My investigation
Jump to
- Requests for further information
- Genesis of the scheme
- Development of the scheme
- Operation of the scheme
- Changes to the rules of the scheme
- Continued dissatisfaction with the scheme rules
19. The Member first asked me to investigate Mrs A’s complaint in a letter of 30 September 2003. Following preliminary enquiries of DTI, my Office sent the statement of Mrs A’s complaint to the then Permanent Secretary at DTI on 19 December 2003 and requested his comments on my proposed investigation of the complaint along with copies of documents concerning the formulation of the compensation scheme, notes of meetings and copy correspondence with interested parties, and any other documents that might help our understanding of the background to the scheme and the factors that were taken into consideration. The Permanent Secretary replied on 3 February 2004 with a memorandum of events by way of response to the statement of complaint. He made clear that the relevant files were available for inspection, were they needed. On 20 February 2004 my staff made a preliminary examination of DTI’s files relevant to the complaint.
20. My investigator then went through those files examining the way in which the scheme was devised and administered, with particular reference to the rule concerning ‘relevant breaks’ and its impact upon the ‘pool system’.
21. Mrs A was interviewed at her home on 16 November 2004. She said she believed that her husband worked on distant water vessels from about 1947 (although the available records show him working from 1949) up until about 1978. He spent a lot of time in Icelandic waters. She commented that the letters ‘VG’ entered on her late husband’s port record (a record of the vessels on which he worked and when) meant ‘very good’ and reflected his character, ability and general conduct. He was highly regarded and had an excellent reputation. Mrs A told me that when her husband worked on vessels prior to 1972, if the vessel could not sail again immediately, the owners tried to retain as many of the crew as possible. They would try to get them all on another boat to try to keep the crew together. She explained that with most repairs or refits where a vessel was idle, it would normally only be so for two to three weeks unless major engine repairs were required, which would take much longer. However, where the vessel was subject to a Lloyd’s survey that took place every four years, the refit time was usually three to four months. She was sure her husband had worked aboard distant water trawlers that had had lengthy periods tied up in excess of three months, but he had always been asked to join another distant water vessel.
22. Mrs A told me that in February 1972 her husband would have much preferred to stay at home once his then vessel, the Ross Rodney, had to undergo a lengthy refit. That was particularly so because Mrs A was unwell at the time. However, the operation of the ‘pool system’ was such that he had no choice. She said that ‘the trawler owners behaved like Gods’. Her husband had been told, a few weeks after he had been discharged from the Ross Rodney, that he was required to work aboard a North Sea vessel, the Saxon Forward. If he had refused he would not have been able to obtain unemployment benefit. It was simply not possible to keep a family of five without any income at all and it was in that sense that her husband had had no choice. It was literally a question of taking the job offered or the family would starve. Mrs A said she felt aggrieved at the outcome of her claim on the compensation scheme.
Requests for further information
23. My investigator wrote to HM Treasury on 17 August 2005 and requested minutes of meetings, emails or notes of conversations which related to the Treasury’s consideration of DTI’s proposals for the compensation scheme. A member of their Science and Industry team replied on 17 October 2005 and enclosed emails and submissions made to the Chief Secretary concerning the scheme. During the investigation requests were also made to DTI for further information or for clarification of information already provided. I am grateful for the co-operation of both departments.
Genesis of the scheme
24. During the summer of 1999, officials from DTI and MAFF worked on a submission to put to their respective Secretaries of State in order to respond to the campaign by the BFA and the port MPs. On 18 October 1999 officials sent a submission to the then Secretary of State. The submission noted that, in dealing with the question of compensation scheme administration, payments would relate to time spent at sea over a period going back some 40 years. That would produce practical difficulties of administration and a number of hard cases for which the Government would face criticism. A briefing document attached to the submission explained that in June 1976 concern had been expressed by Ministers in Cabinet with reference to a government funded scheme of compensation, which was also opposed by the Treasury. Their concern centred on the difficulty that would be encountered in identifying those who had suffered genuine hardship as a result of the agreement with Iceland, and in devising clear eligibility criteria. MAFF had estimated a loss of 600 jobs in consequence of the agreement with Iceland but almost all distant water trawlermen were made redundant over the following few years. It would clearly be impossible to tell which jobs were lost as a result of that agreement and which due to other factors. Therefore, in principle, any new compensation scheme should be open to all former distant water trawlermen made redundant in the period 1976-86.
