• 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 - Appendix Four (Submission of the Department of Agriculture, Fisheries and Food in response to the Draft Investigation Report)

3 July 2008

 

Mr Pat Whelan,
Director or General,
Office of the Ombudsman,
18 Lower Leeson Street,
Dublin 2

Representations from the Department of Agriculture Fisheries & Food Concerning the Ombudsman's Report on the Lost at Sea Scheme

 

Dear Mr. Whelan,

I refer to your draft investigation report relating to a complaint received from Mr. Danny Byme regarding the Lost at Sea Scheme administered by the  then Department of Communications, Marine and Natural Resources.  Firstly, I wish to state that the Department of Agriculture, Fisheries and Food welcomes the opportunity from the Ombudsman to make its representations in relation to the content and findings of the Draft Report resulting from her formal investigation into the Lost at Sea Scheme. It has always been the  Department's view that its schemes, as with any scheme, must reflect a true, transparent, factual purpose or objective, achieved equitably by clearly stated terms rules and conditions within a definite timeframe.

As outlined in previous correspondence with the Office of the Ombudsman, the Lost at Sea Scheme was introduced in June 2001 following consultation with the fishing industry representative organisations. The scheme, therefore, was well known to the fishing  industry representative organisations in advance of it being launched.

(1) Objective/Purpose of the Lost at Sea Scheme

The sole objective and purpose of the scheme was to enable qualifying applicants, who were otherwise unable to do so for financial or related reasons, to provide replacement capacity for the purposes of introducing a replacement fishing vessel in respect of fishing boats lost at sea between 1980 and the establishment of the new fishing boat register in 1990, to continue a family tradition of sea-fishing in situations where immediate family members were engaged in the sea-fishing industry. The objective and purpose of the scheme was clear, transparent and unambiguous.

(2) Cost of the Scheme

The scheme did not provide financial support for the acquisition of a fishing vessel itself and the capacity (i.e. gross tonnage and engine power) given under the strict terms of the scheme could not be sold on or otherwise traded or realised as a financial asset in the tonnage market.

(3) Launch and Administration of the Scheme Within Strict, Terms Rules and Conditions

The Ombudsman's Report rehearses the debate which took place between Civil Servants and the Minister when consideration was being given by the Minister whether or not to have the scheme. The following comments do not consider the merits or otherwise of having the scheme but focus on  the administration of the scheme following the Minister's decision to have the scheme. Minister Fahey decided to launch the scheme in June 2001, with a specified closing date for applications of 31 December 2001. The extent of advertising in this case was in line with normal custom and practice in that it was advertised in the fishing trade papers with a view to notifying potential applicants engaged in the sea-fishing industry and who are continuing a family tradition of sea-fishing. The fishing trade papers are the equivalent of the Farmer's Journal for the farming sector and it could reasonably be assumed that anybody seeking to continue a family tradition of commercial fishing (the purpose of the scheme) would be aware of the contents of the fishing trade papers, which were and are the most focused media outlets for all matters related to the fishing industry and the communities dependent on fishing. As previously stated, the scheme was well known to the fishing industry representative organisations in advance of it being launched.

The Department was scrupulous in administering the scheme in that each applicant  was treated fairly under the scheme within specific terms, rules and conditions. As previously stated, the scheme allowed qualifying applicants who wished to engage commercially in the fishing industry, and who were otherwise unable to do so for financial or related reasons to provide replacement capacity for the purposes of introducing a replacement fishing vessel in respect of fishing boats lost at sea between 1980 and the establishment of the new fishing boat register in 1990, to continue a family tradition in sea-fishing. Any non-tradable (i.e. could not be sold) capacity granted under the scheme must have been used for the purposes of introducing a replacement boat for the lost vessel which is owned and skippered by the applicant or by an immediate relation of the applicant.

The Department holds the explicit view that the scheme, as with most schemes, correctly reflected a definite closing date or deadline. The Draft Report appears to suggest that scheme should have been launched on an infinite or immeasurable basis. The application from the Byme Family was received by the Department in January 2003, over 12 months after the closing date of the scheme. Notwithstanding the late application, it did not meet all the qualifying conditions of the scheme and the Department's clear view is that it was correctly refused.

(4)  Outcome of the Scheme

In all, there were 68 applicants under the scheme, only 6 of whom qualified under the terms of the scheme. Of the 6 qualifying applicants, 5 or their immediate family  members are commercially engaged in the fishing industry and have utilised the non-tradable capacity (i.e. gross tonnage and engine power) by introducing a replacement boat, privately financed, for the lost vessel in order to continue a family tradition in sea-fishing. The remaining I applicant, while awarded capacity under the scheme, has not been in a position to introduce a replacement boat for the lost vessel as neither she nor any member of her immediate family is engaged in the fishing industry. The capacity granted under the terms of the scheme cannot be used in such a situation as the replacement vessel must be owned and skippered by the applicant or by an immediate relation of the applicant.. The capacity in her case has expired under the 2 year rule introduced by Ministerial Policy Directive 2/2003.

