Dáil Éireann debate -
Thursday, 21 Jun 2001

Vol. 538 No. 5

Agriculture Appeals Bill, 2001 [ Seanad ] : Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. U. Burke

I wish to share my time with Deputy Connaughton.

I welcome the opportunity to contribute to this debate. If there is an issue that occupies the minds of so many people in rural Ireland it is the question of an appeals body within the Department of Agriculture, Food and Rural Development. In my four years in the House, and immediately prior to that, I got a rude awakening in regard to the appeals mechanism within the Department, if one could call it an appeals mechanism at all. Even though the independence of the agriculture appeals office is crucial, I am not too sure that what is being proposed by the Minister in this Bill will be in any way independent. The reason I say that is that the Minister will appoint the appeals officer and all the members on the appeals board. All we have to do is look back at the situation in the past. In my experience, it was a sad sight. I will give my reasons for saying that and I think the Minister of State, Deputy Ó Cuív, will, with justifiable reason, say I am right.

I made representations on behalf of a constituent in 1997. When all the mechanisms by way of representations were exhausted, after applying great pressure on departmental officials I finally had the wonderful experience of an oral appeal to which I was called in Agriculture House. I reasonably expected – through naiveté – to get a reasonable hearing and that there would be a corresponding assessment of the points I had made previously and during the appeal. What I experienced was something that I hope no Member of this House will ever experience in the future. I was told I was a cowboy and told by a senior officer that what I was trying to do was make representations on a fraudulent application. People in Agriculture House believe people who make small, technical mistakes are attempting fraud. That is not acceptable.

I was brought in before four senior officers. I found out subsequently under the Freedom of Information Act that one of the participants on that appeals board had made 14 contributions to that file. Also on that file was the statement of a senior officer in the Department saying not to reply to Deputy Burke on this question. Is that fair? Is that an instance in which we can have confidence in the Department?

The Minister is to select and appoint personnel to this appeals board, and he will appoint person nel from within the Department. If that is the case, it is a farce. It will be a charade which will have no meaning at all. That is why I do not accept that the Minister – I do not blame him alone – will resolve the difficulties there which have been experienced by many people who apply. If the Minister is to appoint an officer from within the Department to one of those positions, that officer will not overturn a decision made by a superior or junior officer to him. That is probably the greatest difficulty I have with this new appeals board.

There are empire building people in Agriculture House. It is a sad to say that but until I have proof to the contrary, I will not be convinced otherwise. There are wonderful people in the Department who deliver many of the services in a very encouraging and positive way but alas it is not true of all and that is why I have a great problem with this. The consequences of this are that many people are denied entitlements to those scheme.

Because this appeals office is dealing almost totally with schemes that are granted-aided and assisted, it is imperative the Minister appoints people who are really independent, people from outside who can come in with a clean pair of hands and with no axe to grind with superiors or junior staff and can make an objective decision. That has not happened in the past and it will not happen under the proposals of this scheme.

We hear it is the intention of the Minister to go to Europe to ask it to allow for the simplification of the forms farmers must fill out. I refer the Minister of State, Deputy Ó Cuív, to the most recent application form from the Department for the extensification grant for 2001. The additional box, the second box, is absolutely confusing. The sad thing is that if a person was not warned – it is too late now because the applications have gone in – they will not know until late this autumn that a mistake has been made and a penalty will apply. It is not acceptable.

No changes have been made and I have no reason to believe the Minister is serious about changing this appeals board. The information I got from the Department under the Freedom of Information Act was incomplete. I realised that a letter I had written was not there. When I noticed that I went back and got another file under the Freedom of Information Act relating to the same query which was incomplete as well. That is not good enough. What is wrong with the Department of Agriculture, Food and Rural Development and the officers who make such decisions to intimidate me and other public representatives? I cannot accept that and I will pursue this as long as I am a Member of this House.

Mr. Connaughton

I thank my colleague, Deputy Ulick Burke, for giving me the opportunity to say something on an issue about which I have spent my lifetime talking, but I cannot say it in four minutes. I welcome the Bill. We always wanted an Agriculture Appeals Bill that would gain the confidence of 150,000 Irish farmers. Whether we have that now I do not know, but the last Bill did not. I never fell out with the members of the board but, unfortunately from a farmer's perspective, they seem to be within the remit of the Department of Agriculture, Food and Rural Development. The problem is a matter of who polices the policemen. One of the most central matters is the independence of the board, a point to which I will return on Committee Stage. It should be far more independent than it will be under the present proposal.

