Annex B: Chronology of main events 2001
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16/01/01 At a meeting to discuss the financial implications of the scheme RPS reported that very few of the trawlermen had between-voyage breaks where they worked outside the industry, such as the one who was in prison. It was becoming very difficult to find out which ships had actually sailed to Icelandic waters. The BFA had originally provided a list of 26 ships that had sailed from Grimsby to Icelandic waters. However, RPS had received a list of over 120 ships supposed to have sailed to Icelandic waters but there was nothing to substantiate that. The BFA had said identification of ships would be easy as they had to be licensed but it transpired a licence was unnecessary and approaches to MAFF had not produced anything of substance. RPS pointed out that according to maps, parts of the Faroes’ territorial waters were actually within 200 miles of Iceland which meant that those who had fished the Faroes would also be eligible. A submission would be put to the Minister in which, among other matters, he could be asked to write to his opposite number in MAFF to see if that department could produce a list of vessels that sailed to Iceland. A similar question could be put to the then Department for the Environment, Transport and the Regions. RPS said they had also discussed the position of those who were working in the dry dock or other such activities with a policy official. It was confirmed the claims were valid unless the trawlerman concerned was actually working outside the industry.
29/01/01 At a meeting policy officials and RPS representatives discussed those people who had started work on Icelandic trawlers and had then gone on to do middle-water work, returning to Icelandic water trawling at the end of the period. It was agreed that continuity would be broken in those circumstances; claimants should only be paid for their last period of Icelandic water employment. It was also confirmed that breaks of less than thirteen weeks, for any reason at all, were to be discounted.
31/01/01 The discussion among policy officials as to how they applied the compensation rules in practice continued by email. They had a list, at that time yet to be finalised, of vessels that had been to Iceland. If a former trawlerman had worked on vessels on that list and there was not any break of more than twelve weeks then the claimant was entitled to £1,000 per year subject to a limit of £20,000 on individual payments. If the trawlerman worked on a vessel not on that list continuity was broken so that the start of the period used to calculate compensation was determined by the start date of the trip on a listed vessel which immediately followed the voyage on an unlisted vessel. If the period between voyages on a listed vessel were all twelve weeks or less it did not matter what the claimant did in the break periods. Whatever he did it did not break continuity. If any period between voyages on a listed vessel was more than twelve weeks it broke continuity if there was good evidence that the claimant did any work whatsoever, no matter how short the duration, during that period. If the claimant did not do any work during that period it did not break continuity no matter how long the period.
However, if that were correct they might need to discuss a situation in which a claimant went to Australia for five years. Service on a vessel not on the list did not break continuity if it was done during a break of less then twelve weeks between service on vessels that were on the list. The officials agreed that, under the scheme rules, between-voyage breaks of whatever length were disregarded if no work was done during them. The BFA had argued, and Ministers agreed, that it would be unfair if service was broken by periods of illness, injury, ‘walkabout’, training, national service etc. They had toyed at one point with the idea of drawing up a list of special circumstances that would not break continuity. In the end they decided that that would pose so many operational difficulties – in that in each case the claimant would have had to have been asked to provide documentary evidence of the reason for a particular break – as in practice evidence might not be realistically available to him after so many years. Processing staff would have to check and verify the evidence and so it seemed that the only sensible solution was to disregard any break apart from one of more than twelve weeks in which the claimant did other paid work. That could be easily checked from National Insurance contribution records. It was noted that RPS thought that was not as straightforward as was first believed. Officials agreed that it could look exceptionally generous in some cases if, for example, someone had gone off to Australia for five years and not done any work in that period. But those would be very few and far between. As a rule of thumb it seemed reasonable to suppose that if someone did no work during a between voyage break it was generally for reasons beyond their control and it was fair to deem them to have been still dependent on the Icelandic water industry for their livelihood.
01/02/01 Policy officials compiled and discussed a list of frequently asked questions and the answers in order to clarify how certain terms in the scheme rules were intended to be interpreted. One question was ‘What did a continuous period of work mean?’. The answer said that a continuous period of work meant any period during which a claimant had ‘no relevant break’ of more than twelve weeks between the end of one voyage on a vessel on the DTI list and the start of another voyage on the DTI list. A ‘relevant break’ was a break during which other work, of whatever duration and of whatever kind, was done. Other work included other fishing work on a vessel not on the DTI list, in effect, a vessel that never went to Icelandic waters. If no other work was done in the break, that break was not a ‘relevant break’ and would be counted as part of the period of continuous service, regardless how long it lasted. That applied regardless of whether the break was due to illness, injury, ‘walkabout’, unemployment, national service, training, imprisonment or any other reason. Unless a person did other work during the break, he was deemed to have remained dependent on the Icelandic water fishing industry for his livelihood. Breaks of less than twelve weeks between the end of one voyage on a vessel on the DTI list and the start of another voyage on a vessel on that list were counted as part of the continuous period of service, regardless how many such breaks there were and what was done during them.