25. On 14 February 2000 officials at HM Treasury sent a submission to the Chief Secretary. They said that the DTI/MAFF proposal that a scheme should be open to distant water trawlerman made redundant between 1976 and 1986 would weaken any link between the compensation scheme and the actions of the Government. They emphasised their view that the need was for a tightly focused scheme. It would be sensible to ask DTI to confirm that any practical problems could be overcome. In a briefing paper attached to that submission, officials noted that the Chief Secretary might like to ask, in terms of defensibility, whether information existed that would allow a scheme to be operated fairly. On 28 February 2000 representatives from DTI, MAFF and HM Treasury agreed that a small team of officials from those three Departments should conduct a scoping exercise to explore the feasibility and design of a compensation scheme and what it might contain. They would report to Ministers by 28 April 2000.
26. On 14 April 2000 officials at DTI sent a submission to the Secretary of State that referred to a suggestion by the Minister of State that they meet BFA representatives to discuss information they could provide in support of claims for compensation. The officials recommended that no such meeting take place until the Secretary of State had decided in principle to go ahead with a compensation scheme. Officials said they were at that time preparing a note addressing the issue of the adequacy of information on which to assess claimants’ eligibility. The officials were satisfied that they could provide a positive response on the point and the information offered by the BFA was not required for the scoping exercise, although the BFA information would fill in gaps in their existing records.
27. On 9 May 2000 DTI officials sent a submission to the Secretary of State attached to which was a paper suggesting three options for limiting eligibility under the scheme. The paper noted that with all three options payments could be restricted to those former trawlermen who had worked for vessel owners known to have trawled in Icelandic waters – although in practice most vessel owners were likely to have had interests in most distant water fishing operations. A further eligibility condition that could reasonably be imposed with all three options was a requirement for two years’ continuous service within the industry (disregarding short between-voyage breaks) but not necessarily with the same employer. That could be justified on the basis that a claimant should be able to demonstrate a certain degree of commitment to the industry in order to be eligible for compensation. On 24 May 2000, in a submission to the Chief Secretary, Treasury officials stated that in terms of adequacy of records, DTI was confident that payments could be restricted to former trawlermen who worked for vessel owners known to have trawled in Icelandic waters. Proof of eligibility could be obtained from copies of the relevant fishing records and/or National Insurance contribution records from the then Department of Social Security (DSS).
28. On 22 June 2000 the Chief Secretary to HM Treasury wrote to the Secretary of State at DTI and said he was prepared to agree to a compensation scheme. That was on the basis of a requirement of two years’ continuous service in the industry (not necessarily with the same employer); a payment of £1,000 per year of service at sea; payment under the previous ex gratia arrangements 1993-95 was to be offset against the claimant’s entitlement under the new scheme; share fishermen were to be included; there would be payment in full to widows and dependants of deceased trawlermen. He proposed a limit of £10,000 on individual payments (subsequently increased before the launch of the scheme in October 2000 to £20,000). He also proposed that the scheme be limited to those who left the industry during 1974-79 but did not provide any reason for selecting that option. In terms of timescale he said they should look to expedite the scheme quickly and an announcement could be made in the summer. Given the normal rules on expenditure incurred without specific statutory authority the scale of the scheme (over £900,000 per annum) must be concluded within two years, in order to avoid primary legislation. He therefore proposed that the deadline for admitting claims should be 31 December 2002.
