Dáil Éireann debate -
Thursday, 5 Apr 2001

Vol. 534 No. 2

Order of Business (Resumed). - Agriculture Appeals Bill, 2001 [ Seanad ] : Second Stage.

Minister for Agriculture, Food and Rural Development (Mr. Walsh): I move: "That the Bill be now read a Second Time."

I am pleased to bring this Bill before the House today. It has already been considered by the Seanad and some useful amendments were made in the Upper House. It is a non-contentious Bill and I was pleased to accept those amendments. The Bill is designed to implement a commitment I gave to the farming community by improving the system for considering appeals. The Bill is a relatively short and straightforward one. Its purpose is to further improve the service my Department provides to its clients by strengthening the rights of recourse available to farmers wishing to challenge decisions made by the Department regarding their entitlement to benefit under any of the direct payment schemes.

Most Deputies will be aware that my Department runs a well established appeals unit which has been considering appeals in relation to the headage and premium schemes since 1995. The purpose of this Bill is to reinforce the independence of that service by putting it on a statutory basis and to widen the range of schemes coming within its remit. I am fully satisfied with the competence and impartiality of the existing appeals unit, but I want to ensure that the service is accepted unequivocally by the farming community as independent of the decision-making process within the Department.

It was for that purpose that a commitment was included in the Programme for Prosperity and Fairness to "establish on a statutory basis, in accordance with the principles of natural justice, an independent, accessible and properly resourced appeals unit whose remit will include all FEOGA schemes paying directly to individual farmers". I have taken the opportunity to include within the scope of the new office not only all these schemes, but also all relevant nationally funded schemes. I am also taking the opportunity to implement an undertaking I have given to the Oireachtas, by making provision for the input of the appeals office into my decision-making on whether to refuse or revoke a certificate of approval under the national beef assurance scheme.

Moving to more recent events, Deputies will recall that when we discussed the Diseases of Animals (Amendment) Bill in this House on 8 March last, following representations from all sides of the House, I gave an undertaking that I would make provision in the Agriculture Appeals Bill for an appeals system for dealers. I intend to introduce an amendment on Committee Stage to honour this commitment. Following the signing into law of the Diseases of Animals (Amendment) Act, 2001, I made a statutory instrument introducing a system for the approval and registration of dealers and their premises. Under this order, dealers must be approved and registered and their premises must be approved by my Department before they can trade in animals or poultry.

There is provision for the revocation, suspension or refusal to register a person as a dealer if the requirements for approval and registration are not met. As I have stated previously, the aim of these new measures is to bring better order to the operation and regulation of dealers. In particular, it will restrict the activities of so-called "rogue dealers" which are to the detriment of legitimate trading in animals and poultry. My amendment on Committee Stage will allow the new agriculture appeals office to examine appeals where the Department is proposing to revoke, suspend or refuse a dealer's registration or approval.

I hope that the House will receive this Bill in the spirit in which it is proposed, that is, as a measure to strengthen the independence and effectiveness of the appeals process, an objective that is shared by all. This is not a particularly complex Bill and most of its provisions are self-explanatory. I propose to give a short commentary on the main points and to set out the rationale behind them where this would be helpful.

I have taken particular care to build on the model already laid down in statute in respect of the social welfare appeals office, which has been operating effectively since it was established in 1990. I intend that the agriculture appeals office, with the approval of the Oireachtas, will follow very closely the model laid down by the social welfare legislation.

The independence of the new agriculture appeals office is its crucial aspect. While the staff of the office will be recruited from the general Civil Service and its funding will, with the approval of the Minister for Finance, be provided from within my Department's Vote, this Bill provides that its operational independence will be total. Here again I have been guided by the successful precedent established by the social welfare appeals office, whose organisational status is identical to that now proposed for the agriculture appeals office.

The Act provides for the appointment of appeals officers by the Minister. Their function will be to make determinations on appeals made by affected persons against decisions taken by the Department in respect of the relevant schemes. Affected persons means, of course, farmers who have applied under the relevant schemes – those schemes are set out in the Schedule to the Act. The Schedule lists 28 schemes and consists of all the direct payment schemes currently in operation, together with their immediate predecessors where there has recently been a substantial change in the structure or name of a scheme. The practical benefit of this provision is that all the direct payment schemes can now be considered by the appeals officers. It has been an undoubted limitation of the current appeals unit within my Department that it can consider only the headage and premium.

This Bill seeks to extend that coverage to include such other major schemes as the rural environment protection scheme and the early retirement scheme, as well as the range of smaller schemes, still very important, designed notably to facilitate on-farm investment. The list of schemes can be expected to evolve as the structure of direct payment schemes evolves.

Appeals officers shall, subject to this Act, be independent in the performance of their functions. This is the core of the Bill. Decisions taken by the office will be binding on the Department. There will be no ministerial or departmental authority to intervene in the decision-making process. Managerial accountability will, however, be preserved by the requirement that the chief appeals officer shall submit an annual report to the Minister and provide such other information as the Minister may require. In this way the Minister can inform himself or herself as to the position in relation to the management, organisation and staffing of the office, and make changes in those areas if he or she considers it necessary.

Collectively the appeals officers and their support staff will be known as the agriculture appeals office. Again following the practice in respect of the social welfare appeals office, the word "office" is not built into the Act but will nonetheless be the name of the organisation in its everyday operations and will be the name appearing on the letterhead and so on. The office will be headed up by a chief appeals officer who will be designated by the Minister. The chief appeals officer will be the director of the office. He or she will also have a deputy, again to be designated by the Minister.

The Bill does not go into the details of the appeals procedure, providing instead that, as in the social welfare appeals office, these will be laid down by regulations. These regulations are now almost complete and will be published shortly after the enactment of this Bill on the assumption that the Oireachtas will indeed approve it. Gearing the appeals office up into action will not be delayed for lack of procedural regulations.

