Vol. 525 No. 5
I move:
That Dáil Éireann, conscious of the injustice done to the people involved, as recognised by the Oireachtas Joint Committee on Agriculture, Food and the Marine, calls on the Government to provide either an appropriate milk quota or financial compensation to each of the members of the Milk Rights Group, based on the outcome of the successful legal proceedings taken by persons in the same situation.
I wish to share my time with Deputies Sheehan, Connaughton, Creed and Crawford.
Is that agreed? Agreed.
We, in Fine Gael, move this motion to remedy a long-standing injustice. Our view of this matter has the backing of the Oireachtas Joint Committee on Agriculture, Food and the Marine. It is based on decisions made by the courts in over 100 specific cases of people who are in situations similar, if not identical, to those in which members of the Milk Rights Group now find themselves.
The roots of this injustice go back to the early 1980s. Given the views subsequently taken by the courts and the Joint Committee on Agriculture, Food and the Marine, the time has come for the Government and the Minister for Agriculture, Food and Rural Development to take appropriate action to remedy that injustice. It has often been said that justice delayed is justice denied. On that basis, the members of the Milk Rights Group have been denied justice for far too long, and any further delay will only increase that injustice.
The Minister's amendment, which I hope he will decide not to move, asks the House to accept that the position taken by the Minister up to now is the appropriate one in the circumstances. It flies in the face of what courts have decided and an Oireachtas committee has supported. The Minister is effectively inviting Members of this House, particularly members of his party who support the committee's view, to deny themselves and to reverse the position they took when they accepted the case made by the Milk Rights Group. The amendment invites Members of this House, knowingly and wilfully, to prolong and maintain an injustice. It invites Deputy Healy-Rae, who is a paid up member of the Milk Rights Group, to turn his back on an organisation to which he freely adhered, to apostatize himself and to give the back of his hand to people who up to now regarded him as a friend and ally.
Neither the Government nor the Minister has claimed the courts got it wrong. They have, however, adopted the much more craven and dishonourable stance of sheltering behind the Statute of Limitations. They do not argue with the courts or say the courts were wrong to do what they did. They say that too much time has now passed for them to believe they are in any way obliged to act to redress this injustice. That stance by the Government may be legal in the strictest sense of the word but it is not honest, realistic, fair or compassionate.
We in Fine Gael invite the Minister to take an ex gratia action to remedy an injustice with which he has been familiar for many years. His only response is a pathetic amendment which invites members of his party to make liars of themselves and to turn their backs on their decent instincts and invites us to believe that the Minister is to be totally trusted in his handling of all aspects of the milk quota regime.
The Minister must be aware that the issue taken up by the Milk Rights Group is not the only issue of difficulty with the milk quota regime. He must know by now that the most recent milk restructuring scheme has left many farmers, including a number in his constituency, with a strong sense of grievance. He must know that the operation of the milk quota system has been and will continue to be controversial in many respects. It is a piece of brazen political effrontery by the Minister to invite the House to state that it supports him in his handling of all aspects of the milk quota regime.
The problem raised by the Milk Rights Group goes back to the beginning of the milk quota system. I have always been against such systems. I know that is not a common view in public among the leaders and spokespersons of the main farming organisations. Quota systems unnecessarily freeze production patterns and they restrict as many people as they help, if not more. We have enough evidence of that in the European Union's farming system today. There is now almost nothing one can do on a farm without getting permission to do it. One must have a quota to produce milk, to run a suckler herd, to keep ewes and to grow corn. One must now get and pay for a licence to keep livestock since the Minister reneged on a commitment given by the Minister of State. We now have a more regulated system of agriculture than was ever seen in the old Soviet Union and we are not the better of it.
In a previous employment I was partly instrumental in delaying the introduction of the milk quota system by a few years. I had hoped to be instrumental in preventing its emergence but, unfortunately, that was not to be. For good or ill, the system was introduced in 1983. At the time the quota system was instituted, a number of farmers in member states of the European Community, as it was then, had farm development plans which included a dairy enterprise as an essential part of ensuring the viability of their farms. Many Members of the House will remember what it was like in those days to work out development and viability plans. They were not taken lightly by anyone. Numbers of farmers whose plans included a dairy enterprise had the misfortune at the time to have recently had an animal disease problem which meant they were not engaged in milk production at the relevant times when entitlements to milk quota were being considered. They were not the only ones who had a grievance.
Any quota system, no matter how fairly its architects try to construct it, is of necessity arbitrary and restrictive and will fail to provide for the legitimate aspirations of many of those affected by it. In the specific case of the milk quota regime, its design was inherently susceptible to influence and interference by the type of animal health problems which unfortunately emerged even on the best run farms. Thus, a number of people who had a legitimate expectation and a pressing need to have a dairy enterprise were excluded from the milk quota system.
That is where the injustice began which our motion seeks to remedy. Many of the people affected by being denied milk quota at the beginning went on to develop a dairy enterprise by leasing or buying quota over the years. Anyone who knows the operation of the quota system will realise that no matter how hard those people tried, they were inevitably adversely affected by the fact that they did not have a milk quota of their own to build on as a base from which to develop. That has been an obstacle with which those people have had to contend for the greater part of the past 20 years.
The matter ended up before the courts, first in the Mulder case and subsequently in many other cases. That went on for a long time. The Minister and Deputies on this side of the House know how long those procedures took. The cases all had one thing in common. The courts vindicated the rights of the applicants and found that they were entitled to the same consideration that had been given to other people involved in milk production but who did not have disease problems at the material time. In the case of the problem focused on by the Milk Rights Group, over 100 people brought their cases before the courts and found their rights were vindicated. They were entitled to be compensated for the fact that they had been excluded in the first instance.
Not all the details of these cases have been settled. I understand that further detailed action still has to be worked out in individual cases to give effect to what the courts have decided. Many of the people affected by this injustice found themselves unable to take the risk of committing potentially large amounts of finance to the hazards of the courts. Who can blame them? We know from many connections that not everybody can afford to take a case before a court. Inevitably proceedings last for some time and in some of these cases they were very protracted.
The result of what has happened is that there is a substantial number of people who have basically the same grievance as those who could afford to go before the courts, who see their rights have been vindicated. They therefore have a legitimate expectation that in comparable cases they should receive comparable treatment and redress for the injustices they have suffered. That lies at the core of the motion.