Development of the scheme
29. On 29 June 2000 DTI officials were asked to take forward the drafting of a note on the scheme’s eligibility criteria fleshing out the basic criteria agreed by the Chief Secretary to HM Treasury. In answer to a question from a senior official, they said they thought they were sufficiently advanced in their preparations that the Secretary of State could invite claims on the scheme at the forthcoming Party Conference. On 7 July 2000 DTI officials met to discuss a paper concerning the proposed scheme including the eligibility criteria. The paper suggested that in order to be eligible for payment under the scheme, a claimant must have worked at sea as a fisherman for a continuous period of at least two years ending on a date between 1 January 1974 and 31 December 1979; for one or more vessel owners who carried out fishing in Icelandic waters; and did not continue or resume working at sea as a fisherman at a later date. An occasional interval of up to one or two months – for example, an interval between voyages or between work for different vessel owners – should not be taken to break continuity for those purposes and should be counted as part of the continuous period. The paper asked whether there was any need to clear the proposals with Ministers or HM Treasury or MAFF, and also asked whether there was any merit in consulting the BFA on eligibility criteria, once an official announcement of the scheme was made.
30. In July 2000 the Chairman of the Hull BFA sent to DTI officials a list of reasons for a break in a trawlerman’s service record. He said that was why the Government’s two year rule in which to qualify for compensation could seriously affect a trawlerman’s sea record and thus his entitlement to compensation. Any gaps in a man’s record caused legitimately by the reasons on the list should be disregarded when the two year rule for qualifying was calculated. Among those reasons were time off the ship’s log when the ship’s annual survey could last for days or weeks and every four years the Lloyd’s survey, which would take the ship out of service for weeks. When a ship was lost, survivors would get twelve weeks’ survival pay on shore. He did not say the list was exhaustive. On 11 July 2000 RPS staff asked DTI officials for clarification on the time limits for the occasional interval between voyages. On receipt, that question was highlighted and ‘3-4 months’ written beside it with the ‘4’ crossed through. On 18 July 2000 DTI officials replied to RPS. They said that a gap in service of more than three months, whatever the reason for it, should be taken as breaking continuity for the purposes of the scheme. The BFA had at one time given them details of the reasons why people might not be at sea and the longest reasonable gap was twelve weeks’ leave for survivors of a sunken vessel. That condition should be rigorously applied. On the same day officials noted that the Secretary of State had wanted a firm opening date to be included in the initial announcement of the scheme; officials suggested 1 October 2000.
31. On 28 July 2000 in a written answer to the House of Commons, the Secretary of State said that ‘the Government recognised that former Icelandic distant water trawlermen suffered an injustice. Many lost their jobs through the settlement of the “Cod Wars” by the then Government and received little or no help. Given the exceptional circumstances in which they lacked basic employment protection we intend to remedy this by establishing a new scheme of compensation to be administered by my Department’s Redundancy Payments Service. Further details of the scheme and when and where claim forms will be available are to be announced before it is formally opened on 2 October’.
32. On 2 August 2000 DTI officials told the Minister of State that the Secretary of State had approved a meeting between DTI officials and the BFA. Although officials had previously spoken to the Hull BFA Chairman by telephone, they asked the Minister’s office to make arrangements. On 15 August 2000 a policy official notified the office of the Minister of State that they had agreed 8 September 2000 for a meeting with the Chairman and other members of the Hull BFA. Meanwhile, on 7 August 2000 DTI’s legal section asked policy officials whether a break from the industry of less than three months broke continuity. A policy official replied on 8 August 2000 and said a break of three months would break continuity of service. The BFA had given them 101 reasons why there were breaks in service and none of them was longer than twelve weeks. That is why they had opted for that period. The way the fishing industry was run in ports like Hull and Grimsby was that all trawler owners belonged to the same ‘pool’ and the trawlermen could go out on any trawler they wanted. That was why they were never considered in the past to qualify for statutory redundancy payments as they signed on and off after each voyage. On 17 August 2000 DTI officials sent a draft of the compensation scheme to the legal section for their consideration. The draft included a section that allowed for appeals to an independent adjudicator for a final decision.