I have never made a case for people who defraud the Department of Agriculture, Food and Rural Development, and never would, but for the smallest misdemeanours imaginable, one could not believe the penalties that apply. What about the many farmers who submit late applications for the suckler cow grant? A wedge like procedure applies to them. For every day they are late, they lose a certain percentage, and after day 18 or 20, they lose the lot. If one considers a 30 cow farmer anywhere in the country and adds up all his payments, they add up to just over £8,000. On day 20, because of a failure to apply or do so on time, the penalty on the farmer is £8,000. What would one have to do for the judicial system to impose a fine of this value upon one? One would almost have to commit a murder. A case could not be made, on either side of the House, to suggest this is fair and equitable.

In fairness to the Minister of State, he says much on this subject. I acknowledge the fact that he has an interest in it. If the system is wrong, it must be changed. There will be a revolt if this issue is unresolved.

Éamon Ó Cuív

If Deputy Connaughton got the reins, would he change it?

Mr. Connaughton

With all due respect to the Minister of State, one would not know what he would say or do.

An Leas-Cheann Comhairle

Deputy Connaughton has one minute.

Mr. Connaughton

The punishment must fit the crime. There will have to be a penalty if people are late in submitting their forms, but surely £8,000 is too much. It would be a great fine if it were £1,000 and the farmer were given the remaining £7,000. He still has his stock and has to make a living, and has done nothing wrong other than make an application on time.

Éamon Ó Cuív

The Deputy is absolutely right.

Mr. Connaughton

There are many other aspects to the matter, but on that particular one, I rest my case.

Mr. U. Burke

The Minister of State is at it again, saying one thing and doing another.

An Leas-Cheann Comhairle

I understand the Minister is allowing Deputy Roche four minutes.

Mr. Roche

First, I want to take up where Deputy Connaughton left off. I welcome this Bill. In a sense, I feel I was the handmaiden that delivered this legislation. The committee on strategic management in 1998 commenced an examination of the Department of Agriculture, Food and Rural Development. It pointed out that an independent appeals mechanism was desperately needed to lend credibility to the system. I am delighted that the Department of Agriculture, Food and Rural Development, which argued at the time that it could not be introduced, has agreed to recant its heresy and accepted the possibility. At the time, the SMI committee brought some very senior, relevant members of the European Commission here. They indicated, particularly the Swedish representative, that it was possible. The Minister has now translated it, for which we should thank him.

It would be interesting for the House to examine other aspects of the SMI report because they are reflected in the contributions of the previous two speakers. The relevant issues that we felt needed attention were the delays in payments, which were quite scandalous but have improved since, the manifest absence of an independent appeals mechanism – this Bill provides for that – and the issue Deputy Connaughton addressed, and requires further discussion, which is the proportionality of fines for human error. The level of penalty and imposition that small farmers have to bear, through honest error, is obscene. Many of the farmers are of advanced years and may not be particularly literate. Deputy Connaughton is correct in thinking that there is no Member who would carry a torch for a crook, but there are many decent men and women in farming, many of whom were not reared in bookkeeping. They are making tiny errors. I hope the new appeals mechanism, as soon as it comes into effect, will look not just at the facts of individual cases, but also at the facts of proportionality.

I agree that the psychological independence of an appeals office is very important. The appeals mechanism created by the Social Welfare Act in the 1950s is very good but there is still a suspicion that it is a product of the Department. All one has to do is look at the Coolock Community Law Centre report of many years ago. That is not a fair judgment of the officials who carry out the review mechanism. Deputy Connaughton alluded to the Roman poet, Juvenal who asked: "Sed quis custodiet ipsos Custodes?”. Who guards the guardians? It is a valid question. While the appeals mechanism being created is welcome and progressive, the Minister and the first appeals board will have to ensure that the independence of the office not only exists in law, but in fact and in the minds of those people who come to it. I wish the office well and would like it to be well financed and supported. I hope the Minister of State will do something about the problem of proportionality.

Minister of State at the Department of Agriculture, Food and Rural Development (Éamon Ó Cuív)

First, I will deal with two issues raised by Deputies Connaughton and Ulick Burke. The first concerns late applications. There are certain things one can address. Deputy Connaughton is correct in saying certain things are outside his remit. He has a valid point on the question of late applications. I have discussed the matter with the REPS officials. I am trying to arrange a system by which one will be notified that one is in a danger period if one fails to submit an application on time. I cannot change the fundamental rules of Brussels, but I can warn farmers that they are in danger of being penalised if they do not adhere to them.

