Dáil Éireann debate -
Wednesday, 19 Oct 2005

Vol. 608 No. 1

Land Bill 2004 [Seanad]: Report and Final Stages.

Mr. Naughten

I move amendment No. 1:

In page 3, line 29, to delete "2004" and substitute "2005".

This amendment arises from Committee Stage. The amendment is self-explanatory and proposes to remove the figure "2004" and replace it with "2005". The Bill was published on 13 July 2004 and on Committee Stage, the Minister of State at the Department of Agriculture and Food, Deputy Brendan Smith, argued that this date was deliberately inserted to prevent the creation of any artificial annuities. I do not believe any artificial annuities have been created and consequently, I ask him to reconsider the decision of his colleague on Committee Stage and accept this amendment.

Minister of State at the Department of Agriculture and Food (Mr. Browne)

The Minister for Agriculture and Food has reconsidered the amendment. It has been previously stated in the House that 13 July 2004 is the date on which this Bill was published and that it was deliberately inserted in the Bill to ensure that no artificial annuities could be created after the measure was announced to circumvent the Bill's declared intention. Consequently, I oppose this amendment.

Amendment put and declared lost.

Mr. Naughten

I move amendment No. 2:

In page 4, line 8, after "payment" to insert "or instalments".

I tabled this amendment because under the proposed legislation as it currently stands, a farmer must make a lump sum payment. In some circumstances, it will be extremely difficult for farmers to do so. I believe a mechanism and facility should be put in place, especially when substantial amounts of money are outstanding, to enable farmers to pay by instalments. They could do so at the end of the year on receipt of their single farm payment. As the Minister of State is aware, the average single farm payment amount is minuscule and most farmers receive €5,000 or less. In some cases, one payment would not be adequate to meet the demands placed on them by the Land Bill.

Given that the Government has left such a short window of opportunity for farmers to proceed with this mechanism, it is important to encourage as many as possible to buy out their annuities and clear the decks. The cost to the Department of continuing to pursue farmers in respect of this issue by trying to get repayments would be significant. The amount of money involved in annuities is relatively small in the overall context of the Government's budget. I believe the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, has called it a fraction of a fraction. Hence, we should try to facilitate as many people as possible to choose this route and the sensible approach is to permit them to pay by instalments.

Dr. Upton

I support this amendment. Members commented on this issue on Second Stage. In terms of the income that will be generated from this measure, the cost to the Department of collecting it will be fairly significant. Moreover, making an individual pay the amount in its entirety in one lump sum could cause substantial hardship. It is reasonable and fair to ask that it could be paid in instalments. This would take account of people's desire to buy their way out in situations where they were unable to do so in one payment, as they could then make their payments over three or four instalments.

Mr. Browne

This amendment seeks to spread out the payment of the discounted buy-out figure over a much longer time. The scheme will be available for a defined period and if this amendment was to be accepted, it would enable annuitants to accept the scheme and then defer part of the payment until after the scheme was closed. This would seriously undermine the Bill's intended purpose, namely, a closure on the collection of land purchase annuities, and would in effect bring about a situation where annuitants could prolong the final payment without any sanctions for long periods. The entire concept behind the Bill was to bring closure to the scheme. As it stands, the scheme offers what amounts to a discount of 25% of what is actually owed. In itself, this is a substantial benefit to annuitants and I oppose this amendment.

Mr. Naughten

The 25% discount is a substantial benefit to some, but not all, annuitants. Any who have significant arrears must clear them before they can benefit from this scheme, a major flaw. This legislation will not facilitate many of the people who are in financial difficulties and have significant arrears.

Many who owe substantial arrears to the Department also owe substantial amounts of money to banks. They probably have very poor credit ratings and may not be able to get loans from any financial institutions. In these circumstances, there should be a mechanism whereby, over a limited period of time of perhaps three or four years, they can pay 25% each year from their single farm payments. Such a provision need not be open-ended but it would be a sensible and reasonable approach to try to facilitate these people in clearing the decks and getting them off our books.

Mr. Browne

I understand the point the Deputy is making.

Mr. Naughten

Does that mean the Minister of State will accept the amendment?

Mr. Browne

I understand the Minister, following Committee Stage, gave serious consideration to the suggestions made then. Obviously, both the Minister and the Department are anxious to bring closure to this scheme, as are many of the farmers. It has been decided not to accept the Deputy's amendment and to proceed as laid out in the Bill.

Amendment put and declared lost.

Mr. Naughten

I move amendment No. 3:

In page 4, line 14, after "Finance" to insert "and Dáil Éireann".

This amendment is self-explanatory. Its purpose is to ensure that before the legislation enters into force, it gets the positive approval of Dáil Éireann as well as the approval of the Minister for Finance. It is critically important that we try to facilitate as far as possible the most broad-ranging scheme to ensure we get the maximum uptake. I will not go into any further detail.

Mr. Browne

Section 3 of the Bill provides for the Minister having the statutory powers to introduce a scheme for the purpose of section 3. It is not unusual that an administrative scheme provided for in primary legislation and introduced by way of regulation is made subject to the consent of Dáil Éireann being obtained in advance of its introduction. Therefore, there is no need for this amendment.