14/02/01 There was a further meeting between policy officials and RPS representatives to discuss the financial implications of the scheme. The record of the meeting shows that part of the discussion focused on the compilation of the list of vessels that had sailed to Iceland. RPS officials said they were confident they could establish a list of ships that went to Iceland but not what they did after 1979. If a trawlerman left the industry after 1979 he would only be eligible under the scheme if the relevant boat had been converted for types of fishing work other than in Icelandic waters. However, RPS officials said it was proving difficult to ascertain whether a boat had been converted. It would also be difficult for the claimant trawlerman to provide proof of conversion. They said Ministers should be warned about the problem. It was agreed that a submission should be sent to the Secretary of State linking the problem to the possible increase in the costs of the scheme. DTI officials said that the BFA had not been quite so frank with them as they might have been about what happened to the deep-sea trawling industry after 1979. The meeting noted that the trade publication ‘Fishing News’ had a list of trawlers returning to port and where they had been. The meeting agreed that officials would check the publication’s archives. The meeting noted that a number of trawlermen were unhappy as they had already had their claims rejected due to the difficulties in identifying whether a particular vessel had sailed to Iceland, and there were likely to be stories about it soon in the local press for the port areas. That might be a convenient ‘peg’ on which to hang the submission to the Minister. The notes of the meeting recorded that officials needed to get Ministers ‘on their side’ and to agree to all the rules.
The notes of the meeting record that officials would have to advise Ministers of the possible overspend if they simply paid everyone who fished in Iceland, no matter what. They would also have to advise that the Finance, Resource and Management (FRM) section of DTI would not countenance them just paying out without any limits. They could also add that the scheme was set up in a hurry, at the insistence of Ministers, and that they were still having discussions with the BFA right up until the days before the scheme opened. They also knew more about the trawler industry than they did at the beginning and that was why some of the problems had arisen. RPS suggested that it might be worth looking at the notes of the meeting with the BFA before the scheme opened to see what had been decided. A policy official made it clear that nothing had been agreed at that meeting, they had simply listened to what they had to say, without making any promises at all. They discussed whether a copy of the guidance should go to the BFA. While it was agreed they should have a copy of the final document officials should take care to ensure they did not give the impression that they were revising the rules, but were simply interpreting them to ensure clarity. There should not be any consultation with them; the new guidance was simply to inform them.
27/02/01 The secretary of the Grimsby BFA wrote to a policy official. In that letter she described as appalling the decision to refuse compensation to a former trawlerman from Grimsby because he took work on a trawler sailing out of Australia rather than go on the benefit system.
20/03/01 The secretary of the Aberdeen BFA emailed a policy official. He said he was disappointed to see serious faults and discrepancies in the scheme. It was clear that situation had developed as a direct consequence of Ministers receiving and responding to invalid information from unqualified sources in the form of advice, instructions and personal opinions from deckhands unqualified to comment on industrial relations or maritime matters of such importance. There was no shortage of bona fide advice from experienced and qualified marine personnel fully prepared to contribute to the debate. A policy official replied the same day. He said when the scheme rules were drawn up the previous year Ministers and officials took careful account of advice and information from a wide range of different sources, including experienced and qualified marine personnel.
17/04/01 In the course of an exchange of emails between policy officials concerning the definition of an Icelandic water trawlerman, one official said that they could be quite clear about how they at official level originally intended the scheme rules to be interpreted. The definition of an Icelandic water trawlerman was quite carefully constructed to meet the demands of the BFA who had consistently argued that the closure of Icelandic waters dealt a fatal blow to the viability of the whole distant water industry. That was not just intended for those vessels that happened to have trawled in Icelandic waters in the period just prior to the closure, but also to address the concerns that both they and the Treasury had to see a set of rules that targeted the payments as effectively as possible and allowed for claims to be properly validated. They had had numerous discussions with the Minister of State and had exchanged emails with his office about various aspects of the scheme rules before they were finalised. He was sure that the definition of an Icelandic trawlerman must have come up at some point, although he was doubtful whether anything specific would have been recorded in writing. The rules themselves had been cleared with the Secretary of State who had approved them having been assured by the Minister of State that the BFA were content with them, which the official believed they had been at the time. However, he did not think they had ever gone into the level of detail as they were then doing.