I have arranged that both the farmer and his planner can be given a red letter warning that one is in danger period, that one is losing a certain percentage per day, and that there are only a certain number of days left to submit the 1C form. I fully accept what Deputy Connaughton is saying. However, we must understand that our belief that time limits should not be absolute is not that of Europe, and we are bound to whatever Europe decides – as has been pointed out to me in the last few weeks. Where the penalties are concerned, the Minister and I have great sympathy with those who believe they are too severe—

Mr. U. Burke

Come on. More than sympathy is needed.

Éamon Ó Cuív

I, on a day-to-day basis, have responsibility for the REPS scheme. I have to say—

Mr. U. Burke

When did the Minister of State get the order—

An Leas-Cheann Comhairle

Let the Minister speak without interruption.

(Interruptions.)

Éamon Ó Cuív

If the Deputy is interested in the exact date of the order of Government, I can forward it to him later. To change the penalties requires the approval of Brussels. Anybody who would suggest otherwise does not understand the way the system works.

With regard to the independence of the office, we must recognise that it is modelled on the successful experience of the social welfare appeals office, which is independent and yet within the Vote of the Department of Social, Community and Family Affairs. The head of the appeals office will not report through a departmental hierarchy nor will he or she need the approval of the Minister. On the contrary, the Bill specifically provides that he or she will be independent. That is the long and the short of it.

Mr. U. Burke

Will it be an outside appointment?

Éamon Ó Cuív

I do not foresee any negative consequences arising from the organisational status of the appeals office.

I want to emphasise again the consistency between the proposed agriculture appeals office and the social welfare appeals office, with which I have had many dealings and have found good and sympathetic to applicants. I have attended oral hearings and I am sure most Deputies would accept that the social welfare appeals office has been more than sympathetic within the law, within which everyone must operate, to applicants in all cases.

Deputies rightly pointed to the credibility of that office, which has been operating effectively and with full public confidence for a decade. They will be reassured to note that the material provisions of this Bill are identical to those governing the social welfare appeals office. The same provision will govern the independence of the two offices, the same functions will be vested in the appeals officers, the same arrangement will apply whereby the director reports to the Minister and so on.

Deputy Penrose mentioned the Office of the Director of Consumer Affairs. The Director of Consumer Affairs is recruited by the Civil Service and Local Appointments Commission. The staff of that office are all on secondment from the Department of Enterprise, Trade and Employment.

Deputy Dukes asked for clarification on some points. A detailed statement of the reasons for a decision will be issued in writing by the appeals officer in every case, irrespective of whether the appeal is upheld. In any event, that is already a requirement under the Freedom of Information Act, 1997.

Under section 11, an appeals officer can revise his or her decision or the decision of another appeals officer if new evidence comes to light since the date of the original decision or if there has been any relevant change in circumstances since the original decision was given. The director may revise any decision of an appeals officer if it appears to the director that the appeals officer made a mistake in relation to the law or the facts of the case.

Section 12 provides that there will be a right of appeal to the High Court on any question of law. In addition, irrespective of what we put into this Bill, appellants always have the right of redress to the High Court by way of judicial review if there has been a breach of fair procedures by an appeals officer.

Mr. Connaughton

They would want to have a farm of more than 21 acres.

Éamon Ó Cuív

Deputies on all sides of the House will agree that the social welfare appeals office has been operating for the past ten years and there have been no question marks over its independence or credibility. When the Minister set about putting an agriculture appeals office in place, he used the social welfare appeals office as a template. In fact, the text of many sections of the Bill, as I have already said, mirrors that in the social welfare legislation. During the debate on the Bill in the Upper House, many Senators expressed concern about the new office not being independent enough and that concern has been expressed here today. I want to reassure the House in the same way that I did the Seanad that the agriculture appeals office will be just as independent as the social welfare appeals office. The reporting structures, funding arrangements, etc., will be independent.

Mr. U. Burke

Does the Minister of State really mean that?

