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14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report - Appendix Five (Submissions of Former Minister Fahey in Response to the Draft Investigation Report)

 

19 June 2008                                                      

 

Ms Emily O'Reilly
Ombudsman
Office of the Ombudsman
18 Lower Leeson Lane
Dublin 2

Re: Mr Danny Byrne - Lost at Sea Scheme

 

Dear Ombudsman

Thank you for your letter dated 9 June 2008.

My letter dated 14 May 2008 comprised my submissions on your draft report, as opposed to 'representations', as stated in your recent letter. I reiterate the contents of my letter of 14 May.

I believe that your draft report includes unfair and unwarranted findings and criticisms adverse to me. I am of the view that I am prejudiced by the manner in which the complaint has been dealt with and the manner in which I have been dealt with in this matter.

Furthermore, I refer again to the hugely detrimental effect and consequences suffered by me as a result of your Office's previous description of the Scheme as "seriously deficient and flawed". By way of example, I attach copy extracts from some newspaper articles in which serious and incorrect allegations have been made against me and my character as a result of your Office's previous description of the Scheme.

This serves to demonstrate the weight and reliance placed on statements issued by your Office and, consequently, the vital  importance that any such statements be fair, balanced and employ appropriate language. Accordingly, in any final report that issues I would urge your Office to bear this in mind (particularly the serious adverse consequences that can flow from the use of unfair and inappropriate language in statements from your Office) and to give due care and consideration to the contents of, and language contained in, any such report.

Finally, as previously advised, I would welcome the opportunity to meet with you and await hearing from you further in that regard.

Yours sincerely

FRANK FAHEY, T.D.

==================================================================

14 May 2008

Ms Emily O'Reilly
Ombudsman
Office of the Ombudsman
18 Lower Leeson Lane
Dublin 2

 

Dear Ombudsman

I refer to your draft Investigation Report on the complaint made by Mr. Danny Byrne to your office in November 2004 against a decision of the then Department of  Communications, Marine and Natural  Resources to refuse his mother's application under the Lost at Sea Scheme (the "Scheme").

By letter dated 22 April 2008, you invited me to consider your draft report and, if I wished, to make submissions thereon. I have now had the opportunity of considering same and set out my submissions below.

Nothing herein should be taken as in any way seeking to detract from the tragic circumstances giving rise to this complaint and the terrible loss suffered by the Byrne family, which I sincerely acknowledge.

Submissions

Having considered your draft report, I am of  the view that it includes unfair and unwarranted findings and criticisms adverse to me.

I believe it is important to trace the history of this complaint to your Office and my involvement in same.

Preliminary Examination

Your Office appears to have received a complaint from Mr Byrne in November 2004. This was almost two years after his mother's application under the Scheme was refused. At that time, I was not informed by your Office that a complaint had been made nor  was I advised of the nature of the complaint. I was not furnished with a copy of the complaint. Further, your Office did not inform me that it had, notwithstanding Section 5(i)(f) of the Ombudsman Act, 1980, decided to deal with the complaint. Without any notification to me, your Office proceeded to carry out a preliminary examination of the complaint. I was not informed by your Office of the issues, the subject of the examination, or whether any such issues involved an examination of a claim or allegation of any sort against me (either personally, or in my role as then Minister at the time when the Scheme was designed and adopted).

Indeed, your Office first informed me of the complaint, its scope and your Office's decision to investigate same after your Office had conducted and completed its preliminary examination. By then, your Office had already written to Mr Byrne by letter dated 11 May 2005, in which it had expressed the view that the Scheme may be "seriously  deficient  and flawed". As I understand it, the complaint was still at preliminary examination stage when that communication issued from your Office to Mr Byrne. In my view, it was wholly inappropriate and premature for your Office to so describe the Scheme and to communicate same to the complainant at that time, without a full examination having first been conducted and completed by your Office and submissions received and heard from all parties.

Moreover, your Office's description of the Scheme in those terms, at a time when, as I understand it, it had not yet completed its preliminary examination or sought the submissions of all parties (including myself) represented, in my view, a pre-judgment by your Office of the complaint in the absence of a full and fair examination and investigation.

