Amendment No. 2 is an alternative to amendment No.1. We will take amendments Nos. 1 and 2 together, by agreement.
Agriculture Appeals Bill, 2001 [ Seanad ] – Report and Final Stages.
I move amendment No. 1:
In page 4, lines 37 to 39, to delete all words from and including ", as" in line 37, down to and including "Minister" in line 39 and substitute "within 8 weeks".
The purpose of this amendment is to put a time limit on the processing of appeals. We had leng thy discussions of this on Second and Committee Stages and the Minister's only response has been to say that the matter will be dealt with in the context of regulations to be made as to how the appeals system will operate. Will the Minister let us know if behind the text of amendment No. 2 there has been further reflection on the feasibility of putting in a reasonable time limit for the conclusion of such appeals?
Our amendment No. 2 arises from reflection on what was said the last day and on the potent arguments made against the amendment proposed by Deputies Dukes and Connaughton. A simple amendment that all appeals have to be done within a fixed period could leave the appellant at a disadvantage. I accept the argument that in the original form all we could do was give guidelines. We have seen in the past, particularly in the case of An Bord Pleanála, how those guidelines do not ensure speedy decisions. Two difficulties were raised, one the desire for speedy appeals and, second, the need for flexibility to be built into the system so as not to put the system in a straitjacket where everything would have to be done in eight weeks even if the appellant needed more time.
We propose here that the Minister can make regulations as is necessary to include time limits. With the amendment proposed by Deputy Dukes, if the appellant needed more time due to various delays that might happen, such as an oral hearing or a spell in hospital, he could not get it because it would have to be done within eight weeks. We could make a regulation that if a problem arose in the future and once all documentation that had been requested had been provided by the applicant, a decision would have to be made within four weeks. By allowing this to be done by regulation we fine tune what we want to achieve in a way that allows us direct the regulation in favour of the appellant and to home in on the particular problem. This would be better than a blanket requirement to do everything within eight weeks even if it did not suit the appellant. We are trying to build on the Deputy's proposal.
I appreciate what the Minister says and I will not press amendment No. 1 because I understand his intention in proposing amendment No. 2. On a slightly different issue, will the regulations the Minister proposes to introduce make any stipulation in regard to the length of time within which appeals will be admissible? The Minister will understand my reasons for asking the question. A number of my colleagues here have indicated that matters that were dealt with in the past, particularly over the last couple of years, seem, in some cases, to have been dealt with in an unsatisfactory way. The people concerned would like to be in the position of being able to take advantage of this new mechanism to have those issues revisited. Will the Minister make any provision in the regulations for retrospection?
It is important that we have time limits because one of the biggest difficulties many appellants have is that files are literally lying dormant in some office or other despite the fact that they are under appeal. At present, it takes almost nine months for action to be taken on an appeal. That is unsatisfactory. It is necessary to have limits and I welcome legislation that provides limits whereby people would have to give decisions.
I support the comments made by Deputies Dukes and Burke. Strict time limits are needed. We have the situation in An Bord Pleanála where a person can get a letter informing him that his appeal has been put back four months and at the end of time he can get another letter saying it has been put back indefinitely. I would not want to see such a situation happening under this new appeals board. It must be seen to work. The fact that it can be dealt with by regulation raises questions. Regulations we have no control over often come into the House at a time we are not sitting. I urge that the situation be tied down strongly and that the Minister makes sure it actually works.
On the same issue of delays in appeals, in many cases the Department is in a position where it seeks legal advice on the matter and that is what often holds up a decision for a number of months. Does the Minister envisage that in similar situations the same kind of delay will ensue due to the seeking of legal advice by the Department?