The motion does not seek to impose a specific formula of address in each case. It calls on the Government to provide either an appropriate milk quota or financial compensation to each of the members of the Milk Rights Group based on the outcome of the successful legal proceedings taken by persons in the same situation. It is specifically designed to leave those affected by this injustice – and the Minister – a substantial latitude as to how to find the remedy for each individual case.
While the problems are common, the situations of individual affected have evolved differently over the years. Personal, family and farming circumstances have changed in different ways for different people. That is why we propose a solution that leaves latitude to both parties to find the most appropriate remedy in each case. The Minister appears to have the latitude to deal with the situation in cases where it seems that a quota allocation is the right way to proceed. When responding to the motion I invite him to say how much latitude he has.
I also ask the Minister to take a constructive view of the motion. Let us have, for once, a Minister responding to a motion with a solution to the problem. He should not tell us what he considers to be the problems in the motion because we have deliberately left it wide to allow him and the parties with a grievance the flexibility to find ways to resolve specific cases.
I pay tribute to the members of the Milk Rights Group who have fought their case with energy and persistence over the years, through many vicissitudes and in the face of considerable personal difficulties. The have made a deep and lasting impression on Members to whom they have spoken. It was they, and their energies, who helped my colleague, Deputy Connaughton, who preceded me as Agriculture spokesperson for my party, when he brought the matter before the Oireachtas Joint Committee on Agriculture, Food and the Marine. The committee approached the issue with its usual application and understanding and, after due deliberation, unambiguously concluded that the Milk Rights Group had made a case deserving of its support. Accordingly, it unanimously recommended that provision be made for compensation for the members of the Milk Rights Group.
The committee was, rightly, careful not to be specific about the form of the compensation because it saw the matter in the same way as I did. Members of all parties in the committee supported its conclusion, including the Chairman, Deputy John Browne from the Carlow-Kilkenny constituency, Government backbenchers from the Dáil and the Seanad and Deputies and Senators from the Labour Party and Fine Gael.
Since then, nothing has happened that should cause any of the committee's members to change their view and there is nothing in the Minister's proposed amendment to the motion that could lead any member of the committee to change his or her view. Nor is there anything in the amendment that could lead any Member of the House who is not a member of the committee to change his or her stated view, whether that Member be a Government backbencher, a member of the Opposition or one of the so-called Independent Members who have slavishly supported the Government in every nonsense it has perpetrated.
I do not know if the Minister will persist with his pathetic amendment to the motion, but I hope he does not. He would do a great favour to a great many people if he accepts our case. There would not be much triumphalism at that, rather many people would consider the best way to approach a resolution of their difficulties. I would like to see the energy represented by the people who supported the Milk Rights Group being devoted to that kind of constructive work rather than being spent on trying to persuade the Minister to do the decent and inevitable thing by supporting the motion and accepting the conclusion of a committee of this House.
I call on the Minister to stop hiding behind the Statute of Limitations and to stop ignoring the fact that courts have decided that people who have been treated in the same way as the members of the Milk Rights Group are entitled to redress. He should stop trying to deny the existence of the problem by attempting to sweep it under the carpet. Let us find a way to deal with this problem. It is not the only problem to have emerged from the milk quota system.
The Government's proposed amendment to the motion is the flimsiest of figleafs. I reject it. I ask the House to do so, but to save us that trouble I ask the Minister to withdraw it.
I am pleased my colleague the Minister for Agriculture, Food and Rural Development is present to hear some common sense in so far as it relates to the farmers concerned with this motion. In 1997, in the case of Duff v. the Minister for Agriculture, the Supreme Court finally determined that the Minister had made a legal mistake in the method used to allocate milk quota and that the plaintiffs were entitled to damages. That was a clear legal position. However, because the members of the Milk Rights Group were not among the plaintiffs in that case, the Department has refused to compensate them for losses and damages suffered and has adopted the position that their claims are “statute-barred”. This famous double-barreled word does not make a tráithnín of sense as far as the members of the Milk Rights Group are concerned.
Having carefully considered the facts, I maintain that the members of the group who are currently engaged in farming and who can demonstrate that they, like the plaintiffs in the Duff case, suffered loss or damage as a consequence of the mistake of law made by the Minister, are morally entitled to compensation for past and future losses or damages. This compensation should be awarded on an ex gratia basis and the Department should not shirk its moral responsibilities by sheltering behind the statute-barred defence. Members of the group should not be further penalised because they did not have the necessary financial resources to pursue the State through the courts or were unwilling to incur further financial losses by so doing. The Minister knows in his heart that the majority of the farmers concerned were not in a financial position to go to court to prove their rights in this matter.
The Department should now assist those currently engaged in farming to obtain compensation. This could be achieved through an examination of the Department's files and-or newspaper advertisements. The Milk Rights Group has already undertaken such an exercise and has estimated the numbers affected. The group could greatly assist the Department by providing it with this information and other documentation such as farm development plans and cattle disease facts.
The Department has a number of options available to it. It can allocate all currently unallocated 11.5 million gallons of milk quota to farmers represented by the group still in production and who can demonstrate they suffered loss or damage. If this is the Minister's preferred option, he should immediately ring-fence that quota until precise quota allocations are calculated. The figures compiled by the Milk Rights Group indicate that this would involve an allocation in excess of eight million gallons. I understand the IFA has negotiated, or is in the process of negotiating, a deal with the Minister for six million gallons of quota. If that is the case, he should accept our motion in good faith. If the Minister is unwilling to pursue the above course of action, he should compensate affected farmers for past and future losses through the provision of a monetary award or combine the above options. As the Department is responsible for the original error, it is a matter for it, in consultation with the damaged parties, to decide which of these options is most appropriate.
The current difficulties arise from a legal error made by departmental officials under a previous Government but the resolution lies in the Minister's hand. There is the strongest conceivable moral obligation on the Minister and the Department to devise an appropriate remedy.
The quota year was based on the farm production of milk for the year 1982-3 and the quota was established on the basis of the amount of milk supplied by each farmer during that year. No concessions were made for farmers who experienced disease problems in their herds that year and who strictly complied with the rules governing diseased herds at the time. I know of a farmer in the Minister's constituency who had a herd of 75 milk cows in the period 1980-81 but lost 25 of them as a result of bovine tuberculosis. How could that farmer have been expected to reach his target for the quota year 1982-83 when he lost 25 animals in spite of having diligently complied with the Department's instructions?