The Bill expressly provides, however, for the holding of oral hearings in private and stipulates that an appeals officer, when considering an appeal, may decide the case as if for the first time. That is, he or she is not restricted to considering the grounds on which the original decision was made. The appeals officer will, therefore, be able to take a broad view. Section 8(4) of the Bill provides that the decision on an appeal shall be made as soon as practicable, having regard to any guidelines laid down in this regard by the Minister. It is my strong concern that appeals should be processed as quickly as possible. The guidelines that I will issue in this connection will, therefore, tend towards a short interval for deciding appeals rather than a long one.

At this stage, I envisage a turnaround period of 12 weeks, which is a reasonably tight interval in the circumstances, but I am reluctant to stipulate a precise deadline for all appeals. Deputies will recognise that cases vary in complexity and it would, I am satisfied, be imprudent to insist that a statutory appeals process should deliver a result within a timetable which would not in all cases be realistic. In preparing the guidelines, my concern will be to minimise the time taken to process an average appeal, while recognising that certain complex cases will take longer.

The Bill also provides that, subject to exceptions to which I shall refer, the decision of an appeals officer shall be final and conclusive. The purpose of this provision is to ensure finality in the matter within a reasonable period. The appeals office will be an expert tribunal with statutory responsibility to determine the matters referred to it. By the end of the appeals process, the application will have been considered in depth twice by specialist officers, having been initially considered by the deciding officer whose decision is being appealed, and a presumption of accuracy and reasonableness must attach to the decision emerging from that process.

Mistakes are of course made and that is the reason for the existence of an appeals mechanism in the first place. Mistakes can also be made in the course of the appeals process itself, but this is very rare. An appellant may nonetheless take the view that the appeals process was vitiated by a mistake of law, or unreasonableness, or lack of fair procedures. In those cases, the appellant may appeal the decision of the appeals officer to the High Court. Provision is also made for internal revision of a decision within the office, either when new evidence comes to light or the director considers that the decision was wrong because of error of fact or of law.

Although this Bill is primarily concerned with direct payment schemes and paying cash entitlements to eligible applicants, I have taken the opportunity to widen the scope and confer on the appeals office functions in relation to the national beef assurance scheme. This scheme operates under the National Beef Assurance Scheme Act, 2000. The core of that Act is the laying down of a requirement on the part of every herdowner wishing to trade in beef that he or she obtain from the Minister a certificate of approval to do so. Where the Minister proposes to refuse such a certificate he or she must give notice to the herdowner of that intention. Section 15(2) of the National Beef Assurance Act provides that the herdowner may, on receipt of such notice, make representations to the Minister within 14 days of the date of issue of the ministerial notification. Section 16(2) of the Act provides for similar giving of notice and right to make representations where the Minister intends to revoke a certificate already issued.

In the course of the passage of the National Beef Assurance Act through the Dáil I gave a commitment to bring within the remit of the appeals office the question of the refusal or revocation of a certificate of approval. I have come to the view that the best way to ensure the effective input of the appeals office is to provide that any representations which the Minister may receive under section 15(2) or 16(2) of the National Beef Assurance Scheme Act must be referred by him or her as soon as may be to the director of the appeals office for advice and that before deciding whether to proceed with the refusal or revocation the Minister must have regard to the director's advice which must be delivered within 28 days.

Putting in place a statutory appeals mechanism under the Act has the effect of taking all the schemes coming within the ambit of the appeals office out of the jurisdiction of the Ombudsman. This is the inevitable result of section 5 of the Ombudsman Act, 1980, which precludes the Omudsman from any role in relation to matters in respect of which there is an independent statutory right of appeal. That would be an unsatisfactory outcome, given the valuable functions the Ombudsman performs in protecting the rights of the recipients of public services. For that reason I am making provision for the retention by the Ombudsman of his functions in relation to the relevant schemes. This is achieved by adding appeals officers under the Bill to the First Schedule of the Ombudsman Act, 1980. The appeals officers will thereby become persons whose decisions may be investigated by the Ombudsman in the normal way. Preserving the Ombudsman's role in this way is consistent with my intention, to which the Bill gives expression, that the establishment of the agricultural appeals office will reinforce the rights of recourse available to clients of my Department where they are dissatisfied with the Department's decisions on applications they have made.

It is worth mentioning in this connection that the Bill provides that the reasons for the decision made by the appeals officer shall be notified in writing to the appellant. This provision may not be strictly necessary, in that the appellant has the right under section 18 of the Freedom of Information Act, 1997, and, probably, also in common law. Nonetheless, it is useful to state it expressly in the present context to reinforce the openness of the procedures I am seeking the approval of the Oireachtas to enshrine in statute.

The appeals mechanism I propose in the Bill goes beyond the valuable customer response facilities provided by the Department. It is, probably, worthwhile to refer briefly to this wider context. My Department has been innovative in drawing up and implementing customer services programmes. As well as the customer service action plan, my Department, in conjunction with farming representative organisations, under the Programme for Prosperity and Fairness has agreed a protocol on direct payment schemes. These initiatives are evidence that the Department is committed to providing a professional and client friendly service. Demanding deadlines for making payments have been laid down and, by and large, met. The targets in the current protocol extend beyond rigorous payment deadlines into procedures for the conduct of inspections. This country is acknowledged as being among the European leaders in these respects.

In considering the question of appeals, the question of the severity of penalties comes to mind. I share what I know is the view of a number of Deputies that some penalties which the Department is required to impose are harsh. On foot of a commitment given in the protocol on direct payments I raised the question of simplification of the CAP, with particular reference to proportionality of penalties, at the Council of Agriculture Ministers. Following from a Council request late last year, the Commission has established a working group representative of all member states, including Ireland, to look at how the CAP arrangements can be simplified. My Department has made a vigorous approach to the Commission, in which it was supported by our UK and French colleagues, arguing that the reasonableness and proportionality of certain penalties be investigated with a view to ensuring farmers are not unduly penalised for relatively minor defaults. A separate working group is being established with the remit of recasting the regulation governing penalties. I am convinced that the overall arrangements can be simplified by making more use of database information in the processing of applications. I do not want to give the impression, however, that it will be an easy task to bring about a change of policy in relation to the proportionality of penalties at European level. The institutions have shown that they are difficult to convince on these issues.