23/04/01 Policy officials discussed a draft of operational rules for the scheme to assist RPS. In attempting to clarify who would qualify as an Icelandic trawlerman the draft said that shore-based work on an Icelandic trawler, for example, repairing the boat or its nets, did not count as work as an Icelandic trawlerman. In clarifying the definition of a ‘relevant break’ the draft noted that it would frequently be a key factor in determining the amount of compensation. A relevant break was one which was over twelve weeks during which the claimant was in paid employment other than as an Icelandic water trawlerman. Breaks between voyages, defined as breaks between voyages on vessels on the DTI list, of twelve weeks or less could be discounted. It did not matter how many such breaks there were or what claimants did in such breaks. Breaks of more than twelve weeks were discounted only if they were satisfied that the claimant did no paid work for any employer during any part of the break period. Work on a vessel not on the DTI list was not a relevant break if it took place in a period of twelve weeks or less between voyages on vessels that were on the DTI list. The draft provided some examples of what did and did not break continuity. Time spent in prison did not break continuity of service as the prisoner was not doing paid work for an employer, but work on repairs to an Icelandic boat in harbour did break continuity of service as it was paid work for an employer. Fulfilling duties in the armed forces, in the Royal Naval Reserve or National Service did not break continuity as it was not paid employment for an employer.
The draft operational rules, in one example, explained that a man had a period exceeding twelve weeks between voyages on an Icelandic water trawler but part of the time he was employed working on repairs to the vessel in harbour. If that period could be deducted the break would be under twelve weeks and so would not be a relevant break. The work in harbour was paid work for an employer and did not count as working as an Icelandic trawlerman. The break was thus a relevant break and the period of claim ran from the end of that break. Another example concerned a man who had a long break because he was in prison. That did not break continuity because he had not done paid work for an employer. Time in prison counted towards time working as an Icelandic trawlerman. In taking on board comments on the draft made by colleagues the author of the draft pointed out that a lot of the questions asked by RPS reduced down to ‘did they have to apply the rules even in difficult cases?’. The draft aimed at telling them that the answer was ‘Yes’.
A policy official saw an article in the Hull Daily Mail in which the Minster of State was reported to have said in relation to the scheme that the system had to be more flexible. Other policy officials wondered whether the Minister had really said that. The Minister’s office then confirmed by email that the Minister had informed them that he had said that.
19/06/01 A policy official sent a submission to the new Minister of State. It said that the prospect of longer timescales and also the way in which the scheme rules impacted in practice had given rise to concerns in the local media covering the fishing ports and their MPs, in particular the referring Member and the Member for Hull West and Hessle. Those concerns centred on three main points. Firstly, compensation payments were not going through fast enough; second, the referring Member was concerned that payments were mainly going to Hull and few to Grimsby; and, finally, a contention that the rules of the scheme acted to exclude some former trawlermen who deserved compensation, in particular those who fished after 1979.
17/07/01 The referring Member sent a fax to the new Secretary of State that concerned the problems that had arisen in the administration of the compensation scheme. Among the many points he made he said there was a major problem over breaks in service. Those could arise from a whole series of causes – engineering or repair work on the vessel, Lloyd’s survey lay-ups, illness, injury, family illness and holidays all needed to be allowed for. It would be unreasonable not to do so. Yet there was another problem in Grimsby which should also be accepted as not producing breaks in service. When an owner had no vessels sailing to Iceland, where a vessel was overcrewed, or where there was a disciplinary offence, fishermen were required to work on North Sea or middle water vessels, sometimes run by the same owner, but often on just any vessel. They had no choice. If they refused they lost their jobs. The Fishermen’s Employment Office on the dock required them to take any vessel available or lose their benefit. That was a basic part of the conditions of employment for distant water trawlermen. Fail to observe it and the trawlerman was out of a job. It could not, therefore, be regarded as a break or used as an excuse to shorten service or disqualify. He also said that all kinds of anomalies had arisen from decisions. RPS and the Government had to examine payments already made and compare them with cases refused so as to ensure consistency. Some trawlermen had been refused for being on vessels which had since been added to the list. They were not told of that change. Some had been paid whose vessels were not on the list while others on the same vessels had not been paid. Some had been paid who never went near Iceland. Individuals who worked after 1979 in fishing were paid up to 19 February 2001. Others in the same position were then being held back. Ensuring consistency was a big job. Yet it was the only safeguard against complaints of maladministration. The Member concluded that Ministers should be aware that the fishing bush telegraph carried information about every inconsistency far and wide. Unless DTI could take clear, consistent, decisions and ensure prompt and efficient administration it would create a huge sense of injustice and render itself very vulnerable to action on maladministration or judicial review.