Amendment put and declared lost.

Mr. Naughten

I move amendment No. 4:

In page 4, lines 16 and 17, to delete "in accordance with the provisions of subsection (1)”.

This amendment allows the Minister for Finance to re-assess the provisions laid down in this legislation before enacting the scheme. It proposes that he will not be tied into the provisions of subsection 1.

I tabled this amendment because, due to the procedures of the House, I am sadly not allowed to table any substantive amendments to the Bill that would incur a cost on the Exchequer. It is not appropriate that we should have just a 25% discount across the board based on the principal owed. We should at least examine a 25% discount on arrears and the principal to encourage the people who have significant arrears. We are talking about a very small number of people, 98 in total, 49 of whom are in arrears of €1 million or more and 3 who owe €40,000. Every effort possible must be made to encourage these 98 people to avail of this scheme.

Many of the 49 farmers who are in arrears in excess of €1 million do not have the facilities to avail of this scheme and have bad credit ratings with banks. In the interests of ensuring cost effectiveness from the point of view of the Department of Agriculture and Food's collection of arrears, it makes sense to leave the Minister for Finance's hands open to allow him to provide additional incentives if he so wishes. I am sure that some of the 98 people are in his constituency, as he comes from a rural constituency, and they will get the opportunity to impress on the Minister for Finance, Deputy Cowen, the need to be more flexible in this matter. In light of this, I encourage the Minister of State to accept this amendment.

Mr. Browne

The wording and advice of the Parliamentary Counsel is clear and unambiguous and should not be interfered with. The total amount of arrears currently owed to the Department is €5.4 million. The Deputy is correct in that 49 people owe almost €1 million, 34 owe in excess of €10,000 each, ten in excess of €20,000, two in excess of €30,000 and three in excess of €40,000.

Mr. Naughten

What did the Minister of State say the arrears were?

Mr. Browne

A total of €5.4 million.

Mr. Naughten

The maths do not add up if 49 people owe €1 million or more.

Mr. Browne

In arrears.

Mr. Naughten

Yes.

Mr. Browne

The total arrears currently owed to the Department is €5.4 million.

Mr. Naughten

My understanding is that 49 people owe arrears in excess of €1 million, which is €49 million.

Mr. Browne

No. A total of 49 people owe €1 million between them.

Mr. Naughten

Do three owe €40,000 between them? I took up the wrong end of the stick.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Naughten

I move amendment No. 5:

In page 4, line 21, after "discharged" to insert the following:

"where such a discharge date is not less than 2 years after the commencement date of the scheme".

This is an important, sensible and straightforward amendment that was discussed on Committee Stage. Given that the Minister of State has had an opportunity over the summer to consider it in full, I am sure he will be in a position to accept it.

I have made my point concerning the arrears. The sole objective behind this legislation must be to address the problems relating to those 98 people and ensure we can facilitate them in availing of the scheme. I have been critical of the fact that there is only a 25% discount and it does not cover arrears. However, it is imperative that we encourage people to take up this scheme as far as possible. For this reason, I have tabled this amendment.

My understanding, and the Minister provided me with clarity on Committee Stage, is that there will be a six month window of opportunity. This is wholly inadequate. The single farm payment is paid on an annual basis and may not facilitate farmers even if it is significant enough to make the repayment. It is disappointing the Government will leave such a limited window. I know the Minister argued that interest is cancelled on a six monthly basis and it is important that only a six month window of opportunity exists because otherwise each of the individuals concerned must be written to a second time. The cost of a stamp should not be an excuse not to increase the window of opportunity for these farmers. I ask the Minister of State to re-examine this issue.

Many cases may involve serious legal difficulties regarding land. Even with the lands division in Cavan working on this matter, the substantial backlog has not yet been rectified or resolved. That will delay the purchase of land by individuals. The Department cannot clear the decks within six months because it is not physically possible to clarify the title of many of these properties within that period. Therefore, it is unfair to only allow a six month period for farmers to avail of this scheme.

The Minister of State is aware of the issues relating to the purchase of land from his experience with compulsory purchase orders. I know he will state either publicly in the House or privately to me that selling a site or two would pay the repayments due. A site cannot be disposed of if the case involves significant issues regarding land title. On Committee Stage I gave an example of a farmer who had not availed of the facility prior to the closing date dying within the six month period. I thank the Minister of State for writing a reply to me, in which he stated that nothing exists to impede the executor of the will or the legal representative of the deceased availing of the buy-out offer on behalf of the deceased annuitant within the six month period.

If anyone in the House is unfortunate enough to need to deal with solicitors with regard to executing wills and going through this process, he or she will find that in many cases it will take far in excess of six months to resolve the issues. Some cases involve substantial inheritance tax issues, and the Minister of State will require the people affected to take out an overdraft, charge the interest against the estate and the inheritance tax that will need to be paid and accumulate a further liability in order to avail of the scheme.

I have no difficulty if the Minister of State wishes to re-write this section of the Bill to state that people must sign up and express an interest within six months, and then allow a window of opportunity for payments to be made. At least that would facilitate it in some way. The mechanism in place is extremely prescriptive and will not facilitate a large percentage of farmers who have substantial arrears to organise loans with banks, to generate the revenue to pay off the debt and on top of that pay off the principal of the moneys owed to the Department.