It is my intention that the appeals officers will be appointed and assume their functions and that the director and deputy director will be designated very soon after the enactment of the Bill, subject to the approval of the Oireachtas. I am anxious to give visible and practical effect to the commitment I have given the farming community and get the new office into full swing without delay. I repeat my concern to provide the farming community with an appeals mechanism which will meet its demand for visible independence, wide scheme coverage and prompt attention. To establish that mechanism is the purpose of this Bill, which I commend to the House.

Mr. Dukes

I broadly welcome the Bill and approve of the objectives the Minister has set out for us. I know the farming community will be happy to see arrangements of this kind being put in place. The Bill has been debated in the Seanad where it was examined in some detail. There are, however, some fundamental aspects which still puzzle me on which the Minister has not shed any new light today.

The Minister indicated that an appeals system is in place in his Department. The Bill makes this system more formal and gives it a statutory basis, but it still does not bring it outside the remit of the Department of Agriculture, Food and Rural Development. The Minister states that he will proceed on the same basis as the social welfare appeals office, except that the agricultural appeals office will not be an office. It will be called an office in the same way that the social welfare appeals office is called an office, but it will not have a separate statutory existence. It will be a collection of people under the aegis of the Department who will perform certain functions.

Will the Minister explain his reluctance to establish an office? The people at whom it is directed would like to see a truly independent appeals mechanism. If the Minister wants – as he says he does – to have a truly independent appeals mechanism he should establish an independent office, separate from his Department. Let the office be under the aegis of his Department and the Minister be the one who accounts for the Vote and the Accounting Officer in the Minister's Department be the one who accounts for the money, but I cannot understand the reason we do not have a separate office.

The Minister said that he is following the practice of the social welfare appeals office, but he has not explained the reason for this. It is not enough for him to say that he is establishing an office which will not really be an office because that is what was done for social welfare. That is not an explanation. It would be more satisfactory and clearer to the people who will be relying on this structure to have their appeals heard if the office was clearly a separate one.

The Minister is going to some lengths to make sure the operation of the office is independent, to involve people who will be seen to be independent and to establish a structure which will operate independently. Section 2, however, provides that the Minister may appoint such and so many of his or her officers "or other persons holding positions within the Civil Service" to be appeals officers for the purpose of the Bill. I am sure the House will approve the Minister's intention to go beyond the confines of the Department of Agriculture, Food and Rural Development in establishing the appeals mechanism, but I suggest that the Civil Service is not the only repository of wisdom, expertise and knowledge of these issues. I am sure there are people outside the Civil Service who could perform satisfactorily as appeals officers in the structure being established.

I wonder whether the Minister has given any consideration to that.

A couple of weeks ago we debated the Agricultural Diseases (Amendment) Act. Under the provisions of that Act the Minister proposes to appoint many authorised officers. Unless my memory is cheating me I do not think the persons to be appointed as authorised officers under the terms of that Act are necessarily limited to people in the Civil Service. I see no reason the Minister should cut himself off from the possibility of finding people outside the Civil Service who could carry out the job required by this Bill. I am not making a special plea for any particular group because I am quite sure the mechanisms that exist in the Civil Service system for making appointments on merit and independently, would be capable of dealing with applicants for this type of job from outside the Civil Service.

There are a large number of people with qualifications of one kind or another in agriculture that could well be relevant to the kind of work that this office will undertake working in the private sector and in various organisations around the country. I cannot see a good reason for not allowing for the possibility that such people might want to apply for employment in the Agriculture Appeals Office. In terms of its structure I would like to see a formally and statutorily separate office that would have clear distance between it and the Department of Agriculture, Food and Rural Development and which would be able to draw on a wider pool than the Civil Service for its staff. I do not think any of those things is in conflict with what the Minister is setting out to do. All those things would reinforce what the Minister is seeking to achieve.

The Minister has spoken about his intentions in relation to the turnaround, the speed with which appeals referred to this office will be dealt with. He said in the Seanad and again today that he envisages a period of 12 weeks. He does not want to specify a period because he thinks there may be some cases that could not be dealt with in 12 weeks. He said: "It would be imprudent to insist that a statutory appeals process should deliver a result within a timetable which would not in all cases be realistic". I do not accept that. That is most unsatisfactory. During the debate in the Seanad the Minister referred to the fact that in the case of An Bord Pleanála time frames are laid down for dealing with appeals and they are honoured far more in the breach than in the observance. The Minister rightly said that gives rise to frustrations and so on and he does not want that to happen here. He then takes the easy way out; so as not to frustrate people he gives them no target. It would be far better if he decided to avoid frustrating people by setting targets and adhering to them.

A period of 12 weeks for the kind of issues mentioned here is a long time. This is a period of three months during which people would have to wait for a decision on: cattle headage scheme in more severely handicapped areas, the EU extensification premium scheme, the EU slaughter premium scheme, the EU special beef premium scheme, the EU suckler cow premium scheme, the farm improvement programme and all the schemes listed in the Schedule.