Policy officials sent a briefing paper to the Minister and Secretary of State that also attached background papers. The briefing paper also dealt with some frequently raised issues among which were breaks in service. It pointed out that MPs had been asking for certain breaks in service to be discounted but that was not possible under the scheme rules, which had anyway been made significantly more generous in that regard than originally intended before the scheme opened. The BFA had raised some concerns about the issue of breaks in service at a meeting with officials before the scheme opened. They had argued that the eligibility criteria should not exclude former trawlermen who had periods of work on vessels that trawled in Icelandic waters at certain times during the year but in other waters at other times (for example, during the winter months, when the exceptionally harsh weather conditions in Icelandic waters prevented some vessels from going there). In response to that the scheme rules were amended to make clear that all former trawlermen who had continuous periods of work on vessels which made voyages to Icelandic waters would be potentially eligible, even if the voyages those vessels made were not exclusively to Icelandic waters. Service on vessels that never trawled in Icelandic waters, however, did not count under the scheme (unless done during a break of less than twelve weeks between voyages on qualifying vessels). Some Grimsby members of the BFA appeared to suggest that they would like eligibility extended to all distant water trawlermen or even to middle water trawlermen as well, regardless whether or not the vessels on which they worked ever fished in Icelandic waters but that would have been outside the parameters of the scheme as agreed with the Treasury.
The briefing paper noted that the BFA had also been concerned about between-voyage gaps of more than twelve weeks breaking continuity both for the purposes of the two year qualifying period and for the purposes of calculating the amount of payment due. They argued for ‘special exceptions’ that would justify a longer between-voyage gap being disregarded. It had finally been agreed by the then Secretary of State that all gaps, of whatever duration, should be disregarded, unless the former trawlerman took other work outside the industry, in which case the twelve week rule would stand. Therefore under the scheme rules, continuity was broken only by any between-voyage gap of more than twelve weeks during which any other work (including shore work or other fishing on non-Icelandic water vessels) was done. All other gaps counted as part of the period of continuous service as an Icelandic water trawlerman, regardless of what was done during them, which could include periods of sickness, injury, ‘walkabout’, training, national service or even terms in prison. However, one effect of that had been that some former trawlerman who had fifteen or twenty years’ service on Icelandic water vessels and then did some shore work or fished on non-Icelandic water vessels for a time before returning to the industry found that they did not qualify for a payment, or qualified for only a reduced amount, as their work outside the industry broke their continuity for the purposes of the scheme rules. MPs had identified a number of such cases and had asked that such breaks be discounted. The paper also discussed the DTI’s list of vessels. Officials accepted that when the scheme opened their list of Icelandic water vessels had not been wholly accurate. There had been insufficient time available to carry out the detailed research required. That might have led to errors in both directions but they would not reclaim payments, even if later information suggested they should not have been made. Since then they had made strenuous efforts and devoted considerable resources to ensure the accuracy of the list by checking reliable published sources.
18/07/01 Officials also provided further information as to what issues the individual port MPs might raise at a meeting with the MPs in a submission to the Secretary of State. The referring Member had made a number of points, among which were breaks in service. Officials believed that the rules relating to them were simply not understood. The BFA and MPs had stipulated that breaks in service should break continuity but that was later relaxed at their request. Only work outside the industry or work on non-Icelandic water vessels broke continuity – not periods of sickness, injury, spells in prison etc. Officials had been more or less asked to ignore certain breaks in service where there was a ‘deserving case’. However, if they ‘bent’ the rules for one, then there would be no justification for not doing the same for any other person. No one had denied that there were some very ‘deserving’ people who had fallen just the wrong side of the rules. The Member for Hull West and Hessle had also raised the issue of breaks in service and again officials believed that the rules had not been understood. It was just unfortunate that some people took shore work – for very valid reasons – but it still broke continuity under the scheme rules. He had also referred to hardship cases and quoted many cases of widows, people in severe financial difficulties and those who were terminally ill. They were paying those who were ill as quickly as possible but could not simply pay those who ‘needed the money’ regardless of the scheme rules. If there had been no compensation scheme then they would have had the same problem. The Member for Hull West and Hessle claimed that the rules had been changed and that that had happened while he was away on holiday. That was not true; nothing had changed since the scheme had first been set up. Officials pointed out, however, that concepts of what the rules meant in practice had changed as individuals who were expecting to receive a payment had been refused because they had fallen the wrong side of the line.