The Minister should come out from the shadows and accede to the request before him. It would not break his heart to make a settlement in this very important matter. As many of the people concerned are in the Minister's constituency, it would be to his benefit to accede to this request.
It is past time that the issue of the milk quota was debated and voted on in this House. I do not have the necessary time to go over the painful history of so many potentially viable dairy farmers, many of whom I have known personally, from 1983 onwards. Many of the farmers who had high hopes in the early 1980s have left farming in a bitter and confused state and I am sure some of them are here this evening. The debacle placed others under such a severe financial burden that they have been discriminated against repeatedly over the years.
No group in Irish society has such a compelling entitlement to compensation as the Milk Rights Group. Legal precedents have been set both here and in Europe. The famous Mulder case made EU history some years ago when a Dutch court found in favour of a Dutch dairy farmer. The Irish court system has granted compensation to a group of farmers which fought its way through a maze of court proceedings, some of which are still ongoing.
The only defence advanced by this Government in regard to the Milk Rights Group is that its case is statute-barred. The Minister does not contest the fact that these farmers and their families were hurt, and in some cases ruined, by this debacle. I have never heard him publicly state that there is any difference between this group and the first one. Yet, he hides behind the legal definition of statute-barred. Two groups of dairy farmers wished to make a living from the land; the courts found in favour of one of them but the second group did not have the necessary financial wherewithal to go to court. When a farmer loses dairy cows and, therefore, his or her plans are ruined, he or she is not really in a position to pursue a legal case against the State. Many of the farmers here tonight, and others who are not present, did not have any alternative but to stand back in the absence of the financial backing required to go to court.
Precedents have been set in regard to this matter. Everyone agreed that the first group had a case and the case was also made in Europe. Significant numbers of Irish farmers, who are members of this group, are entitled to be compensated in some way. I have met hundreds of these farmers over the years. They are not necessarily seeking everything to which they might be entitled but they are seeking a fair settlement.
I heard the Minister and all the members of the Oireachtas Committee on Agriculture, Food and the Marine state that these farmers have a genuine case. We come to the Minister on their behalf. They are entitled to be looked after.
In terms of the amendment, we have been listening to that long playing record for years. It is about time it was changed and the Minister came up with an equitable system which will financially help farmers who have spent almost 20 years trying to get their rights.
The injustice visited upon those farmers who participated in the farm modernisation scheme, who found the legs cut from under them in terms of establishing a milk quota, dates back almost 20 years. To borrow a phrase from another area of political debate, those who had that injustice inflicted upon them have not gone away. The fact that they have been campaigning for justice for almost 20 years is a clear indication of their belief that a serious injustice has been inflicted upon them.
Neither an official in the Department or a Minister deliberately inflicted that injustice on them, but what is at issue is whether the Minister, now in a unique position because of milk and money availability, will deliberately withhold justice from the group. That is the essence of what we are debating tonight. None of the Minister's predecessors were in his unique position in terms of Exchequer buoyancy beyond our wildest dreams, to provide financial compensation and an additional 11 million gallons of quota. These could be combined to provide a compensation package for farmers.
Either the stamp of agencies of the State – Teagasc, or ACOT in the early 1980s – and the Department of Agriculture, Food and Rural Development mean something or they mean nothing. It would be a calamity if these farmers, who were enticed, invited and encouraged to undertake development programmes on their farms, now found, when a unique opportunity exists to resolve their dilemma, that we closed the door on them on the basis that they are statute-barred.
Earlier this year we had a debacle in terms of concerned quota holders, many of them in the Minister's constituency and substantial numbers in County Cork, and changes to the milk quota regime. Farmers were extremely aggrieved about changes introduced. The milk quota regime is a minefield, because it is very difficult not to disadvantage some by moving in one direction. However, in this case there is a clear-cut opportunity, given that 11 million gallons are available to the Minister from CAP reform and the Exchequer buoyancy, to introduce a package to give justice to these people after 20 years. It is past time that this matter was brought to a financial and satisfactory conclusion. That they have persisted in campaigning for so long is indicative of the injustice they believe was done to them.
Not every injustice has a legal remedy, but in today's climate people should have access to a political solution, and the Minister is in a unique position to deliver that, unlike his predecessors. So that we can bring finality to this issue I urge the Minister to accept the motion as tabled.
The Independent Deputies will vote on this motion tomorrow night if the Minister does not accept it. One cannot say one thing on the plinth of Leinster House and do the exact opposite in this House. They are either Independent Deputies in the true meaning of the term ‘independent', who will weigh up every issue in terms of justice, or they are in effect Fianna Fáil by another name. I particularly call on Deputy Healy-Rae, who has given commitments the length and breadth of the country to individual members of the Milk Rights Group that he supports its case, to back his words with action in the Chamber tomorrow night.
I wish to declare my interest. I am a dairy farmer and was one of the lucky ones in that my herd was closed by one animal following testing and I had, therefore, to hold on to many others, resulting in my quota increasing in the period while that of many others decreased. It caused major financial problems, but now at least I have a decent quota for the farm I still own.
When the milk rights group approached me I did not sign the petition it put forward, but I gave a clear letter of support for the case being put forward by them. Some individuals were very annoyed with me at that time. I wonder what will happen tomorrow night when Deputy Jackie Healy-Rae walks into the House and votes with the Minister, unless the Minister is forced by the Deputy to change his position. Deputy Healy-Rae and his three Independent colleagues were negotiating with the Minister's office today and I hope for the sake of farmers that negotiation was fruitful – Deputy Healy-Rae claims to be able to do all sorts of things. He guaranteed he would get special status for Kerry, but failed, and unfortunately it might be the same in this case.
About 110 cases went to the courts and 500 or 600 others have similar rights. I question whether the State should use the Statute of Limitations against people seeking their just rights. The statute was changed in the area of personal activity, and there is a just reason for it to be changed in this situation. I support my colleagues, particularly Deputy Dukes, who have put forward the legal and technical case for this process.