We have sought here to take on board the thrust of what the Opposition wanted but we have tried to do it in a forensic way. A guideline of 12 weeks was mentioned and the objective would be to get it done even sooner. If that does not happen, and I recognise that the situation in An Bord Pleanála is totally unacceptable, the Minister by regulation will be able to return and forensically make regulations to deal with the issues without prejudicing the right of the appellant. For example, in the circumstances where all the information was provided, a regulation could be made that the decision must be given within X number of weeks. A second regulation could be that the Department would have to reply with information requested of the Department within a fixed time limit. If an appellant had a bona fide reason, such as illness, as to why he could not deal with his end of the problem, I would not like to see a regulation that caused him to lose the appeal by virtue of the fact that he could not attend an oral hearing or something. The regulation method gives us the opportunity to be forensic at putting the pressure on the places it should be without in any way disenfranchising the appellant. This is fundamentally different to both the social welfare appeals and to the Bord Pleanála situation. We are giving the Minister the power to intervene in a positive way, by regulation not by guideline, if the time per formance of the appeals board is not satisfactory. It is a major step in the right direction and I hope the Opposition will see that what they proposed has been built on in a reasonable way.
Now that this, please God, will become part of the Bill, there is an instrument whereby the Opposition can propose to the Minister to deal with this under the regulations if they think it is not working correctly. This is a powerful forensic tool which allows this issue to be dealt with in a creative and positive way in future.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 4, line 38, to delete "in this regard issued" and substitute "issued or regulations made in this regard".
Can I ask the Minister of State what he intends in amendment No. 2 ?
I will allow the Deputy, but it was already discussed with amendment No. 1. The difficulty is that the Minister is not entitled to come back in again.
I have always admired the firmness with which the Leas-Cheann Comhairle flexibly applies the rules of debate in this House. Does the Minister of State intend to build any element of retrospection into the regulations ?
It was already said on Committee Stage that it was not intended. Those appeals that are finished, are finished. There is always recourse to the Ombudsman.
Amendment agreed to.
I move amendment No. 3:
In page 4, between lines 43 and 44, to insert the following:
"(3) An appellant may represent himself or herself or be represented by another person at the oral hearing of his or her appeal.
(4) Where an appellant is represented by another person at the oral hearing of his or her appeal, the appeals officer hearing the appeal may examine the appellant, if the appeals offficer considers it necessary.".
This could have been done by regulation but it is now proposed that the right to bring a representative is written into the primary legislation. We are taking on board the suggestion of the Opposition on Committee Stage. It will be a right and is not at the discretion of the appeals officer. It is important to retain within this section the right of the appeals officer to directly address questions to the appellant, if that is required. It will rarely be an issue.
The Minister of State is right in saying that the first part of the amendment takes on board a proposal by me discussed on Committee Stage. It will help to give people confidence in the mechanism itself. I can see why the Mini ster wishes to put in the second part of the amendment – to put a matter on the other side beyond any doubt, which is a sensible and appropriate provision to make. By definition where the appellant is being examined in this way, the person who is there to assist or represent them is also present. I support this amendment.
I also welcome this amendment. It is very important that people have the right to have individuals with them. I had a number of cases where farmers were visited by departmental officials and others, and it would have been beneficial if they had been allowed to have somebody – let it be a fellow farmer or somebody else – accompany them and listen to the discussion. It is very unfair that any group, be it inspectors or hit-men, can come into a farmer's place – let alone the actual appeals office, without the farmer having the right to have a witness on his behalf.
I support this amendment. Will most of the personnel of the appeals board be drawn from the Department of Agriculture, Food and Rural Development? It is of the utmost importance that the appeals board personnel are carefully chosen and, if they are internal, that they would be given training. In my experience many of the people who were in the position of being appellants were tortured by either an individual or group of officers from the Department. I was the victim of such an appeal system and hope that the personnel chosen would be adequately trained in communications and cross-examination so they can do the job with reason and effectiveness.
I fully accept what the Deputies have said. It is very important that the appellant is treated on the basis of having a valid case. Decisions have to be made within the law, but they should be made following a sympathetic examination.
Twenty years ago the Department of Social, Community and Family Affairs – or the Department of Social Welfare as it was then – was seen as a very inquisitorial Department. It was not seen as being customer friendly, but that culture has changed over time.