At the meeting with the MPs, the Secretary of State said the Government had consulted the BFA when they established the scheme rules and had carefully considered their views. She realised, however, that there were certain cases that did not fall within the rules. The MPs thus had an opportunity to tell her and the Minister of State about their concerns. The Member for Cleethorpes said that there were several issues, one of which was how breaks in service were defined. There had been a wrong interpretation of what the scheme was supposed to do. The referring Member said that he had faxed his concerns to the Secretary of State the previous day. Some vessels had been forced to fish in the North Sea and that should not be counted as a break in service. He required clarity on some aspects of the scheme. The Members for Aberdeen Central and Fleetwood asked for consistency in the application of the rules and the Member for Hull West and Hessle said that speed was not the main thing but accuracy.
Following the meeting with port MPs on 18 July 2001, the Secretary of State wanted a further meeting with them to cover those points for which there had been insufficient time that day. She also sent an email to policy officials. She said ‘I’m quite worried by what I heard this morning. There is clearly a gulf between the expectation of the scheme – compensation for all trawlermen who lost their livelihood because of the ‘Cod Wars’ (which seemed to mean all fishermen who had ever fished in Icelandic waters) – and the actual scheme rules. But there is also the issue of whether we are actually being consistent in our treatment of trawlermen under the scheme rules’. She and the Minister of State needed to see an analysis of the different groups that included trawlermen who left the industry altogether – for unemployment; or for non-fishing jobs; trawlermen who left Icelandic fishing and went into other fishing – a) on non-Icelandic vessels; b) on converted ex-Icelandic vessels; c) on non-converted Icelandic vessels. The Secretary of State wanted to understand how each group (and there could be other categories) was treated under DTI’s view of the scheme rules and why. She said ‘I think it would also be helpful if officials were to meet the port MPs again, to pursue other points of detail, so that the MPs can let us have a summary note before Nigel (the Minister of State) and I try to resolve the problem. I must say that from what I’ve heard this morning, I think we will have to try very hard indeed to find some more money. A nightmare, but so is the alternative. It might also help to have chapter and verse on some of the cases where the MPs were claiming inconsistent treatment – with officials’ view on whether there are different circumstances to explain different outcomes, or whether earlier cases may have been wrongly decided’.
30/07/01 The Secretary of State’s office emailed policy officials and thanked them for the note of the meeting with the port MPs of 24 July 2001. In consequence the Secretary of State required a full submission on how they could move forward. She was aware that any further investigation of the options would have resource implications so it would be helpful if the submission could include an indication of the cost of the various options and how the money could be found.
31/07/01 Policy officials sent a submission to the Secretary and Minister of State on the way forward. The submission discussed the cost of various rule changes that had been suggested. At paragraph 8 the submission discussed the issue of whether voyages on vessels not on the list of Icelandic water trawlers should not break continuity but should count towards it. If that suggested change were adopted it would go a long way to severing the link between the scheme and the ‘Cod Wars’ settlement. For that reason if Ministers were attracted to that option it would need to be put to the accounting officer. In effect so long as a man made a specified number of voyages on Icelandic water trawlers his entire fishing history would often count towards the calculation of compensation. In practice such a change would more or less have to be combined with abandoning the 1979 cut-off. Otherwise all those who continued any sort of fishing after 1979 would be disqualified. Port MPs would then be even less happy than at present. The financial cost would almost certainly be enormous. It could as much as double the cost of the scheme. As to the point about whether voyages made from overseas ports to which trawlermen were posted by their employers should not break continuity, officials believed the number of such cases to be in the order of 100. If that were correct the financial implications would not be great but it would represent a further major step away from the objective of the scheme and would make it harder to justify not making the more significant change of counting service on all non Icelandic vessels.
06/08/01 The Secretary of State’s office emailed policy officials and said she had seen the submission of 31 July and the comments of the Minister of State of 2 August 2001 (which were not on file and which we have not therefore seen). The Secretary of State did not yet want to make a decision but preferred to discuss further with the Minister of State and officials. She had detailed and general comments. As to whether voyages on vessels not on the list of Icelandic water trawlers should not break continuity but should count towards it she commented that that approach looked untenable. More generally she commented that there was a real mismatch between expectations and what the scheme actually delivered – as well as some ambiguities in the rules of the scheme. She would therefore like to seek advice from counsel on the risks of judicial review.
31/08/01 The legal section sent further instructions to counsel to advise in conference on 4 September. They told counsel that five rule changes were ‘on the table’ in isolation or in combination. Two of those changes were:
- Work on vessels which were not Icelandic water vessels should not count towards the qualifying period for compensation but did not break continuity.
