.10 above and Appendix 3), which he believed was written by Ms Josephine Kelly, Sea Fisheries Administration Division, and how he was concerned that the Scheme should not benefit people financially so he inserted two changes following this note i.e. the applicant should not have benefited financially from the loss and there would be no possibility of selling tonnage acquired under the Scheme (see paragraph 5.16 above). He said this illustrated that he was not going out of his way to grant big financial benefits to his constituents.

He stated that he gave no inkling to Mr Mullen and Mr Faherty at the meeting that they would be successful under the Scheme. He could not recall whether he met them subsequent to the February meeting. He did meet others and members of fishing organisations. He emphasised that in devising the Scheme, he wanted to find the proper formula from a policy point of view. He also recalled that Mr Mullen and Mr Faherty were very disappointed when there was going to be no possibility at all of selling Scheme tonnage. He said he had spoken to Mr. Mullen recently to find how he got on with his Lost at Sea tonnage. He said that Mr. Mullen told him that it proved to be no great advantage after all and did not confer much benefit on account of all the other expenditures he had to incur in order to avail of the tonnage such as buying a boat.

When the drafting of the Scheme was in its final stages he had a substantial amount of discussion with Mr Carroll. He indicated that when he referred to “PO’s agreement” (see paragraph 5.10 above) he was referring to Producers Organisations. He felt that by alerting the Producers Organisations, they were ensuring that all who were still in fishing would become aware of the Scheme. He pointed out that as a result of a terrible tragedy, the Byrne family got out of fishing in 1983 so to his understanding of the Scheme was that they had no case even if they had they put in an application on time. He was aware that there would be attempts to get obsolete boats into the Scheme and he believed that he would have been personally aware of about 50 cases and they were of varying merits in terms of the Scheme.

In relation to the table of cases submitted to the Minister when the Scheme was being signed off (see paragraph 5.17 above), he indicated that he would have met a number of them as there were files on their cases going back over the years. He made the point that the reason he wrote personally to Mr Mullen and Mr Faherty (who were among those listed on the table), to tell them about the launch of the Scheme was because there was a long established protocol that representations from constituents were answered by the Minister himself, and other representations received a Departmental reply.

He indicated that he had no input into the planning of the advertising campaign following the launch of the Scheme. He also indicated that he was not consulted in any way in terms of the vetting of applications which were received under the scheme, following its launch.

6.6   Interview With the Complainant, Mr Danny Byrne and his Brother Mr Anthony Byrne

The Byrnes indicated at interview that their father had the boat Loretto since 1975. It was built in Arklow specially for him. He acquired the Skifjord in 1981. That boat was 130 foot long and they believed it was in the 200-300 tonne range. Their father was one of a family of 18 and many of his relations were involved in fishing. The family was left in very poor circumstances following the loss of the boat.

They indicated that they first found out about the Lost at Sea Scheme from a friend of a friend. However, this would have been well after the closing date of 31 December 2001 for applications for the Scheme. They submitted an application dated 31 December 2002 with a letter of the same date from their brother Francis Jr. which was attached to the application. This application was submitted at the time by the Minister for Social and Family Affairs, Mary Coughlan T.D., and was received in the Department of Communications, Marine and Natural Resources in January 2003. In the event of a successful application, the intention was to buy or lease a boat and a relation of the Byrnes, together with Anthony Byrne, had hoped to use any tonnage granted.

The Byrnes expressed the view that they should have been granted tonnage under the Lost at Sea Scheme and believed that their circumstances were such that they were on a par with other successful applicants who had been granted tonnage previously.

Back to contents