I ask the Minister to note I am not critical of or nasty to anybody, I am merely stating what I believe to be facts. If a person has to wait three months for a decision on the EU extensification premium scheme that can be dramatic. All these schemes can involve substantial sums of money. Given that the Minister said his expectation is that if there is a difficulty with any of these and it ends up in the appeals office he envisages it could take 12 weeks to make a decision, he will visit substantial hardship on some of the people who will be looking to the appeals office to vindicate their rights, because that is what it is for. People will have to wait. I say without any malice, that there are some cases where if decisions were made within 12 weeks it would be a decided improvement on what is happening now. I am not sure if the compensation schemes are included here but no doubt we shall get to that on Committee Stage. There have been cases where animals have been slaughtered under various diseases Acts and regulations and where people have waited longer than 12 weeks for decisions to be made and compensation to be paid. Twelve weeks is a long time, it is a quarter of a year and half a growing season and is a long time in the business of running a farm. I am unhappy with the idea that the Minister will not specify a period of 12 weeks. I know there will be cases that will be complicated and there will be cases where there will be room for argument and various expert witnesses will have to be called and so on but the majority of cases will be more straightforward. The Minister should be more ambitious and envisage a period of less than 12 weeks and should make specific provision for a target period for the determination of appeals and put it into the legislation. It would not be imprudent to do that and would be a substantial comfort for people who are looking at the scheme as a way of vindicating their rights.

The Bill provides for oral hearings of appeals and that they be held in private. I agree with that provision. During the course of the debate in the Seanad the Minister was asked, and he replied affirmatively, if there would be the possibility for persons whose appeals are being heard to be accompanied at an oral hearing by a person who could be of assistance to them, an adviser of some kind, even perhaps a public representative in the same way as those going before the social welfare appeals office are occasionally accompanied. Not everybody is as good an advocate as he or she might be in his or her own cause. However, that is not provided for in the Bill. I wonder whether it would be wiser to provide specifically in the Bill that those making appeals would have the right to be accompanied by an adviser. The Minister will probably say he is worried about this and that he does not want to get into a situation where people would be accompanied by lawyers, that he wants to keep it out of the hands of lawyers because at the end of the day there is the possibility of an appeal to the High Court. I agree with that. It would be a pity, and the same applies in the social welfare appeals system, if people were accompanied by solicitors. That would put the whole matter into a different framework from what is envisaged. It would be useful to specify in the legislation that persons making appeals would have the right to be accompanied by an adviser. It would do no violence to the intention of the scheme to provide for such a provision in the legislation.

Section 10 provides for the explanation of decisions. It is important that an explanation given for a decision is as full as possible. I do not know if we need to be more specific than the provisions in section 10 and we can examine this issue on Committee Stage. However, the more information people are given about decisions the better, whether or not the decisions are favourable or unfavourable. If a decision is unfavourable to the interests of the appellant it is more necessary to provide a detailed explanation so people can be satisfied that the grounds for the decision were sound.

The Bill provides for making regulations. The Minister will use sections 15 and 16 to make regulations which will set out the way in which this procedure will operate. However, section 16 includes a particular form of order and regulation. It provides that such orders and regulations are to be laid before the House and that if a resolution annulling the order is made within the next 21 days on which the House sits, then the order shall be annulled.

The Minister knows what I will say next. In 20 years in this House I have not ever seen an order annulled or a case in which an order made under this kind of provision was brought before the House. I am not one to accuse Ministers or even this dreadful Government of bad faith. However, this form of order is very handy for the Government. The only way in which an order can be brought before the House is if the Government includes it in the Order of Business. A Government which makes an order will not bring it before the House in case Members wish to annul it. This means the House has no opportunity to review measures taken under such an order.

I am confirmed in my long-standing prejudice on this issue by S.I. 79/2001 – The Diseases of Animals Acts, 1966 to 2001, (Approval and Registration of Dealers and Dealers' Premises) Order, 2001. When we discussed the Diseases of Animals (Amendment) Act, Deputy Penrose and I expressed concern about the content of this order which I will come to in a few minutes. The order was made under a provision such as section 16 of this Bill. It is not by any parliamentary astuteness or concern on the part of the Government for clarity and transparency on these issues that I have the chance to say anything about that statutory instrument. I can do so only because of the happy accident that we are discussing the Agricultural Appeals Bill and because the Minister, to be fair to him, agreed to include the provisions regarding dealers in the scope of the Bill. I look forward to the Minister's amendment in this regard.

Orders to be made under this Bill to give effect to the appeals procedure will cover some areas which will be important for ordinary people just as the statutory instrument is important for people's day-to-day lives. It is not enough to suggest that all orders cannot be brought before the House as they would clog up the Order Paper. I have heard this comment time and again. Every time I raise this issue from the Opposition benches I am told the Minister's advice is that we cannot allow all of these orders to clog up the Order Paper but that the important orders will be brought before the House. However, as a result, important orders such as SI 79/2001 and those in the Bill are made under a passive procedure and the House does not have an opportunity to discuss them.

As a result we are left with orders such as those regarding dealers and the appeals system, and legislators have to tell people that the Minister and the Department are entitled to take certain measures which we did not ever have a chance to debate in the Houses. This is not good enough. The Minister must amend section 16 on Committee Stage and at least provide that some of the principal orders will have to be debated and passed by the Houses of the Oireachtas before they can be made. This should have been the case with the order concerning dealers. I am not happy with section 16.

If the Minister does not table an amendment on Committee Stage I will do so. I will ride my hobby-horse over every fence the Minister can put up and ask him to accept the good faith of the position I will put forward, which I am sure will be supported by the Labour Party. I hope the Minister will accept that we wish to include this proposal, not because we do not trust those who draft these orders, but because we, as legislators, will have to explain, and perhaps defend, the provisions in the orders.

Why have disease eradication schemes not been included within the scope of the Bill? Many of these schemes include technical issues but there are other issues and cases which do not require an immediate highly expert and skilled veterinary decision. There are cases when farmers should have an opportunity to argue back because not all decisions made under the various disease eradication schemes are necessarily open and shut cases. We may find that issues which arise under these schemes could properly and legitimately be included within the scope of an appeals system.

Section 7 concerns additional functions connected to appeals which the Minister may, again by order, confer on the director or appeals officers. What is the reason for this provision? Why does the Minister think he may wish to confer additional functions on these people? He may argue that we may not necessarily know all of the things we may wish to do and that he wishes to leave room for such matters in the future. However, he should try to be as all-embracing as possible when he brings the scheme before the House.