Farmers should either receive quota or financial compensation. If it is to be financial compensation, the Minister must ensure people who genuinely want to go back into milk production are allowed into the system. I can think of a case, for example, of a family which had about 30,000 gallons under a farm plan and which has bought in more than 100,000 gallons since that time at enormous cost. That may be an extreme case, but there is a need to work out ways of helping such people.
The Committee on Agriculture, Food and the Marine, under the Chairman, Deputy John Browne, reached a unanimous position, put forward by the Milk Rights Group, which would ensure the Minister did the right thing. The Minister cannot ignore the committee structure or the people who voted on the committee. I wonder how some Members can agree on something in a committee and then vote against it in the House.
In Cavan-Monaghan, my constituency, we have few opportunities outside grassland production – there are very few areas which can produce corn, potatoes, etc. Therefore, milk production is of extreme importance. While additional quota was received this year, the Minister should have made better use of opportunities on previous occasions, when Italy and others received quotas.
A letter from an individual who had a farm plan drawn up for him by a Government agency and who was told exactly what he should and must do reads as follows:
This year, once again, I appeal to you for assistance. I started supplying milk in 1979. In 1983 supplies to the creamery were 19,000 gallons. In 1994 my herd had increased and supplies to the creamery were 31,000 gallons. In order to continue in milk production I had no choice but to buy quota and over the following years things got no better.
Farmyard pollution control necessitated building a slatted shed and then dairy hygiene regulations meant I had to build a milking parlour. Every step of the way I complied with Department regulations. Never have I qualified for any assistance, be it national reserve allocation, subsidised restructuring scheme or the financial rescue package. Capital expenditure on my part over the past years has been huge but if the quota base year had been 1984 instead of 1983 I would automatically have had 12,000 more gallons and may not be in a financial crisis.
The Deputy must give way to the Minister. He has gone over time.
This man has to look after a wife and young family. His wife had to go back to work to pay for the quota. I believe the time is ripe for the Minister to rectify an injustice. He has the opportunity to do so now and he should deliver. He is the man in the right place.
Where are the Minister's colleagues?
I move amendment No. 1:
To delete all words after "Dáil Éireann" and substitute the following:
"accepts that the position taken by the Minister for Agriculture, Food and Rural Development in response to the demands of the Milk Rights Group is the appropriate one in the circumstances and supports the Minister in his handling of all aspects of the milk quota regime.".
I move this amendment, confident in the knowledge that when the House is fully aware of the background to this complex issue it will support the balanced and realistic approach I have taken in dealing with the demands of the Milk Rights Group.
This is a complex issue which has been around for a long time. The initial decision was taken by an elected Member and the decisions taken since and those not taken were also the responsibility of elected Members and we should not shove the blame on civil servants in any way. I accept my responsibility in this matter. In relation to the quota as a regime, people may or may not support it. It has upsides and downsides but given that there will be a review of the quota regime in 2003 anybody who dislikes it will have an opportunity to seek to have it scrapped.
It may be useful by way of introduction to briefly describe why the milk quota regime was introduced in the first place and how the demands of the Milk Rights Group evolved from the operation of the regime. The milk quota regime was introduced by the Council of Ministers in 1984 to combat the structural imbalance in the market for milk and milk products in the Community. An additional levy or super levy was chargeable on milk produced above a specified reference quantity or quota assigned to each member state. This system was initially set to run for a period of five years but was extended first to 31 March 1993 and then to 31 March 2000 and is now due to expire on 31 March 2008 with a review in 2003.
Ireland's guaranteed total quantity in respect of milk deliveries to milk purchasing creameries, based on national milk production in 1983, was 5,280,000 tonnes plus, out of a Community reserve, an additional allocation of 303,000 tonnes. The national quotas of other member states, as at that time, were, generally speaking, fixed at the level of their milk production in 1981 increased by 1%.
Although member states were enabled by the relevant Community legislation to constitute reserves of quota, the Minister of the day in 1984 allocated the entire 5,583,000 tonnes of available quota, without holding back any in reserve. The allocation was made to take particular account of the difficult position of small scale producers faced with the prospect of limited output from then on. The decision to issue the entire national Irish quota was taken after intensive consultation with representatives of the farming and dairy organisations.
I emphasise the consensus at the time was that it was essential that, within the constraints of the system, the country's national quota should be available without delay to be utilised to the maximum in view of the importance of dairying to the Irish economy. I would add that since then, the management of the quota in Ireland down through the years was done in a way which always took special account of the needs of small scale and less well off producers.
The Community legislation provided that, in fixing an individual farmer's milk quota, account should be taken of certain special situations. These were where the farmer was still then or had during the reference year, been pursuing a development plan under a farm modernisation scheme, where he or she was a young farmer setting up in or new to dairying and where a farmer's milk production during the reference year had been adversely affected by exceptional events, akin to force majeure, such as a serious natural disaster, accidental destruction of fodder or build ings or a disease affecting all or part of the dairying herd. Only in the latter category, where the dairy farmer had incurred exceptional setbacks detrimental to the size of his quota, was the allocation of special quota made mandatory on the member state. The grant of special quotas to “development plan” farmers and to new entrants to dairying was at the discretion of the member state.
The initial view of the Minister at the time was that the special categories of producers referred to in the preceding paragraph could be dealt with by creating a reserve by availing of unused quota held by producers who were not fully utilising their quota or producers who had ceased milk production altogether.
However, the European Commission took the view that legally the Minister could not make permanent reallocations, as proposed, of unused quota caused by reduced deliveries by producers or quotas freed by producers ceasing production. In view of the Commission's misgivings, the Department in 1984 and in 1985 established reserves to cater for two categories of producer, namely, a national reserve of 7 million gallons in November 1984 set up by means of a nationally funded cessation scheme so that additional permanent quota might be granted to producers the size of whose milk deliveries in 1983 was adversely affected by disease or personal illness. The extra quota was the difference between the beneficiary's deliveries in 1983 and those in either 1981 or 1982, if higher, where animal disease was shown to be the cause, or half that difference in the case of a long-term human illness. A "new entrants" reserve in July 1985 was established by way of progressive deductions from the quotas of existing suppliers exceeding 20,000 gallons, varying from 0.25% to 1.25% depending on quota size – the reserve was redistributed, again on a permanent basis, subject to certain ceilings, to persons who commenced milk deliveries between 1 January 1983 and 21 May 1984.