Dr. Upton

I support this amendment for the same reasons that I supported the amendment on payment by instalments. It will be difficult for a number of farmers, admittedly a small number, to find the revenue to discharge their arrears within the recommended period. It is in everybody's interest that they are given that extra time to have a clean sheet so there would not be a build up of arrears and interest. I support the amendment in order to allow people extra time to negotiate a bank loan. Those already in arrears might experience great difficulties in accessing a bank loan within that time, which for someone in that situation might be a short span.

Mr. Browne

The purpose of the discounted buy-out scheme is to facilitate the termination of ongoing annuity payments. Annuitants have had a year in which to organise or arrange finance from their financial institutions and check that the title of the land subject to any annuity is in order. The longer the scheme is open, the more adjustments will be required to figures and the half-year gale days go by.

The purpose of the scheme is to encourage annuitants to avail of the scheme within a reasonable period of time and bring the ongoing collection of annuities to an end. Accepting the Deputy's amendment would lead to serious administrative difficulties and will unnecessarily prolong the administration of the scheme at a significant additional cost to the Department in time and resources. This was widely debated on Committee Stage. The Minister and her officials heard all of the arguments and considered the matter during the summer months. They decided to stay with the original decision. Therefore, we oppose this amendment.

Mr. Naughten

I am extremely disappointed that the Minister of State is not more positive about this amendment. I am seeking a reasonable period of time in which to facilitate people availing of this scheme. The reason given that this amendment cannot be accepted is because of the administrative difficulties it will create due to the number of gale days met during that period of time. Will the Minister of State put a figure on the administrative costs? I appreciate he cannot do so off the top of his head. I guarantee him it will be a fraction of the cost of trying to collect these arrears in the future from the 98 people involved and other people unable to avail of this discount scheme.

In the interests of the Exchequer it is of the utmost importance that the Minister of State facilitate as many people as possible availing of this scheme and encourage them to do so. People will not consider this until the legislation has been enacted. The IFA held a campaign and we argued in the House that the discount should be greater than it is. However, until the legislation is enacted people will not examine this issue or the title.

How many additional staff will the Minister of State appoint in Farnham Street in Cavan to deal with these queries during the coming months? I have dealt with the staff in Farnham Street. They are excellent and all credit must be given to them for expediting cases. However, cases have continued for years because land certificates have been lost, or transferring one piece of land requires the transfer of 40 or 50 other pieces of land in conjunction with it. It will be a nightmare for the staff to deal with this within the window of opportunity provided by the Bill.

Mr. Browne

We feel that six months is a reasonable period. The Deputy stated that 97 or 98 cases existed. In fact, 2,300 annuitants with annuities of over €200 per annum are affected and will receive a discount of 25%. The Minister is anxious that closure is brought to this matter and she has already instructed that adequate staff will be available in Cavan to deal quickly with this matter.

Mr. Naughten

I will quote the Minister of State on that.

Amendment put.

The Dáil divided: Tá, 54; Níl, 70.

Tá

• Allen, Bernard.
• Boyle, Dan.
• Breen, James.
• Breen, Pat.
• Broughan, Thomas P.
• Bruton, Richard.
• Burton, Joan.
• Connaughton, Paul.
• Connolly, Paudge.
• Costello, Joe.
• Cowley, Jerry.
• Crawford, Seymour.
• Deasy, John.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• Enright, Olwyn.
• Ferris, Martin.
• Gilmore, Eamon.
• Gogarty, Paul.
• Gregory, Tony.
• Healy, Séamus.
• Higgins, Joe.
• Higgins, Michael D.
• Howlin, Brendan.
• Lynch, Kathleen.
• McCormack, Pádraic.
• McEntee, Shane.
• McGinley, Dinny.
• McGrath, Finian.
• McManus, Liz.
• Mitchell, Olivia.
• Morgan, Arthur.
• Murphy, Catherine.
• Naughten, Denis.
• Neville, Dan.
• Noonan, Michael.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Dowd, Fergus.
• O’Shea, Brian.
• Pattison, Seamus.
• Penrose, Willie.
• Quinn, Ruairí.
• Rabitte, Pat.
• Ryan, Eamon.
• Ryan, Seán.
• Sargent, Trevor.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Timmins, Billy.
• Twomey, Liam.
• Upton, Mary.
• Browne, John.
• Collins, Michael.
• Cooper-Flynn, Beverley.
• Davern, Noel.
• Dempsey, Tony.
• Devins, Jimmy.
• Fahey, Frank.
• Moynihan, Donal.
• Ó Cuív, Éamon.
• O’Dea, Willie.

Níl

• Ahern, Michael.
• Ahern, Noel.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Brennan, Séamus.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Coughlan, Mary.
• Cowen, Brian.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Dennehy, John.
• Ellis, John.
• Finneran, Michael.
• Fleming, Seán.
• Fox, Mildred.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Tom.
• Lenihan, Brian.
• McEllistrim, Thomas.
• McGuinness, John.
• Moloney, John.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M.J.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Donnell, Liz.
• O’Donoghue, John.
• O’Donovan, Denis.
• O’Keeffe, Batt.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Sexton, Mae.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G.V.