If the Minister cannot specify any additional functions why is the section included? If we delete the section and subsequently discover that additional functions are needed, would it not be as easy to bring an appropriate amendment to the legislation before the House? I do not like the idea of giving the Minister carte blanche to make orders adding additional functions under this passive procedure. The Taoiseach seems to have a fondness for signing blank cheques but we should not behave in such a manner as regards legislation.

Will the Minister explain the interesting provision in section 11? Perhaps we can examine this issue on Committee Stage. The section states, "An appeals officer may, at any time revise any decision of an appeals officer". Which appeals officer? Will an appeals officer have the right to revise his or her own decisions? Does the Minister envisage that decisions of appeals officers will be scrutinised by a third party? I am in favour of such checks and opinions regarding decisions. While I am really puzzled to find that an appeals officer may revise any decision of an appeals officer without any further specification, I am very happy with section 11(2) under which the director can, at any time, revise any decision of an appeals officer. This is entirely proper and in its proper place in the Bill.

Section 12 states that persons who remain unhappy with a decision may appeal that decision or a revised decision, as the case may be, to the High Court on any question of law. I may be wrong, but I detect a difference with what the Minister said today. He said that there would be an appeal to the High Court on matters of law, reasonableness and fair procedures. I cannot find the appropriate reference in his speech, but I am sure he will agree that it is there. I was happy to hear him say that there would be an appeal on the basis of points of law, reasonableness and fair procedures. The Bill states baldly, however, that an appeal may be made to the High Court on any question of law, but there is no mention of reasonableness or fair procedures. If the Minister is of the view that reasonableness and fair procedures should be added, I would agree, but the text of the Bill does not ensure they would be covered.

I note the provision in and intention of section 18 to make sure that the Ombudsman will continue to have jurisdiction to deal with cases that come under the provisions of the Bill. It is, probably, a belt and braces and safety pin operation, but it would be useful if the Bill stated specifically that recourse to the Ombudsman will continue to be open to those who will use the procedure to be established.

I now come to the question of dealers, whom the Minister agreed we should add. It seems that it will, at least, require an addition to the Schedule to the Bill. I emphasise how important it is that we do this. I spent some time looking through the statutory instrument and, although the question of premises, for example, is dealt with in four different places, I cannot find any clear definition of what is expected of people in terms of the premises they are required to have. It is all judged, deemed or found to be adequate and so on. There is no specification or provision for anything measurable. It refers to appropriate facilities of sufficient capacity and which must be easy to clean and disinfect; an appropriate reception area for litter and manure; an appropriate system for collecting wastewater, and making sure that premises are clean and disinfected before use, as may be required by an official veterinarian, but there is nothing concrete or clear on which one can get one's hands and whereby one can say that if one wants to become a dealer, one must conform to the standards laid down. This will create a difficulty.

There are also provisions for the approval and registration of dealers. A certificate purporting to be signed by a person authorised by the Minister to certify certain matters, without proof of either the signature of the person purporting to sign the certificate that he or she is so authorised, shall be evidence unless the contrary is shown. That is a standard provision. I revert to what we said when we discussed the Diseases of Animals Act. I would like authorised persons to have a form of authorisation which identifies them clearly. The Minister agrees with me that a photograph would be useful, but I have not heard of any action being taken.

The provisions in the statutory instrument for revocation and suspension are draconian. There is a provision under which a licence can be revoked where the Minister is satisfied that the provisions relating to premises and so on will not be complied with by an applicant. It is one thing to establish that they are not being complied with, but I do not know how one will establish that they will not be complied with. That is a draconian measure. There is a provision under which the Minister can revoke a licence without any reference or communication with the person whose licence is being revoked. That being the case, it is essential that we provide in the Bill for the inclusion of this procedure within the scope of the appeals procedure. That, however, is not enough. When we come to review other legislation, I will want to take a closer look at the way in which these provisions are written for dealers.

We are at the point where we are all very annoyed at the activities of a certain number of individuals who have taken huge risks with the health of our animal population and economy. We cannot, however, tar them all with the same brush. We need a procedure that is fair, open and comprehensible to those involved. We all hope we will soon return to a situation where there can be normal trade in animals and animal products.

Mr. Penrose

I am sharing time with Deputy Wall.

I welcome the Minister and this important Bill. I have always been a strong proponent and advocate of a totally independent appeals system for which I have made the case in this House, but everybody did not share my enthusiasm for such a system. Some argued that it should be kept within the confines of the Department. I was amazed by what I considered to be an illogical thought process, but nothing surprises me as regards people's views. I do not know where their logic gets them. I heard people say that I was very eager to rush to an independent system. I would also like to see an independent method of payment of all grants, as distinct from an independent appeals mechanism.

A number of amendments were proposed in the Seanad by my Labour Party colleague, Senator O'Meara. The Minister took some of them on board and the Bill has been strengthened as a result. For a short time I was a member of the SMI group under the chairmanship of the great Deputy Roche during which we looked at the Department. I may be wrong and hope I am not misrepresenting the situation, but I was of the view that there was a reluctance on the part of the Department to have an independent appeals mechanism. I could be wrong and I am prepared to be judged as such. I do not know the reason I thought that, but I used to hear people say that the European Commission might not agree with the putting in place of an independent appeals system which I thought was peculiar. I agree with Deputy Dukes that the office should be totally independent. The office of the Director of Consumer Affairs is totally independent, staffed independently of any Department and a good model, but I will not obstruct the Bill in so far as we have made substantial progress in reaching this stage.

This is an uncomplicated Bill which is modelled extremely closely on the independent appeals mechanism available under the social welfare code to recipients of social welfare and other such benefits particularly aggrieved by a decision furnished on an application by a servant or agent of the Department. I have no doubt the thrust of the legislation will lead to a significant improvement in the climate for the consideration of appeals by farmers who will feel their rights are greatly enhanced if they wish to challenge decisions made by the Department regarding their entitlement to benefit under any of the schemes administered by it. There has been a major extension in the number of schemes that will be considered by the appeals unit.

