I move amendment No. 5:
In page 7, between lines 10 and 11, to insert the following:
"(5) In the event of a refusal by the Board, of any application for a Bord Fáilte Certificate to grant the said certificate, an appeal against that decision by the Board shall lie and the suit of the applicant to the Circuit Court.".
On Committee Stage my amendment said that in the event of a refusal of an application for a Bord Fáilte certificate an appeal would lie at the suit of the applicant to the District Court and that amendment was debated. I have thought about it very carefully and, if anything, my view is reinforced that an appeal on this issue is essential. As I indicated at that time, the reality of what is involved is that an inspector appointed by Bord Fáilte will carry out the inspection and on him, and on him alone, will rest a very important decision, possibly involving the livelihood of many people. I am given to understand that if certain restaurants do not get the special certificate, they will have to close because they will not be in a position to compete with nearby restaurants which have this licence. I was told that by a person who runs a restaurant. That is reality. The granting of this certificate will make a very big difference to the restaurant trade, we all know that.
There are decisions of fact involved here. The inspector will be an employee of a semi-State body. There could be some bias involved. He might not like the politics of the person running the restaurant. He may have a personal view about the particular restaurant, or his standards may be exceptionally high or exceptionally difficult. He may decide, in his view, that the restaurant does not measure up. It is fair enough that any person should have a view on whether a restaurant measures up to his standards, but let us look at some of the matters of fact. An inspector will have to determine whether the restaurant provides a high standard of catering, for example. This is an area where the standard might slip one day and not on another, and one person might have one standard of catering, while another person would take another view.
Another criterion is that the restaurant is well furnished. The inspector might take the view that the restaurant is not well furnished but the owner might take the view that it is well furnished and that he should get the special restaurant licence. Will such an important decision be taken by a civil servant and that will be the end of the matter so far as the applicant is concerned?
Admittedly, under the Minister's amendment, for which I am grateful and which goes some way towards resolving the matter, but not far enough, the inspector is now obligated to give the reasons for his refusal. If minor matters only are involved, that might be of help, but there could be major matters involved. It could be that the furnishings in the restaurant do not measure up to the inspector's standards and he will not recommend that Bord Fáilte grant the special restaurant licence. Trying to measure up to the inspector's standards might involve the restaurant owner in considerable expenditure, which he might not be able to meet. The reality might be that while the restaurant owner would maintain — and others might agree with him — that his restaurant had reached the required standard, there would be nothing he could do about the inspector's refusal to grant the licence and his livelihood could be at risk.
Issues of fact are a person's appreciation of whether furnishings are of sufficiently high standard, whether the staff are competent, whether the restaurant is comfortable and so on.
Issues of fact are determined by tribunals and courts every day of the week and can be appealed, and very often their decisions are overturned. District Justices, for example, hear evidence on matters of fact and come to a decision, doing the best they can in the circumstances, but very often their decisions are appealed to the Circuit Court where a rehearing takes place and evidence of fact is given again. It is by no means unusual that the Circuit Court judge takes an entirely different view of the facts and overturns the decision of the lower court. The same may apply when a Circuit Court decision is appealed to the High Court.
Yet we are saying here that this inspector's findings of fact, possibly determining a person's livelihood, are special and that no appeals tribunal, be it the District Court or the Circuit Court, could possibly hold, for whatever reason, well intentioned or otherwise, that he formed a wrong view on those facts. It is entirely unjust that so important a decision should rest on the decision, which cannot be appealed, of one civil servant. This matter is far too important to leave in his hands, and in his hands alone. As I said, this could mean the difference between a person's livelihood and the loss of his livelihood because the requirements put forward by the inspector could be beyond the financial means of the applicant.
In the interests of justice it is essential on this issue, as it is on virtually all other issues of importance, that an appeals procedure should be provided. I would prefer the appeals procedure to be the District Court, as it was in my amendment on Committee Stage but I understand that, according to Standing Orders, I cannot table my Report Stage amendment in the same form. That is why I put in the Circuit Court, the court given the function under section 8 of dealing with the application. I believe it would be wrong to leave the matter solely in the hands of one person who might get it wrong on some occasions with disastrous consequences for many people.
I ask the House to accept this amendment.
