- 19.05.2013 -

LETTER FROM THE PARLIAMENTARY COMMISSIONER, ARNE FLIFLET

On the 12th of December 2008,  the Sivilombudsmannen (Parliamentary Commisioner) sent the following letter to the Minister of Labour and Social Inclusion Dag Terje Andersen.

From:

To:

 

ANNOUNCEMENT ABOUT THE COMPENSATION ARRANGEMENT FOR PIONEER DIVERS

 The North Sea Divers Alliance (NSDA) complained in a letter of June 29 2006 about the following up by the Arbeids- og inkluderingsdepartement (Labour and Social Inclusion) of the Parliament resolution 259 (2003-2004) pertaining to the establishment of a compensation arrangement for pioneer divers in the North Sea. The reason for the complaint was that NSDA held that the department had not initiated sufficient measures in order to inform persons entitled to compensation but now living outside Norway.

After having obtained a proclamation from the department, I conceded in a final letter of February 1 2007, that I did not find reason to criticise the department for defective announcement about the compensation arrangement. NSDA, however, took up the case again in a letter of February 7. 2007. Based on that communication and a meeting with representatives from NSDA March 1. 2007, I found reason to reopen the case.

In a letter of May 2. 2007 the case was presented to the Arbeids- og inkluderingsdepartement (Labour and Social Inclusion) once over. After this there has been comprehensive correspondence with NSDA and the department. The department has stated that information about the compensation arrangement has been on the Norgesportalen and the internet home page of the Norwegian Embassy in London and the Consulate-General in Houston. Furthermore, information about the arrangement has been distributed to 15 humanitarian organisations and to the Seamen’s Church in Houston and New York, this in addition to an ad about the arrangement in a local newspaper in Houston. Through the embassy in London an application was made to the British Department of Work and Pensions , where help was asked to track down  relatives of a number of named, deceased British citizens. This application was never answered. The department also informed that concerning one specific, named diver considerable effort was made to find the concerned, which succeeded in the end.

The department has in the correspondence held that the above mentioned measures must be considered sufficient. In this context it is also referred to the report from the investigating commission for the examination of the working conditions for the north sea divers, the so called “Lossius-commission”, and the fact that the total number of divers entitled to compensation amounts to approximately 350 persons. As of now about 300 applications for compensation have been received, of which approximately 280 have been granted.

NSDA on the other hand has commented that the measures of announcement that the department has effected are not satisfactory. In the NSDA’s opinion, the Norgesportalen is not a suitable medium through which to reach those entitled to compensation who have not already been informed about the compensation arrangement. Neither through the other measures is it probable that all persons entitled to said compensation have been properly informed. A more satisfactory process would have been, according to NSDA, to send written information to all persons who have received a Bell Diver Certificate during the relevant period of time.

The above arguments from NSDA have been presented to the department, which however stated that they do not find it suitable to send notification to all persons licensed wit Bell Diver Certificate in the relevant period. The issuing of such a certificate does not necessarily mean that the person receiving such certificate actually  has been involved in activities that  gives right to compensation. For example, such certificate may have been issued to persons who have never participated in diving activity, or who have done diving activity in sheltered waters or outside the Norwegian continental shelf.

I state the following opinion about the case:

1.                  The scope of my investigations and assessments

Before going into details about the facts of the case, I find it suitable to make clear the bounds for which circumstances are relevant to my office and that I can express opinion about. According to the Law of Parliamentary Commissioners (Ombudsmannsloven) §4 first paragraph, the Parliament Commissioners scope of work is “ the Governmental administration and all who do service therein”. From §4 first paragraph litra a-c it follow, however, that the commissioner shall not handle cases that have already been handled by Parliament, the King in Cabinet meeting or the Courts. In cases that have been handled in one of the mentioned institutions, it is also outside the scope of the commissioner to express opinions about the case handling of other administrative offices. I refer in this context to the Innst. O. nr. 15 (1979-80)where this is expressed specifically concerning cases that have been handled by the King in Cabinet Meeting.

NSDA have in their correspondence furthered comments in relation to the juridical responsibility of the State pertaining to the North Sea divers. This question has been assessed both by the Lossius-commission, the King in Cabinet meeting and Parliament. In Stortingsmelding (Parliament bulletin) no. 47 (2002-2003), page 15 onwards it is stated that the State has no such juridical responsibility for the divers. Stortingets kommunalkomitè by their own assessment found it unnecessary to explicitly decide on the question, see Innst.S. no 137 (2003-2004). In the documents from the Parliament handling of the case it follows clearly that the compensation arrangement which was founded on stortingsvedtak (Parliament decree) 259, was not based on the State’s juridical liability towards the divers.

When the question of the State’s liability has been handled by the King in Cabinet meeting, it follows from the Ombudsmannsloven (Law of Parliament Commissioners) §4, first paragraph ltra b, that this question falls outside my field of responsibility. Liability cases have furthermore been handled in two court decisions from Borgarting lagmansrett and Oslo tingrett, that were both appealed to the High Court. Thus, also after Ombudsmannsloven (Law of Parliament Commissioners) § 4, first paragraph, litra c am I prevented form expressing my opinions about the liability of the State, hereunder whether the State has violated international conventions of human rights.