However, I predicate such assumption on the basis that the farming community will be happy and content with the independence of the appeals system that will be put in place. I appreciate there is an appeals unit in the Department which comprises six or seven officials. I know some of them well and I compliment them on their hard work and courtesy to people who ring on a consistent and persistent basis. They work extremely hard and they are very competent. The introduction of the legislation is not a reflection on them but I have always been a strong proponent of the independence or the neamhspláchas of the appeals mechanism. Justice must not only be done, it must be seen to be done.

While I do not question the impartiality of the unit or the people working in it, nevertheless it was perceived as self-contained or an extension of the Department. It is important that the farming community which avails of the appeals system is fully satisfied that the proposed unit will be completely independent of the decision making process in the Department.

It is vital that the appeals unit is established on a statutory basis following the passage of the legislation. The unit will have quasi-judicial functions. The legislation implies any administrative decision made on foot of a decision by the deciding officer or the appeals officer must be informed by the principles of natural justice, such as nemo iudex in causa sua, audi alterum parten, a fair hearing to all the parties involved and the right to have untrammelled access to all the documents upon which the original decision was based. Perhaps, as Deputy Dukes said, that may need to be explicitly stated for the sake of clarity.

The relevant regulations must be strictly applied, as Deputy Dukes said, but this cannot be done if they are so clouded in ambiguity that they are open to several interpretations. The problem is the legislation is not clear and I agree with him that lawyers will be involved. Lawyers should not be on the ground helping people to get what is rightfully theirs in the first instance but they will become involved if there is ambiguity and a lack of clarity. Lawyers are trained to argue ambiguous statements in favour of their clients.

The unit will be accessible, which is important, and it must be fully resourced. Reasoned decisions must be given, as Deputy Dukes said. It is no use sending one liners to farmers such as "Alan Dukes, we do not agree that you are entitled under the scheme to a grant". The unit will have to set out why the decision was made and under which regulations it was reached, otherwise farmers will be able to argue a point of law in the High Court. If the decision is bad because of a lack of clarity or a failure to give the reasons, it will be subject to judicial review for failing to observe the principles of natural justice. This is an important mechanism and that is probably why Deputy Dukes and many Senators argued cogently for the unit to be totally independent. The High Court will review the decision on the basis on the reasons for it and whether natural justice was observed.

I am glad the opportunity has been taken to widen the original intended scope of this new office to include all schemes, both national and European, which are payable to farmers. During the debates on the National Beef Assurance Scheme Act, 1999, and the Diseases of Animals (Amendment) Act, 2001, we, in Opposition, insisted that an appeal would have to lie to this appeals body against the revocation or refusal of licences or certificates applicable under either scheme. It is important that the jurisdiction of the appeals board will also comprehend both schemes within this legislation.

Why did the Minister insist that none of the staff of the appeals office could be recruited from outside the Department? The Minister has amended that provision to cover the wider public service but, as Deputy Dukes said, many people from other walks of life could be equally adept and informed to act as appeals officers. A total of 28 schemes are set out in the schedule under which appeals can be made to the appeals board where the farmer disagrees with the decision furnished in respect of his application.

This is a major step forward in terms of the scope and extent of the appeals procedure which up to now dealt with the consideration of appeals under the headage and premium schemes. It will be extremely useful in so far as appeals can be lodged under REPS, the early retirement scheme and the other on-farm investment schemes. It is especially important to fully appreciate the independence of the appeals officers in the discharge of their functions and the performance of their duties and their decisions will be fully binding on the Department. The Minister has emphasised their independence but, nevertheless, he could have provided that the board was completely independent of the Department.

The regulations which lay down the tram lines within which the appeals procedure will operate should be brought before the House so that we might have an opportunity to debate and have an input into same. I reiterate Deputy Duke's comments regarding the Diseases of Animals (Amendment) Act, 2001, regulations. They have been introduced but we did not have an opportunity to debate them. It is no use laying them before the House for 21 days until the statutory instrument becomes law and they are foisted on people without any legislative input from Members of the House. That is not a proper way to treat this legislative forum.

All aspects of the legislation will impinge on farmers' livelihoods because the regulations will set out the steps that must be taken to ensure farmers get what is rightfully theirs at the end of the day. Given our practical experience in the operation of the social welfare appeals mechanism, Members could make useful suggestions and amendments to any regulations which are introduced under section 16.

The most important aspect of the appeals procedure will be the holding of oral hearings which will permit the affected person or persons to give oral evidence viva voce. They will not be constrained to the grounds on which the decision was made. They will be able to expand and extrapolate on same and that will, therefore, broaden the scope of the appeals mechanism.

Section 8(4) provides that the decision on appeal shall be made as soon as practicable. The regulations should specify a period within which the decision should be made. A period of eight weeks would be appropriate. I agree with the Minister that the thrust of the legislation should be to minimise the time taken to process an appeal. Everybody accepts that some appeals are more complex than others but a time limit should be provided.

That puts the onus on the people hearing the appeal to do it within a defined time period and to give the result. Each appeal will have a significant impact on the appellant concerned. People have appealed because they have been denied something, which they believe to be theirs, due to a different interpretation on the part of the deciding officer. That means money. In an environment where money is critical, particularly in the current farming situation, a rigorous time constraint must be put on the hearing of appeals and the issuing of results.

In January 2000 a farmer in my constituency made an appeal with regard to his REPS payment. A 100% fine was levied in respect of the removal of a small portion of blackthorn bushes. They had to be removed to ensure his animals would not stray on to his neighbour's lands. If he permitted them to do so, it would have been a serious contravention of the disease control regulations. This is a situation of which even Humpty Dumpty would not be proud. The incongruity and incorrectness of the decision is evident. There were two schemes in conflict. Today, 15 months later, there has not been a decision on the man's appeal. That is scandalous. I raised the issue in the Dáil previously and was told first that the decision would be made in January and, later, that it would be made in February. That shows scant respect for that farmer. He is a bachelor farmer who lives alone on a dry stock farm and is dependent on REPS income to sustain his holding.

