Annex B: Chronology of main events 2002
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14/01/02 The Chairman of the Hull BFA wrote to the Minister of State. He said the purpose of his letter was to express the great concern of the former trawlermen of Hull who were experiencing real difficulty in the processing of their claims. One of the main reasons for this difficulty related to the lengths of break in service which took them over a twelve week period. The result was that many men were only receiving a fraction of the money genuinely due to them. From the first meeting on 8 September 2000 that the Hull BFA attended with policy officials and representatives from RPS, the issue had remained unresolved ever since. A policy official had confirmed that breaks of up to twelve weeks would be disregarded. That official was advised by the Chairman that there would inevitably be cases of more than twelve weeks. His response was that each case would be looked at sympathetically. At no point, in the opinion of the Chairman, did he confirm that breaks in service over twelve weeks would automatically be discounted or would lead to a reduction in the compensation due to men. He argued that it was reasonable to consider that a man who returned to shore for a period in excess of twelve weeks after working on trawlers may have had valid reasons for doing so. If that were the case then the breaks should be counted as continuous service. The Chairman recalled that after the ‘Cod Wars’, with the trawler fleet in rapid decline, there were more men than trawlers and hence longer onshore breaks where the men were effectively unable to work but still registered as distant water trawlermen as their records showed. He asked the Minister to reconsider the then current view held by RPS on the question of breaks in service.
28/01/02 The Revenue replied to DTI’s letter of 20 December 2001 concerning information about National Insurance contributions. The Revenue official explained that when he had met representatives from RPS in March 2001 he had been told that they felt the overwhelming majority of claims that would be lodged had by then been received. He had explained then, and a number of times since, that there was no statutory gateway between the Revenue and DTI for the purpose that DTI sought. The only way the Revenue could supply the information required was with the informed written consent of each of the individuals concerned. He asked how DTI proposed to obtain that consent. It would need to be in place and available for Revenue inspection before any transfer of information could take place. One point DTI had not covered in its letter was the years for which it sought data. The Revenue did not usually hold tax information beyond the normal statutory six year period for assessing and collecting tax which was of no use to DTI. The only source of information that might help would be individuals’ National Insurance records. As he understood it, the information DTI sought would normally relate to years prior to 1975 which was the year the computerisation of National Insurance records was introduced. Prior to that the records were kept and still were in manual form. Each record showed the total number of weeks in each tax year for which National Insurance contributions were paid and the number of weeks for which unemployment or sickness credits were awarded. But it did not hold details of employers during the year unless the employer was part of the Graduated Pensions Scheme and even then only back as far as 1961. Therefore without actually digging out and going through the pre-1975 manual National Insurance record in each case it was impossible to say how the records maintained met DTI’s requirements. The more options the Revenue introduced into any review of the records, the longer the process would take, the greater the resource need would be, and as he did not then know whether the Revenue resource could be provided and, flowing from that, the greater the cost of the work. Since the Revenue were not resourced to carry out work on behalf of other departments DTI would be expected to meet the costs in full and would need to confirm that in writing in advance. The Revenue already had a considerable amount of work in hand and if DTI decided to take its request further it would have to go before the Revenue’s Approvals Board and take its chance with all the other prospective new work.