While no special arrangements were made for "development plan" farmers under a national reserve during the initial years of the regime, special measures were taken to ensure they were given priority access to additional quota on either a temporary or permanent basis under the schemes introduced as part of detailed implementation of the Community legislation in Ireland. In the first instance, "development plan" farmers were granted priority access to unused quota, flexi-milk, temporarily allocated after the end of each milk quota year. Furthermore, after 1988, "development plan" farmers were entitled to receive, at reasonable cost, milk quota on foot of temporary leasing and restructuring schemes, then introduced and administered on behalf of the Department by the milk purchasers. In addition, specific provisions were made for smaller scale "development plan" farmers under an EU 1% reserve created in 1989.
When the quota system was extended in 1993 "development plan" farmers lost their priority to flexi-milk under the provisions of the relevant EU legislation. I introduced as a national measure a scheme giving such producers some additional quota on a permanent basis. Special quota allocations have been made in recent years to some "development plan" farmers on the grounds of extreme hardship as a result of financial difficulties.
A number of "development plan" farmers pursued a case in the High Court in what became known as the "Duff" case. This action commenced on 21 February 1990. The 100 or so plaintiffs joined in that action and in associated lawsuits were members of a group called the Milk Quota Action Group and were, or claimed to be, development farmers following dairy investment plans at the time milk quotas were introduced in 1984. Their contention was that the introduction of milk quotas in 1984 prevented them from realising their milk production targets and that the State should have set up a special reserve to cater for them on that account. The proceedings were initiated in the High Court by a plenary summons issued on 21 February 1990.
They were relying on the first indent of Article 3(1) of Council Regulation 857/84 which stated that producers who were implementing milk production development plans under Directive 72/159/EEC lodged before 1 March 1984 may obtain according to the member state's decision a special reference quantity taking account of the milk and milk product quantities provided for in the development plan.
The claims of the plaintiffs were dismissed by the High Court after a full hearing in a judgment delivered on 10 July 1992. The court held that the power to grant special quotas to "development plan" farmers was a discretionary one and that it had not been exercised arbitrarily in Ireland.
On a point of order, I am having great difficulty hearing the Minister, although I am sitting directly across from him. I took the opportunity of going up to the Visitors' Gallery and nobody there can hear a word the Minister is saying.
The Chair has no control over that.
Many people have taken the opportunity of travelling up—
I ask Deputy Enright to give way to the Minister. He has limited time and he has already lost a minute. I ask you to allow the Minister to continue.
I have no intention of preventing the Minister from speaking. This is a matter of public importance, however, and people who have travelled through the length and breadth of Ireland should be entitled to hear the Minister. I ask that that facility be extended to allow people to hear what is going on.
The Chair will draw the acoustics to the attention of the staff of the Houses.
The Minister should talk louder.
I have been deemed to be responsible for a number of matters, but I am not responsible for the acoustics of this House.
The Minister should speak up and try to sound as if he believes what he is saying.
None of the Minister's backbenchers is here.
If the acoustics are not adequate to cross the floor of the House—
When the Minister was outside church gates in west Cork he could be heard.
The church gate meetings in west Cork have long since been discontinued.
Please allow the Minister to continue.
The judge concluded that it seemed to him that "the unhappy situation in which the plaintiffs find themselves is not due to any legal wrongdoing on the part of the Minister or the State". The plaintiffs appealed this High Court judgment to the Supreme Court and on 14 January 1993 the Supreme Court referred certain questions to the European Court of Justice for a preliminary ruling.
The European Court, in its ruling of 15 February 1996 on these questions, again held the power in question to have been discretionary and that the Minister had not, in relation to the plaintiffs, breached any rights available to them under the fundamental principles of European law.
It does not matter anyway. He is speaking rubbish.
The Supreme Court, however, on further consideration of the matter, by a majority of three to two, ruled in the plaintiffs' favour. While accepting the judgment of the European Court that special provision for development farmers was optional, the majority ruling of the Supreme Court was in favour of the plaintiffs. The ruling was on the basis that the Minister made a mistake in law by not establishing a national reserve, which he was legally obliged to do in order to deal with mandatory provisions, thereby debarring himself from exercising any discretion in favour of the development farmers.
The Supreme Court also held that, as a matter of national law, the plaintiffs had a legitimate expectation that the Minister would honour his commitment to them to develop their holdings by exercising his discretion in granting them quota. The Supreme Court ordered, on 7 March 1997, that the proceedings be remitted to the High Court for the assessment of damages suffered by any of the plaintiffs. On 25 March 1999 the High Court, as a preliminary matter, ruled that the extra quota which the Minister might have bestowed had he not committed a mistake of law was 50% of the difference between the quota actually generated in 1983 and the amount of milk production projected for the final year of a producer's development plan. Based on this formula, claims of seven of the eight plaintiffs in the Duff case have since been assessed. The other claims, representing the 100 or so persons involved in the associated cases, have still to be settled.
As far as I am aware, the Milk Rights Group was formed in the aftermath of the Supreme Court judgment. The group's objective was to secure, on behalf of its members, treatment similar to that secured by those who had won the test case and those in parallel actions. I understand that the group has a membership of 1,200, or thereabouts.
I have indicated my position in relation to the demands of the group to Dáil Éireann on a number of occasions in reply to parliamentary questions, and I also outlined this in my response to the Chairman of the Oireachtas joint committee on 19 July last. I also made my views known in the course of an Adjournment debate in the Seanad on 22 October 1998. My position has been that no special provision has been made in respect of any persons or group of persons who are not party to the legal proceedings in the Duff case and other associated cases. Furthermore, I have received legal advice to the effect that any proceedings that may be initiated by such persons are barred by the passage of time. I have written likewise to some of the Deputies who have proposed this motion.
In last week's issue of the Irish Farmers' Journal I read a statement, attributed to Deputy Dukes, that the Government should “stop hiding behind technicalities and give these people justice”. The matter is not, of course , as simple as that. I do not think the statute of limitations ought to be considered a technicality, and Members of this House should understand that point. The statute must be presumed to have been enacted by the Oireachtas for the common good and in pleading its provisions in regard to time I am merely taking my stand on the law.
The Minister does not have to cheat.