That is the reason this appeals Bill is before the House. I cannot understand why this should be the result of pulling a few blackthorn bushes out and erecting a fence to prevent cattle from entering a water course or going on to a neighbour's land. The man refrained from touching furze adjacent to the bank. I have the details of the case with me. The works were the minimum necessary to comply with the Department's disease prevention regulations, which are more important than the whims of somebody who subjectively says the farmer is not entitled to his grant. That is the type of thing that led to the Dáil debating this Bill.

Fifteen months later, the man has not received the results of his appeal. That is the reason time constraints must be included in the section. I will not allow anybody to be left hanging in abeyance like my constituent, waiting for a few bob. This man has only 50 or 60 acres of land and this money could be the difference between surviving and not surviving in a rural area. Some people might think I am exaggerating but if they visit parts of Westmeath, they will see it is not exaggeration but fact.

The National Beef Assurance Act, 2000 provides that every herd owner must have a certificate to participate or trade in the scheme. The Minister can refuse a certificate under section 15(2) or revoke it under section 16(2) of that Act. I note and welcome the Minister's commitment that these decisions will be included under the umbrella of this appeals mechanism. The Ombudsman's function in relation to the schemes is being retained by adding the appeals officers, as designated under the Bill, to the First Schedule of the Ombudsman's Act, 1980. That is important. The decisions of appeals officers might then be open to investigation by the Ombudsman in the usual way.

My constituent was given a 100% penalty for doing his best under a plan. The severity of the penalties imposed for relatively minor, innocent, innocuous or, at most, negligent errors has been a source of intense dissatisfaction in the farming community. Many of the penalties imposed are unduly harsh and disproportionate. The proportionality of penalties is a fundamental principle of EU law. In the many decisions of the European Court of Justice there is constant emphasis on the fact that proportionality is a fundamental concept. It is like one of the fundamental rights Articles in our Constitution. Losing a full two years' payments for a minor transgression or omission could not be deemed proportionate. I support the Minister's efforts to have this issue resolved.

Everybody appreciates that premium payments are a significant proportion of farm income. When a deduction is made, therefore, it can be particularly onerous. According to Deputy Dukes, the Bill as drafted does not make the appeals mechanism totally independent of the Department. It must be independent to foster and encourage confidence. This might be achieved by establishing a supervisory or umbrella body to oversee the appeals body. That would reinforce its stand alone nature. Senator Quinn made this proposition in the Seanad. It would ensure the success of the board and that is in all our interests.

Will the board only examine decisions in a prospective manner or will it deal with matters on a retrospective basis so the case of my constituent could be brought within its remit? If a decision is outstanding for 15 months and is not being attended to, can it be brought to the appeals board or can the board only deal with prospective matters from the passage of the Bill? I would like to bring the case I mentioned before the appeals board and secure a decision on it. I am sure the board would not hold on to the case for 15 months.

I refer to the disease eradication schemes and the valuation and compensation process and I urge the Minister to bring that within the remit of the board. Why not permit the appeals board to arbitrate in disputes between farmers and the Department, for example, on the valuation of livestock? The culling process has successfully taken place in County Louth. There were plenty of valuers there. Under the disease eradication schemes, stock is compulsorily removed from farms. It is a fairly traumatic experience. That is followed by the tedious process of arguing over the valuations.

This is particularly the case in the BSE scheme. There is provision for a farmer to bring in an independent valuer but often that involves a major battle with the Department at a vulnerable time. This might be another function for the appeals board. It can be a fundamental dispute. In cases involving the eradication of diseases schemes I would not settle for anything other than a four week time limit for decisions. I can give the example of another farmer in my constituency. His animal was identified with BSE on 6 December. All the animals were taken away on 12 February but he was only paid less than a fortnight ago, after the intercession of the Minister. In that period, the cost to the farmer of the 180 animals, between lost milk and everything else, was more than £20,000 but he did not receive one penny towards it. Need I say more?

Section 6 enshrines the provision of an independent appeals process but if it is not seen to be independent, it will not work. It is incumbent on the Minister to ensure that the framework he establishes is capable of delivering the independence required. He has made a start by extending to the wider public service the pool from which the staff can come. That is a good start. Let us get this process on the road as quickly as possible so nobody will have to wait the length of time some of my constituents have waited for final decisions in relation to what is rightfully theirs.

Mr. Wall

I compliment the Minister on his approach to the foot and mouth disease crisis. The conservative approach he and his committee have taken in relation to restarting events is the correct one. I am aware that it is hurting many of us, but it has to be done. I congratulate the Minister and with God's help and everyone's assistance we will only have the one case. Having listened to Deputy Penrose, the Minister will not want the first case going to the appeals board to be the Westmeath case. I am sure he will do everything possible in the next few days to get it out of the way before the Bill is enacted.

The success of the legislation lies in the independence the Minister and the House ensure for it. If one takes the example of the appeals mechanism operating so successfully in the Department of Social, Community and Family Affairs, the one aspect highlighted is the independence of the office. On my first visit to one of the hearings I made the fundamental error of referring to all officials of the Department of Social, Community and Family Affairs. I was immediately stopped in my tracks and told that it was an independent office and that the officials dealing with the case were not responsible to that Department, but were totally independent. I hope it will be the same with this appeals mechanism which it is important for the farming community to have. The development of farming has suffered badly in recent years and it is vitally important to have a support mechanism in place for applicants. Those attending hearings should be properly informed about procedures and, as Deputy Dukes said, it is imperative that applicants be allowed to bring someone to speak in support of their applications, be they farmers, members of the IFA or ICMSA or public representatives.