- Work on vessels fishing out of foreign ports should not count towards the qualifying period for compensation but did not break continuity so long as their employer had posted men to such ports.
counsel was asked to advise in conference as to the risk of successful legal challenge to the compensation scheme if any one of six options labelled A-F to change the rules were implemented. Option E was that work on vessels other than Icelandic water vessels should not be counted as other work which, if done during a break from work on Icelandic water vessels of more than twelve weeks, would break continuity.
The effect of option E would be that the continuous period of work could be treated as not being broken by ‘relevant breaks’ of longer than twelve weeks from work on Icelandic water vessels, where the paid work done during those breaks was other fishing work such as work done out of non-UK ports. Since breaks of longer than twelve weeks where no other paid work was done could count towards the continuous period of work (if, where possible, evidence of the absence of other work during the break was provided) such fishing work could effectively attract compensation. Another effect of the change would be that a sufficiently long period of work on Icelandic water vessels would not be cancelled out by a ‘relevant break’ of longer than twelve weeks (where the work in question was other fishing work) followed by a period of Icelandic water vessel work which was not long enough to qualify for compensation. Equally, a trawlerman who had a long period of service followed by a relevant break of more than twelve weeks in which he did other fishing followed by a shorter ‘last continuous period of work of at least two years’ would be compensated in respect of the whole of that time. Counsel was referred to paragraphs 8 and 10 in the 31 July submission to the Secretary of State and paragraphs 13 and 14 in the 26 July submission. The legal section took the view that options E and F were matters of policy which could be taken up without legal risk. Making such changes without making one of the main changes sought by the BFA could leave them open to criticism, however.
August 01 The BFA Aberdeen sent to policy officials a document entitled ‘Practical Pointers’. The principal points made by the document represented what would have been put to the Government had such an opportunity been made available to the trawlermen of Aberdeen. Point 1 related to the 1979 cut-off point and point 2 concerned the rule about two years’ continuous service. Point 2b said that the twelve week break in service rule created unnecessary problems. It could normally be accounted for in most cases via prolonged injury time, a common event in a high risk industry. Promotional development of three to four months at nautical college, depending on qualifying time, although that had been recognised and accepted by administrators. To undergo major repair or maintenance work to a deep-sea trawler, unlike modern timescales, could be a lengthy procedure and it often took a crewman many more weeks to finally rejoin his ship and shipmates and that rendered the twelve week rule of little use or relevance.
04/09/01 The conference with counsel discussed option E and noted that it was necessary to consider continuity in connection with it. Although the twelve week break had an arbitrary flavour they did have a good reason for some such rule, in that men must have been dependent on, and committed to, Icelandic water fishing work in order to be eligible for compensation. Additionally, it was the BFA who had suggested that anything over twelve weeks would mean that men were effectively out of the industry. No one had been suggesting that there was anything wrong with the twelve week rule although it had produced some hard cases such as the man who was onshore to look after his sick wife and who did some onshore work. Although that was a hard case it was not the kind which would have been reasonably foreseeable, such that the decision to make the rule could be said to be perverse. The point of option E (saying that work on vessels other than Icelandic water vessels did not break continuity and qualified for compensation) was to alleviate the hard case of a man who had a long career on Icelandic water vessels but who was unable to establish continuity in the relevant five year period. If the amendment were made it would create bizarre anomalies like one of the case examples given to counsel. The example given was of a man who had spent his whole career working on inshore and middle water vessels most of which did not go to Icelandic waters at all. However, he made one trip towards the start of his career and one in 1978 towards the end of his career on vessels that had at some time made a couple of trips to Icelandic waters (not when he was on them) and so qualified as Icelandic water vessels. Without the change as suggested by option E he had no valid claim to compensation. However, if option E were implemented all his voyages between the two trips on Icelandic water vessels would count towards compensation so that he would receive a significant amount despite not having been to Icelandic waters and not fished on any vessel which was significantly affected by their closure. They were entitled to take that into account when considering option E. They were also entitled to treat the fact that the option would weaken the link with the ‘Cod War’ settlement as an important policy consideration.
Another option would be to discount other fishing work when assessing whether continuity was broken but only to compensate in respect of Icelandic water vessel work. That would avoid overcompensation of trawlermen such as the one in the example and alleviate the hard case problem but the link to the ‘Cod Wars’ would still be weakened. It would also be very expensive and administratively difficult to compensate in respect of each voyage on an Icelandic water vessel. A challenge by someone excluded as a result of not taking option E would be that the decision to exclude them was perverse. One could not say that such a challenge would definitely fail – its strength would depend on its facts. At that stage it appeared, however, that challenges of that kind ought to be capable of being defended. It was accordingly defensible not to take option E. The decision to take that option was substantially one of policy.