33. On 18 August 2000 the legal section replied and attached their redraft of the scheme. The redraft said that a claim could be made in respect of the last continuous period of work of at least two years undertaken by former Icelandic trawlermen provided the continuous period of work ended on a date between 1 January 1974 and 31 December 1979, and work as an Icelandic trawlerman was not resumed after the date on which the continuous period of work ended. They noted that one effect would be that a trawlerman who worked for more than two years, had a break of three months and then worked for less than two years after that would get nothing. They asked whether policy officials were happy with that and they said that they were. The legal section’s redraft defined ‘continuous period of work’ as a period of work as an Icelandic water trawlerman during which there were no breaks between voyages to Icelandic waters (for whatever reason, including but not limited to illness or fishing on vessels outside Icelandic waters) of more than twelve weeks. Breaks of less than twelve weeks, even if in total these added up to more than twelve weeks, counted towards the period of work. The legal section noted that a trawlerman who worked on local vessels for the majority of his time but did an Icelandic trip every three months or so could make a claim. Officials said they were content to live with that. The legal section had understood that mixed service (vessels that sailed both distant and middle waters or distant waters and the North Sea as opposed to just one of those) was rare; officials confirmed that and said they believed it was virtually unknown.
34. On 24 August 2000 the Minister of State’s office sent a memo to policy officials in which he agreed that the draft note on eligibility and procedure for the scheme should be sent to the Chairman and Secretary of the Hull BFA prior to the scheduled 8 September 2000 meeting. The Minister also suggested that it would be wise to invite representatives from the other ports to come in separately to see policy officials. He said it might also be wise to write to the port MPs indicating that that was the intention of officials, given the close links between the port MPs and representatives of local fishing communities. The Minister commented that there may well be other problems that emerged in the course of those meetings.
35. On 3 September 2000 the Chairman of the Hull BFA wrote to a DTI official and enclosed an amended (as of 1 September 2000) list of reasons for breaks in a trawlerman’s service together with an agenda. The agenda listed 41 points. Point 13 concerned breaks in service and referred to the amended list of reasons. The Chairman wished to know whether some or all of those breaks would figure in the calculation of payments. If not all, then which of the reasons he had provided would not qualify for payment? On 4 September 2000 officials wrote to the BFA representatives for Hull, Grimsby and Fleetwood and said that the eligibility criteria had been agreed by Ministers. The purpose of the meeting on 8 September 2000 would therefore be to discuss ways of ensuring that former trawlermen eligible for payment got it as quickly as possible. They enclosed a copy of the application form and a definition of the scheme criteria drawn up by DTI’s legal section. A copy of the guidance notes would be available at the meeting.
36. On the 8 September 2000 a DTI official took a note of the meeting with the BFAs. Point 7 on that note recorded that the BFA had said that allowing a twelve week gap in employment was not enough. A trawlerman could be waiting for a job after getting a Mate’s ticket and that would extend the gap between voyages. They explained about ‘walkabout’ which meant a man was blacklisted and that getting a job often depended on the whim of the trawler owners. Trawlers could also be laid up because they had already fished their quota. They suggested that up to six months should be allowed between voyages before continuity was considered broken and that ‘special circumstances’ might justify an even longer between-voyage gap. They said that radio operators should be included in the scheme. A policy official ended the meeting by explaining that the BFA’s points would be put to the Secretary of State for consideration. Later that same day the legal section sent policy officials amendments to the scheme documents which they thought reflected that morning’s meeting, as they meant that the scheme would then include those who worked on ships which may have spent most of their time on trips to other waters, provided they made at least two Icelandic water trips. If they made any Icelandic water trips that meant they must have been distant water vessels. A policy official replied and said they intended to put a submission to Ministers to ask for decisions on the radio operators point and whether or not they should allow some exceptions to the twelve week rule on breaks in continuity and also to ask them to sign off the documentation.
37. On 11 September 2000 a policy official sent a submission to the Secretary of State in which he pointed out that the need to consider special exceptions and supporting evidence for longer than twelve week breaks, which could be so difficult to obtain so long after the event, would increase the complexity of the scheme and the length of time taken by RPS to assess claims. The submission recommended that, on balance, longer gaps should be allowed in the case of sickness or injury, where supported by documentary evidence, but that no other exceptions should be made. The Secretary of State replied on 13 September 2000 and said he was happy to have special exceptions for those who had journey gaps of more than twelve weeks, although he wished the official to confirm that the Minister of State was happy with the proposal.