In all the Department of Social, Community and Family Affairs hearings I have attended there has been a cross-section of people present, but farmers may not be in a position to defend their applications given the complexities involved. This cannot be overstressed. A Department of Social, Community and Family Affairs case may just relate to a single payment which does not involve many third parties. In a farming case, the correspondence involved might have to be sought from Brussels. The complications involved for an applicant, no matter how fair an inspector is, might be too much and he or she should have somebody along to give him or her confidence in presenting a case and ensure fair play. That is imperative and I will ask Deputy Penrose to table an amendment to ensure provision is included for the success of the legislation, the reason we are here.

Other speakers mentioned the looseness of sections 10 and 11 which I hope the Minister will tighten on Committee Stage as there are grey areas involved. This is something we do not want, particularly in relation to an appeals mechanism. The Minister can correct me if I am wrong, but we do not want a situation where an honest person puts his or her case, is told by the deciding officer that payment is due only to be told three or four days later that he or she did not qualify due to some procedure that was not adopted. That has to be sorted out. I agree with Deputy Dukes that something is not right and needs to be straightened out before the Bill passes.

In many cases one finds publications about such mechanisms are lacking. One often finds people in the Department of Social, Community and Family Affairs who never heard of an oral hearing or assistance for same. When this mechanism is put in place there should be the necessary publicity in the national media and farming journals to ensure the small farmer referred to whom Deputy Penrose referred, as well as the big farmer, is aware of it and how applications can be made.

The Minister should accept the points I have made in relation to sections 10 and 11 as well as to the need for assistance on the day of a hearing. He should take them into account in order that we can discuss them on Committee Stage.

Mr. J. Brady

I propose to share my time with Deputy Ellis.

As a farmer, I commend the Minister and the Government on their support to the agriculture industry during these difficult times. I compliment the Minister, the Minister of State, officials from the Department of Agriculture, Food and Rural Development, the Garda, the Army and everyone else involved in fighting the foot and mouth crisis. On a personal note, I thank the Minister's officials for dealing with a situation where culled animals from County Louth were being brought to College Proteins in Nobber, County Meath, a matter about which farmers were very concerned, as was the general public. I thank the officials for their help and assistance over one weekend which enabled me to relay to people in the area that there was no risk to livestock or people.

The Government has given substantial support to farming which was very necessary due to the variety of unforeseen difficulties which have beset the industry in recent years.

The work of the farming community is at the root of the country's economic success. The Government's approach to agriculture reflects a strong desire to provide leadership, sensible policies, a regulatory framework and working support to ensure this important industry plays a major role in the economy. Since 1995, the Department's appeals unit has considered appeals on premium and headage payments. The Bill will serve to reinforce the independence of that service. It will be put on a statutory footing and will cater for a wider range of schemes.

We are all aware of, and can relate to, problems that have arisen. The severity of penalties imposed on the farming community have been very harsh. It is all right when Department officials make mistakes but that is not the case for ordinary farmers. Many bachelor and older farmers never had to complete forms. We all know of cases where bushes or fences have been blown down by the wind but despite the fact that such incidents are beyond the control of farmers, they lose money they are entitled to under the REP scheme. I know of one case where a farmer, anxious to encourage his son to stay in farming, leased a farm for him and got a separate herd number. However, in response to a question on an application form for premium and headage payments he indicated his association with his son's herd, not because of the mixing of cattle but because he was helping him to stay on the land. He was then deprived of his payments.

Mr. Crawford

Was that fair?

Mr. J. Brady

It has happened under this and previous Ministers. I know of another case of a farmer who, because he took land in a disadvantaged area for the first time was deprived of his money after completing an application form. Incidents of this kind should not happen. I hope that under the new appeals process those who have made genuine mistakes will not be deprived of their premium or grant payments.

The Bill affords farmers the right to independent decisions. This means they will be able to challenge decisions made by the Department under the REP schemes. The provisions of the Bill are similar to those governing the social welfare appeals office. The social welfare appeals system has been in operation for over ten years. It is very effective and has the full confidence of the public.

Modern farming is a business that requires much attention to detail. On many farms the greater part of the income is in the form of subsidies. This requires much paperwork. The older farming generation can have great difficulty in understanding terms and conditions relating to schemes. Numeracy errors, misinterpretation of the regulations and miscalculation will inevitably arise. We are all aware of farmers who have lost subsidies which would have been an essential part of their annual income. The appeals office will deal with these problems on a human basis.

Farmers applying for payments under the direct payment schemes will be in a position to have their appeals heard by an appeals officer. Every effort will be made to minimise the time taken to assess appeals. Provision is also made in the Bill for the revision of a decision within the office.

The Bill is short and straightforward. It will improve the services offered by the Department and it provides a future right of recourse to farmers who need to challenge decisions under any of the direct payment schemes. The independence of the office is crucial. Decisions taken by it will be binding on the Department. Farmers will be notified in writing by the appeals officers of the reasons any given decision is made.

While the Bill primarily deals with direct payments to farmers, other functions of the national beef assurance scheme will come within its remit. The Bill will introduce a requirement that every herd owner wishing to trade in beef must obtain a certificate from the Minister. The provision for the retention of the function of the Ombudsman in relation to schemes is another important aspect.

I again appeal to the Minister and his officials to ensure that this new system will work. It is very important, more so now than heretofore, because of the importance of keeping young farmers on the land. We all know how difficult it is for farmers to keep their sons or daughters engaged in agriculture. Last week I was made aware of a planning decision matter involving a farmer's daughter who wished to maintain her involvement in agriculture matters. On application she was refused planning permission. I told the officials involved she was refused because she was a woman. It appears that nowadays women should not be involved in agriculture. I am pleased to note that my colleague, the Minister for the Environment and Local Government, has entered the House, although I accept he cannot get involved in planning matters.

It is very important to keep the sons and daughters of the farming community involved in agriculture. That is why I appeal to the Minister to ensure that the provisions of the Bill are implemented.

Debate adjourned.