27/02/02 A policy official emailed the legal section concerning a letter from the Member for Hull West and Hessle. They had to determine whether ‘fitting out’ a vessel was a relevant break or not. The policy official could see two scenarios. First, a former trawlerman could have been working on shore ‘fitting out’ or painting any old boat maybe because he was suspended or because there was no fishing work available. Secondly, a former trawlerman could have been ‘fitting out’ an Icelandic water vessel, as had been described in the claim in question, to prepare for its next voyage and that he would have actually sailed on it when it was ready. Up until then they had considered the first scenario a relevant break because the former trawlerman did not have anything to do with Icelandic water vessels. However, in the second, it did seem rather unfair to penalise a person who was actually working on an Icelandic water vessel preparing it for its next fishing trip. That could be taken as part and parcel of working in the Icelandic water industry whereas the first scenario could not. The policy official required advice. The legal section replied the same day. They said they thought it boiled down to whether work on Icelandic water vessels had to be work on such vessels at sea or whether shore work on such vessels could count as qualifying service. They understood the policy to be that no shore work counted. Paragraph 2.2 of the scheme rules defined a former Icelandic water trawlerman as a person who worked at sea on vessels. Paragraph 2.7 said that shore-based workers were not former Icelandic water trawlermen. Paragraph 3.2 defined a continuous period of work as work as an Icelandic water trawlerman (i.e. work at sea on vessels). A relevant break was one between voyages of at least twelve weeks during which work other than work as an Icelandic water trawlerman was done (i.e. work other than work at sea on vessels). The guidance notes were less clear, in that they talked about work on Icelandic water trawlers, without specifying that it must be at sea. They did say that shore-based workers were not eligible to claim but they did not refer to breaks being breaks ‘between voyages’. Given the terms of the scheme rules and the fact that compensation was calculated by reference to voyage dates (paragraph 3.3), the legal section thought the effect of the rules was that the claimant’s service on shore meant that his break was a relevant break. They agreed that it seemed unfair but then a great many hard cases had been created by the lines drawn in the scheme. They asked for confirmation that their understanding of the policy on shore work was correct.
01/03/02 A policy official had endorsed legal section’s understanding of the policy on shore-based work, but another policy official expressed the view in an email that fitting out a vessel for sea fishing should count as Icelandic water fishing work which counted towards compensation. He understood what the legal section had said about the rules but they should also apply basic rules of fairness where they were able to do so. His understanding was that if, for example, a boat had new engines it might take more than twelve weeks to test them out. The boat’s chief engineer might well do that prior to taking the boat on its next trip to Icelandic waters. To regard that as a relevant break was just asking for trouble. A relevant factor, to his mind, was that a decision to regard such work as not breaking continuity was quite defensible – in fact he did not think they would ever need to defend it. In addition, he imagined there would not be large numbers of claimants in that position. If they tried to hold fast to the position that such work constituted a break, sooner or later they would be forced to reverse the ruling.
11/03/02 In discussing in an email a problem that had arisen as to whether the reference in the scheme to 200 miles meant nautical or imperial miles, a policy official recognised that, legally, the scheme rules could mean something other than what they intended them to mean. The rules had been put together in some haste and they were concerned at the time that they should be as straightforward as possible for operational staff to work with.
12/03/02 The legal section commented upon the 200 mile problem. They made the point that if there had been a conscious policy decision that the scheme refer to imperial rather than nautical miles then the legal section should have been instructed in those terms. If policy officials were not aware at the time of the distinction between nautical and imperial miles, then the reality was that the scheme had been devised on a mistaken assumption – perhaps because of an insufficient knowledge of the fishing industry or not consulting the appropriate people.
20/03/02 Policy officials issued a revised ‘Eligibility criteria and procedure for making claims’ that superseded the version issued on 2 October 2000 (see Annex A). It described a continuous period of Icelandic water trawling work as one during which there was no ‘relevant break’ of more than twelve weeks. A ‘relevant break’ meant a break during which other work – i.e. work other than on vessels that trawled in Icelandic waters – was done, regardless of whether that other work was done for all of the break or just part of it.