Tellers: Tá, Deputies Neville and Stagg; Níl, Deputies Kitt and Curran.

Amendment declared lost.

Mr. Naughten

I move amendment No. 6:

In page 4, to delete lines 24 to 29.

This is a vital amendment. The Department is granting itself extensive powers to confiscate money from farmers without going through the courts. Having debated this issue at length on Committee Stage, it is imperative that the Department reconsiders its decision to retain the provision allowing it to withhold single farm payments in lieu of arrears without recourse to the courts. This power is excessive. On Committee Stage the Minister gave numerous guarantees that the Department would avail of its powers under this section only in extreme circumstances but these have not been written into the legislation.

I do not have a major difficulty with the Department's proposal provided the legislation contains proper protections. Unfortunately, that is not the case. Every Deputy has been asked by farmers in his or her constituency why the House allowed certain legislation to pass in light of a later decision by a Department or Minister to interpret it in a manner completely at odds with the original objective. I cannot allow this section to remain without protections being added.

From a Government point of view, it makes sense to remove this provision in light of the role of the Minister for Justice, Equality and Law Reform in dealing with issues which arise when charges are imposed on people. In court cases, for example, the Minister will not entertain a proposal to issue an attachment of earnings in connection with a court order, yet the Bill provides for attachment of earnings without a case being brought before a court.

The heavy hand of the Department will put the squeeze on the 98 people who remain in arrears. It is not prepared to incentivise this group of farmers to avail of the scheme or give them a decent window of opportunity in which to do so. Instead, it is using a sledge-hammer to crack a nut. Not only will it have the power to offset arrears against payments due from the Department, including the single farm payment, but section 6 gives it the power to confiscate a farmer's dairy cheque. These provisions are excessive and do not contain proper checks and balances. For example, no provision has been made to require the Department to explain a decision before a court.

The moneys the Department may confiscate do not always originate in the Department but have been committed by the European Union and paid into the Department's bank account, from which it is supposed to be transferred to farmers on condition that they meet compliance rules. The Bill provides for an additional rule that farmers must not only meet the regulations laid down under cross-compliance but must also address any arrears they may have with the Department.

My concern is that this power will not be used in the manner outlined by the Minister of State on Committee Stage but will be treated as a form of leverage with which to put farmers under considerable pressure. Many of the farmers in question are in severe financial difficulty in that they owe the Department arrears and have large debts with lending institutions. For this reason, they rely on the single farm payment due in December to make repayments. If the Minister retains the provision permitting the Department to withhold single farm payments, many farm families will go hungry this Christmas. I vehemently oppose this provision and asked the Minister on Committee Stage to reconsider it. Sadly, the Minister of State did not table an amendment to ensure that checks and balances are put in place. That is my major objection. I gave the Minister of State the opportunity to reconsider his decision on it and bring forward a balanced amendment, but sadly that did not happen.

Mr. Connaughton

I am delighted to get this opportunity. Like Deputy Naughten, I drew attention to this matter on Second Stage. I would go even further. I do not like the power of attachment. I want to make it clear that I am not making a good, bad or indifferent case — nor is anybody else here — for persons who owe money to the Department. Everybody understands that in some shape or form this money must be paid. When I was Minister of State in the then Department of Agriculture 20 years ago, we had significant problems with arrears.

This is a more insidious matter and I will tell the Minister why. If one implements a power of attachment such as this which does not include checks and balances, the Department will deny the farmer his family's income, which now will be the single farm payment together with the area based payments in certain parts, for that year. Where, in fairness to Department of Agriculture and Food, a farmer owed €4,000, for example, the Department — the officials will bear this out — has always used a reasonable approach to and deducted €1,000 a year over four years. I have seen this done on many occasions.

When the Minister of State puts this provision in place the force of law will be behind it. All one will need is a memo from the Department of Finance from people who really do not understand the farming world to ask the Department which is giving a single farm payment of €8,000 or €9,000, for example, and to state that the Land Commission in Castlebar or Cavan is owed €7,000 or €8,000, for that family farm to receive no income for that year. That is why this is extremely important.

There is another matter worth mentioning. Once the principle of the power of attachment is used, there is nothing to stop the practice permeating right through the Department on many other issues as the years go by because one has created a precedent. This is the significant aspect of this matter.

I assume Deputy Naughten was referring to 98 farmers who owe money to the Land Commission on rent annuities. I thought the number was somewhat higher, and possibly for smaller amounts in certain cases.

While there would be a power of attachment, words as to the effect of how it should be used should be inserted in the Bill. There is no point in the Minister of State stating in the House what he would like to do because "like to" means nothing.

Mr. Durkan

That is for sure.

Mr. Connaughton

It reminds me of assurances of planning permission in five years' time. The Minister of State, Deputy Browne, then may be the Minister for Finance and somebody else will be in his place.

Mr. Durkan

He will be the Opposition spokesperson on finance.