15/10/01 The Secretary of State wrote to the Chief Secretary to the Treasury. She said that DTI had received numerous representations from port MPs and other representatives of the former trawlermen about certain aspects of the scheme that they considered were operating unfairly. Having considered the issues fully and in the light of legal advice she had concluded that the eligibility criteria of the scheme should be changed. The total cost of the scheme could go up to around £35 million – around £10 million more than they had thought. She was prepared to find the additional resources necessary to fund the rule changes from other DTI priorities. She hoped that, in the light of that, the Chief Secretary felt able to agree to her proceeding as she had suggested.
22/10/01 The Chief Secretary to the Treasury replied. He agreed that, given counsel’s opinion, it would be pragmatic to relax the criteria as suggested rather than face the costly experience of a judicial review if the likelihood was that a case would be won. However, he expected it to be a once and for all change that did not lead to further challenges by claimants at the new boundaries of the compensation scheme. In order to ensure that that was the case he asked the Secretary of State to look at both the presentation and the impact of the changes, before making any announcement.
30/10/01 Policy officials saw an article in the Grimsby Telegraph in which the referring Member was quoted as saying that the extra £10 million for the scheme was very good news. He went on to say that there were two problems which remained unresolved which meant that trawlermen could not rejoice at that stage. Breaks in service were causing problems for some people. Fishermen who had fished Iceland could have been put on North Sea vessels and that was counting against them. It was being seen as a break in service when in fact it was part of the condition of service. The second problem was that many vessels which fished the Faroe Islands also fished Iceland. If they fished north of the Faroes they were in Icelandic waters. That same day the office of the Secretary of State emailed a policy official and asked whether the issues raised by the referring Member in that article were really a problem and did they involve further changes of the rules or just changes in the list of vessels? They required advice as they (officials or the Minister) might need to make it clear to the referring Member that there would be no further changes to the rules. The policy official replied that the issues raised could well be a problem. Further and better particulars would be provided shortly. The Secretary of State’s office responded that they required advice urgently because it appeared sensible to stamp on any new requests before the trawlermen turned it into a new campaign. Officials continued to discuss the two issues by email. They recognised that the argument that vessels which went to the Faroes should be regarded as Icelandic water trawlers could give them another significant problem. They needed to cover that and the breaks in service when submitting the rule changes for Ministerial approval. The Minister of State would not be sympathetic to further concessions. However, they needed to make sure they had a clear, Ministerially-agreed, and robust position. The legal section would be advised so that they had early warning though they did not think there could be a risk of challenge as their policy and practice had always been clear and consistent. As attention would from then on inevitably focus increasingly on the issue of breaks in service they required an update on the position regarding access to National Insurance records.
31/10/01 The discussion continued. A policy official noted that the Member for Hull West and Hessle had written in requesting a change in the rules so that periods on invalid vessels should not stop someone being paid or paid less. The case involved a break of about a year on non-valid vessels during 1972-73. Another letter had just arrived from the Member for Waveney. He wanted a change so that fishing out of Lowestoft on non-valid vessels should not count either. They needed to make clear to Ministers that the port MPs were not going to give up and go away on some of these issues and that it would be necessary to take a robust line on no further rule changes.
15/11/01 A policy official sent a briefing to the Minister of State in readiness for the Minister’s meeting with port MPs on 21 November 2001. The briefing explained that on 26 October 2001 the Secretary of State had announced two major changes to the compensation scheme. First, former trawlermen who fished on former Icelandic water trawlers after 31 December 1979 would no longer be disqualified from receiving compensation. Secondly, periods of service on former Icelandic water vessels of less than two years which took place between 1974 and 1979 and after a relevant break from working on those vessels, would no longer disqualify claimants. The official noted that the Government was satisfied that the scheme was properly targeted and was not prepared to make any further rule changes. Further briefing on other points that might be raised by the port MPs were attached as an annex. The further briefing in the annex dealt, firstly, with the impact of the change in the scheme rules. The briefing noted that as the industry was running down a number of trawlermen were forced, for various reasons, to take work on non-Icelandic water vessels. According to the scheme rules payment was calculated on the last period of continuous service on Icelandic water vessels in which there were no ‘relevant breaks’ of more than twelve weeks. A ‘relevant break’ was classed as a break during which other work was done. That meant any work other than on vessels that trawled in Icelandic waters. In effect that meant that a number of former trawlermen who had many years’ unbroken service on Icelandic water vessels ended up receiving no payment at all as they did not have a two year consecutive period on Icelandic water vessels leading up to their final voyage. As the majority of those breaks occurred after 1974 they could then be ignored and more people would receive a payment.