A policy official provided some ‘lines to take’ for the Secretary of State for a meeting with the Member for Aberdeen Central scheduled for 13 May 2002. The Member was likely to raise the point that trawlermen in Aberdeen worked the ‘pool system’ which meant that they frequently moved between vessels and had less opportunity to build up continuous service on Icelandic water vessels. The lines to take were that that type of system was not unique to Aberdeen. Trawlermen in Grimsby and Fleetwood had similar working patterns. The reason why those in Aberdeen had more broken service in the Icelandic water industry was that there were fewer Icelandic water vessels. The Member was also likely to raise the point that trawlermen should not be penalised for having worked on non-Icelandic water vessels when, had they been in prison, their service would have been counted as continuous. The line to take was that if a trawlerman left the Icelandic water industry for a period of longer than twelve weeks and during that period he did other work, he cannot be considered to have remained dependent on the industry for his livelihood during that period. If he subsequently returned to the industry for a continuous period of two years or longer then clearly he became dependent upon it again and was entitled to compensation based on that latter period. ‘Other work’ had to include work on vessels that never went to Icelandic waters. Otherwise a claimant could receive compensation for long periods of inshore or other fishing work unrelated to the Icelandic water industry. If a trawlerman had a break between voyages on Icelandic water vessels but did no other work, then he was considered to have remained reliant on the industry throughout regardless how long the break was and regardless what he did during it. That allowed for the fact that there were many bona fide reasons why trawlermen had long breaks between voyages including unemployment, injury, illness, ‘walkabout’, training etc. That generous provision did mean that periods in prison could count toward continuity – but only if the individual worked in the Icelandic water industry before his sentence and returned to it immediately afterwards having done no other work in between. The Member was likely to say that periods of service on Icelandic water vessels should be aggregated and breaks disregarded. The line to take was that the Government could not agree to that. It would constitute a major change in the scheme rules and would add unacceptably to its cost.
13/05/02 A policy official sent a briefing note to the Secretary of State for her meeting with the Member for Aberdeen Central that evening. The official recommended that the Secretary of State resisted any pressure from the Member for Aberdeen Central to make further changes to the scheme rules. He said that the Member was likely to raise concerns about the way in which the scheme rules impacted on Aberdeen-based trawlermen and would argue that those rules should be changed or interpreted ‘more flexibly’ to reflect their ‘special circumstances’. In each of the four main ports involved in Icelandic water trawling – Hull, Grimsby, Fleetwood and Aberdeen – the industry had certain distinctive features. However, the scheme rules were designed to be as fair as possible to all former trawlermen affected by the settlement of the ‘Cod Wars’ in the 1970s irrespective of the port out of which they fished. It would have been neither practical nor desirable to have had different rules for different ports. The net effect of the changes to the scheme rules the previous autumn had been to increase the estimated total expenditure on the scheme from £25 million to £35 million. Actual expenditure on the scheme to date, with only a relatively small number of claims remaining to complete processing, was £37 million. Any further rule changes to make the qualifying criteria more generous would clearly increase expenditure still further. He therefore recommended that the Secretary of State stand by her earlier view that the changes made the previous autumn should represent a final settlement.
15/05/02 A policy official emailed colleagues concerning a telephone conversation she had had that morning with the adjudicator, who informed her about a meeting he had had with the Member for Aberdeen Central. The Member had told him that he was not asking the Secretary of State to change the rules but to reinterpret them. The adjudicator told him that the way in which he wanted to reinterpret the rules was not possible. The Member replied that he was more or less aware of that but he had to try. The adjudicator had also warned that the port MPs were considering an application for judicial review over the scheme because it was flawed. Part of the case would be that DTI had not taken the ‘pool system’ into account. The policy official stated that as her colleagues knew, they were perfectly aware of the ‘pool system’ when they did the ex gratia arrangements and so were fully aware of it for the scheme. She had thanked the adjudicator for the warning and told him they had been warned about the possibility of judicial review previously and had sought legal advice on the matter. The purpose of her email was to advise that the matter had raised its head again. She said ‘I have not copied it to legal at this stage in case they start worrying about it’. On 16 May 2002 she emailed the office of the Secretary of State to ascertain whether there had been any feedback from the meeting between the Member for Aberdeen Central and the Secretary of State.