In addition, a Government dealing with cases such as this must have regard not only to the situation of the persons involved but also to that of the general taxpayer on whom the cost of every settlement would ultimately fall. I must also have regard to the overall interests of the milk sector. Let us look, therefore, at the possible costs involved. The Milk Rights Group estimated compensation of £40 million to £50 million plus eight million to ten million gallons of quota. That, of course, refers only to the 1,200 or 1,300 farmers in the group. There are, however, many other farmers who were in the farm modernisation scheme or rescue package in 1984 and who had dairying plans. These could number between 15,000 and 16,000. There was a total number of 22,000 in the farm modernisation scheme at the time. If all these cases were to come forward, additional quota amounting to 40 million gallons could be involved, as well as compensation approaching £500 million.
The figures used in the above estimates, while crude, are based on the outcome of the cases already heard by the High Court. While it may be argued that a high proportion of those referred to might not at this stage pursue any possible claims, there can be no certainty about that. The likelihood is that a high proportion would pursue such claims.
It is a question of definition. If the Minister wanted to find a solution he could.
The experience in relation to the Mulder situation would indicate that to be the case. In taking the position I have on this matter, I have taken account of a number of factors. First, there is the fact that though a case in relation to this matter was initiated in February 1990 and ruled on by the High Court as early as July 1992, no legal cases were initiated on behalf of the persons represented by the Milk Rights Group. Neither were any cases initiated on behalf of the group following the Supreme Court judgment of March 1997. Second, I have taken account of the initiatives introduced over the years, some of which I referred to earlier, to give priority access in the allocation of quota to development farmers.
A number of meetings have been held over the past 18 months or so between the Milk Rights Group and officials of the Department of Agriculture, Food and Rural Development, at the request of the group and on a "without prejudice" basis. At the most recent meeting on 27 April the group's representatives confirmed that their objective was to secure extra milk quota for their members and suggested that this might be met out of the additional quota which I secured as an outcome of the Agenda 2000 negotiations.
I am not being hard-hearted or obstinate in this matter. I am dealing with an issue that is extremely complex, has gone on for a considerable length of time and has implications for the generality of milk producers in that there is limited quota available. It is also the case that the State simply cannot take on legal responsibilities where they do not exist, as has been suggested.
However, notwithstanding the position outlined earlier and despite the fact that there is no legal obligation to go further towards meeting the demands similar to those represented by the group in question, I am prepared to look at what can be done in the context of the additional quota which will become available on 1 April 2001.
Big deal.
There are roughly 11 million gallons of milk quota available to be distributed. I want to make it clear, however, that the amount of quota is limited and if quota is allocated to producers in this category it will mean that there is less to go to other deserving cases. There is not a Member in this House, representing a rural constituency, who has not been asked to help people out with an additional milk quota, either at a clinic or meeting dairy farmers socially. Many farmers just do not have adequate quota and everybody would like to help, especially if such farmers are the smaller, less well off producers who are committed to the industry and who have demonstrated this commitment in the past.
There is also the fact that the potential number of applicants for quota in the development farmer category could be very high, although I do not know how many additional ones would come forward. All I can say is that the number is likely to be higher than the numbers represented by the Milk Rights Group. If this were the case, the amount of milk quota to go around would be limited.
As the Minister in 1983-4 consulted the various social partners in the industry, so have I, specifically the Milk Quota Review Group which represents all the farming organisations and bodies. It is representative of all the major players in the industry and has helped me and previous Ministers, having regard to its views, to arrive at decisions on milk quota over the years. I have also consulted it on this matter. I will also have regard to the views of the Attorney General given the complex legal issues surrounding this matter.
One thing is certain, we know the amount of milk available must be allocated between now and 1 April next because the next milk quota year commences then. I am prepared to look at what can be done for the people in this category in the context of that additional quota and what might be done to help the members of this group and the other members with development plans in the years immediately concerned.
May I ask a question about procedure?
Yes.
The Minister and the Government parties have been allocated time until 8.10 p.m. Since some nine minutes of that time remain, can we proceed on the basis that the Minister is giving way to the Opposition and will take some questions which might help resolve some of the issues? Would that be agreeable, Sir?
That is not a matter for the Chair who must follow the general rules gov erning the debate which do not provide for questions unless there is agreement.
Would you be agreeable to the Minister giving way to the Opposition and taking questions in the nine minutes or so of Government time that remain to him under this motion?
We must proceed with the next speaker and the nine minutes will come into play tomorrow evening. I must call the next speaker.
It would help enormously at this stage, now that we have heard what the Minister has had to say and especially since, in concluding, he seems to be adopting the tiniest opening of a position, if we could help him by putting certain questions and making suggestions to him in the form of questions.
We cannot do that. I must call the next speaker who is Deputy Penrose.
I do not wish to stop Deputy Penrose from coming in. Can we take it that, if eight or nine minutes remain at the end of the debate tomorrow night, we might follow that procedure?
When the number of speakers is exhausted, the question is put. I call Deputy Penrose.
Can I put you on notice?
We cannot change the rules.
If the speakers listed finish a little before five minutes to go tomorrow night, I will use the remaining time to suggest to the Minister various ways he can solve this problem.
On a point of order, I offer my commiserations to my constituency colleague that he has not been able to get a single member of his parliamentary party to come here to support his position. Perhaps it might be taken into account by the Government in making a final decision on the motion.
That is not a point of order. I call Deputy Penrose.
I am glad to have an opportunity to contribute to the debate and to indicate that the Labour Party will support the motion without equivocation. I am one of the few people present who has been a member of the Oireachtas Joint Committee on Agriculture and Food over the past number of years where there has been intense focus on this topic. The members of the Milk Rights Group would attest to that. I congratulate that group and its committee for the dedication and commitment it has given to this matter and to Mr. Ned Nagle, its agriculture consultant, who has worked extremely hard in this regard.
It should not have been necessary for this motion to come before the House. It has been clear for some time, especially since the 1997 Supreme Court judgment in Duff v. Minister for Agriculture and Food, that an injustice was done to an estimated 800 to 900 development farmers who had been denied milk quotas since 1984 when the milk quota regime became a reality for the dairy farming industry. The vast bulk of those farmers, 35 or 36 of whom live in my constituency, who are scattered throughout the rural areas, are generally small farmers whose continued existence is essential to maintaining the fabric of rural Ireland. Some of them have gone by the wayside, as someone said earlier. Those who have struggled on against the tide have made a major contribution to the rural areas and communities in which they live.