Mr. Connaughton

It will be difficult to pin down the friend of the farmers in five years' time when somebody will have a real problem. It is against that background that Deputy Naughten is entirely correct to highlight this. This is a draconian measure. It is a heavy-handed measure to deal with a matter, which can be dealt with in a much easier fashion which is much more likely to reap rewards.

The Department may come across one of those farmers in deep financial trouble. When I was Minister of State at the then Department of Agriculture with responsibility for land for five years farmers were buying land at its most expensive. The value of the land, for which the Land Commission had to pay at the time, was so much higher than the income that one could possibly expect to get off land at the time. It is true that it would have been far better for many farmers if they had never seen Land Commission land at that time but that is not the way it worked out, and the Minister of State knows this better than I do.

That is the necklace which is hanging over a certain group of farmers, most of whom are in the good farming areas right across the country although this is hard to believe. Some 20 years ago they got into a situation and they found it terribly difficult to get out of it. In my dealings with it, it goes without saying that the Land Commission has been extremely considerate to most of the farmers I know.

I worry about this legislation for the reasons outlined. Naturally I see the reason this provision is being inserted and why someone would want to do so. It is an instance of overkill. It would be much easier to give many of the farmers who are in significant debt to the Land Commission the opportunity of being able to pay this over a number of years, provided that is mentioned somewhere in the legislation.

Mr. Crawford

As one of the signatories to it, I support this amendment. I cannot help admiring the way it is put forward in the Bill, "Set off of payments". That is lovely language, but in reality it is attachment to earnings. This is an extremely serious matter. Already, I have had to deal with a few of them which have been dealt with in other areas such as REPS. When somebody becomes ill or whatever, the person can find himself or herself in arrears and suddenly find that all their income is taken from them. I had an aged lady with me the other day with a nice sheet from a Department detailing all that she was owed and another piece of paper where the cheque should have been stating "No payment". That is not much good to that man and woman trying to meet their bills. Clearly, that is where we are coming from.

The power of attachment is a serious matter. There is no sense of what was quoted in the Dáil, that there would be a sympathetic understanding of the matter. It should be subject to negotiations so that X euro debt could be paid over a number of years but the way this is written it is clearly to be taken out of whatever income is available, whether through area aid, REPS, the single payment or even, as Deputy Naughten stated already, going as far as the milk cheque, the mart cheque or whatever.

This is extraordinarily lethal legislation. I well remember going through the development plan in my county council and getting an absolute assurance from the county manager who stated, "Let it go in, we will never implement it". I am in no doubt that the then manager, Mr. Joe Gavin, was a gentleman who stuck to his word until his last day there——

Mr. Durkan

A rarity nowadays.

Mr. Crawford

——but the new manager announced he had read the plan, was happy with it and would implement it to the letter of the law. As has already been said, I appreciate the understanding of the Minister of State, Deputy Browne. He may tell us he is sympathetic but unless this is included in legislation to take account of our real anxieties, examples of which I have seen in operation, it is totally unacceptable. It is also unacceptable that a wife and children, who may have nothing to do with the situation other than living on the farm but who are dependent on that EU payment for their bread and butter, can find themselves without any money because of a law passed in this House. There must be a clear rider included in the Bill if we are to allow this paragraph to remain in it. Such a rider must clarify how negotiations shall take place and how repayments can be made over a period. We have no objections to that because we all accept that the arrears must be paid. However, it is unacceptable that a person would find his total year's income has been taken from him by the State.

Can the Minister of State imagine what he would say if this provision came from one of the major banks? They would not even dream of it but would enter into some form of negotiations to get their payments over a period.

Mr. Connaughton

They would have to go to court.

Mr. Crawford

The banks would have to go to court if they wanted to do this. The Minister of State is introducing legislation here that can remove from a farm family every penny it is due under EU and Government regulations. I plead with him to consider how he would feel about this if his family was affected. It is in that light that we should consider this matter.

Dr. Upton

I support the amendment. I share the views already expressed by the previous three speakers. This seems to be a very heavy-handed approach to redeeming arrears. I presume those people who would be in arrears are, perhaps, a vulnerable group. Otherwise, they would have found the way and means to repay the arrears before this heavy-handed instrument would have to come in.

I see this provision as a dangerous precedent. Those who have spoken referred to attachment of earnings. It is the latter to which this provision, although it may be couched in slightly different language, relates. There is no protection built into the legislation to protect individual farmers from somebody coming and clawing back what could be their entire single farm payment or, as has been pointed out, any other payment. The precedent proposed here is dangerous. There are no safeguards built into it and there is no safety net for the farmer. The provision could mean that a family would be deprived of its household income. A family's full income could be taken from it if this legislation, as proposed, is allowed to stand. I support the amendment.

Mr. Durkan

I support the amendment on the basis set out by my colleagues. The principle of an attachment of earnings is arbitrary because it does not take account of an individual's circumstances. As the previous speaker said, there is no consideration of the particular personal circumstances of the householder or farmer concerned. He or she could well be in serious financial difficulty and he or she might be left penniless, with his or her entire financial support for the year cut off at a critical time.