21/05/02 The Member for Hull West and Hessle wrote to the adjudicator and acknowledged that the adjudicator would have to reject the appeal of a constituent for reasons he understood. He did not want to bog down a scheduled meeting with the Minister in respect of that issue as there were far more important issues to argue. In particular, the distant water trawlermen from Hull who were losing vast amounts of money because they were sent to fish in middle waters for sometimes very short periods during the course of a long career.
23/05/02 The office of the Secretary of State emailed a reply to the policy official. They said the Member for Aberdeen Central had raised the case of one of his constituents who had been paid for all of his service because an eight year spell in prison had not counted as a break in service. Another constituent had been obliged by his employer to work in a non-Icelandic water vessel for a period of time and that had been counted as a break in service. Unsurprisingly, the Member thought that situation somewhat unfair. The Secretary of State explained that she thought there was very little they could do in that situation as that was the way the rules were drafted. In discussing the response to the Member’s constituent the Secretary of State wanted a ‘soothing’ reply and the draft run past the Member before it was sent.
10/06/02 An official sent a briefing to the Minister of State in preparation for the meeting the Minister was to have later that day with the port MPs. The briefing explained that the MPs would raise the issue of breaks in service and explained the meaning of ‘relevant break’ under the scheme rules. The briefing said that in effect that had meant that a small number of former trawlermen who had many years’ unbroken service on Icelandic water vessels ended up receiving a very small payment as their continuity was broken by fishing on invalid vessels. That same day the Minister of State met the port MPs together with policy officials and RPS representatives. The Member for Cleethorpes explained that some former trawlermen had many years’ service on Icelandic water vessels but their continuity had been broken towards the end of their career by some short trips on non-valid vessels. That meant that they only received payment for a couple of years. That situation had been made worse by the fact that a number of former trawlermen had been paid who never went to Iceland at all. The Minister explained that there were no ‘fishing passports’ and that was why the scheme had had to rely on the vessels on which people had sailed. In addition, Treasury costings were done on the assumptions that breaks of over twelve weeks would break continuity. The Member for Hull West and Hessle replied that former trawlermen were sent to such places as Lowestoft to fish by the then Employment Department otherwise they would have lost their unemployment benefit. He emphasised that that would not require any rule changes, which the MPs realised would be difficult, but an extension of the list that already existed of allowable reasons for a break in continuity. The Member for Aberdeen Central said that paragraph 3.2 of the scheme rules made things difficult. He confirmed that trawlermen had no control over where they went to fish and unemployment benefit would have been lost if they had not complied. As a lawyer, he was concerned with equity – payments had been made to people who had had long breaks away from the industry (such as prison) and that was unfair. He considered that the rules should be subject to a judicial review as they had not been brought in by way of Statutory Instrument. However, he considered that an addition could be made to the ‘exemptions’ in the rules whereby people with many years’ service on Icelandic water vessels could have their invalid service counted. A policy official explained there were no such exemptions in the rules. The only thing that broke continuity was ‘work other than Icelandic water trawlermen’ and that that included fishing on non-Icelandic water vessels. The Minister confirmed that to discount invalid service in the way suggested would need a change in the rules and the Secretary of State had made clear she was not prepared to make any more changes. The Member for Aberdeen Central replied that he did not think that it was possible to stop legal action as the scheme was not being targeted at those who were meant to receive payments and that the scheme would be open to ridicule if that ever got into the papers. The Member for Hull West and Hessle did not want to open the floodgates; they just wanted those few cases to be looked at again.