The NSDA has also raised questions about the case handling prior to the Stortingsvedtak 259 (Parliamentary resolution). It is among other things advocated that the administration has not acted correctly towards the Lossius-commission and that the Arbeids- og inkluderingsdepartement (Labour and Social Inclusion) disqualified in the handling of the case. Considered that the case, after having been handled by mentioned institutions, the case has also been handled by the King in Cabinet meeting, it follows from |4, first paragraph, litra a and b that I am prevented from taking an attitude towards these questions.

Finally, NSDA has raised the question whether it is juridical correct to demand membership in the Norwegian Folketrygden (Health System)  to be entitled to compensation. (Social security system). This condition is established by the Storting (Parliament), ref. Stortingsvedtak 259 (Parliament resolution), ref. Innst.S. no 137 (2003-2004) item 2.3 no 1 (Parliamentary bill). According to Ombusdsmannsloven (Law of Parliamentary Commissioner) §4, first paragraph, litra a, I am thus prevented from taking an attitude or express my opinion about the case.

2.                  Notification to divers entitled to compensation

Stortingsvedtak 259 (Parliamentary resolution) does not concretize in what manner the compensation arrangement shall be announced. There exist no other explicit rules about how announcement of  such compensation arrangements shall be executed. Basically thus, it must be up to the administration to find and execute measures that seem suitable to reach persons entitled to compensation, within the normal bounds of administrative principles of decent case handling and decent administrative tradition. For me, the question is to what extent the effected measures, assessed as a whole, can be considered sufficient and responsible following up of the Stortingsvedtak 259 (the Parliament resolution 259).

Stortingets kommunalkomité (Parliamentary committee for  public administration) has in Innst. S. no 137 (2003-2004) (Parliamentary bill) given directions for the compensation arrangement for pioneer divers. These directions have been approved by the Stortinget (Parliament) in Stortingsvedtak 259. From the directions’ item no 6 it is evident among other things that:

 “The arrangement is to be announced, when coming into force, in suitable media, so that all actually entitled divers is given the opportunity to apply”.

The directions must be read in the context of the other elements of the parliamentary bill (Innst. S. nr 137 (2003-2004) and other documents on which parliament (stortinget) based its handling of the case. In NOU2003:5 page 12 onwards the Lossius-commission concluded hat the total number of persons entitled to compensation was about 350, and that the commission through their investigations had been in contact with most of these. Neither the administration nor the parliament (Stortinget) have reassessed the commission’s  evaluation on this particular point. Both Parliament (Stortinget) and the parliamentary committee thus appears to have founded their work on the assumption that there were about 350 persons who needed information about the compensation arrangement, and that it through the investigation by the Lossius commission had been established contact with most of these persons. Based on that assumption, the announcement and information task must have appeared substantially less comprehensive than it would have been, if Parliament (Stortinget) had based its directions on the comment from NSDA that there are several persons entitled to compensation now resident outside Norway. This implies that the condition that the notification must reach “all” persons entitled hardly can be interpreted entirely by the letter if the situation is according to NSDA’s comment.

NSDA and the department appear to have very divergent assessments of the total number of persons that will be entitled to monetary compensation after the arrangement. This is a question of facts and not relevant for clarification here. Basically I assume that it must be considered justifiable that the department based its work on the number that the Lossius-commission had calculated. I assume that the commission has reached this number through thorough investigation of public and private archives and that neither the King in Cabinet meeting nor the parliament have put forth objections to this number. This basis does still not imply that the department can rule out later accessed information that makes probable that the number of entitled persons is higher than the commission’s assessment. I have, however, not found factual basis to express an opinion about whether the information that NSDA has presented during the handling of this case can be consider new information or not and neither if it is a matter of information that was not accessible to the Lossius commission during its investigation.

NSDA have in their correspondence here advocated that a more suitable channel for information would be to send written information to all persons registered to have been certified as bell divers in the relevant period. As indicated above, it is the administration that decides which information measures be suitable. In view of the fact that relatively few mass media appear suitable to reach all persons that may be encompassed by the arrangement, the proposal from NSDA appears to be one way of reaching all entitled persons. I am aware of the department’s objection that persons who have been licensed and received bell diver certificates not necessarily fill the criteria for compensation after the arrangement. It is, however, difficult for me to understand that this can be a decisive objection against using this approach, as long as it in the distributed information is made clear that it has not been arrived at a decision whether or not the receiver is encompassed by the arrangement. As far as I am informed, I assume that the total number of bell diver certificates issued in the relevant period amounts to app 1000-3000, and that an address is also given for each of the persons registered. On this background it does not appear to be a disproportionate amount of work to send a standardized letter of information to all the registered persons.

3.                  Conclusion

The department should also consider if there is reason to ask the King in Cabinet meeting to extend the working period for the committee that handles applications for monetary compensation after the arrangement. I emphasize, for the sake of order,  that complaints about a possible decision by the King in Cabinet meeting, can not be handled by this office.

I ask the department to keep me posted on the further development of this case.

 

Arne Fliflet

(sign.)