As you are aware, the view of your Office on the Scheme (as set out in your letter to Mr Byrne dated 11 May 2005) was, through unknown means, disclosed to the media. There followed a highly charged political and media campaign, which sought to use your Office's description of the Scheme as a means to undermine my character and good name and which led to a series of articles and allegations about me, which were untrue and inaccurate. I requested your Office to correct or clarify those statements, but to no avail. Whilst I accept that your Office was not directly responsible for the media publications that followed, the fact remains that your Office's premature publication of its view to the complainant and the  language employed by your Office in so doing, directly resulted in the adverse media campaign that followed against me. In fact, prior to your Office's publication, I was not aware (nor was I made aware by your Office) that my dealings with the Scheme were under examination and could lead to findings or criticisms adverse to me.

It is beyond doubt that the publication of your Office's view gave rise to unfounded allegations against me and my character with serious adverse effects.  In the circumstances, I was (and remain) greatly surprised that before reaching its view and completing its preliminary examination, your Office failed to contact me to seek my opinion or recollection of events leading up to the establishment of the Scheme and  that no invitation was extended to me by your Office to make submissions or to be heard on the matter.

Your Office's failure to inform me of the nature of the complaint and the scope of your Office's examination denied me the opportunity to make representations in respect thereof. I was not afforded the opportunity to make submissions on the complaint in circumstances where the preliminary examination of that complaint could (and did) have significant adverse consequences for me (including the considerable damage done to my good name and character as a result of your office's description, and preliminary examination, of the Scheme).

I refer to the provisions of the Ombudsman Act, 1980 (Section 6(6)) wherein it is stated, that you shall not make a finding or criticism adverse to a person in a statement, recommendation or report without having afforded to the person an opportunity to consider the finding or criticism and to make representations in relation to it to you. Regrettably, it is a matter of fact that your Office's description of the Scheme has been interpreted by a number of parties (including sections of the media, as borne out coverage generated) as a criticism adverse to me - yet I was given no opportunity to make representations to your Office in advance of same.

In addition, as you no doubt know, there is a requirement under the Ombudsman Act, 1980 for an investigation to be conducted "otherwise than in public". The legislative requirement for an investigation to be conducted  in private is no doubt to protect the rights of all parties to a fair hearing. The publication of your Office's preliminary view of the Scheme (and its failure to seek and obtain my submissions in advance) has, in my view, deprived me of this right and prejudiced my entitlement to a fair hearing.

Until I was contacted by your Office in July 2007 and requested to attend for interview, I was not furnished by your Office with a copy of the complaint made by the Byrne family nor was I informed by your Office that the complaint may give rise to adverse findings against me (as former Minister) as opposed to the Department. This is particularly surprisingly (and, moreover, disappointing), where your Office's examination of the complaint appears to have resulted in an adverse finding sufficient  to warrant a formal investigation, which has in turn resulted in your draft report, with its adverse findings against me.

It is also notable that your Office's first notification to me in July 2007 took place in excess of 6 years after the Scheme was originally designed and implemented;  41/2 years after the Byrne family's application was refused and over 21/2 years after your Office first received the complaint. No satisfactory explanation has been offered for this delay, which has only led to prejudice me further.

Investigation

Following  its  preliminary  examination, your Office decided to proceed to formal investigation of the complaint. As I understand  it, a Statement of Complaint issued to the Department, but again I did not receive same at the time.

During the investigative process, your Office contacted me for the first time in July 2007 when it invited me to attend for interview. It was at that time that your Office first furnished me a Statement of Complaint (as of the date hereof, I have not received a copy of the original complaint of the Byrne family). I immediately made myself available and met with your officials on 30 July  2007. As acknowledged by you in your draft report, I co-operated fully with your investigation into this matter.

Draft Report

I note from your draft report that you accept the Byrne family did not meet at least two of the eligibility conditions of the Scheme. Your draft report then goes on to consider the design and implementation of the Scheme. As then Minister, I made a policy decision that a Lost at Sea Scheme should be drawn up. I was aware of the previous policy and the Department's general opposition to such a scheme, as well as the reason for its opposition. Having considered all matters, I decided to change the policy and to introduce a scheme to cater for genuine cases. I recall discussions between my Department officials and myself at the time regarding the pros and cons of introducing such a scheme. If  introduced, I was aware that the Department wanted to restrict the qualifying criteria of any such scheme so as to restrict the number of cases that would qualify, as they feared a floodgates of successful applicants. The only restriction however that I wanted was for the qualifying criteria of any scheme to be restricted to genuine cases (and drafted so that it would not be open to abuse by spurious applicants/claims). I did not wish to restrict it for any other reason.