21/06/02 On 21 June 2002 officials from the Minister of State’s office emailed policy officials concerning a letter from the referring Member to the Minister that related to Mrs A and required a reply. He had sent the Minister a copy of his letter to the scheme’s adjudicator of 17 June concerning the decision to reject Mrs A’s appeal against the award made to her. He pointed out in that letter that the Icelandic water vessel on which Mr A had sailed in 1972 required a refit that lasted more than twelve weeks and Mr A had never ceased or had any intention to cease his employment as an Icelandic water trawlerman. He had had no choice but to accept whatever vessel was offered to him during the period of his own ship’s refit and thus remained an Icelandic water trawlerman during that period. His service as an Icelandic water trawlerman was not breached by the fact of the vessel’s refit and the benefit regulations at that time meant that he must take whatever vessel he was given during the period of the refit. The referring Member therefore viewed it as incorrect to interpret the period of the refit of Mr A’s ship as a break in service under the regulations, as well as being manifestly unjust.
26/06/02 The adjudicator replied to the referring Member concerning Mrs A’s appeal. He said that while he understood that Mr A had taken the break from Icelandic water work in 1972 ‘for perfectly understandable reasons’, that break constituted a ‘relevant break’ under the rules of the scheme. He was in no doubt whatsoever that DTI’s decision in the case was correct in accordance with the rules of the scheme.
10/07/02 The Minister of State replied to the referring Member. He said he had noted the content of the letter to the adjudicator but it was up to the adjudicator to make a final decision on the claim having considered all the information at his disposal.
22/08/02 A policy official emailed a colleague in Scotland and said that they had discussed the fact that the Aberdeen trawlermen and their representatives had been lobbying Scottish Ministers about the Aberdeen ‘pool system’ and the fact that fewer former Icelandic water trawlermen from Aberdeen had qualified for payments. By way of background, the official sent excerpts from letters sent by the then Minister of State to a number of Scottish MPs. She advised that the Member for Aberdeen Central had always attended the meetings with Ministers in London to discuss the progress of the scheme and represented the trawlermen of Aberdeen and they were always aware of the ‘pool system’ when the scheme rules were first drawn up. One excerpt from one of the Minister’s letter said the following. ‘You may be assured that I am fully aware of the nature of the Aberdeen “pool system”. This type of system was not unique to Aberdeen. A similar system operated in Grimsby and, to a lesser degree, in Hull. The fact that fewer vessels went to Icelandic waters from Aberdeen means that it is more of a problem for former Aberdeen trawlermen. However, by the same token, they were also less directly affected by the closure of Icelandic waters as a result of the settlement of the “Cod Wars”.’
30/10/02 A policy official emailed colleagues and said that he had that afternoon met the Member for Hull West and Hessle on a matter unconnected with the scheme. They had nevertheless discussed the scheme for a few minutes. The Member had said that the only outstanding problem in his mind was that of deep sea trawlermen who, when unable to find a deep sea vessel, were told that they must seek work outside the deep sea industry or lose their employment benefit. He had asked about any views that the independent adjudicator might have on the issue. As they were meeting the following day to discuss a number points about the scheme he wondered if they might touch on that topic, perhaps in an informal pre-meeting. He had not really considered the question one way or the other but as the Member had raised it he thought they should respond.
31/10/02 A policy colleague responded. He said they were aware of the difficulty the Member had raised when the scheme was set up and, as long as the work on other vessels was not for a period of twelve weeks or more, it was ignored. However, under the scheme rules they could not just ignore it. Although the adjudicator had made his position clear previously, he was happy to discuss it with him.