As an agricultural consultant, I have dealt with some of those farmers. As a barrister, I am in the position that I understand the advice the Minister has been given by the Attorney General and its motivation. However, there is a difference between the legal strictures or impositions of statute law and the legal moral force of a case which is clearly evident here. One must take advice but one may also believe that the moral force of the argument is such that one does not have to rely upon the advice.
The Statute of Limitations Act was brought into being in 1957 and amended in 1991 for certain circumstances to bring legal certainty, especially in the ownership of property. That was one of the major issues. It was also brought in for claims against the State. In this case, property rights are being claimed and a resort to the Statute of Limitations means it is being used as a sword rather than a shield to ensure legal certainty.
It is never the wrong time to do the right thing. The Minister has examined section 2(1) of the Statute of Limitations (Amendment) Act and has received advice. He is being told that, if the people in the Visitors' Gallery and the 800 or 900 people they represent throughout the country, including those in my constituency of Westmeath, believe they have a case, they should have initiated it by March 2000. Bringing cases can be a very severe imposition in terms of funding, especially given that a legal precedent exists which sets out that there was an undeniable mistake in law made in 1984 when this EU regulation was brought into being.
There has been a denial of a property right to these people, who are easily categorised. I put various questions to them and their consultant when they were before the joint committee. I know the legal advice of the Minister and one of the arguments of his officials is the opening of the floodgates, and the Minister indicated at the end of his speech that that is one of his concerns. One can appreciate that, but I understand that this group, which has existed since 1997, has travelled a circuitous route to try to ensure the people directly affected by this directive and its implementation in 1984 have been identified. It has a number of files with which it is prepared to furnish the Minister to help him in this regard.
The joint committee indicated that the Department should advertise to ensure no one who should be included was excluded. That is always a concern. An advertisement with a time limit of two or three weeks to help ensure that everyone involved was identified might have been the way forward and the committee made a recommendation in that regard from which no one deviated. The joint committee did not prescribe a solution and that is important to note. It left open the possibility of obtaining a quota to compensate them for their losses. In fairness to the group, it was not looking for the optimum but a reasonable amount which would give its members the opportunity to continue in farming, to earn a livelihood and to pass on a valuable and tangible asset to their families. This is important, given the threats. The 2010 report highlights the fact that it is getting more difficult for people to remain in full-time farming which is what many of these people who struggled against the tide would like to do. The Minister could achieve this through a quota allocation, compensation, a combination of both or whatever other measures are possible.
The plaintiffs in the Duff case claimed an entitlement to a milk reference quantity or quota under Article 3(1) of Council Regulation 857/84. This article provided for special or additional quotas in particular circumstances otherwise than by reference to the quantity of milk or milk equivalent sold by the producer. Two formulas were involved. Formula A applied to milk or milk equivalent sold by the producer and formula B applied to that purchased by a co-op or factory. Both formulas referred to the base year which, for Ireland, was 1983 and 1981 for other countries, such as Italy. The additional quantities were not part of an increased quota designation for Ireland but had to be drawn from a reserve. This was one of the difficulties at the time. This reserve had to be constituted by Ireland from within the given or designated quantities available.
It is appropriate to refer to the farm modernisation scheme. The scheme was designed to help restructure agriculture on the basis of assisting farmers who had the occupational skills and agricultural resources to adopt rational methods of production with a view to the formation and development of farms which would enable farmers in this category to attain a level of earnings compatible with those in the industrial sector. ACOT was the Department's implementing agency. I was a private consultant at that time and opportunities to participate in ACOT were limited.
The directive laid special emphasis on the preparation of a development plan which had to iden tify the work to be done and the period within which the expansion could be achieved. It also provided that those farmers who implemented such a plan should be encouraged and aided financially by a system of incentives and grants. ACOT was charged by the Department to ensure the implementation of the scheme. The aim was to draw up a plan which would show an expanded farm output sufficient to generate an income which would compare favourably with the average earnings of a farmer's industrial counterparts.
All the plans drawn up envisaged expansion of or entry into dairy farming which was the backbone of many rural areas. The real threat was that many of the plans of Milk Rights Group members would not have come to fruition until after 1983 which was the base year. The scheme was an attempt to achieve viability for thousands of farmers. It follows therefore, despite the fact that farmers who embarked on these expansionary plans with the full support, guidance and encouragement of the State, through ACOT, with clearly identifiable annual output expansion targets, could be allocated any of the milk quota they expected to get in respect of the gallonage projected in the development plans even though the production targets in the plan were achieved, as that gallonage was not sold or purchased in the base year of 1983. The crux of the problem was that those people who had just entered the plan or who were in mid plan but who had not achieved the target set out, were cut off in mid stream. It was as if their life saving equipment was taken from them and they were left to paddle their own canoe, with nowhere to go. They were often distraught and struggled because they were in a five year plan.
Depending on the stage their development plans had reached with reference to 1983 and the amount of expansion envisaged by the scheme, the quota allocated to farmers could be very nominal. Some farmers who thought they might get 15,000 or 20,000 gallons only got 2,000 gallons. These people were left high and dry.
Interest rates in the period 1979 to 1981 were 20% or 21%. Inflation was rampant and in double digits. Huge sums of money were borrowed from financial institutions to help major infrastructural undertakings such as land reclamation, new silage pits, cubicle housing, cattle crushes, concrete yards, milking parlours and machines and the purchase of additional cattle. Each step of the plan was carefully circumscribed and overseen by ACOT. Consultants did not get a look in. A farmer might have achieved only 10,000 gallons under the plan in 1983 but would have been designated between 20,000 or 25,000 gallons.
Before 1983, not achieving such targets was insignificant as farmers never anticipated that the circumscribed milk production would evolve into a super-levy and the imposition of a national quota. Because these farmers did not have the capacity or the quota to produce and achieve their planned output, they found themselves unable to meet substantial financial commit ments. Some farmers went out of business while others struggled on without the opportunity to reach their potential output. Farmers believed they would be protected because they had prepared plans and expanded production in accordance with the development plans.
In complying with European and national directives it is clear these farmers had a legitimate expectation of bringing their plans to fruition. This legal argument found positive expression in the 1988 Mulder case in the European Court of Justice. If these people do not get a special allocation at this stage the State is guilty of negligence and a breach of duty in allowing and encouraging them to prepare plans they were not allowed to bring to finality. The Statute of Limitations arises but farmers were encouraged to do so.