Éamon Ó Cuív

Yes. The officers appointed to the Department of Social Community and Family Affairs come from within that Department and are assistant principal grade. They are not recruited specially by the Civil Service Commission for the post of appeals officer. When we discussed this in the Seanad, the Minister agreed to reconsider the wording of section 2, which deals with the appointment of appeals officers. The original wording, taken directly from the social welfare legislation, stated that the Minister may appoint such and so many of his or her officers to be appeals officers and every person so appointed shall hold office at the pleasure of the Minister.

Mr. U. Burke

There is no change.

Éamon Ó Cuív

The Minister introduced an amendment to this section in the Seanad. Section 2 now states that the Minister may appoint persons who hold positions within the wider Civil Service to be appeals officers. In other words, he will be able to recruit persons to be appeals officers from across the Civil Service.

Mr. U. Burke

That is where he should go.

Éamon Ó Cuív

Recruitment of an appeals officer will not, therefore, be confined to the Department of Agriculture, Food and Rural Development. This goes further than the social welfare appeals office. It should help to allay Deputies' fears about the independence of the new office from the rest of my Department. Deputy Ulick Burke must have had some bad experiences.

Since I came to the Department I have been working with the officials, have raised many queries with them and have found them speedy and forthcoming with replies. I want to record this point in defence of people who cannot defend themselves in this House. I was not happy with the operation of some of the schemes that come under my remit. I approached the officials and made suggestions about better procedures to help speed up decisions. My philosophy is that one should give a good and fair decision having always considered the applicant's case within the law and make a decision on it as quickly as possible. Outside the remit of this Bill, we have considered a way of improving the procedures. I record that I have got the full co-operation of the staff working with me to ascertain how we can improve the general systems in operation.

A number of Deputies on both sides of the House suggested that the disease eradication schemes should also be considered by the appeals office. I gave consideration to bringing within the scope of the Bill the on-farm valuation scheme for TB and brucellosis reactors which is being developed under the Programme for Prosperity and Fairness, but I concluded that its central element, the valuation of reactors, was not a suitable activity for inclusion. Any appeal would have to remain in the area of valuation, involving arbitration where necessary. There will be such an appeals mechanism built into the operation of the compensation scheme. It is my considered view that the appeals office would not be the proper mechanism to consider disputed valuations.

I accept, however, that there may well be benefit in assigning to the appeals office some functions under the scheme, those generating penalties where there is non-compliance by the applicant farmer with the regulations underlying entitlement to compensatory payment in the first place. Similar considerations apply here to those affecting the appeals process in the direct payments area and this would seem to be a reasonable basis for bringing the compensation scheme within the remit of the appeals office.

I hope to be in a position to make provision by amendment on Committee Stage or by order whereby the new office can assume an appeals function in relation to the non-valuation aspects to which I referred.

Similarly, as regards the compensation scheme for depopulations on account of BSE, I would not consider the appeals office to be an appropriate forum when the issue is one of valuation. As the evolving scheme matures, there may well be a good basis for bringing appeals under this scheme within the remit of the appeals office, but this has been left open for the time being.

While the Minister can sympathise with the motivation for the provision of retrospection, he does not consider it would be realistic. It would provide in effect for the reopening of any case where the appellant was still dissatisfied with the Department or the appeals unit. In the Minister's view, that would not be productive and would raise hopes almost certain to be subsequently dashed.

I envisage the regulations to be prepared under section 15 will specify a reasonable interval, perhaps 28 days, within which an appeal must be made subject to an overriding power of the director to accept late appeals. That is important for those who, for good reasons, often find it difficult to gather the documentation required on behalf of constituents within the 28 days required.

I want to point out, and this is relevant to what Deputy Ulick Burke said, that the purpose of section 18 is to preserve the right of recourse to the Ombudsman. All of the decisions made by the appeals office can also be brought to the Ombudsman. If the procedure involved in any case was wrong, an appellant has recourse to bring his case to the Ombudsman. Most of us have had recourse to the Ombudsman in regard to certain cases over the years. He has the power to investigate cases handled by my Department's non-statutory appeals unit. The Minister and I have no difficulty with that. If we did not include section 18, the Ombudsman would no longer have this power, but that would be a retrograde step.

Oral hearings come under the Bill. It will be possible for appellants to bring a member of the family, an expert or a public representative to a hearing, which will be held in private, and the business conducted will, therefore, be between the appellant and the officer in attendance at the appeals hearing. In relation to the time limit that will apply, the target will be a 12 week interval for the processing of appeals.

Question put and agreed to.