38. On 18 September 2000 the Minister of State emailed policy officials concerning the submission to the Secretary of State. He said that regarding gaps of more than twelve weeks, of course illness or injury should not count against the men but there were other circumstances such as ‘walkabout’ where trawlermen were left to kick their heels for longer than twelve weeks before finding a ship. They needed to be flexible in recognising that those with whom they wished to deal were those who left to take other jobs and then returned. They should be identifiable. A policy official replied and explained that the difficulty he saw with allowing breaks of more than twelve weeks for reasons such as ‘walkabout’ was that it was unlikely that reliable documentary evidence would be available so long after the event to prove the reason for the break. If they looked at it the other way round and said they would disregard all breaks of over twelve weeks where the reason for the break was that a former trawlerman took a break outside the industry for a time, checking the claims would be much more difficult. National Insurance records would have to be checked and the then Benefits Agency asked if they were willing to take that work. It would also increase the costs of the scheme.
39. Later that same day the Minister of State and the policy official continued their discussion at a meeting. The Minister’s outstanding concern was the rule that between-voyage gaps of more than twelve weeks should be regarded as breaking continuity. He wanted to limit that to between-voyage gaps in which the former trawlerman took employment outside the distant water fishing industry, so that between-voyage gaps of whatever length would be disregarded if they were for reasons other than those including but not limited to injury, illness, ‘walkabout’, and training at naval college. The Minister pointed out that in practice the trawlermen would not have had between-voyage gaps of more than twelve weeks voluntarily, unless it was to work outside the industry, so any such gap could be assumed to have been imposed upon them, or at least not have been of their own making. He did not define what he meant by working outside the industry. The official pointed out that such a rule would make it more difficult to validate claims but the Minister responded that the number of claimants who had between-voyage gaps of more than twelve weeks, and who could not provide documentary evidence of the reasons for them, would be small.
40. The policy official subsequently recorded that the problem he saw with what the Minister proposed was that it would put the onus on operational staff to consider potentially many different types of documentary evidence of reasons for between voyage gaps of more than twelve weeks. If the exception to the twelve week rule was limited to cases of injury or illness as policy officials had proposed, the onus would then be on the claimant to prove that he was ill or injured during the case in question. However, the Minister clearly had strong feelings on the point. Policy officials identified the difficulty as an operational one rather than one of policy and in principle they could make the change the Minister had requested. Subject to any comment from RPS, policy officials suggested that the change be made.
41. On 25 September 2000 policy officials emailed the office of the Secretary of State and said that the proposals for the scheme had been discussed with the Minister of State. He had had one concern about the conditions for breaks in continuous service, which was the issue of ‘special exceptions’. They had addressed that by amending the scheme documentation to make clear that continuity was regarded as having been broken by any between-voyage gap of more than twelve weeks where during that gap the claimant was, for part or all of the time, engaged in work outside the industry. That meant work on vessels other than those that trawled in Icelandic waters. Other between-voyage gaps of more than twelve weeks would all be disregarded on the assumption that they must have been for reasons beyond his control and that it would be unfair to regard him as having left the industry during that period. The amendment would make it more difficult and time consuming for RPS staff to validate claims where the issue arose, but it would produce a fairer result and be welcomed by the BFA. On 29 September 2000 an official sent an email to colleagues attaching the press release dated 2 October 2000 announcing the opening of the scheme. On the same date an official told the office of the Minister of State by email that the scheme application form and accompanying notes had been successfully delivered to the ports of Hull, Grimsby and Fleetwood in time for the formal opening of the scheme on that day.
Operation of the scheme
42. On 24 October 2000, following a query from the legal section, policy officials clarified that the wording of the scheme document meant that a period of work of less than two years after a break would be enough to disqualify claimants in respect of their earlier service, however long that was, but would not be enough to qualify them for the scheme. Although that was the intention, policy officials foresaw problems if they received claims from people who had worked for twenty years, had a break in service, and then did one more voyage before leaving the industry.
43. On 29 November 2000 the office of the Minister of State emailed policy officials concerning a constituent of the Minister, a former trawlerman, whose daughter had a condition that was not properly diagnosed until she was aged 18, by which time it was far too progressed to be treated properly. The former trawlerman had taken breaks of service of more than three months to help treat his daughter who went through several serious operations with the aim of improving her condition. Policy officials replied the same day and said that the former trawlerman’s breaks in service to look after his daughter should not present a problem in terms of calculating his claim. The breaks should be treated as part of his continuous period of service – as he was not working for another employer outside the industry during those periods.