The then Minister probably thought he was doing his best and we will not say that everyone was involved. Much consultation took place and it was agreed that no national reserve should be created. The Minister referred to this outcome. It was also agreed that the entire national quota should be allocated to co-operatives. The then Minister appears to have been of the view that he could make provision for development farming out of the flexi-milk supply which was available. However, the EU Commission intervened some months later and knocked this suggestion on the head which meant that permanent quotas could not be allocated from the flexi-milk supply. This was a mistake. Mr. Justice Barrington, who was held in high esteem, had served on the European Court of Justice for several years and was very au fait with European law, decided it was mandatory on the Minister and the Department to provide a quota for farmers with diseased herds and that the Minister should also have used his discretion to establish a quota for young farmers and for development farmers.
The Supreme Court found this situation to constitute a fundamental mistake in law in that the Minister failed to establish a national reserve as he was obliged to do under EC regulations. The Minister had an opportunity to keep his commitment but he flunked it and put himself into a position where he could not exercise the discretion vested in him and which he should have done. Tonight we ask the Minister to recognise the legal difficulties involved and not behave like an ostrich burying his head in the sand. The Minister now has an opportunity to rectify an injustice which those people suffered. It has had a crippling and damaging effect in so far as it has curtailed their ability to reach their potential, something which is important to them but which is essential to us as a nation.
Mr. Justice Barrington made no bones about it. He said:
The State, on its own behalf and as agent for the European Commission, induced these farmers to borrow money and to develop their farms on the basis that there would be an expanded outlet for the sale of their milk. Now, long after they incurred heavy expenditure, they find that they will not get the outlet for the sale of their milk which they expected and were induced to believe they would receive.
He then referred to Council Regulations EEC/856/84 and EEC/857/84, the two EEC Council regulations which combine to form the milk super levy system which came in at that time. As somebody who has taken some quota regime cases, I know they are a legal minefield. It is virtually impossible for anybody to deal with them with any certainty. It is something which we might get an opportunity to discuss in this House at some future time.
While the general principles of Community law might not provide a basis for member states to provide for the grant of special reference quantities or quotas to producers, there is nothing to prevent such a requirement being founded in the principles of domestic law. That is an essential point in the Supreme Court's findings. That is where the people who constitute this group have found solace and inspiration to carry on their fight. That means that although there was nothing in the general principle of Community law to compel the Minister to provide a grant of a special quota, there was nothing in it to prevent him from doing so either. That was the essential point. That argument was made but it died in the Supreme Court and this obviously affords protection to producers such as the Milk Rights Group. Therefore domestic law provided greater protection to them than that available under the legal principles applicable in the Community legal order.
The principles of the protection of legitimate expectations and the assurance of legal certainty are all certainly part of the Community legal order. That principle, the principle of legitimate expectations, is important. It cannot be used to enforce the view that the law will not ever be changed by the EU, but it can be utilised by people such as those in this group who set out on a course of action, expended money and acted to their detriment. While in strict legal terms the Minister could come in and argue, as he must do, that the Statute of Limitations applies, defences like that would fall if they were argued in court in an equity case. This is a different situation but in such equity cases where somebody has acted to their detriment and incurred fairly substantial expenditures, one could make such an argument. Whether such an argument would succeed is open to question, but certainly I would be prepared to make it.
Three classes of farmers could qualify for the extra milk under Article 3 of Council Regulation EEC/857/84. As Mr. Justice Barrington stated in his judgment in the Duff case, the Minister made a mistake in law in failing to establish a national reserve to facilitate the three categories and in particular in the case of development farmers and the young farmers, the eggs had been scrambled and could not be unscrambled. That is why those people were left high and dry and therefore the allocation was gone. It was critical.
In other circumstances, for instance, if it happened in the late 1980s or early 1990s, we would find it difficult to come into this House to argue a case for compensation but now we are fairly well off, although there are huge number of people excluded from this wealth. The economy should serve society and society should not be beholden to the economy. There is a huge number of people excluded and the Minister should use the resources available to help the 800, 900 or 1,000 people and compensate them for an injustice done to them.
It is a matter which we in the Joint Committee on Agriculture, Food and the Marine have discussed ad nauseum. I uphold the view of my colleagues on that committee, that there is a moral obligation to compensate those farmers for a mistake of law arising in 1984 which had nothing to do with them. That is the essential point.
The Minister stated that he has referred this matter to the Milk Quota Review Group. We hoped the group would come up with a solution but it is putting it on the long finger. Some member of that group is afraid to make decisions.
We are not privy to much of what goes on and there is an attempt to make sure we do not know, but we find out. I understand there was a whirlwind of activity today and we all anticipated that the Minister would arrive into the House as if he were Santa Claus arriving early bringing some goodies. In the end he arrived with a bag but there were no goodies. At the end of his speech, he tried to leave a gap open. I suppose that if I were in Deputy Sheehan's constituency, I might try and leave some gap open also.
He would make a bad Father Christmas.
While I have some understanding of the points the Minister made, this case is one where the Minister should not adopt a defensive "gung-ho" attitude in which he relies on a statute which exists to bring certainty to the law to ensure that people are aware of their legal rights and can assert them at a point in time. That did not apply in this case. There was not a fundamental mistake made by the people involved. Once the regulation took effect in Ireland, the farmers followed the letter of the law. They carried out instructions according to the letter of the law. Therefore they are not responsible.
I do not believe in making cases for people who have contributed to their own downfall, although it would be acceptable for me to do so in a criminal case, where I must make a case.
A selective barrister.
If the people involved, some of whom are from my county and are in the Public Gallery, were responsible and had contributed to their own downfall, one would have to accept that. However, in this case, where they came into court whiter than white because they complied with everything asked of them, it appears they set off on a trail which was incorrect because of the Department's interpretation, application and implementation of the EC directive. If there was a mistake, in fairness I am sure it was made in all innocence. However, the outcome of that mistake should not be visited on people who are innocent and have done no wrong. My plea to the Minister this evening is on behalf of the 1,000 people still active and working in this area. Many of them are married with young families and are struggling to make ends meet. It is about time the Minister brought this matter to an end and rectified an error which was not of their making.