(5) Fisheries (Amendment) Act  2003

The 2003 Act was introduced to set up an independent licensing authority to decide on individual applications for the licensing and registration of sea-fishing boats. It  was set up so that decisions would be made in a transparent way and removed from  political influence.

THE DEPARTMENT WISHES TO MAKE THE
FOLLOWING SPECIFIC COMMENTS AND OBSERVATIONS
ON THE OMBUDSMAN'S DRAFT REPORT

(1) The Department disagrees with the Ombudsman's findings at number 2 of the Draft Report and the "analysis" leading up to them. The Department cannot comprehend how, on the second last page of the draft document, it is asserted that the scheme was too focused on known cases. It was specifically indicated to the Office of the Ombudsman that the scheme was not, in fact, drafted by reference to known cases, but was, rather, designed from first principles, in the context of overall licensing policy. In those circumstances, the view/finding that there was a lack of adequate research (by which is meant in relation to individual cases) does not appear to be well-founded. Civil servants were scrupulous in administering the scheme in ensuring that each applicant was treated fairly and nothing in the Report indicates otherwise.

Irrespective of the consideration on the merits or otherwise of having a scheme, the Department's view is that when it was decided by the Minister to proceed with a scheme, the scheme was well designed, adequately researched and equitable in its objective/purpose, administration and outcome. It allowed genuine applicants, in situations where the applicant or his or her immediate family members were commercially engaged in the fishing industry, to continue a family tradition in sea-fishing. The scheme did not provide financial support for the acquisition of a fishing vessel itself and the capacity (i.e. gross tonnage and engine power) given under the strict terms of the scheme could not be sold on or otherwise traded and could not be realised as a financial asset in the tonnage market.

There seems to be an implication in the Draft Report that a scheme can never have hard and fast and strictly binding criteria, and that some degree of leeway is always necessary. This could have ramifications for the design of a wide variety of schemes. The Department holds the explicit view that this scheme, as with other schemes, must have a closing date or deadline and was, quite correctly, not launched on an infinite or immeasurable basis. The Department's view is that the scheme clearly did not provide for discretion in the area of late applications and in situations where all of the strict conditions were not met by an applicant.

(2) The Department disagrees with the Ombudsman's findings at number 3 of the Draft Report and the "analysis" leading up to them. As stated previously, the  Department cannot comprehend how, on the second last page of the draft document, it is asserted that the scheme was too focused on known cases. It was specifically indicated to the Office of the Ombudsman that the scheme was not, in fact, drafted by reference to known cases, but was, rather, designed from first principles, in the context of overall licensing policy. The scheme was adequately advertised in line with normal custom and practice in that it was advertised in the fishing trade papers with a view to notifying qualifying applicants still engaged in the fishing industry and continuing a family tradition of commercial fishing. The fishing trade papers are the equivalent of the Farmer's Journal for the farming sector and it could be reasonably assumed that anybody seeking to continue a family tradition of commercial fishing (the purpose of the scheme) would be aware of the contents of the fishing trade papers. The fishing trade papers are the most targeted media outlets for promulgating anything in relation to commercial sea fishing or any related matter relevant to fishing communities. As previously stated, the scheme was well known to the fishing industry representative organisations in advance of it being launched.

(3) The Department disagrees with the Ombudsman's findings at number 4 of the Draft Report and the "analysis" leading up to them. The Department is strongly of the view that there is clear and unambiguous record keeping with regard to the required objective of the scheme, the clear decision of the Minister to launch the scheme, the clear rules and conditions of the scheme, the equitable administration of the scheme and the outcome of the scheme.

(4) The Department absolutely refutes the finding of "maladministration" at number 5 of the Draft Report. In relation to the dialogue with the Minister prior to his instruction to proceed with the scheme, the Civil Servants involved set out clearly, as is on the record, their views in relation to the merits or otherwise of proceeding with such a scheme. In these circumstances the Civil Servants can only advise the Minister and that is what occurred in this instance.

If the finding is intended to relate to the administration of the scheme from the point at which the Minister had given his intention to implement the scheme, the Department, based on all the foregoing, considers the finding of maladministration a very serious charge. The Department cannot comprehend how this conclusion has been reached in relation to the implementation of the scheme. The Department is strongly of the view that the conclusion is excessive and unbalanced and not sustained by the body of the Report.

(5) The Department is strongly of the view that, in the interest of equity, its formal reply to the Statement of Complaint is appended in full to the Report. (It is quoted widely but should be readable in its entirety)

 (6) Mr. Thomas Carroll, former Secretary General has requested the amendments shown below (Appendix 1) in red to Section 6.4 of the draft report be conveyed to the Ombudsman's office so as to reflect more accurately his recollections in this matter.

 

Yours sincerely,

Mr. Tom Moran
Secretary General
Department of Agriculture, Fisheries and Food

Back to contents