27/11/02 The legal section emailed policy officials, copied to RPS. They said that at a recent meeting with policy officials the legal section had agreed to revisit the issue of voyages from non-UK ports in the light of the adjudicator’s comments and the concerns of policy officials. At their meeting policy officials had given a useful explanation of the way the scheme had been implemented as a result of which the legal section had a better understanding of the issues that made it difficult to argue that trawlermen must only have fished out of UK ports. On a strict textual interpretation of the scheme they considered it possible to argue that work on a vessel that did not start and end its trawling voyage at a port in the UK was a ‘relevant break’ as defined at paragraph 3.2 of the scheme. That was because for periods where the vessel did not operate out of a UK port, the trawlerman was not working as an Icelandic water trawlerman because he was not working on a vessel which was fishing out of UK ports. That was because, on a strict textual interpretation, the qualification ‘not necessarily exclusively’ could be argued to apply to ‘made voyages’ but not to ‘fished out of UK ports’. As work done on vessels that did not fish out of UK ports was ‘work other than work as an Icelandic water trawlerman’, it would therefore count as a relevant break. However, it was also possible to interpret the language of the scheme so that that qualification applied to both ‘made voyages’ and ‘fished out of UK ports’. The scheme had been implemented according to a list of approved vessels. If a strict interpretation of the wording was taken and it was concluded that a vessel must only have fished out of UK ports, that would mean that vessels that had made voyages that did start and finish in UK ports so as to satisfy the scheme criteria could become ineligible from time to time. That would obviously have unintended and undesirable consequences. If they agreed that a vessel need not have started and ended every voyage in a UK port, then once a vessel had qualified to be on the list it remained there, and all voyages made on that vessel counted towards a ‘continuous period of work’ under the scheme. As far as they could see the scheme did not envisage that a vessel could ‘fall off’ the list. Such an interpretation appeared to be in accordance with the purpose of the scheme, which was ‘to compensate former UK-based Icelandic water trawlerman for the loss of their industry due to the settlement of the ‘Cod Wars’ of the mid 1970s’, and not lead to claims other than ones which were comprehended by that purpose being accepted. The legal section’s view was that it would be difficult to persuade a court that the adjudicator’s view on the issue was wrong, particularly as DTI would wish to argue for a purposive interpretation with regard to the 200 mile limit point. They therefore considered that they should concede that a voyage which did not start and end in the UK need not count as ‘other work’ as it then did.
02/12/02 The Minister of State met with the port MPs together with policy officials and representatives from RPS. The MPs raised the question of the inclusion of vessels on the list and also breaks in service. The referring Member suggested that policy officials could take into account the reason for taking work outside the industry (such as if his wife was seriously ill). Officials suggested that that would be open to challenge for not using discretion in other cases that people considered to be just as valid and it would be very difficult to ‘hold the line’. They had to apply the rules of the scheme strictly and fairly. The Minister agreed to write to the Member for Aberdeen Central and explain how breaks in service were calculated and what circumstances broke continuity of service.
11/12/02 The Minister of State wrote to the Member for Aberdeen Central. He said that a policy official had explained at the meeting that they had never produced a definitive list of exemptions to breaks in service of more than twelve weeks in which other work was done. Rather, they considered each case on its merits as it was only work other than on Icelandic water vessels that broke continuity of service. His officials looked at the specific details of what each trawlerman was doing during a break of more than twelve weeks away from fishing on Icelandic water vessels and decided whether that fell into the category of ‘other work’. Naturally, the majority of the cases involved periods of unemployment, sickness or ‘walkabout’ – all of which were common to the industry. None of those broke continuity. A number of different causes for breaks had emerged throughout the scheme, such as studying at Nautical College, work in the Merchant Navy, working on vessels in the dry dock and also time in prison. In each case a judgment had been made in accordance with the criteria laid down in the scheme rules. He said they could not, as the Member had suggested, take into account the reason for the break away from the industry as that would involve officials in trying to decide cases where there would be no documentary evidence after so much time had passed to back up any statements made. He also explained that, where a former trawlerman was ill but also took work outside the Icelandic water trawling industry during a break of more than twelve weeks, then that period of work would still break continuity. That was because he would have ceased to rely on the Icelandic water trawling industry for his livelihood. The Member had specifically raised the interpretation of paragraph 7.9 of the scheme rules. That, in fact, related to the way in which such breaks were handled and what sort of proof his officials would need to help verify a trawlerman’s assertion that he was not working outside the industry during a break. Examples were given of the type of evidence they required. The examples in paragraph 7.9 were never intended to be a list of exemptions. He had copied the letter to the other port MPs.