Since I came into the Department of Agriculture, Food and Rural Development, I have raised many queries on behalf of Members of this House and other people with its officials and found them to be extremely prompt and considerate in their reply. It is a question of getting this set up and instilling an appropriate ethos. I have no doubt that this will become a great success and will deal speedily, effectively and sympathetically with appeals. By definition, appeals should be a last resort and the vast majority of decisions should be correct the first time – and should be seen to be correct. That would be the ultimate objective and would make this appeals board largely redundant.
Amendment agreed to.
I move amendment No. 4:
In page 6, between lines 20 and 21, to insert the following:
"16. – Where it is proposed to make a regulation under this Act, a draft of the regulation shall be laid before each House of the Oireachtas, and the regulation shall not be made until a resolution approving the draft has been passed by each such House.".
I am afraid that this particular hobbyhorse – a very durable animal – will be around for a very long time. Has the Minister of State reflected on the matter since Committee Stage and come to a conclusion that is any closer to my state of mind? Knowing that he is attached to the principle of dealing with areas where democratic deficits arise, I am offering him the opportunity to do so here.
I am not accepting the amendment. We have listened to what the Deputy said and the Government has, accordingly tabled two important amendments today. We are not accepting this one for the good reason that if one wants to adjust the regulations speedily –
It is all right, I am not proposing to drag out this argument.
One great benefit of what is proposed is that a Minister will be able to swiftly bring in time regulations if we find the board is not performing to the time specifications that we would like. We will not have to wait an inordinate time for the House to come back, even if the problem occurs in mid-summer.
Amendment, by leave, withdrawn.
As amendments Nos. 5, 6, 7 and 8 are cognate, they may be taken together, by agreement.
I move amendment No. 5:
In page 6, line 21, to delete "order or".
Amendments Nos. 5 to 8 are necessary to tidy up the Bill following the Committee Stage decision to delete section 7 which referred to ministerial orders. Any other reference to such orders in the Bill are being deleted here. The amendments are purely technical.
Amendment agreed to.
I move amendment No. 6:
In page 6, line 23, to delete "order or".
Amendment agreed to.
I move amendment No. 7:
In page 6, line 25, to delete "order or".
Amendment agreed to.
I move amendment No. 8:
In page 6, line 26, to delete "order or".
Amendment agreed to.
I move amendment No. 9:
In page 7, between lines 23 and 24, to insert the following:
"Non-valuation aspects of the On-Farm Valuation Scheme for TB and Brucellosis Reactors".
This amendment fulfils another undertaking given on Committee Stage, to bring non-valuation aspects of the on-farm valuation scheme for TB and brucellosis reactors within the remit of the Bill. Valuation aspects of the scheme cannot be dealt with in the Bill as there is an appeals mechanism for such aspects. Non-valuation aspects are being brought within the remit of the Bill as discussed and promised on Committee Stage.
As the Minister of State said, this was discussed on Committee Stage where there was an amendment from Deputy Connaughton and me to bring disease eradication schemes within the scope of the Bill. The Minister of State has explained that only non-valuation aspects will be dealt with as a result of this amendment. I commend the Government for acting on the basis of Committee Stage conclusions and I support the amendment.
I also support the amendment. Having dealt with disease eradication problems in the Border region over many years, I welcome this new aspect of the Bill meaning that non-valuation issues can be brought to the appeals body. I recently came across the case of a farmer who wanted to use the new valuation system but the Department insisted that the animal in question be dealt with under the old factory system. I have put down a written question on this matter so I will not delay the discussion. It is important that the rights of farmers be upheld.
I encountered a recent case concerning a herd that was wrongly declared clear and the farmer lost his payments as a result, even though he was fully entitled to them. After quite a long period, it was sorted out. This amendment to the appeals system is welcome.
Amendment agreed to.
Bill reported with amendment, received for final consideration and passed.