I am not sure that this provision, even if written into the legislation, would be constitutional. As far as I can recall, the courts made previously made reference to a company arbitrarily deducting arrears at source, notwithstanding that the moneys were owed. I cannot recall the particular instance but the courts made a decision in this regard. There could be difficulties with regard to the provision and constitutional difficulties with regard to the points raised by my colleagues.

Notwithstanding the fact that the Minister of State is very nice and that we on this side all love him, we hope he will not be very long on that side of the House because he needs to have a rest on this side. We will do our utmost to ensure that happens.

Mr. Naughten

There is a nice seat here for him.

Mr. Durkan

We would not like somebody from this side of the House to have the onerous responsibility of having to adjudicate on individual cases, which would arise when that happens. It would be unfair for Deputy Naughten or any other Deputy on this side of the House to have to adjudicate in individual cases where hardship might be caused to the people concerned. In those circumstances, the Minister of State should take this amendment on board. He should stitch it into the legislation in such a way that it will have some standing. As I already said, notwithstanding the fact that the provision may be in the legislation, it could well be challenged on constitutional grounds. As that area could be the proverbial minefield, we will not go too far down that road.

The agricultural sector is not flush with funds and it seems as if it will not be for some time, notwithstanding the efforts of the Minister of State. I believe the proposed amendment would be helpful. It is constructive and would protect Ministers and individuals in the community in a way not provided for in the arbitrary manner in which it is currently proposed to proceed.

Mr. Browne

If Deputy Naughten ever gets the opportunity to be on this side of the House, I have every faith in his being a compassionate man.

Mr. Durkan

I am glad of that, but I do not want the extra responsibility placed on him.

Mr. Browne

The sell-off powers in section 4 are designed to ensure that farmers who retain their annuities maintain payments thereafter. We have an obligation to the Exchequer and those who have discharged their annuities in the past had to ensure that ongoing financial obligations were met on time. I propose that section 4 remain without alteration.

Some Deputies mentioned the compassionate nature of people in the Land Commission in Cavan. The measure will only be applied after consultation with the annuitant and in a proportionate and compassionate manner. I do not know of any situation where the Department ever took a full payment from a farmer and I doubt it will happen in this case.

Mr. Crawford

It did so last week.

Mr. Browne

The Department will be compassionate and considerate. If a payment is taken, it will be in proportion to the payments due. However, Deputies should be aware that arrears must be dealt with. The Minister cannot allow arrears to accumulate and at the same time pay State and EU funds where there is a clear breach of contract by the client. The Department intends to encourage the 2,300 annuitants that can avail of this scheme. We hope they will take it up and that the issue of concern to the Deputies will not arise.

Mr. Naughten

As I already pointed out with regard to my previous amendments, the Minister of State knows that the 2,300 annuitants cannot take up the scheme. This is the difficulty.

I have no difficulty in accepting what the Minister of State said, namely, that these measures will only be implemented after consultation and in a compassionate manner. I have no difficulty that the two officials accompanying the Minister of State and other staff in the Land Commission will deal with the issue in a similar manner. I do not doubt that. The difficulty is that people change. Ministers, Ministers of State and officials within Departments change. Officials in the Department of Finance also change. That is what causes my difficulty. The major problem with this section is that no protection is put in place.

I am not making the case that these arrears should not be paid in full. This must be done. The Department has a relatively good record in many cases of sitting down with farmers and agreeing a repayment scheme but this provision now provides a legislative support for something not currently in place. At present, there is an incentive for the Department to agree a repayment scheme with farmers but it will not need it once these powers are put in place. It can literally force the hand of farmers.

The other major difficulty I have with the provisions of this section is that they will not be restricted to 2,300 farmers. The section will set a precedent within the Department of Agriculture and Food that will mean that it will not just relate to Land Commission arrears. The provisions of the section will be extended to cover other arrears. Section 4 will make a hungry Christmas for many farm families because it sets an extremely dangerous precedent. I ask the Minister of State to reconsider his position on this amendment. He should agree to remove sections 4 and 6 from the Bill so that we can proceed with its enactment.

Mr. Crawford

There has been a good relationship, in general. I am familiar with cases which have been sent to outside collectors in the past. The collectors received a certain percentage of the moneys before they were sent to the Land Commission. There is a danger that people who are in real hardship could be the victims of this change. If the needs of such people were considered, not only in the written reports of the House but also in actual legislation, it is possible that we could live with it. This section, as it stands, is intolerable and unacceptable. Fine Gael cannot support it.

Mr. Browne

While I respect the views of the Deputies opposite, I cannot accept this amendment. I ask the Deputies to accept the assurance given by the Minister on Committee Stage and in the Seanad that the issues will be dealt with, if they arise, after consultation and in a compassionate and proportionate manner.

Mr. Allen

That is very original.

Mr. Connaughton

We will get back to the Minister of State.

Mr. Naughten

The Bill states clearly that "the Department may set off any arrears of payments outstanding in respect of the land purchase annuity". In other words, any payment being made through the Department of Agriculture and Food could be taken. Section 6 expands on this aspect of the matter. It is not a partial payment or an instalment payment that will be taken. Any payment could be taken. A farmer's entire single farm payment, REPS payment or any other payment could be absorbed by the Department to deal with the arrears.

Question put: "That the words proposed to be deleted stand."