21/11/01 The port MPs met the Minister of State, policy officials and representatives from RPS. The Member for Hull West and Hessle welcomed the recent changes but said that there were still minor problems, equally valid to the claimant. Continuity/breaks in service were still a problem as were invalid vessels. The continuity clause was a problem for most port MPs who shared their examples. A problem for Aberdeen and Grimsby was the ‘pool’ system where men were required by employers to take the next job that came up irrespective of whether it was on an Icelandic water vessel or not – this meant that many had found it difficult to satisfy the scheme criteria. The referring Member said that trips to Australia should not count towards the £1,000 per year but should not break continuity. The Member for Aberdeen Central said that the MPs were not requesting a further change in the scheme rules but that there should be scope for flexibility in the interpretation of the criteria and, in particular, to take on board circumstances that led to breaks in service.
18/12/01 The legal section sent a letter of instruction to counsel. They summarised the rules of the scheme regarding continuity for counsel. They concluded that summary with an example. A break from work on Icelandic water vessels of 10 weeks during which a trawlerman did ten weeks’ work as a window cleaner would not break continuity, whereas a break of thirteen weeks during which a trawlerman did one day’s work as a window cleaner would break continuity. The original proposal for what would constitute a break in continuity was a period of eight weeks rather than twelve, regardless of what was done during the period. The BFA had argued that it was often the case that men were away from Icelandic water work for longer than eight weeks, for many legitimate reasons. They had suggested that there should be a list of possible reasons for being away from work and that breaks during which those things were done which were longer than eight weeks would not break continuity. It was felt that having a list of permitted reasons for breaks would be too difficult to administer and that it would be too difficult to draw up a comprehensive list in advance, leaving scope for matters to be disputed later. Ministers therefore decided to have only one activity, which if done at all during a break of longer than twelve weeks, would break continuity. That activity was ‘work other than work as an Icelandic water trawlerman’. Doing anything else during a break would not break continuity provided there was no ‘other work’ done during the break.
The legal section explained to counsel that they thought there might be a risk of challenge to the decision not to count the prior service on Icelandic water vessels of someone who worked for more than twelve weeks on other vessels at the direction of their employer, when the prior service of someone who spent eight years in prison was not discounted and their time in prison was actually compensated. That decision could be regarded as irrational.
20/12/01 The legal section held a telephone conversation with counsel. On compensation payable to prisoners he agreed that the position looked unattractive and that it threw up a potential irrationality challenge. However, an applicant for judicial review would have the problem of establishing locus standi to bring a challenge. No one was being deprived of anything by the application of the rule it just resulted in more payments being made than might otherwise be the case. There was definitely scope for a challenge, however, and if counsel were advising an applicant, it would be to make a challenge based on the overall unfairness/irrationality of the scheme which was highlighted by the contrast between prisoners and those who were sent by their employers to work on non-Icelandic water vessels (a failure to treat like cases equally).
A DTI official wrote to her counterpart at the then Inland Revenue (the Revenue) about DTI’s requirements for information about National Insurance contributions for certain claimants under the compensation scheme. She explained that a maximum payment would relate to a twenty year period and explained about continuous employment and relevant breaks under the scheme rules and that the men were only compensated for their last period of continuous work. Although all fishermen had breaks between voyages, not many were relevant breaks and thus did not break the continuous period of employment and did not affect the amount of compensation to which the man was entitled. The official explained the twelve week rule and that a break over twelve weeks in which paid work other than as an Icelandic water trawlerman was done would break continuity of employment. They had a number of claimants with breaks of more than twelve weeks but had no information about whether or not they took any paid employment during that break. Accordingly, they did not know whether or not there was a break in continuity for the calculation of compensation. That was why they sought information about National Insurance contributions. She hoped the information she had provided was sufficient to allow the Revenue to identify the information they held that would be useful to DTI. She said the problem that DTI officials had was that they did not know what details the Revenue held and how difficult it might be to provide DTI with particular details. DTI knew the name, National Insurance number and the precise period for which they sought information and they required detailed records of any National Insurance contribution made or credited during those periods. In some cases even summary annual information might help. The DTI official then provided a theoretical example as to how she and her colleagues planned to make use of the information. She confirmed that there might be around 500 claimants for which they sought information.