Your draft report appears to place emphasis on my note to "ring fence six to eight genuine cases". My use of the word "ring fence" was intended to convey, and should be interpreted as, my wish to "ring fence" (in the sense of "restrict") the scope of any scheme to only genuine bona fide cases. Further, my use of the word "ring fence" was in response to a note from Ms Sarah White, Assistant Secretary, of 11 November 2000 in which she expressed concern regarding where any such scheme/claims thereunder would stop? Whilst I was aware of my officials' concerns that a scheme could open up a floodgate of applicants and their wish to limit the numbers, this did not unduly concern me. My overriding concern (and my intention in changing the policy) was to introduce a scheme which would allow genuine cases to be covered - regardless of how many cases that might mean.

My reference to "six to eight" was simply a reiteration of what I had been told at the time by my officials - they were indicative numbers only - no more than that - and had no influence on my input into the formulation of the eligibility criteria of the Scheme.

I believe that it is also important for you to appreciate the timing/date context in which these communications took place. These discussions regarding "ring fencing" took place at a time when a decision had not yet been made on whether the policy should be changed to introduce a scheme. They were part of a discursive exchange with my Department regarding the pros and cons of changing the policy and introducing such a scheme before I had yet decided whether a change in policy should happen - demonstrating evidence of my full, proper and careful consideration of all matters before deciding on a policy change. Accordingly, to suggest that I might have wished to "ring fence" and allow only "6 to 8" cases to qualify under a scheme at a time when I had not yet decided on whether a scheme should be introduced at all, beggars belief and misrepresents my position.

The purported findings in your draft report which seek to detail my alleged involvement or interest in the number of cases are simply incorrect. It is also incorrect for your draft report to state that from my interview with your Office and from documentation that I was anxious to "ring fence the cases of MFV Joan Patricia, WFV Spes Nova and Kris an Avel". I was anxious to "ring fence" genuine cases - I was not concerned if that meant 50 cases (as mentioned at interview) of "6 to 8". Prior to deciding upon a change in policy, I had looked at the case of the MFV Joan Patricia and WFV Spes Nova (It is important to remember that this was one case - these two boats sank in the same accident) to assist me in determining whether a change in policy was merited.

I note that your draft report states that there was evidence of "hands on" activity by me and my officials in designing the scheme. In support thereof, your draft report then goes on to accept that I, as then Minister, quite properly included some detailed amendments to the scheme with the express purpose of restricting the scope of it (to cover genuine cases only; not to restrict the number of claims) and protecting it from being abused and that I worked closely with my then Department officials in defining the objectives and developing the eligibility criteria of the Scheme.

Given the serious adverse consequences for me that followed your Office's description of the Scheme as "seriously deficient and flawed' and the interpretation that was placed on that language, lest a misinterpretation be placed on the word  "hands-on" (so as to import some "improper" involvement by me in the design of Scheme) I must ask that the word "hands-on" be substituted by some other similar word(s) in your report, with such substituted  wording not leaving open an alternative secondary (and negative) interpretation being placed upon it (e.g. "active participation").

Once I had decided upon the policy of introducing the Scheme and had agreed with my then officials the terms of reference and eligibility criteria of the Scheme, then the implementation and administration of the Scheme became that of my Department. Contrary to what is stated in your draft report, I was not "deeply involved in advertising and publishing" the Scheme. It is not for the Minister to advertise the Scheme, but rather for the civil servants within the Department to arrange for same.

Whilst I had no involvement in the advertising of the Scheme, I am aware that the only precedent at the time that existed in the Department for advertising schemes was via the trade papers and the Producers Organisations. The advertisement of the Scheme was conducted in the same manner as the advertisements of other schemes and was, in my view, entirely reasonable and satisfactory.

I am disappointed and do not accept the purported findings in your draft report.

1.  I note that whilst I, as former Minister, was

(a) not informed by your Office of its receipt of the Byrne complaint;

(b) not invited to make submissions or representations thereon in advance of your Office's view that the Scheme may be "seriously deficient and flawed" ;

(c) not given an opportunity to make submissions during the preliminary examination;

(d) not furnished with a copy of the Statement of Complaint until July 2007;

(e) prejudiced by the media campaign that followed your Office's statement  to Mr Byrne that the Scheme was "seriously deficient and flawed";

and in circumstances where in your Office's handling of the complaint, it entered into correspondence with, and invited submissions from, the Department only (and not me, as former Minister), your draft report nevertheless provides that your findings  "apply to both the Minister and his officials". [own emphasis added]

To expressly apply your purported findings to me in the foregoing circumstances  is unfair and inequitable. Furthermore, the Public Service Management Act, 1997 provides a distinction between the responsibilities of the Secretary General of a Department and the Minister and in particular, provides that the Secretary General of the Department "shall, subject to the determination of matters of policy by the Minister of the Government,....have the authority, responsibility and accountability for carrying out"a number of duties, including "implementing Government policies"  [own emphasis added].

