ANALYSIS:Emily O'Reilly says that the Dáil has been sidelined and fails to hold executive to account, writes HARRY McGEE
THE LOST at Sea scheme was set up in 2001 by Frank Fahey, who was then minister for the marine, against official advice in the department.
The scheme gave owners of fishing boats lost at sea between 1980 and 1989 the opportunity to apply for grant aid for replacement capacity. The scheme was controversial in that two Aran fishermen, who were constituents of Mr Fahey in Galway West, benefited from 75 per cent of the €2.8 million of quotas that were awarded.
The office of Ombudsman Emily O’Reilly became involved after the family of Donegal fisherman Francis Byrne complained. Mr Byrne, his 16-year- old son and three crew were lost off northwest Donegal in October 1981. However, their application was rejected on the grounds that they had missed the deadline.
In her report, Ms O’Reilly criticises several aspects of the scheme, including the advertising process, which she found had not been extensive enough. She recommended compensation of almost €250,000 for the Byrnes.
However, in a highly unusual turn of events, the Department of Agriculture and Fisheries rejected her report and her compensation recommendation. In the 26 years of existence of the Ombudsman’s office, a rejection of this kind has only happened once before.
A report by Ms O’Reilly’s predecessor Kevin Murphy on a dispute about tax refunds had three of its five recommendations rejected by the Revenue Commissioners. The matter was eventually referred to the Oireachtas finance committee in 2003. It ruled on the report to the satisfaction of all parties.
Faced with a similar rejection last year, Ms O’Reilly decided to follow this route. Last December, she laid the report before the Oireachtas. In February the Government agreed to allow statements in the Dáil and Seanad.
In anticipation of the debate, the Ombudsman released a statement saying that the Dáil and Seanad had the task of deciding who was right and wrong in the dispute.
Following statements in the Dáil, the opposition attempted to refer it to the agriculture committee (as happened with the tax refund report seven years earlier). The Dáil rejected the motion by 68 to 63. A fortnight later, the Seanad similarly rejected the motion to refer it to committee, with Government senators voting according to the whip.
Tony Killeen, the Minister for State forAgriculture, stated during the debate that he rejected the report’s recommendation that there was a “basis for payment in the amount proposed or any amount”. He also dismissed Ms O’Reilly’s finding that the actions were “contrary to fair or sound administration”. On March 3rd, opposition TDs and Senators tried to raise the matter at the agriculture committee but this was also rejected following a vote. And there the matter rests.
The nub of the Ombudsman’s argument is that her office was based on the Scandinavian model, where she protects the interests of ordinary people from any excess or unfairness on the part of Government.
“In this model, the status of the Ombudsman is a key factor; a person of integrity and competence,” she told the IPA conference yesterday.
Ms O’Reilly also pointed out that the recommendations were not legally binding, but she did not present this as a problem. The reports “come with a very strong persuasive dimension”, so much so that they are rarely rejected.
Her key argument was this: “It is a measure of the status of Ombudsman that it is unnecessary to make her recommendations legally binding . . . otherwise a government will be seen acting as a judge in its own case.”
In very pointed criticism of the Government and the Oireachtas, she continues: “Unfortunately the model of government set out in the Irish Constitution has become more of a fiction than a reality. In practice, the Dáil is controlled very firmly by the Government parties.
“For all practical purposes, parliament in Ireland has been sidelined and is no longer in a position to hold the executive to account.” She quotes a British colleague who told a select committee in the House of Commons: “Unless the Ombudsman has gone off her trolley, let us leave her findings disturbed.”
Ms O’Reilly asserts that the Government has been effectively a judge in its own case. “The saga began with maladministration and has ended, to date at least, with poor governance,” she said.