44. On 16 January 2001 at a meeting to discuss financial implications for the scheme, RPS staff reported that very few of the trawlermen had between-voyage breaks where they worked outside the industry. It was becoming very difficult to find out which ships had actually sailed to Iceland. They also pointed out that, according to the 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. RPS staff said they had also discussed the position of those working in 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. On 31 January 2001 policy officials discussed by email how they applied the compensation rules in practice. They had drawn up a list of vessels that had sailed to Icelandic waters although it was not yet finalised. 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 periods 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 in 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. Officials agreed that it could look exceptionally generous if, for example, someone had gone to Australia for five years, had not done any work in that period, and had then returned to the industry for a period of at least two years.
45. On 14 February 2001 there was a further meeting between policy officials and RPS staff to discuss the financial implications of the scheme. RPS staff said they were confident they could establish a list of vessels that had sailed to Iceland but not what they did after 1979. DTI officials said 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. Officials agreed to check the publication’s archives. 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 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. On 27 February 2001 the Secretary of the Grimsby BFA wrote to a policy official. She described as appalling the decision to refuse compensation to a former trawlerman because he took work on a trawler sailing out of Australia rather than go on the benefit system.
46. On 20 March 2001 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 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. He said 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.
47. On 17 April 2001 there was an exchange of emails between policy officials concerning the definition of an ‘Icelandic Water Trawlerman’. They said that the definition had been quite carefully constructed to meet the demands of the BFA. One official pointed out that they had had numerous discussions with the Minister of State and 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 Water Trawlerman’ had come up at some point, although he was doubtful whether anything specific would have been recorded in writing. The rules 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. However, he did not think they had ever gone into the level of detail that they were then doing.
48. On 23 April 2001 policy officials discussed a draft of operational rules for the scheme in order to assist RPS staff. In attempting to clarify who would qualify as an Icelandic Water 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 Water Trawlerman. In clarifying the definition of a relevant break under the scheme rules, the draft noted that it would frequently be a key factor in determining the amount of compensation. The draft provided some examples of what did and what 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. Fulfilling duties in the armed forces, 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 and during part of that time he was employed working on repairs to the vessel in harbour. The work in harbour was paid work for an employer and did not count as working as an Icelandic Water Trawlerman. On that same day a policy official saw an article in the Hull Daily Mail in which the Minister 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 made that remark.
Changes to the rules of the scheme
49. On 19 June 2001 a policy official sent a submission to the new Minister of State in which the Minister was informed that there was concern about the scheme in the local media covering the fishing ports and among the port MPs, particularly the Member for Hull West and Hessle and the referring Member. On 17 July 2001 the referring Member faxed a letter to the new Secretary of State in which he referred to 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. Yet there was another problem in Grimsby which he urged should not be accepted as producing a break 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. 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. It could not, therefore, be regarded as a break or used as an excuse to shorten service or disqualify.
50. Also, on 17 July 2001, policy officials sent a briefing paper to the Secretary and Minister of State which identified issues that had been frequently raised concerning the scheme including the issue of breaks in service. The paper explained that the port MPs had asked for certain breaks in service to be discounted, but that was not possible under the scheme rules. It 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 calculating the amount due. They had 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 work outside the industry, in which case the twelve week rule would stand. Under the scheme rules, continuity was broken only by a between-voyage gap of more than twelve weeks during which other work (including other fishing on non Icelandic 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. However, one effect had been that some former trawlermen who had 15 or 20 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 only for a reduced amount, as their work outside the industry broke their continuity for the purposes of the scheme rules.