I have at all times acknowledged and accepted that the introduction of the Scheme was a policy decision of mine as then Minister, but its implementation and administration was carried out by my officials within the Department. In the circumstances, I request that the draft report be amended so that any findings made by you are made applicable to the Department and not to the Minister.

2.  I cannot and do not accept your finding that the way the Scheme was designed was contrary to fair and sound administration. Having decided upon a policy change to introduce the Scheme, appropriate research was carried out by the Department on the proposed Terms of Reference and eligibility criteria. Indeed, because of the difference of opinion between me (as then Minister) and the Department in relation to the introduction of the proposed scheme, a robust discussion on the Terms of Reference and eligibility criteria (in which the pros and cons of the proposed Scheme were considered in advance of its introduction) took place. Having regard to same, the Scheme as adopted struck a fair balance between my wish to allow genuine cases failing within its criteria to be covered by the Scheme and the Department's wish to restrict same.

Your draft report appears to take issue with the finite closing date of the Scheme and the absence of discretion to extend it. I had no involvement in the closing date or in the administration of the Scheme once its terms had been set, I was not involved in the vetting or assessment of applications received.

I was not the Minister at the date of receipt of the Byrne family's application. I  note that the application of the Byrne family was not received until January 2003 - over 12 months after the closing date of 31 December 2001. Whilst I do not feel it is appropriate for me to comment  further, I do not see how discretion could be exercised to extend a finite closing date for a period in excess of 12  months beyond its stated closing date. In my experience in five different Departments over 15 years as Minister and Minster for State there was a closing date for applications in all schemes in which I was involved, which of necessity had to be finite. The purported finding in your draft report that the Scheme's closing date "left no scope for the exercise of discretion in the event of further deserving cases coming to light" cannot be accepted as it would place a disproportionate burden on the  Department.

3.  1 do not accept that the Scheme was not advertised adequately. As you correctly point out, the Scheme was aimed at a specific class of  individuals and so advertisement in the trade papers and through the representative organisations of that specific class was considered sufficient. As set out above, the sole precedent that existed in the Department for advertising schemes was via the trade papers and the Producers Organisations. It is unreasonable to expect the Department to write to every potential applicant to notify him/her of the existence of the Scheme and would give rise to a disproportional administrative burden. Would there be an onus on the Department to track down potential applicants where they were no longer at their last known address on file?  Furthermore, as  set out above, as the then Minister I was not involved in the advertising or publication of the Scheme. Once adopted, implementation of the Scheme (including its advertisement) was a matter for the Department.

4.  I cannot accept or deny your purported finding in your draft report that there were poor record-keeping practices leading up to the sign-off of the Scheme in circumstances where I have not had the opportunity to review and consider the files/records which you/your office has reviewed in advance of reaching this finding. From my experience, it is however the practice, policy and  responsibility of the Department to maintain adequate records.

5.  I entirely reject your purported finding that the way the Scheme was designed and advertised amounted to  "maladministration" leading to an adverse effect on the Byrne family. Indeed, even if one were to accept your remaining purported findings (which I do not), this would not justify a finding  of  "maladministration" with the serious prejudicial connotations which that term gives rise to. There was (and  is) no question of incompetence impropriety or dishonesty in the design or advertisement of the Scheme and to describe it as  "maladministration" misrepresents and mischaracterises any shortcomings which your Office might find with the scheme (which are denied). In addition, I refer to the provisions of the Ombudsman Act, 1980 and, in  particular, the "actions" as set out in Section 4(2)(b)(i)-(vii). Any finding of the Ombudsman in respect of an action must fall within that legislative provision. There is no legislative provision for a finding of "maladministration".  The word  "maladministration" must be removed from your report and the purported findings therein.

I would welcome the opportunity to meet with you to discuss the foregoing and to address any other issues that you may have. To that end, I will make myself available, at any mutually convenient time to meet with you and I look forward to hearing from you shortly in that respect.

Finally, please note that the foregoing issues are my submissions on your report  at  this time, but may not be exhaustive. I fully reserve my rights in connection with same.

 

Yours sincerely

FRANK FAHEY TD

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