The Dáil divided: Tá, 65; Níl, 50.

Tá

• Ahern, Michael.
• Ahern, Noel.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Brennan, Seamus.
• Browne, John.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Collins, Michael.
• Coughlan, Mary.
• Cowen, Brian.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• de Valera, Síle.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fahey, Frank.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Fox, Mildred.
• Gallagher, Pat The Cope.
• Grealish, Noel.
• Hanafin, Mary.
• Hoctor, Máire.
• Kelly, Peter.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• McEllistrim, Thomas.
• McGuinness, John.
• Moloney, John.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Donoghue, John.
• O’Donovan, Denis.
• O’Malley, Fiona.
• Parlon, Tom.
• Power, Peter.
• Sexton, Mae.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G. V.

Níl

• Allen, Bernard.
• Boyle, Dan.
• Breen, James.
• Breen, Pat.
• Broughan, Thomas P.
• Bruton, Richard.
• Burton, Joan.
• Connaughton, Paul.
• Connolly, Paudge.
• Costello, Joe.
• Cowley, Jerry.
• Crawford, Seymour.
• Deasy, John.
• Durkan, Bernard J.
• Ferris, Martin.
• Gilmore, Eamon.
• Gregory, Tony.
• Healy, Seamus.
• Higgins, Joe.
• Higgins, Michael D.
• Hogan, Phil.
• Howlin, Brendan.
• Kenny, Enda.
• Lynch, Kathleen.
• McCormack, Padraic.
• McEntee, Shane.
• McGinley, Dinny.
• McManus, Liz.
• Morgan, Arthur.
• Murphy, Catherine.
• Naughten, Denis.
• Neville, Dan.
• Noonan, Michael.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Keeffe, Jim.
• O’Sullivan, Jan.
• Pattison, Seamus.
• Penrose, Willie.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Ring, Michael.
• Ryan, Seán.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Timmins, Billy.
• Twomey, Liam.
• Upton, Mary.

Tellers: Tá, Deputies Kitt and Curran; Níl, Deputies Neville and Stagg.

Question declared carried.

Amendment declared lost.

Mr. Naughten

I move amendment No. 7:

In page 4, to delete line 45.

This issue was discussed at length on Committee Stage. I thank the Minister of State, Deputy Brendan Smith, for providing clarification on it in correspondence dated 12 October. He stated that the provision under section 5(2)(e) will only cover leases of greater than 21 years. Will the Minister of State, Deputy Browne, put that clarification on the record?

Mr. Browne

A lease is a disposal of possession. The issue here is that the Department must ensure that any form of land transaction which is subject to a land purchase annuity, including the leasing of land, would require a certificate indicating that all annuity payments have been paid. I do not want to create a loophole for leases, thereby giving rise to the possible avoidance of annuity arrears being discharged by the leases. As the Deputy stated, the letter outlines the position of the Minister of State, Deputy Brendan Smith. I reiterate that position.

Mr. Naughten

I wish to clarify that the creation of a lease for a term of less than 21 years does not require to be registered with the Land Registry. Will the Minister of State put that on the record?

Mr. Browne

What the Deputy said is correct.

Amendment, by leave, withdrawn.

Mr. Naughten

I move amendment No. 8:

In page 5, to delete lines 6 to 12.

The principle of this amendment has already been discussed with amendment No. 6. The Bill provides for the attachment of earnings without having to go through the court system. It is a disappointment that these powers are being provided. As already stated, it is not my intention to encourage people to avoid repayments. I know the Minister of State has put his commitment on the record, as has his colleague, the Minister of State, Deputy Brendan Smith. However, I am extremely concerned about this provision because checks and balances are not being put in place. It will cause hardship at some stage in the future and it sets a very dangerous precedent. It is unbelievable that the Department of Agriculture and Food should put an attachment of earnings in place, while the Minister for Justice, Equality and Law Reform is not prepared to do so where there is a court decree against a person. I am disappointed that the Government is not prepared to include in the legislation the checks and balances which should be in place.

Mr. Crawford

I support the amendment. This is extremely disappointing. As Deputy Naughten said, there is a major anomaly in that Fine Gael actually brought forward a number of Bills providing for attachment of fines but we have the ridiculous situation where somebody is sent to Mountjoy Prison because he or she owes some money. It costs €290 per night to keep somebody in Mountjoy Prison, not to mention what it costs to send him or her there. The Government would not rectify that anomaly. Many people would gladly pay their fines, perhaps in the form of €10 per week from their social welfare payments, wages, etc. However, the Minister deemed it unfit to bring in an attachment of fines in such cases.

In this instance, while it is finely worded, it is an attachment of earnings. The Department is not satisfied with getting the full income a person receives from the rural environmental protection scheme or in the form of a single payment, headage payment or any other payment paid by it or the EU. It is now prepared to extend it to a person's milk cheque or other income. It is extremely disappointing that no understanding or leniency has been shown in this regard.

As my colleague, Deputy Naughten, said, the major issue is that a precedent is being set. The former Minister for Agriculture and Food, Deputy Joe Walsh, told us on several occasions that we would discuss it again in a year's time and so on. However, we now know how little that meant.