51. On 18 July 2001 the Secretary of State met the port MPs to discuss their concerns about the compensation scheme. Earlier that day, officials had briefed her as to what issues the MPs might raise with her and the referring Member had made a number of points among which were breaks in service. Officials said MPs had more or less asked them to ignore certain breaks in service where there was a ‘deserving’ case. However, if they ‘bent’ the rules for one, there was no justification for not doing the same for any other person. The Member for Hull West and Hessle had also raised breaks in service but officials believed that the rules had not been understood. They thought it was just unfortunate that some people took shore work – for very valid reasons – but it still broke continuity under the scheme rules. At the meeting with the port MPs the Secretary of State said she realised there were certain cases that did not fall within the rules. The MPs therefore had an opportunity to tell her and the Minister of State about their concerns. The Member for Cleethorpes said there were several issues, one of which was how breaks in service were defined. The referring Member referred to his faxed letter of 17 July 2001 and emphasised that ‘some vessels had been forced to fish in the North Sea’ and that should not be counted as a break in service. Following that meeting, the Secretary of State said she required a further meeting and noted that there was a gulf between the expectation of the scheme and the actual 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 either on non Icelandic vessels, converted ex-Icelandic vessels or non-converted Icelandic vessels. She wanted to understand how each group, and there could be other categories, was treated under DTI’s view of the scheme rules and why.
52. On 30 July 2001, following a further meeting between the port MPs and DTI officials on 24 July 2001, the Secretary of State asked her officials to provide a submission with advice on how they could move forward. On 31 July 2001 officials sent a submission to the Secretary of State that discussed various suggested rule changes and their cost. Paragraph 8 of that 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 change were adopted it would go a long way to severing the link between the scheme and the ‘Cod Wars’ settlement. 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 have to be combined with abandoning the 1979 cut-off point otherwise all those who continued any kind of fishing after 1979 would be disqualified. The financial cost would almost certainly be enormous and 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. On 6 August 2001 the Secretary of State’s office told officials that the Secretary of State had seen the submission. She wished officials to obtain legal advice from counsel on the risks of the scheme being legally challenged by way of judicial review, because there was a mismatch between expectations and what the scheme actually delivered – as well as some ambiguities in the rules of the scheme. On the point as to whether voyages on non-Icelandic vessels should not break continuity but count towards it, she commented that that approach looked untenable.
53. On 31 August 2001 DTI’s legal section sent instructions to counsel to advise in conference on the risk of challenge to the scheme by way of judicial review in the event that certain rules changes were made, of which there were six options labelled A-F. Option E was that work on non-Icelandic vessels should not be counted as other work which, if done during a break from work on Icelandic 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 or fishing in the North Sea. 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.
54. The notes of the conference with counsel on 4 September 2001 reveal that option E was discussed and it was 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.
55. The conference discussed another option which was 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 him 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.
56. On 15 October 2001 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 for 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. On 22 October 2001 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.
57. On 26 October 2001 the Secretary of State announced changes to the rules in the compensation scheme. She said ‘Following the rule changes I have decided to make, distant water trawlermen who continued fishing after the end of 1979 on former Icelandic water vessels will no longer be disqualified from receiving compensation for that reason’. The effect of the change to the rules was that all former distant water trawlermen who had two years’ continuous service prior to 1980 on vessels that trawled in Icelandic waters and who finished that service on or after 1 January 1974 would then be eligible for compensation, subject to the other requirements of the scheme. Service on those vessels after 1979, or after the end of the qualifying period of continuous service, would not, however, count towards the period for calculating payments. Furthermore, periods of service on former Icelandic 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.
Continued dissatisfaction with the scheme rules
58. On 30 October 2001 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. One problem was that breaks in service were causing problems for some people. Fishermen who had fished Icelandic waters 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. 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 to the rules or just changes in the list of Icelandic vessels. They required advice as Ministers or officials might need to make it clear to the referring Member that there would be no more rule changes. The policy official replied that the issues could well be a problem and would shortly provide further and better particulars. On 31 October 2001 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 non Icelandic 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.
59. On 15 November 2001 policy officials sent a briefing to the Minister of State in readiness for a meeting with the port MPs scheduled for 21 November 2001. They summarised the recent rule changes and said that the Government was then satisfied that the scheme was properly targeted and was not prepared to make any further rule changes. A ‘relevant break’ was classed as a break from work on an Icelandic water vessel of longer than twelve weeks 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. On 21 November 2001 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 claimants. 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.
60. On 18 December 2001 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 ten 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 included in the calculation of the period compensated for. That decision could be regarded as irrational. On 20 December 2001 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).
61. On 20 December 2001 a DTI official wrote to her counterpart at the Inland Revenue (the Revenue) (which now had responsibility for the administration of National Insurance contributions) concerning DTI’s requirements for information about National Insurance contributions for certain claimants under the compensation scheme. She explained that the maximum payment would relate to a 20 year period and explained the scheme rules on continuity of work and relevant breaks. 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. 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. She confirmed that there might be around 500 claimants for whom they sought information.
62. On 14 January 2002 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 a 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 of over twelve weeks would automatically be discounted or would lead to a reduction in the compensation due to trawlermen. He argued that it was reasonable to consider that a trawlerman 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.
63. On 28 January 2002 the Revenue replied to DTI’s letter of 20 December 2001 concerning their request for information about National Insurance contributions that they had sought for some time in order to assist with the verification of claims on the scheme. The Revenue said they had explained when they met RPS representatives in March 2001 and a number of times since then that there was no statutory gateway between the Revenue and DTI for the purpose that DTI sought. The Revenue understood that the information sought by DTI related to the years prior to 1975. Before 1975 the records were kept and still were in manual form. However, those records did not hold details of employers during the year unless the employer was part of the Graduated Pensions Scheme and even then only as far back as 1961. It was impossible to say how the records maintained met DTI’s requests. The Revenue was not resourced to carry out work for other departments so DTI would be expected to meet the costs in full and confirm that in writing in advance. If DTI decided to take their request further, it would have to go before the Revenue’s Approvals Board and take its chance with all the other prospective new work.
64. On 11 March 2002, 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. On 12 March 2002 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 should 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.
65. On 20 March 2002 policy officials issued revised eligibility criteria and procedure for making claims that superseded the version issued on 2 October 2000 and reflected the changes to the rules (see Annex A). The same day, 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 line to take was 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 the 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.
66. On 13 May 2002 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 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. 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.
67. On 15 May 2002 a policy official emailed colleagues concerning a telephone conversation she had had that morning with the independent 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’.
68. On 10 June 2002 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 assumption 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 former 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 as an Icelandic water trawlerman’ and 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.
69. 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 adjudicator of 17 June 2002 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 had to 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. On 26 June 2002 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. On 10 July 2002 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.
70. On 22 August 2002 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 letters 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”’.
71. On 27 November 2002, following consideration of the issue of whether, under the scheme rules, trawlermen who had a longer than twelve week break from fishing in Icelandic waters and during it were requested by their employer to make voyages from non-UK ports amounted to ‘other work’, particularly in the light of then recent comments from the scheme’s independent adjudicator and concerns of policy officials, DTI’s legal section emailed policy officials and said their view was that it would be difficult to persuade a court that the adjudicator’s view on the issue was wrong. 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. On 2 December 2002 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.
72. On 24 January 2003 the referring Member wrote to the Minister of State. He said that the break in service rule was being unreasonably interpreted as not only a break from fishing (apart from being sent to prison) but also as work in the North Sea. Such breaks were more common on the Grimsby side of the Humber because that port had more alternative forms of fishing which men were required to pursue (by the dock office, and the eligibility rules for unemployment benefit, as well as by the owners’ own rules) if no Icelandic trips were available, but also for qualifications such as Mates’ and Skippers’ tickets since some owners, such as Ross, required that those taking tickets should work for a specified time in the North Sea to gain experience before being put back into Icelandic fishing. In Hull, with no alternatives, if someone left fishing that was a clean break and they therefore qualified for compensation. In Grimsby, particularly as the industry ran down, there were alternatives and those were then being wrongly interpreted as breaks in service. Hence compensation payments to Grimsby trawlermen were often less, particularly if they qualified for two years between 1972 and 1979 but were cut off because of a break from long previous service. The result was a perceived injustice which had caused a lot of bad feeling south of the Humber and needed to be put right. The Minister had indicated he would bear the Grimsby complaints in mind in his closing decisions on the scheme and the referring Member thought that he must do so. That meant not treating North Sea work as a break in service.