Dr. Upton

I support this amendment for the same reasons I supported the previous one relating to a similar set of circumstances whereby there may be attachment of debts. The key point is that a dangerous precedent is being set. Despite any guarantees and assurances that people will be dealt with sympathetically, the legislation will apply if this is challenged. If somebody finds himself or herself in the unfortunate situation whereby there is a demand for payment, the facility is in place to take it from him or her without any consultation or reference to the courts or without a safety net being in place. On that basis, this provision should be removed to preclude such an event from happening.

Mr. Browne

The powers set out in section 6 do not place my Department in a better position than any other creditor. It will be necessary for application to be made to the appropriate court of competent jurisdiction to obtain the relief provided for in the Bill. I refer here, for example, to the garnishee order provided for in the section. My Department is unable to redirect payments due from third parties who might owe money to an annuitant without first making application to the court. We have put measures in place to ensure that farmers who do not avail of the voluntary scheme maintain their annuity payments thereafter. I could repeat the points I made in regard to amendment No. 6. The measures will only be applied after consultation with the annuitant and in an appropriate and compassionate manner.

Mr. Naughten

The main problem is that it not only applies to payments due from the Department of Agriculture and Food by way of the EU or the State coffers but it can relate to any income a farmer has, whether that from off farm or some other source. A warrant can be issued for the redemption of the sum in question. One does not have the protection of the court because, sadly, this section states that a warrant issued under it is deemed to be a judgment of a court. Once the warrant is issued, it is deemed to be a court judgment without it having to go through the court procedure. That is the main problem with this provision.

The basic checks and balances are not in place. We are excluding the courts and are relieving the Department of the obligation to negotiate with farmers because it is being given these powers. As Deputy Upton said, this sets a very dangerous precedent. The fact that it is being included in the legislation will mean that the Government will extend it within the Department of Agriculture and Food and perhaps to other Departments to which payments are due.

It is somewhat hypocritical of the Government to talk about attachment of earnings in regard to arrears due to the Department when elderly people throughout the country are due money from the Department of Health and Children. The Government is not prepared to issue payments to those individuals. At the same time, it is putting legislation in place to enable the Department of Agriculture and Food to withdraw money from farmers' bank accounts or to take money due to them from some other source or from the Department. It is an extremely dangerous precedent and I ask the Minister of State to reconsider this section.

Mr. Browne

We have had a substantial debate on the issue. The Minister considered it carefully and is not prepared to accept the Opposition's amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Naughten

I thank the Minister of State, his colleagues and the officials involved in the preparation of this Bill. Provision has been made for significant powers which are not appropriate to this legislation. We should have examined providing a more balanced incentive in this regard. We teased out those issues and I thank the officials for the manner in which they responded to them and made the argument as to why they could not concede to them. When the Bill is signed into law, it is imperative that Members encourage many of those 2,300 people involved to take up the offer. I look forward to working with the officials in the Land Commission in securing as many of those full payments of annuities as possible. I thank the officials dealing with this legislation.

Dr. Upton

I thank the Minister, the Minister of State and their officials for the way they handled amendments to the Bill. I appreciate the effort they made to address our concerns. While we may still have reservations about some aspects of it, serious time and effort was put into ensuring that the various issues were given a good hearing and dealt with fairly. The Bill will not be reflected in the Dublin South Central constituency.

Mr. Naughten

The Deputy may be surprised.

Dr. Upton

I do not have particular concerns about its implementation in Walkinstown or Terenure. I thank the Minister of State and his officials.

Mr. J. Brady

Acting Chairman——

Mr. Naughten

The Deputy was very quiet five minutes ago.

Mr. Browne

The farmers' friend.

Mr. J. Brady

I wish to be associated with those speakers on the other side of the House in complimenting the Minister of State and his officials. Coming from a farm and a county that depended on the Land Commission, I know many small farmers in County Meath who are grateful for its work. There were also migrants from other parts of the country, particularly from the west, who were always made welcome in County Meath. Some of them became famous and we know the contribution they made to our county, even off the football field. Had it not been for the Land Commission, those people would never have ended up in County Meath.

Deputies Naughten and Upton supported me on Second and Committee Stages when I proposed that where county councils are acquiring Land Commission land, they should not be able to sell it on in the open market. That land was made available years ago for the poor people of Ireland. I do not want to see big tycoon builders and developers or large farmers acquiring this land. I am confident the Minister of State will consider this in other legislation.

Minister of State at the Department of Agriculture and Food (Mr. Browne)

I thank the House for facilitating the debate on the Bill and I acknowledge the valuable contributions of Members, particularly Deputies Upton, Naughten and Crawford. I thank the Ceann Comhairle, the staff of the Office of the Attorney General, the Parliamentary Counsel and my officials, who have worked on the Bill for some time. As Deputy Naughten said, it is up to us to encourage farmers to avail of this scheme. I encourage Members to ask farmers to become actively involved in the buy-out on the commencement of the legislation. Any difficulties that may arise will be dealt with in a compassionate manner.

Question put and agreed to.

Acting Chairman (Mr. O’Shea)

A message shall be sent to the Seanad acquainting it accordingly.